EXHIBIT 10.11
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LOAN AGREEMENT
between
XXXXXX-XXXXX COUNTY PORT AUTHORITY
and
ENVIRONMENTAL PURIFICATION INDUSTRIES COMPANY
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$5,745,000
Xxxxxx-Xxxxx County Port Authority
Development Revenue Bonds
(Northwest Ohio Bond Fund)
Series 1989D
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Dated
as of
December 15, 1989
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Squire, Xxxxxxx & Xxxxxxx
Xxxx Counsel
INDEX
(This Index is not a part of the Series 1989D Agreement
but rather is for convenience of reference only.)
Page
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Preambles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1 Use of Defined Terms. . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.4 Captions and Headings . . . . . . . . . . . . . . . . . . . 9
ARTICLE II
REPRESENTATIONS
Section 2.1 Representations of the Issuer . . . . . . . . . . . . . . . 10
Section 2.2 Representations and Covenants of the
Contracting Party . . . . . . . . . . . . . . . . . . . . 10
Section 2.3 Actions under Section 144(a)(4) of the Code . . . . . . . . 14
ARTICLE III
COMPLETION OF THE SERIES 1989D PROJECT;
ISSUANCE OF THE SERIES 1989D BONDS
Section 3.1 Acquisition, Construction, Installation,
Equipping and Improvement . . . . . . . . . . . . . . . . 16
Section 3.2 Plans and Specifications. . . . . . . . . . . . . . . . . . 17
Section 3.3 Issuance of the Series 1989D Bonds;
Application of Proceeds . . . . . . . . . . . . . . . . . 17
Section 3.4 Disbursements from the Series 1989D
PF Account. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.5 Contracting Party Required to Pay Costs in Event
Series 1989D PF Account Insufficient. . . . . . . . . . . 20
Section 3.6 Completion Date . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.7 Investment of Fund Moneys . . . . . . . . . . . . . . . . . 21
Section 3.8 Rebate Fund . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
FINANCING PAYMENTS AND ADDITIONAL PAYMENTS
Section 4.1 Loan Repayment; Delivery of Notes . . . . . . . . . . . . . 23
Section 4.2 Additional Payments . . . . . . . . . . . . . . . . . . . . 24
Sertion 4.3 Place of Payments . . . . . . . . . . . . . . . . . . . . . 24
Section 4.4 Obligations Unconditional . . . . . . . . . . . . . . . . . 25
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Section 4.5 Assignment of Agreement and Revenues. . . . . . . . . . . . 25
Section 4.6 Application of Certain Moneys . . . . . . . . . . . . . . . 25
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1 Right of Inspection . . . . . . . . . . . . . . . . . . . . 26
Section 5.2 Lease or Grant of Use by Contracting Party. . . . . . . . . 26
Section 5.3 Contracting Party to Maintain its Existence;
Sales of Assets or Mergers. . . . . . . . . . . . . . . . 26
Section 5.4 Books and Records; Financial Statements . . . . . . . . . . 27
Section 5.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.6 Contracting Party Not to Adversely Affect
Exclusion from Gross Income of Interest on
Series 1989D Bonds. . . . . . . . . . . . . . . . . . . . 30
Section 5.7 Litigation Notice . . . . . . . . . . . . . . . . . . . . . 30
Section 5.8 Officers. . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.9 Removal of Series 1989D Project Facilities. . . . . . . . . 30
ARTICLE VI
PREPAYMENT OF FINANCING PAYMENTS
Section 6.1 Optional Prepayment . . . . . . . . . . . . . . . . . . . . 31
Section 6.2 Prepayment of Financing and Additional Payments . . . . . . 31
Section 6.3 Financing Payment Abatement . . . . . . . . . . . . . . . . 31
Section 6.4 Redemption of Bonds . . . . . . . . . . . . . . . . . . . . 32
Section 6.5 Extraordinary Optional Prepayment . . . . . . . . . . . . . 32
Section 6.6 Mandatory Redemption. . . . . . . . . . . . . . . . . . . . 34
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 35
Section 7.2 Remedies on Default . . . . . . . . . . . . . . . . . . . . 37
Section 7.3 No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . 38
Section 7.4 Agreement to Pay Attorneys' Fees and Expenses . . . . . . . 38
Section 7.5 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.6 Notices of Default. . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Term of Agreement . . . . . . . . . . . . . . . . . . . . . 39
Section 8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.3 Extent of Covenants of the Issuer; No Personal Liability. . 39
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Section 8.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.5 Amendments and Supplements. . . . . . . . . . . . . . . . . 40
Section 8.6 Execution Counterparts. . . . . . . . . . . . . . . . . . . 40
Section 8.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 40
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Exhibit A - SERIES 1989D PROJECT NOTE
Exhibit B - SERIES 1989D PROJECT FACILITIES
Exhibit C - SERIES 1989D PROJECT SITE
Exhibit D - FORM OF DISBURSEMENT REQUEST
Exhibit E - FINANCING PAYMENT
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LOAN AGREEMENT
THIS LOAN AGREEMENT made and entered into as of December 15, 1989, between
the XXXXXX-XXXXX COUNTY PORT AUTHORITY, a port authority and political
subdivision duly organized and validly existing under the laws of the State, and
ENVIRONMENTAL PURIFICATION INDUSTRIES COMPANY, a general partnership duly
organized and validly existing under the laws of the State, under the following
circumstances summarized in the following recitals (the capitalized terms not
defined in the recitals being used therein as defined in Article I hereof):
A. Pursuant to Section 13 of Article VIII of the Ohio Constitution and
the Act, the Issuer has determined to issue, sell and deliver its Series 1989D
Bonds and to loan the proceeds derived from the sale thereof to the Contracting
Party to assist in the financing of the Series 1989D Project to be undertaken by
the Contracting Party.
B. The Contracting Party and the Issuer each have full right and lawful
authority to enter into this Series 1989D Agreement and to perform and observe
the provisions hereof on their respective parts to be performed and observed.
NOW THEREFORE, in consideration of the premises and the mutual
representations and agreements hereinafter contained, the Issuer and the
Contracting Party agree as follows (provided that any obligation of the Issuer
created by or arising out of this Series 1989D Agreement shall never constitute
a general debt of the Issuer or give rise to any pecuniary liability of the
Issuer but shall be payable solely out of Pledged Revenues):
(Balance of page intentionally left blank.)
ARTICLE I
DEFINITIONS
Section 1.1. USE OF DEFINED TERMS. In addition to the words and terms
defined elsewhere in this Series 1989D Agreement or by reference to another
document, the words and terms set forth in Section 1.2 hereof shall have the
meanings set forth therein unless the context or use clearly indicates another
meaning or intent. Such definitions shall be equally applicable to both the
singular and plural forms of any of the words and terms defined therein.
Section 1.2. DEFINITIONS. As used herein:
"Act" means Sections 4582.01 through 4582.20, Ohio Revised Code, as enacted
and amended pursuant to Section 13 of Article VIII of the Ohio Constitution.
"Additional Series 1989D Bonds" means the Additional Series 1989D Bonds
issued on a parity with the Series 1989D Bonds.
"Additional Series 1989D Notes" means any non-negotiable promissory note or
notes, in addition to the Series 1989D Note, delivered by the Contracting Party
to the Trustee in connection with the issuance of Additional Series 1989D Bonds,
as provided herein.
"Additional Payments" means the amounts required to be paid by the
Contracting Party pursuant to the provisions of Section 4.2 hereof.
"Authenticating Agent" means the Authenticating Agent as defined in the
Indenture.
"Authorized Contracting Party Representative" means the person at the time
designated to act on behalf of the Contracting Party by written certificate
furnished to the Issuer and the Trustee, containing the specimen signature of
that person and signed on behalf of the Contracting Party by its Chief Financial
Officer. That certificate may designate an alternate or alternates. In the
event that all persons so designated become unavailable or unable to act and the
Contracting Party fails to designate a replacement within ten days after such
unavailability or inability to act, the Trustee may appoint an interim
Authorized Contracting Party Representative until such time as the Contracting
Party designates that person.
"Basic Indenture" means the Trust Indenture dated as of August 15, 1988
between the Issuer and the Trustee as it may from time to time be supplemented
pursuant to the paragraphs of Section 8.02 of the Basic Indenture exclusive of
paragraph (g) thereof.
"Bond Fund" means the Bond Fund created in the Basic Indenture.
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"Bond Legislation" means (a) when used with reference to the Series 1989D
Bonds, the resolution providing for their issuance and approving this Series
1989D Agreement, the Indenture and related matters; (b) when used with reference
to an issue of Additional Series 1989D Bonds, the resolution providing for the
issuance of the Series 1989D Bonds, to the extent applicable, and the
legislation providing for the issuance of the Additional Series 1989D Bonds and
approving any amendment to this Series 1989D Agreement, any Supplemental
Indenture and related matters; and (c) when used with reference to Bonds when
Additional Series 1989D Bonds are outstanding, the resolution providing for the
issuance of the Series 1989D Bonds and the legislation providing for the
issuance of the then outstanding and the then to be issued Additional Series
1989D Bonds; in each case as amended or supplemented from time to time.
"Bond Service Charges" means, for any period or payable at any time, the
principal of and interest and any premium due on the Bonds for that period or
payable at that time whether due at maturity or upon acceleration or redemption.
"Bonds" means the Series 1989D Bonds and any Additional Series 1989D Bonds.
"Bond Year" means the annual period relevant to the application of Section
148 to the Series 1989D Bonds.
"Capitalized Interest Payment" means the Capitalized Interest Payment, if
any, as defined in the Series 1989D Supplemental Indenture.
"Code" means the Internal Revenue Code of 1986, as amended, including, when
appropriate, the statutory predecessor of the Code, and all applicable
regulations (whether proposed, temporary or final) under that Code and the
statutory predecessor of the Code, and any official rulings and judicial
determinations under the foregoing applicable to the Bonds.
"Collateral Fund" means the Collateral Fund created in the Basic Indenture.
"Completion Date" means the date of completion of the Series 1989D Project
evidenced in accordance with the requirements of Section 3.6 hereof.
"Computation Date" means the last day of each Bond Year and the date on
which the final payment in full of all outstanding Bonds of each series is made
or such other date or dates elected by the Issuer as may be permitted under the
Code for computation of the Rebate Amount.
"Construction Period" means the period between the beginning of the
acquisition, construction, installation, equipping or improvement of the Series
1989D Project or the date on which the Series 1989D Bonds are delivered to the
Original Purchaser, whichever is earlier, and the Completion Date.
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"Contracting Party" means Environmental Purification Industries Company, a
general partnership duly organized and validly existing under the laws of the
State, and its lawful successors and assigns to the extent permitted by this
Series 1989D Agreement.
"Eligible Investments" means Eligible Investments as defined in the
Indenture.
"Event of Default" means any of the events described as an Event of Default
in Section 7.1 hereof.
"Excess Earnings" means as of each Computation Date an amount equal to the
sum of (i) plus (ii):
(i) is the excess of
(a) the aggregate amount earned from the date of issuance of the
Bonds on all nonpurpose investments in which gross proceeds of the Bonds are
invested (other than investments attributable to excess earnings described in
this clause (i)) including any gain or deducting any loss from disposition of
nonpurpose investments, over
(b) the amount which would have been earned if these nonpurpose
investments (other than amounts attributable to an excess described in this
clause (i) had been invested at a rate equal to the yield on the Bonds; and
(ii) is any income attributable to the excess described in this definition,
taking into account any gain or loss on the disposition of investments.
