EXHIBIT 10.44
LOAN AGREEMENT
Between
Port of Xxxxxx Economic Development Corporation
and
ATG Inc.
A California Corporation
November 1, 1999
Port of Xxxxxx Economic Development Corporation
Solid Waste Revenue Bonds, 1999
(ATG Inc. Project)
PORT OF XXXXXX ECONOMIC DEVELOPMENT CORPORATION
SOLID WASTE REVENUE BONDS, 1999
(ATG INC. PROJECT)
LOAN AGREEMENT
TABLE OF CONTENTS
ARTICLE I Definitions and Interpretation..................................................................... 2
Section 1.01 Definitions.................................................................................. 2
Section 1.02 Resolution of Conflicting Provisions......................................................... 3
Section 1.03 Governing Law; Venue......................................................................... 3
ARTICLE II Representations and Warranties.................................................................... 3
Section 2.01 Representations and Warranties of the Issuer................................................. 3
Section 2.02 Representations and Warranties of the Corporation............................................ 4
ARTICLE III Issuance of Bonds; Loan to the Corporation; Loan Payments; Limitation of Liability............... 5
Section 3.01 Authorization to Issue Bonds................................................................. 5
Section 3.02 Loan to the Corporation...................................................................... 6
Section 3.03 Loan Payments; Costs of Issuance............................................................. 6
Section 3.04 Prepayment of Loan Payments.................................................................. 7
Section 3.05 Payments Required Upon Acceleration.......................................................... 7
Section 3.06 Rebate Deposits.............................................................................. 7
Section 3.07 Payments to Issuer........................................................................... 7
Section 3.08 Nature of Corporation's Obligations; Limitation of Liability................................. 8
ARTICLE IV Security.......................................................................................... 8
ARTICLE V Application of Proceeds of Bonds................................................................... 8
Section 5.01 Application of Proceeds of Bonds............................................................. 8
ARTICLE VI Insurance; Damage, Destruction and Condemnation................................................... 10
Section 6.01 Insurance.................................................................................... 10
Section 6.02 Damage, Destruction, Condemnation or Insured Loss of Title................................... 10
ARTICLE VII Other Covenants of the Corporation............................................................... 10
Section 7.01 Mergers or Consolidations.................................................................... 10
Section 7.02 Assignment by Corporation.................................................................... 11
Section 7.03 Operation of Project......................................................................... 11
Section 7.04 Compliance with Laws......................................................................... 12
Section 7.05 Taxes and Other Governmental Charges......................................................... 12
Section 7.06 Notice of Default............................................................................ 12
Section 7.07 Tax-Exempt Status of the Bonds............................................................... 13
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Section 7.08 Indemnification.............................................................................. 14
Section 7.09 Corporation's Performance Under Indenture.................................................... 15
Section 7.10 Compliance with Secondary Disclosure Requirements of the Securities and
Exchange Commission........................................................................ 15
ARTICLE VIII Events of Default; Remedies..................................................................... 15
Section 8.01 Events of Default............................................................................ 15
Section 8.02 Remedies on Default.......................................................................... 16
Section 8.03 No Remedy Exclusive.......................................................................... 17
Section 8.04 No Implied Waiver............................................................................ 17
Section 8.05 Agreement to Pay Attorneys' Fees and Expenses................................................ 17
ARTICLE IX Miscellaneous..................................................................................... 17
Section 9.01 Notices...................................................................................... 17
Section 9.02 Uniformity; Common Plan...................................................................... 18
Section 9.03 Binding Effect............................................................................... 18
Section 9.04 Severability................................................................................. 19
Section 9.05 Amendments................................................................................... 19
Section 9.06 Term of Agreement............................................................................ 19
Section 9.07 Limitation of Issuer Liability............................................................... 19
Section 9.08 Issuer Shall Not Unreasonably Withhold Consents and Approvals................................ 19
Section 9.09 Waiver of Breach............................................................................. 19
Section 9.10 All Obligations Due on Business Days......................................................... 20
Section 9.11 Issuer Observance of Indenture Covenants and Terms........................................... 20
Section 9.12 No Rights Created in Third Parties........................................................... 20
Section 9.13 Time of Essence.............................................................................. 20
Section 9.14 Benefit of Owners............................................................................ 20
Section 9.15 References to Bonds Ineffective After Payment................................................ 20
ARTICLE X Assignment of Issuer's Rights...................................................................... 20
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), made as of the 1st day of November,
1999, by and between the Port of Xxxxxx Economic Development Corporation (the
"Issuer"), a public corporation organized and existing under the laws of the
State of Washington (the "State"), and ATG Inc., a California corporation and
its successors or assigns (the "Corporation");
W I T N E S S E T H :
WHEREAS, the Issuer is a public corporation created by Port of Xxxxxx,
Xxxxxx County, Washington (the "Port") pursuant to chapter 39.84, as amended, of
the Revised Code of Washington (the "Act") and is authorized and empowered to
issue bonds for the purposes provided in the Act; and
WHEREAS, ATG Inc. (the "Corporation"), has applied to the Issuer for
financial assistance for the purpose of providing all or part of the funds with
which to design, construct, acquire and install solid waste disposal facilities
consisting of four separate buildings aggregating approximately 50,000 square
feet and the equipment therefor to be used for nonthermal and thermal treatment
and disposal of low level mixed waste, including functionally related and
subordinate facilities for the temporary storage of such waste prior to its
treatment and after its treatment pending transportation to offsite disposal
facilities (the "Project"); and
WHEREAS, the Issuer has authorized the issuance of its Solid Waste Revenue
Bonds, 1999 (ATG Inc. Project) (the "Bonds"), in the aggregate principal amount
of $26,500,000 to assist in the financing of the Project; and
WHEREAS, the Bonds will be secured by a first lien against the money and
investments held pursuant to the Trust Indenture dated as of November 1, 1999
(the "Indenture"), between the Issuer and BNY Western Trust Company, as Trustee
(the "Trustee"); and
WHEREAS, payment of the principal and Purchase Price of and interest on the
Bonds will be supported by a letter of credit (the "Letter of Credit") issued to
the Trustee by KeyBank National Association (the "Bank"), pursuant to a Credit
and Reimbursement Agreement dated as of November 1, 1999 (the "Reimbursement
Agreement"), by and among the Corporation, the Bank, Sanwa Bank California and
the Lenders from time to time identified therein; and
WHEREAS, this Agreement will require the Corporation to make payments (the
"Loan Payments") in amounts and at times sufficient to pay the principal and
Purchase Price of and premium, if any, and interest on the Bonds when due; and
WHEREAS, the Issuer and the Corporation intend to restrict the use of the
Property as provided herein to preserve the exclusion from gross income for
federal income tax purposes of interest on the Bonds; and
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WHEREAS, in order to secure the payment of all the principal and Purchase
Price of and premium, if any, and interest on the Bonds, the rights of the
Issuer arising under this Agreement (with certain exceptions and reservations
described in Article X) will be assigned to the Trustee, without recourse; and
WHEREAS, the execution and delivery of this Agreement, the assignment of
this Agreement to the Trustee and the issuance of the Bonds have been in all
respects duly and validly authorized by the Issuer pursuant to Resolution No.
