HomeMy WebLinkAboutS9-85 0825K
12/20/85
The Mayor and City Council of the City of Elgin, Cook
and Kane Counties , Illinois, met in a regularly scheduled and
duly called and convened public session at the Elgin City Hall,
150 Dexter Court , Elgin, Illinois, at eight o' clock P .M. , on
December 23 , 1985, with Richard L . Verbic , Mayor , and
with the following named Councilmen present :
Andersen, Gilliam, Moylan, Shales , Van De Voorde and Waters .
Absent : None
(Other Business)
The following Ordinance was thereupon introduced in
written form by Councilman Moylan ••
• ~Mwv �.��. Ordinance No. S9-85
AN ORDINANCE authorizing the issuance of
$2, 500 , 000 aggregate principal amount Economic
Development Revenue Bonds (Butler PharmaPac,
Inc. Project ) , Series 1985, of the City of
Elgin, Cook and Kane Counties, Illinois;
authorizing the issuance of said bonds under
Ordinance No. S2-80 , as amended and
supplemented, for the purpose of making a loan
to Butler PharmaPac, Inc. ; authorizing the
execution and delivery of a Trust Indenture
securing said bonds; authorizing the execution
and delivery of a Loan Agreement with said
Butler PharmaPac, Inc. ; confirming the sale of
said bonds to the purchaser thereof pursuant
to a Bond Purchase Agreement ; approving
related documents ; authorizing the execution
and delivery of related documents; and
prescribing other matters related thereto.
WHEREAS, the City of Elgin, Cook and Kane
Counties, Illinois ( the "Issuer" ) , is an Illinois home
rule municipality authorized under the provisions of
Article VII , Section 6, of the Illinois Constitution of
1970, and Ordinance No. S2-80 adopted by the City
Council of the Issuer on February 13, 1980, as
supplemented and amended ( the "Enabling Ordinance" ) , to
finance in whole or in part the cost of the
acquisition, purchase, construction, reconstruction,
improvement , equipping, betterment or extension of
economic development projects in order to encourage
economic development within or near the Issuer ; to
lease, sell or finance the same to or for any person;
and to provide for the issuance of revenue bonds in
conjunction therewith; and
WHEREAS, pursuant to the terms of a Resolution
of the Issuer adopted October 14, 1985, the Issuer
entered into a Memorandum of Agreement by which it
agreed to issue its revenue bonds in an aggregate
amount not exceeding $2, 500, 000 for the benefit of
Butler PharmaPac, Inc. , an Illinois corporation (the
"Company" ) , for the purpose of financing all or a
portion of the costs of acquiring, rehabilitating and
equipping a manufacturing, warehousing and office
facility located at
1300 Abbott Drive, Elgin, Illinois (the "Project" )
which Project will be used by the Company in its
business as a manufacturer and packager of private
label pharmaceutical products; and
WHEREAS, the Project constitutes a "Project"
as defined in the Enabling Ordinance; and
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WHEREAS, it is now proposed that the Issuer issue its
Economic Development Revenue Bonds (Butler PharmaPac, Inc.
Project ) , Series 1985, under the provisions of the Enabling
Ordinance in the aggregate principal amount of $2, 500 ,000 ( the
"Bonds" ) to provide moneys to make a loan to the Company
pursuant to the Enabling Ordinance for the purpose of financing
a portion of the costs of the acquisition, construction and
equipping of the Project ; and
WHEREAS, Union National Bank, a national banking
association (the "Purchaser" ) has agreed to purchase the Bonds
at a price equal to the aggretate principal amount of the Bonds .
WHEREAS, the Issuer is empowered under the Enabling
Ordinance to finance the acquisition, construction and
equipping of the Project through the issuance of the Bonds; and
WHEREAS, a public hearing has been held by this City
Council after reasonable public notice as required by Section
103 (k) of the Internal Revenue Code of 1954, as amended ( the
"Code" ) ; and
WHEREAS, the Bonds will be issued under and pursuant
to a Trust Indenture dated as of December 1, 1985 ( the
"Indenture" ) , by and between the Issuer and First Union
National Bank , a national banking association, Charlotte, North
Carolina, as Trustee ( the "Trustee" ) ; and
WHEREAS, it is proposed that the Issuer will make a
loan of the proceeds of the Bonds to the Company as provided in
the Enabling Ordinance pursuant to a Loan Agreement dated as of
December 1 , 1985 ( the "Loan Agreement" ) , by and between the
Issuer and the Company; and
WHEREAS, there have been prepared and presented to
this meeting the following documents:
1 . The form of the Indenture, including the form of
the Bonds;
2 . The form of the Loan Agreement, including the
form of the promissory note of the Company ( the "Promissory
Note" ) and the form of the Issuer ' s endorsement of the
Promissory Note ( the "Endorsement of the Promissory Note" ) ,
which are attached to the Loan Agreement as exhibits;
3 . The form of the Guaranty Agreement dated as of
December 1 , 1985 (the "Guaranty" ) , from the John 0. Butler
Company, a Delaware corporation ( the "Guarantor" ) , to the
Trustee pursuant to which the Guarantor will unconditionally
guarantee, among other things, the full and prompt payment of
the principal installments of and premium, if any, and interest
on the Bonds; and
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r
4 . The form of the Mortgage and Security Agreement
dated as of December 1 , 1985 ( the "Mortgage" ) , from the Company
to the Trustee granting a mortgage upon certain real estate
owned by the Company and a security interest in certain
machinery, equipment , furniture and fixtures owned by the
Company, all as security for the payment of the principal of
and premium, if any, and interest on the Promissory Note and
the Bonds and as security for certain other obligations of the
Company and the Guarantor ; and
5. The form of the Arbitrage Regulation Agreement
dated as of December 1, 1985 ( the "Arbitrage Agreement" ) , to be
entered into by and among the Issuer , the Trustee and the
Company providing for the deposit of certain sums and the
performance of certain acts with respect to arbitrage earnings
on the proceeds of the Bonds; and
NOW, THEREFORE, BE ORDAINED by the City Council of the
City of Elgin, Cook and Kane Counties, Illinois, as follows :
Section 1 . Findings . It is hereby found, determined
and declared by the City Council of the Issuer that :
(a) the Project will provide increased job
opportunities , and will retain existing jobs, within the
City of Elgin, Cook and Kane Counties, Illinois;
(b) the Project , the financing of the Project , and
the issuance of the Bonds, are determined to be in
accordance with the purposes of the Enabling Ordinance and
are approved;
(c) the Project constitutes a "Project" within the
meaning of and authorized by the Enabling Ordinance;
(d) the Project , the issuance and sale of the Bonds
to finance the same, the execution and delivery of the
Indenture, the Loan Agreement , the Endorsement of the
Promissory Note and the Arbitrage Agreement , and the
performance of all covenants and agreements of the Issuer
contained therein and of all other acts and things required
under the Constitution and
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laws of the State of Illinois to make the Indenture, the
Loan Agreement, the Endorsement of the Promissory Note, the
Arbitrage Agreement and the Bonds valid and binding
obligations of the Issuer in accordance with their terms,
are authorized by the Enabling Ordinance;
(e) it is desirable that the Bonds in the aggregate
principal amount of $2, 500, 000, initially dated the date of
the original issuance thereof, be issued by the Issuer upon
the terms set forth in the Indenture, under the provisions
of which the Issuer ' s interest in the Loan Agreement , the
Promissory Note and the payments due the Issuer thereunder
will be pledged and assigned to First Union National Bank ,
a national banking association, Charlotte, North Carolina
( the "Trustee" ) as security for the payment of principal
of, premium, if any, and interest on the Bonds ;
( f) the principal amount of the Bonds does not exceed
the estimated cost of the acquisition, rehabilitation and
equipping of the Project, financing charges, interest which
it is estimated will accrue on the Bonds during the
construction period and costs of the issuance of the Bonds;
(g) the payments required to be made by the Company
under the Promissory Note and the Loan Agreement are in
such amounts as will be sufficient to provide for prompt
payment of all of the principal of and premium, if any, and
interest on the Bonds when due;
(h) under the provisions of the Enabling Ordinance,
and as provided in the Indenture, the Bonds, together with
interest thereon and premium, if any with respect thereto,
shall not be or become an indebtedness or obligation of the
Issuer , the State of Illinois or any political subdivision
thereof within the purview of any constitutional limitation
or provision; the Bonds and the interest and premium, if
any, payable thereon shall be special , limited obligations
of the Issuer , payable solely and only from revenues
pledged for their repayment , including revenues and
receipts derived from and pursuant to the Promissory Note,
the Loan Agreement , the Mortgage and the Guaranty; and it
shall be stated on the face of the Bonds that they do not
constitute such an indebtedness or obligation of the Issuer
but are payable solely from such revenues;
( i ) the principal amount of the Bonds, their maturity
dates and annual interest rate are as set forth in Section
2 hereof; and
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V ,
( j ) No member of the City Council of the Issuer or
officer , agent or employee of the Issuer has any interest,
financial , employment or other , in the Company or in the
transactions contemplated hereby or by the Indenture or the
Loan Agreement or the issuance and sale of the Bonds .
Section 2 . Terms of the Bonds . For the purpose of
financing the acquisition, rehabilitation and equipping of the
Project, there are hereby authorized to be issued the Bonds in
the aggregate principal amount of $2, 500 , 000, which bonds shall
be designated "City of Elgin, Illinois Economic Development
Revenue Bonds (Butler PharmaPac, Inc. Project ) , Series 1985" ;
shall bear interest from their date; shall be issuable only as
registered bonds without coupons in the denomination of $1 ,000
and integral multiples thereof; shall be initially dated the
date of delivery thereof when originally issued; and shall
mature as to principal on December 1, 2000 , and shall be
subject to mandatory redemption pursuant to the terms of the
sinking fund provided in the Indenture in the principal amount
of $42,000 . 00 on the first day of each March, June, September
and December , commencing March 1 , 1986, to and including
September 1 , 2000 .
Subject to the provisions for redemption set forth in
Article III of the Indenture, the Bonds shall bear interest on
the unpaid principal amount thereof from the date thereof at an
interest rate ( the "Floating Rate" ) , subject to adjustment as
herein specified, equal to ( i ) sixty percent ( 60% ) of the rate
of interest announced from time to time by First Union National
Bank, in Charlotte, North Carolina ( "FUNB" ) , to be its prime
rate (the "Prime Rate" ) plus two percent ( 2%) per annum to and
including March 30, 1986 , and ( ii ) sixty percent ( 60% ) of the
Prime Rate thereafter , payable quarterly on the first day of
each March, June, September and December , commencing March 1,
1986, plus additional interest upon a Determination of
Taxability as described in the Indenture. On December 1, 2000 ,
the Issuer shall pay an amount necessary to repay in full the
unpaid amount of principal thereof, interest thereon, and all
other amounts payable thereunder . Any change in the Prime Rate
shall be effective on the date of any such change. Interest
shall be calculated on the basis of a 360-day year , and shall
be payable for the actual number of days elapsed. The
principal of, interest on, and all other amounts payable under
the Bonds are payable in any coin or currency of the United
States of America which on the respective dates of payment
thereof shall be legal tender for the payment of public and
private debts, solely from said special fund, to the registered
owners of the Bonds by check or draft at their addresses as
they appear on the Bond registration books maintained by the
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Trustee, as Bond Registrar , or , if requested by such registered
owner , by wire transfer , to the account of the registered owner
thereof specified by notice from such owner to the Bond
Registrar and noted on said Bond registration books.
In the event the Issuer should fail to make any
payments required on the Bonds, the item or installment so in
default shall continue as an obligation of the Issuer until the
amount in default shall have been fully paid, and the Issuer
shall pay the same with interest on overdue principal and, to
the extent permitted by law, on overdue interest at the Prime
Rate plus two percent per annum.
If at any time after December 1, 1985, there should be
any change in the maximum statutory rate of Federal income tax
applicable to the taxable income in excess of $100 , 000 of FUNB
under the Internal Revenue Code of 1954, as amended (as the
same may be in effect from time to time, the "FUNB Tax Rate" ) ,
then the Floating Rate will be adjusted, effective as of the
effective date of the change in the FUNB Tax Rate, by
multiplying the Floating Rate by a fraction, the denominator of
which is 100% minus the FUNB Tax Rate on December 1 , 1985, and
the numerator of which is 100% minus the FUNB Tax Rate after
giving effect to such change.
So long as any of the principal amount of any Bonds or
interest thereon or any other amount payable thereunder remains
unpaid, if ( i ) any law, rule, regulation or executive order is
enacted or promulgated by any public body or governmental
agency which changes the basis of taxation on payments to any
holder or former holder of any Bonds of principal, interest , or
any other amount payable pursuant to any Bond, including
without limitation the imposition of any excise tax or
surcharge, but excluding changes in the rates which are
applicable to the overall net income of any holder or former
holder of any Bonds, or ( ii ) as a result of action by any
public body or governmental agency, payment is required to be
made by, or any Federal , state or local income tax deduction is
disallowed to, any holder or former holder of any Bonds by
reason of ownership of, borrowing money to invest in, or
receiving principal , interest, or any other amount from any
Bonds, the Issuer agrees to reimburse and indemnify each such
holder and former holder upon demand, but only from amounts
paid by the Company under the Promissory Note and deposited in
the Bond Fund established under the Indenture, against any
loss, cost , charge or expense with respect to any such change,
payment or loss of deduction. Any such holder or former holder
of any of the Bonds shall receive payment under this paragraph
only after furnishing a written demand to the Trustee, together
with evidence satisfactory to the Trustee that any such loss ,
cost, charge or expense has been incurred.
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The Bonds shall be subject to redemption or mandatory
purchase by the Company or its designee prior to maturity as
provided in Article III of the Indenture.
The Bonds shall be special, limited obligations of the
Issuer as more fully provided in Section 1(h) of this
Ordinance. As required by the Enabling Ordinance and as
provided in Section 1 (h) of this Ordinance, it shall be plainly
stated on the face of the Bonds that it is a special , limited
obligation of the Issuer as more fully provided in said Section
1 (h) hereof.
Section 3. Execution of the Bonds. The Bonds shall
be executed on behalf of the Issuer by the manual or facsimile
signature of its Mayor and attested by the manual or facsimile
signature of its City Clerk, provided that one of such
signatures shall be manual ; shall have the seal of the Issuer
affixed thereto; and shall be authenticated by the certificate
of the Trustee.
Section 4 . Form of the Bonds . The Bonds and the
Trustee ' s certificate of authentication to appear on the Bonds
shall be in substantially the forms set forth in the Indenture,
with necessary or appropriate variations , omissions and
insertions, as permitted or required by the Indenture.
Section 5 . Compliance with the Enabling Ordinance .
The Bonds shall be issued in compliance with and under
authority of the provisions of the Enabling Ordinance, this
Ordinance and the Indenture.
Section 6. Approval of Indenture, Loan Agreement ,
Promissory Note and Arbitrage Agreement . The form, terms and
provisions of the proposed Indenture, Loan Agreement,
Promissory Note and Arbitrage Agreement are in all respects
approved, and the Mayor and the City Clerk of the Issuer are
hereby authorized, empowered and directed to execute,
acknowledge and deliver the Indenture, the Loan Agreement , the
Endorsement of the Promissory Note and the Arbitrage Agreement
in the name and on behalf of the Issuer , and thereupon to cause
the Indenture to be executed, acknowledged and delivered by the
Trustee, and the Indenture shall constitute an assignment by
the Issuer of the Security for the Bonds, as defined therein.
The Indenture, the Loan Agreement , the Endorsement of the
Promissory Note and the Arbitrage Agreement as executed and
delivered, shall be in substantially the form now before this
meeting and hereby approved, or with such changes therein as
shall be approved by the officers of the Issuer executing the
same, their execution thereof to constitute conclusive evidence
of the Issuer ' s approval of any and all changes or revisions
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therein from the form of such documents now before this
meeting. From and after the execution and delivery of the
Indenture, the Loan Agreement , the Endorsement of the
Promissory Note and the Arbitrage Agreement, the officers,
agents and employees of the Issuer are authorized, empowered
and directed to do all such acts and things and to execute all
such documents as may be necessary to carry out and comply with
the provisions of such documents as executed.
Section 7 . Approval of the Mortgage and the
Guaranty. The form, terms and provisions of the proposed
Mortgage and the Guaranty are in all respects hereby approved,
with such changes therein as shall be approved by the parties
executing such documents.
Section 8. Approval of Sale of the Bonds. The sale
to the Purchaser of the Bonds in the aggregate principal amount
of $2, 500 , 000 , at a purchase price equal to the principal
amount of the Bonds sold, is hereby approved. The purchase
price of the Bonds shall be disbursed by crediting the
principal amount of $2, 500 ,000 to the Constructions Fund
established under the provisions of the Indenture. From and
after the execution and delivery of the Bond Purchase
Agreement , the officers, agents and employees of the Issuer are
authorized, empowered and directed to do all such acts and
things and to execute all such documents as may be necessary to
carry out and comply with the provisions of the Bond Purchase
Agreement as executed.
Section 9 . Delegation. The Mayor and City Clerk of
the Issuer , for and on behalf of the Issuer, are hereby
authorized, empowered and directed to do any and all things
necessary to effect the execution and delivery of the
Indenture, the Loan Agreement , the Endorsement of the
Promissory Note, the Arbitrage Agreement and the Bond Purchase
Agreement , the performance of all obligations of the Issuer
under and pursuant to the Indenture, the Loan Agreement , the
Endorsement of the Promissory Note, the Arbitrage Agreement and
the Bond Purchase Agreement , the execution and delivery of the
Bonds, and the performance of all other acts of whatever nature
necessary to effect and carry out the authority conferred by
this Ordinance and by the Indenture, the Loan Agreement, the
Endorsement of the Promissory Note, the Arbitrage Agreement and
the Bond Purchase Agreement . The Mayor and the City Clerk of
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the Issuer are further authorized, empowered and directed, for
and on behalf of the Issuer , to execute all papers, documents,
certificates and other instruments that may be required in
order to carry out the authority conferred by this Ordinance
and by the Indenture, the Loan Agreement, the Endorsement of
the Promissory Note, the Arbitrage Agreement and the Bond
Purchase Agreement , or to evidence the said authority and its
exercise.
