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Exhibit 10.21
LOAN AGREEMENT
Between
City of Janesville, Wisconsin
and
Xxxxxxx Manufacturing Company, Inc.
Dated as of November 1, 1982
Certain rights of the Issuer under this Loan Agreement have been
assigned to, and are subject to a security interest in favor of,
Continental Illinois National Bank and Trust Company of Chicago, as Trustee
under a Trust Indenture dated as of November 1, 1982, as amended or
supplemented from time to time, between the City of Janesville, Wisconsin,
and such Trustee. Information concerning such assignment may be obtained
from the Trustee at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
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TABLE OF CONTENTS
(This Table of Contents is not a part of the Loan Agreement but is for
convenience of reference only)
ARTICLE I
Definitions and Rules of Construction
Page
Sec. 1.01. Definitions ................................... I-1
Sec. 1.02. Rules of Construction ........................ I-5
ARTICLE II
Representations and Warranties
Sec. 2.01. Representations and Warranties
of the Issuer ............................... II-1
Sec. 2.02. Representations and Warranties of
the Corporation ......................... II-2
ARTICLE III
Construction of the Project; Issuance of the Bonds
Sec. 3.01. Construction of the Project ................... III-1
Sec. 3.02. Establishment of Completion Date
Sec. 3.03. Agreement to Issue Bonds ...................... III-1
Sec. 3.04. Disbursements from Redemption Fund ............ III-1
Sec. 3.05. Establishment of Payment of Notes ............. III-1
Sec. 3.06. Corporation Required to Pay Cost of
Refunding ..................................... III-2
Sec. 3.07. Disposition of Balance in Redemption Fund ..... III-2
ARTICLE IV
Loans by the Issuer to the Corporation; Repayment;
Maintenance; Taxes and Liens; Indemnity
Sec. 4.01. Loans by the Issuer; Repayment ................ IV-1
Sec. 4.02. Payments to Remarketing Agent and Trustee ..... IV-2
Sec. 4.03. Letter of Credit .............................. IV-3
Sec. 4.04. No Set-Off .................................... IV-5
Sec. 4.05. Prepayments ................................... IV-5
Sec. 4.06. Covenant to Maintain Project .................. IV-5
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TABLE OF CONTENTS--Cont' d.
Page
Sec. 4.07. Expenses ..................................... IV-6
Sec. 4.08. Indemnification .............................. IV-6
Sec. 4.09. Past Due Payments ............................ IV-7
Sec. 4.10. Issuance of Other Obligations ................ IV-7
ARTICLE V
Further Agreements
Sec. 5.01. Covenant to Maintain Corporate Existence ..... V-1
Sec. 5.02. Issuer's Covenant to Cooperate ............... V-1
Sec. 5.03. No Warranty by Issuer ........................ V-1
Sec. 5.04. Right of Inspection .......................... V-1
Sec. 5.05. Officers of Issuer Not Liable ................ V-2
Sec. 5.06. Reimbursement of Accrued Interest and Ex-
penses ..................................... V-2
Sec. 5.07. Indemnification with Respect to Government
Obligations ................................ V-2
Sec. 5.08. Annual Reports ............................... V-2
Sec. 5.09. Consent to Assignment ........................ V-2
Sec. 5.10. No Interest of Issuer in Project ............. V-3
Sec. 5.11. Recording and Filing; Other Instruments ...... V-3
Sec. 5.12. Non-Arbitrage Covenant ....................... V-3
Sec. 5.13. Provisions Respecting Insurance .............. V-3
Sec. 5.14. Use of Project ............................... V-3
ARTICLE VI
Assignment
Sec. 6.01. Assignment by Corporation .................... VI-1
Sec. 6.02. Assignment by Issuer ......................... VI-2
ARTICLE VII
Events of Default and Remedies
Sec. 7.01. Events of Default ............................ VII-1
Sec. 7.02. Acceleration; Remedies ....................... VII-3
Sec. 7.03. Remedies Not Exclusive ....................... VII-3
Sec. 7.04. Attorneys' Fees and Expenses ................. VII-3
Sec. 7.05. Waivers ...................................... VII-4
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TABLE OF CONTENTS--Cont'd. ARTICLE VIII
Prepayment of the Loan
Page
Sec. 8.01. Option to Prepay Loan ....................... VIII-1
Sec. 8.02. Mandatory Prepayment ........................ VIII-1
Sec. 8.03. Purchase of Bonds ........................... VIII-1
Sec. 8.04. Relative Position of Loan Agreement and
Trust Indenture ............................. VIII-2
ARTICLE IX
Miscellaneous
Sec. 9.01. Termination .................................. IX-1
Sec. 9.02. Reference to Bonds Ineffective After Bonds
Paid ....................................... IX-1
Sec. 9.03. Authorized Issuer Representative ............. IX-1
Sec. 9.04. Authorized Corporation Representative ........ IX-1
Sec. 9.05. Confidential Information ..................... IX-1
Sec. 9.06. Notices ...................................... IX-2
Sec. 9.07. Binding Effect ............................... IX-2
Sec. 9.08. If Payment or Performance Date a Legal
Holiday .................................... IX-2
Sec. 9.09. Severability ................................. IX-3
Sec. 9.10. Amendments, Changes and Modifications ........ IX-3
Sec. 9.11. Execution in Counterparts .................... IX-3
Sec. 9.12. Applicable Law ............................... IX-3
Sec. 9.13. No Charge Against Issuer Credit .............. IX-3
Sec. 9.14. Issuer Not Liable ............................ IX-3
Sec. 9.15. Loan Agreement Supersedes Prior Agreements ... IX-4
Sec. 9.16. Delegation of Duties by Issuer ............... IX-4
EXECUTION
Execution by Issuer .......................................... IX-4
Execution by Corporation ..................................... IX-4
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LOAN AGREEMENT
This LOAN AGREEMENT, dated as of November 1, 1982, by and between the
City of Janesville, Wisconsin, a municipal corporation of the State of
Wisconsin (herein referred to as the "Issuer" or "City"), and Xxxxxxx
Manufacturing Company, Inc., a corporation organized and existing under the
laws of the State of Delaware and qualified to do business under the laws
of the State of Wisconsin (the "Corporation"),
WITNESSETH:
WHEREAS, Section 66.521, Wisconsin Statutes (the "Act"), has been
enacted by the Legislature of Wisconsin; and
WHEREAS, the Act provides that any incorporated city is authorized and
shall have the power to issue industrial development revenue notes and
bonds to finance all or any part of the costs of the construction,
equipping, re-equipping, acquisition, purchase, installation,
reconstruction, rebuilding, rehabilitation, improving, supplementing,
replacing, maintaining, repairing, enlarging, extending or remodeling of
industrial projects and the improvement of sites therefor and to enter into
a revenue agreement with an eligible participant to provide for the payment
of the principal of and interest on said notes and bonds; and
WHEREAS, pursuant to and in accordance with the provisions of the Act,
and pursuant to the terms and provisions of an Indenture of Trust dated as
of August 1, 1980 (the "Original Indenture") between the Issuer and First
Bank (N.A.) - Midland Milwaukee Division (the "Notes Trustee"), the City
has issued and sold its Industrial Development Revenue Bond Anticipation
Notes, Series A (Xxxxxxx Manufacturing Company, Inc. Project), in the
aggregate principal amount of $9,500,000 (the "Notes"), to provide funds to
loan to the Corporation, pursuant to the terms and provisions of a Loan
Agreement, dated as of AuguSt 1, 1980 (the "Original Loan Agreement")
between the Issuer and the Corporation, to pay all or a portion of the cost
of the acquisition of a "Project" within the meaning of the Act for use as
a warehousing and manufacturing facility (hereinafter referred to as the
"Project"), which Project is owned and operated by the Corporation; and
WHEREAS, the Act authorizes the Issuer to issue industrial development
revenue bonds of the Issuer to fund the whole or any part of any revenue
bonds or notes theretofore issued by the City, including any premium
payable with respect thereto and any interest accrued or to accrue thereon,
and the Issuer desires to refund the Notes in order
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to extend the period during which the principal of, premium, if any, and
interest on the indebtedness evidenced by the Notes may be paid; and
WHEREAS, pursuant to and in accordance with the provisions of the Act,
by Resolution of its City Council, the Issuer has authorized and undertaken
to issue its Floating Rate Demand Industrial Development Revenue Bonds
(Xxxxxxx Manufacturing Company, Inc. Project), Series 1982 (the "Bonds"),
to provide funds to loan to the Corporation to pay the principal of and
premium, if any, and interest on the Notes; and
WHEREAS, the Issuer has undertaken to issue the Bonds and to loan the
proceeds from the sale of the Bonds so as to enable the Corporation to
deposit with the Notes Trustee amounts sufficient to pay the principal of
and premium, if any, and interest on the Notes, and the Corporation agrees
to make loan payments hereunder sufficient to pay the principal of,
premium, if any, and interest on the Bonds and related expenses;
NOW THEREFORE, for and in consideration of the premises and the
respective covenants, agreements and representations hereinafter contained,
the parties hereto agree as follows:
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ARTICLE I.
