LOAN AGREEMENT
between
LUZERNE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
XXXX, INC.
Dated as of December 1, 1996
Relating to
Tax-Exempt Adjustable Mode
Industrial Development Revenue Bonds
(Xxxx, Inc. Project)
Series 1996
in the aggregate principal amount of $3,500,000
CERTAIN RIGHTS OF THE ISSUER UNDER THIS AGREEMENT HAVE BEEN ASSIGNED TO, AND
ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF FIRST-CITIZENS BANK & TRUST
COMPANY, AS TRUSTEE UNDER AN INDENTURE OF TRUST, DATED AS OF THE DATE FIRST
ABOVE WRITTEN, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION
CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT 0000
XXXXXXXXX XXXXXXXXX, XXXXXXX, XXXXX XXXXXXXX 00000, ATTENTION: CORPORATE
TRUST DEPARTMENT.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions..........................................1
Section 1.2. Rules of Construction................................4
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Issuer........................4
Section 2.2. Representations by the Company.......................6
ARTICLE III
ACQUISITION OF THE PROJECT
Section 3.1. Agreement to Undertake and Complete the
Project 7
Section 3.2. Disbursements from the Initial Fund..................8
Section 3.3. Establishment of Completion Date and
Certificate as to Completion
8
Section 3.4. Closeout of Initial Fund; Disposition of
Balance in Initial Fund
9
Section 3.5. Company Required to Pay Costs in Event
Initial Fund Insufficient
9
Section 3.6. Company and Issuer Representatives and
Successors 9
Section 3.7. Investment of Moneys in Funds.......................10
Section 3.8. Plans and Specifications............................10
ARTICLE IV
ISSUANCE OF THE BONDS
Section 4.1. Agreement to Issue the Bonds........................11
Section 4.2. No Third-Party Beneficiary..........................11
ARTICLE V
LOAN; PAYMENT PROVISIONS
Section 5.1. Loan of Proceeds....................................11
Section 5.2. Amounts Payable.....................................12
Section 5.3. Unconditional Obligations...........................13
Section 5.4. Prepayments.........................................13
Section 5.5. Credits Against Payments............................13
Section 5.6. Credit Facility and Alternate Credit
Facility 13
Section 5.7. Interest Rate Determination Method..................14
ARTICLE VI
MAINTENANCE AND TAXES
Section 6.1. Company's Obligations to Maintain
and Repair..........................................14
Section 6.2. Taxes and Other Charges.............................14
ARTICLE VII
INSURANCE, EMINENT DOMAIN AND DAMAGE AND DESTRUCTION
Section 7.1. Insurance...........................................14
Section 7.2. Provisions Respecting Eminent Domain................14
Section 7.3. Damage and Destruction..............................15
ARTICLE VIII
SPECIAL COVENANTS
Section 8.1. Access to the Property and Inspection...............15
Section 8.2. Financial Statements................................15
Section 8.3. Further Assurances and Corrective
Instruments 15
Section 8.4. Recording and Filing; Other Instruments.............15
Section 8.5. Exclusion from Gross Income for Federal
Income Tax Purposes of Interest on the
Bonds 16
Section 8.6. Indemnity Against Claims............................16
Section 8.7. Release and Indemnification.........................17
Section 8.8. Compliance with Laws................................17
Section 8.9. Non-Arbitrage Covenant..............................17
Section 8.10. Notice of Determination of Taxability...............18
Section 8.11. No Purchase of Bonds by Company or
Issuer 18
Section 8.12. Maintenance of Corporate Existence..................18
Section 8.13. Company Approval of Indenture.......................19
Section 8.14. Duties and Obligations..............................19
Section 8.15. Non-Discrimination Covenant.........................20
ARTICLE IX
ASSIGNMENT, LEASE AND SALE
Section 9.1. Restrictions on Transfer of
Issuer's Rights.....................................21
Section 9.2. Assignment by the Issuer............................21
Section 9.3. Assignment, Lease or Sale of Project or
Assignment of Agreement by Company
22
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.1. Events of Default Defined...........................22
Section 10.2. Remedies on Default.................................23
Section 10.3. Application of Amounts Realized in
Enforcement of Remedies
24
Section 10.4. No Remedy Exclusive.................................24
Section 10.5. Agreement to Pay Attorneys' Fees and
Expenses 24
Section 10.6. Issuer and Company to Give Notice of
Default 24
ARTICLE XI
PREPAYMENTS; PURCHASE OF BONDS
Section 11.1. Optional Prepayments................................25
Section 11.2. Mandatory Prepayment Upon a
Determination of Taxability
25
Section 11.3. Optional Purchase of Bonds..........................26
Section 11.4. Relative Priorities.................................26
Section 11.5. Prepayment to Include Fees and Expenses.............26
Section 11.6. Purchase of Bonds...................................26
ARTICLE XII
MISCELLANEOUS
Section 12.1. Amounts Remaining in Funds..........................27
Section 12.2. No Implied Waiver...................................27
Section 12.3. Issuer Representative...............................27
Section 12.4. Company Representative..............................28
Section 12.5. Notices.............................................28
Section 12.6. Issuer, Governing Body, Members,
Commissioners, Directors, Officers,
Agents, Attorneys and Employees of
Issuer and Governing Body Not Liable
28
Section 12.7. No Liability of Issuer; No Charge
Against Issuer's Credit
28
Section 12.8. If Performance Date Not a Business Day..............29
Section 12.9. Binding Effect......................................29
Section 12.10...............................................Severability
29
Section 12.11......................Amendments, Changes and Modifications
29
Section 12.12..................................Execution in Counterparts
29
Section 12.13.............................................Applicable Law
29
Exhibit A - Description of the Project
Exhibit B - Form of Requisition and Certificate
Exhibit C - Form of Promissory Note
LOAN AGREEMENT
C-392210.02340.01188
-1-
THIS LOAN AGREEMENT, dated as of December 1, 1996, is made and
entered into by and between LUZERNE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
the "Issuer"), a political subdivision duly organized and existing under the
Constitution and laws of the State of Pennsylvania (the "State"), and XXXX,
INC. (the "Company"), a North Carolina corporation;
W I T N E S S E T H:
WHEREAS, the Issuer is a body corporate and politic and a
political subdivision of the State and is authorized pursuant to the
Pennsylvania Economic Development Financing Law (Act of August 23, 1967, P.L.
251, Section 1), as amended (the "Act"), to make loans to private persons for
the acquisition, construction, and equipping of manufacturing facilities for
industry in Luzerne County, Pennsylvania and to issue its bonds from time to
time for such purpose; and
WHEREAS, in order to further the purposes of the Act, the Issuer
will issue and sell its Tax-Exempt Adjustable Mode Industrial Revenue Bonds
(Xxxx, Inc. Project) Series 1996 in an aggregate principal amount of
$3,500,000 (the "Bonds"); and
WHEREAS, the proceeds from the sale of Bonds will be used to make
a loan (the "Loan") to the Company to finance, or to reimburse to the
Company, a portion of the cost of the acquisition and installation of
equipment in an existing manufacturing facility in Luzerne County leased by
the Company (the "Project"); and
WHEREAS, the Issuer intends to issue the Bonds under an Indenture
of Trust dated as of even date herewith between First-Citizens Bank & Trust
Company (the "Trustee") and the Issuer (the "Indenture") and to assign to the
Trustee as security for the Bonds certain of the Issuer's rights under this
Agreement and the Company's Note of even date herewith, in the form attached
hereto as Exhibit C; and
WHEREAS, the Issuer and the Company desire to set forth certain
terms and conditions with respect to the issuance of the Bonds;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto covenant, agree and bind
themselves as follows;
ARTICLE IARTICLE I
C-392210.02340.01188
-5-
DEFINITIONS AND RULES OF CONSTRUCTION
Section I.1. Definitions. In addition to the words and
terms elsewhere defined in this Agreement, the following words and terms as
used herein shall have the following meanings unless the context or use
clearly indicates another or different meaning or intent, and any other words
and terms defined in the Indenture shall have the same meanings when used
herein as assigned in the Indenture unless the context or use clearly
indicates another or different meaning or intent:
"Acquisition", when used with reference to the Project, means
acquisition, construction, installation and equipping.
"Agreement" shall mean this Loan Agreement between the Issuer and
the Company and any modifications, alterations and supplements hereto made in
accordance with the provisions hereof and of the Indenture.
"Bond Documents" means, collectively, the Bonds, this Agreement,
the Note, the Indenture, the Credit Facility, the Credit Agreement, the
Placement Agreement, the Remarketing Agreement and the Offering Memorandum.
"Bond Proceeds" means the principal of the Bonds and any
investment earnings thereon while on deposit in the Initial Fund.
"Company Representative" means any one of the persons at the time
designated to act on behalf of the Company by written certificate furnished
to the Issuer and the Trustee containing the specimen signatures of such
persons and signed on behalf of the Company by the President or any Vice
President of the Company.
"Completion Date" means, with respect to the Project, the date on
which the Company Representative delivers a completion certificate to the
Trustee pursuant to Section 3.3.