Section 10 . Proceedings of the Issuer . The Mayor ,
City Clerk and other officers of the Issuer are hereby
authorized, empowered and directed to prepare and furnish to
the Purchaser certified copies of all proceedings and records
of the Issuer relating to the Bonds, and such other affidavits
and certificates as may be required to show the facts relating
to the legality of the Bonds as such facts appear from the the
books and records in the officers ' custody and control or as
otherwise known to them.
Section 11 . Arbitrage Certificate. The Mayor , City
Clerk and any other officer of the Issuer having responsibility
with respect to issuance of the Bonds are hereby authorized,
empowered and directed to give an appropriate certificate for
inclusion in the transcript of proceedings with respect to the
Bonds, upon receipt of appropriate assurances in writing from
the Company, setting forth the facts, estimates and reasonable
expectations pertinent under Section 103(c) of the Code and the
regulations promulgated thereunder .
Section 12. Section 103 (b) ( 6) (D) Election. The
Issuer hereby elects to have the provisions as to the
$10,000 ,000 limit in Section 103 (b) ( 6) (D) of the Code applied
to the Bonds, and the Mayor and City Clerk of the Issuer are
hereby authorized, empowered and directed to take any and all
further action which may be required to implement and
effectuate such election, including, without limitation, the
preparation and filing of such statement or statements or other
document or documents as may be deemed by them to be necessary
or advisable in order to comply with the procedure set forth in
Section 1 . 103-10 (b) ( 2) (vi ) of the Income Tax Regulations ( 26
CFR Part 1 ) under Section 103 of the Internal Revenue Code of
1954 , as amended; and all acts heretofore taken by them in this
connection are hereby ratified and confirmed.
Section 13 . Filing Form 8038 . The Mayor and City
Clerk of the Issuer are hereby authorized, empowered and
directed to take any and all action which may be required to
comply with the information reporting requirements of Section
103( 1) of the Code including, without limitation, the execution
and filing of IRS Form 8038 .
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Section 14 . Bond Registrar . The Issuer shall cause
books for the registration and transfer of the Bonds as
provided in the Indenture to be kept by the Trustee which is
hereby constituted and appointed the Bond Registrar of the
Issuer . The duties of the Trustee as such Bond Registrar shall
be as set forth in the Indenture.
Section 15. Expiration. This Ordinance and each of
the provisions hereof and the approvals made and the powers and
authorities granted hereunder shall expire and become null and
void in the event that the Bonds are not originally issued on
or prior to December 31, 1985.
Section 16. Severability. The provisions of this
Ordinance are hereby declared to be severable and if any
section, phrase or provision shall for any reason be declared
to be invalid, such declaration shall not affect the validity
of the remainder of the sections, phrases and provisions hereof .
Section 17 . Repealer . All ordinances and resolutions
and parts thereof in conflict with the provisions of this
Ordinance are, to the extent of such conflict, hereby repealed.
Section 18 . Allocation. The adoption of this
Ordinance by the City Council of the Issuer shall be deemed to
constitute an allocation to the Bonds of $2 , 500,000 of the
Issuer ' s share of the private activity bond limit of the State
of Illinois under Section 103(n) of the Code, and the Mayor of
the Issuer is authorized to execute a certificate under penalty
of perjury, as required by Section 103 ( n) ( 12 ) of the Code, that
such allocation was not made in consideration of any bribe,
gift, gratuity, or direct or indirect contribution to any
political campaign.
Section 19 . Effective Date. This Ordinance shall
become effective immediately upon its adoption.
Adopted this 23rd day of December, 1985.
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It was thereupon moved by Councilman Moylan
and seconded by Councilman Shales that said
Ordinance be adopted. Upon roll being called, the following
voted:
Aye: Councilmen Andersen, Gilliam, Moylan, Shales ,
Van De Voorde, Waters and Mayor Verbic.
Nay: None .
*** *** ***
(Other Business)
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STATE OF ILLINOIS )SS
COUNTY OF COOK )
I , Mar_ ie Yearman , hereby certify that I am the
duly qualified and acting City Clerk of the City of Elgin, Cook
and Kane Counties forellsad as fullsuch truefandlal I correctrcopy of
ther
certify that the foregoing is a
an Ordinance entitled:
AN ORDINANCE authorizing the issuance of
$2 , 500 , 000 principal amount Economic Development
Revenue Bonds (Butler PharmaPac, Inc. Project) ,
Series 1985, of the City of Elgin, Cook and Kane
Counties, Illinois ; authorizing the issuance of
said bonds under Ordinance No. S2-80 , as amended
and supplemented, for the purpose of making a
loan to Butler PharmaPac, Inc. ; authorizing the
execution and delivery of an Indenture securing
said bonds ; authorizing the execution and
delivery of a Loan Agreement with said Butler
PharmaPac, Inc. ; confirming the sale of said
bonds to the purchaser thereof pursuant to a
Bond Purchase Agreement; approving related
documents; authorizing the execution and
delivery of related documents; and prescribing
other matters related thereto.
and
duly adopted by the City Council
December the
23 ,C1985ity �fatlaldulyocalled
Kane Counties , Illinois , on
and convened meeting held on such Iate,haveand of comparedcsaPdsexcerpts
from
the minutes of said meeting ;
with the original minute record of said meeting in my official
custody; and that said excerpts are a true, correct and
complete transcript frelatesom said
torthenissuancel minute
byrecord
said Cityinsofar
of as
said original record (Butler PharmaPac, Inc.
its Economic Development Revenue reoads e rincipal amount of
Project) , Series 1985 , in an agg 9
$2, 500 ,000 ; and that said Ordinance is in full force and effect
and has not been modified, amended, repealed or rescinded.
WITNESS my official signature and the seal of the City
day
Elgin, Cook and Kane Counties , Illinois, this of
December , 1985 .
City Clerk
(SEAL)
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0799K
12-12-85
CITY OF ELGIN, COOK AND KANE COUNTIES, ILLINOIS
to
FIRST UNION NATIONAL BANK,
Trustee
TRUST INDENTURE
Dated as of December 1, 1985
Securing
Economic Development Revenue Bonds
(Butler PharmaPac, Inc. Project) Series 1985
TABLE OF CONTENTS
Page
Parties 1
Form of Bond 2
ARTICLE I
Definitions
Section 101. Definitions 14
Section 102. Rules of Construction 16
ARTICLE II
Form, Execution and Delivery of Bonds
Section 201. Limitation on Issuance of Bonds 17
Section 202. Form of Bonds 17
Section 203. Details of Bonds; Execution and Payment 17
Section 204. Transfer and Exchange of Bonds 18
Section 205. Ownership of Bonds 19
Section 206. Authorization of Bonds 19
Section 207. Replacement of Mutilated, Destroyed, Lost or Stolen Bonds 21
ARTICLE III
Redemption of Bonds
Section 301. Redemption of Bonds 23
Section 302. Notice of Redemption 26
Section 303. Effect of Calling for Redemption 26
ARTICLE IV
Construction Fund
Section 401. Creation of and Deposits to the Construction Fund 27
Section 402. Payments from the Construction Fund 27
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Page
Section 403. Trustee May Rely on Requisitions 27
Section 404. Completion Date 28
Section 405. Transfers to the Bond Fund 28 -
ARTICLE V
Bond Fund
Section 501. Creation of and Deposits to the Bond Fund 29
Section 502. Use of Moneys in the Bond Fund 29
Section 503. Moneys Withdrawn from the Bond Fund 30
Section 504. Non-Presentment of Bonds 30
Section 505. Cancellation of Bonds Upon Payment 30
Section 506. Moneys Deposited Pursuant to Section 7.3(b)
of the Agreement as a Result of a
Determination of Taxability 30
ARTICLE VI
Depositaries of Moneys, Security for Deposits
and Investment of Funds
Section 601. Security for Deposits 31
Section 602. Investment of Moneys 31
ARTICLE VII
Particular Covenants and Provisions
Section 701. Covenant to Pay Bonds; Bonds Limited
Obligations of the Issuer 32
Section 702. Covenant Against Arbitrage 32
Section 703. Covenants to Perform Obligations Under this Indenture 32
Section 704. Covenant to Perform Obligations Under the Agreement 33
Section 705. Trustee May Enforce Issuer's Rights Under Agreement 33
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Page
ARTICLE VIII
Default and Remedies
Section 801. Defaults 34
Section 802. Acceleration 34
Section 803. Trustee May Bring Suit 35 —
Section 804. Trustee May File Claim in Bankruptcy 35
Section 805. Pro Rata Application of Funds 36
Section 806. Effect of Discontinuance of Proceedings 37
Section 807. Holders of Bonds May Control Proceedings 38
Section 808. Restrictions Upon Actions by Bondholders 38
Section 809. Receiver 38
Section 810. Actions by Trustee 38
Section 811. No Remedy Exclusive 39
Section 812. No Delay or Omission Construed to be a Waiver 39
Section 813. Waiver of Defaults 39
Section 814. Remedies Herein Additional to Remedies in Agreement 39
ARTICLE IX
Concerning the Trustee
Section 901. Acceptance of Trusts 40
Section 902. Trustee to Give Notice of Defaults 41
Section 903. Trustee Entitled to Indemnity 41
Section 904. Trustee Not Responsible for Insurance, Taxes, Execution
of Indenture, Acts of the Issuer or Application
of Moneys Applied in Accordance with this Indenture 42
Section 905. Compensation 42
Section 906. Trustee to Preserve Records 42
Section 907. Trustee May be Bondholder 43
Section 908. No Trustee Responsibility for Recording or Filing 43
Section 909. Trustee May Rely on Certificates 43
Section 910. Qualification of the Trustee 43
Section 911. Resignation and Removal of Trustee 43
Section 912. Successor Trustee 45
Section 913. Trust Estate May be Vested in Co-Trustee 45
Section 914. Trustee Not Responsible for Recitals 46
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Page
ARTICLE X
Execution of Instruments by Bondholders
and Proof of Ownership of Bonds
Section 1001. Execution of Instruments by Bondholders
and Proof of Ownership of Bonds 47
Section 1002. Preservation of Information 47
ARTICLE XI
Supplements and Amendments to Indenture
The Mortgage and the Guaranty
Section 1101. Supplements and Amendments Not Requiring
Bondholder Consent 48
Section 1102. Supplements and Amendments Requiring
Bondholder Consent 48
Section 1103. Supplements and Amendments Deemed Part of Indenture 50
Section 1104. Discretion of Trustee and Issuer in Entering
into Supplements and Amendments 50
Section 1105. Consent of Company Required 50
ARTICLE XII
Supplements and Amendments to the Agreement,
The Mortgage and the Guaranty
Section 1201. Supplements and Amendments Not Requiring
Bondholder Consent 51
Section 1202. Supplements and Amendments Requiring
Bondholder Consent 51
ARTICLE XIII
Defeasance
Section 1301. Defeasance of Bonds 53
-iv-
Page
ARTICLE XIV
Miscellaneous Provisions
Section 1401. Covenants of Issuer Bind its Successors 54
Section 1402. Notices 54
Section 1403. Trustee as Paying Agent and Bond Registrar 55 —
Section 1404. Rights Under Indenture 55
Section 1405. Form of Certificates and Opinions 55
Section 1406. Severability 55
Section 1407. Covenants of Issuer Not Covenants of
Officials Individually 55
Section 1408. Illinois Law Governs 56
Section 1409. Payments Due on Sundays and Holidays 56
Section 1410. Execution in Counterparts 56
Signatures 56
Exhibit A Form of Requisition and Certificate 57
-v-
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of December 1, 1985 (the "Indenture") ,
between CITY OF ELGIN, COOK AND KANE COUNTIES, ILLINOIS, a municipal _
corporation and home rule unit of government existing under the laws of the
State of Illinois (the "Issuer") and FIRST UNION NATIONAL BANK, a national
banking association having its principal office in Charlotte, North Carolina —
(in its capacityas trustee to be hereinafter referred to as the "Trustee") ;
WITNESSETH:
WHEREAS, the Issuer intends to issue and sell its Economic
Development Revenue Bonds (Butler PharmaPac, Inc. Project) Series 1985 in the
aggregate principal amount of $2,500,000 (the "Bonds") to finance the cost of
the acquisition, rehabilitation and equipping of a manufacturing, warehousing
and office facility to be used in the business of manufacturing and packaging
private label pharmaceutical products (the "Project") for Butler PharmaPac,
Inc. , an Illinois corporation (the "Company") , pursuant to the terms and
conditions contained herein; intends to provide for the acquisition,
rehabilitation and equipping of the Project pursuant to a Loan Agreement of
even date herewith (the "Agreement") , between the Issuer and the Company
whereby the Issuer will loan to the Company the proceeds of the sale of the
Bonds; and intends to secure the repayment of the Bonds by the assignment
contained herein pursuant to which the Issuer assigns to the Trustee for the
benefit of the Bondholders (as hereinafter defined) certain of its rights
under the Agreement, and endorses without recourse to the order of, and
pledges and assigns to, the Trustee for the Bondholders, the Promissory Note
issued by the Company pursuant to the Agreement (the "Note"); and
WHEREAS, the Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution hereof; and
WHEREAS, the Issuer has determined that the Bonds to be issued
hereunder, the Trustee's certificate of authentication to be endorsed on the
Bonds and the form of assignment to be attached thereto will be substantially
in the following form, with such variations, omissions and insertions. as are
required or permitted by this Indenture:
[Form of Bond]
No. R- $
UNITED STATES OF AMERICA
STATE OF ILLINOIS
CITY OF ELGIN, COOK AND KANE COUNTIES, ILLINOIS —
ECONOMIC DEVELOPMENT REVENUE BONDS
(BUTLER PHARMAPAC, INC. PROJECT) SERIES 1985
PAYABLE BY THE ISSUER SOLELY AND ONLY FROM REVENUES REFERRED TO
HEREIN INCLUDING THE REVENUES AND RECEIPTS DERIVED FROM AND PURSUANT TO THE
LOAN AGREEMENT, THE PROMISSORY NOTE, THE MORTGAGE AND THE GUARANTY REFERRED TO
HEREIN.
The City of Elgin, Cook and Kane Counties, Illinois (hereinafter
called the "Issuer") , a municipal corporation and home rule unit of government
existing under the laws of the State of Illinois, for value received, hereby
promises to pay, solely from the special source provided therefor as
hereinafter set forth, to , or registered assigns on
December 1, 2000, the principal sum of ($ ) ,
subject to the provisions for redemption hereinafter set forth, with interest
on the unpaid principal amount hereof from the date hereof at an interest rate
(the "Floating Rate") , subject to adjustment as herein specified, equal to (i)
sixty percent (60%) of the rate of interest announced from time to time by
First Union National Bank, in Charlotte, North Carolina ("FUNB") , to be its
prime rate (the "Prime Rate") plus two percent (2%) per annum to and including
March _, 1986, and (ii ) sixty percent (60%) of the Prime Rate thereafter,
payable quarterly on the first day of each March, June, September and
December, commencing March 1, 1986, plus additional interest upon a
Determination of Taxability (as defined in the hereinafter-described
Agreement) as hereinafter described and all other amounts payable hereunder.
On December 1, 2000, the Issuer shall pay an amount necessary to repay in full
the unpaid amount of principal hereof, interest hereon, and all other amounts
payable hereunder. Any change in the Prime Rate shall be effective on the
date of any such change. Interest shall be calculated on the basis of a
360-day year, and shall be payable for the actual number of days elapsed. The
principal of, interest on, and all other amounts payable under this Bond are
payable in any coin or currency of the United States of America which on the
respective dates of payment thereof shall be legal tender for the payment of
public and private debts, solely from said special fund, to the registered
owner hereof by check or draft at his address as it appears on the Bond
registration books maintained by the hereinafter-described Trustee, as Bond
Registrar, or, if requested by such registered owner, by wire transfer, to the
account of the registered owner hereof specified by notice from such owner to
the Bond Registrar and noted on said Bond registration books.
In the event the Issuer should fail to make any payments required
hereunder, the item or installment so in default shall continue as an
obligation of the Issuer until the amount in default shall have been fully
- 2 -
paid, and the Issuer shall pay the same with interest on overdue principal
and, to the extent permitted by law, on overdue interest at the Prime Rate
plus two percent (2%) per annum.
If at any time after December 1, 1985, there should be any change in
the maximum statutory rate of Federal income tax applicable to the taxable
income in excess of $100,000 of FUNB under the Internal Revenue Code of 1954,
as amended (as the same may be in effect from time to time, the "FUNB Tax —
Rate"), then the Floating Rate will be adjusted, effective as of the effective
date of the change in the FUNB Tax Rate, by multiplying the Floating Rate by a
fraction, the denominator of which is 100% minus the FUNB Tax Rate on
December 1, 1985 and the numerator of which is 100% minus the FUNB Tax Rate
after giving effect to such change.