99-01EDC adopted on November 4, 1999 (the "Bond Resolution");
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto covenant, agree and bind themselves as follows.
ARTICLE I
Definitions and Interpretation
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Section 1.01 Definitions Unless otherwise expressly provided herein or
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unless the context clearly requires otherwise, the terms defined above shall
have the meanings set forth above and the following terms shall have the
respective meanings set forth below for the purposes hereof. Capitalized terms
not defined herein shall have the meanings given them in the Bond Resolution and
in the Indenture.
"Act" means chapter 39.84 of the Revised Code of Washington, as amended.
"Bondowners" means the Owners of the Bonds.
"Bonds" means the Port of Xxxxxx Economic Development Corporation Solid
Waste Revenue Bonds, 1999 (ATG Inc. Project).
"Code" means the Internal Revenue Code of 1986, as amended, together with
corresponding and applicable provisions of the Internal Revenue Code of 1954, as
amended, as such statutes apply to the Bonds, and together with corresponding
and applicable final, temporary or proposed regulations and revenue rulings
issued or amended with respect thereto by the Treasury Department or Internal
Revenue Service of the United States. All references herein to sections,
paragraphs or other subdivisions of the Code or the regulations promulgated
thereunder shall be deemed to be references to correlative provisions of any
successor code or regulations promulgated thereunder.
"Loan" means the loan by the Issuer to the Corporation of the proceeds of
the Bonds to provide financing for the Project.
"Loan Documents" means this Agreement, the Indenture, the Remarketing
Agreement, and the Reimbursement Agreement.
"Loan Payments" means the payments required or permitted to be made under
the Loan.
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"Property" means the real property located at 0000 Xxxxxxx Xxxx., Xxxxxxxx,
Xxxxxxxxxx, at which the Project is located, and all buildings, structures,
fixtures, equipment and other improvements now or hereafter constructed or
located thereon.
"Treasury Regulations" means the regulations of the Department of the
Treasury under the Code.
Section 1.02 Resolution of Conflicting Provisions. If any of the
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provisions of this Agreement (including the definitions of terms herein)
conflict in any respect with those in the Indenture and cannot be reconciled,
the provisions in the Indenture shall control over provisions in this Agreement.
Section 1.03 Governing Law; Venue. This Agreement is governed by and
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shall be construed in accordance with the laws of the State and shall be
liberally construed so as to carry out the purposes hereof. Except as otherwise
required by applicable law, any action under this Agreement shall be brought in
the Superior Court of the State in and for Xxxxxx County and/or in the United
States District Court for the Eastern District of Washington.
ARTICLE II
Representations and Warranties
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Section 2.01 Representations and Warranties of the Issuer. As of the date
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hereof, the Issuer hereby represents and warrants as follows:
(a) The Issuer is a public corporation, duly organized and validly
existing under and pursuant to the Constitution and laws of the State, and has
full power and authority under the Constitution and laws of the State to enter
into the transactions contemplated on its part by this Agreement, the Indenture,
the Remarketing Agreement and the Bond Resolution, and to carry out its
obligations hereunder and thereunder. By the Bond Resolution, the Issuer has
duly authorized the execution and delivery of this Agreement, the Remarketing
Agreement and the Indenture, the sale, issuance, execution and delivery of the
Bonds, and the performance of its obligations under this Agreement, the
Indenture, the Remarketing Agreement and the Bonds.
(b) Neither the Issuer's execution and delivery of the Bonds, the
Indenture, the Remarketing Agreement or this Agreement, the Issuer's
consummation of the transactions contemplated on its part hereby and thereby,
nor the Issuer's fulfillment of or compliance with the terms and conditions or
provisions of the Bonds, the Indenture, the Remarketing Agreement or this
Agreement conflicts with or results in the breach of any of the terms,
conditions or provisions of any constitutional provision or statute of the State
or of any agreement, instrument, judgment, order or decree to which the Issuer
is now a party or by which it is bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of any lien, charge or
encumbrance of any nature upon any property or assets of the Issuer prohibited
under the terms of any instrument or agreement.
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(c) There is no litigation pending or, to the best of the Issuer's
knowledge, threatened against the Issuer questioning the Issuer's execution,
sale, issuance, delivery or payment of the Bonds, or the Issuer's execution,
delivery or performance of its obligations under this Agreement, the Remarketing
Agreement or the Indenture, or the organization, powers or authority of the
Issuer, or the right of the officers of the Issuer to hold their respective
offices.
(d) Simultaneously herewith, the Issuer's rights, title and interests in
and under this Agreement will be assigned and conveyed to the Trustee (with
certain reservations and exceptions described in Article X), without recourse,
as security for payment of the principal and Purchase Price of and premium, if
any, and interest on the Bonds.
(e) The Issuer hereby lends or will lend to the Corporation in accordance
with the terms of this Agreement the principal sum of $26,500,000 derived from
the proceeds of the sale of the Bonds, all for the purpose of financing all or a
portion of the costs of the Project and of issuing the Bonds.
Section 2.02 Representations and Warranties of the Corporation. As of
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the date hereof, the Corporation hereby represents and warrants as follows:
(a) The Corporation is a corporation organized and existing under the laws
of the State of California, has full legal right, power and authority to enter
into this Agreement and to carry out and consummate all transactions
contemplated by this Agreement and by proper action has duly authorized the
execution and delivery of this Agreement.
(b) This Agreement has been duly executed and delivered by the Corporation
and, assuming due execution and assignment by the Issuer to the Trustee pursuant
to the Indenture, this Agreement will constitute the legal, valid and binding
agreement of the Corporation enforceable against the Corporation in accordance
with its terms for the benefit of the Owners of the Bonds and the Bank, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws or equitable principles relating to or limiting
creditors' rights generally.
(c) Except as disclosed in the official statement relating to the Bonds
(the "Official Statement") or any opinion or written disclosure delivered in
connection with this Agreement or the Reimbursement Agreement, the execution and
delivery of this Agreement, the consummation of the transactions contemplated
herein and the fulfillment of or compliance with the terms and conditions
hereof, will not conflict with or constitute a violation or breach of or default
(with due notice or the passage of time or both) under the Articles of
Incorporation or Bylaws of the Corporation or any applicable law or
administrative rule or regulation, or any applicable court or administrative
decree or order, or any indenture, mortgage, deed of trust, loan agreement,
lease, contract or other agreement or instrument to which the Corporation is a
party or by which the Corporation or its properties are otherwise subject or
bound, or result in the creation or imposition of any prohibited lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the
Corporation, which conflict, violation, breach, default, lien, charge or
encumbrance would have consequences that would materially and adversely affect
the
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consummation of the transactions contemplated by this Agreement or the financial
condition, assets or operations of the Corporation or its properties.
