LOAN AGREEMENT
Dated December 26, 1996
Between
XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
COLLEGEVILLE INN CONFERENCE & TRAINING CENTER, INC.
Bond Counsel Authority Counsel
Xxxxxx Archbold & O'Brien, L.L.P. McGrory, Wentz, Xxxxxxxxx & X'Xxxx
000 Xxxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000 Swede Square
Xxxxxxxxxx, XX 00000
TABLE OF CONTENTS*
Page
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................2
Section 1.02. Content of Certificates and Opinions........................2
Section 1.03. Interpretation .............................................3
ARTICLE II
THE LOAN: USE OF PROCEEDS
Section 2.01. Loan of Funds to the Company................................3
Section 2.02. Use of Proceeds.............................................4
Section 2.03. Establishment of Completion Date............................4
Section 2.04. Covenants for Benefit of Bondholders and Bank...............4
ARTICLE III
PAYMENT PROVISIONS
Section 3.01. Loan Payments...............................................4
Section 3.02. Letter of Credit............................................5
Section 3.03. Time of Loan Payments.......................................5
Section 3.04. Additional Payments; Taxes; Utility Charges.................6
Section 3.05. Acceleration of Payment to Redeem Bonds.....................7
Section 3.06. No Defense or Set-Off.......................................7
Section 3.07. Termination Upon Payment or Defeasance of Bonds.............8
Section 3.08. Assignment of Authority's Rights............................8
Section 3.09. Assignment by Company...................................... 8
Section 3.10. Indemnity Against Claims................................... 9
Section 3.11. Authority is Conduit Issuer; Company is
Real Party in Interest; Covenant Not to Xxx .............. 10
ARTICLE IV
COMPANY OBLIGATIONS; ASSIGNMENT TO TRUSTEE
--------
*This Table of Contents is for convenience only, does not constitute a part
of this Loan Agreement and shall not be considered as having any bearing upon
any interpretation of this Loan Agreement.
(i)
Section 4.01. General Obligation of the Company......................... 11
Section 4.02. Assignment to Trustee..................................... 11
Section 4.03. Maintenance and Operation of the Project Facilities....... 11
Section 4.04. Maintenance of Existence.................................. 11
Section 4.05. Compliance with Laws...................................... 11
Section 4.06. Notice of Bankruptcy Case Commencement.................... 12
Section 4.07. Substitute Letter of Credit............................... 12
ARTICLE V
THE PROJECT FACILITIES
Section 5.01. Intentionally Omitted..................................... 13
Section 5.02. Liens......................................................13
ARTICLE VI
INSURANCE; DESTRUCTION; DAMAGE; EMINENT DOMAIN
Section 6.01. Insurance to be Maintained................................ 14
Section 6.02. Destruction. Damage and Eminent Domain.................... 14
Section 6.03. Notice of Property Loss................................... 14
Section 6.04. Disposition of Casualty Insurance and
Condemnation Award Proceeds............................... 14
ARTICLE VII
ADDITIONAL COVENANTS OF THE COMPANY
Section 7.01. Compliance with Laws...................................... 15
Section 7.02. Power to Perform Obligations.............................. 15
Section 7.03. Inspection................................................ 16
Section 7.04. Additional Information.................................... 16
Section 7.05. Nondiscrimination......................................... 16
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default......................................... 17
Section 8.02. Acceleration.............................................. 18
Section 8.03. Payment of Loan Payments on Default; Suit Therefor........ 19
Section 8.04. Waiver.................................................... 19
Section 8.05. Cumulative Rights......................................... 19
Section 8.06. No Exercise of Remedies Without Consent of Bank........... 20
ARTICLE IX
OPTIONS TO TERMINATE AGREEMENT
Section 9.01. Option to Terminate Upon Defeasance....................... 20
Section 9.02. Option to Terminate Upon the Occurrence of Certain Events. 20
ARTICLE X
MISCELLANEOUS
Section 10.01. Approval of Indenture..................................... 22
Section 10.02. Taxes and Insurance-Rights of Authority to Pay............ 22
Section 10.03. Illegal Provisions Disregarded............................ 22
Section 10.04. Limitation of Liability of the Authority.................. 22
Section 10.05. No Recourse as to the Authority........................... 23
Section 10.06. Reference to Statute or Regulation........................ 23
Section 10.07. Notices................................................... 23
Section 10.08. Applicable Law............................................ 24
Section 10.09. Amendments................................................ 24
Section 10.10. Term of Agreement..........................................24
Section 10.11. Amounts Remaining in Bond Fund............................ 25
Section 10.12. Survival of Covenants, Conditions and Representations..... 25
Section 10.13. Multiple Counterparts..................................... 25
Section 10.14. Consent................................................... 25
(ii)
THIS LOAN AGREEMENT dated December 26, 1996 (the "Agreement"), is by
and between XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the
"Authority"), and COLLEGEVILLE INN CONFERENCE & TRAINING CENTER, INC., a
Pennsylvania corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Authority is a body politic and a public instrumentality
of the Commonwealth, organized and existing under the Pennsylvania Economic
development Financing Law, Act of August 23, 1967, P.L. 251, as amended (the
"Act"), and is authorized under the Act to acquire, hold, construct, improve,
maintain, own, finance, lease, in the capacity of lessor or lessee, and/or sell
industrial, commercial and specialized development projects for the public
purpose of alleviating unemployment, maintaining employment at a high level and
creating and developing business opportunities, by the construction,
improvement, rehabilitation, revitalization and financing of industrial,
commercial and specialized enterprises; and
WHEREAS, the Company has requested the Authority to undertake a project
(the "Project") that consists of, among other things: (i) the rehabilitation,
reconstruction, installation, furnishing and equipping of a building to be used
as a conference center, a training center, a food manufacturing/processing and
distribution center and a retail restaurant located at 0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx, which is in the Township of Lower Providence,
Xxxxxxxxxx County, Pennsylvania; and (ii) the payment of a portion of the costs
and expenses of issuing the Bonds; and
WHEREAS, in order to provide funds for and toward the payment of a
portion of the costs of the Project, the Authority has authorized the issuance
and sale of its Bonds; and
WHEREAS, the Bonds are to be issued under and secured by a Trust
Indenture dated December 26, 1996 (the "Indenture"), between the Authority and
Dauphin Deposit Bank and Trust Company (the "Trustee"); and
WHEREAS, this Agreement provides that the Authority will loan the
proceeds of the Bonds to the Company to finance the Project and the Company will
agree, among other things, to repay the loan in installments equal to payments
of debt service on the Bonds when due; and
WHEREAS, the Trustee has agreed under the Indenture to draw on the
Letter of Credit (as such phrase is defined in the Indenture) at such times and
in such amounts as shall be sufficient to pay when due the principal, interest
and Purchase Price (as such phrase is defined in the Indenture) on the Bonds and
to credit all amounts paid under the Letter of Credit against the Company's
obligation to make installment payments under this Agreement for such items; and
WHEREAS, execution and delivery of this Agreement and the issuance
hereunder and under the Act of the Bonds have been in all respects duly and
validly authorized by resolution of the Board of the Authority duly adopted
prior to such execution and delivery; and
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WHEREAS, as security for the full and prompt payment and performance of
all its obligations under the Indenture, including, specifically, without
limiting the generality of the foregoing, its obligation to make payment of
principal of, premium, if any, and interest on the Bonds, when due, the
Authority has, pursuant to the provisions of the Indenture, assigned to the
Trustee all of its right, title and interest in, to and under this Agreement
(except its right to indemnification and to receive its fees and expenses
hereunder), including without limitation, the right to receive loan payments
payable by the Company hereunder; and
WHEREAS, in order to assure full and prompt payment of the Bonds, the
Company, among other things, has caused the Bank to issue the Letter of Credit
to assure payment of principal of, and interest on the Bonds when due (subject
to reduction and reinstatement as provided therein) pursuant to the
Reimbursement Agreement (as defined in the Indenture).
NOW, THEREFORE, THIS LOAN AGREEMENT WITNESSETH:
That the parties hereto, intending to be legally bound hereby and in
consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE to
all the terms and conditions set forth in this Agreement.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms and phrases used as
defined terms in the recitals shall have the same meanings throughout this
Agreement, and, in addition thereto, capitalized terms and phrases used and not
defined herein shall have the meanings assigned to such terms in the Indenture,
unless the context clearly indicates otherwise.