The foregoing sums shall be determined in accordance with Section 148(f) of the
Code. As used herein, the terms "gross proceeds", "nonpurpose investments"
and "yield" have the meanings assigned to them for purposes of Section 148 of
the Code.
"Financing Payment Date" means the first business day of each month
commencing the first business day of March, 1990, or any other date on which any
principal of or interest or any premium on the Notes shall be due and payable,
whether at maturity, upon acceleration, call for redemption or otherwise.
"Financing Payments" means the amounts required to be paid by the
Contracting Party in repayment of the Loan pursuant to the provisions of the
Notes and of Section 4.1 hereof and is composed of the Required Amount and the
Administrative Amount, as set forth in Exhibit E hereto.
"Force Majeure" means any of the causes, circumstances or events described
as constituting Force Majeure in Section 7.1 hereof.
"Holder" or "Holder of a Bond" means the Person in whose name a Bond is
registered on the Register.
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"Guarantor" means collectively Xxxxx XxxXxxxxx Holdings plc, a public
limited company, organized under the laws of England, Xxxxx Inc., a corporation
organized under the laws of the State of Michigan, and Meridian National
Corporation, a corporation organized under the laws of the State of Delaware.
"Guaranty" means collectively the Guaranty Agreements, each dated as of
even date herewith and between the Trustee and certain of the entities
comprising the Guarantor, with respect to the Series 1989D Bonds, as amended or
supplemented from time to time.
"Indenture" means the Trust Indenture, dated as of August 15, 1988,
between the Issuer and the Trustee, as amended or supplemented from time to
time.
"Interest Payment Date" means, as to the Series 1989D Bonds, each date set
forth as such in the form of Series 1989D attached as Exhibit B to the Series
1989D Supplemental Indenture, and as to Additional Series 1989D Bonds, each
date designated as an Interest Payment Date in the form of bond for which
provision is made in the applicable Supplemental Indenture or Bond Legislation.
"Interest Rate for Advances" means the rate of 12% percent per annum or the
rate per annum which is two percent plus that interest rate announced by the
Trustee in its lending capacity as a bank as its "Prime Rate" or its "Base
Rate," whichever is greater and lawfully chargeable, in whole or in part.
"Issuer" means the Xxxxxx-Xxxxx County Port Authority, a port authority and
political subdivision duly organized and validly existing under the laws of the
State.
"Legislative Authority" means the Board of Directors of the Issuer.
"Loan" means the loan by the Issuer to the Contracting Party of the
proceeds received from the sale of the Bonds.
"Notes" means the Series 1989D Note and any Additional Series 1989D Notes.
"Notice Address" means:
(a) As to the Issuer: Xxxxxx-Xxxxx County Port Authority
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Attention: President
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(b) As to the Contracting Environmental Purification Industries
Party: Company
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Chief Financial Officer
(c) As to the Trustee: Society Bank & Trust
Three XxxXxxx
Xxxxxx, Xxxx 00000
Attention: Corporate Trust Department
(d) As to the Guarantors: Meridian National Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Chairman
and
Xxxxx-XxxXxxxxx Holdings plc
Xxxxxxxxx Xxxxx, Xxxx Xxxx
Xxxxx, Xxxxxx
XX000XX Xxxxxx Xxxxxxx
Attention: Director
and
Xxxxx Inc.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
(e) As to the Original Xxxxxx & Xxxxxxxxx Financial, Inc.
Purchaser: 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000-0000
Attention: Vice President
or such additional or different address, notice of which is given under
Section 8.2 hereof.
"Opinion of Bond Counsel" means an opinion of Squire, Xxxxxxx & Xxxxxxx
or of other counsel nationally recognized as having an expertise in
connection with the exclusion of interest on obligations of states and local
governmental units from the gross income of holders thereof for federal
income tax purposes.
"Original Purchaser" means, as to the Series 1989D Bonds, the Person or
Persons identified as the purchaser or purchasers in the Purchase Agreement
and, as to Additional Series 1989D Bonds, the Person or Persons identified as
the purchaser or purchasers in the applicable Purchase Agreement.
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"Paying Agent" means the Paying Agent as defined in the Indenture.
"Person" or words importing persons mean firms, associations, partnerships
(including without limitation, general and limited partnerships), societies,
trusts, corporations, public or governmental bodies, other legal entities and
natural persons.
"Plans and Specifications" means the plans and specifications describing
the Series 1989D Project Facilities as now prepared and as they may be changed
as herein provided from time to time.
"Pledged Revenues" means (a) the Financing Payments, (b) all other
moneys received or to be received by the Issuer or the Trustee and intended
to be used for Bond Service Charges, including without limitation, moneys in
the Bond Fund and the Primary Reserve Fund, (c) any moneys and investments in
the Project Fund, and (d) all income and profit from the investment of the
foregoing moneys. The term "Pledged Revenues" does not include any moneys or
investments in the Rebate Fund.
"Primary Reserve Fund" means the Primary Reserve Fund created in the Basic
Indenture.
"Project Fund" means the Project Fund created in the Basic Indenture.
"Purchase Agreement" means as to the Series 1989D Bonds the Bond
Purchase Agreement among the Issuer, the Contracting Party, the Guarantor and
the Original Purchaser, and as to any Additional Series 1989D Bonds, the Bond
Purchase Agreement defined in the Bond Legislation providing for the issuance
of the Additional Series 1989D Bonds.
"Register" means the books kept and maintained for the registration and
transfer of Bonds pursuant to Section 3.06 of the Indenture.
"Registrar" means the Registrar as defined in the Indenture.
"Series 1989D Agreement" means this Loan Agreement as amended or
supplemented from time to time.
"Series 0000X Xxxx Xxxxxxx Deposit" means the amount required to be
deposited and maintained in the Series 1989D PRF Account by the Series 1989D
Supplemental Indenture.
"Series 1989D Bonds" means the $5,745,000 Development Revenue Bonds
(Northwest Ohio Bond Fund) Series 1989D of the Issuer, dated as of even date
herewith, issued by the Issuer pursuant to the Bond Legislation and the
Indenture.
"Series 1989D Capitaltzed Interest Subaccount" means the Capitalized
Interest Subaccount in the Series 1989D PF Account.
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"Series 1989D Collateral Account" means the Series 1989D Collateral
Account created in the Series 1989D Supplemental Indenture.
"Series 1989D Mortgage" means the Open-End Mortgage and Security
Agreement dated as of even date herewith, from the Contracting Party to the
Trustee, as amended or supplemented from time to time.
"Series 1989D Note" means the non-negotiable promissory note of the
Contracting Party, dated as of even date herewith, in the form attached
hereto as Exhibit A and in the principal amount of $5,745,000 evidencing the
obligation of the Contracting Party to make Financing Payments.
"Series 1989D PF Account" means the Series 1989D PF Account in the
Project Fund.
"Series 1989D PRF Account" means the Series 1989D PRF Account created by
the Series 1989D Supplemental Indenture in the Primary Reserve Fund.
"Series 1989D Proceeds Subaccount" means the Proceeds Subaccount in the
Series 1989D PF Account.
"Series 1989D Project" means, collectively, the Series 1989D Project
Site and the Series 1989D Project Facilities, together constituting "port
authority facilities" as defined in the Act.
"Series 1989D Project Costs" means the costs of the Series 1989D Project
specified in Section 3.4 hereof.
"Series 1989D Project Facilities" means the Contracting Party's
facilities described in Exhibit B hereto (and more particularly described in
the Plans and Specifications), together with any additions, modifications and
substitutions to those facilities.
"Series 1989D Project Purposes" means acquisition of furnishings and
equipment and the construction of a building to be used in the recycling of
paint sludge into a component used in the production of paint, or such use as
may result from a change in the Plans and Specifications authorized by Section
3.2 of this Series 1989D Agreement or which may otherwise be permitted by this
Series 1989D Agreement.
"Series 1989D Project Site" means the real estate described in Exhibit C
hereto, and any additions thereto or deletions therefrom.
"Series 1989D Supplemental Indenture" means the Ninth Supplemental Trust
Indenture dated as of even date herewith between the Issuer and the Trustee
and entered into in connection with the issuance of the Series 1989D Bonds.
"State" means the State of Ohio.
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"Trustee" means Society Bank & Trust (formerly known as Trustcorp Bank,
Ohio), a bank organized under the laws of the State, until a successor
Trustee shall have become such pursuant to the applicable provisions of the
Indenture, and thereafter "Trustee" shall mean the successor Trustee.
"Unassigned Issuer's Rights" means all of the rights of the Issuer to
receive Additional Payments under Section 4.2 hereof, to be held harmless and
indemnified under Section 5.5 hereof, to be reimbursed for attorney's fees
and expenses under Section 7.4 hereof, and to give or withhold consent to
amendments, changes, modifications, alterations and termination of this
Series 1989D Agreement under Section 8.5 hereof.
Section 1.3. INTERPRETATION. Any reference herein to the Issuer, to the
Legislative Authority or to any member or officer of either includes entities
or officials succeeding to their respective functions, duties or
responsibilities pursuant to or by operation of law or lawfully performing
their functions.
Any reference to a section or provision of the Constitution of the State
or the Act, or to a section, provision or chapter of the Ohio Revised Code or
to any statute of the United States of America, includes that section,
provision or chapter as amended, modified, revised, supplemented or
superseded from time to time; provided, that no amendment, modification,
revision, supplement or superseding section, provision or chapter shall be
applicable solely by reason of this provision, if it constitutes in any way
an impairment of the rights or obligations of the Issuer, the Holders, the
Trustee or the Contracting Party under this Series 1989D Agreement.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof,"
"hereby," "herein," "hereto," "hereunder" and similar terms refer to this
Series 1989D Agreement; and the term "hereafter" means after, and the term
"heretofore" means before, the date of delivery of the Series 1989D Bonds.
Words of any gender include the correlative words of the other genders,
unless the sense indicates otherwise.
Section 1.4. CAPTIONS AND HEADINGS. The captions and headings in this
Series 1989D Agreement are solely for convenience of reference and in no way
define, limit or describe the scope or intent of any Articles, Sections,
subsections, paragraphs, subparagraphs or clauses hereof.
(End of Article I)
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ARTICLE II
REPRESENTATIONS
Section 2.1. REPRESENTATIONS OF THE ISSUER. The Issuer represents that:
(a) it is duly organized and validly existing under the laws of the State;
(b) it has duly accomplished all conditions necessary to be accomplished by
it prior to the issuance and delivery of the Series 1989D Bonds and the
execution and delivery of this Series 1989D Agreement and the Indenture; (c)
it is not in violation of or in conflict with any provisions of the laws of
the State or of the United States of America applicable to the Issuer which
would impair its ability to carry out its obligations contained in this
Series 1989D Agreement or the Indenture; (d) it is legally empowered to enter
into and carry out the transactions contemplated by this Series 1989D
Agreement and the Indenture; (e) it has duly authorized the execution,
delivery and performance of this Series 1989D Agreement and the Indenture;
and (f) it will do all things in its power in order to maintain its existence
or assure the assumption of its obligations under this Series 1989D Agreement
and the Indenture by any successor public body.
