Exhibit 4.7
LOAN AGREEMENT
ELCO INDUSTRIES, INC.
AND
CITY OF LOGANSPORT, INDIANA
DATED AS OF DECEMBER 1, 1989
The rights of the City of Logansport, Indiana, under this
Agreement (except the right to receive payment for its expenses,
the right to receive indemnities, and rights relating to the
amendment of this Agreement) have been assigned to INB National
Bank, Indianapolis, Indiana, as Trustee under a Trust Indenture
dated as of the date of this Agreement, between the City and the
Trustee.
TABLE OF CONTENTS
Section Page
RECITALS................................................... 1
AGREEMENT.................................................. 2
ARTICLE I
Definitions and Exhibits
1.1. Terms Defined........................................ 2
1.2. Rules of Interpretation.............................. 3
1.3. Exhibits............................................. 4
ARTICLE II
The Loan and The Project
2.1. Municipality's Representations, Warranties and
Covenants............................................ 4
2.2. Company's Representations, Warranties and
Covenants............................................ 5
2.3. The Project.......................................... 7
ARTICLE III
The Bonds, Use of Proceeds, The Note
3.1. Agreement to Issue Bonds............................. 8
3.2. Disbursements from Construction Fund................. 8
3.3. Company is Required to Pay in the Event
Construction Fund is Insufficient.................... 8
3.4. Investment of Construction Fund and Bond Fund
Moneys............................................... 9
3.5. Covenants with Respect to Arbitrage.................. 9
3.6. Loan Payments and Other Amounts Payable.............. 10
3.7. Obligations of Company Unconditional................. 11
3.8. Letter of Credit and Alternate Letter of Credit...... 12
ARTICLE IV
Particular Covenants of the Company
4.1. Consent to Assignment to Trustee..................... 13
4.2. Payment of Expenses of Issuance of Bonds............. 13
4.3. Company to Maintain its Existence; Conditions Under
Which Exceptions Permitted........................... 13
4.4. Further Assurances and Corrective Instruments........ 13
4.5. Covenants of Company with Respect to Use of Bond
Proceeds............................................. 13
4.6. Indemnification of Municipality and Trustee.......... 14
4.7. Reports, Certificates and Other Information.......... 14
4.8. Insurance............................................ 15
4.9. Taxes and Liabilities................................ 15
4.10. Company to Furnish Notice of Fixed Interest Rate and
Mandatory Redemption Dates........................... 15
4.11. Notice of Adjustment Dates, Rate Determination
Dates, Rate Change Dates, Interest Payment Dates
and LOC Termination Tender Dates..................... 15
ARTICLE V
Maintenance, Taxes and Insurance
5.1. Maintenance and Modifications of Project by
Company.............................................. 15
5.2. Taxes, Other Governmental Charges and Utility
Charges.............................................. 15
5.3. Insurance Required................................... 16
5.4. Application of Net Proceeds of Insurance............. 16
5.5. Additional Provision Respecting Insurance............ 16
ARTICLE VI
Damage, Destruction and Condemnation
6.1. Damage and Destruction............................... 17
6.2. Condemnation......................................... 17
ARTICLE VII
Prepayment of Note
7.1. Optional Prepayment of Note.......................... 17
7.2. Mandatory Prepayment of Note in the Event of a
Determination of Taxability................ ......... 18
7.3. Purchase of Bonds.................................... 18
7.4. Extraordinary Event Prepayment of the Note........... 18
7.5. Notice of Prepayment................................. 18
ARTICLE VIII
Events of Default and Remedies
8.1. Events of Default.................................... 19
8.2. Remedies on Default.................................. 20
8.2. Application of Moneys................................ 20
8.3. Remedies Cumulative.................................. 21
8.4. Delay or Omission Not a Waiver....................... 21
8.6. Remedies Subject to Provisions of Law................ 21
ARTICLE IX
Supplements and Amendments to this Agreement
9.1. Supplements and Amendments to this Agreement......... 21
ARTICLE X
Miscellaneous
10.1. Binding Effect...................................... 21
10.2. Severability........................................ 21
10.3. Amounts Remaining in Bond Fund...................... 21
10.4. Amendments, Changes and Modifications............... 22
10.5. Execution in Counterparts........................... 22
10.6. Notices............................................. 22
10.7. References to Bonds Ineffective After Bonds are
Paid................................................ 22
10.8. Agreement for Benefit of Parties Hereto............. 22
10.9. Waiver.............................................. 22
10.10. Captions and Table of Contents...................... 23
10.11. Survival of Covenants, Representations and
Warranties.......................................... 23
10.12. Applicable Law...................................... 23
10.13. Holidays............................................ 23
EXHIBIT A: Description of Project
EXHIBIT B: Form of Note
LOAN AGREEMENT
This LOAN AGREEMENT has been executed as of December 1,
1989, by and between ELCO INDUSTRIES, INC., a Delaware
corporation (the "Company"), and the CITY OF LOGANSPORT, INDIANA
(the "Municipality").
RECITALS
1. Definitions of certain of the terms used in these
Recitals are set out in Article I hereof and Article I of the
Indenture.
2. The Company is pursuing the acquisition,
installation and equipping of the Project which is to be located
on the Project Site.
3. To finance a portion of the costs of the Project,
the Company is borrowing from the Municipality funds derived from
the sale of the Bonds, and the Company, as evidence of its
obligation to repay the funds, is issuing to the Municipality its
Note.
4. Pursuant to IC 36-7-11.9 and IC 36-7-12, the
Municipality is obtaining funds to loan to the Company through
the sale of $3,000,000 aggregate principal amount of City of
Logansport, Indiana Economic Development Revenue Bonds, Series
1989 (Elco Industries, Inc. Project).
