Exhibit 10.12


 


CONFIDENTIAL


 




 





SOUTH
CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY


 


and


 


MARK
TWAIN BANK,


as
Trustee


 










 


TRUST
INDENTURE


 


Dated
as of September 1, 1994


 










 


Relating
to


 


$7,700,000


Variable
Rate Demand


Industrial
Development Revenue Bonds


(Roller
Bearing Company of America, Inc. Project)


Series 1994A




 





 





















 


 


TABLE
OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS; RULES
  OF CONSTRUCTION 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 101.

  	
  Definitions of Words and Terms 

  	
   

  
	
  Section 102.

  	
  Rules of Interpretation 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE BONDS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 201.

  	
  Authorization, Issuance and Terms of
  Bonds 

  	
   

  
	
  Section 202.

  	
  Nature of Obligations 

  	
   

  
	
  Section 203.

  	
  Interest Rates and Interest Payment
  Provisions 

  	
   

  
	
  Section 204.

  	
  Changes in Interest Modes 

  	
   

  
	
  Section 205.

  	
  Execution, Authentication and Delivery
  of Bonds 

  	
   

  
	
  Section 206.

  	
  Registration, Transfer and Exchange of
  Bonds 

  	
   

  
	
  Section 207.

  	
  Temporary Bonds 

  	
   

  
	
  Section 208.

  	
  Mutilated, Lost, Stolen, Destroyed or
  Undelivered Bonds .

  	
   

  
	
  Section 209.

  	
  Cancellation and Destruction of Bonds
  Upon Payment 

  	
   

  
	
  Section 210.

  	
  Limitation on Transfer and Exchange 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  TENDER AND PURCHASE OF
  BONDS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 301.

  	
  Optional Tender of Bonds During Weekly
  Mode or Monthly Mode 

  	
   

  
	
  Section 302.

  	
  Mandatory Tender of Bonds 

  	
   

  
	
  Section 303.

  	
  Irrevocability of Elections; Return of
  Improperly Completed Documents 

  	
   

  
	
  Section 304.

  	
  Notice of Principal Amount of Bonds
  Tendered 

  	
   

  
	
  Section 305.

  	
  Remarketing of Tendered Bonds 

  	
   

  
	
  Section 306.

  	
  Notice
  of Principal Amount of Bonds Remarketed 

  	
   

  
	
  Section 307.

  	
  Purchase
  of Tendered Bonds 

  	
   

  
	
  Section 308.

  	
  Remarketing
  of Pledged Bonds 

  	
   

  
	
  Section 309.

  	
  Purchase
  Fund 

  	
   

  
	
  Section 310.

  	
  No
  Purchases or Sales After Certain Defaults 

  	
   

  
	
  Section 311.

  	
  Remarketing
  Agent 

  	
   

  
	
  Section 312.

  	
  Qualifications
  of Remarketing Agent 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REDEMPTION OF BONDS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 401.

  	
  Optional
  Redemption 

  	
   

  
	
  Section 402.

  	
  Mandatory
  and Extraordinary Redemption 

  	
   

  
	
  Section 403.

  	
  Selection
  of Bonds to be Redeemed 

  	
   

  
	
  Section 404.

  	
  Notice
  of Redemption of Bonds in Weekly or Monthly Mode .

  	
   

  
	
  Section 405.

  	
  Notice
  of Redemption of Bonds in Semiannual, Annual or Multiyear Mode 36

  	
   

  
	
  Section 406.

  	
  Effect
  of Call for Redemption 

  	
   

  



 


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  ARTICLE V

  	
  REVENUES AND FUNDS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 501.

  	
  Creation
  of Funds and Accounts 

  	
   

  
	
  Section 502.

  	
  Initial
  Deposits 

  	
   

  
	
  Section 503.

  	
  Project
  Fund 

  	
   

  
	
  Section 504.

  	
  Costs
  of Issuance Fund 

  	
   

  
	
  Section 505.

  	
  Revenue
  Fund 

  	
   

  
	
  Section 506.

  	
  Debt
  Service Fund 

  	
   

  
	
  Section 507.

  	
  General
  Fund 

  	
   

  
	
  Section 508.

  	
  Payments
  Under Credit Facility 

  	
   

  
	
  Section 509.

  	
  Deposits
  into and Application of Moneys in the Rebate Fund 

  	
   

  
	
  Section 510.

  	
  Final
  Balances 

  	
   

  
	
  Section 511.

  	
  Non-Presentment
  of Bonds 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  DEPOSITARIES
  OF MONEYS, SECURITY FOR DEPOSITS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Moneys
  to be Held in Trust 

  	
   

  
	
  Section 602.

  	
  Investment
  of Moneys 

  	
   

  
	
  Section 603.

  	
  Manner
  of Investment 

  	
   

  
	
  Section 604.

  	
  Record
  Keeping 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  PARTICULAR
  COVENANTS AND PROVISIONS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 701.

  	
  Issuer
  to Issue Bonds and Execute Indenture 

  	
   

  
	
  Section 702.

  	
  Performance
  of Covenants 

  	
   

  
	
  Section 703.

  	
  Instruments
  of Further Assurance 

  	
   

  
	
  Section 704.

  	
  Credit
  Facility 

  	
   

  
	
  Section 705.

  	
  Enforcement
  of Credit Facility 

  	
   

  
	
  Section 706.

  	
  Alternate
  Credit Facility 

  	
   

  
	
  Section 707.

  	
  General
  Limitation on Issuer Obligations 

  	
   

  
	
  Section 708.

  	
  Recording
  and Filing 

  	
   

  
	
  Section 709.

  	
  Possession
  and Inspection of Books and Documents 

  	
   

  
	
  Section 710.

  	
  Rights
  and Duties Under Agreement and Credit Facility 

  	
   

  
	
  Section 711.

  	
  Tax
  Covenants 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  DEFAULT AND REMEDIES 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 801.

  	
  Events
  of Default 

  	
   

  
	
  Section 802.

  	
  Acceleration;
  Mandatory Purchase 

  	
   

  
	
  Section 803.

  	
  Surrender
  of Possession of Trust Estate; Rights and Duties of Trustee in Possession 

  	
   

  
	
  Section 804.

  	
  Appointment
  of Receivers in Event of Default 

  	
   

  
	
  Section 805.

  	
  Exercise
  of Remedies by the Trustee 

  	
   

  
	
  Section 806.

  	
  Limitation
  on Exercise of Remedies by Bondowners 

  	
   

  
	
  Section 807.

  	
  Right
  of Bondowners to Direct Proceedings 

  	
   

  
	
  Section 808.

  	
  Application
  of Moneys in Event of Default 

  	
   

  
	
  Section 809.

  	
  Remedies
  Cumulative 

  	
   

  
	
  Section 810.

  	
  Delay
  or Omission Not Waiver 

  	
   

  
	
  Section 811.

  	
  Effect
  of Discontinuance of Proceedings 

  	
   

  
	
  Section 812.

  	
  Waivers
  of Events of Default 

  	
   

  



 


ii





















 


	
  Section 813.

  	
  Pledged
  Bonds 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  THE
  TRUSTEE 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 901.

  	
  Acceptance
  of Trusts 

  	
   

  
	
  Section 902.

  	
  Fees,
  Charges and Expenses of the Trustee 

  	
   

  
	
  Section 903.

  	
  Notice
  to the Bondowners if Default Occurs 

  	
   

  
	
  Section 904.

  	
  Intervention
  by the Trustee 

  	
   

  
	
  Section 905.

  	
  Successor
  Trustee Upon Merger, Consolidation or Sale 

  	
   

  
	
  Section 906.

  	
  Trustee
  Required; Eligibility 

  	
   

  
	
  Section 907.

  	
  Resignation
  of Trustee 

  	
   

  
	
  Section 908.

  	
  Removal
  of Trustee 

  	
   

  
	
  Section 909.

  	
  Appointment
  of Successor Trustee 

  	
   

  
	
  Section 910.

  	
  Vesting
  of Trusts in Successor Trustee 

  	
   

  
	
  Section 911.

  	
  Trust
  Estate May be Vested in Co-Trustee 

  	
   

  
	
  Section 912.

  	
  Accounting
  

  	
   

  
	
  Section 913.

  	
  Paying
  Agents; Bond Registrar; Appointment and Acceptance of Duties; Removal 

  	
   

  
	
  Section 914.

  	
  The
  Tender Agent 

  	
   

  
	
  Section 915.

  	
  Notice
  to Rating Agency 

  	
   

  
	
  Section 916.

  	
  Right
  of Trustee to Pay Taxes and Other Charges 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  SUPPLEMENTAL INDENTURES 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1001.

  	
  Supplemental
  Indentures Not Requiring Consent of Bondowners 

  	
   

  
	
  Section 1002.

  	
  Supplemental
  Indentures Requiring Consent of Bondowners .

  	
   

  
	
  Section 1003.

  	
  Borrower’s
  Consent to Supplemental Indentures 

  	
   

  
	
  Section 1004.

  	
  Opinion
  of Bond Counsel 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  AMENDMENT OF
  AGREEMENT AND CREDIT FACILITY 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1101.

  	
  Amendments,
  Changes or Modifications to the Agreement and Credit Facility Not Requiring
  Consent of Bondowners 

  	
   

  
	
  Section 1102.

  	
  Amendments,
  Changes or Modifications to the Agreement and Credit Facility Requiring Consent
  of Bondowners 

  	
   

  
	
  Section 1103.

  	
  Opinion
  of Bond Counsel 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  SATISFACTION
  AND DISCHARGE OF INDENTURE 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1201.

  	
  Defeasance

  	
   

  
	
  Section 1202.

  	
  Satisfaction
  and Discharge of the Indenture

  	
   

  
	
  Section 1203.

  	
  When
  Refunding is Not Permitted

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1301.

  	
  Consents
  and Other Instruments by Bondowners

  	
   

  
	
  Section 1302.

  	
  Notices
  

  	
   

  
	
  Section 1303.

  	
  Limitation
  of Rights Under the Indenture

  	
   

  
	
  Section 1304.

  	
  Suspension
  of Mail Service

  	
   

  
	
  Section 1305.

  	
  Business
  Days

  	
   

  



 


iii





















 


	
  Section 1306.

  	
  Immunity
  of Officers, Employees and Members of Issuer 

  	
   

  
	
  Section 1307.

  	
  Credit
  Enhancer’s Remedial Rights 

  	
   

  
	
  Section 1308.

  	
  Severability
  

  	
   

  
	
  Section 1309.

  	
  Complete
  Agreement 

  	
   

  
	
  Section 1310.

  	
  Execution
  in Counterparts 

  	
   

  
	
  Section 1311.

  	
  Governing
  Law 

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A
  - Bond Form

  	
   

  
	
  Exhibit B - Investment
  Securities Collateral Requirement

  	
   

  
	
  Exhibit C - [Reserved.]

  	
   

  
	
  Exhibit D - Notice of
  Election to Tender/Retain Bonds

  	
   

  
	
  Exhibit E - Rate
  Adjustment Notice

  	
   

  
	
  Exhibit F - Interest
  Mode Adjustment Notice

  	
   

  
	
  Exhibit G - Notice of
  Alternate Credit Facility

  	
   

  
	
  Exhibit H - Rep0.resentation
  Letter

  	
   

  



 


iv





















 


TRUST
INDENTURE


 


THIS TRUST INDENTURE (the “Indenture”),
made and entered into as of September 1, 1994, by and between the SOUTH
CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY, a body corporate and politic and
an agency of the State of South Carolina (the “Issuer”), and Mark Twain Bank, a
Missouri banking corporation duly organized and existing and authorized to
accept and execute trusts of the character herein set out under the laws of the
State of Missouri, and having its principal corporate trust office located in
St. Louis, Missouri, as Trustee (the “Trustee”);


 


WITNESSETH:


 


WHEREAS, the Issuer acting by
and through its Board of Directors, is authorized and empowered under and
pursuant to the provisions of Tide 41, Chapter 43, Code of Laws of South
Carolina 1976, as amended (the “Act”), to acquire and cause to be acquired
properties that are projects under the Act through which the industrial,
commercial, agricultural and recreational development of the State of South
Carolina (the “State”) will be promoted and trade developed by inducing
business enterprises to locate in and remain in the State and thus provide
maximum opportunities for the creation and retention of jobs and improvement of
the standard of living of the citizens of the State; and


 


WHEREAS, the Issuer is
further authorized by Section 41A3-100 of the Act to issue revenue bonds
payable by the Issuer solely from revenues and receipts from any financing
agreement between the Issuer and any business enterprise with respect to such
project and secured by a pledge of said revenues and receipts and by an
assignment of such financing agreement; and


 


WHEREAS, pursuant to the Act,
the Authority is authorized to issue its Variable Rate Demand Industrial
Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series 1994A in the original aggregate principal amount of
$7,700,000 (the “Bonds”), for the purpose of providing funds to construct or
purchase certain buildings, fixtures, machinery and equipment (“the Project”)
to constitute an approximately 60,000 square foot expansion of an existing
facility for the manufacture of roller bearings in Darlington County, South
Carolina which is owned and operated by Roller Bearing Company of America, Inc.,
a Delaware corporation (the “Borrower”); and


 


WHEREAS, the Borrower intends
to construct and purchase the Project; and


 


WHEREAS, the Borrower has
requested that the Issuer issue the Bonds in order to finance the construction
and purchase of the Project; and


 


WHEREAS, the Board of
Directors of the Issuer passed and approved a Resolution on August 24,
1994, authorizing the Issuer to issue the Bonds pursuant to this Indenture for
the above purposes; and


 


WHEREAS, pursuant to such
Resolution, the Issuer is authorized (i) to execute and deliver this
Indenture for the purpose of issuing and securing the Bonds as hereinafter
provided, and (ii) to enter into a Loan Agreement of even date herewith
(the “Agreement”), between the Issuer and the Borrower, under which the Issuer
will loan the proceeds of the Bonds to the Borrower in accordance with the
provisions of the Agreement to finance a portion of the costs of the Project,
in consideration of payments to be made by the Borrower to the Trustee which
are to be sufficient


 





















 


to pay the principal of,
redemption premium, if any, and interest on the Bonds as the same become due;
and


 


WHEREAS, Heller Financial, Inc.,
a Delaware corporation (the “Credit Enhancer”), has agreed to execute and
deliver an irrevocable direct-pay letter of credit (the “Credit Facility”) in
order to secure the timely payment of the principal of and interest on the
Bonds; and


 


WHEREAS, all things necessary
to make the Bonds, when authenticated by the Trustee and issued as in this
Indenture provided, the valid, legal and binding obligations of the Issuer, and
to constitute this Indenture a valid, legal and binding pledge and assignment
of the property, rights, interests and revenues herein made for the security of
the payment of the principal of, redemption premium, if any, and interest on
the Bonds issued hereunder, have been done and performed, and the execution and
delivery of this Indenture and the execution and issuance of the Bonds, subject
to the terms hereof, have in all respects been duly authorized and approved by
the Issuer; and


 


WHEREAS, THE BONDS AND THE
PREMIUM, IF ANY, AND INTEREST THEREON (INCLUDING ANY AMOUNTS PAYABLE IN
CONNECTION WITH ANY PREPAYMENT OR PURCHASE OF THE BONDS) ARE LIMITED
OBLIGATIONS OF THE ISSUER; THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON
THE BONDS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PURCHASE OF THE
BONDS) ARE PAYABLE SOLELY FROM THE REVENUES OR MONEYS TO BE RECEIVED IN
CONNECTION WITH THE FINANCING OF THE PROJECT OR FROM ANY OTHER MONEYS MADE
AVAILABLE TO THE ISSUER FOR SUCH PURPOSE; NEITHER THE BONDS NOR THE INTEREST
THEREON (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PURCHASE OF THE
BONDS) SHALL EVER CONSTITUTE AN INDEBTEDNESS OR A CHARGE AGAINST THE GENERAL
CREDIT OF THE STATE, THE ISSUER, OR ANY OTHER PUBLIC BODY, OR OF THE TAXING
POWERS OF THE STATE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY
LIMITATION AND SHALL NEVER CONSTITUTE OR GIVE RISE TO ANY PECUNIARY LIABILITY
OF THE STATE, THE ISSUER, OR ANY OTHER PUBLIC BODY; THE BONDS DO NOT CONSTITUTE
AN INDEBTEDNESS TO WHICH THE FAITH OR CREDIT OF THE STATE, THE ISSUER, OR ANY
OTHER PUBLIC BODY, OR TAXING POWER OF THE STATE, IS PLEDGED;


 


NOW THEREFORE, THIS INDENTURE
WITNESSETH:


 


GRANTING
CLAUSES


 


That the Issuer, in
consideration of the premises, the acceptance by the Trustee of the trusts
hereby created, the purchase and acceptance of the Bonds by the Owners thereof,
and of other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to secure the payment of the
principal of, redemption premium, if any, and interest on the Bonds according
to their tenor and effect, to secure all obligations owed by the Borrower to
the Credit Enhancer under the Letter of Credit Agreement, and to secure the
performance and observance by the Issuer of all the covenants, agreements and
conditions herein and in the Bonds contained, does hereby transfer, pledge and
assign, without recourse, to the Trustee and its successors and assigns in
trust forever, and does hereby grant a security interest unto the Trustee and
its successors in trust and its assigns, in and to all and singular the
property described in paragraphs (a) and (b) below (said property
being herein referred to as the “Trust Estate”), to wit:


 


2





















 


(a) All right, tide and
interest of the Issuer (including, but not limited to, the right to enforce any
of the terms thereof) in, to and under all Revenues (as hereinafter defined)
derived by the Issuer under and pursuant to and subject to the provisions of
the Agreement (but excluding the Unassigned Issuer’s Rights as defined in the
Agreement and any payments made by the Borrower to meet the rebate requirements
of Section 148(f) of the Code) and the Credit Facility; and


 


(b) All other moneys and
securities from time to time held by the Trustee under the terms of this
Indenture (excluding rebatable arbitrage, whether or not held in the Rebate
Fund, and amounts held in the Purchase Fund (as hereinafter defined)), and any
and all other property (real, personal or mixed) of every kind and nature from
time to time hereafter, by delivery or by writing of any kind, pledged,
assigned or transferred as and for additional security hereunder by the Issuer,
or by anyone in its behalf or with its written consent, to the Trustee, which
is hereby authorized to receive any and all such property at any and all times
and to hold and apply the same subject to the terms hereof.


 


TO HAVE AND TO HOLD, all and
singular, the Trust Estate with all rights and privileges hereby transferred,
pledged, assigned and/or granted or agreed or intended so to be, to the Trustee
and its successors and assigns in trust forever;


 


IN TRUST NEVERTHELESS, upon
the terms and conditions herein set forth for the equal and proportionate
benefit, security and protection of all present and future Owners of the Bonds
Outstanding, without preference, priority or distinction as to participation in
the lien, benefit and protection hereof of one Bond over or from the others,
except as herein otherwise expressly provided and on a subordinate basis
thereto, to secure the obligations of the Borrower to the Credit Enhancer;


 


PROVIDED, NEVERTHELESS, and
these presents are upon the express condition, that if the Issuer or its
successors or assigns shall well and truly pay or cause to be paid the
principal of and premium, if any, on such Bonds with interest, according to the
provisions set forth in the Bonds, or shall provide for the payment or
redemption of such Bonds by depositing or causing to be deposited with the
Trustee the entire amount of funds or securities requisite for payment or
redemption thereof when and as authorized by the provisions of Article XII
hereof (it being understood that any payment with respect to the principal of
or interest on Bonds by the Borrower or any purchase of Bonds pursuant to Article III
hereof shall not be deemed payment or provision for payment of principal of or
interest on Bonds, except Bonds purchased and cancelled by the Trustee, all
such uncancelled Bonds to remain Outstanding hereunder and principal of and
interest thereon payable to the Owners thereof, whether such Owners be the
Credit Enhancer or persons to whom Bonds are remarketed), and shall also pay or
cause to be paid all other sums payable hereunder by the Issuer and if all
amounts due and owing to the Credit Enhancer under the Letter of Credit
Agreement shall have been paid in full, then these presents and the estate and
rights hereby granted shall cease, terminate and become void, and thereupon the
Trustee, on payment of its lawful charges and disbursements then unpaid, on
demand of the Issuer and upon the payment by the Issuer of the cost and
expenses thereof, shall duly execute, acknowledge and deliver to the Issuer such
instruments of satisfaction or release as may be necessary or proper to
discharge this Indenture of record, and if necessary shall grant, reassign and
deliver to the Issuer, with a copy to the Credit Enhancer and the Borrower, all
and singular the property, rights, privileges and interests by it hereby
granted, conveyed and assigned, and all substitutes therefor, or any part
thereof, not


 


3





















 


previously disposed of or
released as herein provided; otherwise this Indenture shall be and remain in
full force;


 


THIS INDENTURE FURTHER
WITNESSETH, and it is hereby expressly declared, covenanted and agreed by and
between the parties hereto, that all Bonds issued and secured hereunder are to
be issued, authenticated and delivered and that all the Trust Estate is to be
held and applied under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and the Issuer does hereby agree and covenant with the Trustee, for
the benefit of the respective Owners from time to time of the Bonds and the
Credit Enhancer, as follows:


 


ARTICLE I


 


DEFINITIONS;
RULES OF CONSTRUCTION


 


Section 101. Definitions of Words and Terms. In addition
to words and terms elsewhere defined herein and therein, the following words
and terms as used in this Indenture and in the Agreement shall have the
following meanings, unless some other meaning is plainly intended:


 


“Accounts” means the accounts
created pursuant to Section 501 hereof.


 


“Act” means Tide 41, Chapter
43, Code of Laws of South Carolina 1976, as amended.


 


“Act of Bankruptcy” means, as
to the Borrower, any of the following: (a) the commencement by the
Borrower of a voluntary case under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable federal or state
bankruptcy, insolvency or similar laws; (b) the filing of a petition with
a court having jurisdiction over the Borrower to commence an involuntary case
against the Borrower under the federal bankruptcy laws, as now in effect or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or similar laws, and such petition is not discharged within 60 days
of the filing thereof; (c) the Borrower shall admit in writing its
inability to pay its debts generally as they become due; (d) a receiver,
trustee or liquidator of the Borrower shall be appointed in any proceeding
brought against the Borrower; (e) assignment by the Borrower of all or
substantially all of its assets for the benefit of its creditors; or (f) the
entry by the Borrower into an agreement of composition with its creditors, and,
as to the Issuer, the commencement by the Issuer of a voluntary case under the
federal bankruptcy laws, as now in effect or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or similar laws.


 


“Affiliated Party” or “Affiliate”
means any Related Person as to a particular Person, and any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. “Control”, when used with respect to
a particular Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of management and policies of such Person
whether through the ownership of voting stock, by contract or otherwise, and
the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


“Agreement” or “Loan
Agreement” means the Loan Agreement, including the Exhibits attached thereto,
dated as of the date of this Indenture, between the Issuer and the Borrower,
with


 


4





















 


respect to the Bonds, as such
Agreement may be from time to time amended, restated or supplemented in accordance
with the provisions of Section 10.6 of the Agreement and Article XI
hereof.


 


“Alternate Credit Facility”
means any alternate credit facility designated and qualified as such and
provided pursuant to Section 706 hereof no later than the twenty-fifth (25th)
day prior to the then applicable Termination Date.


 


“Alternate Credit Facility
Date” means a Business Day on or prior to the Termination Date on which the
Borrower has complied with all requirements of this Indenture, including Section 706
regarding the substitution of an Alternate Credit Facility for the Credit
Facility then in effect.


 


“Annual Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
twelve month intervals, as provided in Section 203(e) hereof.


 


“Authorized Borrower
Representative” means either the Chief Financial Officer or the Vice President
of the Borrower, or such other official of the Borrower at the time designated
to act on behalf of the Borrower as evidenced by written certificate furnished
to the Issuer, the Credit Enhancer and the Trustee containing the specimen
signature of such person and signed on behalf of the Borrower by its Chief
Executive Office or its Chief Financial Officer. Such certificate may designate
an alternate or alternates, each of whom shall be entitled to perform all
duties of and exercise all powers of an Authorized Borrower Representative.


 


“Authorized Denominations”
means (i) in the case of Bonds in a Weekly Mode or Monthly Mode, $100,000
and any integral multiple of $5,000 in excess thereof; (ii) in the case of
Bonds in a Semiannual Mode, Annual Mode or Multiyear Mode, $5,000 or any
integral multiple thereof, provided that if the Credit Facility is not exempt
from registration under the Securities Act of 1933, as amended, and has not
been registered thereunder then the Authorized Denomination shall be $100,000
and any integral multiple of $5,000 in excess thereof; or (iii) in the
case of a Bond which is a Pledged Bond, $100,000 or any integral multiple of
$5,000 in excess thereof.


 


“Authorized Issuer
Representative” means the Chairman of the Board of Directors or the Executive
Director of the Issuer, or such other person at the time designated to act on
behalf of the Issuer as evidenced by written certificate furnished to the
Borrower, the Credit Enhancer and the Trustee containing the specimen signature
of such person and signed on behalf of the Issuer by its Executive Director.
Such certificate may designate an alternate or alternates, each of whom shall
be entitled to perform all duties of and exercise all powers of an Authorized
Issuer Representative.


 


“Available Moneys” means (i) proceeds
from the initial sale of the Bonds by the Issuer that have not been commingled
with other funds that do not constitute Available Moneys and proceeds from the
investment thereof; (ii) moneys that have been paid to the Trustee
pursuant to payments on the Credit Facility and that have been held in the
Credit Facility Account and not commingled with other funds that do not
constitute Available Moneys, and proceeds from the investment thereof; and (iii) moneys
with respect to which the Trustee has received an unqualified opinion of
nationally recognized counsel expert on bankruptcy matters to the effect that
payment of such proceeds to the Owners would not constitute a voidable
preference under Section 547 of the United States Bankruptcy Code which
could be recovered under Section 550(a) of the Bankruptcy Code


 


5





















 


in the event of the filing of
a petition thereunder by or against the Issuer, the Borrower or any Affiliated
Party of the Borrower.


 


“Available Moneys Account”
means the account by that name in the Revenue Fund created pursuant to Section 501
hereof.


 


“Bond” or “Bonds” means any
bond or bonds authenticated and delivered under and pursuant to this Indenture.


 


“Bond Counsel” means any
attorney or firm of attorneys designated by the Issuer and reasonably
acceptable to the Borrower, the Trustee and the Credit Enhancer having a
national reputation for skill in connection with the authorization and issuance
of municipal obligations in the State and under Sections 103 and 141-150 of the
Code.


 


“Bond Issuance Date” means
the date of initial issuance and delivery of the Bonds.


 


“Bond Pledge Agreement” means
the Pledge and Security Agreement dated as of September 1, 1994, by and
among the Borrower, the Trustee and the Credit Enhancer, as amended, restated
and supplemented from time to time.


 


“Bond Register” means the
registration books of the Issuer kept by the Trustee to evidence the
registration and transfer of Bonds.


 


“Bond Registrar” means the
Trustee when acting as such.


 


“Bondowner” or “Owner” or “Registered
Owner” means the person in whose name a Bond is registered on the Bond
Register.


 


“Borrower” means Roller
Bearing Company of America, Inc., a Delaware corporation, and any
successor or assign thereto permitted under the Agreement.


 


“Borrower Bonds” means (i) Bonds
owned or held by the Borrower or any Affiliate of the Borrower, or by the
Trustee or the Tender Agent, or the agent of either of them, for the account of
the Borrower or any Affiliate of the Borrower, including, but not limited to,
Pledged Bonds, or (ii) Bonds which the Borrower has notified the Trustee,
or which the Trustee knows, were purchased by another Person for the account of
the Borrower or any Affiliate of the Borrower, including, but not limited to,
Pledged Bonds.


 


“Business Day” means a day
which is not (a) a Saturday, Sunday or any other day on which banking
institutions in New York, New York, or the city or cities in which the
principal corporate trust office of the Trustee, and the principal office of
the Tender Agent, the Remarketing Agent or the Credit Enhancer is located, are
required or authorized to close or (b) a day on which the New York Stock
Exchange is closed.


 


“Code” means the Internal
Revenue Code of 1986, as amended from time to time. References to the Code and
Sections of the Code include relevant applicable regulations, temporary


 


6





















 


regulations and proposed
regulations thereunder, and any successor provisions to those Sections,
regulations, temporary regulations or proposed regulations.


 


“Collateral Documents” means
the Letter of Credit Agreement, the Bond Pledge Agreement and any other
document securing the obligations of the Borrower to the Credit Enhancer in
connection with the Letter of Credit Agreement, in each case as the same may be
amended, restated or supplemented from time to time.


 


“Costs of Issuance Fund”
means the fund by that name created in Section 501 hereof.


 


“Credit Enhancer” means
initially Heller Financial, Inc., a Delaware corporation, and any provider
or providers of an Alternate Credit Facility.


 


“Credit Documents” means the
documents described by said term in the Letter of Credit Agreement, in each
case as the same may be amended, restated or supplemented from time to time.


 


“Credit Facility” means the
letter of credit initially issued by Heller Financial, Inc. and any
Alternate Credit Facility issued by the Credit Enhancer in addition to or in
substitution therefor, as the same may be amended, restated, supplemented,
extended or renewed from time to time in accordance with the Agreement and this
Indenture.


 


“Credit Facility Account”
means the account by that name created in Section 501(c) of this
Indenture.


 


“Debt Service Fund” means the
fund by that name created in Section 501 hereof.


 


“Default” means any event or
condition which constitutes, or with the giving of any requisite notice or upon
the passage of any requisite time period or upon the occurrence of both, would
constitute, an Event of Default under the Agreement or this Indenture.


 


“Determination of Taxability”
means (i) a determination by the Commissioner or any District Director of the
Internal Revenue Service, (ii) a private ruling or Technical Advice
Memorandum issued by the National Office of the Internal Revenue Service in
which the Borrower was afforded the opportunity to participate, (iii) a
determination by any court of competent jurisdiction, or (iv) receipt by
the Trustee, at the request of the Borrower, the Credit Enhancer or any
Bondowner, of an Opinion of Bond Counsel that the interest on the Bonds is
includable in gross income for federal income tax purposes of the Owners
thereof or any former Owner thereof, other than an Owner who is a “substantial
user” (as such term is defined in Section 147(a) of the Code) of the
Project or a Related Person; provided, however, that no such Determination of
Taxability under clause (i) or (iii) shall be deemed to have occurred
if the Borrower has been afforded the opportunity to contest such
determination, has elected to contest such determination in good faith and is
proceeding with all applicable dispatch to prosecute such contest until the
earliest of (a) a final determination from which no appeal may be taken
with respect to such determination, (b) abandonment of such appeal by the
Borrower, or (c) one year from the date of initial determination.


 


“Event of Default” means any
event or occurrence as defined in Section 801 hereof.


 


7





















 


“Financial Institution” means
any qualified institutional buyer, as that term is defined from time to time in
17 C.F.R. ss.230.144A(a)(i) (“Rule 144A”).


 


“Funds” means the funds
created pursuant to Article V hereof.


 


“General Fund” means the fund
by that name created in Section 501 hereof.


 


“Government Securities” means
direct obligations of, or obligations the payment of the principal of and
interest on which are unconditionally guaranteed by, the United States of
America.


 


“Immediate Notice” means
notice by telephone, telegram, telex, telecopier or other telecommunication
device to such phone numbers or addresses as are specified in Section 1302
hereof or such other phone number or address as the addressee shall have
directed in writing, promptly followed by written notice by first-class mail
postage prepaid to such addresses.


 


“Indenture” means this Trust
Indenture as originally executed by the Issuer and the Trustee, as from time to
time amended and supplemented by Supplemental Indentures in accordance with the
provisions of Article X of this Indenture.


 


“Interest Mode” means a
period of time relating to the frequency with which the interest rate on the
Bonds is determined pursuant to Section 203 hereof, which Interest Mode
may be a Weekly Mode, a Monthly Mode, a Semiannual Mode, an Annual Mode or a
Multiyear Mode. Pledged Bonds bear interest at the Pledged Bond Rate and are
not subject to such Interest Mode descriptions.


 


“Interest Mode Adjustment
Date” means a date on which the Interest Mode of the Bonds is changed from one
Interest Mode to a different Interest Mode, and such date shall be an Interest
Payment Date.


 


“Interest Mode Adjustment
Notice” means the notice of a new Interest Mode with respect to any Bonds in
accordance with Section 204 hereof in substantially the form of Exhibit F
attached hereto.


 


“Interest Payment Date” means
the date on which an interest installment is required to be paid on the Bonds
to the Owners thereof, (i) with respect to all Bonds other than Pledged
Bonds, (1) as to the first Interest Period, October 3, 1994; (2) as
to any Weekly Mode or Monthly Mode, the first Business Day of each month; (3) as
to any Semiannual Mode, Annual Mode or Multiyear Mode, each March 1 and September 1,
commencing with the first such March 1 or September 1 following the
Interest Mode Adjustment Date, or the next succeeding Business Day thereafter
if any such March 1 or September 1 is not a Business Day; and (4) an
Interest Mode Adjustment Date; and (ii) with respect to Pledged Bonds, the
first Business Day of each calendar month and the date of sale of Pledged
Bonds.


 


“Interest Period” means, with
respect to the Bonds in any Interest Mode, the period from and including each
Interest Payment Date for such Interest Mode to and including the day
immediately preceding the following Interest Payment Date for such Interest
Mode, except that the first Interest Period shall be the period from and
including the date of original delivery of the Bonds to and including the day
immediately preceding the first Interest Payment Date for the Bonds.


 


8





















 


“Investment Securities” means
any of the following securities purchased in accordance with Section 602
hereof, if and to the extent the same are at the time legal for investment of
the funds being invested:


 


(a) Government
Securities;


 


(b) deposits which are
fully insured by the Federal Deposit Insurance Corporation (“FDIC”) in one or
more of the following institutions: banks with a rating of A-1 or higher
(including without limitation, the Trustee or any bank affiliated with the
Trustee) organized under the laws of the United States of America or any state
thereof;


 


(c) federal funds,
unsecured certificates of deposit, time deposits and bankers acceptances
(having maturities of not more than 365 days) of any bank, the short-term
obligations of which are in the highest short-term rating category of the
Rating Agency (if the Bonds are rated by Standard & Poor’s, such
category is A-I +);


 


(d) any shares in money
market mutual funds provided such money market funds are rated AAAm or AAAmG by
the Rating Agency; and


 


(e) repurchase
agreements with (A) any institution described in clause (b) above or (B) any
other entity that is under the jurisdiction of the Bankruptcy Code, provided
that, with respect to a repurchase agreement with such other entity, the terms
of such repurchase agreement shall be less than one year, shall be with respect
to Government Securities which meet the Investment Securities Collateral
Requirement and shall mature at least 30 days before the time or times that
such investments shall be needed for the purposes for which they were
deposited.


 


“Investment Securities Collateral
Requirement” means Government Securities which meet the requirements set forth
in Exhibit B attached hereto and incorporated herein by this reference.


