Loan Agreement
dated as of January 1, 0000
xxxxxxx xxx
Xxxxxxx xx Xxxxxxxx, Xxxxxxxx
and
Exolon-ESK Company
_____________________________________
Industrial Development Revenue Refunding Bonds
(Exolon-ESK Company Project)
Series 1993
_____________________________________
Loan Agreement
Table of Contents
Page
Article I Definitions 1
Article II Representations 1
Section 2.1. Representations of Issuer 1
Section 2.2. Representations of Company 3
Article III Completion of the Project 5
Section 3.1. Project Complete 5
Section 3.2. Project Description 5
Section 3.3. Operation of Project 5
Article IV Issuance of Bonds; Loan to Company 5
Section 4.1. Issuance of Bonds 5
Article V Repayment of Loan 6
Section 5.1. Repayment of Loan 6
Section 5.2. Additional Payments 7
Section 5.3. Prepayments 7
Section 5.4. Payments Upon Determination of Taxability 7
Section 5.5. Obligations of Company Unconditional 7
Article VI Other Company Agreements 8
Section 6.1. Maintenance of Existence 8
Section 6.2. Financial Statements 8
Section 6.3. Payment of Taxes 8
Section 6.4. Arbitrage 9
Section 6.5. Company's Obligation with Respect to
Exclusion of Interest Paid on the Bonds 9
Section 6.6. Maintenance of Insurance 10
Section 6.7. Maintenance of Property 10
Section 6.8. Access to the Project and Inspection 10
Section 6.9. Negative Covenant 10
Article VII No Recourse to Issuer 11
Section 7.1. No Recourse to Issuer 11
Section 7.2. Indemnification 11
Article VIII Assignment 11
Section 8.1. Assignment by Company 11
Section 8.2. Assignment by Issuer 11
Article IX Defaults and Remedies 12
Section 9.1. Remedies on Default 12
Section 9.2. Delay Not Waiver 12
Section 9.3. Attorneys' Fees and Expenses 12
Article X Miscellaneous 12
Section 10.1. Notices 12
Section 10.2. Binding Effect 12
Section 10.3. Severability 13
Section 10.4. Amendments 13
Section 10.5. Right of Company To Perform Issuer's Agreements 13
Section 10.6. Applicable Law 13
Section 10.7. Captions 13
Section 10.8. Complete Agreement 13
Section 10.9. Termination 13
Section 10.10. Counterparts 14
Exhibit A Description of the Project
Schedule 2.2(d) Litigation
Schedule 2.2(h) Legal Requirements
Schedule 2.2(i) Properties and Assets
Loan Agreement dated as of January 1, 1993, between the
Village of Hennepin, Xxxxxx County, Illinois, a political
subdivision of the State of Illinois (the Issuer ), and
Exolon-ESK Company, a Delaware corporation (the Company ).
The Industrial Project Revenue Bond Act, Ill. Rev. Stat.,
ch. 29, paragraph 11-74-1 through 11-74-14, inclusive, as
amended, empowers the Issuer to issue its revenue bonds for the
purpose of financing an industrial project, including the
refunding of revenue bonds previously issued by it. On December
28, 1984, the Issuer issued its Industrial Revenue Bonds, Series
1984 (Exolon-ESK Company Project) (the Prior Bonds ) for the
purpose of refinancing costs of the Project (as described in
Exhibit A hereto).
The Issuer proposes to issue $8,000,000 Industrial
Development Revenue Refunding Bonds (Exolon-ESK Company Project)
Series 1993 pursuant to the Indenture in order to provide funds
for the refunding of the Prior Bonds and to loan the proceeds of
the Bonds to the Company, and the Company desires to use the
proceeds to pay a portion of the cost of the refunding of the
Prior Bonds, all on the terms and conditions set forth in this
Loan Agreement.
Accordingly, the Issuer and the Company hereby agree as
follows:
Article I
Definitions
For all purposes of this Loan Agreement, unless the context
clearly requires otherwise, all terms defined in Article I of the
Indenture or Article I of the Covenant Agreement have the same
meanings in this Loan Agreement.
Indenture means the Indenture of Trust relating to the
Bonds, dated as of the date of this Loan Agreement, between the
Issuer and American National Bank and Trust Company of Chicago,
as Trustee, as such Indenture of Trust may be amended or
supplemented from time to time in accordance with its terms.
