LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
BY AND BETWEEN
CFC INTERNATIONAL, INC.
a Delaware corporation,
and
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
-----------------------
ILLINOIS FINANCE AUTHORITY
$2,000,000
VARIABLE RATE DEMAND
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2004
(CFC INTERNATIONAL, INC. PROJECT)
----------------
DATED AS OF JULY 1, 2004
Table of Contents
ARTICLE I DEFINITIONS.................................................1
Section 1.01 Definitions.........................................1
Section 1.02 Interpretation......................................6
Section 1.03 Other Definitional Provisions.......................7
ARTICLE II REIMBURSEMENT, FEES AND OTHER PAYMENTS; SECURITY............7
Section 2.01 Reimbursement and Other Payments....................7
Section 2.02 Security............................................10
Section 2.03 Pledged Bonds; Borrower's Series 2004 Bonds.........10
Section 2.04 Substitute Letter of Credit.........................11
Section 2.05 Late Payments.......................................11
Section 2.06 Computation of Interest and Fees....................12
ARTICLE III AGREEMENT OF THE BANK; CONDITIONS PRECEDENT TO ISSUANCE OF THE
LETTER OF CREDIT; DISBURSEMENT OF BOND PROCEEDS.............12
Section 3.01 Agreement of the Bank...............................12
Section 3.02 Conditions Precedent to Issuance of the
Letter of Credit....................................12
ARTICLE IV OBLIGATIONS ABSOLUTE........................................14
Section 4.01 Obligations of the Borrower.........................14
ARTICLE V REPRESENTATIONS AND WARRANTIES..............................14
Section 5.01 Representations, Covenants and Warranties of
the Borrower........................................14
Section 5.02 Survival............................................17
ARTICLE VI AFFIRMATIVE COVENANTS.......................................17
Section 6.01 Affirmative Covenants of the Borrower...............17
Section 6.02 Loan and Security Agreement Covenants...............17
Section 6.03 Conduct of Business.................................18
Section 6.04 Maintenance of Insurance............................18
Section 6.05 Visitation Rights...................................18
Section 6.06 Maintenance of Properties...........................18
Section 6.07 Additional Acts Concerning Security.................18
Section 6.08 Payment of Indebtedness.............................19
Section 6.09 Performance of Obligations..........................19
Section 6.10 Reports and Notices of Certain Events...............19
Section 6.11 Completion of Project...............................19
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ARTICLE VII NEGATIVE COVENANTS..........................................19
Section 7.01 Negative Covenants of the Borrower..................19
Section 7.02 Amendment to Agreements.............................19
Section 7.03 Conflicting Agreements..............................19
Section 7.04 Liens and Encumbrances..............................20
Section 7.05 Transactions with Subsidiaries and Affiliates.......20
Section 7.06 Arbitrage...........................................20
Section 7.07 Optional Redemption of Bonds........................20
Section 7.08 Purchase of Bonds, Mandatory Redemption.............20
Section 7.09 Conversion of the Bonds.............................20
ARTICLE VIII EVENTS OF DEFAULT...........................................20
Section 8.01 Events of Default...................................20
Section 8.02 Remedies............................................21
Section 8.03 No Waiver; Remedies Cumulative......................21
ARTICLE IX MISCELLANEOUS...............................................22
Section 9.01 Amendments..........................................22
Section 9.02 Addresses for Notices...............................22
Section 9.03 Right of Set-off....................................23
Section 9.04 Indemnification.....................................23
Section 9.05 Continuing Obligation...............................23
Section 9.06 Transfer of Letter of Credit........................24
Section 9.07 Liability of the Bank...............................24
Section 9.08 Costs, Expenses and Taxes...........................24
Section 9.09 Participation.......................................24
Section 9.10 Severability........................................25
Section 9.11 Governing Law; Jury Trial Waiver; Venue.............25
Section 9.12 Headings............................................25
Section 9.13 Counterparts........................................26
Section 9.14 Entire Agreement....................................26
Section 9.15 Terms of Other Agreements Not Superseded............26
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Exhibit A Premises - Legal Description
Exhibit B Prepayment Schedule
Exhibit C Amended and Restated Loan and Security Agreement
Annex A Form of Letter of Credit
Schedule 5.01(a) Jurisdictions of Qualification, Addresses and Change
of Name
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
THIS LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT, dated as of July 1,
2004, by and between CFC INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
WHEREAS, the Illinois Finance Authority (the "Issuer") has issued
$2,000,000 aggregate principal amount of its tax exempt Variable Rate Demand
Industrial Development Revenue Bonds, Series 2004 (CFC International, Inc.
Project) (the "Series 2004 Bonds"), pursuant to an Indenture of Trust of even
date herewith (as supplemented from time to time, the "Indenture"), from the
Issuer to LaSalle Bank National Association, as trustee (the "Trustee"), and the
Issuer loaned the proceeds from the sale of the Series 2004 Bonds to the
Borrower pursuant to a Loan Agreement of even date herewith (the "Loan
Agreement") by and between the Issuer and Borrower, in order to finance the
costs of acquiring a manufacturing facility, including land and improvements,
commonly known as 000 Xxx Xxx Xxxx, Xxxxxxx, Xxxxxxxx, to be used for the
manufacture of printed plastic film products, and to finance the construction of
improvements thereto (the "Project") and (2) pay costs of issuance of the Series
2004 Bonds; and
WHEREAS, pursuant to the Indenture, the Borrower have requested that the
Bank issue an irrevocable, transferable direct pay letter of credit as security
for the Series 2004 Bonds, in the amount of $2,023,014.00, naming as beneficiary
the Trustee, which letter of credit shall be in the form of Annex A hereto (such
letter of credit is herein called the "Letter of Credit", which term shall
include any substitute therefor or replacement thereof issued in accordance with
the Indenture).
NOW THEREFORE, in consideration of the premises and in order to induce the
Bank to issue the Letter of Credit the Borrower and the Bank hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All capitalized words and terms used but not
defined herein shall have the meanings assigned to such words and terms in the
Loan Agreement and the Indenture. In addition, as used in this Reimbursement
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and the plural forms of the terms
defined):
"A Drawing" means a drawing upon the Letter of Credit made with respect to
any payment of the portion of the Purchase Price corresponding to principal of
the Series 2004 Bonds.
"Affiliate" means any Person (i) which directly or indirectly controls, or
is controlled by, or is under common control with the Borrower or a Subsidiary;
(ii) which directly or indirectly beneficially owns or holds five percent (5%)
or more of any class of voting stock of the Borrower or any Subsidiary; or (iii)
five percent (5%) or more of the voting stock of which is directly or indirectly
beneficially owned or held by the Borrower or a Subsidiary.
"B Drawing" means a drawing upon the Letter of Credit made with respect to
principal of the Series 2004 Bonds, plus accrued interest, if any, thereon,
which is due because of the maturity, acceleration or redemption thereof.
"Bank" means LaSalle Bank National Association and its successors and
assigns.
"Bond Proceeds" means the original proceeds of the sale of the Series 2004
Bonds and investment earnings thereon held by the Trustee under the Indenture.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated August
25, 2004, by and among the Issuer, the Borrower and the Underwriter.
"Borrower" means CFC International, Inc., a Delaware corporation.
"Business Day" means any day which is not a Saturday, Sunday or legal
holiday or a day on which banking institutions in the City of Chicago, Illinois,
are authorized or required to close.
"C Drawing" means a drawing upon the Letter of Credit made with respect to
any payment of interest on the Series 2004 Bonds other than interest on Pledged
Bonds or accrued interest which is due because of the maturity, acceleration or
redemption of Series 2004 Bonds.
"CFC 1996 Bonds Reimbursement Agreement" means that certain Reimbursement
Agreement by and between the Borrower and the Bank dated as of June 1, 1996, as
heretofore or hereafter amended, restated, supplemented or modified.
"Capital Lease" means any lease of any tangible or intangible property
(whether real, personal or mixed), however denoted, which is required by GAAP to
be reflected as a liability on the face of the balance sheet of the lessee
thereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute thereto.
"Cost of Issuance" shall have the meaning assigned to that term in the
Indenture.
"Costs of the Project" means those costs and expenses which may be paid, or
for which the Borrower may be reimbursed from Bond Proceeds under the Loan
Agreement.
"D Drawing" means a drawing upon the Letter of Credit made with respect to
payment of the portion of the Purchase Price corresponding to interest on the
Series 2004 Bonds.
"Date of Issuance" means the date of issuance of the Letter of Credit.
"Event of Default" has the meaning assigned to that term in Section 8.01
hereof.
"GAAP" means generally accepted accounting principles in the United States
as in effect from time to time.
"Governmental Body" means the United States of America, the State of
Illinois and any political subdivision thereof, and any agency, department,
commission, board, bureau or instrumentality of any of them which exercises
jurisdiction over the Premises, construction thereon, the use of improvements
thereto or the availability of ingress or egress thereto or of gas, water,
electricity, sewage or other utility facilities therefor.
"Government Regulations" means any law, ordinance, order, rule or
regulation of a Governmental Body.
"Indebtedness" means, with respect to any Person, all obligations and
liabilities to any other Person (including without limitation, all debts, claims
and indebtedness) whether primary, secondary, direct, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable, however evidenced, created, incurred, acquired or owing and however
arising, whether under written or oral agreement, by operation of law, or
otherwise, except (i) rental installments not past due under leases which are
not Capital Leases and (ii) claims which if sustained will be discharged by
issuers of policies of insurance maintained by such Person. Indebtedness
includes, without limiting the generality of the foregoing: (i) obligations or
liabilities that are secured by any lien, claim, encumbrance or security
interest upon property even though such Person has not assumed or become liable
for the payment therefor; and (ii) obligations or liabilities created or arising
under any lease of real or personal property, or conditional sale or other title
retention agreement with respect to property used and/or acquired by such
Person, even though the rights and remedies of the lessor, seller and/or lender
thereunder are limited to repossession of such property.
"Indemnity Agreement" means the Environmental Indemnity Agreement of even
date from the Borrower in favor of the Bank covering the Project.
"Indenture" has the meaning assigned to that term in the first recital
paragraph hereof.
"Issuer" has the meaning assigned to that term in the first recital
paragraph hereof.
"Letter of Credit" has the meaning assigned to that term in the second
recital paragraph hereof.
"Letter of Credit Fee" has the meaning assigned to that term in Section
2.01(c) hereof.
"Lien" means, with respect to any asset, any mortgage, pledge, charge,
hypothecation, judgment lien or similar legal process, title retention lien or
other lien or security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Reimbursement Agreement, a Person shall be
deemed to own, subject to a Lien, any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement relating to such
asset.
"Loan and Security Agreement" shall mean that certain Amended and Restated
Loan and Security Agreement dated as of May 17, 2001 by and between the Borrower
and the Bank, as heretofore or hereafter amended, restated, modified or
supplemented, a copy of which (including all amendments thereto) is attached
hereto as Exhibit C, and all instruments, documents and agreements executed in
connection therewith.
"Loan Agreement" has the meaning assigned to that term in the first recital
paragraph hereof.