 


“Investor’s Representation
Letter” means the Investor’s Representation Letter in substantially the form
attached to this Indenture as Exhibit H.


 


“Issuer” means the South
Carolina Jobs-Economic Development Authority, a body corporate and politic and
an agency of the State, or any body, agency or instrumentality of the State
succeeding to or charged with the powers, duties and functions of the Issuer.


 


“Letter of Credit Agreement”
means the Letter of Credit Agreement dated as of the date of this Indenture,
between the Borrower and the initial Credit Enhancer, and any similar agreement
between the Borrower and the Credit Enhancer with respect to the issuance of an
Alternate Credit Facility.


 


“Loan Payment Date” means the
day established for a Loan Payment under the Agreement.


 


“Loan Term” means the period
from the date of initial delivery and authentication of the Bonds until such
time as the Bonds are no longer Outstanding and all other amounts payable by
the Borrower under the Agreement and the Letter of Credit Agreement shall have
been paid.


 


9





















 


“Mandatory Purchase Date”
means each date designated by the Credit Enhancer for purchase of the Bonds in
accordance with the provisions of Section 302(d) of this Indenture.


 


“Maximum Rate” means the
lesser of (i) 15% per annum or (ii) the rate utilized in the Credit
Facility for purposes of computing the interest component thereof.


 


“Monthly Mode” means an
Interest Mode during which the interest rate on the Bonds is determined in
monthly intervals as set forth in Section 203(d) hereof.


 


“Moody’s” means Moody’s Investors
Service, a corporation organized and existing under the laws of the State of
Delaware, and its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, “Moody’s” shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Issuer, with
the prior written approval of the Credit Enhancer and the Borrower, by notice
to the Trustee.


 


“Multiyear Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
intervals of integral (greater than one) multiples of twelve months, as
provided in Section 203(e) hereof.


 


“New York Time” means the
time on any given day in the City of New York, New York, whether such time be
Eastern Standard Time or Eastern Daylight Savings Time.


 


“1933 Act” means the
Securities Act of 1933, as amended.


 


“Nonpurpose Investments”
means any investment property (as defined in Section 148(b) of the
Code) which is acquired with the gross proceeds of the Bonds and which is not
acquired to carry out the governmental purpose of the Bonds.


 


“Notice of Election to
Tender/Retain Bonds” means the Notice of Election to Tender/Retain Bonds in
substantially the form attached hereto as Exhibit D delivered by a
Bondowner to the Tender Agent (i) pursuant to Section 301 hereof
which contains a demand for the purchase of Bonds on the Tender Date, or (ii) following
receipt of a notice of a mandatory tender of Bonds as specified in Section 302
hereof which contains an election to retain Bonds. “Notice of Election to
Tender Bonds” shall refer to those provisions of the Notice of Election to
Tender/Retain Bonds which relate to the election to tender Bonds as hereinafter
provided. “Notice of Election to Retain Bonds” shall refer to those provisions
of the Notice of Election to Tender/Retain Bonds which relate to the election
to retain Bonds.


 


“Opinion of Bond Counsel”
means a written opinion of Bond Counsel addressed to the Trustee, for the
benefit of the Owners of the Bonds, and the Credit Enhancer.


 


“Opinion of Counsel” means a
written opinion of an attorney or firm of attorneys addressed to the Trustee,
for the benefit of the Owners of the Bonds and the Credit Enhancer, who may
(except as otherwise expressly provided in this Indenture) be counsel to the
Issuer, the Borrower, the Owners of the Bonds, the Credit Enhancer or the
Trustee, and who is acceptable to the Trustee and the Credit Enhancer.


 


10





















 


“Outstanding when used with
reference to Bonds, means, as of a particular date, all Bonds theretofore
authenticated and delivered under this Indenture except:


 


(a) Bonds theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation pursuant
to Section 209 hereof;


 


(b) Bonds which are
deemed to have been paid in accordance with Article XII hereof;


 


(c) Bonds in exchange
for or in lieu of which other Bonds have been authenticated and delivered
pursuant to Article II of this Indenture;


 


(d) Undelivered Bonds;
and


 


(e) For purposes of any
consent or other action to be taken by the Owner of a specified percentage of
Bonds under this Indenture or the Agreement, Bonds owned or held for the
account of the Issuer or Borrower Bonds. Notwithstanding the foregoing, Bonds
so owned which have been pledged in good faith shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Bonds and that the pledgee is
not the Issuer, the Borrower or any Affiliated Party.


 


“Paying Agent” means the
Tender Agent as to all Tendered Bonds, the Trustee as to all other Bonds, and
any other bank or trust institution organized under the laws of any state of
the United States of America or any national banking association designated by
this Indenture or any Supplemental Indenture as paying agent for the Bonds at
which the principal of, and redemption premium, if any, and interest on, such
Bonds shall be payable.


 


“Person” means an individual,
a corporation, a partnership, an association, a joint stock company, a joint
venture, a trust, an unincorporated organization, a limited liability company,
or a government or any agency or political subdivision thereof.


 


“Placement Date” means any date
on which a Pledged Bond is purchased from the Borrower by a Person designated
by the Remarketing Agent pursuant to the Remarketing Agreement or is sold by
the Borrower.


 


“Plant” means the facility,
including machinery and equipment, for the manufacture of roller bearings in
Darlington County, South Carolina, operated by the Borrower.


 


“Pledged Bonds” means any
Bonds purchased by the Borrower with payments made on the Credit Facility,
which Bonds are registered in the name of the Borrower and held by the Trustee
on behalf of the Credit Enhancer pursuant to the terms of the Bond Pledge
Agreement, until such time as such Bonds are sold by the Borrower or by the
Remarketing Agent.


 


“Pledged Bond Rate” means the
rate of interest per annum payable with respect to each Pledged Bond, which
shall be equal to the Interest Rate set forth in Section 2.9 of the Letter
of Credit Agreement.


 


“Preliminary Rate” means
Preliminary Rate as defined in Section 203(e) hereof.


 


11





















 


“Principal Office” means,
with respect to the Trustee and the Tender Agent, its principal corporate trust
office, initially 8820 Ladue Road, St. Louis, Missouri 63124, Attention:
Corporate Trust Division.


 


“Principal Payment Date”
means the maturity date or redemption date (including as a result of
acceleration) of any Bond.


 


“Project” means the
buildings, fixtures, machinery and equipment described in Exhibit A to the
Agreement, and all additions, modifications, improvements, replacements and
substitutions made to the Project pursuant to the Agreement, as they may at any
time exist.


 


“Project Fund” means the fund
by that name created by Section 501 hereof.


 


“Project Purposes” means the
costs of acquiring, constructing, installing and equipping the Project.


 


“Purchase Fund” means the
fund by that name created by Section 501 hereof.


 


“Rate Adjustment Date” means
the date as of which the interest rate determined for an Interest Mode shall be
effective, which (i) during a Weekly Mode shall be Thursday of each week
(whether or not a Business Day); (ii) during a Monthly Mode shall be the
first calendar day of each month; (iii) during a Semiannual Mode shall be
the first calendar day of such Semiannual Mode which shall be March 1 or September 1
and the first day following each six-month period thereafter; and, (iv) during
an Annual Mode or a Multiyear Mode shall be the first calendar day of such
Annual Mode or Multiyear Mode, which shall be September 1, and thereafter
the first calendar day following the completion of the then current Annual Mode
or Multiyear Mode. The initial Rate Adjustment Date is September 15, 1994.


 


“Rate Adjustment Notice”
means the Rate Adjustment Notice in substantially the form of Exhibit E
hereto to be mailed by the Trustee in accordance with Section 203(e) hereof.


 


“Rate Determination Date”
means no later than 4:00 P.M., New York Time, on the Business Day
immediately preceding a Rate Adjustment Date for a Weekly or a Monthly Mode,
and on the third (3rd) Business Day immediately preceding a Rate Adjustment
Date for a Semiannual Mode, Annual Mode or Multiyear Mode.


 


“Rate Period” means the
period from a Rate Adjustment Date to, but not including, the next Rate
Adjustment Date.


 


“Rating Agency” means
(collectively, as required) Moody’s, if the Bonds are then rated by Moody’s,
Standard & Poor’s, if the Bonds are then rated by Standard &
Poor’s, and any other national rating service which has outstanding credit
rating on the Bonds.


 


“Rebate Fund” means the fund
by that name created in Section 501 hereof.


 


“Record Date” means, with
respect to Bonds in a Semiannual Mode, an Annual Mode or a Multiyear Mode, the
fifteenth calendar day, whether or not a Business Day, of the month preceding


 


12





















 


such Interest Payment Date,
and, with respect to Bonds in a Weekly Mode or Monthly Mode, the fifth calendar
day, whether or not a Business Day, immediately preceding such Interest Payment
Date.


 


“Related Documents” means the
Collateral Documents and the Credit Documents.


 


“Related Person” means a “related
person” within the meaning of Section 147 (a) of the Code.


 


“Remarketing Agent” means the
remarketing agent at the time serving as such under the Remarketing Agreement
and designated as the Remarketing Agent for purposes of this Indenture. The
initial Remarketing Agent is Stem Brothers & Co., St. Louis, Missouri.


 


“Remarketing Agreement” means
the Remarketing Agreement dated as of September 1,1994, between the
Borrower and the Remarketing Agent or, if such Remarketing Agreement shall be
terminated, such other agreement, approved by the Credit Enhancer, which may
from time to time be entered into with any Remarketing Agent with respect to
the remarketing or placement of the Bonds.


 


“Remarketing Proceeds” means
proceeds from the resale by the Remarketing Agent of Bonds delivered for
purchase pursuant to Section 301 or 302 hereof that have not been
commingled with other funds which do not constitute Remarketing Proceeds, and
proceeds from the investment thereof; provided that Remarketing Proceeds cannot
include any moneys provided by the Borrower, the Issuer, any guarantor of the
Bonds (excluding the issuer of the Credit Facility, but only with respect to
moneys provided pursuant to the Credit Facility), any Affiliated Party of the
foregoing, or any Person which is an “insider” of the Borrower or any such
guarantor within the meaning of Title 11 of the United States Code, as amended.


 


“Resolution” means the
resolution of the Board of Directors of the Issuer authorizing the execution
and delivery of the Agreement, this Indenture and the issuance of the Bonds.


 


“Revenue Fund” means the fund
by that name created in Section 501 hereof.


 


“Revenues” means the amounts
pledged hereunder to the payment of principal of, and premium, if any, and
interest on the Bonds, consisting of the following: (i) all income,
revenues, proceeds and other amounts, to which the Issuer is entitled, derived
from the Borrower (except the Unassigned Issuer’s Rights as defined in the
Agreement), including all scheduled payments under the Agreement, payments
received on the Credit Facility and all receipts of the Trustee credited under
the provisions of this Indenture against said amounts payable, and (ii) moneys
held in the Funds and Accounts, together with investment earnings thereon,
other than moneys in the Rebate Fund and rebatable arbitrage not deposited
therein and funds held for the payment of specific Bonds pursuant to Section 510
hereof or amounts held in the Purchase Fund.


 


“Series 1994B Bonds”
means the Issuer’s $3,000,000 original principal amount Variable Rate Demand
Industrial Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series 1994B, issued pursuant to the Series 1994B Indenture.


 


13





















 


“Series 1994B Indenture”
means the Indenture of Trust dated as of September 1, 1994 between the
Issuer and the Trustee, delivered with respect to the Series 1994B Bonds.


 


“Semiannual Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
six-month intervals as set forth in Section 203(e) hereof.


 


“Standard & Poor’s”
means Standard & Poor’s Ratings Group, A Division of McGraw-Hill, Inc.,
a corporation organized and existing under the laws of the State of New York,
and its successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, Standard & Poor’s shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Issuer, with
the prior written approval of the Credit Enhancer, by notice to the Trustee and
the Borrower.


 


“State” means the State of
South Carolina.


 


“Supplemental Indenture”
means any indenture supplemental or amendatory to this Indenture entered into
by the Issuer and the Trustee pursuant to Article X of this Indenture.


 


“Tax Agreement” means the Tax
Agreement dated of even date herewith between the Borrower and the Issuer,
delivered with respect to the Bonds, as the same may be amended, restated or
supplemented from time to time.


 


“Tender Agent” means
initially the Trustee, and any successor tender agent appointed pursuant to Section 914
hereof. The Tender Agent shall act as Paying Agent as to Tendered Bonds.


 


“Tender Date” means (a) each
date designated by a Bondowner for purchase of any Bonds in accordance with the
provisions of Section 301 hereof, and (b) each date on which Bonds
are required to be tendered in accordance with the provisions of Section 302
hereof, including any Mandatory Purchase Date, whether or not such Bonds are
actually tendered.


 


“Tender Price” means 100% of
the principal amount of any Bond tendered pursuant to the provisions of Section 301
or Section 302 of this Indenture plus interest accrued and unpaid thereon
to, but not including, the Tender Date.


 


“Tendered Bonds” means (a) any
Bonds tendered by a Bondowner for purchase pursuant to Section 301 hereof,
and (b) any Bonds required to be tendered for purchase pursuant to Section 302
hereof, unless a proper waiver has been made by the Owner of such Bonds, in
each case whether or not such Bonds are actually tendered.


 


“Termination Date” means (i) if
the Credit Facility is not a letter of credit, the maturity or expiration date
of the Credit Facility or, if such day is not a Business Day, the next
preceding Business Day or (ii) if the Credit Facility is a letter of
credit, the last Interest Payment Date which is at least five (5) days
preceding the date on which the Credit Facility is to expire pursuant to its
terms, in each case including any extension of such maturity or expiration
date.


 


“Trust Estate” means the
Trust Estate described in the granting clauses of this Indenture.


 


14





















 


“Trustee” means Mark Twain
Bank, a banking corporation duly organized and existing under the laws of the
State of Missouri, and its successor or successors and any other association or
corporation which at any time may be substituted in its place pursuant to and
at the time serving as trustee under this Indenture.


 


“Unavailable Moneys Account”
means the account by that name in the Revenue Fund created pursuant to Section 501
of this Indenture.


 


“Undelivered Bonds” means
Bonds which are deemed to have been tendered to the Trustee or Tender Agent, as
applicable, for purchase pursuant to Section 301 or 302 hereof but which
have not been surrendered to the Trustee or Tender Agent, as applicable.


 


“Weekly Mode” means an
Interest Mode during which the interest rate on the Bonds is determined in
weekly intervals as set forth in Section 203(c) hereof.


 


“Written Request” with
reference to the Issuer means a request in writing signed by an Authorized
Issuer Representative and with reference to the Borrower means a request in
writing signed by an Authorized Borrower Representative.


 


Section 102. Rules of Interpretation.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


(a) Words of the
masculine gender shall be deemed and construed to include correlative words of
the feminine and neuter genders.


 


(b) Words importing the
singular number shall include the plural and vice versa and words importing
person shall include firm’s, associations and corporations, including public bodies,
as well as natural persons.


 


(c) The table of
contents hereto and the headings and captions herein are not a part of this
document.


 


(d) Terms used in an
accounting context and not otherwise defined shall have the meaning ascribed to
them by generally accepted principles of accounting.


 


(e) Notwithstanding
anything herein, in the Series 1994B Indenture or in the Borrower
Documents to the contrary, each of the “Borrower”, the Credit Enhancer”, the “Paying
Agent(s)”, the “Remarketing Agent”, the “Tender Agent” and the “Trustee”
(including, for such purpose, each co-trustee) shall, as between the documents
relating to the Bonds and the Series 1994B Bonds, be one and the same
Person.


 


[End
of Article I]


 


15





















 


ARTICLE II


 


THE BONDS


 


Section 201. Authorization. Issuance and Terms of Bonds.


 


(a) Authorized Amount of
Bonds. No Bonds may be issued under the provisions of this Indenture except in
accordance with this Article. The total aggregate principal amount of the Bonds
that may be issued hereunder and at any time Outstanding is hereby expressly
limited to $7,700,000.


 


(b) Title of Bonds. The
Bonds authorized to be issued under this Indenture shall be designated “Variable
Rate Demand Industrial development Revenue Bonds (Roller Bearing Company of
America, Inc. Project) Series 1994A”.


 


(c) Form of Bonds.
The Bonds shall be substantially in the form set forth in Exhibit A
attached hereto, 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.


 


(d) Denominations. The
Bonds shall be issuable as fully registered Bonds without coupons in Authorized
Denominations only.


 


(e) Numbering. Unless
the Issuer shall otherwise direct, the Bonds shall be numbered from R-1 upward.


 


(f) Dating. The Bonds
shall be dated as of the Bond Issuance Date, be issuable in Authorized
Denominations, and bear interest from the most recent Interest Payment Date to
which interest has been paid or for which due provision has been made or if no
Interest Payment Date has occurred therefor, the dated date thereof.


 


(g) Maturity. The Bonds
shall mature on September 1, 2017, subject to optional and mandatory
redemption as provided in Article IV hereof.


 


(h) Tender and Purchase
of Bonds. The Bonds are subject to optional and mandatory tender for purchase
as provided in Article III hereof.


 


(i) Method and Place of
Payment. Except as provided herein, the principal of, and redemption premium,
if any, and interest on the Bonds shall be payable in any coin or currency of
the United States of America which, at the respective dates of payment thereof,
is legal tender for the payment of public and private debts, and such principal
and premium, if any, shall be payable at the Principal Office of the Trustee or
at the office of any alternate Paying Agent, and, with respect to the Tender
Price, at the Principal Office of the Tender Agent, upon presentation and
surrender of such Bonds. Payment of interest on any Bond shall be made by check
or draft of the Trustee mailed to the person in whose name such Bond is
registered on the Bond Register as of the close of business of the Trustee on
the Record Date for such Interest Payment Date, except that


 


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interest not duly paid or
provided for when due shall be payable to the person in whose name such Bond is
registered at the close of business on the Business Day immediately preceding
the date of payment of such defaulted interest. In the case of an interest
payment to any Owner of $1,000,000 or more in aggregate principal amount of
Bonds as of the commencement of business of the Trustee on the Record Date for
a particular Interest Payment Date or in the case of the purchase from an Owner
of $1,000,000 or more in aggregate principal amount of Bonds on the Tender
Date, payment of interest or the Tender Price, as applicable, shall be made by
wire transfer to such Owner upon written notice to the Trustee from such Owner
containing the wire transfer address (which shall be in the continental United
States) to which such Owner wishes to have such wire directed and, with regard
to interest payments, such written notice is given by such Owner to the Trustee
not less than fifteen (15) days prior to such Record Date and regarding payment
of the Tender Price, which written notice accompanies such Owner’s Notice of
Election to Tender Bonds.


 


Section 202. Nature of Obligations.


 


(a) The Bonds and the
interest thereon shall be limited obligations of the Issuer payable solely from
Bond proceeds, the Revenues and other moneys pledged thereto and held by the
Trustee as provided herein, and are secured by a transfer, pledge and
assignment of and a grant of a security interest in the Trust Estate to the
Trustee and in favor of the Owners of the Bonds, as provided in this Indenture.


 


(b) The Bonds and the
interest thereon do not constitute a debt or general obligation of the Issuer,
the State, or any political subdivision thereof, and do not constitute an
indebtedness or a charge against the general credit of the State or the Issuer
within the meaning of any constitutional or statutory limitation or
restriction. The Bonds are not payable in any manner by taxation.


 


(c) No recourse shall be
had for the payment of the principal of, or premium, if any, or interest on,
any of the Bonds or for any claim based thereon or upon any obligation,
provision, covenant or agreement contained in this Indenture contained, against
any past, present or future director, trustee, officer, official, employee or
agent of the Issuer, or any director, trustee, officer, official, employee or
agent of any successor to the Issuer, as such, either directly or through the
Issuer or any successor to the Issuer, under any rule of law or equity,
statute or constitution or by the enforcement of any assessment or penalty or
otherwise, and all such liability of any such director, trustee, officer,
official, employee or agent as such is hereby expressly waived and released as
a condition of and in consideration for the execution of this Indenture and the
issuance of any of the Bonds. Neither the officers of the Issuer nor any person
executing the Bonds shall be personally liable on the Bonds by reason of the
issuance thereof.


 


Section 203. Interest Rates and Interest Payment
Provisions.


 


(a) Calculation of
Interest. Subject to the provisions of Section 802 (a) hereof, the
Bonds shall bear interest from and including the date thereof until payment of
the principal or redemption price thereof shall have been made or provided for
in accordance with the provisions hereof, whether at maturity, upon redemption
or otherwise. Anything herein to the contrary notwithstanding, in no event
shall the interest rate borne by the Bonds, other than Pledged Bonds, at any
time exceed the Maximum Rate. Subject to such limitation, the interest rates on
the Bonds


 


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shall be determined as
provided in this Section. Interest accrued on the Bonds during each Interest
Period shall be paid on the next succeeding Interest Payment Date and, while
the Bonds are in a Weekly Mode or a Monthly Mode, shall be computed on the
basis of a year of 365 or 366 days, as appropriate, for the actual number of
days elapsed and, while the Bonds are in a Semiannual Mode, an Annual Mode or a
Multiyear Mode, shall be computed on the basis of a year of 360 days and twelve
30-day months. The Trustee shall calculate the amount of interest to be paid on
each Interest Payment Date, and the Remarketing Agent shall confirm such
interest amount calculation, and the Trustee shall notify the Borrower and the
Credit Enhancer of such amount by 10:00 a.m., New York Time, on the
Business Day next preceding each Interest Payment Date.


 


(b) Standard for
Determination of Interest Rate. The Remarketing Agent shall determine the
interest rate for the Rate Period commencing with each Rate Adjustment Date to
be the lowest rate which, in the best judgment of the Remarketing Agent, on the
Rate Determination Date, would result in the market value of such Bonds on the
Rate Adjustment Date being equal to 100% of their principal amount. In
determining such interest rate, the Remarketing Agent shall have due regard for
general financial conditions and such other conditions as, in the judgment of
the Remarketing Agent, have a bearing on the interest rate on the Bonds,
including then prevailing market conditions, the yields at which comparable
securities are then being sold and the tender provisions applicable thereto
during the forthcoming Rate Period. Each determination of the interest rate for
the Bonds, as provided herein, shall be conclusive and binding upon the
Bondowners, the Issuer, the Borrower, the Tender Agent, the Remarketing Agent,
the Credit Enhancer and the Trustee. Upon request, the Remarketing Agent shall
give the Issuer, the Trustee, the Credit Enhancer, the Borrower, the Tender
Agent or any Bondowner Immediate Notice of the interest rate on the Bonds at
any time.


 


(c) Weekly Mode. The
interest rate for Bonds in a Weekly Mode shall be determined in the following
manner. On each Rate Determination Date, the Remarketing Agent shall determine
the interest rate which such Bonds shall bear during the Rate Period following
such Rate Determination Date. The interest rate so determined shall be
effective on the Rate Adjustment Date. Promptly after each Rate Determination
Date, the Remarketing Agent shall give written notice of the interest rate so
set to the Trustee, the Credit Enhancer and the Borrower. On each Interest
Payment Date the Trustee shall mail to each Bondowner a written statement
showing the interest rates for such Bonds during the preceding Interest Period.


 


(d) Monthly Mode. The
interest rate for any Bonds in a Monthly Mode shall be determined in the
following manner. On each Rate Determination Date, the Remarketing Agent shall
determine the interest rate which such Bonds shall bear during the Rate Period
following such Rate Determination Date. The interest rate so determined shall
be effective on the Rate Adjustment Date. Promptly after each Rate
Determination Date, the Remarketing Agent shall give written notice of the
interest rate so set to the Borrower, the Credit Enhancer and the Trustee. On
each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates for such Bonds during the preceding
Interest Period.


 


(e) Semiannual Mode.
Annual Mode or Multiyear Mode. The interest rate for Bonds in a Semiannual
Mode, an Annual Mode or a Multiyear Mode shall be determined in the following
manner. Not less than 30 days nor more than 35 days before each Rate Adjustment
Date, the Remarketing Agent shall determine the interest rate (the “Preliminary
Rate”) which the Bonds would


 


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bear if such day were a Rate
Determination Date. The Remarketing Agent shall give Immediate Notice of the
Preliminary Rate to the Borrower, the Credit Enhancer and the Trustee. The
Trustee shall thereupon mail, not less than 25 days prior to the Rate
Adjustment Date, to each Bondowner a Rate Adjustment Notice in substantially the
form attached hereto as Exhibit E. On the Rate Determination Date the
Remarketing Agent shall determine the interest rate which each of such Bonds
shall bear for each such Rate Period, which rate may be less than, equal to or
greater than the Preliminary Rate. By Immediate Notice on such Rate
Determination Date the Remarketing Agent shall give written notice of the
interest rate so set to the Borrower, the Credit Enhancer, the Tender Agent and
the Trustee, and the Trustee shall mail to all Bondowners written notice of the
interest rate so determined.


 


(f) Alternative Rate
Calculation. If for any reason the interest rate for the Bonds is not or cannot
be established as provided in the preceding paragraphs, or is held invalid or
unenforceable by a court of law, all Bonds shall immediately convert to a
Weekly Mode, anything in this Indenture to the contrary notwithstanding, and
the interest rate shall be a rate equal to the lesser of (i) 85% of the 90-day
U.S. Treasury Bill rate, determined on the basis of the average per annum rate
at which 90-day U.S. Treasury Bills have been sold on a bond-equivalent basis
at the most recent U.S. Treasury auction preceding the Rate Determination Date,
or (ii) the Maximum Rate.


 


Pledged Bonds.
Notwithstanding the above provisions of this Section 203 the Pledged Bonds
shall bear interest at the Pledged Bond Rate during the period that such Bonds
are Pledged Bonds. The Credit Enhancer shall use its best efforts to notify the
Trustee on the Business Day preceding each Interest Payment Date in respect of
such a period of the Pledged Bond Rate in effect from time to time during such
period. The Credit Facility shall not be drawn on to pay any Pledged Bond.


 


Section 204. Changes in Interest Modes.


 


(a) The Bonds shall
initially be in a Weekly Mode. The Interest Mode for the Bonds may be changed
from time to time at the option of the Borrower, with the prior written consent
of the Credit Enhancer exercised as provided in this Section to another
Interest Mode selected by the Borrower, on an Interest Payment Date on which
the Bonds are subject to redemption pursuant to Section 401 hereof at a
redemption price equal to the principal amount thereof, plus accrued interest,
without premium. The Borrower may exercise such option at any time by giving
written notice not more than 60 nor less than 45 days prior to the Interest
Mode Adjustment Date, to the Issuer, the Trustee, the Tender Agent, the
Remarketing Agent and the Credit Enhancer stating its election to convert the
Interest Mode for the Bonds to another Interest Mode, which notice shall
specify the new Interest Mode and the Interest Mode Adjustment Date. Such
Interest Mode Adjustment Date shall be a Rate Adjustment Date for the Bonds in
such new Interest Mode. Upon the exercise of such option by the Borrower and
upon the Trustee’s receipt of the prior written consent of the Credit Enhancer
to the exercise of such option, the Trustee shall mail, not less than thirty
(30) days prior to the Interest Mode Adjustment Date, an Interest Mode Adjustment
Notice to each Owner of Bonds, and, in the event of a conversion to a Weekly
Mode or a Monthly Mode from any other Interest Mode, a Notice of Election to
Tender/Retain Bonds in substantially the form attached hereto as Exhibit D.


 


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(b) No change in the
Interest Mode shall occur unless (i) the Trustee shall have received,
prior to sending the Interest Mode Adjustment Notice, an Opinion of Bond
Counsel stating that the change in the Interest Mode is authorized and
permitted by this Indenture and the Act and will not adversely affect the
exclusion of interest on the Bonds from gross income for federal income tax
purposes and such Opinion of Bond Counsel is confirmed as of the Interest Mode
Adjustment Date, and (ii) the Credit Enhancer shall have given its prior
written consent to the change in the Interest Mode and shall have fully and
timely made any payment due under the Credit Facility made in connection with
the related Interest Mode Adjustment Date pursuant to Section 508 hereof.
Further, no change from a Weekly Mode to any other Interest Mode may occur
unless a corresponding change in Interest Mode with respect to the Series 1994B
Bonds is made on the same date.


 


Section 205. Execution, Authentication and Delivery of
Bonds.


 


(a) The Bonds shall be
executed on behalf of the Issuer by the manual or facsimile signature of the
chairman of the Board of Directors of the Issuer and attested by the manual or
facsimile signature of its Executive Director, Secretary or Assistant
Secretary, and shall have the corporate seal of the Issuer affixed thereto or
imprinted thereon. In case any officer whose signature or facsimile thereof
appears on any Bonds shall cease to be such officer before the delivery of such
Bonds, such signature or facsimile thereof shall nevertheless be valid and
sufficient for all purposes, the same as if such person had remained in office
until delivery. Any Bond may be signed by such persons who at the actual time
of the execution of such Bond shall be the proper officers to sign such Bond
although at the date of such Bond such persons may not have been such officers.


 


(b) The Bonds shall have
endorsed thereon a Certificate of Authentication substantially in the form set
forth in Exhibit A hereto, which shall be manually executed by the
Trustee. No Bond shall be entitled to any security or benefit under this
Indenture or shall be valid or obligatory for any purpose unless and until such
Certificate of Authentication shall have been duly executed by the Trustee.
Such executed Certificate of Authentication upon any Bond shall be conclusive
evidence that such Bond has been duly authenticated and delivered under this
Indenture. The Certificate of Authentication on any Bond shall be deemed to
have been duly executed if signed by any authorized officer or employee of the
Trustee, but it shall not be necessary that the same officer or employee sign
the Certificate of Authentication on all of the Bonds that may be issued
hereunder at any one time.


 


(c) Prior to or
simultaneously with the authentication and delivery of the Bonds by the Trustee
there shall be filed with the Trustee the following:


 


(1) A copy of the
Resolution, certified by the Executive Director of the Issuer.


 


(2) An original executed
counterpart of this Indenture, the Agreement and the Credit Facility.


 


(3) An Opinion of Bond
Counsel, dated the date of initial delivery of the Bonds, to the effect that
the Bonds are valid and binding special limited obligations of the Issuer and
that interest on the Bonds is excludable from gross income pursuant to the Code
and is exempt from income taxation in the State of South Carolina.


 


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(4) A request and
authorization to the Trustee on behalf of the Issuer, executed by an Authorized
Issuer Representative, to authenticate the Bonds and deliver said Bonds to the
purchasers therein identified upon payment to the Trustee, for the account of
the Issuer, of the purchase price thereof. The Trustee shall be entitled to
rely conclusively upon such request and authorization as to the names of the
purchasers and the amount of such purchase price.


 


(5) Evidence
satisfactory to the Issuer, the Credit Enhancer and the  Trustee that the Bonds have been purchased by “qualified
institutional buyers” as defined
in Rule 144A of the 1933 Act.


 


(6) Such other
certificates, statements, receipts, documents and  Opinions of Counsel as the Trustee shall
reasonably require for the delivery
of the Bonds.


 


(d) When the documents
mentioned in paragraph (c) of this Section shall have been filed with
the Trustee, and when the Bonds shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver the Bonds to or upon the
order of the purchasers thereof, but only upon payment to the Trustee of the
purchase price of the Bonds. The proceeds of the sale of the Bonds, including
premium thereon, if any, shall be immediately paid over to the Trustee, and the
Trustee shall deposit and apply such proceeds as set forth in Section 502
hereof.


 


Section 206. Registration, Transfer and Exchange of
Bonds.


 


(a) The Trustee is
hereby appointed Bond Registrar and as such shall keep the Bond Register at its
principal corporate trust office. No later than the second Business Day
following each Record Date, the Trustee shall send a copy of the Bond Register
to the Tender Agent by first-class mail.


 


(b) Any Bond may be
transferred only upon the Bond Register upon surrender thereof to the Trustee
duly endorsed for transfer or accompanied by an assignment duly executed by the
registered Owner or such Owner’s attorney or legal representative in such form
as shall be satisfactory to the Trustee. Subject to Section 210 hereof,
upon any such transfer, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange for such Bond a new Bond or Bonds,
registered in the name of the transferee, of any Authorized Denomination.


 


(c) Any Bonds, upon
surrender thereof at the principal corporate trust office of the Trustee, together
with an assignment duly executed by the Owner or such Owner’s attorney or legal
representative in such form as shall be satisfactory to the Trustee, may, at
the option of the Owner thereof, be exchanged for an equal aggregate principal
amount of the Bonds, of any Authorized Denomination.


 


(d) In all cases in
which Bonds shall be exchanged or transferred hereunder, the Issuer shall
execute and the Trustee shall authenticate and deliver at the earliest
practicable time Bonds in accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or transfer shall forthwith be cancelled
by the Trustee.


 


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(e) The Issuer or the
Trustee may make a charge against each Bondowner requesting a transfer or
exchange of Bonds for every such transfer or exchange of Bonds sufficient to
reimburse it for any tax or other governmental charge required to be paid with
respect to such transfer or exchange, the cost of printing, if any, each new
Bond issued upon any transfer or exchange and the reasonable expenses of the
Issuer and the Trustee in connection therewith, and such charge shall be paid
before any such new Bond shall be delivered.


 


(f) At reasonable times
and under reasonable regulations established by the Trustee, the Bond Register
may be inspected and copied by the Borrower, the Issuer, the Credit Enhancer or
the Owners (or a designated representative thereof) of 10% or more in aggregate
principal amount of Bonds then Outstanding, such ownership and the authority of
any such designated representative to be evidenced to the satisfaction of the
Trustee.


 


(g) The person in whose
name any Bond shall be registered on the Bond Register shall be deemed and
regarded as the absolute Owner of such Bond for all purposes, and payment of or
on account of the principal of and redemption premium, if any, and interest on
any such Bond shall be made only to or upon the order of the registered Owner
thereof or such Owner’s attorney or legal representative (except that any such
payments on Pledged Bonds shall be made to the Credit Enhancer). All such
payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond, including the interest thereon, to the extent of the sum or
sums so paid.


 


Section 207. Temporary Bonds.


 


(a) Until definitive
Bonds are ready for delivery, the Issuer may execute and, upon request of the
Issuer, the Trustee shall authenticate and deliver in lieu of definitive Bonds,
but subject to the same limitations and conditions as definitive Bonds,
temporary printed, engraved, lithographed or typewritten Bonds.


 


(b) If temporary Bonds
shall be issued, the Issuer shall cause the definitive Bonds to be prepared and
to be executed and delivered to the Trustee, and the Trustee, upon presentation
to it at its principal corporate trust office of any temporary Bond shall
cancel the same and authenticate and deliver in exchange therefor, without
charge to the Owner thereof, a definitive Bond or Bonds in the same aggregate
amount as the temporary Bond surrendered in Authorized Denominations. Until so
exchanged the temporary Bonds shall in all respects be entitled to the same
benefit and security of this Indenture as the definitive Bonds to be issued and
authenticated hereunder.