Article II
Representations
Section 2.1. Representations of Issuer. The Issuer
represents as follows:
(a) The Issuer (1) is a political subdivision duly
organized and existing under the laws of the State, (2) has full
power and authority to enter into the transactions contemplated
by this Loan Agreement and by the Indenture and to carry out its
obligations under this Loan Agreement and the Indenture,
including the issuance of the Bonds, (3) is not in default under
any provisions of the laws of the State and (4) by proper
corporate action has duly authorized the execution and delivery
of this Loan Agreement, the Bonds and the Indenture.
(b) Under existing statutes and decisions, no taxes on
income or profits are imposed on the Issuer. The Issuer will not
knowingly take or omit to take any action reasonably within its
control which action or omission would impair the exclusion of
interest paid on the Bonds from the federal gross income of the
owners of the Bonds.
(c) Neither the execution and delivery by the Issuer of
this Loan Agreement nor the consummation by the Issuer of the
transactions contemplated by this Loan Agreement conflicts with,
will result in a breach of or default under or will (except with
respect to the lien of the Indenture) result in the imposition of
any lien on any property of the Issuer pursuant to the terms,
conditions or provisions of any statute, order, rule, regulation,
agreement or instrument to which the Issuer is a party or by
which it is bound.
(d) Each of this Loan Agreement and the Indenture has been
duly authorized, executed and delivered by the Issuer and each
constitutes the legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms.
(e) There is no litigation or proceeding pending, or to the
knowledge of the Issuer threatened, against the Issuer, or to the
knowledge of the Issuer affecting it, which would adversely
affect the validity of this Loan Agreement, the Indenture or the
Bonds or the ability of the Issuer to comply with its obligations
under this Loan Agreement, the Indenture or the Bonds.
(f) The Issuer is not in default under any of the
provisions of the laws of the State which would affect its
existence or its powers referred to in the preceding subsection
(a).
(g) The Issuer hereby finds and determines that, based on
representations of the Company, all requirements of the Act have
been complied with and that the refinancing of the Project
through the issuance of the Bonds will further the public
purposes of the Act.
(h) No member, director, officer or official of the Issuer
has any pecuniary interest in any employment, financing,
agreement or other contract with the Company or in the
transactions contemplated by this Loan Agreement.
(i) The Issuer will apply the proceeds from the sale of the
Bonds as specified in the Indenture and this Loan Agreement. So
long as any of the Bonds remain outstanding and except as may be
authorized by the Indenture, the Issuer will not issue or sell
any bonds or obligations, other than the Bonds, the principal of
or interest on which will be payable from the property described
in the granting clause of the Indenture.
Section 2.2. Representations of Company. The Company
represents as follows:
(a) The Company (1) is a corporation duly incorporated and
in good standing in the state of Delaware, (2) is duly qualified
to transact business and in good standing in the State and each
other jurisdiction where its ownership or lease of property or
the conduct of its business require such qualification, (3) is
not in violation of any provision of its certificate of
incorporation or its by-laws, (4) has full corporate power to own
its properties and conduct its business, (5) has full legal
right, power and authority to enter into this Loan Agreement and
the Covenant Agreement and consummate all transactions
contemplated by this Loan Agreement and the Covenant Agreement
and (6) by proper corporate action has duly authorized the
execution and delivery of this Loan Agreement and the Covenant
Agreement.
(b) Neither the execution and delivery by the Company of
this Loan Agreement or the Covenant Agreement nor the
consummation by the Company of the transactions contemplated by
this Loan Agreement and the Covenant Agreement conflicts with,
will result in a breach of or default under or will result in the
imposition of any lien on any property of the Company pursuant to
the certificate of incorporation or by-laws of the Company or the
terms, conditions or provisions of any statute, order, rule,
regulation, indenture, agreement or instrument to which the
Company is a party or by which it is bound.
(c) Each of this Loan Agreement and the Covenant Agreement
has been duly authorized, executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms.