5. Pursuant to a Trust Indenture dated as of the date
of this Agreement, between the Municipality and INB National
Bank, Indianapolis, Indiana, as Trustee, the Municipality will
issue the Bonds and, as security for the payment of the Bonds and
the performance of the obligations of and the Company under the
Indenture and the Note, the Municipality will assign the Note and
its rights under this Agreement (except the right to receive
payment for its expenses, the right to receive indemnities and
rights relating to any amendments to this Agreement) to the
Trustee and the Company will cause to be issued to the Trustee an
irrevocable direct pay letter of credit of The Mitsui Bank
Limited, dated December 14,1989. The Bonds will be payable
solely out of the revenues and other amounts derived from the
Note and under this Agreement and from the Letter of Credit and
shall not, in any respect, be a general obligation of, an
indebtedness of, or constitute a charge against the general
credit of the Municipality, the State of Indiana, or any
political subdivision thereof.
AGREEMENT
In consideration of the premises and the mutual
covenants contained herein, the Company and the Municipality
agree as follows:
ARTICLE I
Definitions and Exhibits
Section 1.1. Terms Defined. As used in this Agreement, the
following terms shall have the following meanings unless the
context otherwise required:
"Act" means IC 36-7-11.9 and IC 36-7-12, as from time to
time amended.
"Agreement" means this Loan Agreement and any amendment
and supplement thereto.
"Agreement Term" means the period commencing on the date
of this Agreement and, subject to the provisions of this
Agreement, ending on such date as the Bonds have been fully paid
and retired or provision for such payment made as provided in the
Indenture.
"Authorized Company Representative" means any officer
designated to act on behalf of the Company by written certificate
furnished to the Municipality and the Trustee containing the
specimen signature of the person and signed on behalf of the
Company by its President, any of its Vice Presidents, its Chief
Financial Officer, its Secretary or any of its Assistant
Secretaries. The certificate may designate an alternate or
alternates. The Authorized Company Representative may be an
employee of the Company.
"Bonds" means the $3,000,000 aggregate principal amount
of the City of Logansport, Indiana Economic Development Mortgage
Revenue Bonds, Series 1989 (Elco Industries, Inc. Project).
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Logansport Economic Development
Commission, a development commission created by the Municipality
pursuant to the Act.
"Company" means Elco Industries, Inc., a Delaware
corporation, and its successors and assigns.
"Counsel" means an attorney-at-law (who may be counsel
to the Trustee, the Municipality or the Company).
"Debt Service Fund" means the fund created in Section
402 of the Indenture.
"Indenture" means the Trust Indenture, dated as of the
date of this Agreement, between the Municipality and INB National
Bank, Indianapolis, Indiana, as Trustee, relating to the Bonds,
and any indenture supplemental thereto.
"Letter of Credit" means the irrevocable direct pay
letter of credit of The Mitsui Bank, Limited dated December 14,
1989 issued to the Trustee for the benefit of the bondholders
under a Reimbursement Agreement among said Bank, the Trustee and
the Company dated as of December 1, 1989.
"Loan" means the $3,000,000 loan in principal amount by
the Municipality to the Company of the proceeds from the sale of
the Bonds.
"Municipality" or "Issuer" means the City of Logansport,
Indiana, and any successor.
"Net Proceeds" means, when used with respect to any
insurance proceeds or any condemnation award, the amount
remaining after deducting all expenses (including attorneys'
fees) incurred in the collection of such proceeds or award from
the gross proceeds thereof.
"Note" or "Promissory Note" means the Note of the
Company in substantially the form of Exhibit B hereto and any
Note issued in exchange therefor.
"Project" means the acquisition and installation of
equipment at certain development facilities of the Company as
more fully described in Exhibit A to this Loan Agreement.
"Project Cost" means and includes all those costs
related to the Project which are permitted to be financed under
the Code, the Act, this Agreement and the Indenture and which do
not result in a loss of the exclusion from gross income for
federal income tax purposes of the interest on the Bonds under
the Code.
"Project Fund" means the fund created in Section 302 of
the Indenture.
"Reimbursement Agreement" means the Reimbursement
Agreement between the Company and The Mitsui Bank, Limited dated
as of December 1, 1989, under which the Letter of Credit will be
issued.
"Trustee" means the trustee at the time serving under
the Indenture.
Section 1.2. Rules of Interpretation. For all purposes
of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) "This Agreement" means this instrument as originally
executed and as it may from time to time be supplemented or
amended.
(b) The words "herein," "hereof" 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.
(c) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular.
(d) All accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles.
(e) Any terms not defined herein but defined in the
Indenture shall have the same meaning herein.
(f) The terms defined elsewhere in this Agreement shall
have the meanings therein prescribed for them.
Section 1.3. Exhibits. The following Exhibits are a part of
this Agreement:
Exhibit A: Description of the Project.
Exhibit B: Form of Note, form of Note Registrar's
Certificate of Validation and Form of Assignment.
ARTICLE II
The Loan and The Project
Section 2.1. Municipality's Representations, Warranties and
Covenants
(a) The Municipality represents and warrants that:
(i) The Municipality is a duly organized and existing
Municipal corporation and political subdivision of the State of
Indiana, with full power and authority Under the Act to enter
into the transactions contemplated by this Agreement and to carry
out its obligations hereunder,
(ii) The Municipality has duly authorized the issuance,
execution and delivery of the Bonds and the execution and
delivery of this Agreement.
(b) The Municipality covenants that:
(i) The Municipality shall not take any action to
interfere with any obligation it may have with respect to the
Bond, the proceedings authorizing the Bonds or this Agreement.
(ii) The Municipality shall provide funds from the
proceeds from the sale of the Bonds for the financing of a
portion of the costs of the Project, and shall secure the payment
of the Bonds by assigning this Agreement (except the right to
receive payment for its expenses, the right to receive
indemnities and rights relating to any amendment of this
Agreement) and the Note to the Trustee pursuant to the Indenture.
Section 2.2. Company's Representations, Warranties and
Covenants.
