HomeMy WebLinkAboutAgenda CC 10.18.1995NOTICE OF MEETING OF THE GOVERNING BODY
OF THE CITY OF GEORGETOWN, TEXAS
WEDNESDAY, October 18, 1995
at 5:30 p.m.
The City Council of the City of Georgetown, Texas, will meet on Wednesday, October 18, 1995, at 5:30
p.m. in the City Council Chambers, located at the northeast corner of Seventh and Main Street in
Georgetown, Texas. If you need accommodations for any type of disability, please advise in advance.
Detailed explanatory information on the items listed below is compiled in an agenda packet which is
distributed to the Mayor and each member of the Council. An agenda packet is also available at the
Public Library, for the use of interested citizens.
Regular Session - Call to order at 5:30 p.m.
A Public Hearing for the annexation of an approximately 300.6 acre portion of the Sun City
Georgetown Plannued Unit Development, Phase 2, located in the W. G. Wilkinson, George
Thompson, Abner Short, R.T. Jenkins, Mary Ann Lewis and Daniel Monroe Surveys
B Citizens wishing to address the Council
C Mayor, Council, City Manager, and staff comments and reports
Regular _ zenda
Council will individually consider and possibly take action on any or all of the following items: (Council
may, at any time, recess the regular session to convene in executive session at the request of the Mayor,
a councilmember, or the City Manager.)
D Consideration of approving the Georgetown Industrial Development Corporation's "Resolution
Authorizing Georgetown Industrial Development Corporation Industrial Revenue Bond (Triple S
Plastics, Inc. Project) Series 1995; the Execution of an Indenture -and a Loan Agreement; and
Other Matters Related to the Issuance of the Bond" and consideration of approving certain changes
to the bylaws and other matters related thereto/Bob Hart
E Consideration of a Final Plat of 15.182 acres in the William Addison Survey, and a Resubdivision
of Stonehedge Subdivision, Section Three, Lot 1, Block N; to be known as Churchill Farms,
Section Four/Ed Barry and Hildy Kingma
F Consideration of a Preliminary Plat of 15.182 acres in the William Addison Survey, and a
Resubdivision of Stonehedge Subdivision, Section Three, Lot 1, Block N; to be known as
Churchill Farms, Section Four; and Variances to the Subdivision Regulations/Ed Barry and Hildy
Kingma
City Council Agenda/October 18, 1995
Page 1 of 2 Pages
G Consideration of approval of an agreement between the City of Georgetown and David Ham &
Associates for engineering services related to the design of the West 22nd and Leander Street
Stormwater Trunk Line and Outfall Structure, in an amount not to exceed $58,000.00/Jim Briggs
H Final comments and evaluation of meeting process
Adjournment
CERTIFICATE OF POSTING
I, , City Secretary of the City of Georgetown, Texas, do hereby certify that this
Notice of Meeting was posted on the day of , 1995, at a.m./p.m.
City Council Agenda/October 18, 1995
Page 2 of 2 Pages
Council meeting October 18, 1995 Item No.
AGENDA ITEM COVER SHEET
SUBJECT: Public Hearing for the annexation of an approximately 300.6 acre portion of the Sun
City Georgetown Planned Unit Development, Phase 2, located in the W.G. Wilkinson, George
Thompson, Abner Short, R.T. Jenkins, Mary Ann Lewis and Daniel Monroe Surveys.
ITEM SUMMARY: The Del Webb Corporation has requested voluntary annexation of a portion
of Phase 2 of the Sun City Georgetown project. The annexation area will include proposed
single family residential and commercial development, including the proposed Scott and White
medical facility.
This is the first of two (2) public hearings required by State law before initiation of annexation
can begin. The purpose of the public hearings is to describe and receive comments on the City's
plans for providing services to the annexation areas. The service plans for the areas to be
annexed are attached. State law requires that the proposed service plan be explained at the public
hearing. While it may be amended as a result of the public hearings, the provision of any service
may not be deleted.
SPECIAL CONSIDERATIONS: None
FINANCIAL IMPACT: The City has a development agreement with the Del Webb Corporation
for Sun City Georgetown.
COMMENTS: On October 10, 1995, the City Council passed a resolution to adopt the proposed
service plans and set the public hearing dates for the annexation of these two properties.
ATTACHMENTS: Map and proposed service plan for areas to be annexed.
Submitted By -
Edward J. arry, AICP
Division of Develonme
�--7 (, U ":��
'rector Clyde von Rosenber AICP
ervices Chief Planner, Long Range Planning
EXHIBIT A
CITY OF GEORGETOWN, TEXAS
ANNEXATION SERVICE PLAN
SUN CITY GEORGETOWN - 300.6 ACRE PORTION OF PHASE 2
Introduction
This service plan has been prepared in accordance with Texas Local Government Code,
Chapter 43 - Municipal Annexation. This requires that the service plan provide for the extension
of full municipal services to the area to be annexed by any of the methods by which it extends
services to any other area of the municipality.
Police Protection
Regular and routine patrolling of streets, responses to calls, and other police services will be
provided upon the effective date of the annexation.
Fire Protection and Code Enforcement
Fire protection and prevention services are currently being provided to the area through an
agreement with Williamson County. These services will continue to be provided to the area upon
the effective date of the annexation. Upon the effective date of the annexation, the City Code
Enforcement Officer will periodically patrol streets in the area to ensure that all properties are
in conformance with City Code.
Solid Waste Collection
Solid waste collection and disposal services will be provided upon the effective date of the
annexation, in accordance with the rates, terms and conditions contained in the City Code.
Water Service
Water service will be provided to the annexation area through the terms of a development
agreement with the City of Georgetown.
Sewer Service
Wastewater service will be provided to the annexation area through the terms of a development
agreement with the City of Georgetown.
Maintenance of Roads, Streets, and Drainage
Roads, streets and drainage facilities dedicated to the public will be maintained according to City
Code and policy upon the effective date of the annexation.
Street Lighting
Street lighting will be made available upon the effective date of the annexation, upon request of
the property owners, in accordance with City Code and policy.
Annexation Service Plan, Page 1 of 2
Parks and Recreation
Parks and recreation facilities dedicated to the public will be maintained according to City Code
and policy upon the effective date of the annexation. Recreation services will be provided to all
residents in accordance with the rates, terms and conditions contained in the City Code.
Planning and Zoning
Upon the effective date of the annexation, the planning and zoning jurisdiction of the City will
extend to this area. The area will be zoned according to the uses described in the Sun City
Georgetown Revised Concept Plan (Second), as approved through regular procedures.
Inspection Services
All inspection services, including building, electrical, plumbing, etc., provided by the City will
be extended to the area upon the effective date of the annexation.
Library Services
Library services will be provided to all residents in accordance with the rates,.. terms, and
conditions contained in the City Code upon the effective date of the annexation.
Other Services
Other services provided by the City, such as animal control, court, and general administration,
will be made available upon the effective date of the annexation, in accordance with the City
Code and policies.
Utility Expansion and Improvement Policy
City Ordinance Number 900404, a Utility Expansion and Improvement Policy, guides the
planning, design, construction, operation, and maintenance of all utility system improvements,
including water, wastewater and electrical service.
Annexation Service Plan, Page 2 of 2
Council meeting date: 10-10-95
AGENDA ITEM COVER SHEET
Item No. 20*D
SUBJECT
A resolution approving the Georgetown Industrial Development Corporation's "Resolution authorizing
Georgetown Industrial Development Corporation Revenue Bond (Triple S Plastics, Inc. Project) Series
1995; the execution of an Indenture and a Loan Agreement, and other matters related to the issuance
of the Bond" and approving certain changes to the corporation's bylaws and other matters related
thereto.
ITEM SUNWL RY
The GIDC was activated in order to facilitate the financing of Triple S Plastics through the issuance of
industrial revenue bonds. The bonds will be a private placement through a bank in Michigan. This
resolution is required to ratify the bond issuance.
The GIDC bond issue will be used to make a loan to Triple S Plastics to finance the costs related to
establishing a custom plastic injection molding facility located in Georgetown Industrial Park, including
the purchase of new machinery (including molding machines), equipment, furniture and fixtures in the
principal amount not to exceed $5,000,000.
ATTACHMENTS
1. Resolution approvi$g the GIDC Resolution
bmitted b
Bob Hart, City Manager
RESOLUTION APPROVING THE GEORGETOWN INDUSTRIAL
DEVELOPMENT CORPORATION'S "RESOLUTION AUTHORIZING
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
REVENUE BOND (TRIPLE S PLASTICS, INC. PROJECT) SERIES 1995;
THE EXECUTION OF AN INDENTURE AND A LOAN AGREEMENT,
AND OTHER MATTERS RELATED TO THE ISSUANCE OF THE BOND"
AND APPROVING CERTAIN CHANGES TO THE CORPORATION'S
BYLAWS AND OTHER MATTERS RELATED THERETO
WHEREAS, the Georgetown Industrial Development Corporation (the "Issuer") was
created pursuant to Article 5190.6, Vernon's Annotated Texas Civil Statute, as amended (the
"Act") by resolution of the City of Georgetown, Texas (the "Governmental Unit") adopted on
May 13, 1980; and
WHEREAS, the Issuer proposes to issue bonds for the purpose of making a loan to Triple
S Plastics, Inc. (the "Company") to finance the costs related to establishing a custom plastic
injection molding facility located in the Georgetown Industrial Park, including the purchase of
new machinery (including molding machines), equipment, furniture and fixtures (the "Project")
within Williamson County, Texas, in a principal amount not to exceed $5,000,000; and
WHEREAS, Section 25(f) of the Act requires that the governing body of the Governmental
Unit approve the resolution of the Issuer providing for the issuance of the Bond; and
WHEREAS, the issuance of the Bond implements Finance Policy 4 of the Century Plan -
Policy Plan Element and Economic Development Policy; and
WHEREAS, it is deemed necessary and advisable that this Resolution be adopted.
THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, THAT:
Section 1. The Resolution attached hereto as Exhibit A, together with the Exhibits
attached thereto, including the Loan Agreement dated as of October 1, 1995, are hereby approved
and the Bond in a principal amount of $5,000,000 may be issued pursuant thereto.
Section 2. The approvals contained in Section 1 of this Resolution are solely for the
purposes of Section 25(f) of the Act and the Governmental Unit shall have no liability for the
payment of the Bond nor shall any of its assets be pledged to the payment of the Bond. The Bond
shall never constitute an indebtedness or pledge of the Governmental Unit, or the State of Texas,
within the meaning of any constitutional or statutory provision; and the holders of the Bond shall
never be paid in whole or in part out of any funds raised or to be raised by taxation or any other
revenues of the Issuer, the Governmental Unit, or the State of Texas except those revenues
assigned and pledged by the Issuer Resolution.
Section 3. The City recognizes that the Bylaws of the Issuer had to be amended to
accommodate the appointment of additional board members and, therefore, the City hereby
approves the Amended and Restated Bylaws of the Issuer attached hereto as Exhibit B.
Section 4. The findings made in the recitals to this Resolution are incorporated herein and
made a part of this Resolution for all purposes.
Section 5. The programs and expenditures authorized and contemplated by the
Resolution attached hereto as Exhibit A are hereby in all respects approved.
Section 6. The City Council hereby finds that the issuance of the Bond implements
Finance Policy 4 of the Century Plan - Policy Plan Element, which states: "The City shall
develop a strategy to provide sufficient financial resources, for both short term and long term
needs," and Economic Development Policy which states "The City will encourage diversified
growth and promote business opportunities to create jobs, broaden the tax base, and minimize the
impact of economic fluctuation"; and further finds that the enactment of this Resolution is not
inconsistent or in conflict with any other Century Plan Policies, as required by Section 2.03 of
the Administrative Chapter of the Policy Plan.
Section 7. This Resolution shall become effective immediately upon adoption. The
Mayor and City Secretary are hereby authorized and directed to execute the certificate to which
this Resolution is attached on behalf of the City and to do any and all things proper and necessary
to carry out the intent of this Resolution and the issuance of the Bond including the execution of
any certificates or other instruments.
RESOLVED this 18th day of October, 1995.
ATTEST:
Sandra D. Lee
City Secretary
APPROVED AS TO FORM:
Marianne Landers Banks
City Attorney
GEORGETOWN/TRIPLE S:: APPROVE.RES 9/29/95
THE CITY OF GEORGETOWN, TEXAS
By: Leo Wood
Mayor
EXHIBIT "A
[BEHIND TAB NO. 1 IN THIS TRANSCRIPT]
GEORGETOWN/fRIPLE S:: APPROVEAES 9/29/95
RESOLUTION
AUTHORIZING THE ISSUANCE OF
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
INDUSTRIAL REVENUE BOND (TRIPLE S PLASTICS, INC.
PROJECT), SERIES 1995
AND THE EXECUTION OF
AN INDENTURE AND A LOAN AGREEMENT
AND OTHER MATTERS RELATED TO THE
ISSUANCE OF THE BOND
Gft0KGIiT0WN/(KIPL6.3: UKAFTIKESIWILVO EXHIBIT A
TABLE OF CONTENTS
TITLE
PAGE NO.
Recitals.........................................................
1
Resolution.......................................................
1
Section 1.
Designation, Amount, and Purpose of the Bond ..................
2
Section 2.
Date, Denomination, Number, and Maturities of The Bond .........
3
Section 3.
Interest on the Bond .......................................
3
Section 4.
General Characteristics .....................................
3
Section 5.
Form of Bond ...........................................
4
Section 6.
Pledge .................................................
15
Section 7.
Debt Service Fund, Contribution Fund and Rebate Fund ............
15
Section 8.
Security for Funds ........................................
20
Section 9.
The Company's Payments ...................................
20
Section 10.
Additional Parity Bonds ...................................
21
Section 11.
Special Covenants .......................................
22
Section 12.
The Bond Is A Special Obligation ............................
23
Section 13.
Amendments ..........................................
23
Section 14.
Damaged, Mutilated, Lost, Stolen, or Destroyed Bond ............
25
Section 15.
Tax Exempt Status of Interest on the Bond ....................
26
Section 16.
Miscellaneous ...........................................
28
Section 17.
Sale of the Bond .........................................
29
Section 18.
Indenture ..............................................
29
Section 19.
The Agreement .........................................
29
Section 20.
Appointment of Trustee ...................................
30
GE0RGEP0WNfM1PLE•3: DILA1•T4 HIS 10/10/95 i
RESOLUTION AUTHORIZING THE ISSUANCE OF GEORGETOWN
INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL REVENUE
BOND (TRIPLE S PLASTICS, INC. PROJECT), SERIES 1995 AND THE EXECUTION
OF AN INDENTURE AND LOAN AGREEMENT
AND OTHER MATTERS RELATED TO THE ISSUANCE OF THE BOND
THE STATE OF TEXAS §
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION §
WHEREAS, the Georgetown Industrial Development Corporation (the "Issuer") is a
nonstock, nonprofit industrial development corporation organized and existing under the laws of the
State of Texas, including particularly the Development Corporation Act of 1979, as amended (Article
5190.6, Vernon's Annotated Texas Civil Statutes) (the "Act"); and
WHEREAS, the Issuer is a duly constituted public instrumentality of the City of
Georgetown, Texas (the "Governmental Unit"), a political subdivision of the State of Texas, within
the meanings of the regulations of the United States Treasury Department (the "Regulations") and
the rulings of the Internal Revenue Service prescribed and promulgated pursuant to Section 103 of
the Internal Revenue Code of 1986, as amended or, to the extent applicable, under the Internal
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 Georgetown Industrial Development Corporation
and Triple S Plastics, Inc.," dated as of October 1, 1995 (the "Agreement"), has been duly executed
between the Issuer and Triple S Plastics, Inc. (the "Company"); and
WHEREAS, the Company is a corporation organized and existing under the laws of the State
of Michigan and is fully qualified to transact business in the State of Texas; and
WHEREAS, the Agreement is hereby adopted by reference for all purposes, with the same
effect as if it had been set forth in entirety in this bond resolution (this "Initial Bond 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 Company
for such purpose; and
WHEREAS, this preamble and the indenture (the "Indenture") hereinafter set forth in this
Initial Bond Resolution shall constitute an integral part of this Initial Bond Resolution; and
WHEREAS, the depositary bank under the Indenture (the "Depositary") will have the duties
and obligations hereinafter provided; and
GE0KGrT0WN/TK111LE-S: DKAf-74.IL1:S 10/10/95
WHEREAS, the bond authorized to be issued by this Initial Bond Resolution (the "Bond")
is to be issued and delivered pursuant to applicable laws, including the Act, and
WHEREAS, the Company and the Depositary have entered into a Security Agreement dated
as of October 1, 1995 (the "Security Agreement") and a Lease Assignment dated as of October 1,
1995 (the "Lease Assignment"), providing further security for the payment of the Loan Agreement
Payments for the benefit of the owners of the Bond; and
WHEREAS, the Company and the Depositary have entered into a Guaranty Agreement dated
as of October 1, 1995 (the "Guaranty") providing the Company's unconditional guarantee of the full
and prompt payment of principal of, premium, if any, and interest on, the Bond for the benefit of the
owners of the Bond; and
WHEREAS, the Company will have duly approved and agreed to be bound by this Initial
Bond Resolution (including the Indenture) prior to the delivery of the Bond; and
WHEREAS, as provided in the Agreement, by such approval of this Initial Bond Resolution
(including the Indenture) the Company will have agreed and acknowledged that the Bond, when
issued, sold, and delivered as provided in this Initial Bond Resolution, will be issued in accordance
and compliance with the Agreement, and that, upon the issuance, sale, and delivery of the Bond, and
the execution and delivery of the Indenture, the Company will be unconditionally obligated to the
Issuer to make or pay, or cause to be made or paid, without set-off, recoupment, or counterclaim,
to the Depositary the "Loan Agreement Payments" required by the Agreement and by this Initial
Bond Resolution (including the Indenture) in amounts sufficient to pay the principal of, redemption
premium, if any, and interest on the Bond, when due, all fees and expenses of the Depositary for the
Bond, and all other amounts required to be paid by the Agreement, this Initial Bond Resolution, and
the Indenture, all as hereinafter set forth; and
WHEREAS, for purposes of this Initial Bond Resolution, the definitions of terms in the
Agreement, the Security Agreement, the Lease Assignment, the Guaranty and the Indenture are
hereby adopted, and the terms given herein shall have the same meanings as such terms are given in
said Agreement, the Security Agreement, the Lease Assignment, the Guaranty and Indenture unless
a different meaning is given herein.
THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION THAT:
Section 1. DESIGNATION, AMOUNT, AND PURPOSE OF THE BOND. The Issuer's
bond designated and to be known as GEORGETOWN INDUSTRIAL DEVELOPMENT
CORPORATION INDUSTRIAL REVENUE BOND (TRIPLE S PLASTICS, INC. PROJECT),
Series 1995 (the "Bond") is hereby authorized to be issued in the aggregate principal amount of
$5,000,000 on behalf of the City of Georgetown, Texas to pay the cost of the Project including the
purchase of certain new machinery (including molding machines), equipment, furniture and fixtures
(X0RGF1'0WN(rR1P1X•s: DkArrnAES ionoi,)s 2
for the purpose of establishing an approximately 64,000 square foot custom plastic injection molding
facility located in the Georgetown Industrial Park IN WILLIAMSON COUNTY, TEXAS, FOR
TRIPLE S PLASTICS, INC. FOR THE SPECIFIC PURPOSE OF THE PROMOTION AND
ENCOURAGEMENT OF EMPLOYMENT AND THE PUBLIC WELFARE.
Section 2. DATE, DENOMINATION, NUMBER, AND MATURITIES OF THE
BOND. (a) The Bond initially authorized hereby shall be dated as of October 1, 1995, shall be issued
and delivered in the form of one fully registered bond, without coupons, payable in installments to
the registered owner thereof, or its registered assigns, all in the manner hereinafter provided, with the
Bond to be numbered R-1, in the denomination and principal amount of $5,000,000, initially payable
to First of America Bank - Michigan, National Association, with the principal of the Bond to be
payable in monthly installments over seven years on the dates and in the amounts as set forth in the
FORM OF BOND in Section 5.
(b) The Bondholder of the fully registered Bond initially authorized hereby may surrender at
any time said Bond to the Depositary for assignment in accordance with the provisions set forth in
the FORM OF BOND in Section 5.
Section 3. INTEREST ON THE BOND. The Bond initially authorized hereby shall bear
interest on the unpaid balance of the principal amount thereof from the date of delivery to the initial
purchaser thereof (which date shall be indicated by the Depositary in the Delivery Certificate
appearing on the Bond) to the scheduled due date, or date of prepayment or redemption prior to the
scheduled due date, of the principal installments of the Bond, and thereafter, if appropriate, at the rate
as provided in the FORM OF BOND set forth in Section 5. The interest shall be payable and
calculated on the dates and in the manner provided in the FORM OF BOND set forth in Section 5.
Section 4. GENERAL CHARACTERISTICS. (a) In General. The Bond initially
authorized hereby shall be issued, shall be payable, may or shall be prepaid or redeemed prior to the
scheduled principal installment payment dates with premium, if any, shall have the characteristics, and
shall be signed and executed (and the Bond shall be sealed), all as provided, and in the manner
indicated, in the FORM OF BOND set forth in Section 5. After the Bond has been authorized to be
issued by the Board of Directors of the Issuer, and prior to the delivery of the Bond, the Depositary
shall authenticate the Bond by executing the Depositary's Certificate of Authentication appearing on
the Bond as provided in Section 5. In addition, on the date of delivery of the Bond to the initial
purchaser thereof, the Depositary shall fill in the date of delivery of the Bond in the Delivery
Certificate appearing on the Bond as provided in Section 5.
(b) Registration Books. The Issuer shall keep or cause to be kept at the office for
payment of the Depositary books for the registration and assignment of the Bond (the "Bond
Registration Books") which will also be available within the State of Texas and the Issuer hereby ap-
points the Depositary as its registrar and assignment agent (the "Registrar") to keep such books and
make such registrations and transfers under such reasonable regulations as the Issuer or the Registrar
may prescribe; and the Registrar will register or assign as herein provided, the Bond upon
GF0KGE70WNrrRIP1G•S: DRAI'rd RES I0/I0/91 3
presentation thereof at such office; provided, however, that the Depositary shall register assignment
of the Bond only upon receiving evidence satisfactory to it that the assignee is a "Sophisticated
Investor" (as defined in the FORM OF BOND set forth in Section 5. The Company and each Bond-
holder shall have the right to inspect such Bond Registration Books during the normal business hours
of the Depositary.
Registration of the Bond may be transferred only on the Bond Registration Books upon
surrender thereof by the registered owner or by his duly authorized attorney, by proper written
instrument of transfer, in the form and with guaranty of signatures satisfactory to the Registrar, duly
executed by such owner or attorney. Upon such surrender for transfer of registration, the Registrar
shall make notation of such transfer on the Bond in the Assignment section appearing thereon and
in the Bond Registration Books. Such transfers of registration shall be made without charge to the
owner of such Bond, but any taxes or other governmental charges required to be paid with respect
to the same shall be paid by the Bondholder requesting such transfer of registration, as a condition
precedent to the exercise of such privilege.
The Depositary shall not be required to make transfers of the Bond (1) beginning on the 15th
day of the calendar month immediately preceding an interest payment date or redemption date and
ending at the close of business on such interest payment date or redemption date, or (ii) subsequent
to the date of mailing of notice of redemption of such Bond or a portion thereof, anything in such
Bond to the contrary notwithstanding.
(c) Payment to Registered Owner. The Person in whose name the Bond shall be
registered on the Bond Registration Books may be deemed and treated as the absolute owner thereof
for all purposes of this Initial Bond Resolution and the Indenture whether or not such Bond shall be
overdue, and the Issuer, the Depositary and the Company shall not be affected by any notice to the
contrary; and payment of, or on account of, the principal of, premium, if any, and interest on any such
Bond shall be made only to such registered owner thereof-, but such registration may be changed as
provided herein. All such payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
(d) Notation of Prepayment. The Issuer hereby appoints the Depositary as the Paying
Agent for the Bond. Upon the prepayment or partial redemption of the Bond, the Depositary, as
Registrar and Paying Agent, shall note in the Prepayment Record appearing on such Bond the amount
of such prepayment or redemption, the date said payment was made and the remaining unpaid
principal balance of said Bond and shall then have said entry signed by an authorized official of the
Depositary. The Depositary shall also record such information in the Bond Registration Books, and
the Depositary shall also record in the Bond Registration Books all payments of principal installments
on the Bond when made on their respective due dates.
Section 5. FORM OF BOND. The form of the Bond, together with the forms of the
various certificates and forms to appear on the Bond, shall be, respectively, substantially as follows,
with necessary and appropriate variations, omissions, and insertions as permitted or required by this
GE0Rc1:.1'0wNirR1V1.H-s oknrra.iu;s ioiio/o 4
Initial Bond Resolution:
NO. R-1
$5,000,000
UNITED STATES OF AMERICA
STATE OF TEXAS
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
INDUSTRIAL REVENUE BOND
(TRIPLE S PLASTICS, INC. PROJECT)
SERIES 1995
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer"), being
a nonstock, nonprofit industrial development corporation organized and existing under the laws of
the State of Texas, including particularly the Development Corporation Act of 1979, as amended
(Article 5190.6, Vernon's Annotated Texas Civil Statutes) (the "Act"), and acting on behalf of the
City of Georgetown, Texas, hereby promises to pay to First of America - Michigan, National
Association, or its registered assignees, the aggregate principal amount of
(FIVE MILLION DOLLARS)
in monthly installments as set forth on the payment schedule attached as Schedule "A" on the first day
of each month as set forth therein, beginning December 1, 1995 through November 1, 2002, 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) which interest shall be based on the
number of days actually elapsed on the basis of a 360-day year at a rate per annum equal to the Bond
Rate until the principal hereof may become due and payable, and at a rate per annum equal to the
Default Rate (based on the number of days actually elapsed on the basis of a 360-day year) on
overdue principal, and, to the extent legally permissible, on overdue interest.
"Bond Rate" means (i) from the date of delivery through September 30, 2000, % per
annum and (ii) from October 1, 2000 through November 1, 2002, a rate equal to 77% of the "Base
Rate" which means the floating daily variable rate of interest determined and announced by First of
America Bank - Michigan, National Association from time to time as its "Base Lending Rate,"
without reference to prime interest rates of any other financial institution, which rate may not
necessarily be the lowest rate of interest charged by said bank to any of its customers. The Base Rate
is an "index". The actual rate charged to any borrower for a specific loan may be above or below that
"index".
Gr0Kc1rnwNrrK111LF-s DRAMA Krs 10n0/95 5
"Default Rate" means the Base Rate plus three percent (3%) but shall not exceed a Net
Effective Interest Rate of 15% pursuant to Article 717k-2, Vernon's Annotated Texas Civil Statutes,
as amended.
"Determination of Taxability" means a determination that the interest income on any Bond
does not qualify for the exclusion from gross income of the owner thereof ("exempt interest") under
section 103 of the Code, other than by virtue of the provisions of the Code relating to alternative
minimum tax or other than that such owner is a substantial user of the facility being financed with the
proceeds of the Bond or a related person, which determination shall be deemed to have been made
upon the occurrence of the first to occur of the following:
(a) the date on which the Company determines that the interest income on the Bond does
not qualify as exempt interest if such determination is supported by a written opinion to that effect
of Bond Counsel, satisfactory to the Depositary; or
(b) the date on which the Company shall receive notice from the owner of the Bond that,
as a result of any authorized federal administrative action or by final decree, judgment or order of any
federal court or authorized federal administrative body, it has been determined that, as a result of a
failure by the Company to observe any agreement or representation in the Agreement, the interest
payable on the Bonds does not qualify as exempt interest. Any such determination will not be
considered final for this purpose unless the Bondholder involved in the proceeding or action resulting
in the determination (i) gives the Company and the Depositary prompt written notice of the
commencement of such proceeding or action and (ii) if the Company agrees to pay all expenses in
connection therewith and to indemnify such Bondholder against all liabilities in connection therewith,
offers the Company an opportunity to contest the determination, either directly or in the name of the
Bondholder, and until conclusion of any appellate review, if sought.
PROVIDED, HOWEVER, that on any date, if the Bond Rate shall be such that the Net
Effective Interest Rate (as defined and calculated in accordance with Article 717k-2, Vernon's
Annotated Texas Civil Statutes, as it exists on the date of issuance of this Bond, the "Net Effective
Interest Rate") from the date of delivery of this Bond to such date shall exceed 15%, then the Bond
Rate shall be that interest rate which produces a Net Effective Interest Rate from the date of delivery
of this Bond to such date of 15%, and on each date thereafter the Bond Rate shall be that interest rate
which produces a Net Effective Interest Rate of 15% until such future date as the interest payable
from the date of delivery of this Bond to such future date is the same as it would have been but for
the limitations set forth in this sentence; further provided, however, that interest payable on this Bond,
together with any other costs or considerations that constitute interest under applicable law, shall not
exceed the maximum amount permitted to be paid on this Bond under applicable law. The interest
to be paid on this Bond on any date interest is payable shall be calculated by first determining the
amount of interest on the unpaid principal balance of this Bond from time to time outstanding at the
Bond Rate in effect from time to time from the date of delivery of this Bond through the
corresponding Calculation Date (hereinafter defined) then deducting any interest previously paid on
this Bond to determine the amount of interest payable on such interest payment date, provided,
aFoKGrrowNrrkrPr.e•s: uanr n Rr•.s ionorgs 6
however the interest payable on the Bond on any payment date shall never exceed the maximum
allowed by applicable law. The interest on this Bond is payable on December 1, 1995, and on the first
day of each month thereafter while this Bond is outstanding.
THE DEPOSITARY (hereinafter defined) shall calculate the interest due and payable on this
Bond in the manner as follows. Interest for each month or part thereof while this Bond is outstanding
shall be calculated as of the twentieth day of the month for interest through the last day of such month
and at maturity (the "Calculation Date"). The interest payable on this Bond shall be calculated by first
determining the amount of interest on the unpaid principal installments of this Bond from time to time
as hereinbefore described from the date of delivery of this Bond through the last day of such month
(or, if the Bond has matured, to maturity) then deducting any interest previously paid but unearned
for the preceeding month to determine the amount of interest then payable; provided, however, that
the total interest payable through the last day of each month and at maturity shall not exceed the
maximum amount of interest which the owner of this Bond may lawfully charge thereon from the date
thereof to such date. The Depositary shall notify the Company, pursuant to the notice provisions of
the Agreement, of the total interest due on the balance of the principal amount due on this Bond (the
"Interest Calculation") on a date (the "Notice Date") no less than 5 days prior to the date (the
"Payment Date") fixed for any payment of interest or unpaid principal amounts of the Bond which
Interest Calculation shall represent the full amount of interest due on the next Payment Date. The
final payment of principal on this Bond shall be paid only upon surrender of this Bond to the
Depositary for cancellation.