So long as any of the principal amount of any Bond or interest
thereon or any other amount payable thereunder remains unpaid, if (i) any law,
rule, regulation or executive order is enacted or promulgated by any public
body or governmental agency which changes the basis of taxation on payments to
any holder or former holder of any Bond of principal , interest, or any other
amount payable pursuant to any Bond, including without limitation the
imposition of any excise tax or surcharge, but excluding changes in the rates
which are applicable to the overall net income of any holder or former holder
of any Bond, or (ii) as a result of action by any public body or governmental
agency, payment is required to be made by, or any Federal , state or local
income tax deduction is disallowed to, any holder or former holder of any Bond
by reason of ownership of, borrowing money to invest in, or receiving
principal , interest, or any other amount from any Bond, the Issuer agrees to
reimburse and indemnify each such holder and former holder upon demand, but
only from amounts paid by Butler PharmaPac, Inc. , an Illinois corporation (the
"Company") under the hereinafter defined Note and deposited in the hereinafter
defined Bond Fund, against any loss, cost, charge or expense with respect to
any such change, payment or loss of deduction. Any such holder or former
holder of this Bond shall receive payment under this paragraph only after
furnishing a written demand to the Trustee, together with evidence
satisfactory to the Trustee that any such loss, cost, charge or expense has
been incurred.
This Bond is one of a duly authorized series of industrial revenue
bonds of the Issuer limited in aggregate principal amount to $2,500,000 and
known as "City of Elgin, Cook and Kane Counties, Illinois, Economic
Development Revenue Bonds (Butler PharmaPac, Inc. Project) Series 1985 (the
"Bonds"). The Bonds have been issued for the purpose of financing the cost to
the Company of acquiring, rehabilitating and equipping a manufacturing,
warehousing and office facility to be used in its business of manufacturing
and packaging private label pharmaceutical products (the "Project") , said
facility to be located within the corporate limits of the Issuer. The Bonds
have been issued under and pursuant to a Trust Indenture dated as of
December 1, 1985 (said Trust Indenture, together with all supplements and
amendments thereto as therein permitted, being herein called the "Indenture") ,
by and between the Issuer and First Union National Bank, Charlotte, North
Carolina, as trustee (said banking institution and any successor trustee under
- 3 -
the Indenture being herein called the "Trustee") . An executed counterpart of
the Indenture is on file at the principal corporate trust office of the
Trustee. Reference is hereby made to the Indenture for the provisions, among
others, with respect to the custody and application of the proceeds of the
Bonds, the -collection and disposition of revenues for the payment therefor, a
description of the funds charged with and pledged to the payment of the
principal of, interest on, and other amounts payable under the Bonds, the
nature and extent of the security therefor, the terms and conditions under
which the Bonds are or may be issued, the rights, duties and obligations of
the Issuer and of the Trustee and the rights of the owners of the Bonds, and,
by the acceptance of this Bond, the owner hereof assents to all of the
provisions of the Indenture.
The Issuer has entered into a Loan Agreement dated as of December 1,
1985 (herein, together with all amendments and supplements thereto, called the
"Agreement") , with the Company, under which the Issuer has agreed to lend to
the Company the proceeds of the Bonds and in consideration and as evidence of
the loan the Company has agreed to issue its promissory note (the "Note") in a
principal amount, bearing interest and payable in amounts, under
circumstances, and at times corresponding to the payment obligations under the
Bonds. The Agreement also provides for the payment by the Company of certain
fees and expenses of the Issuer and the Trustee, and the Agreement further
obligates the Company to pay the cost of maintaining the Project in good
repair in all material respects and keeping the same insured.
This Bond and all other Bonds of the series of which it forms a part
are issued pursuant to and in full compliance with the Constitution and laws
of the State of Illinois and particularly under the authority of Ordinance No.
S2-80 adopted February 13, 1980, by the City Council of the Issuer, as
supplemented and amended, and pursuant to a resolution duly adopted by the
City Council of the Issuer on , 1985 authorizing, among other
things, the execution and delivery of the Bond Agreement. THE BONDS SHALL NOT
BE OR BECOME AN INDEBTEDNESS OR OBLIGATION OF THE ISSUER, THE STATE OF
ILLINOIS, OR ANY POLITICAL SUBDIVISION THEREOF OR A LOAN OF CREDIT OR A CHARGE
AGAINST THE GENERAL CREDIT OF ANY OF THEM WITHIN THE PURVIEW OF ANY
CONSTITUTIONAL OR STATUTORY PROVISION. THIS BOND AND THE INTEREST AND
PREMIUM, IF ANY, PAYABLE HEREON ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE
SOLELY AND ONLY FROM REVENUES PLEDGED TO THEIR REPAYMENT, INCLUDING REVENUES
AND RECEIPTS DERIVED FROM AND PURSUANT TO THE AGREEMENT, THE NOTE, THE
MORTGAGE (AS HEREINAFTER DEFINED) AND THE GUARANTY (AS HEREINAFTER DEFINED) .
Such amounts are to be paid by the Company or the Guarantor (as hereinafter
defined) to the Trustee for the account of the Issuer and deposited in a
special trust fund account created by the Issuer, maintained by the Trustee
and designated "City of Elgin, Cook and Kane Counties, Illinois, Economic
Development Revenue Bonds" (Butler PharmaPac, Inc. Project) Series 1985 Bond
Fund" (the "Bond Fund") , and have been and are hereby duly pledged for that
purpose, and in addition, the Note and certain of the rights of the Issuer
under the Agreement have been pledged and assigned to the Trustee under the
Indenture to secure the payment of the principal of, interest on, and all
other amounts payable on the Bonds. The Bonds are further secured by a
Guaranty Agreement dated as of December 1, 1985 (the "Guaranty Agreement")
- 4 -
entered into between the John 0. Butler Company (the "Guarantor") and the
Trustee, and a Mortgage and Security Agreement dated as of December 1, 1985
(the "Mortgage") from the Company to the Trustee.
This Bond is transferable, as provided in the Indenture, by the
registered owner hereof or his duly authorized attorney at the principal
corporate trust office of the Trustee, upon surrender of this Bond,
accompanied by a duly executed instrument of transfer, in form and with —
guaranty of signature satisfactory to the Issuer and the Trustee, and upon
payment of any taxes, fees or other governmental charges incident to such
transfer. Upon any such transfer a new fully registered Bond or Bonds in the
same aggregate principal amount in authorized denominations will be issued to
the transferee. The person in whose name this Bond is registered shall be
deemed and regarded as the absolute owner hereof for all purposes.
The Bonds are issuable only as fully registered bonds without coupons
in the minimum denomination of $1,000 each; provided however, that if,
following any partial redemption of the Bonds, the principal amount remaining
unpaid on a Bond is less than $1,000, such Bond may be held, transferred or
exchanged for other Bonds in accordance with the terms of the Indenture, in
any denomination.
Upon payment of any required tax, fee or other governmental charge
and subject to the conditions provided in the Indenture, Bonds, upon the
surrender thereof at the principal corporate trust office of the Trustee with
a written authorization for exchange, in form and with guaranty of signature
satisfactory to the Issuer and the Trustee, duly executed by the registered
owner or his duly authorized attorney, may, at the option of the registered
owner thereof, be exchanged for an equal aggregate principal amount of Bonds
of the same maturity and interest rate of any other authorized denomination.
Within sixty days (60) following a Determination of Taxability, the
Company shall cause the Note to be prepaid and the Issuer shall redeem the
Bonds, at a redemption price of 100% of the principal amount thereof plus
accrued interest to the redemption date plus an amount equal to the difference
between (i) the interest actually paid on the Bonds being redeemed during the
period from the date of the Event of Taxability (as defined in the Agreement)
to the redemption date and (ii) the interest which would have been paid had
such Bonds borne interest at all times during such period at [ 1 - (1-FUNB Tax
Rate) x 100]% of the Floating Rate, as the Floating Rate may have been
adjusted from time to time (the "Alternate Rate") . Any person who was a
Bondholder at the time of or following an Event of Taxability but who was not
a Bondholder at the date of redemption due to a Determination of Taxability as
aforesaid shall , upon presentation to the Trustee in writing of proof
satisfactory to the Trustee that he was an owner of such Bond at such time, be
entitled to an amount equal to the difference between (a) the interest
actually paid on such owner' s Bond while owned by such owner on or following
the date of the Event of Taxability, and (b) the interest which would have
been paid to such owner had the Bond borne interest at the Alternate Rate
while owned by such owner on or following the date of the Event of Taxability.
- 5 -
In addition to the foregoing, the Company in Section 7.3(b) (A) and
(B) of the Agreement has agreed to pay directly to each owner or former owner
of a Bond, on demand by and in amounts attributable to such owner or former
owner, certain penalties, interest and expenses resulting from a Determination
of Taxability. If the Company prevails in any contest of a Determination of
Taxability, the owner or any former owner of this Bond shall be required to
pay to the Company a sum equal to the net after-tax amount of any refund
received by such owner or former owner from the Internal Revenue Service paid —
to or by such owner or former owner in respect of interest on this Bond, but
without interest on such net after-tax amount.
On September 1 through December 1 of the years 1990 and 1995 (the
"Put Years") , the registered holder of this Bond shall have the right to
require the Company or its designee to purchase this Bond or any portion
hereof to be designated by the registered holder hereof, in the manner
provided hereinafter or in the Indenture, at a purchase price payable in
immediately available funds equal to 100% of the outstanding principal amount
hereof to be sold plus accrued interest on such amount to the date of purchase
plus all other amounts payable hereunder (the "Put Right") . Upon payment of
the purchase price, the registered holder hereof shall forthwith deliver this
Bond to the company or its designee, as the case may be.
To exercise the Put Right, the registered holder of this Bond shall
give written notice by registered or certified mail to the Company of such
holder' s intention to exercise such Put Right (the "Exercise Notice") and
shall specify therein the principal amount of this Bond or portion hereof
which it will sell . Once given such Exercise Notice will be irrevocable and
failure by the registered holder of this Bond to sell to the Company the
principal amount of this Bond or portion hereof specified in said Exercise
Notice shall result in a forfeit of the holder' s Put Right with respect to
this Bond or such portion hereof (in that Put Year only) . Within ninety (90)
days after receipt of such Exercise Notice, the Company or its designee shall
deliver to the holder, in immediately available funds, the purchase price of
this Bond or such portion hereof.
No purchase of Bonds by the Company or advance or use of any funds to
effectuate any such purchase shall be deemed to be a redemption of the Bonds
or portion thereof and such purchase will not operate to extinguish or
discharge the indebtedness evidenced by the Bonds; provided, however, that if,
upon the purchase by the Company of any Bond or Bonds, the Company elects in
accordance with the provisions of the Indenture, to deliver such Bond or Bonds
to the Trustee for cancellation, the amounts payable by the Issuer as
principal on the Bonds will be decreased by the amount of the outstanding
principal amount of any Bond or Bonds so cancelled.
Unless a Determination of Taxability shall have occurred, the Bonds
are also subject to redemption by the Issuer prior to maturity, in whole or in
part, at any time on or after December 1, 1989, upon prepayment of the Note in
whole or in part pursuant to Section 7.2(a) of the Agreement, at a redemption
price of 100% of the principal amount thereof to be redeemed plus accrued
interest to the redemption date.
- 6 -
Unless a Determination of Taxability shall have occurred, the Bonds
are also subject to redemption by the Issuer prior to maturity, in whole, but
not in part, at 100% of the principal amount thereof, plus accrued interest to
the redemption date after receipt by the Issuer and the Trustee on any date of
a written certificate from the Company stating that it intends to repay the
Note and thereby cause the Issuer to effect the redemption of the Bonds and
certifying that one of the following events has occurred within the preceding
120 days: —
(A) all or substantially all of the Project shall have been damaged
or destroyed or there shall have occurred condemnation of all or
substantially all of the Project or the taking by eminent domain of such
use or control of the Project as in each case renders the Project or the
Plant unsatisfactory to the Company for its intended use; or
(B) any change in the Constitution of the State of Illinois or the
Constitution of the United States of America or any legislative or
administrative action (whether state or federal ) or any final decree,
judgment or order of any court or administrative body (whether state or
federal) shall have occurred which results in the Agreement becoming void
or unenforceable or impossible of performance in accordance with the
intent and purpose of the parties as expressed in the Agreement.
The Bonds are also subject to mandatory redemption by the Issuer
prior to maturity, in part, (i) with amounts remaining in the Construction
Fund (as defined in the Agreement) after the completion of the Project (except
to the extent such amounts are otherwise applied pursuant to the Agreement) ,
(ii) with insurance proceeds or condemnation awards not used to repair,
restore or replace the Project or a portion thereof as provided by Section 3.6
of the Mortgage and (iii) with proceeds from or money received in respect of a
disposition of equipment constituting a portion of the Project as provided by
Section 3.7 of the Mortgage, at 100% of the principal amount to be redeemed
plus accrued interest to the redemption date, and upon prepayment of the Note
in part pursuant to Section 7.3(a) of the Agreement.
The Bonds are also subject to mandatory redemption pursuant to the
terms of the sinking fund provided in the Indenture in the principal amount of
$42,000.00, on the first day of each March, June, September and December,
commencing March 1, 1986, to and including September 1, 2000, at 100% of the
principal amount to be redeemed plus accrued interest to the redemption date.
If the Bonds are to be redeemed in part, whether pursuant to optional
or mandatory redemption, including mandatory sinking fund redemption, the
Trustee shall apply the redemption payments ratably to each of the Bonds then
outstanding. If the Bonds are to be redeemed in part, other than pursuant to
mandatory sinking fund redemption, the redemption payments shall be applied
ratably to the reduction of the principal amount of the Bonds due on December
1, 2000 and, until payment in full of the Bonds, shall not reduce the
mandatory sinking fund obligations.
- 7 -
Any redemption, at the option of the Company whether in whole or in
part, other than any mandatory sinking fund redemption, shall be made by
mailing notice of the redemption at least 30 days prior to the redemption date
to the registered owners of the Bonds at their addresses as they appear on the
registration books kept by the Trustee as Bond Registrar and shall be made in
the manner and under the terms and conditions provided in the Indenture. On
the date designated for redemption, the Bonds or portions thereof shall become
and be due and payable at the redemption price provided for redemption of the —
Bonds or portions thereof on such date, and, if moneys for payment of the
redemption price and the accrued interest shall be held by the Trustee all as
provided in the Indenture, interest on the Bonds or portions thereof so called
for redemption shall cease to accrue, the Bonds or portions thereof shall
cease to be entitled to any benefit or security under the Indenture, and the
registered owners thereof shall have no rights in respect of the Bonds or
portions thereof so called for redemption except to receive payment of the
redemption price thereof and the accrued interest so held by the Trustee and
to receive payments, if any, upon the occurrence of a Determination of
Taxability.
The owner of this Bond shall have no right to enforce the provisions
of the Indenture or to institute action to enforce the covenants therein, or
to take any action with respect to any event of default under the Indenture,
or to institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of the Bonds may become or
may be declared due and payable before the stated maturity hereof, together
with the interest accrued thereon and all other amounts payable thereunder.
Modifications or alterations of the Agreement, the Guaranty Agreement
and the Indenture and any supplement or amendment thereto may be made only to
the extent and in the circumstances permitted by the Indenture and may be made
in certain cases without the consent of the owners of the Bonds.
This Bond shall be governed by and construed in accordance with the
laws of the State of Illinois.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts and
conditions required to be performed precedent to and in the execution and
delivery of the Indenture and the issuance of this Bond have been performed in
due time, form and manner as required by law; and that the issuance of this
Bond and the series of which it forms a part does not exceed or violate any
constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or
be entitled to any security or benefit under the Indenture until the
certificate of authentication hereon shall have been duly executed by the
Trustee.
_ g _
IN WITNESS WHEREOF, the City of Elgin, Cook and Kane Counties, Illinois,
has caused this Bond to be executed with the manual or facsimile signature of
its Mayor, and its official seal to be impressed or imprinted hereon and
attested by the manual or facsimile signature of its City Clerk, all as
of - ,
CITY OF ELGIN, COOK AND KANE COUNTIES, -
ILLINOIS —
By
Mayor
[SEAL]
ATTEST:
City Clerk
- 9 -
'
(FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION)
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
Authorized Officer
[FORM OF ASSIGNMENT]
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
UNIF GIFT MIN ACT -- Custodian
(Cust) (Minor)
under Uniform Gifts to Minors
Act
(State)
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above
list.
