HomeMy WebLinkAboutRES 951018-DW -W -U-00 =_� =�
We, the undersigned officers and members of the City of Georgetown, Texas (the "City"),
hereby certify as follows:
1. The City
• • the City convened in SPECIAL MEETING ON THE 18TFI
DAY OF OCTOBER, •• at the City Hall (the "Meeting"), • the roll was called • the •
constituted officers and members of the City, to -wit:
Lee Wood
Mayor
George Arroyos
Councilmember District 1
Vacant
Councilmember District 2
Susan Hoyt
Councilmember District 3
Lee Bain
Councilmember District 4
Dick Vincent
Councilmember District 5
Doris Curl
Councilmember District 6
Fred Tonn
Councilmember District 7
• all • the persons were present, except the following absentees: thus constituting a
quorum. Whereupon, • • business, the following was transacted at the MeetinR: a
written
was duly introduced for the consideration of the City Council. It was then duly moved and
seconded that the Resolution be passed, and, after due discussion, said motion carrying with it the
passage of the Resolution, prevailed and carried by the following vote:
OEM
GEORGETOWN/TRIPLES: APPROVE.CRT 9/29/95
W W
A
WHEREAS, the Georgetown Industrial Development Corporation (the "Issuer") was
created pursuant to Article 5190.6, Vernon's Annotated Texas Civil Statute, as amended (the
"Act") by resolutionof the City of Georgetown, Texas (the "Governmental Unit") adopted on
May 13, 1980; and
WHEREAS, the Issuer proposes to issue bonds for the purpose of making a loan to Triple
S Plastics, Inc. (the "Company") to finance the costs related to establishing a custom plastic
injection molding facility located in the Georgetown Industrial Park, including the purchase of
new machinery (including molding machines), equipment, furniture and fixtures (the "Project")
within Williamson County, Texas, in a principal amount not to exceed $5,000,000; and
WHEREAS, Section 25(f) of the Act requires that the governing body of the Governmen
Unit approve the resolution of the Issuer providing for the issuance of the Bond; and i
WHEREAS, the issuance of the Bond implements Finance Policy 4 of the Century PlanE
0
!IIIIIblicy Plan Element and Economic Development Policy; and
TBEREFORE, BE IT RESOLVED BY TBE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, THAT:
Section 1. The Resolution attached hereto as Exhibit A, together with the Exhibits
attached thereto, including the Loan Agreement dated as of October 1, 1995, are hereby approved
and the Bond in a principal amount of $5,000,000 may be issued pursuant thereto.
Section 2. The approvals contained in Section I of this Resolution are solely for the
purposes of Section 25(f) of the Act and the Governmental Unit shall have no liability for the
R, yment of the Bond nor shall any of its assets be pledged to the payment of the Bond. The Bond
shall never constitute an indebtedness or pledge of the Governmental Unit, or the State of Texas,
within the meaning of any constitutional or statutory provision; and the holders of the Bond shall
never be paid in whole or in part out of any funds raised or to be raised by taxation or any other
revenues of the Issuer, the Governmental Unit, or the State of Texas except those revenues
assigned and pledged by the Issuer Resolution.
Section 3. The City recognizes that the Bylaws of the Issuer had to be amended tLe
accommodate the appointment of additional board members and, therefore, the City hereby
approves the Amended and Restated Bylaws of the Issuer attached hereto as Exhibit B.
Section 4. The findings made in the recitals to this Resolution are incorporated herein and
made a part of this Resolution for all purposes.
Section 5. The programs and expenditures authorized and contemplated by the
Resolution attached hereto as Exhibit A are hereby in all respects approved.
Section 6. The City Council hereby finds that the issuance of the Bond implements
Finance Policy 4 of the Century Plan - Policy Plan Element, which states- "The City shall
develop a strategy to provide sufficient financial resources, for both short term and long term
needs," and Economic Development Policy which states "The City will encourage diversified
growth and promote business opportunities to create jobs, broaden the tax base, and minimize the
impact of economic fluctuation"; and further finds that the enactment of this Resolution is not
inconsistent or in conflict with any other Century Plan Policies, as required by Section 2.03 of
the Administrative Chapter of the Policy Plan.
Section 7. This Resolution shall become effective immediately upon adoption. The
W-4 tivv&-tt #awe&"A f�8r
this Resolution is attached on behalf of the City and to do any and all things proper and necessary
to carry out the intent of this Resolution and the issuance of the Bond including the execution of
any certificates or other instruments.
ATTEST:
S ral_ee
San D.
City Secretary
1, 21ao
Marianne Landers Banks
City Attorney
GEORGETOWN/TRIPLE Sn APPROVERES 9r29195
,ion_
By: Leo Wood
Mayor
COUNTY OF WILLIAMSON
CORPORATION
undersigned officers of the Board of Directors of the Georgetown Industrial
Development Corporation (the "Corporation"), hereby certify as follows:
1. The Board of Directors of the Corporation convened in SPECIAL MEETING ON THI
17TH DAY OF OCTOBER, 1995, at the designated meeting place (the "Meeting"), and the r
was called of the duly constituted officers and members of the Board, to wit- I
Mark Dixon, President Judi Shanklin, Secretary/Treasurer
Tim Harris, Vice President Ken Poteete, Boardmember
Bob Wumsch, Boardmember
and all of said persons were present, except the following absentee: Bob Wumsch, thus
constitutinR a quorum. Whereupon, among other business, the following was transacted at the
Meeting: a written
was duly introduced for the consideration of the Board. It was then duly moved and seconded that
the Resolution be passed; and, after due discussion, the motion, carrying with it the passage of
the Resolution, prevailed and carried by the following vote-
AYES- All Present Voted Aye
2. A true, full and correct copy of the aforesaid Resolution passed at the Meeting
described in the above and foregoing paragraph is attached to and follows this Certificate, that the
Resolution has been duly recorded in the Board's minutes of the Meeting; that the above and
foregoing paragraph is a true, full and correct excerpt from the Board's minutes of the Meeting
L-tertaining to the passage of the Resolution- that the persons named in the above and foregoing,
I
Ivaragraph are the duly chosen, qualified and acting officers and members of the Board as
indicated therein-, that each of the officers and members of the Board was duly and sufficiently
notified officially and personally, in advance, of the time, place and purpose of the aforesaid
Meeting, and that the Resolution would be introduced and considered for passage at the Meeting,
GEORGETOWNrrRIPLE 5: AUTILCRT 10117193
.?nd each of the officers and members consented, in advance, to the holding of the Meeting for
such purpose; that the Meeting was open to the public and public notice of the time, place and
purpose of the Meeting was given, all as required by Chapter 551, Government Code, as
.?mended.
x , Board of Directors
UWRGHTOWHfMUU S: AUTILCRT 10117/93
2�2y
President, �Board of Directo�r
1 11 1 1 '1 0 1 0 lk
GEORGETOWNfMIPLE•S: DRAPURES 10117/95
TABLE OF CONTENTS
TITLE
PAGE NO.
Recitals.........................................................
I
Resolution
....................... ...................
I
Section 1.
Designation, Amount, and Purpose of the Bond ....... .........
2
Section 2.
Date, Denomination, Number, and Maturities of The Bond
3
Section 3.
Interest on the Bond .......................................
3
Section 4.
General Characteristics ......................... ...........
3
Section 5.
Form of Bond ...........................................
4
Section 6.
Pledge ............................................ ...
15
Section 7.
Debt Service Fund, Contribution Fund and Rebate Fund ............
15
Section 8.
Security for Funds ......................................
20
Section 9.
The Company's Payments ......... ..................
20
Section 10.
Additional Parity Bonds ...................................
21
Section 11.
Special Covenants .......................................
22
Section 12.
The Bond Is A Special Obligation ............................
23
Section 13.
Amendments . . . . ......................................
23
Section 14,
Damaged, Mutilated, Lost, Stolen, or Destroyed Bond ............
25
Section 15.
Tax Exempt Status of Interest on the Bond ....................
26
Section 16.
Miscellaneous .......... ...............................
28
Section 17.
Sale of the Bond .........................................
29
Section 18.
Indenture ..............................................
29
Section 19.
The Agreement ... ............................
29
Section 20.
Appointment of Trustee .... ........... ........... .....
30
GEORGETOV,rNrrPJPLE-S: DRAFURES10117/95 1
RESOLUTION AUTHORIZING THE ISSUANCE OF GEORGETOWN
INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL REVENUE
BOND (TRIPLE S PLASTICS, INC. PROJECT), SERIES 1995 AND THE EXECUTIO
OF AN INDENTURE AND LOAN AGREEMENT
AND OTHER MATTERS RELATED TO THE ISSUANCE OF THE BOND
THE STATE OF TEXAS §
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION §
WHEREAS, the Georgetown Industrial Development Corporation (the "Issuer") is
nonstock, nonprofit industrial development corporation organized and existing under the laws of t
WHEREAS, the Issuer is a duly constituted public instrumentality of the City of
Georgetown, Texas (the "Governmental Unit"), a political subdivision of the State of Texas, within
the meanings of the regulations of the United States Treasury Department (the "Regulations") and
the rulings of the Internal Revenue Service prescribed and, promulgated pursuant to Section 103 of
the Internal Revenue Code of 1986, as amended or, to the extent applicable, under the Internal
I
behalf of the Governmental Unit; and
WHEREAS, a "Loan Agreement between Georgetown Industrial Development CorporatiAm.
and Triple S Plastics, Inc.," dated as of October 1, 1995 (the "Agreement"), has been duly execut
between the Issuer and Triple S Plastics, Inc. (the "Company"); and I
WHEREAS, the Company is a corporation organized and existing under the laws of the Stai
of Nfichigan and is fully qualified to transact business in the State of Texas; and
WHEREAS, the Agreement is hereby adopted by reference for all purposes, with the sarrm
kkf -fh:P,,tL-i
WHEREAS, the Agreement was executed to provide for the acquisition, construction,
equipping, and furnishing of a project (as defined by the Act) and to provide a loan to the Company
for such purpose; and
WHEREAS, this preamble and the indenture (the "Indenture") hereinafter set forth in this
Initial Bond Resolution shall constitute an integral part of this Initial Bond Resolution; and
WHEREAS, the depositary bank under the Indenture (the "Depositary") will have the duties
and obligations hereinafter provided-, and
GrOP.GEMWN(MPLE-S: DRAMAES 10/17195
WHEREAS, the bond authorized to be issued by this Initial Bond Resolution (the "Bond
�s to be issued and delivered pursuant to applicable laws, including the Act; and
-------------
IONIA
ta
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Payments for the benefit of the owners of the Bond; and
WHEREAS, the Company and the Depositary have entered into a Guaranty Agreement dated
zs of October 1, 1995 (the "Guaranty") providing the Company's unconditional guarantee of the full
znd prompt payment of principal of, premium, if any, and interest on, the Bond for the benefit of the
#wners of the Bond; and
WHEREAS, the Company will have duly approved and agreed to be bound by this Initial
Bond Resolution (including the Indenture) prior to the delivery of the Bond; an
WHEREAS, as provided in the Agreement, by such approval of this Initial Bond Resolution
(including the Indenture) the Company will have agreed and acknowledged that the Bond, when
issued, sold, and delivered as provided in this Initial Bond, Resolution, will be issued in accordance
and compliance with the Agreement, and that, upon the issuance, sale, and delivery of the Bond, and
the execution and delivery of the Indenture, the Company will be unconditionally obligated to the
Issuer to make or pay, or cause to be made or paid, without set-off, recoupment, or counterclaim,
to the Depositary the "Loan Agreement Payments" required by the Agreement and by this Initial
Bond Resolution (including the Indenture) in amounts sufficient to pay the principal of, redemption
premium, if any, and interest on the Bond, when due, all fees and expenses of the Depositary for the
Bond, and all other amounts required to be paid by the Agreement, this Initial Bond Resolution, and
the Indenture, all as hereinafter set forth; and
WHEREAS, for purposes of this Initial Bond Resolution, the definitions of terms in the
Agreement, the Security Agreement, the Lease Assignment, the Guaranty and the Indenture are
hereby adopted, and the terms given herein shall have the same meanings as such terms are given in
said Agreement, the Security Agreement, the Lease Assignment, the Guaranty and Indenture unless
a different meaning is given herein,
M X13 I'M 01 010AV12M 101 MM V '14 MaU X1111 DI IM VUV ID1121 &VIIIJ .0-4 us
Section 1. DESIGNATION, AMOUNT, AND PURPOSE OF THE BOND. The Issuer's
bond designated and to be known as GEORGETOWN INDUSTRIAL DEVELOPNIENT
CORPORATION INDUSTRIAL REVENUE BOND (TRIPLE S PLASTICS, INC. PROJECT),
Series 1995 (the "Bond") is hereby authorized to be issued in the aggregate principal amount of
$5,000,000 on behalf of the City of Georgetown, Texas to pay the cost of the Project including the
purchase of certain new machinery (including molding machines), equipment, furniture and fixtures
GrORG M-WN1rR1PLr-S: DRAI-75AES 10/17/95 2
for the purpose of establishing an approximately 64,000 square foot custom plastic injection molding
facility located in the Georgetown Industrial Park IN WILLIAMSON COUNTY, TEXAS, FOR
TRIPLE S PLASTICS, INC. FOR TBE SPECIFIC PURPOSE OF THE PROMOTION AND
ENCOURAGEMENT OF EMPLOYMENT AND TBE PUBLIC WELFARE. The Board hereby
finds that the Project is required or suitable for the promotion of development and expansion of
manufacturing facilities and in furtherance of the public purposes of the Act.
Section 2. DATE, DENOMINATION, NUMBER, AND MATURITIES OF THE
BOND. (a) The Bond initially authorized hereby shall be dated as of October 1, 1995, shall be issued
and delivered in the form of one fully registered bond, without coupons, payable in installments to
the registered owner thereof, or its registered assigns, all in the manner hereinafter provided, with the
Bond to be numbered R-1, in the denomination and principal amount of $5,000,000, initially payable
to First of America Bank - Michigan, National Association, with the principal of the Bond to be
payable in monthly installments over seven years on the dates and in the amounts as set forth in the
FORM OF BOND in Section 5,
(b) The Bondholder of the fully registered Bond initially authorized hereby may surrender at
any time said Bond to the Depositary for assignment in accordance with the provisions set forth in
the FORM OF BOND in Section 5.
Section 3. INTEREST ON THE BOND. The Bond initially authorized hereby shall bear
interest on the unpaid balance of the principal amount thereof from the date of delivery to the initial
purchaser thereof (which date shall be indicated by the Depositary in the Delivery Certificate
appearing on the Bond) to the scheduled due date, or date of prepayment or redemption prior to t e
scheduled due date, of the principal installments of the Bond,and thereafter, if appropriate, at the rate
as provided in the FORM OF BOND set forth in Section 5. The interest shall be payable and
calculated on the dates and in the manner provided in the FORM OF BOND set forth in Section 5.
Section 4. GENERAL CHARACTERISTICS. (a) In General. The Bond initially
authorized hereby shall be issued, shall be payable, may or shall be prepaid or redeemed prior to the
scheduled principal installment payment dates with premium, if any, shall have the characteristics, and
shall be signed and executed (and the Bond shall be sealed), all as provided, and in the manner
indicated, in the FORM OF BOND set forth in Section 5. After the Bond has been authorized to be
issued by the Board of Directors of the Issuer, and prior to the delivery of the Bond, the Depositary
shall authenticate the Bond by executing the Depositary's Certificate of Authentication appearing on
the Bond as provided in Section 5. In addition, on the date of delivery of the Bond to the initial
purchaser thereof, the Depositary shall fill in the date of delivery of the Bond in the Delivery
Certificate appearing on the Bond as provided in Section 5.
(b) Registration Books. The Issuer shall keep or cause to be kept at the office for
payment of the Depositary books for the registration and assignment of the Bond (the "Bond
Registration Books") which will also be available within the State of Texas and the Issuer hereby ap-
points the Depositary as its registrar and assignment agent (the "Registrar") to keep such books and
GrORGETOWNITRIPLE-S: DRAIMAHS 10/17/95 3
nrd&e t 4Mf_1e_F:SA_CD_1e
may prescribe; and the Registrar will register or assign as herein provided, the Bond upon
presentation thereof at such office-, provided, however, that the Depositary shall register assignment
*f the Bond only upon receiving evidence satisfactory to it that the assignee is a "Sophisticated
Investor" (as defined in the FORM OF BOND set forth in Section 5. The Company and each Bond-
holder shall have the right to inspect such Bond Registration Books during the normal business hours
4if the Depositary,
Registration of the Bond may be transferred only on the Bond Registration Books upon
surrender thereof by the registered owner or by his duly authorized attorney, by proper written
instrument of transfer, in the form and with guaranty of signatures satisfactory to the Registrar, duly
executed by such owner or attorney, Upon such surrender for transfer of registration, the Registrar
shall make notation of such transfer on the Bond in the Assignment section appearing t ereon an
in the Bond Registration Books, Such transfers of registration shall be made without charge to the
owner of such Bond, but any taxes or other governmental charges required to be paid with respect
to the same shall be paid by the Bondholder requesting such transfer of registration, as a condition
precedent to the exercise of such privilege.
The Depositary shall not be required to make transfers of the Bond (i) beginning on the 15th
day of the calendar month immediately preceding an interest payment date or redemption date and
ending at the close of business on such interest payment date or redemption date, or (ii) subsequent
to the date of mailing of notice of redemption of such Bond or a portion thereof, anything in such
Bond to the contrary notwithstanding.
(c) PUment to Registered Owne . The Person in whose name the Bond shall be
registered on the Bond Re istration Books maei be deemed and treated as the absolute owner thereof
for all purposes of this Initial Bond Resolution and the Indenture whether or not such Bond shall be
overdue, and the Issuer, the Depositary and the Company shall not be affected by any notice to the
contrary; and payment of, or on account of, the principal of, premium, if any, and interest on any such
Bond shall be made only to such registered owner thereof, but such registration may be changed as
provided herein. All such payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
(d) Notation of PrepUment. The Issuer hereby appoints the Depositary as the Paying
Agent for the Bond. Upon the prepayment or partial redemption of the Bond, the Depositary, as
Megistrar and Paying Agent, shall note in the Prepayment Record appearing on such Bond the amount
of such prepayment or redemption, the date said payment was made and the remaining unpaid -
principal balance of said Bond and shall then have said entry signed by an authorized official of the
Depositary. The Depositary shall also record such information in the Bond Registration Books, and
the Depositary shall also record in the Bond Registration Books all payments of principal installments
on the Bond when made on their respective due dates.
li♦ ilill 11111111111111111� 11•11111 III
Gr0RGF7r0WNnR1PLE-S: DRA175ALS 10/17/95 4
various certificates and forms to appear on the Bond, shall be, respectively, substantially as follows,
with necessary # appropriate vari. a omissions,and insertions as permitted or required by
Initial Bond ► . •
STATE OF TEXAS
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
INDUSTRIAL REVENUE BOND
(TRIPLE S PLASTICS, INC. PROJECT)
SERIES 1995
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION (the "Issue?'), being
a nonstock, nonprofit industrial development corporation organized and existing under the laws of
the State of Texas, including particularly the Development Corporation Act of 1979, as amended
(Article 5190,6, Vernon's Annotated Texas Civil Statutes) (the "Act"), and acting on behalf of the
City of Georgetown, Texas, hereby promises to pay to First of America Bank - Michigan, National
Association, or its registered assignees, the aggregate principal amount of
in monthlyinstallments as set forthpayment schedule attached as Scheduleon #.
of each month as set forth therein, beginning December 1, 1995 through November 1, 2002, and to
pay interest on e. # principal balance hereoffrom date of deliveryhereofdate
appears in the Delivery Certificate endorsed on this Bond) which interest shall be based on the
Default Rate (based on the number of days actually elapsed on the basis of a 360 -day year) on
overdue principal, and, to the extent legally permissible, on overdue interest.
��Bond Rate�' means (i) from the date of delivery through September 30, 2000, 6.56 % per
annurn and from October 1, 2000 through November10equal to of
America liMichigan,l Association fris • time as its "Base,..# +
without reference to prime interest ratesof other financial institution,not
necessarily be the lowest rate of interest charged by said bank to any of its customers, The Base Rate
is an "index". The actual rate charged to any borrower for a specific loan may be above or below that
GFORGETOWNMPU-S: DRAMAES 10/17/93
"Default Rate means the Base Rate plus three percent (3%) but shall not exceed a Net
Effective Interest Rate of 15% pursuant to Article 717k-2; Vernon's Annotated Texas Civil Statutes,
as amended.