"Mortgage" means (i) that certain Mortgage, Security Agreement and Fixture
Filing and (ii) that certain Assignment of Leases and Rents, in each case dated
even herewith and executed by the Borrower in favor of the Bank covering the
Premises.
"Note" means that certain promissory note issued pursuant to the Loan
Agreement from the Borrower to the Issuer.
"Obligations" means any and all obligations of the Borrower to reimburse
the Bank for any drawings under the Letter of Credit, the fees relating to the
Letter of Credit and all other obligations of the Borrower to the Bank arising
under or in relation to this Reimbursement Agreement or the Letter of Credit.
"Other Agreements" means the Loan and Security Agreement, the Related
Mortgage, the CFC 1996 Bonds Reimbursement Agreement and all agreements,
instruments and documents hereafter executed by and/or on behalf of the Borrower
and delivered to the Bank from time to time in connection with the transactions
contemplated thereby.
"Participant" means any bank which enters into a participation agreement
with the Bank pursuant to Section 9.09 hereof.
"Permitted Encumbrances" means:
(a) The Liens granted by the Borrower to the Bank, including, without
limitation, pursuant to the Related Documents or any of the Other Agreements;
(b) Liens permitted under the Related Documents or the Other Agreements;
and
(c) Additional matters as to which the Bank gives its approval in writing.
"Person" means an individual, a corporation, an association, a joint stock
company, a business trust, a partnership, a limited liability company, a joint
venture, an unincorporated organization, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Pledged Bond Loan" shall have the meaning assigned to that term in Section
2.01(c) hereof.
"Pledged Bonds" means Bonds held by the Bank or the Trustee which were
purchased with moneys drawn under the Letter of Credit for which reimbursement
has not been received by the Bank during the period that such Bonds are so held.
"Premises" means the real estate described in Exhibit A to this
Reimbursement Agreement and all improvements now or hereafter located thereon.
"Prime Rate" means the rate per annum in effect from time to time as set by
the Bank and called its Prime Rate, which is not intended to be the Bank's
lowest or most favorable rate of interest at any one time. The effective date of
any change in the Prime Rate shall for purposes hereof be the date the Prime
Rate is changed by the Bank and the Bank shall not be obligated to give notice
of any such change.
"Project" shall have the meaning assigned to that term in the first recital
paragraph hereof.
"Project Fund" means the Acquisition and Construction Fund created under
Section 6.1 of the Indenture.
"Project Loan" means the loan of the Bond Proceeds from the Issuer to the
Borrower pursuant to the Loan Agreement and the Note to pay or reimburse the
Costs of the Project.
"Purchase Price" means the purchase price of Series 2004 Bonds tendered for
purchase pursuant to Section 4.1 or 4.2 of the Indenture.
"Reimbursement Agreement" means this Letter of Credit and Reimbursement
Agreement.
"Related Documents" means the Letter of Credit, the Series 2004 Bonds, the
Indenture, the Loan Agreement, the Note, the Bond Purchase Agreement, the Tax
Agreement, the Mortgage, the Indemnity Agreement, the Title Policy and any other
agreement or instrument now or hereafter entered into relating thereto and to
the transactions contemplated thereby and to which the Borrower is a party, or
which secures the obligations of the Borrower hereunder. "Related Mortgage"
means, collectively, (i) that certain Mortgage dated as of June 10, 1986
executed by the Borrower in favor of the Bank and recorded on June 11, 1986 as
Document No. 86236291 in the Office of the Recorder of Deeds of Xxxx County,
Illinois covering the Related Premises and (ii) that certain Assignment of Rents
and Leases dated as of June 10, 1986, executed by the Borrower in favor of the
Bank, and recorded on June 11, 1986 as Document No. 86236292 in the Recorder of
Deeds of Xxxx County, Illinois covering the Related Premises, in each case as
heretofore or hereafter amended, supplemented modified or restated from time to
time.
"Related Persons" means with respect to any person, the spouse, parents and
descendants (whether by birth or adoption) of such person and their respective
spouses, and the trustee of any trust of which the sole beneficiaries are one or
more of such person or his or her spouse, parent or descendants, or their
respective spouses.
"Related Premises" means the real property and improvements thereto located
at 000 X. Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx, and legally described in the
Related Mortgage.
"Remarketing Agent" means LaSalle Capital Markets, A Division of ABN AMRO
Financial Services, Inc., or any successor thereto.
"Series 2004 Bonds" has the meaning assigned to that term in the first
recital paragraph hereof.
"Stated Amount" means the face amount of the Letter of Credit being the
maximum amount that the Bank will be required to pay out pursuant to draws on
the Letter of Credit after all reinstatements.
"Subordinated Debt" means all Indebtedness of a Borrower and its
subsidiaries, if any for borrowed money which shall have been subordinated to
the prior payment in full of the principal of and premium, if any, and interest
on all Indebtedness of a Borrower and its Subsidiaries, if any, to the Bank by
the execution and delivery by the subordinated lender, prior to the creation of
such Indebtedness, of agreements of subordination in form and substance
sufficient to effect such subordination.
"Subsidiary" of any Person means a legal entity the equity interest in
which having ordinary voting power (other than equity interests having such
power only by reason of the happening of a contingency) to elect a majority of
the directors, managers or other governors of such legal entity are owned,
directly or indirectly, by such Person.
"Tax Agreement" means the Tax Exemption Certificate and Agreement dated the
date of issuance of the Bonds, by and among the Issuer, the Borrower and the
Trustee.
"Termination Date" means the earliest of the date on which the Letter of
Credit is no longer in effect pursuant to its terms.
"Title Policy" means the mortgagee title insurance policy to be issued by a
title insurance company, acceptable to the Bank, in favor of the Bank, covering
the Premises.
"Trustee" shall have the meaning assigned to that term in the first recital
paragraph hereof.
"Underwriter" shall mean LaSalle Capital Markets, A Division of ABN AMRO
Financial Services, Inc., or any successor thereto.
"Uniform Commercial Code" means the Uniform Commercial Code of the State of
Illinois as in effect from time to time.
"Unmatured Event of Default" means any event which, with lapse of time or
notice or lapse of time and notice, will constitute an Event of Default if it
continues uncured.
"Usage Interest" shall have the meaning set forth in Section 2.01(c)
hereof.
Section 1.02 Interpretation. For all purposes of this Reimbursement
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, this Agreement shall be interpreted in accordance with the
following provisions:
(i) All references in this Reimbursement Agreement to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture. The words
"herein," "hereof," "hereto," "hereby," and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
(ii) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular.
(iii) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP and all applicable Statements of the
Financial Accounting Standards Board ("FASB Statements") consistent with
those applied in the preparation of the financial statements required
hereunder, and all financial information submitted pursuant to this
Agreement shall be prepared in accordance with such principles and FASB
Statements.
(iv) Any references in this Reimbursement Agreement to an entity as a
corporation and such terms as "corporate action," "certificate of
incorporation," "corporate power," "corporate authority," "corporate
officers," "board of directors," "shareholders" and other terms specific to
a corporate entity shall be conformed as necessary so as to refer to a
limited liability company, if the entity to which reference is made is a
limited liability company. Accordingly, by way of example and not of
limitation, "certificate of incorporation" shall refer to an entity's
"articles of organization" as filed with and approved by the governmental
agency, office or bureau having jurisdiction; "board of directors" shall
refer to either the entity's "managers" or to its "members," whichever of
them is responsible for the management of the entity; "corporate officers"
shall refer to the entity's "managers"; and "bylaws" shall refer to the
entity's "operating agreement."
Section 1.03 Other Definitional Provisions. Whenever in this Reimbursement
Agreement reference is made to a written agreement or instrument, such reference
shall be deemed to mean such agreement or instrument as amended by any amendment
thereto.
ARTICLE II
REIMBURSEMENT, FEES AND OTHER PAYMENTS; SECURITY
Section 2.01 Reimbursement and Other Payments.
(a) Subject to the provisions of subsection (g) of this Section, the
Borrower hereby agrees to reimburse the Bank (i) on each date that any amount is
drawn and paid under the Letter of Credit pursuant to any A Drawing, B Drawing,
C Drawing or D Drawing a sum equal to such amount so drawn under the Letter of
Credit, but only after the Bank has paid the related drawing under the Letter of
Credit; (ii) on demand, any and all reasonable out-of-pocket charges and
expenses which the Bank may pay or incur relative to the Letter of Credit and
this Reimbursement Agreement; and (iii) on demand, any and all reasonable
expenses and fees incurred by the Bank in enforcing any rights under this
Reimbursement Agreement. The Bank acknowledges and agrees that the Bank's
payments on the Letter of Credit pursuant to any A Drawing, B Drawing, C Drawing
or D Drawing may only be made with its own funds.
(b) The Borrower agrees to deposit into its depository account maintained
with the Bank (the "Sinking Fund"), (i) not later than 10:00 a.m. (Chicago time)
on the Business Day of each Weekly Rate Interest Payment Date or Fixed Rate
Interest Payment Date, as applicable, a sum equal to the amount to be drawn upon
the Letter of Credit on such Weekly Rate Interest Payment Date or Fixed Rate
Interest Payment Date, as applicable, in respect of interest on the Series 2004
Bonds, as reimbursement to the Bank for the amount which the Bank is obligated
to reimburse the Bank pursuant to such drawing under the Letter of Credit, (ii)
not later than 10:00 a.m. (Chicago time) on the Business Day that is not less
than five (5) days prior to the date that any principal payment on the Series
2004 Bonds becomes due whether at maturity, by acceleration, notice of
prepayment, or otherwise, a sum equal to the amount to be drawn under the Letter
of Credit on such principal payment date, as reimbursement to the Bank for the
amount which the Bank is obligated to pay to reimburse the Bank in connection
with such drawing under the Letter of Credit and (iii) not later than 10:00 a.m.
(Chicago time) on each October 1, January 1, April 1 and July 1, commencing
October 1, 2004, a sum equal to $25,000.00, to be retained in the Sinking Fund
as reimbursement for the amounts to be paid on the Series 2004 Bonds at the
redemption thereof, as set forth on the Prepayment Schedule attached hereto as
Exhibit B (the "Prepayment Schedule"), such amounts to be applied to the
redemption of Series 2004 Bonds on the dates set forth on the Prepayment
Schedule. The Borrower hereby authorizes and directs the Bank to be reimbursed
from the Sinking Fund and any other funds and accounts available for such
purpose following any payment by the Bank under the Letter of Credit for the
amount due and payable to the Bank pursuant to Section 2.01(a). If the amount
deposited by the Borrower pursuant to subsection (i) is less than the amount
drawn upon the Letter of Credit on account of interest on a Weekly Rate Interest
Payment Date or Fixed Rate Interest Payment Date, as applicable, the Borrower
shall deposit the amount of such deficiency on such Weekly Rate Interest Payment
Date or Fixed Rate Interest Payment Date, as applicable. If the amount so
deposited by the Borrower exceeds the amount drawn upon the Letter of Credit on
account of interest on a Weekly Rate Interest Payment Date or Fixed Rate
Interest Payment Date, as applicable, as notified by the Bank to the Borrower,
the amount of such excess shall be retained in the Reimbursement Account and
credited against the amount required to be deposited by the Borrower pursuant to
clause (i) with respect to the next succeeding Weekly Rate Interest Payment Date
or Fixed Rate Interest Payment Date, as applicable. In no event shall the
failure of the Bank to notify the Borrower of a deficiency in the amount
deposited by the Borrower relieve the Borrower of liability therefor. Moneys in
the Sinking Fund shall not be used to satisfy the Bank's obligations under the
Letter of Credit.