The Company makes the following representations and warranties
(all as of the date on which this Agreement has been executed)
and in addition, makes the following covenant:
(a) It is a duly organized and validly existing corporation
in good standing under the laws of the State of Delaware and is
duly qualified to transact business in Indiana, has the power and
authority to own its properties and assets and to carry on its
business as now being conducted and as now contemplated, and has
full power and authority to issue the Note and to execute and
deliver this Agreement, the Reimbursement Agreement and all other
agreements contemplated by this Agreement to which the Company is
a party all actions necessary for the execution and delivery of
the Note, this Agreement and the Indenture have been taken and
the Note will be a valid and binding obligation of the Company,
(b) The execution, delivery and performance of this
Agreement, the Note and the Reimbursement Agreement will not
conflict with or result in a breach of, or a default under, the
Company's Articles of Incorporation, By-Laws, or any material
agreement or instrument to which the Company is a party or by
which it is bound (excepting, however such agreements or
instruments with respect to which the Company has been required
to and has obtained waivers or consents) or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company, except for the lien
of the Indenture and liens, charges or encumbrances in favor of
The Mitsui Bank, Limited to secure the obligations of the Company
under the Reimbursement Agreement.
(c) At least 95% of the proceeds from the Bonds (including
any income earned on the investment of such proceeds) will be
used for the acquisition and installation of machinery and
equipment for the Project. No more than 2% of the proceeds of
the Bonds will be used for the costs of issuance of the Bonds,
including any broker's, underwriter's or placement agent's
discount or other compensation. Costs of issuance paid from the
Bond proceeds together with any other expenditures which are not
described in the first sentence of this subsection will be not
more than 5% of the proceeds of the Bonds. No part of the
proceeds are to be used by the Company, directly or indirectly,
as working capital or to finance inventory.
(d) The Project and all components thereof will consist of
property of a character subject to the allowance for depreciation
under the Code.
(e) The indication of interest by the Issuer on the date of
adoption of the inducement resolution to issue its Bonds and lend
the proceeds to the Company for the purposes set forth herein has
encouraged the Company to acquire and construct the Project, and
will promote diversification of economic development and create
new or preserve existing job opportunities in the area. The
Project, or any components thereof which is to be paid for out of
the proceeds of the Bonds, had not been acquired, constructed,
equipped, furnished or rehabilitated by the Company prior to the
adoption of the inducement resolution of the Common Council of
the Issuer with respect to the Project.
(f) The sum of the following does not exceed $10,000,000:
(i) the aggregate face amount of any outstanding issues
of obligations (other than the Bonds) exempt from taxation under
Sections 103 and 144 of the Code, the proceeds from which were or
will be used primarily with respect to the Project or other
facilities (a) located within the County of Cass (but not in any
incorporated municipality) or within the Municipality and (b) the
principal user of which is or will be the Company or any other
principal user of the Project or related person or persons within
the meaning of Section 144 of the Code;
(ii) the aggregate principal amount of the Bonds; and
(iii) the sum of all capital expenditures (within the
meaning of Section 144(a) of the Code (and, pursuant to said
section, specifically excluding capital expenditures made from
the proceeds of bonds described in paragraph (i)and (ii) above))
relating to the facilities described in subsection (i) and made
during the period beginning three years prior to the date on
which the Bonds are issued and ending on the date on which the
Bonds are issued.
(g) The "average maturity" of the Bonds (taking into
account there issue prices) does not exceed 120% of the "average
reasonably expected economic life" of the facilities to be
financed with the proceeds of the Bonds (taking into account the
respective cost of such facilities), all as determined in
accordance with the provisions of Section 147(b) of the Code.
(h) No portion of the proceeds of the Bonds will be used to
provide any facility the primary purpose of which is retail food
and beverage service, automobile sales or services, or the
provision of recreation or entertainment, any private or
commercial golf course, country club, massage parlor, tennis
club, skating facility (including roller skating, skateboard and
ice skating), racquet sports facility (including any handball or
racquetball court), hot tub facility, suntan facility, racetrack,
airplane, sky box or other private luxury box, health club
facility, facility used for gambling, or facility used for the
sale of alcoholic beverages.
(i) The Bonds are not and shall not be "federally
guaranteed" as defined in Section 149(b) of the Code.
(j) No portion of the proceeds of the Bonds will be used to
acquire land (or an interest therein) or to acquire any property
(or an interest therein) where the first use of such property is
not pursuant to such acquisition.
(k) The aggregate authorized face amount of the Bonds
allocated to any "test period beneficiary," as such term is
defined in Section 144 of the Code, when increased by the
outstanding tax-exempt industrial development bonds of such
beneficiary, does not and shall not exceed $40,000,000.
(1) The execution, delivery and performance by the Company
of this Loan Agreement and the Note do not require the consent or
approval of, the giving of notice of, the registration with, or
the taking of any other action in respect of, any federal, state
or other governmental authority or agency, not previously
obtained or performed.
(m) No litigation, arbitration proceedings or governmental
proceedings are pending or threatened against the Company which
would, if adversely determined, materially and adversely affect
the right and power of the Company to execute and deliver this
Loan Agreement and all documents and instruments related hereto
or contemplated hereby to which the Company is a party or
signatory.
(n) Except with respect to future capital expenditures, the
Company will take no action which would (and will omit no action
reasonably within its power, the omission of which would) cause
the interest on the Bonds to become includable for Federal income
tax purposes in the gross income of any Bondholder, other than a
Bondholder who is a "substantial user" of the Project or a
"related person" within the meaning and for the purpose of
Section 147 of the Code. While this Agreement does not restrict
the Company as to future capital expenditures (and such
expenditures, if sufficiently large, could cause the interest on
the bonds to become includable in gross income for Federal income
tax purposes), the Company presently believes and expects that it
will comply with the applicable Code limitations on future
capital expenditures.
Section 2.3. The Project. The Company shall cause the
Project to be acquired, constructed, installed and equipped with
all reasonable dispatch in accordance with the Company's
specifications and directions. It is the Company's present
intention to use the Project, or to cause it to be used,
throughout the term of this Agreement as an "economic development
facility" within the meaning of the Act. The failure or
inability of the Company to use the Project, or to cause it to be
used, for the intended purposes shall not affect in any way the
Company's obligations under this Agreement or the Note and shall
not be deemed a breach or default under this Agreement as long as
the use does not affect the validity of the Bonds or result in
the interest on the Bonds becoming includable for Federal income
tax purposes in the gross income of a Bondholder.