Section 2.2. REPRESENTATIONS AND COVENANTS OF THE CONTRACTING PARTY.
The Contracting Party represents and covenants that:
(a) It is a general partnership duly organized and validly
existing under the laws of the State.
(b) It has full power and authority to execute, deliver and
perform this Series 1989D Agreement, the Series 1989D Mortgage and
the Series 1989D Note and to enter into and carry out the
transactions contemplated by those documents. That execution,
delivery and performance do not, and will not, violate any
provision of law applicable to the Contracting Party or the
Contracting Party's partnership agreement and do not, and will not,
conflict with or result in a default under any agreement or
instrument to which the Contracting Party is a party or by which it
is bound. This Series 1989D Agreement, the Series 1989D Mortgage
and the Series 1989D Note have, by proper action, been duly
authorized, executed and delivered by the Contracting Party and all
steps necessary to be taken by the Contracting Party have been
taken to constitute this Series 1989D Agreement, the Series 1989D
Mortgage and the Series 1989D Note valid and binding obligations of
the Contracting Party.
(c) The provision of financial assistance to be made
available to it under this Series 1989D Agreement and the
commitments therefor made by the Issuer have induced the
Contracting Party to locate within the jurisdiction of the Issuer
that business of the Contracting Party to be
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conducted by use of the Series 1989D Project and such business will
create additional jobs and employment opportunities within the
Issuer.
(d) It presently intends to use or operate the Series 1989D
Project in a manner consistent with the Series 1989D Project
Purposes until the date on which the Series 1989D Bonds and any
Additional Series 1989D Bonds have been fully paid and knows of no
reason why the Series 1989D Project will not be so operated. If, in
the future, there is a cessation of that operation, it will use its
best efforts to resume that operation or accomplish an alternate
use by the Contracting Party or others which will be consistent
with the Act and the Code.
(e) The Series 1989D Project will be completed in accordance
with the Plans and Specifications and the Series 1989D Project will
be a manufacturing facility as that term is defined in Section 144
of the Code and will be operated and maintained in such manner as
to conform in all material respects with all applicable zoning,
planning, building, environmental and other applicable governmental
regulations and as to be consistent with the Act.
(f) The Series 1989D Project will be located entirely within
the boundaries of the City of Toledo.
(g) The acquisition and construction of the Series 1989D
Project were not commenced (within the meaning of Section 144(a) of
the Code) prior to the adoption of the resolution of the Issuer on
August 31, 1989, with respect to the Series 1989D Project and no
obligation relating to the acquisition, construction or
installation of the Series 1989D Project was paid or incurred prior
to such date.
(h) At least 95% of the net proceeds of the Series 1989D
Bonds (as defined in Section 150 of the Code) will be used to
provide land or property of a character subject to the allowance
for depreciation under Section 167 of the Code, and the Contracting
Party will not request or authorize any disbursement pursuant to
Section 3.4 hereof, which, if paid, would result in less than 95%
of the net proceeds of the Series 1989D Bonds being so used. The
costs of issuance financed by the Series 1989D Bonds will not
exceed 2% of the proceeds of the Series 1989D Bonds, computed for
this purpose as the issue price of the bonds less accrued interest
(within the meaning of Section 147(g) of the Code), and the
Contracting Party will not request or authorize any disbursement
pursuant to Section 3.4 hereof or otherwise, which, if paid, would
result in more than 2%
-11-
of the proceeds of the Series 1989D Bonds being so used. None of
the proceeds of the Series 1989D Bonds will be used to provide
working capital.
(i) There have never been issued any bonds with respect to
"facilities," as defined in Section 144(a)(4)(B) of the Code, (i)
which are to be or have been used by the Contracting Party or any
other "principal user" of the Series 1989D Project or any "related
person" to either the Contracting Party or such other "principal
user," as those terms are used and defined in Sections 144(a)(2) and
144(a)(3) of the Code, respectively, and which are located within
the boundaries of the City of Toledo, and (ii) which bonds would
have to be taken into account in determining the aggregate face
amount of the Series 1989D Bonds as provided in Section
144(a)(4)(A)(ii) of the Code.
(j) For each "test-period beneficiary" (as defined in Section
144(a)(10)(D) of the Code) of the Series 1989D Project, the sum of
(i) the aggregate authorized face amount of the Series 1989D Bonds
allocated in accordance with Section 144(a)(10)(C) of the Code to
such beneficiary and (ii) the aggregate outstanding principal
amount of any other tax-emempt obligations described in Section
144(a)(10)(B)(ii) of the Code, wherever and whenever issued,
allocated to such beneficiary does not exceed $40,000,000 at any
time during the period beginning on the later of the date the
Series 1989D Project is placed in service or the date of issuance
of the Series 1989D Bonds.
(k) In accordance with Section 147(b) of the Code, the
weighted average maturity of the Series 1989D bonds does not exceed
120% of the weighted average reasonably expected economic life of
the facilities being financed by the Series 1989D Bonds, determined
as of the later of the date the Series 1989D Bonds are issued or
the date the facilities are expected to be placed in service.
(l) None of the proceeds of the Series 1989D Bonds will be
used to provide any private or commercial golf course, country
club, massage parlor, tennis club, skating facility (including
roller skating, skateboard and ice skating), racquet sports
facility (including handball or racquetball court), hot tub
facility, suntan facility, racetrack airplane, skybox or other
private luxury box, or health club facility; any facility primarily
used for gambling; or any store the principal business of which is
the sale of alcoholic beverages for consumption off premises.
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(m) None of the proceeds of the Series 1989D Bonds will be
used to provide facilities for retail food and beverage services
(except grocery stores), automobile sales or service, or the
provision of recreation or entertainment.
(n) Less than 25% of the proceeds of the Series 1989D Bonds
will be used directly or indirectly to acquire land or any interest
therein, and no portion of any such land is to be used for farming
purposes.
(o) No portion of the proceeds of the Series 1989D Bonds will
be used to acquire existing property or any interest therein unless
such acquisition meets the rehabilitation requirements of Section
147(d) of the Code.
(p) The information furnished by the Contracting Party and
used by the Issuer in preparing the certification pursuant to
Section 148 of the Code and information statement pursuant to
Section 149(e) of the Code, both referred to in the Bond
Legislation, as well as the federal tax election referred to in the
Bond Legislation, is accurate and complete as of the date of the
issuance of the Series 1989D Bonds.
(q) In connection with any lease or grant by the Contracting
Party of the use of the Series 1989D Project, the Contracting Party
shall require that the lessee or user of any portion of the Series
1989D Project shall not (i) violate the covenant set forth in
subsection (j) above and (ii) use that portion of the Series 1989D
Project in any manner which would violate the covenants set forth
in subsections (l), (m) and (n) above.
(r) The Series 1989D Bonds are not being issued to finance
facilities which are within or part of "a single building, an
enclosed shopping mall, or a strip of offices, stores or warehouses
using substantial common facilities" (within the meaning of Section
144(a)(9) of the Code) which have heretofore been financed with
obligations issued and still outstanding under Section 144(a) of
the Code.
(s) After the expiration of any applicable temporary period
under Section 148(d)(3) of the Code, at no time during any bond
year will the aggregate amount of gross proceeds of the Series
1989D Bonds invested in higher yielding investments (within the
meaning of Section 148(b) of the Code) exceed 150 percent of the
debt service on the Series 1989D Bonds for such bond year and the
aggregate amount of gross proceeds of the Series 1989D Bonds
invested in higher yielding investments, if any, will be promptly
-13-
and appropriately reduced as the amount of outstanding Series 1989D
Bonds are reduced, provided however that the foregoing shall not
require the sale or disposition of any investments in higher yielding
investments if such sale or disposition would result in a loss which
exceeds the amount which would be paid to the United States pursuant
to Section 5.09 of the Basic Indenture (but for such sale or
disposition) at the time of such sale or disposition if a payment
under Section 5.09 of the Basic Indenture were due at such time.
At no time will any funds constituting gross proceeds of the
Series 1989D Bonds be used in a manner as to constitute a
prohibited payment under the applicable Regulations pertaining to,
or in any other fashion as would constitute failure of compliance
with, Section 148 of the Code.
The terms "bond year," "gross proceeds," "higher yielding
investments," "yield," and "debt service" have the meanings
assigned to them for purposes of Section 148 of the Code.
(t) The Series 1989D Bonds are not "federally guaranteed"
within the meaning of Section 149(b) of the Code.
Section 2.3. ACTIONS UNDER SECTION 144(a)(4) OF THE CODE. The
Issuer is issuing the Series 1989D Bonds pursuant to an election
made by it, at the Contracting Party's request, under Section
144(a)(4) of the Code. In connection with that election, the
Contracting Party represents and covenants that:
(a) The sum of (i) the principal amount of the Series 1989D
Bonds, (ii) the outstanding face amount of prior issues, if any,
described in Section 144(a)(2) of the Code and (iii) the amount of
capital expenditures with respect to "facilities" as defined in
Section 144(a)(4)(B) of the Code, other than those financed or to
be financed out of proceeds of the Series 1989D Bonds or any such
prior issues or those mentioned in Section 144(a)(4)(C) of the Code
("Capital Expenditures"), made during the three-year period
preceding the date of delivery of the Series 1989D Bonds to the
Original Purchaser (the "Issue Date"), does not exceed $10,000,000.
(b) During the three-year period following the Issue Date,
the Contracting Party does not intend to and will not make, cause
or permit to be made any Capital Expenditures in an amount which
would cause the interest on the Series 1989D Bonds to be included
in the gross income of the Holders for federal income tax purposes.
-14-
(c) It will maintain records, listing by month, day, year and
amount each Capital Expenditure made since the Issue Date through
and including the third anniversary of the date of delivery of and
payment for the Series 1989D Bonds and will furnish those records
to the Trustee upon request.
(d) In the event, on account of a lease, sublease, management
contract or other agreement relating to the Series 1989D Project,
or any portion thereof, permitted by the terms hereof and of the
Series 1989D Mortgage, any person other than the Contracting Party
becomes a "principal user" of the Series 1989D Project (as referred
to in Section 2.2(i) hereof), the Contracting Party shall promptly
advise the Trustee of the identity of such person and furnish to
the Trustee a copy of such lease, sublease, management contract or
other agreement. In connection with any such lease, sublease,
management contract or other agreement, the Contracting Party will
require by covenant that any lessee, sublessee, manager or user who
is a "principal user" of the Series 1989D Project and any "related
person" thereto also shall comply with the covenants set forth in
subsections (b) and (c) of this Section as if those covenants were
made herein by such lessee, sublessee, manager, user or "related
person" thereto.