(c) Except as otherwise provided herein, upon receipt of Pledged Bonds by
the Remarketing Agent and failure of the Borrower to reimburse the Bank for the
amount of any A Drawing or D Drawing with respect to such Pledged Bonds, the
Bank shall loan to the Borrower an amount equal to the outstanding principal
amount of the Pledged Bonds so delivered plus accrued interest, if any, due
thereon (the "Pledged Bond Loan"). The Bank shall not be obligated to make a
Pledged Bond Loan to the Borrower if on the date on which the Pledged Bond Loan
is to be made an Event of Default has occurred and is continuing. The Borrower
hereby agrees that the Bank shall apply the proceeds from the Pledged Bond Loan
to reimburse the Bank for the amount of any A Drawing or D Drawing paid by the
Bank. Any such reimbursed amount shall reduce the amount due under paragraph (a)
of this Section by such amount. The Borrower agrees to pay to the Bank interest
("Usage Interest") at the Default Rate for each day the Borrower has borrowed
money outstanding pursuant to this paragraph (c), calculated as provided in
Section 2.05. The principal amount of any Pledged Bond Loan made by the Bank
pursuant to this paragraph shall be repaid by the Borrower on the earlier of (i)
demand or (ii) the remarketing of the Pledged Bonds by the Remarketing Agent to
the extent of the proceeds of such remarketing. Usage Interest shall be payable
by the Borrower on the earlier of (y) the first Business Day of each month after
the making of the Pledged Bond Loan pursuant to this paragraph, or (z) the
repayment of the Pledged Bond Loan and the release of any Pledged Bonds from the
lien created by Section 2.03 hereof. The Borrower may pay to the Bank the
outstanding amount of any Pledged Bond Loan made hereunder, in whole or in part,
at any time, without premium or penalty.
(d) If (i) the Borrower shall pay or prepay to the Bank all or a portion of
the principal amount of the Pledged Bond Loan, together with all accrued and
unpaid Usage Interest in respect thereof, or (ii) the Remarketing Agent shall
arrange a remarketing of any or all of the Pledged Bonds and the proceeds of
such remarketing shall be paid to the Bank, and the Borrower shall pay to the
Bank all accrued and unpaid Usage Interest, the Bank agrees to release from the
lien of the pledge of Pledged Bonds in Section 2.03 hereof and to cause the
Remarketing Agent to deliver to or upon the order of the Borrower, in the event
of a payment or prepayment pursuant to clause (i) above, or to the purchaser(s)
of the Series 2004 Bonds, in the event of payments pursuant to clause (ii)
above, as appropriate, on the date of such payment, Pledged Bonds in a principal
amount equal to the amount of the principal payment or the principal amount of
the Pledged Bonds so remarketed and the Letter of Credit will be reinstated in
an amount equal to the portion of the Purchase Price corresponding to principal
plus the portion of the Purchase Price corresponding to interest (unless the
Letter of Credit has been previously reinstated with respect to such interest).
(e) The Trustee is authorized to make drawings under the Letter of Credit
in accordance with the terms thereof. The Borrower hereby directs the Bank to
make payments under the Letter of Credit in the manner therein provided. The
Borrower hereby irrevocably approves reductions and reinstatements of the Letter
of Credit as provided therein.
(f) The Borrower agrees to pay to the Bank, on the date of each draw under
the Letter of Credit, a draw administration fee in the amount of $200 plus the
Bank's out-of-pocket expenses, including a $30.00 wire transfer fee and $2.75
postage.
(g) The Borrower agrees to pay to the Bank a Letter of Credit fee (the
"Letter of Credit Fee") equal to one percent (1%) per annum of the Stated Amount
of the Letter of Credit (based upon a 30-day month and calculated as provided
below). The Letter of Credit Fee is payable in advance on the Date of Issuance
for the period beginning on the Date of Issuance and ending on August 26, 2005,
and is payable annually in advance on each August 26 thereafter, while the
Letter of Credit remains outstanding (calculated on each such day based upon the
face amount of the Letter of Credit on such day without regard to any reduction
which is subject to reinstatement whether or not such reinstatement actually
occurs). The Letter of Credit Fee shall be prorated for any partial month.
(h) If any change in any law or regulation (except changes in any law or
regulation which on the Date of Issuance have been approved by all persons,
bodies and agencies required to approve such changes but which do not take
effect until after the Date of Issuance) or in the interpretation thereof by any
court or administrative or governmental authority charged with the
administration thereof shall either (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against letters of credit issued
by, or on assets held by, or deposits in or for the account of the Bank or (ii)
impose on the Bank any other condition regarding this Reimbursement Agreement or
the Letter of Credit, and the result of any event referred to in clause (i) or
(ii) above shall be to increase the cost to the Bank of issuing or maintaining
the Letter of Credit (which increase in cost shall be the result of the Bank's
reasonable allocation of the aggregate of such cost increases resulting from
such events), then, upon demand by the Bank, the Borrower shall immediately pay
to the Bank, as appropriate, from time to time as specified by the Bank,
additional amounts which shall be sufficient to compensate the Bank for such
increased cost, together with interest on each such amount which interest shall
commence to accrue five (5) days after the date payment is demanded as hereafter
provided in this Section. A certificate executed by an officer of the Bank
knowledgeable in such matters as to the identity of such law or regulation or
source of such changed interpretation and the amount of such increased cost
incurred by the Bank as a result of any event described in clause (i) or (ii)
above, submitted by the Bank to the Borrower, shall constitute conclusive
evidence as to the amount thereof and the Bank's demand therefor.
(i) All payments required to be made by the Borrower to the Bank hereunder
shall be made in lawful currency of the United States and in immediately
available funds at the office of the Bank, the address for which is set forth in
Section 9.02 not later than 1:30 p.m. (Chicago time) on the date when due. Until
the Bank directs otherwise in writing as a result of an Event of Default
hereunder all payments which the Borrower is required to be made hereunder shall
be made by direct payment or by appropriate debits to the Sinking Fund Account
maintained by the Borrower with the Bank being hereby expressly authorized to
effect such debits for this purpose. Any payment due on a day which is not a
Business Day shall be due and payable on the next succeeding Business Day.
(j) The Borrower shall pay a transfer fee to the Bank as described in the
most recent published fee schedule provided by the Bank to the Borrower, which
transfer fee shall be paid on any date that the Letter of Credit is transferred
by the Trustee or any subsequent named beneficiary of the Letter of Credit to
another beneficiary.
Section 2.02 Security. In addition to the security provisions of Section
2.03 below, the Obligations are secured by (i) the Mortgage, (ii) the Related
Mortgage and (iii) the terms and provision of the Loan and Security Agreement.
Section 2.03 Pledged Bonds; Borrower's Series 2004 Bonds.
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(a) As security for the Obligations, the Borrower does hereby pledge,
assign, hypothecate, transfer and deliver to the Bank or to the Trustee as the
agent of the Bank (i) all the Borrower's right, title and interest in and to the
Pledged Bonds and (ii) the Borrower's right to receive such Pledged Bonds as the
same may from time to time be delivered to the Trustee by the registered owners
thereof. As security for the Obligations, the Borrower further grants to the
Bank a first lien on, and a first priority security interest in, the Borrower's
right, title and interest in and to the Pledged Bonds and the Borrower's right
to receive such Pledged Bonds, the interest thereon and all proceeds thereof.
For purposes of the foregoing, this Agreement shall be deemed a security
agreement under the Illinois Uniform Commercial Code. If the Bank, in its sole
discretion, deems it necessary, then the Borrower shall execute and deliver, and
if requested by the Bank, shall use its best efforts to cause the Trustee or, in
the event the Series 2004 Bonds are registered under a global book entry system,
the securities depository for the Series 2004 Bonds, as applicable, to execute
and deliver, such pledge agreements and financing statements (in form and
substance satisfactory to the Bank, and including such actions as may be
necessary to perfect a security interest in the Pledged Bonds if the Series 2004
Bonds are registered under a global book entry system) as the Bank may require
in order to accomplish the purposes of this paragraph (a). Prior to or
simultaneously with the remarketing of Pledged Bonds, the Borrower shall pay, or
cause the Trustee on behalf of the Borrower to pay, the amounts then outstanding
hereunder with respect to all drawings honored by the Bank under the Letter of
Credit, in payment of the purchase price of the Pledged Bonds, in the order in
which such drawings were made, by paying to the Bank an amount equal to the sum
of (i) the aggregate principal amount of the Pledged Bonds being resold, plus
(ii) any interest due and owing to the Bank pursuant to Section 2.05 of this
Agreement. Upon payment to the Bank of such amount, the Bank shall release or
cause the Trustee or, in the event the Series 2004 Bonds are registered under a
global book entry system, the securities depository to release from the pledge
and security interest created by this Agreement a principal amount of Pledged
Bonds corresponding to the amount of such payment.
(b) As security for the Obligations, the Borrower does hereby pledge,
assign, hypothecate, transfer and deliver to the Bank all the Borrower's right,
title and interest in and to any Series 2004 Bonds owned directly or indirectly
by the Borrower. As security for the Obligations, the Borrower further grants to
the Bank a first lien on, and a first priority security interest in, the
Borrower's right, title and interest in and to any such Series 2004 Bonds and
the Borrower's right to receive such Series 2004 Bonds, the interest thereon and
all proceeds thereof. For purposes of the foregoing, this Agreement shall be
deemed a security agreement under the Illinois Uniform Commercial Code. If the
Bank, in its sole discretion, deems it necessary, then the Borrower shall
execute and deliver, and in the event the Series 2004 Bonds are registered under
a global book entry system, if requested by the Bank, shall use its best efforts
to cause the securities depository for the Series 2004 Bonds, to execute and
deliver, such pledge agreements and financing statements (in form and substance
satisfactory to the Bank and including such actions as may be necessary to
perfect a security interest in the Borrower's Series 2004 Bonds) as the Bank may
require in order to accomplish the purposes of this paragraph (b).
(c) The Borrower represents and warrants that (i) its is and at all
relevant times will be duly authorized and qualified to make the grant and
pledge provided for in this Section 2.03, (ii) that the pledge will be of a
first priority and that the Series 2004 Bonds pledged hereunder will be free and
clear of the claims of any Persons other than the Bank, (iii) that it will
defend the Bank's right, title and security interest in and to such Series 2004
Bonds against the claims and demands of all Persons and (iv) that it will not
dispose of or create any lien on or security interest in such Series 2004 Bonds
other than that in favor of the Bank under this Agreement.