(d) There is no litigation or proceeding pending, or to the
knowledge of the Company threatened, against the Company or any
Subsidiary which could adversely affect the validity of this Loan
Agreement or the Covenant Agreement or the ability of the Company
to comply with its obligations under this Loan Agreement or,
except as identified on Schedule 2.2(d) attached hereto, which
could have a material adverse effect on the financial position,
results of operations, business, properties or prospects of the
Company and its Subsidiaries taken as a whole.
(e) The information contained in the Tax Exemption
Certificate and Agreement, the Project Certificate and all other
written information relating to the Project provided by the
Company to the Issuer and bond counsel for the Bonds is true and
correct in all material respects.
(f) (i) The Financial Statements as of December 31, 1991,
1990 and 1989 and for each of the three years then ended,
reported on by Xxxxxx Xxxxxxxx & Co., copies of which have been
delivered to the Initial Purchaser, fairly present, in all
material respects, the financial position of the Company and its
Subsidiaries as of such dates and the results of their operation
and their cash flows for each of the three years then ended in
conformity with GAAP; and (ii) the unaudited Financial Statements
as of September 30, 1992 and September 30, 1991 and for the nine
months then ended, copies of which have been delivered to the
Initial Purchaser fairly present, in all material respects, the
consolidated financial position of the Company and its
Subsidiaries as of such dates and the results of their operations
and their cash flows for the periods then ended in conformity
with GAAP (subject to normal year-end adjustments).
(g) Since December 31, 1991, there has been no material
adverse change in the financial position, results of operations,
business, properties or prospects of the Company and its
Subsidiaries taken as a whole.
(h) Except as otherwise disclosed in the Placement
Memorandum or in Schedule 2.2(h) attached hereto, the Company and
each Subsidiary is in compliance in all material respects with
all Legal Requirements affecting the Company or such Subsidiary,
and all material Governmental Approvals necessary for the use or
occupancy of their respective properties or the conduct of their
business have been obtained by the Company and its Subsidiaries
and are in full force and effect.
(i) All properties and assets of the Company and each
Subsidiary are owned by the Company or such Subsidiary free and
clear of all liens, encumbrances, security interest and pledges
except (i) liens for taxes not yet due or being contested in good
faith and by appropriate proceedings for which adequate reserves
with respect thereto are maintained on the books of the Company
in accordance with GAAP; (ii) carriers', warehousemen's,
mechanics', materialmen's, repairmen's or other liens arising in
the ordinary course of business which are not overdue for a
period of more than 30 days or which are being contested in good
faith by appropriate proceedings; (iii) easements, rights-of-way,
restrictions and other similar encumbrances that do not
materially impair the use or value of the properties or assets of
the Company or such Subsidiary; (iv) liens in favor of the United
States of America for amounts paid to the Company or any
Subsidiary as progress payments under government contracts
entered into by it; (v) liens described in the Financial
Statements referred to in paragraph (f) above or otherwise
disclosed to the Initial Purchaser in writing; and (vi) liens
encumbrances, securities interest and pledges identified in
Schedule 2.2(1) attached hereto.
(j) No condemnation or eminent domain proceeding has been
commenced or, to the knowledge of the Company, is threatened
against any material property of the Company or any Subsidiary.
(k) The information contained in the Placement Memorandum
and any other written information furnished to the Initial
Purchaser is true, correct and complete in all material respects
and does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
contained therein not misleading. There is no fact that the
Company has not disclosed to the Issuer, bond counsel for the
Bonds and the Initial Purchaser in writing that materially and
adversely affects or in the future may (so far as the Company can
now reasonably foresee) materially and adversely affect the
financial position, results of operations, business, properties
or prospects of the Company and its Subsidiaries taken as a whole
or the ability of the Company to perform its obligations under
this Loan Agreement and the Covenant Agreement or any documents
contemplated hereby or thereby.
(1) All representations of the Company contained herein or
in any certificate or other instrument delivered by the Company
in connection herewith shall survive the execution and delivery
thereof and issuance, sale and delivery of the Bonds.
Article III
Completion of the Project
Section 3.1. Project Complete. The acquisition,
construction and installation of the Project has been completed
as contemplated in accordance with the documents executed in
connection with the issuance by the Issuer of the Industrial
Project Revenue Bonds, Series A (ESK Corporation Project) dated
February 1, 1979 (the Series 1979 Bonds ) which were refunded by
the Issuer's Industrial Development Revenue Bonds, Series 1984
ESK Corporation Project dated February 15, 1984 which were
refunded by the Prior Bonds.