(End of Article II)
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ARTICLE III
COMPLETION OF THE SERIES 1989D PROJECT;
ISSUANCE OF THE SERIES 1989D BONDS
Section 3.1. ACQUISITION, CONSTRUCTION, INSTALLATION, EQUIPPING AND
IMPROVEMENT. The Contracting Party (a) has acquired, or will acquire
concurrently with the delivery of this Series 1989D Agreement, the Series 1989D
Project Site and shall acquire, construct, install, equip and improve the
Series 1989D Project Facilities on the Series 1989D Project Site with all
reasonable dispatch and in accordance with the Plans and Specifications, (b)
shall pay when due all fees, costs and expenses incurred in connection with
that acquisition, construction, installation, equipping and improvement from
funds made available therefor in accordance with this Series 1989D Agreement or
otherwise, and (c) shall ask, demand, xxx for, xxxx, recover and receive all
those sums of money, debts and other demands whatsoever which may be due, owing
and payable under the terms of any contract, order, receipt, writing and
instruction in connection with the acquisition, construction, installation,
equipment and improvement of the Series 1989D Project, and shall use its best
efforts to enforce the provisions of any contract, agreement, obligation, bond
or other performance security with respect thereto. It is understood that the
Series 1989D Project is that of the Contracting Party and any contracts made by
the Contracting Party with respect thereto, whether acquisition contracts,
construction contracts or otherwise, or any work to be done by the Contracting
Party on the Series 1989D Project are made or done by the Contracting Party in
its own behalf and not as agent or contractor for the Issuer and each such
contract shall so state.
The Contracting Party expressly acknowledges and agrees that all wages
paid to laborers and mechanics employed in connection with the construction,
improvement and installation of the Series 1989D Project shall be paid at not
less than the prevailing rates of wages for laborers and mechanics for each
class of work called for by the Series 1989D Project, which wages shall be
determined in accordance with the requirements of Chapter 4115, Ohio Revised
Code, for determination of prevailing wage rates, provided that should the
Contracting Party undertake, as part of the Series 1989D Project, construction
to be performed by its regular bargaining unit employees who are covered under a
collective bargaining agreement which was in existence prior to the date of the
commitment instrument undertaking to issue the Series 1989D Bonds then, in that
event, the rate of pay provided under the collective bargaining agreement may be
paid to those employees. To the extent required by Sections 4582.12 and
4115.032, Ohio Revised Code, the Contracting Party shall comply, and shall
require compliance by all contractors or subcontractors working on the Series
1989D Project, with all applicable requirements of Sections 4115.03 through
4115.16, Ohio Revised Code, including, without limitation, (i) obtaining from
the Ohio Department of Industrial Relations its determination of the prevailing
rates of wages to be paid for all classes of work called for by the Series 1989D
Project, (ii) obtaining the designation of a Prevailing Wage Coordinator for the
Series 1989D Project pursuant to Section 4115.032, Ohio Revised Code and (iii)
ensuring that all contractors and sub-
- 16 -
contractors receive notification of changes in prevailing wage rates as required
under Section 4115.05, Ohio Revised Code. At such time as the Issuer requests,
the Contracting Party shall be required to provide the Issuer with evidence,
satisfactory to the Issuer, that there has been compliance with the foregoing
requirements.
Section 3.2. PLANS AND SPECIFICATIONS. The Plans and Specifications
have been filed with the Issuer. The Contracting Party may revise the Plans and
Specifications from time to time, provided that no revision shall be made which
would (i) change the Series 1989D Project Purposes, without the written consent
of the Issuer which consent shall not be unreasonably withheld, (ii) change the
Series 1989D Project Purposes to other than purposes permitted by the Act, and
(iii) increase the cost of the Series 1989D Project without evidence
satisfactory to the Issuer that moneys are available to meet such increased
costs.
Section 3.3. ISSUANCE OF THE SERIES 1989D BONDS; APPLICATION OF
PROCEEDS. To provide funds to make the Loan for purposes of assisting in paying
the Series 1989D Project Costs, the Issuer will issue, sell and deliver the
Series 1989D Bonds to the Original Purchaser. The Series 1989D Bonds will be
issued pursuant to the Indenture in the aggregate principal amount, will bear
interest, will mature and will be subject to redemption as set forth therein.
The Contracting Party hereby approves the terms and conditions of the Basic
Indenture, the Series 1989D Supplemental Indenture and the Series 1989D Bonds,
and of the terms and conditions under which the Series 1989D Bonds will be
issued, sold and delivered.
The proceeds from the sale of the Series 1989D Bonds shall be loaned
to the Contracting Party and paid over to the Trustee for the benefit of the
Contracting Party and the Holder of the Series 1989D Bonds and deposited as
follows: (a) a sum equal to any accrued interest paid by the Original Purchaser
shall be deposited in the Interest Payment Account in the Bond Fund, (b) the
amount of any Series 0000X Xxxx Xxxxxxx Deposit to be derived from said proceeds
shall be deposited in the Series 1989D PRF Account, (c) any Capitalized Interest
Payment shall be deposited in the Series 1989D Capitalized Interest Subaccount,
and (d) the balance of the proceeds shall be deposited in the Series 1989D
Proceeds Subaccount. Pending disbursement pursuant to Section 3.4 hereof, the
proceeds so deposited in the Series 1989D PF Account, together with any
investment earnings thereon, shall constitute a part of the Revenues assigned by
the Issuer to the payment of Bond Service Charges as provided in the Indenture.
At the request of the Contracting Party, and for the purposes and upon
fulfillment of the conditions specified in the Indenture, the Issuer may at its
sole discretion provide for the issuance, sale and delivery of Additional Series
1989D Bonds and loan the proceeds from the sale thereof to the Contracting
Party.
Section 3.4. DISBURSEMENTS FROM THE SERIES 1989D PF ACCOUNT. Subject
to the provisions below, disbursements from the Series 1989D PF Account shall be
made only to reimburse or pay the Contracting Party, or any
- 17 -
person designated by the Contracting Party, for the following Series 1989D
Project Costs:
(a) Costs incurred directly or indirectly for or in connection
with the acquisition, construction, installation, equipping or
improvement of the Series 1989D Project, including costs incurred in
respect of the Series 1989D Project for preliminary planning and
studies; architectural, legal, engineering, surveying, accounting,
consulting, supervisory and other services; labor, services and
materials; and recording of documents and title work.
(b) Premiums attributable to any surety bonds and insurance
required to be taken out and maintained during the Construction Period
with respect to the Series 1989D Project Site and the Series 1989D
Project Facilities.
(c) Taxes, assessments and other governmental charges in respect
of the Series 1989D Project that may become due and payable during the
Construction Period.
(d) Costs incurred directly or indirectly in seeking to enforce
any remedy against any contractor or subcontractor in respect of any
actual or claimed default under any contract relating to the Series
1989D Project Facilities.
(e) Financial, legal, accounting, printing and engraving fees,
charges and expenses, and all other such fees, charges and expenses
incurred in connection with the authorization, sale, issuance and
delivery of the Series 1989D Bonds, including, without limitation, the
fees of any placement agents for the Series 1989D Bonds and the fees
and expenses of the Trustee and any paying agent properly incurred
under the Indenture that may become due and payable during the
Construction Period.
(f) Any other costs, expenses, fees and charges properly
chargeable to the cost of the acquisition, construction, installation,
equipping or improvement of the Series 1989D Project.
(g) Payment of interest on the Series 1989D Bonds and the costs
of an Acceptable Letter of Credit, as defined in the Basic Indenture,
during the Construction Period.
Any disbursements from the Series 1989D PF Account for the payment of
Series 1989D Project Costs shall be made by the Trustee only upon the written
order of the Authorized Contracting Party Representative which shall set forth
for each item of personal property costing in excess of $5,000 the serial number
for that item or certify that such item has no serial or other identifying
number or symbol.
- 18 -
No disbursements shall be made from the Series 1989D PF Account for
the payment of Series 1989D Project Costs for the acquisition of the furnishings
and equipment and the construction of the building included in the Series 1989D
Project Facilities until the Contracting Party has delivered the following, in
form and substance satisfactory to the Issuer (which determination shall be
within the sole discretion of the Issuer and which the Contracting Party agrees
shall be conclusive and binding on the Contracting Party): (i) copies of the
contracts for the construction of the building included in the Series 1989D
Project Facilities; (ii) evidence that building permits and all other approvals
required by law to construct and acquire the Series 1989D Project Facilities
have been obtained or applications therefor satisfactory to the Issuer have been
made; (iii) in the event that bids for the construction of the building
included in the Series 1989D Project Facilities exceed $650,000, a deposit into
the Series 1989D PF Account from moneys other than proceeds of the Series 1989D
Bonds of the amount by which those bids exceed $650,000; provided that no more
than $100,000 of the amount so deposited shall be provided from funds of the
general partners of the Contracting Party or the Guarantors required to be
provided pursuant to the partnership agreement between the general partners of
the Contracting Party and the Guaranty and any such deposit in excess of
$100,000 shall not reduce or otherwise diminish the amounts required to be
provided by the general partners of the Contracting Party and the Guarantors
pursuant to that partnership agreement and the Guaranty; (iv) a certificate of
builder's risk insurance coverage and a certificate of workers' compensation
insurance coverage as required by the Mortgage; and (v) (a) an endorsement to
the Loan Policy of Title Insurance issued on the Closing Date insuring the
rights under the Deed of Easement dated February 13, 1990 and recorded February
14, 1990 in Xxxxx County, Ohio, as Deed No. 90- -B09, or (b) other evidence
that sanitary sewer service, storm drainage and rights to ingress, egress,
parking and maneuvering of vehicles necessary for the operation of the Series
1989D Project have been provided.
Each such written order shall be in substantially the form of the
disbursement request attached hereto as Exhibit D and shall be consecutively
numbered and accompanied by invoices or other appropriate documentation
supporting the payments or reimbursements requested. Any disbursement for any
item not described in, or the cost for which item is other than as described in,
the information statement filed by the Issuer in connection with the issuance
of the Series 1989D Bonds as required by Section 149(e) of the Code and referred
to in Section 2.2 hereof, shall be accompanied by evidence satisfactory to the
Trustee that the average reasonably expected economic life of the facilities
being financed by the Series 1989D Bonds is not less than 5/6ths of the average
maturity of the Series 1989D Bonds or, if such evidence is not presented with
the disbursement or at the request of the Trustee, by an Opinion of Bond Counsel
to the effect that such disbursement will not cause the interest on the Series
1989D Bonds to be included in the gross income of the Holders for federal income
tax purposes.
In case any contract provides for the retention by the Contracting Party of
a portion of the contract price, there shall be paid from the Series 1989D PF
Account only the net amount remaining after deduction of any such portion, and
only when that retained amount is due and payable, may it be paid from the
Series 1989D PF Account.
- 19 -
Any moneys in the Series 1989D PF Account remaining after the
Completion Date, and payment, or provision for payment, in full of the
appropriate Series 1989D Project Costs, at the direction of the Authorized
Contracting Party Representative, promptly shall be
(1) used to acquire, construct, install, equip and improve such
additional real or personal property in connection with the Series
1989D Project as is designated by the Authorized Contracting Party
Representative and the acquisition, construction, installation,
equipping and improvement of which will be permitted under the Act and
the Code, provided that any such use shall be accompanied by evidence
satisfactory to the Trustee that the average reasonably expected
economic life of such additional property, together with the other
property theretofore acquired with the proceeds of the Series 1989D
Bonds will not be less than 5/6ths of the average maturity of the
Series 1989D Bonds or, if such evidence is not presented with the
direction, an Opinion of Bond Counsel to the effect that the
acquisition of such additional property will not cause the interest on
the Series 1989D Bonds to be included in the gross income of the
Holders for federal income tax purposes;
(ii) used for the purchase of Series 1989D Bonds in the open
market for the purpose of cancellation at prices not exceeding the
full market value thereof plus accrued interest thereon to the date of
payment therefor;
(iii)paid into the Bond Fund to be applied to the redemption of
the Series 1989D Bonds in accordance with the Indenture; or
(iv) a combination of the foregoing as is provided in that
direction.