Section 2.04 Substitute Letter of Credit. The Borrower may at any time
elect to deliver to the Trustee an Alternate Credit Facility (as such term is
defined in the Indenture), provided (a) the Borrower has complied with the terms
of the Indenture regarding the substitution of an Alternate Credit Facility, (b)
the Borrower has discharged, in full, prior to or contemporaneously with such
delivery, all amounts then owing to the Bank which are secured by the Mortgage
and the Other Agreements (including, without limitation, the Obligations and the
amount drawn upon the Letter of Credit in connection with any mandatory tender
of Series 2004 Bonds upon such substitution), and (c) the Borrower has delivered
or caused to be delivered an indemnity and/or other undertaking of the Borrower,
in form and substance acceptable to the Bank, as the Bank may deem reasonably
necessary to hold the Bank harmless from any liability, cost, expense or other
charge under the Letter of Credit or otherwise resulting from such substitution,
including, but not limited to, any drawdown under the Letter of Credit;
provided, however, the Borrower shall not be permitted to deliver an Alternate
Credit Facility if at such time any obligations and liabilities of the Borrower
to Bank under the Other Agreements shall be outstanding.
Section 2.05 Late Payments. If the principal amount of any Obligation is
not paid when due, such Obligation shall bear interest until paid in full at a
rate per annum equal to the Prime Rate from time to time in effect plus 1/2%
(the "Default Rate"), payable on demand, for the period from and including the
date on which payment is due or declared due to, but not including the date on
which payment is made. Interest shall be computed on the basis of a year
consisting of 360 days for the actual number of days elapsed.
Section 2.06 Computation of Interest and Fees. All computations of Usage
Interest, Default Rate and fees payable by the Borrower under this Agreement
shall be made on the basis of a 360-day year and actual days elapsed. Interest
shall accrue during each period during which interest is computed from and
including the first day thereof to but excluding the last day thereof.
ARTICLE III
AGREEMENT OF THE BANK; CONDITIONS PRECEDENT
TO ISSUANCE OF THE LETTER OF CREDIT;
DISBURSEMENT OF BOND PROCEEDS
Section 3.01 Agreement of the Bank. Subject to the terms and conditions of
this Reimbursement Agreement, the Bank agrees to issue the Letter of Credit.
Section 3.02 Conditions Precedent to Issuance of the Letter of Credit.
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(a) The Bank shall have received on or before the Date of Issuance the
following, in form and substance satisfactory to the Bank and its counsel:
(i) originally executed copies of this Reimbursement Agreement, the
Mortgage and the Related Documents;
(ii) an originally executed copy of an amendment to each of the Loan
and Security Agreement, the Related Mortgage and the CFC 1996 Reimbursement
Agreement, in each case in form and substance acceptable to the Bank, and
all documents, agreements, instruments, certificates or other items
required to be delivered to the Bank in connection therewith;
(iii) the approving opinion of Xxxxxxx and Xxxxxx LLP, bond counsel,
dated as of the Date of Issuance either addressed to the Bank or with a
reliance letter addressed to the Bank;
(iv) the written supplemental opinion of Xxxxxxx and Xxxxxx LLP, bond
counsel, dated as of the Date of Issuance and addressed to the Underwriter;
(v) the written opinion of Pugh, Jones, Xxxxxxx & Xxxxxx, counsel to
the Issuer, dated as of the Date of Issuance and addressed to the Bank;
(vi) the written opinion of Xxxx Xxxx & Xxxxx LLC, counsel to the
Borrower, dated as of the Date of Issuance and addressed to the Bank;
(vii) copies of the Certificate of Incorporation of the Borrower and
all amendments thereto, certified by the Secretary of State of Delaware, as
appropriate, not earlier than ten (10) days prior to the Date of Issuance;
(viii) a copy of the Bylaws of the Borrower, certified by its
Secretary;
(ix) a good standing certificate with respect to the Borrower as a
domestic corporation, issued not earlier than ten (10) days prior to the
Date of Issuance by the Secretary of State of Delaware;
(x) copies of resolutions of the Board of Directors of the Borrower,
authorizing or ratifying the execution, delivery and performance of this
Reimbursement Agreement, the Related Documents to which the Borrower is a
party and the amendments to the Other Agreements referred to in subsection
(ii) above, and any other documents provided for herein or therein to be
executed by the Borrower, which copies shall be accompanied by a
certificate of the Secretary of the Borrower stating that such resolutions
are in full force and effect as of the Date of Issuance;
(xi) a certificate of the Secretary of the Borrower certifying the
names of the officers authorized to sign this Reimbursement Agreement, the
Related Documents to which the Borrower is a party and the amendments to
the Other Agreements referred to in Section 3.02(a)(ii) above, together
with a specimen of the true signature of each such officer;
(xii) true and correct copies of all approvals of Governmental Bodies,
if any, necessary for the Borrower to execute, deliver and perform the
Related Documents to which it is a party, to place Liens on its property as
described therein and to authorize the Borrower to obtain the issuance of
the Letter of Credit;
(xiii) certified copies of documents evidencing all necessary action
taken by the Issuer to authorize the execution and delivery of the Related
Documents to which it is a party;
(xiv) an ALTA preliminary report prepared by the title company
covering the Premises, showing all exceptions to title, together with a
commitment satisfactory to the Bank that the title company is prepared to
issue a title policy, effective as of the Date of Issuance, insuring the
Mortgage as a first priority lien on the Premises subject only to those
exceptions permitted by the Mortgage and containing endorsements
satisfactory to the Bank;
(xv) an ALTA survey of the Project; and
(xvi) such other documents, instruments, approvals (and, if requested
by the Bank, certified duplicates of executed copies thereof) or opinions
as the Bank may reasonably request.
(b) The following statements shall be true and correct on the Date of
Issuance and the Bank shall have received a certificate signed by a duly
authorized officer or manager of the Borrower, dated the Date of Issuance,
stating that:
(i) the representations and warranties contained in Section 5.01 of
this Reimbursement Agreement are correct on and as of the Date of Issuance
as though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default has occurred
and is continuing, or would result from the execution and delivery of the
Related Documents or the issuance of the Letter of Credit; and
(iii) each of the other Related Documents to which it is a party and
each of the Other Agreements referred to in Section 3.02(a)(ii) above is in
full force and effect.
ARTICLE IV
OBLIGATIONS ABSOLUTE
Section 4.01 Obligations of the Borrower. The obligations of the Borrower
under this Reimbursement Agreement shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the
terms of this Reimbursement Agreement under all circumstances whatsoever,
including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of the Related Documents or the
Letter of Credit;
(b) any amendment or waiver of or any consent or departure from all or any
of the Related Documents;
(c) the existence of any claim, set-off, defense or other rights which each
of the Borrower may have at any time against the Trustee, any beneficiary or any
transferee of the Letter of Credit (or any persons or entities for whom the
Trustee, any such beneficiary or any such transferee may be acting), the Bank,
the Issuer or any other person or entity, whether in connection with this
Reimbursement Agreement, the Related Documents or any unrelated transaction;
provided that, nothing contained in this subsection shall preclude the Borrower
from raising any such claims in a separate action, following the Borrower's
performance of its obligations in strict accordance with the terms of this
Reimbursement Agreement;
(d) any demand, statement, or any other document presented under the Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever;
(e) payment by the Bank under the Letter of Credit against presentation of
a sight draft or certificate which does not comply with the terms of the Letter
of Credit, provided that such payment shall not have constituted gross
negligence or willful misconduct of the Bank; and
(f) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations, Covenants and Warranties of the Borrower. The
Borrower represents, covenants and warrants as follows:
(a) It is an entity duly organized, validly existing and in good standing
under the laws of the State of Delaware; it has the lawful power to own its
property and assets and to engage in the business it conducts, and it is duly
qualified and in good standing as a foreign corporation in the State of Illinois
and in each other jurisdictions wherein the nature of the business transacted by
it or property owned by it makes such qualification necessary; the states in
which it is qualified to do business are set forth on Schedule 5.01(a); the
addresses of all of its places of business are set forth on Schedule 5.01(a);
and it has neither adopted an assumed name, changed its name, been the surviving
corporation in a merger, acquired any business, nor changed its principal
executive office, except as set forth on Schedule 5.01(a).
(b) The execution, delivery and performance by the Borrower of this
Reimbursement Agreement and the Related Documents to which it is a party are (i)
within the Borrower's powers, (ii) have been duly authorized by all necessary
Borrower action, (iii) do not contravene (1) the Certificate of Incorporation or
Bylaws of the Borrower or (2) any law or contractual restriction binding on or
affecting the Borrower, and (iv) do not result in or require the creation of any
Lien upon or with respect to any of its properties (other than the Liens
contemplated by this Reimbursement Agreement and the Related Documents).
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Reimbursement
Agreement and the Related Documents to which it is a party.
(d) This Reimbursement Agreement and the Related Documents to which it is a
party are legal, valid and binding obligations of the Borrower, and are
enforceable against the Borrower in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting creditors
rights or equitable principles generally.
(e) There is no pending action or proceeding before any court, governmental
agency or arbitrator against or directly involving the Borrower and, to the best
of the Borrower's knowledge, there is no threatened action or proceeding
affecting the Borrower or any of its assets before any court, governmental
agency or arbitrator (i) which, in any case, may materially and adversely affect
the financial condition or operations of the Borrower, (ii) which seeks to
restrain or would otherwise have a material adverse effect on the transactions
contemplated herein or (iii) which would affect the validity or enforceability
of this Reimbursement Agreement or the Related Documents.
(f) None of the assets of the Borrower are subject to any Lien except for
Permitted Encumbrances.
(g) The Borrower is not an "investment company" or "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(h) The Borrower has filed or caused to be filed all federal, state and
local tax reports and returns which are required to be filed, and have paid or
caused to be paid all taxes as shown on said returns or which are due or on any
assessment received by it or any of them, to the extent that such taxes have
become due.
(i) Neither the Borrower nor any of its Affiliates is in default in the
payment or performance of any of its obligations or in the performance of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which it is a party or by which it or any of its assets may be
bound, which default would have a material and adverse affect on the business,
operations, assets or condition, financial or otherwise, of the Borrower, either
individually or taken as a whole. No Event of Default or Unmatured Event of
Default hereunder has occurred and is continuing. Neither of the Borrower nor
any of its Affiliates is in default under any order, award or decree of any
court, arbitrator, or governmental authority binding upon or affecting it or by
which any of its assets may be bound or affected which default would have a
material adverse effect on the business, operations, assets or condition,
financial or otherwise, of the Borrower or any Affiliates, either individually
or taken as a whole, and no such order, award or decree adversely affects the
ability of the Borrower to carry on its business as currently conducted or the
ability of the Borrower to perform its obligations under this Reimbursement
Agreement and the Related Documents to which it is a party.
(j) The Borrower is not a party to any contract or agreement or subject to
any restriction which materially and adversely affects its business, property or
assets, or financial condition. The Borrower is not a party to, or otherwise
subject to any provision contained in, any instrument evidencing indebtedness of
the Borrower, any agreement relating thereto or any other contract or agreement
(including its charter), which restrict or otherwise limit the incurring of the
indebtedness to be represented by this Reimbursement Agreement and the Related
Documents.