"Determination of Taxability" means a determination that the interest income on any Bond
does not qualify for the exclusion from gross income of the owner thereof ("exempt interest") under
section 103 of the Code, other than by virtue of the provisions of the Code relating to alternative
minimum tax or other than that such owner is a substantial user of the facility being financed with the
proceeds of the Bond or a related person, which determination shall be deemed to have been made
upon the occurrence of the first to occur of the following:
(a) the date on which the Company determines that the interest income on the Bond does
• #RS#' # # ee• -# aM,-i4*Oox*1,#iniWn to that effect
of Bond Counsel, satisfactory to the Depositary; or
(b) the date on which the Company shall receive notice from the owner of the Bond that,
as a result of any authorized federal administrative action or by final decree, Judgment or order of any
federal court or authorized federal administrative body, it has been determined that, as a result of a
failure by the Company to observe any agreement or representation in the Agre ement, the interest
payable on the Bonds does not qualify as exempt interest. Any such determination will not be
considered final for this purpose unless the Bondholder involved in the proceeding or action resulting
in the determination (i) gives the Company and the Depositary prompt written notice of the
;. M11 I I,
or[ers Me Company an oppc
Bondholder, and until conclusionof any appellatesought.
GEORGETOWN/TRIPLE-S: DRAIMALS'10/!7/95
V WITIT MinTructing any interest previoTsfy —paid —on
this Bond to determine the amount of interest payable on such interest payment date, provided,
however the interest payable on the Bond on any payment date shall never exceed the maximum
allowed by applicable law, The interest on this Bond is payable on December 1, 1995, and on the first
day of each month thereafter while this Bond is outstanding.
TBE DEPOSITARY (hereinafter defined) shall calculate the interest due and payable on this
Bond in the manner as follows. Interest for each month or part thereof while this Bond is outstanding
s�hall be calculated as ofAhe-t, F�,+mkd
and at maturity (the "Calculation Date"), The interest payable on this Bond shall be calculated by first
determinin the amount of interest on -the un*,aid wfinci" installments of this B,,#.,nd from time to timn,;
as hereinbefore described from the date of delivery of this Bond through the last day of such month
(or, if the Bond has matured, to maturity) then deducting any interest previously paid but unearned
for the preceeding month to determine the amount of interest then payable; provided, howev that
3 - er,
the total interest payable through the last day of each month and at maturity shall not exceed the
thereof to such date� The Depositary shall notify the Company, pursuant to the notice provisions of
the Agreement, of the total interest due on the balance of the principal amount due on this Bond (the
"Interest Calculation") on a date (the "Notice Date") no less than 5 days prior to the date (the
"Payment Date") fixed for any payment of interest or unpaid principal amounts of the Bond which
Interest Calculation shall represent the full amount of interest due on the next Payment Date. The
final payment of principal on this Bond shall be paid only upon surrender of this Bond to the
Depositary for cancellation,
THE PRINCIPAL of, interest on, premium, if any, of this Bond shall be payable in lawful
money of the United States of America, without exchange or collection charges, Payments of prin-
cipal and interest shall be made to the registered owner by check or draft mailed by First of America
Bank - Michigan, National Association Kalamazoo, Michigan (the "Depositary", "Paying Agent", and
"Registrar" for this Bond) or its successor appointed under the Indenture (hereinafter defined), to the
registered owner at its address as it appears on the Bond Registration Books kept by the Depositary,
1, *17APk�q-agwr 1:39
by the registered owner, subject to the approval of the Depositary.
ANY PREPAYMENT or redemption of any principal installments of this Bond shall be made
only upon presentation of this Bond to the Depositary, who shall make notation of such prepayment
or redemption in the Prepayment Record endorsed hereon.
TFUS BOND is dated as of October 1, 1995 but accrues interest as of its date of delivery and
was authorized and issued in the aggregate principal amount of $5,000,000 pursuant to a resolution
..... .. ...
59
GH0RGH70WNMUP1X-S: DRAFrimis 10/17/95 7
FOOT CUSTOM PLASTIC INJECTION MOLDING FACILITY LOCATED IN THE
GEORGETOWN INDUSTRIAL PARK.
ON ANY DATE, the unpaid principal installments of this Bond are subject to optional
prepayment or redemption, and may be prepaid or redeemed prior to their scheduled maturities, by
the Issuer at the option of the Company, with internally generated funds or proceeds from the sale
-"O*eiV(Uqii'Akv-riik,,-h--.roWtet�,*tmrwa wion written notice of the exercise of the o%tion to *,re*mr
or redeem delivered to the Depositary by the Company not later than the 30th day prior to the date
of prepayment or redemption. This Bond may be so prepaid or redeemed as a whole or, from time
to time, in part (and, if less than all of the unpaid principal installments of this Bond are to be prepaid
Company and if less than all of an unpaid installment is to be redeemed, the Depositary shall select
at random, by lot or other customary method, the unpaid installment to be redeemed), at the
prepayment or redemption price of the principal amount thereof, without premium, plus accrued
interest to the date of prepayment or redemption
ON NOVEMBER 1, t997, and on the first day of each month thereafter, the unpaid principal
installments of this Bond is subject to optional prepayment or redemption, and may be prepaid or
redeemed prior to their scheduled maturities, by the Issuer at the option of the Company, with funds
furnished by the Company other than funds set forth in the foregoing paragraph, upon written notice
of the exercise of the option to prepay or redeem delivered to the Depositary by the Company not
later than the 30th day pniorto the date of prepayment or redemption. This Bond maybe so prepaid
or redeemed as a whole or. from time to time, in vart (and, if less than all of the unpaid principal
W'1304 1=1 I - I WORN
redeemed shall be selected and designated by the Company and it less than all ot an unpaia insi
is to be redeemed, the Depositary shall select at random, by lot or other customary method, the
unpaid installment to be redeemed), at the prepayment or redemption price (expressed as a percentage
of principal amount) applicable to the date of redemption falling within the applicable prepayment or
redemption period, as set forth in the following schedule, plus accrued interest to the ate 0
prepayment or redemptiom
Prepayment or Prepayment or
Redemption Period Redemption Price
November 1, 1997 through October 31, 1998 103%
November 1, 1998 through October 31, 1999 102%
November 1, 1999 through October 31, 2000 101%
November 1, 2000 and thereafter 100%
FOLLOWING THE OCCURRENCE of a Determination of Taxability, the Bond shall bear
interest at the Base Rate from the earliest date (the "Taxable Date") from which interest paid in
respect of this Bond is determined to be includable for federal income tax purposes in the gross
income of the owner of this Bond and for which the Internal Revenue Service may assess a deficiency
Gr0KGrMWN/TR1PLE-S: DRAFT5ARS 10/17/95 8
Me unpaia pnricipA 111SU111111CULS 01 LIUS,0011U, UL L11U UICULIU11 U1. Me k-11111PUllj 01
subject to acceleration, as a whole, on any date prior to their scheduled due dates with funds which
shall be furnished by the Company, on the earliest practicable date,
IF THERE IS A CHANGE IN THE CODE, the regulations promulgated thereunder or in t
interpretation thereof by any court, administrative authority or other governmental authority (oth
than an Event of Taxability) which takes effect after the date of issuance of this Bond, an W i
changes the effective yield on the Bond to the Bondholder, including but not limited to, changes i
the Corporate Tax Rate (as hereinafter defined) ("Change in Law"), the interest rate on the Bond sh
change accordingly to compensate the holder for such change in the effective yield on the Bond,
the event of an increase or decrease in the Corporate Tax Rate (as hereinafter defined) of the hold
of this Bond, enacted or effective after the date of issuance of this Bond, the interest rate set fo
herein (other than any interest rate in effect following a Determination of Taxability or event
orate Tax Rate or increz
ON ANY DATE, the unpaid principal installments of this Bond are subject to prepayment or
redemption, and may be prepaid or redeemed prior to the scheduled due dates by the Depositary, in
r#*A**-rder*,f aheir scheduled due dates, at a iire1#,a:AMent or redemi%'tion •, equal
to the principal amount thereof to be prepaid or redeemed plus accrued interest thereon to the date
of prepayment or redemption (calculated and payable as provided herein), and without premium, wit
and to the extent of any surplus funds remaining in the Construction Fund (created by the Initial Bond
Resolution) after the completion of the Project, or to the extent of any monies remaining in the
Construction Fund as provided and if required by Section 7(o) of the Initial Bond Resolution.
THE FOREGOING NOTWITHSTANDING, the rate of interest borne by this Bond shall
never exceed a rate which would cause the Net Effective Interest Rate for this Bond from the date
of delivery to the initial purchaser hereof to any date to exceed a Net Effective Interest Rate of 15%.
1111! 11 1111 1 ip!!
UNION i� I 1 1,1 A ,, ill i 11 111,1!
MEN 1111�11�igj
GroRGrrov,rNrrRJPLE-S: DRAvmus ism/95 9
it! L I il -1 ITCU
MV
laws of the State of Texas and the United States of America, as now or hereafter construed by the
courts having jurisdiction, and it is agreed by the Issuer and the owner of this Bond that in no event
shall usury be paid or collected with respect to this Bond.
AT LEAST 15 DAYS PRIOR to the date fixed for any prepayment or redemption of the
unpaid principal installments of this Bond (but not the maturity of monthly installments of principal),
I M
I CUCHIPUU11 kUU1Qt1dLC& WIt PdJUMC US P1 UUMU 11U1 U111), P1111 S diij 0717
premium, and any other amounts due the owner of this Bond, If such written notice of prepayment
or redemption is given and if due provision for payment of the redemption price is made, all as
provided above, the unpaid principal installments of this Bond which are to be prepaid or redeemed
thereby automatically shall be deemed to have been prepaid or redeemed prior to their scheduled due
not be regarded as being outstanding except for the right of the owner thereof to receive the
redemption price from the Paying Agent out of the funds provided for such payment. Upon
presentation of this Bond to the Paying Agent, such unpaid principal installments which are to be
prepaid or redeemed, shall be paid at the redemption price. Except as set forth above, the principal
installments of this Bond is not subject to prepayment or redemption prior to their scheduled due
dates.
IF TBE DATE for the payment of the principal of or interest on this Bond shall be a Saturday,
Sunday, a legal holiday, or a day on which banking institutions in the city where the Paying Agent is
( ocated are closed by law or custom, then the date for such payment shall be the immediately
oeceding day which is not such a Saturday, Sunday, legal holiday, or day on which banking
institutions are closed by law or custom; and payment on such date shall have the same force and
zftect as if made on the original date of payment.
IT IS BEREBY CERTIFIED AND COVENANTED that this Bond has been duty and validly
authorized, issued, and delivered; that all acts, conditions, and things required or proper to be
performed, exist, and be done precedent to or in the authorization, issuance, and delivery of this Bond
have been performed, existed, and been done in accordance with law, that this Bond is a specia
revenue obligation of the Issuer, and that the principal of and interest on this Bond due with respect
hereto, are payable from and secured by a first lien on and pledge of the payments designated as
"Loan Agreement Payments" to be made or paid, or caused to be made or paid, to the Depositary,
pursuant to the initial Bond Resolution, the indenture and the "Loan Agreement between
Georgetown Industrial Development Corporation and Triple S Plastics, Inc.," dated as of October
1, 1995 (the "Agreement"). The Company is unconditionally obligated to make or pay, or cause to
be made or paid, without set-off, recoupment, or counterclaim, to the Depositary each such Loan
Gr0RGF-r0WN(rR1P1X-S: DRAI-75AHS 10/17/95 10
Agreement Payment for deposit into the Debt Service Fund created for the benefit of the owners of
the Bond by the Initial Bond Resolution, in aggregate amounts su icient to pay an re eem, an
provide for the payment and redemption of, the principal of and interest on this Bond, and to pay all
Lwluti,#,n, and the Indenture when dut,
subject to and as required by the provisions of the Agreement, the Initial Bond Resolution, and the
Indenture.
TBE ISSUER AND TBE DEPOSITARY have entered into an Indenture dated as of October
1, 1995 (the "Indenture"), whereunder First of America Bank - Nfichigan, National Association or
0 e ssuert e 7posiaryan e
is issued and secured, and the modification of any of the foregoing.
THE ISSUER has reserved the right, subject to the restrictions stated in the initial Bond
Resolution including the prior written consent of a majority of the Bondholders, to issue additional
parity revenue bonds ("Additional Bonds") which, when issued and delivered, shall be payable from
the Debt Service Fund, and shall be payable from and secured by a first lien on and pledge of Loan
Agreement Payments pursuant to the Agreement and entitled to the bene its o t e n enture, t e
Security Agreement and the Lease Assignrnent in the same manner and to the same extent as, and be
on a panty with, this Bond and all then outstanding Additional Bond&
inaenture, as proviaeci Merein; anu 11-777777num-l'u;
be approved by i of a majority in aggregate principal amount of this Bond then outstanding
and any Additional Bonds then outstanding.
THE OWNER HEREOF shall never have the right to demand payment of this obligation out
of any funds raised or to be raised by taxation or from any source whatsoever except the payments
and amounts described in this Bond, the Initial Bond Resolution, the Indenture, the Agreement, the
GEORGUOWNfIRIPLE-S: MAV75,M 10/17/95 11
Security Agreement, the Lease Assignment and the Guaranty, Except for the lien on and the
assignment and pledge of su h property payments, and amounts, no property of the Issuer is
C I
encumbered by any lien or security interest for the benefit of the owner of this BondNeither the
State of Texas, the City of Georgetown, Texas, nor any other political corporation, subdivision, or
agency of the State of Texas, nor the Board of Directors of the Issuer, either individually or
collectively, shall be obligated to pay the principal of this Bond, any premium or payment with respect
to this Bond, or the interest hereon; and neither the faith and credit, nor the taxing power, of the State
of Texas, the City of Georgetown, Texas, nor any other political corporation, subdivision, or agency
of the State of Texas, is pledged to the payment of the principal of this Bond, any premium or
payment with respect to this Bond, or the interest hereon,
THIS BOND shall not be valid or obligatory for any purpose until registered by the
Comptroller of Public Accounts.
THIS BOND maybe assigned and shall be transferred only on the Bond Registration Books
of the Issuer kept by the Depositary, as Registrar, upon the terms and conditions set forth in the
Initial Bond Resolution, the Indenture and the Assignment provisions endorsed hereon, provi e ,
o a Sop,.histicated Investor (hereinafter
defined) and (ii) such sale or transfer will be conditioned upon the receipt by the Issuer and
-Ak nd
covenants
as the "Investment Letter" delivered by the initial registered owner of this Bond. A Sophisticated
Investor shall mean (i) any national or state chartered banking institution who may legally purchase
bonds such as this Bond, (ii) any corporation organized as a trust company who may legally purchase
bonds such as this Bond, (iii) any corporation organized as an insurance company who may legally
purchase bonds such as this Bond and (iv) to a person who the seller hereof reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A of the Securities Act of 1933 that
,ii=.,hrwes for its own account or for the account of a qualified institutional buyer and institutions that
are "accredited investors" as defined in Rule 501(a)(1), (2). (3) or (4) of the Securities Act of 1933.
Such transfers shall be without expense to the owner hereof, but any taxes or other governmental
44 shall be yaid bN the owner reQuesting—sidL
transfer as a condition precedent to the exercise of such privilegeThe Depositary shall not be
required to make transfers of this Bond (i) beginning on the 15th day of the calendar month
immediately preceding an interest payment date or redemption date and ending at the close of
walt-up ftrjCcate�,. or subse uent to the date of mailing
of notice of prepayment or redemption of any principal installments of this Bond, anything in this
Bond to the contrary notwithstanding, The registered owner of this Bond may be deemed and treated
by the Issuer, the Depositary and the Company as .e owner hereof for all purposes,
including payment and discharge of liability upon this Bond to the extent of such payment, and the
Issuer, the Depositary and the Company shall not be affected by any notice to the contrary,
THIS BOND shall not be valid or become obligatory for any purpose or be entitled to any
e. _ under the Indenture until the Depositary's Certificate of Authentication hereon shall have been
signed by the Depositary and the Delivery Certificate hereon shall have been comp ete .
GrORGUOWNMUPLE-S: DRAF-MR17S 10/17/95 12
a- MN'
M Ulu rli-esicienl WIG tile acureoly ot tile Duarti 01 #1 umb
Issuer has been duly impressed, or placed in facsimile, on this Bond.
Secretary, Board of Directors
t
President, Board of Directors
This Bond is the Bond issued under the provisions of the within mentioned Agreement, Initial
Bond Resolution and Indenture.
First ofAmenica Bank - Michigan, National Associatioi
Depositary
B
Authorized Officer
THIS BOND was delivered to and paid for by the purchaser hereof on
GE0RGM"0WNfM1PL8-S: DRAFURES 10/17/95 13
SCHEDULE A
MONTHLY INSTALLMENTS OF PRINCIPAL
LV'ond Year Monthly Principal
Payments During
Bond Year
1st Bond Year
$48,000
2nd Bond Year
52,000
3rd Bond Year
55,000
4th Bond Year
59,000
5th Bond Year
63,000
6th Bond Year
67,000
7th Bond Year
72,000
(first I I payments)
7th Bond Year
80,000
(final payment)
TOTAL PRINCIPAL
Total Principal
Payments For
Bond Year
$576,000
624,000
660,000
708,000
756,000
804,000
792,000
PREPAYMENT RECORD
Principal Remaining Name & Title 0
Prep ment or Principal Authorized Offic
Rede=tion Balance Making EntKy I
GEORGETOWWMIPLE-S: DRAFMM 10/17/95 14
Principal Balance
Remaining After
Bond Year
$4,424,000
3,800,000
3,140,000
2,432,000
1,676,000
872,000
80,000
I
FOR VALUE RECEIVED, the registered owner of this Bond last listed below sells, assigns,
and transfers the within Bond to the Assignee last listed below, and hereby authorizes the transfer of
this Bond on the Bond Registration Books of the Depositary, Such assignment shall not be effective
A
the Depositary its address to which payments shall be made and the Depositary makes notation of
such Assignment below,
DATE OF REGISTERED
ASSIGNMENT OWNER ASSIGNEE
LORI& I a 0 NO) IN 9 "MMIN 1.1 F 1=011
5� 0 ►
OF PUBLIC ACCOUNTS § REGISTER NO.
THE STATE OF TEXAS §
I HEREBY CERTIFY THAT there is on file and of record in my office a certificate to the
effect that the Attorney General of the State of Texas has approved this Bond, and that this Bond
has been registered this day by me.
WITNESS MY SIGNATURE AND SEAL OF OFFICE this
Comptroller of Public Accounts
of the State of Texas I
GLOPG MWNnRIPLE-S: DPAFr5.RES 10/17/95 15
Section 6. PLE ' DGE. The Bond and the interest thereon are and shall be payable from
and secured by a first lien on and pledge of the payments designated as Loan Agreement Payments
to be made or paid, or caused to be made or paid, to the Depositary by the Company, pursuant and
subject to the terms and provisions of this Initial Bond Resolution, the Indenture, and the Agreement;
and such Loan Agreement Payments are further pledged irrevocably to the establishment and
maintenance of the Debt Service Fund hereinafter created. The Bond is additionally secured by the
Security Agreement and the Lease Assignment and all moneys in the Debt Service Fund and the
Construction Fund including the proceeds of the Bond pending disbursement.
Section 7. DEBT SERVICE FUND, CONSTRUCTION FUND AND REBATE FUND.
(a) Establishment of Debt Service Fund. A separate and special fund to be designated and known
as the "Debt Service Fund" shall be established by the Issuer with the Depositary for the benefit of
the owners of the Bond pursuant to the Agreement and the Indenture, and maintained as provi, e
in this Initial Bond Resolution and the Indenture, as long as any of the Bond, or interest thereon, is
outstanding and unpaid.
(b) Accrued Intereg Immediately after the delivery of the Bond to the initial purchaser
,6.rc.afv�d�l—omr-)edinterest f ,received from the vroceeds from the sale and deliveeii of the Bond,
shall be transferred by the Depositary into the Debt Service Fund.
(c) Loan A eement Payments. The payments required by subsections (i) through (4)
below to be deposited into the Debt Service Fund shall be herein referred to as the ®` Agreement
It
Payments .
(1) Principal and Interest Pgyments. The Company shall make or pay, or cause to bas,
made or paid, to the Depositary, which shall deposit into the Debt Service Fund,
Principal and Interest Payments as fbllows
(A) On or before each interest payment date as provided in Section 3 and in the
FORM OF BOND set forth in Section 5, an amount which, together with any
other amounts then on deposit therein and available for such purpose, wil e
sufficient to pay the interest conuing due on the Bond on each interest
payment date; and
(B) On or before each principal payment date as provided in the FORM OF
BOND set forth in Section 5, an amount which, together with any other
amounts then on deposit therein and available for such purpose, wi be
sufficient to pay the principal of the Bond scheduled to be paid on each
principal payment date; and
(C) On or before any optional or mandatory prepayment or redemption date as
GE0RGC7r0WNrM1PLE-S: DRAMAES 10/11/95 16
I 1=91013i ON
difloint, 71111cii, LugULLICI TTIL11 �'wf
such purpose, will be sufficient to pay the prepayment or redemption pri
specified therein; and i
(D) On any date on which the Bond is declared to be immediately due and payable
pursuant to the indenture, an amount which, together with any other amounts
then on deposit and available for such purpose, will be sufficient to pay the
principal of the Bond then outstanding and the interest accrued thereon to
such date.
