HomeMy WebLinkAboutKuelbs Investments Resolution 1984 5
CERTIFICATE FOR
RESOLUTION AUTHORIZING THE ISSUANCE OF
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
REVENUE BOND , SERIES 1984 , AND THE
EXECUTION OF A TRUST INDENTURE
( KUELBS INVESTMENTS PROJECT )
THE STATE OF TEXAS •
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY •
We , the undersigned officers of the Board of Directors
of the Euless Industrial Development Authority hereby
certify as follows :
1 . The Board of Directors of said Euless Industrial
Development Authority ( the " Issuer " ) convened in Special
Meeting ON THE 13TH DAY OF NOVEMBER , 1984 , at the designated
meeting place and the roll was called of the duly
constituted officers and members of said Board , to -wit :
Troy Fuller , President Glenn Walker
Neal Adams , Vice President Mrs . W . W . McCormick
Jim Ivy , Secretary - Treasurer Bob Eden
Robert Pippin
and all of said . persons we e present , except the following
absentees : H(/ter ,,,, li�p¢ t�
and thus constituting a q rum . Whereupon , among other
business , the following was transacted at said Meeting : a
written
RESOLUTION AUTHORIZING THE ISSUANCE OF
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
REVENUE BOND , SERIES 1984 , AND THE
EXECUTION OF A TRUST INDENTURE
( KUELBS INVESTMENTS PROJECT )
was duly introduced for the consideration of said Board and
read in full . It was then duly moved and seconded that said
Resolution be adopted ; and , after due discussion , said
motion , carrying with it the adoption of said Resolution ,
prevailed and carried by the following vote :
AYES : All members of said Board shown
present above voted " Aye " , except :
NOES :
ABSTENTIONS :
2 . That a true , full , and correct copy of the afore -
said Resolution adopted at the Meeting described in the
above and foregoing paragraph is attached to and follows
this Certificate ; that said Resolution has been duly
o ecorded in said Board ' s minutes of said Meeting pertaining
t o the adoption of said Resolution ; that the persons named
in the above and foregoing paragraph are the duly chosen ,
q ualified , and acting officers and members of said Board as
indicated therein ; and that each of the officers and members
o f said Board was duly and sufficiently notified officially
and personally , in accordance with the Bylaws of the Issuer ,
in advance , of the time , place , and purpose of the aforesaid
Meeting , and that said Resolution would be introduced and
considered for adoption at said Meeting , and each of said
o fficers and members consented , in advance , to the holding
o f said Meeting for such purpose ; and that said Meeting was
o pen to the public , and public notice of the time , place and
purpose of said Meeting was given , all as required by
Vernon ' s Ann . Civ . Stat . Article 6252 - 17 .
SIGNED AND EALED the 13th day of November , 1984 .
S ecre • ary - Tre - suer Presi • - nt ,
B o . d of Dire •ty s Board of Directors
( S A 't
f
J
RESOLUTION
AUTHORIZING THE ISSUANCE OF
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
REVENUE BOND ,
SERIES 1984
AND THE EXECUTION OF
A TRUST INDENTURE
( KUELBS INVESTMENTS PROJECT )
JWR : 3RD DRAFT : 11 / 12 / 84
ry ,
f
TABLE OF CONTENTS
( The Table of Contents is not a part of the Resolution
but is for convenience of reference only )
PAGE
Title 1
Recitals 1
Resolution 2
S ECTION 1 . DESIGNATION , AMOUNT , AND PURPOSE
OF THE BONDS 2
S ECTION 2 . GENERAL DESCRIPTION OF BOND 3
( a ) Date , Denomination , Numbers and
Maturities of the Bond 3
( b ) Exchange Provisions 3
S ECTION 3 . INTEREST ON THE BONDS 3
S ECTION 4 . GENERAL CHARACTERISTICS OF BONDS 3
( a ) In General 3
( b ) Registration Books 4
( c ) Restriction on Transferability
of Bonds 4
( d ) Payment of Registered Owner 5
( e ) Notation of Prepayment 5
( f ) Temporary Bonds 5
S ECTION 5 . FORM OF BOND 6
S ECTION 6 . PLEDGE 19
S ECTION 7 . DEBT SERVICE FUND 20
( a ) Establishment of Debt Service
Fund 20
( b ) Accrued Interest 20
( c ) Installment Loan Payments 21
( d ) Redemption 21
( e ) Payments from Debt Service
Fund 22
( f ) Immediately Available Funds
( g ) Investment of Funds 22
S ECTION 8 . SECURITY FOR FUNDS 23
S ECTION 9 . THE USER ' S PAYMENTS 23
a
PAGE
( a ) Unconditional Obligation 23
( b ) Prepayments 23
SECTION 10 . ADDITIONAL PARITY BONDS 23
( a ) Additional Bonds 23
( b ) Amendments to Trust Indenture
Unnecessary 25
SECTION 11 . SPECIAL COVENANTS 25
( a ) Installment Loan Payments
Pledged to Bonds Only 25
( b ) Non - Encumbrance 25
( c ) Performance by Issuer - 25
( d ) Certain Modifications
Prohibited 26
SECTION 12 . BONDS ARE SPECIAL OBLIGATIONS 26
SECTION 13 . AMENDMENTS 26
( a ) Amendment with Consent of
Owners of 51 % of Bonds 26
( b ) Notice of Amendment 27
( c ) Consent to Amendment 27
( d ) Effect of Amendment 27
( e ) Consent of Bondholders 28
( f ) Ownership of Bonds 28
( g ) Amendments Without Consent 28
SECTION 14 . ESTABLISHMENT OF CONSTRUCTION FUND 28
( a ) Deposit of Bond Proceeds into
Construction Fund 28
( b ) Investment of Money in
Construction Fund 29
( c ) Deposit of Accrued Interest ,
Income , and Profits 30
SECTION 15 . PAYMENTS FROM CONSTRUCTION FUND 30
( a ) Reimbursements for and Payment
of Cost of Project 30
( b ) Reliance by Trustee 31
SECTION 16 . SURPLUS CONSTRUCTION FUNDS 31
( a ) Disposition of Surplus Funds 31
( b ) Disposition of Construction
Fund upon Acceleration and
Redemption 32
e
PAGE
SECTION 17 . DAMAGED , MUTILATED , LOST , STOLEN , OR
DESTROYED BONDS 32
( a ) Replacement Bonds 32
( b ) Application for Substitute
B onds 32
( c ) No Default Occurred 32
( d ) Charge for Issuing Substitute
B onds 33
( e ) Authority for Issuing Substitute
B onds 33
SECTION 18 . NO ARBITRAGE 33
SECTION 19 . FINDINGS 33
SECTION 20 . SALE OF THE BONDS 33
SECTION 21 . TRUST INDENTURE 34
RESOLUTION AUTHORIZING THE ISSUANCE OF EULESS INDUS -
TRIAL DEVELOPMENT AUTHORITY REVENUE BONDS , SERIES 1984 ,
AND THE EXECUTION OF A TRUST INDENTURE ( KUELBS
INVESTMENTS PROJECT )
THE STATE OF TEXAS
E ULESS INDUSTRIAL DEVELOPMENT AUTHORITY
WHEREAS , Euless Industrial Development Authority ( the
" Issuer " ) is a nonstock , nonprofit industrial development
corporation organized and existing under the laws of the
S tate of Texas , including particularly the Development
Authority Act of 1979 , as amended ( Article 5190 . 6 ,
✓ . A . T . C . S . ) ( the " Act " ) ; and
WHEREAS , the Issuer is a duly constituted public
instrumentality of City of Euless ( 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
t o Section 103 of the Internal Revenue Code of 1954 , as
amended ( the " Code " ) , and the Issuer is functioning and
acting solely on behalf of the Governmental Unit ; and
WHEREAS , a " Loan Agreement between Euless Industrial
Development Authority and Kuelbs Investments " , dated as of
N ovember 1 , 1984 ( the " Agreement " ) , has been duly executed
by the Issuer and Kuelbs Investments , a general partnership
composed of Leo Kuelbs , Gregory Kuelbs and John Kuelbs ( the
" User " ) ; and
WHEREAS , the User is a general partnership organized
and existing under the laws of the State of Texas , is fully
qualified to transact business in the State of Texas ; and
WHEREAS , the Agreement is hereby adopted by reference
f or all purposes , with the same effect as if it had been set
f orth in entirety in this bond resolution ( this " Initial
B ond Resolution " ) ; and
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
User for such purpose ; and
WHEREAS , this preamble and the trust indenture ( the
" Trust Indenture " ) hereinafter set forth in this Initial
B ond Resolution shall constitute an integral part of this
Initial Bond Resolution ; and
WHEREAS , the corporate trustee under the Trust Inden -
ture ( the " Trustee " ) will have the duties and obligations
hereinafter provided ; and
WHEREAS , the bonds authorized to be issued by this
Initial Bond Resolution ( the " Bonds " ) are to be issued and
d elivered pursuant to applicable laws , including the Act ;
and
WHEREAS , the User has granted to B . R . Daniel and/ or
J ohn Donor and/or Horace Weaver for the benefit of the
Trustee a lien and security interest in and to the Project
pursuant to that certain Deed of Trust , Security Agreement
and Assignment of Rents dated as of November 1 , 1984 ( the
" Deed of Trust " ) , ' and that certain Assignment of Rents and
L eases to Trustee ( the " Assignment " ) , providing further
security for the payment of the Installment Loan Payments
for the benefit of the owners of the Bonds ; and
WHEREAS , the User will have duly approved and agreed to
be bound by this Initial Bond Resolution ( including the
Trust Indenture ) prior to the delivery of the Bonds ; and
WHEREAS , as provided in the Agreement , by such approval
of this Initial Bond Resolution ( including the Trust Inden -
ture ) the User will have agreed and acknowledged that the
B onds , 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 Bonds , and the execution and
d elivery of the Trust Indenture , the User will be uncondi -
t ionally obligated to the Issuer and the Trustee to make or
pay , or cause to be made or paid , without set - off , recoup -
ment , or counterclaim , to the Trustee the " Installment Loan
P ayments required by the Agreement and by this Initial Bond
Resolution ( including the Trust Indenture ) in amounts suffi -
cient to pay the principal of , redemption premium , if any ,
and interest on the Bonds , when due , agreed liquidated
damages , if any , all fees and expenses of the Trustee and
Registrar and the paying agents for the Bonds , and all other
amounts required to be paid by the Agreement , this Initial
Bond Resolution , and the Trust Indenture , all as hereinafter
set forth ; and
WHEREAS , for purposes of this Initial Bond Resolution ,
the definitions of terms in the Agreement , the Deed of
Trust , and the Trust Indenture are hereby adopted , and the
t erms given herein shall have the same meanings as such
t erms are given in said Agreement , Deed of Trust and Trust
Indenture unless a different meaning is given herein .
THEREFORE , BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY THAT :
Section 1 . DESIGNATION , AMOUNT , AND PURPOSE OF THE
B ONDS . The Issuer ' s bond designated and to be known as
E ULESS INDUSTRIAL DEVELOPMENT AUTHORITY REVENUE BOND , SERIES
1984 ( KUELBS INVESTMENTS PROJECT ) ( the " Bond " or the
2
" Bonds " ) is hereby authorized to be issued in the aggregate
principal amount of $ 800 , 000 on behalf of the City of Euless
TO PAY PART OF THE COST OF ACQUIRING , CONSTRUCTING , EQUIP -
P ING , AND FURNISHING , OR CAUSING TO BE ACQUIRED , CON -
S TRUCTED , EQUIPPED , AND FURNISHED A PROJECT ( THE " PROJECT " )
IN THE CITY OF EULESS , TEXAS , FOR KUELBS INVESTMENTS ( THE
" USER " ) FOR THE SPECIFIC PURPOSE OF THE PROMOTION AND
E NCOURAGEMENT OF EMPLOYMENT AND THE PUBLIC WELFARE .
Section 2 . GENERAL DESCRIPTION OF BOND . ( a ) Date ,
Denomination , Numbers and Maturities of the Bond . The Bond
initially authorized hereby shall be dated November 1 , 1984 ,
shall be issued and delivered in the form of a fully regis -
t ered bond , without coupons , payable in installments to the
✓ egistered owner thereof , or its registered assigns , all in
the manner hereinafter provided , with the Bond to be
numbered R - 1 , in the aggregate principal amount of $ 800 , 000 ,
initially payable to Allied Bank Irving , Irving , Texas , with
the principal of said Bond to be payable in monthly
installments on the dates and in the amounts as set forth in
the FORM OF BOND in Section 5 .
( b ) Exchange Provisions . Upon surrender of the fully
✓ egistered bond initially authorized hereby to the Trustee
for exchange , the Trustee shall authenticate and deliver to
the Bondholder fully registered Bonds , numbered R - 2 upward
in denominations of $ 5 , 000 each , to the extent possible , and
w ith a last Bond being in such denomination as necessary to
cause the total principal amount of exchanged Bonds to equal
the aggregate principal amount of the Bond initially
authorized hereby outstanding on the date of such exchange .
Section 3 . INTEREST ON THE BONDS . The Bond initially
authorized hereby shall bear interest on the unpaid balance
o f the principal amount thereof from the date of delivery to
the initial purchaser thereof ( which date shall be indicated
by the Trustee in the Delivery Certificate appearing on the
Bond ) to the scheduled due date , or date of prepayment or
✓ edemption prior to the scheduled due date , of the principal
installments of the Bond , at the " Adjusted Rate " as defined
in the FORM OF BOND set forth in Section 5 . The interest
shall be payable 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 Bonds initially authorized hereby shall be issued , shall
be payable , may or shall be prepaid or redeemed prior to the
scheduled principal installment payment dates , may be trans -
ferred and assigned , shall have the characteristics , and
shall be signed and executed ( and the Bonds shall be
sealed ) , all as provided , and in the manner indicated , in
the FORM OF BOND set forth in Section 5 . After the Bonds
have been authorized to be issued by the Board of Directors
of the Issuer , and prior to the delivery of the Bonds , the
3
Trustee shall authenticate the Bonds by executing the
Trustee ' s Certificate of Authentication appearing on the
Bond as provided in Section 5 . In addition , on the date of
delivery of the Bonds to the initial purchaser thereof , the
Trustee shall fill in the date of delivery of the Bonds in
the Delivery Certificate appearing on the Bonds as provided
in Section 5 .
( b ) Registration Books . The Issuer shall keep or
cause to be kept at the principal corporate trust office of
the Trustee books for the registration and transfer of Bonds
( the " Bond Registration Books " ) and the Issuer hereby
appoints the Trustee as its registrar and transfer agent
( the " Registrar " ) to keep such books and make such registra -
t ions and transfers under such reasonable regulations as the
Issuer or the Registrar may prescribe ; and the Registrar
will register or transfer as herein provided , any Bonds upon
presentation thereof at such office . The User and each
B ondholder shall have the right to inspect such Bond Regis -
t ration Books during the normal business hours of the
Trustee .
Registration of the Bonds may be transferred only on
the Bond Registration Books upon surrender thereof by the
registered owner in person or by his duly authorized attor -
ney , by proper written instrument of transfer , in the form
and with guaranty of signatures satisfactory to the Regis -
t rar , duly executed by such owner or attorney . Upon such
surrender for transfer of registration , the Registrar shall
make notation of such transfer on the Bonds in the Assign -
ment section appearing thereon and in the Bond Registration
Books . Such transfers of registration shall be made without
charge to the owner of such Bonds , but any taxes or other
g overnmental charges required to be paid with respect to the
same shall be paid by the Bondholder requesting such trans -
fer of registration , as a condition precedent to the exer -
cise of such privilege .