(k) The Borrower is in compliance with all laws, orders, regulations and
ordinances of all federal, foreign, state and local governmental authorities
binding upon or affecting the business, operation or assets of the Borrower,
except for laws, orders, regulations and ordinances the violation of which would
not, in the aggregate, have a material and adverse effect on such Borrower's
financial condition, results of operations or business.
(l) There is no fact known to the Borrower which materially adversely
affects or in the future may (so far as the Borrower can now foresee) materially
adversely affect the business, property, assets or financial condition of the
Borrower which has not been set forth in this Reimbursement Agreement or in the
other documents, certificates and statements furnished to the Bank by on behalf
of the Borrower prior to the date hereof in connection with the transactions
contemplated hereby.
(m) The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and will not use the proceeds of any
loan hereunder so as to violate Regulation U as it may be amended or interpreted
from time to time by the Board of Governors of the Federal Reserve System.
(n) The Borrower hereby incorporates herein and makes each of the
representations and warranties contained in the and the Loan and Security
Agreement and the Related Documents to which it is a party operative and
applicable for the benefit of the Bank as if the same were set forth at length
herein as of the date hereof, except to the extent any such representations or
warranties relate expressly to an earlier date.
(o) The representations and warranties of the Borrower in the Related
Documents and Other Documents are true and correct, and the Borrower has
furnished the Bank a true and correct copy of all the Related Documents as in
effect on the date hereof.
(p) The Project does not violate any presently existing material Government
Regulation with respect thereto, and the use of the Project complies with all
presently existing applicable ordinances, regulations and restrictive covenants
affecting the Project, and all requirements of such use which can be satisfied
have been satisfied.
(q) The Borrower has not received notice of, and has no knowledge of, (i)
any proceedings, whether actual, pending or threatened, for the taking under the
power of eminent domain or any similar power or right, of all or any portion of
the Project; or (ii) any damage to or destruction of any portion of the Project;
or (iii) any zoning, building, fire or health code violations in respect of the
Project which have not heretofore been corrected.
(r) The Bank does not control, either directly or indirectly through one or
more intermediaries, the Borrower. The Borrower does not control, either
directly or indirectly through one or more intermediaries, the Bank. "Control"
for this purpose has the meaning given to such term in Section 2(a)(9) of the
Investment Company Act of 1940.
Section 5.02 Survival. The foregoing representations, covenants and
warranties the Borrower shall be continuing and shall survive the execution and
delivery of this Reimbursement Agreement and the Related Documents and the
issuance of the Letter of Credit.
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01 Affirmative Covenants of the Borrower. Until the Termination
Date and thereafter until no amount is due or owing to the Bank hereunder, the
Borrower shall comply with each of the covenants, undertakings and agreements
set forth in this Article VI unless the Bank shall otherwise consent in writing.
Section 6.02 Loan and Security Agreement Covenants. From and after the date
hereof and so long as this Reimbursement Agreement is in effect, except to the
extent compliance in any case or cases is waived in writing by the Bank, the
Borrower agrees that it will, for the benefit of the Bank, comply with, abide
by, and be restricted by all the agreements, covenants, obligations and
undertakings contained in the Loan and Security Agreement, inclusive, including
any amendments, modifications and waivers thereof, regardless of whether any
indebtedness is now or hereafter remains outstanding thereunder, or the Loan and
Security Agreement shall have terminated, all of which provisions, together with
the related definitions, exhibits and ancillary provisions, are incorporated
herein by reference, mutatis mutandis, and made a part hereof to the same extent
and with the same force and effect as if the same had been herein set forth in
their entirety, and will be deemed to continue in effect for the benefit of the
Bank irrespective of whether the Loan and Security Agreement remains in effect,
and in furtherance of the foregoing the Borrower hereby agrees that:
(i) the term "Borrower" appearing in said provisions shall mean and
refer to the Borrower hereunder;
(ii) the term "Event of Default" appearing in said provisions shall
mean and refer to an Event of Default hereunder;
(iii) the term "Collateral" appearing in said provisions shall mean
and refer to Collateral as defined in the Mortgage.
(iv) the term "Agreement" appearing in said provisions shall mean and
refer to this Reimbursement Agreement; and
(v) the term "herein" appearing in said provisions shall mean and
refer to this Reimbursement Agreement.
Other than as hereinabove amended, any terms contained in the provisions of
the Loan and Security Agreement incorporated herein which are defined in the
Loan and Security Agreement shall have the same meaning herein as in the Loan
and Security Agreement.
Section 6.03 Conduct of Business. The Borrower shall maintain its existence
as a corporation, validly existing and in good standing under the laws of the
State of Delaware. The Borrower shall maintain in full force and effect all
licenses, bonds, franchises, leases, patents, contracts and other rights
necessary to the profitable conduct of its business, and will comply with all
applicable laws and regulations of any federal, state or local governmental
authority, except for such laws and regulations, the violation of which would
not, in the aggregate, have a material adverse effect on the Borrower's
financial condition, results of operations or business.
Section 6.04 Maintenance of Insurance. The Borrower shall maintain all
insurance required to be maintained under the Related Documents, and to the
extent not required by the Related Documents, shall maintain insurance with
responsible and reputable insurance companies reasonably acceptable to the Bank
covering such risks ordinarily insured against by other owners or users of such
properties in similar businesses in an amount, with respect to property
insurance, at least equal to the full insurable value of all its properties
(less a deductible deemed reasonable by the Bank) so long as commercially
available at reasonable cost under the circumstances.
Section 6.05 Visitation Rights. At any time or times upon at least 24 hours
prior oral or written notice, during customary business hours, the Borrower
shall permit the Bank or any agents or representatives thereof to visit the site
of the Project and other properties of the Borrower, inspect the books and
records of the Borrower and discuss the general business affairs of the Borrower
with its officers or employees.
Section 6.06 Maintenance of Properties. The Borrower shall maintain and
preserve all of its properties which are used or which are useful in the conduct
of its business in good working order and condition, ordinary wear and tear
excepted, except properties disposed of, used or exhausted by the Borrower in
the ordinary course of its business.
Section 6.07 Additional Acts Concerning Security. At the Bank's
request, the Borrower shall, at its expense, do all things necessary by way of
any additional filings to continue and maintain the Lien and priority of the
security interests granted pursuant to this Reimbursement Agreement, the
Mortgage and any of the other Related Documents, and Uniform Commercial Code
Financing Statements pertaining thereto.
Section 6.08 Payment of Indebtedness. The Borrower shall pay any
Indebtedness for which it is liable when due and shall not permit any default to
occur under any document evidencing or securing any such Indebtedness, provided,
however, that nothing herein contained shall prohibit the Borrower from
contesting any such Indebtedness in good faith if the Borrower shall deposit
with the Bank an amount equal to the contested Indebtedness to be held in escrow
by the Bank for the benefit of the Borrower and the related creditor until such
contest is resolved.
Section 6.09 Performance of Obligations. The Borrower shall observe
and perform its obligations under this Reimbursement Agreement, the Related
Documents and the other agreements relating to the transaction contemplated
hereby to which it is a party or by which it is bound and shall not suffer or
permit any default or Event of Default to exist hereunder or thereunder. The
Borrower shall use commercially reasonable efforts to cause the other parties to
the Related Documents to deliver notices and documents required to be delivered
to the Bank and cause such parties (other than the Bank) to observe and perform
those obligations and covenants contained in the Related Documents required to
be observed and performed for the benefit of the Bank.
Section 6.10 Reports and Notices of Certain Events. The Borrower will
furnish to the Bank promptly, and in no event more than five Business Days,
after learning of the occurrence of any of the following, written notice
thereof, describing the same and the steps, if any, being taken by the Borrower
with respect thereto (i) the occurrence of an Event of Default or a Unmatured
Event of Default or (ii) the institution of, or any adverse determination in,
any litigation, arbitration proceeding or governmental proceeding that is
material to the transactions contemplated by this Reimbursement Agreement.
Section 6.11 Completion of Project. The Borrower shall use the funds in the
Acquisition and Construction Fund for the acquisition, construction and
equipping of the Project, and Borrower shall insure that Bank has a first
priority mortgage lien on the Project. The Borrower shall obtain Bank's consent
to each request for a disbursement from the Acquisition and Construction Fund
and shall supply Bank with mechanic's lien waivers and sworn owner's and
contractor's statements in connection therewith, in form acceptable to Bank.
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01 Negative Covenants of the Borrower. Until the Termination Date
and thereafter until no amount is due or owing to the Bank hereunder, the
Borrower shall comply with the covenants, undertakings and agreements set forth
in this Article VII unless the Bank shall otherwise consent in writing.
Section 7.02 Amendment to Agreements. The Borrower shall not enter into or
consent to any amendments or termination of the Related Documents without the
written consent of the Bank, which shall not be unreasonably withheld.
Section 7.03 Conflicting Agreements. The Borrower will not enter into any
agreement containing any provision that would be violated or breached in any
material manner by the performance of the Borrower's obligations under this
Agreement or any of the Related Documents or under any other instrument or
document delivered or to be delivered by the Borrower thereunder or in
connection therewith.
Section 7.04 Liens and Encumbrances. The Borrower shall not create, incur,
assume or permit or suffer to exist any Lien on any of its assets, including
without limitation, the Premises and any other property which secures the
Obligations or any of them under this Reimbursement Agreement, other than
Permitted Encumbrances.
Section 7.05 Transactions with Subsidiaries and Affiliates. The
Borrower shall not enter into any transaction including, without limitation, the
purchase, sale or exchange of property or the rendering of any service to any
Subsidiary or Affiliate except in the ordinary course of and pursuant to the
reasonable requirements of the Borrower's business and upon fair and reasonable
terms no less favorable to the Borrower than would obtain in a comparable arms
length transaction with an unaffiliated Person.
Section 7.06 Arbitrage. The Borrower shall not make any use nor permit any
use to be made of the proceeds of any of the Series 2004 Bonds or any other
funds which will cause any of the Series 2004 Bonds to be "arbitrage bonds"
subject to federal income taxation by reason of section 148(a) of the Code and
any applicable regulations promulgated thereunder.
Section 7.07 Optional Redemption of Bonds. The Borrower will not permit an
optional redemption or purchase of Series 2004 Bonds except as otherwise
provided herein; provided however, that if the Borrower has deposited with the
Bank or the Trustee an amount equal to the principal amount of Series 2004 Bonds
to be redeemed pursuant to the Indenture, the Bank shall consent to such
optional redemption to the extent of such amounts.
Section 7.08 Purchase of Bonds, Mandatory Redemption. The Borrower will
not, and will not permit any of its Affiliates to, purchase any Bonds (or any
beneficial interest therein) other than with the proceeds of a drawing under the
Letter of Credit. The Borrower will cause the Trustee to redeem Series 2004
Bonds in part once each year on the date set forth on the Prepayment Schedule in
a principal amount corresponding to the amount set forth in the Prepayment
Schedule for the corresponding year.