ARTICLE III
The Bonds, Use of Proceeds, The Note
Section 3.1. Agreement to Issue Bonds. In order to
provide funds to make the Loan, the Municipality shall issue the
Bonds and sell them to the purchaser or purchasers thereof and
deposit the proceeds with the Trustee as follows:
(a) Into the Debt Service Fund, the accrued interest,
if any, paid by the purchasers of the bonds; and
(b) Into the Project Fund, the balance of the proceeds.
Section 3.2. Disbursements from Project Fund. The
Indenture authorizes the Trustee to make payments from the
Project Fund to pay Project Costs and to reimburse the Company
for Project Costs paid by it. Payments shall be made upon
receipt of requisitions signed by an Authorized Company
Representative stating: (a) the requisition number, (b) the name
and address of the person, firm or corporation to whom payment is
due or to whom the Company has made payment for which
reimbursement is to be made, (c) the amount be paid, and (d) that
each obligation has been properly incurred, is a Project Cost
that is a proper charge against the Project Fund, and has not
been the basis of any previous withdrawal. The requisition shall
be accompanied by copies of such invoices, cancelled checks (or
other evidence of payment) and similar documentation as the
Trustee may reasonably request.
After the Trustee has paid all amounts requisitioned
from the Project Fund and has received a certificate from the
Company stating that the Project has been completed, or that the
Project cannot or will not be completed for the reasons specified
therein, any balance in the Project Fund shall, subject to
compliance with the Act, be transferred to the Purchase Fund and
disbursed in accordance with the provisions of the Indenture
relating thereto provided, that at least 95% of the amount
actually expended has been expended on property of a character
subject to the allowance for depreciation under the Code
("qualified facilities"). If such balance, plus any amounts
actually expended other than on qualified facilities, exceeds the
permissible 5% insubstantial amount of the Bond proceeds, the
Company shall so notify the Trustee in writing, which written
notification shall include detailed instructions as to the
disposition of such balance, including instructions that the
Trustee shall deposit such excess into a special escrow account
within the Purchase Fund and detailed instructions pursuant to
which the Trustee shall invest and use any amount so deposited to
redeem or retire the Bonds, or portions thereof, in accordance
with Internal Revenue Service Rev. Proc., 79-5 and Rev. Proc.
81-22 and any subsequent amendments, modifications or
replacements thereof at the earliest redemption date occurring
after such deposit.
Section 3.3. Company is Required to Pay in the Event
Project Fund is Insufficient. In the event the moneys in the
Project Fund available for payment of the Project Costs should
not be sufficient to pay the costs of acquiring, constructing,
installing and equipping the Project in full, the Company shall
complete the Project and pay that portion of the costs of the
Project in excess of the moneys available in the Construction
Fund.
Section 3.4. Investment of Project Fund and Debt Service
Fund. Moneys held as part of the Debt Service Fund shall be
invested by the Trustee at the direction of the Company in direct
obligations of the United States of America or in other
obligations backed by the full faith and credit of the United
States of America. Subject to the provisions of Section 405 of
the Indenture, any moneys held as part of the Construction Fund
shall be invested by the Trustee at the direction of the Company
in (a) obligations of the United States of America, or (b)
obligations the principal and interest of which are guaranteed by
the United States of America, or (c) obligations of any agency of
the United States of America, or (d) certificates of deposit or
bankers acceptances issued by, or interest bearing time or demand
deposits with, any bank, trust company or national banking
association (including the Trustee, any affiliate of the Trustee
and any paying agent) having a combined capital and surplus of at
least $10,000,000, or (e) contracts with any entity meeting the
requirements specified in (d) above for the purchase and sale of
obligations of the type specified in (a) or (b) above (including
contracts with the Trustee, any affiliate of the Trustee and any
paying agent), or (f) commercial paper which has been classified
for rating purposes by Xxxxx'x Investors Service, Inc., as
Prime-2 or by Standard and Poor's Corporation as A-2 (other than
commercial paper of the Company or any "related person"), or (g)
obligations the interest on which is excludable from gross income
for Federal income tax purposes and that are rated at least "A"
"MIG-2" or Prime-2 by Moody's Investor's Service, Inc., or "A" or
"A-2" by Standard and Poor's Corporation or an equivalent rating
by any other national rating agency, or (h) funds, mutual funds,
common trust funds or any similar entity whose investments
consist of the foregoing.
Section 3.5. Covenants with Respect to Arbitrage. The
Company and the Municipality covenant to each other and to and
for the benefit of the holders of the Bonds that no use will be
made of the proceeds from the issue and sale of the Bonds which,
if such use could have been reasonably expected on the date of
issue of the Bonds, would have caused the Bonds to be classified
as arbitrage bonds within the meaning of Section 103(b)(2) of the
Code. As long as any Bonds are outstanding, the Municipality and
the Company shall not violate the requirements of the Code
relating to arbitrage bonds, and any regulations thereunder
including the requirement of Section 148 of the Code relating to
the rebate of certain amounts to the United States government.
The Company will provide to the Trustee instructions relating to
the permissible investment of Bond proceeds and instructions and
computations (using investment information provided by the
Trustee) relating to the amount required to be rebated to the
United States, all in conformity with Section 148 of the Code.
The Company reserves the right, however, to make any investment
of proceeds permitted under the laws of the State of Indiana, if
the sections of the Code relating to arbitrage bonds or the
regulations thereunder are repealed or relaxed or are held void
by final judgment of court of competent jurisdiction, so long as
the investment would not result in making the interest on the
Bonds includable in the gross income of the holders thereof for
purposes of Federal income taxation. In making investments, the
Company may rely on an opinion of counsel of recognized
competence in such matters. The Trustee may make any and all
such investments through its own bond department.
Section 3.6. Loan Payments and Other Amounts Payable.