(2) Depositary, Reg�istrar and Pgying Agent PLLyment , Promptly after receipt of each
statement and request for payment, the Company shall make or pay, or cause to be
made or paid, to the Depositary, which shall deposit into the Debt Service Fund,
Depositary, Registrar and Paying Agent Payments in an amount equal to the charges
of the Depositary for performing the duties of Depositary and Registrar, and the
charges of the Paying Agent for the Bond, as designated in the FORM OF BOND set
fbrt� in Section 5, for paying or redeeming principal installments of the Bond, and
paying the interest thereon.
(3) Other PUments. The Company shall make Or pay, or cause to -be made or paid, to
the Depositary, which shall deposit into the Debt Service Fund, payments (other than
those provided for in subsections (1) and (2), above) in an amount sufficient to pay,
at the required time, all other payments required to be paid by the Company under the
terms of this Initial Bond Resolution, the Agreement or the Indenture,
(4) Overdue Pgyments In the event the Company should fail to make or pay, or cause
to be made or paid, any of the required is Agreement Payments set forth in this
Section, each such required payment shall continue as an obligation of the Company
until fully paid, and the Company agrees to is the same to the Depositary, for the
benefit of the owners of the Bond or the Depositary, as appropriate, with interest
thereon, to the extent legally permissible, at the rate per annurn equal to the Default
Rate (as defined in the FORM OF BOND set forth in Section 5) (based on the number
of days actually elapsed on the is of a t• #.' year) from the date any such
payment was due until payment thereof
Redemptio . TheBond t . all autho i I be subject to redemption, a
(d) ini I y rized hereby shal I
-may or shall be redeemed, as specified in the FORM psiND set forth in Section 5.
(e) Payments from Debt Service Fund. Except as otherwise specifically provided in this
Initial Bond Resolution or the Indenture, the Debt Service Fund shall be used by the Depositary only
to pay the principal of, and prepayment or redemption premium, if any, and interest on the Bond,
when due, and the charges of the Depositary, Registrar, and Paying Agent; and the Depositary shall
GL0RGM'0V.rNrrR1PU-& DPAM,RrS 10/17/95 17
make available to the Paying Agent, out of the Debt Service Fund, the amounts required to pay or
redeem the principal of and interest on the Bond when due, and the Depositary shall make all other
payments as required by this Initial Bond Resolution and the Indenture,
(f) Immediately Available Funds. The Company shall make all Loan Agreement Payments
United States of America, the principal, interest, premium, if any, and other amounts with respect to
the Bond, when due.
(g) Establishment of Rebate Fund. A separate and special fund to be desianated and
known as the "Rebate Fund" shall be established by the Issuer with the Depositary for the benefit of
the United States and the Company, as their respective interests may appear pursuant to the Bond
Resolution, the Indenture and the Agreement, and maintained as provided in this Initial Bond
Resolution and the Indenture, for so long as any of the Bond, or interest thereon, is outstanding and
unpaid.
(h) Investment of Debt Service and Rebate Fund. Any money held as part of the Debt
Service Fund or the Rebate Fund shall be invested or reinvested by the Depositary, upon the written
direction (or oral direction confirmed in writing) of the Approving Officer in Eligible Securities. The
Depositary shall make no investments except as specifically directed by the Approving Officer. The
investments of the Debt Service Fund and the Rebate Fund shall be deemed to be a part of such
respective Fund, and, for the purpose of determining the amount of money in such Fund, such
investments shall be valued at their cost. The income and profits, including realized discount on
obligations purchased, received from such investments shall be deposited in or credited to the Debt
Service Fund and the Rebate Fund, and any losses on investments thereon shall be charged against
the Debt Service Fund and the Rebate Fund. If at any time it shall become necessary that some or
all of the investments made with the moneys from the applicable fund be redeemed or sold to raise
moneys necessary to comply with the provisions of this Initial Bond Resolution or the Indenture, the
Depositary shall, without further authorization, effect such redemption or sale, employing, in the case
of a sale, any commercially reasonable method of effecting the same. The Depositary shall not be
liable or responsible for any loss resulting from any such investment or resulting from the redemption
or sale of any such investment as herein authorized; except that the Depositary shall be liable for (1)
any loss resulting from its willful or negligent failure, within a reasonable time after receiving the
written direction from the Approving Officer to make, redeem, or sell any investment in the manner
provided for herein, and (2) except for any redemption or sale made pursuant to the next preceding
sentence of this paragraph, for any loss resulting from the making, redeeming, or selling of any
investment which was not authorized by written direction of the Approving Officer, If the
Depositary is unable, after reasonable effort and within a reasonable time, to make, redeem, or sell
any such investment, it shall so notify the Approving Officer and thereafter the Depositary shall be
relieved of all responsibility with respect thereto. In the event of any such loss, the Company shall
make additional deposits to restore same if and to the extent required to enable the Depositary to
make all payments required to be made from the applicable fund, and such additional deposits shall
constitute additional amounts of Loan Agreement Payments.
GLORGUOWN/TP.Mr-S: DRAMARS 10/17/95 is
(i) Restriction on Amount in Debt Service Fund, Amounts on deposit in the Debt Service
Fund will not exceed the amount necessary to pay the principal of and interest on the Bond during
the succeeding twelve-month period, The Debt Service Fund will be completely depleted at least
once during each twelve-month period except for an amount that does not exceed the Gross Earnings
(hereinafter defined) on the Debt Service Fund during the twelve-month period preceding such date
of depletion, The Gross Earnings on the Debt Service Fund for any Bond Year (hereinafter defined)
shall be less than $100,000. The term Gross Earnings means the aggregate amount earned on all
investments acquired with or allocated to amounts on deposit in the Debt Service Fund including
amounts earned on such amounts, The term Bond Year with respect to the Bond means the one year
period beginning on the day after the preceding Bond Year, and the first Bond Year begins on the
closini� date and ends one year later.
0) Establishment of Construction Fund and Deposit of Bond Proceeds into Construction
Fund. Prior to or immediately after the sale and delivery of the Bond authorized hereby, the Issuer
shall establish the Construction Fund with the Depositary, as defined in and required by the
Agreement. The Issuer shall deposit all of the proceeds from the sale and delivery of the Bond
authorized hereby into the Construction Fund. The Depositary shall draw on and use the
Construction Fund as hereinafter provided. The amount so deposited into the Construction Fund
shall constitute the Loan made to the Company by the Issuer as contemplated and provided in the
Agreement.
(k) Investment of Mongy in Construction Fund. Any money held as part of the
Construction Fund, other than the amounts described in Section 7Q), shall be invested or reinvested
by the Depositary upon the direction of the Approving Officer in Eligible Securities. The Depositary
shall make no investments except as specifically directed by the Approving Officer and confirmed to
the Depositary in writing. The investments of the Construction Fund shall be deemed to be a part of
the Construction Fund, and for the purpose of determining the amount of money in the Construction
Fund, such investments shall be valued at their cost or market value, whichever is lower. The income
.wad nraits, 4cludini realized discount on oblications iurchased i received from such investments shall
67,teposueu 111 01 CleULCU L't LIM
against the Construction Fund. Upon the direction of the Approving Officer, the Depositary shall
redeem or sell all or any designated part of such investments employing, in the case of a sale, any
commercially reasonable method of effecting the same, The Depositary shall not be liable or
responsible for any loss resulting from the redemption or sale of any such investment as herein
authorized-, except that (notwithstanding any provisions of the Agreement t e epositary s a e
liable for: (1) any loss resulting from its willful or negligent failure, within a reasonable time after
receiving the written direction from the Approving Officer, to make, redeem, or sell any investment
in the manner provided for herein, and (2) any toss resulting from the making, redeeming, or selling
authorized by direction of the Approving Officer. If the Depositary is unable, after reasonable effort
and within a reasonable time after receipt of the required direction, to make, redeem, or sell any such
investment, it shall so notif UP
y in writing the Approving Officer and there on the Depositary shall be
relieved of all liability or responsibility with respect thereto.
GEORGETOWN/TRIPLE-S: DRA175AES 10117/95 19
(1) Expenditure of MoM in the Construction Fund. All amounts held in the Construction
Fund shall, as of the third anniversary date of the date of delivery of the Bond, be either (I expen e
to finance the Project, (2) applied to purchase and cancel, redeem or otherwise retire the Bond or (3)
applied in a manner which, in the opinion of Bond Counsel, will not adversely affect the tax-exempt
status of interest on the Bond.
(m) Payments from Construction Fund. After the delivery of the Bond authorized hereby,
the Depositary shall pay directly out of the Construction Fund, promptly after receiving the bills or
statements therefor, all of the actual expenses and costs of issuance of such Bond, including, without
limitation, financing charges, printing and engraving expenses, the reasonable fees and expenses of
accountants, financial advisors and attorneys, and the initial fees and expenses of the Depositary.
However, to the extent the expenses and costs set forth in this paragraph exceed two percent (2%)
of the proceeds of the Bond, then the Company, pursuant to Section 4.05 of the Agreement, shall pay
out-of-pocket such expenses and costs that exceed such limitation.
Subject and subordinate to making the payments required by the preceding paragraph, the
'GUIPL VJ UIC W414SM113, 41 d -A -Et
hereto as Exhibit
(n) Reliance by Depositary: The Depositary shall rely fully on any such request and
certificate delivered pursuant to this Section and shall not be required to make any investigation in
connection therewith. If amounts paid by the Depositary with respect to any portion of the Project
should exceed the cost thereof, the Company shall promptly repay such overpayment into the
Construction Fund.
(o) Disposi on of SuLplus Construction FundsThe completion of the Project shall be
conclusively evidenced, and the date of completion shall be established by a written certificate of
completion to be signed by the Approving Officer and delivered to the Depositary immediately upon
completion of the Project as determined by the Company, If, upon the completion of the Project,
there shall be any surplus fiinds remaining in the Construction Fund not required to provide for the
payment of the Cost of the Project, or if any funds are on hand in the Construction Fund at the time
such use, the Issuer and the
Counsel to the effect that the use of moneys from the Construction Fund for such purpose will be
lawful
• will not •. the exemption of interest on the Bond from federal income taxation-,
Gr0RG1.-r0WN/'rR1PLL-S: DRAFMIUS 10/17/95 20
(p) Disposition of Construction Fund ul2on Acceleration and Redemption. If the principal
of the Bond and the interest accrued thereon shall be declared immediately due and payable as the
result of an Event of Default or Determination of Taxability as specified in the FORM OF BOND,
or if the Bond is optionally or mandatorily prepaid or redeemed prior to maturity as a whole in
accordance with their terms, any amounts remaining in the Construction Fund shall be transferred to
the Rebate Fund if, and to the extent, required to comply with the covenants set forth in Section 4.06
of the Loan Agreement,
Section 8. SECURITY FOR FUNDS. All uninvested money in all Funds established
owia-it w 141 Initial B d Rewlution fincludini the Debt Service Fund, the Rebate Fund and the
Consfrucilon runa), snan 57 secureu oy Me
by Texas law.
Section 9. THE COMPANYS PAYMENTS. (a) Unconditional Obligation. The
Company has covenanted in the Agreement, and, by the approval of this Initial Bond Resolution, the
Company further has unconditionally obligated itself and agreed, regardless of and notwithstanding
any provisions of the Agreement, other than Sections 6.01 and 6.02 thereof relating to merger,
consolidation, transfer of assets and assignment, and regardless of the provisions of any other
agreement or contract to the contrary, to make or pay, or cause to be made or paid, without set-off,
recoupment, or counterclaim, the Loan Agreement Payments to the Depositary in the amounts
required by Section 7(c) to be made into the Debt Service Fund, and to make such payments On or
before the dates specified in this Initial Bond Resolution and the Indenture; and said payments by the
Agreement, Each Bondholder is and shall be entitled to rely unconditionally on the agreements, cove-
nants, and representations set forth in this Initial Bond Resolution and the Indenture.
(b) Prepayments- Subject to the terms of the Bond, it is further understood that the
-cw ---Ls --ach-Loan Agreement Paj�ment, and an:,Landh �vrev �=a
and any earnings thereon, shall be applied by the Depositary to the payment of each Loan Agreement
of the Bond prior to their due dates, with funds from any source (whether from Loan Agreement
Payments or otherwise), shall not relieve the Company of its obligation to make or pay, or cause to
be made or paid, each Loan Agreement Payment as specified in Section 9(a), when due with respect
to any remaining unpaid principal installments of the Bond.
Section 10. ADDMONAL PARITY BONDS. (a) Additional BondsThe Issuer reserves
the right, upon the request of the Company, to issue additional parity revenue Bond ("Additional
Bonds") in any amounts, for any lawful purpose or purposes, including the refunding of any
outstanding Bond. Such Additional Bonds, along with the Bond authorized by this Initial Bond
Resolution, shall be considered, constitute, and be "Bond" as defined in, and for all purposes of, the
Agreement and the Indenture. Furthennore, for all purposes of this Initial Bond Resolution, the term
"Bond" shall mean and include the Bond authorized hereby and any Additional Bonds, unless the
context otherwise indicates, When issued and delivered such Additional Bonds, the redemption
GrORGUOWN/TRIPLE-S: DRAFT AHS 10/17/95 21
premium, if any, and the interest thereon, shall be payable from the Debt Service Fund, and shall be
M
ancr-rital
issuance of such Additional Bond& It is provided, however, that no series or issue of Additional
Bonds shall be issued unless:
W In the opinion of Bond Counsel (A) the issuance of such Additional Bonds will
not adversely affect the exemption from federal income taxation of the interest on the then
outstandinR Bond and Additional Bonds, or affect the validity of the then outstanding Bond
or Additional Bonds, (B) such Additional Bonds are secured in the same manner and to the
S 2
(C) such Additional Bonds are valid and binding obligations of the Issuer, enforceable in
accordance with their terms,
(ii) A certificate is executed by the President and Secretary of the Board of Directors
(111) The Bond Resolution authon'zina the issuance of such series or issue of
imAhe
Debt Service Fund in amounts sufficient to pay all principal of, redemption premium, if any,
and interest on such Additional Bonds, together with all Depositary, Registrar, and Paying
Agent fees and expenses attributable to such Additional Bonds;
(v) The principal and interest payment dates during any year in which principal and
Bonds and the Bond;
(vi) The holders of 100% of the outstanding principal balance of the Bond give
their prior written consent to the issuance of such Additional Bonds; and
(vii) The Department expressly gives its prior approval to the issuance of such
GrORGrJ'OWN/'rR1PLr-S: DRAMAES tO/17195 22
(b) Amendments to Indenture Unnecessarv. it shall not be necessary or required that the
Indenture be amended or supplemented to cause the issuance of any series or issue of Additiona
Bonds. All that shall be necessary or required to cause any such Additional Bonds to be issued under
the Indenture is for the Issuer to deliver to the Depositary a certified copy of the Bond Resolution
authorizing their issuance, together with all documents described in Section 10(a) above, prior to the
delivery of such Additional Bonds.
Section 11. SPECIAL COVENANTS. The Issuer further covenants as follows:
(a) Loan Agreement PMments Pledged to Bond On - . Other than for the payment of the
Bond, as provided in this Initial Bond Resolution and the Indenture, the Loan Agreement Payments
have not in any manner been pledged to the payment of any debt or obligation of the Issuer,
(b) Non -Encumbrance. While any of the Bond is outstanding, the Issuer will not (except
with respect to the Bond and any Additional Bonds and except as provided in the Agreement, any
Bond Resolution, or the Indenture) in any manner whatsoever create, assume, or suffer to exist,
directly or indirectly, any mortgage lien, encumbrance, pledge, or charge against the Debt Service
,wtri--thCL-�Agreement Paptiments, the Construction Fund- or anw
g �trt�,j or monexs de:%osited
with the Depositary,
(c) Performance by Issuer. The Issuer will carry out all of its covenants and obligations
under this Initial Bond Resolution; and the Issuer may be required to carry out such covenants and
obligations by all legal and equitable means, including, but without limitation, actions for specific
nrnnw..-
mceedings. �nan',,Lo-urt of comqetent ;urisdiction.
against the Issuer, its Board of Directors, and its officials and employees; and
(d) Certain Modifications Prohibited The Issuer covenants and agrees that it will not
L-J'Qr.�* e Ifell, - Teiement.-
WA FIVNIXAM
required by the Agreement, this Initial Bond Resolution, and the Indenture, or which woul change
or affect Sections 4.04, 4,05, 4.06 and 5.04 of the Agreement without the written consent of all of
the Bondholders.
Section 12. THE BOND IS A SPECIAL OBLIGATION. The Bond is and shall be a
special revenue obligation of the Issuer payable solely from payments to be made under the
Agreement, this Initial Bond Resolution, the Security Agreement, the Lease Assignment, the
Guaranty, and the Indenture; and the Bondholders shall never have the right to demand payment
thereof or the interest thereon out of fiinds raised or to be raised by taxation, or from any source
whatsoever other than the foregoing. The Bond is not and shall never be considered as obligations
U -tit, or .'W
�! �u#
GE0RGFr0WNfrR1PLE-S: DW-75AES 10/17/95 23
M 11,1�! 11
Section 13. ANMNDNMNTS. (a) Amendment with Consent • Owners of • of the
Bond, Subject to approval in writing by the Approving Officer of the Company, the owners of a
majority in aggregate principal amount of the then outstanding Bond shall have the right from time
to time to approve any amendment to any Bond Resolution, or to the Indenture (provided that the
Depositary must approve any amendment to the Indenture), which may be deemed necessary or
desirable by the Issuer, provided, however, that nothing herein contained shall permit or be construed
�2
affected thereby, of the terms and conditions of any Bond Resolution, the Bond, or the Indenture, so
as to:
(1) change the Debt Service Fund requirements, interest payment dates, or the due date
or dates or the maturity or maturities of the outstanding Bond;
(2) reduce the rate of interest borne by any of the outstanding Bond;
(3) reduce the amount of the principal of, redemption premium, if any, or interest on the
outstanding Bond, or impose any conditions with respect to such payments;
(4) modify the terms of payment of principal of, redemption premium, if any, or interest
on the outstanding Bond, or impose any conditions with respect to such payments;
(5) affect the rights of the owners of less than all of the Bond then outstanding;
(6) decrease the minimum percentage of the principal amount of the Bond necessary for
consent to any amendment; or
GEORGETOWNfMIPLr-S: DRAI-75RE510/17/95 24
(c) Consent to Amendment. Whenever at any time not less than 30 days, and within one
3tar foom the date of the first %ublication of said notice or other service of written notice the Issuer
shall receive an instrument or instruments executed by the owners of at least a majority in aggregate
principal amount of all the Bond then outstanding, which instrument or instruments shall refer to the
proposed amendment described in said notice and shall specifically consent to and approve such
amendment, the Issuer may adopt the amendatory resolution in substantially the same form.
(d) Effect of Amendment. Upon the adoption of any amendatory resolution pursuant to
the provisions of this Section, any such Bond Resolution, or the Indenture, shall be deemed to be
amended in accordance with such amendatory resolution, and the respective rights, duties, and
,sA-fi**Lom-,,--w-ncLAEsuch—ar—nen—da—to—r_,-Lr�I ti�n or the Indenture, of all the Bondholders shall thereafter
be determined and exercised subject in all respects to such amendments.
(e) Consent of Bondholders. Any consent given by a Bondholder pursuant to the
provisions of this Section shall be irrevocable for a period of six months from the date of the first
publication or other giving of the notice provided for in this Section, and shall be conclusive and
bindin•g upon all future owners of the same Bond during such period. Such consent may be revoked
at any time after six months from the date ofthe first publication or other giving of such notice by the
Bondholder who gave such consent, or by a successor in title, by filing notice thereof with the
Depositary and the Issuer, but such revocation shall not be effective if the owners of a majority in
aggregate principal amount of the then outstanding Bond have, prior to the attempted revocation,
consented to and approved the amendment.
I (f) Ownership of the Bond. For the purpose of this Section, the fact of being a
Bondholder and the amount and numbers of such Bond, and the date of being a Bondholder, may be
conclusively presumed, or may be proved by referring to the books of the Registrar. The Issuer may
conclusively presume that the status of any Bondholders will continue until written notice to the
contrary is served upon the Issuer.
(g) Amendments Without Consent, Notwithstanding the provisions of (a) through (f) of
this Section, and without publication of the proposed amendment and without the consent of the
Bondholders, but subject to approval of the Approving Officer and, in the case of any amendment to
the Indenture, with the approval of the Depositary, the Issuer may, at any time, amend any Bond
Resolution, or the Indenture, to cure any ambiguity or cure, correct, or supplement any defective or
inconsistent provision contained therein, or make any other change that does not in any respect
materially and adversely affect the interest of the Bondholders, provided that no such amendment
shall be made contrary to the provision to Section 13(a), and a duly certified or executed to of each
such amendment shall be filed with the Depositary. The Company shall provide the Depositary a
copy of any such amendment two days prior to execution thereof.