THE PRINCIPAL of, interest on, premium, if any, of this Bond shall be payable in lawful
money of the United States of America, without exchange or collection charges. Payments of prin-
cipal and interest shall be made to the registered owner by check or draft mailed by First of America
Bank - Michigan, National Association Kalamazoo, Michigan (the "Depositary", "Paying Agent", and
"Registrar" for this Bond) or its successor appointed under the Indenture (hereinafter defined), to the
registered owner at its address as it appears on the Bond Registration Books kept by the Depositary;
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 Depositary.
ANY PREPAYMENT or redemption of any principal installments of this Bond shall be made
only upon presentation of this Bond to the Depositary, who shall make notation of such prepayment
or redemption in the Prepayment Record endorsed hereon.
THIS BOND is dated as of October 1, 1995 but accrues interest as of its date of delivery and
was authorized and issued in the aggregate principal amount of $5,000,000 pursuant to a resolution
adopted by the Board of Directors of the Issuer (the "Initial Bond Resolution") on behalf of the CITY
OF GEORGETOWN, TEXAS IN ORDER TO MAKE A LOAN TO TRIPLE S PLASTICS, INC.
TO PURCHASE NEW MACHINERY (INCLUDING MOLDING MACHINES), EQUIPMENT,
FURNITURE AND FIXTURES FOR THE PURPOSE OF ESTABLISHING A 64,000 SQUARE
FOOT CUSTOM PLASTIC INJECTION MOLDING FACILITY LOCATED IN THE
GEORGETOWN INDUSTRIAL PARK.
GP*0KGETOWN/f Rwi.f-s: DRAPfd RES IW10/0 7
ON ANY DATE, the unpaid principal installments of this Bond are subject to optional
prepayment or redemption, and may be prepaid or redeemed prior to their scheduled maturities, by
the Issuer at the option of the Company, with internally generated funds or proceeds from the sale
of capital stock furnished by the Company, upon written notice of the exercise of the option to prepay
or redeem delivered to the Depositary by the Company not later than the 30th day prior to the date
of prepayment or redemption. This Bond may be so prepaid or redeemed as a whole or, from time
to time, in part (and, if less than all of the unpaid principal installments of this Bond are to be prepaid
or redeemed the particular unpaid installments to be redeemed shall be selected and designated by the
Company and if less than all of an unpaid installment is to be redeemed, the Depositary shall select
at random, by lot or other customary method, the unpaid installment to be redeemed), at the
prepayment or redemption price of the principal amount thereof, without premium, plus accrued
interest to the date of prepayment or redemption
ON NOVENIBER 1, 1997, and on the first day of each month thereafter, the unpaid principal
installments of this Bond is subject to optional prepayment or redemption, and may be prepaid or
redeemed prior to their scheduled maturities, by the Issuer at the option of the Company, with funds
furnished by the Company other than funds set forth in the foregoing paragraph, upon written notice
of the exercise of the option to prepay or redeem delivered to the Depositary by the Company not
later than the 30th day prior to the date of prepayment or redemption. This Bond may be so prepaid
or redeemed as a whole or, from time to time, in part (and, if less than all of the unpaid principal
installments of this Bond are to be prepaid or redeemed the particular unpaid installments to be
redeemed shall be selected and designated by the Company and if less than all of an unpaid installment
is to be redeemed, the Depositary shall select at random, by lot or other customary method, the
unpaid installment to be redeemed), at the prepayment or redemption price (expressed as a percentage
of principal amount) applicable to the date of redemption falling within the applicable prepayment or
redemption period, as set forth in the following schedule, plus accrued interest to the date of
prepayment or redemption:
Prepayment or Prepayment or
Redemption Period Redemption Price
November 1, 1997 through October 31, 1998 103%
November 1, 1998 through October 31, 1999 102%
November 1, 1999 through October 31, 2000 101 %
November 1, 2000 and thereafter 100%
FOLLOWING THE OCCURRENCE of a Determination of Taxability, the Bond shall bear
interest at the Base Rate from the earliest date (the "Taxable Date") from which interest paid in
respect of this Bond is determined to be includable for federal income tax purposes in the gross
income of the owner of this Bond and for which the Internal Revenue Service may assess a deficiency
as a result of a Determination of Taxability. Upon the occurrence of a Determination of Taxability,
the unpaid principal installments of this Bond, at the election of the Company or the Bondholder, are
subject to acceleration, as a whole, on any date prior to their scheduled due dates with funds which
i,1:0KGL"1'0WN/rRIP1.H•S: DRAMA RES I0/I0/95 8
shall be furnished by the Company, on the earliest practicable date.
IF THERE IS A CHANGE IN THE CODE, the regulations promulgated thereunder or in the
interpretation thereof by any court, administrative authority or other governmental authority (other
than an Event of Taxability) which takes effect after the date of issuance of this Bond, and which
changes the effective yield on the Bond to the Bondholder, including but not limited to, changes in
the Corporate Tax Rate (as hereinafter defined) ("Change in Law"), the interest rate on the Bond shall
change accordingly to compensate the holder for such change in the effective yield on the Bond. In
the event of an increase or decrease in the Corporate Tax Rate (as hereinafter defined) of the holder
of this Bond, enacted or effective after the date of issuance of this Bond, the interest rate set forth
herein (other than any interest rate in effect following a Determination of Taxability or event of
default) shall be decreased (in the case of an increase in said Corporate Tax Rate) or increased (in the
case of a decrease in said Corporate Tax Rate) to the Adjusted Tax Exempt Rate (as hereinafter
defined), effective as of the date of such change in the Corporate Tax Rate. In this Section, (i)
"Adjusted Tax Exempt Rate" shall mean the product of (x) the Interest Rate times (y) a fraction
(expressed as a decimal) the numerator of which is the number 1 minus the Corporate Tax Rate in
effect following the change in such rate referred to in the preceding sentence and the denominator of
which is the number 1 minus the Corporate Tax Rate in effect on the date of the original issuance of
this Bond; and (ii) the "Corporate Tax Rate" shall mean the highest marginal statutory rate of Federal
Income Tax imposed on corporations and applicable to the Bondholder. In the event of a change in
the Corporate Tax Rate, the monthly interest payments hereon shall be increased, or decreased, as
applicable, effective on the first day of the first month commencing after the change in the Corporate
Tax Rate, so that each monthly payment shall be equal to the sum of (a) the principal which would
have been paid in the particular month as if the change in the Corporate Tax Rate had not occurred;
and (b) the accrued interest at the Adjusted Tax Exempt Rate.
ON ANY DATE, the unpaid principal installments of this Bond are subject to prepayment or
redemption, and may be prepaid or redeemed prior to the scheduled due dates by the Depositary, in
inverse chronological order of their scheduled due dates, at a prepayment or redemption price equal
to the principal amount thereof to be prepaid or redeemed plus accrued interest thereon to the date
of prepayment or redemption (calculated and payable as provided herein), and without premium, with
and to the extent of any surplus funds remaining in the Construction Fund (created by the Initial Bond
Resolution) after the completion of the Project, as provided and required by Section 16 of the Initial
Bond Resolution, or to the extent of any monies remaining in the Construction Fund as provided and
if required by Section 7(g) of the Initial Bond Resolution.
THE FOREGOING NOTWITHSTANDING, the rate of interest borne by this Bond shall
never exceed a rate which would cause the Net Effective Interest Rate for this Bond from the date
of delivery to the initial purchaser hereof to any date to exceed a Net Effective Interest Rate of 15%.
THE AGREEMENT provides that any provision for any payment contained in the Agreement
or this Bond shall be held 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
aroKc;rrowwrkrnLr•s: DRArn ius iwo/o 9
courts having jurisdiction, and it is agreed by the Issuer and the owner of this Bond that in no event
shall usury be paid or collected with respect to this Bond.
AT LEAST 15 DAYS PRIOR to the date fixed for any prepayment or redemption of the
unpaid principal installments of this Bond (but not the maturity of monthly installments of principal),
the Depositary shall cause a written notice of such redemption to be mailed to the registered owner
of this Bond addressed to such owner at the address appearing on the Bond Registration Books. By
the date fixed for any such prepayment or redemption, due provision shall be made by the Company
with the Depositary and the Paying Agent for the payment of the principal amount of this Bond which
is to be prepaid or redeemed, plus accrued interest thereon to the date fixed for prepayment or
redemption (calculated and payable as provided herein), plus any required prepayment or redemption
premium, and any other amounts due the owner of this Bond. If such written notice of prepayment
or redemption is given and if due provision for payment of the redemption price is made, all as
provided above, the unpaid principal installments of this Bond which are to be prepaid or redeemed
thereby automatically shall be deemed to have been prepaid or redeemed prior to their scheduled due
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 installments which are to be
prepaid or redeemed, shall be paid at the redemption price. Except as set forth above, the principal
installments of this Bond is not subject to prepayment or redemption prior to their scheduled due
dates.
IF 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 closed by law or custom, then the date for such payment shall be the immediately
preceding day which is not such a Saturday, Sunday, legal holiday, or day on which banking
institutions are closed by law or custom; and payment on such date shall have the same force and
effect as if made on the original 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 due with respect
hereto, are payable from and secured by a first lien on and pledge of the payments designated as
"Loan Agreement Payments" to be made or paid, or caused to be made or paid, to the Depositary,
pursuant to the Initial Bond Resolution, the Indenture and the "Loan Agreement between
Georgetown Industrial Development Corporation and Triple S Plastics, Inc.," dated as of October
1, 1995 (the "Agreement"). The Company is unconditionally obligated to make or pay, or cause to
be made or paid, without set-off, recoupment, or counterclaim, to the Depositary each such Loan
Agreement Payment for deposit into the Debt Service Fund created for the benefit of the owners of
the Bond by the Initial Bond Resolution, in aggregate amounts sufficient to pay and redeem, and
ae0kccr0WNn•K1r1.e•s: oknrrn ices iomy,)i 10
provide for 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 Indenture when due,
subject to and as required by the provisions of the Agreement, the Initial Bond Resolution, and the
Indenture.
THE ISSUER AND THE DEPOSITARY have entered into an Indenture dated as of October
1, 1995 (the "Indenture"), whereunder First of America Bank - Michigan, National Association or
its successor, is custodian of the Debt Service Fund and is obligated to perform certain duties in the
manner and under the conditions stated in the Indenture. In case an "Event of Default," as defined
in the Indenture, shall occur, the unpaid principal installments of this Bond may be declared to be due
and payable immediately upon the conditions and in the manner provided in the Indenture. This Bond
is additionally secured by a Security Agreement between the Company and First of America Bank -
Michigan, National Association (tile "Security Agreement") and a Lease Assignment dated as of
October 1, 1995, between the Company and First of America Bank - Michigan, National Association
(the "Lease Assignment"), both relating to certain property of the Company pledged to secure the
payment of this Bond. In addition, the Company and First of America Bank - Michigan, National
Association have entered into a Guaranty Agreement (the "Guaranty"), dated as of October 1, 1995,
by which the Company has unconditionally guaranteed the payment due on the Bond and, also,
among other things, contains certain financial covenants which, if violated by the Company, may
result in an Event of Default. Reference is hereby made to the Initial Bond Resolution, the Indenture,
the Security Agreement, the Lease Assignment and the Guaranty Agreement for additional provisions
with respect to the nature and extent of the security, the rights, duties, and obligations of the
Company, the Issuer, the Depositary, and the owner of this Bond, the terms 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 restrictions stated in the Initial Bond
Resolution including the prior written consent of a majority of the Bondholders, to issue additional
parity revenue bonds ("Additional Bonds") which, when issued and delivered, shall be payable from
the Debt Service Fund, and shall be payable from and secured by a first lien on and pledge of Loan
Agreement Payments pursuant to the Agreement and entitled to the benefits of the Indenture, the
Security Agreement and the Lease Assignment 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
Indenture, as provided therein, and under some (but not all) circumstances amendments thereto must
be approved by the owners of a majority in aggregate principal amount of this Bond then outstanding
and any Additional Bonds then outstanding.
THE OWNER HEREOF shall never have the right to demand payment of this obligation out
of any funds raised or to be raised by taxation or from any source whatsoever except the payments
and amounts described in this Bond, the Initial Bond Resolution, the Indenture, the Agreement, the
Security Agreement, the Lease Assignment and the Guaranty. Except for the lien on and the
assignment and pledge of such property, payments, and amounts, no property of the Issuer is
(;1?UKl;1:1'OWN/1'1111'LG-S: DRAVI'dRES10/10/pit I I
encumbered by any lien or security interest for the benefit of the owner of this Bond. Neither the
State of Texas, the City of Georgetown, Texas, nor any other political corporation, subdivision, or
agency of the State of Texas, nor the Board of Directors of the Issuer, either individually or
collectively, shall be obligated to pay the principal of this Bond, any premium or payment with respect
to this Bond, or the interest hereon; and neither the faith and credit, nor the taxing power, of the State
of Texas, the City of Georgetown, Texas, nor any other political corporation, subdivision, or agency
of the State of Texas, is pledged to the payment of the principal of this Bond, any premium or
payment with respect to this Bond, or the interest hereon.
THIS BOND may be assigned and shall be transferred only on the Bond Registration Books
of the Issuer kept by the Depositary, as Registrar, upon the terms and conditions set forth in the
Initial Bond Resolution, the Indenture and the Assignment provisions endorsed hereon; provided,
however, (i) the sale or transfer of this Bond will be only to a Sophisticated Investor (hereinafter
defined) and (ii) such sale or transfer will be conditioned upon the receipt by the Issuer and
Depositary of an "Investment Letter" containing substantially the same representations and covenants
as the "Investment Letter" delivered by the initial registered owner of this Bond. A Sophisticated
Investor shall mean (i) any national or state chartered banking institution who may legally purchase
bonds such as this Bond, (ii) any corporation organized as a trust company who may legally purchase
bonds such as this Bond, (iii) any corporation organized as an insurance company who may legally
purchase bonds such as this Bond and (iv) to a person who the seller hereof reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A of the Securities Act of 1933 that
purchases for its own account or for the account of a qualified institutional buyer and institutions that
are "accredited investors" as defined in Rule 501(a)(1), (2), (3) or (4) of the Securities Act of 1933.
Such transfers shall be without expense to the owner hereof, but any taxes or other governmental
charges required to be paid with respect to such transfer shall be paid by the owner requesting such
transfer as a condition precedent to the exercise of such privilege. The Depositary shall not be
required to make transfers of this Bond (1) beginning on the 15th day of the calendar month
immediately preceding an interest payment date or redemption date and ending at the close of
business on such interest payment date or redemption date, or (ii) subsequent to the date of mailing
of notice of prepayment or redemption of any principal installments of this Bond, anything in this
Bond to the contrary notwithstanding. The registered owner of this Bond may be deemed and treated
by the Issuer, the Depositary and the Company as 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 Depositary and the Company shall not be affected by any notice to the contrary.
THIS BOND shall not be valid or become obligatory for any purpose or be entitled to any
benefit under the Indenture until the Depositary's Certificate of Authentication hereon shall have been
signed by the Depositary and the Delivery Certificate hereon shall have been completed.
csoKu rowN(num.r:-s: t)itnrrt iers ionomi 12
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.
Secretary, Board of Directors
(ISSUER'S SEAL)
President, Board of Directors
FORM OF DEPOSITARY CERTIFICATE OF AUTHENTICATION
DEPOSITARY'S CERTIFICATE OF AUTHENTICATION
This Bond is the Bond issued under the provisions of the within mentioned Agreement, Initial
Bond Resolution and Indenture.
First of America Bank - Michigan, National Association,
Depositary
By
Authorized Officer
FORM OF DELIVERY CERTIFICATE
DELIVERY CERTIFICATE
THIS BOND was delivered to and paid for by the purchaser hereof on
GEORGFMWNMPLE•S: ORAfrP AES 10/10/115 13
SCHEDULE A
MONTHLY INSTALLMENTS OF PRINCIPAL
Bond Year
1 st Bond Year
2nd Bond Year
3rd Bond Year
4th Bond Year
5th Bond Year
6th Bond Year
7th Bond Year
(first 11 payments)
7th Bond Year
(final payment)
TOTAL PRINCIPAL
Date of
Payment
N[onthly Principal
Payments During
Bond Year
$48,000
52,000
55,000
59,000
63,000
67,000
72,000
Total Principal
Payments For
Bond Year
$576,000
624,000
660,000
708,000
756,000
804,000
792,000
$57000,000
FORM OF PREPAYMENT RECORD
PREPAYMENT RECORD
Principal Remaining Name & Title of
Prepayment or Principal Authorized Officer
Redemption Balance Making Entry
GEORGEMWN/PRIPLE•S: DRAT •APES 10/10l95 14
Principal Balance
Remaining After
Bond Year
$4,424,000
3,800,000
3,140,000
2,432,000
1,676,000
872,000
80,000
Signature of
Authorized
Officer
X
FORM OF ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the registered owner of this Bond last listed below sells, assigns,
and transfers the within Bond to the Assignee last listed below, and hereby authorizes the transfer of
this Bond on the Bond Registration Books of the Depositary. Such assignment shall not be effective
until such Assignee presents this Bond to the Depositary for verification of such assignment and gives
the Depositary its address to which payments shall be made and the Depositary makes notation of
such Assignment below.
DATE OF REGISTERED SIGNATURE OF
ASSIGNMENT OWNER ASSIGNEE REGISTRAR
Section 6. PLEDGE. The Bond and the interest thereon are and shall be payable from
and secured by a first lien on and pledge of the payments designated as Loan Agreement Payments
to be made or paid, or caused to be made or paid, to the Depositary by the Company, pursuant and
subject to the terms and provisions of this Initial Bond Resolution, the Indenture, and the Agreement;
and such Loan Agreement Payments are further pledged irrevocably to the establishment and
maintenance of the Debt Service Fund hereinafter created. The Bond is additionally secured by the
Security Agreement and the Lease Assignment and all moneys in the Debt Service Fund and the
Construction Fund including the proceeds of the Bond pending disbursement.
Section 7. DEBT SERVICE FUND, CONSTRUCTION FUND AND REBATE FUND.
(a) Establishment of Debt Service Fund. A separate and special fund to be designated and known
as the "Debt Service Fund" shall be established by the Issuer with the Depositary for the benefit of
the owners of the Bond pursuant to the Agreement and the Indenture, and maintained as provided
in this Initial Bond Resolution and the Indenture, as long as any oI the Bond, or interest thereon, is
outstanding and unpaid.
(b) Accrued Interest. Immediately after the delivery of 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 Depositary into the Debt Service Fund.
GEoRocrrowwrRIPLE•s: DRnrrl Rits iunoivs 15
(c) Loan Agreement Payments. Tile payments required by subsections (1) through (4)
below to be deposited into the Debt Service Fund shall be herein referred to as the "Loan Agreement
Payments".
(1) Principal and Interest Payments, The Company shall make or pay, or cause to be
made or paid, to the Depositary, which shall deposit into the Debt Service Fund,
Principal and Interest Payments as follows:
(A) On or before each interest payment date as provided in Section 3 and in the
FORM OF BOND set forth in Section 5, an amount which, together with any
other amounts then on deposit therein and available for such purpose, will be
sufficient to pay the interest coming due on the Bond on each interest
payment date; and
(B) On or before each principal payment date as provided in the FORM OF
BOND set forth in Section 5, an amount which, together with any other
amounts then on deposit therein and available for such purpose, will be
sufficient to pay the principal of the Bond scheduled to be paid on each
principal payment date; and
(C) On or before any optional or mandatory prepayment or redemption date as
permitted or required in the FORM OF BOND set forth in Section 5, an
amount which, together with any amounts then on deposit and available for
such purpose, will be sufficient to pay the prepayment or redemption price
specified therein; and
(D) On any date on which the Bond is declared to be immediately due and payable
pursuant to the Indenture, an amount which, together with any other amounts
then on deposit and available for such purpose, will be sufficient to pay the
principal of the Bond then outstanding and the interest accrued thereon to
such date.
(2) Deposita Registrar and Paying Agent Payments. Promptly after receipt of each
statement and request for payment, the Company shall make or pay, or cause to be
made or paid, to the Depositary, which shall deposit into the Debt Service Fund,
Depositary, Registrar and Paying Agent Payments in an amount equal to the charges
of the Depositary for performing the duties of Depositary and Registrar, and the
charges of the Paying Agent for the Bond, as designated in the FORM OF BOND set
forth in Section 5, for paying or redeeming principal installments of the Bond, and
paying the interest thereon.
(3) Other Payments. The Company shall make or pay, or cause to be made or paid, to
the Depositary, which shall deposit into the Debt Service Fund, payments (other than
c,r•.0RGFr0WNrrR1P1X.s: oknrr.i Res uu10/95 16
those provided for in subsections (1) and (2), above) in an amount sufficient to pay,
at the required time, all other payments required to be paid by the Company under the
terms of this Initial Bond Resolution, the Agreement or the Indenture.
(4) Overdue Payments. In the event the Company should fail to make or pay, or cause
to be made or paid, any of the required Loan Agreement Payments set forth in this
Section, each such required payment shall continue as an obligation of the Company
until fully paid, and the Company agrees to pay the same to the Depositary, for the
benefit of the owners of the Bond or the Depositary, as appropriate, with interest
thereon, to the extent legally permissible, at the rate per annum equal to the Default
Rate (as defined in the FORM OF BOND set forth in Section 5) (based on the number
of days actually elapsed on the basis of a 360-day year) from the date any such
payment was due until payment thereof.
(d) Redemption. The Bond initially authorized hereby shall be subject to redemption, and
may or shall be redeemed, as specified in the FORM OF BOND set forth in Section 5.
(e) Payments from Debt Service Fund. Except as otherwise specifically provided in this
Initial Bond Resolution or the Indenture, the Debt Service Fund shall be used by the Depositary only
to pay the principal of, and prepayment or redemption premium, if any, and interest on the Bond,
when due, and the charges of the Depositary, Registrar, and Paying Agent; and the Depositary shall
make available to the Paying Agent, out of the Debt Service Fund, the amounts required to pay or
redeem the principal of and interest on the Bond when due, and the Depositary shall make all other
payments as required by this Initial Bond Resolution and the Indenture.
(f) Immediately Available Funds. The Company shall make all Loan Agreement Payments
in funds that will be immediately available and allow the Paying Agent to pay, in lawful money of the
United States of America, the principal, interest, premium, if any, and other amounts with respect to
the Bond, when due.
(g) Establishment of Rebate Fund. A separate and special fund to be designated and
known as the "Rebate Fund" shall be established by the Issuer with the Depositary for the benefit of
the United States and the Company, as their respective interests may appear pursuant to the Bond
Resolution, the Indenture and the Agreement, and maintained as provided in this Initial Bond
Resolution and the Indenture, for so long as any of the Bond, or interest thereon, is outstanding and
unpaid.
(h) Investment of Debt Service and Rebate Fund. Any money held as part of the Debt
Service Fund or the Rebate Fund shall be invested or reinvested by the Depositary, upon the written
direction (or oral direction confirmed in writing) of the Approving Officer in Eligible Securities. The
Depositary shall make no investments except as specifically directed by the Approving Officer. The
investments of the Debt Service Fund and the Rebate Fund shall be deemed to be a part of such
respective Fund, and, for the purpose of determining the amount of money in such Fund, such
c;r:oKcrrc�wNrrriu�r.r:-s: DRAI-T11AUs iniiows 17
investments shall be valued at their cost. The income and profits, including realized discount on
obligations purchased, received from such investments shall be deposited in or credited to the Debt
Service Fund and the Rebate Fund, and any losses on investments thereon shall be charged against
the Debt Service Fund and the Rebate Fund. If at any time it shall become necessary that some or
all of the investments made with the moneys from the applicable fund be redeemed or sold to raise
moneys necessary to comply with the provisions of this Initial Bond Resolution or the Indenture, the
Depositary shall, without further authorization, effect such redemption or sale, employing, in the case
of a sale, any commercially reasonable method of effecting the same. The Depositary shall not be
liable or responsible for any loss resulting from any such investment or resulting from the redemption
or sale of any such investment as herein authorized; except that the Depositary shall be liable for (1)
any loss resulting from its willful or negligent failure, within a reasonable time after receiving the
written direction from the Approving Officer to make, redeem, or sell any investment in the manner
provided for herein, and (2) except for any redemption or sale made pursuant to the next preceding
sentence of this paragraph, for any loss resulting from the making, redeeming, or selling of any
investment which was not authorized by written direction of the Approving Officer. If the
Depositary is unable, after reasonable efTort and within a reasonable time, to make, redeem, or sell
any such investment, it shall so notify the Approving Officer and thereafter the Depositary shall be
relieved of all responsibility with respect thereto. In the event of any such loss, the Company shall
make additional deposits to restore same if and to the extent required to enable the Depositary to
make all payments required to be made from the applicable fund, and such additional deposits shall
constitute additional amounts of Loan Agreement Payments.
(i.) Restriction on Amount in Debt Service Fund. Amounts on deposit in the Debt Service
Fund will not exceed the amount necessary to pay the principal of and interest on the Bond during
the succeeding twelve-month period. The Debt Service Fund will be completely depleted at least
once during each twelve-month period except for an amount that does not exceed the Gross Earnings
(hereinafter defined) on the Debt Service Fund during the twelve-month period preceding such date
of depletion. The Gross Earnings on the Debt Service Fund for any Bond Year (hereinafter defined)
shall be less than $100,000. The term Gross Earnings means the aggregate amount earned on all
investments acquired with or allocated to amounts on deposit in the Debt Service Fund including
amounts earned on such amounts. The term Bond Year with respect to the Bond means the one year
period beginning on the day after the preceding Bond Year, and the first Bond Year begins on the
closing date and ends one year later.
0) Establishment of Construction Fund and Deposit of Bond Proceeds into Construction
Fund. Prior to or immediately after the sale and delivery of the Bond authorized hereby, the Issuer
shall establish the Construction Fund with the Depositary, as defined in and required by the
Agreement. The Issuer shall deposit all of the proceeds from the sale and delivery of the Bond
authorized hereby into the Construction Fund. The Depositary shall draw on and use the
Construction Fund as hereinafter provided. The amount so deposited into the Construction Fund
shall constitute the Loan made to the Company by the Issuer as contemplated and provided in the
Agreement.
l;ItURGI?'1'UWN/fR 1'1X'-S DRAIIA RI'S I11/1001i 18
(k) Investment of Money in Construction Fund. Any money held as part of the
Construction Fund, other than the amounts described in Section 7(l), shall be invested or reinvested
by the Depositary upon the direction of the Approving Officer in Eligible Securities. The Depositary
shall make no investments except as specifically directed by the Approving Officer and confirmed to
the Depositary in writing. The investments of the Construction Fund shall be deemed to be a part of
the Construction Fund, and for the purpose of determining the amount of money in the Construction
Fund, such investments shall be valued at their cost or market value, whichever is lower. The income
and profits, including realized discount on obligations purchased, received from 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 direction of the Approving Officer, the Depositary shall
redeem or sell all or any designated part of such investments employing, in the case of a sale, any
commercially reasonable method of etYecting the same. The Depositary shall not be liable or
responsible for any loss resulting from the redemption or sale of any such investment as herein
authorized; except that (notwithstanding any provisions of the Agreement) the Depositary shall be
liable for: (1) any loss resulting from its willful or negligent failure, within a reasonable time after
receiving the written direction from the Approving Officer, to make, redeem, or sell any investment
in the manner provided for herein, and (2) any loss resulting from the making, redeeming, or selling
of any investment which the Depositary did not have reasonable grounds at the time to believe was
authorized by direction of the Approving Officer. If the Depositary is unable, after reasonable effort
and within a reasonable time after receipt of the required direction, to make, redeem, or sell any such
investment, it shall so notify in writing the Approving Officer, and thereupon the Depositary shall be
relieved of all liability or responsibility with respect thereto.
(1) Expenditure of Money in the Construction Fund. All amounts held in the Construction
Fund shall, as of the third anniversary date of the date of delivery of the Bond, be either (1) expended
to finance the Project, (2) applied to purchase and cancel, redeem or otherwise retire the Bond or (3)
applied in a manner which, in the opinion of Bond Counsel, will not adversely affect the tax-exempt
status of interest on the Bond.
(m) Payments from Construction Fund. After the delivery of the Bond authorized hereby,
the Depositary shall pay directly out of the Construction Fund, promptly after receiving the bills or
statements therefor, all of the actual expenses and costs of issuance of such Bond, including, without
limitation, financing charges, printing and engraving expenses, the reasonable fees and expenses of
accountants, financial advisors and attorneys, and the initial fees and expenses of the Depositary.
However, to the extent the expenses and costs set forth in this paragraph exceed two percent (2%)
of the proceeds of the Bond, then the Company, pursuant to Section 4.05 of the Agreement, shall pay
out-of-pocket such expenses and costs that exceed such limitation.
Subject and subordinate to making the payments required by the preceding paragraph, the
Depositary shall make an initial payment, if requested by the Company in the manner described below,
for payments from the Construction Fund, to reimburse the Company for any Cost of the Project paid
by the Company prior to the date of delivery of the Bond. The Depositary shall make such initial
payment, if requested, and shall make any subsequent payments from the Construction Fund to enable
the Company to pay, or to reimburse the Company for paying, any Cost of the Project, from time to
time upon receipt by the Depositary of a Requisition Certificate in substantially the form attached
hereto as Exhibit "A".
(n) Reliance by Depositary. The Depositary shall rely fully on any such request and
certificate delivered pursuant to this Section and shall not be required to make any investigation in
connection therewith. If amounts paid by the Depositary with respect to any portion of the Project
should exceed the cost thereof, the Company shall promptly repay such overpayment into the
Construction Fund.