Section 7.09 Conversion of the Bonds. The Borrower will not permit the
conversion of the Series 2004 Bonds as provided in the Indenture without the
consent of the Bank.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. The occurrence of any of the following
events shall be an "Event of Default" hereunder:
(a) any representation or warranty made by the Borrower in this
Reimbursement Agreement or in any of the Related Documents shall prove to have
been false or incorrect in any material respect when made; or
(b) the Borrower shall fail to pay any amount payable to the Bank hereunder
when due; or
(c) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 6.02 or 6.08 (subject to applicable cure period
under the Loan and Security Agreement), Section 6.05, 6.07, 6.11 or Article VII
hereof; or
(d) any provision materially affecting the validity of any obligation of
either of the Borrower to make payments hereunder shall at any time for any
reason cease to be valid and binding on or shall be declared to be null and void
without the necessity of election by the Borrower or the validity or
enforceability of any material provision of this Reimbursement Agreement shall
be contested by the Borrower, or the Borrower shall deny that it has any or
further liability, or obligation under this Reimbursement Agreement; or
(e) (1) the Borrower shall (i) make an assignment for the benefit of
creditors, or (ii) commence any case, proceeding or other action under any
existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order of relief entered
with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, composition or other relief
with respect to it or its debts; or seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part of
its assets; or (2) there shall be commenced against the Borrower any case,
proceeding or other action (i) such as described in (1) above, or (ii) seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any portion of either of such Borrower's assets, and any order
granting any relief sought in such case, proceeding or action shall be entered
and continue unstayed and in effect for a period of 90 consecutive days or (3)
the Borrower shall generally not, or shall be unable to, pay its debts as they
become due; or
(f) the occurrence of a default or an event of default under any of the
Related Documents or any of the Other Agreements, and the continuance thereof
beyond any applicable grace or cure period; or
(g) default in the due observance or performance by the Borrower of any
other term, covenant or agreement set forth in this Reimbursement Agreement, and
the continuance of such default for thirty (30) days after the occurrence
thereof.
Section 8.02 Remedies. Upon the occurrence of any Event of Default, the
Bank may at its election (a) deliver notice of the Event of Default to the
Trustee or direct the Trustee to accelerate the maturity of the Series 2004
Bonds pursuant to Section 9.2 of the Indenture, (b) terminate the Letter of
Credit in accordance with the terms thereof, (c) declare all amounts payable
hereunder by the Borrower (including, without limitation, the amounts of any
Pledged Bond Loans) to be forthwith due and payable, and the same shall
thereupon become immediately due and payable without demand, presentment,
protest or further notice of any kind, all of which are hereby expressly waived
and/or (d) proceed to enforce all other remedies available to it under the
Mortgage or any of the other Related Documents or Other Agreements or any other
document from time to time delivered as security for the obligations of the
Borrower hereunder, and under applicable law or in equity.
Section 8.03 No Waiver; Remedies Cumulative. No remedy herein conferred or
reserved is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative with each and every other
remedy given under this Reimbursement Agreement, any other Related Document or
any Other Agreement, now or hereafter existing at law or in equity or by
statute. No delay or omission in the exercise of any right or power accruing
upon any default, omission or failure of performance hereunder shall impair any
such right or power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as may be deemed
expedient. In order to exercise any remedy reserved to the Bank in this
Reimbursement Agreement, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required. In the event any provision
contained in this Reimbursement Agreement should be breached by any party and
thereafter duly waived by the other party so empowered to act, such waiver shall
be limited to the particular breach so waived and shall not be deemed to waive
any other breach hereunder. No waiver, amendment, release or modification of
this Reimbursement Agreement shall be established by conduct, custom or course
of dealing, but solely by an instrument in writing duly executed by the parties
hereunto duly authorized by this Reimbursement Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments. No amendment or waiver of any provision of this
Reimbursement Agreement nor consent to any departure by the Borrower therefrom
shall in any event be effective, unless the same shall be in writing and signed
by an officer of the Bank, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Section 9.02 Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing and shall be given (i) by first class
or certified mail, postage prepaid; (ii) by facsimile transmission and confirmed
by the sender's telephone call to the recipient and by mailing or delivering a
copy as provided in clause (i), clause (iii) or clause (iv) hereof; (iii) by
hand delivery or (iv) by courier service (including overnight courier service)
notices shall be directed as follows:
If to the Borrower:
CFC International, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Holland & Knight LLC
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Bank:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
McGuireWoods LLP
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Notice given as provided in clause (i) hereof shall be effective five days
from the date of mailing. Notice given as provided in clauses (ii) and (iii)
hereof shall be effective on the day sent if sent by 4:00 p.m. (local time at
Chicago, Illinois) on a Business Day and otherwise on the next Business Day
following the day of sending. Notice given as provided in clause (iv) hereof
shall be effective on the Business Day following the day of sending. Any party
may be notice to the other parties designate additional or future addresses to
which notices and other communications may be sent or given.
Section 9.03 Right of Set-off. The Bank shall have the right to immediately
and without notice, set-off against the Borrower's obligations to the Bank under
this Reimbursement Agreement or otherwise any sum owed by the Bank in any
capacity to the Borrower. The Bank shall be deemed to have exercised such right
of set-off and to have made a charge against any such sum immediately upon the
occurrence of any Event of Default as defined herein, though the actual book
entries may be made at times subsequent thereto.
Section 9.04 Indemnification. The Borrower hereby indemnifies and holds
harmless the Bank from and against any and all claims, damages, losses,
liabilities, reasonable costs or expenses whatsoever which the Bank may incur
(or which may be claimed against the Bank by any person or entity whatsoever) by
reason of or in connection with the execution and delivery or transfer of, or
payment or failure to pay under, the Letter of Credit; provided, that the
Borrower shall not be required to indemnify the Bank for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent the
foregoing is finally determined by the non-appealable judgment of a court of
competent jurisdiction to have been caused by the willful misconduct or gross
negligence of the Bank.
Section 9.05 Continuing Obligation. This Reimbursement Agreement is a
continuing obligation and shall (a) be binding upon the Borrower and its
respective successors and assigns, and (b) inure to the benefit of and be
enforceable by the Bank and its successors, transferees and assigns; provided,
that the Borrower may not assign all or any part of this Reimbursement Agreement
without the prior written consent of the Bank.
Section 9.06 Transfer of Letter of Credit. The Letter of Credit may be
transferred only in accordance with the provisions set forth therein.
Section 9.07 Liability of the Bank. The Borrower assumes all risks of the
acts or omissions of the Trustee and any transferee of the Letter of Credit with
respect to its use of the Letter of Credit. Neither the Bank nor any of its
officers or directors shall be liable or responsible for: (a) the use which may
be made of the Letter of Credit or for any acts or omissions of the Trustee and
any transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement(s) thereon, even if such
documents should in fact prove to be in any or all respects invalid, fraudulent
or forged, except to the extent any invalidity relates to the execution of a
document by the Bank; (c) payment by the Bank against presentation of documents
which do not comply with the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under the Letter of Credit, except only that the Borrower shall have a claim
against the Bank, and the Bank shall be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential, damages
suffered by the Borrower which the Borrower proves to have been caused by (i)
the Bank's willful misconduct or gross negligence in determining whether
documents presented under the Letter of Credit comply with the terms of the
Letter of Credit or (ii) the Bank's willful failure to pay under the Letter of
Credit after the presentation to it by the Trustee (or a successor trustee under
the Indenture to whom the Letter of Credit has been transferred in accordance
with its terms) of a sight draft and certificate strictly complying with the
terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
Section 9.08 Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses in connection with the
preparation, execution, delivery, and administration of this Reimbursement
Agreement and any other documents which may be delivered in connection with this
Reimbursement Agreement, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Bank with respect to advising the Bank
as to its rights and responsibilities under this Reimbursement Agreement and the
Related Documents; taxes, insurance costs or expenses advanced by the Bank on
the Borrower's behalf in its sole discretion; and all reasonable out-of-pocket
costs and expenses, if any, in connection with the enforcement of this
Reimbursement Agreement, the Related Documents and such other documents which
may be delivered in connection with this Reimbursement Agreement. In addition,
the Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing and
recording of this Reimbursement Agreement and such other documents, and agree to
save the Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and fees.
Section 9.09 Participation. The Bank may enter into participation
agreements with other banks providing for their participation in the payments
made by the Bank under the Letter of Credit. Such participation shall not affect
the Bank's obligations under the Letter of Credit. The Borrower hereby consents
to such participation. The Borrower further agrees that to the extent that any
such other bank so participates, the Borrower shall have in respect of such
other participating bank all the concomitant duties and obligations set forth in
this Agreement as if such duties and obligations ran directly to such other
participating bank had signed this Agreement, save that all payments by the
Borrower in respect of such duties and obligations shall be made to the Bank so
long as no Event of Default exists under this Agreement and if such an Event of
Default exists, such payments shall be made to the Bank. Such participation
shall not expand the obligations of the Borrower beyond those which the Borrower
expressly assumes in the Loan Agreement and this Reimbursement Agreement.
Section 9.10 Severability. Any provision of this Reimbursement Agreement
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
Section 9.11 Governing Law; Jury Trial Waiver; Venue. This Reimbursement
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Illinois.
THE BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION
WITH THIS REIMBURSEMENT AGREEMENT, THE RELATED DOCUMENTS OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM ANY DISPUTE
OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS REIMBURSEMENT AGREEMENT,
THE RELATED DOCUMENTS OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT,
AND AGREES THAT ANY SUCH ACTION OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY. THE BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO THE
BANK'S SOLE AND ABSOLUTE ELECTION, ANY ACTION OR PROCEEDING IN ANY WAY, MANNER
OR RESPECT ARISING OUT OF THIS REIMBURSEMENT AGREEMENT, THE RELATED DOCUMENTS OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY
DISPUTE OR, CONTROVERSY ARISING IN CONNECTION WITH OR RELATED TO THIS
REIMBURSEMENT AGREEMENT, THE RELATED DOCUMENTS OR ANY SUCH AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT SHALL BE LITIGATED ONLY IN THE COURTS HAVING
SITES WITHIN THE CITY OF CHICAGO, ILLINOIS, AND THE BORROWER HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN
SUCH CITY AND STATE. THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST IT BY THE BANK IN
ACCORDANCE WITH THIS SECTION.
Section 9.12 Headings. Section headings in this Reimbursement Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Reimbursement Agreement for any other purpose.
Section 9.13 Counterparts. This Reimbursement Agreement may be executed in
counterparts, each of which shall constitute an original but all taken together
to constitute one instrument.
Section 9.14 Entire Agreement. This Reimbursement Agreement constitutes the
entire understanding of the parties with respect to the subject matter thereof
and any prior agreements, whether written or oral, with respect thereto are
superseded hereby.