The Trustee shall not be required to make transfers of
any Bond within ten ( 10 ) days prior to an interest payment
d ate or redemption date or 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 ) Restriction on Transferability of Bonds . Notwith -
standing the foregoing , the Trustee , as registrar , shall not
t ransfer any such fully registered Bonds except upon the
completion of the conditions stated below . Bonds shall not
be transferred unless the transferee is an " Institutional
Investor . " As used herein , an " Institutional Investor "
shall mean any savings institution , commercial bank , bank or
t rust company , insurance company or mutual fund . In
addition , the Trustee , as registrar , shall not transfer any
B onds until the Issuer and the Trustee shall have received a
4
certificate ( delivered by certified mail , postage prepaid )
o f the transferor of such Bonds stating that such transferee
is an " Institutional Investor " ; provided , however , that the
provision of this sentence need not be satisfied if the
Transferee of this Bond is a subsidiary bank of Allied
B ancshares , Inc . , a Texas corporation . The foregoing
✓ estriction on transfer shall not be , nor be construed as , a
✓ estriction on the granting of a participation or
participations in the Bonds to any Institutional Investors
by any Bondholder .
( d ) Payment to Registered Owner . The person in whose
n ame any Bond shall be registered on the Bond Registration
B ooks may be deemed and treated as the absolute owner
thereof for all purposes of this Initial Bond Resolution and
the Trust Indenture whether or not such Bond shall be
overdue , and the Issuer , the Trustee and the User shall not
be affected by any notice to the contrary ; and payment of ,
o r on account of , the principal of , premium , if any , agreed
liquidated damages , 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
d ischarge the liability upon such Bond to the extent of the
sum or sums so paid .
( e ) Notation of Prepayment . The Issuer hereby ap -
points the Trustee as the Paying Agent for the Bonds . Upon
the prepayment or partial redemption of any Bond , the
Trustee , as Registrar and Paying Agent , shall note in the
P repayment 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
o f the Trustee . The Trustee shall also record such informa -
t ion in the Bond Registration Books , and the Trustee shall
also record in the Bond Registration Books all payments of
principal installments on the Bonds when made on their
✓ espective due dates .
( f ) Temporary Bonds . Until Bonds in definitive form
are ready for delivery , the Issuer may execute , and upon its
✓ equest , the Trustee shall authenticate and deliver in lieu
o f any thereof , and subject to the same provisions , limita -
t ions , and conditions , one or more printed , lithographed , or
t ypewritten Bonds in temporary form , substantially of the
t enor of the Bonds as provided in the FORM OF BOND set forth
in Section 5 and with appropriate omissions , variations , and
insertions . Such Bond or Bonds in temporary form may be for
the principal amount as the Issuer may determine . Until
e xchanged for Bonds in definitive form , such Bonds in
t emporary form shall be entitled to the lien and benefit of
this Initial Bond Resolution and the Trust Indenture . The
Issuer shall , without unreasonable delay , prepare , execute ,
5
and deliver to the Trustee , and thereupon , upon the presen
t ation and surrender of the Bond or Bonds in temporary form ,
the Trustee shall authenticate and deliver , in exchange
therefor , a Bond or Bonds in definitive form in authorized
t enominations of the same maturity and interest rate for the
same aggregate principal amount as the Bond or Bonds in
t emporary form surrendered . Such exchange shall be made by
the Issuer at its own expense and without making any charge
therefor . When and as interest is paid upon Bonds in
t emporary form the fact of such payment shall be noted
thereon .
Section 5 . FORM OF BOND . The form of the Bond ,
t ogether with the forms of the various certificates and
forms to appear on the Bond , shall be , respectively , sub -
stantially as follows , with necessary and appropriate
✓ ariations , omissions , and insertions as permitted or
✓ equired by this Initial Bond Resolution :
FORM OF BOND
NO . R - 1 $ 800 , 000
UNITED STATES OF AMERICA
STATE OF TEXAS
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
REVENUE BOND
SERIES 1984
( KUELBS INVESTMENTS PROJECT )
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY ( the " Issuer " ) ,
being a nonstock , nonprofit industrial development
corporation organized and existing under the laws of the
S tate of Texas , including particularly the Development
Authority Act of 1979 , as amended ( Article 5190 . 6 ,
✓ . A . T . C . S . ) ( the " Act " ) , and acting on behalf of the City of
6
Euless , Texas , hereby promises to pay to Allied Bank Irving ,
or its registered assigns , the aggregate principal amount of
EIGHT HUNDRED THOUSAND DOLLARS
in monthly installments commencing on the first day of
December , 1984 , . and continuing on the first day of each
succeeding calendar month through and including November 1 ,
2001 , together with interest as hereinafter provided , as
f ollows :
Principal Principal
, Principal Payment Principal Payment
Payment Date Amount Payment Date Amount
D ecember 1 , 1984 $ 1 , 333 . 33 December 1 , 1986 $ 1 , 666 . 66
J anuary 1 , 1985 $ 1 , 333 . 33 January 1 , 1987 $ 1 , 666 . 66
February 1 , 1985 $ 1 , 333 . 34 February 1 , 1987 $ 1 , 666 . 67
March 1 , 1985 $ 1 , 333 . 33 March 1 , 1987 $ 1 , 666 . 66
April 1 , 1985 $ 1 , 333 . 33 April 1 , 1987 $ 1 , 666 . 66
May 1 , 1985 $ 1 , 333 . 34 May 1 , 1987 $ 1 , 666 . 67
June 1 , 1985 $ 1 , 333 . 33 June 1 , 1987 $ 1 , 666 . 66
July 1 , 1985 $ 1 , 333 . 33 July 1 , 1987 $ 1 , 666 . 66
August 1 , 1985 $ 1 , 333 . 34 August 1 , 1987 $ 1 , 666 . 67
September 1 , 1985 $ 1 , 333 . 33 September 1 , 1987 $ 1 , 666 . 66
O ctober 1 , 1985 $ 1 , 333 . 33 October 1 , 1987 $ 1 , 666 . 66
November 1 , 1985 $ 1 , 333 . 34 November 1 , 1987 $ 1 , 666 . 67
D ecember 1 , 1985 $ 1 , 416 , 66 December 1 , 1987 $ 1 , 833 . 33
J anuary 1 , 1986 $ 1 , 416 . 66 January 1 , 1988 $ 1 , 833 . 33
February 1 , 1986 $ 1 , 416 . 67 February 1 , 1988 $ 1 , 833 . 34
March 1 , 1986 $ 1 , 416 . 66 March 1 , 1988 $ 1 , 833 . 33
April 1 , 1986 $ 1 , 416 . 66 April 1 , 1988 $ 1 , 833 . 33
May 1 , 1986 $ 1 , 416 . 67 May 1 , 1988 $ 1 , 833 . 34
June 1 , 1986 $ 1 , 416 . 66 June 1 , 1988 $ 1 , 833 . 33
July 1 , 1986 $ 1 , 416 . 66 July 1 , 1988 $ 1 , 833 . 33
August 1 , 1986 $ 1 , 416 . 67 August 1 , 1988 $ 1 , 833 . 34
September 1 , 1986 $ 1 , 416 . 66 September 1 , 1988 $ 1 , 833 . 33
October 1 , 1986 $ 1 , 416 . 66 October 1 , 1988 $ 1 , 833 . 33
November 1 , 1986 $ 1 , 416 . 67 November 1 , 1988 $ 1 , 833 . 34
7
December 1 , 1988 $ 2 , 000 . 00 December 1 , 1992 $ 3 , 333 . 33
J anuary 1 , 1989 $ 2 , 000 . 00 January 1 , 1993 $ 3 , 333 . 33
February 1 , 1989 $ 2 , 000 . 00 February 1 , 1993 $ 3 , 333 . 34
March 1 , 1989 $ 2 , 000 . 00 March 1 , 1993 $ 3 , 333 . 33
April 1 , 1989 $ 2 , 000 . 00 April 1 , 1993 $ 3 , 333 . 33
May 1 , 1989 $ 2 , 000 . 00 May 1 , 1993 $ 3 , 333 . 34
June 1 , 1989 $ 2 , 000 . 00 June 1 , 1993 $ 3 , 333 . 33
July 1 , 1989 $ 2 , 000 . 00 July 1 , 1993 $ 3 , 333 . 33
August 1 , 1989 $ 2 , 000 . 00 August 1 , 1993 $ 3 , 333 . 34
September 1 , 1989 $ 2 , 000 . 00 September 1 , 1993 $ 3 , 333 . 33
O ctober 1 , 1989 $ 2 , 000 . 00 October 1 , 1993 $ 3 , 333 . 33
N ovember 1 , 1989 $ 2 , 000 . 00 November 1 , 1993 $ 3 , 333 . 34
D ecember 1 , 1989 $ 2 , 333 . 33 December 1 , 1993 $ 3 , 750 . 00
J anuary 1 , 1990 $ 2 , 333 . 33 January 1 , 1994 $ 3 , 750 . 00
February 1 , 1990 $ 2 , 333 . 34 February 1 , 1994 $ 3 , 750 . 00
March 1 , 1990 $ 2 , 333 . 33 March 1 , 1994 $ 3 , 750 . 00
April 1 , 1990 $ 2 , 333 . 33 April 1 , 1994 $ 3 , 750 . 00
May 1 , 1990 $ 2 , 333 . 34 May 1 , 1994 $ 3 , 750 . 00
June 1 , 1990 $ 2 , 333 . 33 June 1 , 1994 $ 3 , 750 . 00
July 1 , 1990 $ 2 , 333 . 33 July 1 , 1994 $ 3 , 750 . 00
August 1 , 1990 $ 2 , 333 . 34 August 1 , 1994 $ 3 , 750 . 00
September 1 , 1990 $ 2 , 333 . 33 September 1 , 1994 $ 3 , 750 . 00
O ctober 1 , 1990 $ 2 . 333 . 33 October 1 , 1994 $ 3 , 750 . 00
N ovember 1 , 1990 $ 2 , 333 . 34 November 1 , 1994 $ 3 , 750 . 00
D ecember 1 , 1990 $ 2 , 666 . 66 December 1 , 1994 $ 4 , 166 . 66
J anuary 1 , 1991 $ 2 , 666 . 66 January 1 , 1995 $ 4 , 166 . 66
February 1 , 1991 $ 2 , 666 . 67 February 1 , 1995 $ 4 , 166 . 67
March 1 , 1991 $ 2 , 666 . 66 March 1 , 1995 $ 4 , 166 . 66
April 1 , 1991 $ 2 , 666 . 66 April 1 , 1995 $ 4 , 166 . 66
May 1 , 1991 $ 2 , 666 . 67 May 1 , 1995 $ 4 , 166 . 67
June 1 , 1991 $ 2 , 666 . 66 June 1 , 1995 $ 4 , 166 . 66
July 1 , 1991 $ 2 , 666 . 66 July 1 , 1995 $ 4 , 166 . 66
August 1 , 1991 $ 2 , 666. 67 August 1 , 1995 $ 4 , 166 . 67
September 1 , 1991 $ 2 , 666 . 66 September 1 , 1995 $ 4 , 166 . 66
O ctober 1 , 1991 $ 2 , 666 . 66 October 1 , 1995 $ 4 , 166 . 66
N ovember 1 , 1991 $ 2 , 666 . 67 November 1 , 1995 $ 4 , 166 . 67
D ecember 1 , 1991 $ 2 , 916 . 66 December 1 , 1995 $ 4 , 833 . 33
J anuary 1 , 1992 $ 2 , 916 . 66 January 1 , 1996 $ 4 , 833 . 33
February 1 , 1992 $ 2 , 916 . 67 February 1 , 1996 $ 4 , 833 . 34
March 1 , 1992 $ 2 , 916 . 66 March 1 , 1996 $ 4 , 833 . 33
April 1 , 1992 $ 2 , 916 . 66 April 1 , 1996 $ 4 , 833 . 33
May 1 , 1992 $ 2 , 916 . 67 May 1 , 1996 $ 4 , 833 . 34
June 1 , 1992 $ 2 , 916 . 66 June 1 , 1996 $ 4 , 833 . 33
July 1 , 1992 $ 2 , 916 . 66 July 1 , 1996 $ 4 , 833 . 33
August 1 , 1992 $ 2 , 916 . 67 August 1 , 1996 $ 4 , 833 . 34
September 1 , 1992 $ 2 , 916 . 66 September 1 , 1996 $ 4 , 833 . 33
O ctober 1 , 1992 $ 2 , 916 . 66 October 1 , 1996 $ 4 , 833 . 33
N ovember 1 , 1992 $ 2 , 916 . 67 November 1 , 1996 $ 4 , 833 . 34
8
December 1 , 1996 $ 5 , 333 . 33 December 1 , 1999 $ 7 , 666 . 66
January 1 , 1997 $ 5 , 333 . 33 January 1 , 2000 $ 7 , 666 . 66
February 1 , 1997 $ 5 , 333 . 34 February 1 , 2000 $ 7 , 666 . 67
March 1 , 1997 $ 5 , 333 . 33 March 1 , 2000 $ 7 , 666 . 66
April 1 , 1997 $ 5 , 333 . 33 April 1 , 2000 $ 7 , 666 . 66
May 1 , 1997 $ 5 , 333 . 34 May 1 , 2000 $ 7 , 666 . 67
June 1 , 1997 $ 5 , 333 . 33 June 1 , 2000 $ 7 , 666 . 66
July 1 , 1997 $ 5 , 333 . 33 July 1 , 2000 $ 7 , 666 . 66
August 1 , 199. 7 $ 5 , 333 . 34 August 1 , 2000 $ 7 , 666 . 67
September 1 , 1997 $ 5 , 333 . 33 September 1 , 2000 $ 7 , 666 . 66
O ctober 1 , 1997 $ 5 , 333 . 33 October 1 , 2000 $ 7 , 666 . 66
N ovember 1 , 1997 $ 5 , 333 . 34 November 1 , 2000 $ 7 , 666 . 67
D ecember 1 , 1997 $ 6 , 000 . 00 December 1 , 2000 $ 8 , 583 . 33
J anuary 1 , 1998 $ 6 , 000 . 00 January 1 , 2001 $ 8 , 583 . 33
February 1 , 1998 $ 6 , 000 . 00 February 1 , 2001 $ 8 , 583 . 34
March 1 , 1998 $ 6 , 000 . 00 March 1 , 2001 $ 8 , 583 . 33
April 1 , 1998 $ 6 , 000 . 00 April 1 , 2001 $ 8 , 583 . 33
May 1 , 1998 $ 6 , 000 . 00 May 1 , 2001 $ 8 , 583 . 34
June 1 , 1998 $ 6 , 000 . 00 June 1 , 2001 $ 8 , 583 . 33
July 1 , 1998 $ 6 , 000 . 00 July 1 , 2001 $ 8 , 583 . 33
August 1 , 1998 $ 6 , 000 . 00 August 1 , 2001 $ 8 , 583 . 34
September 1 , 1998 $ 6 , 000 . 00 September 1 , 2001 $ 8 , 583 . 33
O ctober 1 , 1998 $ 6 , 000 . 00 October 1 , 2001 $ 8 , 583 . 33
N ovember 1 , 1998 $ 6 , 000 . 00 November 1 , 2001 $ 8 , 583 . 34
D ecember 1 , 1998 $ 6 , 833 . 33
J anuary 1 , 1999 $ 6 , 833 . 33
February 1 , 1999 $ 6 , 833 . 34
March 1 , 1999 $ 6 , 833 . 33
April 1 , 1999 $ 6 , 833 . 33
May 1 , 1999 $ 6 , 833 . 34
June 1 , 1999 $ 6 , 833 . 33
July 1 , 1999 $ 6 , 833 . 33
August 1 , 1999 $ 6 , 833 . 34
September 1 , 1999 $ 6 , 833 . 33
O ctober 1 , 1999 $ 6 , 833 . 33
November 1 , 1999 $ 6 , 833 . 34
and to pay interest on the unpaid principal balance hereof
from the date of delivery hereof ( which date appears in the
Delivery Certificate endorsed on this Bond ) at a rate equal
to the Adjusted Rate , until the principal hereof may become
due and payable from time to time , and at a rate of 15 % per
annum on overdue principal and , to the extent legally
permissible , on overdue interest . The term " Adjusted Rate "
shall mean the per annum rate ( calculated on the basis of a
360 day year for the actual number of days elapsed ) equal to
80 % of the " Prime Rate " of Allied Bank Irving ( the " Prime
Rate Bank " ) , provided that the Adjusted Rate shall not in
any case be less than 8 % per annum . The term " Prime Rate "
shall mean the rate of interest established from time to
time by the Prime Rate Bank as its Prime Rate . Any change
in the Prime Rate shall automatically be effective for the
9
purpose of changing the rate of interest which this Bond
bears as of the opening of business on the date of any such
change in the Prime Rate . It is understood , however , that
regardless of the Adjusted Rate , the rate of interest borne
by this Bond shall never be greater than a rate which would
cause the net effective interest rate ( as defined and
calculated in accordance with Article 717k - 2 , V . A . T . C . S . as
it exists on the date of issuance of this Bond ) for this
B ond as of any date to exceed 15 % . The interest on this
B ond shall be payable on December 1 , 1984 and on the first
day of each month thereafter while this Bond is outstanding
by check or draft mailed to the registered owner at its
address as it appears on the Bond Registration Books of the
Issuer kept by Allied Lakewood Bank ( the " Trustee " , " Paying
Agent " and " Registrar " ) ( provided that in the alternative
such payment may be made by any other method requested in
writing by the registered owner , subject to the approval of
the Trustee ) , in each case solely from the sources and in
the manner hereinafter described . Both principal and
interest are payable , without exchange or collection
charges , in lawful money of the United States of America .