(o) Disposition of Surplus Construction 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 Depositary immediately upon
completion of the Project as determined by the Company. If, upon the completion of the Project,
there shall be any surplus funds remaining in the Construction Fund not required to provide for the
payment of the Cost of the Project, or if any funds are on hand in the Construction Fund at the time
of the release of the Indenture under the terms thereof, then any such funds shall be used immediately
to prepay or redeem principal installments of the Bond, in inverse chronological order, in the manner
set forth in the FORM OF BOND in Section 5 for the prepayment or redemption of principal
installments of the Bond with surplus Construction Fund moneys, to the extent of any such available
funds; provided that prior to such use, the Issuer and the Depositary 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 Bond from
federal income taxation;
(p) Disposition of Construction Fund upon Acceleration and Redemption. If the principal
of the Bond and the interest accrued thereon shall be declared immediately due and payable as the
result of an Event of Default -or Determination of Taxability as specified in the FORM OF BOND,
or if the Bond is optionally or mandatorily prepaid or redeemed prior to maturity as a whole in
accordance with their terms, any amounts remaining in the Construction Fund shall be transferred to
the Rebate Fund if, and to the extent, required to comply with the covenants set forth in Section 4.06
of the Loan Agreement.
Section 8. SECURITY FOR FUNDS. All uninvested money in all Funds, established
pursuant to this Initial Bond Resolution (including the Debt Service Fund, the Rebate Fund and the
Construction Fund), shall be secured by the Depositary in such manner and to such extent as required
by Texas law.
Section 9. THE COMPANY'S PAYMENTS. (a) Unconditional Obligation. The
Company has covenanted in the Agreement, and, by the approval of this Initial Bond Resolution, the
Company further has unconditionally obligated itself and agreed, regardless of and notwithstanding
any provisions of the Agreement, other than Sections 6.01 and 6.02 thereof relating to merger,
consolidation, transfer of assets and assignment, and regardless of the provisions of any other
agreement or contract to the contrary, to make or pay, or cause to be made or paid, without set-off,
recoupment, or counterclaim, the Loan Agreement Payments to the Depositary in the amounts
required by Section 7(c) to be made into the Debt Service Fund, and to make such payments on or
before the dates specified in this Initial Bond Resolution and the Indenture; and said payments by the
Company shall be and constitute the Loan Agreement Payments as contemplated and required by the
Agreement. Each Bondholder is and shall be entitled to rely unconditionally on the agreements, cove-
nants, and representations set forth in this Initial Bond Resolution and the Indenture.
(b) Prepayments. Subject to the terms of the Bond, it is further understood that the
Company may prepay all or any part of each Loan Agreement Payment, and any such prepayment,
and any earnings thereon, shall be applied by the Depositary to the payment of each Loan Agreement
Payment; provided that the prepayment or redemption at any time of any unpaid principal installments
of the Bond prior to their due dates, with funds from any source (whether from Loan Agreement
Payments or otherwise), shall not relieve the Company of its obligation to make or pay, or cause to
be made or paid, each Loan Agreement Payment as specified in Section 9(a), when due with respect
to any remaining unpaid principal installments of the Bond.
Section 10. ADDITIONAL PARITY BONDS. (a) Additional Bonds. The Issuer reserves
the right, upon the request of the Company, to issue additional parity revenue Bond ("Additional
Bonds") in any amounts, for any lawful purpose or purposes, including the refunding of any
outstanding Bond. Such Additional Bonds, along with the Bond authorized by this Initial Bond
Resolution, shall be considered, constitute, and be "Bond" as defined in, and for all purposes of, the
Agreement and the Indenture. Furthermore, for all purposes of this Initial Bond Resolution, the term
"Bond" shall mean and include the Bond authorized hereby and any Additional Bonds, unless the
context otherwise indicates. When issued and delivered such Additional Bonds, the redemption
premium, 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 Loan Agreement Payments pursuant to the
Agreement and the Indenture, the Security Agreement and the Lease Assignment, in the same manner
and to the same extent as, and be on a parity with, all then outstanding Bond 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 and 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:
(1) 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 Bond and Additional Bonds, or affect the validity of the then outstanding Bond
or Additional Bonds, (B) such Additional Bonds are secured in the same manner and to the
same extent as and are on a parity with all the outstanding Bond and Additional Bonds and
(C) such Additional Bonds are valid and binding obligations of the Issuer, enforceable in
accordance with their terms;
GCORG1-"1'OWN/PRIPLE-S DRAF IA RES IMO/45 21
(ii) A certificate is executed by the President and Secretary of the Board of Directors
of the Issuer to the effect that no default exists in connection with the Bond or the Indenture
(or any amendment or supplement thereto) or with any of the covenants or requirements of
this Initial Bond Resolution or the Bond Resolutions (or any amendments or supplements
thereto) authorizing the issuance of all then outstanding Bond and Additional Bonds, and that
the Debt Service Fund contains the amount then required to be on deposit therein;
(iii) The Bond Resolution authorizing the issuance of such series or issue of
Additional Bonds provides for additional Loan Agreement Payments to be deposited into the
Debt Service Fund in amounts sufficient to pay all principal of, redemption premium, if any,
and interest on such Additional Bonds, together with all Depositary, Registrar, and Paying
Agent fees and expenses attributable to such Additional Bonds,
(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 Bond;
(vi) The holders of 100% of the outstanding principal balance of the Bond give
their prior written consent to the issuance of such Additional Bonds; and
(vii) The Department expressly gives its prior approval to the issuance of such
Additional Bonds.
(b) Amendments to Indenture Unnecessary. It shall not be necessary or required that the
Indenture be amended or supplemented to cause the issuance of any series or issue of Additional
Bonds. All that shall be necessary or required to cause any such Additional Bonds to be issued under
the Indenture is for the Issuer to deliver to the Depositary a certified copy of the Bond Resolution
authorizing their issuance, together with all documents described in Section 10(a) above, prior to the
delivery of such Additional Bonds.
Section 11. SPECIAL COVENANTS. The Issuer further covenants as follows:
(a) Loan Agreement Payments Pledged to Bond Only. Other than for the payment of the
Bond, as provided in this Initial Bond Resolution and the Indenture, the Loan Agreement Payments
have not in any manner been pledged to the payment of any debt or obligation of the Issuer;
(b) Non -Encumbrance. While any of the Bond is outstanding, the Issuer will not (except
with respect to the Bond and any Additional Bonds and except as provided in the Agreement, any
Bond Resolution, or the Indenture) in any manner whatsoever create, assume, or suffer to exist,
directly or indirectly, any mortgage, lien, encumbrance, pledge, or charge against the Debt Service
GHUKG1--r0WN(1'RIPI.E•S: 1)KArn.RIiS IU/m/o 22
Fund, the Loan Agreement Payments, the Construction Fund, or any property or moneys deposited
with the Depositary;
(c) Performance b Issuer. ssuer. Tile Issuer will carry out all of its covenants and obligations
under this Initial Bond Resolution; and the Issuer may be required to carry out such covenants and
obligations by all legal and equitable means, including, but without limitation, actions for specific
performance 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 Company to make or pay, or
cause to be made or paid, when due, all Loan Agreement Payments, in the manner and to the extent
required by the Agreement, this Initial Bond Resolution, and the Indenture, or which would change
or affect Sections 4.04, 4.05, 4.06 and 5.04 of the Agreement without the written consent of all of
the Bondholders.
Section 12. THE BOND IS A SPECIAL OBLIGATION. The Bond is and shall be a
special revenue obligation of the Issuer payable solely .from payments to be made under the
Agreement, this Initial Bond Resolution, the Security Agreement, the Lease Assignment, the
Guaranty, and the Indenture; and the Bondholders shall never have the right to demand payment
thereof or the interest thereon out of funds raised or to be raised by taxation, or from any source
whatsoever other than the foregoing. The Bond is not and shall never be considered as obligations
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 of Owners of Majority -of the
Bond. Subject to approval in writing by the Approving Officer of the Company, the owners of a
majority in aggregate principal amount of the then outstanding Bond shall have the right from time
to time to approve any amendment to any Bond Resolution, or to the Indenture (provided that the
Depositary must approve any amendment to the Indenture), which may be deemed necessary or
desirable by the Issuer; provided, however, that nothing herein contained shall permit or be construed
to permit the amendment, without the consent of the owner of each of the then outstanding Bond
affected thereby, of the terms and conditions of any Bond Resolution, the Bond, or the Indenture, so
as to:
(1) change the Debt Service Fund requirements, interest payment dates, or the due date
or dates, or the maturity or maturities of the outstanding Bond;
(2) reduce the rate of interest borne by any of the outstanding Bond;
(3) reduce the amount of the principal of, redemption premium, if any, or interest on the
outstanding Bond, or impose any conditions with respect to such payments;
GI:OK(;rI*OWNrrisii,i.i:-s: uKnrr.J.Kes 10n0/„1 23
(4) modify the terms of payment of principal of, redemption premium, if any, or interest
on the outstanding Bond, or impose any conditions with respect to such payments;
(5) affect the rights of the owners of less than all of the Bond then outstanding;
(6) decrease the minimum percentage of the principal amount of the Bond necessary for
consent to any amendment; or
(7) alter the obligations of the Company to pay Loan Agreement Payments in the manner
and to the extent provided in the Agreement, the Bond Resolution, and the Indenture.
(b) Notice of Amendment. If at any time the Issuer shall desire to amend any Bond
Resolution, or the Indenture, under this Section, the Issuer shall provide a copy of the proposed
amendment to each owner of the Bond. If such written notice is impossible, the Issuer shall file a
copy of the proposed amendment at the office of the Depositary and shall cause notice of the
proposed amendment to be published at least once in a financial newspaper, journal or publication
of general circulation in the City of New York, New York, or in the State of Texas. If, because of
temporary or permanent suspension of the publication or general circulation of all such financial
newspapers, journals and publications, it is impossible or impractical to publish such notice in the
manner provided herein, then such publication in lieu thereof as shall be made by the Depositary shall
constitute a sufficient publication of notice. Such notice shall. briefly set forth the nature of the
proposed amendment and shall state that a copy thereof is on file at the office of the Depositary for
inspection by all owners of the Bond. Such publication is not required, however, if notice in writing
is given to each owner of the Bond.
(c) Consent to Amendment. Whenever at any time not less than 30 days, and within one
year, from the date of the first publication of said notice or other service of written notice the Issuer
shall receive an instrument or instruments executed by the owners of at least a majority in aggregate
principal amount of all the Bond then outstanding, which instrument or instruments shall refer to the
proposed amendment described in said notice and shall specifically consent to and approve such
amendment, the Issuer may adopt the amendatory resolution in substantially the same form.
(d) Effect of Amendment. Upon the adoption of any amendatory resolution pursuant to
the provisions of this Section, any such Bond Resolution, or the Indenture, shall be deemed to be
amended in accordance with such amendatory resolution, and the respective rights, duties, and
obligations under such amendatory resolution, or the Indenture, of all the Bondholders shall thereafter
be determined and exercised subject in all respects to such amendments.
(e) Consent of Bondholders. Any consent given by a Bondholder pursuant to the
provisions of this Section shall be irrevocable for a period of six months from the date of the first
publication or other giving of the notice provided for in this Section, and shall be conclusive and
binding upon all future owners of the sarne Bond during such period. Such consent may be revoked
at any time after six months from the date of the first publication or other giving of such notice by the
crOKccrowwrKrnLr•ti: nunr• r-i.Krs 10/10/'0 24
Bondholder who gave such consent, or by a successor in title, by filing notice thereof with the
Depositary and the Issuer, but such revocation shall not be effective if the owners of a majority in
aggregate principal amount of the then outstanding Bond have, prior to the attempted revocation,
consented to and approved the amendment.
(0 Ownership of the Bond. For the purpose of this Section, the fact of being a
Bondholder and the amount and numbers of such Bond, and the date of being a Bondholder, may be
conclusively presumed, or may be proved by referring to the books of the Registrar. The Issuer may
conclusively presume that the status of any Bondholders will continue until written notice to the
contrary is served upon the Issuer.
(g) Amendments Without Consent. Notwithstanding the provisions of (a) through (0 of
this Section, and without publication of the proposed amendment and without the consent of the
Bondholders, but subject to approval of the Approving Officer and, in the case of any amendment to
the Indenture, with the approval of the Depositary, the Issuer may, at any time, amend any Bond
Resolution, or the Indenture, to cure any ambiguity or cure, correct, or supplement any defective or
inconsistent provision contained therein, or make any other change that does not in any respect
materially and adversely affect the interest of the Bondholders, provided that no such amendment
shall be made contrary to the provision to Section 13(a), and a duly certified or executed copy of each
such amendment shall be filed with the Depositary. The Company shall provide the Depositary a
copy of any such amendment two days prior to execution thereof.
Section 14. DAMAGED, MUMATED, LOST, STOLEN, OR DESTROYED BOND.
(a) Replacement Bond. In the event any of the outstanding Bond authorized hereby is damaged,
mutilated, lost, stolen, or destroyed, the Issuer shall execute, and the Depositary shall authenticate,
a new bond of the same principal amount and maturity of the damaged, mutilated, lost, stolen, or
destroyed Bond in exchange and substitution for such Bond or in lieu of and substitution for such
Bond.
(b) Application for Substitute Bond. Application for exchange and substitution of
damaged, mutilated, lost, stolen, or destroyed Bond shall be made to the Issuer. In every case, the
applicant for a substitute bond shall furnish to the Issuer and the Depositary such security or
indemnity as may be required by them to save each of them and the Paying Agent harmless, provided
that in order to comply with this provision the Bank need only furnish to the Issuer and the
Depositary an indemnity agreement satisfactory to the Issuer and the Depositary as to form and
content. In every case of loss, theft, or destruction of a Bond, the applicant shall also furnish to the
Issuer and to the Depositary evidence to their satisfaction of the loss, theft, or destruction, and of the
ownership of such Bond. In every case of damage or mutilation of a Bond, the applicant shall
surrender the Bond so damaged or mutilated.
(c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in
the event any such Bond shall have matured, and no default has occurred which is then continuing
in the payment of the principal of, redemption premium, if any, or interest on the Bond, the Issuer
c;GURcjrroWN/rRu'1.f•S: DKAI'I'•LRES IQ/MAM 25
may authorize the payment of the same (without surrender thereof except in the case of a damaged
or mutilated Bond) instead of issuing a substitute Bond, provided security or indemnity is furnished
as above provided in this Section.
(d) Char -Re for Issuing Substitute Bond. Prior to the issuance of any substitute bond, the
Issuer and the Depositary may charge the owner of such Bond with all legal, printing, and other
expenses in connection therewith. Every substitute bond issued pursuant to the provisions of this
Section by virtue of the fact that the Bond is lost, stolen, or destroyed shall constitute a contractual
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 Indenture and this Initial
Bond Resolution equally and proportionately with any and all other Bond duly issued under this Initial
Bond Resolution.
(e) Authority for Issuing Substitute Bond. This Initial Bond Resolution shall constitute
sufficient authority for the issuance of any such substitute bonds without necessity of further action
by the Board of Directors of the Issuer or any other body or person, and the issuance of such
substitute bonds is hereby authorized, notwithstanding any other provisions of this Initial Bond
Resolution, except to the extent otherwise required by law.
Section 15. TAX-EXEMPT STATUS OF INTEREST ON THE BOND. The Company
and Issuer covenant to refrain from such action which would adversely affect the treatment of the
Bond as obligations described in section 148 of the Code, the interest on which is excludable from
"gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the
Company covenants as follows:
(a) not to use or invest nor to permit the use or investment of proceeds of the Bond
(including investment earnings thereon) or the facilities constituting the Project in a manner that
would result in the Bond not being "qualified small issue bond" within the meaning of section
141(e) of the Code;
(b) to use at least 95 percent of the proceeds of the Bond to provide for the payment
of costs of the acquisition, construction, reconstruction or improvement of land or depreciable
property, and paid for subsequent to May 13, 1995;
(c) during the six -year period beginning on a date three years prior to the date of issue
of the Bond and ending three years after such date, will not pay or incur or permit any related
person or "principal user" of the Project to pay or incur capital expenditures (within the meaning
of section 263 of the Code) for facilities located in Williamson County, Texas to the extent that
such expenditures when added to the aggregate face amount of the Bond would exceed
$10,000,000;
(d) that the Company will be the only principal user of the Project;
croacrrowNtnw)i..r-s: DRAI.71 Rua Ranw„s 26
(e) that all outstanding obligations the interest on which is exempt from federal income
taxation pursuant to section 103 of the Code which are allocated to the Company (or persons
related to the Company) do not as of the date of issue and will not, at any time during the three-
year period commencing on the later of such date or the date on which the Project was placed -in-
service, exceed $40,000,000;
(f) that the Company will not cause the Bond to be treated as "federally guaranteed"
obligations for purposes of section 149 of the Code, as may be modified in any applicable rules,
rulings, policies, procedures, regulations or other official staternents promulgated or proposed by
the Department of the Treasury or the Internal Revenue Service with respect to the "federally
guaranteed" obligations described in section 149 of the Code. For purposes of this paragraph,
the Bond shall be treated as "federally guaranteed" if (i) all or any portion of the principal or
interest is or will be guaranteed directly or indirectly by the United States of America or any
agency or instrumentality thereof, or (ii) a significant portion of the proceeds of the Bond will be
(A) used in making loans the payment of principal or interest with respect to which is to be
guaranteed in whole or in part by the United States of America or any agency or instrumentality
thereof, or (B) invested directly or indirectly in federally insured deposits or accounts, and (iii)
such guarantee is not described in section 149(b) of the Code;
(g) that the costs of issuing the Bond which are financed with proceeds of the Bond will
not exceed an amount equal to 2 percent of the proceeds received from the sale of the Bond. Such
amounts will not be taken into account in satisfying the requirement stated above that at least 95
percent of the Bond proceeds be used to provide the facilities;
(h) that no portion of the proceeds of the Bond is to be used to provide the following:
an airplane, a skybox or other private luxury box, a facility primarily used for gambling or any
store the principal business of which is the sale of alcoholic beverages for consumption off
premises;
(i) to comply with the limitations imposed by section 147(c) of the Code (relating to
the limitation on the use of proceeds to acquire land) and section 147(d) of the Code (relating to
restrictions on the use of bond proceeds to acquire existing buildings, structures or other
property);
0) that the Company shall make such use of the proceeds of the Bond and any other
funds constituting Gross Proceeds (whether or not held by the Depositary under the Bond
Resolution) which are allocable to the Bond, restrict the investment of such proceeds and other
funds, and take such further action as may be required so that the Bond will not constitute
"arbitrage bonds" under section 148 of the Code and the Regulations. In particular, but not by
way of limitation, the Company covenants that it will provide written instructions to the
Depositary with respect to investments in accordance with Section 7 of this Bond Resolution;
GEORGI MWNn1in•RA-'-& 0101 A Rua 10/10/0 27
(k) that the Company shall immediately remit to the Depositary for deposit in the
Rebate Fund any deficiency with respect to the Rebate Amount as required by Article 11 of the
Indenture;
(1) the Company agrees to provide all information required with respect to Nonpurpose
Investments not held in any Fund under the Indenture; and
(m) that, at no time during the period which the Bond remains outstanding, will
proceeds invested in Nonpurpose Investments (within the meaning of section 148 of the Code) at
a yield higher than the yield on the Bond, other than amounts invested pursuant to an initial
temporary period or as part of a bona fide debt service fund, exceed 150 percent of the debt
service on the issue for the bond year and that the aggregate amount so invested will be promptly
and appropriately reduced as the amount of outstanding obligations constituting the Bond is
reduced.
The covenants and representations contained in Sections 4.05 and 4.06 of the Loan
Agreement are intended to assure compliance with the Code and any regulations promulgated by
the U.S. Department of Treasury pursuant thereto. In the event that regulations are hereafter
promulgated which modify or expand provisions of the Code, the Company will not be required
to comply with a covenant contained in this section to the extent that such failure to comply, in
the opinion of Bond Counsel, will not adversely affect the exemption from federal income taxation
of interest on the Bond under section 103(a) of the Code. In the event that regulations are
hereafter promulgated which impose additional requirements which are applicable to the Bond,
the Company and the Issuer agree to comply with such additional requirements to the extent
necessary, in the opinion of Bond Counsel, to preserve the exemption from federal income
taxation of interest on the Bond under section 103(a) of the Code. In furtherance of such
intention, the Issuer hereby authorizes and directs the President or Vice President to execute any
documents, certificates or reports required by the Code and to make such elections, on behalf of
the Issuer, which may be permitted by the Code as are consistent with the purpose for the issuance
of the Bond.
In order to facilitate compliance with the above covenants (k), (1), and (m), a "Rebate
Fund" is hereby established by the Issuer for the sole benefit of the United States of America, and
such fund shall not be subject to the claim of any other person, including without limitation the
bondholders. The Rebate Fund is established for the additional purpose of compliance with
section 148 of the Code.
Section 16. MISCELLANEOUS. (a) The President and the Secretary of the Board and the
Issuer Representative are each hereby authorized to executed and deliver such other instruments,
certificates, documents or papers, and approve changes required therein as they may deem advisable,
and to take such further action as such officers may deem advisable or appropriate in connection with
the matters and transactions referred to in or contemplated by this Initial Bond Resolution.
GEORGETOwwrrtwix-S: r)Kj% r4R1;3IQ/IOms 28
(b) All officers, employees, agents and representatives of the Issuer and its Board shall be and
are hereby expressly authorized, empowered and directed from time to time, and at any time, to do
and perform all such acts and things, and to execute and deliver in the name and under the official seal
and on behalf of the Issuer all such instruments, whether or not herein mentioned, as may be
necessary or desirable in order to carry out the terms and provisions of this Initial Bond Resolution
and of the Bond to be issued hereunder, as well as the terms and provisions of the Indenture. The
President or his designee shall act and is hereby confirmed as the presiding officer at a public hearing
to be held as required by section 147(f) of the Internal Revenue Code of 1986.
(c) Based solely on representations made to the Board and to the Department by the
Company, it appears and the Board hereby finds and confirms as follows:
(1) that the Project described in the Agreement is required or suitable for the promotion of
commercial or industrial or manufacturing development and expansion, the promotion of
employment, or for use by commercial, manufacturing or industrial enterprises, irrespective of
whether in existence or required to be acquired or constructed after the making of these findings by
the Board; and
(2) that the Project financed pursuant to the Agreement is in furtherance of the public
purpose of the promotion and development of new and expanded industrial and manufacturing
enterprises to promote and encourage employment and the public welfare and has a direct, positive
and favorable impact on employment within the City of Georgetown, Texas and Williamson County,
Texas.
Section 17. SALE OF THE BOND. At the specific request of the Company, the Bond is
hereby authorized to be sold, and shall be delivered to First of America Bank - Michigan, National
Association for the price of par.
Section 18. INDENTURE. The President or Vice President and the Secretary, or any
Assistant Secretary, of the Board of Directors of the Issuer are authorized and directed, for and on
behalf of the Issuer to date, sign, seal and otherwise execute the Indenture, in substantially the form
and substance attached hereto as Exhibit B, with such changes thereon and additions thereto as the
officers executing same, or any other officers of the Issuer may deem advisable, such determination
to be conclusively evidenced by their execution thereof. Upon execution by the parties thereto, the
Indenture shall be binding upon the Issuer for all purposes in accordance with its terms.
Section 19. THE AGREEMENT. The President or Vice President and the Secretary, or
any Assistant Secretary, of the Board of Directors of the Issuer are authorized and directed, for and
on behalf of the Issuer to date, sign, seal and otherwise execute the Agreement, in substantially the
form and substance attached hereto as Exhibit C, with such changes thereon and additions thereto
as the officers executing same, or any other officers of the Issuer may deem advisable, such
determination to be conclusively evidenced by their execution thereof. Upon execution by the parties
thereto, the Agreement shall be binding upon the Issuer for all purposes in accordance with its terms
and conditions.
ccoKaErowNrrRrni.e-s: DRAI-74lots10/10/ 5 29
Section 20. APPO1NTNtENT OF TRUSTEE. In the event a Trustee is appointed as
provided in the Indenture, any reference in this Initial Bond Resolution to Depositary shall mean the
Trustee. Any reference to Trustee shall be inoperative until such time, if ever, that a Trustee is
appointed in accordance with the Indenture.
PASSED AND APPROVED on the day of , 1995.
GEORGETOWN INDUSTRIAL
DEVELOPMENT CORPORATION
By: President, Board of Directors
ATTEST:
Secretary, Board of Directors
GG0RGBTOWN/1'R1PL9-S: DRAPr4ALS 10/10/95 30
EXHIBIT A
REQUISITION CERTIFICATE
Ladies and Gentlemen:
Requisition No.:
Date:
This Certificate is provided pursuant to Section 7(m) of the Bond Resolution, requesting
payment out of the Construction Fund, as defined and established in the Bond Resolution. Any terms
not otherwise defined herein have the meanings assigned in the Bond Resolution. The undersigned,
on behalf of the Governmental Unit and the Company, respectively, do hereby represent as follows:
(i) the name and address of the party to whom payment is to be made is attached as
Attachment 1;
(ii) the expenditures in summary form, for which payment or reimbursement is requested
is attached as Attachment 1;
(iii) the amount requested to be paid has been incurred and is for Project Costs (as defined
in the Loan Agreement);
(iv) no part of the several amounts requested to be paid, as stated in such certificate, has
been or is the basis for the payment of any money in any previous or then pending request;
(v) payment of the amount requested will not result in a breach of the covenants of the
Company contained in the Loan Agreement;
(vi) in the case of requisition for Project Costs other than for Costs of Issuance, the
expenditure of such amount to be paid, when added to all disbursements (other than for Costs of
Issuance) under previous requisitions, will result in at least 95% of the total amount of such
disbursements (including Costs of Issuance) being used to provide 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 tax purposes, chargeable to the Project's capital account or would be
so chargeable either with a proper election by the Company or but for a proper election by the
Company to deduct such amounts); and
(vii) in the case of requisitions for Costs of Issuance, the cumulative total amount drawn
thereunder for Costs of Issuance does not exceed 2% of the proceeds of the Bonds.
GEOKGFrOWNrrRIPLE•S: DKAI'r4.KES HY10195 A- l
TRIPLE S PLASTICS, INC.
By:
Title:
APPROVED:
FIRST OF AMERICA BANK - MICHIGAN NATIONAL ASSOCIATION,
AS DEPOSITARY
m
Date:
OEOROE WN(M1PLH•S: DRAFT AEA 10/10/95 A-2
ATTACHMENT 1
Requisition No.:
Date:
(i) Payment to be made to as reimbursement or payment of
Project Costs listed at paragraph (ii) below by wire transfer or in such other manner agreed
to by the Company and the Depositary to:
Detail of expenditures covered:
TOTAL
GEORGETOWNrrRIPLE•S: DRAI'r,I.iu-,s iomo i
INDENTURE
BETWEEN
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
AND
FIRST OF AMERICA - MICHIGAN, NATIONAL ASSOCIATION
RELATING TO GEORGETOWN INDUSTRIAL DEVELOPMENT
CORPORATION INDUSTRIAL REVENUE BOND
(TRIPLE S PLASTICS, INC. PROJECT), SERIES 1995
GEORGETOWNfrKIPLE•S: TRUSTIND.DRA 10/305
TABLE OF CONTENTS
TITLE
PAGE NO.
Parties..........................................................
1
Recitals.........................................................
1
Granting Clause ...................................................
2
Article 1. Debt Service Fund, Rebate Fund And Construction Fund ...........
3
Article 2. Notice to the Company .....................................
3
(a) Calculation of Interest Payment ..................................
3
(b) Notice of Amount Due .........................................
3
Article 3. Accounts and Records .....................................
3
(a) Separate Records to be Kept ....................................
3
(b) Annual Report ...............................................
3
(c) Right to Inspect ..............................................
3
Article 4. Concerning the Depositary ..................................
4
(a) Not Accountable for Bond Proceeds ..............................
4
(b) Reliance by Depositary .........................................
4
(c) Compensation from Depositary from Debt Service Fund ...............
4
(d) Limited Responsibilities ........................................
4
(e) Advice .....................................................
5
(f) Depositary May Own the Bond ...................................
5
(g) Fees .......................................................
5
(h) Resignation of Depositary ......................................
5
(i) Removal of Depositary .........................................
5
0) Appointment of Successor Depositary ..............................
6
(k) Transfer to Successor Depositary .................................
6
(1) Merger or Consolidation of Depositary .............................
6
GC0RGLrr0WNfrK1PLB•S: TRUSTIND.DR4 10/Y93
Article 5. Events of Default .........................................
7
(a)
Events of Default .............................................
7
(b)
Enforcement of Rights by Bondholder in case of Default ...............
8
Article
6. Enforcement of Rights In Case of Default and Appointment of Trustee .
10
(a)
Appointment of Trustee ........................................
10
(b)
Acceptance of Trust ...........................................
10
(c)
Rights of the Holder ...........................................
11
(d)
Control by Trustee ............................................
11
(e)
Declaration of Principal and Interest Due ...........................
11
(f)
Enforcement by Trustee ........................................
11
(g)
Remedies Non-exclusive ......................................
12
(h)
Waiver of Defaults ............................................
12
(i)
Application of Moneys .........................................
12
0)
Judicial Proceedings ...........................................
13
(k)
Enforcement of Remedies Without Possession of the Bond .............
13
(1)
Direction by Majority in Principal Amount of Bondholder ...............
13
(m)
Notice by Trustee ............................................
14
(n)
Default of Payments ..........................................
14
Article
8. Release of Indenture and Satisfaction Of Indebtedness ..............
14
Article
9. Amendments .............................................
14
Article
10. Miscellaneous Provisions ...................................
15
(a)
Acknowledgements and Ownership of the Bond ......................
15
(b)
Trustee May Require Proof Of Ownership ..........................
15
(c)
Consent of Bondholder .........................................
15
(d)
Survival of Valid Bond .........................................
15
(e)
Unclaimed Funds .............................................