Definitions and Rules of Construction.
Section 1.01. DEFINITIONS. In addition to the words and terms
elsewhere defined in this Loan Agreement, the following words and
terms shall have the following meanings:
"Act" means Section 66.521 of the Wisconsin Statutes, as amended
from time to time.
"Alternate Letter of Credit" means an irrevocable letter of credit
issued in accordance with Section 4.03(b) hereof.
"Authorized Corporation Representative" means each of the persons
at the time designated to act on behalf of the Corporation by written
certificate furnished to the Issuer and the Trustee containing the
specimen signatures of such persons and signed on behalf of the
Corporation by the President or any Vice President of the Corporation.
"Authorized Issuer Representative" means each of the persons at
the time designated to act on behalf of the Issuer by written
certificate furnished to the Corporation and the Trustee containing
the specimen signatures of such persons signed on behalf of the Issuer
by the City Manager.
"Bank" means Chemical Bank as the issuer of the Letter of Credit,
in its capacity as issuer of the Letter of Credit, its successors in
such capacity and their assigns.
"Bond Counsel" means any firm of nationally recognized bond
counsel acceptable to the Issuer and the Corporation.
"Bond Fund" means the fund created by Section 501 of the Trust
Indenture.
"Bonds" means the bonds of the Issuer authorized to be issued
under Section 208 of the Trust Indenture.
"City" means the Issuer.
"City Clerk" means the City Clerk or the Deputy City Clerk of the
Issuer for the time being, or if there is no City Clerk, then any
person designated by the Governing Body, the Constitution of the State
of Wisconsin or the charter of the Issuer to perform the functions of
City Clerk.
"City Manager" means the City Manager or the Assistant City
Manager of the Issuer for the time being, or if there is no City
Manager, then any person designated by the Governing Body, the
Constitution of the State of Wisconsin or the charter of the Issuer to
perform the functions of City Manager.
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"Code" means the Internal Revenue Code of 1954, as amended.
"Completion Date" means the date of completion of the acquisition and
construction of the Project as that date shall be certified as provided in
Section 3.02 hereof.
"Corporation" means Xxxxxxx Manufacturing Company, Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors and assigns and any surviving, resulting or transferee
corporation or other entity.
"Cost" means, without intending thereby to limit or restrict any proper
definiton of such word under the Act, all items of cost which are set forth
in Section 403 of the Trust Indenture.
"Eminent Domain" means the taking pursuant to eminent domain or
condemnation proceedings, or by any settlement or compromise of such
proceedings, or any voluntary conveyance of the Project or any part thereof
during the pendency of, or as a result of a threat of, such proceedings.
"Governing Body" means the City Council of the Issuer as constituted
from time to time or if said Council shall be abolished, then the board,
body or officer succeeding to the principal functions thereof or to whom
the powers of the Issuer shall be given by law.
"Guaranty" means the Guaranty Agreement, of even date herewith, from
Gulf & Western Industries, Inc. to the Trustee, together with any
amendments and supplements thereto permitted by the Trust Indenture.
"Indexing Agent" means the indexing agent appointed in accordance with
Section 926 of the Trust Indenture.
"Issuer" means the City of Janesville, Wisconsin, a municipal
corporation of the State of Wisconsin duly organized and existing under the
Constitution and laws of the State of Wisconsin, and any successor body to
the duties and functions of the Issuer.
"Letter of Credit" means the irrevocable letter of credit issued by the
Bank in favor of the Trustee in accordance with Section 4.03 hereof, and,
upon the issuance and delivery of an Alternate Letter of Credit in
accordance with Section 4.03(b) hereof, "Letter of Credit" shall mean such
Alternate Letter of Credit, and upon the termination of the Letter of
Credit, "Letter of Credit" shall mean any credit facility having terms
substantially the same as those of the Letter of Credit held by the Trustee
in accordance with Section 4.03(c) hereof.
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"Loan Agreement" means this Loan Agreement, together with any
amendments and supplements hereto permitted by the Trust Indenture.
"Loan Payments" means the payments required to be made by the
Corporation pursuant to Section 4.01 hereof.
"Moody's" means Xxxxx'x Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its
successors and their assigns, and, if such corporation shall be dissolved
or liquidated or shall no longer perform the functions of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Issuer, with the
approval of the Corporation, by notice to the Corporation and the Trustee.
"Note Fund" means the "Janesville Note Fund - Xxxxxxx Manufacturing
Company, Inc. Project" created and established with the Notes Trustee
pursuant to the Original Indenture, and used to pay the principal of and
premium, if any, and interest on the Notes.
"Notes" means the Issuer's Industrial Development Revenue
Bond Anticipation Notes, Series A (Xxxxxxx Manufacturing Company,
Inc. Project) issued under the Original Indenture.
"Notes Trustee" means First Bank (N.A.) - Midland Milwaukee
Division, as trustee under the Original Indenture.
"Original Indenture" means the Indenture of Trust dated as of August 1,
1980, between the Issuer and the Notes Trustee, pursuant to which the Notes
were issued and by which they were secured.
"Original Loan Agreement" means the Loan Agreement dated as of August
1, 1980, between the Issuer and the Corporation, pursuant to which the
proceeds of the Notes were loaned to the Corporation in order to finance the
cost of the Project.
"Paying Agent" means any Paying Agent under the Trust Indenture.
"Payment of the Bonds" means payment of the principal of and premium,
if any, and interest on all the Bonds in accordance with their terms,
whether through payment at maturity or purchase or redemption or surrender
for cancellation or provision for such payment in such a manner that the
Bonds shall be deemed to have been paid under the second paragraph of
Section 1301 of the Trust Indenture.
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"Plans and Specifications" means, collectively, the plans and
specifications prepared for the Project as the same may be implemented and
detailed from time to time and as the same may be revised from time to time
prior to the completion of construction of the Project in accordance with
the Original Loan Agreement.
"Project" means the Project of the Corporation described in Exhibit A
to the Original Loan Agreement which has been or is to be acquired,
constructed and installed in the City pursuant to the Plans and
Specifications.
"Redemption Fund" means the fund created By Section 401 of the Trust
Indenture.
"Registrar" means the Registrar under the Trust indenture.
"Reimbursement Agreement" means the Letter of Credit and Reimbursement
Agreement, of even date herewith, between the Corporation and the Bank,
providing for the issuance of the Letter of Credit, and any and all
modifications, alterations, amendments and supplements thereto.
"Remarketing Agent" means the Remarketing Agent appointed under the
Trust Indenture.
"S&P" means Standard & Poor's Corporation, a corporation organized and
existing under the laws of the State of New York, its successors and their
assigns, and if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "S&P" shall
be deemed to refer to any other nationally recognized securities rating
agency designated by the Issuer with the approval of the Corporation, by
notice to the Trustee and the Corporation.
"State" means the State of Wisconsin.
"Trust Indenture" means the Trust Indenture, of even date herewith,
between the Issuer and the Trustee, as the same may be amended or
supplemented in accordance with the terms thereof.
"Trustee" means the bank or trust company at the time serving as
Trustee under the Trust Indenture.
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Section 1.02. RULES OF CONSTRUCTION. (a) Words of the masculine gender
shall be deemed and construed to include correlative words of the feminine
and neuter genders.
(b) Unless the context shall otherwise indicate, the words
"Bond", "coupon", "owner", "holder" and "person" shall include the plural
as well as the singular number, "person" shall mean any individual,
corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency
or political subdivision thereof, and "holder" and "Bondholder" when used
herein with respect to Bonds shall mean the holder or registered owner,
as the case may be, of Bonds at the time issued and outstanding under the
Trust Indenture.
(c) Words importing the redemption or calling for redemption of the
Bonds shall not be deemed to refer to or connote the payment of Bonds at
their stated maturity.
(d) The captions or headings in this Loan Agreement are for convenience
only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Loan Agreement.
(e) All references herein to particular articles or sections are
references to articles or sections of this Loan Agreement unless some other
reference is established.
(f) Any inconsistency between the provisions of this Loan Agreement and
the provisions of the Trust Indenture shall be resolved in favor of the
provisions of the Trust Indenture.
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ARTICLE II.
Representations and Warranties.
Section 2.01. REPRESENTATIONS AND WARRANTIES OF THE ISSUER.