(d) Except as disclosed in the Official Statement or any opinion or
written disclosure delivered in connection with this Agreement or the
Reimbursement Agreement, no consent or approval of any trustee or holder of any
indebtedness of the Corporation and no consent, permission, authorization, order
or license of, or filing or registration with, any governmental authority is
necessary in connection with the execution and delivery of this Agreement or the
consummation of any transaction contemplated herein, except such as are required
in connection or compliance with the provisions of the securities or "Blue Sky"
laws of any jurisdiction, as are required for issuance of the Bonds, as are
necessary in the ordinary course of the acquisition, construction and equipping
of the Project, and as have been obtained or made and are in full force and
effect.
(e) Except as described in the Official Statement, there is no action,
suit, proceeding, inquiry or investigation before or by any court or federal,
state, municipal or other governmental authority pending or, to the knowledge of
the Corporation after reasonable investigation, threatened against or affecting
the Corporation, the Project or the assets, properties or operations of the
Corporation which, if determined adversely to the Corporation, would have a
material and adverse effect upon the consummation of the transactions
contemplated by or the validity of this Agreement or the Project, or upon the
financial condition, assets, properties or operations of the Corporation or the
Project, and the Corporation is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental authority, which default might have consequences
that would materially and adversely affect the consummation of the transactions
contemplated by this Agreement, or the financial conditions, assets or
operations of the Project or the Corporation or its properties. All tax returns
(federal, state and local) required to be filed by or on behalf of the
Corporation have been filed, and all taxes shown thereon to be due, including
interest and penalties, except such, if any, as are being actively contested by
the Corporation in good faith, have been paid or adequate reserves have been
made for the payment thereof.
(f) No written information, exhibit or report furnished to the Issuer by
the Corporation in connection with the negotiation of this Agreement contains
any untrue statement of a material fact.
ARTICLE III
Issuance of Bonds; Loan to the Corporation;
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Loan Payments; Limitation of Liability
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Section 3.01 Authorization to Issue Bonds. The Issuer agrees to sell,
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issue and cause the Bonds to be delivered to the initial purchaser thereof for
the purpose of providing all or part of the funds required to accomplish the
Project and pay the costs of issuing the Bonds. The Corporation hereby approves
the sale, issuance and delivery of the Bonds and all the terms and provisions of
the Indenture and this Agreement, including the assignment thereunder to the
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Trustee, without recourse, of the Issuer's rights, title and interests in and
under this Agreement (with certain exceptions and reservations noted in
Article X).
Section 3.02 Loan to the Corporation. The Issuer agrees to lend to the
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Corporation the principal sum of $26,500,000 (the "Loan"), derived solely from
the proceeds of the Bonds, and the Corporation agrees to borrow that sum from
the Issuer pursuant to this Agreement for the purpose of providing all or part
of the financing for the Project.
Section 3.03 Loan Payments; Costs of Issuance.
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(a) The Corporation agrees to repay the Loan, together with interest
thereon, in Loan Payments that shall be sufficient, together with other money,
if any, in the Bond Fund, to pay in full all of the principal and Purchase Price
of and premium, if any, and interest on the Bonds as the same shall come due,
whether at maturity, earlier redemption, acceleration or optional or mandatory
tender pursuant to the Indenture. All payments of principal and Purchase Price
of and premium, if any, and interest on the Bonds paid from proceeds of draws on
the Letter of Credit or from remarketing proceeds shall be credited against the
amounts due under this Paragraph (a).
(b) The Corporation shall pay from its own non-Bond proceed funds all
costs of issuing the Bonds in excess of the amount of Bond proceeds deposited in
the Costs of Issuance Account in the Project Fund.
(c) On the Date of Issue, the Corporation shall make a Loan Payment to the
Trustee in an amount equal to the amount of interest expected to become due and
payable on the Bonds on the first Interest Payment Date calculated by the
Trustee at the interest rate in effect for the Bonds on the Date of Issue for an
assumed Weekly Interest Rate Period of 47 days (the "prepaid interest reserve").
Pursuant to the Indenture, such Loan Payment shall be deposited in the Principal
and Interest Account of the Bond Fund and used by the Trustee to reimburse the
Bank for draws on the Letter of Credit made to pay interest on the Bonds.
Promptly following each Interest Payment Date, the Trustee shall recalculate the
required amount of the prepaid interest reserve based upon the interest rate
that was in effect for the Bonds on the immediately preceding Interest Payment
Date for an assumed Weekly Interest Rate Period of 47 days and provide written
notice thereof to the Corporation. Not later than ten (10) days following each
Interest Payment Date, the Corporation shall make a Loan Payment to the Trustee
for deposit into the Principal and Interest Account in the amount necessary to
restore the balance in the Principal and Interest Account (after any payment
from the Principal and Interest Account to reimburse the Bank on the immediately
preceding Interest Payment Date) to an amount equal to the prepaid interest
reserve. Notwithstanding the foregoing provisions of this Section 3.03(c), the
Corporation's obligation to fund the prepaid interest reserve shall be deemed to
be satisfied to the extent that capitalized interest is transferred by the
Trustee to the Principal and Interest Account pursuant to the Indenture.
(d) The Corporation shall designate to the Trustee the purpose for which
all money delivered by the Corporation to the Trustee pursuant to this Section
3.03 is so delivered.
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Section 3.04 Prepayment of Loan Payments. The Corporation, at its option,
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may pay the remaining balance of the Loan or any part thereof in advance at the
times and prices and after notice to the Issuer and the Trustee and subsequent
notice to the Bondowners in the manner provided in the Indenture, the Bonds and
the Loan Documents.
Section 3.05 Payments Required Upon Acceleration. In the event of
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acceleration of payment of the principal of and interest on the Bonds, the
Corporation shall pay to the Trustee an amount sufficient, together with other
money held by the Trustee under the Indenture (but not including money in the
Rebate Fund), to pay the entire principal of and accrued interest on the Bonds
to the date of payment.
Section 3.06 Rebate Deposits. The Corporation covenants and agrees to pay
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or cause to be paid to the Trustee for the benefit of the Issuer, for delivery
to the Internal Revenue Service, within 10 days of receipt by the Corporation of
a written demand from the Trustee therefor, such amounts as have been determined
pursuant to Section 5.3 of the Indenture to be necessary to be delivered to the
Internal Revenue Service as a rebate amount for the Bond proceeds (and for other
amounts treated as "gross proceeds" of the Bonds) pursuant to Section 148 of the
Code.
Section 3.07 Payments to Issuer. It shall be a condition of making the
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Loan to the Corporation that the Corporation pay the following amounts to the
Issuer:
(a) An application fee of $1,000, payable on or before the Date of Issue
of the Bonds;
(b) An administration fee equal to 1/10th of 1% of the principal amount of
Bonds Outstanding, payable annually in arrears on each November 1 commencing
November 1, 2000; and
(c) Within 10 days of a request from the Issuer therefor, reimbursement of
expenses incurred by the Issuer under the Indenture, including but not limited
to the fees of the Rating Agency and the Trustee, all stamp or other documentary
taxes or duties to which the Indenture is subject, the costs of calculating
rebate amounts, if any, and of enforcing the provisions of the Indenture or this
Agreement. The Corporation acknowledges that it has the sole obligation to pay
the fees and expenses of the Trustee, the Remarketing Agent and the Bank under
the Indenture, the Remarketing Agreement and the Reimbursement Agreement,
respectively.