- 10 -
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
(Name and Address of Assignee)
the within Bond of City of Elgin, Cook and Kane Counties, Illinois and does
hereby irrevocably constitute and appoint to transfer the —
said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever; and
NOTICE: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company; and
NOW, THEREFORE, in consideration of the premises, of the acceptance
by the Trustee of the trusts hereby created, and of the purchase and
acceptance of the Bonds by the Bondholders, and also for and in consideration
of the sum of One Dollar to the Issuer in hand paid by the Trustee at or
before the execution and delivery of this Indenture, the receipt of which is
hereby acknowledged, and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, delivered, secured and
accepted by the Bondholders and any and all other persons who shall from time
to time be or become owners thereof, and in order to secure the payment of the
Bonds at any time issued and outstanding hereunder and the interest thereon
according to their tenor, purport and effect, and in order to secure the
performance and observance of all the covenants, agreements and conditions
therein and herein contained;
THE ISSUER DOES HEREBY GRANT, BARGAIN, SELL, CONVEY, PLEDGE AND ASSIGN, and
grant a security interest in and unto the Trustee all right, title and
interest of the Issuer presently owned or hereafter acquired in and to the
following (collectively, the "Trust Estate") :
(a) The Agreement (as the same may from time to time be supplemented
or amended) , including, but not limited to, all payments of principal ,
interest and all other amounts due and to become due under the Note and
Agreement whether made at their respective due dates or as prepayments
permitted or required by the Agreement together with full power and
authority, in the name of the Issuer or otherwise, to demand, receive,
enforce, collect or receipt for any or all of the foregoing, to endorse or
execute any checks or other instruments or orders, to file any claims and
to take any action which the Trustee may deem necessary or advisable in
- 11 -
connection therewith, and the Issuer hereby irrevocably appoints the
Trustee attorney-in-fact of the Issuer for such purposes, which
appointment is coupled with an interest and is irrevocable; provided,
however, that the Issuer shall continue to have the right to receive
notices wherever specified in the Agreement and to have the rights
contained in the following sections of the Agreement:
(i) Section 5.1 (pertaining to the Issuer' s right of access to the —
Project);
(ii) Section 4.2(c) (pertaining to the Issuer' s right to receive
payment for certain costs and expenses) ;
(iii) Section 5.3 (pertaining to the Issuer' s right to release and
indemnification); and
(iv) Section 6.3 (pertaining to the Issuer' s right to receive
reimbursement of attorneys' fees incurred with respect to a default under
the Agreement) ;
(b) The Note of even date herewith of the Company to the Issuer in the
principal amount of $2,500,000 evidencing the Company's obligation to repay
the loan made by the Issuer to the Company pursuant to the Agreement, together
with interest thereon and other amounts payable thereunder, as provided for in
the Agreement, the Issuer having endorsed, pledged and assigned the Note
without recourse to the order of, and delivered the same to the Trustee as
security for the obligations of the Issuer to the Trustee hereinafter referred
to;
(c) All moneys and securities from time to time held by the Trustee under
the terms of this Indenture and any and all other real or personal property of
every name and nature from time to time hereafter by delivery or by writing of
any kind conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its behalf, or
with its written consent to the Trustee which is hereby authorized to receive
any and all such property at any and all times and to hold and apply the same
subject to the terms hereof;
and it is so mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of the Bondholders
without preference, priority or distinction as to lien or otherwise, except as
hereinafter provided, of any one Bond over any other Bond, by reason of
priority in the issue, sale or negotiation thereof or otherwise, for the
benefit of the Bondholders and as security for the fulfillment of the
obligations of the Issuer hereunder;
TO HAVE AND TO HOLD the same forever, and subject to the exceptions,
reservations and matters therein and herein recited but IN TRUST,
nevertheless, for the benefit and security of the owners from time to time of
the Bonds delivered hereunder and issued by the Issuer and outstanding;
- 12 -
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal of, interest, and
all other amounts payable under the Bonds, at the times and in the manner
mentioned in the Bonds according to the true intent and meaning thereof, and
shall cause- the payments to be made into the Bond Fund as required under
Article V hereof, and shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee -
and all paying agents all sums of money due or to become due to it in
accordance with the terms and provisions hereof, then this Indenture, except
the liability of the Company and the Issuer to make payments upon the
occurrence of Determination of Taxability, shall cease, terminate and be void,
and thereupon the Trustee shall cancel and discharge this Indenture and
execute and deliver to the Issuer and the Company such instruments in writing
as shall be required to evidence the discharge hereof; otherwise, this
Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
the Bonds issued and secured hereunder are to be issued and delivered and the
Trust Estate is to be dealt with and disposed of under, upon and subject to
the terms, conditions, stipulations, covenants, agreements, trusts, uses and
purposes as hereinafter expressed, and the Issuer has agreed and covenanted,
and does hereby agree and covenant, with the Trustee and with the owners of
said Bonds, as follows:
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ARTICLE I
Definitions
Section 101. Definitions. All words and terms defined in Article I
of the Agreement shall have the same meanings in this Indenture, unless
otherwise specifically defined herein. In addition, the following words and
terms as used in this Indenture shall have the following meanings unless some —
other meaning is plainly intended:
(a) "Bondholders of Record" shall mean the Registered Owners.
(b) "Bond Registrar" shall mean the Bond Registrar as defined in
Section 204 of this Indenture.
(c) "Government Obligations" means direct or general obligations of,
or obligations the payment of the principal and interest of which are
unconditionally guaranteed by the United States of America or by any
agency thereof, if such obligations, or such guarantees of which,
constitute the full faith and credit of the United States of America.
(d) "Investment Obligations" means: (i) Government Obligations,
(ii) obligations of the Federal National Mortgage Association, (iii)
obligations of the Federal Intermediate Credit Corporation, (iv)
obligations of Federal Banks for Cooperatives, (v) certificates of deposit
issued by commercial banks which have a combined capital , surplus and
undivided profits of at least $25,000,000, (vi) commercial paper rated at
least A-1 by Standard & Poor' s Corporation or P-1 by Moody' s Investors
Service, (vii) obligations of Federal Land Banks, (viii) obligations of
Federal Home Loan Banks, (ix) Tax Exempt Obligations (as defined in the
Arbitrage Agreement) having a rating in either of the two highest rating
categories of Standard & Poor' s Corporation or Moody' s Investors Service,
(x) Tax Exempt money market funds with assets over $500,000,000 or (xi)
money market funds with assets over $500,000,000.
(e) "Majority Bondholders" means the owners of a majority of the
aggregate outstanding principal amount of the Bonds; provided, however,
that Bonds held by the Company or its Subsidiaries or any nominee of the
Company or any Subsidiary shall not be deemed outstanding and shall not be
considered in determining whether action is taken by the Majority
Bondholders.
(f) "Outstanding" or "outstanding" in connection with the Bonds
means, as of the time in question, all Bonds authenticated and delivered
under this Indenture, except:
(A) Bonds theretofore cancelled or required to be cancelled
under Section 505 hereof;
(B) Bonds for the payment or redemption of which the necessary
amount shall have been or shall concurrently be deposited with the
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Trustee; provided that, if Bonds are being redeemed prior to
maturity, the required notice of redemption shall have been given or
provision satisfactory to the Trustee shall have been made therefor;
and
•
(C) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Article II hereof.
(g) "principal office" of the Trustee or Bond Registrar means the
office at which, at the time in question, its corporate trust business is
principally conducted.
(h) "Registered Owner or Owners" shall mean the person or persons in
whose name any Bond is registered on the books kept by the Bond Registrar
for such purpose under Section 204 of this Indenture.
(i) "Requisite Bondholders" shall mean the owners of at least 25% of
the aggregate outstanding principal amount of the Bonds, provided,
however, that Bonds held by the Company or its Subsidiaries or any nominee
of the Company or any Subsidiary shall not be deemed outstanding and shall
not be considered in determining whether action is taken by the Requisite
Bondholders.
(j) "responsible officer" when used with respect to the Trustee
shall mean the chairman or vice-chairman of the board of directors, the
chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any
of the above designated officers of banking institutions with trust powers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
- 15 -
Section 102. Rules of Construction. (a) Words of the masculine
gender shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, the
words "Bond", "owner", "holder", "Bondholder", "Bondholder of Record", and
"person" shell include the plural as well as the singular number; the word
"person" shall include any individual , corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof; and the word —
"holder" or "Bondholder" when used herein with respect to the Bonds shall mean
the holder or Registered Owner, as the case may be, of the Bonds.
(b) Words importing the redemption or calling for redemption of the
Bonds shall not be deemed to refer to or connote payment of Bonds at their
stated maturity.
(c) The Table of Contents, captions and headings in this Indenture
are for convenience only and in no way limit the scope or intent of any
provision or section of this Indenture.
(d) All references herein to particular articles or sections are
references to articles or sections of this Indenture unless some other
reference is indicated.
(End of Article I)
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ARTICLE II
Form, Execution and Delivery of Bonds
Section 201. Limitation on Issuance of Bonds. No Bond may be issued
under the provisions of this Indenture except in accordance with the
provisions of this Article.
Section 202. Form of Bonds. The Bonds shall be issuable in
typewritten or printed form as registered Bonds without coupons in an
aggregate principal amount of $2,500,000. The Bonds shall be substantially in
the form hereinabove set forth, with such appropriate variations, omissions
and insertions as are permitted or required by this Indenture, and may have
endorsed thereon such legends or text as may be necessary or appropriate to
conform to any applicable rules and regulations of any governmental authority
or any usage or requirement of law with respect thereto.
Section 203. Details of Bonds; Execution and Payment. The Bonds
shall be dated as of the quarterly interest payment date next preceding their
date of issue, or if issued on a quarterly interest payment date, as of such
date; provided that Bonds issued prior to March 1, 1986, shall be dated the
date the initial issuance and delivery of the Bonds; and further provided that
with respect to Bonds as to which interest is in default, such Bonds shall be
dated as of the quarterly interest payment date to which interest has last
been paid. All Bonds shall bear interest from their date. The Bonds shall be
executed with the manual or facsimile signature of the Mayor of the Issuer,
and the official seal of the Issuer or a facsimile thereof shall be impressed
or imprinted thereon and the Bonds shall be attested by the manual or
facsimile signature of the City Clerk of the Issuer.
In case any officer of the Issuer whose signature shall appear on the
Bonds shall cease to be such officer before the delivery of the Bonds, such
signature shall nevertheless be valid and sufficient for all purposes the same
as if he had remained in office until such delivery.
No Bond shall be valid or become obligatory for any purpose or be
entitled to any security or benefit under this Indenture until a certificate
of authentication on such Bond substantially in the form hereinbefore set
forth shall have been duly executed by Trustee, and such executed certificate
of the Trustee upon any such Bond shall be conclusive evidence that such Bond
has been authenticated and delivered under this Indenture. The Trustee' s
certificate of authentication on any Bond shall be deemed to have been
executed by it if signed by an authorized officer of Trustee, but it shall not
be necessary that the same officer sign the certificate of authentication on
all of the Bonds.
The principal of, interest on, and all other amounts payable under
the Bonds shall be payable in any coin or currency of the United States of
America which on the respective dates of payment thereof is legal tender for
the payment of public and private debts. The principal of, interest on, and
- 17 -
all other amounts payable under the Bonds shall be payable to the Registered
Owners thereof by check or draft at their addresses as they appear on the Bond
registration books of the Bond Registrar or, if requested by any Registered
Owner, by wire transfer, to the account of the Registered Owner specified by
notice from- the Registered Owner to the Bond Registrar and noted on said Bond
registration books.
The Bonds shall be issuable as fully registered Bonds without coupons -
in the minimum denomination of $1,000 each; provided however, that if,
following any partial redemption of the Bonds, the principal amount remaining
unpaid on a Bond is less than $1,000, such Bond may be held, transferred or
exchanged for other Bonds in accordance with the terms of this Indenture, in
any denomination. Unless the Issuer shall otherwise direct, the Bonds shall be
lettered "R" and shall be numbered separately from "1" upward.
Section 204. Transfer and Exchange of Bonds. The Trustee is hereby
appointed by the Issuer as Bond Registrar and as such shall keep books for the
registration and for the registration of transfer of the Bonds as provided in
this Indenture.
Upon surrender for transfer of any Bond at the principal corporate
trust office of the Trustee, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Bond or Bonds of authorized denomination for the aggregate principal amount
which the Registered Owner is entitled to receive.
Any Bond shall be exchangeable for Bonds of the same maturity and
interest rate, of any authorized denomination, in an aggregate principal
amount equal to the unpaid principal amount of the Bond or Bonds presented for
exchange. Bonds to be exchanged shall be surrendered at the principal
corporate trust office of the Trustee, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Bond or Bonds
which the Bondholder making the exchange shall be entitled to receive.
Notwithstanding the provisions of Section 203 hereof, all Bonds delivered in
exchange shall be so dated so that neither gain nor loss in interest shall
result from the transfer or exchange.
All Bonds presented for transfer, exchange, redemption or payment (if
so required by the Issuer or the Trustee), shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form
and with guaranty of signature satisfactory to the Issuer and the Trustee,
duly executed by the registered owner or by his duly authorized attorney.
No service charge shall be made for any exchange or transfer of
Bonds, but the Issuer and the Trustee may require payment of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in
relation thereto and such charge shall be paid before the new Bond or Bonds
shall be delivered.
New Bonds delivered upon any transfer or exchange shall be valid
obligations of the Issuer, evidencing the same debt as the Bonds surrendered,
- 18 -
shall be secured by this Indenture and shall be entitled to all of the
security and benefits hereof to the same extent as the Bonds surrendered.
Neither the Issuer nor the Trustee shall be required to make any
registration of transfer of any Bond during the 15 days immediately preceding
an interest payment date on the Bonds or, in the case of any proposed
redemption of Bonds, from the date the Bonds or any portion thereof have been
called for redemption until the date of such redemption.
The Trustee shall obtain from each transferee a receipt for the Bond
or Bonds delivered to such transferee. Such receipt shall be executed
personally by such transferee or by an agent with authority on behalf of such
transferee to enter into binding contracts. As and to the extent required by
applicable laws, by-laws and charter provisions, such receipt shall be so
attested, sealed and notarized that it shall constitute a binding obligation
of such transferee. Such receipt shall recite the agreement of such
transferee to be bound by and to observe all of the terms and provisions of
such Bond or Bonds and the Indenture, including the obligation to refund to
the Company certain amounts received by such transferee from the Internal
Revenue Service if the Company prevails in any contest of an alleged
Determination of Taxability. No transferee shall be registered by the Trustee
as a Registered Owner of any Bond until such transferee has delivered to the
Trustee a receipt for such Bond which satisfies all requirements of this
paragraph.
Section 205. Ownership of Bonds. The person in whose name any Bond
shall be registered upon the Bond registration books shall be deemed and
regarded as the absolute owner thereof for all purposes, and payment of or on
account of the principal of, interest on, and any other amounts payable under
the Bonds shall , except as otherwise expressly provided for certain payments
to former Bondholders upon a Determination of Taxability, be made only to or
upon the order of the Registered Owner thereof or his registered assigns. All
such payments shall be valid and effectual to satisfy and discharge the
liability upon the Bonds, including the interest thereon, to the extent of the
sum or sums so paid.
Section 206. Authorization of Bonds. There shall be issued under
and secured by this Indenture industrial revenue bonds of the Issuer, in the
aggregate principal amount of $2,500,000, for the purpose of providing funds
for paying all or a portion of the Cost of the Project. The Bonds shall be
designated "City of Elgin, Cook and Kane Counties, Illinois, Economic
Development Revenue Bonds (Butler PharmaPac, Inc. Project) Series 1985", shall
be dated as provided in Section 203 hereof, and the aggregate principal amount
thereof shall be payable on December 1, 2000, except as the provisions
hereinafter set forth with respect to redemption may become applicable
thereto, with interest payable thereon from their date at the rate or rates
and at the times specified in the Bonds, and with other amounts payable
thereunder in the amounts and under the circumstances provided in the Bonds
and herein.
- 19 -
•
In the event the Issuer should fail to make any payments required
hereunder, the item or installment so in default shall continue as an
obligation of the Issuer until the amount in default shall have been fully
paid, and the Issuer shall pay the same with interest on overdue principal
and, to the extent permitted by law, on overdue interest at the Prime Rate
plus two percent per annum.
The Bonds shall be executed substantially in the form and manner
hereinabove set forth and delivered to the Trustee for authentication and
delivery to the Bondholders, but prior to or simultaneously with the delivery
of the Bonds by the Trustee there shall be filed with the Trustee the
following:
(a) A copy, certified by the City Clerk of the Issuer, of an
ordinance or ordinances of the Issuer authorizing the issuance of the
Bonds and the sale of the Bonds to the initial purchaser thereof and
directing the delivery of the Bonds to or upon the order of the purchaser
therein named upon payment of the purchase price therein set forth.
(b) The executed Note and executed counterparts of the Agreement,
the Mortgage, the Guaranty, the Arbitrage Agreement and this Indenture.
(c) An opinion of Counsel for the Issuer to the effect that the
execution and delivery of the Agreement, the Arbitrage Agreement, the
Bonds and this Indenture and the pledge of the Note have been duly
authorized by the Issuer, that the Agreement, the Arbitrage Agreement, the
Bonds and this Indenture are in substantially the forms so authorized and
have been duly executed by the Issuer, that the Note has been duly pledged
by the Issuer to the Trustee and that, assuming proper authorization and
execution of the Agreement, the Arbitrage Agreement, the Bonds and this
Indenture by the other parties thereto, the Agreement, the Arbitrage
Agreement, the Bonds and this Indenture are valid, binding and enforceable
in accordance with their respective terms, subject to the qualification
that the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally.
(d) An opinion of Counsel to the Company and the Guarantor to the
effect that the execution and delivery of the Arbitrage Agreement, the
Mortgage, the Note and the Agreement have been duly authorized by the
Company, and the Arbitrage Agreement, the Mortgage, the Note and the
Agreement have been duly executed and delivered by the Company, and that
the Arbitrage Agreement, the Mortgage, the Note and the Agreement are
valid, binding and enforceable against the Company in accordance with
their terms, and that the execution and delivery of the Guaranty has been
duly authorized by the Guarantor, that the Guaranty has been duly executed
and delivered by the Guarantor and is valid, binding and enforceable
against the Guarantor in accordance with its terms, all subject to the
qualification that the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally.
- 20 -
(e) An opinion of Counsel admitted to practice law in the State of
Illinois to the effect (i) that copies of such instruments and financing
statements (described in such opinion) as are necessary have been recorded
and filed in the manner and places required by Illinois law with the
effect _that the lien of this Indenture has been perfected and creates, as
to the rights of the Issuer under the Agreement assigned under this
Indenture, a valid, duly perfected security interest, subject to no equal
or prior liens and the security interest on personal property and fixtures —
conveyed under the Mortgage has been perfected and creates a valid, duly
perfected security interest therein subject to no equal or prior liens,
and (ii) that the Issuer' s endorsement and pledge of the Note to the
Trustee and the Trustee' s possession thereof creates a valid, duly
perfected security interest in the Note subject to no equal or prior liens.
(f) An opinion of Bond Counsel to the effect that the issuance of
the Bonds and the execution of this Indenture and the Agreement have been
duly and validly authorized by the Issuer, that all conditions on the part
of the Issuer precedent to the delivery of the Bonds have been fulfilled,
that the Bonds, this Indenture and the Agreement are valid, binding and
enforceable obligations of the Issuer in accordance with their terms,
subject to the qualification that the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting enforcement of creditors' rights, generally that First
Union National Bank is legally authorized under Illinois law to act as the
Trustee under the Indenture and Mortgage and that under existing laws,
including current rulings and official interpretations of law by the
Internal Revenue Service, interest on the Bonds will not be includable in
federal gross income of the owners thereof, except with respect to
interest on any Bond for any period during which such Bond is owned by a
person who is a substantial user of the Project or any person considered
to be related thereto, within the meaning of Section 103(b) of the Code.