15
CIEOKGEMWN/fRIPLE-S: TRUSTIND.DKA 10/Y95 li
(0 Rights of Parties .............................................. 16
(g) Severability .................................................. 16
(h) Law ...................................................... 16
Article 11. Covenants Regarding Rebate ................................ 16
Article 12. Notices ................................................ 18
Article 13. Recording .............................................. 18
(a) Issuer and Trustee to Record ..................................... 18
(b) Non -Encumbrance ............................................ 19
Article 14. Notice to Texas Department of Commerce ..................... 19
Article 15. Appointment of Trustee .................................... 19
Article 16. Governing Law .......................................... 19
GLURGLrMWNMPL9.S: TRUSTIND.DRA 10/3/93 «1
INDENTURE
THE STATE OF TEXAS
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
THIS INDENTURE, dated as of October 1, 1995, executed by and between Georgetown
Industrial Development Corporation (the "Issuer"), a nonstock, nonprofit industrial development
corporation organized and existing under the laws of the State of Texas, including particularly the
Development Corporation Act of 1979, as amended (Article 5190.6, Vernon's Annotated Texas Civil
Statutes, as amended) (the "Act"), and First of America Bank - Michigan, National Association, a
national banking association duly organized and existing under the laws of the United States of
America (as both "Bondholder" and "Depositary"):
WITNESSETH THAT. -
WHEREAS, a "Loan Agreement between Georgetown Industrial Development Corporation
and Triple S Plastics, Inc.," dated as of October 1, 1995 (the "Agreement") has been duly executed
between the Issuer and Triple S Plastics, Inc. (the "Company"), with the Company being a
corporation organized and existing under the laws of the State of Michigan and being fully qualified
to transact business in the State of Texas; and
WHEREAS, an executed copy of the Agreement, has been filed with the Depositary; and
WHEREAS, pursuant to the Agreement the Board of Directors of the Issuer has duly
adopted a "RESOLUTION AUTHORIZING THE ISSUANCE OF GEORGETOWN INDUSTRIAL
DEVELOPMENT CORPORATION INDUSTRIAL REVENUE BOND (TRIPLE S PLASTICS,
INC. PROJECT), SERIES 1995 AND THE EXECUTION OF AN INDENTURE AND A LOAN
AGREEMENT AND OTHER MATTERS RELATED TO THE BOND, which, together with any
amendment thereto, is hereinafter called and designated the "Initial Bond Resolution"; and
WHEREAS, the Initial Bond Resolution authorized the issuance of GEORGETOWN
INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL REVENUE BOND (TRIPLE
S PLASTICS, INC. PROJECT), SERIES 1995, in the aggregate principal amount of $5,000,000,
which together with any replacement bond 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 Resolution has been duly filed with the
Depositary; and
WHEREAS, pursuant to the Initial Bond Resolution, a certified copy of each resolution
authorizing the issuance of each series or issue of Additional Bonds shall be filed with the Depositary
prior to the delivery thereof, and
GFORGETOWN111UPIX-S: 'rRU.T1*1N0.DK4 10/L93
WHEREAS, as used in this Indenture the word "Bond Resolution" shall mean and include
collectively the Initial Bond Resolution (including the Indenture prescribed and authorized to be
executed in the Initial Bond Resolution) and, when adopted and filed with the Depositary, each
resolution authorizing the issuance of Additional Bonds together with any supplemental resolutions
or amendments to such resolutions or the Indenture; and
WHEREAS, pursuant to the Agreement and the Bond Resolution and subject to the terms
and provisions thereof, the Bond, the redemption premium, if any, and the interest thereon, are and
shall be payable from and secured by a first lien on and pledge of the payments designated "Loan
Agreement Payments" to be made or paid, or caused to be made or paid, by the Company (or its
successors or assigns under certain circumstances) to the Depositary; and
WHEREAS, the Company and First of America Bank - Michigan, National Association have
entered into a Security Agreement dated as of October 1, 1995 (the "Security Agreement"), Guaranty
Agreement dated as of October 1, 1995 (the "Guaranty Agreement" or "Guaranty") and a Lease
Assignment dated as of October 1, 1995 (the "Lease Assignment"), both providing further security
for the payment of the Loan Agreement Payments for the benefit of the Bondholder; and
WHEREAS, the Company will have duly approved and agreed to be bound by the Initial
Bond Resolution (including the Indenture) prior to the delivery of the Bond; and
WHEREAS, for purposes of this Indenture, the definitions of terms in the Agreement, the
Security Agreement, the Lease Assignment, the Guaranty and the Bond Resolution are hereby
adopted, and the terms used herein shall have the same meanings as such terms are given in said
Agreement, Security Agreement, the Lease Assignment, the Guaranty and Bond Resolution unless
a different meaning is given herein; and
WHEREAS, the Depositary and the Bondholder have accepted the duties created by this
Indenture, and in evidence thereof has joined in the execution hereof, and
WHEREAS, this Preamble constitutes an integral part of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the issuer in consideration of the premises and the acceptance by the Depositary of the
duties hereby created, and of the purchase and acceptance of the Bond by the owners thereof, and
for other good and valuable consideration, the receipt of which is hereby acknowledged, and for the
purpose of securing and providing for the payment of the principal of, redemption premium, if any,
and interest on the Bond at any time issued and outstanding, when due, all fees and expenses of the
Depositary and Registrar, and the Paying Agents for the Bond, and all other payments required to
be made by the Company under the Agreement 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 Depositary, and to its successor
or successors, and to its or their assigns, all and singular of its right, title, and interest in and to (i) the
Loan Agreement Payments as required and provided in the Agreement and the Bond Resolution, and
2
(ii) the Debt Service Fund, the Rebate Fund and the Construction Fund created by the Initial Bond
Resolution, and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses, and
purposes hereinafter expressed; and the Issuer and the Depositary have agreed, and they hereby agree
and covenant with the respective owners from time to time of the Bond, as follows, to wit:
Article 1. DEBT SERVICE FUND, REBATE FUND AND CONSTRUCTION FUND.
The Debt Service Fund, the Rebate Fund and the Construction Fund created by the Initial Bond
Resolution are hereby confirmed and established, respectively, with the Depositary, and the
Depositary 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 Indenture.
Article 2. NOTICE TO THE COMPANY. (a) Calculation of Interest Payment. The
Depositary shall calculate the amount of interest due on any interest payment date, in accordance with
the provisions of Section 5 of the Initial Bond Resolution.
(b) Notice of Amount Due. On or before the 5th day prior to each date upon or before
which each Loan Agreement Payment is required by each Bond Resolution to be deposited into the
Debt Service Fund, the Depositary shall give notice in writing to the Company, by first-class mail,
postage prepaid, at such address as the Company shall from .time to time designate and file in writing
with the Depositary of the amount, if any, of each Loan Agreement Payment required by each Bond
Resolution to be made by the Company to the Depositary and deposited by the Depositary into the
Debt Service Fund, on or before such date. The failure of the Depositary to give, or the Company
to receive, any such notice shall not relieve the Company of its unconditional duty and obligation to
make all deposits or payments of Loan Agreement Payments to the Depositary as required by the
Agreement and each Bond Resolution.
Article 3. ACCOUNTS AND RECORDS (a) Separate Records to be Kept. The
Depositary shall keep proper books of records and accounts, in the Depositary's regular course of
business, in which complete and correct entries shall be made of all transactions relating to the Loan
Agreement Payments, the Debt Service Fund, the Rebate Fund and the Construction Fund.
(b) Annual Report. No later.than 90 days after the twelve-month period ending October
1, 1995, and no later than 90 days after each twelve-month period ending on each October 1
thereafter during any portion of the Bond is outstanding, the Depositary will furnish to the Issuer, the
Company, and any owner of the outstanding Bond, upon written request, a copy of a report by the
Depositary covering the preceding twelve-month period, showing the following information.-
(1) a detailed statement concerning the receipt and disposition of all Loan
Agreement Payments and the disposition of the amounts in the Construction Fund (until the
Construction Fund shall have been fully disposed of).
(2) an asset statement or balance sheet of the Debt Service Fund and of the
Construction Fund (until the Construction Fund shall have been fully disposed of).
3
(c) Right to Inspect. The Issuer, the Company, and the owner of the Bond shall have the
right, at all reasonable times and upon reasonable notice, to inspect all records, accounts, and data
of the Depositary relating to the Debt Service Fund and the Construction Fund.
Article 4. CONCERNING THE DEPOSITARY. The Depositary is appointed and agrees
to act as Depositary but only upon and subject to the following express terms and conditions:
(a) Not Accountable for Bond Proceeds. In no event shall the Depositary be liable except
for its gross negligence or willful misconduct in relation to its duties under this Indenture and the
Bond Resolution. The Depositary shall not be responsible for any recitals herein, in the Bond, the
interest coupons, if any, appertaining thereto, the Bond Resolution, the Agreement, or for the
sufficiency of the security for the Bond or interest coupons, if any, appertaining thereto. The
Depositary shall have no responsibility hereunder except to the extent of the duties placed upon the
Depositary to hold, administer, deposit, secure, invest, and use the Debt Service Fund and the
Construction Fund as expressly required by the Bond Resolution, to the extent funds for such
purposes are received by the Depositary, and to perform the other express covenants and agreements
made by the Depositary under the provisions of this Indenture and the Bond Resolution.
(b) Reliance by Depositary. The Depositary may rely and shall be protected in acting or
refraining from acting in accordance with the provisions of this Indenture and the Bond Resolution
upon any notice, requisition, request, consent, certificate, order, affidavit, letter, telegram, or other
paper or document reasonably believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and the Depositary shall not be bound to recognize any person
as an owner of the Bond or to take any action at his request, unless the Bond owned by such owner
shall be deposited with the Depositary, be registered in the name of such owner on the Bond
Registration Books kept by the Depositary, or submitted to it for inspection. Any action taken by
the Depositary pursuant to this Indenture upon the request or authority or consent of any person who,
at the time of making such request, or giving such authority or consent, is the owner of the Bond
secured hereby, shall be conclusive and binding upon all future owners of the same Bond and of
Bonds issued in exchange therefor or in place thereof.
(c) Compensation of Depositary from Debt Service Fund. There shall be paid from the
Debt Service Fund the Depositary's reasonable compensation, and its reasonable expenses, advances,
and counsel fees, and its liabilities incurred in and about the execution of the trusts hereby created and
the exercise and performance of the powers and duties of the Depositary hereunder (except liabilities
incurred as a result of the negligence or willful misconduct of the Depositary, or as provided in the
Bond Resolution), and the reasonable cost and expenses, including counsel fees, of defending against
liabilities.
(d) Limited Responsibilities. The responsibilities of the Depositary elsewhere set forth
herein shall be further limited as follows:
FIRST: the Depositary shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with a direction of the owners of the Bond
pursuant to any provision of this Indenture relating to the time, method, and place of
4
conducting any proceeding for any remedy available to the Depositary, or exercising any trust
or power conferred upon the Depositary, under this Indenture.
SECOND: no provision of this Indenture shall require the Depositary (1) to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it, nor (2) to take any action, whether or not directed
to take such action by the owners of the Bond, pursuant to this Indenture, which in the
judgment of the Depositary would conflict with any rule of law, or with the terms of this
Indenture, or would be unjustly prejudicial to the owners of the Bond not taking part in such
direction. When acting pursuant to the direction of any owners of the Bond pursuant to this
Indenture, the Depositary may take other action deemed proper by the Depositary which is
not inconsistent with such direction; provided, however, that the terms of this subparagraph
SECOND shall not impose any additional duties or responsibilities upon the Depositary and
shall not be construed to limit the effect of subparagraph FIRST of this paragraph (d).
(e) Advice. The Depositary may act upon the professional opinion or advice of any legal
counsel, engineer, accountant, or other expert, reasonably believed by the Depositary to be qualified
in relation to the subject matter, whether retained by the Depositary or the Issuer or otherwise, and
the Depositary shall not be responsible for anything suffered or done or not done by it in good faith
in accordance with any such opinion or advice.
(f) Depositary May Own The Bond. Except as prohibited by law, the Depositary may
become the owner of the Bond with the same rights which it would have if it were not the Depositary;
and nothing contained in this Indenture shall be construed to prohibit the Depositary, either as
principal or agent, from engaging in or being interested in any financial or other transaction with the
Issuer or the Company or from acting as depository, trustee, or agent for any committee or body of
owners of the Bond or of other obligations of the Issuer as freely as if it were not the Depositary.
(g) Fees. The Issuer has agreed with the Company in the Agreement and the Bond
Resolution provides that, as part of the Loan Agreement Payments, the Company shall pay to the
Depositary its charges for performing the duties of Depositary, Registrar, and Paying Agent for the
Bond. All payments due the Depositary for such charges, fees, or expenses shall be paid by the
Company and no such charges, fees, or expenses shall be charged against or be payable by the Issuer,
except the initial fees and expenses of the Depositary which are paid as part of the costs of issuance
of the Bond.
(h) Resignation of Depositary. The Depositary at the time acting hereunder may at any
time resign and be discharged from all duties created by this Indenture by giving not less than 30 days
written notice to the Issuer, the Company, and to any owners of the Bond as shown on the Bond
Registration Books kept by the Depositary, and such resignation shall take effect upon the
appointment of a successor Depositary by the owners of the Bond or by the Issuer as hereinafter
provided and with the consent of the Company which consent shall not be unreasonably withheld.
5
(i) Removal of Depositary. Upon the occurrence of an Event of Default, as hereinafter
defined, which has not been cured or waived, the Depositary may be discharged and removed by an
instrument or concurrent instruments in writing, delivered to the Depositary and to the Issuer, and
signed by the owners of a majority in aggregate principal amount of the Bond then outstanding.
0) Appointment of Successor Depositary. In case the Depositary hereunder shall resign
or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case the Depositary 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 Bond then outstanding, with the
consent of the Company which consent shall not be unreasonably withheld, by an instrument or
concurrent instruments in writing, signed by such owners of the Bond, or by their attorneys in fact
duly authorized in writing, and delivered to the Issuer; provided, nevertheless, that in any such event
the Issuer, with the consent of the Company which consent shall not be unreasonably withheld, by
an instrument executed by authority of a resolution of its Board of Directors and signed by the
President and by the Secretary of such Board, may appoint a temporary Depositary to fill such
vacancy until a successor Depositary shall be appointed by the owners of the Bond in the manner
above provided, and any such temporary Depositary so appointed by the Issuer shall immediately and
without further act be superseded by the Depositary so appointed by such owners of the Bond. Every
such successor or temporary Depositary shall be a trust company or bank in good standing located
within or outside the State of Texas, and having a capital and surplus of not less than One Hundred
Million Dollars ($100,000,000), if there be such a trust company or bank willing, qualified, and able
to accept the trust upon reasonable and customary terms. In the event that no appointment of a
temporary or successor Depositary shall be made pursuant to the foregoing provisions of this Article
within 30 days after the Depositary gives written notice of resignation or the Depositary is removed,
any owner of the Bond or any retiring Depositary may apply to any court of competent jurisdiction
for the appointment of a successor Depositary, and such court may thereupon, after such notice, if
any, as it shall deem proper, prescribe or appoint a successor Depositary.
(k) Transfer to Successor Depositary. Every successor Depositary appointed hereunder
shall execute, acknowledge, and deliver to its predecessor, the Issuer, and the Company, an
instrument in writing accepting such appointment hereunder, and thereupon such successor
Depositary, without any further act, deed, or conveyance, shall become fully vested with all the
estates, rights, powers, trusts, duties, and obligations hereunder of its predecessor; but such
predecessor shall nevertheless, on the written request of the Issuer, execute and deliver an instrument
transferring to such successor Depositary all of the estates, rights, powers, and trusts of such
predecessor hereunder; and every predecessor Depositary shall deliver all securities and money held
by it to its successor; provided, however, that before any such delivery is required or made, all
reasonable, customary, and legally accrued fees, advances, and expenses of such predecessor
Depositary shall be paid in full. Should any deed, assignment, or instrument in writing from the Issuer
be required by any successor Depositary for more fully and certainly vesting in such Depositary the
estates, rights, powers, and duties hereby vested or intended to be vested in the predecessor
Depositary, any and all such deeds, assignments, and instruments in writing shall, on request, be
executed, acknowledged, and delivered by the Issuer.
I
(1) Merger or Consolidation of Depositary. Any corporation or association into which
the Depositary, or any successor to it in the trusts created by this Indenture, may be merged or
converted or with which it or any successor to it may be consolidated, or any corporation or
association resulting from any merger, conversion, or consolidation to which the Depositary or any
successor to it shall be a party, or any corporation or other entity succeeding to substantially all of
the business of the Depositary, shall be the successor Depositary under this Indenture without the
necessity of the execution or filing of any paper or any other act on the part of any of the parties
hereto anything herein to the contrary notwithstanding.
Article 5. EVENTS OF DEFAULT. (a) Events of Default. Any one or more of the follow-
ing events shall constitute and hereinafter shall be called an "Event of Default":
(1) the failure by the Issuer to make due and punctual payment of principal of,
redemption premium, if any, and interest on the Bond, whether payment is required at
maturity or by call for redemption or otherwise; provided, however, that if such failure shall
arise other than by reason of a default by the Company under the Bond Resolution and the
Agreement, the continuation of such failure for ten days.
(2) the failure of the Company to make: or pay, or cause to be made or paid, any
Loan Agreement Payment, or any part thereof, when and to the extent due and required by
the Agreement or the Bond Resolution, and the continuation of such failure for ten days.
(3) the Company defaulting in the observance or performance of any other of its
covenants, conditions, or obligations in the Bond, the Agreement, the Bond Resolution, or
this Indenture, and the Company not remedying such default within 30 days after having
actual notice which may take the form of written notice received by the Company from the
Trustee or the owners of at least 25% of the outstanding principal balance of the Bond; 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 Bond then
outstanding; provided, however, if the default stated in such notice cannot be remedied or
corrected within such 30-day period in the reasonable opinion of the Bondholder, but can be
reasonably expected to be remedied or corrected with due diligence, it shall not constitute an
Event of Default so long as the remedial or corrective action is instituted by the Issuer or the
Company, as the case may be, within the 30-day period and diligently pursued until such
default is remedied or corrected.
(4) the dissolution or liquidation by the Company or failure by the Company to
be granted a stay within 10 days of the filing of such action or to lift or suspend any
execution, garnishment, or attachment within 60 days of such consequence as will materially
impair its ability to carry out its obligations under the Agreement or the Bond Resolution, or
the entry by the Company into an agreement of composition with its creditors.
(5) an order of relief shall be issued by the Bankruptcy Court of the United States
District Court having valid jurisdiction, granting the Company relief under the provisions of
the Bankruptcy Code, as amended, or any other court having valid jurisdiction shall issue an
7
order or decree under applicable federal or state law providing for the appointment of a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the winding up or liquidation
or reorganization or arrangement of its affairs.
(6) the Company shall have consented to or caused the institution of proceedings
in bankruptcy against it, or the Company shall have consented to or caused the institution of
any proceeding against it under any federal or state insolvency laws, or the Company shall
have consented to or caused the filing of any petition, application or complaint seeking the
appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or the Company
shall have made an assignment for the benefit of creditors, or the Company shall generally not
pay its debts as they become due provided, however, that in the event involuntary bankruptcy
proceedings are brought against the Company, the Company shall have 60 days to suspend
or be granted a stay in such proceedings.
(7) a final judgment or judgments for the payment of money aggregating in excess
of $200,000 is or are outstanding against the Company and any such judgment has been
outstanding for more than 30 days from the date of its entry and has not been discharged in
full or stayed.
(8) the Company fails to make any payment due on any indebtedness or other
Security (which term shall have the same meaning herein as the term "Security" as defined in
the Securities Act of 1933, as amended) or any event shall occur or any condition shall exist
in respect of any indebtedness or other Security of the Company or under any agreement
securing or relating to such indebtedness or other Security, the effect of which is (i) to cause
(or permit any holder of such indebtedness or other Security or a trustee to cause) such
indebtedness or other Security, or a portion thereof, in an aggregate principal amount greater
than $200,000, to become due prior to its stated maturity or prior to its regularly scheduled
dates of payment or (ii) to permit a trustee or holder of any Security (other than common
stock of the Company) to elect a majority of the directors of the Board of Directors of the
Company.
(9) the failure by the Company to observe or perform any covenant or condition
specified in the. Security Agreement or the Lease Assignment.
(10) the occurrence of any "Event of Default" as defined in the Guaranty
Agreement, Security Agreement or the Lease Assignment.
(b) Enforcement of Rights by Bondholder in Case of Default. Upon the occurrence of
an Event of Default, the Bondholder shall have the right to exercise any one or more of the following
remedies-
(1) The Bondholder may declare the principal of the Bond then outstanding and the
interest accrued thereon immediately due and payable, and such principal and interest and any
applicable redemption premium, and any other amounts then due, shall thereupon become and be
immediately due and payable, anything in the Bond, the Agreement, the Bond Resolution, or this
Indenture to the contrary notwithstanding.
(2) Take such appropriate action by judicial proceedings or otherwise to cure the Event
of Default and/or to require the Company, or the Issuer to carry out its or their covenants and
obligations under and with respect to the Bond, the Agreement, the Bond Resolution, or this
Indenture, including without limitation, the use and filing of actions for specific performance, and
mandamus proceedings, in any court of competent jurisdiction, against the Issuer, its Board of
Directors, and its officers, employees, and/or agents, and to obtain judgments against the Company
for any Loan Agreement Payments due but 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 principal amount of the Bond then outstanding if declared due and payable
as provided herein.
(3) No remedy herein conferred upon or reserved to the Bondholder is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or under the Agreement,
the Bond, the Bond Resolution, the Security Agreement, the Lease Assignment, or the Guaranty or
now and hereafter existing at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon the happening of an Event of Default continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such Event of Default or
acquiescence therein, and every such right and power may be exercised from time to time and so
often as may be deemed expedient.
(4) The Bondholder may waive any Event of Default hereunder and its consequences,
except that an Event of Default in the payment of Loan Agreement Payments, or in the payment of
any amounts with respect to the Bond 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 Company, and the Bondholder shall be restored to their former position
and rights hereunder respectively, but such waiver shall not extend to any subsequent or other Event
of Default or impair any right consequent thereon.
(5) All money collected by the Bondholder pursuant to the exercise of the remedies and
powers provided in this Article, together with all other sums which then may be held by the
Depositary under any provision of this Indenture, the Security Agreement, the Lease Assignment, or
the Guaranty as security for the Bond, shall be applied as follows:
FIRST: to the payment of the costs and expenses of the proceedings whereunder such
money was collected, including a reasonable compensation to the Issuer, its agents, attorneys,
and all other necessary or proper expenses, liabilities, and advances incurred or made by the
Issuer, and to the payment of all taxes, assessments, and liens superior to the lien of this
Indenture.
9
SECOND: to the payment of any amounts owing the Depositary under this Indenture
or the Loan Agreement.
THIRD: to the payment of matured interest on the Bond, including, to the extent
legally permissible, interest thereon at the rate per annum equal to the Default Rate (as
defined in the FORM OF BOND set forth in Section 5 of the Initial Bond Resolution) (based
on the number of days actually elapsed on the basis of a 360-day year) from due date to date
of payment.
FOURTH: to the payment of principal of and redemption premium, if any, on the
Bond which have been called for redemption as permitted or required by the Bond Resolution
or have matured as provided thereby, and interest thereon, to the extent legally permissible,
at the rate per annum equal to the Default Rate (as defined in the FORM OF BOND set forth
in Section 5 of the Initial Bond Resolution) (based on the number of days actually elapsed on
the basis of a 360-day year) from the date of redemption or maturity to date of payment.
FIFTH: to the payment of principal of the Bond which has become due by virtue of
the declaration of the Trustee pursuant to Article 6(e), and interest thereon, to the extent
legally permissible, at the rate per annum equal to the Default Rate (as defined in the FORM
OF BOND set forth in Section 5 of the Initial Bond Resolution) (based on the number of days
actually elapsed on the basis of a 360-day year) from the date declared due to date of
payment.
SIXTH: to the payment of any other amounts owing under the Agreement, the Bond
Resolution, the Security Agreement, the Lease Assignment, the Guaranty or this Indenture.
SEVENTH: to the payment of the surplus, if any, to whomsoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction may direct.
Article 6. ENFORCEMENT OF RIGHTS IN CASE OF DEFAULT AND
APPOINTMENT OF TRUSTEE. (a)Appointment of Trustee. Notwithstanding anything in this
Indenture to the contrary, upon the occurrence of an Event of Default, and at any time thereafter,
the Issuer reserves the right to appoint a Trustee to enforce the rights under this Indenture and
shall provide written notice to the Depositary and the Bondholder of any such election. The
Depositary shall take such action as necessary to qualify to serve as Trustee unless the Depositary
delivers written notice to the Issuer and Bondholder, within ten days of receipt of the Issuer's
election to appoint a Trustee, refusing to serve as Trustee. In the event the Depositary refuses
to serve as Trustee, the Issuer may appoint, with the consent of the Bondholder, which consent
shall not be unreasonably withheld, any bank or trust company authorized by law to serve as
Trustee under this Indenture. The fees and expenses of the Trustee shall be paid by the Company
or the Bondholder on behalf of, and as an advance to, the Company should the Company fail or refuse
to act, payment of which advance shall be secured by the Security Agreement and Lease Assignment.
(b) Acceptance of Trust. Any Trustee so appointed accepts the trusts, duties, obligations,
and requirements imposed on it by the Bond Resolution and this Indenture, and agrees to carry out
ID]
and perform, punctually and effectively, such duties, obligations, and requirements for the benefit of
the Issuer, the Company, and the owners of the Bond. It is further specifically agreed that (i) the
Trustee will act as a Paying Agent for the Bond at all times while it is Trustee, (ii) the Trustee will
act as Registrar for the Bond at all times while it is Trustee, and (iii) the Trustee will be the
beneficiary and secured party under the Security Agreement and the Lease Assignment so long as it
is the Trustee hereunder.
(c) Rights of the Holder. The Trustee is the special agent and representative of the
owners of the Bond and vested with full power in their behalf to effect and enforce the Agreement,
this Indenture, and the Bond Resolution for their benefit as provided herein and in the Bond Resolu-
tion.
(d) Control by Trustee. Except as otherwise provided in this Article, the rights of action
with respect to this Indenture shall be exercised by the Trustee and no owner of the Bond shall have
any right to institute any suit, action or proceeding at law or equity for the appointment of a receiver
or for any other remedy hereunder or by reason hereof unless and until in addition to the fulfillment
of all other conditions precedent specified in this Indenture, the Trustee shall have received the
written request of the owners of not less than 25% in aggregate principal amount of the Bond then
outstanding and shall have been offered indemnity satisfactory to the Trustee and shall have refused,
or for 30 days thereafter neglected, to institute such suit, action, or proceeding; and it is hereby
declared that the making of such request and the furnishing of such indemnity are in each case
conditions precedent to the execution and enforcement by any owner of the Bond of the powers and
remedies given to the Trustee hereunder and to the institution and maintenance by any owner of the
Bond of any action or cause of action for the appointment of a receiver or for any other remedy
hereunder; but the Trustee may, in its discretion, or when duly requested in writing by the owners of
at least 25% in aggregate principal amount of the Bond then outstanding and upon being furnished
indemnity satisfactory to the Trustee against expenses, charges, and liability shall, forthwith take such
appropriate action by judicial proceedings or otherwise to enforce the covenants of the Company and
the Issuer as the Trustee may deem expedient in the interest of the owners of the Bond.
(e) Declaration of Principal and Interest Due. Upon the happening of an Event of Default,
and the appointment of the Trustee pursuant to this Article 6, the Trustee may, in its discretion, or
upon the written request of the owners of at least 25% in aggregate principal amount of the Bond
then outstanding, and upon being indemnified to the satisfaction of the Trustee, shall, declare the
entire principal of the Bond then outstanding and the interest accrued thereon immediately due and
payable, and such principal and interest, and any applicable redemption premium, and any other
amounts then due, shall thereupon become and be immediately due and payable, anything in the Bond,
the Agreement, the Bond Resolution, or this Indenture to the contrary notwithstanding.
(� Enforcement by Trustee. Upon the happening of an Event of Default and the
appointment of the Trustee pursuant to this Article 6, the Trustee may, in its discretion, or upon the
written request of the owners of at least 25% in aggregate principal amount of the Bond then
outstanding, and upon being indemnified to the satisfaction of the Trustee, shall, take such
appropriate action by judicial proceedings or otherwise to cure the Event of Default and/or to require
the Company, or the Issuer to carry out its or their covenants and obligations under and with respect
to the Bond, the Agreement, the Bond Resolution, or this Indenture, including without limitation, the
use and filing of actions for specific performance, and mandamus proceedings, in any court of
competent jurisdiction, against the Issuer, its Board of Directors, and its officers, employees, and/or
agents, and to obtain judgments against the Company for any Loan Agreement Payments due but
unpaid into the Debt Service Fund, or for any other amounts due hereunder, under the Bond Resolu-
tion, or under the Agreement, including all amounts due with respect to the principal amount of the
Bond then outstanding if declared due and payable as provided herein.
(g) Remedies Non -Exclusive. No remedy herein conferred upon or reserved to the
Trustee or the Bondholders is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or under the Agreement, the Bond, the Bond Resolution, the Security Agreement, the
Lease Assignment or the Guaranty or now and hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon the happening of an Event of
Default continuing as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or acquiescence therein, and every such right and power may be
exercised from time to time and so often as may be deemed expedient.
(h) Waiver of Defaults. The Trustee may, and upon the written request of the owners of
majority in aggregate principal amount of the Bond then outstanding shall, waive any Event of
Default hereunder and its consequences, except that an Event of Default in -the payment of Loan
Agreement Payments, or in the payment of any amounts with respect to the Bond 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 Company, the Trustee,
and the owners of the Bond shall be restored to their former position and rights hereunder
respectively, but such waiver shall not extend to any subsequent or other Event of Default or impair
any right consequent thereon.
(i) Application of Mones. 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 Indenture, the Agreement, the Security Agreement
or the Lease Assignment as security for the Bond, shall be applied as follows:
FIRST: to the payment of the costs and expenses of the proceedings whereunder such
money was collected, including a reasonable compensation to the Trustee, its agents,
attorneys, and all other necessary or proper expenses, liabilities, and advances incurred or
made by the Trustee under this Indenture, and to the payment of all taxes, assessments, and
liens superior to the lien of this Indenture.
SECOND: to the payment of matured interest on the Bond, including, to the extent
legally permissible, interest thereon at the rate per annum equal to the Default Rate (as
defined in the FORM OF BOND set forth in Section 5 of the Initial Bond Resolution) (based
on the number of days actually elapsed on the basis of a 360-day year) from due date to date
of payment.