(a) Concurrently with the sale of the Bonds, the Company
shall execute and deliver the Note to the Municipality, pursuant
to which the Company shall make payments sufficient to pay when
due (whether at maturity, upon call for redemption, by
acceleration or otherwise) the principal of and premium, if any,
and interest on the Bonds. The Note shall be issued as a fully
registered note substantially in the form attached hereto as
Exhibit B. The Trustee shall act as Note Registrar and shall
cause books for the registration and for the transfer of the Note
to be kept at its principal office. Upon surrender for transfer
of the Note at the Principal Office of the Trustee, endorsed for
transfer by the registered owner or accompanied by an assignment
executed by the registered owner or his authorized attorney, the
Trustee shall validate and deliver in the name of the transferee
a new Note which shall have been executed by the Company. The
person in whose name the Note is registered shall be deemed the
absolute owner thereof for all purposes, and references to the
holder of the Note shall mean the registered owner thereof. The
obligation of the Company to make any payment in respect of the
loan made hereunder shall be reduced by the amount of any
reduction under the Indenture of the corresponding payment to be
made by the Issuer thereunder, including any reduction due to
payments made by the Bank to the Trustee in respect of the
principal of premium, if any, or interest on the bonds when due
pursuant to the Letter of Credit.
(b) The Company shall pay or cause to be paid to the Tender
Agent as agent for the Trustee amounts equal to the amounts to be
paid to Owners of Bonds pursuant to Section 403 of the Indenture,
on the dates the purchase price of Bonds delivered to the Tender
Agent to be paid from the sources described in Section 403 of the
Indenture. The obligation of the Company to make the payments
required to be made under this Section 3.6 shall be reduced by
the amount of any moneys otherwise available for such payment,
including particularly, any payment made by the Bank to the
Trustee in respect of the purchase price of Bonds pursuant to the
Letter of Credit.
(c) The Company shall also pay when due (i) the reasonable
and necessary fees and expenses of the Trustee (including any
reasonable and necessary fees and expenses in its capacity as
Note Registrar) the Tender Agent and any paying agent for
services in connection with the Bonds as specified in Section 802
of the Indenture and (ii) the reasonable and necessary fees and
expenses of the Municipality, including reasonable attorneys'
fees, in connection with any default of the Company under this
Agreement or the Note.
(d) If the Company fails to make any of the payments
required in this Section 3.6 or in the Note, all unpaid items or
installments shall continue as an obligation of the Company until
fully paid, and the Company shall pay the same with interest
thereon (to the extent permitted by law) until paid at a per
annum rate of interest equal to the per annum rate then in effect
on the Bonds.
(e) All payments under this Section 3.6 other than with
respect to (b) above shall be made by the Company directly to the
Trustee or as directed by the Trustee in immediately available
funds and the Trustee shall deposit all such payments into the
Debt Service Fund, provided that payments under Section 3.6(c)
shall be made by the Company directly to the person entitled
thereto. The amount of any money in the Debt Service Fund which
is either proceeds from the sale of any Bonds or earnings on
investments made pursuant to the provisions of the Indenture
which has been set aside by the Trustee, at the request of the
Company, for payments of principal, whether at maturity or upon
redemption, of the Bonds shall be credited against the obligation
of the Company to pay the principal of the Note. The amount of
any money in the Debt Service Fund which is either proceeds from
the sale of any Bonds or earnings on investments made pursuant to
the provisions of the Indenture which has been set aside by the
Trustee for payments of interest on the Bonds shall be credited
against the obligation of the Company to pay interest on the
Note. The principal amount of any Bonds purchased by the Company
and delivered to the Trustee, or purchased by the Trustee and
cancelled, shall be credited against the obligation of the
Company to pay the principal of the Note.
(f) If on any principal or interest payment date the
balance in the Debt Service Fund is insufficient to make the
required payments of principal of and premium, if any, and
interest on the Bonds on that date, the Company upon notice shall
pay forthwith any deficiency to the Trustee.
(g) The Company shall not be obligated to make any further
payments under this Section 3.6, and the Company's liability to
make payments under this Section 3.6 shall cease, at any time
that the entire principal of and premium, if any, and interest on
the Bonds shall have been fully paid in accordance with their
terms and the provisions of Section 1101 of the Indenture
(including, without limitation, principal, interest to maturity
or earliest redemption date, as the case may be, expenses of
redemption premiums, and fees and expenses of the Municipality,
the Trustee, the Tender Agent, and any paying agent and any other
costs and fees required to be paid by the Company pursuant to
this Agreement), or at any time that there shall be in the Debt
Service Fund an amount sufficient to pay or redeem the Bonds in
accordance with the provisions of Section 1101 of the Indenture
(including, without limitation, principal, interest to maturity
or earliest redemption date, as the case may be, expenses of
redemption and redemption premiums, and fees and expenses of the
Municipality, the Trustee and any paying agent and any other
costs and fees required to be paid by the Company pursuant to
this Agreement) and all other requirements of Section 1101 of the
Indenture have been satisfied in full.
Section 3.7. Obligation of Company Unconditional. The
obligation of the Company to make the payments and to perform and
observe its other agreements pursuant to this Agreement and the
Note shall be absolute and unconditional and shall not be subject
to reduction or delay by set-off, counterclaim, abatement or
otherwise. Until such time as the principal of and premium, if
any, and interest on the Bonds shall have been fully paid or
provision for the payment thereof shall have been made in
accordance with Section 1101 of the Indenture (including, without
limitation, principal, interest to maturity or earliest
redemption date, as the case may be, expenses of redemption.
redemption premiums, and fees and expenses of the Municipality,
the Trustee, the Tender Agent, and any paying agent and any other
costs and fees required to be paid by the Company pursuant to
this Agreement), and all other requirements of Section 1101 of
the Indenture have been satisfied in full, the Company (a) shall
not suspend or discontinue any payments pursuant to this
Agreement or the Note, (b) shall perform and observe all its
other agreements contained in this Agreement and the Note, and
(c) except as provided in Article VII hereof, shall not terminate
this Agreement or the Note for any cause. Nothing contained in
this Agreement shall be construed to release the Municipality
from the performance of any of its obligations and in the event
the Municipality shall fail to perform any such agreement on its
part, the Company may institute such action against the
Municipality as the Company may deem necessary to compel
performance, provided that no such action shall (i) violate the
agreements on the part of the Company contained in the first
sentence of this Section 3.7 or (ii) diminish the amounts
required to be paid by the Company pursuant to Section 3.6
hereof.