The Issuer represents and warrants that:
(a) It is a municipal corporation of the State of Wisconsin. Under the
provisions of the Act and the Constitution of the State of Wisconsin, the
Issuer is authorized to enter into, execute and deliver this Loan Agreement
and the Trust Indenture, and to undertake the transactions contemplated by
this Loan Agreement and the Trust indenture, to issue the Bonds and to
carry out its obligations hereunder and under the Trust Indenture. The
Issuer has adopted a resolution on November 29, 1982, authorizing the
execution and delivery of this Loan Agreement and the Trust Indenture and
the issuance of the Bonds.
(b) It will assist in financing the cost of paying the principal of and
premium, if any, and interest on the Notes by loaning to the Corporation
the proceeds of the sale of the Bonds. The Corporation has estimated that
the cost of paying the principal of and premium, if any, and interest on
the Notes will equal or exceed $9,700,000, and on that basis and without
any independent investigation thereof, the Issuer agrees to issue the Bonds
in the aggregate principal amount of $9,700,000.
(c) The Bonds will be issued under the Trust Indenture and will mature
on such dates and bear interest at such rates and will be subject to
redemption at the time and at the redemption prices as set forth in the
Trust Indenture.
(d) It will not assign or pledge the Loan Payments hereunder or any
other amounts derived from the Project or pledged pursuant to this Loan
Agreement or the Trust Indenture other than to secure the Bonds.
(e) To the best of its knowledge, information and belief, the Project
is of the type permitted by the Act, and the Issuer is issuing the Bonds to
accomplish the refunding of the Notes heretofore issued for the purpose of
providing funds to loan to the Corporation to pay the cost of the Project
so as to achieve the public purposes of the Act.
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(f) Neither the execution or delivery of this Loan Agreement
or the consummation of the transactions contemplated herein, nor
the fulfillment of or compliance with the terms hereof will
conflict with or result in a breach of any of the terms of, or
constitute a default under any ordinance, indenture, mortgage,
deed of trust or other agreement or instrument to which the
Issuer is now a party or by which it is bound.
(g) All necessary authorizations, approvals, consents and
other orders of any Wisconsin governmental authority or agency
for the execution and delivery by the Issuer of this Loan
Agreement have been obtained and are in full force and effect.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The
Corporation represents and warrants that:
(a) It is a duly organized and existing corporation and in good
standing under the laws of the State of Delaware and is duly qualified
as a foreign corporation to transact business and is in good standing
under the laws of the State. The Corporation is not in violation of
any provision of its Certificate of Incorporation, as amended, or its
By-laws.
(b) It has the corporate power to enter into this Loan Agreement
and perform its agreements hereunder.
(c) It has duly authorized the execution, delivery and performance
of this Loan Agreement.
(d) Neither the execution or delivery of this Loan Agreement or
the consummation of the transactions contemplated herein, nor the
fulfillment of or compliance with the terms hereof will conflict with
or result in a breach of any of the terms or provisions of, or
constitute a material default under, the Corporation's Certificate of
Incorporation, its By-laws, or any material indenture, mortgage, deed
of trust or other agreement or instrument to which the Corporation is
now a party or by which it is bound.
(e) The Corporation has complete and lawful authority to acquire
and to operate the Project and has received all governmental permits
necessary therefor, required as of this date, and will obtain, if and
when required, all necessary governmental and administrative approvals
and permits required in the future in connection with the construction
and operation of the Project.
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(f) (i) Ninety percent or more of the proceeds of the Notes (after
deducting amounts used to pay expenses of issuing such Notes) have been
used to pay those items of the Cost of the Project, or portions thereof,
which constitute costs of acquisition or improvement of land or costs of
acquisition, construction, reconstruction or improvement of property of a
character subject to the allowance for depreciation within the meaning of
Section 103(b)(6)(A) of the Code and the Tax Regulations and (ii) ninety
percent or more of the proceeds of the Bonds (after deducting amounts used
to pay expenses of issuing such Bonds) will be used to pay or provide for
the payment of the principal of and premium, if any, and interest on the
Notes.
(g) As of the date of issuance of the Bonds, the sum of (i) the face
amount of all bonds issued under Section 103(b)(6) of the Code, other than
the Bonds and the Notes, theretofore issued and presently outstanding with
respect to facilities located in the City, or with respect to facilities
integrated with or continguous to such facilities, the principal user of
which is or will be the Corporation or one or more related persons (as
defined in Section 103(b)(6)(C) of the Code), (ii) the aggregate amount of
"capital expenditures" (within the meaning of Section 103(b)(6)(D) of the
Code) with regard to such facilities paid or incurred during the period
beginning three years before the date of the issuance of the Notes (and
financed otherwise than out of the proceeds of the Bonds described in
clauses (i) and (iii) of this paragraph (g)), and (iii) the aggregate
authorized face amount of the Bonds, is less than $10,000,000.
(h) It presently intends to operate the Project, or cause the Project
to be operated, as a warehousing and manufacturing facility, or as
otherwise permitted by the Act through the expiration of the term of this
Loan Agreement.
(i) The Project is of the type authorized and permitted by the Act and
the estimated Cost of the Project determined in accordance with generally
accepted accounting principles exceeds $9,500,000. Subsequent to issuance
of the Bonds and the application of the proceeds thereof pursuant to the
provisions of the Trust Indenture, the Corporation shall have sufficient
funds available to deposit with the Notes Trustee the amounts required to
pay the outstanding principal of and premium, if any, and interest on the
Notes.
(j) The Project will be located at all times during the time the loan
hereunder is outstanding within the Issuer's corporate boundaries as in
existence on the date hereof and the Project has been acquired and
constructed by the Corporation as an industrial development facility in
accordance with the provisions of the Act.
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(k) All necessary authorizations, approvals, consents and other orders
of any governmental authority or agency for the execution and delivery by
the Corporation of this Loan Agreement have been obtained and are in full
force and effect.
(1) Construction of the Project began after February 1980, the date on
which official action was taken by the Issuer with respect to the issuance
of the Notes.
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ARTICLE III.
Construction of the Project; Issuance of the Bonds.
Section 3.01. CONSTRUCTION OF PROJECT. The Corporation has acquired and
constructed, or has caused to be acquired and constructed, the Project
substantially in accordance with the Plans and Specifications therefor.
Section 3.02. ESTABLISHMENT OF COMPLETION DATE. The Completion Date for
the Project has been evidenced to the Trustee by a certificate signed by an
Authorized Corporation Representative setting forth the Cost of the Project
and stating that, except for amounts not then due and payable or the
liability for the payment of which is being contested or disputed by the
Corporation, the acquisition and construction of the Project have been
completed substantially in accordance with the Plans and Specifications
therefor and the Cost of the Project has been paid, which certificate is
given without prejudice to any rights against third parties which exist at
the date of such certificate or which may subsequently come into being.
Section 3.03. AGREEMENT TO ISSUE BONDS. The Issuer agrees that it will
use its best efforts to issue, sell and deliver to the purchasers thereof
its Bonds for the purpose of paying, with any other available funds
provided by the Corporation, the principal of and premium, if any, and
interest on the Notes. The proceeds of the Bonds (including accrued
interest) shall be delivered to the Trustee for deposit as follows: (a) to
the credit of the Bond Fund, an amount equal to the accrued interest, if
any, on the Bonds paid by the purchasers thereof, and (b) to the credit of
the Redemption Fund, an amount equal to the balance of such proceeds.
Section 3.04. DISBURSEMENTS FROM REDEMPTION FUND. The Issuer and the
Corporation hereby agree that the moneys in the Redemption Fund shall be
applied to the payment of the principal of and premium, if any, and
interest on the Notes pursuant to the provisions of the Original Indenture
in accordance with Article IV of the Trust Indenture and such moneys shall
be invested and reinvested in accordance with Article VI of the Trust
Indenture.
Section 3.05. ESTABLISHMENT OF PAYMENT OF NOTES.
The payment in full of the principal of and premium, if any, and interest
on the Notes and any additional amounts required to be paid by the
Corporation in connection with the payment of the Notes under the Original
Loan Agreement shall be evidenced to the Trustee by a certificate signed by
the Notes Trustee setting
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forth the total amount required to be paid by the Corporation and stating
that such amount has been paid.
Section 3.06. CORPORATION REQUIRED TO PAY COST OF REFUNDING. If the
moneys in the Redemption Fund available for the refunding of the Notes
should not be sufficient to pay the principal of and premium, if any, and
interest on the Notes and any additional amounts required to be paid by the
Corporation pursuant to the Original Loan Agreement, the Corporation agrees
to pay all that portion of such costs as may be in excess of the moneys
available therefor in the Redemption Fund. The Issuer does not make any
warranty, either express or implied, that the moneys which will be paid
into the Redemption Fund will be sufficient to pay the Notes. The
Corporation agrees that if, after exhaustion of the moneys in the
Redemption Fund, the Corporation should pay any portion of the amounts
required to pay the Notes, it shall not be entitled to any reimbursement
thereof from the Issuer or from the Trustee and that it shall not be
entitled to any abatement, diminution or postponement of the payments to be
made pursuant to Article IV of this Loan Agreement.