 


Section 208. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds. In the event any Bond shall become mutilated, or be lost,
stolen or destroyed, the Issuer shall execute and the Trustee shall
authenticate and deliver a new Bond of like date and tenor as the Bond
mutilated, lost, stolen or destroyed; provided that, in the case of any
mutilated Bond, such mutilated Bond shall first be surrendered to the Trustee,
and in the case of any lost, stolen or destroyed Bond, there shall be first
furnished to the Issuer and the Trustee evidence of such loss, theft or
destruction satisfactory to the Issuer and the Trustee, together with indemnity
satisfactory to them, the Borrower and the Credit Enhancer. In the event any
such Bond shall have matured or been called for redemption, instead of issuing
a substitute Bond the Issuer may pay or authorize the payment of the same
without surrender thereof. Upon the issuance of any substitute Bond, the Issuer
and


 


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the Trustee may require the
payment of an amount by the Bondowner sufficient to reimburse the Issuer and
the Trustee for any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable fees and expenses incurred in
connection therewith.


 


In the event that there are
Undelivered Bonds, the Trustee shall authenticate and deliver, with such
delivery to occur at the Principal Office of the Trustee to the new Owner or
Owners thereof a new Bond or Bonds of like amount in Authorized Denominations
registered in the name of the new Owner or Owners thereof. It shall be the duty
of the Trustee to hold the moneys received from the remarketing of a
replacement Bond issued in place of an Undelivered Bond, without liability for
interest thereon, for the benefit of the former Bondowner, who shall thereafter
be restricted exclusively to such moneys for any claim of whatever nature under
this Indenture or with respect to the Undelivered Bond and so long as the
moneys held by the Trustee equal the full amount due on such Bond on the tender
date, whether from such remarketing or payment on the Credit Facility, such
Bond shall thereafter no longer be secured by this Indenture or the Credit
Facility (except for such moneys so held). Such moneys shall be held by the
Trustee in the Purchase Fund, along with any other monies deposited in such
Fund pursuant to said Section, and no moneys held in the Purchase Fund shall be
invested.


 


Section 209. Cancellation and Destruction of Bonds Upon
Payment. All Bonds which have been paid or redeemed or which the Trustee has
purchased or which have otherwise been surrendered to the Trustee under this
Indenture, either at or before maturity, shall be cancelled and destroyed by
the Trustee immediately upon the payment, redemption or purchase of such Bonds
and the surrender thereof to the Trustee. The Trustee shall execute a
certificate in triplicate describing the Bonds so cancelled and destroyed, and
shall file executed counterparts of such certificate with the Issuer, the Borrower
and the Credit Enhancer. Bonds at any time held by the Issuer shall be
surrendered to the Trustee for cancellation in accordance with the provisions
of this Section.


 


Section 210. Limitation on Transfer and Exchange. The
Bonds have not been registered or qualified under the 1933 Act or the
securities laws of any state. Notwithstanding Section 206 hereof, so long
as the Credit Facility secures the Bonds, no transfer of any Bond shall be made
unless such transfer is made in a transaction which does not require
registration or qualification under the 1933 Act or under any applicable state
securities laws. The Trustee shall not register any transfer or exchange of a
Bond unless (i) such Bondholder’s prospective transferee delivers to the
Trustee an investment letter substantially in the form set forth as Exhibit H
to this Indenture; or (ii) an opinion of counsel in form and substance
reasonably satisfactory to the Trustee and the Credit Enhancer that such
transfer or exchange is made in accordance with an applicable exemption from
the 1933 Act and applicable state securities laws and such opinion is addressed
to and delivered to the Trustee, the Borrower and the Credit Enhancer; or (iii) such
transferee is an Eligible Transferee (as defined below) and the Remarketing
Agent has delivered a certificate stating that such transfer complies with the
exemption from registration provided by Rule 144A under the 1933 Act and
any applicable state securities laws. As used in this Section, an “Eligible
Transferee” is an entity that appears on a list provided by the Remarketing
Agent and which has delivered an investment letter to the Trustee substantially
in the form set forth as Exhibit H to this Indenture, provided, however,
that such list and investment letter are dated as of a date within the
preceding twelve months. Any such holder desiring to effect such transfer
shall, and does hereby, agree to indemnify the Trustee, the Borrower and the
Credit Enhancer against any liability, cost or expense (including attorneys’
fees) that may result if the transfer is not so exempt, or is not made in


 


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accordance with such federal
and state laws. The provisions of this paragraph shall not be applicable in the
event that the Issuer, the Trustee, the Borrower and the Credit Enhancer shall
have received an opinion of counsel in form and substance satisfactory to the
Issuer, the Trustee and the Credit Enhancer that the Bonds and the Credit
Facility are exempt from registration under the 1933 Act and any applicable
state securities laws.


 


[End
of Article II]


 


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ARTICLE III


 


TENDER AND PURCHASE OF BONDS


 


Section 301. Optional Tender of Bonds During Weekly Mode
or Monthly Mode.


 


(a) General. While the
Bonds are in a Weekly Mode or Monthly Mode, the Owner of any Bond shall have
the right to have such Bond purchased in whole or in part (which portion shall
be in a principal amount equal to an Authorized Denomination) on the dates
specified in paragraph (b) below at the Tender Price. An Owner’s exercise
of the option to have such Bond purchased is irrevocable and binding on such
Owner and cannot be withdrawn. If any Owner of Bonds shall fail to deliver the
Bonds described in such Owner’s Notice of Election to Tender Bonds in
accordance with this Section 301 such Bonds shall constitute Undelivered
Bonds. Replacement Bonds shall be executed, authenticated and delivered in the
place of such Undelivered Bonds as provided in Section 208 hereof and such
replacement Bonds may be offered and sold by the Remarketing Agent in
accordance with this Indenture and the Remarketing Agreement.


 


(b) Notice of Tender by
Bondowners. Any Bond, or portion thereof, shall be purchased on the Tender Date
by the Tender Agent on the demand of the Owner thereof, at the Tender Price,
upon delivery to the Tender Agent on a Business Day at its Principal Office of
an irrevocable written notice in the form of the Notice of Election to Tender
Bonds which states (A) the principal amount and number of such Bond (and
the portion of such Bond to be purchased if less than the full principal amount
is to be purchased), the name and the address of such Owner and the taxpayer
identification number, if any, of such Owner and (B) that such Bond, or
portion thereof, is to be purchased on a day (which shall be the Tender Date),
which day will be a Business Day which is at least seven (7) calendar days
after the receipt by the Tender Agent of such Notice of Election to Tender
Bonds. Such Notice of Election to Tender Bonds shall be deemed received on a
Business Day if received by the Tender Agent no later than 3:00 p.m., New
York Time, on such Business Day. Any Notice of Election to Tender Bonds
received by the Tender Agent after 3:00 p.m., New York Time, shall be
deemed received on the next succeeding Business Day.


 


Any Owner of Bonds who has
demanded purchase of its Bond, or portion thereof, as described in this Section 301
shall deliver such Bond (with an appropriate transfer of registration form executed
in blank, together with a signature guaranty) (together with, in the case of
any Bond with a specified Tender Date prior to an Interest Payment Date and
after the related Record Date, a due-bill check in form satisfactory to the
Tender Agent for interest due on such Bond on such Interest Payment Date) to
the Tender Agent at its Principal Office prior to 10:30 A.M., New York
Time, on the Tender Date specified in the aforesaid written notice.


 


(c) Failure to Give
Notice. Failure by the Tender Agent to redeliver a Notice of Election to Tender
Bonds or a Tendered Bond as provided in Section 303 hereof shall not
extend the period for making elections, in any way change the rights of the
Owners of Bonds to elect to have their Bonds purchased pursuant to this Section or
in any way change the conditions which must be satisfied in order for such
election to be effective or for payment of the purchase price to be made after
an effective election.


 


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Section 302. Mandatory Tender of Bonds.


 


(a) On Termination Date
or Interest Mode Adjustment Date. All Bonds are required to be tendered to the
Tender Agent for purchase on the Termination Date or an Interest Mode
Adjustment Date; provided, however, that there shall not be so tendered on the
Termination Date or the Interest Mode Adjustment Date, as applicable, any
Bonds, or portion thereof, which will be in Authorized Denominations with
respect to which the Owners thereof have delivered to the Tender Agent by hand
or by mail at its Principal Office a properly completed Notice of Election to
Retain Bonds, together with a signature guaranty, on or prior to the fifth
Business Day next preceding the Termination Date or the Interest Mode
Adjustment Date, as applicable, subject to the provisions of Section 204(b) hereof
(with respect to the Interest Mode Adjustment Date) and Section 302(f) hereof
(with respect to the Termination Date). Any Bondowner required to tender Bonds
under this subsection (a) shall tender its Bonds to the Tender Agent
for purchase at its Principal Office prior to 10:30 A.M., New York Time,
on the Termination Date or the Interest Mode Adjustment Date, as applicable.
The failure to tender Bonds on any such date is the equivalent of a tender, and
such Bonds shall be converted to Undelivered Bonds and replacement Bonds shall
be executed, authenticated and delivered in the place of such Undelivered Bonds
as provided in Section 208 hereof and such replacement Bonds may be
offered and sold by the Remarketing Agent in accordance with this Indenture and
the Remarketing Agreement, subject to the provisions of Section 204(b) and
Section 302(f) hereof, as applicable.


 


(b) On Alternate Credit
Facility Date. While the Bonds are in an Interest Mode other than a Multiyear
Mode, all Bonds are required to be tendered to the Tender Agent for purchase on
an Alternate Credit Facility Date; provided, however, that there shall not be
so tendered on the Alternate Credit Facility Date any Bonds or portion thereof
which will be in Authorized Denominations with respect to which the Owners
thereof have delivered to the Tender Agent by hand or by mail at its Principal
Office a properly completed Notice of Election to Retain Bonds, together with a
signature guaranty, on or prior to the fifth Business Day next preceding the
Alternate Credit Facility Date. Any Bondowner required to tender Bonds under
this subsection (b) shall tender its Bonds to the Tender Agent for
purchase at its Principal Office prior to 10:30 A.M., New York Time, on
the Alternate Credit Facility Date. The failure to tender Bonds on any such
date is the equivalent of a tender and such Bonds shall be converted to
Undelivered Bonds and replacement Bonds shall be executed, authenticated and
delivered in the place of such Undelivered Bonds as provided in Section 208
hereof and such Replacement Bonds may be offered and sold by the Remarketing
Agent in accordance with this Indenture and the Remarketing Agreement.


 


(c) On Rate Adjustment
Date During Semiannual Mode. Annual Mode and Multiyear Mode. While the Bonds
are in a Semiannual Mode, Annual Mode or Multiyear Mode, all Bonds are required
to be tendered to the Tender Agent for purchase on each Rate Adjustment Date;
provided, however, that there shall not be so tendered on any Rate Adjustment
Date any Bonds or portion thereof which will be in Authorized Denominations
with respect to which the Owners thereof have delivered to the Tender Agent by
hand or by mail at its Principal Office a properly completed Notice of Election
to Retain Bonds, together with a signature guaranty, on or prior to the fifth
Business Day next preceding such Rate Adjustment Date. Any Bondowner required
to tender Bonds under this subsection (c) shall tender Bonds to the
Tender Agent for purchase at its Principal Office prior to 10:30 A.M., New
York Time, on the Rate Adjustment Date. The failure to tender its Bonds on any
such date is the equivalent of a tender and such Bonds shall be converted to
Undelivered Bonds


 


26





















 


and Replacement Bonds shall
be executed, authenticated and delivered in the place of such Undelivered Bonds
as provided in Section 208 hereof and such Replacement Bonds may be
offered and sold by the Remarketing Agent in accordance with this Indenture and
the Remarketing Agreement.


 


(d) Mandatory Tender in
Lieu of Acceleration on Default. Additionally, all Bonds shall be subject to
mandatory tender for purchase on the Mandatory Purchase Date from the
Bondowners by the Trustee for the account of the Credit Enhancer, as set forth
in Section 802(b) hereof in lieu of acceleration of the Bonds as set
forth in Section 802(a) hereof, and mandatory redemption of Bonds as
set forth in Section 402(c) and upon the occurrence of an Event of
Default under Section 801(e) hereof. Upon receipt of notice from the
Credit Enhancer directing the Trustee to purchase the Bonds and the
establishment by the Trustee of the Mandatory Purchase Date, which shall be a
Business Day which is at least three (3) and no more than ten (10) calendar
days after the receipt by the Trustee of such notice, the Trustee shall
immediately request a payment under the Credit Facility pursuant to Section 508
hereof in the amount required by Section 802(b) to be received no
later than 3:00 o’clock P.M., New York Time, on the Mandatory Purchase
Date, and shall also send notice to the Bondowners of the mandatory purchase.
On the Mandatory Purchase Date, the Tender Agent shall pay to the Bondowners
the purchase price for the Bonds, which shall be an amount equal to 100% of the
principal amount of any Bond tendered or deemed tendered plus accrued and
unpaid interest thereon to the Mandatory Purchase Date. Any Bondowner required
to tender Bonds under this subsection (d) shall tender its Bonds to
the Tender Agent for purchase at its Principal Office prior to 10:30 o’clock A.M.,
New York Time, on the Mandatory Purchase Date. The failure to tender Bonds on
any such date is the equivalent of a tender and such Bonds shall be converted
to Undelivered Bonds and replacement Bonds shall be executed, authenticated and
delivered in the place of such Undelivered Bonds as provided in Section 208
hereof.


 


(e) Notice of Mandatory
Tender. The Trustee shall give notice to Bondowners of the mandatory tender for
purchase of Bonds (i) on an Interest Mode Adjustment Date in accordance
with Section 204 hereof, (ii) on an Alternate Credit Facility Date in
accordance with Section 706 hereof, (iii) if the Bonds are in a
Multiyear Mode, Annual Mode or Semiannual Mode, on a Rate Adjustment Date in
accordance with Section 203(e) hereof, (iv) on the Termination
Date not less than 25 or more than 60 calendar days prior to such Termination
Date and (v) on the Mandatory Purchase Date in accordance with Section 302(d) hereof.


 


(f) Failure to Give
Notice. Failure by the Trustee to give any notice as provided in paragraph (e) of
this Section, any defect therein or any failure by any Bondowner to receive any
such notice shall not in any way change such Owner’s obligation to tender the
Bonds for purchase on any mandatory Tender Date.


 


(g) No Remarketing. No
Bond purchased on the Termination Date pursuant to Section 302(a) shall
be remarketed on any date on or prior to the delivery of an Alternate Credit
Facility. All Bonds transferred hereunder shall be in compliance with the
provisions of Section 210 hereof.


 


Section 303. Irrevocability of Elections: Return of
Improperly Completed Documents. The Tender Agent, to whom a Notice of Election
to Tender Bonds or a Notice of Election to Retain Bonds has been delivered,
shall determine whether such Notice has been properly completed and such
determination shall be binding on the Owner of such Bond. Any election by a
Bondowner to


 


27





















 


exercise the option to have
its Bond or Bonds purchased, or any election by a Bondowner to retain its Bond
or Bonds upon any mandatory Tender Date, shall be irrevocable upon delivery to
the Tender Agent of the Notice of Election to Tender Bonds (together with, if
required at the time of delivery of such notice, the Tendered Bonds) or of the
Notice of Election to Retain Bonds, as the case may be. The Tender Agent shall
promptly return any incomplete or improperly completed Notice of Election to
Tender Bonds (together with, if required, the Tendered Bonds) or Notice of
Election to Retain Bonds to the Person or Persons submitting such documents.


 


Section 304. Notice of Principal Amount of Bonds
Tendered. Promptly upon its receipt of any Notice of Election to Tender Bonds
pursuant to Section 301 hereof, the Tender Agent shall (i) verify the
information contained in such Notice against the Bondholder list provided to
the Tender Agent by the Trustee, which list shall be delivered by the Trustee
to the Tender Agent no later than the second Business Day prior to each Tender
Date, (ii) verify that both the Tendered Bonds and the Bonds retained by
the Owner are in Authorized Denominations, and (iii) give Immediate Notice
to the Trustee, the Remarketing Agent, the Credit Enhancer and the Borrower of
its receipt of such Notice and specifying the total principal amount of Bonds
to be tendered for purchase on the applicable Tender Date. Promptly after the
requisite time by which Notices of Election to Retain Bonds are required to be
delivered pursuant to Section 302 hereof, the Tender Agent shall give
Immediate Notice to the Trustee, the Remarketing Agent, the Credit Enhancer and
the Borrower of its receipt of such Notices and specifying the total principal
amount of Bonds required to be tendered for purchase on the applicable Tender
Date and the aggregate Tender Price therefor. The written portion of such
Immediate Notice given by the Tender Agent shall include copies of such Notices
of Election to Tender Bonds or Notices of Election to Retain Bonds.


 


Section 305. Remarketing of Tendered Bonds. Pursuant to
the terms hereof and of the Remarketing Agreement, and upon receipt of notice
from the Tender Agent, specifying the principal amount of Tendered Bonds, as
provided in Section 304 hereof, the Remarketing Agent shall exercise its
best efforts to sell all of such Tendered Bonds as provided in the Remarketing
Agreement subject to the provision of Section 210 hereof; provided,
however, that the Remarketing Agent shall not remarket any Bonds at a price below
par plus accrued interest thereon. The Remarketing Agent shall transfer, by
wire transfer in immediately available funds, an amount equal to the proceeds
derived from such sale of Tendered Bonds to the Tender Agent at or before 10:00 A.M.,
New York Time, on the Tender Date. The Tender Agent shall immediately notify
the Trustee in writing of any amount received by the Tender Agent from the
Remarketing Agent The Trustee shall transfer from the Purchase Fund from the
proceeds received from the Credit Facility, by wire transfer in immediately
available funds to the Tender Agent at or before 4:00 P.M., New York Time,
on the Tender Date, any additional-amount needed by the Tender Agent to pay the
full Tender Price on the Tender Date. The Trustee shall, on the Tender Date,
remit to the Credit Enhancer the remainder of the funds in the Purchase Fund
(other than any funds being held for the benefit of former Owners of
Undelivered Bonds) which were not transferred to the Tender Agent on such
Tender Date including all investment earnings thereon as soon thereafter as
available. The Tender Agent shall, on the Tender Date, remit to the Credit
Enhancer the amount (if any) by which the sum of the amounts transferred to the
Tender Agent by the Remarketing Agent and the amounts transferred to the Tender
Agent by the Trustee exceed the Tender Price of the Tendered Bonds to the
extent such funds are owed to the Credit Enhancer; and if no funds are owed to
the Credit Enhancer, such amount shall be remitted to the Borrower.


 


28


















 


Section 306. Notice of Principal Amount of Bonds
Remarketed.


 


(a) Prior to 10:00 A.M.,
New York Time, on the second Business Day immediately preceding the Tender
Date, or such later time as shall be agreed to by the Tender Agent and the
Credit Enhancer, the Remarketing Agent shall give Immediate Notice to the
Trustee, the Tender Agent, the Credit Enhancer and the Borrower specifying the
new interest rate, if any, to become effective as of such Tender Date (if such
Tender Date is a Rate Adjustment Date) and the aggregate principal amount of
Tendered Bonds which (i) have been remarketed other than to the Issuer,
the Borrower or any Affiliated Party of the Borrower and the Tender Price
therefor, (ii) have not been remarketed and the Tender Price therefor, (iii) have
been remarketed to the Issuer, the Borrower or any Affiliated Party of the
Borrower, and (iv) the amount of money, if any, to be paid over to the
Tender Agent by the Remarketing Agent on the Tender Date, which amount shall be
equal to the proceeds of the sale of the Tendered Bonds so remarketed (other
than the remarketing of Tendered Bonds to the Issuer, the Borrower or any
Affiliated Party of the Borrower). Proceeds of the sale of Tendered Bonds to
the Issuer, the Borrower or any Affiliated Party of the Borrower shall be
deposited and applied in accordance with Section 505(d) hereof.
Concurrently with the notice described in the second preceding sentence, the
Remarketing Agent shall also give the Trustee (with a copy to the Tender Agent)
instructions as to the registration and delivery, with such delivery to occur
at the Principal Office of the Tender Agent, to the Remarketing Agent of any
Tendered Bonds for whose purchase the Remarketing Agent will make a deposit of
funds with the Tender Agent on the Tender Date.


 


 (b) Prior to 10:00 a.m., New York
Time on the Business Day immediately preceding the Tender Date, the Tender
Agent shall give Immediate Notice to the Trustee, the Borrower and the Credit
Enhancer specifying the amount of proceeds from the remarketing of tendered
Bonds on deposit with the Tender Agent. The Trustee shall make a demand for
payment on the Credit Facility in accordance with Section 508(b) hereof
in an amount equal to the Tender Price of all Tendered Bonds less the proceeds
of the remarketing of Tendered Bonds then on deposit with the Tender Agent. The
Trustee shall cause the proceeds of the payment under the Credit Facility to be
delivered to the Tender Agent for purchase of Tendered Bonds as described in Section 307
hereof.


 


Section 307. Purchase of Tendered Bonds.


 


(a) Tendered Bonds shall
be purchased from the Owners thereof on the Tender Date at the Tender Price
which shall be payable solely from the following sources in the order of
priority listed:


 


(1) Remarketing
Proceeds;


 


(2) proceeds
of a payment under the Credit Facility to purchase such Tendered Bonds;


 


(3) Available
Moneys from any other source; and


 


(4) moneys
from any other source.


 


29





















 


(b) On each Tender Date,
all Bonds purchased out of Remarketing Proceeds shall be delivered and
registered as directed by the Remarketing Agent pursuant to Section 306(a) hereof.


 


(c) The Tender Agent
shall pay the Tender Price for each Tendered Bond prior to the Tender Agent’s
close of business on the Tender Date only after receipt of such Bond, properly
endorsed in blank, together with a signature guaranty (together with, in the
case of any Bond with a specified Tender Date prior to an Interest Payment Date
and after the related Record Date, a due-bill check in form satisfactory to the
Tender Agent for interest due on such Bond on such Interest Payment Date).
Payment of the Tender Price of any Bond tendered for purchase shall be made: (1) by
check or draft mailed to the Owner thereof at the Owner’s address as it appears
on the Bond Register or at such other address as is furnished to the Tender
Agent in writing by such Owner; or (2) in the case of the purchase from an
Owner of $1,000,000 or more in aggregate principal amount of Bonds, by wire
transfer to such Owner upon written notice from such Owner containing the wire
transfer address (which shall be in the continental United States) to which
such Owner wishes to have such wire directed which written notice accompanies
such Owner’s Notice of Election to Tender Bonds.


 


(d) The Trustee shall
take the following actions with respect to Tendered Bonds: (1) with
respect to Bonds which have been remarketed and for which the Tender Agent has
received payment, on the written advice of the Remarketing Agent, authenticate
said Bonds in the names of the purchasers thereof and in the appropriate
denominations, and deliver said Bonds to the Remarketing Agent upon the Tender
Agents receipt of payment therefor; (2) with respect to Tendered Bonds
which have not been remarketed and which are to be purchased by the Borrower
and pledged to the Credit Enhancer pursuant to the Bond Pledge Agreement,
register said Bonds as owned by the Borrower and pledged to the Credit Enhancer
and hold such Bonds as agent and bailee for the Credit Enhancer in accordance
with the terms of the Bond Pledge Agreement; and (3) with respect to all
Bonds which have been physically tendered, cancel such certificates. Tendered
Bonds which have been purchased by the Trustee on behalf of the Borrower shall
be registered in the name of the Borrower subject to the security interest of
the Credit Enhancer, and held on behalf of the Credit Enhancer.


 


(e) Notwithstanding
anything in this Indenture to the contrary, the Tender Agent shall pay the
Tender Price with respect to an Undelivered Bond only upon the actual receipt
of such Bond, and such Tender Price shall be equal to the par amount of such
Bond plus accrued interest to the Tender Date. An Undelivered Bond shall not be
considered Outstanding pursuant to this Indenture and shall not be secured by
the Credit Facility.


 


Section 308. Remarketing of Pledged Bonds. When a
purchaser for Pledged Bonds is found, the Remarketing Agent will (a) give
Immediate Notice prior to 10:00 A.M., New York Time, on the second
Business Day next preceding the Placement Date, or such earlier or later time
as shall be agreed to by the Credit Enhancer, the Trustee and the Borrower, to
the Credit Enhancer, the Borrower and the Trustee specifying the principal
amount of Pledged Bonds to be purchased, the purchase price thereof and the
Placement Date on which such purchase is to occur and (b) instruct the
purchasers thereof to deliver an amount (in immediately available funds) equal
to the purchase price of such Pledged Bonds to the Trustee by 10:30 A.M.,
New York Time, on the Placement Date for the same day transfer to the Credit
Enhancer. No Pledged Bonds shall be released to new Owners unless the Trustee
and the Tender Agent have received written notice from the Credit


 


30





















 


Enhancer that the Credit
Facility has been reinstated by an amount equal to the principal of and
interest portion of such Pledged Bonds and that the Credit Enhancer has been
reimbursed for the amount of the draw to purchase such Pledged Bonds. The
Pledged Bonds shall be purchased, subject to the provisions of Section 210
hereof, from the Borrower on the Placement Date at a purchase price equal to
the principal amount thereof. In addition, until the purchase price therefor is
received by the Credit Enhancer, Bonds shall not be delivered to the purchaser
of Pledged Bonds and such Pledged Bonds to be so purchased shall remain Pledged
Bonds.


 


Section 309. Purchase Fund.


 


(a) The Purchase Fund
has not been pledged or assigned under this Indenture and is not subject to the
lien created by this Indenture. Upon receipt by the Tender Agent of the
proceeds of a remarketing of Tendered Bonds (other than Bonds remarketed to the
Issuer, the Borrower or an Affiliated Party of the Borrower, which will be
placed in a separate trust account in the Purchase Fund), the Tender Agent
shall deposit such funds in a segregated escrow account maintained by the
Tender Agent and designated “Undelivered Bond Account” which funds shall not be
invested, and the Tender Agent shall not be liable to the Issuer or the
Borrower for any interest thereon, and any moneys shall be held and applied as
provided herein. The Trustee shall deposit moneys received from the Credit
Enhancer pursuant to a payment on the Credit Facility in accordance with Section 508(b)(4) or
(5) hereof in the Purchase Fund for application to the Tender Price of the
Tendered Bonds. Upon receipt by the Trustee of the proceeds of the placement of
Pledged Bonds on a Placement Date, the Trustee shall deposit such moneys in the
Purchase Fund for payment to the Credit Enhancer to the extent such Pledged
Bonds were purchased out of funds provided by the Credit Facility and not
reimbursed to the Credit Enhancer by the Borrower and, thereafter, to the
Borrower. Moneys from the remarketing of Tendered Bonds to the Issuer, the
Borrower or an Affiliated Party of the Borrower, shall be applied solely to the
purchase price of Pledged Bonds.


 


(b) On any Tender Date
or Placement Date, the Trustee shall transfer on the Bond Register ownership of
all of the Tendered Bonds to the names of the respective purchasers thereof.
From and after such date, the principal of, redemption premium, if any, and
interest on such Bonds shall be payable solely to such purchasers, their
transferees or the successors thereto. The Owners of Tendered Bonds immediately
prior to a Tender Date with respect to which a Notice of Election to Tender
Bonds has been given pursuant to Section 301 hereof or a Notice of Election
to Retain Bonds has not been given pursuant to Section 302 hereof shall be
entitled solely to payment of the Tender Price for such Bonds upon delivery
thereof to the Tender Agent as herein provided and shall not be entitled to the
payment of any principal, redemption premium, if any, or interest thereon
thereafter.


 


Section 310. No Sales After Certain Defaults.
Notwithstanding any provision of this Indenture to the contrary, there shall be
no sales of Bonds pursuant to this Article III if there shall have
occurred and be continuing an Event of Default described in Section 801
(a), (b), (c), (e) or (g) (except, with respect to paragraph (g), a
default under Section 801(d) or (f) of the Series 1994B
Indenture) hereof The Trustee shall give Immediate Notice to the Paying Agent,
the Remarketing Agent, the Tender Agent, the Credit Enhancer, the Borrower and
the Bondowners of (i) the occurrence and continuation of any of the events
set forth in the preceding sentence and that such event results in no purchase
or sales of Bonds being permitted pursuant to this Article III


 


31





















 


and (ii) the curing of
any of such events and that in consequence purchases and sales are again
permitted pursuant to this Article III.


 


Section 311. Remarketing Agent. The Issuer, upon
instructions from the Borrower, with the written consent of the Credit
Enhancer, or upon instructions from the Credit Enhancer if an event of default
under the Letter of Credit Agreement exists, shall appoint the Remarketing
Agent for the Bonds, subject to the conditions set forth in Section 312
hereof. The Issuer hereby appoints Stern Brothers & Co. as the initial
Remarketing Agent. The Remarketing Agent shall designate to the Trustee its
principal office and signify its acceptance of the duties and obligations
imposed upon it hereunder by a written instrument of acceptance or a
remarketing agent agreement delivered to the Issuer, the Borrower and the
Credit Enhancer under which the Remarketing Agent will also agree to keep such
books and records as shall be consistent with prudent industry practice and to
make such books and records available for inspection by the Issuer, the
Trustee, the Tender Agent, the Borrower and the Credit Enhancer at all
reasonable times. The Borrower and the Remarketing Agent shall enter into a
Remarketing Agreement the terms of which shall be subject to the written
approval of the Credit Enhancer.


 


Section 312. Qualifications of Remarketing Agent. The
Remarketing Agent shall be a member of the National Association of Securities
Dealers, Inc. and shall meet such capitalization and/or credit
requirements as are acceptable to the Rating Agency, and authorized by law to
perform all the duties imposed upon it by this Indenture. The Remarketing Agent
may at any time resign and be discharged of the duties and obligations created
by this Indenture by giving at least 30 days’ written notice to the Issuer, the
Borrower, the Tender Agent, the Trustee and the Credit Enhancer. The
Remarketing Agent may be removed at any time, without cause, upon at least 30
days’ written notice to the Remarketing Agent, at the direction of the Credit
Enhancer or the Borrower by an instrument signed by an Authorized Borrower
Representative, with the written consent of the Credit Enhancer, filed with the
Trustee, the Credit Enhancer, the Tender Agent, the Issuer and the Remarketing
Agent. In no event shall the resignation or removal of the Remarketing Agent be
effective until a qualified successor has accepted appointment as such.


 


In the event of the
resignation or removal of the Remarketing Agent, the Remarketing Agent shall
pay over, assign and deliver any moneys and Bonds held by it in such capacity
to its successor. In the event that the Issuer shall fail to appoint a replacement
Remarketing Agent hereunder, the Credit Enhancer with the written consent of
the Borrower, or the Borrower with the written consent of the Credit Enhancer,
may do so.


 


[End
of Article III]


 


32





















 


ARTICLE IV


 


REDEMPTION OF BONDS


 


Section 401. Optional Redemption.


 


(a) Optional Redemption
of Bonds Not in Multiyear Mode. Bonds (other than Bonds in a Multiyear Mode)
shall be subject to redemption and payment prior to maturity, at the option of
the Issuer upon instructions from the Borrower with the prior written consent
of the Credit Enhancer, on any Interest Payment Date, in whole or in part in
Authorized Denominations, at the principal amount thereof plus accrued interest
to the redemption date, first, from proceeds of a payment under the Credit
Facility and, second, from other Available Moneys.


 


(b) Optional Redemption
of Bonds in Multiyear Mode. The Bonds in a Multiyear Mode shall be subject to
redemption and payment prior to maturity, at the option of the Issuer upon
instructions from the Borrower with the prior written consent of the Credit
Enhancer, on any Interest Payment Date, in whole or in part in Authorized
Denominations, at the redemption prices (expressed as percentages of the
principal amount) set forth below, plus accrued interest to the redemption
date, first, from proceeds of a payment under the Credit Facility and, second,
from other Available Moneys as follows:


 


OPTIONAL
REDEMPTION IN MULTIYEAR MODE


 


	
  Length of

  Multiyear Mode

  (In Years)*

  	
   

  	
  Redemption Prices

  as a Percentage of

  Principal Amounts

  	
   

  	
  Call Protection

  Period*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than 10

  	
   

  	
  102% after 7 years

  	
   

  	
  7 years

  
	
   

  	
   

  	
  declining 1/2% per 12

  	
   

  	
   

  
	
   

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  102% after 4 years

  	
   

  	
  4 years

  
	
  to 10 and greater

  	
   

  	
  declining 1/2% per 12

  	
   

  	
   

  
	
  than 7

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  102% after 3 years

  	
   

  	
  3 years

  
	
  to 7 and greater

  	
   

  	
  declining 1% per 12

  	
   

  	
   

  
	
  than 5

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  101% after 2 years

  	
   

  	
  2 years

  
	
  to 5 and greater

  	
   

  	
  declining 1/2% per 6

  	
   

  	
   

  
	
  than 2

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  100 1/2% after 1 year

  	
   

  	
  1 year

  
	
  to 2 and greater

  	
   

  	
  declining 1/2% per 6

  	
   

  	
   

  
	
  than 1

  	
   

  	
  months to 100%

  	
   

  	
   

  



 










*Measured from and including
the first day of such Rate Period.


 


33





















 


(c) Any provision herein
to the contrary notwithstanding, no notice of the redemption of Bonds pursuant
to this Section 401 shall be given unless sufficient Available Moneys are
available and have been irrevocably deposited into the Available Moneys Account
or the Credit Facility Account of the Revenue Fund with the Trustee, or if the
Credit Enhancer commits to make a payment under the Credit Facility to the
Trustee pursuant to Section 508(b)(3) hereof.


 


Section 402. Mandatory and Extraordinary Redemption.


 


(a) Redemption Upon
Determination of Taxability. The Bonds shall be subject to mandatory redemption
by the Issuer in whole on the earliest practicable date for which notice can be
given, if a Determination of Taxability occurs, first, from proceeds of a
payment under the Credit Facility, and, second, from other Available Moneys at
the principal amount thereof, without premium, plus accrued interest to the
redemption date.


 


(b) [Reserved.]


 


(c) Redemption Upon
Letter of Credit Agreement Default. The Bonds shall be subject to immediate
mandatory redemption by the Issuer in whole in the event the Trustee shall
receive from the Credit Enhancer written notice of the occurrence of an event
of default under the Letter of Credit Agreement and direction to accelerate the
Bonds and irrevocable instructions to obtain a payment under the Credit
Facility in accordance with the terms of the Credit Facility, first, from
proceeds of a payment under the Credit Facility and, second, from other Available
Moneys at the principal amount thereof, without premium, plus accrued interest
to the date of redemption, and the Bonds shall cease to bear interest on such
date as is established by the Trustee, which shall be a Business Day that is at
least three and no more than ten calendar days after receipt by the Trustee of
said notice; provided that pursuant to Section 802(b) hereof the
Credit Enhancer may direct the purchase of Bonds in such event in lieu of
mandatory redemption. The receipt of such notice shall be conclusive and
binding upon the Trustee, the Issuer and the Bondholders as to the occurrence
of a default under the Letter of Credit Agreement.