"Cost(s) of the Project", "Cost" or "Costs" means all costs and
allowances which the Issuer or the Company may properly pay or accrue for
the Project and which, under generally accepted accounting principles, are
chargeable to the capital account of the Project or could be so charged
either with a proper election to capitalize such costs or, but for a proper
election, to expense such costs, including (without limitation) the following
costs:
(a) fees and expenses incurred in preparing the plans and
specifications for the Project (including any preliminary study or planning
or any aspect thereof); any labor, services, materials and supplies used or
furnished in site improvement and construction; any equipment for the
Project; and any acquisition necessary to provide utility services or other
services, including trackage to provide the Project with public
transportation facilities, roadways, parking lots, water supply, sewage and
waste disposal facilities; and all real and tangible personal property deemed
necessary by the Company and acquired in connection with the Project;
(b) fees for architectural, engineering, supervisory and
consulting services;
(c) any fees and expenses incurred in connection with
perfecting and protecting title to the Project and any fees and expenses
incurred in connection with preparing, recording or filing such documents,
instruments or financing statements as either the Company or the Issuer may
deem desirable to perfect or protect the rights of the Issuer or the Trustee
under the Bond Documents;
(d) any legal, accounting or financial advisory fees and
expenses, including, without limitation, fees and expenses of Bond Counsel
and counsel to the Issuer, the Company, the Credit Issuer, the Placement
Agent, the Remarketing Agent or the Trustee, any fees and expenses of the
Issuer, Trustee, Remarketing Agent, Placement Agent, Credit Issuer, Tender
Agent, Paying Agent or any rating agency, filing fees, and printing and
engraving costs, incurred in connection with the authorization, issuance,
sale and purchase of the Bonds, and the preparation of the Bond Documents and
all other documents in connection with the authorization, issuance and sale
of the Bonds;
(e) interest to accrue on the Bonds during construction of the
Project;
(f) any administrative or other fees charged by the Issuer or
reimbursement thereto of expenses in connection with the Project until the
Completion Date; and
(g) any other costs and expenses relating to the Project which
could constitute costs or expenses for which the Issuer may expend Bond
proceeds under the Act.
"Eminent Domain" means the taking of title to, or the temporary
use of, the Project or any part thereof 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.
"Event of Default" shall have the meaning set forth in
Section 10.1.
"Governing Body" means the board, commission, council or other
body in which the general legislative powers of the Issuer are vested.
"Issuer Representative" means any one of the persons at the time
designated to act on behalf of the Issuer by written certificate furnished to
the Company and the Trustee containing the specimen signatures of such
persons and signed on behalf of the Issuer by its Chairman or Vice Chairman.
"Net Proceeds", when used with respect to any proceeds of
insurance or proceeds resulting from Eminent Domain, means the gross proceeds
therefrom less all expenses (including attorneys' fees) incurred in
realization thereof.
"Offering Memorandum" means the Preliminary Offering Memorandum
and the final Offering Memorandum prepared and used in connection with the
initial placement of the Bonds on the Issue Date.
"Plans and Specifications" shall mean the plans and
specifications used in the Acquisition of the Project, as the same may be
revised from time to time by the Company in accordance with Section 3.8.
"Project" means the project more fully described in Exhibit-A
hereto, as the same may at any time exist.
"Remarketing Agreement" means the Remarketing and Interest
Services Agreement, dated as of December 1, 1996, between the Company and the
Remarketing Agent.
"Tax Regulations" means the applicable treasury regulations
promulgated under the Code or under Section 103 of the Internal Revenue Code
of 1954, as amended, whether at the time proposed, temporary, final or
otherwise.
Rules of Construction. Unless the context clearly indicates to the contrary,
the following rules shall apply to the construction of this Agreement:
(a) Capitalized terms used but not defined in this Agreement
shall have the meaning ascribed to them in the Indenture.
(b) Words importing the singular number shall include the
plural number and vice versa.
(c) The table of contents, captions and headings herein are
solely for convenience of reference only and shall not constitute a part of
this Agreement nor shall they affect its meaning, construction or effect.
(d) Words of the masculine gender shall be deemed and construed
to include correlative words of the feminine and neuter genders, and words of
the neuter gender shall be deemed and construed to include correlative words
of the masculine and feminine genders.
(e) All references in this Agreement to particular Articles or
Sections are references to Articles and Sections of this Agreement, unless
otherwise indicated.
ARTICLE IIARTICLE II
REPRESENTATIONS
Section II.1. Representations by the Issuer. The Issuer
represents and warrants as follows:
(a) The Issuer is a duly constituted public body corporate and
politic of the State within the meaning of the Act and is authorized by the
Act to execute and to enter into this Agreement and to undertake the
transactions contemplated herein and to carry out its obligations hereunder.
(b) The Issuer has all requisite power, authority and legal
right to execute and deliver the Bond Documents to which it is a party and
all other instruments and documents to be executed and delivered by the
Issuer pursuant thereto, to perform and observe the provisions thereof and to
carry out the transactions contemplated by the Bond Documents. All corporate
action on the part of the Issuer which is required for the execution,
delivery, performance and observance by the Issuer of the Bond Documents has
been duly authorized and effectively taken, and such execution, delivery,
performance and observation by the Issuer do not contravene applicable law or
any contractual restriction binding on or affecting the Issuer.
(c) The Issuer has duly approved the issuance of the Bonds and
the loan of the proceeds thereof to the Company for the Acquisition of the
Project; no other authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
as a condition to the performance by the Issuer of its obligations under any
Bond Documents.
(d) This Agreement is, and each other Bond Document to which
the Issuer is a party when delivered will be, legal valid and binding special
obligations of the Issuer enforceable against the Issuer in accordance with
its terms.
(e) There is no default of the Issuer in the payment of the
principal of or interest on any of its indebtedness for borrowed money or
under any instrument or instruments or agreements under and subject to which
any indebtedness for borrowed money has been incurred which does or could
affect the validity and enforceability of the Bond Documents or the ability
of the Issuer to perform its obligations thereunder, and no event has
occurred and is continuing under the provisions of any such instrument or
agreement which constitutes or, with the lapse of time or the giving of
notice, or both, would constitute such a default.
(f) With respect to the Bonds, there are no other obligations
of the Issuer that have been, are being or will be sold (i) at substantially
the same time, (ii) under a common plan of marketing, and (iii) at
substantially the same rate of interest.
(g) There is pending or, to the knowledge of the undersigned
officers of the Issuer, threatened no action or proceeding before any court,
governmental agency or arbitrator (i) to restrain or enjoin the issuance or
delivery of the Bonds or the collection of any revenues pledged under the
Indenture, (ii) in any way contesting or affecting the authority for the
issuance of the Bonds or the validity of any of the Bond Documents, or (iii)
in any way contesting the existence or powers of the Issuer.
(h) In connection with the authorization, issuance and sale of
the Bonds, the Issuer has complied with all provisions of the Constitution
and laws of the State, including the Act.
(i) The Issuer has not assigned or pledged and will not assign
or pledge its interest in this Agreement for any purpose other than to secure
the Bonds under the Indenture. The Bonds constitute the only bonds or other
obligations of the Issuer in any manner payable from the revenues to be
derived from this Agreement, and except for the Bonds, no bonds or other
obligations have been or will be issued on the basis of this Agreement.
(j) The Issuer is not in default under any of the provisions of
the laws of the State, where any such default would affect the issuance,
validity or enforceability of the Bonds or the transactions contemplated by
this Agreement or the Indenture.
Representations by the Company. The Company represents and warrants as
follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of North Carolina,
is in good standing under the laws of the State, and has corporate and other
legal power and authority to enter into and to perform the agreements and
covenants on its part contained in the Bond Documents to which it is a party,
and has duly authorized the execution, delivery and performance of the Bond
Documents to which it is a party and has duly approved the Bond Documents.
(b) The execution and delivery of the Bond Documents to which
it is a party, consummation of the transactions contemplated hereby and
thereby and by the Bond Documents to which it is not a party, and the
fulfillment of or compliance with the terms and conditions hereof and thereof
will not conflict with or constitute a breach of or a default under the
Company's articles of incorporation or bylaws or any agreement or instrument
to which the Company is a party or any existing law, administrative
regulation, court order or consent decree to which the Company is subject, or
by which it or any of its property is bound.
(c) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or
body, pending or threatened against or affecting the Company or any of its
officers, nor to the best knowledge of the Company is there any basis
therefor, wherein an unfavorable decision, ruling or finding would materially
adversely affect the transactions contemplated by this Agreement or that
would adversely affect, in any way, the validity or enforceability of any of
the Bond Documents or any other agreement or instrument to which the Company
is a party and that is to be used or contemplated for use in the consummation
of the transactions contemplated hereby.
(d) No further authorizations, consents or approvals of
governmental bodies or agencies are required in connection with the execution
and delivery by the Company of this Agreement or the other Bond Documents to
which the Company is a party or in connection with the carrying out by the
Company of its obligations under this Agreement or the other Bond Documents
to which the Company is a party.
(e) The financing of the Project as provided under this
Agreement, and commitments therefor made by the Issuer have induced the
Company to expand or locate its operations in the jurisdiction of the Issuer.
(f) The Company anticipates that upon completion of the
Acquisition of the Project, the Company will operate the Project as a
"project" within the meaning of the Act until the Bonds have been paid in
full.
(g) The Project is of the type authorized and permitted by the
Act, and the Project is substantially the same in all material respects to
that described in the notice of public hearing published on September 1, 1996.
(h) The Project will be acquired, constructed and installed and
will be operated by the Company in such manner as to conform with all
applicable zoning, planning, building, environmental and other regulations of
the governmental authorities having jurisdiction over the Project.
(i) The Company will cause all of the proceeds of the Bonds to
be applied solely to the payment of Costs of the Project.
(j) The Company has taken no action, and has not omitted to
take any action, which action or omission to take action would in any way
affect or impair the excludability of interest on the Bonds from gross income
of the Holders thereof for federal income tax purposes.
(k) The Company presently in good faith estimates the Cost of
the Project to equal or exceed the original principal amount of the Bonds.
(l) The Project will be located wholly within Luzerne County,
Pennsylvania.
ARTICLE IIIARTICLE III
ACQUISITION OF THE PROJECT
Section III.1. Agreement to Undertake and Complete the
Project. The Company covenants and agrees to undertake and complete the
Acquisition of the Project. Upon written request of the Issuer or the
Trustee, the Company agrees to make available to the Issuer and the Trustee
(for review and copying) all the then current Plans and Specifications for
the Project.