When the documents mentioned in clauses (a) through (f) of this
Section have been filed with the Trustee and when the Bonds shall have been
executed as required by this Indenture, the Trustee shall authenticate and
deliver the Bonds to or upon the order of the purchaser named in the ordinance
or ordinances mentioned in clause (a) of this Section but only upon payment to
the Trustee for the account of the Issuer of the purchase price of the Bonds.
The Trustee shall be entitled to rely conclusively upon such ordinance or
ordinances, or document approved thereby, as to the name of the purchaser and
the amount of such purchase price. Simultaneously with the delivery of the
Bonds, the Trustee shall pay into the Construction Fund the proceeds of the
sale of the Bonds.
Section 207. Replacement of Mutilated, Destroyed, Lost or Stolen
Bonds. In case any Bond secured hereby shall become mutilated or be
destroyed, lost or stolen, the Issuer shall cause to be executed, and the
Trustee shall authenticate and deliver, a new Bond or Bonds of like tenor, but
only upon (i) the cancellation of the mutilated Bond or Bonds or in lieu of
and in substitution for the Bond or Bonds destroyed, lost or stolen, (ii) the
holder' s paying the reasonable expenses and charges of the Issuer and the
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Trustee in connection therewith and (iii) in the case of a Bond or Bonds being
destroyed, lost or stolen, the holder's filing with the Trustee evidence
satisfactory to the Trustee and to the Issuer that the Bond or Bonds were
destroyed, lost or stolen, and of his ownership thereof, and his furnishing to
the Issuer-and the Trustee indemnity satisfactory to each of them; provided,
that if such holder shall be a recognized financial institution, the agreement
of such institution to indemnify the Issuer and the Trustee, in a form
satisfactory to them, shall constitute satisfactory indemnity under this
Section.
(End of Article II)
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ARTICLE III
Redemption of Bonds
Section 301. Redemption of Bonds. (a) The Bonds issued under the provisions of this Indenture shall not be subject to prior redemption except
in accordance with the provisions of this Article III. Bonds may not be
redeemed under the provisions of paragraph (b) or paragraph (d) of this
Section 301 after a Determination of Taxability.
(b) Extraordinary Redemption. The Issuer shall redeem the Bonds in
whole, but not in part, at 100% of the principal amount thereof plus accrued
interest to the redemption date, after receipt by the Issuer and the Trustee
on any date of a written certificate from the Company stating that it intends
to prepay the Note and thereby cause the Issuer to effect the redemption of
the Bonds and certifying that one of the following events has occurred within
the preceding 120 days:
(A) all or substantially all of the Project shall have been
damaged or destroyed or there shall have occurred condemnation of all
or substantially all of the Project or the taking by eminent domain
of such use or control of the Project as in each case renders the
Project unsatisfactory to the Company for its intended use; or
(B) any change in the Constitution of the State of Illinois or
the Constitution of the United States of America or any legislative
or administrative action (whether state or federal ) or any final
decree, judgment or order of any court or administrative body
(whether State or federal ) shall have occurred which results in the
Agreement becoming void or unenforceable or impossible of performance
in accordance with the intent and purpose of the parties as expressed
in the Agreement.
(c) Mandatory Redemption and Special Payment Upon the Occurrence of
a Determination of Taxability. Upon the occurrence of a Determination of
Taxability all Bonds then outstanding shall be called for redemption in
whole on the date within sixty days (60) of said Determination of
Taxability selected by the Company for mandatory payment of the Note
pursuant to Section 7.3(b) of the Agreement and, on such date, the Issuer
shall pay or cause to be paid to the Trustee for the benefit of the
Bondholders and former Bondholders the sum of the following amounts
hereunder:
(i) an amount equal to the entire principal amount of the Bonds, if
any, outstanding on the redemption date, plus accrued interest thereon to
the redemption date; plus
(ii) an amount equal to the difference between (x) the interest
actually paid on the Bonds during the period from the date of the Event of
Taxability to the redemption date, and (y) the interest which would have
- 23 -
been paid had the Bonds borne interest at all times during such period at
the Alternate Rate.
Such amounts necessary to pay Bonds outstanding on the redemption
date shall -be deposited by the Trustee into the Bond Fund and the remainder of =
such amounts shall be deposited by the Trustee in the account established by
Section 506 of this Indenture. The obligation of the Issuer to make the
payments described in (ii) of the preceding paragraph shall survive the
payment in full (whether by maturity, acceleration or redemption) of the Bonds
and Bondholders shall have the right to such moneys notwithstanding that a
Determination of Taxability may occur after the Bonds are no longer
outstanding under the terms of this Indenture.
If upon the date of redemption there shall be on deposit in the Bond
Fund and in the account established in Section 506 hereof the total amount
required by Section 301(c) (i) and (ii) above, such amount shall constitute
total compensation due such outstanding Bonds and the holders of such Bonds as
a result of the occurrence of a Determination of Taxability, subject, however
to the right, if any, of such holders to receive payments described in the
next succeeding paragraph directly from the Company.
In addition to the foregoing, the Company has agreed to pay directly
to each Holder or former Holder on demand by and in the amounts attributable
to such Holder or former Holder, the following sums:
(i) an amount equal to all penalties and interest paid or payable by
such Holder or former Holder resulting from a failure to include interest
on any Bond in the gross income of such Holder or former Holder, plus
(ii) an amount equal to all administrative, out-of-pocket and other
expenses incurred by such Holder or former Holder which are directly or
indirectly attributable to the interest on any of the Bonds becoming
subject to federal income tax, including, without limitation, costs
incurred by such Holder or former Holder in amending its federal tax
returns.
If the Company prevails in any contest of a Determination of Taxability, any
Holder or former Holder shall be required to pay to the Company a sum equal to
the net after-tax amount of any refund received by such Holder or former
Holder from the Internal Revenue Service paid to or by such Holder or former
Holder in respect of interest on his Bonds, but without interest on such net
after-tax amount. The obligation of the Company to make the payments specified
in this paragraph shall survive notwithstanding payment of the Bonds and the
Note in accordance with the terms of the Agreement.
(d) Optional Redemption. On September 1 through December 1 of the
years 1990 and 1995 (the "Put Years") , any registered holder of Bonds shall
have the right to require the Company or its designee to purchase the Bonds of
such holder or any portion thereof, at a purchase price payable in immediately
available funds equal to 100% of the outstanding principal amount thereof to
be sold plus accrued interest on such amount to the date of purchase plus all
- 24 -
other amounts payable thereunder (the "Put Right") . Upon payment of the
purchase price, such registered holder shall forthwith deliver such Bonds or
portion thereof to the Company or its designee, as the case may be.
T6 exercise the Put Right, the registered holder of the Bonds or
portion thereof to be put to the Company shall give written notice by
registered or certified mail to the Company of such holder' s intention to exercise such Put Right (the "Exercise Notice") and shall specify therein the —
principal amount of the Bonds or portion thereof which it will sell . Once
given, such Exercise Notice will be irrevocable and failure by such registered
holder to sell to the Company the principal amount of the Bonds or portion
thereof specified in such Exercise Notice shall result in a forfeit of the
holder' s Put Right with respect to such Bonds or portion thereof (in that Put
Year only) . Within ninety (90) days after receipt of such Exercise Notice,
the Company or its designee shall deliver to the holder, in immediately
available funds, the purchase price of such Bonds or portion thereof.
The Bonds are also subject to redemption by the Issuer prior to
maturity, in whole or in part, at any time on or after December 1, 1989, upon
prepayment of the Note in whole or in part pursuant to Section 7.2 of the
Agreement, and the Issuer shall , and hereby authorizes the Trustee on its
behalf to, redeem all or such part of the Bonds as shall be specified by the
Company at the redemption price of 100% of the principal amount thereof to be
prepaid plus accrued interest to the redemption date.
(e) Redemption Upon Project Completion or Certain Damages, Takings
or Dispositions. The Bonds are subject to mandatory redemption by the Issuer
prior to maturity, in part, (i) with amounts remaining in the Construction
Fund after the Completion Date (except to the extent such amounts are
otherwise applied pursuant to Section 3.4 of the Agreement) , (ii) with
insurance proceeds or condemnation awards not used to repair, restore or
replace the Project or a portion thereof as provided by Section 3.6 of the
Mortgage or with proceeds from and (iii) with money received in respect of a
disposition of equipment contributing a portion of the Project as provided by
Section 3.7 of the Mortgage, at 100% of the principal amount to be redeemed
plus accrued interest to the redemption date, and upon prepayment of the Note
in part pursuant to Section 7.3(a) of the Agreement.
(f) Mandatory Sinking Fund Redemption. As and for a sinking fund
for the redemption of the Bonds, the Issuer shall cause to be deposited in the
Bond Fund on or before March 1, 1986, and on or before each March 1, June 1,
September 1 and December 1 thereafter, to and including September 1, 2000, a
sum which, together with other moneys available therefor in the Bond Fund, is
sufficient to redeem on each such date $42,000.00 in aggregate principal
amount of the Bonds at 100% of the principal amount thereof plus accrued
interest to the redemption date.
(g) Partial Redemption. If the Bonds are to be redeemed in part,
whether pursuant to optional or mandatory redemption, including mandatory
sinking fund redemption, the Trustee shall apply the redemption payments
ratably to each of the Bonds then outstanding. If the Bonds are to be redeemed
- 25 -
in part, other than pursuant to mandatory sinking fund redemption, the
redemption payments shall be applied ratably to the reduction of the principal
amount of the Bonds due on December 1, 2000 and, until payment in full of the
Bonds, shall not reduce the mandatory sinking fund obligations.
Section 302. Notice of Redemption. At least 30 days before the
redemption date of all or any portion of the Bonds (other than with respect to
any mandatory sinking fund redemption) , the Trustee, on behalf of the Issuer, —
shall cause a notice of any such redemption to be mailed by first-class mail ,
postage prepaid, to the Bondholders of Record. Each such notice shall set
forth the date fixed for redemption (which shall be the Prepayment Date named
in the notice given by the Company pursuant to Section 7.6 of the Agreement)
and the redemption price to be paid.
Section 303. Effect of Calling for Redemption. On the date so
designated for redemption; notice having been mailed in the manner and under
the conditions hereinabove provided, the Bonds, or portions of the Bonds, so
called for redemption shall become and be due and payable at the redemption
price provided for redemption of the Bonds or portions of the Bonds on such
date and, if moneys for payment of the redemption price shall be held by the
Trustee in trust for the holder or holders of the Bonds or portions thereof to
be redeemed, all as provided in this Indenture, interest on the Bonds or
portions of the Bonds called for redemption shall cease to accrue, the Bonds
or portions of the Bonds shall cease to be entitled to any benefit or security
under this Indenture, and the Registered Owner of any Bond or Bonds shall have
no rights in respect thereof except to receive payment of the redemption price
thereof and except the right to receive payments pursuant to Section 301(c)
hereof.
(End of Article III)
- 26 -
ARTICLE IV
Construction Fund
Section 401. Creation of and Deposits to the Construction Fund. A
special fund is hereby created and designated "City of Elgin, Cook and Kane
Counties, Illinois Economic Development Revenue Bonds (Butler PharmaPac, Inc.
Project) Series 1985 Construction Fund" to the credit of which such deposits —
shall be made as are required by the provisions of this Indenture. Any moneys
received by the Issuer or by the Trustee under this Indenture from any source
for payment of the Cost of the Project shall be deposited to the credit of the
Construction Fund.
The moneys in the Construction Fund shall be held by the Trustee in
trust and, subject to the provisions of Sections 405 and 602 of this
Indenture, shall be applied to the payment of the Cost of the Project and,
pending such application, shall be subject to a lien and charge in favor of
the holders of the Bonds issued and outstanding under this Indenture and for
the further security of such holders until paid out or transferred as herein
provided.
Section 402. Payments from the Construction Fund. Payments of the
Cost of the Project shall be made from the Construction Fund. All payments
from the Construction Fund shall be subject to the provisions and restrictions
set forth in this Article and the Issuer hereby directs the Trustee not to pay
from the Construction Fund any sums except in accordance with such provisions
and restrictions. Such payments shall be made by the Trustee upon receipt of a
requisition and attached certificate, signed by the Authorized Company
Representative (substantially in the form of the first two paragraphs of the
"Requisition and Certificate" attached hereto as Exhibit A and hereby deemed
incorporated herein) , stating to whom the payment described is to be made and
the purpose, in reasonable detail , for which the obligation to make such
payment was incurred and including, if such requisition and certificate
comprise an item for payment for labor or to contractors, builders or
materialmen, a paragraph in the form of the last paragraph of the attached
form of "Requisition and Certificate", appropriately completed. Upon request
of the Trustee, the Company shall furnish to the Trustee copies of invoices
relating to and substantiating any request for payment from the Construction
Fund.
The Trustee is authorized and directed to apply the moneys in the
Construction Fund in accordance herewith but only upon receipt of the
requisitions required by this Section 402, duly executed by the persons and in
the manner provided for herein.
Section 403. Trustee May Rely on Requisitions. All requisitions in
the form provided by Section 402 hereof and all other statements, orders,
certifications and approvals received by the Trustee, as required by this
Article as conditions of payment from the Construction Fund, may be
conclusively relied upon by the Trustee, and shall be retained by the Trustee,
subject at all reasonable times to examination by the Company (so long as the
- 27 -
Agreement shall remain in force and effect) , the Issuer, any Bondholder and
the agents and representatives thereof.
Section 404. Completion Date. The establishment of the Completion
Date and the disposition of moneys then held for the credit of the
Construction Fund shall be in accordance with Section 3.4 of the Agreement.
Section 405. Transfers to the Bond Fund. In the event that the —
Company should elect or be required to prepay the Note in whole pursuant to
the Agreement or if the Trustee shall declare the Bonds to be due and payable
pursuant to Section 802 hereof, the Trustee shall , without further
authorization, forthwith transfer any balance remaining in the Construction
Fund to the Bond Fund.
(End of Article IV)
- 28 -
ARTICLE V
Bond Fund
Section 501. Creation of and Deposits to the Bond Fund. A special
fund is hereby created and designated "City of Elgin, Cook and Kane Counties,
Illinois Economic Development Revenue Bonds (Butler PharmaPac, Inc. Project)
Series 1985 Bond Fund". The moneys in the Bond Fund shall be held by the
Trustee in trust, and, pending their application in accordance with the
provisions of this Article V, shall be subject to a lien and charge in favor
of the holders of the Bonds issued and outstanding under this Indenture and
for the further security of the holders until paid out or transferred as
herein provided.
The Issuer covenants that it will cause to be deposited, and the
Trustee agrees to deposit, to the credit of the Bond Fund the following:
(a) any interest received on the Bonds on the date of delivery of
the Bonds;
(b) any amount in the Construction Fund to be transferred to the
Bond Fund in accordance with the provisions of Section 405 hereof;
(c) the payments and any prepayments made on the Note and the
Guaranty and amounts realized under the Mortgage (after payment of costs
and expenses as therein provided) ; and
(d) all other moneys received by the Trustee which are required, or
are accompanied by directions from the Company or the Issuer that such
moneys are, to be paid into the Bond Fund.
Section 502. Use of Moneys in the Bond Fund. Promptly upon receipt
by the Trustee of a written demand for payment from any holder or former
holder of a Bond, together with evidence satisfactory to the Trustee that a
loss, cost, charge or expense has been incurred by such holder or former
holder, all as described in the fourth paragraph in the form of the Bonds
hereinabove set forth, the Trustee shall notify the Company that such payment
is due and within 5 days of receipt of such notice, the Company, in accordance
with the Note, shall pay such sums to the Issuer for deposit in the Bond Fund.
The Trustee shall , on or before each interest payment date, each
principal payment date (whether at maturity or by redemption or acceleration
or otherwise) and each other date on which payments under the Bonds are due,
withdraw from the Bond Fund and remit by check or draft to the Registered
Owner of each Bond or, if requested by any Registered Owner, by wire transfer
to the account specified by him, the amounts required for paying the interest,
principal , and other amounts on the Bonds as such interest, principal , and
other amounts become due and payable.
Upon receipt of a written notice from the Company pursuant to Article
VII of the Agreement, and upon the deposit of moneys in the Bond Fund
- 29 -
•
sufficient, together with other amounts available therefor in the Bond Fund,
to prepay, in whole or in part, the Bonds, the Issuer and the Trustee covenant
and agree to take and cause to be taken the necessary steps to prepay such
principal amount of the Bonds as specified by the Company in such written
notice. -
Section 503. Moneys Withdrawn from the Bond Fund. All moneys which
the Trustee shall have withdrawn from the Bond Fund or shall have received —
from any other source and set aside for the purpose of paying the Bonds hereby
secured, shall be held in trust for the holders of the Bonds.
Section 504. Non-Presentment of Bonds. Any moneys deposited with
the Trustee or then held by the Trustee in trust for the payment of the
principal of, interest on, or any other amount payable under the Bonds and
remaining unclaimed for three years after such principal or interest or other
amount has become due and payable shall be paid to the Company free of any
trust or lien. Thereafter, the holders of the Bonds shall look only to the
Company for payment and then only to the extent of the amount so received
without any interest thereon, and the Trustee shall have no responsibility
with respect to such moneys.
Section 505. Cancellation of Bonds Upon Payment. The Bonds when
paid or redeemed, either at or before maturity, shall be cancelled. The Bonds
if cancelled under any of the provisions of this Indenture shall be cremated
or otherwise destroyed by shredding by the Trustee. The Trustee shall execute
a certificate in triplicate describing the Bonds, one executed certificate
shall be filed with the Issuer, one executed certificate shall be filed with
the Company and one executed certificate shall be retained by the Trustee.