Section 3.8. Letter of Credit and Alternate Letter of
Credit.
(a) From the date of issuance of the Bonds to and
including the fifth anniversary of the issuance of the Bonds or
the effective date of the Fixed Interest Rate, the Company shall
provide security for payment of the principal of and interest on
the Bonds and for payment of the purchase price of Bonds
delivered to the Tender Agent pursuant to Section 202(d) or
Section 503 of the Indenture by causing the Letter of Credit to
be delivered to the Trustee. The Company hereby authorizes and
directs the Trustee to draw moneys under the Letter of Credit, in
accordance with its terms and the terms of the Indenture, to the
extent necessary to pay the principal of, premium if any, and
interest on the Bonds when due and to pay the purchase price of
Bonds as provided in the Indenture.
(b) The Company may, at its election and with the
consent of the Bank provide for one or more extensions of the
Letter of Credit beyond its then stated date of expiration. At
any time prior to the Trustee's giving of notice of redemption of
Bonds pursuant to Section 202(e) of the Indenture, the Company
may provide for the delivery of an Alternate Letter of Credit
which must have a term of at least one year from its date of
delivery provided that the Company must furnish to the Trustee
written evidence from Xxxxx'x if the Bonds are rated by Xxxxx'x,
and S&P, if the Bonds are rated by S&P, to the effect that it has
reviewed such Alternate Letter of Credit and that its
substitution for the Letter of Credit then in effect will not, of
itself, result in a reduction or withdrawal of its ratings of the
Bonds from those which then prevail, accompanied by an opinion of
Bond Counsel that the delivery of such Alternate Letter of Credit
is permitted under the Indenture and this Agreement and will not
adversely affect the exemption from federal income taxation of
interest on the Bonds.
ARTICLE IV
Particular Covenants of the Company
Section 4.1. Consent to Assignment to Trustee. The
Company acknowledges and consents to the assignment of the Note
and of the Municipality's rights hereunder (except the right to
receive payment for its expenses, the right to receive
indemnities and rights relating to any amendments to this
Agreement) to the Trustee pursuant to the Indenture except as
otherwise provided herein, the Company shall pay to the Trustee
all amounts payable under this Agreement and the Note, and the
Company acknowledges that the Trustee may enforce the rights,
remedies and privileges granted to the Municipality hereunder.
Section 4.2. Payment of Expenses of Issuance of Bonds.
In addition to its payment obligations under Section 3.6 of this
Agreement, the Company shall pay for all the reasonable costs and
shall be liable and pay for any recording expenses, legal fees,
printing expenses and other fees and expenses reasonably incurred
or to be incurred by or on behalf of the Commission, the
Municipality and the Trustee in connection with or as an incident
to the issuance and sale of the Bonds or any amendment or
supplement to this Agreement or the Indenture.
Section 4.3. Company to Maintain its Existence:
Conditions Under Which Exceptions Permitted. The Company shall
during the term of this Agreement maintain its corporate
existence and will be duly qualified to transact business in the
State of Indiana and shall not voluntarily take, or omit to take,
any action that would cause the Company to be dissolved, nor
shall the Company sell, lease transfer or otherwise dispose of
all or substantially all of its assets or consolidate with or
merge into another corporation or permit one or more other
corporations to consolidate with or merge into it except that the
Company may consolidate with or merge into another corporation
incorporated and existing under the laws of the United States of
America or one of the states of the United States of America or
permit one or more other corporations to consolidate with or
merge into it or sell or otherwise transfer to another such other
corporation all or substantially all of its assets as an entirety
and may thereafter dissolve, provided, that immediately after
such action there is no default under the Note, this Agreement or
the Indenture, and further provided that if the Company is not
the surviving, resulting or transferee corporation ("the
Survivor"), the Survivor is (a) qualified to do bushiness in the
State of Indiana and (b) shall expressly assume and agree to
perform all of the Company's obligations under this Agreement,
the Note and the Indenture.
Section 4.4. Further Assurances and Corrective
Instruments. The Municipality and the Company shall execute and
deliver, or cause to be executed and delivered, such supplements
hereto and further instruments as may reasonably be required for
carrying out the intention of or facilitating the performance of
this Agreement.
Section 4.5. Covenants of Company with Respect to Use
of Bond Proceeds. The Municipality is issuing the Bonds pursuant
to an exemption contained in the Code. It is the intention of
the parties that the interest on the Bonds remain excludable from
gross income for purposes of federal income taxation and to that
end the Company covenants with the Municipality and with the
Trustee for the benefit of the future holders of the Bonds, that
it will never, insofar as it is able, permit Bond proceeds to be
expended or utilized in such a manner as to cause the loss of the
exclusion claimed other than as a result of previously
unanticipated capital expenditures.
Section 4.6. Indemnification of Municipality and
Trustee. The Company shall indemnify and hold the Municipality
and the Trustee harmless against any claim, loss, liability or
expense incurred without negligence or bad faith or willful
misconduct on the part of the Municipality or the Trustee arising
out of or in connection with this Agreement, the Note or the
Indenture, including reasonable attorneys' fees and the costs and
expense of defense against any such claim or liability.
Section 4.7. Reports, Certificates and Other
Information The Company shall furnish to the Trustee:
(a) Annual Statements. As soon as available and in any
event within one hundred twenty days after the close of each
fiscal year of the Company ending after the date of this
Agreement, copies of the consolidated balance sheet of the
Company, and consolidated statements of income and retained
earnings and statements of consolidated cash flows of the Company
for such fiscal year, each of which shall be reviewed by the
Company's independent public accountants and shall set forth in
comparative form the figures for the preceding fiscal year, all
in reasonable detail.