Section 3.07. DISPOSITION OF BALANCE IN REDEMPTION FUND. Pursuant to
Section 406 of the Trust Indenture, as soon as practicable after, and in
any event within 60 days from the receipt of, the Certificate mentioned in
Section 3.05 hereof, all amounts remaining in the Redemption Fund,
including any unliquidated investments made with money theretofore
deposited in the Redemption Fund, shall, at the written direction of the
Corporation, be paid into the Bond Fund and used by the Trustee for the
redemption of Bonds at the earliest date permitted by the Trust Indenture,
the purchase of Bonds for the purpose of cancellation, the payment of
principal on the Bonds or any other purpose which will not impair the
validity of the Bonds under the Act or the exemption from Federal income
taxation of the interest thereon; provided, however, that if the proceeds
of the Bonds remaining in the Redemption Fund after the Trustee' s receipt
of the Certificate mentioned in Section 3.05 hereof shall exceed 5% of the
principal amount of the Bond issue no such excess shall be transferred to
the Bond Fund unless an opinion of Bond Counsel satisfactory to the Trustee
is obtained stating that such transfer will not adversely affect the
exemption of the interest on the Bonds from Federal income taxation
pursuant to Section 103(a) of the Code. After the Trustee's receipt of the
certificate mentioned in Section 3.05 hereof and until such time as the
proceeds remaining in the Redemption Fund are applied as set forth above,
such proceeds shall not be invested at a yield which exceeds the yield on
the Bonds except to the extent approved in an opinion of Bond Counsel.
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ARTICLE IV.
Loans by the Issuer to the Corporation; Repayment; Maintenance; Taxes
and Liens; Indemnity.
Section 4.01. LOANS BY THE ISSUER; REPAYMENT. Upon the terms and
conditions of this Loan Agreement the Issuer shall loan the Corporation the
proceeds of the sale of the Bonds. The principal amount of such loan shall
be equal to the aggregate principal amount of the Bonds.
The Corporation agrees to repay the loan in installments with respect
to each date on which the principal of and the premium, if any, and the
interest on the Bonds is payable (whether at maturity, upon acceleration,
by redemption or otherwise). On such dates, the Corporation will pay such
additional amounts which, together with other moneys available therefor in
the Bond Fund, will be sufficient to pay:
(a) all interest which will become due and payable on the Bonds on
such date;
(b) the principal amount of Bonds, if any, which will become due
and payable on such date, whether at maturity, upon acceleration, by
redemption or otherwise; and
(c) amounts, if any, required to pay any applicable redemption
premium.
The Corporation will pay the amounts it is required to pay under
this Section directly to the Trustee for deposit in the Bond Fund before
the corresponding amounts are due on the Bonds, and for the purposes of
this Section 4.01, all drawings by the Trustee under the Letter of Credit
shall be deemed to be payment by the Corporation.
From the date of the original issuance of the Bonds to and including
November 15, 1992, the Corporation shall secure the payments hereunder by
the delivery of the Letter of Credit to the Trustee simultaneously with the
original issuance and delivery of the Bonds. The Corporation hereby
authorizes and directs the Trustee to draw moneys under the Letter of
Credit in accordance with the provisions of the Trust Indenture to the
extent necessary to make any payments as provided therein.
The Trustee shall not (except as provided in Section 803 of the Trust
Indenture) use any of the amounts deposited in the Bond Fund pursuant to
this Section for any purpose other than the payment
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of principal of and premium, if any, and interest on the Bonds payable on
the date with respect to which such amounts were deposited.
Section 4.02. PAYMENTS TO REMARKETING AGENT AND TRUSTEE.
(a) The Corporation shall pay to the Remarketing Agent amounts
equal to the amounts to be paid by the Remarketing Agent pursuant to
Section 920 of the Trust Indenture in respect of the Bonds, such
amounts to be paid by the Corporation to. the Remarketing Agent on the
dates such payments pursuant to Section 920 of the Trust Indenture are
to be made; provided, however, that the obligation of the Corporation
to make any such payment hereunder shall be reduced by the amount of
any moneys available for such payment under clause (i), (ii) or (iii)
of Section 920(a) of the Trust Indenture or clause (i), (ii) or (iii)
of Section 920(b) of the Trust Indenture; and provided, further, that
the obligation of the Corporation to make any payment hereunder shall
be deemed to be satisfied and discharged to the extent of the
corresponding payment made by the Bank under the Letter of Credit.
(b) The Corporation shall pay to the Trustee amounts equal to the
amounts to be paid by the Trustee pursuant to Section 921(a) of the
Trust Indenture in respect of the Bonds, such amounts to be paid by
the Corporation to the Trustee on the dates such payments pursuant to
Section 921 (a) of the Trust Indenture are to be made; provided,
however, that the obligation of the Corporation to make any such
payment hereunder shall be reduced by the amount of moneys available
for such payment under clause (i) or (ii) of Section 921(a) of the
Trust Indenture; and provided, further, that the obligation of the
Corporation to make any payment hereunder shall be deemed to be
satisfied and discharged to the extent of the corresponding payment
made by the Bank under the Letter of Credit.
(c) From the date of the original issuance of the Bonds to and
including November 15, 1992, the Corporation shall provide for the
payment of the amounts to be paid by the Remarketing Agent pursuant to
Section 920 of the Trust Indenture, and by the Trustee pursuant to
Section 921(a) of the Trust Indenture, by the delivery of the Letter
of Credit to the Trustee simultaneously with the original issuance and
delivery of the Bonds. The Corporation hereby authorizes and directs
the Trustee to draw moneys under the Letter of Credit in accordance
with the provision of the Trust Indenture to the extent necessary to
provide moneys payable if and when due under Sections 920 and 921(a)
of the Trust Indenture.
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Section 4.03. LETTER OF CREDIT.
(a) The Letter of Credit delivered to the Trustee shall be an
irrevocable letter of credit of a commercial bank which (or, if such bank
does not have outstanding senior long-term debt securities rated by either
Xxxxx'x or S&P, the parent corporation of which) has outstanding senior
long-term debt securities rated by either Xxxxx'x or S&P in either of its
two highest debt rating categories.
The Letter of Credit shall be an obligation of the Bank, which shall
not expire, except as otherwise provided in this Section 4.03, prior to
November 15, 1992, to pay to the Trustee, upon request and in accordance
with the terms thereof, up to (i) an amount equal to the aggregate
principal amount of the Bonds (A) to pay the principal of the Bonds when
due, whether at maturity, upon redemption or acceleration, or otherwise,
(B) to enable the Trustee to pay the portion of the purchase price of Bonds
delivered to it equal to the principal amount of such Bonds or (C) to
enable the Remarketing Agent to pay the portion of the purchase price of
the Bonds delivered to it equal to the principal amount of such Bonds plus
(ii) an amount equal to at least 71 days' interest accrued and unpaid on
all Bonds plus (iii) an amount equal to the discount from par attributable
to any Bonds remarketed by the Remarketing Agent which were purchased
pursuant to the provisions of Section 308(c) of the Trust Indenture,
provided however, that such amount shall not exceed three-tenths of one
percentum (.3%) of the aggregate principal amount of Bonds outstanding.