The Company agrees to cause the Project to be completed as soon
as may be practicable and to cause all proceeds of the Bonds, including
investment earnings, to be expended no later than three years from the Issue
Date. For Costs of the Project incurred prior to receipt by the Issuer of
the proceeds of the Bonds, the Company agrees to advance all funds necessary
for such purpose. Such advances may be reimbursed from the Initial Fund to
the extent permitted by Section 3.2.
The Company shall obtain or cause to be obtained all necessary
permits and approvals for the Acquisition, operation and maintenance of the
Project.
Disbursements from the Initial Fund. In the Indenture, the Issuer has
authorized and directed the Trustee to use the moneys in the Initial Fund for
payment or reimbursement to the Company of the Costs of the Project.
Each payment for a Cost of the Project shall be made only upon
the receipt by the Trustee and, upon written request therefor, the Issuer of
a requisition and certificate, substantially in the form attached hereto as
Exhibit B and signed by the Company Representative.
The Company agrees that it will not request any disbursement
which, if paid, would result in (i) less than substantially all (at least
ninety-five percent (95%)) of the proceeds of the Bonds being used to provide
land or property subject to the allowance for depreciation under Section 167
of the Code, constituting the Project, (ii) less than all of the proceeds of
the Bonds being used to provide the Project under the Act, or (iii) the
inclusion of the interest on any of the Bonds in the gross income of any
Holder for purposes of federal income taxation (as long as such Holder is not
a "related person" or a "substantial user" of the Project as such terms are
used in Section 144 of the Code).
Interest on the Bonds and all legal, consulting and issuance
expenses shall be set forth separately in any requisition and certificate
requesting payment therefor. Such requisitions and certificates shall be
consecutively numbered. Upon request, the Company shall furnish the Issuer
or the Trustee with copies of invoices or other appropriate documentation
supporting payments or reimbursements requested pursuant to this Section
3.2. The Issuer and the Trustee may rely conclusively upon any statement
made in any such requisition and certificate.
Section III.3. Establishment of Completion Date and
Establishment of Completion Date and Certificate as to Completion. The
Completion Date shall be the date on which the Company Representative signs
and delivers to the Trustee a certificate stating that, except for amounts
retained by the Trustee for Costs of the Project not then due and payable, or
the liability for which the Company is, in good faith, contesting or
disputing, (a) the Project has been completed to the satisfaction of the
Company, and all labor, services, materials and supplies used in such
Acquisition have been paid for, and (b) the Project is suitable and
sufficient for the efficient operation as a "project" (as defined in the Act).
Notwithstanding the foregoing, such certificate may state that it
is given without prejudice to any rights against third parties which exist at
the date of such certificate or which may subsequently come into being.
Section III.4. Closeout of Initial Fund; Disposition of
Closeout of Initial Fund; Disposition of Balance in Initial Fund. All moneys
and any unliquidated investments remaining in the Initial Fund on the
Completion Date and after payment in full of the Costs of the Project (except
for costs not then due and payable for the payment of which the Trustee shall
have retained amounts as hereinafter provided) shall, as soon as practicable
after the Completion Date, and no later than ninety days thereafter, at the
direction of the Company, be delivered to the Trustee for deposit in the
Surplus Fund. The Trustee shall, at the direction of the Company
Representative, retain moneys in the Initial Fund for payment of Costs of the
Project not then due and payable. Any balance of such retained funds
remaining after full payment of such Costs of the Project shall at the
direction of the Company be delivered to the Trustee for deposit in the
Surplus Fund to be applied to the redemption of Bonds in accordance with the
terms of the Indenture.
Section III.5. Company Required to Pay Costs in Event Initial
Company Required to Pay Costs in Event Initial Fund Insufficient. If the
moneys in the Initial Fund available for payment of the Costs of the Project
should not be sufficient to make such payments in full, the Company agrees to
pay directly (or to deposit moneys in the Initial Fund for the payment of)
such costs of completing the Project as may be in excess of the moneys
available therefor in the Initial Fund. THE ISSUER DOES NOT MAKE ANY
WARRANTY OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) THAT THE MONEYS
DEPOSITED INTO THE INITIAL FUND AND AVAILABLE FOR PAYMENT OF THE COSTS OF THE
PROJECT, UNDER THE PROVISIONS OF THIS AGREEMENT, WILL BE SUFFICIENT TO PAY
ALL OF THE COSTS OF THE PROJECT. If, after exhausting the moneys in the
Initial Fund for any reason (including, without limitation, losses on
investments made by the Trustee under the Indenture), the Company pays, or
deposits moneys in the Initial Fund for the payment of, any portion of the
Costs of the Project pursuant to the provisions of this Section 3.5, the
Company shall not be entitled to any reimbursement therefor from the Issuer
or from the Trustee, nor shall it be entitled to any diminution of the
amounts payable under Section-5.2.
Section III.6. Company and Issuer Representatives and
Company and Issuer Representatives and Successors. At or prior to the
initial sale of the Bonds, the Company and the Issuer shall appoint a Company
Representative and an Issuer Representative, respectively, for the purpose of
taking all actions and delivering all certificates required to be taken and
delivered by the Company Representative and the Issuer Representative under
the provisions of this Agreement. The Company and the Issuer, respectively,
may appoint alternate Company Representatives and alternate Issuer
Representatives to take any such action or make any such certificate if the
same is not taken or made by the Company Representative or the Issuer
Representative. In the event any of such persons, or any successor appointed
pursuant to the provisions of this Section 3.6, should resign or become
unavailable or unable to take any action or deliver any certificate provided
for in this Agreement, another Company Representative or alternate Company
Representative, or another Issuer Representative or alternate Issuer
Representative, shall thereupon be appointed by the Company or the Issuer,
respectively. If the Company or the Issuer fails to make such designation
within ten (10) days following the date when the then incumbent Company
Representative or Issuer Representative resigns or becomes unavailable or
unable to take any such actions, the President or any Vice President of the
Company, or the Chairman or the Vice Chairman of the Issuer, shall serve as
the Company Representative or the Issuer Representative, respectively.
Whenever the provisions of this Agreement require the Company's
approval or require the Issuer or the Trustee to take some action at the
request or direction of the Company, the Company Representative shall make
such approval or such request or direction in writing unless otherwise
specified in this Agreement. Any action so taken with the written approval
of or at the written direction of the Company Representative shall be binding
upon the Company.
Investment of Moneys in Funds. The Trustee may invest or reinvest any moneys
held pursuant to the Indenture to the extent permitted by Section 4.7 of the
Indenture and by law (but subject to the provisions of Section 8.9(a)
hereof), in Permitted Investments, as defined in the Indenture, as directed
by a Company Representative.
Any such securities may be purchased at the offering or market
price thereof at the time of such purchase.
The Trustee may make any and all such investments through its own
bond department or trust investments department. Any interest accruing on or
profit realized from the investment of any moneys held as part of the Initial
Fund shall be credited to the Initial Fund, and any loss resulting from such
investment shall be charged to the Initial Fund. Any interest accruing on or
profit realized from the investment of any moneys held as a part of the Bond
Fund shall be credited to the Bond Fund, and any loss resulting from such
investment shall be charged to the Bond Fund. Neither the Issuer nor the
Trustee shall be liable for any loss resulting from any such investments,
provided the Trustee has performed its respective obligations under Section
4.7 of the Indenture in accordance with Section 7.1(b) of the Indenture. For
the purposes of this Section 3.7, any interest-bearing deposits, including
certificates of deposit, issued by or on deposit with the Trustee shall be
deemed to be investments and not deposits.
Plans and Specifications. The Company shall maintain a set of Plans and
Specifications at the Project which shall be available to the Issuer and the
Trustee for inspection and examination during the Company's regular business
hours. The Issuer, the Trustee and the Company agree that the Company may
supplement, amend and add to the Plans and Specifications, and that the
Company shall be authorized to omit or make substitutions for components of
the Project, without the approval of the Issuer and the Trustee, provided
that no such change shall be made which, after giving effect to such change,
would cause any of the representations and warranties set forth in Section
2.2 hereof to be false or misleading in any material respect, or would result
in a violation of the covenant set forth in Section 8.5. If any such change
would render materially incorrect or inaccurate the description of the
initial components of the Project as set forth in Exhibit A to this
Agreement, the Company shall deliver to the Issuer and the Trustee an opinion
of Bond Counsel to the effect that such change will not cause the interest on
the Bonds to be includable in the gross income of the owners thereof for
federal income tax purposes, and thereafter, the Company and the Issuer shall
amend such Exhibit A to reflect such change. No approvals of the Issuer and
the Trustee shall be required for the Acquisition of the Project or for the
solicitation, negotiation, award or execution of contracts relating thereto.
ARTICLE IVARTICLE IV
ISSUANCE OF THE BONDS
Section IV.1. Agreement to Issue the Bonds. To provide funds
for the Acquisition of the Project, the Issuer agrees that it will sell,
issue and deliver the Bonds in the aggregate principal amount of $3,500,000
to the initial purchasers thereof and will cause the proceeds of the Bonds to
be applied as provided in Section 4.5 of the Indenture.
No Third-Party Beneficiary. It is specifically agreed between the parties
executing this Agreement that it is not intended by any of the provisions of
any part of this Agreement to establish in favor of the public or any member
thereof, other than as expressly provided herein or as contemplated in the
Indenture, the rights of a third-party beneficiary hereunder, or to authorize
anyone not a party to this Agreement to maintain a suit for personal injuries
or property damage pursuant to the terms or provisions of this Agreement.
The duties, obligations and responsibilities of the parties to this Agreement
with respect to third parties shall remain as imposed by law.