Section 1.02. Content of Certificates and Opinions. The Trustee may,
but shall not be obligated to, require that every certificate or opinion
provided for in this Agreement with respect to compliance with any provision
hereof shall include: (1) a statement to the effect that the Person making or
giving such certificate or opinion has read such provision and the definitions
herein relating thereto; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the certificate or opinion is based; (3)
a statement to the effect that in the opinion of such Person, he has made or
caused to be made such examination or investigation as is necessary to enable
him to express an informed opinion with respect to the subject matter referred
to in the instrument to which his signature is affixed; (4) a statement of the
assumptions upon which such certificate or opinion is based, and that such
assumptions are reasonable; and (5) a statement as to whether, in the opinion of
such Person, such provision has been complied with.
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Any such certificate or opinion made or given by an officer of the
Authority or the Company may be based, insofar as it relates to legal or
accounting matters, upon a certificate or opinion of or representation by
counsel or an accountant, unless such officer knows, or in the exercise of
reasonable care should have known, that the certificate, opinion or
representation with respect to the matters upon which such certificate or
statement may be based, as aforesaid, is erroneous. Any such certificate or
opinion made or given by counsel or an accountant may be based, insofar as it
relates to factual matters (with respect to which information is in the
possession of the Authority or the Company, as the case may be) upon a
certificate or opinion of or representation by an officer of the Authority or
the Company, unless such counsel or accountant knows, or in the exercise of
reasonable care should have known, that the certificate or opinion or
representation with respect to the matters upon which such certificate or
opinion or representation may be based, as aforesaid, is erroneous. The same
officer of the Authority or the Company, or the same counsel or accountant, as
the case may be, need not certify to all of the matters required to be certified
under any provision of this Agreement, but different officers, counsel or
accountants may certify to different matters, respectively.
Section 1.03. Interpretation.
(a) Unless the context otherwise indicates, words expressed in
the singular shall include the plural and vice versa and the use of the neuter,
masculine, or feminine gender is for convenience only and shall be deemed to
mean and include the neuter, masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of
contents hereof are solely for convenience of reference, do not constitute a
part hereof and shall not affect the meaning, construction or effect hereof.
(c) All references herein to "Articles," "Sections" and other
subdivisions are to the corresponding Articles, Sections or subdivisions of this
Agreement; the words "herein," "hereof," "hereby," "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or subdivision hereof.
(d) Whenever in this Agreement it is required that notice be
provided to the Bank or that consent of the Bank be obtained, such provisions
shall be effective only when: (i) the Letter of Credit is in effect; (ii) the
Bank, in its capacity as provider of the Letter of Credit, is the Holder of any
Bonds; or (iii) any amounts are due and owing to the Bank under the
Reimbursement Agreement.
ARTICLE II
THE LOAN; USE OF PROCEEDS
Section 2.01. Loan of Funds to the Company. The Authority
hereby agrees that simultaneously with the execution and delivery of this
Agreement, it will loan to the Company, upon
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the terms and conditions specified herein and in the Indenture, the proceeds of
the sale of the Bonds, and the Company agrees to receive such loan from the
Authority, for the purposes provided herein and in the Indenture.
Section 2.02. Use of Proceeds. The proceeds of the Bonds shall be
deposited with the Trustee and applied as provided in the Indenture and in this
Agreement to finance the Project.
Section 2.03. Establishment of Completion Date. The Completion Date
shall mean the date of delivery to the Authority and the Trustee of a
certificate executed by an Authorized Representative of the Company stating in
effect that: (i) all equipment for the Project has been acquired and installed
and all costs and expenses incurred in connection therewith have been paid,
including all costs of labor, services, materials and supplies used in
connection with such acquisition and installation have been paid; and (ii) all
other facilities necessary in connection with the Project have been acquired,
constructed, improved and equipped and all costs and expenses incurred in
connection therewith have been paid. Notwithstanding the foregoing, such
certificate shall state that it is given without prejudice to any rights against
third parties which exist at the date of such certificate or which may
subsequently come into being. Upon completion of the Project, the Company agrees
to cause such certificate to be promptly furnished to the Authority and the
Trustee. Upon receipt of such certificate, the Trustee shall give notice to the
Company of the amount of funds remaining unspent in the Construction Fund. Any
remaining moneys on deposit in the Construction Fund shall be forthwith applied
to the payment of the Costs of the Project, or if not so applied shall be
promptly transferred by the Trustee into the Bond Fund and used by the Trustee
in accordance with the terms of Section 6.08 of the Indenture.
Section 2.04. Covenants for Benefit of Bondholders and Bank. This
Agreement is executed in part to induce: (a) the purchase by others of the
Bonds; and (b) the issuance by the Bank of the Letter of Credit, and the
participation by the Bank in the funding of advances under the Letter of Credit.
Accordingly, all covenants and agreements on the part of the Company and the
Authority, as set forth in this Agreement, are hereby declared to be for the
benefit of the Owners from time to time of the Bonds and for the benefit of the
Bank.
ARTICLE III
PAYMENT PROVISIONS
Section 3.01. Loan Payments.
(a) The Company hereby agrees to pay duly and punctually: (i)
the principal, premium, if any, and interest due and payable on the Bonds; (ii)
the Purchase Price of the Bonds, and (iii) any other amounts due and payable by
the Company under this Agreement. The Company shall be given an immediate credit
in the amount of all draws paid to the Trustee under the Letter of Credit
against the loan payments due hereunder. Any portion of the loan payments due
under this Agreement which is not timely paid (upon proper demand under the
Letter of Credit by the Trustee) from draws
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under the Letter of Credit shall be paid to the Trustee directly by the Company
as provided in Section 3.03 hereof. Any other amounts required to be paid under
this Agreement shall be paid by the Company to the party entitled to receive
such amounts hereunder and in the manner provided for herein. Loan payments
shall be made by the Company with the Company's funds, except to the extent a
credit in respect thereof has been granted pursuant to the terms of this
Agreement. It is the intention of the Authority and the Company that,
notwithstanding any other provision of this Agreement, the Authority shall
receive funds from the Company under this Agreement at such times and in such
amounts as will enable the Authority to meet all of its obligations under the
Bonds and the Indenture, including any such obligations surviving the payment of
the Bonds and the defeasance of the Indenture.
(b) All loan payments and other sums due and payable to the
Authority or the Trustee under this Agreement shall be absolutely net to the
Authority or the Trustee, as applicable, free of any taxes, costs, liabilities
or other deductions whatsoever with respect to the Project Facilities and the
maintenance, repair, rebuilding, use or occupation thereof or any portion
thereof, so that this Agreement shall yield all amounts due hereunder net to the
Authority or the Trustee throughout the term hereof.
Section 3.02. Letter of Credit. Concurrently with the issuance by the
Authority of the Bonds, the Company shall cause to be delivered to the Trustee
the Letter of Credit issued by the Bank, authorizing the Trustee to make draws
on the Bank, up to an aggregate stated amount of TWO MILLION FIVE HUNDRED SIXTY
THOUSAND FIVE HUNDRED FORTY-EIGHT DOLLARS ($2,560,548), of which TWO MILLION
FIVE HUNDRED THOUSAND DOLLARS ($2,500,000) shall be in respect of principal on
the Bonds and SIXTY THOUSAND FIVE HUNDRED FORTY-EIGHT DOLLARS ($60,548) shall be
in respect of up to 52 days' interest accrued on the Bonds on or prior to the
maturity thereof.
Section 3.03. Time of Loan Payments.
(a) The Company shall pay to the Trustee, as assignee of the
Authority (but only to the extent such amounts have not been advanced to the
Trustee under the Letter of Credit), on the dates and times hereinafter set
forth, for deposit in the Bond Fund, the following sums:
(i) Not later than 12 noon on any Interest Payment Date or
any other date that any payment of interest, premium, if any, or principal is
required to be made in respect of the Bonds pursuant to the Indenture, until the
principal of, premium, if any, and interest on the Bonds shall have been fully
paid or provision for the payment thereof shall have been made in accordance
with the Indenture, in immediately available funds, a sum which, together with
any moneys available for such payment in the Bond Fund, will enable the Trustee
to pay the amount payable on such date as principal of (whether at maturity or
upon redemption or acceleration or otherwise), premium, if any, and interest on
the Bonds as provided in the Indenture; provided, however, that the obligation
of the Company to make any payment hereunder shall be deemed satisfied and
discharged to the extent of the corresponding payment made by the Bank to the
Trustee under the Letter of Credit.