THE TRUSTEE shall notify the User ( which notice shall
be deemed to have occurred one day after placing such notice
in first class mail ) of the Prime Rate and the total inter -
est due on the balance of the principal amount due on the
B ond ( the " Interest Calculation " ) on a date ( the " Calcula -
t ion 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
P ayment Date . The Interest Calculation with respect to a
particular Payment Date shall be made on the Calculation
Date preceding such Payment Date and shall be based upon the
assumption that the Prime Rate shall not change between the
Calculation Date and the Payment Date . If the Prime Rate
shall change between a particular Calculation Date and the
✓ elated Payment Date , the Interest Calculation for the
period preceding the next Calculation Date and the amount of
interest due on the next Payment Date shall be adjusted to
✓ eflect such difference . Provided , however , with respect to
the Interest Calculation for the Payment Date on which the
User shall pay the entire outstanding principal amount of
this Bond , such adjustment shall be made on such Payment
Date , with the Trustee to provide the User with telephonic
notice of any such adjustment and the User to pay the actual
amount of interest due as of such Payment Date . The failure
o f the Trustee to give the notice to the User required above
shall not prevent an Event of Default ( as defined in the
Trust Indenture as hereinafter defined ) from occurring under
this Bond and the Trust Indenture ; however , if no notice is
given , the User may prevent an Event of Default by providing
the Trustee with funds sufficient to pay interest on the
u npaid principal at the rate of 80 % of the then current
10
Prime Rate , plus the principal amount , if any , due on such
date but subject to the interest rate limitations described
in the immediately preceding paragraph . Such interest
payment shall be adjusted within 10 days after the User
✓ eceives notice from the Trustee of the correct interest
amount which should have been paid on the preceding interest
payment date .
THE PRINCIPAL of and interest on this Bond shall be
payable in lawful money of the United States of America ,
w ithout exchange or collection charges . Payments of princi -
pal and interest shall be made to the registered owner by
check or draft mailed by Allied Lakewood Bank , Dallas , Texas
( the " Trustee " , " Paying Agent " , and " Registrar " for this
B ond ) or its successor appointed under the Trust Indenture
( hereinafter defined ) , to the registered owner at its
address as it appears on the Bond Registration Books kept by
the Trustee ; provided that in the alternative such payment
may be made by any other method requested in writing by the
✓ egistered owner , subject to the approval of the Trustee .
The final payment of principal on this Bond shall be paid
o nly upon surrender of this Bond to the Trustee for cancel -
lation . Any prepayment or redemption of any principal
installments of this Bond shall be made only upon presenta -
t ion of this Bond to the Trustee , who shall make notation of
such prepayment or redemption in the Prepayment Record
e ndorsed hereon .
THIS BOND is dated as of November 1 , 1984 and was
authorized and issued in the aggregate principal amount of
$ 800 , 000 pursuant to a resolution adopted by the Board of
Directors of the Issuer ( the " Initial Bond Resolution " ) on
behalf of the City of Euless , Texas TO PAY PART OF THE COST
O F ACQUIRING , CONSTRUCTING , EQUIPPING , AND FURNISHING , OR
CAUSING TO BE ACQUIRED , CONSTRUCTED , EQUIPPED , AND FURNISHED
A PROJECT ( THE " PROJECT " ) IN THE CITY OF EULESS , TEXAS , FOR
KUELBS INVESTMENTS , a general partnership organized and
e xisting under the laws of the State of Texas ( THE " USER " )
FOR THE SPECIFIC PURPOSE OF THE PROMOTION AND ENCOURAGEMENT
O F EMPLOYMENT AND THE PUBLIC WELFARE .
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 due
dates , by the Trustee , at the option of the User , with funds
furnished by the User , upon written notice of the exercise
o f the option to prepay or redeem delivered to the Trustee
by the User not later than the 45th day prior to the date of
prepayment or redemption . Such unpaid principal install -
ments may be so prepaid or redeemed as a whole on any date ,
o r in part on any interest payment date ( and , if in part ,
such installments shall be prepaid or redeemed in inverse
chronological order of their scheduled due dates , and in
amounts not less than all of an unpaid principal
11
installment ) , at the prepayment or redemption price equal to
t he principal amount to be redeemed , plus accrued interest
t o the date of prepayment or redemption , and without
premium .
ON NOVEMBER 1 , 1989 , NOVEMBER 1 , 1994 AND NOVEMBER 1 ,
1999 , THIS BOND is subject to mandatory redemption prior to
its scheduled maturity and shall , at the option of the
✓ egistered owner thereof ( the " Bondholder " ) , be redeemed and
cancelled prior to its scheduled maturity by the Trustee
with funds to be deposited by the User into the Debt Service
Fund created by the Initial Bond Resolution ( unless such
B ond is purchased by the User or its designee and remains
o utstanding as hereinafter provided ) , at a redemption price
e qual to the principal amount thereof , plus accrued interest
t o the date of redemption , and without premium ( the " Option -
al Put Redemption " ) . In order to exercise such option the
B ondholder must , not less than 60 days prior to the applic -
able redemption date , tender and deliver to the Trustee
properly executed written notice to the Trustee to the
e ffect that such Bondholder is exercising such option ( which
n otice shall be in a form acceptable to the Trustee ) . The
Trustee shall , in its sole discretion , determine whether or
n ot a Bondholder shall have properly exercised such option
o f redemption . The aforesaid tender and delivery of such
n otice to the Trustee shall be irrevocable by such Bond -
h older . Upon delivery of such notice to the Trustee , the
B ondholder shall be obligated to tender and deliver such
B ond to the Trustee not less than 60 nor more than 90 days
prior to the applicable redemption date . NOTWITHSTANDING
THE FOREGOING PROVISIONS HEREOF , THE USER HAS RESERVED THE
RIGHT , at its option , to prevent the redemption and cancel -
lation of the Bond by causing it to be purchased by the User
o r its designee on or before the date designated for such
✓ edemption , at a purchase price equal to the principal
amount hereof plus accrued interest to the date designated
for such redemption ( the " Purchase Price " ) , in lawful money
o f the United States of America , in the manner hereinafter
provided . The Trustee , acting separately as escrow agent
( the " Escrow Agent " ) for the User and the Bondholders ,
shall , not later than 55 days prior to each applicable
✓ edemption date specified above , notify the User in writing
t hat the Bond has been tendered for redemption . To exercise
t he above option to purchase , the User shall , prior to each
✓ edemption date , notify the Escrow Agent in writing that the
User or its named designee will purchase the Bond specified
in said notice and on or before such redemption date the
User or such designee shall provide the Escrow Agent with
t he required Purchase Price , in funds which will be fully
available by such redemption date so as to permit the Escrow
Agent to pay the Purchase Price to the tendering Bondholders
o n such redemption date , and the Escrow Agent shall make
12
i
such payment to such Bondholders . If so tendered and
purchased this Bond shall be and remain outstanding and
unpaid for all purposes of the Agreement ( hereinafter
d efined ) , the Initial Bond Resolution and the Trust Inden -
ture , and shall be subordinate to all Bonds of this series
h eld by the original purchaser or its registered assigns ,
all as further provided below . By accepting and holding or
owning this Bond , the Bondholder thereby and hereby agrees
t hat the Escrow Agent shall act on the Bondholder ' s behalf
if this Bond is tendered , and the Bondholder agrees to sell
t his Bond to the User or its designee in lieu of its redemp -
t ion , all as provided above .
ON ANY DATE , . the unpaid principal installments of this
B ond are subject to mandatory prepayment or redemption , as a
whole , and shall be prepaid or redeemed prior to their
scheduled due dates , by the Trustee , with funds which shall
be furnished by the User , on the earliest practicable date ,
and in all events within sixty days , following the occur -
rence of a Final Determination of Taxability as defined and
provided for in the Agreement ( hereinafter defined ) . The
prepayment or redemption price in such event shall be equal
t o the sum of ( i ) the unpaid principal amount of this Bond
so prepaid or redeemed , plus ( ii ) accrued interest to the
d ate of prepayment or redemption , plus ( iii ) an additional
amount equal to the difference between ( a ) the amount of
interest which would have accrued on the principal amount of
t his Bond outstanding , from time to time , from the date of
t he Taxable Event ( as defined and provided for in the
Agreement ) and the prepayment or redemption date , at a
✓ ariable rate equal to 1 % over the Prime Rate , and ( h ) the
amount of interest actually paid on this Bond from the date
o f the Taxable Event to the prepayment or redemption date ,
plus ( iv ) the amount of any Interest or Penalties whichare
payable by the owner or former owner of such Bonds in
connection with the Determination of Taxability , plus ( v )
the reasonable costs and expenses incurred by each owner or
former owner of the Bonds in connection with the Determina -
t ion of Taxability and any other expenses for which the User
may be responsible under the Agreement and ( vi ) the amount
o f any taxes ( including taxes on taxes ) imposed on payments
✓ eceived by a Bond owner , with such additional amounts being
t he agreed liquidated damages ( the " Liquidated Damages " )
( for loss of a bargain and not as a penalty ) which the owner
o f this Bond will be due , and which shall be a direct
o bligation of the User . Such prepayment or redemption price
shall constitute the entire amount due with respect to this
B ond as a result of the occurrence of a Final Determination
o f Taxability . " Interest " for purposes hereof , shall mean
t hat rate of interest imposed by Code Section 6601 , and
d etermined under Section 6621 , on the underpayment of taxes
and / or deficiencies . " Penalty " shall mean those penalties
imposed by Code Sections 6651 ( a ) ( 3 ) , 6653 ( a ) , 6655 and 6656
13
as the same may be amended , supplemented or succeeded from
time to time .
IN ADDITION , if there shall be a Final Determination of
Taxability , the , User shall be obligated to , and promptly
shall , pay an additional amount to the Trustee for the sole
benefit of the owner or owners of this Bond only in the
e vent that this Bond or any principal portion thereof was
outstanding on the date of the Taxable Event but was paid or
✓ edeemed prior to the mandatory prepayment or redemption
date described and provided for in the preceding paragraph
o f this Bond ( the " Taxable Period " ) . Such payment shall be
sufficient in aggregate to pay in respect of each principal
installment of this Bond which was paid or prepaid or
✓ edeemed during the Taxable Period , the amount the owner
hereof would have received as agreed liquidated damages if ,
and assuming that , the aforesaid mandatory prepayment or
✓ edemption date had occurred on the actual date of payment
o r prepayment or redemption of such principal installment .
The Trustee shall pay such additional amount to the owner or
owners of this Bond during the Taxable Period , as shown by
the Bond Registration Books .
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
Trustee , in inverse chronological order of their scheduled
due dates in amounts not less than all of an unpaid
principal installment ) , at a prepayment or redemption price
e qual to the principal amount thereof to be prepaid or
✓ edeemed plus accrued interest thereon to the date of
prepayment or redemption , and without premium , with and to
the extent of any surplus funds remaining in the Construc -
t ion Fund ( created by the Initial Bond Resolution ) after the
completion of the Project , as provided and required by
S ection 16 of the Initial Bond Resolution .
THE AGREEMENT provides that any provision for any
payment contained in the Agreement or this Bond shall be
h eld to be subject to reduction to the amount allowed under
the applicable usury 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
u sury be paid or collected with respect to this Bond .
AT LEAST 30 DAYS PRIOR to the date fixed for any pre -
payment or redemption of the unpaid principal installments
o f this Bond , the Trustee shall cause a written notice of
such redemption to be mailed to the registered owner of this
B ond addressed to such owner at the address appearing on the
B ond Registration Books ; provided , that in the alternative
such notice may be given by any other method requested in
w riting by the registered owner , subject to the approval of
14
the Trustee . By the date fixed for any such prepayment or
✓ edemption , due provision shall be made by the User with the
Trustee and the Paying Agent for the payment of the
principal amount of this Bond which is to be prepaid or
✓ edeemed , plus accrued interest thereon to the date fixed
for prepayment or redemption , plus any required prepayment
o r redemption premium , and any other amounts due the owner
o f this Bond . If such 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
✓ edeemed thereby automatically shall be deemed to have been
prepaid or redeemed prior to their scheduled due dates , and
they shall not bear interest after the date fixed for
prepayment or redemption , and they shall 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 in -
stallments 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 are not subject to
prepayment or redemption prior to their scheduled due dates .
IF THE 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 located are authorized by law or
e xecutive order to close , then the date for such payment
shall be the next succeeding day which is not such a
S aturday , Sunday , legal holiday , or day on which banking
institutions are authorized to close ; and payment on such
d ate shall have the same force and effect as if made on the
o riginal date of payment .
IT IS HEREBY CERTIFIED AND COVENANTED that this Bond
has been duly 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 special revenue obligation of the
Issuer , and that the principal of and interest on this Bond
are payable from and secured by a first lien on and pledge
o f the payments designated as " Installment Loan Payments " to
be made or paid , or caused to be made or paid , to the
Trustee , pursuant to the Initial Bond Resolution , the Trust
Indenture and the " Loan Agreement between the Euless Indus -
t rial Development Authority and Leo Kuelbs , Gregory Kuelbs
and John Kuelbs , " dated as of October 1 , 1984 ( the " Agree -
ment " ) . The User , a Texas general partnership , is uncondi -
t ionally obligated ( subject to the provisions of Sections
6 . 01 and 6 . 02 of the Agreement relating to transfer of
assets and assignment ) to make or pay , or cause to be made
15
or paid , without set - off , recoupment , or counterclaim , to
the Trustee each such Installment Loan Payment for deposit
into the Debt Service Fund created for the benefit of the
o wners of the Bonds by the Initial Bond Resolution , in
aggregate amounts sufficient to pay and redeem , and provide
f or the payment and redemption of , the principal of and
interest on this Bond , and to pay all other amounts required
by the Agreement , the Initial Bond Resolution , and the Trust
Indenture when due , subject to and as required by the provi -
sions of the Agreement , the Initial Bond Resolution , and the .
Trust Indenture .
THIS BOND is secured by a Trust Indenture dated as of
N ovember 1 , 1984 ( the " Trust Indenture " ) , whereunder Allied
L akewood Bank , or its successor , as Trustee , is custodian of
the Debt Service Fund and is obligated to enforce the rights
o f the owner of this Bond and to perform other duties in the
manner and under the conditions stated in the Trust Inden -
ture . In case an " Event of Default , " as defined in the
Trust Indenture , shall occur , the unpaid principal install -
ments of this Bond may be declared to be due and payable
immediately upon the conditions and in the manner provided
in the Trust Indenture . This Bond is additionally secured
by a Deed of Trust , Security Agreement and Assignment of
Rents dated as of November 1 , 1984 from the User to B . R .