ARTICLE VARTICLE V
LOAN; PAYMENT PROVISIONS
Section V.1. Loan of Proceeds. The Issuer agrees, upon the
terms and conditions contained in this Agreement and the Indenture, to lend
to the Company the proceeds received by the Issuer from the sale of the
Bonds. The loan shall be made by depositing the accrued interest, if any,
from the initial sale of the Bonds into the Bond Fund and the remainder of
said proceeds in the Initial Fund in accordance with Section 4.5 of the
Indenture. Such proceeds shall be disbursed to or on behalf of the Company
as provided in Section-3.2. The Company's obligation to repay the loan shall
be evidenced by a Promissory Note, the form of which is attached hereto as
Exhibit C, dated the Issue Date.
Amounts Payable. The Company hereby agrees to pay the Note and repay the
loan made pursuant to this Agreement by making the following payments:
(a) The Company shall pay or cause to be paid to the Trustee in
immediately available funds for the account of the Issuer for deposit into
the Bond Fund on or before any Interest Payment Date for the Bonds or any
other date that any payment of interest, premium, if any, or principal is
required to be made in respect of the Bonds pursuant to the Indenture, until
the principal of, premium, if any, and interest on the Bonds shall have been
fully paid or provision for the payment thereof shall have been made in
accordance with the Indenture, a sum which, together with any Eligible Funds
available for such payment in the Bond Fund, will enable the Trustee to pay
the amount payable on such date as principal of (whether at maturity or upon
redemption or acceleration or otherwise), premium, if any, and interest on
the Bonds as provided in the Indenture; provided, however, that the
obligation of the Company to make any payment hereunder shall be deemed
satisfied and discharged to the extent of the corresponding payment made by
the Credit Issuer under the Credit Facility.
It is understood and agreed that the Note and all payments
payable by the Company under this subsection are assigned by the Issuer to
the Trustee for the benefit of the Holders. The Company assents to such
assignment. The Issuer hereby directs the Company and the Company hereby
agrees to pay to the Trustee at the principal corporate trust office of the
Trustee all payments payable by the Company pursuant to the Note and this
subsection.
(b) The Company will also pay the reasonable fees and expenses
of the Issuer, the Trustee, the Tender Agent, the Paying Agent, the Placement
Agent, the Remarketing Agent and the Registrar under the Indenture and all
other amounts which may be payable to the Trustee, Paying Agent, Registrar or
the Tender Agent under Section 7.2 of the Indenture, and the reasonable fees
and expenses of the Remarketing Agent, such fees and expenses to be paid when
due and payable by the Company directly to the Trustee, Tender Agent, Paying
Agent, Registrar and Remarketing Agent, respectively, for their own account.
(c) The Company will also pay when due and payable the
reasonable fees and expenses of the Issuer related to the issuance of the
Bonds, including without limitation, attorneys' fees and expenses.
(d) The Company covenants, for the benefit of the Holders, to
pay or cause to be paid, to the Paying Agent, such amounts as shall be
necessary to enable the Paying Agent to pay the Purchase Price of Bonds
delivered to the Tender Agent or the Remarketing Agent, as the case may be,
for purchase, all as more particularly described in Section 2.6 of the
Indenture; provided, however, that the obligation of the Company to make any
such payment under this Section 5.2(d) shall be reduced by the amount of
moneys available for such payment described in Section 2.6(g)(i) and (ii) of
the Indenture; and provided, further, that the obligation of the Company to
make any payment under this Section 5.2(d) shall be deemed to be satisfied
and discharged to the extent of the corresponding payment made by the Credit
Issuer under the Credit Facility.
(e) In the event the Company shall fail to make any of the
payments required in this Section 5.2, the item or installment so in default
shall continue as an obligation of the Company until the amount in default
shall have been fully paid.
Unconditional Obligations. The obligation of the Company to make the
payments required by Section 5.2 shall be absolute and unconditional. The
Company shall pay all such amounts without abatement, diminution or deduction
(whether for taxes or otherwise) regardless of any cause or circumstance
whatsoever including, without limitation, any defense, set-off, recoupment or
counterclaim that the Company may have or assert against the Issuer, the
Trustee or any other Person.
Prepayments. The Company may prepay all or any part of the amounts required
to be paid by it under Section 5.2, at the times and in the amounts provided
in Article XI for redemption of the Bonds, and in the case of mandatory
redemptions of the Bonds, the Company shall cause to be furnished to the
Issuer such amounts on or prior to the applicable redemption dates.
Prepayment of amounts due hereunder pursuant to this Section 5.4 shall be
deposited in the Bond Fund.
Credits Against Payments. To the extent that principal of, Purchase Price,
premium, if any, or interest on the Bonds shall be paid with moneys available
under the Credit Facility, from remarketing proceeds (with respect to
Purchase Price) or other sources available under the Indenture, the
obligation of the Company to make payments required by Section 5.2 shall be
satisfied and discharged to the extent of the principal of, Purchase Price,
premium, if any, or interest on the Bonds so paid. If the principal of and
premium, if any, and interest on the Bonds shall have been paid sufficiently
that payment of the Bonds shall have occurred in accordance with Article V of
the Indenture, then the obligations of the Company pursuant to Section 5.2,
ipso facto, shall be deemed to have been paid in full, and the Company's
obligations under Section 5.2 and this Agreement shall be discharged.
Credit Facility and Alternate Credit Facility. The Company shall provide for
the payment of amounts payable pursuant to Section 5.2(a) and (d) herein, by
the delivery to the Trustee on the Issue Date of the Original Credit
Facility. The Company shall be entitled to terminate the Credit Facility as
provided therein and in the Indenture and shall be entitled to provide an
Alternate Credit Facility under certain circumstances as provided in the
Indenture.
Interest Rate Determination Method. The Company is hereby granted the right
to designate from time to time changes in the Interest Rate Determination
Method (as defined in the Indenture) in the manner and to the extent set
forth in Section 2.4 of the Indenture.
ARTICLE VIARTICLE VI
MAINTENANCE AND TAXES
Section VI.1. Company's Obligations to Maintain and Repair.
The Company agrees that during the term of this Agreement it will keep and
maintain the Project in good condition, repair and working order, ordinary
wear and tear excepted, at its own cost, and will make or cause to be made
from time to time all necessary repairs thereto (including external and
structural repairs) and renewals and replacements thereto.
Taxes and Other Charges. The Company will promptly pay and discharge or
cause to be promptly paid and discharged, as the same become due, all taxes,
assessments, governmental charges or levies and all utility and other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Project imposed upon it or in respect of the Project before the same shall
become in default, as well as all lawful claims which, if unpaid, might
become a lien or charge upon such property and assets or any part thereof,
except such that are contested in good faith by the Company for which the
Company has maintained adequate reserves satisfactory to the Credit Issuer,
or in the absence of any Credit Issuer, satisfactory to the Issuer and the
Trustee.
ARTICLE VIIARTICLE VII
INSURANCE, EMINENT DOMAIN AND DAMAGE AND DESTRUCTION
Section VII.1. Insurance. The Company will during the term of
this Agreement and at all times while any Bonds are outstanding continuously
insure the Project against such risks as are customarily insured against by
businesses of like size and type, paying as the same become due all premiums
in respect thereof. In addition the Company shall comply, or cause
compliance, with applicable worker's compensation laws of the State.
Provisions Respecting Eminent Domain. In case of any damage to or
destruction of all or any part of the Project exceeding $50,000, the Company
shall give prompt written notice thereof to the Issuer and the Trustee. In
case of a taking or proposed taking of all or any part of the Project or any
right therein by Eminent Domain, the party upon which notice of such taking
is served shall give prompt written notice to the other and to the Trustee.
Each such notice shall describe generally the nature and extent of such
damage, destruction, taking, loss, proceedings or negotiations.
Damage and Destruction. If at any time while any of the Bonds are
Outstanding, the Project, or any portion thereof, shall be damaged or
destroyed by fire, flood, windstorm or other casualty, or title to, or the
temporary use of, the Project, or any portion thereof, shall have been taken
by the power of Eminent Domain, the Company (unless it shall have exercised
its option to prepay all of the Bonds) shall cause the Net Proceeds from
insurance or condemnation or an amount equal thereto to be used for the
repair, reconstruction, restoration or improvement of the Project.
Notwithstanding the above, so long as the Credit Facility is outstanding, the
Company shall comply with the terms of the Credit Agreement related to the
use of insurance proceeds.
ARTICLE VIII
SPECIAL COVENANTS
Section VIII.1. Access to the Property and Inspection. The
Issuer and the Trustee, and their respective agents and employees, shall have
the right, at all reasonable times during normal business hours of the
Company upon the furnishing of reasonable notice to the Company under the
circumstances, to enter upon and examine and inspect the Project and to
examine and copy the books and records of the Company insofar as such books
and records relate to the Project or the Bond Documents.
Financial Statements. The Company shall, upon request, deliver to the
Trustee and the Issuer as soon as practicable and in any event within 120
days after the end of each fiscal year of the Company, the financial reports
of the Company for such fiscal year.
Further Assurances and Corrective Xxxxxxxxxxx.xx and Corrective Instruments
(a) Subject to the provisions of the Indenture, the Issuer and
the Company agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such
supplements and amendments hereto and such further instruments as may
reasonably be required for carrying out the intention or facilitating the
performance of this Agreement.
(b) The Company shall cause this Agreement to be kept recorded
and filed in such manner and in such places as may be required by law to
fully preserve and protect the security of the Holders and the rights of the
Trustee and to perfect the security interest created by the Indenture.
Recording and Filing; Other Instruments.and Filing; Other Instruments
(a) The Company covenants that it will cause continuation
statements to be filed as required by law in order fully to preserve and to
protect the rights of the Trustee or the Issuer in the assignment of certain
rights of the Issuer under this Agreement and otherwise under the Indenture.