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All payments payable by the Company under subsection (a)(i)
of this Section 3.03 are assigned by the Authority to the Trustee for the
benefit of the Owners of the Bonds. The Company hereby acknowledges and consents
to such assignment. The Authority hereby directs the Company and the Company
hereby agrees to pay to the Trustee at the Principal Corporate Trust Office of
the Trustee all payments payable by the Company pursuant to this subsection.
(ii) The Company covenants, for the benefit of the Owners
of the Bonds, to pay or cause to be paid, to the Tender Agent, such amounts as
shall be necessary to enable the Tender Agent to pay the Purchase Price of Bonds
delivered to it for purchase, all as more particularly described in Sections
5.01, 5.03 and 5.04 of the Indenture; provided, however, that the obligation of
the Company to make any such payment under this subsection (a)(ii) shall be
reduced by the amount of moneys available for such payment described in
subsection (i) or (ii) of Section 5.05(a) of the Indenture; and provided,
further, that the obligation of the Company to make any payment under this
subsection (ii) shall be deemed to be satisfied and discharged to the extent of
the corresponding payment made by the Bank under the Letter of Credit.
(iii) Additionally, from time to time, the Company shall
make such payments as shall be necessary to make up any deficiency in or to fund
fully any of the funds established under the Indenture.
Section 3.04. Additional Payments; Taxes; Utility Charges. As
Additional Payments, the Company, during the term of this Agreement, shall pay
or cause to be paid the following:
(a) To the public officers charged with the collection thereof,
promptly as the same become due, all taxes (or contributions or payments in lieu
thereof), including but not limited to income, profits or property taxes, which
may now or hereafter be imposed by the United States of America, any state or
municipality or any political subdivision or subdivisions thereof, and all
assessments for public improvements or other assessments, levies, license fees,
charges for publicly supplied water or sewer services, excises, franchises,
imposts and charges, general and special, ordinary and extraordinary (including
interest, penalties and all costs resulting from delayed payment of any of the
foregoing) of whatever name, nature and kind and whether or not now within the
contemplation of the parties hereto and which are now or may hereafter be
levied, assessed, charged or imposed or which are or may become a lien upon the
payments due under this Agreement, the Project Facilities or the use or
occupation thereof, or upon the Company or the Authority, or upon any
franchises, businesses, transactions, income, earnings and receipts (gross, net
or otherwise) of the Company in connection with the Project Facilities, or its
earnings, profits or receipts from, or its subleasing of, the Project
Facilities; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any tax, assessment, lien or other
matter hereunder so long as the validity thereof is being contested in good
faith and by appropriate legal proceedings diligently pursued, so long as the
operation of the Project Facilities or the receipt of income therefrom is not
adversely affected by reason thereof;
(b) All reasonable fees, charges and expenses of the Trustee,
the Remarketing
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Agent, the Placement Agent, the Tender Agent and the Bank, as and when the same
become due and payable;
(c) The reasonable fees and expenses of such accountants,
consultants, attorneys and other experts as may be engaged by the Authority, the
Trustee or the Tender Agent to prepare audits, financial statements, reports,
opinions or provide such other services required under this Agreement or the
Indenture; and
(d) The reasonable fees and expenses of the Authority in
connection with this Agreement, the Bonds, the Indenture, the Tender Agent
Agreement or the Remarketing Agreement and any and all other expenses incurred
in connection with the authorization, issuance, sale and delivery of any such
Bonds or incurred by the Authority in connection with any litigation which may
at any time be instituted involving this Agreement, the Bonds, the Indenture or
any of the other documents contemplated thereby, or incurred in connection with
the administration of this Agreement, or otherwise in connection with this
Agreement, the Indenture, the Bonds, the Tender Agent Agreement, the Remarketing
Agreement or any of the other documents, instruments or agreements in connection
therewith.
Such Additional Payments shall be billed to the Company, from time to
time, by the Authority, the Trustee, the Remarketing Agent, the Tender Agent or
the Bank, as the case may be, together with a statement certifying that the
amount billed has been paid or incurred and attaching reasonable supporting
documentation indicating that the amount billed has been paid or incurred for
one or more of the above items. After such a demand, amounts so billed shall be
paid by the Company within thirty (30) days after receipt of the xxxx by the
Company.
Section 3.05. Acceleration of Payment to Redeem Bonds. Whenever the
Bonds are subject to optional redemption or extraordinary redemption pursuant to
the Indenture and the provisions hereof, the Authority will, upon request of the
Company, direct the Trustee to call the same for redemption as provided in the
Indenture. Whenever any Bond is subject to mandatory redemption pursuant to the
Indenture, the Company will cooperate with the Authority and the Trustee in
effecting such redemption. In the event of any mandatory, optional or
extraordinary redemption of the Bonds, the Company will pay or cause to be paid
to the Trustee an amount equal to the applicable redemption price as a
prepayment of that portion of the loan payment corresponding to the Bonds to be
redeemed together with interest accrued to the date of redemption and will also
pay all fees and expenses of the Authority and the Trustee arising with respect
to such redemption or otherwise due and owing hereunder or under the Indenture
at such times and in such amounts as are required to effect the mandatory,
optional or extraordinary redemption of the Bonds under the terms of the
Indenture.
Section 3.06. No Defense or Set-Off. The obligations of the Company to
make loan payments shall be absolute and unconditional without any defense or
set-off for any reason, including, without limitation, any acts or circumstances
that may constitute failure of consideration, destruction of or damage to the
Project Facilities, invalidity or unenforceability of the Bonds, commercial
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frustration of purpose or failure of the Authority to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connected with this Agreement, it being the intention of the
parties that the payments required of the Company hereunder will be paid in full
when due without any delay or diminution whatsoever.
Section 3.07. Termination Upon Payment or Defeasance of Bonds. When:
(a) interest on, and principal or the redemption price (as the case may be) of,
all Bonds issued under the Indenture, together with all other amounts due and
payable by the Company hereunder, shall have been paid; or (b) there shall have
been deposited with the Trustee an amount evidenced by moneys or Government
Obligations, the principal of and interest on which, when due, without
reinvestment, will provide sufficient moneys to fully pay the principal or
redemption price (as the case may be) of, and all accrued interest on, all Bonds
then Outstanding, as well as all other sums payable or to become payable by the
Company under this Agreement, as evidenced by a verification report from an
independent certified public accountant, delivered to the Trustee, no further
loan payments shall be payable hereunder and, with the consent of the Bank (if
the Letter of Credit remains outstanding or if any amounts are due and owing to
the Bank under the Reimbursement Agreement or any of the other Reimbursement
Documents (as such term is defined in the Reimbursement Agreement)), this
Agreement shall thereupon be terminated, and the Authority: (i) shall cause the
Trustee to pay over to the Company any additional moneys then remaining in any
Funds under the Indenture (and which will not be required to pay any amounts as
set forth immediately above in this Section 3.07); and (ii) shall pay over to
the Company any additional moneys which may be paid to the Authority by the
Trustee; provided, however, that in each such case moneys remaining in any Fund
under the Indenture or any additional moneys shall be first paid to the Bank to
the extent of any moneys then due and owing from the Company to the Bank under
the Reimbursement Agreement or any of the other Reimbursement Documents (as such
term is defined in the Reimbursement Agreement).
Section 3.08. Assignment of Authority's Rights. As security for the
payment of the Bonds, the Authority will assign to the Trustee all the
Authority's rights under this Agreement. Subject to the prior assignment made to
the Trustee to secure the Bonds, the Authority will also assign all the
Authority's rights under this Agreement to the Bank to secure all of the
Obligations (as defined in the Reimbursement Agreement). The Company consents to
such assignments and agrees to make the loan payments under Section 3.01 and
Section 3.05 hereof directly to the Trustee without defense or set-off by reason
of any dispute between the Company and the Trustee or the Authority. Whenever
the Company is required to obtain the consent of the Authority hereunder, the
Company shall also obtain the consent of the Bank.