WA
THIRD: to the payment of principal of, redemption premium, if any, on the Bond
which have been called for redemption as permitted or required by the Bond Resolution or
have matured as provided thereby, and interest thereon, to the extent legally permissible, at
the rate per annum equal to the Default Rate (as defined in the FORM OF BOND set forth
in Section 5 of the Initial Bond Resolution) (based on the number of days actually elapsed on
the basis of a 360-day year) from the date of redemption or maturity to date of payment.
FOURTH: to the payment of principal of the Bond which have become due by virtue
of the declaration of the Trustee pursuant to Article 6(e), and interest thereon, to the extent
legally permissible, at the rate per annum equal to the Default Rate (as defined in the FORM
OF BOND set forth in Section 5 of the Initial Bond Resolution) (based on the number of days
actually elapsed on the basis of a 360-day year) from the date declared due to date of
payment.
FIFTH: to the payment of any other amounts owing under the Agreement, the Bond
Resolution, the Security Agreement, the Lease Assignment, the Guaranty or this Indenture.
SIXTH: to the payment of the surplus, if any, to whomsoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may direct.
If in making distribution pursuant to the order above stated, the amount available for distribution in
a particular classification shall be insufficient to pay in full all of the items in such classification, the
amount available for distribution to items in such classification shall be prorated among such items
in the proportion that the amount each item bears to the total of all such items. Notwithstanding
anything contained in this Indenture to the contrary, if the Trustee shall declare the entire principal
of the Bond then outstanding and the interest accrued thereon immediately due and payable as the
result of an Event of Default, or if the Bond is to be redeemed as a whole pursuant to mandatory
redemption provisions provided in the Bond Resolution, or if the Company shall exercise any option
to redeem the Bond as a whole in accordance with its terms, any amounts remaining in the
Construction Fund shall be deposited in the Debt Service Fund and applied by the Trustee as provided
in this subsection (i).
0) Judicial Proceedings. In any judicial proceeding in which the Issuer is a party and
which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of the
owners of the Bond, the Trustee, if permitted by the court having jurisdiction over such proceeding,
may, in its discretion, or upon the written request of the owners of at least 25% in aggregate principal
amount of the Bond then outstanding, and upon being indemnified to the satisfaction of the Trustee,
shall, intervene on behalf of the owners of the Bond to assert the rights of such owners.
(k) Enforcement of Remedies Without Possession of Bond. All rights of action or other
rights under this Indenture or otherwise may be brought by the Trustee in its own name as Trustee
of an express trust and may be enforced by the Trustee without the possession of the Bond, or the
production thereof on the trial or other proceedings relative thereto.
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(1) Direction by Majority in Principal Amount of Bondholders. It is expressly provided,
however, that the owners of a majority in aggregate principal amount of the Bond then outstanding,
or a committee representing, pursuant to a written appointment filed with the Trustee, the owners
of a majority in aggregate principal amount of the Bond then outstanding, shall have the right, at any
time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection with the enforcement of
the Trustee's rights and remedies under the Agreement or the rights of the owners of the Bond or the
Trustee's rights and remedies under the Bond Resolution and this Indenture, and may exercise any
right or perform any action hereunder, with the same effect as the Trustee under this Indenture,
provided, that such direction shall not be otherwise than in accordance with the provisions of law and
of this Indenture, and provided that the Trustee shall be indemnified to its satisfaction.
(m) Notice By Trustee. The Trustee shall not be required to take notice nor be deemed
to have notice of any default specified in this Indenture, except for those Events of Default specified
in Article 5(a)(1) and 5(a)(2), unless specifically notified in writing of such default by the owners of
at least 25% in aggregate principal amount of the Bond then outstanding.
(n) Default of Payments. In the event of a default in the payment of any Loan Agreement
Payment, or in the performance of any agreement or covenant contained in the Bond, the Agreement,
the Bond Resolution, or this Indenture, such payment and performance may be enforced by the
Trustee by mandamus, specific performance, or by the appointment of a receiver (in equity with
power to charge and collect Loan Agreement Payments) in accordance with the Agreement, the Bond
Resolution and this Indenture.
Article 8. RELEASE OF INDENTURE AND SATISFACTION OF INDEBTEDNESS.
When the Bond shall have become due and payable in accordance with its terms or otherwise as
provided in this Indenture or shall have been duly called for redemption, and the whole amount of the
principal, redemption premium, if any, and the interest so due and payable upon the Bond, with
respect to the installments on the Bond then due, shall be paid, or sufficient money shall be held by
the Depositary for such purpose, and provision shall also be made for paying all other sums payable
hereunder and/or under the Agreement and/or the Bond Resolution by the Company, then and in that
case all right, title, and interest of the Depositary in these presents and the rights hereby granted shall
thereupon cease, determine, and become void, and the Depositary in such case shall release this
Indenture and shall execute such documents to evidence such release as may be reasonably required
by the Issuer, and the Company, and shall turn over any surplus funds held by it to whomsoever may
then be entitled pursuant to the Bond Resolution, the Agreement, or by law to receive the same; and
thereupon this Indenture shall terminate and be of no effect; provided, that until the Bond is finally
paid, the Depositary shall continue to act as Paying Agent and Registrar for the Bond, and provided
further that the Depositary will continue to maintain records of the Rebate Fund in accordance with
Article 11 hereof.
Article 9. AMENDMENTS. This Indenture may be amended only as provided in the Bond
Resolution; provided, however, that Additional Bonds may be issued pursuant to the Bond Resolution
as provided therein, and may be secured by this Indenture without the necessity of amending or
supplementing this Indenture.
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Article 10. MISCELLANEOUS PROVISIONS. (a) Acknowledgments and Ownership
of the Bond. Any request, direction, consent, or other instrument required by this Indenture to be
signed or executed by owners of the Bond may be in any number of concurrent writings of similar
tenor and may be signed or executed by such owners of the Bond in person or by an agent appointed
in writing. Proof of the execution of any instrument, or of the writing appointing such agent, and of
the ownership of the Bond, if made in the following manner, shall be sufficient for any purpose of this
Indenture and shall be conclusive in favor of the Depositary with regard to any action taken by it
under such instrument:
(i) the fact, date, and due authorization of the execution by any person of any
such instrument may be proved by the certificate of any officer in any jurisdiction, who, by
the laws thereof, has power to take acknowledgments within such jurisdiction to the effect
that the person signing such instrument acknowledged before him the execution thereof, or
by an affidavit of a witness to such execution.
the fact of the owning of the Bond by any owner thereof and the date of his
owning same may be proved by the appropriate entries in the Bond Registration Books
maintained by the Depositary as Registrar. The Depositary may conclusively assume that
such ownership continued until written notice to the contrary is served upon the Depositary.
(b) Depositary Mgy Require Proof of Ownership. Nothing contained in this Article shall
be construed as limiting the Depositary to the proof hereinabove specified, it being intended that the
Depositary may accept any other evidence of the matters herein stated which it may deem sufficient.
(c) Consent of Bondholders. Unless otherwise provided in the Bond Resolution, any
request or consent of any owner of the Bond shall bind every future owner of the Bond in respect of
anything done by the Depositary in pursuance of such request or consent. In the event of the
dissolution of the Issuer, all of the covenants, stipulations, promises, and agreements in this Indenture
contained by, on behalf of, or for the benefit of the Issuer, shall bind or inure to the benefit of the
successor or successors of the Issuer from time to time and any officer, board, or commission to
whom or to which any power or duty affecting such covenants, stipulations, promises, and
agreements shall be transferred by or in accordance with law.
(d) Survival of Valid Bond. If the Bond is not presented for payment when the principal
thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise, all
liability of the Issuer and the Company to the owners thereof and to the Depositary for the payment
of the Bond shall forthwith cease, determine, and be completely discharged whenever funds sufficient
to pay the Bond shall be paid to the Depositary by the Company, and such funds shall be segregated
by the Depositary and held in trust for the benefit of the owners of the Bond, without interest, who
shall thereafter be restricted exclusively to such funds for the satisfaction of any claim of whatever
nature on their part relating to the Bond.
(e) Unclaimed Funds. If the Bond is not presented for payment when the principal
thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise,
all liability of the Issuer and the Company to the owners thereof and to the Depositary for the
15
payment of the Bond shall forthwith cease, determine and be completely discharged whenever
funds sufficient to pay such Bond shall be received by the Depositary as provided herein, and such
funds shall not be invested by the Depositary and shall be segregated by the Depositary and held
in trust for the benefit of the owners of the Bond, who shall thereafter be restricted exclusively
to such funds for the satisfaction of any claim of whatever nature on their part relating to the
Bond. Any money deposited with the Depositary in trust for the payment of the principal of,
redemption premium, if any, or interest on the Bond remaining unclaimed for two years after such
principal of, redemption premium, if any, or interest on the Bond has become due and payable
shall, at the written request and direction of the Company Representative approved by the
Depositary, be paid to the Company unless otherwise provided by the unclaimed property laws
of the State of Texas. After the payment of such unclaimed moneys to the Company, the owner
of the Bond shall thereafter look only to the Company for the payment thereof, and all liability
of the Depositary with respect to such money shall thereupon cease.
(f) Rights of Parties. Except as herein otherwise expressly provided, nothing in this
Indenture expressed or implied is intended or shall be construed to confer upon any person, firm, or
corporation other than the Company, the Issuer, the Trustee, and the owners of the Bond, any right,
remedy, or claim, legal or equitable, under or by reason of this Indenture or any covenant, condition,
or stipulation contained herein.
(g) Severability. In case any one or more of the provisions of this Indenture or of the
Bond 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 performance of this Indenture shall be governed
by the laws of the State of Texas.
Article 11. COVENANTS REGARDING REBATE.
(a) A Rebate Fund is hereby established by the Issuer. Such fund shall be for the sole
benefit of the United States of America and shall not be subject to the claim of any other person,
including without limitation the bondholders. The Rebate Fund is established for the purpose of
complying with section 148 of the Code and the Treasury Regulations promulgated pursuant thereto.
(b) At the close of each "Bond Year," the Company shall compute the amount of "Excess
Earnings," if any, for the period beginning on the date of delivery of the Bond and ending at the close
of such "Bond Year" and transfer an amount equal to the difference, if any, between the amount then
in the Rebate Fund and the Excess Earnings so computed. The term "Bond Year" means with respect
to the Bond each one-year period ending on the anniversary of the date of delivery of the Bond. If,
at the close of any Bond Year, the amount in the Rebate Fund exceeds the amount that would be
required to be paid to the United States of America under paragraph (d) below if the Bond had been
paid in full, as computed by the Company, such excess may be transferred from the special Rebate
Fund and paid to the Company to be used for such purposes for which, or to be redeposited to such
fund from which, such amounts were originally derived.
V
(c) In general, "Excess Earnings" for any period of time means the sum of
(i) the excess of --
(A) the aggregate amount earned during such period of time on all
"Nonpurpose Investments" (including gains on the disposition of such Obligations)
in which "Gross Proceeds" of the issue are invested (other than amounts attributable
to an excess described in this subparagraph (c)(i)), over
(B) the amount that would have been earned during such period of time
if the "Yield" on such Nonpurpose Investments (other than amounts attributable to
an excess described in this subparagraph (c)(i)) had been equal to the yield on the
issue, plus
any income during such period of time attributable to the excess described in
subparagraph (c)(i) above.
(d) The Company shall pay to the United States of America at least once every five years
an amount that ensures that at least 90 percent of the Excess Earnings from the date of delivery of
the Bond to the close of the period for which the payment is being made will have been paid. The
Depositary shall pay to the United States of America not later than 60 days after the Bond has been
paid in full 100 percent of the amount then required to be paid under section 148(f) of the Code as
a result of Excess Earnings based on calculation of the Company which the Depositary is entitled to
rely.
(e) The amounts to be computed, paid, deposited or disbursed under this section shall be
determined by the Company acting on behalf of the Issuer within ten days after each successive
anniversary date of the date of issuance of each issue or series of the Bond. By such date, the
Company shall also notify, in writing, the Depositary and the Issuer of the determinations the
Company has made and the payment to be made pursuant to the provisions of this section. Upon
written request of any registered owner of the Bond, the Company shall furnish to such registered
owner of the Bond a certificate (supported by reasonable documentation, which may include
calculation by Bond Counsel or by some other service organization) showing compliance with this
section and other applicable provisions of section 148 of the Code.
(f) The Depositary shall maintain a record of the periodic determinations by the Company
of the Tentative Rebate Amount for a period beginning on the first anniversary date of the issuance
of the Bond and ending on the date three years after the final retirement of the Bond. Such records
shall state each such anniversary date and summarize the manner in which the Tentative Rebate
Amount, if any, was determined. This provision shall not be applicable if all "Gross Proceeds" of the
Bond are expended within 180 days of the date of the delivery of the applicable series or issue of
Bond.
(g) If the Trustee shall declare the principal of the Bond and the interest accrued thereon
immediately due and payable as the result of an Event of Default specified in the Indenture, or if the
17
Bond is optionally or mandatorily prepaid or redeemed prior to maturity as a whole in accordance
with their terms, any amount remaining in the Construction Fund shall be transferred to the special
Rebate Fund to the extent that the amount therein is less than the Tentative Rebate Amount computed
by the Company as of the date of such acceleration or redemption, and the balance of such amount
shall be used immediately by the Trustee or the Depositary, as the case may be, for the purpose of
paying principal of, redemption premium, if any, and interest on the Bond when due. In furtherance
of such intention, the Issuer hereby authorizes and directs the President or Vice President of the
Board to execute any documents, certificates or reports required by the Code and to make such
elections, on behalf of the Issuer, which may be permitted by the Code as are consistent with the
purpose for the issuance of the Bond.
Article 12. NOTICES. Any notice, request, or other communication under this Indenture
shall be given in writing and shall be deemed to have been given by any party to any other party upon
either of the following dates:
(a) Three business days after the date of the mailing thereof, as shown by the post office
receipt, if mailed by registered or certified mail at the applicable address as follows:
Georgetown Industrial Development Corporation
c/o Georgetown Industrial Foundation
P.O. Box 114
Georgetown, TX 78627
Triple S Plastics, Inc.
14320 Portage Road
P.O. Box E
Vicksburg, NU 49097-0905
First of America Bank - Michigan, National Association
Attention: Commercial Loan Department
108 East Michigan Avenue
Kalamazoo, MI 49007
or the latest address specified by any party in writing; or
(b) The date of the receipt thereof by any party if not so mailed by registered or certified
mail.
Article 13. RECORDING. (a) Issuer and Depositary to Record. The Issuer shall cause
the Agreement and this Indenture to be filed in such manner and in such places as are now required
by law to establish initially the lien of this Indenture, and the priority thereof. Thereafter, in the event
the Company shall fail to perform its duties under the Security Agreement or the Lease Assignment,
the Depositary shall (1) cause each memorandum, financing statement, or continuation statement with
respect to the Agreement and this Indenture to be filed, registered, and recorded and to be refiled,
reregistered, and rerecorded in such manner and in such places as may be required by any present or
18
future law in order to publish notice of and fully to protect the lien of this Indenture and to publish
notice of and to protect the rights and security of the owners of the Bond and the rights of the
Depositary under the Agreement, the Bond Resolution, and this Indenture and (2) perform or cause
to be performed from time to time any other act as required by law, and execute and file or cause to
be executed and filed any and all instruments of further assurance, that may be necessary for such
publication and protection. The Issuer shall, when so requested by the Depositary, execute all such
instruments, memoranda, or statements necessary to maintain, protect, or preserve the interests
assigned to the Depositary under this Indenture. The Depositary may obtain an opinion or advice of
counsel selected with reasonable prudence with respect to any actions or documents that may be
required by this Article. Any act performed or documents obtained or prepared by the Depositary
in reliance upon such opinion or advice of counsel shall be deemed satisfactory performance by the
Depositary of its obligations under this Article with respect to the matters covered by such opinion
or advice.
(b) Non -Encumbrance. This Indenture is, and always will be kept, a direct lien and
security interest upon the Loan Agreement Payments, the Debt Service Fund, and the Construction
Fund, and the Issuer will not create or suffer to be created any lien prior to or on a parity with the lien
of this Indenture or any part thereof.
Article 14. NOTICE TO TEXAS DEPARTMENT OF CONVEMERCE. If the Company
fails to timely make or pay any Loan Payment, or if the Bondholder is notified by the Internal
Revenue Service that the interest on the Bond is, or may be, subject to federal income taxation,
the Bondholder promptly shall inform the Department of such an occurrence, by sending written
notice to the Department at the following address:
Texas Department of Commerce
Attention: Executive Director
P.O. Box 12728
Capitol Station
Austin, Texas 78711
Article 15. APPOINTMENT OF TRUSTEE. In the event a Trustee is appointed as
provided in this Indenture, any reference in this Indenture to Depositary shall mean the Trustee.
Any reference to Trustee in this Indenture shall be inoperative until such time, if ever, that a
Trustee is appointed in accordance with Article 6 of this Indenture.
Article 16. GOVERNING LAW. This Indenture shall be governed exclusively by and
construed in accordance with the applicable laws of the State of Texas.
IN WITNESS WHEREOF, the Issuer acting through its Board of Directors, has caused this
Indenture to be executed in multiple counterparts, each of which shall be considered an original for
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 Depositary, to evidence
its acceptance of the duties hereby created and vested in it, has caused this Indenture to be executed
in multiple counterparts, each of which shall be considered an original for all purposes, in its behalf
by one of its Vice Presidents, attested by one of its officers, and its corporate seal to be hereunto
affixed, all as of the date first above written.
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
as
President, Board of Directors
ATTEST:
Secretary, Board of Directors
(SEAL)
20
FIRST OF AMERICA BANK- MICHIGAN, NATIONAL ASSOCIATION,
DEPOSITARY AND BONDHOLDER
By
Title
ATTEST:
Title
(SEAL)
21
LOAN AGREEMENT
BETWEEN
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
AND
TRIPLE S PLASTICS, INC.
The Georgetown Industrial Development Corporation has assigned to First of America
Bank - Michigan, National Association, as Depositary under the Indenture dated as of the date
hereof, all of its interests in all "Loan Agreement Payments" due pursuant to and under this Loan
Agreement to secure its Industrial Revenue Bond (Triple S Plastics, Inc. Project), Series 1995.
DEBTOR:
Triple S Plastics, Inc.
14320 Portage Road
P.O. Box E
Vicksburg, MI 49097-0905
ASSIGNEE:
SECURED PARTY:
Georgetown Industrial Development Corporation
c/o Georgetown Industrial Foundation
P.O. Box 114
Georgetown, TX 78627
First of America Bank - Michigan, National Association, as Depositary
108 East Michigan Avenue
Kalamazoo, MI 49007
GEORGETOWN(MIPLE•S: LOANAGR.DR4 10/10/95
TABLE OF CONTENTS
(The Table of Contents is not a part of the Loan Agreement but is for convenience of
reference only.)
PAGE
ARTICLE I
DEFINITIONS; GENERAL RECITALS, FINDINGS, AND REPRESENTATIONS
Section 1.01. Definitions ...................................... 1
Section 1.02. General Recitals, Findings, and Representations .............. 5
ARTICLE II
THE PROJECT .
Section 2.01. Approvals and Permits .............................. 6
Section 2.02. Acquisition and Construction .......................... 6
ARTICLE III
FINANCING THE PROJECT; TITLE AND OPERATION
Section 3.01.
The Loan ...................................... 7
Section 3.02.
Security for the Loan ............................... 7
Section 3.03.
Repayment of Loan ................................ 7
Section 3.04.
Title .......................................... 8
Section 3.05.
Operation ....................................... 8
Section 3.06.
Indemnities ...................................... 8
Section 3.07.
Issuer's Limited Liability ............................. 9
ARTICLE IV
THE BOND
Section 4.01.
Issuance of Bond .................................. 9
Section 4.02.
Refunding of Bond ................................
10
Section 4.03.
Redemption of Bond ...............................
10
Section 4.04.
Loan Agreement Payments ...........................
10
GEORGEMWNIMIPLE•S: LOANAGR.DRA 10/10/93
Section 4.05. No Arbitrage ................................... 11
Section 4.06. Tax -Exempt Status of Interest on the Bond ................. 11
Section 4.07. Payments to Issuer ................................ 13
Section 4.08. Payments to Rebate Fund ............................ 13
ARTICLE V
COVENANTS AND REMEDIES
Section 5.01. Covenant ...................................... 14
Section 5.02. Depositary, Trustee and Remedies ...................... 14
Section 5.03. General Provisions ................................ 14
Section 5.04. Amendment of Agreement ........................... 15
ARTICLE VI
SPECIAL COVENANTS
Section 6.01.
Corporate Existence ........ .....................
15
Section 6.02.
Assignment .....................................
16
Section 6.03.
Financial and Other Reports ..........................
16
Section 6.04.
Term of Agreement ...............................
16
Section 6.05.
Termination ....................................
16
Section 6.06.
Notices .......................................
16
Section 6.07.
Severability....................................
17
Section 6.08.
Appointment of Trustee .............................
17
Section 6.09.
Governing Law ..................................
17
Execution by the Issuer
Execution by the Company
Exhibit A - Project Description ..................................... A-1
G90KGET0WNfM1PL1!•3: I,0ANAGWOK4 1 Q/ 1 U/9S i i
LOAN AGREEMENT
This Loan Agreement dated as of October 1, 1995, between Georgetown Industrial
Development Corporation and Triple S Plastics, Inc.
WITNESSETH:
ARTICLE I
DEFINITIONS; GENERAL RECITALS, FINDINGS, AND REPRESENTATIONS
Section 1.01. DEFINITIONS. In addition to all other words and terms defined herein,
and unless a different meaning or intent clearly appears from the context, the following words and
terms shall have the following meanings, respectively, whenever they are used herein:
Act - The Development Corporation Act of 1979, as amended (Article 5190.6, Vernon's
Annotated Texas Civil Statutes, as amended).
Agreement - This Loan Agreement, together with Exhibit A attached to this Loan
Agreement, and all amendments and supplements to this Loan Agreement.
Approving Officer - Any representative of the Company as certified in writing by the
Company to the Depositary, together with specimen signatures.
Article - Any subdivision of this Agreement designated with a roman numeral.
Board or Board of Directors - The lawfully qualified board of directors of the Issuer.
Bond Counsel - An attorney or firm of attorneys experienced in matters relating to
municipal bond law and the tax exemption of interest on bonds of states and their political
subdivisions, selected by the Issuer and satisfactory to the Company.
Bond Resolution - The Initial Bond Resolution and each resolution of the Board of
Directors authorizing the issuance of the Bond (including the Indenture prescribed and authorized
to be executed in the Initial Bond Resolution) together with any supplemental resolutions or
amendments to such resolutions or such Indenture.
Bondholder - The owner of any Bond as shown on the Bond Registration Books kept by
the Depositary, as Registrar.
Bond - Any and all revenue bonds of the Issuer issued and delivered to finance and pay
for all or any part of the Cost of the Project pursuant to the Act and this Agreement, including
GEORGErOWN/rRIPLE•S: LOANAGR.DRA 10/10/95
initial series or issues of revenue bonds and revenue bonds issued to finance and pay for all or any
part of the Cost of completing the Project, and any revenue bonds issued for the purpose of
refunding or replacing the Bond.
Code - The Internal Revenue Code of 1986, as amended, and the rulings and regulations
(including temporary and proposed regulations) promulgated thereunder or, to the extent
applicable, under the Internal Revenue Code of 1954, as amended.
Company - Triple S Plastics, Inc., a corporation organized and existing under the laws of
the State of Michigan and fully qualified to transact business in the State of Texas, and its
successors and assigns.
Construction Fund - The segregated account or accounts into which certain proceeds from
the sale and delivery of the Bond will be deposited as provided in each Bond Resolution (excepting
any Bond Resolution authorizing revenue bonds to refund the Bond).
Cost - The costs incurred by the Issuer or the Company, whether incurred before the
issuance of the Bond pursuant to the Inducement Resolution or thereafter, with respect, to the
acquisition, construction and improvement of the Project, including but not limited to, the
following items:
(i) The cost of acquisition, construction, reconstruction, improvement and
expansion, including the cost of the acquisition of all land, rights -of -way, property rights,
easements and interests, the cost of all machinery and equipment, financing charges,
inventory, raw materials and other supplies, research and development costs, interest prior
to and during construction and for one year after completion of construction whether or
not capitalized, necessary reserve funds, costs of estimates and of engineering and legal
services, plans, specifications, surveys, estimates of cost and of revenue, other expenses
necessary or incident to determining the feasibility and practicability of acquiring,
constructing, reconstructing, improving and expanding any such project, administrative
expense and such other expense as may be necessary or incident to the acquisition,
construction, reconstruction, improvement and expansion thereof, the placing of the same
in operation and the financing or refinancing of any such project, including the refunding
of any outstanding obligation, mortgages, or advance issued, made or given by any person
for any of the aforementioned costs;
(ii) To the extent authorized by the Act, costs of all other items related to the
acquisition, construction and improvement of the Project; and
(iii) All Costs of Issuance.
Costs of Issuance - All costs and expenses incurred by the Issuer, the Depositary or the
Company in connection with the issuance and sale of the Bonds, including without limitation, (i)
GEOKccrowNrrarnLE-3: LOANAGRDR410/10/ 3 2
fees and reasonable expenses of accountants, attorneys and engineers, (ii) materials, supplies and
printing costs and (iii) recording and filing fees.
Debt Service Fund - The segregated account or accounts in which Loan Agreement
Payments will be deposited as provided in each Bond Resolution.
duties.
Department - The Texas Department of Commerce and any successor to its functions and
Depositary - The depositary named in the Indenture and its successor or assigns.
Eligible Securities - To the extent they are legal investments for the Depositary, any
authorized investments set forth in the Public Funds Investment Act, Chapter 2256, Government
code, as amended from time to time.
Governmental Unit - The City of Georgetown, Texas, a political subdivision of the State
of Texas.
Guaranty - The Guaranty Agreement dated as of October 1, 1995 between the Company
and First of America Bank - Michigan, National Association, as such document may be amended
from time to time.
Indenture - The indenture, including all supplements and amendments thereto, prescribed
in and executed and delivered pursuant to the Initial Bond Resolution.
Inducement Resolution - The "Resolution Taking Affirmative Official Action Towards the
Issuance of the Bond to Provide a Manufacturing Project for Triple S Plastics, Inc." approved by
the Issuer on July 12, 1995.
Initial Bond Resolution - The Bond Resolution adopted on October 17, 1995 by the Board
of Directors, authorizing the issuance and delivery of Georgetown Industrial Development
Corporation Industrial Revenue Bond (Triple S Plastics, Inc. Project), Series 1995 in the
aggregate principal amount of $5,000,000.
Issuer - Georgetown Industrial Development Corporation.
Lease Assignment - The Lease Assignment dated as of October 1, 1995 from the Company
to First of America Bank - Michigan, National Association, as such document may be amended
from time to time.
Loan - The loan of the proceeds of the sale of the Bond as described in Section 3.01.
GCORGEPOWN/fRIPLC•S: LOANAGWDR4 10/10/95 3
Loan Agreement Payments - Payments required to be made by the Company to amortize
each series or issue of the Bond and to pay other amounts due with respect to the Bond, all as
provided for in the applicable Bond Resolution, including (1) the principal of, redemption
premium, if any, and interest on such Bond when due (whether at stated maturity, upon
redemption prior to stated maturity, or upon acceleration of stated maturity), (2) any agreed
liquidated damages owed by the Company to the Bondholders, (3) all fees and expenses of the
Depositary, Registrar, and any Paying Agent for such Bond, and (4) any other payments required
by such Bond Resolution or the Indenture, other than the fees and expenses of the Issuer.
Paying Agent - The Depositary and any other paying agent for the issue of the Bond named
in the Bond Resolution authorizing such Bond.
Project - The equipment and facilities described in Exhibit A to this Agreement.
Project Location - 107 ACM Way, Georgetown, Williamson County, Texas.
Registrar - The registrar for the Bond named in the Bond Resolution.
Regulations - The regulations promulgated by the United States Treasury Department
pursuant to the Code.
Section - Any subdivision of this Agreement designated by Arabic numerals.
Security Agreement - The Security Agreement dated as of October 1, 1995 between the
Company and First of America Bank - Michigan, National Association, as such document may
be amended from time to time.
Trustee - The corporate trustee referred to under the Indenture, and its successors or
assigns.
United States - The United States of America
References in the singular number in this Agreement shall be considered to include the
plural, if and when appropriate.
Section 1.02. GENERAL RECITALS, FINDINGS, AND REPRESENTATIONS. (a)
The Issuer is a nonstock, nonprofit industrial development corporation organized and existing
under the laws of the State of Texas, including particularly the Act.
(b) The Issuer is a duly constituted authority and public instrumentality of the
Governmental Unit, a political subdivision of the State of Texas, within the meaning of the
Regulations and the rulings of the Internal Revenue Service prescribed and promulgated pursuant
to Section 103 of the Code, and the Issuer is functioning and acting solely on behalf of the
GEOKG[:TOWN/TRIPLE•S: LOANAGKDR4 10/10/95 4
Governmental Unit.
(c) The Company is fully qualified to transact business in the State of Texas, and is
fully authorized by law and corporate proceedings to execute this Agreement.
(d) This Agreement is authorized and executed pursuant to applicable laws, including
the Act.
(e) The Company has requested the Issuer to finance the Cost of the Project.
(f) The Issuer has determined, in the public interest, that it will finance the Cost of the
Project, and loan money to the Company for such purpose in the manner provided in the Act and
this Agreement.
(g) The governing body of the Governmental Unit has approved this Agreement by
written resolution as required by the Act and the governing body of Williamson County, Texas
has approved the issuance of bonds by the Issuer as required by the Act.
(h) The Issuer and the Company have taken all action and have complied with all
provisions of law with respect to the execution, delivery and performance of this Agreement and
the due authorization of the consummation of the transactions contemplated hereby, and this
Agreement has been duly executed and delivered by, and constitutes a valid and legally binding
agreement of, the Issuer and the Company, enforceable against the respective parties in
accordance with its terms.
0) The execution of this Agreement and the performance of the transactions
contemplated hereby will not violate any law or regulation, or any Articles of Incorporation,
Charter, or Bylaws, or any judicial order, judgment, decree, or injunction, or contravene the
provisions of or constitute a default under any agreement, indenture, bond resolution, or other
instrument to which the Issuer or the Company is a party.