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Section 3.08 Nature of Corporation's Obligations; Limitation of Liability.
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(a) The obligations of the Corporation to make the Loan Payments and to
perform and observe the other obligations on its part contained herein and in
the other Loan Documents shall be absolute and unconditional, and shall not be
subject to diminution by setoff, counterclaim, abatement or otherwise. The
Corporation's obligations to make payments and to perform any other covenants or
indemnities or meet any conditions hereunder shall be secured by the property
pledged hereunder; however, no recourse shall be had against any assets of the
Corporation not so pledged, or against any of the officers, directors, members
or employees of the Corporation, nor shall any recourse be had against any
affiliate of the Corporation, or against any officer, director, member or
employee of any such affiliate.
(b) The Corporation will not suspend or discontinue any payments provided
for in this Agreement; will perform and observe all of its other agreements
contained in the Loan Documents, and will not suspend the performance of its
obligations thereunder for any cause, including, without limiting the generality
of the foregoing, any acts or circumstances that may constitute failure of
consideration, eviction or constructive eviction, commercial frustration of
purpose, any change in the tax or other laws or administrative rulings of or
administrative actions by the United States of America or the State or any
political subdivision of any of them, or any failure of any other party to
perform and observe any agreement, whether express or implied, or any duty,
liability or obligation arising out of or connected with the Loan Documents or
the Bonds, whether express or implied.
(c) The Corporation hereby waives, to the extent permitted by law, any and
all rights it may now have or which at any later time may be conferred upon it,
by statute or otherwise, to terminate or cancel, or to limit its liability
under, the provisions of the Loan Documents relating to the use of the Property
by the Corporation or its successors or assigns, except in accordance with the
express terms hereof or thereof.
ARTICLE IV
Security
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The Corporation shall cause the Letter of Credit to be issued to the
Trustee and shall at all time the Bonds are Outstanding ensure that the Letter
of Credit or an Alternate Credit Facility meeting the requirements of the
Indenture shall be in full force and effect.
ARTICLE V
Application of Proceeds of Bonds
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Section 5.01 Application of Proceeds of Bonds.
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(a) The Corporation agrees to apply the proceeds of the Bonds as described
in the Indenture.
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(b) At least 95% of the proceeds of the Bonds, when lent to the
Corporation, shall be used to provide "solid waste disposal facilities" within
the meaning of Section 142(a)(6) of the Code.
(c) The proceeds of the sale of the Bonds shall be devoted to and used
with due diligence solely for the purpose of paying, or reimbursing the
Corporation for, Costs of Issuance and costs of the Project.
(d) No more than 2% of the proceeds of the Bonds shall be used to pay
Costs of Issuance.
(e) Less than 25% of the proceeds of the Bonds shall be used (directly or
indirectly) for the acquisition of land or any interest therein, and no portion
of the proceeds of the Bonds shall be used (directly or indirectly) for the
acquisition of land (or an interest thereon) to be used for farming purposes.
(f) No proceeds of the Bonds shall be used for the acquisition of any
property (or an interest therein) unless the first use of such property is
pursuant to such acquisition or unless rehabilitation expenditures (within the
meaning of Section 147(d)(3) of the Code) are paid or incurred with respect to a
building (and equipment which was part of an integrated operation contained in
the building before its acquisition), in an amount equal to or exceeding 15% of
the portion of the cost of acquiring such building or facilities financed with
Bond proceeds, not later than the date which is two years after the later of the
date of acquisition of the property or the Date of Issue of the Bonds.
(g) All costs of the Project to be reimbursed from proceeds of the Bonds
were paid either after or not more than 60 days before November 20, 1998, the
date the Issuer adopted its official intent resolution, except for (i) qualified
"preliminary expenditures" within the meaning of the reimbursement regulations
of the Code (such as expenditures for architectural, engineering, surveying or
soil testing services and similar items made before commencement of
construction, but not for costs of purchasing land, site preparation or other
costs incident to commencement of construction) in an amount that does not
exceed 20% of the principal amount of Bonds issued to finance the Project; and
(ii) other expenditures for the Project in an aggregate total amount not
exceeding the lesser of 5% or $100,000 of the proceeds of the Bonds.
(h) No Bond proceeds shall be used to provide any airplane, skybox or
other private luxury box, any facility primarily used for gambling, any store
the principal business of which is sale of alcoholic beverages for consumption
off premises, any private or commercial golf course, country club, massage
parlor, tennis club, health club facility, skating facility (including roller
skating, skate board and ice skating), racket sports facility (including any
handball or racquetball court), hot tub facility, suntan facility or racetrack,
or any facility the primary purpose of which is one of the following: retail
food and beverage services, automobile sales or service, or the provision of
recreation or entertainment.
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ARTICLE VI
Insurance; Damage, Destruction and Condemnation
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Section 6.01 Insurance. During the term hereof, the Corporation will
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maintain at its sole cost and expense liability insurance and insurance against
loss and/or damage to the Property and all equipment therein under a policy or
policies covering such risks as are ordinarily insured against by like
organizations engaged in like activities of comparable size and liability
exposure. All insurance required by this section shall be carried by insurers
that are financially responsible and capable of fulfilling the requirements of
such policies. All policies evidencing insurance shall be in the usual form and
shall name the Corporation as the insured party or loss payee and shall also
name the Bank and, in the case of liability insurance, the Trustee as insured
parties and loss payees. The Corporation shall provide to the Trustee and the
Bank copies of certificates from an insurance agent or consultant indicating
that the insurance required by this section has been obtained within 30 days
after the end of each calendar year after the Date of Issue, and shall provide
copies of the insurance policies providing such coverage to the Trustee and the
Bank before the Date of Issue.
Section 6.02 Damage, Destruction, Condemnation or Insured Loss of Title.
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(a) The Corporation shall be obligated to continue to make the Loan
Payments even if the Property or the property therein is destroyed or damaged
(in whole or in part) by fire or other casualty, or if title to, or the
temporary use of, the Property or the property therein or any part thereof shall
be condemned by any governmental body or any person acting under governmental
authority, unless the Corporation shall have theretofore caused all of the
principal of and premium, if any, and interest on the Bonds to have been paid or
prepaid in full in accordance with their terms. Upon the occurrence of any such
event, the Corporation may, with the consent of the Bank, and shall, at the
direction of the Bank pursuant to the Reimbursement Agreement, direct the
Trustee to call Bonds for mandatory redemption pursuant to Section 3.2(2)(c) of
the Indenture.
(b) The Corporation covenants and agrees to use the aggregate net proceeds
of insurance for any damage or destruction of any portion of the Property or the
property therein and/or any insured loss of title to pay the redemption price of
any Bonds called for mandatory redemption as a result of such damage,
destruction or loss of title and otherwise in accordance with the terms of the
Reimbursement Agreement.