Section 3.5. CONTRACTING PARTY REQUIRED TO PAY COSTS IN EVENT SERIES
1989D PF ACCOUNT INSUFFICIENT. If moneys in the Series 1989D PF Account are not
sufficient to pay all Series 1989D Project Costs, the Contracting Party,
nonetheless, will complete the Series 1989D Project in accordance with the Plans
and Specifications and, unless additional Series 1989D Bonds shall have been
issued for that purpose, shall pay all such Additional Series 1989D Project
Costs from its own funds. The limitation of Section 147(g) of the Code
notwithstanding, the Contracting Party shall pay all costs of issuing the Series
1989D Bonds which cannot be paid from proceeds within the two percent limitation
of that Section. The Contracting Party shall not be entitled to any
reimbursement for any such additional Series 1989D Project Costs or payment of
issuance costs from the Issuers, the Trustee or any Holder; nor shall it be
entitled to any abatement, diminution or postponement of the Financing Payments.
- 20 -
Section 3.6. COMPLETION DATE. The Contracting Party shall notify the
Issuer and the Trustee of the Completion Date by a certificate signed by the
Authorized Contracting Party Representative stating
(a) the date on which the Series 1989D Project Facilities were
substantially completed,
(b) that all other facilities necessary in connection with the
Series 1989D Project have been acquired, constructed, installed,
equipped and improved,
(c) that the acquisition, construction, installation, equipping
and improvement of the Series 1989D Project Facilities and those other
facilities have been accomplished in such a manner as to conform in
all material respects with all applicable zoning, planning, building,
environmental and other similar governmental regulations,
(d) that except as provided in subsection (e) of this Section,
all costs of that acquisition, construction, installation, equipping
and improvement then or theretofore due and payable have been paid,
and
(e) the amounts which the Trustee shall retain in the Series
1989D PF Account for the payment of Series 1989D Project Costs not yet
due or for liabilities which the Contracting Party is contesting or
which otherwise should be retained and the reasons such amounts should
be retained.
That certificate may state that it is given without prejudice to any rights
against third parties which then exist or subsequently may come into being. The
Authorized Contracting Party Representative shall include with that certificate
a statement specifically describing all items of personal property comprising a
part of the Series 1989D Project Facilities. The certificate shall be delivered
as promptly as practicable after the occurrence of the events and conditions
referred to in subsections (a) through (d) of this Section.
Section 3.7. INVESTMENT OF FUND MONEYS. At the oral or written
request of the Authorized Contracting Party Representative, any moneys held as
part of the Series 1989D PRF Account or the Series 1989D PF Account shall be
invested or reinvested by the Trustee in Eligible Investments.
The Issuer and the Contracting Party each hereby covenants that it
will restrict that investment and reinvestment and the use of the proceeds of
the Series 1989D Bonds in such manner and to such extent, if any, as may be
necessary, after taking into account reasonable expectations at the time of
delivery of and payment for the Series 1989D Bonds or subsequent intentional
acts, so that the Series 1989D Bonds will not constitute arbitrage bonds under
Section 148 of the Code.
- 21 -
The Contracting Party shall provide the Issuer with, and the Issuer
may base its certifications as authorized by the Bond Legislation on, a
certificate of an appropriate officer, employee or agent of or consultant to the
Contracting Party for inclusion in the transcript of proceedings for The Series
1989D Bonds, setting forth the reasonable expectations of the Contracting Party
on the date of delivery of and payment for the Series 1989D Bonds regarding the
amount and use of the proceeds of the Series 1989D Bonds and the facts,
estimates and circumstances on which those expectations are based.
Section 3.8. REBATE FUND. Within five days after the end of each Bond
Year and within five days after payment in full of all outstanding Bonds of each
series, the Contracting Party shall cause the calculation by an independent
entity satisfactory to the Issuer, or if requested by the Contracting Party, the
Issuer at the expense of the Contracting Party will cause the calculation, of
the amount of Excess Earnings as of the end of that Bond Year or the date of
such payment and shall notify the Trustee of that amount. If the amount then on
deposit in the Rebate Fund created under the Indenture is less than the amount
of Excess Earnings (computed by taking into account the amount or amounts, if
any, previously paid to the United States pursuant to Section 5.09 of the Basic
Indenture and this Section), the Contracting Party shall, within five days after
the date of the aforesaid calculation, pay to the Trustee for deposit in the
Rebate Fund an amount sufficient to cause the Rebate Fund to contain an amount
equal to the Excess Earnings. The obligation of the Contracting Party to make
such payments shall remain in effect and be binding upon the Contracting Party
notwithstanding the release and discharge of the Series 1989D Agreement or the
Indenture.
(End of Article III)
- 22 -
ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
FINANCING PAYMENTS AND ADDITIONAL PAYMENTS
Section 4.1. LOAN REPAYMENT; DELIVERY OF NOTES. Upon the terms and
conditions of this Series 1989D Agreement, the Issuer will make the Loan to the
Contracting Party. In consideration of and in repayment of the Loan, the
Contracting Party shall make, as Financing Payments, payments on or before each
Financing Payment Date in the amount shown for the then current year in Exhibit
E hereto. All such Financing Payments shall be paid to the Trustee in
accordance with the terms of the Series 1989D Note for the account of the
Issuer and shall be held and disbursed in accordance with the provisions of the
Indenture and this Series 1989D Agreement for application to the payment of Bond
Service Charges.
The Financing Payment required to be made by this Series 1989D
Agreement next following a transfer pursuant to paragraph (e) of Section 5.04 of
the Basic Indenture to the Bond Fund caused by failure of the Contracting Party
to pay in full its Financing Payments, shall be increased in an amount equal to
the amount so transferred pursuant to said paragraph (e) and such increased
amount when paid shall be deposited in the Funds from which transfer was made in
inverse order of the transfer and shall xxxxx any previously unpaid Financing
Payments to the extent of such increase.
The Contracting Party's obligations under the Notes and this Series
1989D Agreement shall be secured by the Series 1989D Mortgage. To secure the
Contracting Party's performance of its obligation under this Series 1989D
Agreement and the Series 1989D Note, the Contracting Party shall execute and
deliver to the Issuer and the Trustee, concurrently with the issuance and
delivery of the Series 1989D Bonds, the Series 1989D Note and the Series 1989D
Mortgage.
In connection with the issuance of any Additional Series 1989D Bonds,
the Contracting Party shall execute and deliver to the Trustee one or more
Additional Series 1989D Notes in a form substantially similar to the form of the
Series 1989D Note. All such Additional Series 1989D Notes shall:
(a) provide for monthly payments of interest which will make
available amounts equal to the payments when due of interest on the
corresponding Additional Series 1989D Bonds;
(b) require payments of principal and redemption payments and
any premium which will make available amounts equal to the payments
when due of principal, prepayments and sinking fund payments and any
premium on the corresponding Additional Series 1989D Bonds; and
- 23 -
(c) contain by reference or otherwise optional and mandatory
redemption provisions and provisions in respect of the optional and
mandatory acceleration or prepayment of principal and any premium
corresponding with the redemption and acceleration provisions of the
corresponding Additional Series 1989D Bonds.
Upon payment in full of all of the Financing Payments required by this
Series 1989D Agreement or upon provision for the payment thereof having been
made in accordance with the provisions of this Series 1989D Agreement, (i) the
Notes requiring payment of the Financing Payments so paid or for the payment of
which provision has been made, shall be deemed fully paid, the obligations of
the Contracting Party thereunder shall be terminated, and any of those Notes
shall be surrendered by the Trustee to the Contracting Party, and shall be
cancelled by the Contracting Party, or (ii) in the event there is only one of
those Notes, an appropriate notation shall be endorsed thereon evidencing the
date and amount of the principal payment or prepayment equal to the Financing
Payments so paid, or with respect to which provision for payment has been made,
and that Note shall be surrendered by the Trustee to the Contracting Party for
cancellation if all the Financing Payments required thereby shall have been paid
(or provision made therefor) and cancelled as aforesaid. Unless the Contracting
Party is entitled to a credit under express terms of this Series 1989D Agreement
or the Notes, all payments on each of the Notes shall be in the full amount
required thereunder.
Except for such interests as may hereafter arise pursuant to Sections
5.07 and 5.09 of the Basic Indenture, the Contracting Party and the Issuer each
acknowledge that neither the Contracting Party nor the Issuer has any interest
in the Special Funds as defined in the Basic Indenture and any moneys deposited
therein shall be in the custody of and held by the Trustee in trust for the
benefit of the Holders.
Section 4.2. ADDITIONAL PAYMENTS. The Contracting Party shall pay to
the Issuer, as Additional Payments hereunder, any and all costs and expenses
incurred or to be paid by the Issuer in connection with the issuance and
delivery of the Series 1989D Bonds and Additional Series 1989D Bonds or
otherwise related to actions taken by the Issuer under this Series 1989D
Agreement or the Indenture.
The Contracting Party shall pay to the Trustee, the Registrar and any
Paying Agent or Authenticating Agent, their reasonable fees, charges and
expenses for acting as such under the Indenture.
Section 4.3. PLACE OF PAYMENTS. The Contracting Party shall make all
Financing Payments directly to the Trustee at its corporate trust office.
Additional Payments shall be made directly to the person or entity to whom or to
which they are due. The Issuer reserves the right from time to time to direct
that Financing Payments be made directly to the Issuer and from time to time to
revoke that direction.
- 24 -
Section 4.4. OBLIGATIONS UNCONDITIONAL. The obligations of the
Contracting Party to make Financing Payments and Additional Payments shall be
absolute and unconditional, and the Contracting Party shall make such payments
without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off,
recoupment or counterclaim which the Contracting Party may have or assert
against the Issuer, the Trustee or any other Person.
Section 4.5. ASSIGNMENT OF AGREEMENT AND REVENUES. To secure the
payment of Bond Service Charges, the Issuer shall assign to the Trustee, by
the Indenture, its rights under and interest in this Series 1989D Agreement
(except for the Unassigned Issuer's Rights) and the Pledged Revenues. The
Contracting Party hereby agrees and consents to those assignments.
Section 4.6. APPLICATION OF CERTAIN MONEYS. Any amount deposited in the
Bond Fund pursuant to Section 4.4, 5.2 or 5.3 of the Series 1989D Mortgage shall
be deposited in the Prepayment Account, as defined in the Basic Indenture, and
used as provided in the Basic Indenture.
(End of Article IV)
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ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1. RIGHT OF INSPECTION. Subject to reasonable security and
safety regulations and upon reasonable notice, the Issuer and the Trustee, and
their respective agents, shall have the right during normal business hours to
inspect the Series 1989D Project.