Daniel and/ or John Donor and/ or Horace Weaver , as mortgage
t rustee for the benefit of the Trustee ( the " Deed of Trust " )
and Assignment of Rents and Leases dated as of November 1 ,
1984 from the User to the Trustee ( the " Assignment " ) ,
✓ elating to certain property of the User pledged to secure
the payment of this Bond . Reference is hereby made to the
Initial Bond Resolution , the Trust Indenture , the Deed of
Trust , the Assignment and the Agreement for additional
provisions with respect to the nature and extent of the
security , the rights , duties , and obligations of the User ,
the Issuer , the Trustee , and the owner of this Bond , the
t erms upon which this Bond is issued and secured , and the
modification of any of the foregoing .
THE ISSUER has reserved the right , subject to the
✓ estrictions stated in the Initial Bond Resolution , 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 Installment Loan Payments
pursuant to the Agreement and entitled to the benefits of
and secured by the Trust Indenture and the Deed of Trust in
the same manner and to the same extent as , and be on a
parity with , this Bond and all then outstanding Additional
Bonds .
THE ISSUER also has reserved the right to amend the
Initial Bond Resolution and the Trust Indenture , as provided
therein ; and under some ( but not all ) circumstances
16
amendments thereto must be approved by the owners of 51 % 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
B ond Resolution , the Trust Indenture , the Agreement and the
D eed of Trust . Except for the lien on and the assignment
and pledge of such property , payments , and amounts , no
property of the Issuer is encumbered by any lien or security
interest for the benefit of the owner of this Bond . Neither
the State of Texas , the City of Euless , 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
t o this Bond , or the interest hereon ; and neither the faith
and credit , nor the taxing power , of the State of Texas , the
City of Euless , 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 may be assigned and shall be transferred only
o n the Bond Registration Books of the Issuer kept by the
Trustee , as Registrar , upon the terms and conditions set
f orth in the Initial Bond Resolution , the Trust Indenture
and the Assignment provisions endorsed hereon . Such trans -
f ers shall be without expense to the owner hereof , but any
t axes or other governmental charges required to be paid with
✓ espect to the same shall be paid by the owner requesting
such transfer as a condition precedent to the exercise of
such privilege . The Trustee shall not be required to make
t ransfers of this Bond within ten ( 10 ) days prior to an
interest payment date or prepayment or redemption date or
subsequent to the date of mailing of notice of prepayment or
✓ edemption of any principal installments of this Bond ,
anything in this Bond to the contrary notwithstanding . The
✓ egistered owner of this Bond may be deemed and treated by
the Issuer , the Trustee and the User as the absolute owner
hereof for all purposes , including payment and discharge of
liability upon this Bond to the extent of such payment , and
the Issuer , the Trustee and the User shall not be affected
by any notice to the contrary .
THE OWNER HEREOF , by the purchase of this Bond , agrees
that notwithstanding anything herein contained to the
contrary this Bond may only be transferred to an " Institu -
tional Investor " and only after the Issuer and the Trustee
shall have received a certificate ( delivered by certified
mail , postage prepaid ) of the transferor of this Bond
stating that such transferee is an " Institutional Investor " .
17
` " Institutional Investor " shall mean any savings institution ,
commercial bank , a bank or trust company , insurance company
or mutual fund ; provided , however , that the provisions of
this sentence need not be satisfied in the event that such
transferee is a subsidiary bank of Allied Bancshares , Inc . ,
a Texas corporation . The foregoing restriction shall not
be , nor be construed as , a restriction on the granting of a
participation or participations in the Bond to any Institu -
tional Investor by the holder hereof .
THIS BOND shall not be valid or become obligatory for
any purpose or be entitled to any security or benefit under
the Trust Indenture until the Trustee ' s Certificate of
Authentication hereon shall have been signed by the Trustee
and the Delivery Certificate hereon shall have been com -
pleted .
IN WITNESS WHEREOF , this Bond has been signed with the
manual or facsimile signatures of the President and the
Secretary of the Board of Directors of the Issuer , and the
official seal of the Issuer has been duly impressed , or
placed in facsimile , on this Bond .
( facsimile ) ( facsimile )
Secretary , Board of Directors President , Board of Directors
( ISSUER ' S SEAL )
FORM OF TRUSTEE ' S CERTIFICATE OF AUTHENTICATION
TRUSTEE ' S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds initially issued under
the provisions of the within mentioned Agreement , Initial
Bond Resolution and Trust Indenture .
ALLIED LAKEWOOD BANK
Trustee
By
Authorized Officer
FORM OF ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED , the registered owner of this Bond
last listed below sells , assigns , and transfers the within
18
Bond to the Assignee last listed below , and hereby autho -
rizes the transfer of this Bond on the Bond Registration
B ooks of the Trustee . Such assignment shall not be effec -
t ive until such Assignee presents this Bond to the Trustee
f or verification of such assignment and gives the Trustee
its address to which payments shall be made and the Trustee
makes notation of such Assignment below .
DATE OF . REGISTERED SIGNATURE OF
ASSIGNMENT OWNER ASSIGNEE REGISTRAR
FORM OF DELIVERY CERTIFICATE
DELIVERY CERTIFICATE
THIS BOND was delivered to and paid for by the initial
purchaser hereof on
FORM OF PREPAYMENT RECORD
PREPAYMENT RECORD
Date Principal Remaining Name & Title of Signature of
of Prepayment or Principal Authorized Officer Authorized
Payment Redemption Balance Making Entry Officer
Section 6 . PLEDGE . The Bonds and the interest thereon
are and shall be payable from and secured by a first lien on
and pledge of the payments designated as Installment Loan
P ayments to be made or paid , or caused to be made or paid ,
t o the Trustee by the User , pursuant and subject to the
t erms and provisions of this Initial Bond Resolution , the
19
Trust Indenture , and the Agreement ; and such Installment
Loan Payments are further pledged irrevocably to the estab -
lishment and maintenance of the Debt Service Fund herein -
after created .
Section 7 . DEBT SERVICE FUND . ( a ) Establishment of
Debt Service Fund . A separate and special trust fund to be
designated and known as the " Debt Service Fund " shall be
e stablished by the Issuer with the Trustee for the benefit
o f the owners of the Bonds pursuant to the Agreement and the
Trust Indenture , and maintained as provided in this Initial
Bond Resolution and the Trust Indenture , as long as any of
the Bonds , or interest thereon , is outstanding and unpaid .
( b ) Accrued Interest . Immediately after the delivery
o f the Bond to the initial purchaser thereof , all accrued
interest , if any , received from the proceeds from the sale
and delivery of . the Bond , shall be transferred by the
Trustee into the Debt Service Fund .
( c ) Installment Loan Payments . The User shall make
o r pay , or cause to be made or paid , to the Trustee , which
shall deposit into the Debt Service Fund , Installment Loan
Payments as follows :
( 1 ) On or before each interest payment date as pro -
vided 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 , will be sufficient to pay the interest
coming due on the Bond on each interest payment
date ; and
( 2 ) On or before each principal payment date as
provided in Section 2 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 , will be sufficient to
pay the principal of the Bond scheduled to be paid
o n each principal payment date ; and
( 3 ) On or before any optional or mandatory prepayment
o r redemption date as permitted or required in the
FORM OF BOND set forth in Section 5 , an amount
which , together with any other amounts then on
deposit and available for such purpose , will be
sufficient to pay the prepayment or redemption
price ( including any agreed liquidated damages )
specified therein ; and
( 4 ) Promptly after the occurrence of a Final Determi
n ation of Taxability , the additional amount
✓ equired to pay the agreed liquidated damages to
the owner of the Bond for any installments of
20
principal which were unpaid on the date of any
Taxable Event , but which were paid or redeemed
prior to the prepayment or redemption of all
unpaid principal installments after a Final
Determination of Taxability , all as provided . in
the FORM OF BOND set forth in Section 5 ; and
( 5 ) On any date on which the Bonds are declared to be
immediately due and payable pursuant to the Trust
Indenture , an amount which , together with any
o ther amounts then on deposit and available for
such purpose , will be sufficient to pay the prin -
cipal of all Bonds then outstanding and the
interest accrued thereon to such date and any
o ther amounts due with respect to the Bonds ; and
( 6 ) Promptly after receipt of each statement and
✓ equest for payment , an amount equal to the
charges of the Trustee for performing the duties
o f Trustee and Registrar , and the charges of the
Paying Agent for the Bond , as designated in the
FORM OF BOND set forth in Section 5 , for paying or
✓ edeeming principal installments of the Bond , and
paying the interest thereon .
In the event the User should fail to make or pay , or cause
t o be made or paid , any of the required Installment Loan
P ayments set forth in this Section , each such required
payment shall continue as an obligation of the User until
fully paid , and the User agrees to pay the same to the
Trustee , for the benefit of the owners of the Bonds , with
interest thereon , to the extent legally permissible , at the
rate of fifteen percent ( 15 % ) per annum , from the date any
such payment was due until payment thereof .
( d ) Redemption . The Bonds initially authorized hereby
shall be subject to redemption , and may or shall be re -
d eemed , as specified in the FORM OF BOND set forth in
S ection 5 .
( e ) Payments from Debt Service Fund . Except as other -
w ise specifically provided in this Initial Bond Resolution
o r the Trust Indenture , the Debt Service Fund shall be used
by the Trustee only to pay the principal of , and prepayment
o r redemption premium , if any , agreed liquidated damages , if
any , and interest on the Bonds , when due , and the charges of
the Trustee , Registrar , and Paying Agent ; and the Trustee
shall make available to the Paying Agent , out of the Debt
S ervice Fund , the amounts required to pay or redeem the
principal of and interest on the Bonds when due , and the
Trustee shall make all other payments as required by this
Initial Bond Resolution and the Trust Indenture .
21
( f ) Immediately Available Funds . The User shall make
all Installment Loan Payments in funds that will be immedi -
ately available and allow the Paying Agent to pay , in lawful
money of the United States of America , the principal , inter -
est , and other amounts with respect to the Bonds , when due .
( g ) Investment of Funds . Any money held as part of
the Debt Service Fund shall be invested or reinvested by the
Trustee , upon the written direction of the Approving Officer
in any obligations , including certificates of deposit of any
bank including , but not limited to , the Trustee or any
affiliated bank , such investments to mature in a manner and
at a time which will allow timely payment of all amounts due
with respect to the Bonds . The Trustee may make any such
investments in pooled or common trust funds and/ or through
its own bond department . The Trustee shall make no
investments except as specifically directed by the Approving
O fficer . The investments of the Debt Service Fund shall be
d eemed to be a part of such Fund , and , for the purpose of
determining the amount of money in such Fund , such
investments shall be valued at their cost or market value ,
whichever is lower . 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 any losses on investments thereon
shall be charged against the Debt Service Fund . If at any
t ime it shall become necessary that some or all of the
investments made with the moneys from the Debt Service Fund
be redeemed or sold to raise moneys necessary to comply with
the provisions of this Initial Bond Resolution or the Trust
Indenture , the Trustee 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 Trustee 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 Trustee shall be liable for ( 1 )
any loss resulting from its willful 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 Trustee is unable , after
✓ easonable effort and within a reasonable time , to make ,
✓ edeem , or sell any such investment , it shall so notify in
w riting the Approving Officer and thereafter the Trustee
shall be relieved of all responsibility with respect
thereto . In the event of any such loss , the User shall make
additional deposits to restore same if and to the extent
✓ equired to enable the Trustee to make all payments required
to be made from the Debt Service Fund , and such additional
22
deposits shall constitute additional amounts of Installment
Loan Payments . It is expressly provided by the Issuer that ,
because investments hereunder are to be made by the Trustee
pursuant to written instructions of the User , the Trustee
shall have no liability with respect thereto if , as a result
thereof , the Bonds become " arbitrage bonds " within the
meaning of Section 103 ( c ) of the Code .
Section 8 . SECURITY FOR FUNDS . All uninvested money
in all Funds established pursuant to this Initial Bond
Resolution ( including the Debt Service Fund and the Con -
struction Fund ) , shall be secured by the Trustee in such
manner and to such extent as is required of Texas state
banks when acting in a fiduciary capacity .
Section 9 . THE USER ' S PAYMENTS . ( a ) Unconditional
Obligation . The User has covenanted in the Agreement , and ,
by the approval of this Initial Bond Resolution , the User
further has unconditionally obligated itself and agreed ,
✓ egardless of and notwithstanding any provisions of the
Agreement , other than Sections 6 . 01 and 6 . 02 thereof relat -
ing to 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 ,
w ithout set - off , recoupment , or counterclaim , the
Installment Loan Payments to the Trustee in the amounts
✓ equired 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 Trust
Indenture ; and said payments by the User shall be and
constitute the Installment Loan Payments as contemplated and
✓ equired by the Agreement . Each Bondholder is and shall be
e ntitled to rely unconditionally on the agreements , cove -
nants , and representations set forth in this Initial Bond
Resolution and the Trust Indenture .
( b ) Prepayments . It is further understood that the
User may prepay all or any part of each Installment Loan
Payment , and any such prepayment , and any earnings thereon ,
shall be applied by the Trustee to the payment of each
Installment Loan Payment ; provided that the prepayment or
✓ edemption at any time of any unpaid principal installments
o f the Bonds prior to their due dates , with funds from any
source ( whether from Installment Loan Payments or other -
w ise ) , shall not relieve the User of its obligation to make
o r pay , or cause to be made or paid , each Installment Loan
P ayment as specified in Section 9 ( a ) , when due with respect
t o any remaining unpaid principal installments of the Bonds .
Section 10 . ADDITIONAL PARITY BONDS . ( a ) Additional
B onds . The Issuer reserves the right , upon the request of
the User and consent of the holders of 51 % in principal
amount of the then outstanding Bonds , to issue additional
parity revenue bonds ( " Additional Bonds " ) in any amounts ,
23
• for any lawful purpose or purposes , including the refunding
of any outstanding Bonds . Such Additional Bonds , along with
the Bond authorized by this Initial Bond Resolution , shall
be considered , constitute , and be " Bonds " as defined in , and
for all purposes of , the Agreement and the Trust Indenture .
Furthermore , for all purposes of this Initial Bond
Resolution , the term " Bonds " 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 premium , if any , agreed
liquidated damages , if any , and the interest thereon , shall
be payable from the Debt Service Fund , and shall be payable
from and secured by a first lien on and pledge of
Installment Loan Payments pursuant to the Agreement , and
secured by the Trust Indenture and the Deed of Trust in the
same manner and to the same extent as , and be on a parity
with , all then outstanding Bonds and Additional Bonds . Such
Additional Bonds may be issued in one or more series or
issues , in various principal amounts , maturing at different
times , bearing interest at different rates , be payable in
installments or otherwise be redeemable prior to maturity ,
with or without redemption premium , on whatever terms or
prices , and may contain such other provisions as may be
provided in any Bond Resolution authorizing the issuance of
such Additional Bonds . It is provided , however , that no
series or issue of Additional Bonds shall be issued unless :
( i ) 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 outstanding Bonds and Addi -
tional Bonds , or affect the validity of the then
outstanding Bonds or Additional Bonds and ( B ) such
Additional Bonds are secured in the same manner and to
the same extent as and are on a parity with all then
outstanding Bonds and Additional Bonds ;
( ii ) A certificate is executed by the President
and Secretary of the Board of Directors of the Issuer
t o the effect that no default exists in connection with
the Bonds or the Trust Indenture ( or any amendment or
supplement thereto ) or with any of the covenants or
requirements of this Initial Bond Resolution or the
B ond Resolutions ( or any amendments or supplements
thereto ) authorizing the issuance of all then out -
standing Bonds and Additional Bonds , and that the Debt
S ervice Fund contains the amount then required to be on
d eposit therein ;
( iii ) The Bond Resolution authorizing the issuance
of such series or issue of Additional Bonds provides
f or additional Installment Loan Payments to be depos -
ited into the Debt Service Fund in amounts sufficient
t o pay all principal of , redemption premium , if any ,
24
agreed liquidated damages , if any , and interest on such
Additional Bonds , together with all Trustee , Registrar ,
and Paying Agent fees and expenses attributable to such
Additional Bonds ;
( iv ) The Approving Officer approves in writing the
Bond Resolution authorizing the issuance of such series
or issue of Additional Bonds , as required by the
Agreement ;
( v ) The principal and interest payment dates
during any year in which principal and interest on such
Additional Bonds are scheduled to be paid , are the same
for the Additional Bonds and the Bonds ;
( vi ) The holders of at least 51 % in principal
amount of the Bonds then outstanding expressly consent
in writing to the issuance of such Additional Bonds ;
and
( vii ) The Commission expressly gives its prior
approval to the issuance of such Additional Bonds .