(b) Quarterly Statements. As soon as available, and in any
event within sixty days after the close of each calendar quarter
ending after the date of this Agreement (except the last quarter
of each fiscal year), copies of the consolidated balance sheet of
the Company as of the end of such quarter, and consolidated
statements of income and retained earnings and statements of
consolidated cash flows of the Company for the portion of the
fiscal year ended as of the end of such quarter. All such
statements may be prepared internally and shall be accompanied by
a certificate of an appropriate officer of the Company that such
financial statements have been prepared in material conformity
with generally accepted accounting principles consistently
applied (except for changes in which the independent accountants
for the Company concur), and present fairly the financial
position of the Company as of the dates of such statements.
(c) No Default Certificate. Concurrently with providing
such financial statements, a certificate of the President, a
Vice-President or the Chief Financial Officer of the Company that
after reasonable investigation he has no knowledge of the
occurrence of any event of default under this Agreement or the
Indenture (or of any event that with the lapse of time or the
giving of notice would constitute an event of default), or if
such officer shall have obtained knowledge of any such event of
default, he shall disclose the same in such certificate and the
nature thereof.
Section 4.8. Insurance. Subject to Article V of this
Agreement, the Company shall maintain such insurance as may be
required by law and such other, to such extent and against such
hazards and liabilities, as is customarily maintained by
companies similarly situated.
Section 4.9. Taxes and Liabilities. Subject to Article
V of this Agreement, the Company shall pay when due all taxes,
assessments and other liabilities including trade accounts,
except such as are being contested in good faith and by
appropriate proceedings and for which appropriate reserves have
been established and, as to trade accounts, subject to industry
practices.
Section 4.10. Company to Furnish Notice of Fixed
Interest Rate and Mandatory Redemption Dates. The Company agrees
that, upon the determination of a Fixed Interest Rate for the
Series 1989 Bonds pursuant to the Indenture, the Company shall
cause notice of (i) the specific mandatory redemption dates or
serial maturities of such Series 1989 Bonds and (ii) the Fixed
Interest Rate applicable to such Series 1989 Bonds, to be given
to the Issuer, the Trustee, the Paying Agent, if any, and the
Remarketing Agent in accordance with the Indenture
Section 4.ll. Notices of Adjustment Dates, Rate
Determination Dates, Rate Change Dates, Interest Payment Dates
and LOC Termination Tender Dates. The Company shall, or shall
cause the Remarketing Agent to, make the designations and give
the written notices to the Persons to whom the Company or the
Remarketing Agent are therein required to give notice, as
provided in Sections 202 and 209 of the Indenture. In addition,
the Company shall, if required, deliver to the Trustee the
opinions of Bond Counsel referred to in Sections 202 and 209 of
the Indenture.
ARTICLE V
Maintenance, Taxes and Insurance
Section 5.1. Maintenance and Modifications of Project
by Company. The Company shall, during the Agreement Term and at
its own expense (a) keep the Project and the Project Site in as
reasonably safe condition as its operations shall permit, and (b)
keep the Project in good repair and in good operating condition,
making from time to time all necessary repairs thereto (including
external and structural repairs) and renewals and replacements
thereof. Subject to the provisions of this Agreement and the
Indenture, the Company may, also at its own expense, make from
time to time any additions, modifications or improvements to the
Project, including specifically additions and expansions to the
Project, as it may deem desirable for its business purposes that
do not materially adversely affect the structural integrity of
the Project or substantially reduce its value.
Section 5.2. Taxes, Other Governmental Charges and
Utility Charges. The Company shall promptly pay, as the same
become due, all taxes and governmental charges of any kind
whatsoever that may at any time be lawfully assessed or levied
against or with respect to the Project or the Project Site, or
any interest therein or any machinery, equipment or other
property installed or bought by the Company therein or thereon
(including, without limiting the generality of the foregoing, any
taxes levied upon or with respect to the revenues, income or
profits of the Company from the Project which if not paid, will
become a lien on the Project or the Project Site prior to or on a
parity with the lien of the Indenture and including all ad
valorem taxes lawfully assessed upon the Project or the Project
Site), all utility and other charges incurred in the operation,
maintenance, use, occupancy and upkeep of the Project or the
Project Site and all assessments and charges lawfully made by any
governmental body for public improvements that may be secured by
lien on the Project or the Project Site.
The Company may, at its expense and in its own name and
behalf, in good faith contest by appropriate proceedings any such
taxes, assessments and other charges and, in the event of any
such contest, may permit the taxes, assessments or other charges
so contested to remain unpaid during the period of such contest
and any appeal therefrom, provided during such period enforcement
of any such contested item shall be effectively stayed and
appropriate reserves shall be established.
Section 5.3. Insurance Required The Company shall
insure or cause to be insured during the Agreement Term the
Project and the Project Site, against such risks as are
customarily insured against by businesses of like size and type,
paying as the same become due all premiums in respect thereto,
including but not necessarily limited to comprehensive general
public liability insurance to the extent of $1,000,000 per
occurrence against liability for bodily injury, including death
resulting therefrom, and damage to property including loss of use
thereof occurring on or in any way related to the Project or the
Project Site or any part thereof and worker's compensation and
occupational disease coverage as required by the laws of the
State of Indiana.
Section 5.4. Application of Net Proceeds of Insurance.
The Net Proceeds of the insurance carried pursuant to the
provisions of Section 5.3 hereof shall be paid and applied as
provided in Section 6.1 hereof.
Section 5.5. Additional Provision Respecting Insurance.
All insurance required in Section 5.3 hereof shall be taken out
and maintained in generally recognized responsible insurance
companies selected by the Company and qualified to do business in
the State of Indiana. All policies evidencing such insurance
shall provide for payment to the Company.
A certificate, or certificates, of the insurers that
such insurance is in force and effect, together with copies of
the insurance policies, shall be deposited promptly with the
Trustee upon request and, prior to the expiration of any such
policy, the Company shall furnish the Trustee upon request with
evidence satisfactory to the Trustee that the policy has been
renewed or replaced, or is no longer required by this Agreement.
The insurance herein required may be contained in blanket
policies now or hereafter maintained by the Company.