 


(d) Redemption in Event
of Condemnation. Deficiency of Title, Fire or Other Casualty. The Bonds shall
be subject to redemption by the Issuer, at the option of and upon instructions
from the Borrower with the prior written consent of the Credit Enhancer, in
whole or in part at any time on the earliest practicable date for which notice
can be given, upon the occurrence of a condemnation, loss of title or casualty
loss to the Project, first, from proceeds of a payment under the Credit
Facility, and second, from other Available Moneys at the principal amount
thereof, without premium, plus accrued interest to the redemption date.


 


(e) [Reserved.]


 


(f) Redemption from
Excess Moneys in Project Fund. The Bonds are subject to mandatory redemption in
part on the earliest practicable date after the Completion Date for the Project
as certified by the Borrower in accordance with the Agreement, to the extent of
excess moneys remaining in the Project Fund, at the principal amount thereof,
without premium, plus accrued interest to the redemption date. If the amount of
moneys remaining in the Project Fund is not sufficient to redeem an Authorized
Denomination of Bonds, the Borrower shall arrange for the deposit with the
Trustee of sufficient Available Moneys to effect the redemption of a minimum
Authorized Denomination of Bonds.


 


34





















 


Section 403. Selection of Bonds to be Redeemed.


 


(a) Bonds shall be
redeemed pursuant to Sections 401 and 402 only in Authorized Denominations.
When less than all of the Outstanding Bonds are to be redeemed and paid prior
to maturity pursuant to Section 401 or 402 hereof, such Bonds or portions
of Bonds to be redeemed shall be selected by the Trustee by lot in Authorized
Denominations in such equitable manner as it may determine; provided that Bonds
shall be redeemed in the following order of priority: (1) Pledged Bonds; (2) Tendered
Bonds that cannot be remarketed; and (3) any other Bonds.


 


(b) In the case of a
partial redemption of Bonds when Bonds of denominations greater than the
applicable Authorized Denominations are then Outstanding, then for all purposes
in connection with such redemption each unit of face value of the applicable
Authorized Denomination shall be treated as though it was a separate Bond of
the applicable Authorized Denomination. If one or more, but not all, of the
units of principal amount of the applicable Authorized Denomination represented
by any Bond are selected for redemption, then upon notice of intention to
redeem such unit or units, the Owner of such Bond or such Owner’s attorney or
legal representative shall forthwith present and surrender such Bond to the
Trustee (i) for payment of the redemption price (including the redemption
premium, if any, and interest to the date fixed for redemption) of the unit or
units of principal amount called for redemption, and (ii) for exchange, without
charge to the Owner thereof, for a new Bond or Bonds of the aggregate principal
amount of the unredeemed portion of the principal amount of such Bond. If the
Owner of any such Bond of a denomination greater than the applicable Authorized
Denominations shall fail to present such Bond to the Trustee for payment and
exchange as aforesaid, said Bond shall, nevertheless, become due and payable on
the redemption date to the extent of the unit or units of principal amount
called for redemption and shall cease to accrue interest on such amount.


 


(c) No Bond may be
redeemed in part if the principal amount thereof to remain outstanding
following such partial redemption is not itself an Authorized Denomination.


 


Section 404. Notice of Redemption of Bonds in Weekly or
Monthly Mode. Notice of the call of Bonds in the Weekly Mode or the Monthly
Mode for any redemption identifying the Bonds or portions thereof to be
redeemed shall be given by the Trustee, in the name of the Issuer, to the
Remarketing Agent, the Credit Enhancer, the Borrower and the Owner of each Bond
to be redeemed at the address shown on the Bond Register by mailing a copy of
the redemption notice by first-class mail, postage prepaid, at least 15 days
and not more than 30 days prior to the redemption date; provided, however, that
failure to give such notice by mailing as aforesaid to any Bondowner or any
defect therein as to any particular Bond shall not affect the validity of any
proceedings for the redemption of any other Bonds; and provided further that no
such prior notice of redemption is required for a redemption pursuant to Section 402(c) hereof.
As provided in Section 405 hereof, any notice of redemption shall state
the date and place of redemption, the numbers of the Bonds or portions of Bonds
to be redeemed (and in the case of the redemption of a portion of any Bond the
principal amount thereof being redeemed), the redemption prices and that
interest will cease to accrue from and after the redemption date. Following
each redemption of Bonds, the Trustee shall mail by first-class mail to the
Borrower and the Credit Enhancer a notice of the principal amount of Bonds
redeemed.


 


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Section 405. Notice of redemption of Bonds in Semiannual,
Annual or Multiyear Mode.


 


(a) Unless waived by any
Owner of Bonds to be redeemed, official notice of any redemption of Bonds in a
Semiannual, Annual or Multiyear Mode shall be given by the Trustee on behalf of
the Issuer by mailing a copy of an official redemption notice by first class
mail, postage prepaid, at least 15 days and not more than 30 days prior to the
redemption date to the Remarketing Agent, the Credit Enhancer and the Owner of
the Bond or Bonds to be redeemed at the address shown on the Bond Register or
at such other address as is furnished in writing by such Owner to the Trustee;
provided, however, that failure to give such notice by mailing as aforesaid to
any Bondowner or any defect therein as to any particular Bond shall not affect
the validity of any proceedings for the redemption of any other Bonds; and
provided further that no such prior notice of redemption is required for a
redemption pursuant to Section 402(c) hereof. The Trustee shall not
give the notice described above with respect to redemption of the Bonds
pursuant to Section 401 (a) or (b) or Section 402(d) hereof
without the prior written consent of the Credit Enhancer.


 


(b) All official notices
of redemption pursuant to this Section and Section 404 hereof shall
be dated and shall state:


 


(1) the
redemption date,


 


(2) the
redemption price,


 


(3) if
less than all outstanding Bonds are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of the Bonds
to be redeemed,


 


(4) that
on the redemption date the redemption price will become due  and payable upon each such Bond or portion
thereof called for redemption, and
that interest thereon shall cease to accrue from and after said date, and


 


(5) the
place where such Bonds are to be surrendered for payment of  the redemption price, which place of payment
shall be the Principal Office of
the Trustee.


 


(c) In addition to the
foregoing notice, further notice pursuant to this Section and Section 404
hereof shall be given by the Trustee on behalf of the Issuer as set out below,
but no defect in said further notice nor any failure to give all or any portion
of such further notice shall in any manner defeat the effectiveness of a call
for redemption if notice thereof is given as above prescribed.


 


(1) Each
further notice of redemption given hereunder shall contain  the information required above for an official
notice of redemption plus (i) the
CUSIP numbers of all Bonds being redeemed; (ii) the date of issue of the Bonds as originally issued; (ill) the
rate of interest borne by each
Bond being redeemed; (iv) the maturity date of each Bond being redeemed; and (v) any other descriptive
information needed to identify accurately
the Bonds being redeemed.


 


36





















 


(2) Each
further notice of redemption shall be sent at least 35 days  before the redemption date by registered or
certified mail or overnight delivery
service to Depository Trust Company, Midwest Securities Trust Company, Pacific Securities Depository Trust
Company and Philadelphia Depository
Trust Company and to one or more national information services that disseminate notices of redemption of
obligations such as the Bonds.


 


(d) With respect to all
Bonds redeemed pursuant to this Indenture, upon the payment of the redemption
price of Bonds being redeemed, each check or other transfer of funds issued for
such purpose shall bear the CUSIP number identifying, by issue and maturity,
the Bonds being redeemed with the proceeds of such check or other transfer.


 


(e) With respect to all
Bonds redeemed pursuant to this Indenture, following each redemption of Bonds,
the Trustee shall mail by first-class mail to the Credit Enhancer and the
Borrower a notice of the principal amount of Bonds redeemed.


 


Section 406. Effect of Call for Redemption. On or prior
to the date fixed for redemption, Available Moneys available solely for such
redemption in accordance with the requirements of Sections 401 and 402 hereof
shall be deposited with the Trustee to pay the principal of the Bonds called
for redemption and accrued interest thereon to the redemption date and the
redemption premium, if any, thereon. Upon the happening of the above
conditions, and notice having been given as provided in Section 404 or 405
hereof, as applicable, the Bonds or the portions of the principal amount of
Bonds thus called for redemption shall cease to bear interest on the specified
redemption date, provided moneys (which must be Available Moneys when required
by Section 401 or 402 hereof) sufficient for the payment of the redemption
price of the Bonds called for redemption are on deposit at the place of payment
at the time fixed for such redemption, and shall no longer be entitled to the
protection, benefit or security of this Indenture and shall not be deemed to be
Outstanding under the provisions of this Indenture.


 


[End
of Article IV]


 


37





















 


ARTICLE V


 


REVENUES AND FUNDS


 


Section 501. Creation of Funds and Accounts. The
following Funds and Accounts of the Issuer are hereby created and established
with the Trustee:


 


(a) the Project Fund;


 


(b) the Costs of
Issuance Fund;


 


(c) the Revenue Fund,
consisting of the Unavailable Moneys Account, the Available Moneys Account and
the Credit Facility Account;


 


(d) the Debt Service
Fund, consisting 9f the Interest Account, the Principal Account and the
Redemption Account;


 


(e) the General Fund;


 


(f) the Purchase Fund
and the Undelivered Bond Account therein; and


 


(g) the Rebate Fund.


 


Each Fund and Account shall
be maintained by the Trustee as a separate and distinct trust fund or account
to be held, managed, invested, disbursed and administered as provided in this
Indenture. All moneys deposited in the Funds and Accounts shall be used solely
for the purposes set forth in this Indenture. The Trustee shall keep and
maintain adequate records pertaining to each Fund and Account and all
disbursements therefrom.


 


Section 502. Initial Deposits. On the Bond Issuance Date,
as shall be more fully specified in a written request from the Issuer, the
Trustee shall deposit $7,546,000 from the proceeds received from the sale of
the Bonds into the Project Fund and $154,000 to the Costs of Issuance Fund.


 


Section 503. Project Fund.


 


(i) Moneys in the
Project Fund shall be disbursed in accordance with the provisions of the
Agreement for Project Purposes as provided in the Agreement.


 


(ii) The Trustee shall
cause to be kept and maintained adequate  records pertaining to the Project Fund and all disbursements from suchFund. If requested by the Issuer, the
Credit Enhancer or the Borrower, the Trustee shall file copies of the records pertaining to the Project Fundand all disbursements from such fund
with the Issuer, the Credit Enhancer and the Borrow.


 


Section 504. Costs of Issuance Fund. The Trustee shall
deposit into the Costs of Issuance Fund the amount required by Section 502.
Moneys in the Costs of Issuance Fund shall be disbursed


 


38





















 


from time to time for the
payment of the costs of issuing the Bonds upon the direction of the Borrower as
evidenced by a requisition in the form of Exhibit B to the Agreement
executed by an Authorized Borrower Representative and approved by the Credit
Enhancer. Moneys in the Costs of Issuance Fund shall be expended no later than
180 days after the Bond Issuance Date. Any moneys remaining therein on such
date shall be transferred to the General Fund and the Costs of Issuance Fund
shall be closed.


 


Section 505. Revenue Fund.


 


(a) The Trustee shall
deposit into the Revenue Fund all Revenues (except as otherwise provided in Section 509
hereof) and any other amounts received by the Trustee which are subject to the
lien and pledge of this Indenture, to the extent not required to be deposited
in other Funds and Accounts in accordance with the terms of this Indenture. The
Trustee shall first apply those moneys on deposit in the Credit Facility
Account which represent payments received with respect to the Credit Facility
and any earnings thereon and then, if needed, investment earnings on Funds and
Accounts (to the extent such moneys constitute Available Moneys) on each
Interest Payment Date and Principal Payment Date on the Bonds, in the order of
priority and for the purposes as follows:


 


(1) First,
to the Interest Account of the Debt Service Fund, an  amount sufficient to pay the interest becoming
due and payable on the Bonds on
such date;


 


(2) Second,
to the Principal Account of the Debt Service Fund, an  amount sufficient to pay the principal of the
Bonds maturing on such date, if
any; and


 


(3) Third,
to the Redemption Account of the Debt Service Fund, the  balance of such moneys.


 


(b) Moneys in the Credit
Facility Account remaining after the transfers made pursuant to paragraph (a) above
shall be returned to the Credit Enhancer as a reimbursement of the amounts paid
under the Credit Facility.


 


(c) The Trustee shall
deposit into the Unavailable Moneys Account principal, interest and premium
payments made by the Borrower pursuant to Section 3.6(a)(i), (ii), (iii) and
(iv) of the Loan Agreement. Upon the Credit Enhancer’s payment to the
Trustee under the Credit Facility pursuant to a request under Section 508(b)(1),
(2) or (3) hereof, the Trustee shall transfer to the Credit Enhancer
the amount on deposit in the Unavailable Moneys Account. In the event of an
Event of Default described in paragraphs (a), (b), (c), (e) or (g) (except
with respect to paragraph (g), a default under Section 801(d) or (f) of
the Series 1994B Indenture) of Section 801 hereof, any moneys on
deposit in the Unavailable Moneys Account which constitute Available Moneys
shall be transferred to the Available Moneys Account and applied in accordance
with this Indenture.


 


(d) The Trustee shall
also deposit into the Unavailable Moneys Account moneys to be applied to the
purchase of Bonds pursuant to Section 307 hereof or the redemption of
Bonds, as provided in this Section, pursuant to Sections 401 and 402. When
moneys deposited pursuant to the preceding sentence shall become Available
Moneys, such Available Moneys shall be transferred to the Available Moneys
Account. Moneys on deposit in the Available Moneys Account to be


 


39





















 


applied to the payment of the
Bonds at maturity shall be transferred to the Principal Account on the maturity
date to pay the principal of the Bonds and to the Interest Account to pay
accrued interest. Moneys on deposit in the Available Moneys Account to be
applied to the redemption of Bonds pursuant to Sections 401 and 402 shall be
transferred to the Redemption Account on the date fixed for such redemption to
the extent necessary to pay the premium, if any, on and principal of the Bonds
as the same shall become due and payable by such redemption and to the Interest
Account to pay accrued interest. Available Moneys on deposit in the Available
Moneys Account, to be applied to the purchase of Bonds pursuant to Section 307,
shall be transferred to the Purchase Fund on the Tender Date to the extent
necessary to pay the Tender Price of the Bonds as the same shall become due and
payable on such Tender Date. Any moneys remaining in the Available Moneys
Account following the redemption or purchase of Bonds with respect to which
such deposit was made shall first be applied to pay the Credit Enhancer any
amounts due and payable under the Letter of Credit Agreement and thereafter
shall be transferred to the General Fund.


 


Section 506. Debt Service Fund.


 


(a) The Trustee shall
deposit into the Interest Account the amounts required by Section 505 of
this Indenture. Moneys on deposit in the Interest Account shall be applied
solely to pay the interest on the Bonds as the same becomes due and payable. On
each date fixed for redemption of the Bonds and on each scheduled Interest
Payment Date on the Bonds, the Trustee shall remit to the respective Bondowners
of such Bonds an amount from the Interest Account sufficient to pay the
interest on the Bonds becoming due and payable on such date.


 


(b) The Trustee shall
deposit into the Principal Account the amounts required by Section 505 of
this Indenture. Moneys on deposit in the Principal Account shall be applied
solely to pay the principal of the Bonds as the same becomes due and payable at
maturity. On each Principal Payment Date of the Bonds, the Trustee shall set
aside and hold in trust an amount from the Principal Account sufficient to pay
the principal of the Bonds becoming due and payable on such date.


 


(c) The Trustee shall
deposit into the Redemption Account the amounts required by Section 505 of
this Indenture. Moneys on deposit in the Redemption Account shall be applied
solely to pay the principal and premium, if any, on the Bonds as the same
become due and payable by redemption. On each date fixed for such redemption,
the Trustee shall set aside and hold in trust an amount from the Redemption
Account sufficient to pay the principal of and premium, if any, on the Bonds
becoming due and payable on such date.


 


Section 507. General Fund. The Trustee shall deposit into
the General Fund the amounts required by Sections 504 and 505, and all moneys
deposited by the Borrower with the Trustee as payment of the fees and expenses
of the Trustee, any Paying Agent, the Issuer and the Remarketing Agent. The
Trustee shall apply moneys on deposit in the General Fund solely for the
following purposes, in the following order of priority and in accordance with
the following conditions:


 


(a) first, to the
Trustee for the reasonable cost of ordinary expenses incurred and ordinary
services rendered, and to the Issuer for its actual expenses incurred in
connection with the administration of the Bond financing for the Project, upon
the Trustee’s receipt of a statement that


 


40





















 


the amount indicated thereon
is justly due and owing and has not been the subject of another written request
which has been paid;


 


(b) to the Trustee for
the reasonable cost of extraordinary expenses incurred and extraordinary
services rendered if said extraordinary expenses and extraordinary services are
necessary and reasonable and are not occasioned by the negligence or willful
misconduct of the Trustee;


 


(c) to the Remarketing
Agent, an amount equal to any amounts due and payable under the Remarketing
Agreement; and


 


(d) to the Credit
Enhancer, an amount equal to any amounts due and payable under the Letter of
Credit Agreement.


 


Section 508. Payments Under Credit Facility.


 


(a) The Credit Facility
shall be held by the Trustee. Payments on the Credit Facility shall be made or
requested in accordance with its terms consistent with the provisions of this
Indenture and the Agreement. Payments on the Credit Facility (other than
pursuant to subparagraphs (b)(4) and (5) of this Section, which
amount will be deposited into the Purchase Fund) shall be deposited in the
Credit Facility Account and applied by the Trustee in accordance with Section 505.


 


(b) The Trustee shall
request payments under the Credit Facility, in accordance with and to the
extent, if any, required by the terms thereof, in the amounts and at such time
as may be necessary to make timely payments of the principal of and interest,
but not premium, on the Bonds required to be made from the Debt Service Fund.
In accordance with the preceding sentence, the Trustee shall request payments
under the Credit Facility by presenting a conforming request to the Credit
Enhancer (to the extent, if any, required by the terms of the Credit Facility)
two (2) Business Days prior to the applicable Interest Payment Date,
Principal Payment Date or redemption date referenced in subsections (1), (2) and
(3) herein, and prior to 11:00 A.M., New York Time, on the applicable
Tender Date referenced in subsections (4) and (5) herein, in order
for moneys to be received in the amounts and at the times as follows:


 


(1) No
later than 3:30 P.M., New York Time, one (1) Business Day  prior to each Interest Payment Date, an amount
equal to interest due on the
Bonds on such Interest Payment Date;


 


(2) No
later than 3:30 P.M., New York Time, one (1) Business Day  prior to each Principal Payment Date, an
amount equal to the full principal
amount of the Bonds coming due on such Principal Payment Date because of the maturity of the Bonds;


 


(3) No
later than 3:30 P.M., New York Time, one (1) Business Day  prior to each date fixed for (A) the
mandatory redemption of the Bonds pursuant
to Section 402 hereof, other than as provided in Section 508(b)(2) hereof, or (B) the
optional redemption of the Bonds pursuant to Section 401 hereof, in each
case an amount which, when added to any Available Moneys (other than payments under the Credit Facility) in
excess of the amount of the
applicable redemption premium and then available for such purpose, will be equal


 


41





















 


to the full principal amount
plus accrued interest on the Bonds to be  redeemed (other than the amount owing as a redemption premium, if any);


 


(4) No
later than 3:00 P.M., New York Time, on the Tender Date for  any Bonds in accordance with Section 301
hereof, an amount which, when added
to any other Remarketing Proceeds available for such purpose in the Purchase Fund, is equal to the Tender Price of
Bonds for which Notices of Election
to Tender Bonds have been timely received; and


 


(5) No
later than 3:00 P.M., New York Time, on the Tender Date for  any Bonds in accordance with Section 302
hereof, an amount which, when added
to any other Remarketing Proceeds then available for such purpose in the Purchase Fund, is equal to the Tender
Price of all of the Bonds required
to be tendered on such date pursuant to Section 302 and for which no Notices of Election to Retain Bonds have
been received.


 


(6) Notwithstanding
the provisions of this Section 508, pursuant to  Section 802 hereof, the Trustee shall
immediately demand payment under the Credit Facility upon any acceleration of the maturity of the Bonds, orupon any direction by the Credit
Enhancer to the Trustee to purchase the Bonds for the Credit Enhancer’s own account.


 


(c) No payments shall be
made under the Credit Facility for the payment of the principal of and interest
on the Borrower Bonds.


 


(d) The Borrower shall
be permitted to provide the Trustee with an Alternate Credit Facility in
accordance with the requirements of Section 706 hereof and Section 3.10
of the Agreement.


 


Section 509. Deposits into and Application of Moneys in
the Rebate Fund.


 


(a) There shall be
deposited in the Rebate Fund such amounts as are required to be deposited
therein pursuant to the Tax Agreement. Subject to the payment provisions
provided in subsection (b) below, all amounts on deposit at any time
in the Rebate Fund shall be held by the Trustee in trust, to the extent
required to pay rebatable arbitrage to the United States of America, and
neither the Borrower, the Issuer, the Credit Enhancer nor the Owner of any
Bonds shall have any rights in or claim to such money. All amounts held in the
Rebate Fund shall be governed by this Section and by the Tax Agreement
(which is incorporated herein by reference). The Issuer, the Credit Enhancer
and the Trustee shall be entitled to rely on the rebate calculations made by
the Borrower pursuant to the Tax Agreement and neither the Issuer, the Credit
Enhancer nor the Trustee shall be responsible for any loss or damage resulting
from any good faith action taken or omitted to be taken by the Issuer or the
Trustee in reliance upon such calculations.


 


(b) Pursuant to the Tax
Agreement, the Trustee shall remit all rebate installments and a final rebate
payment to the United States. The Trustee shall have no obligation to pay any
amounts required to be rebated pursuant to this Section and the Tax
Agreement, other than from moneys held in the Funds and Accounts created under
this Indenture or from other moneys provided to it by the Borrower or, at the
discretion of the Credit Enhancer, by the Credit Enhancer. Any moneys remaining
in the Rebate Fund after redemption and payment of all of the Bonds and


 


42





















 


payment and satisfaction of
any rebatable arbitrage shall be withdrawn and paid first, to the Credit
Enhancer to the extent of any amounts remaining unpaid under any of the
Collateral Documents and, second, to the Borrower.


 


(c) Notwithstanding any
other provision of this Indenture, including in particular Article XII
hereof, the obligation to pay rebatable arbitrage to the United States and to
comply with all other requirements of this Section and the Tax Agreement
shall survive the defeasance or payment in full of the Bonds.


 


(d) The Trustee shall
provide an annual certification to the Credit Enhancer as to the Borrower’s
compliance with the provisions of this Section.


 


Section 510. Final Balances. Upon the deposit with the
Trustee of moneys sufficient to pay all principal of, premium, if any, and
interest on the Bonds, and upon satisfaction of all claims against the Issuer
hereunder, including all fees, charges and expenses of the Trustee, the Issuer,
the Remarketing Agent and any Paying Agent which are properly due and payable
hereunder, or upon the making of adequate provisions for the payment of such
amounts as permitted hereby, all moneys remaining in all Funds and Accounts,
except moneys necessary to pay principal of, premium, if any, and interest on
the Bonds, which moneys shall be held by the Trustee and (after 5 years) paid
to the Credit Enhancer or the Borrower, as appropriate, pursuant to Section 511
hereof, and except moneys, if any, set aside pursuant to Section 509
hereof, shall be remitted first, to the Credit Enhancer to the extent of any
amounts remaining unpaid under any of the Collateral Documents and, second, to
the Borrower.


 


Section 511. Non-Presentment of Bonds. In the event any
Bond shall not be presented for payment when the principal thereof becomes due,
either (i) at maturity or at the date fixed for redemption thereof, or (ii) on
the Tender Date therefor, if moneys sufficient to pay such Bond shall have been
deposited in the Debt Service Fund or, with respect to Bonds becoming due
pursuant to clause (ii), the Purchase Fund or the Undelivered Bond Account held
by the Tender Agent in accordance with Section 309 hereof, all liability
of the Issuer to the holder thereof for the payment of such Bond shall
forthwith cease, terminate and be completely discharged, and thereupon it shall
be the duty of the Trustee or the Tender Agent as applicable to hold such
moneys, without liability for interest thereon, for the benefit of the holder
of such Bond who shall thereafter be restricted exclusively to such moneys, for
any claim of whatever nature of such holder under this Indenture or on, or with
respect to, said Bond.


 


Any moneys so deposited with
and held by the Trustee not so applied to the payment of Bonds within five (5) years
after the date on which the same shall have become due shall be paid by the
Trustee or the Tender Agent first, to the Credit Enhancer to the extent of any
amounts remaining unpaid under any of the Collateral Documents and second, to
the Borrower, free from the trusts created by this Indenture. Thereafter,
Bondowners shall be entitled to look only to the Borrower for payment, and then
only to the extent of the amount so repaid to the Credit Enhancer or to the
Borrower by the Trustee or the Tender Agent. The Credit Enhancer and the
Borrower shall not be liable for any interest on the sums paid to it pursuant
to this Section and shall not be regarded as a trustee of such money.


 


[End
of Article V]


 


43





















 


ARTICLE VI


 


DEPOSITARIES
OF MONEYS, SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS


 


Section 601. Moneys to be Held in Trust. All moneys
deposited with or paid to the Trustee for the account of any Fund or Account
under any provision of this Indenture, and all moneys deposited with or paid to
any Paying Agent under any provision of this Indenture shall be held by the
Trustee or Paying Agent in trust and shall be applied only in accordance with
the provisions of this Indenture and, until used or applied as herein provided,
shall constitute part of the Trust Estate (except for the Purchase Fund, the
Rebate Fund and the rebatable arbitrage not deposited therein) and be subject
to the lien, terms and provisions hereof and shall not be commingled with any
other funds of the Issuer, the Credit Enhancer or the Borrower except as
provided under Section 602 for investment purposes. Neither the Trustee
nor any Paying Agent shall be under any liability for interest on any moneys
received hereunder except such as may be agreed upon.


 


Section 602. Investment of Moneys.


 


(a) Moneys in all Funds
and Accounts (except the Purchase Fund) shall be continuously invested and
reinvested by the Trustee at the written direction of the Borrower (with the
written consent of the Credit Enhancer) as provided in this Section 602.
Moneys in the Purchase Fund shall not be invested. Moneys on deposit in all
Funds and Accounts may be invested only in Investment Securities; provided that
(1) amounts received under the Credit Facility shall be invested and
reinvested by the Trustee only in Government Securities maturing on the earlier
of 30 days after the date on which such obligations are acquired or such time
or times as said money shall be needed for the purposes for which they were
deposited and (2) Available Moneys (other than payments under the Credit
Facility) to be applied in accordance with Section 505(d) shall be
invested and reinvested by the Trustee only in Government Securities maturing
on the earlier of 30 days after the date on which such obligations are acquired
or such time or times as said money shall be needed for the purposes for which
they were deposited; and provided, further, that the Borrower’s direction to so
invest shall be received by 12:00 noon, New York Time, on the day prior to any
such investment. All such investments shall mature not later, nor, to the
extent reasonably practicable subject to the restrictions above, earlier, than
the date such moneys or investment proceeds are required for the purposes of
the respective Funds and Accounts.


 


(b) All investments
shall constitute a part of the Fund or Account from which the moneys used to
acquire such investments have come. The Trustee shall sell and reduce to cash a
sufficient amount of investments in a Fund or Account whenever the cash balance
therein is insufficient to pay the amounts then required to be paid therefrom.
The Trustee may transfer investments from any Fund or Account to any other Fund
or Account in lieu of cash when required or permitted by the provisions of this
Indenture.


 


Section 603. Manner of Investment. All investments in
Nonpurpose Investments made pursuant to this Article shall be made at the
fair market value of such Nonpurpose Investments in accordance with Treasury
Regulation Section 1.148-5(d)(6), and all sales of Nonpurpose
Investments shall be at the fair market value of such Nonpurpose Investments.


 


44





















 


Section 604. Record Keeping The Trustee shall maintain
records designed to show compliance with the provisions of this Article and
with the provisions of Article V for at least six (6) years after the
payment of the Bonds.


 


[End
of Article VI]


 


45





















 


ARTICLE VII


 


PARTICULAR
COVENANTS AND PROVISIONS


 


Section 701. Issuer to Issue Bonds and Execute Indenture.
The Issuer covenants that it is duly authorized under the Act to execute and
deliver this Indenture, to issue the Bonds and to pledge and assign the Trust
Estate in the manner and to the extent herein set forth; that all action on its
part for the execution and delivery of this Indenture and the issuance of the
Bonds has been duly and effectively taken; and that the Bonds in the hands of
the Owners thereof are and will be valid and enforceable obligations of the
Issuer according to the import thereof.


 


Section 702. Performance of Covenants. The Issuer
covenants that it will faithfully perform, or cause to be performed, at all
times any and all covenants, undertakings, stipulations and provisions
contained in this Indenture, in the Bonds and in all proceedings pertaining
thereto.


 


Section 703. Instruments of Further Assurance. The Issuer
covenants that it will do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered, such Supplemental Indentures and
such further acts, instruments, financing statements and other documents as the
Trustee may reasonably require for the better assuring, transferring, pledging
and assigning to the Trustee, and granting a security interest unto the Trustee
in and to the Trust Estate and the other property and revenues herein
described. The Agreement and all other documents, instruments or policies of
insurance required by the Trustee shall be delivered to and held by the
Trustee.


 


Section 704. Credit Facility. The Trustee shall hold and
maintain the Credit Facility for the benefit of the Bondowners until the Credit
Facility terminates or expires in accordance with its terms. The Trustee shall
diligently enforce all terms, covenants and conditions of the Credit Facility.
If at any time during the term of the Credit Facility any successor Trustee
shall be appointed and qualified under this Indenture, the resigning or removed
Trustee shall request that the Credit Enhancer transfer the Credit Facility to
the successor Trustee, to the extent such action is necessary, and shall comply
with the applicable provisions of the Credit Facility. If the resigning or
removed Trustee fails to make this request, the successor Trustee shall do so
before accepting appointment. On the Termination Date the Trustee shall
immediately surrender the Credit Facility then in effect to the Credit Enhancer
unless an event of default thereunder shall have occurred and is continuing.


 


Section 705. Enforcement of Credit Facility. The Trustee,
for the benefit of the Owners of Bonds, subject to the provisions of Section 901(1) hereof,
shall diligently enforce and take all reasonable steps, actions and proceedings
necessary for the enforcement of all terms, covenants and provisions of the
Credit Facility as contemplated herein and therein. The Trustee shall not
consent to or permit any amendment or modification of the Credit Facility which
would materially adversely affect the rights or interests of the Owners of
Bonds.


 


Any provisions herein
requiring notice to or from the Credit Enhancer or the consent of the Credit
Enhancer prior to any action by the Trustee or the Issuer shall have no force
or effect (1) following the later of (i) the Termination Date and (ii) the
repayment of all amounts owed to the Credit Enhancer pursuant to the Collateral
Documents or (2) during any period an event of default


 


46





















 


under the Credit Facility
shall have occurred and is continuing, except with respect to all rights
accruing to the Credit Enhancer with respect to unreimbursed draws on the
Credit Facility.


 


Section 706. Alternate Credit Facility. An Alternate
Credit Facility, in substitution for the Credit Facility then in effect, may be
provided prior to any Termination Date if the Borrower shall give written
notice not more than 60 nor less than 30 calendar days prior to the Alternate
Credit Facility Date to the Issuer, the Trustee, the Tender Agent, the
Remarketing Agent, the Rating Agency and the Credit Enhancer stating its
election to provide an Alternate Credit Facility. Any such Alternate Credit
Facility must be either (a) an irrevocable direct pay letter of credit, or
(b) bond insurance contract, in both cases constituting an unconditional
and irrevocable commitment to pay principal of and interest on the Bonds. If
the Bonds are in any Interest Mode other than a Multiyear Mode, the Alternate
Credit Facility Date must be a Rate Adjustment Date.


 


(a) Upon the exercise of
such option by the Borrower, in the event the Bonds are in any Interest Mode
other than a Multiyear Mode, the Trustee shall send to the Bondowners a Notice
of Alternate Credit Facility in substantially the form of Exhibit G not
later than 20 calendar days prior to the Alternate Credit Facility Date. The
Trustee shall not accept such Alternate Credit Facility unless the Trustee
shall have received, (1) prior to sending the Notice of Alternate Credit
Facility (i) an Opinion of Bond Counsel stating that the delivery of such
Alternate Credit Facility to the Trustee is authorized under this Indenture and
the Act, complies with the terms hereof and will not adversely affect the
exclusion of interest on the Bonds from gross income for federal income tax
purposes, and (ii) a certificate from an Authorized Borrower
Representative and a written acknowledgment by the Credit Enhancer stating that
all amounts owing to the Credit Enhancer under the Collateral Documents have
been paid and that there are no Pledged Bonds outstanding, and (2) on or
before the Alternate Credit Facility Date a supplemental opinion of Bond
Counsel stating that the delivery of the Alternate Credit Facility is
authorized under this Indenture and the Act, complies with the terms hereof and
will not adversely affect the exclusion of interest on the Bonds from gross
income for federal income tax purposes.


 


(b) Upon the exercise of
such option by the Borrower, in the event the Bonds are in a Multiyear Mode,
the Trustee shall send to the Bondowners a Notice of Alternate Credit Facility
in substantially the form of Exhibit G not later than 20 calendar days
prior to the Alternate Credit Facility Date. The Trustee shall not accept such
Alternate Credit Facility unless the Trustee shall have received, (1) prior
to sending the Notice of Alternate Credit Facility (i) an Opinion of Bond
Counsel stating that the delivery of such Alternate Credit Facility to the
Trustee is authorized under this Indenture and the Act, complies with the terms
hereof and will not adversely affect the exclusion of interest on the Bonds
from gross income for federal income tax purposes, (ii) written evidence
from the Rating Agency that the Bonds will be rated no lower than the then
existing ratings on the Bonds by the Rating Agency, and (iii) a
certificate from an Authorized Borrower Representative and a written
acknowledgment by the Credit Enhancer stating that all amounts owing to the
Credit Enhancer under the Collateral Documents have been paid and that there
are no Pledged Bonds outstanding, and (2) on or before the Alternate
Credit Facility Date a supplemental opinion of Bond Counsel stating that the
delivery of the Alternate Credit Facility is authorized under this Indenture
and the Act, complies with the terms hereof and will not adversely affect the
exclusion of interest on the Bonds from gross income for federal income tax
purposes.