ARTICLE VII
Other Covenants of the Corporation
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Section 7.01 Mergers or Consolidations. The Corporation agrees that
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during the term of this Agreement it will:
(a) Maintain its existence and will not dissolve or otherwise dispose of
all or substantially all of its assets and will not consolidate with or merge
into any other entity or permit one or more entities to consolidate or merge
into it; provided, that the Corporation may,
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without violating the covenants contained in this section, consolidate with or
merge into another entity, or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets and thereafter dissolve, provided that the
surviving, resulting or transferee entity, as the case may be, (i) qualifies to
do business in the State, (ii) assumes and agrees in writing to pay and perform
all of the obligations of the Corporation hereunder, (iii) has a net worth
computed according to generally accepted accounting principles that is at least
equal to the net worth of the Corporation at such time, and (iv) furnishes to
the Trustee and the Bank an opinion of Bond Counsel to the effect that such
consolidation or merger will not cause interest on the Bonds to be included in
gross income of the Owners for federal income tax purposes, and
(b) Maintain its qualification to do business in the State, except as
otherwise permitted hereunder.
Section 7.02 Assignment by Corporation. The interest of the Corporation
------------ -------------------------
in this Agreement may be assigned by the Corporation subject, however, to each
of the following conditions:
(a) No assignment shall relieve the Corporation from primary liability for
any of its obligations hereunder, and in the event of any such assignment the
Corporation shall continue to remain primarily liable for the payments specified
in Article III and for performance and observance of the other agreements on its
part provided herein to be performed and observed by it to the same extent as
though no assignment had been granted, unless the Corporation shall have
delivered to the Issuer, the Trustee and the Bank an opinion of Bond Counsel in
form and substance reasonably satisfactory to the Issuer, the Trustee and the
Bank to the effect that such a release from such liability is not prohibited by
the Act and will not adversely affect the exclusion of interest on the Bonds
from gross income of the Owners for federal income tax purposes.
(b) Any assignment by the Corporation shall (unless the Corporation is
released from primary liability under this Agreement pursuant to the provisions
of paragraph (a) of this Section 7.02) retain for the Corporation such rights
and interests as will permit it to perform its obligations under this Agreement,
and any assignee of the Corporation shall assume the obligations of the
Corporation hereunder to the extent of the interest assigned; and under such
circumstances such assignee shall agree in writing with the Issuer to operate
the Project or portion thereof assigned as an "industrial development facility"
within the meaning of the Act and as "solid waste disposal facilities" within
the meaning of Section 142(a)(6) of the Code.
(c) The Corporation shall, within 30 days after delivery thereof, furnish
or cause to be furnished to the Issuer, the Trustee and the Bank a true and
complete copy of each such assignment together with an instrument of assumption
of obligation.
The foregoing restrictions shall not apply to any assignment of this
Agreement in connection with any consolidation, merger or transfer of assets
permitted by Section 7.01.
Section 7.03 Operation of Project.
------------ --------------------
-11-
(a) The Corporation shall use the Project only in furtherance of the
lawful corporate purposes of the Corporation and only as an "industrial
development facility" as defined in the Act and as "solid waste disposal
facilities" as contemplated by Section 142(a)(6) of the Code. Except as
disclosed in the Official Statement or any opinion or written disclosure
delivered in connection herewith or the Reimbursement Agreement, the Corporation
has complied with and shall use its best efforts to continue to comply with all
legal requirements relating to the Project and the operation, repair and
maintenance of the Project, including (i) the attainment of any rezoning or
variances, building, development and other permits and approvals, and licenses
and other entitlements for use, and (ii) securing the issuance of any
certificates of occupancy or other certificates or franchises, and will provide
the Issuer with satisfactory evidence of such compliance.
(b) The Corporation shall make no material alteration or change in use of
the Project without the prior written consent of the Issuer and the Bank, except
any material alteration that (i) is expressly contemplated by and subject to the
conditions specified in this Agreement, (ii) is required by law or ordinance, or
(iii) that does not constitute or result in an event of default under the
Reimbursement Agreement and does not otherwise impair the ability of the
Corporation to perform its obligations hereunder; provided, however, that in no
event shall the Corporation make any material alteration or change in use of the
Project that would change the character of the Project as "industrial
development facilities" within the meaning of the Act and as "solid waste
disposal facilities" within the meaning of Section 142(a)(6) of the Code unless
there shall have been filed with the Issuer and the Trustee both the written
consent of the Bank and the written approving opinion of Bond Counsel to the
effect that such change will not cause interest on any Bond to be included in
gross income of the Owners for federal income tax purposes.
(c) The Corporation agrees that it shall execute and deliver to the
Issuer, from time to time, such additional documents and shall provide such
additional information as the Issuer may reasonably require to be informed of
the Corporation's status and affairs.
Section 7.04 Compliance with Laws. With respect to the Property and
------------ ---------------------
any additions, alterations and improvements thereto, the Corporation covenants
and agrees to comply at all times with all applicable requirements of federal
and State laws and with all applicable lawful requirements of any agency, board,
or commission created under the laws of the State or of any other duly
constituted public authority; provided, however, that the Corporation shall be
deemed in compliance with this section so long as it is contesting in good faith
any such requirement by appropriate legal proceedings.
Section 7.05 Taxes and Other Governmental Charges. The Corporation
------------ ------------------------------------
covenants and agrees to pay all taxes and assessments or other municipal or
governmental charges, if any, lawfully levied or assessed upon or with respect
to the Property, or upon any part thereof or upon any revenues therefrom, when
the same shall become due; provided, however, that the Corporation shall be
deemed in compliance with this section so long as it is contesting in good faith
any such tax, assessment or other governmental charge.
Section 7.06 Notice of Default. The Corporation covenants and agrees to
------------ -----------------
notify the Issuer and the Trustee immediately upon the occurrence of (a) any
event described in Section
-12-
8.01(a); and (b) any event described in Section 8.01(b) or 8.01(c) without
regard to any cure periods mentioned therein which, with the giving of notice or
the passage of time or both, might constitute an Event of Default hereunder, and
shall state in such notice the measures it intends to take with respect thereto,
if any.
Section 7.07 Tax-Exempt Status of the Bonds.
------------ ------------------------------
(a) It is the parties' intention and agreement that, pursuant to Section
103 of the Code, the interest paid on the Bonds shall be excluded from gross
income of the recipients of such interest for federal income tax purposes. In
order to confirm and carry out such intention, the Corporation covenants and
agrees (1) to provide such certificates, opinions of Bond Counsel and other
evidence as may be necessary or requested by the Issuer to establish the
exemption of the Bonds under Section 103 of the Code and the absence of
arbitrage expectation under Section 148 and related sections of the Code; (2)
acting alone or with the Trustee or the Issuer, to file such information and
statements with the Internal Revenue Service as may be required to establish or
preserve such exemption or as may be required by Section 103 or related sections
of the Code; (3) to comply on behalf of the Issuer with the arbitrage rebate
requirement to the extent applicable to the Bonds, including the requirement to
calculate and pay to the United States, at the sole expense of the Corporation,
all arbitrage rebate amounts in the manner and at the times required by Section
148 of the Code; and (4) if required to prevent a loss of the exclusion from
gross income for federal income tax purposes of interest on the Bonds because of
any failure to meet arbitrage rebate requirements applicable to those Bonds
under Section 148 of the Code, to pay on behalf of the Issuer the penalty and
interest thereon as provided in Subsection 148(f)(7)(C) of the Code. The
Corporation further covenants and agrees that it will not (a) take any action,
(b) fail to take any action or (c) make any use of the Property or the proceeds
of the Bonds, which would cause the interest on the Bonds to be or become
includable in the gross income of the Owners thereof (other than substantial
users of the Property) for federal income tax purposes. Without limiting the
generality of the foregoing, the Corporation further covenants and agrees that
it will take such action or actions, including, without limitation, consenting
and agreeing to amendments to this Agreement or any of the other documents as
may be necessary, in the opinion of Bond Counsel, so that the Corporation and
all subsequent owners of the Property comply fully and continuously with the
Code, as applicable to the Bonds from time to time, and all applicable rules,
rulings, policies, procedures, regulations or other official statements
promulgated or proposed by the Department of the Treasury or the Internal
Revenue Service pertaining to exempt facility bonds issued to finance "solid
waste disposal facilities" (as defined in the Code), including, without
limitation, the Treasury Regulations.