Section 5.2. LEASE OR GRANT OF USE BY CONTRACTING PARTY. Except as may
otherwise be provided in the Series 1989D Mortgage and subject to the
provisions of Section 2.2(q) and 2.3(d) hereof, the Contracting Party may
lease or grant the right to occupy and use the Series 1989D Project, in whole
or in part, to others, provided that:
(a) No such grant or lease shall relieve the Contracting
Party from its obligations under this Series 1989D Agreement, the
Series 1989D Mortgage or the Series 1989D Note, or the Guarantor
from its obligations under the Guaranty;
(b) In connection with any such grant or lease the
Contracting Party shall retain such rights and interests as will
permit it to comply with its obligations under this Series 1989D
Agreement, the Series 1989D Mortgage and the Series 1989D Note;
(c) No such grant or lease shall impair materially the
purposes of the Act to be accomplished by operation of the Series
1989D Project Facilities as herein provided.
Section 5.3. CONTRACTING PARTY TO MAINTAIN ITS EXISTENCE; SALES OF
ASSETS OR MERGERS. The Contracting Party shall do all things necessary to
preserve and keep in full force and effect its existence, rights and
franchises, except as otherwise permitted by this Section 5.3. In particular,
the Contracting Party shall not (a) sell, transfer or otherwise dispose of
all, or substantially all, of its assets; (b) consolidate with or merge into
any other entity; or (c) permit one or more other entities to consolidate
with or merge into it. The preceding restrictions shall not apply, however,
to a transaction if all of the following conditions are met, but such a
transaction shall not release the Contracting Party from its obligations
under this Series 1989D Agreement:
(i) the transferee or the surviving or resulting entity has a
net worth, determined in accordance with generally accepted
accounting principles consistently applied, equal to or greater
than the net worth of the Contracting Party immediately prior to
such consolidation, merger, sale, transfer or disposition;
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(ii) the transferee or the surviving or resulting entity, if
other than the Contracting Party, by proper written instrument
satisfactory to the Issuer and the Trustee, irrevocably and
unconditionally assumes the obligation to perform and observe the
agreements and obligations of the Contracting Party under this
Series 1989D Agreement;
(iii) the Contracting Party shall have delivered an Opinion
of Bond Counsel to the Issuer and the Trustee that the proposed
sale, transfer or disposition hereunder will not adversely affect
the exclusion from gross income for federal income tax purposes of
interest on the Series 1989D Bonds; and
(iv) the Guarantor reaffirms its obligations imposed by the
Guaranty.
Section 5.4. BOOKS AND RECORDS; FINANCIAL STATEMENTS. Commencing with
the fiscal year of the Contracting Party which ends next following the deliver
of this Series 1989D Agreement and at the end of each fiscal year of the
Contracting Party thereafter, the Contracting Party shall have an annual audit
made by its regular independent certified public accountants and keep true and
proper books of records and accounts in which full and correct entries are made
of all its business transactions and shall reflect in its financial statements
adequate accruals and appropriations to reserves, all in accordance with
generally accepted accounting principles. The Contracting Party shall deliver
to the Trustee and the Issuer copies of the following:
(a) within 120 days after the end of each fiscal year of the
Contracting Party, a balance street of the Contracting Party as at
the end of such year and statements of income and retained earnings
of the Contracting Party for such year, setting forth in
comparative form the respective corresponding figures as at the end
of or for the previous fiscal year, all in reasonable detail and
accompanied by an opinion thereon of the regular independent public
accountants selected by the Contracting Party, stating that those
balance sheets and financial statements have been prepared in
accordance with generally accepted accounting principles
consistently applied and that the audit by such accountants in
connection with those balance sheets and financial statements has
been made in accordance with generally accepted auditing standards;
(b) promptly upon receipt thereof, copies of all reports
submitted to the Contracting Party by independent public
accountants in connection with any annual, interim or special audit
of the records of the Contracting Party; and
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(c) as soon as available, copies of all financial
statements, reports, notices and proxy statements sent by the
Contracting Party to its partners and of all regular and periodic
reports.
Section 5.5. INDEMNIFICATION. (a) The Contracting Party releases the
Issuer from, agrees that the Issuer shall not be liable for, and indemnifies
the Issuer against, all liabilities, claims, costs and expenses imposed upon,
incurred or asserted against the Issuer on account of: (i) any loss or damage
to property or injury to or death of or loss by any person that may be
occasioned by any cause whatsoever pertaining to the construction,
maintenance, operation and use of the Series 1989D Project; (ii) any breach
or default on the part of the Contracting Party in the performance of any
covenant or agreement of the Contracting Party under this Series 1989D
Agreement, the Series 1989D Mortgage, the Series 1989D Note or any related
document, or arising from any act or failure to act by the Contracting Party,
or any of its agents, contractors, servants, employees or licensees; (iii)
the authorization, issuance, sale, trading, redemption or servicing of the
Bonds, and the provision of any information or certification furnished in
connection therewith concerning the Bonds, the Series 1989D Project or the
Contracting Party including, without limitation, any information furnished by
the Contracting Party for, and included in, or used as a basis for
preparation of, any certifications, information statements or reports
furnished by the Issuer and any other information or certification obtained
from the Contracting Party to assure the exclusion from gross income for
federal income tax purposes of interest on the Bonds; (iv) the Contracting
Party's failure to comply with any requirement of this Series 1989D Agreement
including the covenant in Section 5.6 hereof; (v) any failure of compliance
with the provisions of Sections 4582.12 4115.05 and any other applicable
provision of Chapter 4115, Ohio Revised Code; and (vi) any claim, action or
proceeding brought with respect to the matters set forth in (i), (ii), (iii),
(iv) and (v) above.
(b) The Contracting Party shall indemnify and hold the Issuer and the
Trustee harmless from and against all liabilities, and all reasonable costs
and expenses, including attorneys' fees, arising out of any federal, state or
local environmental laws, regulations or ordinances, incurred by the Issuer
or the Trustee as a result of the existence on, or release from, the Series
1989D Project of hazardous substances which in any way result from any act of
omission or commission of the Contracting Party or any of its agents,
employees, independent contractors, invitees, licensees, successors,
assignees or subtenants.
The Contracting Party further covenants and agrees with the Issuer and
the Trustee that neither the Contracting Party nor any of its agents, employees,
independent contractors, invitees, licensees, successors, assignees or
subtenants will store, release or dispose of, or permit the storage, release or
disposal of any hazardous substances on the Series 1989D Project at any time
from and after the effective date of this Series 1989D Agreement other than in
accordance with applicable federal, state and local law and regulation. In the
event that the Contracting Party receives a notification or clean up requirement
under 42 U.S.C. 9601 et seq. or comparable state or
-28-
local statute, ordinance or regulation, the Contracting Party shall promptly
notify the Issuer and the Trustee of such receipt. On receipt of any such
notification or clean up requirement of the Contracting Party shall either
proceed with appropriate diligence to comply with such notification or clean
up requirement or shall commence and continue negotiation concerning or
contest the liability of the Contracting Party with respect to such
notification or clean up requirement. The Contracting Party shall indemnify
and hold the Issuer and the Trustee harmless from and against any and all
liabilities and all reasonable costs and expenses, including reasonable
attorneys' fees, arising out of any federal, state or local environmental
laws, regulations or ordinances, incurred by the Issuer or the Trustee as a
result of any breach of this covenant.
(c) The Contracting Party agrees to indemnify the Trustee for and
to hold it harmless against all liabilities, claims, costs and expenses incurred
without negligence or bad faith on the part of the Trustee, on account of any
action taken or omitted to be taken by the Trustee in accordance with the terms
of this Series 1989D Agreement, the Bonds, the Series 1989D Mortgage, the Notes
or the Indenture or any action taken at the request of or with the consent of
the Contracting Party, including the costs and expenses of the Trustee in
defending itself against any such claim, action or proceeding brought in
connection with the exercise or performance of any of its powers or duties
under this Series 1989D Agreement, the Bonds, the Indenture, the Series 1989D
Mortgage, the Guaranty or the Notes.
(d) In case any claim or demand is at any time made, or action or
proceeding is brought, against the Issuer or the Trustee in respect of which
indemnity may be sought hereunder, the party seeking indemnity promptly shall
give notice of that action or proceeding to the Contracting Party, and the
Contracting Party upon receipt of that notice shall have the obligation and the
right to assume the defense of the action or proceeding; provided, that
failure of a party to give that notice shall not relieve the Contracting Party
from any of its obligations under this Section unless that failure prejudices
the defense of the action or proceeding by the Contracting Party. At its own
expense, an indemnified party may employ separate counsel and participate in the
defense. The party seeking indemnity agrees to fully cooperate with the
Contracting Party and lend the Contracting Party such assistance as the
Contracting Party shall reasonably request in defense of any claim, demand,
action or proceeding. The Contracting Party shall not be liable for any
settlement made without its consent.
(e) Nothing in this Series 1989D Agreement is meant to release,
extinguish or otherwise alter or interfere with any rights which the Issuer
and the Trustee may now or hereafter have against the Contracting Party for
any environmental liabilities as a result of the Contracting Party's former,
present or future ownership or occupancy of any real property in the vicinity
of the Series 1989D Project Site.
(f) The indemnification set forth above is intended to and shall
include the indemnification of all affected officials, directors, officers and
employees of the issuer and the Trustee, respectively. That indemnification
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is intended to and shall be enforceable by the Issuer and the Trustee,
respectively, to the full extent permitted by law.
Section 5.6. CONTRACTING PARTY NOT TO ADVERSELY AFFECT EXCLUSION FROM
GROSS INCOME OF INTEREST ON SERIES 1989D BONDS. The Contracting Party hereby
represents that it has taken and caused to be taken, and covenants that it will
take and cause to be taken, all actions that may be required of it, alone or in
conjunction with the Issuer, for the interest on the Series 1989D Bonds to be
and remain excluded from gross income for federal income tax purposes, and
represents that it has not taken or permitted to be taken on its behalf, and
covenants that it will not take or permit to be taken on its behalf, any actions
that would adversely affect such exclusion under the provisions of the Code.
Section 5.7. LITIGATION NOTICE. The Contracting Party shall give the
Trustee, the Issuer and the Original Purchaser prompt notice of any action,
suit or proceeding by it or against it at law or in equity, or before any
governmental instrumentality or agency, or of any of the same which may be
threatened, which, if adversely determined, would materially impair the right
or ability of the Contracting Party to carry on the business which is
contemplated in connection with the Series 1989D Project, or would materially
and adversely affect its business, operations, properties, assets or
condition.
Section 5.8. OFFICERS. The Contracting Party shall, insofar as
possible, barring death, disability or other circumstances beyond its
control, maintain during the term of this Series 1989D Agreement
substantially the same management as that controlling and directing the
business of the Contracting Party at the time of execution of this Series
1989D Agreement.
Section 5.9. REMOVAL OF SERIES 1989D PROJECT FACILITIES. Subject to
complying with the Series 1989D Mortgage, the Contracting Party may remove
any portion of the Series 1989D Project Facilities from the Series 1989D
Project Site to any other site in Xxxxx County, Ohio. With the prior written
consent of the Issuer, the Contracting Party may remove any portion of the
Series 1989D Project Facilities from the Series 1989D Project Site to any
other location. In the case of any moving of the Series 1989D Project
Facilities, the site of the new location shall become subject to a lien
acceptable to the Issuer and be included as part of the Series 1989D Project
Site hereunder, and the Contracting Party shall deliver such instruments as
may be necessary to accomplish the attachment of the lien to the new site.
