Exhibit 10.14


 


CONFIDENTIAL


 




 





SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY


 


and


 


MARK TWAIN BANK,


as Trustee


 










 


TRUST INDENTURE


 


Dated as of September 1, 1994


 










 


Relating to


 


$3,000,000


Variable Rate Demand


Industrial Development Revenue Bonds


(Roller Bearing Company of America, Inc. Project)


Series 1994B




 





 





















 


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
  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 

  	
   

  
	
  Section 406.

  	
  Effect
  of Call for Redemption 

  	
   

  



 


i





















 


	
  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.

  	
  Reserved
  

  	
   

  
	
  Section 510.

  	
  Final
  Balances 

  	
   

  
	
  Section 511.

  	
  Non-Presentment
  of Bonds 

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  DEPOSITARIES
  OF MONEYS, SECURITY FOR DEPOSITS AND INVESMENT OF FUNDS 

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Moneys
  to be Held in Trust 

  	
   

  
	
  Section 602.

  	
  Investment
  of Moneys 

  	
   

  
	
  Section 603.

  	
  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 

  	
   

  



 


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  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 

  	
   

  
	
   

  	
   

  	
   

  
	
  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 

  	
   

  
	
  Section 1306.

  	
  Immunity
  of Officers, Employees and Members of Issuer 

  	
   

  



 


iii





















 


	
  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
  - Representation 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 “Issue”),
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 Title 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 41-43-110 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 1994B in the original aggregate principal amount of
$3,000,000 (the “Bonds”), for the purpose of providing working capital (“the
Project”) with respect to 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 has requested that the Issuer issue the Bonds in order to finance
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 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:


 


(a) All
right, title 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


 


2





















 


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


 


3





















 


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 Title 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 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.


 


4





















 


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


 


5





















 


“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.


 


“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.


 


“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.


 


6





















 


“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.


 


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


 


“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.


 


7





















 


“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.


 


“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-1+);


 


(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


 


8





















 


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.


 


“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.


 


9





















 


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


 


“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.


 


“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.


 


10





















 


“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.


 


“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 working capital described in Exhibit A to the Agreement.


 


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


 


“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.


 


11





















 


“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.


 


“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, whether or not a Business Day,
immediately preceding such Interest Payment Date.


 


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


 


“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 Stern 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


 


12





















 


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 funds held for the payment of specific
Bonds pursuant to Section 510 hereof or amounts held in the Purchase Fund.


 


“Series 1994A
Bonds” means the Issuer’s $7,700,000 original principal amount Variable Rate
Demand Industrial Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series 1994A, issued pursuant to the Series 1994A Indenture.


 


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


 


“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


 


13





















 


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.


 


“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 firms, 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 1994A 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


 


14





















 


co-trustee) shall, as between
the documents relating to the Bonds and the Series 1994A 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 $3,000,000.


 


(b) Tide
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 1994B”.


 


(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


 


16





















 


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


 


17





















 


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


 


18





















 


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) 135% 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.


 


(g) 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.


 


19





















 


(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 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 1994A Bonds occurs 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 exempt from income
taxation in the State of South Carolina.


 


(4) A request and authorization to the Trustee on behalf of the
Issuer, executed by the
Authorized Issuer Representative, to authenticate the Bonds and deliver said Bonds


 


20





















 


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.


 


(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


 


21





















 


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 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.


 


22





















 


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. 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 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


 


23





















 


the Credit Facility are exempt
from registration under the 1933 Act and any applicable state securities laws.


 


[End of Article II]


 


24


















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.


 


25





















 


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(g) 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(g) 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 Remarking 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 Times 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
Agent’s 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 no longer 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 1994A
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

  	
   

  	
  Redemption Prices

  	
   

  	
   

  
	
  Multiyear Mode

  	
   

  	
  as a Percentage of

  	
   

  	
  Call Protection

  
	
  (In Years)*

  	
   

  	
  Principal Amounts

  	
   

  	
  Period*

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater than 10

  	
   

  	
  102% after 7 years

  declining 1/2% per 12

  months to 100%

  	
   

  	
  7 years

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  to 10 and greater than 7

  	
   

  	
  102% after 4 years

  declining 1/2% per 12

  months to 100%

  	
   

  	
  4 years 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  to 7 and greater than 5

  	
   

  	
  102% after 3 years

  declining 1% per 12

  months to 100%

  	
   

  	
  3 years 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  to 5 and greater than 2

  	
   

  	
  101% after 2 years

  declining 1/2% per 6

  months to 100%

  	
   

  	
  2 years 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than or equal

  to 2 and greater than 1

  	
   

  	
  100 1/2% after 1 year

  declining 1/2% per 6

  months to 100%

  	
   

  	
  1 year 

  



 










* 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) [Reserved.]


 


(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, 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” as defined in the Series 1994A
Indenture, 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.


 


35





















 


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; (iii) 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.


 


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(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]


 


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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 of the Interest Account, the Principal Account
and the Redemption Account;


 


(e) the
General Fund; and


 


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


 


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 $2,976,168 from the proceeds received from the sale of the Bonds
into the Project Fund and $23,832 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 to provide working capital for the Borrower 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 such Fund. If requested by the Issuer, the Credit Enhancer or the Borrower,
the Trustee shall file copies of
the records pertaining to the Project Fund and all disbursements from such fund with the Issuer, the Credit.
Enhancer and the Borrower.