 


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Section 707. General Limitation on Issuer Obligations.
ANY OTHER TERM OR PROVISION OF THIS INDENTURE OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION WITH THE TRANSACTION WHICH IS THE SUBJECT HEREOF TO THE CONTRARY
NOTWITHSTANDING, THE ISSUER SHALL NOT BE REQUIRED TO TAKE OR OMIT TO TAKE, OR
REQUIRE ANY OTHER PERSON OR ENTITY TO TAKE OR OMIT TO TAKE, ANY ACTION WHICH
WOULD CAUSE IT OR ANY PERSON OR ENTITY TO BE, OR RESULT IN IT OR ANY PERSON OR
ENTITY BEING, IN VIOLATION OF ANY LAW OF THE STATE.


 


Section 708. Recording and Filing. Subject to Section 901(c) hereof,
the Trustee shall use its best efforts to keep and file or cause to be kept and
filed all financing statements related to this Indenture and all supplements
hereto, the Agreement and all supplements thereto, the Credit Facility and all
supplements thereto and such other documents as may be necessary to be kept and
filed in such manner and in such places as may be required by law in order to
preserve and protect fully the security of the Owners and the rights of the
Trustee hereunder. In carrying out its duties under this Section, the Trustee
shall be entitled to rely on an opinion of its counsel specifying what actions
are required to comply with this Section.


 


Section 709. Possession and Inspection of Books and
Documents. The Issuer and the Trustee covenant and agree that all books and
documents in their possession relating to the Agreement and the Credit Facility
and to the distribution of proceeds thereof shall at all times be open to
inspection by such accountants or other agencies or persons as the Credit
Enhancer or the Borrower may from time to time designate.


 


Section 710. Rights and Duties Under Agreement and Credit
Facility. The Trustee hereby acknowledges and agrees to the terms, conditions,
appointments and agencies of the Agreement and the Credit Facility as they
relate to it and its participation in the transactions contemplated hereby and
thereby. Subject to the provisions of Section 901(1) hereof, the
Trustee shall perform all obligations and duties of the Issuer under the
Agreement (and the Issuer hereby appoints the Trustee as the Issuer’s agent and
attorney-in-fact for all such purposes). The Trustee, as assignee hereunder, in
its name or to the extent permitted by law, in the name of the Issuer, may
enforce all rights of the Issuer (but only with the prior written consent of
the Credit Enhancer unless the Credit Enhancer is in default under the Credit
Facility) and all obligations of the Credit Enhancer and the Borrower under the
Agreement and the Credit Facility (and waive the same with the consent of the
Credit Enhancer, except for rights expressly granted to the Borrower) on behalf
of the Bondowners whether or not the Issuer is in default hereunder.


 


Section 711. Tax Covenants.


 


(a) The Issuer shall not
use or knowingly permit the use of any proceeds of the Bonds or any other funds
of the Issuer, and the Trustee shall not use or permit the use of any proceeds
of the Bonds or any other funds of the Issuer held by the Trustee, directly or
indirectly, to acquire any securities or obligations, and shall not use or
permit the use of any amounts received by the Issuer or Trustee with respect to
the Agreement in any manner, and shall not take or permit to be taken any other
action or actions, which would cause any Bond to be an “arbitrage bond” within
the meaning of Section 148(a), or “federally guaranteed” within the
meaning of Section 149(b), of the Code. If at any time the Issuer is of
the opinion that for purposes of this subsection (a) it is necessary
to restrict or limit the yield on or change in any way the investment of any
moneys held


 


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by the Trustee under this
Indenture, the Trustee shall take such action as may be necessary in accordance
with such instructions. The Issuer and the Trustee shall be deemed in
compliance with this Section to the extent they follow the Tax Agreement
or an Opinion of Bond Counsel with respect to the investment of funds
hereunder.


 


(B) The Trustee and the
Issuer will not take any action or omit to take any action or permit any action
which is within its control to be taken or omitted which would to its knowledge
impair the exclusion of interest on the Bonds from gross income for federal
income tax purposes or the applicable exemptions from taxation in the State.


 


(c) The Issuer and the
Trustee shall at all times do and perform all acts and things permitted by law
and this Indenture which are necessary or desirable in order to assure that
interest paid on the Bonds will be excludable from gross income for federal
income tax purposes and to preserve the applicable exemptions from taxation in
the State and shall take no action that would result in such interest not being
excludable from gross income for federal income tax purposes.


 


[End
of Article VII]


 


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ARTICLE VIII


 


DEFAULT AND REMEDIES


 


Section 801. Events of Default. If any one or more of the
following events occur, it is hereby defined as and declared to be and to
constitute an “Event of Default”:


 


(a) default in the due
and punctual payment of any interest on any Bond;


 


(b) default in the due
and punctual payment of the principal of or redemption premium, if any, on any
Bond, whether at the stated maturity or accelerated maturity thereof, or upon
proceedings for redemption thereof or otherwise;


 


(c) default in the
payment of the Tender Price of any Tendered Bond (the substance of which must
be communicated by Immediate Notice by the Trustee to the Credit Enhancer, the
Borrower and the Issuer);


 


(d) the occurrence of an
event of default under Article VIII of the Agreement;


 


(e) the occurrence of
either or both of the following:


(i)                                     the Trustee has received written notice from
the Credit Enhancer, within the
period provided for in the Credit Facility,
that the Credit Enhancer will not reinstate the interest portion of the Credit Facility; or


(ii)                                  the Trustee’s receipt of written notice from
the Credit Enhancer that an “Event
of Default” has occurred under the Letter
of Credit Agreement together with a direction from the Credit Enhancer to the Trustee requiring
either (A) the acceleration
of the Bonds pursuant to Section 802(a) or (B) the mandatory purchase of the Bonds pursuant
to Section 802(b) hereof;


 


(f) 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, and the continuance thereof for a period of thirty (30) days after
written notice thereof shall have been given to the Issuer, the Credit Enhancer
and the Borrower by the Trustee, or to the Trustee, the Issuer, the Credit
Enhancer and the Borrower by the Owners of not less than twenty-five percent
(25%) in aggregate principal amount of Bonds then Outstanding; provided,
however, if any default shall be such that it cannot be corrected within such 30-day
period, it shall not constitute an Event of Default if corrective action is
instituted by the Issuer or the Borrower within such period and diligently
pursued until the default is corrected; or


 


(g) the occurrence of an
event of default pursuant to Article VIII of the Series 1994B Trust
Indenture.


 


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(h) The
Trustee shall give Immediate Notice of any Event of Default to the Issuer, the
Borrower and the Credit Enhancer as promptly as practicable after the
occurrence of an Event of Default becomes known to the Trustee.


 


Section 802. Acceleration: Mandatory Purchase.


 


(a) If an
Event of Default described in paragraph (a), (b), (c), (e)(i) or (g) (except,
with respect to paragraph (g), a default under Section 801(d), (e)(ii) or
(f) of the Series 1994B Indenture) of Section 801 hereof shall
have occurred and be continuing, the Trustee shall, by notice in writing
delivered to the Issuer, the Borrower and the Credit Enhancer, declare the
principal of all Bonds then Outstanding and the interest accrued thereon
immediately due and payable, and the Bonds shall cease to bear interest on such
date; subject, however, to subparagraph (b) hereof. The principal and
interest shall thereupon become due and payable on a date established by the
Trustee, which date shall not be more than ten (10) calendar days after
such acceleration.


 


If an Event of
Default described in paragraph (e)(ii) or (g) (but, with respect to
paragraph (g), only with respect to a default under Section 801(e)(ii) of
the Series 1994B Indenture) of Section 801 hereof shall have occurred
and be continuing, the Trustee shall, by notice in writing delivered to the
Issuer, the Borrower and the Credit Enhancer, declare the principal of all
Bonds then Outstanding and the interest accrued thereon due and payable on such
date as the Trustee shall establish pursuant to Section 402(c) hereof,
and the Bonds shall cease to bear interest on such date; subject, however, to
subparagraph (b) hereof.


 


If an Event of
Default described in paragraph (d), (f) or (g) (but, with respect to
paragraph (g), only with respect to a default under Section 801(d) or
(f) of the Series 1994B Indenture) of Section 801 hereof, shall
have occurred and be continuing, the Trustee, and may upon the written request
of the Owners of not less than 25% in aggregate principal amount of the Bonds
then Outstanding shall, but only with the prior written consent of the Credit
Enhancer (unless the Credit Enhancer is in default under the Credit Facility in
which case no such consent shall be required), by notice in writing delivered
to the Issuer, the Borrower and the Credit Enhancer declare the principal of
all Bonds then Outstanding and the interest accrued thereon immediately due and
payable, and such principal and interest shall thereupon become and be
immediately due and payable.


 


Upon any
acceleration of the maturity of the Bonds hereunder, the Trustee shall
immediately demand payment under the Credit Facility to the extent permitted by
the terms thereof and pursue the remedies of the Trustee thereunder.


 


If, at any
time after such declaration, but before the Bonds shall have matured by their
terms, all overdue installments of principal of and interest on the Bonds,
together with the reasonable and proper expenses of the Trustee, and all other
sums then payable by the Issuer under this Indenture shall either be paid or
provision satisfactory to the Trustee shall be made for such payment, then and
in every such case the Trustee shall, but only with the approval of the Credit
Enhancer and the Owners of not less than a majority in aggregate principal
amount of the Bonds Outstanding, and upon the reinstatement of the Credit
Facility, rescind such declaration and annul such default in its entirety. In
such event, the Trustee shall rescind any declaration of acceleration of the
Loan Payments as provided in Section 8.2 of the Agreement.


 


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In case of any
rescission, then and in every such case the Issuer, the Trustee and the
Bondowners shall be restored to their former positions, rights and obligations
hereunder, respectively, but no such rescission shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.


 


(b) Mandatory
Purchase. Upon the occurrence and continuance of an Event of Default under
paragraph (e)(ii) or (g) (but, with respect to paragraph (g), only
with respect to a default under Section 801(e)(ii) of the Series 1994B
Indenture) of Section 801 hereof, as provided in Section 302(d) hereof
the Credit Enhancer in its notice to the Trustee may direct the Trustee to
purchase the Bonds for the Credit Enhancer’s own account, rather than to accelerate
the Bonds as provided in Section 802(a) hereof. In such case, the
Trustee shall draw upon the Credit Facility in accordance with the provisions
of Section 302(d) hereof to pay the purchase price for the Bonds,
which shall be an amount equal to the principal of all Outstanding Bonds and
accrued interest thereon to the Mandatory Purchase Date, and upon receipt of
the proceeds of such draw, shall immediately purchase the Bonds in accordance
with Section 302 hereof.


 


Section 803.
Surrender of Possession of Trust Estate: Rights and Duties of Trustee in
Possession. If an Event of Default shall have occurred and be continuing, the
Issuer, upon demand of the Trustee, shall forthwith surrender the possession
of, and it shall be lawful for the Trustee, by such officer or agent as it may
appoint, to take possession of all or any part of the Trust Estate, together
with the books, papers and accounts of the Issuer pertaining thereto, and
including the rights and the position of the Issuer under the Agreement and to
hold and manage the same and to collect, receive and sequester the payments,
revenues and receipts derived under the Agreement, and out of the same and any
moneys received from any receiver of any part thereof pay and set up proper
reserves for the payment of all proper costs and expenses of so taking, holding
and managing the same, including (i) reasonable compensation to the
Trustee, its agents and counsel, (ii) any reasonable charges of the
Trustee hereunder, and (iii) any taxes and assessments, and other charges,
prior to the lien of this Indenture which the Trustee may deem it wise to pay,
and the Trustee shall apply the remainder of the moneys so received in
accordance with Section 808. Whenever all that is due upon the Bonds shall
have been paid and all defaults made good and all payments pursuant to Section 509
hereof have been made, the Trustee shall surrender possession of the Trust
Estate to the Issuer, its successors or assigns, the same right of entry,
however, to exist upon any subsequent Event of Default, subject to the
provisions of Article V hereof. While the Credit Facility is in force and
effect, if no Bonds are outstanding, the Trustee and the Issuer have been fully
recompensed for all their costs and expenses, the Credit Enhancer is not in default
under the Credit Facility, and any amounts remain unreimbursed with respect
thereto, the Issuer shall thereafter transfer possession of the Trust Estate to
the Credit Enhancer.


 


While in
possession of the Trust Estate, the Trustee shall render annually (or more
often if requested in writing) to the Issuer, the Borrower and the Credit
Enhancer a summarized statement of receipts and expenditures in connection
therewith.


 


Section 804.
Appointment of Receivers in Event of Default. If an Event of Default shall have
occurred and be continuing, and upon the filing of a suit or other commencement
of judicial proceedings to enforce the rights of the Trustee and of the
Bondowners under this Indenture, the Trustee shall be entitled, with the
approval of the Credit Enhancer if the Credit Enhancer is not in


 


52





















 


default under the Credit
Facility, as a matter of right, to the appointment of a receiver or receivers
of the Trust Estate and of the earnings, income, products and profits thereof,
pending such proceedings, with such powers as the court making such appointment
shall confer.


 


Section 805.
Exercise of Remedies by the Trustee. If an Event of Default shall have occurred
and be continuing, the Trustee may, with the approval of the Credit Enhancer if
the Credit Enhancer is not in default under the Credit Facility, pursue any
available remedy at law or equity by suit, action, mandamus or other proceeding
to enforce the payment of the principal of and redemption premium, if any, and
interest on the Bonds then Outstanding, and to enforce and compel the
performance of the duties and obligations of the Issuer as herein set forth.


 


If an Event of
Default shall have occurred and be continuing, and if requested so to do by the
Credit Enhancer or by the Owners of not less than 25% in aggregate principal
amount of the Bonds then Outstanding and indemnified as provided in paragraph (1) of
Section 901, with the approval of the Credit Enhancer if the Credit
Enhancer is not in default under the Credit Facility, the Trustee shall be
obligated to exercise such one or more of the rights and powers conferred by
this Article as the Trustee, being advised by counsel, shall deem most
expedient in the interests of the Bondowners.


 


All rights of
action under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in
any trial or other proceedings relating thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its name as Trustee
without the necessity of joining as plaintiffs or defendants any Bondowner, and
any recovery or judgment shall, subject to Section 808, be for the equal
benefit of all the Owners of the Outstanding Bonds.


 


Section 806.
Limitation on Exercise of Remedies by Bondowners. No Bondowner shall have any
right to institute any suit, action or proceeding in equity or at law for the
enforcement of this Indenture or for the execution of any trust hereunder or
for the appointment of a receiver or any other remedy hereunder, unless:


 


(1) a default has occurred of which the Trustee has notice or is deemed
to have notice as provided in subparagraph (h} of Section 901, and


 


(2) such default shall have become an Event of Default, and


 


(3) the Owners of not less than 25% in aggregate principal amount
of the Bonds then Outstanding or the Credit Enhancer (with respect to an Event
of Default described in paragraph (e) or (g} (but, with respect to paragraph
(g), only with respect to a default under Section 801(e) of the Series 1994B
Indenture) of Section 801 hereof shall have made written request to the
Trustee, shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name, and shall have provided to the Trustee indemnity as
provided in subparagraph (1) of Section 901, and


 


(4) the Trustee shall thereafter fail or refuse to exercise the powers
herein granted or to institute such action, suit or proceeding in its own name,
and


 


53





















 


(5) the Credit Enhancer shall have consented thereto if the Credit
Enhancer is not in default under the Credit Facility;


 


and such notification, request
and indemnity are hereby declared in every case, at the option of the Trustee
(with the exception of any duty to make demand on, and proceed under, the
Credit Facility, cause an acceleration of the Bonds or make payments when due),
to be conditions precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the enforcement of this
Indenture, or for the appointment of a receiver or for any other remedy
hereunder, it being understood and intended that no one or more Bondowners
shall have any right in any manner whatsoever to affect, disturb or prejudice
this Indenture by such Bondowners action or to enforce any right hereunder
except in the manner herein provided, and that all proceedings at law or in equity
shall be instituted, had and maintained in the manner herein provided and for
the equal benefit of the Owners of all Bonds then Outstanding. Nothing in this
Indenture, however, shall affect or impair the right of any Bondowner to
payment of the principal of, and redemption premium, if any, and interest on
any Bond at and after its maturity or the obligation of the Issuer to pay the
principal of, and redemption premium, if any, and interest on each of the Bonds
to the respective Owners thereof at the time and place, from the source and in
the manner herein and in such Bond expressed.


 


Section 807.
Right of Bondowners to Direct Proceedings. Any other provision herein to the
contrary notwithstanding, the Owners of a majority in aggregate principal
amount of the Bonds then Outstanding shall have the right, at any time, with
the approval of the Credit Enhancer if the Credit Enhancer is not in default
under the Credit Facility, by an instrument or instruments in writing executed
and delivered to the Trustee, to direct the time, method and place of
conducting all proceedings to be taken in connection with the enforcement of
this Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided that the Trustee shall have been provided indemnity
satisfactory to it in accordance with Section 901(1) hereof and
provided that such direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture, and provided, further, that the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the proceeding so directed would
involve it in personal liability.


 


Section 808.
Application of Moneys in Event of Default. Upon an Event of Default all moneys
held or received by the Trustee pursuant to this Indenture, the Agreement or
the Credit Facility or pursuant to any right given or action taken under this Article shall,
after payment of the reasonable costs and expenses of the proceedings resulting
in the collection of such moneys, be deposited in the Debt Service Fund
(provided, however, Available Moneys shall be used only for payment of
principal or interest on the Bonds) and all moneys so deposited in the Debt
Service Fund shall be applied as follows:


 


(a) If the
principal of all the Bonds shall not have become or shall not have been
declared due and payable, all such moneys shall be applied:


 


First — To the payment to the persons entitled thereto of all installments
of interest then due and payable on the Bonds, other than the Borrower Bonds,
in the order in which such installments of interest became due and payable,
with interest thereon at the rate or rates specified in the respective Bonds to
the extent permitted by law, and, if the amount


 


54





















 


available
shall not be sufficient to pay in full any particular installment, then to the
payment ratably, according to the amounts due on such installment, to the
persons entitled thereto, without any discrimination or privilege;


 


Second — To the payment to the persons entitled thereto of the unpaid
principal of and redemption premium, if any, on any of the Bonds, other than
Borrower Bonds, that shall have become due and payable (other than Bonds called
for redemption for the payment of which moneys or securities are held pursuant
to this Indenture), in the order of their due date, with interest on such
principal and redemption premium, if any, at the rate or rates specified in the
respective Bonds from the respective dates upon which they became due and
payable, and, if the amount available shall not be sufficient to pay in full
such principal and redemption premium, if any, due on any particular date,
together with such interest, then to the payment ratably, according to the
amounts of principal and redemption premium, if any, due on such date, to the
persons entitled thereto without any discrimination or privilege;


 


Third — To the payment to the Credit Enhancer, the unpaid principal and
interest due on the Pledged Bonds;


 


Fourth — To the payment of the reasonable expenses, liabilities and advances
incurred or made by the Trustee;


 


Fifth — To the Credit Enhancer any amounts due and owing under the Collateral
Documents;


 


Sixth — To pay principal and interest on the Borrower Bonds; and


 


Seventh — To the Borrower.


 


(b) If
the principal of all the Bonds shall have become due or shall have been
declared due and payable, all such moneys shall be applied to the payment of
the principal, redemption premium, if any, and interest then due and unpaid on
all of the Bonds, with interest on such principal and redemption premium, if
any, and, to the extent permitted by law, on such interest, at the rate or
rates specified in the respective Bonds, without preference or priority of
principal, redemption premium or interest over principal, redemption premium 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, redemption premium, if any, and interest, to
the persons entitled thereto, without any discrimination or privilege; provided
however principal of and interest on Borrower Bonds shall only be paid after
the amounts due the Credit Enhancer under the Related Documents shall have been
paid in full.


 


(c) If
the principal of all the Bonds shall have been declared due and payable, and if
such declaration shall thereafter have been rescinded and annulled under this Article then,
subject to paragraph (b) of this Section, in the event that the principal
of all the Bonds shall later become due or be declared due and payable, the
moneys shall be applied in accordance with paragraph (a) of this Section.


 


55





















 


Whenever
moneys are to be applied pursuant to this Section, such moneys shall be applied
at such times and from time to time as the Trustee shall determine, having due
regard to the amount of such moneys available and which may become available
for such application in the future.


 


Whenever all
of the Bonds and interest thereon have been paid under this Section, and all
expenses and charges of the Trustee have been paid, any balance remaining in
the Funds shall be paid first to the Credit Enhancer and second to the Borrower
as provided in Section 510.


 


Section 809.
Remedies Cumulative. No remedy conferred by this Indenture upon or reserved to
the Trustee, to the Credit Enhancer or to the Bondowners is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given to the Trustee,
to the Credit Enhancer or to the Bondowners hereunder or now or hereafter
existing at law or in equity or by statute.


 


Section 810.
Delay or Omission Not Waiver. No delay or omission to exercise any right, power
or remedy accruing upon any Event of Default shall impair any such right, power
or remedy or shall be construed to be a waiver of any such Event of Default or
acquiescence therein, and every such right, power or remedy may be exercised
from time to time and as often as may be deemed expedient.


 


Section 811.
Effect of Discontinuance of Proceeding. In case the Trustee shall have
proceeded to enforce any right under this Indenture by the appointment of a
receiver, by entry, or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Issuer, the Borrower, the Trustee,
the Credit Enhancer and the Bondowners shall, with the written consent of the
Credit Enhancer, be restored to their former positions and rights hereunder,
and all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.


 


Section 812.
Waivers of Events of Default. The Trustee shall waive any Event of Default and
its consequences and rescind any declaration of maturity of principal upon the
written request of the Owners of a majority in aggregate principal amount of
the Bonds then Outstanding; provided that there shall not be waived without the
written consent of the Owners of all the Bonds Outstanding (a) any Event
of Default in the payment of the principal of any Outstanding Bonds at their
maturity, upon the redemption (including as a result of acceleration) or tender
thereof, (b) any Event of Default under Section 801(e) or (g) hereof
(but, with respect to paragraph (g), only with respect to a default under Section 801(e) of
the Series 1994B Indenture) unless the Credit Enhancer shall have given
written notice to the Trustee that the Credit Facility has been reinstated in
full, or (c) any Event of Default in the payment when due of the interest
on any such Bonds unless, prior to such waiver or rescission, all arrears of
interest, with interest (to the extent permitted by law) at the rate borne by
the Bonds on overdue installments of interest in respect of which such default
shall have occurred, or all arrears of payments of principal when due, as the
case may be, and all expenses of the Trustee in connection with such Event of
Default shall have been paid or provided for; provided further that there shall
not be waived without the written consent of the Credit Enhancer any Event of
Default under Section 801(e)(ii) or (g) hereof (but, with
respect to paragraph (g), only with respect to a default under Section 801(e)(ii) of
the Series 1994B Indenture); and provided further that no Event of Default
shall be waived without the


 


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written consent of the Credit
Enhancer if it has honored all its obligations under the Credit Facility. In
case of any such waiver or rescission, or in case any proceeding taken by the
Trustee on account of any such Event of Default shall have been discontinued or
abandoned or determined adversely, then and in every such case the Issuer, the
Borrower, the Trustee, the Bondowners and the Credit Enhancer shall be restored
to their former positions, rights and obligations hereunder, respectively, but
no such waiver or rescission shall extend to any subsequent or other default,
or impair any right consequent thereon.


 


Section 813.
Pledged Bonds. For the purposes of this Article VIII. Pledged Bonds shall
not be deemed Outstanding under this Indenture until the payment in full of the
principal of and interest on all other Bonds or the provision for the payment
thereof shall have been duly made. In the event any vote or consent of the
Bondowners is required hereunder, all Pledged Bonds shall be deemed Outstanding
for such purpose hereunder and the Credit Enhancer shall be deemed the Owner
thereof for purposes of voting or consenting thereto.


 


[End of Article VIII]


 


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ARTICLE IX


 


THE TRUSTEE


 


Section 901.
Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by
this Indenture, and agrees to perform said trusts, but only upon and subject to
the following express terms and conditions:


 


(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing of
all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
the Trustee. Subject to the limitations on liability of the Trustee contained
in Section 901(1), in case an Event of Default shall have occurred of
which the Trustee is deemed hereunder to have knowledge (and which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and shall use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s affairs.


 


(b) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through agents, attorneys or receivers. The
Trustee shall be entitled to act upon the opinion or advice of counsel in the
exercise of reasonable care, who may be counsel to the Issuer, the Credit
Enhancer or the Borrower, concerning all matters of trusts hereof and the
duties hereunder, and may in all cases pay such reasonable compensation to all
such agents, attorneys and receivers as may reasonably be employed in
connection with the trusts hereof. The Trustee shall not be responsible for any
loss or damage resulting from any action or nonaction by it taken or omitted to
be taken in good faith in reliance upon such opinion or advice of counsel.


 


(c) The
Trustee shall not be responsible for any recital herein or in the Bonds (except
with respect to the Certificate of Authentication of the Trustee endorsed on
the Bonds), or for the recording or rerecording, filing or refiling of this
Indenture or any security agreements or financing statements in connection
therewith (except with respect to the filing of continuation statements), or
for insuring the Project or collecting any insurance moneys or taxes, or for
the validity of the execution by the Issuer of this Indenture or of any
Supplemental Indentures or instruments of further assurance, or for the
sufficiency of the security for the Bonds. The Trustee shall not be responsible
or liable for any loss suffered in connection with any investment of funds made
by it in accordance with Article VI hereof.


 


(d) The
Trustee shall not be accountable for the use of any Bonds authenticated and
delivered hereunder. The Trustee, in its individual or any other capacity, may
become the Owner or pledgee of Bonds with the same rights which it would have
if it were not Trustee.


 


(e) The
Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, affidavit, letter, telegram or
other paper or document provided for under this Indenture believed by it to be
genuine and correct and to have been signed, presented or sent by the proper
person or persons. Any action taken by the Trustee pursuant to and in
accordance with this Indenture upon the request or authority or consent of any
person who, at the time of making such


 


58





















 


request or giving such authority or consent is the Owner of any Bond,
shall be conclusive and binding upon all future Owners of the same Bond and
upon Bonds issued in exchange therefor or upon transfer or in place thereof.


 


(f) As to
the existence or nonexistence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, or whenever in the administration of
this Indenture the Trustee shall deem it desirable that a matter be provided or
established prior to taking, suffering or omitting any action hereunder, the
Trustee shall be entitled to rely upon a certificate signed by an Authorized
Issuer Representative as sufficient evidence of the facts therein contained.


 


(g) The
permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty, and the Trustee shall not be answerable for other
than its negligence or willful misconduct.


 


(h) The
Trustee shall not be required to take notice or be deemed to have notice of any
Default hereunder except an Event of Default under Section 801(a), (b),
(c), (e) or (g) hereof (but, with respect to paragraph (g), only with
respect to a default under Section 801(a), (b), (c) or (e) of
the Series 1994B Indenture), or failure by the Issuer to cause to be made
any of the payments to the Trustee required to be made in Article V
hereof, unless the Trustee shall be specifically notified in writing of such
Default by the Issuer, the Credit Enhancer or the Owners of at least 25% in
aggregate principal amount of all Bonds then Outstanding. All notices or other
instruments required by this Indenture to be delivered to the Trustee shall be
delivered at the Principal Office of the Trustee, and, in the absence of such
notice so delivered, the Trustee may conclusively assume there is no Default except
as aforesaid. The Trustee shall notify the Credit Enhancer and the Borrower of
any Default known to the Trustee that has not yet become a matured Event of
Default.


 


(i) At
any and all reasonable times the Trustee and its duly authorized agents, attorneys,
experts, engineers, accountants and representatives shall have the right, but
shall not be required, to inspect the Project, including all books, papers and
records of the Issuer pertaining to the Project, the loan made pursuant to the
Agreement and the Bonds, and to take such memoranda from and in regard thereto
as may be desired.


 


(j) The
Trustee shall not be required to give any bond or surety in respect of the
execution of its trusts and powers hereunder or otherwise in respect of the
Project.


 


(k) The
Trustee shall have the right, but shall not be required, to demand, in respect
of the authentication of any Bonds, the withdrawal of any cash, the release of
any property, or any action whatsoever within the purview of this Indenture,
any showings, certificates, opinions, appraisals or other information, or
corporate or partnership action or evidence thereof, in addition to that by the
terms hereof required, as a condition of such action by the Trustee as are
deemed desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any cash, the release of any
property or the taking of any other action by the Trustee.


 


(l) Before
taking any action under this Indenture, the Trustee may require that satisfactory
indemnity be furnished to it for the reimbursement of all costs and expenses to
which it may be put and to protect it against all liability, except liability
which is adjudicated to have


 


59





















 


resulted from its negligence or willful misconduct by reason of any
action so taken. Notwithstanding the foregoing, the Trustee shall be required,
without indemnity, to make drawings on the Credit Facility, to pay the
principal and purchase price of, and premium, if any and interest on the Bonds
from moneys available in the Funds and Accounts hereunder, to accelerate the
maturity of the Bonds pursuant to Section 802(a) or to call the Bonds
for mandatory purchase pursuant to Section 802(b) and, upon the
acceleration of the maturity of the Bonds or the mandatory purchase of the
Bonds, to immediately demand payment under the Credit Facility to the extent
permitted by the terms thereof and pursue the remedies of the Trustee
thereunder.


 


(in) All
moneys received by the Trustee shall, until used, applied or invested as herein
provided, be held in trust for the purposes for which they were received but
need not be segregated from other funds, except to the extent required by law
or this Indenture. The Trustee shall be under no liability for interest on any
moneys received hereunder, except such as may be agreed upon.


 


(n)
Notwithstanding the effective date of this Indenture or anything to the
contrary in this Indenture, the Trustee shall have no liability or
responsibility for any act or event relating to this Indenture which occurs
prior to the date the Trustee formally executes this Indenture and commences
acting as Trustee hereunder.


 


(o) No
provision of this Indenture shall be deemed to require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of its rights or
powers, if the Trustee shall have reasonable grounds for believing that
repayment of such funds or, in the alternative, adequate indemnity against such
risk or liability is not reasonably assured to it.


 


(p) The
Trustee has no obligation or liability to the Bondowners for the payment of
interest or premium, if any, on or principal of the Bonds, but rather the Trustee’s
sole obligations are to administer, for the benefit of the Issuer, the Credit
Enhancer, the Borrower and the Bondowners, the Funds established hereunder.


 


(q) In the
event the Trustee shall receive inconsistent or conflicting requests and
indemnity from two or more groups of Bondowners, each representing less than a
majority of the aggregate principal amount of the Bonds then outstanding, the
Trustee, in its sole discretion, may determine what action, if any, shall be
taken; provided, that, the Trustee shall follow the direction of the Credit
Enhancer if the Credit Enhancer is not in default under the Credit Facility.


 


(r) Except for
information provided by the Trustee concerning the Trustee, the Trustee shall
have no responsibility with respect to any information in any offering
memorandum or other disclosure material distributed with respect to the Bonds.
The Trustee shall have no responsibility for compliance with securities laws in
connection with issuance of the Bonds.


 


(s) The
Trustee’s immunities and protections from liability, and its right to payment
of compensation and indemnification in connection with performance of its
duties and obligations under the Indenture and the Agreement, shall survive the
Trustee’s resignation or removal, or the final payment of the Bonds.


 


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(t) In acting
or omitting to act pursuant to the provisions of the Agreement, the Trustee
shall be entitled to all of the rights, protections and immunities accorded to
the Trustee under the terms of this Indenture, including but not limited to
those set out in this Article IX.


 


(u)
Notwithstanding anything otherwise provided in this Indenture, and without
regard to whether or not an Event of Default may have occurred and be continuing,
the Trustee may notify the Credit Enhancer and the Bondowners of environmental
hazards that the Trustee in its reasonable judgment has reason to believe exist
with respect to the Project, and the Trustee has the right to take no further
action and in such event no fiduciary duty exists which imposes any obligation
for further action with respect to the Project; provided, that if the Trustee
is directed by the Owners of a majority in aggregate principal amount of Bonds
then Outstanding (with the written consent of the Credit Enhancer) or the
Credit Enhancer to take further action, the Trustee may (i) take such
further action upon being furnished with indemnity and security satisfactory to
it for all reasonable costs, expenses, reimbursable fees, liabilities and
losses, including, without limitation, losses and liabilities in connection
with hazardous substances and environmental contamination, and the clean up
thereof, and reasonable attorney’s fees and expenses, or (ii) elect not to
proceed in accordance with the directions of the Bondowners or the Credit
Enhancer without incurring any liability to the Bondowners or the Credit
Enhancer if in the sole opinion of the Trustee such direction may result in
environmental or other liability to the Trustee, the Credit Enhancer or the
Bondowners, and the Trustee may rely upon an opinion of its counsel in
determining whether any such action directed by Bondowners may result in such
liability.


 


Section 902.
Fees. Charges and Expenses of the Trustee. The Trustee shall be entitled to
payment of and/or reimbursement for reasonable fees for its ordinary services
rendered hereunder and all advances, agent and counsel fees and other ordinary
expenses reasonably and necessarily made or incurred by the Trustee in connection
with such ordinary services and, in the event that it should become necessary
that the Trustee perform extraordinary services, it shall be entitled to
reasonable extra compensation therefor and to reimbursement for reasonable and
necessary extraordinary expenses in connection therewith; provided that if such
extraordinary services or extraordinary expenses are occasioned by the neglect
or willful misconduct of the Trustee it shall not be entitled to compensation
or reimbursement therefor. The Trustee shall be entitled to payment and
reimbursement for the reasonable fees and charges of the Trustee as Paying
Agent for the Bonds and as Bond Registrar. Pursuant to the provisions of Section 3.7
of the Agreement, the Borrower has agreed to pay to the Trustee all reasonable
fees, charges and expenses of the Trustee under this Indenture. The Trustee
agrees that the Issuer shall have no liability for any fees, charges, advances,
costs. and expenses of the Trustee, and the Trustee agrees to look only to the
Borrower for the payment of all fees, charges and expenses of the Trustee as
provided in the Agreement. Upon the occurrence of an Event of Default and
during its continuance, the Trustee shall have a lien with right of payment
prior to payment on account of principal of, redemption premium, if any, or
interest on any Bond, upon all moneys in its possession under any provisions
hereof for the foregoing advances, fees, costs and expenses incurred, other
than moneys received under the Credit Facility, or deposit in the Purchase Fund
or Rebate Fund, and which constitute Available Moneys for the payment of
redemption premium.


 


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Section 903.
Notice to the Bondowners if Default Occurs. If a Default occurs of which the Trustee
is by Section 901(h) hereof required to take notice or if notice of
Default be given as in said Section provided, then the Trustee shall give
written notice thereof by mail, within 30 days of the receipt of notice by the
Trustee of such Default, to the Borrower, the Credit Enhancer and to the Owners
of all Bonds then Outstanding as shown by the Bond Register in the same manner
as required by Section 1302 hereof; provided that the Trustee shall
further give prompt notice of such Default to the Issuer and the Credit
Enhancer by such means as is practicable under the circumstances.