Section 3.09. Assignment by Company. This Agreement may be assigned in
whole or in part by the Company without the necessity of obtaining the consent
of the Trustee or the Owners of the Bonds; provided, however, any such
assignment shall require the prior written consent of the Bank (as long as the
Bank is not in default under the Letter of Credit) and the Authority; and
further provided that no assignment pursuant to this Section shall be made
otherwise than in accordance with the Act, as from time to time amended. The
Company shall, within thirty (30) days after execution thereof, furnish or cause
to be furnished to the Authority, the Trustee and the Bank a true and
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complete copy of each such assignment together with any instrument of
assumption.
Section 3.10. Indemnity Against Claims.
(a) The Company agrees that at all times it will protect and
hold the Authority, its officers, members, employees and agents harmless and
indemnified from and against all claims for losses, damages or injuries to
others, including death, personal injury and property damage or loss, arising
during the term hereof or during any other period arising out of the
acquisition, installation and equipping of the Project Facilities; and the
Authority shall not be liable for any loss, damage or injury to the Person or
property of the Company or its agents, servants or employees or any other Person
who or which may be upon the Project Facilities or damaged or injured as a
result of any condition existing or activity occurring upon the Project
Facilities or any other matter connected directly or indirectly therewith due to
any act or negligence of any Person, excepting only willful misconduct of the
Authority, its officers, agents, members or employees. The indemnity provided
for in this Section 3.10(a) shall be effective only to the extent that any loss
sustained by the Authority, its officers, members, employees and agents shall be
in excess of the net proceeds actually recovered and received by the Authority
from, or paid on behalf of the Authority by, any insurance carried with respect
to the loss sustained.
(b) The Company hereby covenants and agrees that it will
indemnify and hold harmless the Trustee against any and all losses, damages or
claims arising out of the Trustee's exercise and performance of powers and
duties granted unto it by the Indenture and hereunder, and not resulting from
the Trustee's willful misconduct or negligence.
(c) The Company will indemnify, hold harmless and defend the
Authority and the Trustee and the respective officers, members, directors,
officials and employees of each of them against all losses, costs, damages,
expenses, suits, judgments, actions and liabilities of whatever nature
including, specifically, any liability under any state or federal securities
laws (including but not limited to reasonable attorneys' fees, litigation and
court costs, amounts paid in settlement and amounts paid to discharge judgments)
directly or indirectly resulting from or arising out of or related to: (i) the
design, construction, installation, operation, use, occupancy, maintenance or
ownership of the Project Facilities (including compliance with laws, ordinances
and rules and regulations of public authorities relating thereto); or (ii) any
statements or representations with respect to the Company, the Project
Facilities, this Agreement, the Bonds, the Indenture, the Letter of Credit, the
Reimbursement Agreement or any other documents or instruments delivered at or in
connection with the closing held on the Closing Date (including any statements
or representations made in connection with the offer or sale thereof) made or
given to the Authority, the Trustee or any placement advisors or underwriters or
purchasers of any of the Bonds, by the Company or any of its officers, agents or
employees, including, but not limited to, statements or representations of
facts, financial information or Company affairs. The Company also will pay and
discharge and indemnify and hold harmless the Authority and the Trustee from:
(x) any lien or charge upon payments by the Company to the Authority and the
Trustee under this Agreement; and (y) any taxes (including, without limitation,
any ad valorem taxes and sales taxes, assessments, impositions and other charges
in respect of any portion
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of the Project Facilities). If any such claim is asserted, or any such lien or
charge upon payments, or any such taxes, assessments, impositions or other
charges are sought to be imposed, the Authority or the Trustee will give prompt
notice to the Company, and the Company will 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. The Company's obligations,
liabilities and duties hereunder shall not be diminished or altered by: (i)
reason of the assumption of any defense required hereby; or (ii) the outcome of
any proceeding, investigation or litigation with respect to the validity or
enforceability of the matters described in this Section 3.10(c).
(d) If the indemnification provided heretofore is for any
reason determined to be unavailable to the Authority or the Trustee, then, with
respect to any such loss, claim, demand or liability, including expenses in
connection therewith, the Authority and the Trustee, as appropriate, shall be
entitled as a matter of right to contribution by the Company. The amount of such
contribution shall be in such proportion as is appropriate to reflect relative
culpability of the parties.
Section 3.11. Authority is Conduit Issuer; Company is Real Party in
Interest; Covenant Not to Xxx.
(a) The Company hereby expressly acknowledges that the
Authority is a conduit issuer and that all of the right, title and interest of
the Authority in and to this Agreement, but not the obligations of the
Authority, are to be assigned first to the Trustee and then to the Bank (except
for the right of the Authority to receive its reasonable fees and expenses and
to indemnification), naming the Trustee and the Bank, as applicable, its true
and lawful attorney for and in its name to enforce the terms and conditions of
this Agreement. Notwithstanding any other provision contained herein, the
Company hereby expressly agrees, acknowledges and covenants that it shall duly
and punctually perform or cause to be performed each and every duty and
obligation of the Authority under and pursuant to the Indenture, which the
Company is reasonably able to perform.
(b) The Company covenants and agrees that it shall neither xxx
the Authority, or any of its board members, officers, agents or employees, past,
present or future, for any claim, loss, demand, action or nonaction based upon
this financing nor ever raise as a defense in any proceedings whatsoever that
the Authority is the true party in interest. Notwithstanding the provisions of
the foregoing sentence, the Company shall be entitled to: (i) bring an action of
specific performance against the Authority to compel any action required to be
taken by the Authority hereunder or an action to enjoin the Authority from
performing any action prohibited hereunder or under any other documents, by this
instrument or any other agreement executed and delivered in connection with the
issuance of the Bonds, but no such action shall in any way impose pecuniary
liability upon the Authority or any of its board members, officers, agents or
employees; and (ii) join the Authority in any litigation if such joinder is
necessary to pursue any of the Company's rights, provided that prior to such
joinder, the Company shall post such security as the Authority may reasonably
require to protect the Authority from further loss.
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ARTICLE IV
COMPANY OBLIGATIONS; ASSIGNMENT TO TRUSTEE
Section 4.01. General Obligation of the Company. This Agreement
constitutes a general obligation of the Company and the full faith and credit of
the Company is pledged to the payment of all amounts due hereunder.
Section 4.02. Assignment to Trustee. The Authority immediately
following execution and delivery hereof, shall assign this Agreement and all
loan payments payable hereunder (except its right to receive its fees and
expenses and indemnification) to the Trustee pursuant to the Indenture, IN
TRUST, to be held and applied pursuant to the provisions of the Indenture, and
to the Bank. The Company: (1) consents to such assignments and accepts notice
thereof with the same legal effect as though such acceptances were embodied in
separate instruments, separately executed after execution of such assignments;
(2) agrees to pay directly to the Trustee or the Bank, as applicable, all
payments payable hereunder for application to amounts then due and payable or to
become due and payable under the Indenture, such payments to be paid by the
Company to the Trustee without any defense, set-off or counterclaim arising out
of any default on the part of the Authority under the Agreement or any
transaction between the Company and the Authority or the Company and the
Trustee; and (3) agrees that the Trustee and the Bank, as applicable, may
exercise any and all rights and pursue any and all remedies granted the
Authority hereunder.
Section 4.03. Maintenance and Operation of the Project Facilities. (a)
During the term of this Agreement, the Company will at its own cost and expense
keep and maintain, or cause to be kept and maintained, in good repair and
condition (excepting reasonable wear and tear) the Project Facilities and all
additions and improvements thereto, and pay, or cause to be paid, any utility
charges and other costs and expenses arising out of its use or occupancy of the
Project Facilities; and (b) the Company agrees to timely pay for any
improvements to the Project Facilities lawfully done or lawfully ordered to be
done by any municipal, state or federal authority and to comply in all material
respects at its own cost and expense with all lawful and enforceable notices
received (whether by the Authority or the Company) from public authorities from
and after the date hereof that affect the Project Facilities and the use and
operation thereof, other than those improvements, orders and notices, the
amount, validity or application of which is at the time being contested, in
whole or in part, in good faith by appropriate proceedings promptly initiated
and diligently conducted.