Gr0KGa,0WNfM11'LL-S: DRAFT AM 10/17/95 25
(a) Replacement Bond. in the event any of the outstanding Bond authorized hereby is damajaed,
mutilated, lost, stolen, or destroyed, the Issuer shall execute, and the Depositary shall authenticate '
a new bond of the same principal amount and maturity of the damaged, mutilated, lost, stolen, or
destroyed Bond in exchange and substitution for such Bond or in lieu of and substitution for such
Bond.
(b) Applic ion for Substitute Bond. Application for exchange and substitution of
damaged, mutilated, lost, stolen, or destroyed Bond shall be made to the Issuer. In every case, the
applicant for a substitute bond shall furnish to the Issuer and the Depositary such security or
indemnA,7� Aals-umAwi be rQ uired o save each of them and the Paying Agent harmless, provided
that in order to comply with this provision the Bank need only furnish to the Issuer and the
Depositary an indemnity agreement satisfactory to the Issuer and the Depositary as to form and
content. In every case of loss, theft, or destruction of a Bond, the applicant shall also furnish to the
IMM sour" 3m�f*-r4nc,,;; to their satisfaction of the loss, theft, or destruction and of the
ownership of such Bond. In every case of damage or mutilation of a Bond, the applicant shall
surrender the Bond so damaged or mutilated.
(c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in
the event any such Bond shall have matured, and no default has occurred which is then continuing
in the payment of the principal of, redemption premium, if any, or interest on the Bond, the Issuer
may authorize the payment of the same (without surrender thereof except in the case of a damaged
or mutilated Bond) instead of issuing a substitute Bond, provided security or indemnity is furnished
as above provided in this Section.
(d) Charge for Issuing Substitute Bond, Prior to the issuance of any substitute bond, the
Issuer and the Depositary may charge the owner of such Bond with all legal, printing, and other
expenses in connection therewith. Every substitute bond issued pursuant to the provisions of this
Section by virtue of the fact that the Bond is lost, stolen, or destroyed shall constitute a contractual
0 L&J�- oft
A 0 Tim -
Bond Resolution,
(e) Authodty for Issuing Substitute Bond. This Initial Bond Resolution shall constitute
sufficient authority for the issuance of any such substitute bonds without necessity of further action
by the Board of Directors of the Issuer or any other body or person, and the issuance of such
substitute bonds is hereby authorized, notwithstanding any other provisions of this Initial Bond
Resolution, except to the extent otherwise required by law.
Section 15. TAX -EXE MPT STATUS OF INTEREST ON TBE BOND. The Company
and Issuer covenant to refrain from such action which would adversely affect the treatment of the
Bond as obligations described in section 148 of the Code, the interest on which is excludable from
"gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the
K
GEORG M-WNtTRIPLE-S: DPAI-75AES 10/17/95 26
ty Me
(a) not to use or invest nor to permit the use or investment of proceeds of the Bond
(including investment earnings thereon) or the facilities constituting the Project in a manner t t
would result in the Bond not being "qualified small issue bond" within the meaning of section
141(e)
• the Code;
(b) to use at least 95 percent of the proceeds of the Bond to provide for the payment
of costs of the acquisition, construction, reconstruction or improvement of land or depreciable
property, and paid for subsequent to May 13, 1995-7
(c) during the six-year period be inning on a date three years prior to the date of iss's
9
*f the Bond and ending three years after such date, will not pay or incur or permit any relateR
merson or "Principal useC of the Project to pay Or incur capital expenditures (within the meanirlMI&
*f section 263 of the Code) for facilities located in Williamson County, Texas to the extent thm..
such expenditures when added to the aggregate face amount of the Bond would exce
$10,000,000; 1
(d) that the Company will be the only principal user of the Project,
(e) that all outstanding obligations the interest on which is exempt from federal income
taxation pursuant to section 103 of the Code which are allocated to the Company (or persons
related to the Company) do not as of the date of issue and will not, at any time during the three-
year period commencing on the later of such date or the date on which the Project was placed -in-
service, exceed $40,000,000,
R
(g) that the costs of issuing the Bond which are financed with proceeds of the Bond will
not exceed an amount equal to 2 percent of the proceeds received from the sale of the Bond. Such
amounts will not be taken into account in satisfying the requirement stated above that at least 95
percent of the Bond proceeds be used to provide the facilities;
GEORGETOWWMIPLE•S: DRAMAES 10/17/95 27
(h) that no portion of the proceeds of the Bond is to be used to provide the following:
an airplane, a skybox or other private luxury box, a facility primarily used for gambling or any
store the principal business of which is the sale of alcoholic beverages for consumption off
premises;
(1) to comply with the limitations imposed by section 147(c) of the Code (relating to
the limitation on the use of proceeds to acquire land) and section 147(d) of the Code (relating to
restrictions on the use of bond proceeds to acquire existing buildings, structures or other
property);
0) that the Company shall make such use of the proceeds of the Bond and any other
funds constituting Gross Proceeds (whether or not held by the Depositary under the Bond
Resolution) which are allocable to the Bond, restrict the investment Of such proceeds and other
funds, and take such further action as may be required so that the Bond will not constitute
"arbitrage bonds" under section 148 of the Code and the Regulations. in particular, but not by
way of limitation, the Company covenants that it will provide written instructions to the
Depositary with respect to investments in accordance with Section 7 of this Bond Resolution;
(k) that the Company shall immediately remit to the Depositary for deposit in the
Rebate Fund any deficiency with respect to the Rebate Amount as required by Article 11 of the
Indenture;
(1) the Company agrees to provide all information required with respect to Nonpurpose
Investments not held in any Fund under the Indenture; and
(in) that, at no time during the period which the Bond remains outstanding, will
proceeds invested in Nonpurpose Investments (within the meaning of section 148 of the Code) at
a yield higher than the yield on the Bond, other than amounts invested pursuant to an initial
temporary period or as part of a bona fide debt service fund, exceed 150 percent of the debt
service on the issue for the bond year and that the aggregate amount so invested will be promptly
and appropriately reduced as the amount of outstanding obligations constituting the Bond is
reduced.
The covenants and representations contained in Sections 4.05 and 4.06 of the Loan
Agreement are intended to assure compliance with the Code and any regulations promulgated by
the U.S. Department of Treasury pursuant thereto. In the event that regulations are hereafter
promulgated which modify or expand provisions of the Code, the Company will not be required
to comply with a covenant contained in this section to the extent that such failure to comply, in
the opinion of Bond Counsel, will not adversely affect the exemption from federal income taxation
of interest on the Bond under section 103(a) of the Code. In the event that regulations are
hereafter promulgated which impose additional requirements which are applicable to the Bond,
the Company and the Issuer agree to comply with such additional requirements to the extent
GrORGETOWWRIPLL-S: DRAFNAES 10/17195 28
necessary, in the opinion of Bond Counsel, to preserve the exemption from federal income
taxation of interest on the Bond under section 103(a) of the Code. In furtherance of such
intention, the Issuer hereby authorizes and directs the President or Vice President to execute any
documents, certificates or reports required by the Code and to make such elections, on behalf of
the Issuer, which may be permitted by the Code as are consistent with the purpose for the issuance
of the Bond.
In order to facilitate compliance with the above covenants (k), (1), and (in), a "Rebate
�wjg-f Ammca-_ and
such fund shall not be subject to the claim of any other person, including without limitation the
bondholders. The Rebate Fund is established for the additional purpose of compliance with
section 148 of the Code.
Section 16. NUSCELLANEOUS. (a) The President and the Secretary of the Board and the
Issuer Representative are each herebv authorized to executed and deliver such other instruments,
I
certificates, documents or papers, and approve changes required therein as they may deem advisable,
o"i6deem-advisabl; or-a"-riato-in-connectiia� ci
(b) All officers, employees, agents and representatives of the Issuer and its Board shall be and
are hereby expressly authorized, empowered and directed from time to time, and at any time, to do
�--u �hacts- an�dthinggs, and to execute and deliver in the name and under the official seat
and on behalf of the Issuer all such instruments, whether or not herein mentioned, as may be
necessary or desirable in order to carry out the terms and provisions of this Initial Bond Resolution
and of the Bond to be issued hereunder, as well as the terms and provisions of the Indenture. The
esi ee shall act and is herebw confirmed as the jresn�,� officer at a public heating
to be held as required by section 147(f) of the Internal Revenue Code of 1986.
(c) Based solely on representations made to the Board and to the Department by the
Company, it appears and the Board hereby finds and confirms as follows:
(1) that the Project described in the Agreement is required or suitable for the promotion of
commercial or industrial or manufacturing development and expansion, the promotion of
employment, or for use by commercial, manufacturing or industrial enterprises, irrespective of
the Board; and
(2) that the Project financed pursuant to the Agreement is in furtherance of the public
purpose of the promotion and development of new and expanded industrial and manufacturing
enterprises to promote and encourage employment and the public welfare and has a direct, positive
and favorable impact on employment within the City of Georgetown, Texas and Williamson County,
Texas.
GEORGrrOWNrMPLH-S: DRAF MRES 10/17Y95 29
Section 17. SALE OF THE BOND. At the specific request of the Company, the Bond is
hereby authorized to be sold, and shall be delivered to First of America Bank - Michigan, National
Association for the price of par.
Section 18. INDENTURE. The President or Vice President of the Board of Directors of
the Issuer are authorized and directed, for and on behalf of the Issuer to date, sign, seal and otherwise
execute the Indenture, in substantially the form and substance attached hereto as Exhibit B, with such
changes thereon and additions thereto as the officers executing same, or any other officers of the
Issuer may deem advisable, such determination to be conclusively evidenced by their execution
thereof. Upon execution by the parties thereto, the Indenture shall be binding upon the Issuer for all
purposes in accordance with its terms.
Section 19. THE AGREEMENT. The President or Vice President of the Board of
Directors of the Issuer are authorized and directed, for and on behalf of the Issuer to date, sign, seal
and otherwise execute the Agreement, in substantially the form and substance attached hereto as
Exhibit C, with such changes thereon and additions thereto as the officers executing same, or any
other officers of the Issuer may deem advisable, such determination to be conclusively evidenced by
their execution thereof. Upon execution by the parties thereto, the Agreement shall be binding upon
the Issuer for all purposes in accordance with its terms and conditions,
Section 20. APPOINTMENT OF -TRUSTEE. In the event a Trustee is appointed as
provided in the Indenture, any reference in this Initial Bond Resolution to Depositary shall mean the
Trustee. Any reference to Trustee shall be inoperative until such time, if ever, that a Trustee is
appointed in accordance with the Indenture.
PASSED AND APPROVED on the Lq,�,day of , 1995.
b
By: President, Board of Di ctors
4Secrer , Board of Directors
G1:0KG[.70WNt1*R11'L1-9: DRArn,us 10/17195 30
1 163 ON WATI 01 DION I
q
MIN
The Georgetown industrial Development Corporation has assigned to First of Americq
Bank - Michigan, National Association, as Depositary under the Indenture dated as of the date
hereof, all of its interests in all "Loan Agreement Payments" due pursuant to and under this Loan
Agreement to secure its Industrial Revenue Bond (Triple S Plastics, Inc. Project), Series 1995.
Triple S Plastics, Inc.
14320 Portage Road
P.O. Box E
Vicksburg, UT 49Q97-
UM��
Georgetown industrial Development Corporation
c/o Georgetown Industrial Foundation
P.O. Box 114
Georgetown, TX 78627
First of America Bank - Michigan, National Association, as Depositary
108 East Michigan Avenue
Kalamazoo, MI 49007
GEORGETOWNnRIPLE-S: LOANAGR.DR510/16195
(The Table of Contents is not a part of the Lean Agreement but is for convenience of
reference only.)
I U of 9111
Section 1.01. Definitions ............... ............. .... 1
Section 1.02. General Recitals, Findings, and Representations .............. 5
Section 2.01. Approvals and Permits . .. . -. -. .. 6
Section 2.02. Acquisition and Construction ... ... ........... . 6
• i1
Section 3.01-.
The Loan .. ......... . ..............._.......... , . 7
Section 3.02.
Security for the Loan ......... . ................... . 7
Section 3.03.
Repayment of Loan ....... . ...... . . . ............ . .. 7
Section 3.04.
Title ........ . ................. . ............... 8
Section 3.05.
Operation ................ ...................... 8
Section 3.06.
Indemnities ........ . ...... . .. g
Section 3.07.
Issuer's Limited Liability ....... ....... ... ....... . . 9'
Section 4.01.
Issuance of Bond ............... . ... . : ...... . ......
9`
Section 4.02.
Refunding of Bond ....... : ........................
10
Section 4.03.
Redemption of Bond ................. .... ........
10
Section 4.04,
Loan Agreement Payments ...........................
10
GEORGMWNn7RIPLE-S: LOANAGR.DRS 10/16/95
Section
4"05° No Arbitrage .~'`....,.'°,`......`...'`.~.~^"~~. 11
Section 4.06. Tax -Exempt Status ofInterest onthe Bond ................. lY
Section 4,07. Payments to Issuer ...,....,....~,,,.."^`...~^°.,~^ 13
Section 5~01. Covenant ,,..`,,.,'^,,..^^^',,."°°"-^"^..`~^`~. 1e1
Section 5�07^ Depositary, Trustee and Remedies ,~°'',,,....~..'..,... 14
Section 5,03. General Provisions ...~~,...,^~.`....`...,..""-..." 14
Section 6.01.
Corporate Existence ..,......,,',.,.,°,~,.,,`,.,`,.
15
Section 6.02.
Assignment ..^`~~....~.~^.°^°^'°"'=.^`'.''~....~
16
Section 6'03^
Financial and Other Reports,~^,,',,,,`,'`.',,,'".'`,°
16
Section 6.04^
Term Of Agreement...,,,..,,',...°.^..'..~°`^`~^.
16
Section 6.05.
Termination...................................
16
Section 6.06.
Notices .......,.,~,,.,...,^...,,^....."^.^.^".
16
Section 6.07�
Severability ',,°~,,^^^,°,,,,,'^^'^"..°.~......'.
17
Section 6.08.
Appointment OfTrustee .,....~^'.`.''...,~'r....`.'~^
17
Section 6^09'
Governing Law ,..'..°^,^,.^.'...,°.,,~.,,.,,.^^.
17
Execution by the Issuer
Execution by the Company
Exhibit A~ Project Description ..................................... A-1
`
i�
10/16195
LOAN AGREEMENT
This Loan Agreement dated as of October 1, 1995, between Georgetown Industrial
Development Corporation and Triple S Plastics, Inc.
WITNESSETH:
.. .... ....
Section 1.01. DEFENIFMONS. in addition to all other words and terms defined herein,
and unless a different meaning or intent clearly appears from the context, the following words and
terms, shall have the following meanings, respectively, whenever they are used herein:
Act - The Development Corporation Act of 1979, as amended (Article 5190.6, Vernon!
Annotated Texas Civil Statutes, as amended).
Agreement - This Loan Agreement, together with Exhibit A attached to this Loan
Agreement, and all amendments and suDplements to this Loan Agreement.
Approving Officer - Any representative of the Company as certified in writing by the
Company to the Depositary, together with specimen signatures.
Article - Any subdivision of this Agreement designated with a roman numeral.
Bond Counsel - An attorney or firm of attorneys experienced in matters relating to
municipal bond law and the tax exemption of interest on bonds of states and their political
subdivisions, selected by the Issuer and satisfactory to the Company.
Bond Resolution - The Initial Bond Resolution and each resolution of the Board of
Directors authorizing the issuance of the Bond (including the Indenture prescribed and authorized
to be executed in the Initial Bond Resolution) together with any supplemental resolutions or
amendments to such resolutions or such Indenture.
Bondholder - The owner of any Bond as shown on the Bond Registration Books kept by
the Depositary, as Registrar.
Bond - Any and all revenue bonds of the Issuer issued and delivered to finance and pay
for all or any part of the Cost of the Project pursuant to the Act and this Agreement, including
GEORG M-WNrMIPLE-S: LOANAGR.DR510/16/95 1
initial series or issues of revenue bonds and revenue bonds issued to finance and pay for all or any
part of the Cost of completing the Project, and any revenue bonds issued for the purpose of
refunding or replacing the Bond.
Code - The Internal Revenue Code of 1986, as amended, and the rulings and regulations
(including temporary and proposed regulations) promulgated thereunder or, to the extent
applicable, under the Internal Revenue Code of 1954, as amended.
Company - Triple S Plastics, Inc., a corporation organized and existing under the laws of
the State of Michigan and fully qualified to transact business in the State of Texas, and its
successors and assigns.
Construction Fund - The segregated account Or accounts into which certain proceeds from
the sale and delivery of the Bond will be deposited as provided in each Bond Resolution (exceptinA
any Bond Resolution authorizing revenue bonds to refund the Bond).
Cost - The costs incurred by the Issuer or the Company, whether incurred before the
issuance of the Bond pursuant to the Inducement Resolution or thereafter, with respect to the
acquisition, construction and improvement of the Project, including but not limited to, the
following items,
(ii) To the extent authorized by the Act, costs of all other items related to the
acquisition, construction and improvement of the Project; and
(iii) All Costs of Issuance.
Costs of Issuance - All costs and expenses incurred by the Issuer, the Depositary or the
Company in connection with the issuance and sale of the Bonds, including without limitation, (i)
GE0PGCMWN/1R1PLE-S: LOANAGILDR5 10/16/95 2
fees and reasonable expenses of accountants, attorneys and engineers, (d) materials, supplies and
printing costs and (iii) recording and filing fees.
Debt Service Fund - The segregated account or accounts in which Loan Agreement
FD?ayments will be deposited as provided in each Bond Resolution.
li'111511 I i i � i I I � � � I I I � � �1111111 11 1 i 11111111 1 1111111111 i 111111111 11111 11 �1! ;1 !ill 1111 1 ill I ii
rip H i�iiiiiii i ill 1111 lill glill !FF
rl"r! I ! I � i I
I I -- I
=11183��Zlll Fllllpllijlgl!� ill
Eligible Securities - To the extent they are legal investments for the Depositary, any
authorized investments set forth in the Public Funds Investment Act, Chapter 2256, Government
code, as amended from time to time.
Governmental Unit - The City of Georgetown, Texas, a political subdivision of the State
of Texas.
Guaranty - The Guaranty Agreement dated as of.October 1, 1995 between the Company
and First of America Bank - Michigan, National Association, as such document may be amended
from time to time.
Indenture - The indenture, including all supplements and amendments thereto, prescrible
in and executed and!- livered pursuant to the Initial Bond Resolution. I
inducement Resolution - The "Resolution Taking Affirmative Official Action Towards the
Issuance of the Bond to Provide a Manufacturing Project for Triple S Plastics, Inc." approved by
the Issuer on July 12, 1995.
Initial Bond Resolution - The Bond Resolution adopted on October 17, 1995 by the Board
of Directors, authorizing the issuance and delivery of Georgetown Industrial Development
Corporation Industrial Revenue Bond (Triple S Plastics, Inc. Project), Series 1995 in the
aggregate principal amount of $5,000,000.
Lease Assignment - The Lease Assignment dated as of October 1, 1995 from the Company
to First of America Bank - Michigan, National Association, as such document may be amended
from time to time.
Loan - The loan of the proceeds of the sale of the Bond as described in Section 3.01.
Gr0RGFr0WN/M1PLE-S: LOANAGR,DR5 10/16/93:..
0/16/95 3
Loan Agreement Payments - Payments required to be made by the Company to amortize
each series or issue of the Bond and to pay other amounts due with respect to the Bond, all as
provided for in the applicable Bond Resolution, including (1) the principal of, redemption
premium, if any, and interest on such Bond when due (whether at stated maturity, upon
redemption prior to stated maturity, or upon acceleration of stated maturity), (2) any agreed
liquidated damages owed by the Company to the Bondholders, (3) all fees and expenses of the
Depositary, Registrar, and any Paying Agent for such Bond, and (4) any other payments required
by such Bond Resolution or the Indenture, other than the fees and expenses of the Issuer.
Paying Agent - The Depositary and any other paying agent for the issue of the Bond named
in the Bond Resolution authorizing such Bond.
Project - The equipment and facilities described in Exhibit A to this Agreement.
Project Location - 107 ACM Way, Georgetown, Williamson County, Texas.
Registrar - The registrar for the Bond named in the Bond Resolution.
Regulations - The regulations promulgated by the United States Treasury Department
pursuant to the Code.
Section - Any subdivision of this Agreement designated by Arabic numerals.
Security Agreement - The Security Agreement dated as of October 1, 1995 between the
Company and First of America Bank - Michigan, National Association, as such document may
be amended from time to time.
Trustee - The corporate trustee referred to under the Indenture, and its successors or
assigns.