 


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 from time to time for
the payment of the costs of issuing the Bonds upon the direction of the


 


38





















 


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 1994A 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 applied to the
payment of the Bonds at maturity shall be transferred to the Principal Account
on


 


39





















 


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


 


40





















 


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


 


41





















 


(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, or upon
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 3.9
of the Agreement.


 


Section 509. [Reserved].


 


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 clams 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, 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


 


42





















 


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 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) 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.


 


44





















 


Section 603. 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 and complies with the terms hereof, 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 and complies
with the terms hereof.


 


(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
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 (i) the applicable exemptions from taxation
in the State with respect to the Bonds or (ii) the excludability from
gross income for federal taxation purposes of interest on the Series 1994A
Bonds.


 


(b) 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 preserve the applicable exemptions from taxation in the State with respect
to the Bonds.


 


[End of Article VII]


 


48





















 


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 1994A
Trust Indenture.


 


49





















 


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 1994A 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 803(e)(ii) of
the Series 1994A 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 1994A Indenture) of Section 801 hereof, shall
have occurred and be continuing, the Trustee 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 6f the Loan Payments as provided in Section 8.2 of the
Agreement.


 


50





















 


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 1994A
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


 


51





















 


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 theSeries 1994A 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


 


52





















 


(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, 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 Proceeding.
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


 


53





















 


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.


 


54





















 


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 1994A 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 1994A Indenture); and provided further that no Event of Default
shall be waived without the


 


55





















 


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]


 


56


















 


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(l), 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


 


57





















 


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 1994A 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


 


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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.


 


(m) 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 3.6 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 1994A 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 1994A 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 1994A
Indenture;


 


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


 


(iii)          any removal of the Trustee pursuant to the
Series 1994A 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


 


62





















 


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,
tide, 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, 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


 


63





















 


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


 


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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) 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 1994A Indenture;


 


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


 


(iii)          any removal of the Tender Agent pursuant to
the Series 1994A 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 [Plant] is not paid as required herein or in the Agreement, 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 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


 


65





















 


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 owner of
the Series 1994A 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 1994A 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 1994A Bonds; it being understood that in exercising such judgment
the Trustee may rely on the opinion of such counsel as it may select; and


 


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


 


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


 


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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 1994A Indenture) of
not less than 51% in aggregate principal amount of the Bonds and the
Series 1994A 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 1994A Indenture) of 100% of the Bonds and the Series 1994A
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 1994A 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 the Series 1994A 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 1994A Bonds and a copy of such proposed supplemental Indenture
shall be mailed with such notice t6 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 1994A Indenture) of not less than fifty-one
percent (51%) in aggregate principal amount of the Bonds and the
Series 1994A 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 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.


 


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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.


 


[End of Article X]


 


69





















 


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 1994A 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, the Bondowners or the owners of the Series 1994A Bonds,
(iii) so as to more precisely identify the Project, or (iv) 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 1994A Bonds, provided that, in the event a
Supplemental Indenture is entered into with respect to any of the matters
referred to in (i) through (iv) 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 1994A
Indenture) of not less than fifty-one percent (51%) in aggregate principal
amount of the Bonds and the Series 1994A 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 1994A
Indenture) of 100% of the Bonds and the Series 1994A 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 1994A 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 1994A 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
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.


 


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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.


 


[End of Article XI]


 


71





















 


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
(b) 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


 


72





















 


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


 


73





















 


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.


 


[End of Article XII]


 


74





















 


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:


 


 


75





















 


(a)           To the Issuer at:


 


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 Operation, 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


 


76





















 


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.


 


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


 


77





















 


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.


 


78





















 


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]


 


79





















 


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/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Chairman,
  Board of Directors

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Executive Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARK TWAIN BANK, as Trustee

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   

  	
  [SEAL]

  
	
  Vice President

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  	
   

  
	
  Assistant Secretary

  	
   

  



 


80





















 


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 1994B


 


	
  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 STATES 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 close 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.


 


Interest on this Bond will be
includable in gross income of the Owner hereof for federal income tax purposes.


 


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


 


A-2





















 


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 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 Bond 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
$3,000,000 and designated as Variable Rate Demand Industrial Development
Revenue Bonds (Roller Bearing Company of America, Inc. Project)
Series 1994B (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 $7,700,000 aggregate
original principal amount Variable Rate Demand Industrial Development Revenue
Bonds (Roller Bearing Company of America, Inc. Project) Series 1994A
(the “Series 1994A 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.


 


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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
wider the Securities Act and any applicable state securities statutes or in
transactions in which the Bonds and the related Credit Facility are except 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 law. 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

  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.


 


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) 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 (ii) 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 Title or casualty loss to the “Project”, as defined in
the Trust Indenture pertaining to the Series 1994A Bonds, 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 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 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
Undelivered Bonds and replacement Bonds 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 Indenture and Remarketing Agreement if the credit
enhancement 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
receipt by 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 Agent for
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 fails 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 1994B


 


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


 


D-1





















 


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 o             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 o               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.


 


D-2





















 


Bond or Bonds (or Portions
Thereof)


Presented For Purchase/To Be
Retained


 




	
  Bond Number(s)

  	
   

  	
   

  	
   

  	
  Amount thereof being

  Tendered(1)/Amount 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 to 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).


 


D-3





















 


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 1994B (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 1994B (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
S 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 1994B (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 17Ad-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.


 


 




	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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:                               $3,000,000 Variable Rate Demand Industrial
Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series 1994B 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.


 


H-1





















 


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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