Section 3.2. Project Description. The Company will
not make any material change in the Project description contained
in Exhibit A unless the Trustee and the Issuer receive an Opinion
of Tax Counsel to the effect that such change will not impair the
exclusion of interest on the Bonds from the gross income of
holders of the Bonds for Federal income tax purposes. The cost
of the Project for federal tax purposes, including the portion
paid for from proceeds of the Series 1979 Bonds, including
investment income, is set forth in Exhibit A. The provisions of
this Section will not prohibit the Company from disposing of
depreciated or worn out equipment.
Section 3.3. Operation of Project. So long as the Company
operates the Project, it will operate it as an industrial
project as contemplated by the Act and will operate the Project
in such a manner such that it will not impair the exclusion of
interest on the Bonds from gross income of the holders of the
Bonds for Federal income tax purposes under the Code and the
regulations promulgated and proposed thereunder
Article IV
Issuance of Bonds; Loan to Company
Section 4.1. Issuance of Bonds; Loan to Company. In order
to refund the Prior Bonds, the Issuer will issue, sell and
deliver the Bonds to the initial purchasers thereof and deposit
the proceeds of the Bonds with the Trustee as provided in Article
IV of the Indenture. Such deposit shall constitute a loan to the
Company under this Loan Agreement. The Issuer authorizes the
Trustee to disburse the proceeds of the Bonds in accordance with
Section 4.01 of the Indenture. If the funds held pursuant to the
Prior Indenture are not sufficient to accomplish the refunding of
the Prior Bonds within 10 Business Days of Closing, the Company
shall at its own expense and without any right of reimbursement
in respect thereof immediately pay all amounts necessary to
accomplish such refunding. The Company hereby approves the
Indenture and the issuance by the Issuer of the Bonds.
Article V
Repayment of Loan
Section 5.1. Repayment of Loan. The Company will repay
the loan made to it under Section 4.1 as follows:
(i) On the 1st day of March, 1993 and on the 1st day of
each month thereafter to and including the 1st day of July, 1993
the Company shall pay to the Trustee an amount which is not less
than one-fifth of the interest on the Bonds which will become due
on July 1, 1993; provided if the Bonds are initially delivered
after March 1, 1993 such payments due on or before March 1, 1993
shall be proportionally increased to reach the same result. On
the 1st day of August, 1993 and on the 1st day of each month
thereafter the Company shall pay to the Trustee an amount which
is not less than the sum of one-sixth (1/6) of the interest which
will become due on the next or current interest payment date on
the outstanding Bonds and one-twelfth (1/12) of the principal of
the outstanding Bonds which will become due on the next
succeeding or current principal payment date by maturity,
mandatory sinking fund redemption or extraordinary mandatory
redemption. No such payment need be made however to the extent
that there is a sufficient amount already on deposit with the
Trustee and available for such purpose to be applied to such next
interest payment or maturity, mandatory sinking fund redemption
or extraordinary mandatory redemption payment. If the 1st day of
any month is not a Business Day, the payment herein required to
be made shall be made on the next succeeding Business Day.
(ii) On or before 11:00 a.m. (local time at the principal
corporate trust office of the Trustee) on each day on which any
payment of either principal of, premium, if any and interest on
the Bonds, or both, shall become due (whether at maturity, or
upon redemption or acceleration or otherwise), the Company will
pay an amount which, together with other moneys held by the
Trustee under the Indenture and available therefor, will enable
the Trustee to make such payment in full in a timely manner.
If the Company defaults in any payment required by this
Section, the Company will pay interest (to the extent allowed by
law) on such amount until paid at the rate provided for in the
Bonds.
In furtherance of the foregoing, so long as any Bonds are
outstanding the Company will pay all amounts required to prevent
any deficiency or default in any payment of the Bonds, including
any deficiency caused by an act or failure to act by the Trustee,
the Company, the Issuer or any other person.
All amounts payable under this Section by the Company are
assigned by the Issuer to the Trustee pursuant to the Indenture
for the benefit of the Bondholders. The Company consents to such
assignment. Accordingly, the Company will pay directly to the
Trustee at its principal corporate trust office all payments
payable by the Company pursuant to this Section.