 


Section 904.
Intervention by the Trustee. In any judicial proceeding to which the Issuer is
party and which, in the opinion of the Trustee and its counsel, has a
substantial bearing on the interests of Owners of the Bonds or the Credit
Enhancer, the Trustee may intervene on behalf of Bondowners and the Credit
Enhancer and shall do so if requested in writing by the Credit Enhancer or the
Owners of at least 25% in the aggregate principal amount of Bonds then
Outstanding (with the written consent of the Credit Enhancer), and if provided
with indemnity satisfactory to it.


 


Section 905.
Successor Trustee Upon Merger, Consolidation or Sale. Any corporation or
association with or into which the Trustee may be merged or converted or with
or into which it may be consolidated, or to which the Trustee may sell or
transfer its corporate trust business and assets as a whole or substantially as
a whole, or any corporation or association resulting from any merger,
conversion, sale, consolidation or transfer to which it is a party, shall be
and become successor Trustee hereunder and shall be vested with all the trusts,
powers, rights, obligations, duties, remedies, immunities and privileges hereunder
as was its predecessor, without the execution or filing of any instrument or
any further act on the part of any of the parties hereto.


 


Section 906.
Trustee Required; Eligibility. (a) There shall at all times be a Trustee
hereunder which shall be a trust institution or bank duly organized under the
laws of the United States of America or any state or territory thereof, in good
standing and qualified to accept such trust having a combined capital stock,
surplus and undivided profits of not less than $50,000,000. If such institution
publishes reports of condition at least annually pursuant to law or regulation,
then for the purposes of this Section the capital, surplus and undivided
profits of such institution shall be deemed to be its capital, surplus and
undivided profits 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, it shall resign immediately in the manner
provided in Section 907. No resignation or removal of the Trustee and no
appointment of a successor Trustee shall become effective until the successor
Trustee has accepted its appointment under Section 909.


 


(b) Notwithstanding
anything herein, in the Series 1994B Indenture or in the Borrower
Documents to the contrary, each of the “Borrower”, the “Credit Enhancer”, the “Paying
Agent(s)”, the “Remarketing Agent”, the “Tender Agent” and the “Trustee”
(including for such purpose each co-trustee) shall, as between the documents
relating to the Bonds and the Series 1994B Bonds be one and the same
Person. In this regard:


 


(i)                                     the Trustee,
including any successor Trustee, shall at all times hereunder also serve as
Trustee pursuant to the Series 1994B Indenture;


 


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(ii)                                  the Trustee agrees to
resign hereunder contemporaneously with any resignation under the Series 1994B
Indenture; and


 


(iii)                               any removal of the
Trustee pursuant to the Series 1994B Indenture shall result in the
contemporaneous removal of the Trustee hereunder.


 


Section 907.
Resignation of Trustee. The Trustee and any successor Trustee may at any time
resign from the trusts hereby created by giving 30 days’ written notice to the
Credit Enhancer, the Remarketing Agent, the Issuer, the Borrower and the
Bondowners, and such resignation shall take effect at the end of such 30 days,
or upon the earlier appointment of a successor Trustee by the Issuer or by the
Owners of a majority in aggregate principal amount of the Bonds then outstanding
in accordance with Section 908 hereof; provided, however, that in no event
shall the resignation of a Trustee or successor Trustee become effective until
such time as a successor Trustee has been appointed and has accepted
appointment.


 


Section 908.
Removal of Trustee. The Trustee may be removed for cause at any time or without
cause upon thirty days written notice by an instrument or concurrent
instruments in writing delivered to the Trustee and the Issuer and signed by
the Borrower (with the consent of the Credit Enhancer), the Credit Enhancer or
the Owners of a majority in aggregate principal amount of Bonds then
Outstanding (with the consent of the Credit Enhancer); provided, however, that
any such removal shall not be effective until such time as a successor Trustee
has been appointed and has accepted such appointment. The Issuer, the Borrower,
the Credit Enhancer or any Bondowner may at any time petition any court of
competent jurisdiction for the removal for cause of the Trustee.


 


Section 909.
Appointment of Successor Trustee. In case the Trustee hereunder shall resign or
be removed, or shall otherwise become incapable of acting hereunder, or in case
it shall be taken under the control of any public officer or officers or of a
receiver appointed by a court, a successor Trustee, approved in writing by the
Credit Enhancer and the Borrower, may be appointed by the Owners of a majority
in aggregate principal amount of Bonds then Outstanding, by an instrument or
concurrent instruments in writing; provided, nevertheless, that in case of such
vacancy the Issuer, by an instrument executed and signed by the Chairman of the
Board of Directors of the Issuer and attested by its Executive Director under
its seal, may appoint a temporary Trustee, approved by the Credit Enhancer, to
fill such vacancy; or if such vacancy has continued for 60 days, the Credit
Enhancer and the Borrower may appoint such temporary Trustee, until a successor
Trustee shall be appointed by the Bondowners in the manner above provided; and
any such temporary Trustee so appointed by the Issuer or the Credit Enhancer
shall immediately and without further acts be superseded by the successor
Trustee so appointed by such Bondowners. Any successor Trustee or temporary
Trustees must have the qualifications provided for in Section 906.


 


Section 910.
Vesting of Trusts in Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to
the Issuer, the Credit Enhancer and the Borrower an instrument in writing
accepting such appointment hereunder, and thereupon such successor shall become
fully vested with all the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges of its predecessor; but such predecessor
shall, nevertheless, on the written request of the Issuer, the Credit Enhancer
or its successor, execute and deliver an instrument transferring to such
successor Trustee all the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges of such predecessor hereunder; and every


 


63





















 


predecessor Trustee shall deliver all securities and moneys and
documents held by it as Trustee hereunder to its successor. Should any
instrument in writing from the Issuer be required by any successor Trustee for
more fully and certainly vesting in such successor the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges hereby vested in the
predecessor, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer.


 


Section 911.
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 State) denying or restricting the right of banking
corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture
or the Agreement, and in particular in case of the enforcement with respect to
any default, or in case the Trustee deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein granted to the Trustee, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary or
desirable that the Trustee appoint an individual or institution as a co-trustee
or separate trustee, and the Trustee is hereby authorized to appoint such
co-trustee or separate trustee, with the written consent of the Issuer and the
Credit Enhancer.


 


In the event
that the Trustee appoints an additional individual or institution as co-trustee
or separate trustee, each and every remedy, power, right, claim, demand, cause
of action, immunity, title, interest and lien expressed or intended by this
Indenture to be exercised by the Trustee with respect thereto shall be
exercisable by such co-trustee or separate trustee but only to the extent
necessary to enable such co-trustee or separate trustee to exercise such
powers, rights and remedies, and every covenant and obligation necessary to the
exercise thereof by such co-trustee or separate 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
co-trustee or separate trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed, acknowledged and
delivered by the Issuer.


 


In case any
co-trustee or separate trustee shall die, become incapable of acting, resign or
be removed, all the properties, rights, powers, trusts, duties and obligations
of such co-trustee or separate trustee, so far as permitted by law, shall vest
in and be exercised by the Trustee until the appointment of a successor to such
co-trustee or separate trustee.


 


Section 912.
Accounting. The Trustee shall render a monthly accounting, for each calendar
month, to the Borrower, to the Credit Enhancer and to any Bondowner requesting
the same at the cost of such Bondowner, and an annual (or more often if
requested) accounting, for each calendar year ended December 31, to the
Issuer showing in reasonable detail all financial transactions relating to the
Trust Estate during the accounting period and the balance in any funds or
accounts created by this Indenture as of the beginning and close of such accounting
period.


 


Section 913.
Paying Agents; Bond Registrar; Appointment and Acceptance of Duties; Removal.
The Trustee is hereby designated and agrees to act as Paying Agent and as Bond


 


64





















 


Registrar for and in respect of the Bonds. The Tender Agent shall be
the Paying Agent with respect to Tendered Bonds.


 


Section 914.
The Tender Agent.


 


(a) The
Trustee is hereby appointed as the initial Tender Agent for the Bonds and with
respect to Tendered Bonds, the Paying Agent, and hereby agrees to carry out its
responsibilities described herein. If the Tender Agent is other than the
Trustee, the Tender Agent shall signify its acceptance of the duties and
obligations imposed upon it hereunder by a written instrument of acceptance
delivered to the Issuer, the Credit Enhancer, the Borrower, the Trustee and the
Remarketing Agent, under which the Tender Agent will agree to particularly:


 


(1) hold all Bonds delivered to it for
purchase hereunder as agent and bailee of, and in escrow for the benefit of,
the respective Owners which have so delivered such Bonds; until moneys
representing the Purchase Price of such Bonds shall have been delivered to or
for the account of or to the order of such Owners; and


 


(2) keep such books and records as shall
be consistent with prudent industry practice, and make such books and records
available for inspection by the other parties.


 


The parties
hereto shall each cooperate to cause the necessary arrangements to be made and
to be thereafter continued whereby funds from the sources specified herein will
be made available for the purchase of Bonds presented at the Principal Office
of the Tender Agent, and to otherwise enable the Tender Agent to carry out its
duties hereunder.


 


The Tender
Agent, the Trustee and the Remarketing Agent shall cooperate to the extent
necessary to permit the preparation, execution, issuance, authentication and
delivery by the Tender Agent of replacement Bonds in connection with the tender
and remarketing of Bonds hereunder.


 


The Issuer,
the Trustee and the Borrower acknowledge that, in carrying out its
responsibilities hereunder, the Tender Agent shall be acting solely for the
benefit of and as agent for the Owners from time to time of the Bonds. No
delivery of the Bonds to the Tender Agent or any agent of the Tender Agent or
purchase of Bonds by the Tender Agent shall constitute a redemption of the
Bonds or any extinguishment of the debt evidenced thereby.


 


(b) The
Tender Agent shall be a commercial bank or trust company, duly organized under
the laws of the United States of America or any state or territory thereof
having a combined capital stock, surplus and undivided profits of at least
$20,000,000 and authorized by law to perform all of the duties imposed upon it
by this Indenture. The Tender Agent may resign and be discharged of the duties
and obligation created by this Indenture by giving at least thirty (30) days’
notice by mail to the Trustee, the Borrower, the Remarketing Agent, and the
Credit Enhancer; provided, however, that such resignation shall not take effect
unless and until a successor Tender Agent shall be appointed by the Trustee
with the consent of the Credit Enhancer. The Trustee shall use its best efforts
to appoint a successor Tender Agent during such thirty (30) day period and in
the event a successor Tender Agent has not taken office prior to the expiration
of such thirty (30) day period, the Tender Agent may petition a court of
applicable jurisdiction to appoint a successor Tender Agent. The Tender Agent
may be removed at any time by an instrument signed by the


 


65





















 


Borrower, with the written consent of the Credit Enhancer, or the
Credit Enhancer, and filed with the Borrower, the Credit Enhancer, the Issuer,
the Tender Agent, the Remarketing Agent and the Trustee; provided, however,
that such removal shall not take effect unless and until a successor Tender
Agent shall be appointed by the Trustee with the approval of the Borrower and
the Credit Enhancer, or by the Borrower and the Credit Enhancer if the Trustee
has not made such appointment within thirty (30) days from such filing. In the
event of the resignation or removal of the Tender Agent, the Tender Agent shall
deliver any moneys and Bonds held by it to its successor, and if there be no
successor, to the Trustee.


 


(c) Tender
Agent shall be appointed by the Trustee with the approval of the Borrower and
the Credit Enhancer, or by the Borrower and the Credit Enhancer if the Trustee
has not made such appointment within thirty (30) days from such filing. In the
event of the resignation or removal of the Tender Agent, the Tender Agent shall
deliver any moneys and Bonds held by it to its successor, and if there be no
successor, to the Trustee.


 


(d) In
accordance with Section 906(b) hereof:


 


(i)                                     the Tender Agent,
including any successor Tender Agent, shall at all times hereunder also serve
as Tender Agent pursuant to the Series 1994B Indenture;


 


(ii)                                  the Tender Agent
agrees to resign hereunder contemporaneously with any resignation under the Series 1994B
Indenture; and


 


(iii)                               any removal of the
Tender Agent pursuant to the Series 1994B Indenture shall result in the
contemporaneous removal of the Tender Agent hereunder.


 


Section 915.
Notice to Rating Agency. The Trustee shall notify the Rating Agency (until such
time as the Rating Agency no longer maintains a rating on the Bonds) as soon as
practicable (i) after the Trustee becomes aware of (1) any
expiration, termination or renewal of the Credit Facility, (2) any redemption
or purchase of all of the Bonds, (3) any change in the Credit Facility,
the Agreement or this Indenture, or (4) the interest portion of the Credit
Facility will not be reinstated, or (ii) if (1) the Trustee resigns
or is removed or a new Trustee is appointed, (2) the Remarketing Agent
resigns or is removed or a new Remarketing Agent is appointed, (iii) an
Alternate Credit Facility is provided, (iv) there is a mandatory tender of
all Bonds, (v) there is a call for the redemption of all Bonds, or (vi) there
is a change in the Interest Mode pursuant to Section 204 hereof.


 


Section 916.
Right of Trustee to Pay Taxes and Other Charges. In case any tax, assessment or
governmental or other charge upon, or insurance premium with respect to, any
part of the Project is not paid as required herein or in the Agreement, or in
case any amount required to be rebated to the United States pursuant to the
provisions of Section 148(f) of the Code is not paid when due, the
Trustee may pay such tax, assessment or governmental charge, insurance premium,
or rebate amount, without prejudice, however, to any rights of the Trustee or
the Bondowners hereunder arising in consequence of such failure; and any amount
at any time so paid under this Section, with interest thereon from the date of
payment at a rate per annum equal to the Trustee’s base rate for variable rate
commercial loans in effect at the time plus two percent (2%), shall


 


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become an additional obligation secured by this Indenture, and the same
shall be given a preference in payment over any payment of principal of,
premium, if any, or interest on the Bonds, and shall be paid out of the
proceeds of rents, revenues and receipts collected from the Project, not including
payments on the Credit Facility, if not otherwise caused to be paid; but the
Trustee shall be under no obligation to make any such payment unless it shall
have been requested to do so by the Credit Enhancer or the Owners of at least
twenty-five percent (25%) of the aggregate principal amount of Bonds then
Outstanding and shall have been provided adequate funds for the purpose of such
payment.


 


[End of Article IX]


 


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ARTICLE X


 


SUPPLEMENTAL INDENTURES


 


Section 1001.
Supplemental Indentures Not Requiring Consent of Bondowners. The Issuer and the
Trustee may from time to time, with the prior written consent of the Credit
Enhancer and the Borrower, if required pursuant to Section 1003 hereof,
but without the consent of or notice to any of the Bondowners or the owners of
the Series 1994B Bonds, enter into such Supplemental Indenture or
Supplemental Indentures as shall not be inconsistent with the terms and
provisions hereof, so long as such Supplemental Indenture or Supplemental
Indentures does not cause the then-current rating on the Bonds to be lowered,
for any one or more of the following purposes:


 


(a) To
cure any ambiguity, formal defect or omission in this Indenture or to make any
other change not materially prejudicial to the Bondowners or the owners of the Series 1994B
Bonds;


 


(b) To
grant to or confer upon the Trustee for the benefit of the Bondowners any
additional rights, remedies, powers or authority that may lawfully be granted
to or conferred upon the Bondowners or the Trustee or either of them;


 


(c) To
subject to this Indenture additional revenues, properties or collateral;


 


(d) To
modify, amend or supplement this Indenture or any indenture supplemental
thereto in such manner as to permit the qualification of the Indenture under
the Trust Indenture Act of 1939, as then 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 state of the United States;


 


(e) To evidence
the appointment of a separate trustee or the succession of a new trustee
hereunder;


 


(f) To
make any other change which will become effective on a date on which the Bonds
are subject to mandatory tender pursuant to Section 302 hereof, provided
the substance of such change is described in the Trustee’s notice to Bondowners
in connection with an election to retain Bonds;


 


(g) To
make any other change which, in the sole judgment of the Trustee, does not
materially adversely affect the interests of the Bondowners or the owners of
the Series 1994B Bonds; it being understood that in exercising such
judgment the Trustee may rely on the opinion of such counsel as it may select;


 


(h) To
more precisely identify the Project or to substitute or add additional property
thereto; and


 


(i) To
conform this Indenture to the Code or other or future applicable federal law
concerning tax-exempt obligations;


 


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provided that, in the event a Supplemental Indenture is entered into
with respect to any of the matters referred to in (a) through (b) above,
a corresponding supplemental indenture, if appropriate under the circumstances,
shall be entered into with respect to the Series 1994B Indenture.


 


Section 1002.
Supplemental Indentures Requiring Consent of Bondowners. Exclusive of
Supplemental Indentures covered by Section 1001 hereof and subject to the
terms and provisions contained in this Section, and not otherwise, the Owners
(within the meaning of this Indenture and the Series 1994B Indenture) of
not less than 51% in aggregate principal amount of the Bonds and the Series 1994B
Bonds then outstanding shall have the right from time to time, with the prior
written consent of the Credit Enhancer and, if required pursuant to Section 1003
hereof, the Borrower, anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the Issuer and the
Trustee of such other Supplemental Indenture or Supplemental Indentures as
shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Indenture or in any Supplemental
Indenture (including any consents that may be given in connection with an
exchange or tender offer); provided, however, that nothing in this Section contained
shall permit or be construed as permitting without the consent of the Owners
(within the meaning of this Indenture and the Series 1994B Indenture) of
100% of the Bonds and the Series 1994B Bonds then outstanding, the Issuer,
the Trustee and the Credit Enhancer, (a) an extension of the maturity of
the principal of or the scheduled date of payment of interest on any Bond
issued hereunder, or (b) a reduction in the principal amount, redemption
premium or any interest payable on any Bond, or (c) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or (d) a
reduction in the aggregate principal amount of Bonds the Owners of which are
required for consent to any such Supplemental Indenture, or (e) any
modification of the redemption or tender features of the Bonds, or (f) any
change which results in the lowering of the then-current rating on the Bonds;
and provided, further, that in the event a Supplemental Indenture is entered
into in accordance with this Section, a corresponding supplemental indenture,
if appropriate under the circumstances, shall be entered into with respect to
the Series 1994B Indenture.


 


If at any time
the Issuer shall request the Trustee to enter into any such Supplemental
Indenture for any of the purposes of this Section, the Trustee shall cause
notice of the proposed execution of such Supplemental Indenture to be mailed to
each Bondowner, each owner of Series 1994B Bonds and the Credit Enhancer
(and a copy of such proposed Supplemental Indenture shall be mailed with such
notice to the Credit Enhancer. Such notice shall briefly set forth the nature
of the proposed Supplemental Indenture and shall state that copies thereof are
on file at the Principal Office of the Trustee for inspection by all Bondowners
and owners of the Series 1994B Bonds and a copy of such proposed
supplemental Indenture shall be mailed with such notice to the Credit Enhancer.
If within 60 days or such longer period as shall be prescribed by the Issuer
following the mailing of such notice, the Credit Enhancer and the Owners
(within the meaning of this Indenture and the Series 1994B Indenture) of
not less than fifty-one percent (51%) in aggregate principal amount of the
Bonds and the Series 1994B Bonds then outstanding at the time of the
execution of any such Supplemental Indenture shall have consented to and
approved the execution thereof as herein provided, no Owner of any Bond shall
have any right 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


 


69





















 


from executing the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such Supplemental Indenture as in
this Section permitted and provided, this Indenture shall be and be deemed
to be modified and amended in accordance therewith.


 


Section 1003.
Borrower’s Consent to Supplemental Indentures. Anything herein to the contrary
notwithstanding, a Supplemental Indenture under this Article which affects
any rights or obligations of the Borrower shall not become effective unless and
until the Borrower shall have consented in writing to the execution and
delivery of such Supplemental Indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such Supplemental
Indenture together with a copy of the proposed Supplemental Indenture to be
mailed to the Borrower at least 15 days prior to the proposed date of execution
and delivery of any such Supplemental Indenture. Under no circumstances shall a
failure by the Borrower to respond to such notice be construed as a consent for
these purposes.


 


Section 1004.
Opinion of Bond Counsel. Notwithstanding anything to the contrary in Sections
1001 or 1002, before the Issuer or the Trustee enter into any supplemental
indenture pursuant to Section 1001 or 1002. there shall have been
delivered to the Issuer, the Trustee, the Borrower and the Credit Enhancer an
Opinion of Bond Counsel stating that such supplemental indenture is authorized
or permitted by this Indenture and the Act, complies with their respective
terms, will, upon the execution and delivery thereof, be valid and binding upon
the Issuer in accordance with its terms and will not adversely affect the
exclusion of interest on the Bonds from gross income for federal income tax
purposes.


 


[End of Article X]


 


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ARTICLE XI


 


AMENDMENT OF AGREEMENT AND CREDIT FACILITY


 


Section 1101.
Amendments, Changes or Modifications to the Agreement and Credit Facility Not
Requiring Consent of Bondowners. So long as such does not cause the
then-current rating on the Bonds to be lowered, the Trustee, with the prior
written consent of the Credit Enhancer, may, without the consent of or notice
to the Bondowners or the owners of the Series 1994B Bonds, consent to any
amendment, change or modification of the Agreement and the Credit Facility, as
may be required (i) by the provisions of such documents and this
Indenture, (ii) for the purpose of curing any ambiguity or formal defect
or omission in such documents, or in connection with any other change therein
which, in the judgment of the Trustee, is not to the material prejudice of the
Trustee or the Bondowners or the owners of the Series 1994B Bonds, (iii) so
as to more precisely identify the Project or substitute or add additional
property thereto, (iv) to conform the Agreement or the Credit Facility to
the Code or other or future applicable Federal law concerning tax-exempt
obligations or (v) in connection with any other change therein which, in
the sole judgment of the Trustee, does not materially adversely affect the
interests of the Bondowners or the owners of the Series 1994B Bonds;
provided that, in the event a Supplemental Indenture is entered into with
respect to any of the matters referred to in (i) through (iii) and (v) above,
a corresponding Supplemental Indenture, if appropriate under the circumstances,
shall be entered into with respect to the Series 1994B Indenture. In
exercising such judgment, the Trustee may rely on the opinions of such counsel
as it may select.


 


Section 1102.
Amendments, Changes or Modifications to the Agreement and Credit Facility
Requiring Consent of Bondowners. except as provided for in Section 1101
hereof, the Trustee shall not consent to any amendment, change or modification
of the Agreement or the Credit Facility without the mailing of notice and the
obtaining of the written approval or consent of the Credit Enhancer and the
Owners (within the meaning of this Indenture and the Series 1994B
Indenture) of not less than fifty-one percent (51%) in aggregate principal
amount of the Bonds and the Series 1994B Bonds at the time outstanding
given and obtained as provided in Section 1002 hereof (including any
consents that may be given in connection with an exchange or tender offer);
provided, however, that no such amendment, change or modification to such
documents shall be entered into which permits, without the consent of the
Owners (within the meaning of this Indenture and the Series 1994B
Indenture) of 100% of the Bonds and the Series 1994B Bonds then
outstanding, the Issuer, the Trustee and the Credit Enhancer, (a) a
reduction of the maturity or expiration date of the Credit Facility, or (b) a
change in the timing of payments under or the amounts required to be paid under
the Credit Facility, or (c) a lowering of the then- current credit rating
on the Bonds; and provided, further, that in the event a Supplemental Indenture
is entered into in accordance with this Section, a corresponding supplemental
indenture, if appropriate under the circumstances, shall be entered into with
respect to the Series 1994B Indenture. If at any time the Issuer, the
Credit Enhancer and the Borrower shall request the consent of the Trustee to
any such proposed amendment, change or modification to such documents, the Trustee
shall cause notice of such proposed amendment, change or modification to such
documents to be given in the same manner as provided by Section 1002
hereof with respect to Supplemental Indentures and the corresponding
supplemental indentures with respect to the Series 1994B Bonds. Such
notice shall briefly set forth the nature of such proposed amendment, change or
modification to such documents and shall state that copies of the same are on
file at the Principal Office of the Trustee for


 


71





















 


inspection by all Bondowners and a copy of such proposed amendment,
change or modification to such document shall be mailed with such notice to the
Credit Enhancer.


 


Section 1103.
Opinion of Bond Counsel. Anything to the contrary in Sections 1101 or 1102
notwithstanding, before the Trustee shall consent to any amendment of the
Agreement or the Credit Facility there shall have been delivered to the
Trustee, the Borrower and the Credit Enhancer an Opinion of Bond Counsel stating
that such amendment is authorized or permitted by this Indenture and the Act,
complies with their respective terms, will, upon the execution and delivery
thereof, be valid and binding upon the Issuer (if the Issuer is a party
thereto) in accordance with its terms and will not adversely affect the
exclusion of interest on the Bonds from gross income for federal income tax
purposes.


 


[End of Article XI]


 


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ARTICLE XII


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 1201.
Defeasance. If the Bonds are in an Interest Mode other than a Weekly Mode or
Monthly Mode and if the Issuer shall pay or provide for the payment (other than
by the Credit Enhancer) of any Bond or Bonds Outstanding in any one or more of
the following ways:


 


(a) by
paying or causing to be paid, from Available Moneys, the principal of
(including redemption premium, if any) and interest on such Bonds, as and when
the same become due and payable;


 


(b) by
depositing with the Trustee, in trust and irrevocably setting aside exclusively
for such payment, at or before maturity, Available Moneys in an amount
sufficient to pay or redeem (when redeemable) Bonds (including the payment of
redemption premium, if any, and interest payable on such Bonds to the maturity
or redemption date thereof), provided that such moneys, if invested, shall be
invested in Government Securities which are not subject to redemption and
payment prior to maturity except at the option of the holder thereof (“Non-Callable
Government Securities”) in an amount and with maturities, without consideration
of any income or increment to accrue thereon, sufficient to pay or redeem (when
redeemable) and discharge the indebtedness on such Bonds at or before their
respective maturity dates, to pay the interest thereon as it comes due;


 


(c) by
delivering to the Trustee, for cancellation by it, such Bonds; or


 


(d) by
depositing with the Trustee, in trust, Non-Callable Government Securities
acquired with Available Moneys in such amounts as are certified to the Trustee
to be fully sufficient, together with other Available Moneys deposited therein
and together with the income or increment to accrue thereon, without
consideration of any reinvestment thereof, to pay or redeem (when redeemable) and
discharge the indebtedness on such Bonds at or before their respective maturity
dates, to pay the interest thereon as it comes due; 


then such Bond or Bonds shall be deemed to be paid within the meaning
of this Article and shall cease to be entitled to any lien, benefit or
security under this Indenture, except for the purposes of any such payment from
such moneys or Government Securities and except for the purposes of
registration, transfer and exchange of such Bonds. If all the Bonds are not to
be redeemed within 30 days, the Trustee shall mail, as soon as practicable, in
the manner prescribed by Article IV hereof, a notice to the owners of such
Bonds that the deposit required by (b) or (d) above has been made
with the Trustee and that said Bonds are deemed to have been paid in accordance
with this Article and stating the maturity or redemption date upon which
moneys are to be available for the payment of the principal of or redemption
price, if applicable, on said Bonds as specified in (1)) or (d) above.


 


Notwithstanding
the foregoing, in the case of the Bonds which by their terms may be redeemed
prior to the stated maturities thereof, no deposit under clauses (b) or (d) of
the immediately preceding paragraph shall be deemed a payment of such Bonds as
aforesaid until, as to all such Bonds which are to be redeemed prior to their
respective stated maturities and as to


 


73





















 


Bonds subject to interest rate adjustment prior to maturity which shall
be redeemed prior to the next Interest Adjustment Date, proper notice of such
redemption shall have been given in accordance with Article IV of this
Indenture or irrevocable instructions shall have been given to the Trustee to
give such notice at the time when such notice may be given pursuant to the
provisions of this Indenture.


 


Notwithstanding
any provisions of any other Section of this Indenture which may be
contrary to the provisions of this Section, all Available Moneys or
Non-Callable Government Securities or other investments acceptable to the
Credit Enhancer set aside and held in trust pursuant to the provisions of this Section for
the payment of Bonds (including redemption premium thereon, if any, and
interest) shall be applied to and used solely for the payment of the particular
Bonds (including redemption premium thereon, if any, and interest) with respect
to which such Available Moneys and Non-Callable Government Securities or other
investments acceptable to the Credit Enhancer have been so set aside in trust.


 


The Issuer may
at any time surrender to the Trustee for cancellation by it any Bond previously
authenticated and delivered which the Issuer may have acquired in any manner
whatsoever, and such Bonds, upon such surrender and cancellation, shall be
deemed to be paid and retired.


 


Section 1202.
Satisfaction and Discharge of the Indenture. If the Issuer shall pay the
principal of, redemption premium, if any, and interest on all of the Bonds
Outstanding in accordance with their terms, or shall provide for such payment
as provided in Section 1201 hereof, and if the Issuer shall also pay or
cause to be paid all other sums payable hereunder by the Issuer, then and in
that case this Indenture and the estate and rights granted hereunder shall
cease, terminate and become null and void, and thereupon the Trustee shall,
upon Written Request of the Issuer, and an Opinion of Counsel, each stating
that in the opinion of the signers all conditions precedent to the satisfaction
and discharge of this Indenture have been complied with, forthwith execute
proper instruments acknowledging satisfaction of and discharging this Indenture
and the lien hereof; provided that, with respect to Bonds for which payment has
been provided at the time but which has not in fact been paid, the liability of
the Issuer in respect of such Bonds shall continue provided that the Owners
thereof shall thereafter be entitled to payment only out of the moneys or
Government Securities deposited with the Trustee as provided in this Article.
The satisfaction and discharge of this Indenture shall be without prejudice to
the rights of the Trustee to charge and be reimbursed by the Issuer and the
Borrower for any expenditures which it may thereafter incur in connection
herewith.


 


Notwithstanding
the release and discharge of the lien of this Indenture as provided above,
those provisions of this Indenture relating to the maturity of the Bonds,
interest payments and dates thereof, tender and purchase provisions, exchange
and transfer of Bonds, replacement of mutilated, destroyed, lost, stolen or
Undelivered Bonds, the safekeeping and cancellation of Bonds, nonpresentment of
Bonds, the holding of moneys in trust, redemption of Bonds and the duties of
the Trustee, the Bond Registrar, the Paying Agent and the Remarketing Agent in
connection with all of the foregoing, remain in effect and shall be binding
upon the Trustee and the Bondowners.


 


The Issuer is
hereby authorized to accept a certificate by the Trustee that the whole amount
of the principal, redemption premium, if any, and interest so due and payable
upon all of the Bonds


 


74





















 


then Outstanding has been paid or such payment provided for in
accordance with Section 1201 hereof as evidence of satisfaction of this
Indenture, and upon receipt thereof shall cancel and erase the inscription of
this Indenture from its records.


 


All moneys,
funds, securities or other property remaining on deposit in all Funds or
Accounts established under this Indenture (other than said moneys or Government
Securities or other investments deposited in trust as above provided) shall,
upon the full satisfaction of this Indenture, forthwith be transferred, paid
over and distributed to the Credit Enhancer and the Borrower in the manner
provided in Section 510 hereof.


 


If there is a
release and discharge of the lien of this Indenture as provided above, the
Trustee shall so notify the Rating Agency.


 


Section 1203.
When Refunding is Not Permitted. None of the Bonds Outstanding hereunder may be
refunded nor may this Indenture be discharged if under any circumstances the
interest on the Bonds is thereby made subject to federal income taxation. In
determining the foregoing, the Trustee may rely upon an Opinion of Bond Counsel
(which opinion may be based upon a ruling or rulings of the Internal Revenue
Service) to the effect that the interest on the Bonds proposed to be refunded
will not be subject to federal income taxation, notwithstanding the
satisfaction and discharge of this Indenture.


 


[End of Article XII]


 


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ARTICLE XIII


 


MISCELLANEOUS PROVISIONS


 


Section 1301.
Consents and Other Instruments by Bondowners. Any consent, request, direction,
approval, objection or other instrument required by this Indenture to be signed
and executed by the Bondowners may be in any number of concurrent writings of
similar tenor and may be signed or executed by such Bondowners in person or by
agent appointed in writing. Proof of the execution of any such instrument or of
the writing appointing any such agent and of the ownership of Bonds, if made in
the following manner, shall be sufficient for any of the purposes of this
Indenture except for the assignment of the ownership of any Bond which proof
shall be made by signature guaranty, and shall be conclusive in favor of the
Trustee with regard to any action taken, suffered or omitted under any such
instrument, namely:


 


(a) The
fact and date of the execution by any person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who by law has
power to take acknowledgments within such jurisdiction that the person signing
such instrument acknowledged before him the execution thereof, or by affidavit
of any witness to such execution.


 


(b) The
fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved
by the Bond Register.


 


In determining
whether the Owners of the requisite principal amount of Bonds Outstanding have given
any request, demand, authorization, direction, notice, consent or waiver under
this Indenture, Bonds owned by, or held by or for the account of, the Issuer,
the Borrower or any Affiliated Party of the Borrower shall be disregarded and
deemed not to be Outstanding under this Indenture, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Bonds which
the Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, Bonds (including Pledged Bonds) so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Bonds and that the pledgee is not the Issuer, the Borrower or any Affiliated
Party of the Borrower.


 


Section 1302.
Notices. Except as otherwise provided herein, it shall be sufficient service of
any notice, request, complaint, demand or other paper required by this
Indenture to be given to or filed with the Issuer, the Trustee, the Credit
Enhancer, the Remarketing Agent, the Borrower or the Bondowners if the same
shall be duly mailed by first-class mail, postage pre-paid, certified or
registered mail, or sent by telegram, telecopy or telex or other similar
communication, or when given by telephone, confirmed in writing by first-class
mail, postage pre-paid, certified or registered mail, or sent by telegram,
telecopy or telex or other similar communication, on the same day, addressed:


 


(a)           To
the Issuer at:


 


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South Carolina Jobs-Economic Development Authority


1201 Main Street, Suite 1750


Columbia, South Carolina 29201


Attention:  Executive Director


Telephone: (803) 737-0079


Telecopier: (803) 737-0016


 


(b)           To
the Trustee and Tender Agent at:


 


Mark Twain Bank


8820 Ladue Road


St. Louis, Missouri 63124


Attention:  Corporate Trust
Division


Telephone: (314) 889-0753


Telecopier: (314) 889-0736


 


(c)           To
the Credit Enhancer at:


 


Heller Financial, Inc.


500 West Monroe Street, 12th Floor


Chicago, Illinois 60661


Attention: Portfolio Manager, Portfolio Organization, Corporate Finance
Group


Telephone: (312) 441-7500


Telecopier: (312) 441-7367


 


With a copy to Legal Department, Portfolio Organization, Corporate
Finance Group


 


(d)           To
the Remarketing Agent at:


 


Stern Brothers & Co.


8000 Maryland Avenue, Suite 1020


St. Louis, Missouri 63105


Attention:  Mr. Terrence M.
Finn


Telephone: (314) 727-5519


Telecopier: (314) 727-7313


 


(e)           To
the Borrower at:


 


Roller Bearing Company of America, Inc.