Section 506. Moneys Deposited Pursuant to Section 7.3(b) of the
Agreement as a Result of a Determination of Taxability. In the event of the
redemption of Bonds as a result of the occurrence of a Determination of
Taxability, all moneys paid to the Trustee with respect to Bonds not
outstanding on the date of such redemption shall be held by the Trustee in a
separate trust account. Any person who was a Bondholder at the time of or
following an Event of Taxability but who was not a Bondholder at the date of
redemption shall , upon presentation to the Trustee in writing of proof
satisfactory to the Trustee that he was a holder of such Bond at such time, be
entitled to an amount equal to the difference between (a) the interest
actually paid on such holder's Bond while owned by such holder on or following
the date of the Event of Taxability, and (b) the interest which would have
been paid to such holder had such holder's Bond borne interest at the
Alternate Rate while owned by such holder on or following the date of the
Event of Taxability.
Any moneys so deposited with the Trustee shall be held for the
benefit of such claimants, if any, in accordance with Section 504 hereof.
(End of Article V)
- 30 -
ARTICLE VI
Depositaries of Moneys, Security for Deposits
and Investment of Funds
Section 601. Security for Deposits. All moneys deposited with the
Trustee under the provisions of this Indenture or the Agreement shall be held
in trust and applied only in accordance with the provisions of this Indenture —
and the Agreement and shall not be subject to lien or attachment by any
creditor of the Issuer (other than the holders of the Bonds) or the Company.
Section 602. Investment of Moneys. At the request and the direction
of the Authorized Company Representative and subject to the provisions of the
Arbitrage Agreement, moneys held in the Construction Fund and the Bond Fund
shall be invested and reinvested by the Trustee in Investment Obligations
which shall mature not later than the respective dates when the moneys held
said Funds will be required for the purposes intended.
Obligations so purchased as an investment of moneys in any such Fund
shall be deemed at all times to be a part of such Fund, and the interest
accruing thereon and any profit realized from such investment shall be
credited to such Fund, and any loss resulting from such investment shall be
charged to such Fund. The Trustee shall sell at the best price obtainable or
present for redemption any obligation so purchased whenever it shall be
necessary so to do in order to provide cash to meet any payment or transfer
from any such Fund. Neither the Trustee nor the Issuer shall be liable or
responsible for any loss resulting from any such investment.
For the purpose of determining the amount on deposit to the credit of
any such Fund, obligations in which moneys in such Fund have been invested
shall be valued at the lower of cost or market.
The Trustee may make any and all investments permitted by this
Section through its own bond or investment department.
(End of Article VI)
- 31 -
ARTICLE VII
Particular Covenants and Provisions
Section 701. Covenant to Pay Bonds; Bonds Limited Obligations of the
Issuer. The Issuer covenants that it will promptly pay the principal of,
interest on, and all other amounts payable under the Bonds at the places, on
the dates and in the manner provided herein and in the Bonds according to the —
true intent and meaning thereof. Such principal , interest and other amounts
are payable by the Issuer solely from the payments made by the Company on the
Note and other revenues and funds derived under the Agreement and this
Indenture, which payments on the Note, revenues, funds and moneys are hereby
pledged to the payment of the Bonds in the manner and to the extent
hereinabove particularly specified. The Bonds have been issued under the
provisions of the Enabling Ordinance and are special , limited obligations of
the Issuer and shall never constitute a debt or indebtedness of the Issuer
within the meaning of any provision or limitation of the Constitution or
statutes of the State of Illinois, but such Bonds and the interest thereon
shall be indebtedness payable solely from a special source, which source does
not include revenues from any tax or license, and shall never give rise to a
general obligation or liability of the Issuer or a charge against its general
credit or taxing powers. The provisions of this paragraph shall govern such
matters, any other provision herein to the contrary notwithstanding.
Section 702. Covenant Against Arbitrage. The Issuer covenants and
agrees that it will not make or permit any use, and directs the Trustee not to
make or permit any use, of the proceeds of the Bonds which would cause the
Bonds to be "arbitrage bonds" within the meaning of Section 103(c) of the Code
and the applicable regulations promulgated from time to time thereunder, and
further covenants that it will observe, and not violate, the requirements of
Section 103(c) of the Code and any such applicable regulations to the extent
necessary so that the interest on the Bonds will not cease to be exempt from
Federal income tax by reason of such use of proceeds.
Section 703. Covenants to Perform Obligations Under this Indenture.
The Issuer covenants that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds executed and delivered hereunder and in all
proceedings of the Issuer pertaining thereto and will faithfully observe and
perform at all times any and all covenants, undertakings, stipulations and
provisions of the Agreement on its part to be observed or performed. The
Issuer covenants that it is duly authorized under the Constitution and laws of
the State of Illinois, including particularly and without limitation the Act,
to issue the Bonds authorized hereby and to enter into this Indenture, to
endorse the Note without recourse to the Trustee, and to pledge the payments
on the Note and other funds derived from the Agreement and this Indenture in
the manner and to the extent herein set forth; and that all action on its part
for the issuance of the Bonds issued hereunder and the execution and delivery
of this Indenture has been duly and effectively taken; and that the Bonds in
the hands of the holders thereof are and will be valid and enforceable
obligations of the Issuer accordingto the tenor and import thereof.
- 32 -
Section 704. Covenant to Perform Obligations Under the Agreement.
Subject to the provisions of Section 705 hereof, the Issuer covenants and
agrees that it will not suffer, permit or take any action or do anything or
fail to take any action or fail to do anything which may result in the
termination or cancellation of the Agreement so long as the Bonds are
outstanding; that it will punctually fulfill its obligations and will
cooperate with the Trustee in order to ensure that the Company performs
punctually its duties and obligations under the Agreement; that it will not —
execute or agree to any change, amendment or modification of or supplement to
the Agreement except by a supplement or an amendment duly executed by the
Issuer and the Company with the approval of the Trustee and upon the further
terms and conditions set forth in Article XII of this Indenture; and that it
will not agree to any abatement, reduction, abrogation, waiver, diminution or
other modification in any manner or to any extent whatsoever of the obligation
of the Company to pay the Note and to meet its other obligations as provided
in the Agreement.
Section 705. Trustee May Enforce Issuer's Rights Under Agreement.
The Agreement, a duly executed counterpart of which has been filed with the
Trustee, sets forth the covenants and obligations of the Issuer and the
Company, including a provision in Section 8.6 thereof that subsequent to the
issuance of the Bonds and prior to payment of the Bonds the Agreement may not
be effectively amended, changed, modified, altered or terminated (other than
as provided therein) without the concurring written consent of the Trustee and
reference is hereby made to the Agreement for a detailed statement of said
covenants and obligations of the Company under the Agreement, and the Issuer
agrees that the Trustee, subject to the provisions of the Agreement and this
Indenture reserving certain rights to the Issuer and respecting actions by the
Trustee in its name or in the name of the Issuer, may enforce all rights of
the Issuer and all obligations of the Company under and pursuant to the
Agreement for and on behalf of the Bondholders whether or not the Issuer is in
default hereunder.
(End of Article VII)
- 33 -
ARTICLE VIII
Defaults and Remedies
Section 801. Defaults. Each of the following events is hereby
declared an "event of default":
(a) Default in the due and punctual payment of interest on any Bond;
(b) Default in the due and punctual payment of the principal of, or
any other amount payable under, any Bond, whether at the stated maturity
thereof, or upon proceedings for redemption thereof, or upon the maturity
thereof by declaration;
(c) Default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer in this
Indenture or in the Bonds contained; or
(d) The occurrence of an Event of Default or event of default under
the Agreement, the Mortgage or the Guaranty;
provided, however, that no default specified in clause (c) of this Section
shall constitute an event of default until written notice specifying such
default and requiring the same to be remedied shall have been given to the
Company and the Issuer by the Trustee, which may give notice in its discretion
and shall give such notice at the written direction of the Requisite
Bondholders, and the Company and the Issuer shall have had 30 days after
receipt of such notice to correct said default and shall not have corrected
said default within the applicable period. With regard to any default
concerning which notice is given to the Issuer and the Company under the
provisions of this Section, the Issuer hereby grants the Company full
authority for account of the Issuer to perform any covenant or obligation
alleged in said notice to constitute a default, 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, provided no pecuniary liability shall be imposed upon the
Issuer except from funds and receipts derived under the Agreement and the Note.
Section 802. Acceleration. Except as provided in the following
sentence, upon the happening of any event of default specified in Section 801
hereof, then and in every such case the Trustee may, and upon the written
direction of the Requisite Bondholders shall , by a notice in writing to the
Issuer and the Company, declare all the principal of the Bonds (if not then
due and payable) to be due and payable immediately, and upon such declaration
the same shall become and be immediately due and payable, with accrued
interest thereon, and all other amounts payable thereunder, anything contained
in the Bonds or in this Indenture to the contrary notwithstanding. Upon the
happening of any Event of Default specified in Section 6.1(c) of the
Agreement, the entire principal of, unpaid interest accrued on, and all other
amounts payable under the Bonds shall automatically and immediately become due
- 34 -
and payable, without notice of any kind, presentment, demand or protest, all
of which are expressly waived by the Issuer.
Section 803. Trustee May Bring Suit. Upon the happening of any
event of default specified in Secion 801 hereof, then and in every such case
the Trustee may, and upon the written direction of the Majority Bondholders
shall , proceed, subject to the provisions of Section 903 hereof, to protect
and enforce its rights and the rights of the Bondholders under the Agreement, —
the Note, the Mortgage, the Guaranty and this Indenture by such suits, actions
or special proceedings in equity or at law, or by proceedings in the office of
any board or officer having jurisdiction, either for the specific performance
of any covenant or agreement contained herein or therein or in aid or
execution of any power herein or therein granted or for the enforcement of any
proper legal or equitable remedy, as the Trustee, being advised by counsel ,
shall deem most effectual to protect and enforce such rights.
In the enforcement of any remedy under this Indenture the Trustee
shall be entitled to sue for, enforce payment of and recover judgment for, in
its own name and as trustee of an express trust, any and all amounts then or
after any default becoming, and at any time remaining, due from the Issuer for
principal , interest, or any other amounts payable on or under any Bond, or
otherwise under any of the provisions of this Indenture or of the Agreement,
and unpaid, with interest on overdue payments of principal and, to the extent
permitted by law, on overdue interest at the Prime Rate plus two percent per
annum, together with any and all costs and expenses of collection and of all
proceedings hereunder and under the Bonds, without prejudice to any other
right or remedy of the Trustee or of the Bondholders, and to recover and
enforce any judgment or decree against the Issuer, but solely as provided
herein and in the Bonds, for any portion of such amounts remaining unpaid and
interest, costs and expenses as above provided, and to collect (but solely
from moneys in the Bond Fund and any other moneys available for such purpose),
in any manner provided by law, the moneys adjudged or decreed to be payable.
Section 804. Trustee May File Claim in Bankruptcy. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer or the Company, or to property of the Issuer
or the Company, the Trustee (irrespective of whether the principal of the
Bonds shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment on the Note of an amount equal to overdue
principal , interest, or other amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal ,
interest and other amounts owing and unpaid in respect of the Bonds and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Bondholders allowed in such
judicial proceeding; and
- 35 -
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by the
Bondholders to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Bondholders, to pay to the Trustee any amount due to it for the reasonable —
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel , and any other amounts due the Trustee under Section 903 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of the holders, any plan
of reorganization, arrangement, adjustment or composition affecting the Bonds
or the rights of any holder thereof, or to authorize the Trustee to vote in
respect of the claim of the Bondholders in any such proceeding.
Section 805. Pro Rata Application of Funds. Anything in this
Indenture to the contrary notwithstanding, if at any time the moneys in the
Bond Fund shall not be sufficient to pay the interest on, principal of, or any
other amounts payable under the Bonds as the same shall become due and payable
(either by their terms or by acceleration of maturity under the provisions of
Section 802 hereof) , such moneys, together with any moneys then available or
thereafter becoming available for such purpose, whether through the exercise
of the remedies provided for in this Article or otherwise, shall be applied as
follows:
(a) If the principal of all of the Bonds shall not have become due
and payable or shall not have been declared due and payable, all such
moneys shall be applied as follows:
first: to the payment to the persons entitled thereto of all
installments of interest then due and payable in the order in which
such installments became due and payable, with interest on overdue
installments of interest, if any, at the Prime Rate plus 2% per annum
to the extent permitted by law, 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 preference; and
second: to the payment to the persons entitled thereto of the
unpaid principal of, or other amounts payable under, the Bonds which
shall have become due and payable, in the order of their due dates,
and, if the amount available shall not be sufficient to pay in full
such unpaid principal or other amounts due on any particular date,
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, with interest on overdue payments of
principal or other amounts, if any, at the Prime Rate plus two
percent per annum.
- 36 -
(b) If all the principal of the Bonds shall have become due and
payable or shall have been declared due and payable, all such moneys shall
be applied to the payment of the principal , interest and all other amounts
then due upon the Bonds, without preference or priority of principal over
interest or other amount or of interest over principal or other amount or
of any other amount over principal or interest, or of any installment of
interest over any other installment of interest, or of any Bond over any
other Bond, ratably, according to the amounts due respectively for —
principal and interest, to the persons entitled thereto without any
discrimination or privilege, with interest on overdue payments of
principal or other amounts and, to the extent permitted by law, interest,
at the Prime Rate plus two percent per annum.
(c) If all the principal of the Bonds shall have been declared due
and payable and if such declaration shall thereafter have been rescinded
and annulled under the provisions of Section 806 hereof, then, subject to
the provisions of subsection (b) of this Section 805 in the event that all
the principal of the Bonds shall later become due and payable or be
declared due and payable, the moneys remaining in and thereafter accruing
to the Bond Fund shall be applied in accordance with the provisions of
subsection (a) of this Section 805.
Whenever moneys are to be applied by the Trustee pursuant to the
provisions of this Section 805, such moneys shall be applied by the Trustee at
such times, and from time to time, as the Trustee in its sole discretion shall
determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for
such application in the future; the setting aside of such moneys, in trust for
the proper purpose, shall constitute proper application by the Trustee; and
the Trustee shall incur no liability whatsoever to the Issuer, to the
Bondholders or to any other person for any delay in applying any such moneys,
so long as the Trustee acts with reasonable diligence, having due regard to
the circumstances, and ultimately applies the same in accordance with such
provisions of this Indenture as may be applicable at the time of application
by the Trustee. Whenever the Trustee shall exercise such discretion in
applying such moneys, it shall fix the date (which shall be an interest
payment date unless the Trustee shall deem another date more suitable) upon
which such application is to be made and upon such date interest on the
amounts of principal to be paid on such date shall cease to accrue. The
Trustee shall give such notice as it may deem appropriate of the fixing of any
such date, and shall not be required to make payment to the holders of the
Bonds until the Bonds shall be surrendered to the Trustee for appropriate
endorsement, or for cancellation if fully paid.
Section 806. Effect of Discontinuance of Proceedings. In case any
proceeding taken by the Trustee on account of any default shall have been
li discontinued or abandoned for any reason, then and in every such case the
Issuer, the Trustee and the Bondholders shall be restored to their former
positions and rights hereunder, respectively, and all rights, remedies, powers
and duties of the Trustee and the Issuer shall continue as though no
proceeding had been taken.
- 37 -
Section 807. Holders of Bonds May Control Proceedings. Anything in
this Indenture to the contrary notwithstanding, the Majority Bondholders shall
have the right, subject to the provisions of Section 903 hereof, by an
instrument or concurrent instruments in writing executed and delivered to the
Trustee, to direct the method and place of conducting all remedial proceedings _,
to be taken by the Trustee hereunder or exercising any trust or power
conferred upon the Trustee, provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture, —
and provided, further, subject to the provisions of Section 901 hereof, that
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 808. Restrictions Upon Actions by Bondholders. The holders
of the Bonds shall not have any right to institute any suit, action or
proceeding in equity or at law on the Bonds or for the execution of any trust
hereunder or for any other remedy hereunder except that any holder of the
Bonds may institute any such suit, action or proceeding in its own name for
its benefit. It is understood and intended that, except as otherwise above
provided, no holder of the Bonds hereby secured shall have any right in any
manner whatever by his action to affect, disturb or prejudice the security of
this Indenture, or to enforce any right hereunder except in the manner
provided and that all proceedings at law or in equity shall be instituted, had
and maintained in the manner herein provided and for the benefit of the
holders of the Bonds, and that any individual right of action or any other
right given to such holder by law is restricted by this Indenture to the
rights and remedies herein provided. Notwithstanding any other provision in
this Indenture, each holder of the Bonds shall have the right, which is
absolute and unconditional , to receive payment of the principal of, interest
on, and all other amounts due under the Bonds on the respective due dates
expressed in the Bonds (or, in the case of redemption, on the redemption date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of all of the Bondholders.
Section 809. Receiver. Upon the occurrence of an event of default
and upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the Bondholders under this Indenture,
the Trustee shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the amounts payable on the Note or otherwise under
the Agreement and assigned to the Trustee under this Indenture pending such
proceedings, with such powers as the court making such appointment shall
confer, whether or not any such amounts payable shall be deemed sufficient
ultimately to satisfy the Bonds.
Section 810. Actions by Trustee. All rights of action under this
Indenture or under the Bonds secured hereby, enforceable by the Trustee, may
be enforced by it without the possession of the Bonds or the production
thereof in the trial or other proceeding relative thereto, and any such suit,
action or proceeding instituted by the Trustee shall be brought in its name
for the benefit of the holders of the Bonds, subject to the provisions of this
Indenture.