The Bank's obligation under the Letter of Credit may be reduced to the
extent of any drawing thereunder. The Letter of Credit shall provide,
however, that with respect to a drawing by the Trustee to enable the
Trustee or the Remarketing Agent to pay the portion of the purchase price
of Bonds delivered to it equal to the principal amount of such Bonds, upon
reimbursement by the Corporation to the Bank of the amount of such drawing
and any interest thereon in accordance with the terms of the Reimbursement
Agreement, and provided no event of default under the Reimbursement
Agreement has occurred and is continuing, (i) the Trustee shall be entitled
to again draw under the Letter of Credit to pay principal of the Bonds an
amount equal to the amount that could be drawn under the Letter of Credit
if such drawing in respect of purchase price were disregarded and (ii) the
Trustee shall be entitled to again draw under the Letter of Credit to
enable the Trustee or the
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Remarketing Agent to pay the portion of the purchase price of Bonds
delivered to it equal to the principal amount of such Bonds, an amount
equal to the amount that could be drawn under the Letter of Credit if such
drawing in respect of purchase price were disregarded. The Letter of Credit
shall provide, with respect to a drawing by the Trustee to pay interest on
the Bonds, including accrued interest on Bonds delivered to it or the
Remarketing Agent for purchase, that upon reimbursement by the Corporation
to the Bank of the amount of such drawing and any interest thereon in
accordance with the terms of the Reimbursement Agreement, and provided no
event of default under the Reimbursement Agreement has occurred and is
continuing, the Trustee shall be entitled to again draw under the Letter of
Credit an amount equal to the amount that could be drawn under the Letter
of Credit if such drawing in respect of interest were disregarded. The
Letter of Credit shall provide, with respect to a drawing by the Trustee
representing the discount from par of the proceeds of any sale by the
Remarketing Agent of Bonds, that upon reimbursement by the Corporation to
the Bank of the amount of such drawing in accordance with the terms of the
Reimbursement Agreement, and provided no event of default under the
Reimbursement Agreement has occurred and is continuing, the Trustee shall
be entitled to again draw under the Letter of Credit an amount equal to the
amount that could be drawn under the Letter of Credit if such drawing with
respect to discount were disregarded. The Reimbursement Agreement shall
require the Bank to give notice to the Trustee in the event that the Letter
of Credit will not be reinstated (in respect of principal, interest or
discount) to an amount which equals at least the outstanding principal
amount of the Bonds or to an amount which equals at least 71 days' interest
accrued and unpaid on the Bonds or to an amount which equals .3% of the
aggregate principal amount of the Bonds then outstanding. The Letter of
Credit shall provide that, if, in accordance with the terms of the Trust
Indenture, the Bonds shall have been declared to be immediately due and
payable pursuant to any provision of the Trust Indenture, the Trustee shall
be entitled to draw on the Letter of Credit to the extent of the aggregate
principal amount of the Bonds, plus an amount sufficient to pay up to 71
days' interest accrued and unpaid on all Bonds, plus an amount sufficient
to pay the discount from par received by the Remarketing Agent in
remarketing the Bonds, up to but not exceeding three-tenths of one
percentum (.3%) of the aggregate principal amount of Bonds outstanding,
less amounts paid in respect of interest or discount for which the Letter
of Credit shall not have been reinstated.
(b) At any time prior to November 15, 1992, the Corporation may, at its
option, provide for the delivery to the Trustee of
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an Alternate Letter of Credit. An Alternate Letter of Credit shall be
an irrevocable letter of credit, other than the Letter of Credit
issued by the Bank and delivered to the Trustee concurrently with the
original issuance of the Bonds, issued by a commercial bank, the terms
of which shall in all material respects be the same as the Letter of
Credit. On or prior to the date of the delivery of an Alternate Letter
of Credit to the Trustee, the Corporation shall furnish to the Trustee
(i) an opinion of Bond Counsel stating that the delivery of such
Alternate Letter of Credit to the Trustee is authorized under this
Agreement and complies with the terms hereof and (ii) written evidence
from Xxxxx'x, if the Bonds are rated by Xxxxx'x, and S&P, if the Bonds
are rated by S&P, in each case to the effect that such rating agency
has reviewed the proposed Alternate Letter of Credit and that the
substitution of the proposed Alternate Letter of Credit for the Letter
of Credit will not, by itself, result in a reduction of its ratings of
the Bonds from those which then prevail.
(c) The Corporation may, at its election, and with the consent of
the Bank, provide for one or more extensions of the Letter of Credit
for any period commencing after November 15, 1992 or may, after such
date, provide another credit facility having terms substantially the
same as those cf the Letter of Credit and one or more extensions
thereof.
Section 4.04. NO SET-OFF. The obligation of the Corporation to make the
payments required by Section 4.01 shall be absolute and unconditional. The
Corporation will pay without abatement, diminution or deduction (whether
for taxes or otherwise) all such amounts regardless of any cause or
circumstance whatsoever including, without limitation, any defense,
set-off, recoupment or counterclaim which the Corporation may have or
assert against the Issuer, the Remarketing Agent, the Trustee, any holder
of a Bond or coupon or any other person.
Section 4.05. PREPAYMENTS. The Corporation may at any time prepay all
or any part of the amounts it is required to pay under Section 4.01 as
provided in Section 8.01, and the Corporation shall be obligated to prepay
the entire amount payable under Section 4.01 as provided in Section 8.02.
Section 4.06. COVENANT TO MAINTAIN PROJECT. The Corporation will at its
own expense maintain, preserve and keep the Project with the appurtenances
and every part and parcel thereof, in good repair, working order and
condition and will from time to time make or cause to be made all necessary
and proper repairs, replacements and renewals; provided, however, that the
Corporation will
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have no obligation to maintain, preserve, repair, replace or renew any
element or unit of the Project the maintenance, repair, replacement or
renewal of which becomes uneconomic to the Corporation because of damage or
destruction or obsolescence, or change in economic or business conditions,
or change in government standards and regulations, or the termination by
the Corporation of the operation of the production facilities to which the
element or unit of the Project is an adjunct. The Corporation will pay all
costs and expenses of operation of the Project.
The Corporation may also, at its own expense, make from time to time
any additions, modifications or improvements to the project that it may
deem desirable for its business purposes and that do not materially impair
the effective use of the Project.
Additional equipment ahd other facilities (i) which are not described
in Exhibit A of the Original Loan Agreement as part of the Project and are
not financed from the proceeds of the Bonds or (ii) which do not constitute
an integral part of improvements, equipment or other facilities referred to
in clause (i) of this paragraph shall not become part of the Project by
virtue of their location on the site of the Project or their affixation to
a part of the Project or their use in connection with the Project.
The Corporation covenants that as long as it operates the Project it
will maintain and operate the Project as a "Project" within the meaning of
the Act as in effect on the date hereof.
Section 4.07. EXPENSES. The Corporation will pay, with respect to this
Loan Agreement, the Trust Indenture and any transaction or event
contemplated hereby or thereby or in connection with the issuance of the
Bonds, all reasonable fees and expenses of the Issuer, the Trustee, any
Paying Agent, the Registrar, the Remarketing Agent, the Indexing Agent and
any rating agency, including the reasonable compensation and the expenses
and disbursements of their counsel.
Section 4.08. INDEMNIFICATION. The Corporation releases the Issuer, the
Trustee and the Remarketing Agent from, agrees that the Issuer, the Trustee
and the Remarketing Agent shall not be liable for, and agrees to indemnify
and hold the Issuer, the Trustee and the Remarketing Agent free and
harmless from, any liability for any loss or damage to property or any
injury to or death of any Person that may be occasioned by any cause
whatsoever pertaining to the Project, except in any case as a result of the
negligence or bad faith of the Issuer, the Trustee or the Remarketing
Agent.
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The Corporation will indemnify and hold the issuer and its officials, the
Trustee, the Remarketing Agent and the Indexing Agent free and harmless
from any loss, claim, damage, tax, penalty, liability (including but not
limited to liability for any patent infringement), disbursement, litigation
expenses, attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this Loan Agreement,
the issuance or sale of the Bonds, actions taken under the Trust Indenture
or any other cause whatsoever pertaining to the Project or to the refunding
of the Notes, except in any case as a result of the negligence, bad faith,
malfeasance or nonfeasance of the Issuer, such officials, the Trustee, the
Remarketing Agent or the Indexing Agent.
If any claim is made which in the opinion of the Corporation might
result in the Corporation becoming liable to indemnify a party hereunder,
the Corporation may at its option and expense undertake full responsibility
for the defense of such claim with counsel of its choosing and may contest
or settle such claim on such terms as it may elect in its sole discretion.
It shall be a condition to a party's right to indemnification hereunder
that, upon request by the Corporation, such party shall have delivered to
the Corporation such reasonable consents, powers of attorney, assignments
and other documents, and shall have taken such other steps, as in the
opinion of counsel for the Corporation may be necessary or desirable to
enable the Corporation to conduct such defense or to effect such
settlement. This Section shall survive the term of this Loan Agreement with
respect to the Issuer.
Section 4.09. PAST DUE PAYMENTS. In the event the Corporation shall
fail to pay amounts required to be paid under Section 4.01, any such
amounts attributable to principal of the Bonds shall continue to bear
interest from the maturity date or redemption date on the Bonds to which
such defaulted amounts relate at the rate of interest on such Bonds.
Section 4.10. ISSUANCE OF OTHER OBLIGATIONS. The Issuer and the
Corporation expressly reserve the right, at their discretion, to enter
into, to the extent permitted by law, an agreement or agreements other than
this Loan Agreement with respect to the issuance by the Issuer, under an
indenture or indentures other than the Trust Indenture, of obligations to
provide additional funds to pay the Cost of construction of the Project or
to refund all or any Principal amount of the Bonds, or any combination
thereof.
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ARTICLE V.
Further Agreements.