140 Terry Drive


Newtown, Pennsylvania 18940


Attention:  Chief Financial
Officer


Telephone: (215) 579-4300


Telecopier: (215) 579-4318


 


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With a copy
to:


 


Gibson, Dunn & Crutcher


2029 Century Park East, Suite 4000


Los Angeles, California 90067


Attention:  Bruce D. Meyer


Telephone: (310) 552-8686


Telecopier: (310) 277-5827


 


(f)            To
the Bondowners:


 


Addressed to each of the Owners of all Bonds at the time Outstanding,
as shown by the Bond Register.


 


(g)           Initially,
to the Rating Agency at: 


 


Standard & Poor’s Ratings Group


25 Broadway


New York, New York 10004


Attention:  LOC Rating
Surveillance


Telephone: (212) 208-1846


Telecopier: (212) 208-0031


 


All notices
given by first-class mail, certified or registered mail, postage prepaid, as
aforesaid shall be deemed duly given as of the third day after the same are so
mailed; provided that notices shall be deemed given as of the date they are
sent by telecopy or otherwise received. A duplicate copy of each notice,
certificate or other communication given hereunder by either the Issuer or the
Trustee to the other shall also be given to the Borrower, the Remarketing Agent
and the Credit Enhancer. In the event of notice to any party other than the
Issuer or the Trustee, a copy of the notice shall be provided to the Borrower,
the Remarketing Agent and the Credit Enhancer. In addition, the Trustee shall
send to the Credit Enhancer, the Borrower, the Tender Agent and the Remarketing
Agent a copy of each notice sent to the Bondowners. The Issuer, the Trustee,
the Tender Agent, the Borrower, the Credit Enhancer and the Remarketing Agent
may from time to time designate, by notice given hereunder to the others of such
parties, such other address to which subsequent notices, certificates or other
communications shall be sent.


 


Section 1303.
Limitation of Rights Under the Indenture. With the exception of rights herein
expressly conferred and as otherwise provided in this Section, nothing
expressed or mentioned in or to be implied from this Indenture or the Bonds is
intended or shall be construed to give any person other than the parties
hereto, the Borrower, the Credit Enhancer and the Owners of the Bonds, any
right, remedy or claim under or in respect to this Indenture. This Indenture
and all of the covenants, conditions and provisions hereof are, except as
otherwise provided in this Section, intended to be and are for the sole and
exclusive benefit of the parties hereto, the Borrower, the Credit Enhancer and
the Owners of the Bonds as herein provided.


 


78





















 


The Trustee
and the Issuer acknowledge and agree that each of the Borrower, the Credit
Enhancer, the Remarketing Agent and the Tender Agent is a third-party
beneficiary of those provisions herein which relate to the making of payments
or giving of notice to or consents by or following the directions of or the
performance of other acts to benefit it, and all such provisions shall be
enforceable by such parties, and in addition acknowledge and agree that the
Credit Enhancer shall for all purposes hereunder be treated as the Owner of
Pledged Bonds.


 


Section 1304.
Suspension of Mail Service. If, because of the temporary or permanent
suspension of mail service or for any other reason, it is impossible or
impractical to mail any notice in the manner herein provided, then such
delivery of notice in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient notice.


 


Section 1305.
Business Days. If any date for the payment of principal of, redemption premium,
if any, or interest on the Bonds or the taking of any other action hereunder is
not a Business Day, then such payment shall be due, or such action shall be
taken, on the first Business Day thereafter with the same force and effect as
if made on the date fixed for payment or performance.


 


Section 1306.
Immunity of Officers,. Employees and Members of Issuer. No recourse shall be
had for the payment of the principal of or redemption premium, if any, or
interest on any of the Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in this Indenture contained against any past,
present or future officer, member, employee or agent of the Issuer, or of any
successor body, as such, either directly or through the Issuer or any successor
body, under any rule of law or equity, statute or constitution, or by the
enforcement of any assessment or penalty or otherwise, and all such liability
of any such officers, members, employees or agents as such is hereby expressly
waived and released as a condition of and consideration for the execution of
this Indenture and the issuance of such Bonds.


 


Section 1307.
Credit Enhancer’s Remedial Rights. The Issuer and the Trustee on behalf of the
Bondowners hereby acknowledge and agree that should the Credit Enhancer
exercise certain of its remedial rights under the Credit Documents, the Credit
Enhancer (or an Affiliate or designee thereof) may become successor in interest
to the Borrower under the Agreement. No such exercise of the Credit Enhancer’s
rights under the Credit Documents, or succession of the Credit Enhancer (or an
affiliate or designee thereof) to the interest of the Borrower under the Agreement,
shall require, as a condition precedent, either (i) the further consent of
the Issuer, the Trustee or the Bondowners, or (ii) the acceleration of the
Bonds (unless the Credit Enhancer elects such in its sole discretion).


 


Section 1308.
Severability. If any provision of this Indenture shall be held or deemed to be
invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because
it conflicts with any other provision or provisions hereof or any constitution
or statute or rule of public policy, or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstances, or of
rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever. The invalidity of any one
or more phrases, sentences, clauses or Sections in this Indenture contained
shall not affect the remaining portions of this Indenture, or any part thereof.


 


79





















 


Section 1309.
Complete Agreement. The Issuer and the Trustee understand that oral agreements
or commitments to loan money, extend credit or to forbear from enforcing
repayment of a debt including promises to extend or renew such debt are not
enforceable. To protect the Issuer and the Trustee from misunderstanding or
disappointment, any agreements the Issuer and the Trustee reach covering such
matters are contained in this Indenture, which is the complete and exclusive
statement of the agreement between the Issuer and the Trustee, except as the
Issuer and the Trustee may later agree in writing (subject to the provisions of
Article X of this Indenture) to modify this Indenture.


 


Section 1310.
Execution in Counterparts. This Indenture may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.


 


Section 1311.
Governing Law. This Indenture shall be governed exclusively by and construed in
accordance with the applicable laws of the State of South Carolina.


 


[End of Article XIII]


 


80





















 


IN WITNESS
WHEREOF, the South Carolina Jobs-Economic Development Authority has caused
these presents to be signed in its name and behalf and its corporate seal to be
hereunto affixed and attested by its duly authorized officers, and to evidence
its acceptance of the trusts hereby created, the Trustee, has caused these
presents to be signed in its name and behalf and its corporate seal to be
hereunto affixed and attested by its duly authorized officers, all as of the
day and year first above written.


 


	
   

  	
  SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT

  
	
   

  	
  AUTHORITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert L. Mobley

  	
   

  
	
   

  	
   

  	
  Chairman, Board of Directors

  
	
  [SEAL]

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Executive Director

  	
   

  
	
   

  	
   

  
	
   

  	
  MARK TWAIN BANK as Trustee By

  
	
   

  	
   

  
	
   

  	
   

  
	
  [SEAL]

  	
  By 

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Assistant Secretary

  	
   

  
							



 


81





















 


EXHIBIT A


 


BOND FORM


 


(Form of Face of Bond)


 


	
  REGISTERED

  	
   

  	
   

  	
  REGISTERED NO. R-

  



 


$                     


 


UNITED STATES OF AMERICA


State of South Carolina


 


SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT
AUTHORITY


VARIABLE RATE DEMAND


INDUSTRIAL DEVELOPMENT REVENUE BOND


(Roller Bearing Company of America, Inc.
Project)


Series 1994A


 


	
  Interest Rate:

  	
   

  	
  Maturity Date:

  	
   

  	
  Dated Date:

  	
   

  	
  CUSIP:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  September 1, 2017

  	
   

  	
   

  	
   

  	
   

  



 


Registered Owner:


 


	
  Principal Amount:

  	
   

  	
  Dollars

  



 


THIS BOND AND
THE RELATED CREDIT FACILITY INITIALLY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY
STATE. ACCORDINGLY, BONDS THAT ARE SUBJECT TO THE BENEFITS OF THE CREDIT
FACILITY MAY BE SOLD, REMARKETED, OR OTHERWISE TRANSFERRED ONLY IN
TRANSACTIONS IN WHICH THE BONDS AND THE RELATED CREDIT FACILITY ARE REGISTERED
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES STATUTES OR IN
TRANSACTIONS IN WHICH THE BONDS AND THE RELATED CREDIT FACILITY ARE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THE ISSUER AND THE CREDIT ENHANCER HAVE NO OBLIGATION TO CAUSE
THE BONDS OR THE CREDIT FACILITY TO BE REGISTERED UNDER THE SECURITIES ACT OR
ANY APPLICABLE STATE SECURITIES LAWS OR TO COMPLY WITH ANY EXEMPTION THAT MAY BE
AVAILABLE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS,
INCLUDING, WITHOUT LIMITATION, RULE 144A UNDER THE SECURITIES ACT. THE TRANSFER
RESTRICTIONS DESCRIBED HEREIN DO NOT PRECLUDE THE REGISTERED OWNER OF THIS BOND
FROM TENDERING THIS BOND TO THE TENDER AGENT AS DESCRIBED HEREIN. THE HOLDER
HEREOF AGREES THAT ANY TRANSFER OF THIS BOND WILL BE IN ACCORDANCE WITH THE
INDENTURE (AS DESCRIBED HEREIN).


 


THIS BOND IS
SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME AND IN THE MANNER
HEREINAFTER DESCRIBED, AND MUST BE SO TENDERED OR WILL BE


 


A-1





















 


DEEMED TO HAVE BEEN SO TENDERED UNDER CERTAIN CIRCUMSTANCES DESCRIBED
HEREIN.


 


The South
Carolina Jobs-Economic Development Authority (the “Issuer”), a body politic and
corporate and an agency of the State of South Carolina, for value received
hereby acknowledges itself obligated to, and promises to pay, the Registered
Owner identified above, or registered assigns, but only out of the sources
pledged for that purpose as hereinafter provided, and not otherwise, on the
Maturity Date set forth above or on prior redemption of the Principal Amount
above and interest thereon from the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or for which due provision
has been made or, if no interest has been paid, from the Dated Date set forth above,
at the rate of interest per annum determined as set forth herein, until the
Issuer’s obligation with respect to payment of said Principal Amount is
discharged.


 


Principal of,
redemption premium, if any, and interest on this Bond are payable in any coin
or currency of the United States of America which, at the respective dates of
payment thereof, is legal tender for the payment of public and private debts,
and such principal and premium, if any, on this Bond shall be payable at the
Principal Office of Mark Twain Bank, St. Louis, Missouri, as trustee (the “Trustee”),
and, with respect to Tender Price, at the Principal Office of Mark Twain Bank,
St. Louis, Missouri, as tender agent (the “Tender Agent”) upon presentation and
surrender of this Bond. Payment of interest on this Bond will be made by check
or draft of the Trustee mailed to the person in whose name this Bond is
registered on the Bond Register as of the close of business of the Trustee on
the Record Date for such Interest Payment Date, except that interest not duly
paid or provided for when due will be payable to the person in whose name this
Bond is registered at the dose of business on the Business Day immediately
preceding the date of payment of such defaulted interest as provided for in the
hereinafter referred to Indenture. In the case of an interest payment to any
Owner of $1,000,000 or more in aggregate principal amount of Bonds as of the
commencement of business of the Trustee on the Record Date for a particular
Interest Payment Date or in the case of the purchase from an Owner of
$1,000,000 or more in aggregate principal amount of Bonds on the Tender Date,
payment of interest or the Tender Price, as applicable, will be made by wire
transfer to such Owner upon written notice to the Trustee from such Owner
containing the wire transfer address (which shall be in the continental United
States) to which such Owner wishes to have such wire directed and, with regard
to interest payments, such written notice is given by such Owner to the Trustee
not less than fifteen (15) days prior to such Record Date and regarding payment
of the Tender Price, which written notice accompanies such Owner’s Notice of
Election to Tender Bonds.


 


The Bonds and
the interest thereon are limited obligations of the Issuer payable solely out
of the Revenues and other moneys pledged thereto and held by the Trustee as
provided in the Indenture and are secured by a transfer, pledge and assignment
of and a grant of a security interest in the Trust Estate to the Trustee and in
favor of the Owners of the Bonds, as provided in the Indenture. THE BONDS AND
THE PREMIUM, IF ANY, AND INTEREST THEREON (INCLUDING ANY AMOUNTS PAYABLE IN
CONNECTION WITH ANY PREPAYMENT OR PURCHASE OF THE BONDS) ARE LIMITED
OBLIGATIONS OF THE ISSUER; THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON
THE BONDS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PURCHASE OF THE
BONDS) ARE PAYABLE SOLELY FROM THE REVENUES OR MONEYS TO BE RECEIVED IN
CONNECTION WITH THE FINANCING OF THE PROJECT OR FROM ANY OTHER MONEYS MADE
AVAILABLE TO THE ISSUER FOR SUCH PURPOSE; NEITHER THE BONDS NOR


 


A-2





















 


THE INTEREST THEREON (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH
ANY PURCHASE OF THE BONDS) SHALL EVER CONSTITUTE AN INDEBTEDNESS OR A CHARGE
AGAINST THE GENERAL CREDIT OF THE STATE, THE ISSUER, OR ANY POLITICAL
SUBDIVISION OF THE STATE, OR OF THE TAXING POWERS OF THE STATE WITHIN THE
MEANING OF ANY CONSTITUTIONAL OR STATUTORY LIMITATION AND SHALL NEVER
CONSTITUTE OR GIVE RISE TO ANY PECUNIARY LIABILITY OF THE STATE, THE ISSUER, OR
ANY POLITICAL SUBDIVISION OF THE STATE, THE BONDS DO NOT CONSTITUTE AN
INDEBTEDNESS TO WHICH THE FAITH OR CREDIT OF THE STATE, THE ISSUER, OR ANY
POLITICAL SUBDIVISION OF THE STATE, OR TAXING POWER OF THE STATE, IS PLEDGED.


 


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


 


Capitalized
terms used herein shall have the meanings set forth in the Trust Indenture,
dated as of September 1, 1994 (the “Indenture”), by and between the Issuer
and the Trustee with respect to the Bonds unless otherwise defined herein.


 


ADDITIONAL
PROVISIONS OF THIS BOND ARE SET FORTH ON THE REVERSE HEREOF.


 


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 manually signed by an authorized officer of the Trustee.


 


IT IS HEREBY
CERTIFIED AND RECITED that all acts, conditions and things required to exist,
to happen and to be performed precedent to and in the issuance of this Bond
have existed, have happened and have been performed in due form, time and
manner as required by law.


 


A-3





















 


IN WITNESS WHEREOF,
the Issuer has caused this Bond to be executed and attested by the printed
facsimile signatures of its duly authorized officers, and its corporate seal to
be printed hereon, all as of the Dated Date shown above.


 


	
  [SEAL]

  	
  SOUTH CAROLINA JOBS-ECONOMIC

  
	
   

  	
  DEVELOPMENT AUTHORITY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
             (Facsimile
  Signature)

  	
   

  
	
   

  	
   

  	
  Chairman,
  Board of Directors

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
  By 

  	
          (Facsimile Signature)

  	
   

  	
   

  
	
   

  	
  Executive Director

  	
   

  	
   

  



 


AUTHENTICATION CERTIFICATE


 


The
undersigned hereby certifies that this is one of the Bonds described in the
within-mentioned Indenture.


 


	
  Date of Authentication:
                     

  	
   

  
	
   

  	
   

  
	
   

  	
  MARK TWAIN BANK, as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  



 


A-4


















(Form of
Reverse of Bond)


 


CERTAIN
DEFINITIONS


 


Unless otherwise defined
herein, capitalized words and terms used in this Bond shall have the meanings
ascribed to such terms in the Indenture. In addition, the following words and
terms as used in this Bond shall have the following meanings:


 


“Agreement” means the Loan
Agreement, including the Exhibits attached thereto, dated as of the date of the
Indenture, between the Issuer and the Borrower, with respect to the Bonds, as
such Agreement may be from time to time amended, restated or supplemented in
accordance with the provisions of the Agreement and the Indenture.


 


“Alternate Credit Facility”
means any alternate credit facility designated and qualified as such and
provided in accordance with the Indenture.


 


“Alternate Credit Facility
Date” means a Business Day on or prior to the Termination Date on which the
Borrower has complied with all requirements of the Indenture regarding the
substitution of an Alternate Credit Facility for the Credit Facility then in effect.


 


“Annual Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
twelve month intervals, as provided in the Indenture.


 


“Authorized Denominations”
means (i) in the case of Bonds in a Weekly Mode or Monthly Mode, $100,000
and any integral multiple of $5,000 in excess thereof; (ii) in the case of
Bonds in a Semiannual Mode, Annual Mode or Multiyear Mode, $5,000 or any
integral multiple thereof, provided that if the Credit Facility is not exempt
from registration under the Securities Act of 1933 and has not been registered
thereunder, as amended, then the Authorized Denomination shall be $100,000 and
any integral multiple of $5,000 in excess thereof; or (iii) in the case of
a Bond which is a Pledged Bond, $100,000 or any integral multiple of $5,000 in
excess thereof.


 


“Bond Registrar” means the
Trustee, when acting as such.


 


“Business Day” means any day
which is not (i) a Saturday, a Sunday or any other day on which banking
institutions in the City of New York, New York or the city in which the
principal corporate trust office of the Trustee, and the principal office of
the Remarketing Agent, the Tender Agent or the Credit Enhancer is located, are
required or authorized to close or (ii) a day on which the New York Stock
Exchange is closed.


 


“Credit Facility” means the
letter of credit initially issued by Heller Financial, Inc. or any
Alternate Credit Facility issued by the Credit Enhancer in substitution
therefor in accordance with the Indenture, as the same may be amended, supplemented,
extended or renewed from time to time in accordance with the Loan Agreement and
the Indenture.


 


“Financial Institution” means
any qualified institutional buyer, as that term is defined from time to time in
17 C.F.R. ss.230.144A(a)(i) (“Rule 144A”).


 


A-5





















 


“Immediate Notice” means
notice by telephone, telegram, telex, telecopier or other telecommunication
device to such phone numbers or addresses as are specified in the Indenture or
such other phone number or address as the addressee shall have directed in
writing, promptly followed by written notice by first-class mail postage
prepaid to such addresses.


 


“Interest Mode” means a
period of time relating to the frequency with which the interest rate on the
Bonds is determined pursuant to the Indenture, which Interest Mode may be a
Weekly Mode, a Monthly Mode, a Semiannual Mode, an Annual Mode or a Multiyear
Mode.


 


“Interest Mode Adjustment
Date” means a date on which the Interest Mode of the Bonds is changed from one
Interest Mode to a different Interest Mode, and such date shall be an Interest
Payment Date.


 


“Interest Mode Adjustment
Notice” means the notice of a new Interest Mode with respect to any Bonds in
accordance with the Indenture.


 


“Interest Payment Date” means
the date on which an interest installment is required to be paid on the Bonds
to the Owners thereof, (i) with respect to all Bonds other than Pledged
Bonds, (1) as to the first Interest Period, October 3, 1994; (2) as
to any Weekly Mode or Monthly Mode, the first Business Day of each month; (3) as
to any Semiannual Mode, Annual Mode or Multiyear Mode, each September 1,
and March 1, commencing with the first such September 1, or March 1
following the Interest Mode Adjustment Date, or the next succeeding Business
Day thereafter if any such September 1, or March 1, is not a Business
Day; and (4) an Interest Mode Adjustment Date; and (ii) with respect
to Pledged Bonds, the first Business Day of each calendar month and the date of
sale of Pledged Bonds.


 


“Interest Period” means, with
respect to the Bonds in any Interest Mode, the period from and including each
Interest Payment Date for such Interest Mode to and including the day
immediately preceding the following Interest Payment Date for such Interest
Mode, except that the first Interest Period shall be the period from and
including the date of original delivery of the Bonds to and including the day
immediately preceding the first Interest Payment Date for the Bonds.


 


“Mandatory Purchase Date”
means each date designated by the Credit Enhancer for purchase of the Bonds in
accordance with the Indenture.


 


“Maximum Rate” means the
lesser of (i) 15% per annum or (ii) the rate utilized in the Credit
Facility for purposes of computing the interest component thereof.


 


“Monthly Mode” means an
Interest Mode during which the interest rate on the Bonds is determined in
monthly intervals as set forth in the Indenture.


 


“Multiyear Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
intervals of integral (greater than one) multiples of twelve months, as
provided in the Indenture.


 


“Notice of Election to
Tender/Retain Bonds” means the Notice of Election to Tender/Retain Bonds in
substantially the form attached to the Indenture delivered by a Bondowner to
the Tender


 


A-6





















 


Agent (i) which contain
a demand for the purchase of Bonds on the Tender Date, or (ii) following
receipt of a notice of a mandatory tender of Bonds which contain an election to
retain Bonds. “Notice of Election to Tender Bonds” shall refer to those
provisions of the Notice of Election to Tender/Retain Bonds which relate to the
election to tender Bonds as provided in the Indenture. “Notice of Election to
Retain Bonds” shall refer to those provisions of the Notice of Election to
Tender/Retain Bonds which relate to the election to retain Bonds.


 


“Rate Adjustment Date” means
the date as of which the interest rate determined for an Interest Mode shall be
effective, which (i) during a Weekly Mode shall be Thursday of each week
(whether or not a Business Day); (ii) during a Monthly Mode shall be the
first calendar day of each month; (iii) during a Semiannual Mode shall be
the first calendar day of such Semiannual Mode which shall be September 1
or March 1 and the first day following each six-month period thereafter;
and, (iv) during an Annual Mode or a Multiyear Mode shall be the first
calendar day of such Annual Mode or Multiyear Mode, which shall be September 1,
and thereafter the first calendar day following the completion of the then
current Annual Mode or Multiyear Mode. The initial Rate Adjustment Date is September 15,
1994.


 


“Rate Adjustment Notice”
means the Rate Adjustment Notice to be mailed by the Trustee in the form and in
accordance with the Indenture.


 


“Rate Determination Date”
means no later than 4:00 p.m., New York Time, on the Business Day
immediately preceding a Rate Adjustment Date for a Weekly or a Monthly Mode,
and on the third (3rd) Business Day immediately preceding a Rate Adjustment
Date for a Semiannual Mode, Annual Mode or Multiyear Mode.


 


“Rate Period” means the
period from a Rate Adjustment Date to, but not including, the next Rate
Adjustment Date.


 


“Record Date” means, with
respect to Bonds in a Semiannual Mode, an Annual Mode or a Multiyear Mode, the
fifteenth calendar day, whether or not a Business Day of the month, preceding
such Interest Payment Date, and, with respect to Bonds in a Weekly Mode or
Monthly Mode, the fifth calendar day immediately preceding such Interest
Payment Date.


 


“Semiannual Mode” means an
Interest Mode during which the interest rate on the Bonds is determined at
six-month intervals as set forth in the Indenture.


 


“Tender Agent” means
initially the Trustee and any successor tender agent appointed pursuant to the
Indenture. The Tender Agent shall act as Paying Agent as to Tendered Bonds.


 


“Tender Date” means (a) each
date designated by a Bondowner for purchase of any Bonds in accordance with the
provisions of the Indenture, and (b) each date on which Bonds are required
to be tendered in accordance with the provisions of the Indenture, including
any Mandatory Purchase Date, whether or not such Bonds are actually tendered.


 


“Tender Price” means 100% of
the principal amount of any Bond tendered pursuant to the provisions of the
Indenture plus interest accrued and unpaid thereon to, but not including, the
Tender Date.


 


A-7





















 


“Tendered Bonds” means (a) any
Bonds tendered by a Bondowner for purchase pursuant to the optional redemption
provisions of the Indenture, and (b) any Bonds required to be tendered for
purchase pursuant to the mandatory tender provisions of the Indenture, in each
case whether or not such Bonds are actually tendered.


 


“Termination Date” means (i) if
the Credit Facility is not a letter of credit, the maturity or expiration date
of the Credit Facility or (ii) if the Credit Facility is a letter of
credit, the Interest Payment Date which is at least five (5) days preceding
the date on which the Credit Facility is to expire pursuant to its terms, in
each case including any extension of such maturity or expiration date.


 


“Weekly Mode” means an
Interest Mode during which the interest rate on the Bonds is determined in
weekly intervals as set forth in the Indenture.


 


GENERAL
PROVISIONS


 


This Bond is one of a series
of Bonds of the Issuer limited in aggregate original principal amount to
$7,700,000 and designated as Variable Rate Demand Industrial Development
Revenue Bonds (Roller Bearing Company of America, Inc. Project) Series 1994A
(the “Bonds”). All of the Bonds are issued under a Trust Indenture dated as of September 1,
1994 (the “Indenture”), between the Issuer and the Trustee, to provide funds to
make a loan (the “Loan”) to Roller Bearing Company of America, Inc., a
Delaware corporation (the “Borrower”), under a Loan Agreement dated as of September 1,
1994 (the “Agreement”), between the Issuer and the Borrower. The Loan shall
provide funds to finance the Project (as defined in the Agreement) and to pay
certain costs of issuance, all by the authority of and in full compliance with
the provisions, restrictions and limitations of the Constitution and statutes
of the State of South Carolina, including particularly Title 41, Chapter 43,
Code of Laws of South Carolina 1976, as amended, and pursuant to proceedings
duly had by the Issuer.


 


Concurrently with the
original issuance herewith, the Issuer has delivered its $3,000,000 aggregate
original principal amount Variable Rate Demand Industrial Development Revenue
Bonds (Roller Bearing Company of America, Inc. Project) Series 1994B
(the “Series 1994B Bonds”).


 


TO INITIALLY SECURE THE
PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS, THE BORROWER HAS CAUSED
HELLER FINANCIAL, INC. A DELAWARE CORPORATION (THE “CREDIT ENHANCER”), TO
DELIVER AN IRREVOCABLE TRANSFERABLE DIRECT-PAY LETTER OF CREDIT (THE “CREDIT
FACILITY”) TO THE TRUSTEE. SUBJECT TO CERTAIN CONDITIONS, THE CREDIT FACILITY MAY BE
REPLACED BY AN ALTERNATE CREDIT FACILITY. UNDER THE CREDIT FACILITY, THE CREDIT
ENHANCER IS OBLIGATED TO PAY AMOUNTS SUFFICIENT FOR THE PAYMENT OF (A) THE
PRINCIPAL OF THE BONDS OR THE PORTION OF THE TENDER PRICE CORRESPONDING TO THE
PRINCIPAL OF THE BONDS, AND (B) ACCRUED INTEREST ON THE BONDS OR THE
PORTION OF THE TENDER PRICE OF THE BONDS CORRESPONDING TO ACCRUED INTEREST
THEREON. THE CREDIT FACILITY IS SCHEDULED TO TERMINATE ON SEPTEMBER 15,
1999, UNLESS EXTENDED OR TERMINATED EARLIER PURSUANT TO ITS TERMS.


 


A-8





















 


Counterparts or copies of the
Indenture and the other documents referred to herein are on file at the
Principal Office of the Trustee in St. Louis, Missouri, and reference is hereby
made thereto and to the documents referred to therein for the provisions
thereof, including the provisions with respect to the rights, obligations,
duties and immunities of the Issuer, the Trustee, the Credit Enhancer, the
Borrower and the Registered Owners of the Bonds under such documents, to all of
which the Registered Owner hereof, by acceptance of this Bond, assents. The
Registered Owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute, appear in or defend any suit or other
proceedings with respect thereto, except as provided in the Indenture. The
Indenture and other documents referred to therein may be modified or amended to
the extent permitted by and as provided therein. Upon the occurrence of certain
Events of Default (as defined in the Indenture), all Bonds may be declared
immediately due and payable as provided in the Indenture. Interest on the Bonds
shall cease to accrue on the date of such declaration. Subject to the
limitations provided for in the Indenture, this Bond may be exchanged for a
like aggregate principal amount of Bonds in Authorized Denominations. Bonds are
transferable by the Registered Owner thereof in person or by such Owner’s
attorney duly authorized in writing at the Principal Office of the Bond
Registrar, but only in the manner and subject to the limitations provided for
in the Indenture and upon surrender and cancellation of this Bond. Such
limitations include a requirement that Bonds that are subject to the benefits
of the Credit Facility may be sold, remarketed or otherwise transferred only in
transactions in which the Bonds and the related Credit Facility are registered
under the Securities Act and any applicable state securities statutes or in
transactions in which the Bonds and the related Credit Facility are exempt from
the registration requirements of the Securities Act and any applicable state
securities laws, and any Bondowner desiring to effect such transfer is required
to indemnify the Issuer, the Trustee and the Credit Enhancer against any
liability, cost or expense (including attorneys’ fees) that may result if the
transfer is not so exempt, or is not made in accordance with such federal and
state laws. Upon such transfer a new Bond or Bonds in Authorized Denominations
for the same aggregate principal amount will be issued to the transferee in
exchange. The Bond Registrar may require a Registered Owner, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture in connection
with the exchange or transfer. The Issuer, the Tender Agent and the Trustee may
treat the Registered Owner of this Bond as the absolute Owner for the purpose
of receiving payment as herein provided and for all other purposes and none of
them shall be affected by any notice to the contrary.


 


INTEREST
RATE PROVISIONS


 


(a) Generally. The
interest rate on the Bonds shall be separately determined by Stern Brothers &
Co., St. Louis, Missouri, or any successor or assign (the “Remarketing Agent”),
as provided in the Indenture and as summarized below. In no event shall the
interest rate borne by the Bonds at any time exceed the Maximum Rate. Interest
accrued on the Bonds during each Interest Period shall be paid on the next
succeeding Interest Payment Date and, while the Bonds are in a Weekly Mode or a
Monthly Mode, shall be computed on the basis of a year of 365 or 366 days, as
appropriate, for the actual number of days elapsed and, while the Bonds are in
a Semiannual Mode, an Annual Mode or a Multiyear Mode, shall be computed on the
basis of a year of 360 days and twelve 30-day months. Each determination
of the interest rate for the Bonds, as provided in the Indenture, shall be
conclusive and binding upon the Bondowners, the Issuer, the Borrower, the
Tender Agent, the Remarketing Agent, the Credit Enhancer and the Trustee. Upon
request, the Remarketing Agent shall give the Issuer, the Trustee, the Tender
Agent, the Credit


 


A-9





















 


Enhancer, the Borrower or any
Bondowner Immediate Notice of the interest rate on the Bonds at any time.


 


(b) Weekly Mode. The
interest rate for Bonds in a Weekly Mode shall be determined in the following
manner. On each Rate Determination Date, the Remarketing Agent shall determine
the interest rate which such Bonds shall bear during the Rate Period following
such Rate Determination Date. The interest rate so determined shall be
effective on the Rate Adjustment Date. Promptly after each Rate Adjustment
Date, the Remarketing Agent shall give written notice of the interest rate so
set to the Trustee, the Credit Enhancer and the Borrower. On each Interest
Payment Date the Trustee shall mail to each Bondowner a written statement
showing the interest rates for such Bonds during the preceding Interest Period.


 


(c) Monthly Mode. The
interest rate for any Bonds in a Monthly Mode shall be determined in the
following manner. On each Rate Determination Date, the Remarketing Agent shall
determine the interest rate which such Bonds shall bear during the Rate Period
following such Rate Determination Date. The interest rate so determined shall
be effective on the Rate Adjustment Date. Promptly after each Rate
Determination Date, the Remarketing Agent shall give written notice of the
interest rate so set to the Borrower, the Credit Enhancer and the Trustee. On
each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates during the preceding Interest Period.


 


(d) Semiannual Mode,
Annual Mode or Multiyear Mode. The interest rate for Bonds in a Semiannual
Mode, an Annual Mode or a Multiyear Mode shall be determined in the following
manner. Not less than 30 days nor more than 35 days before each Rate Adjustment
Date, the Remarketing Agent shall determine the interest rate (the “Preliminary
Rate”) which the Bonds would bear if such day were a Rate Determination Date.
The Remarketing Agent shall give Immediate Notice of the Preliminary Rate to
the Borrower, the Credit Enhancer and the Trustee. The Trustee shall thereupon
mail, not less than 25 days prior to the Rate Adjustment Date, to each
Bondowner a Rate Adjustment Notice. On the Rate Determination Date the
Remarketing Agent shall determine the interest rate which each of such Bonds
shall bear for each such Rate Period, which rate may be less than, equal to, or
greater than the Preliminary Rate. By Immediate Notice on such Rate
Determination Date, the Remarketing Agent shall give written notice of the
interest rate so set to the Borrower, the Credit Enhancer, the Tender Agent and
the Trustee, and the Trustee shall mail to all Bondowners written notice of the
interest rate so determined.


 


(e) Interest Modes. The
Bonds shall initially be in a Weekly Mode. The Interest Mode for the Bonds may
be changed from time to time at the option of the Borrower, with the prior
written consent of the Credit Enhancer exercised as provided in the Indenture,
to another Interest Mode on an Interest Payment Date on which the Bonds are
subject to optional redemption pursuant to the Indenture at a redemption price
equal to the principal amount thereof, plus accrued interest, without premium,
as selected by the Borrower. The Borrower may exercise such option at any time
by giving written notice not more than 60 nor less than 45 days prior to the
Interest Mode Adjustment Date to the Issuer, the Trustee, the Remarketing
Agent, the Tender Agent and the Credit Enhancer stating its election to convert
the Interest Mode for the Bonds to another Interest Mode, which notice shall
specify the new Interest Mode and the Interest Mode Adjustment Date. Such
Interest Mode Adjustment Date shall be a Rate Adjustment Date for the Bonds in
such new Interest Mode. Upon the exercise of such option by the Borrower and
upon the Trustee’s receipt of the


 


A-10





















 


prior written consent of the
Credit Enhancer to the exercise of such option, not less than 30 days prior to
the Interest Mode Adjustment Date, the Trustee shall mail an Interest Mode
Adjustment Notice to each Owner of Bonds, and, in the event of a conversion to
a Weekly Mode or a Monthly Mode from any other Interest Mode, a Notice of
Election to Tender Bonds in substantially the form as provided in the
Indenture.