United States - The United States of America
References in the singular number in this Agreement shall be considered to include the
plural, if and when appropriate.
Section 1.02. GENERAL RECITALS, FINDINGS2 AND REPRESENTATIONS. (a)
The Issuer is a nonstock, nonprofit industrial development corporation organized and existing
under the laws of the State of Texas, including particularly the Act.
(b) The Issuer is a duly constituted authority and public instrumentality of the
Governmental Unit, a political subdivision of the State of Texas, within the meaning of the
Regulations and the rulings of the Internal Revenue Service prescribed and promulgated pursuant
GEORG M-1OWNrMIPLE-S: LOANAGR.DR510/16/95 4
to Section 103 of the Code, and the Issuer is functioning and acting solely on behalf of the
Governmental Unit.
(c) The Company is fully qualified to transact business in the State of Texas, and is
fully authorized by law and corporate proceedings to execute this Agreement.
(d) This Agreement is authorized and executed pursuant to applicable laws, including
the Act.
(e) The Company has requested the Issuer to finance the Cost of the Pro'
9 ect.
(f) The Issuer has determined, in the public interest, that it will finance the Cost of the
Project, and loan money to the Company for such purpose in the manner provided in the Act and
this Agreement.
(g) The governing body of the Governmental Unit has approved this Agreement by
written resolution as required by the Act and the governing body of Williamson County, Texas
has approved the issuance of bonds by the Issuer as required by the Act.
(h) The Issuer and the Company have taken all action and have complied with all
proons of law with respect to the execution, delivery and performance of this Agreement and
the due authorization of the consummation of the transactions contemplated hereby, and this
Agreement has been duly executed and delivered by, and constitutes a valid and legally binding
agreement of, the Issuer and the Company, enforceable against the respective parties in
accordance with its terms.
(i) The execution of this Agreement and the performance of the transactions
contemplated hereby will not violate any law or regulation, or any Articles of Incorporation,
Charter, or Bylaws, or any judicial order, judgment, decree, or injunction, or contravene the
provisions of or constitute a default under any agreement, indenture, bond resolution, or other
instrument to which the Issuer or the Company is a party.
The Company represents to the Board and the Department that (1) the Project will
contribute to the economic growth or stability of the Governmentat Unit by (aa) increasing or
stabilizing employment opportunities in the Governmental Unit, (bb) significantly increasing or
stabilizing the property tax base of the Governmental Unit and (cc) promoting commerce within
the Governmental Unit and the State of Texas; (2) it has no present intention of using or moving
any portion of the Project out of the State of Texas or disposing of or abandoning the Project, ani
(3) it has no present intention of directing the Project to a use other than the purposes represented
to the Governmental Unit and the Department.
GEORGCMWN(rP1PLE-8: LOANAGR,DRS 10/16/95 5
NOW THEREFORE, in consideration of the covenants and agreements herein made, a 4
Is
subject to the conditions herein set forth, the Issuer and the Company contract and agree
follows -
Section 2.01. APPROVALS AND PERMITS. The Issuer and the Company agree to
use their best efforts to obtain the necessary approval of this Agreement by the Department as
required by the Act, prior to the issuance of the Bond, and to obtain all other permits necessary
with respect to the acquisition, construction, equipping, and furnishing of the Project.
Section 2.02. ACqUISITION AND CONSTRUCTION. (a) The Project shall be
acquired, constructed, equipped, and furnished with all reasonable dispatch, and the Company will
use its best efforts to cause such acquisition, construction, equipping, and furnishing to be
completed as soon as practicable, delays incident to strikes, riots, acts of God, or the public
enemy, or other causes beyond the reasonable control of the Company only excepted-, but if for
any reason there should be delays in such acquisition, construction, equipping, and furnishing
there shall be no diminution in or postponement of the Loan Agreement Payments to be made by
the Company hereunder, and no resulting liability on the part of the Issuer.
sale of the Bond will be used to reimburse the Company for, or to pay (and the Company hereby
covenants and agrees not to request reimbursement of or payment for) any part of the Cost of the
Project if such use or payment would result in a violation of any of the Company's covenants
contained in Section 4.06. Each Bond Resolution (excepting any Bond Resolution authorizing
revenue bonds to refund the Bond) shall contain appropriate provisions with respect to the
Construction Fund, to be drawn on and administered as provided in such Bond Resolution.
FINANCING THE PROJECT;
TITLE AND OPERATION
Section -3.01. THE LOAN. The Issuer shall make the Loan to the Company by
depositing into the Construction Fund (or such other fund as specifically provided in the Bond
Resolution) the proceeds from the sale of the Bond in such amount as is provided in each Bond
Resolution. The amounts so deposited shall be, advanced in the manner provided in the Bond -
Resolution; and the Company shall repay the Loan by making the Loan Agreement Payments as
provided in this Agreement and the Bond Resolution.
Section 3.02. SECURITY FOR TBE LOAN. The obligations of the Company under
this Agreement shall be direct general obligations of the Company. Prior to or simultaneously
with the issuance of the Bond, the Issuer will assign to the Depositary under the terms of the
Indenture all of the Issuer's right, title, and interest in and to the Loan Agreement Payments. In
addition, it is recognized and understood that the Security Agreement and the Lease Assignment
has been given by the Company as additional security for the payment of Loan Agreement
Payments for the benefit of the owners of the Bond.
I I A
-it WMW.U. I Wt
GE0RGffr0WNfrR1PLE-S: LOANAGR.DR510116195 7
as all Loan Agreement Payments shall have been made or provision therefor shall have been made
in accordance with each Bond Resolution and the Indenture, the Company: (i) will not suspend
or discontinue, or • the suspension or discontinuance of, any payments provided for in this
a W, 1W -• ar
GrORGL-COWN(rR1PLE-S: LOANAGR.DR510/16/95 8
like the Project. It is understood and agreed that the Issuer shall have no duties or responsibilities
whatsoever with respect to the operation or maintenance of the Project, or the performance of the
Project for its designed purposes.
14 1 11 MOD 1121 V I I
(b) If any claim is asserted under (a) above, the party seeking indemnity will give
prompt notice to the Company, and the Company shall have the sole right and duty to assume,
and will assume, the defense thereof, with full power to litigate, compromise, or settle the same
in its sole discretion.
Section 3.07. ISSUER'S LEMMD LUBELITY. It is recognized that the Issuer's only
source of funds with which to carry out its commitments with respect to the Project and this
Agreement will be from the proceeds from the sale of the Bond; and it is expressly agreed that
the Issuer shall have no liability, obligation, or responsibility with respect to this Agreement or
the Project except to the extent of funds available from such Bond proceeds. If, for any reason,
the proceeds from the sale of the Bond are not sufficient to pay all the Cost of the Project, the
Company shall complete the Project and pay all such Cost from its own funds, but it shall not
GEORGI:fOWNtrRIP4G•S: LOANAGROR5 10/Ib/95...
0/16/95 9
be entitled to reimbursement therefor unless additional Bonds are issued for such purpose, or to
7-ny diminution in or postponement of any payments required to be made by the Company
hereunder.
section 4.ot. issuANcE oF BOND. (a) In consideration of the covenants and
agreements set forth in this Agreement, and to enable the Issuer to issue the Bond to carry out the
intents and purposes hereof, this Agreement is executed to assure the issuance of such Bond, and
to provide for the due and punctual payment by the Company to the Depositary of the Loan
Agreement Payments. The Company shall make the Loan Agreement Payments, for the benefit
of each issue of the Bond, to the Depositary for deposit into the Debt Service Fund as provided
in each Bond Resolution.
GEORGETOWNfMIPLE-S: LOANAGR,DR5 10/16!93 10
issues, in aggregate principal amounts sufficient to pay the Cost of the Project.
Notwithstanding f ._ _ to the contrary, no additional bondsr
refunding bonds shall be issued without the approval of the Department.
Section 4.02. REDEMPTION OF BONDS. Provision shall be made in each Bond
Resolution for the redemption of the Bond prior to maturity, under such terms and conditions as
shall be set forth therein. The redemption of any outstanding Bond prior to maturity at any time
shall not relieve the Company of its unconditional obligation to pay remaining Loan Agreement
Payments, if any, as specified in any Bond Resolution or the Indenture. The Company also shall
comply with and be bound by all provisions of this Agreement and of each Bond Resolution and
the Indenture with respect to the mandatory and optional redemption of the Bond.
Section 4.03. LOAN AGREEMENT PAYMENTS. (a) Payment of all Loan
Agreement Payments shall be made and deposited as required by each Bond Resolution and the
Indenture including all such payments which may come due because of the acceleration of the
maturity or maturities of the Bond upon default, or otherwise, under the provisions of the
Indenture. if any available funds in excess of current requirements are held on deposit in the Debt
Service Fund at the time payment of any Loan Agreement Payment is due, such payment may be
reduced by the amount of the funds so held on deposit. Subject to the terms of the Bond, the
Company shall have the right to prepay all or a portion of any Loan Agreement Payment at any
Any such prepayment by f !. not - of .l for each remaining
Indenture.Loan Agreement Payment as provided in this Agreement and each Bond Resolution and the
(b) Recognizing that the Loan Agreement Payments will be the Issuer � S sole source for
the payment and performance of its obligations to the Depositary, any Paying Agent and the
Bondholders under each Bond Resolution and the Indenture, when the Bond is delivered, the
Company shall be unconditionally obligated to make and pay, or cause to be made and paid, each
Loan Agreement Payment regardless of whether or not the Company actually acquires or
completes the Project, or whether or not the Company actually approves, purchases, receives,
accepts, or uses the Project-, and such payments shall not be subject to any abatement, set-off,
recoupment, or counterclaim; and the Bondholders shall be entitled to rely on this agreement and
representation, notwithstanding any provisions of this Agreement or any other contract or
agreement to the contrary, and regardless of the validity of, or the performance of, the remainder
of or s or agreement.
(c) The amounts payable by the Company hereunder shall remain due and payable by
the Company, notwithstanding any release, extinguishment or satisfaction (pursuant to Subchapter
E of Article 9 of the Texas Business and Commerce Code, or pursuant to any other statute,
regulation, document or agreement) of the Issuer's obligations to make payments of principal and
interest on the Bond until there shall have been paid to the holders of the outstanding Bond or the
GF.OKG6P05YN/'rR1P1.G-S: LOANAGRM10 10116/r)s.... 1'
Depositary in lawful currency of the United States an amount Sufficient to pay all principal and
interest (including interest on overdue amounts of principal and to the extent permitted by
applicable law interest) and any agreed liquidated damages that would have been due and owing
to the holders of the Bond had the Issuer's obligations not been so released, extinguished or
satisfied.
Section 4.04. NO ARBITRAGE. The Issuer and the Company hereby covenant with
each other and with the Bondholders that they will make no use of the direct or indirect proceeds
of the Bond at any time which will cause the Bond to be an arbitrage bonds within the meaning
Of Section 148 of the Code or the Regulations pertaining thereto-, and by this covenant the Issuer
and the Company are obligated to comply with the requirements of the aforesaid Section 148 and
the pertinent Regulations.
Section 4.05. TAX-EXFWT STATUS OF INTEREST ON THE BOND. The
riS
Company and Issuer covenant to refrain from such action which would adver ely affect the
treatment of the Bond as obligations described in section 103 of the Code, the interest on which
is excludable from "gross income" of the holder for purposes of federal income taxation. In
furtherance thereof, the Company covenants as follows -
(a) not to use or invest nor to permit the use or investment of proceeds of the Bond
(including investment earnings thereon) or the facilities constituting the Project in a manner that
would result in the Bond not being "qualified small issue bond" within the meaning of section
141(e) of the Code;
(b) to use at least 95 percent of the proceeds of the Bond to provide for the payment
of costs,of the acquisition, construction, reconstruction or improvement of land or depreciable
property, and paid for subsequent to May 13 7 19951
(c) during the six-year period beginning on a date three years prior to the date of issue
of the Bond and ending three years after such date, will not pay or incur or permit any related
person or "Principal user" of the Project to pay or incur capital expenditures (within the meaning
of section 263 of the Code) for facilities located in Williamson County, Texas to the extent that
such expenditures when added to the aggregate face amount of the Bond would exceed
$10,000,000;
(d) that the Company will be the only principal user of the Project,
(e) that all outstanding obligations the interest on which is exempt from federal income
taxation pursuant to section 103 of the Code which are allocated to the Company (or persons
ue and will not- at an-,,,, time during the three-
year period commencing on the later of such date or the date on which the Project was placed4n-
0
service, exceed $40,000,000;
GrORGL-rOWN(rR1PLE-S: LOANAGR,DR5 10/16/93 12
(1) the Company agrees to provide all information required with respect to Nonpurpose
Investments not held in any Fund under the Indenture; and
GCORGL-rOWN(rRIPLE-S: LOANAGR,DR5 10/16195 13
(in) that, at no time during the period which the Bond remains outstanding, will
proceeds invested in Nonpurpose Investments (within the meaning of section 148 of the Code) at
a yield higher than the yield on the Bond, other than amounts invested pursuant to an initial
temporary period or as it of a bona fide debt service fund, exceed 150 percent of the debt
service on the issue for the bond year and that the aggregate amount so invested will be promptly
and appropriately reduced as the amount of outstanding obligations constituting the Bond is
reduced.
In order to facilitate compliance with the above covenants (k), (1), and (in), a "Rebate
Fund" is hereby established by the Issuer for the sole benefit of the United States of America, and
such fund shall not be subject to the claim of any other person, including without limitation the
bondholders. The Rebate Fund is established for the additional purpose of compliance with
section 148 of the Code.
Section 4.06. PAYMENTS TO ISSUER. From the proceeds of the sale and delivery
of each issue of Bond there shall be paid all of the Issuer's reasonable, actual out-of-pocket
expenses and costs of issuance in connection with such Bond, including, without limitation, all
financing, legal, printing, and other expenses and costs of issuance incurred in issuing the Bond.
In addition, the Issuer shall receive out of such Bond proceeds an amount equal to the amount
specified in each Bond Resolution to pay and reimburse the Issuer for its administrative and
overhead expenses directly attributable and chargeable to the issuance of the Bond and the
acquisition, construction, equipping, and furnishing of the Project.
Section 4.07. PAY NT TO REBATE FUND. The Company hereby covenants and
agrees to make the determinations and to pay any deficiency in the Rebate Fund, at the times and
as described in the Initial Bond Resolution. In any event, if the amount of cash held in the Rebate
Fund shall be insufficient to permit the Depositary to make payment to the United States of any
GEORGUrOWNfM1PLE-S: LOANAGR.DR5 10/16/95 14
amount due under Section 103(c)(6)(D) of the Code, the Company promptly shall pay the amount
of such insufficiency on such date to the Depositary in immediately available funds. The
obligations of the Company under this Section 4.07 are direct obligations of the Company, and
the parties hereto agree that the Issuer shall have no obligation or duty with respect to the Rebate
Section 5.01. COVENANT. The Company unconditionally agrees and covenants with
the Issuer and the Depositary that it will pay, or cause to be paid, when due, each Loan
Agreement Payment required and prescribed to be paid by it pursuant to each Bond Resolution.
The Company further unconditionally agrees and covenants to pay all reasonable expenses and
charges, legal or otherwise (including court costs and attorneys' fees), paid or incurred by the
Issuer and the Trustee in realizing upon any of the said payments to be made by the Company or
in enforcing the provisions of this Agreement or any Bond Resolution or the Indenture.
Section 5.02. DEPOSITARY, TRUSTEE AND REMEDIES. (a) The Company is
advised and recognizes that the issuer will assign all of its right, title, and interest in and to all
the Loan Agreement Payments required to be made pursuant to this Agreement, and the right to
receive and collect same, pursuant to the terms of the Indenture. The Depositary, the Trustee,
if appointed pursuant to the Indenture or the Bondholders to the extent provided in the Bond
Resolution and the Indenture, may enforce the obligations of the Company under this Agreement,
the Bond Resolution, and the Indenture in the manner provided in the Indenture, without the
necessity of making the Issuer a party.
(b) In the event of a default in the payment of any Loan Agreement Payment, or in the
performance of any agreement or covenant contained herein or in any Bond, any Bond Resolution,
the Security Agreement, the Lease Assignment, the Guaranty or the Indenture, such payment and
performance may be enforced by mandamus or by the appointment of a receiver in equity with
power to charge and collect Loan Agreement Payments and to apply such revenues in accordance
with this Agreement, the Bond, each Bond Resolution, and the Indenture.
Section 5.03. GENERAL PROVISIONS. (a) The terms of this Agreement may I
it�nfbrced as to one or more breaches either separately or cumulatively. M
(b) No remedy conferred upon or reserved to the Issuer, the Trustee, or the
Bondholders in this Agreement is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in addition to every
*1ther remedy now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default, omission, or failure of performance
15 `
hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be deemed
expedient. In the event any provision contained in this Agreement should be breached by the
Company and thereafter duly waived, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach of this Agreement. No waiver by
either party of any breach by the other party of any of the provisions of this Agreement shall be
construed as a waiver of any subsequent breach, whether of the same or of a different provision
of this Agreement.
(c) Headings of the Articles and Sections of this Agreement have been inserted for
convenience of reference only and in no way shall they affect the interpretation of any of the
provisions of this Agreement.
(d) This Agreement is made for the exclusive benefit of the Issuer, the Trustee, the
Bondholders, the Department and the Company, and their respective successors and assigns herein
permitted, and not for any other third party or parties; and nothing in this Agreement, expressed
or implied, is intended to confer upon any party or parties other than the Issuer, the Trustee, the
Bondholders, the Department and the Company, and their respective successors and assigns erein
permitted, any rights or remedies under or by reason of this Agreement.
(e) The validity, interpretations, and performance of this Agreement shall be governed
by the laws of the State of Texas.
4
IMPONIMMAM
provided herein an in any fionct Nesolution or t e
or affect Sections 4.04, 4.05 or 4.06.
GEORGETOWNMPLP-S: LOANAGR.DR510/16/95 16
Notwithstanding anything in this Agreement to the contrary, the Project shall be used only
for the purposes as set forth in the Act and as approved by the Department.
Section 6.01. CORPORATE EXISTENCE. (a) The Company agrees that throughout
the term of this Agreement it shall maintain its corporate existence and shall not dispose of all or
substantially all of its assets. In the event the Company shall consolidate with or merge into
another entity or permit one or more entities to consolidate with or merge into it, any surviving,
resulting or transferee entity shall be qualified to do business in the State and shall assume in
writing or by operation of law all of the obligations of the Company under this Loan Agreement.
(b) The Company covenants that it is and, throughout the term of this Agreement, unless
relieved of liability pursuant to paragraph (a) above, that it will continue to be a corporation
organized under the laws of the State of Michigan and authorized to do business in the State of
Section 6.02. ASSIGNMENT, LEASING, E . (a) The Company may lease
any portion of the Project with the prior written consent of the Depositary provided that the
Company delivers to the Issuer and the Depositary in connection with any such leasing an opinion
of Bond Counsel that subsequent to the execution of the lease, interest on the Bond will remain
wholly excludable from gross income of the Bondholders for federal income tax purposes. No
leasing shall relieve the Company from primary liability for any of its obligations hereunder, and
in the event of any such leasin the Company shall continue to remain primarily liable for the
payment of Loan Agreement Payments and for performance and observance of the other
agreements herein on its part to be performed and observed.
Subject to the prior written consent of the Depositary, this Agreement may be assigne
in whole or in part, and the Project may be sold, transferred or conveyed as a whole or in pa
by the Company without the necessity of obtaining the consent of the Issuer subject, however,
the following conditions -
(i) No assignment, sale, transfer or conveyance shall relieve the Company from
primary liability for any of its obligations hereunder, and if any such assignment occurs, the
Company shall continue to remain primarily liable to make the payments required to be made by
the Company hereunder and for performance and observance of the other agreements on its part
herein provided to be performed and observed by it;
(ii) The assignee or purchaser shall assume the obligations of the Company
hereunder to the extent of the interest assigned, sold, transferred or conveyed,
--`~-~~~�-- ------- ------17-
(Ili) The Company shall, within thirty (30) days after the delivery thereof, furnish
or cause to be furnished to the Issuer and the Depositary a true and complete copy of each such
assignment or sale agreement, as the case may be, together with (A) any instrument of
assumption, and (B) an opinion of Bond Counsel that such assignment or sale agreement will not
adversely affect the exclusion of interest on the Bond from gross income of the Bondholders for
federal income tax purposes; and
(iv) The assignee, transferee or purchaser shall continue to use the Project for
purposes permitted under the Act for the term of this Agreement.