Section 5.01. COVENANT TO MAINTAIN CORPORATE EXISTENCE. The
Corporation covenants that so long as any Bonds are outstanding it will not
dispose of all or substantially all its assets and will not consolidate
with or merge into another corporation; provided, however, that the
Corporation may consolidate with or merge into another corporation, or
transfer to another corporation all or substantially all its assets, if the
successor or transferee corporation irrevocably and unconditionally assumes
in writing all the obligations of the Corporation here in and such
successor or transferee corporation is organized or qualified to do
business under the laws of the State of Wisconsin.
Section 5.02. ISSUER'S COVENANT TO COOPERATE. In the event it may be
necessary, for the proper performance of this Loan Agreement, on the part
of the Issuer or the Corporation, that any application or applications for
any permit or license to do or to perform certain things be made to any
governmental or other agency by the Corporation or the Issuer, the
Corporation and the Issuer each agree to cooperate in such matters;
provided, however, that the Issuer and the Corporation are bound to the
agreement of this Section 5.02 only in the case of reasonable requests for
assistance.
Section 5.03. NO WARRANTY BY ISSUER. The Issuer makes no warranty,
either express or implied, as to the condition of the Project or that it
will be suitable for the Corporation's purpose or needs or that the
proceeds of the Bonds will be sufficient to pay the principal of and
premium, if any, and interest on the Notes or to reimburse the Corporation
for costs incurred in connection therewith. The Issuer further makes no
representation or warranty, either express or implied, as to the financial
condition of the Corporation or its ability to make installment payments
under this Loan Agreement sufficient to pay the principal of and interest
on the Bonds as and when the same shall become due.
Section 5.04. RIGHT OF INSPECTION. The Corporation agrees that the
Issuer, the Trustee and their duly authorized agents shall have the right
at all reasonable times to enter upon and examine and inspect the Project,
subject to the provisions of Section 4.06 hereof, to determine whether the
Project continues to constitute a "Project" within the meaning of the Act.
The Issuer and Trustee shall also be permitted, at all reasonable times, to
examine the Plans and Specifications and the other books and records of the
Corporation with respect to the Project in connection with the transactions
contemplated by this Loan Agreement and the Trust
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Indenture. The aforesaid rights of examination and inspection shall be
exercised only upon such reasonable and necessary terms and conditions as
the Corporation shall prescribe, which conditions shall be deemed to
include, but not be limited to, those necessary to protect the
Corporation's trade secrets and proprietary rights.
Section 5.05. OFFICERS OF ISSUER NOT LIABLE. All covenants,
stipulations, promises, agreements and obligations of the Issuer contained
herein shall be deemed to be covenants, stipulations, promises, agreements
and obligations of the Issuer and not of any member of the Governing Body
of the Issuer or any officer, official, agent, servant or employee of the
Issuer in his individual capacity, and no recourse shall be had for the
payment of the principal of or premium, if any, or interest on the Bonds or
for any claim based thereon or hereunder against any member of the
Governing Body of the Issuer or any officer, official, agent, servant or
employee of the Issuer or any natural person executing the Bonds. Neither
any member of the Governing Body of the Issuer nor any person executing the
Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance of the Bonds.
Section 5.06. REIMBURSEMENT OF ACCRUED INTEREST AND EXPENSES. If the
Trustee shall use moneys in the Bond Fund to pay the purchase price of the
Bonds pursuant to the Trust Indenture, the Corporation shall, upon demand,
pay to the Trustee for deposit in the Bond Fund the amount of accrued
interest on the Bonds so purchased and, within 30 days of any such
purchase, all expenses incurred by the Trustee in connection with such
purchase.
Section 5.07. INDEMNIFICATION WITH RESPECT TO GOVERNMENT OBLIGATIONS.
If the Corporation shall elect to deposit Government Obligations with the
Trustee pursuant to Section 1301 of the Trust Indenture, the Corporation
shall pay and shall indemnify and hold harmless the Trustee, the Issuer and
each holder of the Bonds against any tax, fee or other charge imposed upon
or assessed against such Government Obligations or the principal thereof,
or premium, if any, and interest received thereon.
Section 5.08. ANNUAL REPORTS. The Corporation shall furnish a copy of
Gulf & Western Industries, Inc.'s annual report to the Trustee and to the
Issuer within 120 days following the completion of each fiscal year of Gulf
& Western Industries, Inc.
Section 5.09. CONSENT TO ASSIGNMENT. The Corporation consents to the
assignment made by the Issuer of certain of its rights under this Loan
Agreeement to the Trustee in the Trust Indenture, and agrees to perform its
duties under sections 902, 905, 917 and 927 of the Indenture.
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Section 5.10. NO INTEREST OF ISSUER IN PROJECT. The Issuer shall not
have any rights to or interest in the Project, which shall be the sole and
exclusive property of the Corporation.
Section 5.11. RECORDING AND FILING; OTHER INSTRUMENTS.
(a) The Corporation shall, at its own cost, file and re-file and record
and re-record or cause to be filed and re-filed and recorded and rerecorded
all instruments required to be filed and re-filed and recorded or
re-recorded to the effect that all financing statements, continuation
statements, notices and other instruments required by applicable law have
been recorded or filed or re-recorded or re-filed in such manner and in
such places required by law in order fully to preserve and protect the
rights of the Trustee in the assignment of certain rights of the Issuer
under this Loan Agreement to the Trustee, as against creditors of, or
purchasers for value from, the Issuer or the Corporation.
(b) The Trustee and the Issuer shall execute and deliver all
instruments and shall furnish all information and evidence reasonably
deemed necessary or advisable by the Corporation to enable it to satisfy
the requirements of subsection (a) of this Section.
Section 5.12. NON-ARBITRAGE COVENANT. Neither the Corporation nor the
Issuer shall take any action, and the Corporation covenants that it will
not request the Trustee to take any action or make any investment or use of
the proceeds of the Bonds, which would cause the Bonds to be "arbitrage
bonds" within the meaning of Section 103(c) of the Code and the Tax
Regulations as the same may be applicable to the Bonds at the time of such
action, investment or use.
Section 5.13. PROVISIONS RESPECTING INSURANCE. The Corporation
covenants that, throughout the term of this Loan Agreement, it shall keep
the Project insured at all times against such risks and for such amounts as
are customarily insured against by businesses of like size and type (other
than business interruption insurance), and will pay all premiums due in
respect thereto.
Section 5.14. USE OF PROJECT. The Corporation will use the Project only
in furtherance of lawful corporate purposes of the Corporation.
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ARTICLE VI.
Assignment.
Section 6.01. ASSIGNMENT BY CORPORATION. The Project may be sold,
leased or otherwise transferred as a whole or in part, and any proceeds
thereof retained by the Corporation without the necessity of obtaining the
consent of the Issuer, and this Loan Agreement may be assigned in whole or
in part, subject, however, to the following conditions:
(a) no sale, assignment or lease shall relieve the Corporation
from the obligation to make the payments required by Section 4.01
hereof;
(b) the Corporation shall, not more than sixty (60) nor less than
thirty (30) days prior to the effective date of any such sale,
assignment or lease, furnish or cause to be furnished to the Issuer
and to the Trustee a true and complete copy of each such contract of
sale, assignment or lease and assumption of obligations;
(c) the assignee shall, in a certificate delivered to the Issuer
and the Trustee, which certificate shall be in a form reasonably
satisfactory to the Issuer and the Trustee, expressly assume, and
agree to pay and to perform, all of the obligations of the Corporation
under this Loan Agreement which shall have been assigned to it except
the obligation to make the payments required by Section 4.01 hereof;
provided that the Corporation shall remain primarily liable for the
performance and observance of the other agreements on its part herein
provided to be performed and observed by the Corporation to the same
extent as though no assignment had been made;
(d) the assignee shall deliver to the Issuer and the Trustee a
certificate executed by its chief financial officer stating that none
of the obligations, covenants and performances under this Loan
Agreement assumed by it will conflict with, or constitute on the part
of such assignee a breach of or default under, any indenture,
mortgage, agreement or other instrument to which such assignee is a
party or by which it is bound, or any existing law, rule, regulation,
judgment, order or decree to which such assignee is subject; and
(e) the assignee shall agree to operate the Project through the
expiration of the term of this Loan Agreement and subsequent to such
assignment the use of the Project shall be consistent with the Act.
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Section 6.02. ASSIGNMENT BY ISSUER. By the provisions of
the Trust Indenture, the Issuer will assign its rights under and interest
in this Loan Agreement (except its rights to receive notices, reports and
other statements given both to the Issuer and the Trustee, its rights under
Sections 4.07, 4.08, 5.07 and 7.04 hereof to payment of certain costs and
expenses and to indemnification, and to individual and corporate rights to
exemption from liability under Sections 9.13 and 9.14 hereof) and will
pledge and assign any payments, receipts and revenues receivable by it
(except as aforesaid) under or pursuant to this Loan Agreement and income
earned by the investment of funds held under the Trust Indenture, to the
Trustee as security for payment of the principal of and premium, if any,
and interest on the Bonds. Except as provided in this Section 6.02, the
Issuer will not sell, assign, transfer, convey or otherwise dispose of its
interest in this Loan Agreement or the payments, receipts and revenues of
the Issuer derived hereunder.