( b ) Amendments to Trust Indenture Unnecessary . It
shall not be necessary or required that the Trust Indenture
be amended or supplemented to cause any series or issue of
Additional Bonds to be secured by the Trust Indenture . All
that shall be necessary or required to cause any such Addi -
t ional Bonds to be secured by the Trust Indenture is for the
Issuer to deliver to the Trustee a certified copy of the
B ond Resolution authorizing their issuance prior to the
d elivery of such Additional Bonds .
Section 11 . SPECIAL COVENANTS . The Issuer further
covenants as follows :
( a ) Installment Loan Payments Pledged to Bonds Only .
O ther than for the payment of the. Bonds , as provided in this
Initial Bond Resolution and the Trust Indenture , the In -
stallment Loan Payments have not in any manner been pledged
t o the payment of any debt or obligation of the Issuer ;
( b ) Non - Encumbrance . While any of the Bonds is out -
standing , the Issuer will not ( except with respect to the
B onds and any Additional Bonds and except as provided in the
Agreement , any Bond Resolution , or the Trust 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 Fund , the In -
stallment Loan Payments , the Construction Fund , or any
property or moneys deposited with the Trustee ;
( c ) Performance by Issuer . The Issuer will carry out
all of its covenants and obligations under this Initial Bond
25
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 per -
formance and the use and filing of mandamus proceedings , in
any court of competent jurisdiction , 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 execute or permit the
execution of any contract or agreement , or terminate or
amend the Agreement , in any manner that would relieve or
abrogate the obligations of the User to make or pay , or
cause to be made or paid , when due , all Installment Loan
Payments , in the manner and to the extent required by the
Agreement , this Initial Bond Resolution , and the Trust
Indenture , or which would change or affect Sections 4 . 04 ,
4 . 05 , 4 . 06 , 6 . 01 , 6 . 02 , 6 . 03 and 6 . 04 of the Agreement
without the written consent of all of the Bondholders and
the Trustee .
Section 12 . BONDS ARE SPECIAL OBLIGATIONS . The Bonds
are and shall be special revenue obligations of the Issuer
payable solely from payments to be made under the Agreement ,
this Initial Bond Resolution , the Deed of Trust and the
Trust Indenture ; and the Bondholders shall never have the
✓ ight to demand payment thereof or the interest thereon out
o f funds raised or to be raised by taxation , or from any
source whatsoever other than the foregoing . The Bonds are
n ot and shall never be considered as obligations of the
State of Texas , the Governmental Unit , or any other
political subdivision or agency of the State of Texas , or of
the Board of Directors of the Issuer , either individually or
collectively .
Section 13 . AMENDMENTS . ( a ) Amendment with Consent
o f Owners of 51 % of Bonds . Subject to approval in writing
by the Approving Officer of the User , the owners of 51 % in
aggregate principal amount of the then outstanding Bonds
shall have the right from time to time to approve any amend -
ment to any Bond Resolution , or to the Trust Indenture
( provided that the Trustee must approve any amendment to the
Trust Indenture ) , which may be deemed necessary or desirable
by the Issuer ; provided , however , that nothing herein con -
tained shall permit or be construed to permit the amendment ,
w ithout the consent of the owner of each of the then out -
standing Bonds affected thereby , of the terms and conditions
o f any Bond Resolution , the Bonds , or the Trust Indenture ,
so as to :
( 1 ) change the Debt Service Fund requirements , inter -
est payment dates , or the due date or dates , or
the maturity or maturities of the outstanding
Bonds ;
26
( 2 ) reduce the rate of interest borne by any of the
outstanding Bonds ;
( 3 ) reduce the amount of the principal of , redemption
premium , if any , liquidated damages , if any , or
interest on the outstanding Bonds , or impose any
conditions with respect to such payments ;
( 4 ) modify the terms of payment of principal of ,
redemption premium , if any , liquidated damages , if
any , or interest on the outstanding Bonds , or
impose any conditions with respect to such pay -
ments ;
( 5 ) affect the rights of the owners of less than all
of the Bonds then outstanding ;
( 6 ) decrease the minimum percentage of the principal
amount of Bonds necessary for consent to any such
amendment ; or
( 7 ) alter the obligations of the User to pay Install -
ment Loan Payments in the manner and to the extent
provided in the Agreement , the Bond Resolution ,
and the Trust Indenture .
( b ) Notice of Amendment . If at any time the Issuer
shall desire to amend any Bond Resolution , or the Trust
Indenture , under this Section , the Issuer shall file a copy
o f the proposed amendment at the principal office of the
Trustee and shall cause notice of the proposed amendment to
be given by registered or certified mail to the owner of
e ach Bond as shown by the Bond Registration Books required
by the terms hereof to be kept by the Trustee as Registrar .
S uch notice shall briefly set forth the nature of the
proposed amendment and shall state that a copy thereof is on
f ile at the principal office of the Trustee for inspection
by all owners of Bonds .
( c ) Consent to Amendment . Whenever at any time not
less than 30 days , and within one year , from the date of
g iving said notice or other service of written notice the
Issuer shall receive an instrument or instruments executed
by the owners of at least 51 % in aggregate principal amount
o f all Bonds 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
✓ esolution in substantially the same form .
( d ) Effect of Amendment . Upon the adoption of any
amendatory resolution pursuant to the provisions of this
S ection , any such Bond Resolution , or the Trust Indenture ,
shall be deemed to be amended in accordance with such
27
amendatory resolution , and the respective rights , duties ,
and obligations under such amendatory resolution , or the
Trust 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 giving of the notice provided for in this Section , and
shall be conclusive and binding 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 of the
g iving of such notice by the Bondholder who gave such
consent , or by a successor in title , by filing notice
thereof with the Trustee and the Issuer , but such revocation
shall not be effective if the owners of 51 % in aggregate
principal amount of the then outstanding Bonds have , prior
t o the attempted revocation , consented to and approved the
amendment .
( f ) Ownership of Bonds . For the purpose of this
S ection , the fact of being a Bondholder and the amount and
numbers of such Bonds , and the date of being a Bondholder ,
may be conclusively presumed , or may be proved by the
appropriate entries in the Bond Registration Books
maintained by the Trustee as Registrar .
( g ) Amendments Without Consent . Notwithstanding the
provisions of ( a ) through ( f ) of this Section , and without
g iving notice of the proposed amendment and without the con -
sent of the Bondholders , but subject to approval of the
Approving Officer and , in the case of any amendment to the
Trust Indenture , with the approval of the Trustee , the
Issuer may , at any time , amend any Bond Resolution , or the
Trust 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
✓ espect materially and adversely affect the interest of the
Bondholders , provided that no such amendment shall be made
contrary to the proviso to Section 13 ( a ) , and a duly certi -
f ied or executed copy of each such amendment shall be filed
w ith the Trustee .
Section 14 . ESTABLISHMENT OF CONSTRUCTION FUND . ( a )
Deposit of Bond Proceeds into Construction Fund . Prior to
o r immediately after the sale and delivery of the Bonds
authorized hereby , the Issuer shall establish the Construc -
t ion Fund with the Trustee , as defined in and required by
the Agreement . The Issuer shall deposit all of the proceeds
f rom the sale and delivery of the Bonds authorized hereby
into the Construction Fund . The Trustee shall draw on and
u se the Construction Fund as hereinafter provided . The
amount so deposited into the Construction Fund shall
28
constitute the Loan made to the User by the Issuer as
contemplated and provided in the Agreement .
( b ) Investment of Money in Construction Fund . Any
money held as part of the Construction Fund , other than the
amounts described in Section 15 ( a ) , shall be invested or
✓ einvested by the Trustee upon the written direction of the
Approving Officer in any obligations , including certificates
o f deposit of any bank , including but not limited to , the
Trustee or any affiliated bank , such investments to mature
in a manner and at a time which will allow timely payment of
all amounts due with respect to the Bonds to be requested
f or payment or reimbursement by the User hereunder . The
Trustee may make any such investments in pooled or common
t rust funds and/ or through its own bond department . The
Trustee shall make no investments except as specifically
d irected in writing by the Approving Officer . The
investments of the Construction Fund shall be deemed to be a
part of the Construction Fund , and for the purpose of
d etermining the amount of money in the Construction Fund ,
such investments shall be valued at their cost or market
value , whichever is lower . The income and profits , includ -
ing realized discount on obligations purchased , received
f rom such investments shall be deposited in or credited to
the Construction Fund , and any losses on investments shall
be charged against the Construction Fund . Upon the written
d irection of the Approving Officer the Trustee shall redeem
o r sell all or any designated part of such investments
e mploying , in the case of a sale , any commercially reason -
able method of effecting the same . The Trustee shall not be
liable or responsible for any loss resulting from the
✓ edemption or sale of any such investment as herein autho -
✓ ized ; except that ( notwithstanding any provisions of the
Agreement ) the Trustee shall be liable for : ( 1 ) any loss
✓ esulting from its willful 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 loss resulting from
the making , redeeming , or selling of any investment which
w as not authorized by written direction of the Approving
O fficer . If the Trustee is unable , after reasonable effort
and within a reasonable time after receipt of the required
written direction , to make , redeem , or sell any such invest -
ment , it shall so notify in writing the Approving Officer ,
and thereupon the Trustee shall be relieved of all liability
o r responsibility with respect thereto . It is expressly
provided by the Issuer that , because investments hereunder
are to be made by the Trustee pursuant to written
instructions of the User , the Trustee shall have no
liability with respect thereto if , as a result thereof , the
B onds become " arbitrage bonds " within the meaning of Section
103 ( c ) of the Code .
29
( c ) Deposit of Accrued Interest , Income , and Profits .
Any accrued interest received from the sale of the Bonds ;
and , upon the written direction of the Approving Officer and
t o the extent that such use is consistent with the require -
ments of Section 15 ( b ) ( v ) , all income and profits received
f rom the investment of the Construction Fund , shall ( as soon
as practicable after any receipt thereof has been deposited
in or credited to the Construction Fund ) be transferred by
the Trustee and deposited into the Debt Service Fund to be
used to pay interest on the Bonds during the period of
construction of the Project .
Section 15 . PAYMENTS FROM CONSTRUCTION FUND . ( a )
Reimbursement for and Payment of Cost of Project . The
Trustee shall make an initial payment , if requested by the
U ser in the manner described below for payments from the
Construction Fund , to reimburse the User for any Cost of the
P roject , paid by the User prior to such date of delivery .
The Trustee shall make such initial payment , if requested ,
and shall make any subsequent payments from the Construction
Fund to enable the User to pay , or to reimburse the User for
paying , any Cost of the Project , from time to time upon
receipt by the Trustee of a request of the User signed by
the Approving Officer and an authorized officer of Allied
B ank Irving , the initial Bondholder . Such request shall be
accompanied by a certificate stating with respect to each
payment as follows :
( i ) the expenditures , payee and related invoice
in form and substance acceptable to the Trustee , for
which payment is to be made or for which reimbursement
is requested ;
( ii ) that the amounts requested are to be , or have
been paid , by the User for property or to contractors ,
subcontractors , materialmen , engineers , architects , or
o ther persons who will perform or have performed neces -
sary or appropriate services or will supply or have
supplied necessary or appropriate materials for the
acquisition , construction , equipping , and furnishing of
the Project , as the case may be , and that , to the best
o f his knowledge , the fair value of such property ,
services , or materials is not exceeded by the amounts
✓ equested to be paid ;
( iii ) that no part of the several amounts requested
t o be paid to the User , as stated in such certificate ,
h as been or is the basis for the payment of any money
in any previous or then pending request ;
( iv ) that the payment of the amounts requested
w ill not result in a breach of any of the covenants of
the User contained in the Agreement , and particularly
30
those covenants in Sections 4 . 05 and 4 . 06 thereof ,
which relate to the Code and the Regulations ; and
( v ) that the expenditure of such amounts to be
paid , when added to all previous disbursements from the
Construction Fund , will result in at least 90% of the
t otal of such disbursements , other than disbursements
for issuance expenses , being used to provide land or
property of a character subject to the allowance for
depreciation under the Code ( which expenditures are
amounts paid or incurred which are , for federal income
t ax purposes , chargeable to the Project ' s capital
account or would be so chargeable either with a proper
election by the User [ for example , under Section 266 of
the Code ] or but for a proper election by the User to
d educt such amounts ) .
( b ) Reliance by Trustee . The Trustee shall rely fully
o n any such request and certificate delivered pursuant to
this Section and shall not be required to make any investi -
gation in connection therewith . If amounts paid by the
Trustee with respect to any portion of the Project should
e xceed the cost thereof , the User shall promptly repay such
o verpayment into the Construction Fund .
Section 16 . SURPLUS CONSTRUCTION FUNDS . ( a ) Disposi -
tion of Surplus Funds . The 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 Trustee
immediately upon completion of the Project . If , upon the
completion of the Project , there shall be any surplus funds
✓ emaining 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 of the
✓ elease of the Trust Indenture under the terms thereof , then
any such funds shall be used immediately to prepay or redeem
principal installments of the Bonds , in inverse chronologi -
cal order , in the manner set forth in the FORM OF BOND in
Section 5 for the prepayment or redemption of principal
installments of the Bonds with surplus Construction Fund
moneys , to the extent of any such available funds ; provided
that prior to such use , the Issuerand the Trustee shall
have been furnished with an unqualified opinion of Bond
Counsel to the effect that the use of moneys from the
Construction Fund for such purpose will be lawful and will
not impair the exemption of interest on the Bonds from
f ederal income taxation ; and provided , further , that the
U ser shall deposit into the Construction Fund prior to such
prepayment or redemption an amount sufficient to cause the
t otal amount in the Construction Fund to be equal to not
less than all of the unpaid principal installment or
installments to be prepaid or redeemed .
31
( b ) Disposition of Construction Fund upon Acceleration
and Redemption . If the Trustee shall declare the principal
o f the Bonds and the interest accrued thereon immediately
due and payable as the result of an Event of Default spec -
ified in the Trust Indenture , or if the Bonds are optionally
o r mandatorily prepaid or redeemed prior to maturity as a
whole in accordance with their terms , any amounts remaining
in the Construction Fund shall be used immediately by the
Trustee for the purpose of paying principal of , redemption
premium , if any , agreed liquidated damages , if any , and
interest on the Bonds when due .
Section 17 . DAMAGED , MUTILATED , LOST , STOLEN , OR
DESTROYED BONDS . ( a ) Replacement Bonds . In the event any
o f the outstanding Bonds authorized hereby is damaged ,
mutilated , lost , stolen , or destroyed , the Issuer shall
e xecute , and the Trustee 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 ) Application for Substitute Bonds . Application for
e xchange and substitution of damaged , mutilated , lost ,
stolen , or destroyed Bonds shall be made to the Issuer . In
e very case , the applicant for a substitute bond shall
furnish to the Issuer and to the Trustee such security or
indemnity as may be required by them to save each of them
and the Paying Agent harmless , to include , without
limitation , a surety bond naming the Trustee and Issuer as
o bligees , plus an affidavit and any other showing and
✓ epresentation as may be required by the Trustee in
✓ eference to such loss . In every case of loss , theft , or
destruction of a Bond , the applicant shall also furnish to
the Issuer and to the Trustee evidence to their satisfaction
o f 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 fore -
g oing 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 , redemp -
t ion premium , if any , agreed liquidated damages , if any , or
interest on the Bond , the Issuer may authorize the payment
o f the same ( without surrender thereof except in the case of
a damaged or mutilated Bond ) instead of issuing a substitute
B ond , provided security or indemnity is furnished as above
provided in this Section .