0) The Company represents to the Board and the Department that (1) the Project will
contribute to the economic growth or stability of the Governmental Unit by (aa) increasing or
stabilizing employment opportunities in the Governmental Unit, (bb) significantly increasing or
stabilizing the property tax base of the Governmental Unit and (cc) promoting commerce within
the Governmental Unit and the State of Texas; (2) it has no present intention of using or moving
any portion of the Project out of the State of Texas or disposing of or abandoning the Project; and
(3) it has no present intention of directing the Project to a use other than the purposes represented
to the Governmental Unit and the Commission.
NOW THEREFORE, in consideration of the covenants and agreements herein made, and
subject to the conditions herein set forth, the Issuer and the Company contract and agree as
follows:
OF.OROFTOWN/TRIPLF•S: LOANAGR.DWI 10/10/95 5
ARTICLE II
THE PROJECT
Section 2.01. APPROVALS AND PERMITS. The Issuer and the Company agree to
use their best efforts to obtain the necessary approval of this Agreement by the Department as
required by the Act, prior to the issuance of the Bond, and to obtain all other permits necessary
with respect to the acquisition, construction, equipping, and furnishing of the Project.
Section 2.02. ACQUISITION AND CONSTRUCTION. (a) The Project shall be
acquired, constructed, equipped, and furnished with all reasonable dispatch, and the Company will
use its best efforts to cause such acquisition, construction, equipping, and furnishing to be
completed as soon as practicable, delays incident to strikes, riots, acts of God, or the public
enemy, or other causes beyond the reasonable control of the Company only excepted; but if for
any reason there should be delays in such acquisition, construction, equipping, and furnishing
there shall be no diminution in or postponement of the Loan Agreement Payments to be made by
the Company hereunder, and no resulting liability on the part of the Issuer.
(b) The Company shall acquire, construct, equip, and furnish the Project or cause the
Project to be acquired, constructed, equipped, and furnished and the Issuer shall have no
responsibility or liability whatsoever with respect to the Project and the acquisition, construction,
equipping, and furnishing thereof. It is agreed and understood that the Company has entered into
and executed and will enter into and execute all agreements and contracts necessary to assure and
accomplish the actual acquisition, construction, equipping, and furnishing of the Project (and that
the Issuer shall not execute any such agreements or contracts) and that the Company will carry
out, pay, supervise, and enforce all such agreements and contracts, and will provide for such
insurance on and in connection with the acquisition, construction, equipping, and furnishing of
the Project as it deems necessary or advisable or as is required by law and this Agreement. The
Company shall pay, from proceeds from the sale and delivery of the Bond loaned to it pursuant
to this Agreement, and from any available income or earnings derived therefrom, and from other
funds of the Company to the extent necessary, the entire Cost of the Project. The Company shall
promptly pay all taxes, including specifically all sales taxes and ad valorem taxes, in connection
with the Project and the acquisition, construction, equipping, and furnishing thereof. The Issuer
shall loan certain proceeds from the sale of the Bond to the Company to be used by the Company
to pay all or part of the Cost of the Project, in accordance with procedures to be established in
any applicable Bond Resolution, including provisions for reimbursing the Company for paying
all or any part of such Cost under the aforesaid agreements and contracts for the acquisition,
construction, equipping, and furnishing of the Project prior to the Company's receipt of the Loan
as hereinafter provided. It is specifically provided, however, that none of the proceeds from the
sale of the Bond will be used to reirnburse the Company for, or to pay (and the Company hereby
covenants and agrees not to request reimbursement of or payment for) any part of the Cost of the
Project if such use or payment would result in a violation of any of the Company's covenants
contained in Section 4.06. Each Bond Resolution (excepting any Bond Resolution authorizing
GCORGE'rOWN(rRIPLE-S; LOANAGMA4 I0/10/95 6
revenue bonds to refund the Bond) shall contain appropriate provisions with respect to the
Construction Fund, to be drawn on and administered as provided in such Bond Resolution.
ARTICLE III
FINANCING THE PROJECT;
TITLE AND OPERATION
Section 3.01. THE LOAN. The Issuer shall make the Loan to the Company by
depositing into the Construction Fund (or such other fund as specifically provided in the Bond
Resolution) the proceeds from the sale of the Bond in such amount as is provided in each Bond
Resolution. The amounts so deposited shall be advanced in the manner provided in the Bond
Resolution; and the Company shall repay the Loan by making the Loan Agreement Payments as
provided in this Agreement and the Bond Resolution.
Section 3.02. SECURITY FOR THE LOAN. The obligations of the Company under
this Agreement shall be direct general obligations of the Company. Prior to or simultaneously
with the issuance of the Bond, the Issuer will assign to the Depositary under the terms of the
Indenture all of the Issuer's right, title, and interest in and, to the Loan Agreement Payments. In
addition, it is recognized and understood that the Security Agreement and the Lease Assignment
has been given by the Company as additional security for the payment of Loan Agreement
Payments for the benefit of the owners of the Bond.
Section 3.03. REPAYMENT OF LOAN. (a) Notwithstanding any provision expressly
or inferentially to the contrary contained herein, the Company unconditionally agrees that it shall
make Loan Agreement Payments to the Depositary (pursuant to the aforesaid assignment by the
Issuer) in lawful money of the United States of America, and in such amounts and at such times
as shall be necessary to enable the Depositary to make full and prompt payment of the principal
of, redemption premium, if any, and interest on the Bond when due (whether at stated maturity,
upon redemption prior to stated maturity, or upon acceleration of stated maturity), any agreed
liquidated damages owed by the Company to the Bondholders, and all fees and expenses of the
Depositary, the Registrar, and any Paying Agent for such Bond, and of all other amounts required
to be paid by this Agreement, each Bond Resolution and the Indenture. Upon the issuance and
delivery of the Bond to the initial purchaser thereof, and the deposit of the proceeds derived
therefrom into the accounts established in the Bond Resolution, the Company shall have received,
and the Issuer shall have given, full and complete consideration for the Company's obligation
hereunder to make Loan Agreement Payments. The obligations of the Company to make the
payments required by this Agreement shall be absolute and unconditional and shall not be subject
to diminution by set-off, recoupment, counterclaim, abatement, or otherwise; and until such time
as all Loan Agreement Payments shall have been made or provision therefor shall have been made
in accordance with each Bond Resolution and the Indenture, the Company: (i) will not suspend
or discontinue, or permit the suspension or discontinuance of, any payments provided for in this
Agreement; (ii) will perform and observe all of its other agreements contained in this Agreement;
GEORGUOWNIMPLE-S: I.0ANAGRAM4 I0/1010 `
and (iii) will not terminate this Agreement for any cause including, without limiting the generality
of the foregoing, failure of the Project to comply with the plans and specifications therefor, any
acts or circumstances that may constitute failure of consideration, destruction of, or damage to
the Project, frustration of commercial purpose, any change in the tax or other laws or
administrative rulings of or administrative actions by the United States of America, or the State
of Texas, or any political subdivision of either, or any failure of the Issuer to perform and observe
any agreement, whether expressed or implied, or any duty, liability, or obligation arising out of
or in connection with this Agreement. Nothing contained in this Section shall be construed to
release the Issuer from the performance of any of the agreements on its part contained herein; and
in the event the Issuer shall fail to perform any such agreement on its part, the Company may
institute such action against the Issuer as the Company may deem necessary to compel
performance, provided that no such action shall violate the agreements on the part of the Company
contained in this Section or postpone or diminish the amounts required to be paid by the Company
pursuant to this Agreement.
(b) Notwithstanding the foregoing, it is the intention of the parties hereto to conform
strictly to the applicable usury laws of the State of Texas and the United States of America, and
any provision for any payment contained herein and in the Bond shall be held to be subject to
reduction to the amount allowed under said usury laws as now or hereafter construed by the courts
having jurisdiction. Excess interest, if any, provided for herein and in the Bond or otherwise,
shall be cancelled or, if theretofore paid, shall be credited on the principal of the loan hereunder
or shall be refunded. All interest paid or agreed to be paid on the loan hereunder shall, to the
extent permitted by applicable law, be allocated and spread throughout the full term of the loan
until payment in full of the principal of the loan (including the period of any renewal or extension
thereof) so that interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law. This provision shall be held to operate to deny the Issuer and the
owners of the Bond the right, in any event, to collect usury.
Section 3.04. TITLE. The Issuer shall have no right, title, or interest in and to the
Project. Except for making the Loan to the Company from the source and in the manner provided
in this Agreement, the Issuer shall not be responsible or liable in any manner for any claims,
losses, damages, penalties, costs, taxes, or fines with respect to the acquisition, construction,
equipping, furnishing, installation, operation, maintenance, or ownership of the Project.
Section 3.05. OPERATION. The Company represents and covenants that it will operate
and maintain the Project, or cause the Project to be operated and maintained, and will pay, or
cause to be paid, all costs and expenses of operation and maintenance of the Project, including all
applicable taxes, and that it will keep, or cause to be kept, in force adequate insurance on the
Project as is customarily carried by persons engaged in the same business and operating facilities
like the Project. It is understood and agreed that the Issuer shall have no duties or responsibilities
whatsoever with respect to the operation or maintenance of the Project, or the performance of the
Project for its designed purposes.
cr0KGETOwNrrKIII, r-5: 1,0ANAOR uwi 10n0n05 8
Section 3.06. INDEMNITIES. (a) Tile Company releases the Department, its directors,
employees and agents, the Issuer, its officers, directors, employees, agents, and attorneys and the
Governmental Unit, its officers, agents, attorneys, employees and the members of its governing
body (collectively the "Indemnified Parties") frorn, and the Indemnified Parties shall not be liable
for, and the Company agrees and shall protect, indemnify, defend, and hold the Indemnified
Parties harmless from any and all liability, cost, expense, darnage or loss of whatever nature
(including, but not limited to, attorneys' fees, litigation and court costs, amounts paid in
settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising
out of, in connection with, or related to (i) the issuance, offering, sale, delivery or payment of
the Bond, the Bond Resolution, the Indenture, and this Agreement and the obligations imposed
on the Issuer hereby and thereby; or the design, construction, installation, operation, use, occu-
pancy, maintenance, or ownership of the Project; (ii) any written statements or representations
made or given by the Company or any of its officers or employees, to the Indemnified Parties,
or any underwriters or purchasers of the Bond, with respect to the Issuer, the Company, the
Project, or the Bond, including, but not limited to, statements or representations of facts, financial
information, or corporate affairs; (iii) damage to property or any injury to or death of any person
that may be occasioned by any cause whatsoever pertaining to the Project; and (iv) any loss or
damage incurred by the Issuer as a result of violation by the Company of the provisions of
Sections 4.04 or 4.05. The provisions of the preceding sentence shall remain and be in full force
and effect even if any such liability, cost, expense, damage or loss or claim therefor by any
person, directly or indirectly results from, arises out of, or relates to or is asserted to have
resulted from, arisen out of, or related to, in whole or in part, one or more negligent acts or
omissions of the Indemnified Parties or any other party acting for or on behalf of the Indemnified
Parties in connection with the matters set forth in clauses (i) through (iv) of said sentence.
(b) If any claim is asserted under (a) above, the party seeking indemnity will give
prompt notice to the Company, and the Company shall have the sole right and duty to assume,
and will assume, the defense thereof, with full power to litigate, compromise, or settle the same
in its sole discretion.
Section 3.07. ISSUER'S LINIITED LIABILITY. It is recognized that the Issuer's only
source of funds with which to carry out its commitments with respect to the Project and this
Agreement will be from the proceeds from the sale of the Bond; and it is expressly agreed that
the Issuer shall have no liability, obligation, or responsibility with respect to this Agreement or
the Project except to the extent of funds available from such Bond proceeds. If, for any reason,
the proceeds from the sale of the Bond are not sufficient to pay all the Cost of the Project, the
Company shall complete the Project and pay all such Cost from its own funds, but it shall not
be entitled to reimbursement therefor unless additional Bonds are issued for such purpose, or to
any diminution in or postponement of any payments required to be made by the Company
hereunder.
ar:oitc;t:'rowNn'ttrni.r•s: WANAGR rnt•i 10/10/91 9
ARTICLE IV
THE BOND
Section 4.01. ISSUANCE OF BOND. (a) In consideration of the covenants and
agreements set forth in this Agreement, and to enable the Issuer to issue the Bond to carry out the
intents and purposes hereof, this Agreement is executed to assure the issuance of such Bond, and
to provide for the due and punctual payment by the Company to the Depositary of the Loan
Agreement Payments. The Company shall make the Loan Agreement Payments, for the benefit
of each issue of the Bond, to the Depositary for deposit into the Debt Service Fund as provided
in each Bond Resolution.
(b) Simultaneously with the authorization of this Agreement by the Board of Directors,
such Board has adopted the Initial Bond Resolution. The Company hereby approves the Initial
Bond Resolution, including the Indenture authorized therein. Each Bond Resolution authorizing
additional Bonds shall be subject to the written approval of the Approving Officer and the holders
of a majority of the outstanding principal amount of the Bond and the provisions of any such Bond
Resolution shall not be binding or effective upon the Company unless and until such approval is
given. It is hereby agreed that the foregoing approval .of the Initial Bond Resolution and the
Indenture, and any approval of any Bond Resolution authorizing the issuance of additional Bonds
constitutes the acknowledgment and agreement of the Company that such Bonds, when issued and
delivered as provided in such Bond Resolution, will be issued in accordance with and in
compliance with this Agreement, notwithstanding any other provisions of this Agreement or any
other contract or agreement to the contrary. Any Bondholder is entitled to rely fully and
unconditionally on any approvals. Notwithstanding any provisions of this Agreement or any other
contract or agreement to the contrary, the Company's approval of any Bond Resolution (including
the Indenture authorized by the Initial Bond Resolution), shall be the Company's agreement that
all covenants and provisions in such Bond Resolution and the Indenture affecting the Company
shall, upon the delivery of such Bond and the Indenture, become unconditional, valid, and binding
covenants and obligations of the Company so long as said Bond and the interest thereon are
outstanding and unpaid. Particularly, the obligation of the Company to make, promptly when
due, all Loan Agreement Payments specified in each Bond Resolution and the Indenture shall be
absolute and unconditional, and said obligation may be enforced as provided in each Bond
Resolution and the Indenture, regardless of any other provisions of this Agreement or any other
contract or agreement to the contrary. Upon the request of the Company, and only upon its
request, the Issuer may, when, in the opinion of the Issuer, it becomes necessary or advisable,
authorize and use its best efforts to sell and deliver additional Bonds, in one or more series or
issues, in aggregate principal arnounts sufficient to pay the Cost of the Project.
Section 4.02. REDEMPTION OF BONDS. Provision shall be made in each Bond
Resolution for the redemption of the Bond prior to maturity, under such terms and conditions as
shall be set forth therein. The redemption of any outstanding Bond prior to maturity at any time
shall not relieve the Company of its unconditional obligation to pay remaining Loan Agreement
GF0KGEMWNfrR1r1,F•S: LOANAGRAR4 10n0/95 10
Payments, if any, as specified in any Bond Resolution or the Indenture. The Company also shall
comply with and be bound by all provisions of this Agreement and of each Bond Resolution and
the Indenture with respect to the mandatory and optional redemption of the Bond.
Section 4.03. LOAN AGREENtENT PAYMENTS. (a) Payment of all Loan
Agreement Payments shall be made and deposited as required by each Bond Resolution and the
Indenture including all such payments which may come due because of the acceleration of the
maturity or maturities of the Bond upon default, or otherwise, under the provisions of the
Indenture. If any available funds in excess of current requirements are held on deposit in the Debt
Service Fund at the time payment of any Loan Agreement Payment is due, such payment may be
reduced by the amount of the funds so held on deposit. Subject to the terms of the Bond, the
Company shall have the right to prepay all or a portion of any Loan Agreement Payment at any
time. Any such prepayment by the Company shall not relieve it of liability for each remaining
Loan Agreement Payment as provided in this Agreement and each Bond Resolution and the
Indenture.
(b) Recognizing that the Loan Agreement Payments will be the Issuer's sole source for
the payment and performance of its obligations to the Depositary, any Paying Agent and the
Bondholders under each Bond Resolution and the Indenture, when the Bond is delivered, the
Company shall be unconditionally obligated to make and pay, or cause to be made and paid, each
Loan Agreement Payment regardless of whether or not the Company actually acquires or
completes the Project, or whether or not the Company actually approves, purchases, receives,
accepts, or uses the Project; and such payments shall not be subject to any abatement, set-off,
recoupment, or counterclaim; and the Bondholders shall be entitled to rely on this agreement and
representation, notwithstanding any provisions of this Agreement or any other contract or
agreement to the contrary, and regardless of the validity of, or the performance of, the remainder
of this Agreement or any other contract or agreement.
(c) The amounts payable by the Company hereunder shall remain due and payable by
the Company, notwithstanding any release, extinguishment or satisfaction (pursuant to Subchapter
E of Article 9 of the Texas Business and Commerce Code, or pursuant to any other statute,
regulation, document or agreement) of the Issuer's obligations to make payments of principal and
interest on the Bond until there shall have been paid to the holders of the outstanding Bond or the
Depositary in lawful currency of the United States an amount sufficient to pay all principal and
interest (including interest on overdue amounts of principal and to the extent permitted by
applicable law interest) and any agreed liquidated damages that would have been due and owing
to the holders of the Bond had the Issuer's obligations not been so released, extinguished or
satisfied.
Section 4.04. NO ARBITRAGE. The Issuer and the Company hereby covenant with
each other and with the Bondholders that they will make no use of the direct or indirect proceeds
of the Bond at any time which will cause the Bond to be an arbitrage bonds within the meaning
of Section 148 of the Code or the Regulations pertaining thereto; and by this covenant the Issuer
GEORG[rrOWNIrRII1LE•5: LOANAGRIA4 10/10/95 11
and the Company are obligated to comply with the requirements of the aforesaid Section 148 and
the pertinent Regulations.
Section 4.05. TAX-EXEMPT STATUS OF INTEREST ON THE BOND. The
Company and Issuer covenant to refrain from such action which would adversely affect the
treatment of the Bond as obligations described in section 103 of the Code, the interest on which
is excludable from "gross income" of the holder for purposes of federal income taxation. In
furtherance thereof, the Company covenants as follows:
(a) not to use or invest nor to permit the use or investment of proceeds of the Bond
(including investment earnings thereon) or the facilities constituting the Project in a manner that
would result in the Bond not being "qualified small issue bond" within the meaning of section
141(e) of the Code;
(b) to use at least 95 percent of the proceeds of the Bond to provide for the payment
of costs of the acquisition, construction, reconstruction or improvement of land or depreciable
property, and paid for subsequent to May 13, 1995;
(c) during the six -year period beginning on a date three years prior to the date of issue
of the Bond and ending three years after such date, will not pay or incur or permit any related
person or "principal user" of the Project to pay or incur capital expenditures (within the meaning
of section 263 of the Code) for facilities located in Williamson County, Texas to the extent that
such expenditures when added to the aggregate face amount of the Bond would exceed
$10, 000, 000;
(d) that the Company will be the only principal user of the Project;
(e) that all outstanding obligations the interest on which is exempt from federal income
taxation pursuant to section 103 of the Code which are allocated to the Company (or persons
related to the Company) do not as of the date of issue and will not, at any time during the three-
year period commencing on the later of such date or the date on which the Project was placed -in-
service, exceed $40,000,000;
(f) that the Company will not cause the Bond to be treated as "federally guaranteed"
obligations for purposes of section 149 of the Code, as may be modified in any applicable rules,
rulings, policies, procedures, regulations or other official statements promulgated or proposed by
the Department of the Treasury or the Internal Revenue Service with respect to the "federally
guaranteed" obligations described in section 149 of the Code. For purposes of this paragraph,
the Bond shall be treated as "federally guaranteed" if (i) all or any portion of the principal or
interest is or will be guaranteed directly or indirectly by the United States of America or any
agency or instrumentality thereof, or (ii) a significant portion of the proceeds of the Bond will be
(A) used in making loans the payment of principal or interest with respect to which is to be
guaranteed in whole or in part by the United States of America or any agency or instrumentality
GrORGF""TOWN/1'RINLE.S: LOANAGR DR-1 10/10/91 12
thereof, or (B) invested directly or indirectly in federally insured deposits or accounts, and (iii)
such guarantee is not described in section 149(b) of the Code;
(g) that the costs of issuing the Bond which are financed with proceeds of the Bond will
not exceed an amount equal to 2 percent of the proceeds received from the sale of the Bond. Such
amounts will not be taken into account in satisfying the requirement stated above that at least 95
percent of the Bond proceeds be used to provide the facilities. Any costs of issuance in excess
of two percent shall be an out-of-pocket expense of the Company;
(h) that no portion of the proceeds of the Bond is to be used to provide the following:
an airplane, a skybox or other private luxury box, a facility primarily used for gambling or any
store the principal business of which is the sale of alcoholic beverages for consumption off
premises;
(i) to comply with the limitations imposed by section 147(c) of the Code (relating to
the limitation on the use of proceeds to acquire land) and section 147(d) of the Code (relating to
restrictions on the use of bond proceeds to acquire existing buildings, structures or other
property);
(j) that the Company shall make such use of the proceeds of the Bond and any other
funds constituting Gross Proceeds (whether or not held by the Depositary under the Bond
Resolution) which are allocable to the Bond, restrict the investment of such proceeds and other
funds, and take such further action as may be required so that the Bond will not constitute
"arbitrage bonds" under section 148 of the Code and the Regulations. In particular, but not by
way of limitation, the Company covenants that it will provide written instructions to the
Depositary with respect to investments in accordance with Section 7(h) of the Bond Resolution.
(k) that the Company. shall immediately remit to the Depositary for deposit in the
Rebate Fund any deficiency with respect to the Rebate Amount as required by Article 11 of the
Indenture;
(1) the Company agrees to provide all information required with respect to Nonpurpose
Investments not held in any Fund under the Indenture; and
(m) that, at no time during the period which the Bond remains outstanding, will
proceeds invested in Nonpurpose Investments (within the meaning of section 148 of the Code) at
a yield higher than the yield on the Bond, other than amounts invested pursuant to an initial
temporary period or as part of a bona tide debt service fund, exceed 150 percent of the debt
service on the issue for the bond year and that the aggregate amount so invested will be promptly
and appropriately reduced as the amount of outstanding obligations constituting the Bond is
reduced.
The covenants and representations contained in Sections 4.04 and 4.05 of this Agreement
GF.ORGL"TOWN(rRIPL&S: LOANAGWM4 10/10/91 13
are intended to assure compliance with the Code and any regulations promulgated by the U.S.
Department of Treasury pursuant thereto. In the event that regulations are hereafter promulgated
which modify or expand provisions of the Code, the Company will not be required to comply with
a covenant contained in this section to the extent that such failure to comply, in the opinion of
Bond Counsel, will not adversely affect the exemption from federal income taxation of interest
on the Bond under section t03(a) of the Code. In the event that regulations are hereafter
promulgated which impose additional requirements which are applicable to the Bond, the
Company and the Issuer agree to comply with such additional requirements to the extent
necessary, in the opinion of Bond Counsel, to preserve the exemption from federal income
taxation of interest on the Bond under section 103(a) of the Code. In furtherance of such
intention, the Issuer hereby authorizes and directs the President or Vice President to execute any
documents, certificates or reports required by the Code and to make such elections, on behalf of
the Issuer, which may be permitted by the Code as are consistent with the purpose for the issuance
of the Bond.
In order to facilitate compliance with the above covenants (k), (1), and (m), a "Rebate
Fund" is hereby established by the Issuer for the sole benefit of the United States of America, and
such fund shall not be subject to the claim of any other person, including without limitation the
bondholders. The Rebate Fund is established for the additional purpose of compliance with
section 148 of the Code.
Section 4.06. PAYMENTS TO ISSITER. From the proceeds of the sale and delivery
of each issue of Bond there shall be paid all of the Issuer's reasonable, actual out-of-pocket
expenses and costs of issuance in connection with such Bond, including, without limitation, all
financing, legal, printing, and other expenses and costs of issuance incurred in issuing the Bond.
In addition, the Issuer shall receive out of such Bond proceeds an amount equal to the amount
specified in each Bond Resolution to pay and reimburse the Issuer for its administrative and
overhead expenses directly attributable and chargeable to the issuance of the Bond and the
acquisition, construction, equipping, and furnishing of the Project.
Section 4.07. PAYMENT TO REBATE FUND. The Company hereby covenants and
agrees to make the determinations and to pay any deficiency in the Rebate Fund, at the times and
as described in the Initial Bond Resolution. In any event, if the amount of cash held in the Rebate
Fund shall be insufficient to permit the Depositary to make payment to the United States of any
amount due under Section 103(c)(6)(D) of the Code, the Company promptly shall pay the amount
of such insufficiency on such date to the Depositary in immediately available funds. The
obligations of the Company under this Section 4.07 are direct obligations of the Company, and
the parties hereto agree that the Issuer shall have no obligation or duty with respect to the Rebate
Fund.
GGOKGrTOWN(1'KIP1.1's•S: LOANAGK uwl 10/10/1)1 14
ARTICLE V
COVENANT AND REMEDIES
Section 5.01. COVENANT. The Company unconditionally agrees and covenants with
the Issuer and the Depositary that it will pay, or cause to be paid, when due, each Loan
Agreement Payment required and prescribed to be paid by it pursuant to each Bond Resolution.
The Company further unconditionally agrees and covenants to pay all reasonable expenses and
charges, legal or otherwise (including court costs and attorneys' fees), paid or incurred by the
Issuer and the Trustee in realizing upon any of the said payments to be made by the Company or
in enforcing the provisions of this Agreement or any Bond Resolution or the Indenture.
Section 5.02. DEPOSITARY, TRUSTEE AND REMEDIES. (a) The Company is
advised and recognizes that the Issuer will assign all of its right, title, and interest in and to all
the Loan Agreement Payments required to be made pursuant to this Agreement, and the right to
receive and collect same, pursuant to the terms of the Indenture. The Depositary, the Trustee,
if appointed pursuant to the Indenture or the Bondholders to the extent provided in the Bond
Resolution and the Indenture, may enforce the obligations of the Company under this Agreement,
the Bond Resolution, and the Indenture in the manner provided in the Indenture, without the
necessity of making the Issuer a party.
(b) In the event of a default in the payment of any Loan Agreement Payment, or in the
performance of any agreement or covenant contained herein or in any Bond, any Bond Resolution,
the Security Agreement, the Lease Assignment, the Guaranty or the Indenture, such payment and
performance may be enforced by mandamus or by the appointment of a receiver in equity with
power to charge and collect Loan Agreement Payments and to apply such revenues in accordance
with this Agreement, the Bond, each Bond Resolution, and the Indenture.
Section 5.03. GENERAL PROVISIONS. (a) The terms of this Agreement may be
enforced as to one or more breaches either separately or cumulatively.
(b) No remedy conferred upon or reserved to the Issuer, the Trustee, or the
Bondholders in this Agreement is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be in addition to every
other remedy now or hereafter existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be deemed
expedient. In the event any provision contained in this Agreement should be breached by the
Company and thereafter duly waived, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach of this Agreement. No waiver by
either party of any breach by the other party of any of the provisions of this Agreement shall be
construed as a waiver of any subsequent breach, whether of the same or of a different provision
GrOKGI:"rOWNlrRIPLG•S: LOANAGRAM-1 I0VI00)1 15
of this Agreement.
(c) Headings of the Articles and Sections of this Agreement have been inserted for
convenience of reference only and in no way shall they affect the interpretation of any of the
provisions of this Agreement.
(d) This Agreement is made for the exclusive benefit of the Issuer, the Trustee, the
Bondholders, the Department and the Company, and their respective successors and assigns herein
permitted, and not for any other third party or parties; and nothing in this Agreement, expressed
or implied, is intended to confer upon any party or parties other than the Issuer, the Trustee, the
Bondholders, the Department and the Company, and their respective successors and assigns herein
permitted, any rights or remedies under or by reason of this Agreement.
(e) The validity, interpretations, and performance of this Agreement shall be governed
by the laws of the State of Texas.
Section 5.04. AMENDMENT OF AGREEMENT. No amendment, change, addition
to, or waiver of any of the provisions of this Agreement shall be binding upon the parties hereto
unless in writing signed by the Approving Officer and the President of the Board of Directors and
consented to in writing by the holders of a majority of the outstanding principal balance of the
Bond. In addition to amendments for any other purpose, it is specifically understood that this
Agreement may be amended, subject to obtaining the foregoing approval, to change the definition
and scope of the term "Project", as used herein, so as to permit the acquisition, construction,
equipping, and furnishing of other or additional facilities, at the same or other locations, or
improvements related to the Project, pursuant to this Agreement and in accordance with applicable
laws, with the same effect as if they had been described originally in Exhibit A hereto.
Notwithstanding any of the foregoing, it is covenanted and agreed, for the benefit of the Bond-
holders and the Trustee, that (without the concurrence of all of the Bondholders and the Trustee)
the provisions of this Agreement shall not be amended, changed, added to, or waived in any way
which would relieve or abrogate the obligations of the Company to make or pay, or cause to be
made, or paid, when due, all Loan Agreement Payments with respect to any then outstanding
Bond in the manner and under the terms and conditions provided herein and in any Bond Resolu-
tion or the Indenture, or which would materially change or affect Sections 4.04, 4.05 or 4.06.
ARTICLE VI
SPECIAL COVENANTS
Section 6.01. CORPORATE EXISTENCE. (a) Tile Company agrees that throughout
the term of this Agreement it shall maintain its corporate existence and shall not dispose of all or
substantially all of its assets. In the event the Company shall consolidate with or merge into
another entity or permit one or more entities to consolidate with or merge into it, any surviving,
resulting or transferee entity shall be qualified to do business in the State and shall assume in
GEORGErOWN/rRIPLE•S: LOANAGR.DR4 10/10/1)1 16
writing or by operation of law all of the obligations of the Company under this Loan Agreement.
(b) The Company covenants that it is and, throughout the term of this Agreement, unless
relieved of liability pursuant to paragraph (a) above, that it will continue to be a corporation
organized under the laws of the State of Michigan and authorized to do business in the State of
Texas.