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ARTICLE VII.
Events of Default and Remedies.
Section 7.01. EVENTS OF DEFAULT. The following shall be "Events of
Default" under this Loan Agreement, and the term "Events of Default" shall
mean, whenever used with reference to this Loan Agreement, any one or more
of the following occurrences:
(a) failure by the Corporation to pay the amounts required to be
paid with respect to principal of or premium, if any, or interest on
the Bonds when the same shall become due and payable at maturity, upon
redemption, by acceleration or otherwise; or
(b) failure by the Corporation to pay when due any payment
required to be made under this Loan Agreement other than payments
under Section 4.01 hereof, which failure shall continue for a period
of thirty (30) days after written notice, specifying such failure and
requesting that it be remedied, is given to the Corporation by the
Issuer or the Trustee, unless the Issuer shall agree in writing to an
extension of such time prior to its expiration; or
(c) failure by the Corporation to observe and perform any
covenant, condition or agreement on its part to be observed or
performed, other than as referred to in subsections (a) and (b) of
this Section, which failure shall continue for a period of ninety (90)
days after written notice, specifying such failure and requesting that
it be remedied, is given to the Corporation by the Issuer or the
Trustee, unless the Issuer shall agree in writing to an extension of
such time prior to its expiration; provided, however, that if such
failure cannot be corrected within such ninety (90) day period, it
shall not constitute an Event of Default if corrective action is
instituted by the Corporation within such period and is being
diligently pursued; or
(d) an event of default under the Guaranty; or
(e) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Corporation in an
involuntary case under federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
the Corporation or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
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(f) the commencement by the Corporation of a voluntary case under
the federal bankruptcy laws, as now constituted or hereafter amended,
or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Corporation
or for any substantial part of its property, or the making by it of
any assignment for the benefit of creditors, or the taking of
corporate action by the Corporation in furtherance of any of the
foregoing.
The foregoing provisions of subsections (b) and (c) of this Section are
subject to the following limitations: if by reason of Force Majeure, the
Corporation is unable in whole or in part to carry out any of its
agreements herein contained, failure of the Corporation to carry out any
such agreements other than the obligations on the part of the Corporation
contained in Sections 4.01 and 5.01 hereof, shall not be deemed an Event of
Default during the continuance of such inability, including a reasonable
time for the removal of the effect thereof.
The term "Force Majeure" shall mean, without limitation, the following:
(a) acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any kind
of the government of the United States, the State or the City or any
of their departments, agencies, political subdivisions or officials,
or any civil or military authority; war; insurrections; civil
disturbances; riots; epidemics; landslides; lightning; earthquakes;
fires; hurricanes; storms; droughts; floods; washouts; arrests;
restraint of government and people; explosions; breakage, malfunction
or accident to facilities, machinery, transmission pipes or canals;
partial or entire failure of utilities; shortages of labor, materials,
supplies or transportation; or
(b) any cause, circumstance or event not reasonably within the
control of the Corporation.
The Corporation agrees, however, to use its best efforts to remedy with
all reasonable dispatch Force Majeure preventing it from carrying out its
agreements; provided, that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the
Corporation, and the Corporation shall not be required to make settlement
of strikes, lockouts and other industrial disturbances by acceding to the
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32
demands of the opposing party or parties when such course is in the
judgment of the Corporation unfavorable to the Corporation.
Section 7.02. ACCELERATION; REMEDIES. Whenever any Event of Default
specified in Sections 7.01(a), (b) or (e) hereof shall have happened and be
continuing, any one or more of the following remedial steps may be taken,
provided that written notice of the default has been given to the
Corporation by the Issuer or the Trustee and the default has not
theretofore been cured and provided further that no remedial steps shall be
taken by the Issuer the effect of which would be to entitle the Issuer to
funds for the payment of principal of and interest on Bonds which have not
yet matured or otherwise become due unless such principal and interest
shall have been declared due and payable in accordance with the Trust
Indenture and such declaration shall not have been rescinded.
(a) The Issuer may at its option declare all unpaid amounts
payable under Section 4.01 hereof to be immediately due and payable,
whereupon the same shall become immediately due and payable.
(b) The Issuer may take any action at law or in equity to collect
the payments then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of
the Corporation under this Loan Agreement.
Any amounts collected pursuant to action taken under this Section shall
be applied in accordance with the Trust Indenture.
Section 7.03. REMEDIES NOT EXCLUSIVE. No remedy conferred upon or
reserved to the Issuer in connection with the loan to the Corporation
pursuant to this Loan Agreement is intended to be exclusive of any other
available remedy or remedies, but each and every remedy shall be cumulative
and shall be in addition to every other remedy either given under this Loan
Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any
default 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 it may be deemed expedient. In order to entitle the
Issuer to exercise any remedy reserved to it in this Article, it shall not
be necessary to give any notice, other than such notice as may be herein
expressly required.
Section 7.04. ATTORNEYS' FEES AND EXPENSES. If an Event of Default
shall occur and the Issuer or the Trustee shall employ attorneys or incur
other expenses for the collection
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33
of payments due hereunder or for the enforcement of performance or
observance of any obligation or agreement on the part of the Corporation
contained herein, the Corporation will on demand therefor reimburse the
reasonable fees of such attorneys and such other expenses so incurred.
Section 7.05. WAIVERS. In the event that any agreement contained herein
shall be breached by either party and such breach shall thereafter be
waived by the other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights under and
interest in this Loan Agreement to the Trustee by the provisions of the
Trust Indenture, the Issuer shall have no power to waive any default
hereunder by the Corporation without the consent of the Trustee to such
waiver. Notwithstanding the foregoing, if, after the maturity of the
outstanding Bonds shall have been accelerated by the Trustee upon
occurrence of an event of default under the Trust Indenture, all arrears of
interest on the outstanding Bonds and interest on overdue installments of
principal, premium, if any, and (to the extent permitted by law) interest
at a rate per annum which is equal to the highest rate per annum borne by
the Bonds and the principal and premium (if any) on all Bonds then
outstanding which have become due and payable otherwise than by
acceleration, and all other sums payable under the Trust Indenture, except
the principal of and the interest on such Bonds which by such acceleration
shall have become due and payable, shall have been paid, all other things
shall have been performed in respect of which there was a default, there
shall have been paid the reasonable fees and expenses of the Trustee and of
the holders of such Bonds, including reasonable attorneys' fees paid or
incurred and such event of default under the Trust Indenture shall be
waived in accordance with the provisions of Section 814 of the Trust
Indenture with the consequence that under such Section such acceleration is
rescinded, then the Corporation's default hereunder shall be waived without
further action by the Trustee or the Issuer.
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34
ARTICLE VIII.
Prepayment of the Loan.
Section 8.01. OPTION TO PREPAY LOAN. (a) The Corporation shall xxxx,
and is hereby granted, an option to prepay in full the amounts payable in
respect of the Bonds under Section 4.01 hereof at any time by taking, or
causing the Issuer to take, the actions required for Payment of the Bonds.
(b) The Corporation shall have, and is hereby granted, the option to
prepay all or any portion of the amounts payable under Section 4.01 hereof
at any time by taking, or causing the Issuer to take, the actions required
(i) for Payment of the Bonds or (ii) to effect a partial redemption of the
Bonds.
(c) To exercise an option granted in subsection (a) or (b) of this
Section, the Corporation shall give written notice to the Issuer and the
Trustee which shall specify therein (i) the date of such prepayment, which
shall not be less than forty-five (45) days from the date the notice is
mailed, (ii) the amount to be prepaid and (iii) if Bonds are to be redeemed
pursuant to the Trust Indenture, (A) the date of redemption, (B) the
principal amount of the Bonds to be redeemed, and (C) the applicable
redemption provision of the Trust Indenture.
Section 8.02. MANDATORY PREPAYMENT. The Corporation shall be obligated,
and agrees, to prepay the entire amount, or such portion as may be
required, of the amount payable under Section 4.01 whenever the Issuer is
required to take actions for Payment of the bonds.