(b) Except as provided in this Section, machinery and equipment financed with the
proceeds of the Bond shall remain at the Project Location. The Company may remove any
machinery or equipment comprising a part of the Project upon substituting therefor property of
like nature having a fair market value of not less than the removed property, provided that such
substitution shall not impair the exclusion of interest on the Bond from gross income for federal
income tax purposes. Any such substituted machinery and equipment shall be identified in writing
by the Company to the Depositary and shall become a part of the Pro . ect and be included under
the terms of this Agreement. The Company may, with the consent of the Depositary, sell any
MG a i�cortion of the Pro�ect without substitution therefor so long
as (i) the removal of such machinery and equipment from the Project will not, in the opinion of
the Depositary, adversely alter the scope, character or operation of the Project and (ii), in the
opinion of Bond Counsel, such removal will not impair the exclusion of interest on the Bond from
gross income for federal income tax purposes. Unless otherwise consented to by the Depositary,
the Company shall pay into the Debt Service Fund the proceeds from such sales without
substitution when such proceeds exceed 5 % of the original principal amount of the Bond, and such
proceeds shall be treated as surplus Construction Fund moneys and applied as provided in Section
7 (o) of the Initial Bond Resolution hereof.
Section 6.03. FINANCL4L AND OTHER REPORTS. The Company shall furnish the
Bondholder, the Depositary and Trustee, if appointed, with all financial statements and other
information required by the Guaranty Agreement.
Section 6.04. TERM OF AGREEMENT. The term of this Agreement shall be from
the date hereof until all payments required to be made by the Company pursuant hereto shall have
been made, provided, however, that the provisions of Sections 3.06, 4.05 and 4.06 shall survive
the termination of this Agreement and shall continue in effect regardless of the termination of this
Agreement.
Section 6.05. TERMINATION. This Agreement may be terminated by mutual
agreement at any time prior to the delivery of and payment for the Bond. However, if the Bond
has been issued and delivered, the term of this Agreement shall be as set forth in Section 6.04,
and this Agreement may not and shall not be sooner terminated by either or both parties hereto.
GCORG1:1'OWNfrR1PLH-S: LOANAGR,DR5 10/18/95 18
Section 6.06. NOTICES. Any notice, request, or other communication under this
Agreement shall be given in writing and shall be deemed to have een given by e ther party to t e
other party upon either of the following dates -
(a) Three business days after the date of the mailing- thereof, as shown by the post
office receipt, if mailed to the other party hereto by registered or certified mail at the applicable
address as follows:
Georgetown industrial Development Corporation
c/o Georgetown Industrial Foundation
P.O. Box 114
Georgetown, TX 78627
Triple S Plastics, Inc.
14320 Portage Road
P.O. Box E
Vicksburg, MI 49097-0905
or the latest address specified by such other party by written notice given in accordance with this
Section 6.06; or
(b) The date of the receipt thereof by such other party if not so mailed by registered
or certified mail. -
Any notice, request, or other communication made or given under this Agreement shall
be given to the Depositary by registered or certified mail at the applicable address as follows:
First of America Bank - Michigan, National Association
Attention: Commercial LoanDepartment
108 East Michigan Avenue
Kalamazoo, MI 49007
or the latest address specified by said Depositary by written notice given in accordance with this
Section 6.06, and to the Department at the address specified in Article 13 of the Indenture.
Section 6.07. SEVERABELITY. If any clause, provision, or Section of this Agreement
should be held illegal or invalid by any court of competent jurisdiction, the invalidity of such
clause, provision, or Section shall not affect any of the remaining clauses, provisions, or Sections
hereof and this Agreement shall be construed and enforced as if such illegal or invalid clause,
provision ' or Section had not been contained herein. In case any agreement or obligation
contained in this Agreement should be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of the Issuer and the Company, as
the case may be, to the full extent permitted by law.
GEORGETOWNfMIPLE.S: LOANAGR,DR5 10/16/95 19
Section 6.08. APPOMMENT OF TRUSTEE. In the event a Trustee is appointed as
provided in the Indenture, any reference in this Loan Agreement to Depositary shall mean the
Trustee and any reference to Trustee shall be inoperative until such time, if ever, that a Trustee
is appointed in accordance with the Indenture.
Section 6.09. GOVERNING LAW. This Loan Agreement shall be governed exclusively
by and construed in accordance with the applicable laws of the State of Texas.
Section 6.10 REPRESENTATToN REGARDING SALES OR USE TAiS. By virtue
of the Project being financed under the Act, the Company has not and will not maintain that it is
entitled to an exemption from Texas sales or use taxes on personal property acquired in connection
with the Project.
GEORGErOWNnRIPLE.S: LOANAGR.DR3 10116195 20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
in multiple counterparts, each of which shall be considered an original for all purposes, as of the
day and year first set out above.
I M-- X MM -MM
wel 'mun) I&M V
By 22Lz�-<
President, Board of Directeks
B
Title: Chief Financial Officer,
Frederic A. Flodin
GEORGETOWN(rKIPLU-S: LOANACK.DR3 10/1619) 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
in multiple counterparts, each of which shall be considered an original for all purposes, as of the
day and year first set • ,e•
0
"USUMAL 1 *.ID1�4T
CORPORATION
By
President, Board of Directors
By,?
Title: ehief Financial 6fflcer,
Frederic A. Flodin
GLORGETOWNMPLE.S: I.OANAGR.DR4 10110195 21
MT! '
AND
1 0 0
GEORGEMWNfrRIPLE-S: TRUSnND.DR410/12/95
TITLE
Parties, . ~. . . ~ . . -. . . _ . . . . . . .. . - -- - . . . - . _ ' . _- ' ' '
rue*^u�u . ,` . , -, . , . . , , ... , . - . . . . . . . . . , . . . . ' . - . , . . ' ' - ' ' ' '. . ' . ^ . '' ' ` .
Granting Clause ,,,.,.,.................... _-.--''.-''''^`^.'^^.
Article l, Debt Service Fund, Rebate Fund ,And Construction Fund ...........
' to the Company .-.........
/ml Calculation
~~ of
Interest Payment ,_,,'.....................
-' -
'-' -_ofAmount_
TJoe',.,`.,.'-,.~',.-..'-_................
`-=
_--_
Article
qi Accounts and Records -..,-..~~..._-..........
`
(m) Separate Records t0beKept ....... ...—,..--..-....... -........
fhlAnnual Report ... ,,.,,,```,'.,,..,....'.~....................
/cY ight to Inspect r~.^—`^`'``^`^^`-'`—'~--''-----''--``-`'-.'
Article 4. Concerning the..,. .............................
(n) NotAccountable for Bond Proceeds ......... ........... -^'-.''=^'
(b) Reliance by Depositary .,'.^,_',,'``....,,.~..._.-_............
'
(c) Compensation
from Depositary from Debt Service Fund _.............
/6\ Limited Responsibilities ... '`"^```'..r'',-.-.~ ...............
-'"
(+) Advice .._-',='^``'...... ``^-~.,''`,.—..'...................
(f)Depositary�Ym. �(]x�nthe l�ond.... �.._�.`,.`'.'''.',.,...........
.
(g) Fees .................... .........................
~ Depositary /6l ,_='''.~,,�................ ~..........
~'
(i) Removal of Depositary '-,,'.''.=',^"''^~-',,''^^^`'~--'--''''''-
/) Appointment of Successor Depositary '. �'..'``,.'''-'`''^'--.......
(k) Transfer to Successor Depositary .............................
-.--
A\ Merger or Consolidation of Depositary ,`".—`,'.......... ,... —`...
i
Article 5. Events of Default .......... ........................
7
(a)
Events of Default .................. ..........................
7
(b)
Enforcement of Rights by Bondholder in case of Default ...............
8
Article 6. Enforcement of Rights In Case of Default and Appointment of Trustee
10
(a)
Appointment of Trustee . : ....... ....... ........
10
(b)
Acceptance of Trust ...... ...... ........... . . . ..........
10
(c)
Rights of the Holder ....... .....................
11
(d)
Control by Trustee . ............ .....................
I
(e)
Declaration of Principal and Interest Due . . . . ............. .........
I
(f)
Enforcement by Trustee . : .... ............ ..............
I
(g)
Remedies Non-exclusive ......... ........ .............
12
(h)
Waiver of Defaults ...... ............ ........................
12
(i)
Application of Moneys ..._....::..: ....................:........
12
0)
Judicial Proceedings ......... .................................
13
(k)
Enforcement of Remedies Without Possession of the Bond .............
13
(1)
Direction by Majority in Principal Amount of Bondholder ...............
13
(m)
Notice by Trustee .............. ....... ........ ......
14
(n)
Default of Payments . ......................................
14
Article 8. Release of Indenture and Satisfaction Of Indebtedness . . ..........
14
Article 9. Amendments ........................... ....
14
Article 10, Miscellaneous Provisions .... ...................... ..... ....
15
(a)
Acknowledgements and Ownership of the Bond .......... ....... ...
15
(b)
Trustee May Require Proof Of Ownership ....... ..........
15
(c)
Consent of Bondholder. ,........................ .......... ...
15
(d)
Survival of Valid Bond ........... ....... ........... .....
15
(e)
Unclaimed Funds . . . . .......... ..............................
15
GEORGETOWNIMIPLE-S: TRUMNDMR410/12/95 ii
/_������
f\ ... .......... ...._.,.....-..~-..--..--.._....
``
(�) Severability , ~ ' , , , . , ,^ , , ' , ' , ,' , . ' , , , , ' . . _ . , . `_ . . . _ . . _. . . .. . . .
(b)--_ .........................................Article
D. Covenants Regarding Rebate ..,-...~.``''`^'-''---'_--'---'-
Articbe 12^ Notices . . , . , . , ~ , . . . ` . , , . . . . . , .. . , . _ . . , .. . . .~ . . ' , . - -
Article 13. Recording '^^.~r.,~,,.`_`,'`',^~''^~'^`
/a\Issuer and Trustee to Record ..^".,,~......
(b) ^'~-',.,..''..''.'-..--,,.................
Article 14` Notice to Texas' - Department of Commerce' ^ ^ ' - ' ~ — ` ` - - ' ' - - - - --
Article I5i Appointment ofTrustee .............................
,_.^.--.
iii
W01
It
11analolkilLim
THE STATE OF TEXAS
GEORGETOWN INDUSTRILAL DEVELOPMENT CORPORATIO1
THIS ViDENTURE, dated as of October 1, 1995, executed by and between Georgetown
Industrial Development Corporation (the "Issuer"), a nonstock, nonprofit industrial development
corporation organized and existing under the laws of the State of Texas, including particularly the
icle 5 190.6, Vernon s Annotated Texas CiviL
Statutes, as amended) (the "Act"), and First of America Bank - Nfichigan, National Association, a
national banking association duly organized and existing under the laws of the United States of
America (as both "Bondholder" and i-•#
WITNESSETH THAT:
WHEREAS, a "Loan Agreement between Georgetown Industrial Development Corporation
and Triple S Plastics, Inc.," dated as of October 1, 1995 (the "Agreement") has been duly executed
between the Issuer and Triple S Plastics, Inc. (the "Company"), with the Company being a
corporation organized and existing under the laws of the State of Nfichigan and being fully qualified
to transact business in the State of Texas, and
WHEREAS, an executed copy of the Agreement, has been filed with the Depositary, ant
K911111
F,fflMK4:Fg1M1 71,
1,1119
. IFIVIMUM1011MV1,10FTeN I I
bonds'y issue tne Initt on , e funcYn, 11M
"Bonds"; and
WHEREAS, a certified copy of the Initial Bond Resolution has been duly filed with the
Depositary; and
WHEREAS, pursuant to the Initial Bond Resolution, a certified copy of each resolution
authorizing the issuance of each series or issue of Additional Bonds shall be filed with the Depositary
prior to the delivery thereof, and
GEORMOWN/TRIPLE-S: TRUMND.DK410/12/95
t
resolutionWHEREAS, as used in this Indenture the word "Bond Resolution" shall mean and include
collectively the Initial Bond Resolution (including the Indenture prescribed and authorized to be
executed in the Initial Bond Resolution) and, when adopted and filed with the Depositary, each
# of AdditionalBonds 0`. . with any supplementalresolutions
or - # to such resolutionsor d and
WHEREAS, pursuant to the Agreement and the Bond Resolution and subject to the terms
and provisions thereof, the Bond, the redemption premium, if any, and the interest thereon, are and
shall be payable from and secured by a first lien on and pledge of the payments designated "Loan
Agreement Payments'� to be made or paid, or caused to be made or paid, by the Company (or its
successors or assigns under certain circumstances) to the Depositary; and
WHEREAS, the # #. and First of America i,nk - Mchigan, NationalAssociation h+ -
entered into a Security Agreement dated as of October 1, 1995 (the "Security Agreement"), Guaranty
Agreement dated as of October 1, 1995 (the 0 Guaranty Agreement" or "Guaranty") and a Lease
Assignment dated as of October 1, 1995 (the "Lease Assignment"), both providing further security
for the payment of the Loan Agreement Payments for the benefit of the Bondholder; and
WHEREAS,,
• _Company willhave duly approved # and agreed ... # # be bound #. :r... the
.
Initial
Bond Resolution (including the Indenture) prior to the delivery of the Bond,and
WHEREAS, for purposes of this Indenture, the definitions of terms in the Agreement, the
Security Agreement, the Lease Assignment, the Guaranty and the Band Resolution are hereby
adopted, and the terms used herein shall have the same meanings as such terms are given in said
Agreement, Security Agreement, the Lease Assignment, the Guaranty and Bond Resolution unless
a different meaning is given herein; and
WHEREAS, the Depositary and the Bondholder have accepted the duties created by this
Indenture, and in evidence thereof has Joined in the execution hereof, and
WHEREAS, this Preamble constitutes an integral part of this Indenture.
K.
(1) a detailed statement concerning the receipt and disposition of all Loan
Agreement Payments and the disposition of the amounts in the Construction Fund (until the
Construction Fund shall have been fully disposed of).
(2) an asset statement • balance sheet of the Debt Ser -vice Fund and • the
Construction Fund (until the Construction Fund shall have •' fully disposed oo.
ki
oil
tHe -Pliepositary pursuant to tnis inaenture upon T 1" wi atutw1wX
at the time of making such request, or giving such authority or consent, is the owner of the Bond
secured hereby, shall be conclusive and binding upon all future owners of the same Bond and of
Bonds issued in exchange therefor or in place thereof
(c) CoLnpe sation of Depositajy from Debt Service Fund. There shall be paid from the
Debt Service Fund the Depositary's reasonable compensation, and its reasonable expenses, advances,
l, mi and it, liabilities incurred in and .i• the execution of the trusts hereby created anl
incurred as a result of the negligence or willful misconduct of the Depositary, or as provided in the
Bond Resolution), and the reasonable cost and expenses, including counsel fees, of defending against
liabilities.
(d) Limited Responsibilities. The responsibilities of the Depositary elsewhere set forth
herein shall be further limited as follows:
FIRST- the !• shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with a direction of the owners of the Bond
pursuant to any provision of this Indenture relating to the time, method, and place of
F.
'!
any proceeafrig YorMITY mrfuiel F—L-ITM F —0p rr9—STMFJ—,W-1 —METUMT 7-71 -7rf - We
or power onferred upon the Depositary, under this Indenture.
SECOND: no provision of this Indenture shall require the Depositary (1) 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 any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it, nor (2) to take any action, whether or not directed
to take such action by the owners of the Bond, pursuant to this Indenture, which in the
judgment of the Depositary would conflict with any rule of law, or with the terms of this
Indenture, or would be unjustly prejudicial to the owners of the Bond not taking part in such
direction. When acting pursuant to the direction of any owners of the Bond pursuant to this
Indenture, the Depositary may take other action deemed proper by the Depositary which is
not inconsistent with such direction; provided, however, that the terms of this subparagraph
SECOND shall not impose any additional duties or responsibilities upon the Depositary and
shall not be construed to limit the effect of subparagraph FIRST of this paragraph (d).
(e) Advice. The Depositary may act upon the professional opinion or advice of any legal
counsel, engineer, accountant, or other expert, reasonably believed by the Depositary to be qualified
or the Issuer or otherwise, and
the Depositary shall not be responsible for anything suffered or done or not done by it in good faith
in accordance with any such opinion or advice
(f) Del2ositgMMqv Own The Bond. Except as prohibited by law, the Depositary may
become the owner of the Bond with the same rights which it would have if it were not the Depositary;
and nothing contained in this Indenture shall be construed to prohibit the Depositary, either as
principal or agent, from engaging in or being interested in any financial or other transaction with the
Issuer or the Company or from acting as depository, trustee, or agent for any committee or body of
owners of the Bond or of other obligations of the Issuer as freely as if it were not the Depositary.
(g) The Issuer has agreed with the Company in the Agreement and the Bond
Resolution provides that, as part of the Loan Agreement Payments, the Company shall pay to the
Depositary its charges for performing the duties of Depositary, Registrar, and Paying Agent for the
Bond. All payments due the Depositary for such charges, fees, or expenses shall be paid by the
Company and no such charges, fees, or expenses shall be charged against or be payable by the Issuer,
except the initial fees and expenses of the Depositary which are paid as part of the costs of issuance
of the Bond,
(h) Resignation of DepositaEy. The Depositary at the time acting hereunder may at any
time resign and be discharged from all duties created by this Indenture by giving not less than 30 days
written notice to the Issuer, the Company, and to any owners of the Bond as shown on the Bond
Registration Books kept by the Depositary, and such resignation shall take effect upon the
appointment of a successor Depositary by the owners of the Bond or by the Issuer as hereinafter
provided and with the consent of the Company which consent shall not be unreasonably withhe d.
I
(1) Removal of DepositM� Upon the occurrence of an Event of Default, as hereinafter
defined, which has not been cured or waived, the Depositary may be discharged and removed by an
instrument or concurrent instruments in writing, delivered to the Depositary and to the Issuer, and
signed by the owners of a majority in aggregate principal amount of the Bond then outstanding,
--------------
J It uay S WMI-Mr-,
for the appointment of a successor Depositary, and such court may thereupon, after such notice, if
any, as it shall deem proper, prescribe • appoint a successor Depositary.
(k) Transfer to Successor Depositary: Every successor Depositary appointed hereunder
shall execute, acknowledge, and deliver to its predecessor, the Issuer, and the Company, an
instrument in writing accepting such appointment hereunder, and thereupon such successor
Depositary, without any further act, deed, or conveyance, shall become fully vested with all the
estates, rights, powers, trusts, duties, and obligations hereunder of its predecessor; but such
predecessor shall nevertheless, on the written request of the Issuer, execute and deliver an instrument
transferring to such successor Depositary all of the estates, rights, powers, and trusts of such
predecessor hereunder; and every predecessor Depositary shall deliver all securities and money held
by it to its successor; provided, however, that before any such delivery is required or made, all
reasonable, customary, and legally accrued fees, advances, and expenses of such predecessor
Depositary shall be paid in full, Should any deed, assignment, or instrument in writing from the Issuer
be required by any successor Depositary for more fully and certainly vesting in such Depositary the
estates, rights, powers, and duties hereby vested or intended to be vested in the predecessor
Depositary, any and all such deeds, assignments, and instruments in writing shall, on request, be
executed, acknowledged, and delivered by the Issuer.
0
(1) Merger or Consolidation of Depositgy. Any corporation or association into which
the Depositary, or any successor to it in the trusts created by this Indenture, may be merged or
converted or with which it or any successor to it may be consolidated, or any corporation or
in amp mer_j2i�_ conversion, or consolidation to which the Dei%osit&�,,� Ur aw,
moti4i6wn-re�,_,ulting fro f
successor to it shall be a party, or any corporation or other entity succeeding to substantially all of
the business of the Depositary, shall be the successor Depositary under this Indenture without the
necessity of the execution or filing of any paper or any other act on the part of any of the parties
hereto anything herein to the contrary notwithstanding.
Article 5. EVENTS OF DEFAULT. (a) Events of Default. Any one or more of the follow-
ing events shall constitute and hereinafter shall be called an "Event of Default":
(1) the failure by the Issuer to make due and punctual payment of principal of,
redemption premium, if any, and interest on the Bond, whether payment is required at
maturity or by call for redemption or other -wise; provided, however, that if such failure shall
e Bond Resolution and the
Agreement, the continuation of such failure for ten days.
(2) the failure of the Company to make or pay, or cause to be made or paid, any
Loan Agreement Payment, or any part thereof, when and to the extent due and required by
the Agreement or the Bond Resolution, and the continuation of such failure for ten days.
(3) the Company defaulting in the observance or performance of any other of its
covenants, conditions, or obligations in the Bond, the Agreement, the Bond Resolution, or
this Indenture, and the Company not remedying such default within 30 days after having
actual notice which may take the form of written notice received by the Company from the
the Trustee may serve such notice, in its discretion, or shall serve such notice at the written
L' grincigal amount of the Bond then
0-0 N M ITZ-01 M
fvW*rrzr#YJ 2 Wq
, �-_ % - &, vkw) W no r@ U W 1W. rw rr-, i i z Aw-w.*itsx4kiLa-i-it-s-ted-bT-the-Issuer or the
Company, as the case may be, within the 30 -day period and diligently pursued until such
default is remedied or corrected.