Section 4.04. Maintenance of Existence. Except as otherwise permitted
in the Reimbursement Agreement, the Company agrees that it will maintain its
existence as a Pennsylvania corporation, will maintain its status as an entity
authorized to conduct business in the Commonwealth, will not dissolve or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity.
Section 4.05. Compliance with Laws. With respect to the Project
Facilities and any additions, alterations or improvements thereto, the Company
will at all times comply with all
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applicable requirements of federal, state and local laws and with all applicable
lawful requirements of any agency, board, or commission created under laws of
the Commonwealth or of any other duly constituted public authority, and will
use, and permit the use of, the Project Facilities only for such purposes as are
lawful under the Act; provided, however, that the Company shall be deemed in
compliance with this Section 4.05 so long as it is contesting in good faith any
such requirement by appropriate legal proceedings.
Section 4.06. Notice of Bankruptcy Case Commencement. The Company
covenants and agrees that it shall immediately notify the Authority, the Bank
and the Trustee of the commencement of any case by or against it under the
Bankruptcy Code. In addition, within fifteen days of receipt of a written
request from the Trustee, the Company shall deliver a certificate to the Trustee
certifying as to whether a petition in bankruptcy has been filed by or against
the Company under the Bankruptcy Code or any applicable state bankruptcy or
insolvency law.
Section 4.07. Substitute Letter of Credit. The Company may provide for
the delivery to the Trustee of a Substitute Letter of Credit upon thirty (30)
days prior written notice to the Trustee, the Tender Agent, the Remarketing
Agent and the Authority. Any Substitute Letter of Credit shall be delivered to
the Trustee on an Interest Payment Date and not later than the thirtieth (30th)
Business Day prior to the expiration of the Letter of Credit it is being issued
to replace. On or before the date of the delivery of any Substitute Letter of
Credit to the Trustee, as a condition to the acceptance of any Substitute Letter
of Credit by the Trustee, the Company shall furnish to the Authority, the
Trustee and the Remarketing Agent: (i) written evidence that the issuer of such
Substitute Letter of Credit is a commercial bank organized and doing business in
the United States or a branch or agency of a foreign commercial bank located and
doing business in the United States and subject to regulation by state or
federal banking regulatory authorities and that it has been assigned the same or
better rating as the Letter of Credit in effect immediately prior to the
substitution of the Substitute Letter of Credit; (ii) an opinion of nationally
recognized bond counsel to the effect that the delivery of such Substitute
Letter of Credit is authorized under this Agreement and the Indenture and the
Act and complies with the terms hereof, and, that the delivery of such
Substitute Letter of Credit does not adversely affect the exclusion from gross
income of the interest on the Bonds for federal income tax purposes; and (iii)
an opinion of Counsel satisfactory to the Trustee, the Authority, the Company
and the Remarketing Agent to the effect that the Substitute Letter of Credit is
a legal, valid and binding obligation of the issuer (or, in the case of a branch
or agency of a foreign commercial bank, the branch or agency) issuing the same,
enforceable in accordance with its terms, that payments of principal, premium,
if any (if such Substitute Letter of Credit secures the payment of premium), or
Purchase Price of or interest on the Bonds from the proceeds of a drawing on the
Substitute Letter of Credit will not constitute voidable preferences under the
Bankruptcy Code or other applicable laws and regulations and that it is not
necessary to register the Substitute Letter of Credit under the Securities Act
of 1933, as amended, or to qualify an indenture with respect thereto under the
Trust Indenture Act of 1939, as amended. On or before the delivery of any
Substitute Letter of Credit to the Trustee, as an additional condition to the
acceptance of any Substitute Letter of Credit by the Trustee, the Company shall
furnish to the Authority, the Trustee and the Remarketing Agent written evidence
from each Rating Agency that
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the rating on the Bonds will not be reduced or withdrawn as a result of the
acceptance of the Substitute Letter of Credit and that the short term unsecured
debt of the Bank or Substitute Bank, as applicable, shall then have been
assigned a rating by Xxxxx'x of "P-1" or the equivalent rating assigned by S&P.
In the case of a Substitute Letter of Credit issued by a branch or agency of a
foreign commercial bank there shall also be delivered an opinion of Counsel,
satisfactory to the Trustee, the Authority, the Company and the Remarketing
Agent and licensed to practice law in the jurisdiction in which the head office
of such bank is located, to the effect that the Substitute Letter of Credit is
the legal, valid and binding obligation of such bank enforceable in accordance
with its terms. The Trustee shall accept any such Substitute Letter of Credit
only in accordance with the terms, and upon the satisfaction of the conditions,
contained in this Section 4.07 and any other provisions applicable to acceptance
of a Substitute Letter of Credit under this Agreement and the Indenture.
ARTICLE V
THE PROJECT FACILITIES
Section 5.01. Intentionally Omitted.
Section 5.02. Liens. The Company will not create, assume, or suffer to
exist, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind upon the Premises except:
(a) the liens and security interests created by the Collateral
Documents, or otherwise existing on and disclosed to the Authority and the Bank
on the date hereof;
(b) purchase money liens on and security interests in equipment
hereafter acquired which constitutes the deferred portion of the purchase price
thereof;
(c) liens for taxes not yet payable or being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided on the books of the Company;
(d) mechanics', materialmen's, warehousemen's, carriers' or
other like liens arising in the ordinary course of business of the Company,
arising with respect to obligations which are not overdue for a period longer
than thirty (30) days or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided on the books of
the Company;
(e) other encumbrances consisting of zoning restrictions,
easements, restrictions on the use of real property or minor irregularities in
the title thereto, which do not arise in connection with the borrowing of, or
any obligation for the payment of, money and which, in the aggregate, do not
materially detract from the value of the Premises; or
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(f) any liens authorized or permitted under the Reimbursement
Agreement.
ARTICLE VI
INSURANCE; DESTRUCTION, DAMAGE, EMINENT DOMAIN
Section 6.01. Insurance to be Maintained. The Company covenants to
provide and maintain continuously unless otherwise herein provided, adequate
insurance on the Project Facilities as shall be mutually agreed upon by the Bank
and the Company. Each insurance policy with respect to the Project Facilities
shall name the Bank as an additional insured.
Section 6.02. Destruction, Damage and Eminent Domain. If the Project
Facilities shall be wholly or partially destroyed or damaged by fire or other
casualty covered by insurance, or shall be wholly or partially condemned, taken
or injured by any Person, including any Person possessing the right to exercise
the power of or a power in the nature of eminent domain or shall be transferred
to such a Person by way of a conveyance in lieu of the exercise of such a power
by such a Person, the Company covenants that it will take all actions and will
do all things which may be necessary to enable recovery to be made upon such
policies of insurance or on account of such taking, condemnation, conveyance,
damage or injury. The Company is authorized, in its own name, as trustee of an
express trust, to demand, collect, xxx, settle claims, receipt and release
monies which may be due and payable under policies of insurance covering such
damage or destruction or on account of such condemnations, damage or injury. Any
moneys recovered: (i) on policies of insurance required to be maintained
hereunder; or (ii) as a result of any taking, condemnation, conveyance, damage
or injury shall be deposited in the Construction Fund held by the Trustee under
the Indenture and shall be applied in accordance with the provisions of Section
6.04 hereof; provided, however, that as long as the Bank is not in default under
the terms of the Letter of Credit, the applicable provisions of the
Reimbursement Agreement shall control the disposition of casualty insurance and
condemnation award proceeds.
Any appraisement or adjustment of loss or damage and any settlement or
payment therefor, shall be agreed upon by the Company, the Bank (as long as the
Bank is not in default under the Letter of Credit) and the appropriate insurer
or condemnor or Person, and shall be evidenced to the Bank by the certificate
and approvals set forth in the Indenture. The Bank may rely conclusively upon
such certificates.
Section 6.03. Notice of Property Loss. After the occurrence of loss or
damage to, or after receipt of notice of condemnation of, the Project
Facilities, if such loss or damage to the Project Facilities exceeds $50,000,
the Company shall within five (5) Business Days thereof notify the Authority,
the Trustee and the Bank, in writing, of such damage.