Section 8.03. PURCHASE OF BONDS. An Authorized Corporation
Representative may at any time, and from time to time, direct the Trustee
by written notice to apply any moneys remaining in the Bond Fund after
payment of the principal of and premium, if any, and interest on all the
Bonds then due, together with any additional moneys furnished to the
Trustee for this purpose, to the payment of the purchase price of Bonds. In
addition, the Corporation may at any time, and from time to time, deposit
moneys with the Remarketing Agent or to the Bond Fund, accompanied by a
notice directing such moneys to be applied to the purchase of Bonds
delivered pursuant to Section 308 of the Trust Indenture, which Bonds
shall, at the direction of the Corporation, be delivered in accordance with
Section 922 of the Trust Indenture.
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Section 8.04. RELATIVE POSITION OF LOAN AGREEMENT AND
TRUST INDENTURE. The rights and the obligations of the Corporation in this
Article VIII shall be and remain prior and superior to the Trust Indenture
and may be exercised or shall be fulfilled, as the case may be, whether or
not the Corporation is in default hereunder, provided that such default
will not result in non fulfillment of any condition to the exercise of any
such right or obligation.
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ARTICLE IX.
Miscellaneous.
Section 9.01. TERMINATION. Except as otherwise specifically provided in
Section 4.08 hereof, this Loan Agreement shall terminate upon (i) Payment
of the Bonds, and (ii) payment or satisfaction of all other obligations
incurred by the Issuer or the Corporation under this Loan Agreement,
including (without limitation) interest, premiums and other charges, if
any, thereon. Upon such termination, any amounts remaining in the Bond Fund
and any other fund established under the Trust Indenture not needed for
payment of the aforesaid items shall belong to and be paid to the
Corporation by the Trustee in accordance with the provisions of the Trust
Indenture.
Section 9.02. REFERENCE TO BONDS INEFFECTIVE AFTER BONDS PAID. Upon
Payment of the Bonds, including all fees and charges of the Trustee, all
references in this Loan Agreement to the Bonds and the Trustee shall be
ineffective and the Trustee, the Issuer and the holders of any of the Bonds
shall not thereafter have any rights hereunder, excepting those that shall
have theretofore vested.
Section 9.03. AUTHORIZED ISSUER REPRESENTATIVE. Whenever under the
provisions of this Loan Agreement the approval of the Issuer is required or
the Issuer is required to take some action at the request of the
Corporation, such approval shall be made or such action shall be taken by
an Authorized Issuer Representative; and the Corporation and the Trustee
shall be authorized to act on any such approval or action.
Section 9.04. AUTHORIZED CORPORATION REPRESENTATIVE. Whenever under the
provisions of this Loan Agreement the approval of the Corporation is
required or the Corporation is required to take some action at the request
of the Issuer, such approval shall be made or such action shall be taken by
an Authorized Corporation Representative; and the Issuer and the Trustee
shall be authorized to act on any such approval or action.
Section 9.05. CONFIDENTIAL INFORMATION. The Corporation shall not be
required to disclose, or to permit the Issuer, the Trustee or others to
acquire access to, any trade secrets of the Corporation or any other
processes, techniques or information deemed by the Corporation to be
proprietary or confidential.
XX-0
00
Xxxxxxx 9.06. NOTICES. All notices, certificates, requests or other
communications between the Issuer, the Corporation and the Trustee required
to be given hereunder or under the Trust Indenture shall be sufficiently
given and shall be deemed given when mailed by registered mail, postage
prepaid, addressed as follows:
If to the Issuer: City of Janesville
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: City Manager
If to the Corporation: Xxxxxxx Manufacturing Company, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Operations Manager
with a copy to: Gulf & Western Industries, Inc.
0 Xxxx & Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President
and Treasurer
If to the Trustee: Continental Illinois National
Bank and Trust Company of Chicago
Corporate Trust Department
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
A duplicate copy of each notice, certificate, request or other
communication given hereunder to the Issuer, the Corporation or the Trustee
shall also be given to each of the others. The Corporation, the Issuer and
the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates, requests or
other communications shall be sent.
Section 9.07. BINDING EFFECT. This Loan Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Corporation and their
respective successors and assigns, subject, however, to the provisions
contained in Sections 5.01 and 6.01.
Section 9.08. IF PAYMENT OR PERFORMANCE DATE A LEGAL HOLIDAY. If the
date for making payment, or the last date for Performance of any act or the
exercising of any right, as provided in this Loan Agreement, shall be a
legal holiday or a day on which banking institutions in the State of
Illinois are authorized by law to remain closed such payment may be made
IX -2
38
or act performed or right exercised on the next succeeding day not a legal
holiday or a day on which such banking institutions are authorized by law
to remain closed, with the same force and effect as if done on the nominal
date provided in this Loan Agreement, and no interest shall accrue for the
period after such nominal date.
Section 9.09. SEVERABILITY. In the event any provision
of this Loan 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 9.10. AMENDMENTS, CHANGES AND MODIFICATIONS. Subsequent to the
issuance of the Bonds and prior to Payment of the Bonds, this Loan
Agreement may not be amended, changed, modified, altered or terminated
except in accordance with the Trust Indenture.
Section 9.11. EXECUTION IN COUNTERPARTS. This Loan Agreement may be
executed in several counterparts, each of which shall be an original and
all or which shall constitute but one and the same instrument.
Section 9.12. APPLICABLE LAW. This Loan Agreement shall be governed by
and construed in accordance with the laws of the State, except that the
rights, limitations of rights, immunities, duties and obligations of the
Trustee shall be governed by and construed in accordance with the laws of
the State of Illinois.
Section 9.13. NO CHARGE AGAINST ISSUER CREDIT. No provision hereof
shall be construed to impose a charge against the general credit of the
Issuer or shall impose any personal or pecuniary liability upon any
director, official or employee of the Issuer.
Section 9.14. ISSUER NOT LIABLE. Notwithstanding any other provision of
this Loan Agreement (a) the Issuer shall not be liable to the Corporation,
the Trustee, any holder of any of the Bonds, or any other person for any
failure of the Issuer to take action under this Loan Agreement unless the
Issuer (i) is requested in writing by an appropriate person to take such
action and (ii) is assured of payment of or reimbursement for any expenses
in such action, and (b) except with respect to any action for specific
performance or any action in the nature of a prohibitory or mandatory
injunction, neither the Issuer nor any officer, official, employee or agent
of the Issuer shall be liable to the Corporation, the Trustee, any holder
or owner of any of the Bonds, or any other person for any action taken by
it or by its officers, servants, agents or employees, or for any failure to
take action under this Loan Agreement or the Trust Indenture. In acting
under this Loan Agreement, or in refraining from acting under this Loan
Agreement, the Issuer may conclusively rely on the advice of its legal
counsel.
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Section 9.15. LOAN AGREEMENT SUPERSEDES PRIOR AGREEMENTS. Upon payment
of the principal of and premium, if any, and interest on the Notes,
together with any expenses relating to the redemption of such Notes and any
other amounts which are required to be paid by the Corporation under the
terms of the Original Loan Agreement, this Loan Agreement shall supersede
any other prior agreements or understandings, written or oral, between the
parties with respect to the Project.
Section 9.16. DELEGATION OF DUTIES BY ISSUER. It is agreed that under
the terms of this Loan Agreement and also under the terms of the Trust
Indenture the Issuer has delegated and assigned certain of its duties
hereunder to the Corporation and to the Trustee. The fact of such
delegation shall be deemed a sufficient compliance by the Issuer to satisfy
the duties so delegated and the Issuer shall not be liable in any way by
reason of acts done or omitted by the Corporation, the Authorized
Corporation Representative or the Trustee. The Issuer shall have the right
at all times to act in reliance upon the authorization, representation or
certification of the Authorized Cot-potation Representative or the Trustee.
IN WITNESS WHEREOF, the Issuer and the Corporation have caused this
Loan Agreement to be executed in their respective legal names and their
respective corporate seals to be hereunto affixed, and the signatures of
duly authorized persons to be attested, all as of the date first above
written.
CITY OF JANESVILLE, WISCONSIN
[SEAL]
By: /s/
----------------------------------
City Manager
Attest:
/s/
-------------------------------
City Clerk
XXXXXXX MANUFACTURING COMPANY, INC.
[SEAL]
By: /s/
-----------------------------------
Vice President
Attest:
/s/
------------------------
Secretary
40
EXHIBIT A
DESCRIPTION OF THE PROJECT
--------------------------
I. Project Site
Located at 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx.
II. Building
Approximately 284,000 square foot manufacturing facility located on the
Project Site (formerly known as the Xxxxx Manufacturing Company Plant).
III. Machinery and Equipment
1. Pocket Machines 7. BWC Radius
2. United Border with Xxxxxx 8. Xxxxx Single End Coiler:
3. Slitter 9. Tempering Oven
4. Scroll (Cash Twin) 10. Q/S Tufting
5. Pathe (84" wide) 11. Conveyors
6. K/S Tufting 12. Fork Lifts