The Company covenants that it will cause Counsel to render an opinion to the
Issuer and to the Trustee not earlier than 60 nor later than 30 days prior to
each anniversary date occurring at five-year intervals after the issuance of
the Bonds to the effect that all Financing Statements, notices and other
instruments required by applicable law, including this Agreement, have been
recorded or filed or re-recorded or re-filed in such manner and in such
places required by law in order to fully preserve and protect the rights of
the Trustee in the assignment of certain rights of the Issuer under this
Agreement and otherwise under the Indenture.
(b) The Company and the Issuer shall execute and deliver all
instruments and shall furnish all information and evidence deemed necessary
or advisable in order to enable the Company to fulfill its obligations as
provided in Section 8.4(a). The Company shall file and re-file and record
and re-record or shall cause to be filed and re-filed and recorded and
re-recorded all instruments required to be filed and re-filed and recorded or
re-recorded and shall continue or cause to be continued the liens of such
instruments for so long as any of the Bonds shall be Outstanding.
Section VIII.5. Exclusion from Gross Income for Federal Income
Exclusion from Gross Income for Federal Income Tax Purposes of Interest on
the Bonds. The Company covenants and agrees that it has not taken and will
not take or cause to be taken, and has not omitted and will not omit or cause
to be omitted, any action which will result in interest paid on the Bonds
being included in gross income of the Holders of the Bonds for the purposes
of federal income taxation.
The Company covenants and agrees that it will take or cause to be
taken all required actions necessary to preserve the exclusion from gross
income for federal income tax purposes of interest on the Bonds; and the
Issuer covenants and agrees that it will take or cause to be taken all
required actions to preserve the exclusion from gross income for federal
income tax purposes of interest on the Bonds.
Indemnity Against Claims. The Company will pay and discharge and will
indemnify and hold harmless the Issuer and the Trustee, and their respective
officers, employees and agents, from any taxes, assessments, impositions and
other charges in respect of the Project. If any such claim is asserted, or
any such lien or charge upon payments, or any such taxes, assessments,
impositions or other charges, are sought to be imposed, the Issuer or the
Trustee, as the case may be, will give prompt written notice to the Company;
provided, however, that the failure to provide such notice will not relieve
the Company of the Company's obligations and liability under this Section 8.6
and will not give rise to any claim against or liability of the Issuer or the
Trustee. The Company shall have the sole right and duty to assume, and shall
assume, the defense thereof, with counsel acceptable to the person on behalf
of which the Company undertakes a defense, with full power to litigate,
compromise or settle the same in its sole discretion.
Release and Indemnification. The Company shall at all times protect,
indemnify and hold the Issuer, the Governing Body and the Trustee, and their
respective members, directors, officers, employees, attorneys and agents,
harmless against any and all liability, losses, damages, costs, expenses,
taxes, causes of action, suits, claims, demands and judgments of any nature
arising from or in connection with the Project or the financing of the
Project, including, without limitation, all claims or liability resulting
from, arising out of or in connection with the acceptance or administration
of the Bond Documents or the trusts thereunder or the performance of duties
under the Bond Documents or 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 or the use thereof, including without limitation
any lease thereof or assignment of its interest in this Agreement, such
indemnification to include the reasonable costs and expenses of defending
itself or investigating any claim of liability and other reasonable expenses
and attorneys' fees incurred by the Issuer, the Governing Body and the
Trustee, and their respective members, directors, officers, employees,
attorneys and agents, in connection therewith, provided that the benefits of
this Section 8.7 shall not inure to any person other than the Issuer, the
Trustee, the Governing Body, their respective members, directors, officers,
employees, attorneys and agents, and provided further that such loss, damage,
death, injury, claims, demands or causes shall not have resulted from the
gross negligence or willful misconduct of, the Issuer or such members,
directors, officers, employees, attorneys and agents. The obligations of the
Company under this Section 8.7 shall survive the termination of this
Agreement and the Indenture. Notwithstanding any other provision of this
Agreement or the Indenture to the contrary, the Company agrees (i) not to
assert any claim or institute any action or suit against the Trustee or its
employees arising from or in connection with any investment of funds made by
the Trustee in good faith as directed by a Company Representative, and
(ii) to indemnify and hold the Trustee and its employees harmless against any
liability, losses, damages, costs, expenses, causes of action, suits, claims,
demands and judgments of any nature arising from or in connection with any
such investment.
Compliance with Laws. The Company agrees to comply with all applicable
zoning, planning, building, environmental and other regulations of the
governmental authorities having jurisdiction of the Project during the
Company's operation of the Project.
Non-Arbitrage Covenant. 9. Non-Arbitrage Covenant
(a) The Company and the Issuer covenant that they will (i) not
take, or fail to take, any action or make any investment or use of the
proceeds of the Bonds that would cause the Bonds to be "arbitrage bonds"
within the meaning of Section 148 of the Code and (ii) comply with the
requirements of Section 148 of the Code.
(b) In the event that all of the proceeds of the Bonds,
including the investment proceeds thereof, are not expended by the date which
is six (6) months following the Issue Date, or if for any other reason a
rebate is payable to the United States pursuant to Section 148 of the Code,
the Company shall calculate, or cause to be calculated, the Rebate Amount (as
defined in the Indenture). The Company agrees to pay the amount so
calculated, together with supporting documentation, to the Trustee so as to
permit the Trustee to pay such rebate to the United States at the times
required by the Code. The amount paid by the Company to the Trustee shall be
deposited into the Rebate Fund. The Company shall maintain or cause to be
maintained records of the determinations of the rebate, if any, pursuant to
this Section 8.9(b) until six (6) years after the retirement of the Bonds.
This Section 8.9(b) shall be construed in accordance with Section 148(f) of
the Code, including, without limitation, any applicable tax regulations
promulgated under the Code. Nothing contained in this Agreement or in the
Indenture shall be interpreted or construed to require the Issuer to pay any
applicable rebate, such obligation being the sole responsibility of the
Company. The Company shall pay all fees, costs and expenses associated with
calculation of the Rebate Amount (as defined in the Indenture) and upon
request from the Issuer provide the Issuer with a copy of such calculation.
Notice of Determination of Taxability. Promptly after the Company first
becomes aware of any Determination of Taxability or an event that could
trigger a Determination of Taxability, the Company shall give written notice
thereof to the Issuer, the Remarketing Agent and the Trustee.
No Purchase of Bonds by Company or Issuer. During the time a Credit Facility
is in effect neither the Company, the Issuer nor any affiliates of any of
them shall purchase any of the Bonds from the Remarketing Agent except under
the circumstances under which the Remarketing Agent may remarket Bonds to the
Company or the Issuer as provided in Section 2.7(d) of the Indenture.
Maintenance of Corporate Existence.enance of Corporate Existence
So long as a Credit Facility is in effect the Company agrees that
it will maintain its corporate existence, will not dissolve or otherwise
dispose of all or substantially all of its assets and will not consolidate
with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it, except either with the
consent of the Credit Issuer or as provided in the original Credit Agreement;
if a Credit Facility is not in effect, the Company agrees that it will
continue to be a corporation either organized under the laws of or duly
qualified to do business as a foreign corporation in the State, will maintain
its corporate existence, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or merge into
another corporation or permit one or more corporations to consolidate with or
merge into it; provided, that the Company may, without violating the
foregoing, consolidate with or merge into another corporation, or permit one
or more corporations to consolidate with or merge into it, or transfer all or
substantially all of its assets to another such corporation (and thereafter
dissolve or not dissolve, as the Company may elect) if the corporation
surviving such merger or resulting from such consolidation, or the
corporation to which all or substantially all of the assets of the Company
are transferred, as the case may be:
(i) is a corporation organized under the laws of the United
States of America, or any state, district or territory thereof, and qualified
to do business in the State;
(ii) shall expressly in writing assume all of the obligations of
the Company contained in this Agreement;
(iii) has a consolidated tangible net worth (after giving effect
to such consolidation, merger or transfer) of not less than the consolidated
tangible net worth of the Company and its consolidated subsidiaries
immediately prior to such consolidation, merger or transfer; and
(iv) provided that no Event of Default has occurred and is
continuing hereunder.
The term "consolidated tangible net worth," as used in this Section, shall
mean the difference obtained by subtracting total consolidated liabilities
(not including as a liability any capital or surplus item) from total
consolidated tangible assets of the Company and all of its consolidated
subsidiaries, computed in accordance with generally accepted accounting
principles. Prior to any such consolidation, merger or transfer the Trustee
shall be furnished a certificate from the chief financial officer of the
Company or his/her deputy stating that in the opinion of such officer none of
the covenants in this Agreement will be violated as a result of said
consolidation, merger or transfer.
Company Approval of Indenture. The Company understands that the Issuer will,
pursuant to the Indenture and as security for the payment of the principal
of, premium, if any, and the interest on the Bonds, assign and pledge to the
Trustee, and create a security interest in favor of the Trustee in certain of
its rights, title and interest in and to this Agreement (including all
payments hereunder) reserving, however, the Reserved Rights; and the Company
hereby agrees and consents to such assignment and pledge. The Company
acknowledges that it has received a copy of the Indenture for its examination
and review. By its execution of this Agreement, the Company acknowledges
that it has approved, has agreed to and is bound by the provisions of the
Indenture. The Company agrees that the Trustee shall be entitled to enforce
and to benefit from the terms and conditions of this Agreement that relate to
it notwithstanding the fact that it is not a signatory hereto.
Duties and Obligations. The Company covenants and agrees that it will fully
and faithfully perform all the duties and obligations that the Issuer has
covenanted and agreed in the Indenture to cause the Company to perform and
any duties and obligations that the Company is required in the Indenture to
perform. The foregoing shall not apply to any duty or undertaking of the
Issuer that by its nature cannot be delegated or assigned.