Section 5.2. Additional Payments. The Company will also
pay the following within 30 days after receipt of a xxxx
therefor:
(a) The reasonable fees and expenses of the Issuer in
connection with this Loan Agreement and the Bonds, such fees and
expenses to be paid directly to the Issuer; provided that the
Company Representative shall have approved such expenses in
writing prior to their incurrence.
(b) (i) The fees and expenses of the Trustee and all other
fiduciaries and agents serving under the Indenture (including any
expenses in connection with any redemption of the Bonds), and
(ii) all fees and expenses, including attorneys' fees, of the
Trustee for any extraordinary services rendered by it under the
Indenture. All such fees and expenses are to be paid directly to
the Trustee or other fiduciary or agent for its own account as
and when such fees and expenses become due and payable.
Section 5.3. Prepayments. The Company may prepay to the
Trustee all or any part of the amounts payable under Section 5.1
at the times and subject to the conditions that Bonds are subject
to redemption as described in the Bonds. A prepayment shall not
relieve the Company of its obligations under this Loan Agreement
until all the Bonds have been paid or provision for the payment
of all the Bonds has been made in accordance with the Indenture.
In the event of a mandatory redemption of the Bonds, the Company
will prepay all amounts necessary for such redemption.
Section 5.4. Payments Upon Determination of Taxability.
The Company shall pay on demand to any former holder of the Bonds
all amounts required to be paid by the Issuer pursuant to
Section 5.02 of the Indenture.
Section 5.5. Obligations of Company Unconditional. The
obligations of the Company to make the payments required by
Sections 5.1, 5.3 and 5.4 and to perform its other agreements
contained in this Loan Agreement shall be absolute and
unconditional. Until the principal of and interest on the Bonds
shall have been fully paid or provision for the payment of the
Bonds made in accordance with the Indenture, the Company (a) will
not suspend or discontinue any payments provided for in Section
5.1 hereof, (b) will perform all its other agreements in this
Loan Agreement and (c) will not terminate this Loan Agreement for
any cause including any acts or circumstances that may constitute
failure of consideration, destruction of or damage to the
Project, commercial frustration of purpose, any change in the
laws of the United States or of the State or any political
subdivision of either or any failure of the Issuer to perform any
of its agreements, whether express or implied, or any duty,
liability or obligation arising from or connected with this Loan
Agreement.
Article VI
Other Company Agreements
Section 6.1. Maintenance of Existence. The Company agrees
that during the term of this Loan Agreement and so long as any
Bond is outstanding, it will maintain its corporate existence,
will continue to be a corporation in good standing under the laws
of the State of Delaware and qualified to do business in the
States of New York and Illinois, will not dissolve or otherwise
dispose of all or substantially all of its assets and will not
consolidate with or merge into another legal entity or permit one
or more other legal entities (other than one or more subsidiaries
of the Company) to consolidate with or merge into it, except
pursuant to the settlement agreement dated as of May 29, 1992
between the Company and Xxxxxx Chemical Corporation, or sell or
otherwise transfer to another legal entity all or substantially
all its assets as an entirety and dissolve, unless (a) in the
case of any merger or consolidation, the Company is the surviving
corporation, or (b)(i) the surviving, resulting or transferee
legal entity is organized and existing under the laws of the
United States, a state thereof or the District of Columbia, and
(if not the Company) assumes in writing all the obligations of
the Company under this Loan Agreement, (ii) no event which
constitutes, or which with the giving of notice or the lapse of
time or both would constitute an Event of Default shall have
occurred and be continuing immediately after such merger,
consolidation or transfer and (iii) no such merger, consolidation
or transfer shall result in a reduction in any rating then in
effect on the Bonds. As long as the Covenant Agreement shall
remain in effect, no such dissolution, disposal of assets,
consolidation or merger shall occur except in compliance with the
Covenant Agreement.