(4) the dissolution or liquidation by the Company or failure by the Company to
be granted a stay within 10 days of the filing of such action or to lift or suspend any
execution, garnishment, or attachment within 60 days of such consequence as will materially
impair its ability to carry out its obligations under the Agreement or the Bond Resolution, or
the entry by the Company into an agreement of composition with its creditors.
(5) an order of relief shall be issued by the Bankruptcy Court of the United States
District Court having valid jurisdiction, granting the Company relief under the provisions of
the Bankruptcy Code, as amended, or any other court having valid jurisdiction shall issue an
i
F Ron
the Securities Act Ot
in respect of any indebtedness or other Security of the Company or under any agreement
securing or relating to such indebtedness or other Security, the effect of which is (i) to cause
(or permit any holder of such indebtedness or other Security or a trustee to cause) sue
indebtedness or other Security, or a portion thereof, in an aggregate principal amount greater
than $200,000, to become due prior to its stated maturi or prior to its regularly scheduled
ity
dates of payment or (ii) to permit a trustee or holder of any Security (other than common
stock of the Company) to elect a majority of the directors of the Board of Directors of the
•
(9) the failure by the Company to observe or perform any covenant or condition
specified in the Security Agreement • the Lease Assignment,
(10) the occurrence
•' any "Event • Default' as defined in the Guaranty
Agreement, Security Agreement • the Lease Assignment.
(b) Enforcement of Rights by Bondholder in Case of Default. Upon the occurrence of
an Event of Default, the Bondholder shall have the right to exercise any one or more of the following
remediesi.
(1) The Bondholder may declare the principal • the Bond then outstanding and the
interest accrued thereon immediately due and payable, and such principal and interest and any
M
applicable redemption premium, and any other amounts then due, shall thereupon become and be
immediately due and payable, anything in the Bond, the Agreement, the Bond Resolution, or this
• to the • notwithstanding,
any amounts TIM respect to Me Do— I --
waived only if, the Event of Default therein shall have been remedied and made good. In case of any
such waiver, the Issuer, the Company, and the Bondholder shall be restored to their former position
and rights hereunder respectively, but such waiver shall not extend to any subsequent or other Event
of Default • •. any right consequent thereon.
(5) All money collected by the Bondholder pursuant to the exercise of the remedies and
powers provided in this Article, together with all other sums which then may be held by the
Depositary •. any provision • this Indenture, the Security Agreement, the Lease Assignment, •
the Guaranty as security for the Bond, shall be applied as follows:
FIRST: to the payment of the costs and expenses of the proceedings whereunder such
money was collected, including a reasonable compensation to the Issuer, its agents, attorneys,
and all other necessary or proper expenses, liabilities, and advances incurred or made by the
Issuer, and to the payment of all taxes, assessments, and liens superior to the lien of this
Indenture.
0
SECOND: to the payment of any amounts owing the Depositary under this Indenture
or the Loan Agreement.
i to the payment of matured interest on the Bond, including, to the extent
THIRD.
legally permissible, interest thereon at the rate per annum equal to the Default Rate (as
defined in the FORM OF BOND set forth in Section 5 of the Initial Bond Resolution) (based
on the number of days actually elapsed on the basis of a 360 -day year) from due date to date
of payment.
FOURTH- to the payment of principal of and redemption premium, if any, on the
Bond which have been called for redemption as permitted or required by the Bond Resolution
or have matured as provided thereby, and interest thereon, to the extent legally permissible,
at the rate per annum equal to the Default Rate (as defined in the FORM OF BOND set forth
in Section 5 of the Initial Bond Resolution) (based on the number of days actually elapsed on
the basis of a e1 a. year) from the date of redemption or maturity to date of p.yment,
FIFTH*. to the payment of principal of the Bond which has become due by virtue of
-the declaration of the Trustee pursuant to Article 6(e), and interest thereon, to the extent
legally pennissible, at the rate per annum equal to the Default Rate (as defined in the FORM
OF BOND set forth in Section 5 of the Initial Bond Resolution) (based on the number of days
actually elapsed on the basis of a a# a. year) from the date declared due to date of
payment.
SIXTH: to the payment of any other amounts owing under the Agreement, the Bond
Resolution, the Security Agreement, the Lease Assignment, the Guaranty or this Indenture.
SEVENTH: to the payment of the surplus, if any, to whomsoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction may direct.
�mvjlt HMO
W'' ' "'I a Q I MW t
Inaeriture to tne contrary, UpoUU-g]r
, nMITT�,51)Q75 RY nn 11%, LIBILM
the Issuer reserves the right to appoint a Trustee to enforce the rights under this Indenture and
shall provide written notice to the Depositary and the Bondholder of any such election. The
Depositary shall take such action as necessary to qualify to serve as Trustee unless the Depositary
delivers written notice to the Issuer and Bondholder, within ten days of receipt of the Issuer's
election to appoint a Trustee, refusing to serve as Trustee. In the event the Depositary refuses
to serve as Trustee, the Issuer may appoint, with the consent of the Bondholder, which consent
shall not be unreasonably withheld, any bank or trust company authorized by law to serve as
Trustee under this Indenture. The fees and expenses of the Trustee shall be paid by the Company
or the Bondholder on behalf of, and as an advance to, the Company should the Company fail or refuse
(b) Acceptance of Trust, Any Trustee so appointed accepts the trusts, duties, obligations,
and requirements imposed on it by the Bond Resolution and this Indenture, and agrees to carry out
10
and perform, punctually and effectively, such duties, obligations, and requirements for the benefit of
the Issuer, the Company, and the owners of the Bond. It is further specifically agreed that (i) the
Trustee will act as a Paying Agent for the Bond at all times while it is Trustee, (ii) the Trustee will
act as Registrar for the Bond at all times while it is Trustee, and (iii) the Trustee will be the
beneficiary and secured party under the Security Agreement and the Lease Assignment so long as it
is the Trustee hereunder,
(c) Rights of the Holder. The Trustee is the special agent and representative of the
n,-teri of the Bond and vested with full iower in their behalf to effect and enforce the Aireement,
ttus Indenture, ana Me ISM Resolution YoT Meir ueliellL as prol-Tact IFTETTF-1 L
tion.
(d) Control • Trustee. Except as otherwise provided in this Article, the rights of action
with respect to this Indenture shall be exercised by the Trustee and no owner of the Bond shall have
x
U i 1#4tistitite Ig juit, action or roceedin; at law or ewi6y for the aj ointment of a receiver
_j
or tor any otner remeay IT reunuer 770001eaSOTI, 11CI CV1 LHIC66 dIVE 3-11111 111 UIVICUP1
of all other conditions precedent specified in this Indenture, the Trustee shall have received the
written request of the owners of not less than 25% in aggregate principal amount of the Bond then
outstanding and shall have been offered indemmity satisfactory to the Trustee and shall have refused,
or for 30 days thereafter neglected, to institute such suit, action, or proceeding, and it is hereby
declared that the • of such request and the furnishing of such indemnity are in each case
M and enforcement b�� a-nk,,, owner of the Bond of the lowers and -
remedies given to the Trustee hereunder and to the institution and maintenance by any owner of the
Bond of any action or cause of action for the appointment of a receiver or for any other remedy
hereunder; but the Trustee may, in its discretion, or when duly requested in writing by the owners of
at least 25% in aggregate principal amount of the Bond then outstanding and upon being furnished
indemnity satisfactory to the Trustee against expenses, charges, and liability shall, forthwith take such
pjUVWW'&fP vC.-tin"lim(li iny and
the Issuer as the Trustee may deem expedient in the interest of the owners of the Bond.
(e) Declaration of Principal and Interest Due� Upon the happening of an Event Of Default,
and the appointment of the Trustee pursuant to this Article 6, the Trustee may, in its discretion, or
isigo-in the written reojuest of the owners of at least 25% in ate principal amount of the Bond
then outstanding, and upon being indemnified to the satisfaction of the Trustee, shall, declare the
entire principal of the Bond then outstanding and the interest accrued thereon immediately due and
payable, and such principal and interest, and any applicable redemption premium, and any other
amounts then due, shall thereupon become and be immediately due and payable, anything in the Bond,
the Agreement, the Bond Resolution, or this Indenture to the contrary notwithstanding.
(f) Enforcement by TrusteeUpon the happening of an Event of Default and the
appointment of the Trustee pursuant to this Article 6, the Trustee may, in its discretion, or upon the
written request of the owners of at least 25% in aggregate principal amount of the Bond then
outstanding, and upon being indemnified to the satisfaction of the Trustee, shall, take such
appropriate action by Judicial proceedings or otherwise to cure the Event of Default and/or to require
the Company, or the Issuer to carry out its or their covenants and obligations under and with respect
1I
use and filina of actions for specific performance, and mandamus proceedings, in any court of
competent jurisdiction, against the Issuer, its Board of Directors, and its officers, employees, and/or
agents, and to obtain judgments against the Company for any Loan Agreement Payments due but
unf,#:aid into the Debt Service Fund. or for ankA other amounts due hereunder, under the Bond Resolu-
tion, or under the Agreement, including all amounts due with respect to the principal amount of the
Bond then outstanding if declared due and payable as provided herein.
(g) Remedies Non -Exclusive, No remedy herein conferred upon or reserved to the
Trustee or the Bondholders is intended to be exclusive of any other available remedy or remedies, but
each and eve, ' , such remedo shall be cumulative and shall be in addition to ever:,,� other LemedW-�Jven
hereunder or under the Agreement, the Bond, the Bond Resolution, the Security Agreement, the
Lease Assignment or the Guaranty or now and hereafter existing at law or in equity or by statute�
No delay or omission to exercise any right or power accruing upon the happening of an Event of
Default continuing as aforesaid shall impair any such right or power or shall be construed to be a
h Event if Default or aciuiescence therein, and eve 6 suchright and ower mav be
(h) Waiver of Defaults. The Trustee may, and upon the written request of the owners of
majority in aggregate principal amount of the Bond then outstanding shall, waive any Event of
Default hereunder and its consequences, except that an Event of Default in the payment of Loan
Agreement Payments,or payment of #unts with respect to the Bond when and as the
_*xredr-_llJkecom_e_due -and -9--ayable, may be waived onl�,L4 the Event of Default therein shall have
been remedied and made good. In case of any such waiver, the Issuer, the Company, the Trustee,
and the owners of the Bond shall be restored to their former position and rights hereunder
Via t �uch waiver shall not extend to any e, ault or impair
_aub3.�uent or other Event of Def
any
• lit consequentthereon.
(i) pplication ofMoneys. All money collected by the Trustee pursuant to the exercise
of the remediesandpowers provided in this Article, together with all other sums which then may be
held by the Trustee under any provision of this Indenture, the Agreement, the Security Agreement
or the Lease Assignment as security for the Bond, shall be applied as follows;
FIRST: to the payment of the costs and expenses of the proceedings whereunder -such
money was collected, including a reasonable compensation to the Trustee, its agents,
attorneys, and all other necessary or proper expenses, liabilities, and advances incurred or
made by the Trustee under this Indenture, and to the payment of all taxes, assessments, and
liens superior to the lien of this Indenture.
SECOND: to the payment of matured interest on the Bond, including, to the extent
legally permissible, interest thereon at the rate per annum equal to the Default Rate (as
defined in the FORM OF BOND set forth in Section 5 of the Initial Bond Resolution) (based.
on the number of days actually elapsed on the basis of`a 360 -day year) from due date to date
of payment.
12
THIRD - to the payment of principal of, redemption premium, if any, on the Bond
which have been called for redemption as permitted or required by the Bond Resolution or
have matured as provided thereby, and interest thereon, to the extent legally permissible, at
the rate per annurn equal to the Default Rate (as defined in the FORM OF BOND set forth
in Section 5 of the Initial Bond Resolution) (based on the number of days actually elapsed on
the basis of a 360 -day year) from the date of redemption or maturity to date of payment,
FOURTH. to the payment of principal of the Bond which have become due by virtue
of the declaration of the Trustee pursuant to Article 6(e), and interest thereon, to the extent
legally permissible, at the rate per annum equal to the Default Rate (as defined in the FORM
,QT_B_QND_set forth in Section 5 of the Initial Bond Resolution i based on the number of d"gs
actually elapsed on the basis of a 360 -day year) from the date declared due to date of
payment,
FIFTH: to the payment of any other amounts owing under the Agreement, the Bond
Lgolution, the Security Agreement, the Lease Assignment, the Guaranty or this Indenture.
SIXTH: to the payment of the surplus, if any, to whomsoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may direct.
If in making distribution pursuant to the order above stated, the amount available for distribution in
a particular classification shall be insufficient to pay in full all of the items in such classification, the
amount available for distribution to items in such classification shall be prorated among such items
in the proportion that the amount each item bears to the total of all such items. Notwithstanding
anything contained in this Indenture to the contrary, if the Trustee shall declare the entire principal
of the Bond then outstanding and the interest accrued thereon immediately due and payable as the
result of an Event of Default, or if the Bond is to be redeemed as a whole pursuant to mandatory
redemption provisions provided in the Bond Resolution, or if the Company shall exercise any option
to redeem the Bond as a whole in accordance with its terms, any amounts remaining in the
Construction Fund shall be deposited in the Debt Service Fund and applied by the Trustee as provided
in this subsection (i).
0) Judicial Proceedings. In any judicial proceeding in which the Issuer is a party and
which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of the
owners of the Bond, the Trustee, if permitted by the court having jurisdiction over such proceeding,
may, in its discretion, or upon the written request of the owners of at least 25% in aggregate principal
amount of the Bond then outstanding, and upon being indemnified to the satisfaction of the Trustee,
shall, intervene on behalf of the owners of the Bond to assert the rights of such owners.
(k) Enforcement of Remedies Without Possession of Bond. All rights of action or other
rights under this Indenture or • may be brought by the Trustee in its • name as Trustee
of an express trust and may be enforced by the Trustee without the possession of the Bond, or the
production -• on the trial • other proceedings relative thereto.
13
(1) Direction by Ma*odt es I e ,
J _y in Principal Amount of Bondholders It is expr s y provid d
however, that the owners of a majority in aggregate principal amount of the Bond then outstanding,
or a committee representing, pursuant to a written appointment filed with the Trustee, the owners
of a majority in aggregate principal amount of the Bond then outstanding, shall have the right, at any
time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection with the enforcement of
the Trustee�s n er the Agreement or the rii-�,hts of the owners of the Bond or the
- ights and remedies und I
Trustee's rights and remedies under the Bond Resolution and this Indenture, and may exercise any
right or perform any action hereunder, with the same effect as the Trustee under this Indenture,
provided, that such direction shall not be otherwise than in accordance with the provisions of law and
of this Indenture, and provided that the Trustee shall be indemnified to its satisfaction.
(in) Notice By Trustee. The Trustee shall not be required to take notice nor be deemed
to have notice of any default specified in this Indenture, except for those Events of Default specified
in Article 5(a)(1) and 5(a)(2), unless specifically notified in writing of such default by the owners of
at least 25% in aggregate principal amount of the Bond then outstanding.
(n) Default of Pgyments, In the event of a default *in the payment of any Loan Agreement
Payment, or in the performance of any agreement or covenant contained in the Bond, the Agreement,
the Bond Resolution, or this Indenture, such payment and performance may be enforced by the
Trustee by mandamus, specific performance, or by the appointment of a receiver (in equity with
IF# AV"ment
Resolution and this Indenture.
Article S. RELEASE OF INDENTURE AND SATISFACTION OF INDEBTEDNESS.
When the Bond shall have become due and payable in accordance with its terms or otherwise as
called for rederrvtt�in and the whole amount of the
principal, redemption premium, if any, and the interest so due and payable upon the Bond, with
respect to the installments on the Bond then due, shall be paid, or sufficient money shall be held by
the Depositary for such purpose, and provision shall also be made for paying all other sums payable
hereunder and/or under the Agreement and/or the Bond Resolution by the Company, then and in that
,ZVI%_ �evre�sents and the riihts hereby granted shall
thereupon cease, determine, and become void, and the Depositary in such case shall release this
by the Issuer, and the Company, and shall turn over any surplus fiinds held by it to whomsoever may
then be entitled pursuant to the Bond Resolution, the Agreement, or by law to receive the same, and
thereupon this Indenture shall terminate and be of no effect; provided, that until the Bond is finally
paid, the Depositary shall continue to act as Paying Agent and Registrar for the Bond, and provided
further that the Depositary will continue to maintain records of the Rebate Fund in accordance with
Article I I hereof.
Article 9. AMENDMENTS. This Indenture may be amended only as provided in the Bond
Resolution; provided, however, that Additional Bonds may be issued pursuant to the Bond Resolution
as provided therein, and may be secured by this Indenture without the necessity of amending or
supplementing this Indentum
Ell
Article 10. MISCELLANEOUS PROVISIONS. (a) Acknowl ments and Ownership
of the Bond. Any request, direction, consent, or other instrument required by this Indenture to be
signed or executed by owners of the Bond may be in any number of concurrent writings of similar
tenor and may be signed or executed by such owners of the Bond in person or by an agent appointed
in writing. Proof of the execution of any instrument, or of the writing appointing such agent, and of
the ownership of the Bond, if made in the following manner, shall be sufficient for any purpose of t is
Indenture and shall be conclusive in favor of the Depositary with regard to any action taken by it
under such instrument -
(i) the fact, date, and due authorization of the execution by any person of any
such instrument may be proved by the certificate of any officer in any jurisdiction, who, by
the laws thereof, has power to take acknowledgments within such jurisdiction to the effect
that the person signing such instrument acknowledged before him the execution thereof, or
by an affidavit of a witness to such execution,
(ii) the fact of the owning of the Bond by any owner thereof and the date of his
owning same may be proved by the appropriate entries in the Bond Registration Books
maintained by the Depositary as Registrar, The Depositary may conclusively assume that
such ownership continued until written notice to the contrary is ser-ved upon the Depositary.
(b) DgpositW May Require Proof of Ownership. Nothing contained in this Article shall
be construed as limiting the Depositary to the proof hereinabove specified, it being inten e t at t i;o
Depositary may accept any other evidence of the matters herein stated which it may deem su cient.
(c) Consent of Bondholder& Unless otherwise provided in the Bond Resolution, any
renuegt or co-tse-tt of anv owner of the Bond shall bind every future owner of the Bond in respect of
wma-fm ��l won
UISSUIUL1011 01 LEW ISSLUI, A17fl UIC U19"TCHAILb,
contained by, on behalf of, or for the benefit of the Issuer, shall bind or inure to the benefit of the
successor or successors of the Issuer from time to time and any officer, board, or commission to
whom or to which any power or duty affecting such covenants, stipulations, promises, and
agreements shall be transferred by or in accordance with law.
(d) Survival of Valid Bond, If the Bond is not presented for payment when the principal
thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise, all
liability of the Issuer and the Company to the owners thereof and to the Depositary for the payment
of the Bond shall forthwith cease, determine, and be completely discharged whenever funds sufficient
to pay the Bond shall be paid to the Depositary by the Company, and such funds shall be segregated
by the Depositary and held in trust for the benefit of the owners of the Bond, without interest, who
shall thereafter be restricted exclusively to such funds for the satisfaction of any claim of whatever
nature on their part relating to the Bond.
(e) Unclaimed Funds. If the Bond is not presented for payment when the principal
thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise,
all liability of the Issuer and the Company to the owners thereof and to the Depositary for the
15
't • • i ! • • t. r.t . ett b '1 •
(f) Rights of Parties, Except as herein otherwise expressly provided, nothing in this
Indenture expressed or implied is intended or shall be construed to confer upon any person, firm, or
corporation other than the Company, the Issuer, the Trustee, and the owners of the Bond, any right,
remedy, or claim, legal or equitable, under or by reason of this Indenture or any covenant, condition,
or stipulation # _•
(g) Severability. In case any one or more of the provisions of this Indenture or of the
and the application of such provision to persons or circumstances other than those as to which it is
held invalid shall not be affected thereby.
(h) Law. The validity, interpretation, and performance of this Indenture shall be governed
by the laws of the State of Texas.
.s ;.
(a) A Rebate Fund is hereby established by the Issuer. Such fund shall be for the sole
benefit of the United States of America and shall not be subject to the claim of any other person,
including without limitation the bondholders. The Rebate Fund is established for the purpose of
complying with section 148 of the Code and the Treasury Regulations promulgated pursuant thereto.
i • - of # • Year," the Company shall compute• of
Earnings," if any, for the period beginning on the date of delivery of the Bond and ending at the close
of "Bond and transfer an amountequal to the difference, if any, between the amount
in the Rebate Fund and the Excess Earnings so computed.term#respect
to the Bond each one-year period ending on the anniversary of the date of delivery of the Bond. If,
at the close of any Bond Year, the amount in the Rebate Fund exceeds the amount that would be
required to be paid to the United States of America under paragraph (d) below if the Bond had been
paid in full, as computed by the Company, such excess may be transferred from the special Rebate
Fund and paid to the Company to be used for such purposes for which, or to be redeposited to such
fund from# originally derive&
0
(c) In general, 'Excess • for any period • time means the sum •`
(i) the excess of --
#e t'i
-
described in this subparagraph (c)(i)) had been equal to the yield on t
issue, plus I
any income during such period of time attributable to the excess described in
subparagraph (c)(i) above.