Section 9.15 Terms of Other Agreements Not Superseded. Nothing contained
herein shall be deemed or construed to permit any act or omission which is
prohibited by the terms of the Other Agreements, the covenants and agreements
contained herein being in addition to and not in substitution for the covenants
and agreements contained in the Other Agreements.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Reimbursement
Agreement to be duly executed and delivered by their respective officers
hereunto duly authorized as of the date first above written.
CFC INTERNATIONAL, INC.
By:
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and
Chief Executive Officer
LASALLE BANK NATIONAL ASSOCIATION
By:
---------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
Legal Description of Premises
Property Address: 000 Xxx Xxx Xxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx
Permanent Index No.: 32-16-203-015-0000
THOSE PARTS OF THE SOUTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 16, TOWNSHIP 35
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EAST AND WEST CENTERLINE OF SECTION 16, TOWNSHIP 35
NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN CITY OF CHICAGO
HEIGHTS, XXXX COUNTY, ILLINOIS, A DISTANCE OF 607.73 FEET WESTWARDLY, MEASURED
ALONG SAID EAST AND WEST CENTER LINE FROM THE SOUTHEAST CORNER OF THE NORTHEAST
1/4 OF SAID SECTION 16; THENCE CONTINUING WESTWARDLY ALONG SAID EAST AND WEST
CENTER LINE, A DISTANCE OF 387.00 FEET; THENCE NORTHWARDLY PARALLEL WITH THE
EAST LINE OF SAID SECTION 16, A DISTANCE OF 553.30 FEET; THENCE EASTWARDLY
PARALLEL WITH SAID EAST AND WEST CENTER LINE, A DISTANCE OF 527.50 FEET; THENCE
SOUTHWARDLY PARALLEL WITH THE EAST LINE OF SAID SECTION 16, A DISTANCE OF 230.30
FEET; THENCE WESTWARDLY PARALLEL WITH SAID EAST AND WEST CENTER LINE, A DISTANCE
OF 48.50 FEET; THENCE SOUTHWARDLY PARALLEL WITH THE EAST LINE OF SAID SECTION
16, A DISTANCE OF 161.00 FEET; THENCE WESTWARDLY PARALLEL WITH SAID EAST AND
WEST CENTER LINE, A DISTANCE OF 92.00 FEET; THENCE SOUTHWARDLY PARALLEL WITH THE
EAST LINE OF SAID SECTION 16, A DISTANCE OF 162.00 FEET TO THE POINT OF
BEGINNING; (EXCEPT THAT PART DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT IN THE EAST AND WEST CENTERLINE OF SECTION 16, A DISTANCE
OF 607.73 FEET WESTWARDLY, MEASURED ALONG SAID EAST AND WEST CENTER LINE FROM
THE SOUTHEAST CORNER OF THE NORTHEAST 1/4 OF SAID SECTION 16; THENCE NORTHWARDLY
PARALLEL WITH THE EAST LINE OF SAID SECTION 16, A DISTANCE OF 162.00 FEET;
THENCE EASTWARDLY PARALLEL WITH SAID EAST AND WEST CENTER LINE, A DISTANCE OF
92.00 FEET; THENCE NORTHWARDLY PARALLEL WITH THE EAST LINE OF SAID SECTION 16, A
DISTANCE OF 161.00 FEET TO THE POINT OF BEGINNING OF THE HEREINAFTER DESCRIBED
PARCEL OF LAND; THENCE EASTWARDLY PARALLEL WITH SAID EAST AND WEST CENTER LINE,
A DISTANCE OF 48.50 FEET; THENCE NORTHWARDLY PARALLEL WITH THE EAST LINE OF SAID
SECTION 16, A DISTANCE OF 230.30 FEET; THENCE WESTWARDLY PARALLEL WITH THE EAST
AND WEST CENTER LINE, A DISTANCE OF 48.50 FEET; THENCE SOUTHWARDLY PARALLEL WITH
THE EAST LINE OF SAID SECTION 16, A DISTANCE OF 230.30 FEET TO THE POINT OF
BEGINNING), ALL IN XXXX COUNTY, ILLINOIS.
EXHIBIT B
Prepayment Schedule
Annual Principal Amortization Redemption Date
----------------------------- ---------------
$100,000.00 July 1, 2005
$100,000.00 July 1, 2006
$100,000.00 July 1, 2007
$100,000.00 July 1, 2008
$100,000.00 July 1, 2009
$100,000.00 July 1, 2010
$100,000.00 July 1, 2011
$100,000.00 July 1, 2012
$100,000.00 July 1, 2013
$100,000.00 July 1, 2014
$100,000.00 July 1, 2015
$100,000.00 July 1, 2016
$100,000.00 July 1, 2017
$100,000.00 July 1, 2018
$100,000.00 July 1, 2019
$100,000.00 July 1, 2020
$100,000.00 July 1, 2021
$100,000.00 July 1, 2022
$100,000.00 July 1, 2023
$100,000.00 July 1, 2024
EXHIBIT C
Amended and Restated Loan and Security Agreement
WAIVER AND THIRD AMENDMENT
TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This WAIVER AND THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT dated as of July ___, 2004 (the "Third Amendment"), is entered into by
and between CFC INTERNATIONAL, INC., a Delaware corporation (the "Borrower"),
whose address is 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association (the "Bank"), whose
address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
R E C I T A L S:
A. The Borrower and the Bank entered into that certain Amended and Restated
Loan and Security Agreement dated as of May 17, 2001, as modified and amended by
that certain (i) First Amendment to Amended and Restated Loan and Security
Agreement dated as of January 31, 2003, and (ii) Second Amendment to Amended and
Restated Loan and Security Agreement dated as of December 24, 2003
(collectively, the "Loan Agreement"), pursuant to which the Bank has made to the
Borrower (i) a Revolving Loan evidenced by that certain Amended and Restated
Revolving Note dated as of January 31, 2003 in the maximum principal amount of
Five Million Five Hundred Thousand and 00/100 Dollars ($5,500,000.00) (the
"Revolving Note"), (ii) a Term Loan evidenced by that certain Amended and
Restated Term Note dated as of January 31, 2003 in the principal amount of Two
Million Four Hundred Sixty Three Thousand Nine Hundred Eighty Six and 94/100
Dollars ($2,463,986.94) (the "Term Note"), (iii) a Second Term Loan evidenced by
that certain Amended and Restated Second Term Note dated as of January 31, 2003
in the principal amount of Five Million Seven Hundred Seventy Three Thousand
Three Hundred Thirty Six and 00/100 Dollars ($5,773,336.00) (the "Second Term
Note") and (iv) a Capex Loan evidenced by that certain Capex Loan Note dated as
of December 24, 2003 in the principal amount of Two Million and 00/100 Dollars
($2,000,000.00) (the "Capex Loan Note") each executed by the Borrower and made
payable to the order of the Bank.
B. At the present time the Borrower requests, and the Bank is agreeable to
(i) an extension of the Revolving Loan Maturity Date, (ii) an increase in the
maximum principal amount of the Revolving Loan Commitment and (iii) the Bank's
waiver of a violation by the Borrower of the profitability covenant set forth in
Section 8.3 of the Loan Agreement, pursuant to the terms and conditions
hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Borrower and the Bank hereby agree as follows:
A G R E E M E N T S:
1. RECITALS. The foregoing Recitals are hereby made a part of this Third
Amendment.
2. DEFINITIONS. Capitalized words and phrases used herein without
definition shall have the respective meanings ascribed to such words and phrases
in the Loan Agreement.
3. AMENDMENTS TO THE LOAN AGREEMENT.
3.1 Reimbursement Agreement Definitions.
(a) The following new definitions are hereby added to Section 1.1 of the
Loan Agreement in alphabetical order as follows:
" "IRB 1996 Reimbursement Agreement" shall mean that certain
Reimbursement Agreement dated as of June 1, 1996, between Borrower and
Bank, pursuant to which Bank agreed to issue an irrevocable direct pay
letter of credit in favor of LaSalle Bank National Association (f/k/a
LaSalle National Bank), as trustee for the bondholders under the Indenture
of Trust dated as of June 1, 1996 between the Illinois Finance Authority
(f/k/a the Illinois Development Finance Authority) and such trustee in the
amount of $4,064,253, as heretofore or hereafter amended, restated,
modified or supplemented from time to time."
" "IRB 2004 Reimbursement Agreement" shall mean that certain
Reimbursement Agreement dated as of July 1, 2004, between Borrower and
Bank, pursuant to which Bank agreed to issue an irrevocable direct pay
letter of credit in favor of LaSalle Bank National Association, as trustee
for the bondholders under the Indenture of Trust dated as of July 1, 2004
between the Illinois Finance Authority and such trustee, in the amount of
$2,023,014.00, as heretofore or hereafter amended, restated, modified or
supplemented from time to time."
(b) The definition of "IRB Reimbursement Agreement" is hereby deleted in
its entirety and replaced with the following new definition:
" "IRB Reimbursement Agreements" shall mean each of and together the
IRB 1996 Reimbursement Agreement and the IRB 2004 Reimbursement Agreement."
and each occurrence of the term "IRB Reimbursement Agreement" occurring in the
Loan Agreement is hereby replaced with the term "IRB Reimbursement Agreements"
as defined above.
3.2 Revolving Loan Commitment. The definition of "Revolving Loan
Commitment" in Section 1.1 of the Loan Agreement is hereby amended in its
entirety to read as follows:
" "Revolving Loan Commitment" shall mean Eight Million and 00/100
Dollars ($8,000,000.00)."
3.3 Revolving Loan Maturity Date. The definition of "Revolving Loan
Maturity Date" in Section 1.1 of the Loan Agreement is hereby amended in its
entirety to read as follows:
" "Revolving Loan Maturity Date" shall mean April 1, 2006, unless
extended by the Bank pursuant to any modification, extension or renewal
note executed by the Borrower and accepted by the Bank in its sole and
absolute discretion in substitution for the Revolving Note."
3.4 Revolving Note. All references in the Loan Agreement to the Revolving
Note shall be deemed to be references to the Replacement Revolving Note in the
form of Exhibit A attached hereto and made a part hereof (the "Replacement
Revolving Note").
4. WAIVER OF DEFAULTED COVENANT. The Borrower has informed the Bank that
the Borrower's Net Income for the fiscal period ending December 31, 2003 was
less than the required One Thousand and 00/100 Dollars ($1,000.00) set forth in
Section 8.3 of the Loan Agreement, and as such the Borrower failed to comply
with the profitability covenant set forth in said Section 8.3 for such period
(the "Defaulted Covenant"). The Borrower agrees and acknowledges that, as a
result of the occurrence of such Defaulted Covenant, an Event of Default has
occurred and is continuing under Section 9.3 of the Loan Agreement. The Borrower
has therefore requested that the Bank waive compliance by the Borrower with the
Defaulted Covenant for the fiscal period ending December 31, 2003, as well as
the resulting Event of Default.