( d ) Charge for Issuing Substitute Bonds . Prior to the
issuance of any substitute bond , the Issuer and the Trustee
may charge the owner of such Bond with all legal , printing ,
32
and other expenses in connection therewith . Every substi -
tute bond issued pursuant to the provisions of this Section
by virtue of the fact that any Bond is lost , stolen , or
destroyed shall constitute a contractural obligation of the
Issuer whether or not the lost , stolen , or destroyed Bond
shall be found at any time , or be enforceable by anyone , and
shall be entitled to all the benefits of the Trust Indenture
and this Initial Bond Resolution equally and proportionately
with any and all other Bonds duly issued under this Initial
B ond Resolution .
( e ) Authority for Issuing Substitute Bonds . This Ini -
t ial Bond Resolution shall constitute sufficient authority
f or the issuance of any such substitute bonds without neces -
sity 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 .
S ection 18 . NO ARBITRAGE . The Issuer and the User
have covenanted to and with the purchasers of the Bonds that
they will make no use of the direct or indirect proceeds
thereof at any time throughout the term thereof which would
cause the Bonds to be arbitrage bonds within the meaning of
S ection 103 ( c ) of the Code or any Regulations or rulings
pertaining thereto ; and by this covenant the Issuer and the
User are obligated to comply with the requirements of the
aforesaid Section 103 ( c ) and all applicable and pertinent
Regulations relating to arbitrage bonds .
S ection 19 . FINDINGS . Based upon the representations
made by the User in the Agreement , the Board of Directors
hereby affirmatively finds that ( i ) the Project is suitable
for the promotion of commercial , industrial or manufacturing
d evelopment and expansion , ( ii ) the Project will have a
direct , positive and favorable impact on employment in the
Governmental Unit , and ( iii ) that the Project is in further -
ance of the public purposes as set forth in the Act .
S ection 20 . SALE OF THE BONDS . At the specific
request of the User , the Bonds are hereby authorized to be
sold , and shall be delivered to Allied Bank Irving , for the
price of par and any accrued interest to the date of payment
and delivery .
S ection 21 . TRUST INDENTURE . For the purpose of addi -
t ionally securing the payment of the Bonds , the redemption
premium , if any , the agreed liquidated damages , if any , and
the interest thereon , and any other amounts due with respect
t o the Bonds and for the purpose of providing for and fixing
in more detail the rights of the owners of the Bonds , and of
the Issuer , the User , and the Trustee , and for the purpose
of making more effective the first lien on and pledge of the
33
} payments to be made pursuant to the Agreement and this
Initial Bond Resolution , a Trust Indenture in substantially
the following form and substance shall be signed , sealed ,
and otherwise executed and delivered , for and on behalf of
the Issuer , by the President and the Secretary of its Board
of Directors , after which the Trust Indenture shall be
executed by the Trustee and shall become effective upon the
delivery of the Bonds authorized hereby :
34
TRUST INDENTURE
BETWEEN
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
AND
ALLIED LAKEWOOD BANK , TRUSTEE
( KUELBS INVESTMENTS PROJECT )
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Pursuant to and under this Trust Indenture the Euless
Industrial Development Authority has granted a security
interest in and assigned to Allied Lakewood Bank , as
Trustee , all of its interests in all " Installment Loan
Payments " due pursuant to and under the " Loan Agreement
between Euless Industrial Development Authority and Leo
Kuelbs , Gregory Kuelbs and John Kuelbs " to secure its
Revenue Bonds , Series 1984 ( Kuelbs Investments Project ) .
DEBTOR :
Euless Industrial Development Authority
201 North Ector Drive
Euless , Texas 76039
SECURED PARTY :
Allied Lakewood Bank , Trustee
6301 Gaston Avenue
Dallas , Texas 75214
JWR : 3RD DRAFT 11 / 12 / 84
,
TABLE OF CONTENTS
( The Table of Contents is not a part of the Trust Inden -
ture but is for convenience of reference only )
PAGE
Parties 1
Recitals 1
Granting Clause 3
ARTICLE 1 . ACCEPTANCE OF TRUST 3
ARTICLE 2 . DEBT SERVICE FUND AND CONSTRUCTION
FUND 3
ARTICLE 3 . NOTICE TO THE USER 4
ARTICLE 4 . ACCOUNTS AND RECORDS 4
( a ) Separate Records to be Kept 4
( b ) Annual Report 4
( c ) Right to Inspect 5
ARTICLE 5 . ENFORCEMENT OF RIGHTS IN CASE OF
DEFAULT 5
( a ) Appointment of Trustee and
Rights of Holder 5
( b ) Control by Trustee 5
( c ) Events of Default 6
( d ) Declaration of Principal
and Interest Due 7
( e ) Enforcement by Trustee 8
( f ) Remedies Non - Exclusive 8
( g ) Waiver of Defaults 8
( h ) Discretion of Trustee 9
( i ) Application of Moneys 9
( j ) Judicial Proceedings 10
( k ) Enforcement of Remedies
W ithout Possession of Bonds 10
( 1 ) Direction by Majority in
P rincipal Amount of Bondholders 10
( m ) Notice by Trustee 11
( n ) Concurrence of Bondholders 11
( o ) Default of Payments 11
( p ) Notice to User of Past Due
P ayments 11
•
PAGE
ARTICLE 6 . CONCERNING THE TRUSTEE 12
( a ) Not Accountable for Bond
Proceeds 12
( b ) Reliance by Trustee 12
( c ) Compensation of Trustee from
Debt Service Fund 13
( d ) Limited Responsibilities 13
( e ) Advice 14
( f ) Trustee May Own Bonds 14
( g ) Fees 14
( h ) Notice of Trustee 14
ARTICLE 7 . SUCCESSOR TRUSTEE 14
( a ) Resignation of Trustee 14
( b ) Removal of Trustee 15
( c ) Appointment of Successor
Trustee 15
( d ) Transfer to Successor Trustee 15
( e ) Merger or Consolidation of
Trustee 16
ARTICLE 8 . RELEASE OF INDENTURE AND SATISFACTION
OF INDEBTEDNESS 16
ARTICLE 9 . AMENDMENTS 16
ARTICLE 10 . MISCELLANEOUS PROVISIONS 17
( a ) Acknowledgements and
Ownership of Bonds 17
( b ) Trustee May Require Proof
of Ownership 17
( c ) Consent of Bondholders 18
( d ) Survival of Valid Bonds 18
( e ) Unclaimed Funds 18
( f ) Rights of Parties 18
( g ) Severability 19
( h ) Law 19
ARTICLE 11 . RECORDING 19
( a ) Trustee to Record 19
( b ) Non - Encumbrance 19
ARTICLE 12 . NOTICE TO . TEXAS ECONOMIC DEVELOPMENT
COMMISSION 19
Execution by the Issuer 20
Execution by the Trustee 21
N
1
TRUST INDENTURE
THE STATE OF TEXAS
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY •
THIS TRUST INDENTURE , dated as of November 1 , 1984 ,
e xecuted by and between Euless Industrial Development
Authority ( the " Issuer " ) , a nonstock , nonprofit industrial
development corporation organized and existing under the
laws of the State of Texas , including particularly the
Development Authority Act of 1979 , as amended ( Article
5190 . 6 , V . A . T . C . S . ) ( the " Act " ) , and Allied Lakewood Bank , a
Texas state bank duly organized and existing under the laws
o f the State of Texas and having its principal office in the
City of Dallas , Texas , as Trustee ( the " Trustee " ) :
WITNESSETH THAT :
WHEREAS , a " Loan Agreement between Euless. Industrial
Development Authority and Kuelbs Investments " , dated as of
November 1 , 1984 ( the " Agreement " ) has been duly executed
between the Issuer and Kuelbs Investments , a general
partnership composed of Leo Kuelbs , Gregory Kuelbs and John
Kuelbs ( the " User " ) , with the User being a general
partnership organized and existing under the laws of the
S tate of Texas , and being fully qualified to transact
business in the State of Texas ; and
WHEREAS , an executed copy of the Agreement has been
f iled with the Trustee ; and
WHEREAS , pursuant to the Agreement the Board of Direc -
t ors of the Issuer has duly adopted a " RESOLUTION AUTHORIZ -
ING THE ISSUANCE OF EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
REVENUE BONDS , SERIES 1984 AND THE EXECUTION OF A TRUST
INDENTURE ( KUELBS INVESTMENTS PROJECT ) " , which , together
with any amendment thereto , is hereinafter called and
d esignated the " Initial Bond Resolution " ; and
WHEREAS , the Initial Bond Resolution authorized the
issuance of EULESS INDUSTRIAL DEVELOPMENT AUTHORITY REVENUE
BONDS , SERIES 1984 ( KUELBS INVESTMENTS PROJECT ) , in the
aggregate principal amount of $ 800 , 000 , which together with
any replacement bonds and any additional parity revenue
bonds ( " Additional Bonds " ) authorized to be issued by the
Initial Bond Resolution , are hereinafter collectively called
the " Bonds " ; and
WHEREAS , a certified copy of the Initial Bond Resolu -
t ion has been duly filed with the Trustee ; and
WHEREAS , pursuant to the Initial Bond Resolution , a
certified copy of each resolution authorizing the issuance
o f each series or issue of Additional Bonds shall be filed
w ith the Trustee prior to the delivery thereof ; and
WHEREAS , as used in this Trust Indenture the word " Bond
Resolution " shall mean and include collectively the Initial
Bond Resolution ( including the Trust Indenture prescribed
and authorized to be executed in the Initial Bond Resolu -
t ion ) and , when adopted and filed with the Trustee , each
✓ esolution authorizing the issuance of Additional Bonds
t ogether with any supplemental resolutions or amendments to
such resolutions or the Trust Indenture ; and
WHEREAS , pursuant to the Agreement and the Bond Resolu -
t ion and subject to the terms and provisions thereof , the
B onds , the redemption premium , if any , agreed liquidated
damages , 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 " Installment Loan Payments " to be
made or paid , or caused to be made or paid , by the User ( or
its successors or assigns under certain circumstances ) to
the Trustee ; and
WHEREAS , the User has granted a lien and security
interest in and to the Project pursuant to that certain Deed
of Trust , Security Agreement and Assignment of Rents dated
as of November 1 , 1984 from the User to B . R . Daniel and/ or
J ohn Donor and/ or Horace Weaver ( the " Deed of Trust " ) , and
that certain Assignment of Rents and Leases dated as of
N ovember 1 , 1984 from the User to the Trustee ( the
" Assignment " ) , providing further security for the payment of
the Installment Loan Payments for the ultimate benefit of
the owners of the Bonds ; and
WHEREAS , for purposes of this Trust Indenture , the
d efinitions of terms in the Agreement , the Deed of Trust ,
and the Bond Resolution are hereby adopted , and the terms
u sed herein shall have the same meanings as such terms are
g iven in said Agreement , Deed of Trust , and Bond Resolution
u nless a different meaning is given herein ; and
WHEREAS , the Trustee has accepted the trusts created by
this Trust Indenture , and in evidence thereof has joined in
the execution hereof ; and
WHEREAS , this Preamble constitutes an integral part of
this Trust Indenture .
2
NOW , THEREFORE , THIS TRUST INDENTURE WITNESSETH :
That the Issuer in consideration of the premises and
the acceptance by the Trustee of the trusts hereby created ,
and of the purchase and acceptance of the Bonds by the
owners thereof , and for other good and valuable considera -
t ion , the receipt and sufficiency of which is hereby
acknowledged , and for the purpose of securing and providing
f or the payment of the principal of , redemption premium , if
any , and interest on the Bonds at any time issued and
outstanding , when and as due , any agreed liquidated damages ,
all fees and expenses of the Trustee and Registrar , and the
P aying Agents for the Bonds , and all other payments required
t o be made by the User under the Agreement , this Trust
Indenture and the Bond Resolution , has granted a security
interest in , assigned , transferred , pledged , set over , and
confirmed , and by these presents does grant a security
interest in , assign , pledge , set over , and confirm unto the
Trustee , and to its successor or successors in said trust ,
and to its or their assigns , all and singular ( i ) all of its
✓ ight , title , and interest in and to the Installment Loan
P ayments as required and provided in the Agreement and the
B ond Resolution and ( ii ) the Debt Service Fund and the
Construction Fund created by the Initial Bond Resolution ,
upon , and subject to the terms , conditions , stipulations ,
covenants , agreements , trusts , uses , and purposes herein -
after expressed ; and the Issuer and the Trustee have
agreed , and they hereby agree and covenant with the respec -
t ive owners from time to time of the Bonds as follows ,
t o - wit :
Article 1 . ACCEPTANCE OF TRUST . The Trustee hereby
accepts the trusts , duties , obligations , and requirements
imposed on it by the Bond Resolution and this Trust Inden -
ture , and agrees to carry out and perform , punctually and
e ffectively , such duties , obligations , and requirements for
the benefit of the Issuer , the User and the owners of the
B onds . It is further specifically agreed that ( i ) the
Trustee will act as a Paying Agent for the Bonds at all
t imes while it is Trustee , ( ii ) the Trustee will act as
Registrar for the Bonds at all times while it is Trustee ,
and ( iii ) the Trustee will authenticate each of the Bonds by
e xecuting the Trustee ' s Certificate of Authentication
appearing on each of the Bonds , as provided in the Bond
Resolution , and it will so authenticate the Bonds when
✓ equested by the Issuer , prior to the delivery of the Bonds ,
at such time and in such manner as directed by the Issuer .
Article 2 . DEBT SERVICE FUND AND CONSTRUCTION FUND .
The Debt Service Fund and the Construction Fund created by
the Initial Bond Resolution are hereby confirmed and estab -
lished , respectively , in trust , with the Trustee , and the
3
Trustee agrees to hold , administer , deposit , secure , invest ,
and use said funds in all respects as provided and required
by the Agreement , the Bond Resolution , and this Trust Inden -
ture .
Article 3 . NOTICE TO THE USER . On or before the 5th
d ay prior to each date upon or before which each Installment
L oan Payment is required by each Bond Resolution to be
deposited into the Debt Service Fund , the Trustee shall give
o r cause to be given written notice to the User by hand
d elivery or first class mail , postage prepaid , at such
address as the User shall from time to time designate and
f ile in writing with the Trustee , of the amount , if any , of
e ach Installment Loan Payment required by each Bond
Resolution to be made by the User to the Trustee and
deposited by the Trustee into the Debt Service Fund , on or
before such date . Such notice shall give a brief statement
o f the manner in which the amount due was calculated ,
including a showing of all credits on account of available
moneys in the Debt Service Fund . The failure of the Trustee
t o give , or the User to receive , any such notice shall not
✓ elieve the User of its unconditional duty and obligation to
make all deposits or payments of Installment Loan Payments
t o the Trustee as required by the Agreement and each Bond
Resolution .
Article 4 . ACCOUNTS AND RECORDS ( a ) Separate Records
t o be Kept . The Trustee shall keep proper books of records
and accounts , separate from all other records and accounts ,
in which complete and correct entries shall be made of all
t ransactions relating to the Installment Loan Payments , the
Debt Service Fund , and the Construction Fund .
( b ) Annual Report . Within 90 days after the close of
each fiscal year of the Trustee , the Trustee will furnish to
the Issuer , the User and any owner of any outstanding Bonds
who may so request , a copy of a report by the Trustee
covering the preceding fiscal year , showing the following
information :
( 1 ) a detailed statement concerning the receipt
and disposition of all Installment . Loan 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 or balance sheet of the
Debt Service Fund and of the Construction Fund ( until
the Construction Fund shall have been fully disposed
of ) .