(End of Article V)
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ARTICLE VI
PREPAYMENT OF FINANCING PAYMENTS
Section 6.1. OPTIONAL PREPAYMENT. Provided no Event of Default shall
have occurred and be subsisting, at any time and from time to time, the
Contracting Party may deliver moneys to the Trustee in addition to Financing
Payments or Additional Payments required to be made as prepayment of
Financing Payments and direct the Trustee as to the particular Financing
Payments which are prepaid. Such moneys shall be deposited in the Prepayment
Account created in the Basic Indenture and used as provided in the Basic
Indenture with respect to moneys in that account. If the moneys so delivered
are sufficient to purchase all of the Series 1989D Bonds or to call all of
the Series 1989D Bonds for optional redemption in accordance with the
applicable provisions of the Bond Legislation and the Series 1989D
Supplemental Indenture providing for optional redemption at the redemption
price stated in the Series 1989D Supplemental Indenture or to defease the
Series 1989D Bonds pursuant to Article IX of the Basic Indenture then this
Series 1989D Agreement shall be terminated. The determination to be made
under the preceding sentence shall be made as if all Series 1989D Bonds not
retired from Financing Payments or Net Proceeds applied pursuant to the
Series 1989D Mortgage were then outstanding whether or not such Series 1989D
Bonds are outstanding under the Basic Indenture. Delivery of moneys shall
not operate to xxxxx or postpone Financing Payments or Additional Payments
otherwise becoming due or to alter or suspend any other obligations of the
Contracting Party under this Series 1989D Agreement.
Section 6.2. PREPAYMENT OF FINANCING AND ADDITIONAL PAYMENTS. The
Contracting Party may at any time prepay all or any part of the Financing
Payments and Additional Payments and the Issuer agrees that it and the
Trustee shall accept such prepayments when tendered by the Contracting Party.
Such prepayments shall be credited against the Financing Payments and
Additional Payments in the order specified by the Authorized Contracting
Party Representative and approved by an officer of the Issuer. Such
prepayments shall not in any way alter or suspend the obligations of the
Contracting Party under this Series 1989D Agreement.
Section 6.3. FINANCING PAYMENT ABATEMENT. If at any time all of the
portions of the Financing Payments set forth in Exhibit E under the heading of
Required Amount shall have been paid or sufficient prepayments thereof have
been made that if applied to redemption of the Bonds in accordance with the
Indenture none of the Bonds would be outstanding and provision satisfactory to
the Issuer shall have been made for paying all Administrative Amounts and
Additional Payments due or to become due to the Issuer through the date on
which the last of the Bonds is to be retired or redeemed, and if the
Contracting Party is not at the time in default hereunder, the Contracting
Party shall be entitled to terminate this Series 1989D Agreement. The
determinations to be made under the preceding sentence shall be made as if all
Series 1989D Bonds not retired from Financing Payments or Net Proceeds applied
pursuant to the Series 1989D Mortgage were then outstanding whether or not
such Series 1989D Bonds are outstanding under the Basic Indenture. Except as
specifically
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provided in this Series 1989D Agreement to the contrary, no other action
pursuant to any provision of this Series 1989D Agreement shall xxxxx in any
way payment of Financing Payments.
Section 6.4. REDEMPTION OF BONDS. The Issuer has the exclusive right to
effect redemption of all or part of the then outstanding Bonds on any
available redemption date on which such redemption may be made under the
applicable provisions and to determine to redeem from prepayments of Required
Amounts hereunder bonds secured by the Indenture which are not Bonds.
Section 6.5. EXTRAORDINARY OPTIONAL PREPAYMENT. The Contracting Party
shall have, subject, to the conditions hereinafter imposed, the option to
terminate this Series 1989D Agreement upon the payment of an amount
(determined as provided in Section 6.1 hereof) which would permit the
redemption of the entire amount of unpaid principal balance of the Bonds
secured by the Basic Indenture in accordance with the applicable provisions
of the Indenture upon the occurrence of any of the following events:
(a) The Series 1989D Project shall have been damaged or
destroyed to such an extent that (1) it cannot reasonably be
expected to be restored, within a period of six months from the
commencement of restoration, to the condition thereof immediately
preceding such damage or destruction or (2) its normal use and
operation is reasonably expected to be prevented for a period of
six consecutive months or (3) the reasonably expected cost of
repair or restoration would exceed 80 percent of the appraised fair
market value of the Series 1989D Project immediately prior to such
damage or destruction.
(b) Title to, or the temporary use of, all or a significant
part of the Series 1989D Project shall have been taken under the
exercise of the power of eminent domain (1) to such extent that the
Series 1989D Project cannot reasonably be expected to be restored
within a period of six months from the commencement of restoration
to a condition of usefulness comparable to that existing prior to
the taking or (2) to such an extent that as a result of the taking,
normal use and operation of the Series 1989D Project is reasonably
expected to be prevented for a period of six consecutive months.
(c) As a result of any changes in the Constitution of the
State, the Constitution of the United States of America, or state
or federal Laws or as a result of legislative or administrative
action (whether state or federal) or by final decree, judgment or
order of any court or administrative body (whether state or
federal) entered after the contest thereof by the Issuer or the
Contracting Party in good faith, this Series 1989D Agreement shall
have become void or unenforceable or impossible of performance
-32-
in accordance with the intent and purpose of the parties as
expressed in this Series 1989D Agreement, or if unreasonable
burdens or excessive liabilities shall have been imposed with
respect to the Series 1989D Project or the operation thereof,
including, without limitation, federal, state or other ad valorem,
property, income or other taxes not being imposed on the date of
this Series 1989D Agreement other than ad valorem taxes presently
levied upon privately owned property used for the same general
purpose as the Series 1989D Project.
To exercise that option, the Contracting Party shall, within ninety days
following the event authorizing the exercise of that option, give notice to
the Issuer and to the Trustee specifying the date on which the Contracting
Party will deliver the funds equal to that required for that redemption,
which date shall be not more than ninety days from the date that notice is
mailed.
The amount payable by the Contracting Party in the event of its exercise
of the option granted in this Section shall be the sum of the following:
(i) An amount of money which, when added to the moneys and
investments held to the credit of the Subaccounts created in the
Bond Fund and the Series 1989D PRF Account for the Series 1989D
Bonds, would be sufficient pursuant to the provisions of the
Indenture to pay, at par, and discharge all then outstanding Series
1989D Bonds on the earliest applicable redemption date, that amount
to be paid to the Trustee, plus
(ii) An amount of money equal to the Administrative Amounts
and the Additional Payments relating to the Series 1989D Bonds
accrued and to accrue until such earliest applicable redemption
date, that amount or applicable portions thereof to be paid to the
Issuer, the Trustee or to the Persons to whom those Additional
Payments are or will be due.
The Contracting Party shall also have the option, in the event that
title to or the temporary use of a portion of the Series 1989D Project shall
be taken under the exercise of the power of eminent domain even if the taking
is not of such nature as to permit the exercise of the prepayment option
specified in subparagraph (b) above, to direct the prepayment of that part of
the Financing Payments as may be payable from the proceeds (after the payment
of costs and expenses incurred in the collection thereof) received in the
eminent domain proceeding, provided, that, the Contracting Party shall
furnish to the Issuer a certificate of an Engineer (as defined in the Series
1989D Mortgage) stating that (1) the property comprising the part of the
Series 1989D Project taken is not essential to continued operations of the
Series 1989D Project in the manner existing prior to that taking, (2) the
Series 1989D Project has been restored to a condition substantially
equivalent to that existing prior to the taking or (3) other improvements
have been acquired
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or made which are suitable for the continued operation of the Series 1989D
Project. Such prepayments shall be credited against the Financing Payments
in the order specified by the Authorized Contracting Party Representative and
approved by an officer of the Issuer. Such prepayments shall not in any way
alter or suspend the obligations of the Contracting Party under this Series
1989D Agreement.
Section 6.6. MANDATORY REDEMPTION. The Contracting Party shall deliver
to the Trustee the moneys needed to redeem the Series 1989D Bonds in
accordance with any mandatory redemption provisions relating thereto as may
be set forth in Section 5(e) of the Series 1989D Supplemental Indenture.
(End of Article VI)
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. EVENTS OF DEFAULT. Each of the following shall be an
Event of Default:
(a) The Contracting Party shall fail to pay in full any
Financing Payment on or prior to the date on which that Financing
Payment is due and payable and, in the case of any Financing
Payment required to be paid by the first paragraph of Section 4.1
of this Series 1989D Agreement, such Financing Payment remains
unpaid for 30 calendar days for any Financing Payment required to
be made in a month other than May and November and for five
calendar days for any Financing Payment required to be made in the
month of May and November;
(b) The Contracting Party shall fail to observe and perform
any other agreement, term or condition contained in this Series
1989D Agreement (other than with respect to Sections 5.9 and 6.6
hereof), and the continuation of such failure for a period of
thirty days after notice thereof shall have been given to the
Contracting Party by the Issuer or the Trustee, or for such longer
period as the Issuer and the Trustee may agree to in writing;
provided, that if the failure is other than the payment of money and
is of such nature that it can be corrected but not within the
applicable period, that failure shall not constitute an Event of
Default so long as the Contracting Party institutes curative action
within the applicable period and diligently pursues that action to
completion;
(c) The Contracting Party shall: (i) admit in writing its
inability to pay its debts generally as they become due; (ii) have
an order for relief entered in any case commenced by or against it
under the federal bankruptcy laws, as now or hereafter in effect;
(iii) commence a proceeding under any other federal or state
bankruptcy, insolvency, reorganization or similar law, or have such
a proceeding commenced against it and either have an order of
insolvency or reorganization entered against it or have the
proceeding remain undismissed and unstayed for ninety days; (iv)
make an assignment for the benefit of creditors; or (v) have a receiver
or trustee appointed for it or for the whole or any substantial
part of its property;
(d) The Contracting Party shall fail to make any payment due
on any indebtedness, or any condition in respect of any
indebtedness or other security of the
-35-
Contracting Party, or under any agreement securing or relating to
that indebtedness or other security shall exist, the effect of
which is to cause (or permit any holder of such indebtedness or
other security or a trustee to cause) such indebtedness or other
security, or a portion thereof, to become due prior to its stated
maturity or prior to its regularly scheduled dates of payments,
provided that the foregoing shall constitute an Event of Default
under this Series 1989D Agreement only if the accelerated
indebtedness exceeds in the aggregate an amount which is equal to
the greater of $25,000 or one percent of net sales of the
Contracting Party in its most recent fiscal year for which audited
financial statements are then available determined in accordance
with generally accepted accounting principles and that the
foregoing shall not apply to any default of indebtedness between
the Contracting Party and any parent or any extension of such
indebtedness;
(e) Any representation or warranty made by the Contracting
Party herein or any statement in any report, certificate, financial
statement or other instrument furnished in connection with this
Series 1989D Agreement or with the purchase of the Series 1989D
Bonds shall at any time prove to have been false or misleading in
any material respect when made or given;
(f) There shall occur an "Event of Default" as defined in
Section 6.2(a), (c) or (d) of the Series 1989D Mortgage or in
Section 2.8 of the Guaranty; and
(g) The Contracting Party shall remove any portion of the
Series 1989D Project Facilities from the Series 1989D Project Site
to a location other than a site in Xxxxx County, Ohio, without
having obtained the prior written consent of the Issuer as provided
in Section 5.9 hereof.