Section 6.04. Disposition of Casualty Insurance and Condemnation Award
Proceeds. Subject to the provisions of Section 6.02 hereof, if the Bank is in
default under the terms of the Letter of Credit, and as long as the Company is
not in default under the terms of this Agreement,
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the Company may elect, in its discretion, whether to apply the proceeds of any
casualty insurance coverage and/or condemnation awards to: (i) the repair,
reconstruction or replacement of damaged, destroyed or injured property
comprising the Project Facilities; or (ii) the redemption of Bonds pursuant to
the applicable provisions of the Indenture. Absent timely direction from the
Company as to the application of any casualty insurance coverage and/or
condemnation awards or if the Company shall be in default under the terms of
this Agreement, the proceeds thereof shall be applied to the extraordinary
redemption of the Bonds at par plus accrued interest through the date of
redemption. For purposes of the preceding sentence, "timely direction" shall
mean 30 days after the Company has agreed, in connection with any damage to or
condemnation of the Project Facilities, upon the settlement or payment with
respect to any appraisement or adjustment of loss or damage, as appropriate.
ARTICLE VII
ADDITIONAL COVENANTS OF THE COMPANY
Section 7.01. Compliance with Laws. The Company covenants that all
actions heretofore and hereafter taken by the Company or by the Authority upon
the recommendation or request of any officer of the Company to acquire and carry
out the Project have been and will be, to the best of the knowledge of the
Company, in full compliance with all pertinent laws, ordinances, rules,
regulations and orders applicable to the Company. In connection with the
operation, maintenance, repair and replacement of the Project Facilities, the
Company covenants that it shall comply with all applicable ordinances, laws,
rules, regulations and orders of the government of the United States of America,
the Commonwealth, the County, and any other applicable government unit having
jurisdiction over it, and any requirement of any board of fire underwriters
having jurisdiction or of any insurance company writing insurance on the Project
Facilities; provided, however, that nothing herein shall prevent or prohibit the
Company from contesting in good faith and by appropriate proceedings the
legality or reasonableness of any such standards, or the imposition of any such
standards upon it with respect to the Project Facilities so long as the
operation of the Project Facilities or the receipt of income therefrom would not
be adversely affected by reason thereof. The Company further covenants and
represents that the Project Facilities are in compliance with all applicable
zoning, subdivision, building, land use and similar laws and ordinances. The
Company covenants that it shall not take any action or request the Authority to
execute any release which would cause the Project Facilities to be in violation
of such laws or ordinances or such that a conveyance of the Project Facilities
or of any portion of the Project Facilities would create a violation of such
laws and ordinances. The Company acknowledges that any review by the Authority
or Counsel to the Authority of any action heretofore or hereafter taken by the
Company has been or will be solely for the protection of the Authority. Such
reviews shall not prevent the Authority from enforcing any of the covenants made
by the Company.
Section 7.02. Power to Perform Obligations. The Company covenants and
represents that it has full power and legal right to enter into this Agreement
and perform its obligations hereunder. The making and performance of the
Agreement by the Company has been duly authorized by all necessary action and
will not conflict with or constitute a breach of or default under any bond,
6 -15-
contract, indenture, agreement or any other instrument by which the Company or
any of its properties is or may be bound.
Section 7.03. Inspection. The Company covenants that the Authority, by
its duly authorized representatives, at reasonable times and with reasonable
notice, for purposes of determining compliance with the Agreement, may inspect
any part of the Project Facilities.
Section 7.04. Additional Information. The Company agrees, whenever
requested by the Authority, to provide and certify or cause to be provided and
certified such information concerning the Project Facilities, to enable the
Authority to make any reports or supply any information required by the
Indenture, law, governmental regulation or otherwise.
Section 7.05. Nondiscrimination. During the term of this Agreement, the
Company agrees, as to itself and as to each occupant of the Project Facilities
controlling, controlled by or under common control with the Company (each, a
"Contractor") as follows:
(a) Contractors shall not discriminate against any employee,
applicant for employment, independent contractor or any other Person because of
race, color, religious creed, handicap, ancestry, national origin, age or sex.
Contractors shall take affirmative action to insure that applicants are
employed, and that employees or agents are treated during employment, without
regard to their race, color, religious creed, handicap, ancestry, national
origin, age or sex. Such affirmative action shall include, but is not limited
to: employment, upgrading, demotion or transfer, recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training. Contractors shall post in conspicuous places,
available to employees, agents, applicants for employment and other persons, a
notice to be provided by the contracting agency setting forth the provisions of
this Section 7.05.
(b) Contractors shall, in advertisements or requests for
employment placed by it or on its behalf, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religious creed, handicap, ancestry, national origin, age, or sex.
(c) Contractors shall send each labor union or workers'
representative with which it has a collective bargaining agreement or other
contract or understanding, a notice advising said labor union or workers'
representative of its commitment to this nondiscrimination clause. Similar
notices shall be sent to every other source of recruitment regularly utilized by
Contractors.
(d) It shall be no defense to a finding of noncompliance with
this Section 7.05 that a Contractor had delegated some of its employment
practices to any union, training program or other source of recruitment which
prevents it from meeting its obligations. However, if the evidence indicates
that such a Contractor was not on notice of the third-party discrimination or
made a good faith effort to correct it, such factor shall be considered in
mitigation in determining appropriate sanctions.
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(e) Where the practices of a union or of any training program
or other source of recruitment will result in the exclusion of minority group
persons, so that a Contractor will be unable to meet its obligations under this
Section 7.05, such a Contractor shall then employ and fill vacancies through
other nondiscriminatory employment procedures.
(f) Contractors shall comply with all state and federal laws
prohibiting discrimination in hiring or employment opportunities. Noncompliance
with this Section 7.05 will constitute an Event of Default under this Agreement.
(g) Contractors shall furnish all necessary employment
documents and records to, and permit access to its books, records and accounts
by, the Authority for purposes of investigation to ascertain compliance with the
provisions of this Section 7.05. If Contractor does not possess documents or
records reflecting the necessary information requested, it shall furnish such
information on reporting forms supplied by the Authority.
(h) Contractors shall actively recruit minority subcontractors
and women subcontractors or subcontractors with substantial minority or women
representation among their employees.
(i) Contractors shall include the provisions of this Section
7.05 in every subcontract, so that such provisions will be binding upon each
subcontractor.
(j) Contractors' obligations under this Section 7.05 are
limited to Contractors' facilities within the Commonwealth or, where the
contract is for purchase of goods manufactured outside of the Commonwealth, the
facilities at which such goods are actually produced.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. The following events shall constitute
"Events of Default" under this Agreement:
(a) if the Company falls to make any payment required by
Sections 3.01, 3.03, 3.04 or 3.05 hereof when due; or
(b) if the Company fails to make any other payment required
hereby and such failure continues for 30 days after the Authority or the Trustee
gives notice to the Company that such payment is due and unpaid; or
(c) if the Company fails to perform any of its other covenants
or conditions or fails to perform any of its obligations hereunder and such
failure continues for 30 days after the Authority or the Trustee gives the
Company notice thereof; provided, however, that if such
-17-
performance requires work to be done, actions to be taken, or conditions to be
remedied, which by their nature cannot reasonably be done, taken or remedied, as
the case may be, within such 30 day period, no Event of Default shall be deemed
to have occurred or to exist if, and so long as, the Company shall commence such
performance within such 30-day period and shall diligently and continuously
proceed to completion; or
(d) if the Company commits any act of bankruptcy under the
Bankruptcy Code or any state bankruptcy law or any law providing for
reorganization or relief for debtors or files or has filed against it a petition
in bankruptcy or for arrangement or reorganization pursuant to the Bankruptcy
Code or other similar law, federal or state, or if, by the decree of a court of
competent jurisdiction, is adjudicated a bankrupt or declared insolvent, or
makes an assignment for the benefit of creditors, or admits in writing its
inability to pay its debts generally when or as they become due, or consents to
the appointment of a trustee, receiver or to the liquidation of all or any part
of the Project Facilities, provided that, if any such proceeding is commenced by
a Person other than the Company, there shall be no Event of Default if such
proceedings are dismissed within 60 days of the filing of initial pleadings
therein; or
(e) the written declaration by the Bank of an Event of Default
under and as defined in the Reimbursement Agreement;
Section 8.02. Acceleration. Upon the occurrence of any "Event of
Default" by the Authority under the Indenture caused or resulting directly or
indirectly by the occurrence of an Event of Default by the Company hereunder,
the Trustee (with the prior written consent of the Bank as long as the Bank is
not in default under the Letter of Credit), may, and upon request of the Owners
of 25% in principal amount of the Bonds then Outstanding shall, pursuant to
Section 8.02 of the Indenture, declare the principal of the then-Outstanding
Bonds and accrued interest immediately due and payable, but such Trustee shall
not declare the principal due and payable if such acceleration is annulled as
provided in Section 8.02 thereof. Upon such declaration by the Trustee, the
Authority shall have the right to terminate this Agreement and, upon such
termination, there shall become immediately due and payable hereunder as then
current damages of the Authority under this Agreement, an amount equal: (i) to
all amounts then due and payable by the Authority to the Trustee under this
Section 8.02; and (ii) all other amounts due and owing as loan payments
hereunder. Until such amount is paid by the Company, at the time or times and in
the manner required to permit the Authority to meet its obligations under the
Indenture, the Authority shall continue to have all of the rights, powers and
remedies herein (notwithstanding the termination hereof), and, for such time as
may be necessary to enable the Authority to satisfy in full its obligations
under the Indenture, the term of this Agreement shall, at the election of the
Authority, be extended at the will of the Authority, and the Company's
obligations hereunder shall continue in full force and effect.