- 38 -
Section 811. No Remedy Exclusive. No remedy herein conferred upon
or reserved to the Trustee or to the holders of the Bonds is intended to be
exclusive of any other remedy or remedies hereby provided, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or by law. -
Section 812. No Delay or Omission Construed to be a Waiver. No
delay or omission of the Trustee or of the holders of the Bonds to exercise
any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver of any such default or any
acquiescence therein; and every power and remedy given by this Indenture to
the Trustee and to the holders of the Bonds, respectively, may be exercised
from time to time and as often as may be deemed expedient.
Section 813. Waiver of Defaults. Before the entry of final judgment
or decree in any suit; action or proceeding instituted by it under the
provisions of this Indenture or before the completion of the enforcement of
any other remedy under this Indenture, the Trustee, with the consent of the
holders of at least two-thirds in aggregate principal amount of the Bonds
outstanding, or with the consent of the holders of 100% in aggregate principal
amount of the Bonds outstanding if any suit, action, proceeding or other
remedy was filed or taken following a default in payment of principal of,
interest or other amounts payable under the Bonds (except in either case that
Bonds held by the Company or its Subsidiaries or any nominee of the Company or
any Subsidiary shall not be deemed outstanding for this purpose) , shall be
permitted to discontinue such suit, action, proceeding, or enforcement of any
remedy if in its opinion any default forming the basis of such suit, action,
proceeding or enforcement of any remedy shall have been remedied.
Section 814. Remedies Herein Additional to Remedies in Agreement.
The remedies conferred in this Article shall be in addition to all remedies
provided for in the Agreement, which remedies are hereby incorporated herein
by reference.
(End of Article VIII)
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ARTICLE IX
Concerning the Trustee
Section 901. Acceptance of Trusts. The Trustee hereby represents
and warrants to the Issuer (for the benefit of the Company and the Bondholders
as well as the Issuer) that it is a national banking association duly
organized and existing under the laws of the United States and that it is duly —
authorized under such laws and the laws of the State of North Carolina to
accept and execute trusts of the character herein set out. The Trustee
accepts and agrees to execute the trusts imposed upon it by this Indenture,
but only upon the terms and conditions set forth in this Article and subject
to the provisions of this Indenture, including the following express terms and
conditions, to all of which the parties hereto and the holders of the Bonds
agree:
(a) Until the occurrence of an event of default within the purview
of Section 801 hereof,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, the Mortgage
and the Arbitrage Agreement, and no implied covenants or obligations
shall be read into this Indenture, the Mortgage or the Arbitrage
Agreement against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, the Mortgage or the Arbitrage Agreement; but in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, as
the case may be, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to requirements of this
Indenture, the Mortgage or the Arbitrage Agreement.
(b) In case an event of default within the purview of Section 801
hereof has occurred, 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.
(c) No provisions of this Indenture shall be construed to relieve
the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except
that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section 901;
,
- 40 -
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the
Trustee unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts; and
(3) -the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Issuer or the Company under the Arbitrage
Agreement, and otherwise, in good faith in accordance with the
direction of the holders of the Bonds relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee, including without limitation Sections
903 and 904 hereof, shall be subject to the provisions of this Section 901.
The Trustee also accepts, and agrees to do and perform, the duties
and obligations imposed upon it by and under the Agreement, the Mortgage and
the Arbitrage Agreement, but only upon the terms and conditions set forth in
the Agreement, the Mortgage, the Arbitrage Agreement and this Indenture.
Section 902. Trustee to Give Notice of Defaults. (a) Within 30 days
after the Trustee becomes aware, by notice or otherwise, of the occurrence of
any event of default hereunder, the Trustee shall give to each Bondholder
written notice of all defaults known to it. For the purpose of this Section
902 only, the term "default" means any event which is, or after notice or
lapse of time or both would become, an event of default under Section 801
hereof.
(b) Promptly upon receipt of notice of the occurrence of an Event of
Taxability, the Trustee shall give notice thereof to the Company and to
all holders and former holders.
Section 903. Trustee Entitled to Indemnity. The Trustee shall be
under no obligation to institute any suit, or to take any remedial proceeding
under this Indenture, under the Guaranty, the Mortgage or under the Agreement,
or to enter any appearance in or in any way defend against any suit, in which
it may be made a defendant, or to take any steps in the execution of the
trusts hereby created or in the enforcement of any rights and powers
hereunder, under the Guaranty, the Mortgage or under the Agreement, until it
shall be indemnified to its satisfaction against any and all costs and
expenses, outlays and counsel fees and other reasonable disbursements, and
against all liability; the Trustee may, nevertheless, begin suit, or appear in
and defend suit, or do anything else in its judgment proper to be done by it
as such Trustee, without indemnity, and in such case the Issuer shall
reimburse the Trustee, but solely from funds available therefor under the
Agreement, the Mortgage or the Guaranty, for all costs and expenses, outlays
and counsel fees and other reasonable disbursements properly incurred in
- 41 -
connection therewith. If the Issuer shall fail to make reimbursement, the
Trustee may reimburse itself from any moneys in its possession under the
provisions of this Indenture and shall be entitled to a preference over the
Bonds.
Section 904. Trustee Not Responsible for Insurance, Taxes, Execution
of Indenture, Acts of the Issuer or Application of Moneys Applied in
Accordance with this Indenture. The Trustee shall not be under any obligation —
to effect or maintain insurance or to renew any policies of insurance or to
inquire as to the sufficiency of any policies of insurance carried by the
Company, or to report, or make or file claims or proof of loss for, any loss
or damage insured against or which may occur, or to keep itself informed or
advised as to the payment of any taxes or assessments, or to require any such
payment to be made. The Trustee shall have no responsibility in respect of the
validity, sufficiency, due execution or acknowledgment of this Indenture or
the validity or sufficiency of the security provided thereunder or in respect
of the validity of the Bonds or the due execution or issuance thereof. The
Trustee shall not be under any obligation to see that any duties herein
imposed upon any party other than itself, or any covenants herein contained on
the part of any party other than itself to be performed, shall be done or
performed, and the Trustee shall be under no obligation for failure to see
that any such duties or covenants are so done or performed.
The Trustee shall not be liable or responsible because of the failure
of the Issuer or of any of its officers, employees or agents to perform any
act herein required of the Issuer or because of the loss of any moneys arising
through the insolvency or the act or default or omission of any other
depositary in which such moneys shall have been deposited under the provisions
of this Indenture. The Trustee shall not be responsible for the application of
any of the proceeds of the Bonds or any other moneys deposited with it and
paid out, withdrawn or transferred hereunder if such application, payment,
withdrawal or transfer shall be made in accordance with the provisions of this
Indenture.
The immunities and exemptions from liability of the Trustee hereunder
shall extend to its directors, officers, employees and agents.
Section 905. Compensation. Subject to the provisions of any
contract relating to the compensation of the Trustee, the Issuer shall cause
the Company to pay to the Trustee its reasonable fees and charges in
accordance with Section 4.2(b) of the Agreement. If the Company shall fail to
make any payment required by this Section 905, the Trustee may, but shall be
under no obligation to, make such payment from any moneys in its possession
under the provisions of this Indenture and shall be entitled to a preference
therefor over the Bonds hereunder.
Section 906. Trustee to Preserve Records. All records and files
pertaining to the Project in the custody of the Trustee shall be open at all
reasonable times to the inspection of the Issuer, the Bondholders and the
Company and their agents and representatives.
- 42 -
Section 907. Trustee May be Bondholder. The institution acting as
Trustee under this indenture, and its directors, officers, employees or
agents, may in good faith buy, sell , own, hold and deal in the Bonds issued
under and secured by this Indenture, and may join in the capacity of a
Bondholder-in any action which any Bondholder may be entitled to take with
like effect as if such institution were not the Trustee under this Indenture.
Section 908. No Trustee Responsibility for Recording or Filing. The -
Trustee shall not be under any obligation to see to the recording or filing of
this Indenture, the Mortgage, the Agreement, any financing statements or any
other instrument or otherwise to the giving to any person of notice of the
provisions hereof or thereof.
Section 909. Trustee May Rely on Certificates. Subject to the
provisions of Section 901(a) (2) hereof, the Trustee shall be protected and
shall incur no liability in acting or proceeding, or in not acting or not
proceeding, in good faith, reasonably and in accordance with the terms of this
Indenture, upon any resolution, order, notice, request, consent, waiver,
certificate, statement, affidavit, requisition, bond or other paper or
document which it shall in good faith reasonably believe to be genuine and to
have been adopted or signed by the proper board or person or to have been
prepared and furnished pursuant to any of the provisions of the Agreement, the
Guaranty or this Indenture, or upon the written opinion of any attorney,
engineer, accountant or other expert believed by it to be qualified in
relation to the subject matter, and the Trustee shall not be under any duty to
make any investigation or inquiry as to any statements contained or matters
referred to in any such instrument.
Section 910. Qualification of the Trustee. There shall at all times
be a trustee hereunder which shall be an association or a corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or state authority. If such association
or corporation publishes reports of condition at the least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 910, the combined capital and
surplus of such association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 910, it shall resign immediately in the
manner and with the effect specified in Section 911 hereof.
Section 911. Resignation and Removal of Trustee. (a) No resignation
or removal of the Trustee and no appointment of a successor Trustee pursuant
to this Article shall become effective until the acceptance of appointment by
the successor Trustee under Section 912 hereof.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer and the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
- 43 -
after the giving of such notice of resignation, the retiring Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by an instrument or
instruments in writing to the Trustee, with copies to the Issuer and the
Company, signed by the Majority Bondholders or by their attorneys, legal
representatives or agents and delivered to the Trustee, the Issuer and the
Company (such instruments to be effective only when received by the Trustee) .
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 910 hereof,
and shall fail to resign after written request therefor by the Majority
Bondholders, or
(2) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may request that the Issuer remove the
Trustee, and upon receipt of such request the Issuer shall remove the Trustee,
or (ii) any Bondholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company shall nominate a successor, and the Issuer shall appoint such
nominee as successor. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by act of the Majority Bondholders delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall , forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Issuer and approved by the Company. If no
successor Trustee shall have been so appointed by the Issuer and approved by
the Company or the Majority Bondholders and accepted appointment in the manner
hereinafter provided, any Bondholder, if he has been a bona fide holder of a
Bond for at least six months, may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first class mail , postage prepaid, to the
Bondholders of Record at their addresses as shown on the registration book of
the Bond Registrar. Each notice shall include the name and address of the
principal corporate trust office of the successor Trustee.
Section 912. Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor, and also
- 44 -
to the Issuer and the Company, an instrument in writing accepting such
appointment hereunder, and thereupon such successor Trustee without any
further act, shall become fully vested with all the rights, immunities, powers
and trusts, and subject to all the duties and obligations, of its
predecessors; but such predecessor shall , nevertheless, on the written request
of its successor or of the Issuer and upon payment of the expenses, charges
and other disbursements of such predecessor which are payable pursuant to the
provisions of Section 905 hereof, execute and deliver an instrument —
transferring to such successor Trustee all the rights, immunities, powers and
trusts of such predecessor hereunder and under the Mortgage; and every
predecessor Trustee shall deliver all property and moneys held by it hereunder
to its successor, subject, nevertheless, to its preference, if any, provided
for in Sections 903 and 905 hereof. Should any instrument in writing from the
Issuer be required by any successor Trustee for more fully and certainly
vesting in such Trustee the rights, immunities, powers and trusts hereby
vested or intended to be vested in the predecessor Trustee any such instrument
in writing shall and will , on request, be executed, acknowledged and delivered
by the Issuer.
Notwithstanding any of the foregoing provisions of this Article, any
bank or trust company having power to perform the duties and execute the
trusts of this Indenture and otherwise qualified to act as Trustee hereunder
with or into which the bank or trust company acting as Trustee, may be merged
or consolidated, or to which the assets and business of such bank or trust
company may be sold, shall be deemed the successor of the Trustee.
Section 913. Trust Estate May be Vested in Co-Trustee. It is the
purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the laws of the State of Illinois)
denying or restricting the right of certain banking corporations or
associations to transact business as trustee as contemplated herein in such
jurisdiction. It is recognized that in case of litigation under this Indenture
or the Mortgage and in particular in case of the enforcement of the security
interest contained in this Indenture or the Mortgage upon the occurrence of an
event of default, it may be necessary that the Trustee appoint an additional
individual or institution as a separate Trustee or Co-Trustee which such
Trustee or Co-Trustee shall be satisfactory to the Company. The following
provisions of this Section 913 are adapted to these ends.
In the event of the incapacity or lack of authority of the Trustee,
by reason of any present or future law of any jurisdiction, to exercise any of
the rights, powers and trusts granted herein or in the Mortgage to the Trustee
or to hold title to the Trust Estate or to take any other action which may be
necessary or desirable in connection therewith, each and every remedy, power,
right, claim, demand, cause of action, immunity, estate, title, interest and
lien expressed or intended by this Indenture or in the Mortgage to be
exercised by or vested in or conveyed to the Trustee with respect thereto
shall be exercisable by and vest in such separate Trustee or Co-Trustee but
only to the extent necessary to enable the separate Trustee or Co-Trustee to
exercise such rights, powers and trusts, and every covenant and obligation
- 45 -
necessary to the exercise thereof by such separate Trustee or Co-Trustee shall
run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Issuer
be required by the separate Trustee or Co-Trustee so appointed by the Trustee
in order to more fully and certainly vest in and confirm to him or it such properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments shall , on request, be executed, _
acknowledged and delivered by the Issuer. In case any separate Trustee or
Co-Trustee or a successor to either, shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of such separate Trustee or Co-Trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new Trustee or successor to such separate Trustee or
Co-Trustee.
Section 914. Trustee Not Responsible for Recitals. The recitals,
statements and representations contained herein and in the Bonds shall not be
taken and construed as made by or on the part of the Trustee, and the Trustee
shall not be under any responsibility for the correctness of the same.
(End of Article IX)
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ARTICLE X
Execution of Instruments by Bondholders
and Proof of Ownership of Bonds
Section 1001. Execution of Instruments by Bondholders and Proof of
Ownership of Bonds. Any request, direction, consent or other instrument in
writing required or permitted by this Indenture to be signed or executed by the Bondholders may be signed or executed by such Bondholders or their
attorneys or legal representatives. Proof of the execution of any such
instrument and of the ownership of the Bonds shall be sufficient for any
purpose of this Indenture and shall be conclusive in favor of the Trustee with
regard to any action taken by it under such instrument if made in the
following manner:
The fact and date of the execution by any person of any such
instrument may be proved by the verification of any officer in any
jurisdiction who, by the laws thereof, has power to take affidavits within
such jurisdiction, to the effect that such instrument was subscribed and
sworn to before him, or by an affidavit of a witness to such execution,
and where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, such verification or affidavit shall also constitute
sufficient proof of his authority.
Nothing contained in this Section 1001 shall be construed as limiting
the Trustee to such proof, it being intended that the Trustee may accept any
other evidence of the matters herein stated which may be sufficient. Any
request or consent of the holder of a Bond shall bind every future holder of
such Bond or any Bond issued in place thereof in respect of anything done by
the Trustee in pursuance of such request or consent.
Notwithstanding any of the foregoing provisions of this Section 1001,
the Trustee shall not be required to recognize any person as a holder of the
Bond or to take any action at his request unless such Bond shall be deposited
with it.
Section 1002. Preservation of Information. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of the Bondholders received by the Trustee in its capacity as Bond
Registrar.
(End of Article X)
- 47 -
ARTICLE XI
Supplements and Amendments to Indenture
Section 1101. Supplements and Amendments Not Requiring Bondholder
Consent. The Issuer and the Trustee may, without the consent or approval of
the Bondholders, enter into supplements and amendments to this Indenture
(which supplements and amendments shall thereafter form a part hereof) , for
any of the following purposes:
(a) to cure any ambiguity, formal , defect, omission or inconsistent
provision in this Indenture or in any supplement or amendment to this
Indenture (provided that such action shall not adversely affect the
interests of the Bondholders) , or
(b) to grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers, authority or security
that may lawfully be granted to or conferred upon the Bondholders or the
Trustee, or
(c) to subject to the lien and pledge of this Indenture additional
payments, revenues, properties or collateral , or
(d) to modify, amend or supplement this Indenture or any supplement
or amendment hereto in such manner as to permit the qualification hereof
and thereof under the Trust Indenture Act of 1939, as amended, 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 supplement or amendment hereto such other terms, conditions and
provisions as may be permitted by said Trust Indenture Act of 1939, as
amended, or similar Federal statute or securities laws of any of the
states of the United States of America, and
(e) to make any other change which, in the judgment of the Trustee,
is not to the prejudice of the Trustee or the Bondholders.
At least 30 days prior to the execution of any such supplement or amendment to
this Indenture, the Trustee shall cause a notice of each Bondholder of Record
at its address as shown on the books of the Bond Registrar. Such notice shall
briefly set forth the nature of the proposed supplement or amendment and shall
state that copies thereof are on file at the principal corporate trust office
of the Trustee for inspection by all Bondholders. A failure on the part of
the Trustee to mail the notice required by this Section 1101 shall not affect
the validity of such supplement or amendment.
Section 1102. Supplements and Amendments Reguiring Bondholder
Consent. With the consent of the holders of at least two-thirds of the
aggregate outstanding principal amount of the Bonds (except, that Bonds held
by the Company or its Subsidiaries or any nominee of the Company or any
Subsidiary shall not be deemed outstanding for this purpose) , the Issuer and
- 48 -
the Trustee may, from time to time and at any time, enter into supplements and
amendments to this Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplement or amendment to this Indenture or of modifying in any
manner the -rights of the holders of the Bonds; provided, however, that no
supplement or amendment to this Indenture which extends the maturity date or
any mandatory sinking fund redemption date of the Bonds, changes the terms of -
payment of the Bonds, or alters the rate of interest payable thereunder or the —
manner or method of amending or supplementing this Indenture shall be made
without the consent of all Bondholders. Nothing herein contained, however,
shall be construed as making necessary the approval by the Bondholders of the
execution of any supplement or amendment to this Indenture as authorized in
Section 1101 hereof.