 


REDEMPTION
PROVISIONS


 


The Bonds are subject to
redemption prior to maturity as provided in the Indenture which redemption
provisions are summarized as follows:


 


Optional Redemption. Bonds
(other than any Bonds in a Multiyear Mode) are subject to redemption prior to
maturity at the option of the Issuer upon instructions from the Borrower with
the prior written consent of the Credit Enhancer, in whole or in part in
Authorized Denominations, on any Interest Payment Date at 100% of the principal
amount thereof plus accrued interest to the redemption date, first, from
proceeds of a payment under the Credit Facility and, second, from other
Available Moneys. Bonds in a Multiyear Mode are subject to redemption prior to
maturity at the option of the Issuer upon instructions from the Borrower with
the prior written consent of the Credit Enhancer, in whole or in part in
Authorized Denominations, on any Interest Payment Date at the redemption prices
set forth below plus accrued interest to the redemption date, first, from
proceeds of a payment under the Credit Facility and, second, from other
Available Moneys:


 


OPTIONAL
REDEMPTION IN MULTIYEAR MODE


 


	
  Length of

  	
   

  	
  Redemption Prices

  	
   

  	
   

  
	
  Multiyear Mode

  	
   

  	
  as a Percentage of

  	
   

  	
  Call Protection

  
	
  (In Years)*

  	
   

  	
  Principal Amounts

  	
   

  	
  Period*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than 10

  	
   

  	
  102% after 7 years

  	
   

  	
  7 years

  
	
   

  	
   

  	
  declining 1/2% per 12

  	
   

  	
   

  
	
   

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  102% after 4 years

  	
   

  	
  4 years

  
	
  to 10 and greater

  	
   

  	
  declining 1/2% per 12

  	
   

  	
   

  
	
  than 7

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  102% after 3 years

  	
   

  	
  3 years

  
	
  to 7 and greater

  	
   

  	
  declining 1% per 12

  	
   

  	
   

  
	
  than 5

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  101% after 2 years

  	
   

  	
  2 years

  
	
  to 5 and greater

  	
   

  	
  declining 1/2% per 6

  	
   

  	
   

  
	
  than 2

  	
   

  	
  months to 100%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  	
   

  	
  100 1/2% after 1 year

  	
   

  	
  1 year

  
	
  to 2 and greater

  	
   

  	
  declining 1/2% per 6

  	
   

  	
   

  
	
  than 1

  	
   

  	
  months to 100%

  	
   

  	
   

  



 










* Measured from and including
the first day of such Rate Period.


 


A-11





















 


Mandatory Redemption. The
Bonds are also subject to mandatory redemption by the Issuer in each case,
first, from proceeds of a payment under the Credit Facility and, second, from
other Available Moneys at 100% of the principal amount thereof, without
premium, plus accrued interest to the date of redemption (i) in whole on
the earliest practicable date for which notice can be given, if a Determination
of Taxability occurs with respect to the Bonds, (ii) immediately in whole,
in the event the Trustee shall receive notice from the Credit Enhancer of the
occurrence of a default under the Letter of Credit Agreement and irrevocable
instructions to draw on the Credit Facility, such notice being conclusive and
binding as to the occurrence of a default under the Letter of Credit Agreement,
and (iii) in part on the earliest practicable date for which notice can be
given, from proceeds of the Bonds remaining in the Project Fund on the
Completion Date. In addition, the Bonds shall be subject to redemption by the
Issuer, at the option and upon instructions from the Borrower with the prior
written consent of the Credit Enhancer, in whole or in part at any time on the
earliest practicable date for which notice can be given, upon the occurrence of
a condemnation, loss of tide or casualty loss to the Project at 100% of the
principal amount thereof, without premium, plus accrued interest to the date of
redemption.


 


The Trustee shall select
Bonds for redemption as provided in the Indenture. The Trustee shall cause
notice of any such redemption to be given as provided in the Indenture to the
Registered Owner of the Bonds designated for redemption in whole or in part, at
its address as shown on the Bond Register by mailing a copy of the redemption
notice by first-class mail, postage prepaid, at least 15 and not more than 30
days prior to the redemption date. The failure of the Trustee to give notice to
any Bondowner or any defect of such notice shall not affect the validity of the
redemption of any other Bonds and provided further that no such prior notice of
redemption is required for a mandatory redemption because of a default under
the Letter of Credit Agreement. On the date fixed for redemption by notice
given as provided in the Indenture, the Bonds so called for redemption shall
become and be due and payable at the redemption price provided for redemption
of such Bonds on such date.


 


TENDER
PROVISIONS


 


Optional Tender. While the
Bonds are in a Weekly Mode or Monthly Mode, any Bond or portion thereof shall
be purchased on the Tender Date by the Tender Agent on the demand of the Owner
thereof, at the Tender Price, upon delivery to the Tender Agent on a Business
Day at its Principal Office of an irrevocable written notice in the form of the
Notice of Election to Tender Bonds which states (A) the principal amount
and number of such Bond (and the portion of such Bond to be purchased if less
than the full principal amount is to be purchased), the name and the address of
such Owner and the taxpayer identification number, if any, of such Owner and (B) that
such Bond, or portion thereof, is to be purchased on a day (which shall be the
Tender Date), which day will be a Business Day which is at least seven (7) calendar
days after the receipt by the Tender Agent of such Notice of Election to Tender
Bonds. Such Notice of Election to Tender Bonds shall be deemed received on a
Business Day if received by the Tender Agent no later than 3:00 p.m., New
York Time, on such Business Day. Any Notice of Election to Tender Bonds
received by the Tender Agent after 3:00 p.m., New York Time, shall be
deemed received on the next succeeding Business Day.


 


Any Owner of Bonds who has
demanded purchase of its Bond or portion thereof as described above shall
deliver such Bond (with an appropriate transfer of registration form executed


 


A-12





















 


in blank, together with a
signature guaranty) (together with, in the case of any Bond with a specified
Tender Date prior to an Interest Payment Date and after the related Record
Date, a due-bill check in form satisfactory to the Tender Agent for interest
due on such Bond on such Interest Payment Date) to the Tender Agent at its
Principal Office prior to 10:30 a.m., New York Time, on the Tender Date
specified in the aforesaid written notice.


 


Mandatory Tender.


 


(1) On
Termination Date or Interest Mode Adjustment Date. All Bonds are required to be
tendered to the Tender Agent for purchase on the Termination Date or an
Interest Mode Adjustment Date; provided, however, that if the credit
enhancement requirements of the Indenture are met, there shall not be so
tendered on the Termination Date or the Interest Mode Adjustment Date, as
applicable, any Bonds or portion thereof which will be in Authorized
Denominations with respect to which the Owners thereof have delivered to the
Tender Agent by hand or by mail at its Principal Office a properly completed
Notice of Election to Retain Bonds, together with a signature guaranty, on or
prior to the fifth Business Day next preceding the Termination Date or the
Interest Mode Adjustment Date, as applicable. Any Bondowner required to tender
Bonds under this subsection (1) shall tender its Bonds to the Tender
Agent for purchase at its Principal Office prior to 10:30 a.m., New York
Time, on the Termination Date or the Interest Mode Adjustment Date, as
applicable. The failure to tender Bonds on any such date is the equivalent of a
tender and such Bonds shall be converted to Undelivered Bonds and replacement
Bonds shall be executed, authenticated and delivered in the place of such Undelivered
Bonds and such replacement Bonds may be offered and sold by the Remarketing
Agent in accordance with the Indenture and Remarketing Agreement if the credit
enhancement requirements of the Indenture are met.


 


(2) On
Alternate Credit Facility Date. While the Bonds are in an  Interest Mode other than a Multiyear Mode, all
Bonds are required to be tendered
to the Tender Agent for purchase on an Alternate Credit Facility Date; provided, however, that there shall not
be so tendered on the Alternate
Credit Facility Date any Bonds or portion thereof which will be in Authorized Denominations with respect to
which the Owners thereof have delivered
to the Tender Agent by hand or by mail at its Principal Office a properly completed Notice of Election to
Retain Bonds, together with a signature
guaranty, on or prior to the fifth Business Day next preceding the Alternate Credit Facility Date. Any
Bondowner required to tender Bonds under
this subsection (2) shall tender its Bonds to the Tender Agent forpurchase at its Principal Office prior
to 10:30 a.m., New York Time, on the Alternate Credit Facility Date. The failure to tender its Bonds on
any such date is the equivalent
of a tender and such Bonds shall be converted to Undelivered Bonds and replacement Bonds shall be executed, authenticated and delivered in the place of
such Undelivered Bonds and such
replacement Bonds may be offered and sold by the Remarketing Agent in accordance with the Indenture and Remarketing
Agreement if the credit enhancement
requirements of the Indenture are met.


 


(3) On
Rate Adjustment Date During Semiannual Mode. Annual Mode and  Multiyear Mode. While the Bonds are in a
Semiannual Mode, Annual Mode or Multiyear
Mode, all Bonds are required to be tendered to the Tender Agent for purchase on a Rate 


 


A-13





















 


Adjustment Date; provided,
however, that there shall not be so tendered on  the Rate Adjustment Date any Bonds or portions
thereof which will be in Authorized
Denominations with respect to which the Owners thereof have delivered to the Tender Agent by hand or by
mail at its Principal Office a properly
completed Notice of Election to Retain Bonds, together with a signature guaranty, on or prior to the fifth
Business Day next preceding a Rate
Adjustment Date. Any Bondowner required to tender Bonds under this subsection (3) shall tender its Bonds
to the Tender Agent for purchase at its Principal Office prior to 10:30 a.m., New York Time, on the
Rate Adjustment Date. The failure
to tender its Bonds on any such date is the equivalent of a tender and such Bonds shall be converted to UndeliveredBonds and replacement Bonds shall be
executed, authenticated and delivered in the place of such Undelivered Bonds as provided in the Indenture andsuch replacement Bonds may be offered
and sold by the Remarketing Agent in accordance with the Indenture and Remarketing Agreement if the creditenhancement requirements of the
Indenture are met.  


 


(4) Mandatory
Tender in Lieu of Acceleration on Default.  Additionally,
all Bonds are subject to mandatory tender for purchase on the Mandatory Purchase Date from the Bondowners
by the Trustee for the account of
the Credit Enhancer in lieu of acceleration of the Bonds and mandatory redemption, upon the occurrence of
an event of default under the Letter
of Credit Agreement and notice from the Credit Enhancer requiring the mandatory purchase of the Bonds. Upon
receipt of notice from the Credit
Enhancer directing the Trustee to purchase the Bonds and setting the Mandatory Purchase Date, which shall be a
Business Day which is at least
three (3) and no more than ten (10) calendar days after the receiptby the Trustee of such notice, the
Trustee shall immediately request a payment under the Credit Facility to be received no later than 3:00 P.M.,  New
York Time, on the Mandatory Purchase Date, and shall also send notice to the Bondowners of the mandatory purchase.
On the Mandatory Purchase Date,
the Tender Agent shall pay to the Bondowners the purchase price for the Bonds, which shall be an amount equal to
100% of the principal amount of
any Bond tendered or deemed tendered plus accrued and unpaid interest thereon to the Mandatory Purchase Date. Any
Bondowner required to tender Bonds
under this subsection (4) shall tender its Bonds to the Tender Agentfor purchase at its Principal Office
prior to 10:30 A.M., New York Time, 
on the Mandatory Purchase Date.
The failure to tender its Bonds on any such date is the equivalent of a tender and such Bonds shall be
converted to Undelivered Bonds
and replacement Bonds shall be executed, 
authenticated and delivered in
the place of such Undelivered Bonds if the credit enhancement requirements of the Indenture are met. 


 


Notice of Mandatory Tender.
The Trustee shall give notice to Bondowners of the mandatory tender for Bonds
on an Interest Mode Adjustment Date, on an Alternate Credit Facility Date, if
the Bonds are in a Multiyear Mode, Annual Mode or Semiannual Mode on a Rate
Adjustment Date, on the Termination Date and on the Mandatory Purchase Date in
accordance with the provisions of the Indenture.


 


Failure to Give Notice.
Failure by the Trustee to give any notice regarding a mandatory tender as
provided in the Indenture, any defect therein or any failure by any Bondowner
to receive any such notice shall not in any way change such Owner’s obligation
to tender the Bonds for purchase on any mandatory Tender Date.


 


A-14





















 


Irrevocability of Election.
Any election by a Bondowner to exercise the option to have its Bond or Bonds
purchased, or any election by a Bondowner to retain its Bond or Bonds upon any mandatory
Tender Date, shall be irrevocable upon delivery to the Tender Agent of the
Notice of Election to Tender Bonds (together with, if required at the time of
delivery of such notice, the Tendered Bonds) or of the Notice of Election to
Retain Bonds, as the case may be. If any Owner of Bonds falls to deliver the
Bonds described in such Owner’s Notice of Election to Tender Bonds, such Bonds
shall be converted to Undelivered Bonds. Replacement Bonds shall be executed,
authenticated and delivered in place of such Undelivered Bonds as provided in
the Indenture and such replacement Bonds may be offered and sold by the
Remarketing Agent in accordance with the Indenture and Remarketing Agreement if
the credit enhancement requirements of the Indenture are met.


 


Purchase of Tendered Bonds.
Tendered Bonds shall be purchased from the Owners thereof on the Tender Date at
the Tender Price which shall be payable solely from the following sources in
the order of priority listed: (1) proceeds of the remarketing of such Tendered
Bonds pursuant to the Remarketing Agreement and the Indenture which constitute
Available Moneys; and (2) proceeds of a payment under the Credit Facility
to purchase such Tendered Bonds.


 


Notwithstanding any provision
of the Indenture to the contrary, there shall be no purchases (other than a
mandatory tender on the Termination Date or a mandatory purchase on the
Mandatory Purchase Date) or sales of Bonds pursuant to the provisions of the
Indenture relating to the tender of Bonds if there shall have occurred and be
continuing certain Events of Default under the Indenture.


 


A-15





















 


(FORM OF
ASSIGNMENT


 


FOR VALUE RECEIVED, the
undersigned hereby sells, assigns and transfers unto                       


 


                                                                                                                                                                                                         


(Please Print or Typewrite
Name, Address and Social Security Number or Taxpayer Identification Number of
Transferee) the within Bond and all rights therein, and hereby irrevocably
constitutes and appoints                                     Attorney to transfer the within Bond on the
books kept for registration thereof, with full power of substitution in the
premises.


 


	
  Dated: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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.

  
	
   

  	
  Signature Guaranteed By:

  
	
   

  	
   

  	
   

  
	
   

  	
  NOTICE: Signature(s) must
  be guaranteed

  
	
   

  	
  by an eligible guarantor
  institution as

  
	
   

  	
  defined by SEC
  Rule l7Ad-15 (17 CFR

  
	
   

  	
  240.l7Ad-15).

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Title

  	
   

  	
   

  
							



 


A-16





















 


The following abbreviations,
when used in the inscription on the face of the within Bond, shall be construed
as though they were written out in full according to applicable laws or
regulations.


 


	
  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

  



 


	
  UNIF TRANS MIN ACT

  	
   

  	
   

  
	
   

  	
  (Cust)

  	
   

  



 


	
  Custodian

  	
   

  	
   

  
	
   

  	
  (Minor)

  	
   

  



 


	
   

  	
  under Uniform Transfers to
  Minors Act

  
	
   

  	
   

  	
   

  
	
   

  	
  (State)

  



 


Additional abbreviations may
also be used though not in the above list.


 


A-17





















 


LEGAL
OPINION


 


I, the undersigned, Executive
Director of the South Carolina Jobs-Economic Development Authority, hereby
certify that the following is a true and correct copy of the approving legal
opinion of Sinkler & Boyd, P.A., on the within Bond and the series of
which said Bond is a part, except that it omits the date of such opinion; that
said legal opinion was manually executed and was dated and issued as of the date
of delivery of and payment for such Bonds, and is on file with                                                ,
the Trustee.


 


 


	
   

  	
  facsimile

  	
   

  
	
   

  	
  Executive Director

  
	
   

  	
  South Carolina
  Jobs-Economic Development

  
	
   

  	
  Authority

  



 


 


(Legal
Opinion)


 


A-18





















 


EXHIBIT B


 


INVESTMENT
SECURITIES COLLATERAL REQUIREMENT


 


Collateral securing
Investment Securities must comply with the following requirements:


 


(i) The
Trustee or a third party acting solely as agent for the Trustee has possession
of the collateral;


 


(ii) The
Trustee or a third party acting as agent for the Trustee shall have a first
perfected security interest in the collateral free and clear of the claims of
any third parties;


 


(iii) The
collateral will consist of Government Securities and will have a minimum market
value (expressed as a percentage of the obligation) on a valuation date as
follows:


 


Remaining
Maturity


 


	
  Frequency of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valuation

  	
   

  	
  0*-1 yrs

  	
   

  	
  1*-5 yrs

  	
   

  	
  5*-10 yrs

  	
   

  	
  10*-15 yrs

  	
   

  	
  15*-30 yrs

  	
   

  
	
  Daily

  	
   

  	
  103

  	
  %

  	
  106

  	
  %

  	
  107

  	
  %

  	
  109

  	
  %

  	
  116

  	
  %

  
	
  Weekly

  	
   

  	
  104

  	
   

  	
  112

  	
   

  	
  114

  	
   

  	
  120

  	
   

  	
  125

  	
   

  
	
  Monthly

  	
   

  	
  107

  	
   

  	
  123

  	
   

  	
  130

  	
   

  	
  133

  	
   

  	
  143

  	
   

  
	
  Quarterly

  	
   

  	
  108

  	
   

  	
  125

  	
   

  	
  135

  	
   

  	
  140

  	
   

  	
  150

  	
   

  



 










*   Not
inclusive


 


(iv) In
the event the collateral does not meet the requisite collateral percentage set
forth in (iii) above on a valuation date, the party supplying the
collateral shall have the following number of days to provide additional
collateral in order to meet the requisite percentage:


 


(a)           one business day for daily valuations,


 


(b)           two business days for weekly valuations, and


 


(c)           one month for monthly and quarterly
valuations; and


 


(v)           The Trustee will liquidate the collateral and
reinvest the proceeds in Investment Securities if the requisite collateral
percentage is not maintained after the period set forth in (iv) above.


 


B-1





















 


EXHIBIT C


 


[RESERVED.]


 


C-1





















 


South
Carolina Jobs-Economic Development Authority


Variable
Rate Demand


Industrial
Development Revenue Bonds


(Roller
Bearing Company of America, Inc. Project)


Series 1994A


 


EXHIBIT D


 


NOTICE
OF ELECTION TO TENDER/RETAIN BONDS


 


The undersigned hereby
irrevocably notifies                                             ,
as Tender Agent, of its election to (check one)


 


o            (i)                                     present the Bonds described below and have
such Bonds purchased by the Tender Agent on       ,
          (the “Tender Date”) at
the Tender Price equal to 100% of the principal amount plus interest accrued
and unpaid thereon, to, but not including, the Tender Date.


 


o            (ii)                                  retain the Bonds described below. The
undersigned hereby acknowledges that any rating on the Bonds may be reduced or withdrawn
after the date hereof. [If the Interest Mode is being adjusted from a Weekly
Mode or Monthly Mode to any other Interest Mode add the following: “and that
the tender option terminates on such Interest Mode Adjustment Date”]


 


This Notice shall not be
accepted by the Tender Agent unless it is properly completed and received at
its offices (specified below). Such Notice must be delivered to the Tender
Agent on a Business Day by hand or by mail, at                                ,
Attention: Corporate Trust Department.


 


Provisions Relating to
Election to Retain Bonds. This Notice must be delivered to the Tender Agent on
a Business Day by hand or by mail, at                                ,
Attention: Corporate Trust Department, on or prior to the fifth Business Day
next preceding (i) a Rate Adjustment Date, (ii) an Interest Mode
Adjustment Date, or (iii) an Alternate Credit Facility Date, as such terms
are defined in the Indenture.


 


AN OWNER’S EXERCISE OF THE
OPTION TO RETAIN SUCH BOND IS IRREVOCABLE AND BINDING ON SUCH OWNER AND CANNOT
BE WITHDRAWN.


 


Provisions Relating to
Election To Tender Bonds: The undersigned hereby agrees to sell, assign and
transfer the Bonds to the Tender Agent, and hereby irrevocably constitutes and
appoints the Tender Agent, as duly authorized attorney, to authorize the
Trustee to transfer the Bonds on the books kept for registration thereof and to
register such Bonds, with full power of substitution. The undersigned agrees to
deliver to the Tender Agent, at                                           ,
Attention: Corporate Trust Department, the Bonds at or before 10:30 a.m.,
New York Time, on the Tender Date.


 


AN OWNER’S EXERCISE OF THE
OPTION TO HAVE SUCH BOND PURCHASED IS IRREVOCABLE AND BINDING ON SUCH OWNER AND
CANNOT BE WITHDRAWN. IF ANY OWNER OF BONDS SHALL FAIL TO DELIVER THE BONDS
DESCRIBED IN SUCH OWNER’S NOTICE, SUCH BONDS SHALL CONSTITUTE UNDELIVERED
BONDS. REPLACEMENT BONDS


 


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SHALL BE EXECUTED,
AUTHENTICATED AND DELIVERED IN THE PLACE OF SUCH UNDELIVERED BONDS AS PROVIDED
IN THE INDENTURE AND SUCH REPLACEMENT BONDS MAY BE OFFERED AND SOLD BY THE
REMARKETING AGENT IN ACCORDANCE WITH THE REMARKETING AGREEMENT.


 


The undersigned hereby
directs the Tender Agent to make payment to the undersigned of the Tender Price
of the Bonds, together with accrued interest thereon, and elects to receive
payment of the Tender Price of the Bonds, in one of the following manners
(check the desired method):


 


	
  MANNER A

  	
   

  	
  by check or draft mailed to
  the Owner on the applicable Tender Date, upon surrender of the Bonds (if not
  submitted herewith) to the Tender Agent at the address specified above for
  hand delivery.

  
	
   

  	
   

  	
   

  
	
  MANNER B

  	
   

  	
  by wire transfer of
  immediately available funds to account number                                
  at                                
  (must be in continental United States) on the applicable Tender Date;
  provided however, that the undersigned may not utilize this Manner B to
  receive the Tender Price unless the undersigned is the Owner of and is
  tendering at least $1,000,000 aggregate principal amount of the Bonds and the
  wire transfer instructions are provided to the Tender Agent with this Notice.

  



 


General Provisions. The
Tender Agent’s determination of whether this Notice is properly completed and
the compliance with the delivery requirements set forth herein shall be binding
on the undersigned.


 


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Bond
or Bonds (or Portions Thereof)


Presented
For Purchase/To Be Retained


 


Amount
thereof being


Tendered(1)/Amount


 


	
  Bond Number(s)

  	
   

  	
  thereof being Retained(2)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
   

  
	
  Amount:

  	
   

  	
   

  



 










(1) Unless Bondowner is
having all of his Bonds purchased, principal amount must be $100,000 or
integral multiples of $5,000 in excess thereof if in the Weekly Mode or the
Monthly Mode and $5,000 or integral multiples thereof if in the Semiannual
Mode, Annual Mode and Multiyear Mode, with remaining principal of retained
Bonds in Authorized Denominations.


 


(2) must be a principal
amount which is $100,000 or integral multiples of $5,000 in excess thereof if
in the Weekly Mode or the Monthly Mode and $5,000 or integral multiples thereof
if in the Semiannual Mode, Annual Mode and Multiyear Mode.


 


	
  Signature(s) *

  	
   

  	
   

  
	
   

  
	
  Signature

  
	
  guaranteed by

  	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
  Print or Type Name

  
	
   

  	
   

  
	
  Street Address

  
	
   

  	
   

  
	
  City, State and Zip Code

  	
   

  
	
   

  	
   

  
	
  Area Code and Telephone
  Number

  	
   

  
	
   

  	
   

  
	
  Social Security Number or
  Taxpayer ID Number:

  	
   

  



 










*   The
signature(s) to this Notice must correspond with the name(s) of the Owner of
any Bond(s) submitted herewith, as it appears on the books of the Tender Agent,
in every particular without alteration, enlargement or any change whatsoever
and such signature must be guaranteed by an eligible guarantor institution as
defined by SEC Rule l7Ad-15 (17 CFR 240.l7Ad-15).


 


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EXHIBIT E


 


RATE
ADJUSTMENT NOTICE


 


This notice is being sent
pursuant to the provisions of the Trust Indenture dated as of September 1,
1994 (the “Indenture”) between the South Carolina Jobs-Economic Development
Authority (the “Issuer”) and                                         ,
as Trustee (the “Trustee”). Capitalized terms used in this notice shall have
the same meanings as in your Bond, unless otherwise defined. You are hereby
notified as follows:


 


1. The interest rate on the
Issuer’s Variable Rate Demand Industrial Development Revenue Bonds (Roller
Bearing Company of America, Inc. Project) Series 1994A (the “Bonds”),
will be adjusted on              
(the “Rate Adjustment Date”). Your Bond will be purchased on the Rate
Adjustment Date at a price of 100% of the principal amount thereof plus
interest accrued and unpaid thereon to, but not including, the Tender Date,
unless you elect to retain your Bond.


 


2. The Remarketing Agent has
notified the Trustee that the Preliminary Rate determined in accordance with
the Indenture is      % (the “Preliminary Rate”). The
actual interest rate for the Bonds shall be determined on the Rate Adjustment
Date, which rate may be less than, equal to or greater than the Preliminary
Rate. In order to retain all or any portion of your Bond (which portion shall
be [$100,000] [$5,000] or an integral multiple thereof), you must deliver to                                   ,
at its principal corporate trust office at                                         ,
Attention: Corporate Trust Department, on or prior to the fifth (5th) Business
Day preceding such date the attached Notice of Election to Retain Bonds.


 


3. In addition, you are
further notified that on the Rate Adjustment Date, the interest on your Bond
will be established at a new interest rate and interest on your Bond will be
payable at such newly established interest rate for the Interest Period
commencing on the Rate Adjustment Date.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
					



 





















 


EXHIBIT F


 


INTEREST
MODE ADJUSTMENT NOTICE


 


This notice is being sent
pursuant to the provisions of the Trust Indenture dated as of September 1,
1994 (the “Indenture”), between the South Carolina Jobs-Economic Development
Authority (the “Issuer”), and              
                   ,
as Trustee. Capitalized terms used in this notice shall have the same meanings
as in the Indenture.


 


You are hereby notified as
follows:


 


1. An option has been
exercised to convert the Interest Rate Mode applicable to the Issuer’s Variable
Rate Demand Industrial Development Revenue Bonds (Roller Bearing Company of
America, Inc. Project) Series 1994A (the “Bonds”), from a(n)
Weekly/Monthly/Semiannual/Annual/ Multiyear (        )-Year
Mode to a(n) Weekly/Monthly/Semiannual/Annual/ Multiyear (    )-Year)
Mode on             
(the “Interest Mode Adjustment Date”). Unless you deliver a Notice of Election
to Retain Bonds to                                                           
(the “Tender Agent”), at its principal corporate trust office, at                                                 ,
Attention: Corporate Trustee Department, in the form which is attached, your
Bond will be purchased on such date at a price of 100% of the principal amount
thereof plus interest accrued and unpaid thereon to, but not including, the
Tender Date.


 


2. If your Bond or any
portion thereof is so purchased, payment therefor will be made on or after the
tender date thereof upon presentation and surrender at the principal corporate
trust office of the Tender Agent at                                                     ,
Attention: Corporate Trust Department, of such Bond, duly endorsed in blank for
transfer (with all signatures guaranteed by an eligible guarantor institution
as defined by SEC Rule l7Ad-15 (17 CFR 240.l7Ad-15)).


 


3. In addition, you are
further notified that:


 


(A) Interest
will no longer accrue to you on your Bond on and after  the tender date thereof unless the Tender
Agent has received directions from
you not to so purchase your Bond as herein provided, and, other than the right to receive payment of the purchase
price for your Bond, you shall
then cease to have further rights under the Indenture; 


 


(B) You
have the right to direct the Tender Agent not to purchase  all or any portion of your Bond, which portion
shall be $                
(the minimum authorized denomination
for the new Interest Mode) or any integral multiple thereof, if you deliver the attached Notice of Election to
Retain Bonds to the Tender Agent
at its address above on or before the date occurring 5 days prior to the Interest Mode Adjustment Date; and 


 


(C) In
the event you properly file a Notice of Election to Retain  Bonds, the following will occur:


 


(i) After
the Interest Mode Adjustment Date, the interest rate  on the portion of your Bond not purchased will
be determined in accordance with
the Weekly/Monthly/Semiannual/Annual/Multiyear (   -year) Mode, with interest being paid on the [first
Business Day of each month] [September 1
and March 1 of each year]; (and) 


 


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(ii) The
Trustee will inform you of the Interest Rate on the portion of your Bond not
purchased, on or soon after the Interest Mode Adjustment
Date[;   and] [ . ]


 


[THE
FOLLOWING SHALL BE INSERTED ONLY IF THE BONDS WILL BE IN A WEEKLY MODE OR
MONTHLY MODE]


 


[(iii) After
the Interest Mode Adjustment Date, you may require the portion of your Bond not
previously purchased to be purchased pursuant to Section 301 of the
Indenture on a Tender Date specified by you as further described in the
Indenture.]


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
								



 


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EXHIBIT G


 


NOTICE
OF ALTERNATE CREDIT FACILItY


 


THIS
NOTICE WILL NOT BE GIVEN IF THE BONDS


ARE
IN A MULTIYEAR MODE


 


NOTICE
TO BONDOWNERS


 


This notice is being sent
pursuant to the provisions of the Trust Indenture dated as of September 1,
1994 (the “Indenture”), between the South Carolina Jobs-Economic Development
Authority (the “Issuer”) and                                                     ,
as Trustee. Capitalized terms used in this notice shall have the same meanings
as in the Indenture.


 


You are hereby notified as
follows:


 


1. An Alternate Credit
Facility issued by                                             
and relating to the Issuer’s Variable Rate Demand Industrial Development
Revenue Bonds (Roller Bearing Company of America, Inc. Project) Series 1994A
(the “Bonds”), will become effective on                       
(the “Alternate Credit Facility Date”). Unless you deliver a Notice of Election
to Retain Bonds as described below, your Bond will be purchased on such date at
a price of 100% of the principal amount thereof. A copy of the proposed form of
Alternate Credit Facility and certain financial information relating to the
issuer thereof are on file at the office of the Trustee and are available for
inspection at your request.


 


2. If your Bond or any
portion thereof is so purchased, payment therefor will be made on the Alternate
Credit Facility Date upon presentation and surrender at the Principal Office of
the Tender Agent 


(                                                  ,
Attention: Corporate Trust Department) prior to 10:30 A.M., New York Time
on the Alternate Credit Facility Date, of such Bond, duly endorsed in blank for
transfer (with all signatures guaranteed by an eligible guarantor institution
as defined by SEC rule l7Ad-15 (17 CFR 240.l7Ad-15)).


 


3. In addition, you are
further notified that:


 


(A) Interest
will no longer accrue to you on your Bond on and after the Alternate Credit
Facility Date unless the Trustee has received directions from you not to so
purchase your Bond as herein provided, and, other than the right to receive
payment of the purchase price for your Bond, you shall then cease to have
further rights under the Indenture; and


 


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(B) You
have the right to direct that all or any portion of your Bond not be purchased,
which portion shall be $          
(the minimum authorized denomination for the Interest Rate Mode to be in effect
on the Alternate Credit Facility Date) or any integral multiple thereof, if you
deliver the Notice of Election to Retain Bonds to the Tender Agent at its address
above on or before the fifth Business Day next preceding the Alternate Credit
Facility Date.


 


	
  Date: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
								



 


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EXHIBIT H


 


REPRESENTATION
LETTER


 


[Trustee]


[Trustee Address]


 


[Remarketing Agent]


[Remarketing Agent Address]


 


[Credit Enhancer]


[Credit Enhancer Address]


 


Re:                               $7,700,000 
Variable Rate Demand Industrial Development Revenue Bonds (Roller
Bearing Company of America,  Inc.  Project) Series 1994A of the South Carolina
Jobs-Economic Development Authority 


Ladies and Gentlemen:


 


The undersigned (the “Investor”)
hereby represents and warrants to you as follows:


 


[THE FOLLOWING PARAGRAPH 1 IS
FOR USE PURSUANT TO SECTION 210(i) OF THE INDENTURE.]


 


1. The Investor proposes to
purchase $                    
aggregate principal amount of the above-referenced bonds (the “Bonds”) issued
pursuant to that certain Trust Indenture dated as of September 1, 1994
(the “Indenture”), between the South Carolina Jobs-Economic Development
Authority and


                                            ,
as trustee. The Investor understands that the Bonds and the credit enhancement
with respect thereto have not been registered under the Securities Act of 1933,
as amended (the “1933 Act”) or the securities laws of any state and will be
sold to the Investor in reliance upon certain exemptions from registration and
in reliance upon the representations and warranties of the Investor set forth
herein.


 


[THE FOLLOWING PARAGRAPH 1 IS
FOR USE PURSUANT TO SECTION 210(iii) OF THE INDENTURE.]


 


1. The Investor understands
that [Remarketing Agent] may offer to the Investor for purchase in a secondary
market transaction the above-referenced bonds (the “Bonds”) issued pursuant to
that certain Trust Indenture dated as of September 1, 1994 (the “Indenture”),
between the South Carolina Jobs-Economic Development Authority and                                           ,
as trustee. The Investor understands that the Bonds and the credit enhancement
with respect thereto have not been registered under the Securities Act of 1933,
as amended (the “1933 Act”) or the securities laws of any state and may be sold
to the Investor in reliance upon certain exemptions from registration and in
reliance upon the representations and warranties of the Investor set forth
herein.


 


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2. The Investor has
sufficient knowledge and experience in business and financial matters in
general, and investments such as the Bonds in particular, to enable the
Investor to evaluate the risks involved in an investment in the Bonds.


 


3. The Investor confirms that
its investment in the Bonds constitutes an investment that is suitable for and
consistent with its investment program and that the Investor is able to bear
the economic risk of an investment in the Bonds, including a complete loss of
such investment.


 


4. The Investor is purchasing
the Bonds solely for its own account for investment purposes only, and not with
a view to, or in connection with, any distribution, resale, pledging,
fractionalization, subdivision or other disposition thereof (subject to the
understanding that disposition of Investor’s property will remain at all times
within its control).


 


5. The Investor agrees that
it will only offer, sell, pledge, transfer or exchange any of the Bonds it
purchases (i) in accordance with an available exemption from the
registration requirements of Section 5 of the 1933 Act, (ii) in
accordance with any applicable state securities laws and (iii) in
accordance with the provisions of the Indenture.


 


6. The Investor is familiar
with Rule 144A promulgated under the 1933 Act and is a “qualified
institutional buyer” as defined in Rule 144A; it is aware that [the] [any]
sale of Bonds to it [is] [may be] made in reliance on Rule 144A and
understands that such Bonds may be offered, resold, pledged or transferred only
(i) to a person who the Investor reasonably believes is a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant
to another exemption from registration under the 1933 Act.


 


7. If the Investor sells any
of the Bonds other than pursuant to a mandatory or optional tender and purchase
provided for in and complying with the Indenture, the Investor or its agent
will obtain from any subsequent purchaser the same representations contained in
this Representation Letter.


 


8. The Investor acknowledges
and understands that you, any trustee under the Indenture and each of the “issuers”
(as such term is used in the 1933 Act) of the Bonds and any security related
thereto are relying and will continue to rely on the statements made herein.
The Investor agrees to notify you immediately of any changes in the information
and conclusions herein.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Investor]

  
	
   

  	
   

  
	
  Dated:

  	
                              

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  [Must
  be President, Chief Financial

  
	
   

  	
  Officer
  or other Executive Officer]

  
								



 


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