(d) The Company shall pay to the United States of America at least once every five years
an amount that ensures that at least 90 percent of the Excess Earnings from the date of delivery -of
the Bond to the close of the period for which the payment is being .•' will have been paid. The
int• shall •. to the United States of America not later than 60 days after the Bond has been
paid in full 100 percent • the amount then required to be paid under section • of the Csi-
r. ~
de
date • the date • issuance of each issue • series • the Bond. By such •. the
Company shall also notify, in writing, the Depositary and the Issuer of the determinations the
Company has made and the payment to be made pursuant to the provisions of this section. Upon
written request • any registered owner of the Bond, the Company shall furnish to such registered
owner of the Bond a certificate (supported by reasonable documentation, which may include
calculation by Bond Counsel or by some other service organization) showing compliance with this
section and other applicable provisions of section 148 of the Code.
(f) The Depositary shall maintain a record of the periodic determinations by the Company
• tn Tuoki-wo-w- bevinning • the first anniversary date of the issuance
of the Bond and ending on the date three years after the final retirement of the Bond, Such records
shall state each such anniversary date and summarize the manner in which the Tentative Rebati;
Amount, if any, was determined.
(g) If the Trustee shall declare the principal of the Bond and the interest accrued thereon
immediately due and payable as the result of an Event of Default specified in the Indenture, or if the
W
Bond is optionally or mandatorily prepaid or redeemed prior to maturity as a whole in accordance
with their terms, any amount remaining in the Construction Fund shall be transferred to the special
17
Georgetown Industrial Development Corporation
c/o Georgetown Industrial Foundation
P.0, Box 114
Georgetown, TX 78627
Triple S Plastics, Inc.
14320 Portage Road
P.0, Box E
Vicksburg, MI 49G97-0905
First of America Bank - Michigan, National Association
Attention: Commercial Loan Department
108 East Michigan Avenue
Kalamazoo, MI 49007
or the latest address specified by any party in writing; or
(b) The date of the receipt thereof by any party if not so mailed by registered or certified
mail.
Article 1 . RECORDIFNG. (a) issuer and DepositaEy to Record. The issuer shall cause
the Agreement and this Indenture to be filed in such manner and in such places as are now required
by law to establish initially the lien of this Indenture, and the priority thereof Thereafter, in the event
the Company shall fail to perform its duties under the Security Agreement or the Lease Assignment,
the Depositary shall (1) cause each memorandum, financing statement, or continuation statement With
119
respect to the Agreement and this Indenture to be filed, registered, and recorded and to be refiled,
reregistered, and rerecorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the lien of this Indenture and to publish
notice of and to protect the rights and security of the owners of the Bond and the rights of the
Depositary under the Agreement, the Bond Resolution, and this Indenture and (2) perform or cause
to be performed from time to time any other act as required by law, and execute and file or cause to
be executed and filed any and all instruments of further assurance, that may be necessary for such
publication and protection. The Issuer shall, when so requested by the Depositary, execute all such
instruments, memoranda, or statements necessary to maintain, protect, or preserve the interests
assigned to the Depositary under this Indenture. The Depositary may obtain an opinion or advice of
counsel selected with reasonable prudence with respect to any actions or documents that may be
required by this Article. Any act performed or documents obtained or prepared by the Depositary
in reliance upon such opinion or advice of counsel shall be deemed satisfactory performance by the
Depositary of its obligations under this Article with respect to the matters covered by such opinion
or advice.
(b)Non-Encumbrance. This Indenture is, and always will be kept, a direct lien and
security interest upon the Loan Agreement Payments, the Debt Service Fund, and the Construction
Fund, and the Issuer will not create or suffer to be created any lien prior to or on a parity with the lien
of this Indenture or any part thereof..
noticeArticle 14. NOTICE TO TEXAS DEPARTMENT OF COMAMRCE. If the Company
falls to timely make or pay any Loan Payment, or if the Bondholder is notified by the Internal
Revenue Service that the interest on the Bond is, or may be, subject to federal income taxation,
the Bondholder promptly shall inform the Department of such an occurrence, by sending written
. Department • e address:
Texas Department of Commerce
Attention: Executive Director
P.O. Box 12728
Capitol Station
Austin, Texas 78711
Article 1. APPOINTMENT OF TRUSTEE. In the event a Trustee is appointed as
provided in this Indenture, any reference in this Indenture to Depositary shall mean the Trustee.
Any reference to Trustee in this Indenture shall be inoperative until such time, if ever, that a
Trustee is appointed in accordance with Article 6 of this Indenture.
Article 16. GOVERNING LAW. This Indenture shall be governed exclusively by and
construed in accordance with the applicable laws of the State of Texas.
IM
IN WITNESS WHEREOF, the Issuer acting through its Board of Directors, has caused this
Indenture to be executed in multiple counterparts, each of which shall be considered an original for
-927m7nuq0rfflLs the President of such Board and attested b the
Secretary of such Board, and its corporate seal to be hereto affixed; and the !'pisitary to evidence
its acceptance of the duties hereby created and vested in it, has caused this Indenture to be executed
in multiple counterparts, each of which shall be considered an oripinal for all purposes, in its behalf
by one of its Vice Presidents, attested by one of its officers, and its corporate seal to be hereunto
affixed, all as of the date first above written.
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
By
President, Board -of Dit—re—c(ors
ATTEST:
SecrtAry, Board of Directors
im
E
FIRST OF AMERICA BANK- MICHIGAN, :NATIONAL ASSOCIATION,
DEPOSITARY AND BONDHOLDER
By___ ;,ostu*�
Ixa- V. 1 le 5
Title ?res7.d8K+
(SEAL)
m
[oval
&#)a
M
9.
1, the undersigned Mayor of the City of Georgetown, Texas (the "Governmental Unit"),
hereby certify as follows:
1. This Certificate is executed with reference to that series of bonds styled
Georgetown Industrial Development Corporation Industrial Revenue Bond (Triple S Plastics, Inc.
Project), Series 1995, " in the principal amount of $5,000,000 (the "Bond").
2. The Governmental Unit is a duly incorporated home rule city, operating and
19.
,--4toitu tnder the nstitution and laws of the State of Texas includin its Charter which has not
been amended since the last issuance of obligations by the city.
3. The Georgetown Industrial Development Corporation (the "issuer") was created
and authorized to act on behalf of the Governmental Unit, and the Articles of Incorporation and
the Bylaws of the Issuer were approved, by resolution of the Governmental Unit, dated May 13,
1980.
4. On July 121 1995, and at all times since that date through October 13, 1995, the
following persons have duly constituted the members of the City Council*
Name Office
Lee Wood
Mayor
George Arroyos
Councilmember District 1
Winfred Bonner
Councilmember District 2
Susan Hoyt
Councilmember District 3
Lee Bain
Councilmember District 4
Dick Vincent
Councilmember District 5
Doris Curl
Councilmember District 6
Fred 'Torn
Councilmember District 7
Councilmember Winfred Bonner recently died and a replacement has not been appointed.
5. The Governmental Unit, by written Resolution Approving the Georgetown
Industrial Development Corporation's "Resolution Authorizing the Issuance of Georgetown
Industrial Development Corporation Revenue Bond (Triple S Plastics, Inc. Project) Series 1995;
and the Execution of an Indenture and Loan Agreement, and Other Matters related to the Issuance
GE0RGC'r0WNrrRJPLE S: GENPP-AL2.CRT 10/16195
of the Bond", adopted on October 18, 1995, has specifically approved the issuance of the Bond,
solely and specifically for the purpose of satisfying the requirements of Section 25(f) of the
Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes,
as amended, and such resolution has not been amended, annulled, rescinded, or revoked and
remains in fall force and effect on the date hereof.
6. The Governmental Unit has approved and hereby approves all programs and
expenditures of the Issuer including all programs and expenditures in connection with the issuance
of the Bond and the transactions contemplated thereby and the Governmental Unit will approve
all programs and expenditures of the issuer and annually review any financial statements of the
Issuer.
7. No litigation is pending against the Governmental Unit or the City Council or, to
the best of our knowledge, threatened against the Governmental Unit or the City Council:
to restrain or enjoin the issuance or delivery of the Bond; or
(ii) in any way contesting (a) the right and !• of the • Unit in
connection with any action taken by it towards the creation of the Issuer or the issuance
of the Bond, (b) the titles or • • the current members of the Governmental Unit
itntr-4r or authority, of the current officers and directors
of the Issuer.
8. From July 12, 1995 through August 21, 1995, the following persons constituted
the duly appointed board of directors • the Issuer:
Mark Dixon, President
Tim Harris, Vice President
Judi Shanklin, Secretary/Treasurer
9. From August 22, 1995 and at all times since that date, the following persons have
constituted the duly appointed officers and members of the board of directors of the Issuer -
Mark Dixon, President
Tim Harris, Vice President
GEORGETOWNMIPLES: GENERAL2.CRTI0/16/95
I ! I TRN1W
Ken Poteete, Member
Bob Wumsch, Member
SIGNIED AND SEALED this
2m
City Secretary
GEORGETOWN/TRIPLES: GENERAL2.CRT 10/16/95
AMENDED AND RESTATED
BYLAWS OF
GEORGETOWN INDUSTRIIAL DEVELOPMENT CORPORATIO
AUGUST 29,1995 1
Section 1. Financing of Industrial Deielopment Projects. In order to implement the
purposes for which the Corporation was formed as set forth in the Articles of Incorporation, the
Corporation shall issue obligations to finance all or part of the cost of one or more 11projects" as
defined in the Development Corporation Act of 1979, 1979 Tex. Gen. Laws, Chapter 700, Section
1, at 1675 (the "Act!').
Section 2. Con(lifions Preceilent to Issuance of Obligations. The Corporation shall n6f
issue any obligations unless
1) The City Council (the "Governing Body") of the City of Georgetown (the "Unit") has
approved by written resolution any agreement to issue obligations adopted by the Corporation, which
agreement and resolution shall set out the amount and purpose of the obligations. No issue of
obligations, including refunding bonds, shall be sold and delivered by the Corporation without a
written resolution of the Governing Body adopted no more than sixty (60) days prior to the date of
sale of the obligations specifically approving the resolution of the Corporation providing for the
issuance of the obligations; and
2) The Texas Department of Commerce, or any successor thereto, or the executive director
thereof, has approved the contents of any lease, sale or loan agreement made by the Corporation
under the Act in connection with the issuance of obligations.
Section 3. Books an(iRecords; Approial ofPrograins and Financial Statements. The
Corporation shall keep correct and complete books and records of account and shall also keep
minutes of th d . n s of its Board of Directors lid connnittees havin of th- nil
Section 4. Nonprofit Corporation. The Corporation shall be a nonprofit corporation,
and no part of its net earnings remaining after payment of its expenses shall inure to the benefit of any
individual, firm or corporation, except that in the event the Board of Directors of the Corporation
(the "Board of Directors") shall determine that sufficient provision has been made for the full payment
of the expenses, bonds and other obligations of the Corporation issued to finance all or part of the
GEORGErOWNt"LE.S: BYLAWSLIDC 8129195
cost of a project, then any net earnings of the Corporation thereafter accruing with respect to said
project shall be paid to the Unit.
Section 1. Powers, Number and Terin of Office The property and affairs of the
imnosed bv law the Articles of Incorporation and these Byl
-aws-- the Bo—ard of Directors shall exercise
all of the powers of the Corporation.
The Board of Directors shall consist of five (5) directors, each of whom shall be appointed
by the Governing Body.
The directors constituting the first Board of Directors shall be those directors named in the
Articles of Incorporation, each of whom shall serve for six (6) years or until his or her successor is
appointed as hereinafter provided. Subsequent directors shall hold office for a term of six (6) years
or until their successors are appointed as hereinafter provided.
Section 2. Meetings ofDirectors- The directors may hold their meetings at such place
or places in the State of Texas, as the Board ofDirectors may from time to time d-P-Aermine�.pLoid&e-J-,
however, *in the absence of any such determination by the Board of Directors, the meetings shall be
held at the registered. office of the Corporation in the State of Texas. Every regular or special
meeting of the Board of Directors shall be open to the public, except as otherwise permitted by the
Constitution of the State of Texas or the Open Meetings Act, Chapter 5 5 1, Government Code, as
amended.
Section 3. Regular Meetings. Regular Meetings of the Board of Directors shall be held
at such times and places as shall be designated, from time to time, by resolution of the Board of
Directors and with such notice as may be required from time to time by law.
If 4 111dJW11L3' '91,
in office or upon advice of or request by the Goverming Body and with such notice as may be
required from time to time by law.
OCR
0 31—rWevc, Z;
purpose of the Corporation may be considered and acted is
GE0RGMWNn-RWLE-S: BYLAWS2.1DC 8/29/95
Section 5. Public Notice. Written notice of the date, hour, place and subject of each
meeting of the Board of Directors shall beposted at such times and in e
meeting of the Governing Body of the Unit is posted, all as prescribed by the Open Meetings Act,
Chapter 551, Government Code, as amended.
Section 6. Quorunt A majority of the directors shall constitute a quorum for the
consideration of matters pertaining to the purposes of the Corporation. The act of a majority of the
Section 7. Conduct Of Business. At the meetings of the Board of Directors, matters
pertaining to the purposes of the Corporation shall be considered in such order as from time to time
the Board of Directors may determine.
At all meetings of the Board of Directors, the president shall preside, and in the absence of
the president, the vice president shall exercise the powers of the president.
The secretary of the Corporation shall act as secretary of all meetings of the Board of
Directors, but in the absence of the secretary, the presiding officer may appoint any person to act as
secretary of the meeting,
Section S. Public Heatings. Public hearings required under the Internal Revenue Code
of 1986, as amended, may be called and conducted by any officer or director of the Corporation, and
such officer or director may establish the date, place and time of the hearing and may give notice of
the hearing,
Section 9. Executive Committee. The Board of Directors, by resolution passed by a
majority of the directors in office, may designate two or more directors to constitute an executive
committee, which committee, to the extent provided in such resolution, shall have and may exercise
all of the authority of the Board of Directors in the management of the Corporation, except where
action of the Board ofDirectors is specified by law, The executive committee shall act in the manner
provided in such resolution. The executive committee so designated shall keep regular minutes of
the transactions of its meetings and shall cause such minutes to be recorded in books kept for that
purpose in the office of the Corporation, and shall report the same to the Board of Directors from
time to time.
Section 10. Compensation ofDirector& Directors as such shall not receive any salary or
compensation for their services, except that they shall be reimbursed for their actual expenses incurred
in the performance of their duties hereunder.
GE0RM)MVNfrMLE-S: BYLAWSZ,= 81Z9/95
•
Section 1. Titles and Terin of Office The officers of the Corporation shall be a
president, a vice president, a secretary and a treasurer, and such other officers as the Board of
Directors may from time to time elect or appoint. One person may hold more than one office, except
that the president shall not hold the office of secretary, Terms of office shall not exceed three years.
All officers shall be subject to removal from office, with or without cause, at any time by a
vote of a majority of the entire Board of Directors.
Section 2. Poivers and Duties of the President The president shall be the chief
executive officer of the Corporation and, subject to the Board of Directors, he shall be in general
char -e of "h -properties an affairs of the Cori
d poration-. he shall preside at all meetin -s of the Board
of Directors, in furtherance of the purposes of this Corporation, he may sign and execute all
contracts, conveyances, franchises, bonds, deeds, assignments, mortgages, notes and other
instruments in the name of the Corporation.
Section 3. Vice President. The vice president shall have such powers and duties as may
be assigned to him by the Board of Directors and shall exercise the powers of the president during
that officer's absence or inability to act. Any action taken by the vice president in the performance
of the duties of the president shall be conclusive evidence of the absence or inability to act of the
president at the time such action was taken,
Section 4. Treasurer. The treasurer shall have custody of all the funds and securities of
the Corporation which come into his hands. When necessary or proper, he may endorse, on behalf
of the Corporation, for collection, checks, notes and other obligations and shall deposit the same to
the credit of the Corporation in such bank or banks or depositories as shall be designated in the
Directors; whenever required by the Board of Directors, he shall render a statement of his cash
account; he shall enter or cause to be entered regularly in the books of the Corporation to be kept by
him for that purpose full and accurate accounts of all monies received and paid out on account of the
Corporation, he shall perform all acts incident to the position of treasurer subject to the control of
Ojos IWINNIJILW agrag Rolm 1FI1141"alt-MI
"15211 MI IMMAN 1115111114 M I IN I ISM L I
Section 5. Secretary. The secretary shall keep the minutes of all meetings of the Board
of Directors in books provided for that purpose; he shall attend to the giving and serving of all
notices; in furtherance ofthe purposes of this Corporation, he may sign with the president in the name
of the Corporation. and/or attest the signature thereto all contracts, conveyances, franchises, bonds,
GEORGErOWNfrRIPIE.S: BYIAWS7 MC 8/29/95
deeds, assignments, mortgages, notes and other instruments of the Corporation; he shall have charge
of the corporate books, records, documents and instruments, except the books of account and
financial records and securities of which the treasurer shall have custodv and charge- and such other
MIt 0=0 U9MISUMMUMNIAING 111 I - M
11 R Lif IIISPiCULF#111 LYTH UPIP111UM1011 UL L11C *111UC 01 LIM %-IN-ti: au'vil UL1111's ULS111USS Ulm lie
shall in general perform all duties incident to the office of secretary subject to the control of the Board
of Directors.
Section 6. Compensadon. Officers as such shall not receive any salary or compensation
for their services, except that they shall be reimbursed for their actual expenses incurred in the
performance of their duties hereunder.
M407 ISE" S-I'W"GA-A 1111 KGAIIC�i
AND BYLAWS
Section 1. EffecOe Date. These Bylaws shall become effective only upon the occurreni
*f the following events- M
(1) the approval of these Bylaws by the Governing Body; ang
(2) the adoption of these Bylaws by the Board of Directors, I
Section 2. Amendments to Articles of Incorporation and Bylaivs. The Articles of
Incorporation may at any time and from time to time be amended, provided that the Board of
Dir r files
---
Ma I
e Bi, 4-9f DirectQ-rs shall
to amend the Articles as provided in the Act.
The Articles of Incorporation may also be amended at any time by the Governing Body at its
sole discretion by adopting an amendment to the Articles of Incorporation of the Corporation by
LOI I i a1XW Iij, mmi tA&-W;k aw#'I
as provided in the Act,
Section 3. Interpretation of Bylaivs. These Bylaws and all the terms and provisions
hereof shall be liberally construed to effectuate the purposes set forth herein. If any word, phrase,
clause, sentence, paragraph, section or other part of these Bylaws, or the application thereof to any
WN h ircua iiii i -al 1 A 6 111
GEORGEMWN5WLE-S: MIAWS11DC 84495
paragraph, section or other part of these Bylaws to any other person or circumstance shall not be
-• thereby.
Section 1. Principal Office. The principal office of the Corporation shall be located in
Georgetown, Texas.
The Corporation shall have and continuously maintain in the State of Texas (the "State") a
registered office, and a registered agent whose business office is identical with such registered office,
as required by the Act. The registered office may be, but need not be, identical with the principal
Board of Directors, pursuant to the requirements of the Act.
Section 2 Fiscal Year. The fiscal year of the Corporation shall be as determined by the
Board of Directors.
Section 3. Seal. The seal of the Corporation shall be as determined by the Board of
Directors.
Section 4. Notice to Board of Directors and Waiver of Notice Whenever any notice
whatsoever is required to be given to a director • the provisions of the Act, the Articles of
Incorporation or these Bylaws, said notice shall be deemed to be sufficient if given by depositing the
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notice of such meeting, unless required by the Board of Directors. A waiver of notice in writing,
signed by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of suc notice.
Section 5. Resignations. Anv director or officer may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified therein, or, if no time
be specified, at the time of its receipt by the president or secretary, The acceptance of a resignation
shall not be necessary to make it effective unless expressly so provided in the resignation.
Section 6. ApprovalorAdiice and Consent of the Governing Body. Tothe extent that
these Bylaws refer to any approval by the Unit or refer to advice and consent by the Unit, such advice
GEORMMVNMUPLE-S: BYLAW821DC 8I29/95
and consent shall be evidenced by a certified copy of a resolution, order or motion duly adopted by
the Governing Body.
Section 7. Organizational Control The Unit may, at its sole discretion, and at any time,
U
alter or &Itai Ictil Witt actiWies of the CorlQoration fincluding the
into by such Corporation.
Section S. Dissolution of the Corporation. Upon dissolution of the Corporation, title
in the Unit.
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