(b) The Corporation reasonably expects that the Project will be used as a
solid waste disposal facility for the entire term of the Bonds, and will take
(or cause to be taken) all action necessary to ensure that the Project is used
exclusively as a "solid waste disposal facility" within the meaning of Section
142(a)(6) of the Code so long as any Bonds are Outstanding.
(c) The Project shall be located wholly within the boundaries of the Port
of Xxxxxx, Xxxxxx County, Washington.
-13-
(d) The Corporation shall not permit the Project to be used or the
proceeds of the Bonds to be invested in such a manner as to cause the Bonds to
be considered guaranteed (in whole or in part) by the United States (or by an
agency or instrumentality) within the meaning of Section 149(b) of the Code.
(e) The Corporation shall be the only principal user of the Project within
the meaning of Section 144(a)(4) of the Code, unless the Corporation provides
the Owners with an opinion of Bond Counsel satisfactory to the Owners to the
effect that the addition of one or more principal users (such users, together
with the Corporation, shall be referred to herein as "Users") shall not (i)
cause the Project to lose its status as an "industrial development facility"
under the Act or a "solid waste disposal facility" under Section 142(a)(6) of
the Code, or (ii) cause the interest on the Bonds to be included in gross income
for federal income tax purposes.
Section 7.08 Indemnification.
------------ ---------------
(a) The Corporation covenants and agrees, at its expense, to pay and to
indemnify and hold the Issuer and the Trustee and their commissioners, officers,
agents and employees harmless of, from and against any and all claims, damages,
demands, expenses, liabilities and taxes of any character or nature whatsoever
relating to the Loan, the Bonds or the Project, including, but not limited to,
claims for loss or damage to any property or injury to or death of any person,
asserted by or on behalf of any person and arising out of, resulting from, or in
any way connected with the Property, or the conditions, occupancy, use,
possession, conduct or management of or any work done in or about the Property
or from the planning, design, construction, improvement and refinancing of the
Property, or any part thereof; or any untrue statement or alleged untrue
statement of any material fact or the omission or alleged omission to state a
material fact necessary to make the statements made in any statement,
information or material furnished by the Corporation to the Issuer or the
Remarketing Agent including, but not limited to, any information for use in any
official statement used by the Issuer or the Remarketing Agent in connection
with the sale of the Bonds, not misleading; provided that this covenant shall be
subject to the provisions of Section 7.08(c).
(b) The Corporation further covenants and agrees, at its expense, to pay
and to indemnify and hold the Issuer and the Trustee and their commissioners,
officers, agents and employees harmless of, from and against all costs,
reasonable counsel fees, expenses and liabilities incurred in any action or
proceeding brought by reason of any claim or demand described in Section
7.08(a). In the event that any action or proceeding is brought against the
Issuer or the Trustee or their commissioners, officers or employees by reason of
any such claim or demand, the Corporation, upon notice from the Issuer or the
Trustee, as applicable, covenants and agrees to resist and defend such action or
proceeding on behalf of the Issuer or the Trustee or their commissioners,
officers or employees; provided that this covenant shall be subject to the
provisions of Section 7.08(c).
(c) The Corporation shall not be obligated to indemnify the Issuer or the
Trustee or their commissioners, officers, agents or employees in the
circumstances described in Sections 7.08(a) and (b) against liability for
damages arising out of bodily injury to persons or damage to property caused by
its or their negligence or willful and malicious acts.
-14-
(d) The Corporation covenants and agrees, at its expense, to pay and to
indemnify and hold the Trustee harmless of, from and against all costs,
reasonable counsel fees, expenses and liabilities incurred without negligence or
willful misconduct by the Trustee and arising out of or in connection with its
acting as trustee and bond registrar under the Indenture.
(e) The provisions of this Section 7.08 are subject to the provisions of
Section 3.08(a) and shall, to the extent permitted by law, survive termination
of this Agreement.
Section 7.09 Corporation's Performance Under Indenture. The Corporation
------------ -----------------------------------------
shall, for the benefit of the Owners of the Bonds, the Bank and the Trustee, do
and perform all acts and things that are to be done or performed by it, either
directly on its own behalf or on behalf of the Issuer, under the terms of the
Indenture, all of which terms are incorporated herein by this reference. Upon
request from the Trustee, the Corporation shall provide to the Trustee copies of
its most recent financial statements for distribution to Bondowners who have
requested the same.
Section 7.10 Compliance with Secondary Disclosure Requirements of the
------------ --------------------------------------------------------
Securities and Exchange Commission. If the interest rate on any of the Bonds is
----------------------------------
converted to a Term Interest Rate Period of one year or more, the Corporation
shall, on or prior to the commencement of such Term Interest Rate Period, enter
into a binding agreement or undertaking (the "Undertaking") with the Issuer, the
Trustee (acting in a separate capacity and under a separate agreement as
dissemination agent) or another dissemination agent, the Remarketing Agent and
the Owners of those Bonds, that complies with Rule 15c2-12(b)(5)(i), promulgated
by the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended, in effect on the date of such binding agreement. Failure of
the Corporation or the dissemination agent to comply with this Section 7.10 or
the Undertaking shall not be considered an Event of Default hereunder or under
the Indenture; however the Trustee, acting as dissemination agent, may (and, at
the request of the Owners of at least a majority in aggregate principal amount
of the Bonds Outstanding, accompanied by indemnity satisfactory to it, shall) or
any Owner may, take such actions as may be necessary and appropriate, including
seeking specific performance by court order, to cause the Corporation or
dissemination agent to comply with its obligations under this Section 7.10 or
the Undertaking.