Section 6.2. Financial Statements. The Company shall
deliver to the Trustee and any Major Bondholder and, upon
request, shall deliver to the Issuer (a) as soon as practicable
and in any event within forty-five (45) days after the end of
each of the first three quarterly periods of each fiscal year of
the Company, the unaudited financial report of the Company for
such quarter and (b) as soon as practicable and in any event
within ninety (90) days after the end of each fiscal year of the
Company, the financial report of the Company for such fiscal year
audited by a firm of independent certified public accountants
regularly retained by the Company. Each such report to the
Trustee and such Bondholders will be accompanied by a no default
certificate evidencing compliance with the Company Covenants.
Section 6.3. Payment of Taxes. The Company will, and will
cause each Subsidiary to, pay and discharge promptly all lawful
taxes, assessments and other governmental charges or levies
imposed upon the Project, or upon any part thereof, as well as
all claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a lien or charge
upon the Project or any other property of the Company or such
Subsidiary; provided that the Company shall not be required to
pay any such tax, assessment, charge, levy or claim (i) if the
amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings promptly
initiated and diligently conducted; (ii) if the Company shall
have set aside on its books reserves (segregated to the extent
required by GAAP) with respect thereto deemed adequate by the
Company; and (iii) if failure to make such payment will not
impair the use of the Project by the Company or such Subsidiary.
Section 6.4. Arbitrage. The Company covenants with the
Issuer and for and on behalf of the purchasers and owners of the
Bonds from time to time outstanding that so long as any of the
Bonds remain outstanding, moneys on deposit in any fund in
connection with the Bonds, whether or not such moneys were
derived from the proceeds of the sale of the Bonds or from any
other sources, will not be used in a manner which will cause the
Bonds to be arbitrage bonds within the meaning of Section 148
of the Code, and any lawful regulations promulgated thereunder,
as the same exist on this date, or may from time to time
hereafter be amended, supplemented or revised. The Company also
covenants for the benefit of the Bondholders to comply with all
of the provisions of the Tax Exemption Certificate and Agreement
and the Project Certificate. The Company reserves the right,
however, to make any investment of such moneys permitted by State
law, if, when and to the extent that said Section 148 or
regulations promulgated thereunder shall be repealed or relaxed
or shall be held void by final judgment of a court of competent
jurisdiction, but only if any investment made by virtue of such
repeal, relaxation or decision would not, in the written Opinion
of Tax Counsel, result in making the interest on the Bonds
includible in the federal gross income of the owners of the
Bonds.
Section 6.5. Company's Obligation with Respect to
Exclusion of Interest Paid on the Bonds;. Notwithstanding any
other provision hereof, the Company covenants and agrees that it
will not take or authorize or permit, to the extent such action
is within the control of the Company, any action to be taken with
respect to the Project, or the proceeds of the Bonds (including
investment earnings thereon), or any other proceeds derived
directly or indirectly in connection with the Project, which will
result in the loss of the exclusion of interest on the Bonds from
the federal gross income of the owners of the Bonds under Section
103 of the Code (except for any Bond during any period while any
such Bond is held by a person referred to in Section 103(b)(13)
of the 1954 Code); and the Company also will not omit to take any
action in its power which, if omitted, would cause the above
result. The inclusion of interest on any Bond in the computation
of the adjustment used in determining the alternative minimum tax
for certain corporations, the environmental tax imposed by
Section 59A of the Code or the branch profits tax on foreign
corporations imposed by Section 884 of the Code does not
constitute a loss of the exclusion from federal gross income of
interest on the Bonds under Section 103 of the Code within the
meaning of this Section. This provision shall control in case of
conflict or ambiguity with any other provision of this Loan
Agreement.
The Company covenants and agrees to notify the Trustee, each
Major Bondholder and the Issuer of the occurrence of any event of
which the Company has notice and which event would require the
Company to prepay the amounts due hereunder because of a
redemption upon a Determination of Taxability (as defined in the
Form of Bond attached to the Indenture as Exhibit A).
The Company covenants and agrees that upon the enactment of
appropriate changes to the Code it will, at its own expense, use
all reasonable efforts to cause to be delivered to the Trustee
the Opinion of Tax Counsel referred to in Section 3.02(b) of the
Indenture.