The Bank hereby waives: (a) compliance by the Borrower with the Defaulted
Covenant for the fiscal period ending December 31, 2003, (b) the Event of
Default occurring by reason of the Borrower's failure to comply with the
Defaulted Covenant solely for the fiscal period ending December 31, 2003, and
(c) the Bank's remedies under the Loan Agreement with respect to the Defaulted
Covenant and the subsequent Event of Default. This waiver shall be narrowly
construed and shall neither extend to any other violations under, or default of,
the Loan Agreement, including but not limited to, a violation of the
profitability covenant for any future period of time, nor shall this waiver
prejudice any rights or remedies which the Bank may have or be entitled to with
respect to such future violations or defaults.
5. REaffirmation of security agreements. The Borrower hereby expressly
reaffirms, assumes and binds itself in all respects to all of the obligations,
liabilities, duties, covenants, terms and conditions that are contained in the
following agreements (collectively, the "Security Agreements") and agrees that
all obligations and liabilities under the Security Agreements shall continue in
full force and effect and shall not be discharged, limited, impaired or affected
in any manner whatsoever by this Third Amendment: (i) that certain Security
Agreement and Mortgage-Trademarks and Patents, dated as of May 17, 2001 between
the Bank and the Borrower, (ii) that certain Security Interest Agreement
(Trademarks), dated as of May 17, 2001 between the Bank and the Borrower and
recorded with the United States Trademark Office on Reel No. 2315 beginning at
Frame No. 0995; and (iii) that certain Security Interest Agreement (Patents),
dated as of May 17, 2001 between the Bank and the Borrower.
6. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into this
Third Amendment, the Borrower hereby certifies, represents and warrants to the
Bank that:
6.1 Organization. The Borrower is a corporation duly organized, existing
and in good standing under the laws of the State of Delaware, with full and
adequate corporate power to carry on and conduct its business as presently
conducted. The Borrower is duly licensed or qualified in all foreign
jurisdictions wherein the nature of its activities require such qualification or
licensing. The certificate of incorporation and bylaws of the Borrower have not
been changed or amended since the most recent date that certified copies thereof
were delivered to the Bank. The Borrower's state issued organizational
identification number is 2088730. The exact legal name of the Borrower is as set
forth in the preamble of this Third Amendment, and the Borrower currently does
not conduct, nor has it during the last five (5) years conducted, business under
any other name or trade name. The Borrower will not change its name, its
organizational identification number, if it has one, its type of organization,
its jurisdiction of organization or other legal structure.
6.2 Authorization. The Borrower is duly authorized to execute and deliver
this Third Amendment and is and will continue to be duly authorized to borrow
monies under the Loan Agreement, as amended hereby, and to perform its
obligations under the Loan Agreement, as amended hereby.
6.3 No Conflicts. The execution and delivery of this Third Amendment and
the performance by the Borrower of its obligations under the Loan Agreement, as
amended hereby, do not and will not conflict with any provision of law or of the
certificate of incorporation or bylaws of the Borrower or of any agreement
binding upon the Borrower.
6.4 Validity and Binding Effect. The Loan Agreement, as amended hereby, is
a legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
6.5 Compliance with Loan Agreement. The representation and warranties set
forth in Section 5 of the Loan Agreement, as amended hereby, are true and
correct with the same effect as if such representations and warranties had been
made on the date hereof, with the exception that all references to the financial
statements shall mean the financial statements most recently delivered to the
Bank and except for such changes as are specifically permitted under the Loan
Agreement. In addition, except for the Defaulted Covenant, the Borrower has
complied with and is in compliance with all of the covenants set forth in the
Loan Agreement, as amended hereby, including, but not limited to, those set
forth in Section 6, Section 7 and Section 8 thereof.
6.6 No Event of Default. As of the date hereof and except for the Event of
Default occurring as a result of the Defaulted Covenant, no Event of Default
under Section 9 of the Loan Agreement, as amended hereby, or event or condition
which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default, has occurred or is continuing.
7. CONDITIONS PRECEDENT. This Third Amendment shall become effective as of
the date above first written after receipt by the Bank of the following
documents:
7.1 Third Amendment. This Third Amendment executed by the Borrower and the
Bank.
7.2 Replacement Revolving Note. A Replacement Revolving Note dated as of
July __, 2004 in the maximum principal amount of Eight Million and 00/100
Dollars ($8,000,000.00), executed by the Borrower and made payable to the order
of the Bank, in the form of Exhibit A attached hereto.
7.3 Amendment to Mortgage. An Amendment to the Mortgage in form and
substance acceptable to the Bank duly executed by the Borrower, a date down
endorsement to the title insurance policy in favor of the Bank relating to the
Premises and all documents or items required by the title insurance company
issuing such date down endorsement in connection therewith.
7.4 IRB 1996 Reimbursement Agreement. An Amendment to the IRB 1996
Reimbursement Agreement in form and substance acceptable to the Bank duly
executed by the Borrower.
7.5 Resolutions. A certified copy of resolutions of the Board of Directors
and/or shareholders of the Borrower authorizing the execution, delivery and
performance of this Third Amendment and the related loan documents.
7.6 Other Documents. Such other documents, certificates and/or opinions of
counsel as the Bank may request.
8. GENERAL.
8.1 Governing Law; Severability. This Third Amendment shall be construed in
accordance with and governed by the laws of Illinois. Wherever possible each
provision of the Loan Agreement and this Third Amendment shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of the Loan Agreement and this Third Amendment shall be prohibited by
or invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of the Loan Agreement and this Third
Amendment.
8.2 Successors and Assigns. This Third Amendment shall be binding upon the
Borrower and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Bank and the successors and assigns
of the Bank.
8.3 Continuing Force and Effect of Loan Documents. Except as specifically
modified or amended by the terms of this Third Amendment, all other terms and
provisions of the Loan Agreement and the other Loan Documents are incorporated
by reference herein, and in all respects, shall continue in full force and
effect. The Borrower, by execution of this Third Amendment, hereby reaffirms,
assumes and binds itself to all of the obligations, duties, rights, covenants,
terms and conditions that are contained in the Loan Agreement and the other Loan
Documents.
8.4 References to Loan Agreement. Each reference in the Loan Agreement to
"this Agreement", "hereunder", "hereof", or words of like import, and each
reference to the Loan Agreement in any and all instruments or documents
delivered in connection therewith, shall be deemed to refer to the Loan
Agreement, as amended hereby.
8.5 Expenses. The Borrower shall pay all costs and expenses in connection
with the preparation of this Third Amendment and other related loan documents,
including, without limitation, reasonable attorneys' fees and time charges of
attorneys who may be employees of the Bank or any affiliate or parent of the
Bank. The Borrower shall pay any and all stamp and other taxes, UCC search fees,
filing fees and other costs and expenses in connection with the execution and
delivery of this Third Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Bank harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such costs and expenses.
8.6 Counterparts. This Third Amendment may be executed in any number of
counterparts, all of which shall constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Waiver and Third
Amendment to Loan and Security Agreement as of the date first above written.
CFC INTERNATIONAL, INC.,
a Delaware corporation
By:
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and
Chief Executive Officer
LASALLE BANK NATIONAL ASSOCIATION
a national banking association
By:
---------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
Replacement Revolving Note
REPLACEMENT REVOLVING NOTE
$8,000,000.00 Date: as of July ___, 2004
Chicago, Illinois Due Date: April 1, 2006
FOR VALUE RECEIVED, CFC INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), whose address is 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000,
promises to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association (hereinafter, together with any holder hereof, called the
"Bank"), whose address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on
or before April 1, 2006 (the "Revolving Loan Maturity Date"), the lesser of (i)
the principal sum of EIGHT MILLION and 00/100 DOLLARS ($8,000,000.00), or (ii)
the aggregate principal amount of all Revolving Loans outstanding under and
pursuant to that certain Amended and Restated Loan and Security Agreement dated
as of May 17, 2001, executed by and between the Borrower and the Bank, as
amended from time to time (as amended, supplemented or modified from time to
time, the "Loan Agreement"), and made available by the Bank to the Borrower at
the maturity or maturities and in the amount or amounts stated on the records of
the Bank, together with interest (computed on the actual number of days elapsed
on the basis of a 360-day year) on the aggregate principal amount of all
Revolving Loans outstanding from time to time as provided in the Loan Agreement.
Capitalized words and phrases not otherwise defined herein shall have the
meanings assigned thereto in the Loan Agreement.
This Revolving Note evidences the Revolving Loans, reimbursement
obligations for Letters of Credit and other indebtedness incurred by the
Borrower under and pursuant to the Loan Agreement, to which reference is hereby
made for a statement of the terms and conditions under which the Revolving Loan
Maturity Date or any payment hereon may be accelerated. The holder of this
Revolving Note is entitled to all of the benefits and security provided for in
the Loan Agreement. All Revolving Loans shall be repaid by the Borrower on the
Revolving Loan Maturity Date, unless payable sooner pursuant to the provisions
of the Loan Agreement.
Principal and interest shall be paid to the Bank at its address set forth
above, or at such other place as the holder of this Revolving Note shall
designate in writing to the Borrower. Each Revolving Loan made, and all Letters
of Credit issued by, the Bank, and all payments on account of the principal and
interest thereof shall be recorded on the books and records of the Bank and the
principal balance as shown on such books and records, or any copy thereof
certified by an officer of the Bank, shall be rebuttably presumptive evidence of
the principal amount owing hereunder.
Except for such notices as may be required under the terms of the Loan
Agreement, the Borrower waives presentment, demand, notice, protest, and all
other demands, or notices, in connection with the delivery, acceptance,
performance, default, or enforcement of this Revolving Note, and assents to any
extension or postponement of the time of payment or any other indulgence.
This Revolving Note constitutes a renewal and restatement of, and
replacement and substitution for, that certain Amended and Restated Revolving
Note in the amount of Five Million Five Hundred Thousand and 00/100 Dollars
dated as of January 31, 2003 (the "Prior Note"). The indebtedness evidenced by
the Prior Note is continuing indebtedness evidenced hereby, and nothing herein
shall be deemed to constitute a payment, settlement or novation of the Prior
Note, or to release or otherwise adversely affect any lien, mortgage or security
interest securing such indebtedness or any rights of the Bank against any
guarantor, surety or other party primarily or secondarily liable for such
indebtedness.
The Revolving Loans and the reimbursement obligations for Letters of Credit
issued under the Loan Agreement evidenced hereby have been made and/or issued
and this Revolving Note has been delivered at the Bank's main office set forth
above. This Revolving Note shall be governed and construed in accordance with
the laws of the State of Illinois, in which state it shall be performed, and
shall be binding upon the Borrower, and its legal representatives, successors,
and assigns. Wherever possible, each provision of the Loan Agreement and this
Revolving Note shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of the Loan Agreement or this
Revolving Note shall be prohibited by or be invalid under such law, such
provision shall be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provisions of the
Loan Agreement or this Revolving Note. The term "Borrower" as used herein shall
mean all parties signing this Revolving Note, and each one of them, and all such
parties, their respective successors and assigns, shall be jointly and severally
obligated hereunder.
IN WITNESS WHEREOF, the Borrower has executed this Replacement Revolving
Note as of the date set forth above.
CFC INTERNATIONAL, INC.,
a Delaware corporation
By: ________________________________
Name: ________________________________
Title: ________________________________