It shall not be necessary for the consent of the holders of the Bonds
under this Section 1102 to approve the particular form of any proposed
supplement or amendment, but it shall be sufficient if such consent shall
approve the substance thereof.
If at any time the Issuer shall request the Trustee to enter into any
supplement or amendment to this Indenture for any of the purposes of this
Section 1102, the Trustee shall , at the expense of the Company, cause notice
of the proposed execution of such supplement or amendment to be mailed,
postage prepaid, to the Bondholders of Record at their addresses as shown on
the books of the Bond Registrar. Such notice shall briefly set forth the
nature of the proposed supplement or amendment and shall state that copies
thereof are on file at the principal corporate trust office of the Trustee for
inspection by the Bondholders. The Trustee shall not, however, be subject to
any liability to the Bondholders by reason of its failure to mail the notice
required by this Section 1102, and any such failure shall not affect the
validity of such supplement or amendment when consented to as provided in this
Section 1102.
Whenever, at any time within 90 days after the date of the mailing of
such notice, the Issuer shall deliver to the Trustee an instrument or
instruments in writing purporting to be executed by the requisite number of
Bondholders, which instrument or instruments shall refer to the proposed
supplement or amendment described in such notice and shall specifically
consent to and approve the execution thereof in substantially the form of the
copy thereof referred to in such notice, thereupon, but not otherwise, the
Trustee may execute such supplement or amendment in substantially such form,
without liability or responsibility to the holder of any Bond.
If the required percentage of holders of the Bonds at the time of the
execution of such supplemental indenture shall have consented to and approved
the execution thereof as herein provided, the holders of the Bonds shall not
have any right to object to the execution of such supplement or amendment, or
to object to any of the terms and provisions contained therein or the
operation thereof or in any manner to question the propriety of the execution
thereof, or to enjoin or restrain the Trustee or the Issuer from executing the
same or from taking any action pursuant to the provisions thereof.
- 49 -
Section 1103. Supplements and Amendments Deemed Part of Indenture.
Any supplement or amendment to this Indenture executed in accordance with the
provisions of this Article shall thereafter form a part of this Indenture, and
all of the terms and conditions contained in any such supplement or amendment
as to any Rrovision authorized to be contained therein shall be and shall be
deemed to be a part of the terms and conditions of this Indenture for any and
all purposes. Upon the execution of any supplement or amendment to this
Indenture pursuant to the provisions of this Article, this Indenture shall be
and be deemed to be modified and amended in accordance therewith, and the
respective rights, duties and obligations under this Indenture of the Issuer,
the Trustee and the holders of the Bonds shall thereafter be determined,
exercised and enforced hereunder, subject in all respects to such
modifications and amendments.
Section 1104. Discretion of Trustee and Issuer in Entering into
Supplements and Amendments. In each and every case provided for in this
Article, the Trustee and Issuer shall be entitled to exercise its discretion
in determining whether or not to execute any proposed supplement or amendment,
if the rights, obligations and interests of the Trustee or Issuer would be
thereby affected, and the Trustee and Issuer shall not be under any
responsibility or liability to the Company or to the Bondholders or to anyone
whomsoever for the refusal of either or both of them in good faith to enter
into any such supplement or amendment if such supplement or amendment is
deemed by either or both of them to be contrary to the provisions of this
Article. The Trustee and the Issuer shall be entitled to receive, and each
shall be fully protected in relying upon, an opinion of any Counsel approved
by it, as conclusive evidence that any such proposed supplement or amendment
does or does not comply with the provisions of this Indenture, and that it is
or is not proper for it, under the provisions of this Article, to join in the
execution of such supplement or amendment.
Section 1105. Consent of Company Required. Anything herein to the
contrary notwithstanding, any such supplement or amendment to this Indenture
shall not become effective unless and until the Company shall have consented
thereto.
(End of Article XI)
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ARTICLE XII
Supplements and Amendments to the Agreement,
the Mortgage and the Guaranty
Section 1201. Supplements and Amendments Not Requiring Bondholder
Consent. The Issuer and the Trustee or the Trustee alone in the case of the
Mortgage or Guaranty, may, from time to time and at any time, consent to such —
amendments and supplements to the Agreement (including the Note) , the Mortgage
or the Guaranty as shall not be inconsistent with the terms and provisions
thereof (which supplements and amendments shall thereafter form a part
thereof) ,
(a) to cure any ambiguity, formal defect, omission or inconsistent
provision in the Agreement, in the Mortgage or in the Guaranty or in any
supplement or amendment thereto (provided that such action shall not
adversely affect the interests of the Bondholders) , or
(b) to grant to or confer upon the Trustee, for the benefit of the
Bondholders any additional rights, remedies, powers, authority or security
that may lawfully be granted to or conferred upon the Bondholders or the
Trustee, or
(c) to correct any description of, or to reflect changes in, any
properties comprising the Project or other property subject to the lien of
the Mortgage, or
(d) in connection with any other change therein which, in the
judgment of the Issuer and the Trustee, or the Trustee alone in the case
of the Mortgage or the Guaranty, shall not adversely affect the interests
of the Trustee or the owners of the Bonds.
At least 30 days prior to the execution of any supplement or amendment to the
Agreement, the Mortgage or the Guaranty for any of the purposes of this
Section 1201, the Trustee shall cause a notice of the proposed execution of
such supplement or amendment to be mailed, postage prepaid, to the Bondholders
of Record at their addresses as shown on the books of the Bond Registrar.
Such notice shall briefly set forth the nature of the proposed supplement or
amendment and shall state that copies thereof are on file at the principal
corporate trust office of the Trustee for inspection by the Bondholders. A
failure on the part of the Trustee to mail the notice required by this Section
1201 shall not affect the validity of such supplement or amendment.
Section 1202. Supplements and Amendments Requiring Bondholder
Consent. Except for supplements or amendments provided for in Section 1201,
the Issuer and the Trustee shall not execute and the Trustee shall not consent
to any supplement or amendment to the Agreement and the Trustee shall not
execute or consent to any supplement or amendment to the Mortgage or the
Guaranty unless notice of the proposed execution of such supplement or
amendment shall have been given and the holders of at least two-thirds of the
aggregate outstanding principal amount of the Bonds (except that Bonds held by
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the Company or its Subsidiaries or any nominee of the Company or any
Subsidiary shall not be deemed outstanding for this purpose) shall have
consented to and approved the execution thereof, all as provided for in
Section 1102 hereof in the case of supplements and amendments to the
Indenture; _provided that the Trustee shall be entitled to exercise its
discretion in consenting or not consenting to any such supplement or amendment
in the same manner as provided for in Section 1104 hereof in the case of
supplements and amendments to the Indenture. —
(End of Article XII)
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ARTICLE XIII
Defeasance
Section 1301. Defeasance of Bonds. (a) If the Issuer shall pay or
cause to be paid the principal of, interest on, and all other amounts payable
under the Bonds, together with all other sums payable hereunder and thereunder
by the Issuer, then and in that case the right, title -and interest of the -
Trustee in and to the estate pledged and assigned to it under this Indenture
shall cease, terminate and become void, and such Bonds shall cease to be
entitled to any lien, benefit or security under this Indenture, excepting the
right to receive certain payments upon a Determination of Taxability pursuant
to Section 301(c) hereof. In such event, the Trustee shall pay to the Company
any surplus in the Bond Fund and any balance remaining in the Construction
Fund, shall transfer and assign to the Company all property then held under
this Indenture by the Trustee (other than under Section 506 hereof) and shall
execute such documents as may be reasonably required by the Issuer or the
Company to evidence said transfer and assignment.
(b) If the Issuer shall pay or cause to be paid to the holders of
the Bonds the principal of, interest on, and each other amount payable
under the Bonds which is and shall thereafter become due and payable upon
the Bonds, the Bonds shall cease to be entitled to any lien, benefit or
security under this Indenture, excepting the right to receive certain
payments upon a Determination of Taxability pursuant to Section 301(c)
hereof.
(End of Article XIII)
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ARTICLE XIU
Miscellaneous Provisions
Section 1401. Covenants of Issuer Bind its Successors. In the event
of the merger or dissolution of the Issuer, all of the covenants,
stipulations, obligations and agreements contained in this Indenture by or in
behalf of or for the benefit of the Issuer shall bind or inure to the benefit —
of the successor or successors of the Issuer from time to time and any
municipality, political subdivision, board, commission, authority, agency or
instrumentality to whom or to which any power or duty affecting such
covenants, stipulations, obligations and agreements shall be transferred by or
in accordance with law, and the word "Issuer" as used in this Indenture shall
include such successor or successors.
Section 1402. Notices. Any notice, demand, direction, request or
other instrument authorized or required by this Indenture to be given to or
filed with the Issuer, the Trustee, the Company or the Bondholders shall be in
writing and shall be deemed given or filed for all purposes of this Indenture
when delivered by hand delivery or on the third day following the day on which
the same has been mailed, by registered or certified mail , postage prepaid,
addressed as follows:
If to the Issuer, at 150 Dexter Court, Elgin, Illinois 60120-5555,
Attention: City Clerk;
If to the Trustee, First Union National Bank, First Union Plaza
(CMG4/M-11) , Charlotte, North Carolina 28288, Telex Number: 572422 (for
Telex notices only) , Attention: Corporate Trust Department, or if to any
successor Trustee, addressed to it at its principal corporate trust
office; if to the Company, at C/0 John 0. Butler Company, 4635 West Foster
Avenue, Chicago, Illinois 60630, Attention: Jordan H. Krugel ; and
If to the Bondholders, at the addresses of record shown for each of
them on the registration books maintained by the Bond Registrar pursuant
to Section 204 of the Indenture;
and if sent by telegraph, telegram report of delivery requested, addressed as
above, at the time and date appearing on the report of delivery; and if sent
by telex or telecopy, properly addressed, at the time of transmission
thereof. A duplicate copy of each notice or other communication given
hereunder by either the Issuer or Trustee to the other shall also be given to
the Company.
All documents received by the Trustee under the provisions of this
Indenture, or photographic copies thereof, shall be retained in its possession
until this Indenture shall be released in accordance with the provisions of
the Indenture, subject at all reasonable times to the inspection of the Issuer
and the Bondholders and the agents and representatives thereof.
The Issuer, the Trustee and the Company may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
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Section 1403. Trustee as Paying Agent and Bond Registrar. The
Trustee is hereby designated and agrees to act as paying agent and Bond
Registrar for and in respect of the Bonds. The duties of the Trustee as Bond
Registrar are as set forth in Section 204 hereof.
Section 1404. Rights Under Indenture. Except as herein otherwise
expressly provided, nothing in this Indenture expressed or implied is intended
or shall be construed to confer upon any person, firm or corporation other than the parties hereto, the Company and the holders of the Bonds issued under
and secured by this Indenture any right, remedy or claim, legal or equitable,
under or by reason of this Indenture or any provision hereof, this Indenture
and all its provisions being intended to be and being for the sole and
exclusive benefit of the parties hereto, the Company and the holders from time
to time of the Bonds issued hereunder.
Section 1405. Form of Certificates and Opinions. Except as
otherwise provided in this Indenture, any request, notice, certificate or
other instrument from the Issuer or the Company to the Trustee shall be deemed
to have been signed by the proper party or parties if signed by the Mayor or
City Clerk of the Issuer or the Authorized Company Representative,
respectively, and the Trustee may accept and rely upon a certificate signed by
the Mayor or the City Clerk of the Issuer as to any action taken by the Issuer
and by the Authorized Company Representative as to any action taken by the
Company.
Section 1406. Severability. In case any one or more of the
provisions of this Indenture or of the Bonds issued hereunder shall for any
reason be held to be illegal or invalid, such illegality or invalidity shall
not affect any other provisions of this Indenture or of the Bonds, but this
Indenture and the Bonds shall be construed and enforced as if such illegal or
invalid provision had not been contained therein; provided, however, that if
any provision of the Bonds or this Indenture relating to the source of funds
for the payment of principal of, interest on, or other amounts payable under
the Bonds be held illegal or invalid the Issuer shall have no liability to
make any payments except from the funds and receipts derived under the
Agreement and the Note.
Section 1407. Covenants of Issuer Not Covenants of Officials
Individually. All covenants, stipulations, obligations and agreements of the
Issuer contained in this Indenture shall be deemed to be covenants,
stipulations, obligations and agreements of the Issuer to the full extent and
permitted by the Constitution and laws of Illinois. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future officer, agent
or employee of the Issuer in his individual capacity, and neither the Mayor
nor the City Clerk of the Issuer nor any other officer of the Issuer shall be
liable personally on the Bonds or be subject to any personal liability or
accountability by reason of the issuance thereof. No officer, agent or
employee of the Issuer shall incur any personal liability in acting or
proceeding or in not acting or not proceeding, in good faith, reasonably and
in accordance with the terms of this Indenture.
Section 1408. Illinois Law Governs. This Indenture shall be
governed by and construed in accordance with the laws of the State of Illinois.
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Section 1409. Payments Due on Sundays and Holidays. In any case
where the date of maturity of interest on, principal of, or any other amount
payable under the Bonds or the date fixed for redemption of the Bonds shall be
a Sunday or in the city wherein the principal office of the Trustee is
located, a -legal holiday or a day on which banking institutions are authorized
by law to close, then payment of interest, principal or such other amount need
not be made-on such date but shall be made on the next succeeding business day
with the same force and effect as if made on the date of maturity or the date -
fixed for redemption, provided that interest on such payment shall accrue for
the period of any such extension.
Section 1410. Execution in Counterparts. This Indenture may be
executed in multiple counterparts, each of which shall be regarded for all
purposes as an original , and such counterparts shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, City of Elgin, Cook and Kane Counties, Illinois
has caused this Indenture to be executed in its name and on its behalf by its
Mayor and the official seal of the Issuer to be impressed hereon and attested
by its City Clerk; and the Trustee has caused this Indenture to be executed in
its name and on its behalf by an authorized officer, and its corporate seal to
be impressed hereon and attested by a responsible officer, all as of the date
and year first above written.
CITY OF ELGIN, COOK AND KANE COUNTIES, ILLINOIS
By:
Mayor
[Seal ]
ATTEST:
City Clerk
FIRST UNION NATIONAL BANK,
as Trustee
By:
Authorized Officer
[Seal ]
Attest:
Assistant Secretary
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EXHIBIT A
No.
REQUISITION AND CERTIFICATE
Date:
FIRST UNION NATIONAL BANK
First Union Plaza (CMG4/M-11)
Charlotte, North Carolina 28288
Attention: Corporate Trust Department
Sirs:
On behalf of Butler PharmaPac, Inc. (the "Company") , I hereby requisition,
from the Construction Fund into which have been deposited the proceeds of the
sale of the Economic Development Revenue Bonds (Butler PharmaPac, Inc.
Project) Series 1985 (the "Bonds") issued by City of Elgin, Cook and Kane
Counties, Illinois (the "Issuer") which Fund is held by you in accordance with
the Trust Indenture dated as of December 1, 1985 (the "Indenture") , from the
Issuer to you the sum of $ to be paid
to for
Invoices documenting such amounts are attached hereto. All terms used herein
shall have the meanings set forth in the Indenture and the Loan Agreement
dated as of December 1, 1985 (the "Agreement") between the Issuer and the
Company.
I hereby certify that (a) the obligation to make such payment was
incurred by the Company in connection with the acquisition, construction and
installation of the Project, is a proper charge against the Construction Fund,
and has not been the basis for any prior requisition which has been paid; (b)
to the best of the Company' s knowledge, neither the Issuer nor the Company has
received written notice of any lien, right to lien or attachment upon, or
claim affecting the right of such payee to receive payment of, any of the
money payable under this requisition to any of the persons, firms or
corporations named herein, or if any notice of any such lien, attachment or
claim has been received such lien, attachment or claim has been released or
discharged or will be released or discharged upon payment of this requisition;
(c) this requisition contains no items representing payment on account of any
retained percentages which the Company is entitled to retain at this date; (d)
substantially all of the proceeds of the Bonds (to and including this
disbursement) have been or are being used to provide for Qualified Costs of
the Project (as defined in the Agreement) ; (e) all limitations of the Project
Certificate have been complied with; and (f) no Event of Default, or event
which with notice or lapse of time, or both, would constitute an Event of
Default, has occurred which has not been waived.
[The following paragraph is to be completed when any requisition and
certificate includes any item for payment for labor or to contractors,
builders or materialmen. ]
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I hereby certify that insofar as the amount covered by the above
requisition includes payments to be made for labor or to contractors, builders
or materialmen, including [description of materials or supplies] , in
connection with the acquisition, construction and installation of the Project,
(i) all obligations to make such payments have been properly incurred, (ii)
any such labor was actually performed and any such materials or supplies were
actually furnished or installed in or about the Project and are a proper
charge against the Construction Fund, and (iii) such materials or supplies —
either are not subject to any lien or security interest or, if the same are so
subject, such lien or security interest will be released or discharged upon
payment of this requisition.
Authorized Company Representative
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December 19, 1985
MEMORANDUM
TO: Mayor and Members of the City Council
FROM: James J. Cook, City Manager
SUBJECT: Ordinance Providing for Issuance of Industrial Revenue Bonds--Butler
PharmaPac, Inc. Project
PURPOSE: Attached are an ordinance and transaction documents for the sale of
$2,500,000 principal amount of industrial revenue bonds.
BACKGROUND: The Council previously authorized a memorandum of agreement for the
bonds and conducted the required public hearings.
FINANCIAL IMPACT: As the bonds are payable solely out of the project revenues and
all expenses are borne by the applicant, there is no direct financial impact to the City.
RECOMMENDATION: Passage of the ordinance is recommended.
Manager