Section 6.6. Maintenance of Insurance. The Company
agrees, as long as any Bonds are outstanding, to maintain and to
cause each Subsidiary to maintain, insurance with respect to the
Project and all of its other property, including business
interruption insurance and liability insurance, with responsible
and reputable insurance companies or associations in such amounts
and covering such risks as are usually carried by companies
engaged in similar businesses and owning similar properties in
the same general area. Evidence of insurance shall be provided
to the Trustee and each Major Bondholder.
Section 6.7. Maintenance of Property. The Company will,
and will cause each Subsidiary to, as long as any Bonds are
outstanding, maintain and preserve the Project and their other
properties, real or personal, in good working order and
condition, ordinary wear and tear excepted, it being understood
that this agreement relates only to the good working order and
condition of such property and shall not be construed as an
agreement of the Company not to dispose of such property by sale,
lease, transfer or otherwise in the ordinary course of business.
Section 6.8. Access to the Project and Inspection. The
Trustee, the Issuer, and the owners of 25% or more of outstanding
principal amount of the Bonds shall have the right, at all
reasonable times upon the furnishing of reasonable notice under
the circumstances to the Company, to enter upon and to examine
and inspect the Project. The Trustee, the Issuer, such
Bondholders and their duly authorized agents shall also have such
right of access to the Project as may be reasonably necessary for
the proper maintenance of the Project, in the event of failure by
the Company to perform its obligations relating to maintenance
under this Loan Agreement. The Company hereby covenants to
execute, acknowledge and deliver all such further documents, and
do all such other acts and things as may be necessary to grant to
the Trustee, the Issuer and such Bondholders such right of entry.
The Trustee, The Issuer and such Bondholders shall also be
permitted, at all reasonable times, to examine the books and
records of the Company with respect to the obligations of the
Company hereunder, but neither shall be entitled to access to
trade secrets or other proprietary information (other than
financial information) of the Company.
Section 6.9. Negative Covenant;. So long as any of the
Bonds remain outstanding, the Company will not, without the
written consent of the holders of at least a majority in
aggregate principal amount of the outstanding Bonds, sell,
transfer, convey, encumber, mortgage or otherwise dispose of the
Project or substantially all thereof except as permitted by
Section 6.1 and except as permitted in the Covenant Agreement.
Article VII
No Recourse to Issuer; indemnification
Section 7.1. No Recourse to Issuer. The Issuer will not
be obligated to pay the Bonds except from revenues provided by
the Company. The issuance of the Bonds will not directly or
indirectly or contingently obligate the Issuer or the State to
levy or pledge any form of taxation whatever or to make any
appropriation for their payment. Neither the Issuer nor any
member or officer of the Issuer nor any person executing the
Bonds shall be liable personally for the Bonds or be subject to
any personal liability or accountability by reason of the
issuance of the Bonds.
Section 7.2. Indemnification;. The Company during the
term of this Loan Agreement releases the Issuer, the Trustee and
their officers from and covenants and agrees that the Issuer, the
Trustee and their officers shall not be liable for, and agrees to
indemnify and hold the Issuer and the Trustee harmless against,
any loss or damage to property or any injury to or death of any
person occurring on or about or resulting from any defect in the
Project, provided that the indemnity provided in this sentence
shall be effective only to the extent of any loss that may be
sustained by the Issuer, the Trustee or their officers or agents
in excess of the net proceeds received by the Issuer or the
Trustee from any insurance carried with respect to the loss
sustained, and provided further, that the indemnity shall not be
effective for damages that result from the negligence or wilful
misconduct on the part of the Issuer, the Trustee or their
officers or agents. The Company will also indemnify and save
harmless the Issuer, the Trustee and their officers or agents
from and against any and all losses, costs, charges, expenses,
judgments and liabilities imposed upon or asserted against them
with respect to the Project on account of any failure on the part
of the Company to perform or comply with any of the provisions of
this Loan Agreement.
Article VIII
Assignment
Section 8.1. Assignment by Company. The Company may
assign its rights and obligations under this Loan Agreement
without the consent of either the Issuer or the Trustee, but no
assignment will relieve the Company from primary liability for
any obligations under this Loan Agreement.
Section 8.2. Assignment by Issuer. The Issuer will assign
its rights under and interest in this Loan Agreement (except for
the Unassigned Rights) to the Trustee pursuant to the Indenture
as security for the payment of the Bonds. Otherwise, the Issuer
will not sell, assign or otherwise dispose of its rights under or
interest in this Loan Agreement nor create or permit to exist any
lien, encumbrance or other security interest in or on such rights
or interest.