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Section 8.03. Payment of Loan Payments on Default; Suit Therefor.
(a) Upon the occurrence of an Event of Default under this
Agreement, then, upon demand of the Authority or its assignee, the Company will
pay to the Authority or its assignee the whole amount of the loan payments that
then shall have become due and payable hereunder and to the extent such loan
payments represent payments due on the Bonds, such payments shall be applied to
the payment of the Bonds in accordance with the terms of the Indenture; and, in
addition thereto, such further amount as shall be sufficient to pay the costs
and expenses of collection, including reasonable compensation based upon actual
time expended by the Authority and its assignee and their respective agents and
attorneys, and any expenses or liabilities incurred by the Authority or its
assignee (other than through the Authority's or its assignee's own gross
negligence or bad faith). In case the Company shall fail forthwith to pay such
amounts upon such demand, the Authority or its assignee shall be entitled and
empowered to institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company and collect in the manner provided by law out
of the property of the Company the money adjudged or decreed to be payable.
(b) In case there shall be pending proceedings in bankruptcy or
for the reorganization of the Company under the Bankruptcy Code or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the benefit of the creditors or the property of the Company, or in the case of
any other similar judicial proceedings relative to the Company, the Authority or
its assignee shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of the loan payments, including interest owing and unpaid in respect
thereof, and, in case of any judicial proceedings, to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Authority or its assignee allowed, and to collect and receive
any moneys or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized to make such payments to the Authority or its assignee, and to pay to
the Authority or its assignee any amount due it for compensation based upon
actual time expended and expenses, including counsel fees incurred by it up to
the date of such distribution.
Section 8.04. Waiver. The Company hereby waives and relinquishes the
benefits of any present or future law exempting the Project Facilities from
attachment, levy or sale on execution, or any part of the proceeds arising from
the sale thereof, and all benefit of stay of execution or other process.
Section 8.05. Cumulative Rights. No remedy conferred upon or reserved
to the Authority or its assignee by 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 given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
waiver by the Authority or its assignee of any breach by the Company of any of
its obligations,
-19-
agreements or covenants hereunder shall be a waiver of any subsequent breach,
and no delay or omission to exercise any right or power 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.
Section 8.06. No Exercise of Remedies Without Consent of Bank.
Notwithstanding anything to the contrary contained in this Agreement, neither
the Authority nor any assignee of the Authority under this Agreement shall
exercise or pursue remedies or declare an Event of Default or cause an
acceleration of the obligations contained in this Agreement without the prior
written consent of the Bank as long as the Bank shall not be in default of its
obligations under the Letter of Credit or a voluntary or involuntary case has
not been commenced by the filing of a petition under the Bankruptcy Code or any
other law relating to insolvency, bankruptcy, reorganization, winding-up or
composition or adjustment of debts by or against the Bank.
ARTICLE IX
OPTIONS TO TERMINATE AGREEMENT
Section 9.01. Option to Terminate Upon Defeasance. The Company shall
have, and is hereby granted, the option to terminate its obligations under this
Agreement prior to full payment of the Bonds by providing for the payment of all
of the Outstanding Bonds in accordance with Article XI of the Indenture.
Section 9.02. Option to Terminate Upon the Occurrence of Certain
Events. The Company shall have, and is hereby granted, the option to terminate
its obligations under this Agreement if any of the events set forth below shall
occur:
(A) The Project Facilities or any portion thereof shall have
been damaged or destroyed: (1) to such extent that it cannot, in the
Company's judgment, be reasonably restored within a period of six (6)
months to the condition thereof immediately preceding such damage or
destruction; or (2) to such extent that the Company is thereby
prevented, in the Company's reasonable judgment, from carrying on its
normal operations at the Project Facilities for a period of six (6)
months or more;
(B) Title to, or the temporary use for a period of six (6)
months or more of, all or substantially all of the Project Facilities,
or such part thereof as shall materially interfere, in the Company's
reasonable judgment, with the operation of the Project Facilities for
the purpose for which the Project Facilities are designed, shall have
been taken under the exercise of the power of eminent domain by any
governmental body or by any Person, firm or corporation acting under
governmental authority (including such a taking or takings as results
in the Company's being thereby prevented from carrying on its normal
operations at the Project Facilities for a period of six (6) months or
more);
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(C) Changes which the Company cannot reasonably control or
overcome in the economic availability of materials, supplies, labor,
equipment and other properties and things necessary for the efficient
operation of the Project Facilities for the purposes contemplated by
this Agreement, shall have occurred, or technological or other changes
shall have occurred which in the judgment of the Company render the
continued operation of the Project Facilities uneconomical for such
purpose; or
(D) As a result of any changes in the Constitution of the
Commonwealth or the Constitution of the United States of America or of
legislative or administrative action (whether state or federal) or by
final decree, judgment or order of any court or administrative body
(whether state or federal) entered after the contest thereof by the
Company in good faith, this Agreement shall have become void and
unenforceable or impossible of performance in accordance with the
intent and purposes of the parties as expressed in this Agreement, or
unreasonable burdens or excessive liabilities shall have been imposed
on the Company in respect to the Project Facilities, including, without
limitation, federal, state or other ad valorem, property, income, or
other taxes not being imposed on the date of this Agreement.
To exercise such option, the Company shall within ninety (90) days
following the event authorizing such termination, give written notice
to the Authority and the Trustee and shall specify therein the date of
redemption of Bonds pursuant to Section 4.01 of the Indenture, which
date shall be the next interest payment date in respect of the Bonds
for which the required notice of redemption can practicably be given.
In accordance with the terms of the Indenture, the Company shall make
arrangements for the Trustee to give the required notice of redemption.
Payment of the redemption price of Bonds redeemed pursuant to this
Section 9.02 will be made in accordance with the terms of the
Indenture.
Anything contained in this Agreement to the contrary notwithstanding,
the Bank shall have the right (as long as the Bank shall not be in default under
the terms of the Letter of Credit) to cause the Company to terminate its
obligations under this Agreement, in accordance with the provisions of this
Section 9.02 by so notifying the Company in writing, if as a result of any
changes in the Constitution of the Commonwealth or the Constitution of the
United States of America or as a result of a legislative or administrative
action (whether state or federal) or final decree, judgment or order of any
court or administrative body (whether state or federal) entered after the
contest thereof by the Company in good faith, this Agreement shall have become
void and unenforceable or impossible of performance, in accordance with the
intent and purposes of the parties as expressed in this Agreement.
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ARTICLE X
MISCELLANEOUS
Section 10.01. Approval of Indenture. The Company acknowledges that it
has received executed copies of the Indenture and a copy the Letter of Credit
and that it is familiar with their provisions, and agrees that it will take all
such actions as are required or contemplated of it under the Indenture to
preserve and protect the rights of the Trustee thereunder and that it will not
take any action which would cause a default or an Event of Default thereunder.
It is agreed by the Company and the Authority that any redemption of the Bonds
prior to maturity shall be effected as provided in the Indenture.