Notwithstanding the foregoing, if, by reason of Force Majeure, the
Contracting Party is unable to perform or observe any agreement, term or
condition hereof which would give rise to an Event of Default under
subsection (b) hereof, the Contracting Party shall not be deemed in default
during the continuance of such inability. However, the Contracting Party
shall promptly give notice to the Trustee and the Issuer of the existence of
an event of Force Majeure and shall use its best efforts to remove the
effects thereof; provided that the settlement of strikes or other industrial
disturbances shall be entirely within its discretion.
The term Force Majeure shall mean, without limitation, the following:
(i) acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any
kind of the government of the United
-36-
States of America or of the State or any of their departments,
agencies, political subdivisions or officials, or any civil or
military authority; insurrections; civil disturbances; riots;
epidemics; landslides; lightning; earthquakes; fires; hurricanes;
tornados; storms; droughts; floods; arrests; restraint of
government and people; explosions; breakage, malfunction or
accident to facilities, machinery, transmission pipes or canals;
partial or entire failure of utilities; shortages of labor,
materials, supplies or transportation; or
(ii) any cause, circumstance or event not reasonably within
the control of the Contracting Party.
The declaration of an Event of Default under subsection (c) above, and
the exercise of remedies upon any such declaration, shall be subject to any
applicable limitations of federal bankruptcy law affecting or precluding that
declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Section 7.2. REMEDIES ON DEFAULT. Whenever an Event of Default shall
have happened and be subsisting, any one or more of the following remedial
steps may be taken:
(a) The Trustee may and, at the request of the Issuer in the
case of an Event of Default described in Section 7.1(g) hereof,
shall declare all Financing Payments to be immediately due and
payable, whereupon the same shall become immediately due and
payable;
(b) The Trustee may refuse to honor requests and orders from
the Contracting Party for the disbursement of funds from the Series
1989D PF Account pursuant to Section 3.4 hereof;
(c) The Trustee may exercise any or all or any combination of
the remedies specified in the Series 1989D Mortgage and in the
Series 1989D Supplemental Indenture;
(d) The Issuer or the Trustee may have access to, inspect,
examine and make copies of the books, records, accounts and
financial data of the Contracting Party pertaining to the Series
1989D Project; or
(e) The Issuer or the Trustee may pursue all remedies now or
hereafter existing at law or in equity to collect all amounts then
due and thereafter to become due under this Series 1989D Agreement,
the Series 1989D Mortgage or the Notes or to enforce the
performance and observance of any other obligation or agreement of
the Contracting Party under those instruments.
-37-
Notwithstanding the foregoing, the Issuer shall not be obligated to take any
step which in its opinion will or might cause it to expend time or money or
otherwise incur liability unless and until a satisfactory indemnity bond has
been furnished to the Issuer at no cost or expense to the Issuer. Any
amounts collected as Financing Payments or applicable to Financing Payments
and any other amounts collected pursuant to action taken under this Section
shall be deposited and applied in accordance with the provisions of the
Indenture.
Section 7.3. NO REMEDY EXCLUSIVE. No remedy conferred upon or reserved
to the Issuer or the Trustee by this Series 1989D Agreement is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy
given under this Series 1989D Agreement, the Series 1989D Mortgage or the
Series 1989D Note, or now or hereafter existing at law, in equity or by
statute. No delay or omission to exercise any right or power accruing upon
any default shall impair that 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. In order to entitle the issuer
or the Trustee to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice, other than any notice required by
law or for which express provision is made herein.
Section 7.4. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. If an Event
of Default should occur and the Issuer or the Trustee should incur expenses,
including attorneys' fees, in connection with the enforcement of this Series
1989D Agreement, the Series 1989D Mortgage or the Notes or the collection of
sums due thereunder, the Contracting Party shall reimburse the Issuer and the
Trustee, as applicable, for the reasonable expenses so incurred upon demand.
If any such expenses are not so reimbursed, the amount thereof, together with
interest thereon from the date of demand for payment at the Interest Rate for
Advances, to the extent permitted by law, shall constitute indebtedness
secured by the Series 1989D Mortgage, and in any action brought to collect
that indebtedness or to enforce the Series 1989D Mortgage, the Trustee or the
Issuer, as applicable, shall be entitled to seek the recovery of those
expenses in such action except as limited by law or by judicial order or
decision entered in such proceedings.
Section 7.5. NO WAIVER. No failure by the Issuer or the Trustee to
insist upon the strict performance by the Contracting Party of any provision
hereof shall constitute a waiver of their right to strict performance and no
express waiver shall be deemed to apply to any other existing or subsequent
right to remedy the failure by the Contracting Party to observe or comply
with any provision hereof.
Section 7.6. NOTICES OF DEFAULT. The Contracting Party shall notify the
Trustee immediately if it becomes aware of the occurrence of any Event of
Default hereunder or of any fact, condition or event which, with the giving
of notice or passage of time or both, would become an Event of Default. The
Trustee shall give written notice by registered or certified mail to the
Original Purchaser and the Issuer of an Event of Default within five days
after the Trustee has knowledge of an Event of Default.
(End of Article VII)
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ARTICLE VIII
MISCELLANEOUS
Section 8.1. TERM OF AGREEMENT. This Series 1989D Agreement shall be
and remain in full force and effect from the date of delivery of the Series
1989D Bonds to the Original Purchaser until such time as all sums payable by
the Contracting Party under this Series 1989D Agreement, the Series 1989D
Mortgage and the Notes shall have been paid, except for obligations of the
Contracting Party under Sections 3.8, 4.2 and 5.5 hereof, which shall survive
any termination of this Series 1989D Agreement.
Section 8.2. NOTICES. All notices, certificates, requests or other
communications hereunder shall be in writing and shall be deemed to be
sufficiently given when mailed by registered or certified mail, postage
prepaid, and addressed to the appropriate Notice Address. A duplicate copy
of each notice, certificate, request or other communication given hereunder
to the Issuer, the Contracting Party, or the Trustee shall also be given to
the others and to the Guarantor. The Contracting Party, the Issuer, the
Guarantor and the Trustee by notice given hereunder, may designate any
further or different addresses to which subsequent notices, certificates,
requests or other communications shall be sent. If, because of the
suspension of delivery of certified or registered mail or for any other
reason, notice, certificates or requests or other communications are unable
to be given by the required class of mail, any notice required to be mailed
by the provisions of this Series 1989D Agreement shall be given in such other
manner as in the judgment of the Trustee shall most effectively approximate
mailing thereof, and the giving of that notice in that manner for all
purposes of this Series 1989D Agreement shall be deemed to be in compliance
with the requirement for the mailing thereof. Except as otherwise provided
herein, the mailing of any notice shall be deemed complete upon deposit of
that notice in the mail and the giving of any notice by any other means of
delivery shall be deemed complete upon receipt of the notice by the delivery
service.
Section 8.3. EXTENT OF COVENANTS OF THE ISSUER; NO PERSONAL LIABILITY.
All covenants, obligations and agreements of the Issuer contained in this
Series 1989D Agreement or the Indenture shall be effective to the extent
authorized and permitted by applicable law. No such covenant, obligation or
agreement shall be deemed to be a covenant, obligation or agreement of any
present or future member, officer, agent or employee of the Issuer or the
Legislative Authority in other than his official capacity, and neither the
members of the Legislative Authority nor any official executing the Bonds
shall be liable personally on the Bonds or be subject to any personal
liabiLity or accountability by reason of the issuance thereof or by reason of
the covenants, obligations or agreements of the Issuer contained in this
Series 1989D Agreement or in the Indenture.
Section 8.4. BINDING EFFECT. This Series 1989D Agreement shall inure to
the benefit of and shall be binding in accordance with its terms upon the
Issuer, the Contracting Party and their respective permitted successors
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and assigns provided that this Series 1989D Agreement may not be assigned by
the Contracting Party (except in connection with a sale or transfer of assets
pursuant to Section 5.3 hereof) and may not be assigned by the Issuer except
to the Trustee pursuant to the Indenture or as otherwise may be necessary to
enforce or secure payment of Financing Payments. This Series 1989D Agreement
may be enforced only by the parties, their assignees and others who may, by
law, stand in their respective places.
Section 8.5. AMENDMENTS AND SUPPLEMENTS. Except as otherwise expressly
provided in this Series 1989D Agreement or the Indenture, subsequent to the
issuance of the Series 1989D Bonds and prior to all conditions provided for
in the Indenture for release of the Indenture having been met, this Series
1989D Agreement may not be effectively amended, changed, modified, altered or
terminated except in accordance with the provisions of Article XI of the
Indenture, as applicable.
Section 8.6. EXECUTION COUNTERPARTS. This Series 1989D Agreement may be
executed in any number of counterparts, each of which shall be regarded as an
original and all of which shall constitute but one and the same instrument.
Section 8.7. SEVERABILITY. If any provision of this Series 1989D
Agreement, or any covenant, obligation or agreement contained herein is
determined by a court to be invalid or unenforceable, that determination
shall not affect any other provision, covenant, obligation or agreement, each
of which shall be construed and enforced as if the invalid or unenforceable
portion were not contained herein. That invalidity or unenforceability shall
not affect any valid and enforceable application thereof, and each such
provision, covenant, obligation or agreement shall be deemed to be effective,
operative, made, entered into or taken in the manner and to the full extent
permitted by law.
Section 8.8. GOVERNING LAW. This Series 1989D Agreement shall be deemed
to be a contract made under the laws of the State and for all purposes shall
be governed by and construed in accordance with the laws of the State.
(End of Article VIII)
(Balance of page intentionally left blank.)
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IN WITNESS WHEREOF, the Issuer and the Contracting Party have
caused this Series 1989D Agreement to be duly executed in their respective
names, all as of the date hereinbefore written.
XXXXXX-XXXXX COUNTY PORT AUTHORITY
By: /s/
-------------------------------
President
By: /s/
-------------------------------
Assistant Secretary
ENVIRONMENTAL PURIFICATION INDUSTRIES
COMPANY
By National Purification, Inc.,
General Partner
/s/
-------------------------------
Vice President
and
By Xxxxx Purification, Inc.,
General Partner
/s/ Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx, Secretary
The legal form and substance of the
within instrument is hereby approved.
/s/
-------------------------------
Staff Counsel
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FISCAL OFFICER CERTIFICATE
The undersigned, fiscal officer of the Issuer, hereby certifies
that the moneys required to meet the obligations of the Issuer during the
year 1990 under the Series 1989D Agreement have been lawfully appropriated by
the Legislative Authority of the Issuer for such purposes and are in the
treasury of the Issuer or in the process of collection to the credit of an
appropriate fund, free from any previous encumbrances. This Certificate is
given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code.
/s/
--------------------------------------
Secretary of the Board of Directors of
the Xxxxxx-Xxxxx County Port Authority
Dated: February 14, 1990
--------------
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