Section 6.02. ASSIGNMENT, LEASING, EQUIPMENT. (a) The Company may lease
any portion of the Project with the prior written consent of the Depositary provided that the
Company delivers to the Issuer and the Depositary in connection with any such leasing an opinion
of Bond Counsel that subsequent to the execution of the lease, interest on the Bond will remain
wholly excludable from gross income of the Bondholders for federal income tax purposes. No
leasing shall relieve the Company from primary liability for any of its obligations hereunder, and
in the event of any such leasing the Company shall continue to remain primarily liable for the
payment of Loan Agreement Payments and for performance and observance of the other
agreements herein on its part to be performed and observed.
Subject to the prior written consent of the Depositary, this Agreement may be assigned,
in whole or in part, and the Project may be sold, transferred or conveyed as a whole or in part,
by the Company without the necessity of obtaining the consent of the Issuer subject, however, to
the following conditions:
(i) No assignment, sale, transfer or conveyance shall relieve the Company from
primary liability for any of its obligations hereunder, and if any such assignment occurs, the
Company shall continue to remain primarily liable to make the payments required to be made by
the Company hereunder and for performance and observance of the other agreements on its part
herein provided to be performed and observed by it;
(ii) The assignee or purchaser shall assume the obligations of the Company
hereunder to the extent of the interest assigned, sold, transferred or conveyed;
(iii) The Company shall, within thirty (30) days after the delivery thereof, furnish
or cause to be furnished to the Issuer and the Depositary a true and complete copy of each such
assignment or sale agreement, as the case may be, together with (A) any instrument of
assumption, and (B) an opinion of Bond Counsel that such assignment or sale agreement will not
adversely affect the exclusion of interest on the Bond from gross income of the Bondholders for
federal income tax purposes; and
(iv) The assignee, transferee or purchaser shall continue to use the Project for
purposes permitted under the Act for the term of this Agreement.
(b) Except as provided in this Section, machinery and equipment financed with the
proceeds of the Bond shall remain at the Project Location. The Company may remove any
GEOKGETOWNrrRIPLE•S: LOANAGRAK4 10/10/93 17
machinery or equipment comprising a part of the Project upon substituting therefor property of
like nature having a fair market value of not less than the removed property, provided that such
substitution shall not impair the exclusion of interest on the Bond from gross income for federal
income tax purposes. Any such substituted machinery and equipment shall be identified in writing
by the Company to the Depositary and shall become a part of the Project and be included under
the terms of this Agreement. The Company may, with the consent of the Depositary, sell any
machinery and equipment comprising a portion of the Project without substitution therefor so long
as (i) the removal of such machinery and equipment from the Project will not, in the opinion of
the Depositary, adversely alter the scope, character or operation of the Project and (ii), in the
opinion of Bond Counsel, such removal will not impair the exclusion of interest on the Bond from
gross income for federal income tax purposes. Unless otherwise consented to by the Depositary,
the Company shall pay into the Debt Service Fund the proceeds from such sales without
substitution when such proceeds exceed 5 % of the original principal amount of the Bond, and such
proceeds shall be treated as surplus Construction Fund moneys and applied as provided in Section
7 (o) of the Initial Bond Resolution hereof.
Section 6.03. FINANCIAL AND OTHER REPORTS. The Company shall furnish the
Bondholder, the Depositary and Trustee, if appointed, with all financial statements and other
information required by the Guaranty Agreement.
Section 6.04. TERM OF AGREEMENT. The term of this Agreement shall be from
the date hereof until all payments required to be made by the Company pursuant hereto shall have
been made, provided, however, that the provisions of Sections 3.06, 4.05 and 4.06 shall survive
the termination of this Agreement and shall continue in effect regardless of the termination of this
Agreement.
Section 6.05. TERMINATION. This Agreement may be terminated by mutual
agreement at any time prior to the delivery of and payment for the Bond. However, if the Bond
has been issued and delivered, the term of this Agreement shall be as set forth in Section 6.04,
and this Agreement may not and shall not be sooner terminated by either or both parties hereto.
Section 6.06. NOTICES. Any notice, request, or other communication under this
Agreement shall be given in writing and shall be deemed to have been given by either party to the
other party upon either of the following dates:
(a) Three business days after the date of the mailing thereof, as shown by the post
office receipt, if mailed to the other party hereto by registered or certified mail at the applicable
address as follows:
Georgetown Industrial Development Corporation
c/o Georgetown Industrial Foundation
P.O. Box 114
Georgetown, TX 78627
GEOKG1-rOWNr1'a1P1i:-S LOANAO(DRA 10/10/95 18
Triple S Plastics, Inc.
14320 Portage Road
P.O. Box E
Vicksburg, MI 49097-0905
or the latest address specified by such other party by written notice given in accordance with this
Section 6.06; or
(b) The date of the receipt thereof by such other party if not so mailed by registered
or certified mail.
Any notice, request, or other communication made or given under this Agreement shall
be given to the Depositary by registered or certified mail at the applicable address as follows:
First of America Bank - Michigan, National Association
Attention: Commercial Loan Department
108 East Michigan Avenue
Kalamazoo, MI 49007
or the latest address specified by said Depositary by written notice given in accordance with this
Section 6.06, and to the Department at the address specified in Article 13 of the Indenture.
Section 6.07. SEVERABILITY. If any clause, provision, or Section of this Agreement
should be held illegal or invalid by any court of competent jurisdiction, the invalidity of such
clause, provision, or Section shall not affect any of the remaining clauses, provisions, or Sections
hereof and this Agreement shall be construed and enforced as if such illegal or invalid clause,
provision, or Section had not been contained herein. In case any agreement or obligation
contained in this Agreement should be held to be in violation of law, then such agreement or
obligation shall be deemed to be the agreement or obligation of the Issuer and the Company, as
the case may be, to the full extent permitted by law.
Section 6.08. APPOINTMENT OF TRUSTEE. In the event a Trustee is appointed as
provided in the Indenture, any reference in this Loan Agreement to Depositary shall mean the
Trustee and any reference to Trustee shall be inoperative until such time, if ever, that a Trustee
is appointed in accordance with the Indenture.
Section 6.09. GOVERNING LAW. This Loan Agreement shall be governed exclusively
by and construed in accordance with the applicable laws of the State of Texas.
GEORGCTOWN/PRIPLE•S: LOANAGR.DWI 10/10/91 19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
in multiple counterparts, each of which shall be considered an original for all purposes, as of the
day and year first set out above.
GEORGETOWN INDUSTRIAL DEVELOPMENT
CORPORATION
ATTEST:
Secretary, Board of Directors
(SEAL)
GEORGEmwwrmPLE•S: LOAN AGR.DR4 10/10/95 20
LIM
President, Board of Directors
TRIPLE S PLASTICS, INC.
By
Title: Chief Financial Officer,
Frederic A. Flodin
EXHIBIT A
Project Description
The Project includes all Cost related to establishing a custom plastic injection molding
facility located in the Georgetown Industrial Park including the purchase of new machinery
(including molding machines), equipment, furniture and fixtures.
GEORGETOWNfM1PLC•S: LOANAGR.IA4 10/1005 A- l
AMENDED AND RESTATED
BYLAWS OF
GEORGETOWN INDUSTRIAL DEVELOPMENT CORPORATION
AUGUST 29, 1995
ARTICLE I
POWERS AND PURPOSES
Section 1. Financing of Industrial Development Projects. In order to implement the
purposes for which the Corporation was formed as set forth in the Articles of Incorporation, the
Corporation shall issue obligations to finance all or part of the cost of one or more "projects" as
defined in the Development Corporation Act of 1979, 1979 Tex. Gen. Laws, Chapter 700,
Section 1, at 1675 (the "Act").
Section 2. Conditions Precedent to Issuance of Obligations. The Corporation shall
not issue any obligations unless:
1) The City Council (the "Governing Body") of the City of Georgetown (the "Unit") has
approved by written resolution any agreement to issue obligations adopted by the Corporation,
which agreement and resolution shall set out the amount and purpose of the obligations. No issue
of obligations, including refunding bonds, shall be sold and delivered by the Corporation without
a written resolution of the Governing Body adopted no more than sixty (60) days prior to the date
of sale of the obligations specifically approving the resolution of the Corporation providing for
the issuance of the obligations; and
2) The Texas Department of Commerce, or any successor thereto, or the executive
director thereof, has approved the contents of any lease, sale or loan agreement made by the
Corporation under the Act in connection with the issuance of obligations.
Section 3. Books and Records; Approval of Programs and Financial Statements. The
Corporation shall keep correct and complete books and records of account and shall also keep
minutes of the proceedings of its Board of Directors and committees having any of the authority
of the Board of Directors. All books and records of the Corporation shall be kept at the principal
office of the Corporation where they shall be available to the public in accordance with the Open
Records Act, Chapter 552, Government Code, as amended. The Unit shall be entitled to approve
all programs and expenditures of the Corporation and annually review any financial statements
of the Corporation.
Section 4. Nonprofit Corporation. The Corporation shall be a nonprofit corporation,
and no part of its net earnings remaining after payment of its expenses shall inure to the benefit
of any individual, firm or corporation, except that in the event the Board of Directors of the
Corporation (the "Board of Directors") shall determine that sufficient provision has been made
for the full payment of the expenses, bonds and other obligations of the Corporation issued to
G1!0R ;1!TOWN/PR1P! H.J: M AW32.!(x ernmN
EXHIBIT B
finance all or part of the cost of a project, then any net earnings of the Corporation thereafter
accruing with respect to said project shall be paid to the Unit.
ARTICLE H
BOARD OF DIRECTORS
Section 1. Powers, Number and Term of Office. The property and affairs of the
Corporation shall be managed and controlled by the Board of Directors and, subject to the
restrictions imposed by law, the Articles of Incorporation and these Bylaws, the Board of
Directors shall exercise all of the powers of the Corporation.
The Board of Directors shall consist of five (5) directors, each of whom shall be appointed
by the Governing Body.
The directors constituting the first Board of Directors shall be those directors named in the
Articles of Incorporation, each of whom shall serve for six (6) years or until his or her successor
is appointed as hereinafter provided. Subsequent directors shall hold office for a term of six (6)
years or until their successors are appointed as hereinafter provided.
Any director may be removed from office, by the Governing Body, for cause or at will.
Section 2. Meetings of Directors. The directors may hold their meetings at such place
or places in the State of Texas, as the Board of Directors may from time to time determine;
provided, however, in the absence of any such determination by the Board of Directors, the
meetings shall be held at the registered office of the Corporation in the State of Texas. Every
regular or special meeting of the Board of Directors shall be open to the public, except as
otherwise permitted by the Constitution of the State of Texas or the Open Meetings Act, Chapter
551, Government Code, as amended.
Section 3. Regular Meetings. Regular Meetings of the Board of Directors shall be
held at such times and places as shall be designated, from time to time, by resolution of the Board
of Directors and with such notice as may be required from time to time by law.
Section 4. Special Meetings. Special Meetings of the Board of Directors shall be held
whenever called by the president, by the secretary, by a majority of the directors for the time
being in office or upon advice of or request by the Governing Body and with such notice as may
be required from time to time by law.
The secretary shall give or cause to be given notice to each director of each Special
Meeting in person, or by mail, telephone or telegraph, at least one (1) day before the meeting.
At any meeting at which every director shall be present, even though without any notice, any
matter pertaining to the purpose of the Corporation may be considered and acted upon.
ceoaaeTOWNmWL8•s: avuws2.Inc en9/95
Section 5. Public Notice. Written notice of the date, hour, place and subject of each
meeting of the Board of Directors shall be posted at such times and in such places as notice of
each meeting of the Governing Body of the Unit is posted, all as prescribed by the Open Meetings
Act, Chapter 551, Government Code, as amended.
Section 6. Quorum. A majority of the directors shall constitute a quorum for the
consideration of matters pertaining to the purposes of the Corporation. The act of a majority of
the directors present at a meeting at which a quorum is in attendance shall constitute the act of the
Board of Directors, unless the act of a greater number is required by law.
Section 7. Conduct of Business. At the meetings of the Board of Directors, matters
pertaining to the purposes of the Corporation shall be considered in such order as from time to
time the Board of Directors may determine.
At all meetings of the Board of Directors, the president shall preside, and in the absence
of the president, the vice president shall exercise the powers of the president.
The secretary of the Corporation shall act as secretary of all meetings of the Board of
Directors, but in the absence of the secretary, the presiding officer may appoint any person to act
as secretary of the meeting.
Section 8. Public Hearings. Public hearings required under the Internal Revenue
Code of 1986, as amended, may be called and conducted by any officer or director of the
Corporation, and such officer or director may establish the date, place and time of the hearing
and may give notice of the hearing.
Section 9. Executive Committee. The Board of Directors, by resolution passed by a
majority of the directors in office, may designate two or more directors to constitute an executive
committee, which committee, to the extent provided in such resolution, shall have and may
exercise all of the authority of the Board of Directors in the management of the Corporation,
except where action of the Board of Directors is specified by law. The executive committee shall
act in the manner provided in such resolution. The executive committee so designated shall keep
regular minutes of the transactions of its meetings and shall cause such minutes to be recorded in
books kept for that purpose in the office of the Corporation, and shall report the same to the
Board of Directors from time to time.
Section 10. Compensation of Directors. Directors as such shall not receive any salary
or compensation for their services, except that they shall be reimbursed for their actual expenses
incurred in the performance of their duties hereunder.
GEORcerowwMUPLe-s: BYEAWSz.tnc envrvs
ARTICLE III
OFFICERS
Section 1. Titles and Term of Office. The officers of the Corporation shall be a
president, a vice president, a secretary and a treasurer, and such other officers as the Board of
Directors may from time to time elect or appoint. One person may hold more than one office,
except that the president shall not hold the office of secretary. Terms of office shall not exceed
three years.
All officers shall be subject to removal from office, with or without cause, at any time by
a vote of a majority of the entire Board of Directors.
A vacancy in the office of any officer shall be filled by a vote of a majority of the
directors.
Section 2. Powers and Duties of the President. The president shall be the chief
executive officer of the Corporation and, subject to the Board of Directors, he shall be in general
charge of the properties and affairs of the Corporation; he shall preside at all meetings of the
Board of Directors; in furtherance of the purposes of this Corporation, he may sign and execute
all contracts, conveyances, franchises, bonds, deeds, assignments, mortgages, notes and other
instruments in the name of the Corporation.
Section 3. Vice President. The vice president shall have such powers and duties as
may be assigned to him by the Board of Directors and shall exercise the powers of the president
during that officer's absence or inability to act. Any action taken by the vice president in the
performance of the duties of the president shall be conclusive evidence of the absence or inability
to act of the president at the time such action was taken.
Section 4. Treasurer. The treasurer shall have custody of all the funds and securities
of the Corporation which come into his hands. When necessary or proper, he may endorse, on
behalf of the Corporation, for collection, checks, notes and other obligations and shall deposit the
same to the credit of the Corporation in such bank or banks or depositories as shall be designated
in the manner prescribed by the Board of Directors; he may sign all receipts and vouchers for
payment made to the Corporation, either alone or jointly with such other officer as is designated
by the Board of Directors; whenever required by the Board of Directors, he shall render a
statement of his cash account; he shall enter or cause to be entered regularly in the books of the
Corporation to be kept by him for that purpose full and accurate accounts of all monies received
and paid out on account of the Corporation; he shall perform all acts incident to the position of
treasurer subject to the control of the Board of Directors; he shall, if required by the Board of
Directors, give such bond for the faithful discharge of his duties in such form as the Board of
Directors may require.
GEORGETOWNrrWLes: BYIAWS2.toc 8129/95
Section 5. Secretary. The secretary shall keep the minutes of all meetings of the Board
of Directors in books provided for that purpose; he shall attend to the giving and serving of all
notices; in furtherance of the purposes of this Corporation, he may sign with the president in the
name of the Corporation, and/or attest the signature thereto, all contracts, conveyances,
franchises, - bonds, deeds, assignments, mortgages, notes and other instruments of the Corporation;
he shall have charge of the corporate. books, records, documents and instruments, except the
books of account and financial records and securities of which the treasurer shall have custody and
charge, and such other books and papers as the Board of Directors may direct, all of which shall
at all reasonable times be open to inspection upon application at the office of the Corporation
during business hours, and he shall in general perform all duties incident to the office of secretary
subject to the control of the Board of Directors.
Section 6. Compensation. Officers as such shall not receive any salary or
compensation for their services, except that they shall be reimbursed for their actual expenses
incurred in the performance of their duties hereunder.
ARTICLE IV
PROVISIONS REGARDING ARTICLES OF INCORPORATION
AND BYLAWS
Section 1. Effective Date. These Bylaws shall become effective only upon the
occurrence of the following events:
(1) the approval of these Bylaws by the Governing Body; and
(2) the adoption of these Bylaws by the Board of Directors.
Section 2. Amendments to Articles of Incorporation and Bylaws. The Articles of
Incorporation may at any time and from time to time be amended, provided that the Board of
Directors files with the Governing Body a written application requesting that the Governing Body
approve such amendment to the Articles 'of Incorporation, specifying in such application the
amendment or amendments proposed to be made. If the Governing Body by appropriate
resolution finds and determines that it is advisable that the proposed amendment be made,
authorizes the same to be made and approves the form of the proposed amendment, the Board of
Directors shall proceed to amend the Articles as provided in the Act.
The Articles of Incorporation may also be amended at any time by the Governing Body
at its sole discretion by adopting an amendment to the Articles of Incorporation of the Corporation
by resolution of the Governing Body and delivering the Articles of Amendment to the Secretary
of State as provided in the Act.
These Bylaws may be amended by majority vote of the Board of Directors.
GBORGETOWNrrWLe-s: BYEAWS . DC OMros
Section 3. Interpretation of Bylaws. These Bylaws and all the terms and provisions
hereof shall be liberally construed to effectuate the purposes set forth herein. If any word,
phrase, clause, sentence, paragraph, section or other part of these Bylaws, or the application
thereof to any person or circumstance, shall ever be held to be invalid or unconstitutional by any
court of competent jurisdiction, the remainder of these Bylaws and the application of such word,
phrase, clause, sentence, paragraph, section or other part of these Bylaws to any other person or
circumstance shall not be affected thereby.
ARTICLE V
GENERAL PROVISIONS
Section 1. Principal Office. The principal office of the Corporation shall be located
in Georgetown, Texas.
The Corporation shall have and continuously maintain in the State of Texas (the "State")
a registered office, and a registered agent whose business office is identical with such registered
office, as required by the Act. The registered office may be, but need not be, identical with the
principal office in the State, and the address of the registered office may be changed from time
to time by the Board of Directors, pursuant to the requirements of the Act.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be as determined by
the Board of Directors.
Section 3. Seal. The seal of the Corporation shall be as determined by the Board of
Directors.
Section 4. Notice to Board of Directors and Waiver of Notice. Whenever any notice
whatsoever is required to be given to a director under the provisions of the Act, the Articles of
Incorporation or these Bylaws, said notice shall be deemed to be sufficient if given by depositing
the same in a post office box in a sealed postpaid wrapper addressed to the person entitled thereto
at his post office address, as it appears on the books of the Corporation, and such notice shall be
deemed to have been given on the day of such mailing. Attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business on the grounds that the meeting
is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any
Regular or Special Meeting of the Board of Directors need to be specified in the notice given to
a director or waiver of notice of such meeting, unless required by the Board of Directors. A
waiver of notice in writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Section 5. Resignations. Any director or officer may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified therein, or, if no
time be specified, at the time of its receipt by the president or secretary. The acceptance of a
ceoaceTowwrrWLe-s: evuwsx.inc eixvros
resignation shall not be necessary to make it effective, unless expressly so provided in the
resignation.
Section 6. Approval or Advice and Consent of the Governing Body. To the extent that
these Bylaws refer to any approval by the Unit or refer to advice and consent by the Unit, such
advice and consent shall be evidenced by a certified copy of a resolution, order or motion duly
adopted by the Governing Body.
Section 7. Organizational Control. The Unit may, at its sole discretion, and at any
time, alter or change the structure, organization, programs or activities of the Corporation
(including the power to terminate the Corporation), subject to any limitation on the impairment
of contracts entered into by such Corporation.
Section 8. Dissolution of the Corporation. Upon dissolution of the Corporation, title
to or other interests in any real or personal property owned by the Corporation at such time shall
vest in the Unit.
CP.ORCETOWNrrRIPLE-S: BYLAWS2.IDC MW/95
Council meeting October 24. 1995 Item No.
AGENDA ITEM COVER SHEET
F
SUBJECT: Consideration of a Preliminary Plat of 15.182 acres in the William Addison Survey,
and a Resubdivision of Stonehedge Subdivision, Section Three, Lot 1, Block N; to be known as
Churchill Farms, Secdon Four; and Variances to the Subdivision Regulations
ITEM ST-TIN The subject Preliminary Plat is consistent with the Concept Plan
approved by the City Council on August 22, 1995. This plat includes one (1) commercial lot,
64 single family residential lots, and one (1) private park lot. The following variances are
requested as part of this plat: 1) to Section 34020 C. because the block length between the Inner
Loop Road and Reinhardt Boulevard does not achieve the required minimum of 1,300 feet.
These streets were built in the mid-1980s when the first sections of the subdivision were
developed. 2) To Section 34020 F.4. to allow a 15 foot front yard setback on the secondary
frontage of selected corner lots. The subject lots conform to the conditions typically required
for approval of this variance so that a consistent frontage can be achieved along the street. 3)
To Section 37030-A to require only a fence within the Type E bufferyard required along SH29
and the Inner Loop Road where the single family lots are adjacent to these streets. Given the
potential long term maintenance problem that may result from requiring landscape plantings, staff
recommends that the Subdivision Regulations be revised during the next regular review to be
consistent with the recommended variance.
SPECHAL CONSIDERATIONS: None.
FLNANCIAL IMPACT: None.
CONSMENTS: At their regular meeting of September 5, 1995, the Planning and Zoning
Commission voted 5-0 to recommend approval of the Preliminary Plat of Churchill Farms,
Section Four, provided the Technical Issues are addressed prior to City Council consideration,
and approval of the requested variances to Section 34020 C. regarding the block length between
the Inner Loop Road and Reinhardt Boulevard; to Section 34020 F.4., thereby allowing 15 foot
secondary front yards on the specified lots; and to Table 37030-A, thereby requiring only a fence
in the Type E bufferyard, after making the required findings of fact.
The attached plat has been revised to address the Technical Issues as required by the
Commission.
RECOMMENDED MOTION: If this item is approved by the City Council, it will be
consistent with the Planning and Zoning Commission's recommendation, unless stated otherwise.
A TTA CHTiM INTS : Staff report and revised plat.
Submitted Bv:
Edward J. &ry, AICP - Dir
Division df Development Se
Hildy L. k0ingma, AICP
Chief Planner
PRELIMINARY PLAT OF 15.182 ACRES IN THE WILLIAM ADDISON SURVEY,
AND A RESUBDIVISION OF STONEHEDGE SUBDIVISION, SECTION THREE,
LOT 1, BLOCK N; TO BE KNOWN AS CHURCHILL FARMS, SECTION FOUR;
AND VARIANCES TO THE SUBDIVISION REGULATIONS
OWNER/APPLICANT:
Mr. Robert Wunsch
Churchill Farms, Ltd.
30444 Berry Creek Drive
Georgetown, Texas 78628
930-9995
AGENT: Mr. Charles Wirtanen, P.E.
CWC
30444 Berry Creek Drive
Georgetown, Texas 78628
930-9995 FAX: 930-9317
REQUEST: Preliminary Plat of 15.182 acres in the William Addison
Survey and a Resubdivision of Stonehedge Subdivision, Section
Three, Lot 1, Block N; to be known as Churchill Farms, Section
Four as recorded in Volume 2349, Page 88 of the Official Deed
Records of Williamson County, Texas; and requested variances
to the Subdivision Regulations.
Location: Located on State Highway 29 East. SEE EXHIBIT A
Existing Site: Undeveloped land.
Existing Zoning: RS, Residential Single Family and C-1, Local Commercial
Proposed Use: One (1) commercial lot, 64 single family residential lots, and
one (1) private park lot.
Surrounding Uses North: Single family residences (out of City)
and Zoning: South: Stonehedge Subdivision (aka Churchill Farms) (RS)
East: Indian Creek Subdivision (out of City)
West: Remainder of Churchill Farms Concept Plan (RS and
C-1)
Preliminary Plat - Churchill Farms, Section Four
PP-95-04 / File:CHURCHILL.PP
CM:HK
September 15, 1995
Page 1
Century Plan: The Century Plan Development Plan designates this development as
Intensity Level 5. The proposed development can be accommodated
within this assigned intensity. SEE EXHIBIT B
Notification: The notification requirements have been completed.
HISTORY: A Concept Plan for Churchill Farms was approved by the City Council
on August 22, 1995. The entire Churchill Farms area was annexed into
the City effective on August 9, 1995. The area is in the process of
being rezoned subsequent to the annexation. A first reading of the
rezoning for the area within the subject Preliminary Plat was approved
by City Council on August 22, 1995. That rezoning designates Lot 40,
Block A, as C-1, Local Commercial, with the remainder of the
subdivision RS, Residential Single Family. The second reading of the
rezoning ordinance will be held until the final plat for this subdivision is
recorded.
ANALYSIS: The subject Preliminary Plat is consistent with the approved Concept
Plan. Several variances to the design standards are requested and there
are technical issues that remain to be addressed.
VARIANCES: Section 34020 C. Block Length
Blocks along arterial streets are required to be a minimum of 1,300 feet
in length. The block length from the Inner Loop Road to Reinhardt
Boulevard is 880 feet. These two (2) streets were built in the mid-
1980s when Sections One, Two, and Three were developed. Therefore,
it is not possible to revise the plat to conform to the standard.
Section 34020 FA Front Yard Setbacks
This standard requires a 25 foot front yard setback on both frontages of
a corner lot. The applicant requests a variance to allow specified lots to
have a 15 foot front yard setback on the secondary frontage. This
request applies to those corner lots that are adjacent to another corner
lot, as well as to the corner lots that stand alone. The subject lots
include: Block A, Lot 1 and Block C, Lot 1, for their frontage on
Reinhardt Boulevard; Block A, Lots 27, 28, 32, 33, and 39, for their
frontage along Stonehedge Boulevard; and Block B, Lots 1, 9, and 10,
for their frontage along Del Mar Drive. SEE EXHIBIT C Staff
typically will recommend approval of this variance when a continuous,
consistent frontage can be achieved along the street. Further, approval
of this variance has typically required a plat note stating that driveway
Preliminary Plat - Churchill Farms, Section Four
PP-95-04 / File:CHURCHILL.PP
CW HK
September 15, 1995
Page 2
access must be from the frontage with the 25 foot front yard. While the
15 foot frontage has not yet been indicated on several of the subject
lots, the plat note has been provided.
Table 37030-A Bufferyard Standards
A Type E bufferyard is required when single family or two (2) family
residential development is proposed adjacent to an arterial street. In
this case, the Type E bufferyard is required along SH29 and the Inner
Loop Road. This bufferyard consists of landscape plantings and a six
(6) foot privacy fence. As noted in previous cases, this standard creates
a potential long term maintenance concern when required in this
situation. The particular concern relates to where the landscape
material should be located, on the residential lot or within the right-of-
way, and who should be required to maintain it. If located in the right-
of-way, long term maintenance will be problematic. Landscaping
would be permitted in either State or local right-of-way, with some
restrictions. However, a homeowners association would likely have to
be created and maintained to maintain the plantings. This is not a
guarantee that maintenance will occur over the long term, however. If
the required landscape plantings are located on the residential lot, the
purpose of requiring the plantings as a bufferyard may not be served.
Therefore, staff recommends that when the Type E bufferyard is
required in this type of a situation, only the fence should be provided.
This will be recommended as a revision to the Subdivision Regulations
during the next regular review of the ordinance.
After listening to the testimony presented at the Planning and Zoning
Commission meeting, and reading the documentation provided by the
applicant and the staff's recommendation, the Commission makes the
following findings of fact as required by Section 60070.B of the
Subdivision Regulations:
"In granting approval of a request for variance the Commission shall
make findings that:
1. The public convenience and welfare will be substantially served;
and
2. The appropriate use of surrounding property will not be
substantially or permanently impaired or diminished; and
3. The applicant has not created the hardship from which relief is
sought; and
Preliminary Plat - Churchill Farms, Section Four
PP-95-04 / File: CHURCHILL.PP
CM: HK
September 15, 1995
Page 3
4. The variance will not confer upon the applicant a special right or
privilege not commonly shared or available to the owners of
similar and surrounding property; and
5. The hardship from which relief is sought is not solely of an
economic nature; and
6. The variance is not contrary to the public interest; and
7. Due to special conditions, the literal enforcement of the
ordinance would result in an unnecessary hardship; and
8. In granting the variance the spirit of the ordinance is observed
and substantial justice is done."
The applicant's documentation for the requested variances is attached.
Technical Issues: The following Technical Issues must be addressed prior to consideration
of this plat by the City Council. If they are not addressed by
September 29, 1995, or if the applicant does not concur with a delay to
the City Council's consideration of the plat to allow the Technical
Issues to be addressed, the plat will be forwarded to the Council with a
recommendation for denial.
1. Show all existing and proposed electric utility improvements.
2. In order to comply with the standard established by Section 34020
C. L , Lot 8, Block C, requires an additional ten (10) feet in its side
setback on the north property line. Given the setback shown on the
south property line, this results in a 20 foot side setback on the north
property line.
3. If the requested variance to Section 34020 F.4. is approved, revise
the secondary front yards on the following lots to 15 feet: Block A,
Lots 15 27 and 28; Block C, Lot 1.
4. Add the asterisks to the following lots to provide reference to the
plat note: Block A, Lots 27, 28, 32 and 33; Block B, Lot 16.
5. Revise plat note #6 because this subdivision is now within the City
limits.
6. Revise plat note #16 to indicate that the bufferyard is required for
single family lots adjacent to SH29 and the Inner Loop. This change
will eliminate any future misunderstanding about whether these lots face
the arterials.
7. Revise the subtitle to be consistent with the Final Plat on a separate
agenda item.
8. Add a plat note stating that access to Lots 1, 9, and 10 must be
from the frontage with a 25 foot setback, and add an asterisk to Lots 9
Preliminary Plat - Churchill Farms, Section Four
PP-95-04 / File:CHURCHILL.PP
CM:HK
September 15, 1995
Page 4
and 10 to provide reference to the plat note.