ARTICLE VIII
Events of Default; Remedies
---------------------------
Section 8.01 Events of Default. Any one or more of the following events
------------ -----------------
shall constitute an "Event of Default" hereunder:
(a) Failure of the Corporation to make any payment required to be made
under Section 3.03(a) when due, or to make any other payment required to be made
under any other provision of Article III or Section 7.08 of this Agreement
within 30 days after written notice of such failure has been delivered to the
Corporation by the Issuer or the Trustee;
-15-
(b) Any other material failure on the part of the Corporation to perform
or observe any of the other duties, provisions or obligations required of it
pursuant to this Agreement (other than those set forth in Section 7.10), if such
failure shall have continued for a period of 30 days after written notice
thereof has been delivered to the Corporation by the Issuer or the Trustee,
unless the Issuer or the Trustee, as applicable, has determined that the
Corporation is then taking steps reasonably calculated to cure such failure and
the Trustee has received an opinion of Bond Counsel that such noncompliance will
not result in a Determination of Taxability; and/or
(c) The occurrence of any Event of Default under the Indenture; and/or
(d) Receipt of written notice from the Bank of the occurrence of an event
of default under the Reimbursement Agreement.
Section 8.02 Remedies on Default. Upon the occurrence of an Event of
------------ -------------------
Default any one or more of the following steps may, with the prior written
consent of the Bank, and shall, at the written direction of the Bank (so long as
the Letter of Credit is in effect and the Bank has not failed to honor a
conforming draw thereunder), be taken, except that the Issuer shall have the
right to take steps under paragraph (a) below, if the Issuer has received an
opinion of Bond Counsel that the Event of Default will result in a Determination
of Taxability, and under paragraphs (b) and (c) below, without the consent of,
but with notice to, the Bank:
(a) The Issuer, by written notice to the Corporation and the Trustee, may
declare the entire principal balance of the Loan (if not then due and payable)
to be due and payable immediately, and upon any such declaration the principal
of the Loan shall become and be immediately due and payable, together with all
interest accrued thereon to the date of such acceleration, anything in this
Agreement to the contrary notwithstanding. It is understood and agreed that an
acceleration of the Bonds shall constitute an acceleration of the Loan without
further action by the Issuer or the Trustee;
(b) The Issuer shall be entitled by law or in equity to compel specific
performance by the Corporation of its obligations under this Agreement, it being
recognized that the beneficiaries of the Corporation's obligations hereunder
cannot be adequately compensated by monetary damages in the event of the
Corporation's default;
(c) The Issuer, upon reasonable advance notice, may have access to and
inspect, examine and make copies of the books and records and any and all
accounts, data and income tax and other tax returns of the Corporation;
(d) The Issuer may, without being required to give any notice except as
provided herein, pursue all remedies of a secured creditor under applicable laws
of the State;
(e) The Issuer may proceed to protect and enforce its rights in equity or
at law, either in mandamus or for the specific performance of any covenant or
agreement contained herein, or for the enforcement of any other appropriate
legal or equitable remedy, as the Issuer may deem most effectual to protect and
enforce any of its rights or interests hereunder;
-16-
(f) The Issuer may institute and prosecute any proceeding at law or in
equity to xxxxx, prevent or enjoin any violation or attempted violation of any
of the provisions hereof, or to recover monetary damages caused by such
violation or attempted violation.
Section 8.03 No Remedy Exclusive. No remedy conferred upon or reserved
------------ -------------------
to the Issuer or the Trustee 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, and
the Issuer or the Trustee shall be free to pursue, at the same time, each and
every remedy, at law or in equity, which it may have under this Agreement, or
otherwise.
Section 8.04 No Implied Waiver. No delay or omission to exercise any
------------ -----------------
right or power accruing upon any Event of Default 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. For
the Issuer or the Trustee to exercise any remedy, it shall not be necessary to
give any notice, other than such notice as may be expressly required herein.
Section 8.05 Agreement to Pay Attorneys' Fees and Expenses. If an
------------ ---------------------------------------------
Event of Default arises under any of the provisions of this Agreement and the
Issuer or the Trustee should employ attorneys or incur other expenses for the
collection of Loan Payments or other amounts due under this Agreement or the
enforcement of performance or observance of any obligation or agreement on the
part of the Corporation contained in this Agreement or any other Loan Document,
on demand therefor, the Corporation shall pay or reimburse the Issuer and/or the
Trustee for the reasonable fees of such attorneys and such other expenses so
incurred.
ARTICLE IX
Miscellaneous
-------------
Section 9.01 Notices. Except as otherwise provided herein, all notices,
------------ -------
consents or other communications required hereunder shall be in writing and
shall be sufficiently given if addressed and mailed by first-class, certified or
registered mail, postage prepaid and return receipt requested, as follows:
To the Issuer:
Port of Xxxxxx
Economic Development Corporation
0000 Xxxxxx Xxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Director of Finance and Administration
-17-
To the Corporation:
ATG Inc.
00000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
To the Trustee:
XXX Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxxx Xxxxxx, Xxxxx 0000
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
To the Bank:
KeyBank National Association
Mailcode WA-31-10-4871
000 Xxxxx Xxxxxx, 00/xx/ Xxxxx
X.X. Xxx 00
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxxxx, Vice President
With a copy to:
Sanwa Bank California
Oakland Commercial Banking Center
0000 Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx, Vice President/Manager
A duplicate copy of each notice, certificate, request or other communication
given hereunder to the Issuer or the Corporation shall also be given to the
other and to the Bank and the Trustee. The Issuer, the Trustee, the Bank or the
Corporation may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates, requests or other
communications shall be sent. Notices shall be deemed given as described in
Section 1.3(9) of the Indenture.
Section 9.02 Uniformity; Common Plan. The provisions hereof shall apply
------------ -----------------------
uniformly to the entire Property to establish and carry out a common plan for
the use, development and improvement of the Property.
Section 9.03 Binding Effect. This Agreement shall inure to the benefit
------------ --------------
of and shall be binding upon the Issuer, the Corporation, the Trustee and their
respective successors and assigns, and may be enforced by the Issuer and its
successors and assigns during the term of this
-18-
Agreement. In determining whether any default or lack of compliance by the
Corporation exists under this Agreement, the Issuer shall not be required to
conduct any investigation or review of operations by the Corporation and may
rely solely upon any notice delivered to it by the Corporation with respect to
the occurrence or absence of a default. The parties hereto agree they will
execute and deliver any and all documents and instruments necessary to
effectuate the provisions of this Section 9.03.
Section 9.04 Severability. In the event any provision of this Agreement
------------ ------------
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 9.05 Amendments. The provisions hereof shall not be amended,
------------ ----------
revised or terminated prior to the expiration of the stated term hereof except
by an instrument in writing duly executed by the Issuer and the Corporation (or
its successors in title) in accordance with the provisions of the Indenture, if
the Bonds remain outstanding. No modification of any of the terms of this
Agreement shall be effective until an opinion of Bond Counsel approving the
modification has been delivered to the Issuer as provided herein and in the
Indenture.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
Section 9.06 Term of Agreement. Except as otherwise provided herein,
------------ -----------------
this Agreement shall remain in full force and effect from the date of execution
hereof until no Bonds remain Outstanding under the Indenture and all Loan
Payments and other payments due hereunder have been paid in full.
Section 9.07 Limitation of Issuer Liability. No provision, covenant or
------------ ------------------------------
agreement contained in this Agreement, or any obligations herein imposed upon
the Issuer, or the breach thereof, shall constitute an indebtedness of the
Issuer within the meaning of any State constitutional or statutory limitation,
or shall constitute or give rise to a charge against the general credit of the
Port of Xxxxxx or the State. In making the agreements, provisions and covenants
set forth in this Agreement, the Issuer has not obligated itself except for the
application of the revenues, income and all other property from the Corporation
as provided herein.