4
( c ) Right to Inspect . The Issuer , the User and the
owners of any Bonds shall have the right , at all reasonable
t imes and upon reasonable notice , to inspect all records ,
accounts , and data of the Trustee relating to the Debt
S ervice Fund and the Construction Fund .
Article 5 . ENFORCEMENT OF RIGHTS IN CASE OF DEFAULT .
( a ) Appointment of the Trustee and Rights of the Holder .
The Trustee is hereby irrevocably appointed the special
agent and representative of the owners of the Bonds and
vested with full power in their behalf to effect and enforce
the Agreement , this Trust Indenture , and the Bond Resolution
f or their benefit as provided herein and in the Bond Resolu -
t ion ; but anything contained in this Trust Indenture to the
contrary notwithstanding , the owners of a majority in
aggregate principal amount of the Bonds then outstanding , in
case of any subsisting Event of Default ( hereinafter de -
f ined ) or of any other event entitling the Trustee to
proceed hereunder , shall have the right from time to time to
direct and control the Trustee in connection with the
e nforcement of any of the provisions of the Agreement , this
Trust Indenture , and the Bond Resolution , and any other
proceedings taken by virtue of any provisions of the afore -
said instruments , including the right to have withdrawn and
discontinued at any stage thereof any proceedings taken
hereunder by the Trustee , provided that the Event of Default
upon which such proceedings were based and all other Events
o f Default hereunder shall have been remedied and made good .
Anything contained in this Trust Indenture to the contrary
notwithstanding , each owner of any Bond shall have a right
o f action to enforce the payment of all amounts due with
✓ espect to any Bond owned by him when or after the same
shall have become due , at the place , from the sources , and
in the manner expressed in the Agreement , the Bond Resolu -
t ion , or this Trust Indenture ; provided that no right of
action shall exist subsequent to the time of waiver of an
E vent of Default in the payment of any such amount so due
and such Event of Default having been remedied and made
g ood , as provided in Article 5 ( g ) .
( b ) Control by Trustee . Except as otherwise provided
in this Article , the rights of action with respect to this
Trust Indenture shall be exercised by the Trustee and no
o wner of any Bond shall have any right to institute any
suit , action or proceeding at law or equity for the appoint -
ment of a receiver or for any other remedy hereunder or by
✓ eason hereof unless and until in addition to the fulfill -
ment of all other conditions precedent specified in this
Trust Indenture , the Trustee shall have received the written
✓ equest of the owners of not less than 25 % in aggregate
principal amount of the Bonds then outstanding and shall
have been offered indemnity satisfactory to it and shall
5
h ave refused , or for 30 days thereafter neglected , to
institute such suit , action , or proceeding ; and it is hereby
d eclared that the making of such request and the furnishing
o f such indemnity are in each case conditions precedent to
the execution and enforcement by any owner of any Bond of
the powers and remedies given to the Trustee hereunder and
t o theinstitution and maintenance by any owner of any Bond
o f any action or cause of action for the appointment of a
✓ eceiver 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 Bonds then outstanding and upon being furnished indem -
nity satisfactory to the Trustee against all expenses ,
charges , and liability shall , forthwith take such
appropriate action by judicial proceedings or otherwise to
e nforce the covenants of the User and the Issuer as the
Trustee may deem expedient in the interest of the owners of
the Bonds . .
( c ) 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 Bonds , whether payment is
✓ equired at maturity or by call for redemption or
o therwise ; provided , however , that if such failure
shall arise other than by reason of a default by the
User under the Bond Resolution and the Agreement , the
continuation of such failure for two days .
( 2 ) the failure of the User to make or pay , or .
cause to be made or paid , any Installment Loan Payment ,
o r any part thereof , when and to the extent due and
✓ equired by the Agreement or the Bond Resolution .
( 3 ) Issuer , User or Guarantor shall ( a ) execute
an assignment for the benefit of creditors , or ( b )
become or be adjudicated a bankrupt or involvent , or
( c ) admit in writing its inability to pay its debts
g enerally as they become due , or ( d ) apply for or
consent to the appointment of a conservator , receiver ,
t rustee , or liquidator of it or of all or a substantial
part of its assets , or ( e ) file a voluntary petition
seeking reorganization or an arrangement with
creditors , or to take advantage of or seek any other
✓ elief under any Debtor Relief Laws , or ( f ) file an
answer admitting the material allegations of or
consenting to , or default in , a petition filed against
it in any proceeding under any Debtor Relief Laws , or
( g ) institute or voluntarily be or become a party to
6
any other judicial proceedings intended to effect a
d ischarge of its debts , in whole or in part , or a
postponement of the maturity or the collection thereof ,
o r a suspension of any of the Rights of the Issuer ,
B ondholders or Trustee granted in any of the Trust
Indenture , Agreement , Guaranty , Assignment , Deed of
Trust , Bond Resolution or Bonds .
( 4 ) ( a ) An order , judgment , or decree shall be
e ntered by any court of competent jurisdiction
approving a petition seeking reorganization of any of
Issuer , User or Guarantor or appointing a conservator ,
✓ eceiver , trustee , or liquidator of . any such person or
e ntity or of all or any substantial part of its assets ,
and such order , judgment , or decree is not permanently
stayed or reversed within sixty ( 60 ) days after the
e ntry thereof , or ( b ) a petition is filed against any
o f Issuer , User or Guarantor seeking reorganization , an
arrangement with creditors , or any other relief under
any Debtor Relief Laws , and such petition is not
discharged within sixty ( 60 ) days after the filing
thereof .
( 5 ) the User defaulting in the observance or
performance of any other of its covenants , conditions ,
o r obligations in the Bonds , the Agreement , the Bond
Resolution , or this Trust Indenture , and the User not
✓ emedying such default within 30 days after written
n otice to do so has been received by the User from the
Trustee or the owners of the Bonds ; and the Trustee may
serve such notice , in its discretion , or shall serve
such notice at the written request of the owners of not
less than 25 % in aggregate principal amount of the
Bonds then outstanding .
( 6 ) the failure by the User to observe or perform
any covenant or condition specified in the Deed of
Trust , Assignment or Guaranty or the occurrence of any
" Event of Default " under the Deed of Trust , Assignment
o r Guaranty .
( d ) Declaration of Principal and Interest Due . Upon
the happening of an Event of Default , the Trustee may , in
its discretion , or upon the written request of the owners of
at least 25 % in aggregate principal amount of the Bonds then
o utstanding , and upon being indemnified to the satisfaction
o f the Trustee , shall , declare the principal of all Bonds
then outstanding and the interest , accrued thereon immedi -
ately due and payable , and such principal and interest ,
together with any applicable agreed liquidated damages , and
any applicable redemption premium , and any other amounts
then due , shall thereupon become and be immediately due and
7
payable , anything in the Bonds , the Agreement , the Bond
Resolution , or this Trust Indenture to the contrary notwith -
standing .
( e ) Enforcement by Trustee . Upon the happening of an
E vent of Default , the Trustee may , in its discretion , or
upon the written request of the owners of at least 25 % in
aggregateprincipal amount of the Bonds 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
t o require the User or the Issuer to carry out its or their
covenants and obligations under and with respect to the
Bonds , the Agreement , the Deed of Trust , the Bond Resolu -
t ion , or this Trust Indenture , including without limitation ,
the use and filing of actions for specific performance , and
mandamus proceedings , in any court of competent jurisdic -
t ion , against the Issuer , its Board of Directors , and its
e fficers , employees , and/ or agents , and to obtain judgments
against the User for any Installment Loan Payments due but
unpaid into the Debt Service Fund , or for any other amounts
due hereunder , under the Bond Resolution , or under the
Agreement , including all amounts due with respect to the
B onds then outstanding if declared due and payable as
provided herein .
( f ) Remedies Non - Exclusive . No remedy herein con -
f erred upon or reserved to the Trustee is intended to be
e xclusive of any other available remedy or remedies , but
e ach and every such remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or under
the Agreement , the Bonds or the Bond Resolution , or now and
hereafter existing at law or in equity or by statute . No
d elay 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 waiver of any such Event of Default or
acquiescence therein , and every such right and power may be
e xercised from time to time and so often as may be deemed
e xpedient .
( g ) Waiver of Defaults . The Trustee may , and upon the
written request of the owners of a majority in aggregate
principal amount of the Bonds then outstanding shall , waive
any Event of Default hereunder and its consequences , except
that an Event of Default in the payment of Installment Loan
P ayments , or in the payment of any amounts with respect to
the Bonds when and as the same shall become due and payable ,
may be waived only if , the Event of Default therein shall
have been remedied and made good . In case of any such
waiver , the Issuer , the User , the Trustee and the owners of
the Bonds shall be restored to their former position and
8
✓ ights hereunder respectively , but such waiver shall not
e xtend to any subsequent or other Event of Default or impair
any right consequent thereon .
( h ) Discretion of Trustee . In the event the Trustee
shall receive conflicting or inconsistent requests and
indemnity from two or more groups of owners of Bonds , each
✓ epresenting less than a majority of the aggregate principal
amount of Bonds then outstanding , the Trustee in its sole
discretion may determine what action , if any , shall be
taken , notwithstanding any other provisions of this Trust
Indenture .
( i ) Application of Moneys . All money collected by the
Trustee 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 Trustee under any provision of this
Trust Indenture or the Deed of Trust as security for the
Bonds , shall be applied as follows :
FIRST : to the payment of the costs and expenses
o f the proceedings whereunder such money was collected ,
including a reasonable compensation to the Trustee , its
agents , attorneys , and all other necessary or proper
e xpenses , liabilities , and advances incurred or made by
the Trustee under this Trust Indenture including , but
n ot limited to , any outstanding fees of the Trustee for
the performance of its duties hereunder , and to the
payment of all taxes , assessments , and liens superior
t o the lien of this Trust Indenture .
SECOND : to the payment of matured interest on the
B onds , including , to the extent legally permissible ,
interest thereon at the rate of 15 % per annum from due
date to date of payment .
THIRD : to the payment of principal of , redemption
premium , if any , and agreed liquidated damages , if any ,
o n the Bonds 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 of 15 % per
annum from the date of redemption or maturity to date
o f payment .
FOURTH : to the payment of principal of the Bonds
which have become due by virtue of the declaration of
the Trustee pursuant to Article 5 ( d ) , and interest
thereon , to the extent legally permissible , at the rate
o f 15 % per annum from the date declared due to date of
payment .
9
FIFTH : 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 particu -
lar classification shall be insufficient to pay in full all
o f the items in such classification , the amount available
f or distribution to items in such classification shall be
prorated among such items in the proportion that the amount
e ach item bears to the total of all such items . Notwith -
standing anything contained in this Trust Indenture to the
contrary , if the Trustee shall declare the principal of all
B onds then outstanding and the interest accrued thereon
immediately due and payable as the result of an Event of
D efault , or if the Bonds are to be redeemed as a whole
pursuant to mandatory redemption provisions provided in the
B ond Resolution , or if the User shall exercise any option to
redeem the Bonds as a whole in accordance with their terms ,
any amounts remaining in the Construction Fund shall be
d eposited in the Debt Service Fund and applied by the
Trustee as provided in this subsection ( i ) .
( j ) 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 Bonds , the Trustee , if
permitted by the court having jurisdiction over such pro -
ceeding , may , in its discretion , or upon the written request
o f the owners of at least 25 % in aggregate principal amount
o f the Bonds then outstanding , and upon being indemnified to
the satisfaction of the Trustee , shall , intervene on behalf
o f the owners of the Bonds to assert the rights of such
owners .
( k ) Enforcement of Remedies Without Possession of
B onds . All rights of action or other rights under this
Trust Indenture or otherwise may be brought by the Trustee
in its own name as Trustee of an express trust and may be
o nforced by the Trustee without the possession of any of the
B onds or the production thereof on the trial or other
proceedings relative thereto .
( 1 ) Direction by Majority in Principal Amount of
B ondholders . It is expressly provided , however , that the
o wners of a majority in aggregate principal amount of the
B onds then outstanding , or a committee representing , pursu -
ant to a written appointment filed with the Trustee , the-
owners of a majority in aggregate principal amount of the
B onds then outstanding , shall have the right , at any time ,
by an instrument or instruments in writing executed and
10
d elivered 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 rights and remedies under
the Agreement or the rights of the owners of the Bonds or
the Trustee ' s rights and remedies under the Bond Resolution
and this Trust Indenture , and may exercise any right or
perform any action hereunder , with the same effect as the
Trustee under this Trust Indenture , provided , that such
d irection shall not be otherwise than in accordance with the
provisions of law and of this Trust Indenture , and provided
that the Trustee shall be indemnified to its satisfaction .
( m ) Notice By Trustee . The Trustee shall not be re -
quired to take notice nor be deemed to have notice of any
d efault specified in this Trust Indenture , except for those
Events of Default specified in Article 5 ( c ) ( 1 ) and 5 ( c ) ( 2 ) ,
unless specifically notified in writing of such default by
the owners of at least 25 % in aggregate principal amount of
the Bonds then outstanding . In the absence of notice by the
o wners of at least 25 % in aggregate principal amount of the
B onds then outstanding of a default as aforesaid ( other than
a default specified in Article 5 ( c ) ( 1 ) and 5 ( c ) ( 2 ) ) the
Trustee may conclusively presume that no default exists
under this Trust Indenture .
( n ) Concurrence of Bondholders . In determining
whether the owners of a requisite aggregate principal amount
o f Bonds outstanding have concurred in any request , demand ,
authorization , direction , notice , consent , or waiver under
this Trust Indenture or the Bond Resolution , Bonds owned by
o r for the account of the User or any person controlled by ,
controlling , or under common control of the User , shall be
d isregarded and deemed not to be outstanding for the purpose
o f any such determination ; provided however , that for the
purpose of determining whether the Trustee shall be
protected in relying upon any such request , demand ,
authorization , direction , notice , consent , or waiver , only
Bonds of which the Trustee has actual knowledge of such
o wnership shall be so disregarded .
( o ) Default of Payments . In the event of a default in
the payment of any Installment Loan Payment , or in the per -
formance of any agreement or covenant contained in the
B onds , the Agreement , the Bond Resolution , or this Trust
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 power to charge
and collect Installment Loan Payments ) in accordance with
the Agreement , the Bond Resolution and this Trust Indenture .
( p ) Notice to User of Past Due Payments . Pursuant to
the Agreement , Installment Loan Payments are to be paid by
11
•
the User directly to the Trustee . In the event that any
such payments are not timely made , the Trustee shall
immediately notify the User by certified or registered mail ,
✓ eturn receipt requested , at the address provided in the
Agreement or by telephonic notice with confirmation of such
notice by certified or registered mail , return receipt
✓ equested , that payment has not been made . Such notice
shall be deemed given at the time the notice is received or
telephonic notice is given , whichever is earlier . Failure
o f the Trustee to give , or the User to receive , such notice
shall not relieve the User of any covenant or obligation
u nder the Agreement , the Bond Resolution , the Deed of Trust ,
o r this Trust Indenture and shall not constitute a waiver of
any Event of Default under this Trust Indenture .
Article 6 . CONCERNING THE TRUSTEE . The Trustee
accepts the trust imposed upon it by this Trust Indenture ,
but only upon and subject to the following express terms and
conditions :
( a ) Not Accountable for Bond Proceeds . In no event
shall the Trustee be liable except for its gross negligence
o r willful misconduct in relation to its duties under this
Trust Indenture and the Bond Resolution . The Trustee shall
not be responsible for any recitals herein , in the Bonds ,
the Bond Resolution , the Agreement , or for the sufficiency
o f the security for the Bonds . The Trustee shall have no
✓ esponsibility hereunder except to the extent of the duties
placed upon the Trustee to hold , administer , deposit ,
secure , invest , and use the Debt Service Fund and the
Construction Fund as expressly required by the Bond Resol -
ution , to the extent funds for such purposes are received by
the Trustee , and to perform the other express covenants and
agreements made by the Trustee under the provisions of this
Trust Indenture and the Bond Resolution .