Non-Discrimination Covenant. Non-DiThe Company agrees that during the term
of this Agreement, as to itself and as to each occupant of the Project
controlling, controlled by or under common control with the Company (each, a
"Contractor") as follows:
(a) Contractor shall not discriminate against any employee,
applicant for employment, independent contractor or any other person because
of race, color, religious creed, handicap, ancestry, national origin, age or
sex. Contractor shall take affirmative action to insure that applicants are
employed, and that employes or agents are treated during employment, without
regard to their race, color, religious creed, handicap, ancestry, national
origin, age or sex. Such affirmative action shall include, but is not
limited to: employment, upgrading, demotion or transfer, recruiting or
recruitment advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training. Contractor shall post in
conspicuous places, available to employes, agents, applicants for employment
and other persons, a notice to be provided by the contracting agency setting
forth the provisions of this Section 8.15.
(b) Contractor shall in advertisements or requests for
employment placed by it or on its behalf, state that all qualified applicants
will receive consideration for employment without regard to race, color,
religious creed, handicap, ancestry, national origin, age or sex.
(c) Contractor shall send each labor union or workers'
representative with which it has a collective bargaining agreement or other
contract or understanding, a notice advising said labor union or workers'
representative of its commitment to this Section 8.15. Similar notice shall
be sent to every other source of recruitment regularly utilized by Contractor.
(d) It shall be no defense to a finding of noncompliance with
this Section 8.15 that Contractor had delegated some of its employment
practices to any union, training program or other source of recruitment which
prevents it from meeting its obligations. However, if the evidence indicates
that Contractor was not on notice of the third-party discrimination or made a
good faith effort to correct it, such factor shall be considered in
mitigation in determining appropriate sanctions.
(e) Where the practices of a union or of any training program
or other source of recruitment will result in the exclusion of minority group
persons, so that Contractor will be unable to meet its obligations under this
Section 8.15, Contractor shall then employ and fill vacancies through other
nondiscriminatory employment procedures.
(f) Contractor shall comply with all state and federal laws
prohibiting discrimination in hiring or employment opportunities. In event
of Contractor's noncompliance with this Section 8.15 or with any such laws,
the maturity of the indebtedness to the Issuer pursuant to this Agreement may
be accelerated pursuant to Section 10.2 of this Agreement, and Contractor may
de declared temporarily ineligible for further contracts from the State, and
other sanctions may be imposed and remedies invoked.
(g) Contractor shall furnish all necessary employment documents
and records to, and permit access to its books, records and accounts by, the
contracting agency for purposes of investigation to ascertain compliance with
the provisions of this clause. If Contractor does not possess documents or
records reflecting the necessary information requested, it shall furnish such
information on reporting forms supplied by the contracting agency.
(h) Contractor shall actively recruit minority subcontractors
and women subcontractors or subcontractors with substantial minority or women
representation among their employees.
(i) Contractor shall include the provisions of this Section
8.15 in every subcontract, so that such provisions will be binding upon each
subcontractor.
(j) Contractor obligations under this clause are limited to
Contractor's facilities within the State or, where the contract is for
purchase of goods manufactured outside of the State, the facilities at which
such goods are actually produced.
ARTICLE IX
ASSIGNMENT, LEASE AND SALE
Section IX.1. Restrictions on Transfer of Issuer's Rights.
The Issuer agrees that, except for the assignment of its rights under this
Agreement to the Trustee pursuant to the Indenture, it will not during the
term of this Agreement sell, assign, transfer or convey its interests in this
Agreement except as provided in Section 9.2.
Assignment by the Issuer. It is understood, agreed and acknowledged that the
Issuer, as security for payment of the principal of and premium, if any, and
interest on the Bonds, will assign to the Trustee pursuant to the Indenture,
among other things, certain of its rights, title and interests in and to this
Agreement (reserving its rights, however, pursuant to sections of this
Agreement providing that notices, reports and other statements be given to
the Issuer and that consents be obtained from the Issuer and also reserving
its rights to reimbursement and payment of costs and expenses under Sections
5.2(b) and (c), its right of access under Section 8.1, and its rights to
indemnification and non-liability under Sections 8.6, 8.7, 12.6 and 12.7, all
of this Agreement). The Company consents to such assignment and agrees that
the Trustee shall be entitled to enforce this Agreement directly against the
Company as a third party beneficiary hereof.
Section IX.3. Assignment, Lease or Sale of Project or
Assignment, Lease or Sale of Project or Assignment of Agreement by Company.
With the prior written consent of the Trustee, the Issuer and if a Credit
Facility is then in effect, the issuer of such Credit Facility (a) the rights
of the Company under this Agreement may be assigned by the Company and (b)
the Project may be leased or sold as a whole or in part by the Company;
provided, however, that (i) no such assignment, lease or sale shall relieve
the Company from primary liability for any of its obligations hereunder, and
in the event of any assignment, lease or sale, the Company shall continue to
remain primarily liable for payments to be made pursuant to the Note and
hereunder and for the performance and observance of the other agreements on
its part herein provided to be performed and observed by it to the same
extent as though no assignment, lease or sale had been made, (ii) each
lessee, purchaser or assignee of the Company's interest in this Agreement
shall assume the obligations of the Company hereunder to the extent of the
interest assigned, leased or sold, and the Company shall, not more than 60
nor less than 30 days prior to the effective date of any such assignment,
lease or sale, furnish or cause to be furnished to the Issuer and the Trustee
a true and complete copy of each such assignment, lease or purchase contract
and assumption of obligations and (iii) prior to any lease or sale, the
Company shall have caused to be delivered to the Issuer and the Trustee an
opinion of Bond Counsel to the effect that such leasing or sale will not
cause interest on the Bonds to be includable in the gross income of the
owners thereof for purposes of federal income taxation.
ARTICLE XARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section X.1. Events of Default Defined. The term "Event of
Default" shall mean any one or more of the following events:
(a) Failure by the Company to make any payments required to be
paid pursuant to Section 5.2(a) or to pay the Purchase Price of Bonds as
required pursuant to Section 5.2(d) herein;
(b) The occurrence of an Event of Default under the Indenture;
(c) Any representation by or on behalf of the Company contained
in this Agreement or in any instrument furnished in compliance with or in
reference to this Agreement or the Indenture proves false or misleading in
any material respect as of the date of the making or furnishing thereof;
(d) Failure by the Company to observe or perform any of its
other covenants, conditions, payments or agreements under this Agreement for
a period of 30 days after written notice, specifying such failure and
requesting that it be remedied, is given to the Company by the Issuer or the
Trustee;
(e) The Company shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
assignee, sequestrator, trustee, liquidator or similar official of the
Company or of all or a substantial part of its property, (ii) admit in
writing its inability, or be generally unable, to pay its debts as such debts
become due, (iii) make a general assignment for the benefit of its creditors,
(iv) commence a voluntary case under the Federal Bankruptcy Code (as now or
hereafter in effect), (v) file a petition seeking to take advantage of any
other federal or state law relating to bankruptcy, insolvency,
reorganization, arrangement, winding-up or composition or adjustment of
debts, (vi) fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, any petition filed against the Company in an
involuntary case under said Federal Bankruptcy Code, or (vii) take any
corporate action for the purpose of effecting any of the foregoing;
(f) A proceeding or case shall be commenced, without the
application or consent of the Company, in any court of competent
jurisdiction, seeking (i) the liquidation, reorganization, arrangement,
dissolution, winding-up or composition or adjustment of debts of the Company,
(ii) the appointment of a trustee, receiver, custodian, assignee,
sequestrator, liquidator or similar official of the Company or of all or any
substantial part of its assets, or (iii) similar relief in respect of the
Company under any law relating to bankruptcy, insolvency, reorganization,
arrangement, winding-up or composition or adjustment of debts and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 90 days from the
commencement of such proceeding or case or the date of such order, judgment
or decree, or an order for relief against the Company shall be entered in an
involuntary case under said Federal Bankruptcy Code;
(g) If a Credit Facility is in effect, the Trustee shall have
received a written notice from the Credit Issuer of the occurrence and
continuance of an "Event of Default" (as defined in the Credit Agreement); or
(h) If a Credit Facility is in effect, the Trustee shall have
received a written notice from the Credit Issuer that amounts which may be
drawn upon under the Credit Facility with respect to interest (other than
interest corresponding to the principal amount of Bonds which have been
redeemed) will not be reinstated following any drawing for such interest.
Remedies on Default. Upon the occurrence of an Event of Default under this
Agreement, the Trustee, as assignee of the Issuer, but only if acceleration
of the principal amount of the Bonds has been declared pursuant to Section
6.2 of the Indenture, shall take any one or more of the following remedial
steps:
(a) By written notice declare all payments hereunder and under
the Note immediately due and payable, whereupon the same shall become
immediately due and payable without presentment, demand, protest or any other
notice whatsoever, all of which are hereby expressly waived by the Company.
(b) Take whatever other action at law or in equity may appear
necessary or desirable to collect the amounts payable pursuant hereto and
under the Note then due and thereafter to become due or to enforce the
performance and observance of any obligation, agreement or covenant of the
Company under this Agreement, including the making of any drawing under the
Credit Facility.
In the enforcement of the remedies provided in this Section 10.2,
the Issuer and the Trustee may treat all reasonable expenses of enforcement,
including, without limitation, legal, accounting and advertising fees and
expenses, as additional amounts payable by the Company then due and owing.
Section X.3. Application of Amounts Realized in Enforcement
Application of Amounts Realized in Enforcement of Remedies. Any amounts
collected pursuant to action taken under Section 10.2 shall be paid to the
Trustee and applied in accordance with Section 6.7 of the Indenture.
No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Issuer is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition
to every other remedy given under this Agreement or now or hereafter existing
at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon an Event of Default under this Agreement 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.