Section 9.08 Issuer Shall Not Unreasonably Withhold Consents and
------------ ---------------------------------------------------
Approvals. Wherever in this Agreement it is provided that the Issuer may give
---------
its approval or consent, or execute supplemental agreements, exhibits or
schedules, the Issuer shall not unreasonably, arbitrarily or unnecessarily
withhold or refuse or delay to give such approvals or consents, or refuse or
delay to execute such supplemental agreements, exhibits or schedules.
Section 9.09 Waiver of Breach. No waiver of any breach of any covenant
------------ ----------------
or agreement contained herein shall operate as a waiver of any subsequent breach
of the same covenant or agreement or as a waiver of any breach of any other
covenant or agreement, and in case of a breach by either party of any covenant,
agreement or undertaking, the nondefaulting party may
-19-
nevertheless accept from the other any payment or payments or performance
hereunder without in any way waiving its right to exercise any of its rights and
remedies provided for herein or otherwise with respect to any such default or
defaults that were in existence at the time such payment or payments or
performance were accepted by it.
Section 9.10 All Obligations Due on Business Days. If the date for
------------ ------------------------------------
making any payment or the last date for performance of any act or the exercising
of any right, as provided in this Agreement, shall be a day which is not a
Business Day, such payment may be made or act performed or right exercised on
the next succeeding Business Day with the same force and effect as if done on
the nominal date provided in this Agreement.
Section 9.11 Issuer Observance of Indenture Covenants and Terms. The
------------ --------------------------------------------------
Issuer agrees that it will observe and perform all obligations imposed upon it
by the Indenture and the Bonds; provided, that the Issuer has no obligation to
use its own funds to perform or cause performance of any such obligations. The
Issuer further agrees that it will not amend the Indenture or the Bonds in any
respect except in accordance with the Indenture.
Section 9.12 No Rights Created in Third Parties. The terms of this
------------ ----------------------------------
Agreement are not intended to establish nor to create any rights in any persons
other than the Issuer, the Corporation, the Trustee, the Bank, the Owners and
the respective successors and assigns of each.
Section 9.13 Time of Essence. Time and all terms and conditions shall be
------------ ---------------
of the essence of this Agreement.
Section 9.14 Benefit of Owners. This Agreement is executed in part to
------------ -----------------
induce the issuance of the Letter of Credit by the Bank and the purchase of the
Bonds by the Bondowners, and accordingly all covenants and agreements on the
part of the Corporation and the Issuer as set forth in this Agreement are hereby
declared to be for the benefit of the Bank and the Owners, from time to time, of
the Bonds.
Section 9.15 References to Bonds Ineffective After Payment. Upon the
------------ ---------------------------------------------
payment in full of the principal of and premium, if any, and interest on the
Bonds and the payment of all fees and charges of the Issuer all references in
this Agreement to the Bonds shall be ineffective and neither the Issuer, the
Trustee, the Bank nor the Bondowners shall thereafter have any rights hereunder,
saving and excepting those that shall have theretofore vested and except as
otherwise provided herein, including as otherwise provided in Sections 3.08(a)
and 7.08.
ARTICLE X
Assignment of Issuer's Rights
-----------------------------
To secure the payment of the Bonds in accordance with their terms the
Issuer hereby assigns to the Trustee, for the benefit of the Bondowners, without
recourse, all of its rights, title and interest in this Agreement, except for
(a) its rights and interests described in Sections 3.06, 7.06, 7.07, 7.08(a),
(b) and (c) and 8.02 (except the right to accelerate payment of the Loan
-20-
pursuant to Section 8.02(a)) and 9.01 (the "Concurrent Rights"), which rights
and interests are held concurrently by both the Issuer and the Trustee, and (b)
its rights and interests described in Sections 3.07, 7.01, 7.02, 7.03 and 9.03
and the right to accelerate payment of the Loan pursuant to Section 8.02(a),
which rights and interests shall not be assigned ("Issuer Reserved Rights").
The Issuer's duties hereunder are not assigned. By such assignment, the Trustee
shall succeed to all the rights and privileges of the Issuer hereunder to the
extent of such assignment. ALL REFERENCES TO THE ISSUER HEREIN SHALL BE TREATED
AS REFERENCES TO THE TRUSTEE, ACTING AS ASSIGNEE AND DELEGATEE OF THE ISSUER TO
THE EXTENT THAT THE RIGHTS OF THE ISSUER HAVE BEEN ASSIGNED TO THE TRUSTEE,
EXCEPT THAT THOSE REFERENCES CONTAINED IN THE CONCURRENT RIGHTS SECTIONS SHALL
BE TREATED AS REFERRING TO BOTH THE TRUSTEE AND THE ISSUER, OR EITHER OF THEM,
AND THOSE REFERENCES CONTAINED IN THE ISSUER RESERVED RIGHTS SECTIONS SHALL BE
TREATED AS REFERRING TO THE ISSUER ONLY.
To the extent any right hereunder is held concurrently, each of the Issuer
and the Trustee acting alone, and without the necessity of prior notice to or
consent by the other, may exercise any such Concurrent Right, but exercise of a
Concurrent Right by either the Issuer or the Trustee shall be fully and
completely binding only as among it, the Owners and the Corporation and shall
have no effect upon the other's right to act, or not to act, in connection with
any such right. In the event of a conflict between the Issuer and the Trustee
with respect to the exercise of any Concurrent Right, the Trustee shall have the
right to direct any proceedings with respect to that right as long as any Bonds
remain outstanding.
The Corporation hereby consents to the assignment of rights set forth in
this Article X and agrees to faithfully render the performance of all of its
duties and obligations hereunder to the Trustee except for (a) the Concurrent
Rights, which shall be rendered to both the Trustee and the Issuer, and (b) the
Issuer Reserved Rights, which shall be rendered only to the Issuer.
When all principal of and premium, if any, and interest due on the Bonds
and all amounts owed to the Trustee under the Indenture are fully paid, the
Trustee shall release and assign to the Issuer any remaining interest it has in
this Agreement.
-21-
IN WITNESS WHEREOF, the Issuer and the Corporation have caused this
Agreement to be executed in their respective names all by their duly authorized
officers, and have caused this Agreement to be dated as of the date set forth on
page 1 hereof.
PORT OF XXXXXX ECONOMIC DEVELOPMENT CORPORATION
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
President, Board of Directors
Attest:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Secretary to the Board of Directors
ATG INC.
By /s/ Xxxxx Xxxx
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Executive Vice President
Consented to by:
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxxxx
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Vice President
The undersigned, as Trustee, hereby accepts the assignment by the Port of
Xxxxxx Economic Development Corporation of its rights, title and interests in
this Agreement (with certain reservations and exceptions noted in Article x),
without recourse, as of the above date.
By /s/ Xxxxx Xxxxxx
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Assistant Vice President/Authorized Officer
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