Article IX
Defaults and Remedies
Section 9.1. Remedies on Default. Whenever any Event of
Default under the Indenture has occurred and is continuing, the
Trustee may take whatever action may appear necessary or
desirable to collect the payments then due and to become due or
to enforce performance of any agreement of the Company in this
Loan Agreement.
In addition, if an Event of Default is continuing with
respect to any of the Unassigned Rights, the Issuer may take
whatever action may appear necessary or desirable to it to
enforce performance by the Company of such Unassigned Rights.
Any amounts collected pursuant to action taken under this
Section (except for amounts payable directly to the Issuer or the
Trustee pursuant to Section 5.2, 7.2 and 9.3) shall be applied in
accordance with the Indenture.
Nothing in this Loan Agreement shall be construed to permit
the Issuer, the Trustee, any Bondholder or any receiver in any
proceeding brought under the Indenture to take possession of or
exclude the Company from possession of the Project by reason of
the occurrence of an Event of Default.
Section 9.2. Delay Not Waiver; Remedies. A delay or
omission by the Issuer or the Trustee in exercising any right or
remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy.
All available remedies are cumulative.
Section 9.3. Attorneys' Fees and Expenses. If the Company
should default under any provision of this Loan Agreement and the
Issuer should employ attorneys or incur other expenses for the
collection of the payments due under this Loan Agreement, the
Company will on demand pay to the Issuer the reasonable fees of
such attorneys and such other reasonable expenses so incurred by
the Issuer.
Article X
Miscellaneous
Section 10.1. Notices. All notices or other communications
hereunder shall be sufficiently given and shall be deemed given
when delivered or mailed as provided in the Indenture.
Section 10.2. Binding Effect. This Loan Agreement shall
inure to the benefit of and shall be binding upon the Issuer, the
Company and their respective successors and assigns, subject,
however, to the limitations contained in Section 6.1.
Section 10.3. Severability. If any provision of this Loan
Agreement shall be determined to be unenforceable at any time,
that shall not affect any other provision of this Loan Agreement
or the enforceability of that provision at any other time.
Section 10.4. Amendments. After the issuance of the Bonds,
this Loan Agreement may not be effectively amended or terminated
without the written consent of the Trustee and in accordance with
the provisions of the Indenture.
Section 10.5. Right of Company To Perform Issuer's
Agreements;. The Issuer irrevocably authorizes and empowers the
Company to perform in the name and on behalf of the Issuer any
agreement made by the Issuer in this Loan Agreement or in the
Indenture which the Issuer fails to perform in a timely fashion
if the continuance of such failure could result in an Event of
Default. This Section will not require the Company to perform
any agreement of the Issuer.
Section 10.6. Applicable Law. This Loan Agreement shall be
governed by and construed in accordance with the laws of the
State.
Section 10.7. Captions; References to Sections. The
captions in this Loan Agreement are for convenience only and do
not define or limit the scope or intent of any provisions or
Sections of this Loan Agreement. References to Articles and
Sections are to the Articles and Sections of this Loan Agreement,
unless the context otherwise requires.
Section 10.8. Complete Agreement. This Loan Agreement
represents the entire agreement between the Issuer and the
Company with respect to its subject matter.
Section 10.9. Termination. When no Bonds are Outstanding
under the Indenture, the Company and the Issuer shall not have
any further obligations under this Loan Agreement; provided that
the Company's covenants in Sections 6.4 and 6.5 and the
provisions of Section 5.3 with respect to mandatory redemption of
the Bonds shall survive so long as any Bond remains unpaid, and
the provisions of Sections 5.4 and 7.2 shall survive the
termination of this Loan Agreement.
Section 10.10. Counterparts. This Loan Agreement may be
signed in several counterparts. Each will be an original, but
all of them together constitute the same instrument.
Village of Hennepin, Xxxxxx County,
Illinois
By Xxxx Xxxxx
Village President
[Seal]
Attest:
By Xxxxxxxx Xxxxxx
Village Clerk
Exolon-ESK Company
By Xxxxxxx X. Xxxxxx
Its Executive Vice President