Section 10.02. Taxes and Insurance-Rights of Authority to Pay. If the
Company, at any time, fails to pay any taxes or other impositions payable by it
in accordance with Section 3.04 hereof, or to take out, pay for, maintain or
deliver any of the insurance policies provided for in Article VI, or shall fail,
within the time provided for in Article VIII after the notice therein specified
of any Event of Default, as therein defined, has been given thereunder, to make
any other payment or perform any other act on its part to be made or performed,
then the Authority may, but shall not be obligated so to do, and without further
notice to or demand upon the Company and without waiving or releasing the
Company from any of its obligations under the Agreement: (a) pay any taxes or
other impositions payable by the Company in accordance with Section 3.04 hereof;
(b) take out, pay for and maintain any of the insurance policies provided for in
Article VI hereof; or (c) make any other payment or perform any other act on the
Company's part to be made or performed as provided in this Agreement. All sums
so paid by the Authority and all necessary incidental costs and expenses in
connection with the performance of any such act by the Authority shall, together
with interest thereon at the rate at which interest is charged on defaulted
payments under the Reimbursement Agreement, be payable to the Authority, on
demand, or, at the option of the Authority, may be added to any installment of
the loan payments then due or thereafter becoming due under this Agreement, and
the Company covenants to pay any such sums.
Section 10.03. Illegal Provisions Disregarded. If any term or provision
hereof or the application thereof for any reason or circumstance shall to any
extent be held to be invalid or unenforceable, this Agreement shall be invalid
or unenforceable only to the extent of such invalidity or unenforceability and
such invalidity or unenforceability shall not invalidate the balance of such
provision or the remaining terms or provisions of this Agreement or the
application of such terms or provisions to Persons other than those as to which
it has been held invalid or unenforceable; each term and provision hereof shall
be valid and enforceable to the fullest extent permitted by law, and shall be
liberally construed in favor of the Authority or its assignee in order to effect
the intent of this Agreement.
Section 10.04. Limitation of Liability of the Authority. In the event
of any default by the Authority hereunder, and notwithstanding any provision or
obligation to the contrary hereinbefore or hereinafter set forth, the liability
of the Authority shall be limited to its interest in the Project
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Facilities, the improvements thereon, the rents, issues and profits therefrom,
and the lien of any judgment shall be restricted thereto. The Authority does not
assume general liability nor specific liability for the repayment of any
mortgage or other loan, or for the costs, fees, penalties, taxes, interest,
commissions, charges, insurance or any other payments therein recited or therein
set forth, or incurred in any way in connection therewith. Other than as set
forth hereinabove in this Section 10.04, there shall be no other recourse for
damages of any kind or nature by the Company or any other Person against the
Authority, its incorporator, officers, members, agents and employees, past,
present or future, or any of the property or other assets now or hereafter owned
by it or them, either directly or indirectly; and all such recourse or liability
is hereby expressly waived and released as a condition of and in consideration
for execution and delivery of this Agreement by the Authority. In the event of
entry of judgment against the Authority by virtue of the power herein contained,
the Authority shall xxxx the judgment index to the effect that the judgment is
limited as aforesaid.
Section 10.05. No Recourse as to the Authority. Except as expressly
provided in Section 10.04 above, no recourse under or upon any obligation,
covenant or agreement contained herein or in any Bond shall be had against the
Authority or any member, officer, employee or agent, past, present or future, of
the Authority or of any successor of the Authority under this Agreement, any
other agreement, any rule of law, statute or constitutional provision, or by
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, it expressly being agreed and understood that the obligations of the
Authority hereunder, and under the Bonds and elsewhere, are solely corporate
obligations of the Authority to the extent specifically limited in the Act and
that no personal liability whatsoever shall attach to or shall be incurred by
the Authority or such members, officers, employees or agents, past, present or
future, of the Authority or of any successor of the Authority, or any of them,
because of such indebtedness or by reason of any obligation, covenant or
agreement contained herein, in the Bonds or implied therefrom.
Section 10.06. Reference to Statute or Regulation. A reference herein
to a statute or to a regulation issued by a governmental agency includes the
statute or regulation in force as of the date hereof, together with all
amendments and supplements thereto and any statute or regulation substituted for
such statute or regulation, unless the specific language or the context of the
reference herein clearly includes only the statute or regulation in force as of
the date hereof.
A reference herein to a governmental agency, department, board,
commission or other public body or to a public officer includes an entity or
officer which or who succeeds to substantially the same functions as those
performed by such public body or officer as of the date hereof, unless the
specific language or the context of the reference herein clearly includes only
such public body or public officer as of the date hereof.
Section 10.07. Notices. All notices required or authorized to be given
by the Company, the Authority or the Trustee under the Indenture or pursuant to
this Agreement shall be in writing and shall be sent by registered or certified
mail, postage prepaid, to the following addresses:
to the Authority to:
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Xxxxxxxxxx County Industrial Development
Authority
3 Stony Creek Office Center
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
to the Company to:
Collegeville Inn Conference & Training Center, Inc.
Xxx 000, Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Controller
to the Trustee to:
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
or to such other addresses as may from time to time be furnished to the parties,
effective upon the receipt of notice thereof given as set forth above. Each of
the above agrees that it shall send a duplicate copy or executed copy of all
certificates, notices, correspondence or other data and materials required to be
sent to one of the above to all other parties and in addition, to the Bank at
Great Valley Corporate Center, 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX
00000, Attention: Mr. Xxxxxxx Xxxxxx.
Section 10.08. Applicable Law. This Agreement shall be deemed to be a
contract made in the Commonwealth and governed by the law of the Commonwealth.
Section 10.09. Amendments. This Agreement may not be amended except by
an instrument in writing signed by the parties and, if such amendment occurs
after the issuance of any of the Bonds, consented to by the Trustee and the
Bank, so long as the Bank is not in default under the Letter of Credit.
Section 10.10. Term of Agreement. This Agreement and the respective
obligations of the parties hereto shall be in full force and effect from the
date hereof until all principal of, premium, if any, and interest on the Bonds
shall have been paid or provision for such payment shall have been made pursuant
to the terms and provisions of the Indenture.
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Section 10.11. Amounts Remaining in Bond Fund. It is agreed by the
parties hereto that any amounts remaining in the Bond Fund established under the
Indenture upon expiration or sooner termination of this Agreement after payment
in full of the Bonds (or provision for payment thereof having been made in
accordance with the provisions of the Indenture) and of the fees charges and
expenses of the Trustee and the Authority in accordance with the Indenture,
shall, to the extent of any unreimbursed draws under the Letter of Credit, or
any other Obligations owing by the Company to the Bank under the Reimbursement
Agreement or any of the other Reimbursement Documents (as defined in the
Reimbursement Agreement) be paid to the Bank. Any remaining moneys shall belong
to and be paid to the Company by the Trustee.
Section 10.12. Survival of Covenants, Conditions and Representations.
All covenants, duties, obligations, conditions and representations of the
Company contained herein that, by nature, implied or expressly involve
performance in any particular manner after the termination of this Agreement or
that cannot be ascertained to have been performed until after termination of
this Agreement, shall survive said termination. Without intending to limit the
generality of the foregoing, the Company's covenant to indemnify the Authority
and the Trustee, as set forth in Section 3.10 hereof shall survive any
termination of this Agreement.
Section 10.13. Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be regarded for all purposes as an
original and such counterparts shall constitute but one and the same instrument.
Section 10.14. Consent. Whenever the consent of the Authority or its
assignee is given pursuant to the terms of this Agreement, such consent shall
create no liability or responsibility upon the Authority or its assignee, and
whenever required, shall not be unreasonably withheld.
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IN WITNESS WHEREOF, the XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY has caused this Agreement to be executed in its name and on its behalf
by its Chairperson or Vice Chairman and attested by its Secretary or Assistant
Secretary, and COLLEGEVILLE INN CONFERENCE & TRAINING CENTER, INC. has caused
this Agreement to be executed in its name and on its behalf by its President or
Vice President and attested by its Secretary or Assistant Secretary, all as of
the day and year first above written.
XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By:________________________________
Chairperson or Vice Chairman
Attest:____________________________
(Assistant) Secretary
COLLEGEVILLE INN CONFERENCE &
TRAINING CENTER, INC.
By:_________________________________
Authorized Officer
Attest:_____________________________
Authorized Officer
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