Agreement to Pay Attorneys' Fees and Expenses. Upon the occurrence of an s
Event of Default under this Agreement, if the Issuer or the Trustee employs
attorneys or incurs other expenses for the collection of amounts payable
hereunder or for the enforcement of the performance or observance of any
covenants or agreements on the part of the Company herein contained, whether
or not suit is commenced, the Company agrees that it will on demand therefor
pay to the Issuer or the Trustee or any combination thereof, as the case may
be, the reasonable fees of such attorneys and such other reasonable expenses
so incurred by the Issuer or the Trustee.
Issuer and Company to Give Notice of Default. The Issuer and the Company
severally covenant that they will, at the expense of the Company, promptly
give to the Trustee, the Tender Agent, the Remarketing Agent, the Paying
Agent and the Credit Issuer, and to each other, written notice of any Event
of Default under this Agreement of which they shall have actual knowledge or
written notice, but the Issuer shall not be liable for failing to give such
notice.
ARTICLE XIARTICLE XI
PREPAYMENTS; PURCHASE OF BONDS
Section XI.1. Optional Prepayments.
(a) The Company shall have, and is hereby granted, the option
to prepay the unpaid principal amount hereunder and under the Note in whole,
together with interest thereon to the date of redemption of the Bonds, at any
time by taking, or causing the Issuer to take, the actions required by the
Indenture for the redemption of all Bonds then outstanding, upon the
occurrence of any of the events set forth in Section 2.18(b) of the Indenture.
(b) The Company shall have, and is hereby granted, the option
to prepay all or any portion of the unpaid balance hereunder and under the
Note, together with interest thereon to the date of redemption of the Bonds,
at any time by taking, or causing the Issuer to take, the actions required by
the Indenture (i) to discharge the lien thereof through the redemption, or
provision for payment of redemption of all Bonds then outstanding or (ii) to
effect the redemption, or provision for payment or redemption, of less than
all Bonds then outstanding, pursuant to Section 2.18(a) of the Indenture.
(c) To make a prepayment pursuant to this Section 11.1, the
Company shall give written notice to the Issuer, the Trustee and the
Registrar which shall specify therein (i) the date of the intended
prepayment, which shall not be less than 45 days from the date any Bonds are
to be redeemed from such prepayment, and (ii) the principal amount to be
prepaid and the date or dates on which the prepayment is to occur. All such
prepayments shall be in the amount of the unpaid amount hereunder and under
the Note if made pursuant to Section 11.1(a) or in the amount of an
Authorized Denomination if made pursuant to Section 11.1(b) and the Company
shall furnish additional funds, if necessary, to make such prepayments in
such amounts. In addition, the Company shall make such additional payments
as shall be necessary to pay any redemption premium on the Bonds in
connection with such redemption.
Section XI.2. Mandatory Prepayment Upon a Determination of
Mandatory Prepayment Upon a Determination of Taxability. In the event of a
Determination of Taxability, the Company shall forthwith, and in any event
within 45 days of any such Determination of Taxability, pay the entire unpaid
principal balance hereunder and under the Note plus accrued interest thereon
to the date of payment, provided, that, if the Company delivers to the
Trustee the opinion of Bond Counsel described in Section 2.18(c) of the
Indenture, which opinion states that interest on the Bonds will not be
includable in the gross income of the owners thereof if less than all of the
Bonds are redeemed, then the Company shall prepay the Loan in the amount
necessary to redeem the amount of Bonds stated in such opinion.
The Company hereby agrees to give prompt written notice to the
Issuer and the Trustee of (a) the occurrence of an event that gives or may
give rise to a Determination of Taxability or (b) its receipt of any oral or
written advice from the Internal Revenue Service that an event giving rise to
a Determination of Taxability shall have occurred.
Optional Purchase of Bonds. Subject to the terms of the Indenture regarding
the use of Eligible Funds, the Company may at any time, and from time to
time, furnish moneys to the Tender Agent accompanied by a notice directing
such moneys to be applied to the purchase of Bonds delivered for purchase
pursuant to the terms thereof, which Bonds shall be delivered to the Trustee
for cancellation in accordance with Section 2.8 of the Indenture. The
Company shall deliver to the Remarketing Agent and the Credit Issuer a copy
of any such notice.
Relative Priorities. The obligations of the Company under Section 11.2 shall
be and remain superior to the rights, obligations and options of the Company
under Section 11.1.
Prepayment to Include Fees and Expenses. Any prepayment under this Article
shall also include any expenses of prepayment, as well as all expenses and
costs provided for herein.
Purchase of Bonds.n XI.6. Purchase of Bonds
(a) In consideration of the issuance of the Bonds by the
Issuer, but for the benefit of the Holders, the Company has agreed, and does
hereby covenant, to cause the necessary arrangements to be made and to be
thereafter continued whereby the Holders from time to time may deliver, or
may be required to deliver Bonds for purchase and whereby such Bonds shall be
so purchased. In furtherance of the foregoing covenant of the Company, the
Issuer, at the request of the Company, has set forth in the Bonds the terms
and conditions relating to the delivery of Bonds by the Holders thereof for
purchase, has set forth in the Indenture the duties and responsibilities of
the Tender Agent with respect to the purchase of Bonds, and of the
Remarketing Agent with respect to the remarketing of Bonds and has therein
provided for the appointment of the Tender Agent and Remarketing Agent. The
Company hereby authorizes and directs the Tender Agent and the Remarketing
Agent to purchase, offer, sell and deliver Bonds in accordance with the
provisions of the Indenture.
Without limiting the generality of the foregoing covenant of the
Company, and in consideration of the Issuer's having set forth in the Bonds
and the Indenture the aforesaid provisions, the Company covenants, for the
benefit of the Holders, to provide for arrangements to pay, or cause to be
paid, such amounts as shall be necessary to effect the payment of the
Purchase Price of Bonds delivered for purchase, all as more particularly
described in the Indenture.
(b) Notwithstanding the provisions of Section 11.6(a), the
obligations of the Company under Section 11.6(a) with respect to the purchase
of Bonds shall be terminated on the date the Bonds begin to bear interest at
the Fixed Rate in accordance with the Indenture.
(c) In furtherance of the obligations of the Company under
Section 11.6(a), the Company shall provide for the payment of its obligations
under such Section 11.6(a) by the delivery of the Original Credit Facility
simultaneously with the original delivery of the Bonds. In order to
implement such undertaking of the Company, the Issuer, at the direction of
the Company, has set forth in the Indenture the terms and conditions relating
to drawings under the Credit Facility to provide moneys for the purchase of
Bonds. The Company hereby authorizes and directs the Trustee to draw moneys
under the Credit Facility in accordance with the provisions of the Indenture
to the extent necessary to provide moneys payable under Section 2.7 of the
Indenture if and when due.
(d) The Issuer shall have no obligation or responsibility,
financial or otherwise, with respect to the purchase of Bonds or the making
or continuation of arrangements therefor other than as expressly set forth in
Section 11.6(a), except that the Issuer shall generally cooperate with the
Company, the Tender Agent and the Remarketing Agent as contemplated in
Section 2.7 of the Indenture.
ARTICLE XIIARTICLE XII
MISCELLANEOUS
Section XII.1. Amounts Remaining in Funds. Subject to the
provisions of Article V of the Indenture and as provided in Article IV of the
Indenture, it is agreed by the parties hereto that amounts remaining in the
Bond Fund, Initial Fund or Bond Purchase Fund upon expiration or earlier
termination of this Agreement, as provided in this Agreement, after payment
in full of the Bonds (or provision for payment thereof having been made in
accordance with the provisions of the Indenture) and all other amounts owing
under the Indenture, shall be paid to the Credit Issuer (if a Credit Facility
is in effect and there is any amount then owing by the Company to the Credit
Issuer) and otherwise shall belong to and be paid to the Company by the
Trustee.
No Implied Waiver. In the event any provision of this Agreement should be
breached by either party and thereafter 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 thereunder or hereunder.
Issuer Representative. Whenever under the provisions of this Agreement the
approval of the Issuer is required or the Issuer is required to take some
action at the request of the Company, such approval shall be made or such
action shall be taken by the Issuer Representative; and the Company and the
Trustee shall be authorized to rely on any such approval or action.
Company Representative. Whenever under the provisions of this Agreement the
approval of the Company is required or the Company is required to take some
action at the request of the Issuer, such approval shall be made or such
action shall be taken by the Company Representative; and the Issuer, the
Tender Agent, the Remarketing Agent, the Paying Agent and the Trustee shall
be authorized to rely on any such approval or action.
Notices. Notice under this Agreement shall be given in accordance with
Section 9.4 of the Indenture.
Section XII.6. Issuer, Governing Body, Members, Commissioners,
Directors, Officers, Agents, Attorneys and Employees of Issuer and Governing
Issuer, Governing Body, Members, Commissioners, Directors, Officers, Agents,
Attorneys and Employees of Issuer and Governing Body Not Liable. To the
extent permitted by law, no recourse shall be had for the enforcement of any
obligation, promise or agreement of the Issuer contained herein or in the
other Bond Documents to which the Issuer is a party or for any claim based
hereon or thereon or otherwise in respect hereof or thereof against the
Issuer, the Governing Body, any member, commissioner, director, officer,
agent, attorney or employee, as such, in his/her individual capacity, past,
present or future, of the Issuer, the Governing Body, or of any successor
entity, either directly or through the Issuer, the Governing Body or any
successor entity, whether by virtue of any constitutional provision, statute
or rule of law, or by the enforcement of any assessment or penalty or
otherwise. No personal liability whatsoever shall attach to, or be incurred
by, any member, commissioner, director, officer, agent, attorney or employee,
as such, in his/her individual capacity, past, present or future, of the
Issuer, the Governing Body, or of any successor entity, either directly or
through the Issuer, the Governing Body or any successor entity, under or by
reason of any of the obligations, promises or agreements entered into between
the Issuer and the Company, whether herein contained or to be implied
herefrom as being supplemental hereto; and all personal liability of that
character against every such member, commissioner, director, officer, agent,
attorney or employee is, by the execution of this Agreement and as a
condition of, and as part of the consideration for, the execution of this
Agreement, expressly waived and released.