STAFF RECOMMENDATION:
Approval of the Preliminary Plat of Churchill Farms, Section Four,
provided the Technical Issues are addressed prior to City Council
consideration, and approval of the requested variances to Section 34020
C. regarding the block length between the Inner Loop Road and
Reinhardt Boulevard; to Section 34020 F.4. , thereby allowing 15 foot
secondary front yards on the specified lots; and to Table 37030-A,
thereby requiring only a fence in the Type E bufferyard, after making
the required findings of fact.
P & Z ACTION: At their regular meeting of September 5, 1995, the Planning and Zoning
Commission voted 5-0 to recommend approval of the Preliminary Plat
of Churchill Farms, Section Four, provided the Technical Issues are
addressed prior to City Council consideration, and approval of the
requested variances to Section 34020 C. regarding the block length
between the Inner Loop Road and Reinhardt Boulevard; to Section
34020 FA., thereby allowing 15 foot secondary front yards on the
specified lots; and to Table 37030-A, thereby requiring only a fence in
the Type E bufferyard, after making the required findings of fact.
Preliminary Plat - Churchill Farms, Section Four
PP-95-04 / File:CHURCHILL.PP
CM:HK
September 15, 1995
Page S
EXHIBIT A
CHURCHILL FARMS
SECTION FOUR
SH 29
...... ....
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...........
.............
-J
..............
X-X
. . .. . . . . . ..
- - ----_
.. .........
........ .... . IL L
. .... .......
.......... ......
...........
...... ...........
. . . . . . . . . . .
..............
................
.. . ... ...............
........ .. .,.*-::.:...F .........
...............
x
........... . .. ....... .. ....
..................
.. ...... .. ......
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.... ..........
........ If
MATCH LIB
I f , 11
If
If
If
If
EXHIBIT B
DETERMINATION OF PERMITTED DEVELOPMENT
GIVEN A MIXED LAND USE PROPOSAL
1. 'DATE': 8-10-95
'PROJECT NAME': Churchill Farms Section Four
Preliminary Plat
2. 'GIVEN': acres of Intensity Level 1
acres of Intensity Level 2
acres of Intensity Level 3
acres of Intensity Level 4
20.92 acres of Intensity Level 5
acres of Intensity Level 6
20.92 TOTAL ACRES
3. ALLOWABLE DEMAND:
INTENSITY WATER WASTEWATER
TRANSPORTATION
LEVEL Peak GPD Average GPO
Peak Trip Ends
1 0 0
0
2 0 0
0
3 0 0
0
4 0 0
0
5 229,283 66,944
3,661
6 0 0
0
4. TOTAL ALLOWABLE DEMAND:
Maximum GPD Water Capacity:
229,283
Maximum GPD Wastewater Capacity:
66,944
Maximum Trip Ends:
3,661
5. EFFECTIVE ALLOWABLE SYSTEM INTENSITIES:
GPD/Acre Water:
10,960
GPD/Acre Wastewater:
3,200
Trip Ends/Acre Traffic:
175
6. PERMITTED DEVELOPMENT BASED ON GIVEN MIX OF LAND USES:
(b)
(c)
(d)
(e)
(f)
(a) TOTAL ALLOWABLE DEMAND (1)
POTENTIAL UNITS BY UTILITY
MAXIMUM
PER DEV
DEVELOPMENT
LAND USES I -ACRES- WATER
WASTEWATEF TRANSP I
WATER WASTEWATEF
TRANSP I
UNITS I
REGS I
ALLOWED/UNIT (2)
----------------------------------I-------------------------------------------------------------------------I
Detached SF I
I
------------------------------------------------I
-------------------I
I
I
-------------I -
I
---------------
Large Lot I 0
0
0 1
0
0
0 1
0 I
0 I
0 housing units
Average Lot I 17.43 191,022
55,773
3.050 I
191 223
3,443 I
191 I
127 I
127 housing units
Zero Lot Line I 0
0
0 I
0
0
0 I
0 I
0 I
0 housing units
Attached SF I 0
0
0 I
0
0
0 I
0 I
0 I
0 housing units
Multifamily I 0
0
0 I
0
0
0 I
0 I
(2) I
(2) housing units
Mobile Home I 0
0
0 1
0
0
0 I
0 I
I
0 housing units
Lodging I 0
0
0 I
0
0
0 I
0 I
I
0 rooms
Institutional I 1.28 14,029
4,096
224 I
41
45
266 I
40,900 I
I
40,900 square feet
Church I
I
I
I
I
-with day care I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
-w/o day care I 0
0
0 I
0
0
0 I
0 I
I
0 square feet
Medical Office I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
General Office I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
Retail, Mixed I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
Retail, Restaurant I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
Retail, Store I 2.22 24,320
7,101
388 I
75
81
81 I
74,832 I
74,832 square feet
Employment Centers I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
Warehouse I 0
0
0 1
0
0
0 I
0 I
I
0 square feet
Mini -Warehouse I 0
0
0 I
0
0
0 I
0 I
I
0 square feet
Greenbelt I
I
I
I
I
--------------------- - I --------------------- -----------------
Sub-Total 20.93
--------------------------
--------- I
------- ------------------------------------------
(units in this section should
i-------------------
I
------------- I ------------------------------------
Road Right -of -Way
be multiplied by 1000)
TOTAL 20.93
IT w Cl TY 4,'4f! TS
FM
;,n, imm pr)w
j—
`e
00
Inii co,
17 6:
18
19
Q)
-160'1- 20 '10
c. ".lrd 9 F2 21
00 4',
J.O,- 29 61
9j 0 ;.
. - w
70 OD
no.
36
�K�pL •• .0,{.
3
ki Dmod'
41
IcQ Q 34
9. 7
PRELIMINARY PLAT NOTES: SS
I A 25 FT. 9L WILL BE DEDICATED ADJACENT TO ALL PROPERTY LINES
ADJACENT TO STRESS. SIDE BUILDING LINES TOTALLING 15 Fr. WFTIH A MINIMUM
OF 5 FT. WILL BE DEDICATED ADJACENT TO ALL NON -STREET SIDE PROPERTY
LINES. A 20 FT. REAR BUILDING LINE WILL BE DEDICATED.
2. ALL PROPOSED STREETS SHALL HAVE -%o FT. OF ROW AND BE CONSTRUCTED TO LOCAL
STREET STANDARDS.
3. THE 100 YR- FLOOD PLAIN WILL BE FULLY CONTAINED WITHIN DRAINAGE EASEMEN
TSJR PU9L C RjC?IT-OF-'NAYS.
4. THE PROVISIONS OF THE CENTURY PLAN APPLY. THIS PROPERTY HAS BEEN
CLASSIFIED AS INTENSITY LEVEL FIVE.
S. WATER AND SEWER TO BE PROVIDED BY THE CITY OF GEORGETOWN. ELECTRICITY
TO BE PROVIDED BY TU UTILMES. TELEPHONE TO BE
PROVIDED BY GTE. CABLE TV TO BE PROVIDED BY WILLIAMSON COUNTY CABLEVISION.
6. THIS SUBDIVISION IS LOCATED IN THE ETJ OF THE CITY OF ac)RcErom. TX.
7. MAXIMUM IMPERVIOUS COVER PER LOT IS 40%.
S. TOTAL ACREAGE 20.92 AC.
9. NO. OF LOTS 64 SFD, I PVT. PARX., 1 COMMERCIAL
-10. ACCESS TO SH 29 AND THE INNER LOOP FROM RESIDENTIAL LOTS IS PROHIBITED.
It. DRAINAGE STRUCTURES UNDER ALL STREET CROSSINGS SHALL PASS THE 100 YR. FLOOD
12. A 10 FT. PUE SMALL BE DEDICATED ALONG THE STREET FRONTAGE OF ALL LOTS.
1. XXESS To REI HARDT 9010, !S PROHIBITED FROM LOTS 1, ELK N LOT 1-4. BLK 8;
N
& 7, ELI' C
14 S:DEWALKS ARE REOL-IRED ON THE INNER LOOP, Sh 29, AND THE wES7 SIDE
OF RE INHARDt BLVD
15. ACCESS !0 STON(mrr)GL IJLVD. IS PROHIBITED FROM LOTS 39.33,32,28.27 [ILK A.
LOT 16, ELK D.
16. A l'!VE 'C 3UFFER`tARD IS REOUIRED ALONG THE REAR Of SINGLE FAMILY LOTS
FACING SH 29 AND THE INNER LOOP, . . I
I LOTS 8 6 9. OLOCK r SHAIL TAKE ACCESS rOOM A SHARED DRIVEWAY.
8" SS Fm Fm
IN �S T A T E H I G W A Y IN 0 2 9
80' R 0 W
I N75*29'16"F R.Rr.Al' 12* w 20, Ann, Qnw — 20' ADD'L ROW
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15' D
FDIC
25'
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0' N 7 30 OpPE 57.00' . *.i.
ro 91 11
bo co
3 a,• 'v PILAR GOMEZ
5 RF TIO
RUN G�*ECTi• 16 1.280 ACRE.
to
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CHARLES U KASH
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C.7 DAV:C SrARR
STONEIIEDGE SECTION THIREE IS
LOT 31, BLOCK i
LIFT ATI S ON S ATI
--- -- --- ---
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3
IA',! ;i- AREA
PRELIMINARY PLAN FOR
"*' L Variance Requested CHURCHILL FARMS. SECTION FOUR
-i
CWC
Charles Wirlanen, P.E.; Inc;.
'30444 I3erry C:rcek Drive
Georgetown, TX 78628
P1 is 5121,19 .30-9995
FAX: 5 11930-9317
August 21, 1995
Ms. Hildy Kingma
City of Georgetown
P.O. Box 409
Georgetown, TX 78626
Subject: Churchill Farms Section Four
Variance Request
Dear Ms. Kingma:
z2
L
This letter is to request a variance to Table 37030-B of the subdivision ordinance for the
referenced plat. The ordinance requires a Type E Buffer yard between the proposed
single family lots and S. H. 29 and the proposed Georgetown Inner Loop. We are
requesting that a six-foot privacy fence be allowed as the required buffer yard the fence
will effectively buffer the residential lots from the roadways. A vegetative buffer would
be impractical to maintain and eventually might become unattractive. We understand
that a similar variance has been granted in other single family subdivision cases.
1. In what manner will the public convenience and welfare be substantially served?
The intent of the ordinance will be maintained without introducing high
maintenance vegetative buffers with no practical method to provide maintenance
or irrigation.
2. Will appropriate use of the property be substantially or permanently impaired or
diminished in any manner? Provide reasons why you believe your answer is
supportable.
No, the aesthetic reasons for the variance will still be met.
3. What are the hardships involved? How were those hardships created? How are
those hardships different from those affecting the rest of the public faced with
enforcement of this same provision? Note that the Commission and Council
cannot approve a variance for which the hardship claimed is solely of an
economic nature.
Ms. Hildy Kingma
Page Two
August 21, 1995
The hardship creating the request for this variance is the impracticality of
maintaining vegetative buffers for built out single family subdivisions. A low
maintenance, six ft. high, opaque fence accomplishes the same goal.
4. If the requested variance, if approved, will it confer upon the applicant a special
right or privilege no commonly shared or available to the owners of similar and
surrounding property? Provide reasons why you believe your answer to be
supportable.
The proposed variance confers no special right or privilege since it results in the
same aesthetic result. Variances for this type of request have been granted
previously. Anyone proposing a condition equal, or superior to, that required by
ordinance should receive similar treatment.
5. How is the public interest affected?
There should be no effect on the public interest.
6. List the special conditions that affect this property and justify the approval of the
variance.
The proposed project has limited options available for proper maintenance of
vegetative buffers because it is entirely single family lots. This project has an
unusually large amount of frontage on arterials. An opaque fence provides an
appropriate buffer.
7. How will the spirit of the ordinance be observed if this request is granted.
The ordinance was intended to provide a buffer from arterial roadways for single
family lots. An opaque fence accomplishes that goal while providing a more
buffer that is more likely to be maintained.
8. How will substantial justice be done if this request is granted?
If this request is granted, the intent of the ordinance will be upheld because an
appropriate buffer will be provided.
Sincerely yours,
&44 A);W4WWM -OW
Charles Wirtanen, P.E.
W&O
Charles Wirtanen, P.E.. Inc.
"0444 I3cri—v Creek DrIVe
Georgeto.vtl, TX 78628
P11: 5 12/9 3 0-999>
F,,VN.: 5)11"930-9317
August 21, 1995 -
Ms. Hildy Kingma
City of Georgetown
P.O. Box 409
Georgetown, TX 78626
Subject: Churchill Farms Section Four
Variance Request
Dear Ms. Kingma:
This letter is to request a variance to Section 34020 C of the subdivision ordinance for
the referenced plat. The block length along SH 29 is required to be a minimum of 1300
ft. This subdivision uses existing street patterns which are in contradiction to the
ordinance requirement. The existing streets were constructed based on the previous
subdivision ordinance.
1. In what manner will the public convenience and welfare be substantially served?
In order to meet the ordinance requirement the existing street would have to be
closed. That is not practicable.
2. Will appropriate use of the property be substantially or pennanently impaired or
diminished in any manner? Provide reasons why you believe your answer is
supportable.
No, the existing street pattern is workable.
3. What are the hardships involved? How were those hardships created? How are
those hardships different from those affecting the rest of the public faced with
enforcement of this same provision? Note that the Commission and Council
cannot approve a variance for which the hardship claimed is solely of an
economic nature.
The hardship creating the request for this variance is the fact that the existing
streets were built prior to the current ordinance requirements. No new streets are
Ms. Hilly Kingma
Page Two
August 17, 1995
proposed which would be contrary to ordinance requirements.
4. If the requested variance, if approved, will it confer upon the applicant a special
right or privilege no commonly shared or available to the owners of similar and
surrounding property? Provide reasons why you believe your answer to be
supportable.
The proposed variance confers no special right or privilege since it merely
documents the existing street pattern.
5. How is the public interest affected?
There should be no effect on the public interest.
6. List the special conditions that affect this property and justify the approval of the
variance.
The streets were constructed prior to the implementation of the existing
ordinance.
8. How will substantial justice be done if this request is granted?
If this request is granted, the existing street pattern will be validated. It is not
practical to relocated the existing street.
If you should have any questions, please feel free to call.
Sincerely yours,
Charles Wirtanen, P.E.
CWC
Charles Wirlanen, P.E.. Inc.
30444 I3crry Crcek Drip e
Geor-yetokvn, TX 78628
PI 1. 5 12/9-30-9995
FAX: 512i930-9317
August 21, 1995
Ms. Hildy Kingma
City of Georgetown
P.O. Box 409
Georgetown, TX 78626
Subject: Churchill Farms Section Four
Variance Request
Dear Ms. Kingma:
22
This letter is to request a variance to Section 34020F.4 of the subdivision ordinance for
the referenced plat. There are several corner lots that are back to back. In this situation,
the fences of adjoining lots will align. We request a variance to this requirement for
Lots 15 27, 28, 32, 33, and 39 Block A; Lots 1, 9 & 10, Block B; and Lot 1, block C for
this reason.
In what manner will the public convenience and welfare be substantially served?
The side yards will line up. The purpose of the requirement is to make sure that
the side yard of a corner lot lines up with the front yard of an adjacent lot. When
the lots are back to back or have no adjacent lot, this purpose is still met even if
the street yard set back is reduce to 15'.
2. Will appropriate use of the property be substantially or permanently impaired or
diminished in any manner? Provide reasons why you believe your answer is
supportable.
No, the aesthetic reasons for the variance will still be met.
3. What are the hardships involved? How were those hardships created? How are
those hardships different from those affecting the rest of the public faced with
enforcement of this same provision? Note that the Commission and Council
cannot approve a variance for which the hardship claimed is solely of an
economic nature.
Ms. Hildy Kingma
Page Two
August 21, 1995
The hardship creating the request for this variance is the relative large amount of
unusable lot for corner lots. The ordinance was written to cover all corner lot
situations. In this case the aesthetic intent of the ordinance will be met.
4. If the requested variance, if approved, will it confer upon the applicant a special
right or privilege no commonly shared or available to the owners of similar and
surrounding property? Provide reasons why you believe your answer to be
supportable.
The proposed variance confers no special right or privilege since it results in the
same aesthetic result. Anyone proposing a condition equal, or superior to, that
required by ordinance should receive similar treatment.
5. How is the public interest affected?
There should be no effect on the public interest.
6. List the special conditions that affect this property and justify the approval of the
variance.
The proposed project has limited options available to it because of the existing
previously planned multi -family development. Accordingly, the layout resulted
in several corner lots which back up to each other.
8. How will substantial justice be done if this request is granted?
If this request is granted, the aesthetic intent of the ordinance will be upheld
while not arbitrarily requiring oversized lots for corner lots.
If you should have any questions, please feel free to call.
Sincerely yours,
Charles Wirtanen, P.E.
Council meeting _October 24. 1995 Item No.
E
AGLNDA ITEM COVER SHEET
SUBJECT: Consideration of a Final Plat of 15.182 acres in the William Addison Survey, and
a Resubdivision of Stonehedge Subdivision, Section Three, Lot I, Block N; to be known as
Churchill Farms, Section Four
ITEM SUNPAARY: The subject Final Plat is consistent with the approved Concept Plan and
the Preliminary Plat being considered as a separate agenda item. The construction plans for this
subdivision have been submitted and are currently being reviewed by the City staff. Variances
to allow the subdivision to be developed as proposed are considered with the Preliminary Plat.
SPECIAL CONSIDERATIONS: None.
Fhi iANCIAL LSPA CT: None.
CONIRVIENTS: At their regular meeting of September 5, 1995, the Planning and Zoning
Commission voted 5-0 to recommend approval of the Final Plat of Churchill Farms, Section
Four, provided the Technical Issues are addressed prior to City Council consideration.
The attached plat has been revised to address the Technical Issues as required by the
Commission.
RECOMMENDED MOTION: If this item is approved by the. City Council, it will be
consistent with the Planning and Zoning Commission's recommendation, unless stated otherwise.
ATTACHMENTS: Staff report and revised plat.
Submitted Bv:
- Z-ZZ6�1- -
Edward . Barry, AI - Director
Divisioh of Develop ent Services
Hildy L. 'ngma, AI P
Chief Planner
FINAL PLAT OF 15.182 ACRES IN THE WILLIAM ADDISON SURVEY, AND A
RESUBDIVISION OF STONEHEDGE SUBDIVISION, SECTION THREE, LOT 19
BLOCK N; TO BE KNOWN AS CHURCHILL FARMS, SECTION FOUR
O WNER/APPLICANT:
Mr. Robert Wunsch
Churchill Farms, Ltd.
30444 Berry Creek Drive
Georgetown, Texas 78628
930-9995
AGENT: Mr. Charles Wirtanen, P.E.
CWC
30444 Berry Creek Drive
Georgetown, Texas 78628
930-9995 FAX: 930-9317
REQUEST: Final Plat of 15.182 acres in the William Addison Survey and a
Resubdivision of Stonehedge Subdivision, Section Three, Lot 1,
Block N; to be known as Churchill Farms, Section Four as
recorded in Volume 2349, Page 88 of the Official Deed Records
of Williamson County, Texas.
Location: Located on State Highway 29 East. SEE EXHIBIT A
Existing Site: Undeveloped land.
Existing Zoning: RS, Residential Single Family and C-1, Local Commercial
Proposed Use: One (1) commercial lot, 64 single family residential lots, and
one (1) private park lot.
Surrounding Uses North: Single family residences (out of City)
and Zoning: South: Stonehedge Subdivision (aka Churchill Farms) (RS)
East: Indian Creek Subdivision (out of City)
West: Remainder of Churchill Farms Concept Plan (RS and
C-1)
Century Plan: The Century Plan Development Plan designates this development
as Intensity Level 5. The proposed development can be
accommodated within this assigned intensity.
Final Plat - Churchill Farms, Section Four September 15, 1995
PP-95-04 / File: CHRCHIL4.FP Page 1
CM:HK
Notification: The notification requirements have been completed.
HISTORY: A Concept Plan for Churchill Farms was approved by the City Council
on August 22, 1995. The entire Churchill Farms area was annexed into
the City effective on August 9, 1995. The area is in the process of
being rezoned subsequent to the annexation. A first reading of the
rezoning for the area within the subject Preliminary Plat was approved
by City Council on August 22, 1995. That rezoning designates Lot 40,
Block A, as C-1, Local Commercial, with the remainder of the
subdivision RS, Residential Single Family. The second reading of the
rezoning ordinance will be held until the final plat for this subdivision is
recorded.
ANALYSIS: The subject Final Plat is consistent with the approved Concept Plan and
the Preliminary Plat being considered as a separate agenda item. SEE
EXHIBIT B The construction plans for this subdivision have been
submitted and are currently being reviewed by the City staff. Because
the construction plans have not yet been approved, any significant
changes required as a result of their approval may result in the need to
reconsider the Final Plat. Variances were considered with the
Preliminary Plat to address issues related to block length, secondary
front yard setbacks, and the bufferyard adjacent to the arterials.
Technical Issues: The following Technical Issues must be addressed prior to consideration
of this plat by the City Council. If they are not addressed by
September 29, 1995, or if the applicant does not concur with a delay to
the City Council's consideration of the plat to allow the Technical
Issues to be addressed, the plat will be forwarded to the Council with a
recommendation for denial.
1. If the variances are approved with the Preliminary Plat, add a note
to the Final Plat describing each variance.
2. The revisions to the secondary front yard setbacks must be made as
described in the Preliminary Plat report if the requested variances are
approved.
3. To conform with Section 34020 C.1., provide an additional ten (10)
feet of side setback on the east property line of Lot 13, Block A,
(consistent with the Preliminary Plat) and the north property line of Lot
8, Block C.
4. Revise plat note #22 to state that the proposed zoning is C-1, Local
Commercial, for Lot 4, Block A, and RS, Residential Single Family,
Final Plat - Churchill Farms, Section Four
PP-95-04 / File:CHRCHIL4.FP
CM:HK
September 15, 1995
Page 2
for all other lots.
5. Show the City limits line as it impacts the northeast and north
property boundaries of the subdivision.
6. Provide two (2) copies of the deed restrictions or covenants if they
will be recorded for this subdivision.
7. Provide certification from all applicable taxing entities that all taxes
due have been paid.
8. Revise plat note #12 to state that proposed streets will be
constructed to residential street standards.
9. Complete the property owner's certification and the field notes to
insert the missing volume and page reference.
10. Revise the City's certification to change the plat reference to
Churchill Farms, Section Four.
11. Add asterisks to Lots 8 and 9, Block C, to provide reference to the
related plat note.
Prior to Filing: Before the subject plat can be recorded with the County, park land
dedication fees of $14,400 must be paid to the City.
STAFF RECOMMENDATION:
Approval of the Final Plat of Churchill Farms, Section Four, provided
the Technical Issues are addressed prior to City Council consideration.
P & Z ACTION: At their regular meeting of September 5, 1995, the Planning and Zoning
Commission voted 5-0 to recommend approval of the Final Plat of
Churchill Farms, Section Four, provided the Technical Issues are
addressed prior to City Council consideration.
Final Plat - Churchill Farms, Section Four
PP-95-04 / File:CHRCHIL4.FP
CM:HK
September 15, 1995
Page 3
CHURCH|LL FARMS
SECTION FOUR ___________-_ -'-------'-------
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u.C, C, 'o SECTION THREE
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33 DETENTION
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AREA
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23.9/14 /' �-* -: ,', I S 00" .11 3 DAVID STARR
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CID
'gCNEHE 13.4 1, u
'sr., ON THREE STONEHEDGE SECTION THREE
St 2v -45
Is / - CAB. 'H*, SLDS. 43 C LIMIT N-- 36z.462 ITY MIT
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46 CITY OF C
ECK 4r E 84 1 9 LOT 3 1, BLOCK J
SW i LIPNER 1,11 ItiE
ruR.Ep \,!t 11 r. - k I C.1 NI.. I. I NE I I H A I 1, 1 I.fi< I HF I Q; '-HOWN "F "I. I"N ARE AS FOLLOWS
SV:INEHCC)f.T SEC riCN
II) THE PROVISION! OF THE CENIuRf PLAN DLvtlI(.)I1M[NI PLAN SHALL �.IPU I SILIC 27
THREE 'SuEjb-VIbICjN
-CATION MAP ALSO GOVERN THIS PROJECT THIS PROiCCI mA`5 BEEN ASSIGNED RE ,P i OT L ! NE!•
N T S INTENSITY LEvE, FIVE ',;DE LO I LINES 15 MAI WI III A MINIMUM )f '. A(.1jAI:F.N1 10 NON- S I Pi F. I
GENERAL NOTES AI WE I-01 LINES
I 1114,jIf sk.c., " IRf L .. pIA,. "A'.1 '.0 FjUI ROW AND BE CONSTRUCTED
�j TOIA1, ACPFAC( v: If, MINOR Pf 1, 1 h1i L INLAR CO() I AGC 4 :.ARE F I P 0 �v DEDILATE0 HEREON 1.� A", F OL L OW';
:,EL MAR DRIVIL, 04f,
NtjmHEF; -,r �.o -C.-NIME F1, Al A�, , N I : A'.� 'LA "ONTAINED WITHIN DRAINACE
A' .,I :III MINI`. (I IROITC(? DRIVE 4,31
:,�.JIALCA I,,0LIPI 1.4 j
NUMBER OF BLUI�K�, 3 i4j� UkAiNAGL !QIII.S ,N1It 'i•Lt ' -FIOSSINGS SHALL PASS THE 10() : . EL MAP . OURI. I -I I
fEAR FLOOD �'IML I Ck) (:uvE 1 4 7.
4) OWE4 AND SEWER SERVICE Tu 8E PRO-ULL; b, IHI t, I r N ,? [2ANL)ERA I-OVE
GEORGETOWN ELECTR!CIT, TO BE PROVIDEC: Ci, TU 1) 7, 11, 1 1 11. S 1', 1 A TF N ( 10) F I)o r w I LE PILF.o. I• ..I I I,. I ! I
t 9kSEMENT (P. U E ) SHALL BE
TELEPHONE TO BE PROVIDED 8, GTE CABLE 1� to U PROVIDEU ADJACENT tI Ii-,F. ',TkFll 'A A(R(!SS ALL LOTS BOUNDED BY SUCH R I) W
BY WILLIAMSON _'I)ILINTY CABLEVISION ,R-.)Pf.-SED j.-.,NINC. ul, ALL LOTS IS BASED UN !HE 4MCINING APPLICATION CURRENTLY
Ibi ., I Oil WAL P. �� 04. RI i)tj; I.-j. I! ;.,IN ; 11 kAw INNER LOOP, STATE HIGHWAY 29 IN PROCU'-'� WITH III[ .' I If OF GE0RGET--IWN BOULEVARD SHALL BE FROM
CI'-MMFRC'IAL LOT IOL (11 IIfINHAkL ROUL I VARD 1 70 RE INHAROT
5; PROPOSED USE SINGLE FAMILY RESIDENT IAL , )NE. �141.1 IHF W1 SI iR(*A LOT,, d AND 9 !3 OL,. C'*.
AND A PRIVATE PARK (AMENIT't CENTER) A ',.OMMCIN DPIVEWAY(ONF AC--.[S5 POINT) WITHIN THE SHARED ACCESS EASEMENT AS
1/) ACCES, 10 RE IN14ARDT BC)U,[ 'AkL) IS PROHIBITED FROM LOT 1, BLOCK 'A THIS PLAY
6) DENSITr. 3 C` LOTS PER ACRE LOTS 1-4. BLOCK "B" AND LOTS I AND 7 BLOCK _C_
7 SIZE Or SMAL;_EST LOT 7.094 So F! (0 163 AC 18) ACCt.'SS 70 SIONEHEOUE BOULEVARD IS PROHIBITED FROM LOTS 27, 28, 32. 33, 39
BLOCK "A"
65 r
0
0
w C, 0
z
Cie
0 00 1� n26
8) THIS TRACT I' LOCATED WITHIN THE EDWARDS AULIIFER REt..HARGE AND LOT IG. EILOCK 'B" CHURCHILL FARMS
ZONE NO CONSTRUCTION IN THE SUBDIVISION MAY BEGIN UNTIL THE, 19) ACCESS TO STATE HIGHWAY '19 AND THE GEOIRGETCWN INNER LOOP
TEXAS NATURAL RESOURCE CONSERVATION COMMISSIGIN HAS APPROVED FRQm RESIDENTIAL LOIS �; PR1.1,111811EL)
THE POLLUTION ABATEMENT PLAN IN WRITING SECTION FOUR
10) PRIOR TO GRADINC, ANY TYPE OF EARTH MOVIN(;, CONSIRUCIION Of, ON. OR UNDER
THIS SUBDIVISION 15 LOCATED WITHIN THE CiT', LIMIIS OF THE THE LAND IN THIS SUBDIVISION, A DRAINAGE PLAN DESIGNED BY A REGISTERED
cl Tj OF GEORGETOWN, TEXAS PROFESSIONAL ENGINEER SMALL BE SUBMITTED FOH THE PROPOSED DEVELOPMENT, AND
MODIFICATIONS THEREOF TO THE ENGINEERING DEPARTMENI Or THE CITY OF GFORCETOWN
10) MAXIMUM
MUM IMPERVIOUS COVER PER LOT 15 40% AND THE COMMISSIONERS' COURT OF WILLIAMSON (;OUNIY FC)R REVIEW ANU APPRUVAL
Council Meeting Date: October 18, 1995
AGENDA ITEM COVER SHEET
Item No. a
SUBJECT:
Council approval of an agreement between the City of
Georgetown and David Ham & Associates for engineering services
related to the design of the West 22nd and Leander Street
Stormwater Trunk Line and Outfall Structure, in an amount not to
exceed $58,000.00.
ITEM SUMMARY:
In order to maintain and enhance the City's drainage capacity
in the 22nd Street and Leander Street area, it will be necessary to
construct a stormwater trunk line and outfall structure in this
area. This project will facilitate proper drainage and will
provide for future drainage as the area develops. Therefore, staff
recommends approval of the contract between the City and David Ham
& Associates to provide the design of this project.
SPECIAL CONSIDERATIONS•
NONE
FINANCIAL IMPACT:
Funds in an amount not to exceed $58, 000. 00 are to be paid
from Account number 641-101-5104-00.
COMMENTS:
NONE
ATTACHMENTS:
Contract will be provided on the Bias.
Submitted By:
Jim Briggs, Director
Community Owned Utilities