( b ) . Reliance by Trustee . The Trustee may rely and
shall be protected in acting or refraining from acting in
accordance with the provisions of this Trust Indenture and
the Bond Resolution upon any notice , requisition , request ,
consent , certificate , order , affidavit , letter , telegram , or
o ther paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person
o r persons , and the Trustee shall not be bound to recognize
any person as an owner of Bonds or to take any action at his
✓ equest , unless the Bond or Bonds owned by such owner of
Bonds shall be deposited with the Trustee , be registered in
thename of such owner on the Bond Registration Books kept
by the Trustee , or submitted to it for inspection . Any
action taken by the Trustee pursuant to this Trust Indenture
upon the request or authority or consent of any person who ,
at the time of making such request , or giving such authority
12
or consent , is the owner of any 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 ) Compensation of Trustee from Debt Service Fund .
There shall be paid from the Debt Service Fund the Trustee ' s
✓ easonable compensation , and its reasonable expenses , ad -
vances , and counsel fees , and its liabilities incurred in
and about the execution of the trusts hereby created and the
e xercise and performance of the powers and duties of the
Trustee hereunder ( except liabilities incurred as a result
o f the gross negligence or willful misconduct of the
Trustee , or as provided in the Bond Resolution ) , and the
✓ easonable cost and expenses , including counsel fees , of
defending against liabilities .
( d ) Limited Responsibilities . The responsibilities of
the Trustee elsewhere set forth herein shall be further
limited as follows :
FIRST : the Trustee shall not be liable with
✓ espect to any action taken or omitted to be taken by
it in good faith in accordance with a direction of the
o wners of Bonds pursuant to any provision of this Trust
Indenture relating to the time , method , and place of
conducting any proceeding for any remedy available to
the Trustee , or exercising any trust or power conferred
upon the Trustee , under this Trust Indenture .
SECOND : no provision of this Trust Indenture
shall require the Trustee ( 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
e xercise 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 assured to it , nor ( 2 ) to take any
action , whether or not directed to take such action by
the owners of Bonds , pursuant to this Trust Indenture ,
which in the judgment of the Trustee would conflict
with any rule of law , or with the terms of this Trust
Indenture , or would be unjustly prejudicial to the
owners of Bonds not taking part in such direction .
When acting pursuant to the direction of any owners of
B onds pursuant to this Trust Indenture , the Trustee may
t ake other action deemed proper by the Trustee which is
n ot inconsistent with such direction ; provided , how -
e ver , that the terms of this subparagraph SECOND shall
n ot impose any additional duties or responsibilities
upon the Trustee and shall not be construed to limit
the effect of subparagraph FIRST of this paragraph ( d ) .
13
b
( e ) Advice . The Trustee may act upon the professional
opinion or advice of any legal counsel , engineer , account -
ant , or other expert , reasonably believed by the Trustee to
be qualified in relation to the subject matter , whether
✓ etained by the Trustee or the Issuer or otherwise , and the
Trustee shall not be responsible for anything suffered or
d one or not done by it in good faith in accordance with any
such opinion or advice , and the Trustee shall pay the cost
o f obtaining such advice with funds from the Debt Service
Fund in accordance with Section 6 ( c ) hereof .
( f ) Trustee May Own Bonds . Except as prohibited by
law , the Trustee may become the owner of any of the Bonds
secured by this Trust Indenture with the same rights which
it would have if it were not the Trustee ; and nothing herein
contained shall be construed to prohibit the Trustee , either
as principal or agent , from engaging in or being interested
in any financial or other transaction with the Issuer or the
User or from acting as depository , trustee , or agent for any
committee or body of owners of the Bonds or of other obliga -
t ions of the Issuer as freely as if it were not the Trustee .
( g ) Fees . The Issuer has agreed with the User in the
Agreement and the Bond Resolution provides that , as part of
the Installment Loan Payments the User shall pay to the
Trustee its charges for performing the duties of Trustee ,
Registrar , and Paying Agent for the Bonds in accordance with
the Trustee named and customary charges for such services .
All payments due the Trustee for such charges , fees , or
e xpenses shall be paid by the User and no such charges ,
f ees , or expenses shall be charged against or be payable by
the Issuer , except the initial fees and expenses of the
Trustee which are paid as part of the costs of issuance of
the Bonds .
( h ) Notice of Trustee . The Trustee shall not be
✓ equired to take notice or deemed to have notice of any
d efault hereunder except failure by the Issuer , User to
cause to be made any of the payments to the Trustee required
t o be made pursuant to Article 5 ( c ) ( 1 ) and 5 ( c ) ( 2 ) of this
Trust Indenture .
Article 7 . SUCCESSOR TRUSTEE . ( a ) Resignation of
Trustee . The Trustee at the time acting hereunder may at
any time resign and be discharged from all trusts created by
this Trust Indenture by giving not less than 30 days written
n otice to the Issuer , the User and to any owners of Bonds as
shown on the Bond Registration Books and any other list of
o wners of Bonds kept by the Trustee , and such resignation
shall take effect upon the appointment of a successor
Trustee by the owners of Bonds or by the Issuer as
hereinafter provided .
4
14
( b ) Removal of Trustee . The Trustee may be discharged
and removed at any time by an instrument or concurrent
instruments in writing , delivered to the Trustee and to the
Issuer , and signed by the owners of a majority in aggregate
principal amount of the then outstanding Bonds .
( c ) Appointment of Successor Trustee . In case the
Trustee hereunder shall resign or be removed , or be dis -
solved , or shall be in course of dissolution or liquidation ,
or otherwise become incapable of acting hereunder , or in
case the Trustee shall be taken under the control of any
public officer or officers , or of a receiver appointed by a
court , a successor may be appointed by the owners of a
majority in aggregate principal amount of the then outstand -
ing Bonds by an instrument or concurrent instruments in
w riting , signed by such owners of Bonds , or by their attor -
n eys in fact duly authorized in writing , and delivered to
the Issuer ; provided , nevertheless , that in any such event
the Issuer by an instrument executed by authority of a
✓ esolution of its Board of Directors and signed by the
P resident and by the Secretary of such Board , may appoint a
t emporary Trustee to fill such vacancy until a successor
Trustee shall be appointed by the owners of Bonds in the
manner above provided , and any such temporary Trustee so
appointed by the Issuer shall immediately and without
further act be superseded by the Trustee so appointed by
such owners of Bonds . Every such successor or temporary
Trustee shall be a trust company or bank in good standing
located in the State of Texas , and having a capital and
surplus of not less than Five Million Dollars ( $ 5 , 000 , 000 ) ,
if there be such a trust company or bank willing , qualified ,
and able to accept the trust upon reasonable and customary
t erms . In the event that no appointment of a temporary or
successor Trustee shall be made pursuant to the foregoing
provisions of this Article within 30 days after the Trustee
g ives written notice of resignation or the Trustee is
removed , any owner of Bonds or any retiring Trustee may
apply to any court of competent jurisdiction for the appoin -
tment of a successor Trustee , and such court may thereupon ,
after such notice , if any , as it shall deem proper , pres -
cribe or appoint a successor Trustee .
( d ) Transfer to Successor Trustee . Every successor
Trustee appointed hereunder shall execute , acknowledge , and
deliver to its predecessor , the Issuer and the User an
instrument in writing accepting such appointment hereunder ,
and thereupon such successor Trustee , 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 writtenrequest of the Issuer , execute
and deliver an instrument transferring to such successor
15
Trustee all of the estates , rights , powers , and trusts of
such predecessor hereunder ; and every predecessor Trustee
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
Trustee shall be paid in full by the User . Should any deed ,
assignment , or instrument in writing from the Issuer be
required by any successor Trustee for more fully and cer -
tainly vesting in such Trustee the estates , rights , powers ,
and duties hereby vested or intended to be vested in the
predecessor Trustee , any and all such deeds , assignments ,
and instruments in writing shall , on request , be executed ,
acknowledged , and delivered by the Issuer .
( e ) Merger or Consolidation of Trustee . Any general
partnership or association into which the Trustee , or any
successor to it in the trusts created by this Trust
Indenture , may be merged or converted or with which it or
any successor to it may be consolidated , or any general
partnership or association resulting from any merger ,
conversion , or consolidation to which the Trustee or any
successor to it shall be a party , shall be the successor
Trustee under this Trust 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 8 . RELEASE OF INDENTURE AND SATISFACTION OF
INDEBTEDNESS . If , when the Bonds shall have become due and
payable in accordance with their terms or otherwise as
provided in this Trust Indenture or shall have been duly
called for redemption , and the whole amount of the princi -
pal , redemption premium , if any , and the interest so due and
payable upon all of the Bonds , and the agreed liquidated
damages , if any , with respect to the Bonds then due , shall
be paid , or sufficient money shall be held by the Trustee
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 User , then and
in that case all right , title , and interest of the Trustee
in these oresents and the estate and rights hereby granted
shall thereupon cease , determine , and become void , and the
Trustee in such case shall release this Trust Indenture and
shall execute such documents to evidence such release as may
be reasonably required by the Issuer , the User , and the
16
Guarantor , and shall turn over any surplus funds held by it
t o whomsoever may then be entitled pursuant to the Bond
Resolution , the Agreement , or by law to receive the same ;
and thereupon this Trust Indenture shall terminate and be of
no effect ; provided , that until the Bonds are finally paid ,
the Trustee shall continue to act as Paying Agent and Regis -
t rar for the Bonds .
Article 9 . AMENDMENTS . This Trust Indenture may be
amended only as provided in the Bond Resolution ; provided ,
h owever , that Additional Bonds may be issued pursuant to the
B ond Resolution as provided therein , and may be secured by
this Trust Indenture without the necessity of amending or
supplementing this Trust Indenture .
Article 10 . MISCELLANEOUS PROVISIONS . ( a ) Acknowl -
e dgments and Ownership of Bonds . Any request , direction ,
consent , or other instrument required by this Trust Inden -
ture to be signed or executed by owners of Bonds may be in
any number of concurrent writings of similar tenor and may
be signed or executed by such owners of Bonds in person or
by an agent appointed in writing . Proof of the execution of
any instrument , or of the writing appointing such agent , and
o f the ownership of the Bonds , if made in the following
manner , shall be sufficient for any purpose of this Trust
Indenture and shall be conclusive in favor of the Trustee
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 juris -
diction , 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 Bonds by any
owner thereof , the amount and numbers of such Bonds ,
and the date of his owning same may be proved by the
appropriate entries in the Bond Registration Books
maintained by the Trustee as Registrar . The Trustee
may conclusively assume that such ownership continued
until ownership of the Bonds is transferred on the Bond
Registration Books by the Trustee .
( b ) Trustee May Require Proof of Ownership . Nothing
contained in this Article shall be construed as limiting the
Trustee to the proof hereinabove specified , it being in -
tended that the Trustee may accept any other evidence of the
matters herein stated which it may deem sufficient .
17
r
( c ) Consent of Bondholders . Unless otherwise provided
in the Bond Resolution , any request or consent of any owner
o f Bonds shall bind every future owner of the same Bond in
✓ espect of anything done by the Trustee in pursuance of such
✓ equest or consent . In the event of the dissolution of the
Issuer , all of the covenants , stipulations , promises , and
agreements in this Trust Indenture contained by , on behalf
o f , 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 Bonds . If any Bond shall not be
presented for payment when the principal thereof becomes
due , either at maturity or at the date fixed for redemption
thereof or otherwise , all liability of the Issuer and the
User to the owners thereof and to the Trustee for the
payment of such Bond shall forthwith cease , determine , and
be completely discharged whenever funds sufficient to pay
such Bond shall be paid to the Trustee by the User , and such
funds shall be segregated by the Trustee and held in trust
for the benefit of the owners of such Bond who shall
thereafter be restricted exclusively to such funds for the
satisfaction of any claim of whatever nature on their part
✓ elating to such Bond .
( e ) Unclaimed Funds . Any money deposited with the
Trustee in trust for the payment of the principal of ,
✓ edemption premium , if any , agreed liquidated damages , if
any , or interest on any Bond and remaining unclaimed for six
years after such principal of , redemption premium , if any ,
agreed liquidated damages , if any , or interest on such Bond
h as become due and payable shall be paid to the User ;
provided , however , that before the Trustee shall be required
t o make any such repayment , the Trustee may at the expense
o f the User cause to be published at least once , in a
financial newspaper , journal , or publication of general
circulation in The City of Dallas , Texas , a notice that such
money remains unclaimed and that , after a date specified
therein , which shall not be less than 30 days from the date
o f such publication , any unclaimed balance of such money
then remaining will be repaid to the User . After the
payment of such unclaimed moneys to the User , the owner of
such Bond shall thereafter look only to the User for the
payment thereof , and all liability of the Trustee with
✓ espect to such money shall thereupon cease .
( f ) Rights of Parties . Except as herein otherwise
e xpressly provided , nothing in this Trust Indenture ex -
pressed or implied is intended or shall be construed to
confer upon any person , firm , or general partnership other
18
than the User , the Issuer , the Trustee , and the owners of .
Bonds , any right , remedy , or claim , legal or equitable ,
under or by reason of this Trust Indenture or any covenant ,
condition , or stipulation contained herein .
( g ) Severability . In case any one or more of the
provisions of this Trust Indenture or of the Bonds shall be
held to be invalid or ineffective as to any person or
circumstance , the remainder thereof 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 perform -
ance of this Trust Indenture shall be governed by the laws
o f the State of Texas .
Article 11 . RECORDING . ( a ) Trustee to Record . The
Issuer shall cause the Agreement and this Trust Indenture to
be filed in such manner and in such places as are now
o equired by law to establish initially the lien of this
Trust Indenture , and the priority thereof . The Trustee
shall ( 1 ) cause each memorandum , financing statement , or
continuation statement with respect to the Agreement and
this Trust 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
o r future law in order to publish notice of and fully to
protect the lien of this Trust Indenture and to publish
notice of and to protect the rights and security of the
o wners of the Bonds and the rights of the Trustee under the
Agreement , the Bond Resolution , and this Trust Indenture and
( 2 ) perform or cause to be performed from time to time any
o ther 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
Trustee , execute all such instruments , memoranda , or state -
ments necessary to maintain , protect , or preserve the
interests assigned to the Trustee under this Trust
Indenture .
( b ) Non - Encumbrance . This Trust Indenture is , and
always will be kept , a direct lien and security interest
upon the Installment Loan 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 Trust Indenture or any part thereof .
Article 12 . NOTICE TO TEXAS ECONOMIC DEVELOPMENT
COMMISSION . If the User fails to timely make or pay any
Installment Loan Payment , or upon receiving notice that a
19
Final Determination of Taxability has occurred , or if the
Trustee is notified by the Internal Revenue Service that the
interest on the Bonds is , or may be , subject to federal
income taxation , the Trustee promptly shall inform the
Commission of such an occurrence , by sending written notice
to the following address :
Texas Economic Development Commission
Attention : Executive Director
410 East Fifth Street
P . O . Box 12728 , Capitol Station
Austin , Texas 78711
o r the latest address specified by said Commission in
w riting .
IN WITNESS WHEREOF , the Issuer acting through its Board
o f Directors , has caused this Trust Indenture to be executed
in multiple counterparts , each of which shall be considered
an original for all purposes , in its name , and for and on
its behalf , by the President of such Board and attested by
the Secretary of such Board , and its corporate seal to be
hereto affixed ; and the Trustee , to evidence its acceptance
o f the trusts hereby created and vested in it , has caused
this Trust Indenture to be executed in multiple counter -
parts , each of which shall be considered an original for all
purposes , in its behalf by one of its Vice Presidents ,
attested by one of its Trust Officers , and its corporate
seal to be hereunto affixed , all as of the date first above
written .
EULESS INDUSTRIAL DEVELOPMENT AUTHORITY
By
President , Board of Directors
ATTEST :
Secretary , Board of Directors
( SEAL )
20
ALLIED LAKEWOOD BANK , TRUSTEE
By
Assistant Vice President and
Trust Officer
ATTEST :
Vice President
( SEAL )
21