Notwithstanding any other provision of this Agreement, the Issuer
shall not be liable to the Company or the Trustee or any other person for any
failure of the Issuer to take action under this Agreement unless the Issuer
(a) is requested in writing by an appropriate person to take such action, (b)
is assured of payment of, or reimbursement for, any reasonable expenses in
such action, and (c) is afforded, under the existing circumstances, a
reasonable period to take such action. In acting under this Agreement, or in
refraining from acting under this Agreement, the Issuer may conclusively rely
on the advice of its counsel.
Section XII.7. No Liability of Issuer; No Charge Against
No Liability of Issuer; No Charge Against Issuer's Credit. Any obligation of
the Issuer created by, arising out of, or entered into in contemplation of
this Agreement, including the Bonds, shall not impose a debt or pecuniary
liability upon the Issuer, the State or any political subdivision thereof or
constitute a charge upon the general credit or taxing powers of any of the
foregoing. Any such obligation shall be payable solely out of the revenues
and any other moneys derived hereunder and under the Indenture and the Credit
Facility, except (as provided in the Indenture and in this Agreement) to the
extent it shall be paid out of moneys attributable to the proceeds of the
Bonds or the income from the temporary investment thereof.
The principal of, premium, if any, and interest on the Bonds
shall be payable solely from the funds pledged for their payment in
accordance with the Indenture and from payments made pursuant to the Credit
Facility.
If Performance Date Not a Business Day. If the last date for performance of
any act or the exercising of any right, as provided in this Agreement, shall
not be a Business Day, such payment may be made or act performed or right
exercised on the next succeeding Business Day.
Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Issuer, the Company, and their respective successors and
assigns. No assignment of this Agreement by the Company shall relieve the
Company of its obligations hereunder.
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.
Amendments, Changes and Modifications. Subsequent to the issuance of the
Bonds and prior to payment of the Bonds, this Agreement may not be
effectively amended, changed, modified, altered or terminated except in
accordance with the Indenture.
Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which, taken together, shall be an original and all of
which shall constitute but one and the same instrument.
C-392210.02340.01188
-1-
Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State.
IN WITNESS WHEREOF, the Issuer and the Company have caused this
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.
LUZERNE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chairman
[SEAL]
ATTEST:
/s/ Xxxxxx X. Xxxxx
Secretary/Treasurer
XXXX, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Vice President
[SEAL]
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Assistant Secretary
A-1
EXHIBIT A
C-392210.02340.01188
A-1
DESCRIPTION OF THE PROJECT
Xxxx, Inc. (the "Company") will use the bond proceeds to (a) acquire and install
15 weaving machines with electronic jacquard heads, gantries and required
accessories and (b) a new warping machine to support the increased weaving
capacity for the Company's Chromatex plant located in West Hazleton,
Pennsylvania. This plant produces jacquard upholstery fabrics, and it contains
all of the yarn preparation equipment, looms, finishing equipment and
distribution facilities used by the Rossville/Chromatex business unit of Culp
for woven jacquard fabrics.
C-392210.02340.01188
B-1
EXHIBIT B
C-392210.02340.01188
B-1
$__________________ No. _____________
REQUISITION AND CERTIFICATE
______________, 19___
First-Citizens Bank & Trust Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Trust Department
Ladies and Gentlemen:
On behalf of Xxxx, Inc. (the "Company"), I hereby requisition from the funds
representing the proceeds of the sale of the Tax-Exempt Adjustable Mode
Industrial Development Revenue Bonds (Xxxx, Inc. Project) Series 1996, issued by
the Luzerne County Industrial Development Authority (the "Issuer"), and dated
December 1, 1996 (the "Bonds"), which funds are held by you in the Luzerne
County Industrial Development Authority (Xxxx, Inc. Project) Initial Fund in
accordance with the Indenture of Trust, dated as of December 1, 1996 (the
"Indenture"), from the Issuer to you the sum of $_________________ to be paid to
the person or persons indicated below:
(1) $__________________ for __________________________
__________________________________________________
__________________________________________________
payable to _________________________________, and
(2) $__________________ for __________________________
__________________________________________________
__________________________________________________
payable to ______________________________________.
I hereby certify that (a) the obligation to make such payment was incurred by
the Issuer or the Company in connection with the Acquisition (as defined in the
Agreement, of even date with the Indenture, between the Issuer and the Company,
hereinafter referred to as the "Agreement") of the Project (referred to in the
Agreement), is a proper charge against the Costs of the Project (as defined in
the Agreement), and has not been the basis for any prior requisition which has
been paid; (b) neither the Company nor, to the best of the Company's knowledge,
the Issuer has received written notice of any lien, right to lien or attachment
upon, or claim affecting the right of such payee to receive payment of, any of
the money payable under this requisition to any of the persons, firms or
corporations named herein, or if any notice of any such lien, attachment or
claim has been received such lien, attachment or claim has been released or
discharged or will be released or discharged upon payment of this requisition;
(c) this requisition contains no items representing payment on account of any
retained percentages which the Issuer or the Company is entitled to retain at
this date; (d) the payment of this requisition will not result in less than
substantially all (95%) or more) of the proceeds of the Bonds to be expended
under this requisition and under all prior requisitions having been used for the
acquisition and installation of real property or property of a character subject
to the allowance for depreciation under the Internal Revenue Code of 1986, as
amended; and (e) no "Event of Default" (as defined in the Agreement), or event
which after notice or lapse of time or both would constitute such an "Event of
Default" has occurred and not been waived.
The following paragraph is to be completed when any requisition and certificate
includes any item for payment for labor or to contractors, builders or
materialmen.
I hereby certify that insofar as the amount covered by the above requisition
includes payments to be made for labor or to contractors, builders or
materialmen, including materials or supplies, in connection with the Acquisition
of the Project, (i) all obligations to make such payment have been properly
incurred, (ii) any such labor was actually performed and any such materials or
supplies were actually furnished or installed in or about the Project and are a
proper charge against the Costs of the Project, and (iii) such materials or
supplies either are not subject to any lien or security interest or, if the same
are so subject, such lien or security interest will be released or discharged
upon payment of this requisition.
______________________________________
Company Representative
C-392210.02340.01188
C-1
EXHIBIT C
C-392210.02340.01188
C-1
AFTER THE ENDORSEMENT AS HEREON PROVIDED AND PLEDGE OF THIS NOTE, THIS NOTE MAY
NOT BE ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO AN
ASSIGNEE OR SUCCESSOR OF THE TRUSTEE IN ACCORDANCE WITH THE INDENTURE, BOTH
REFERRED TO HEREIN.
$3,500,000 December 4, 1996
PROMISSORY NOTE
FOR VALUE RECEIVED, Xxxx, Inc., a corporation duly formed and existing under the
laws of the State of North Carolina (the "Company"), by this promissory note
hereby promises to pay to the order of Luzerne County Industrial Development
Authority (the "Issuer") the principal sum of Three Million Five Hundred
Thousand Dollars ($3,500,000), together with interest on the unpaid principal
amount hereof, from the Issue Date (as defined in the Indenture referenced
below) until paid in full, at a rate per annum equal to the rate of interest
borne by the Bonds (as hereinafter defined), premium, if any, on the Bonds and
Purchase Price (as defined in the Indenture). All such payments of principal,
interest, premium and Purchase Price shall be made in funds which shall be
immediately available on the due date of such payments and in lawful money of
the United States of America at the principal corporate trust office of
First-Citizens Bank & Trust Company, Raleigh, North Carolina, or its successor
as trustee under the Indenture.
The principal amount, interest, premium, if any, and Purchase Price shall be
payable on the dates and in the amount, that principal of, interest on the
Bonds, premium, if any, and Purchase Price are payable, subject to prepayment as
hereinafter provided.
The Company shall receive a credit for the amounts due and payable hereunder to
the extent that payments are made by the Credit Issuer (as defined in the
Indenture) pursuant to drawings under the Credit Facility (as defined in the
Indenture).
This promissory note is the "Note" referred to in the Loan Agreement, dated as
of December 1, 1996 (the "Agreement") between the Company and the Issuer, the
terms, conditions and provisions of which are hereby incorporated by reference.
This Note and the payments required to be made hereunder are irrevocably
assigned, without recourse, representation or warranty, and pledged to
First-Citizens Bank & Trust Company under the Indenture of Trust, dated as of
December 1, 1996 (the "Indenture"), by and between the Issuer and First-Citizens
Bank & Trust Company, as Trustee, and such payments will be made directly to the
Trustee for the account of the Issuer pursuant to such assignment. Such
assignment is made as security for the payment of $3,500,000 in aggregate
principal amount of Tax-Exempt Adjustable Mode Industrial Development Revenue
Bonds (Xxxx, Inc. Project) Series 1996 (the "Bonds"), issued by the Issuer
pursuant to the Indenture. All the terms conditions and provisions of the
Indenture and the Bonds are hereby incorporated as a part of this Note.
The Company may at its option, and may under certain circumstances be required
to, prepay together with accrued interest, all or any part of the amount due on
this Note, as provided in the Agreement.
Presentation, demand, protest and notice of dishonor are hereby expressly waived
by the Company.
The Company hereby promises to pay reasonable costs of collection and reasonable
attorneys' fees in case of default on this Note.
This Note shall be governed by, and construed in accordance with, the laws of
the State of Pennsylvania.
XXXX, INC.
[SEAL] By:________________________________
Xxxxxxxx X. Xxxxx
Vice President
ATTEST:
___________________________
_________ Secretary