ARTICLE VI
Damage, Destruction and Condemnation
Section 6.1. Damage and Destruction. Unless the
Company shall have exercised its option to prepay the Note in
full pursuant to the provisions of Section 7.4 hereof, if prior
to full payment of the Bonds (or provision for payment thereof
having been made in accordance with the provisions of the
Indenture) the Project is destroyed (in whole or in part) or is
damaged by fire or other casualty, the Company (a) shall promptly
repair, rebuild or restore the property damaged or destroyed to
substantially the same condition as it existed prior to the event
causing such damage or destruction, with such changes,
alterations and modifications (including the substitution and
addition of other property) as may be desired by the Company and
as will not impair operating unity or productive capacity or the
character of the Project, and (b) shall apply for such purpose so
much as may be necessary of any Net Proceeds of insurance
resulting from such claims for losses, as well as any additional
moneys of the Company necessary therefor.
Section 6.2 Condemnation. Unless the Company shall
have exercised its option to prepay the Note in full pursuant to
the provisions of Section 7.4 hereof, in the event that title to,
or the temporary use of, the Project or the Project Site or any
part thereof shall be taken under the exercise of the power of
eminent domain by any governmental body or by any person, firm or
corporation acting under governmental authority, the Company
shall be obligated to continue to make payments on the Note and
all other payments specified herein. The Company and the Trustee
shall cause the Net Proceeds received by them or either of them
from any award made in such eminent domain proceedings to be paid
to and held by the Trustee in a separate trust account, and to be
applied, at the option of the Company, in one or more of the
following ways as shall be directed in writing by the Company:
(a) The prompt repair, restoration, relocation,
modification or improvement of the Project and the Project Site,
to substantially the same condition as existed prior to the
exercise of said power of eminent domain, or
(b) Redemption of the Bonds pursuant to Section 7.4 hereof.
Unless the Company shall have exercised its option to
prepay the Note in full pursuant to the provisions of Section 7.4
hereof within the time period set forth therein, the condemnation
award should be applied as provided in (a) above.
ARTICLE VII
Prepayment of Note
Section 7.1. Optional Prepayment of Note. Prior to the
Conversion Date and so long as the Bonds are in a Short Period
(as defined in the Indenture), the Company may, at its option,
prepay the Note in whole or in part (but in whole multiples of
$100,000) at any time by paying to the Trustee a sum sufficient,
together with other funds in the Debt Service Fund and available
for that purpose, to pay (a) the principal of, and interest on
that portion of the Bonds then outstanding to be redeemed, and
(b) all reasonable and necessary fees and expenses of the
Trustee, the Tender Agent, the Remarketing Agent, and any paying
agent accrued and to accrue through the redemption date. After
the Conversion Date or at any time prior thereto when the Bonds
are in an Adjustment Period other than a Short Period (as defined
in the Indenture), the Company may prepay the loan made
hereunder, in whole or in part on any Interest Payment Date, upon
45 days' written notice to the Trustee, in a principal amount
equal to 100% of the principal amount of Bonds to be redeemed on
such Interest Payment Date, plus a premium on such principal
amount equal to the premium to be paid in connection with the
redemption of the Bonds as provided in Section 501(A)(2) of the
Indenture plus accrued interest to the redemption date.
Section 7.2. Mandatory Prepayment of Note in the Event
of a Determination of Taxability. The Company shall prepay the
amounts due under this Agreement and the Note in whole prior to
the expiration of this Agreement and prior to the full payment
(or provision for full payment) of the Bonds on the earliest
practicable date (selected by the Trustee) within one hundred
eighty (180) days following a Determination of Taxability (as
defined in the Indenture).
In the event of an obligation to prepay under this
Section 7.2, the Company shall pay to the Trustee a sum
sufficient, together with other funds deposited into the Debt
Service Fund and available for the purpose, to pay the principal
and interest on the principal of all the Bonds then outstanding
and all reasonable and necessary fees and expenses of the Trustee
and any paying agent accrued and to accrue through final payment
of the Bonds.
Section 7.3. Purchase of Bonds. The Company may at any
time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing such moneys to be provided to
the Tender Agent to be applied, at such time as they constitute
Eligible Moneys, to the purchase of Bonds delivered pursuant to
Section 202(d) or 503 of the Indenture, which Bonds shall, at the
direction of the Company, be delivered to the Trustee for
cancellation.
Section 7.4. Extraordinary Event Prepayment of the
Note. The Company may, at its option, prepay the Note in whole
but not in part, without redemption premium, within one year
following the occurrence of any of the events specified in
Article VI of this Agreement by paying the Trustee a sum
sufficient, together with other funds in the Debt Service Fund
and available for that purpose, to pay (a) the principal of and
interest upon all of the Bonds5 then outstanding, and (b) all
reasonable and necessary fees and expenses of the Trustee and the
paying agent accrued and to accrue through the redemption date.
Section 7.5. Notice of Prepayment. To exercise
prepayment under this Article VII, the Company shall give written
notice to the Trustee at the time specified in the Indenture.
ARTICLE VIII
Events of Default and Remedies
Section 8.1. Events of Default. The occurrence and
continuance of any of the following events shall constitute an
"event of default" hereunder:
(a) Default in the due and punctual payment of any
installment of principal of (whether at stated maturity, upon
required prepayment, acceleration or otherwise) or any payment of
interest or redemption premium on the Note;
(b) Failure by the Company to pay the Tender Price with
respect to the purchase price of the Bonds on the date such
purchase price is to be paid;
(c) The dissolution or liquidation of the Company unless
such dissolution or liquidation is permitted by this Agreement;
(d) Failure by the Company to observe and perform any
covenant, condition or agreement in this Agreement on its part to
be observed or performed excluding, however, any covenant,
condition or agreement that, it not observed, would result in an
event of default as described in Section 8.1 (a), (b) or (c) for
a period of thirty days after written notice, specifying the
failure and requesting that it be remedied, given to the Company
by the Trustee, unless the Trustee agrees in writing to an
extension of the time prior to its expiration; provided, however,
that with respect to this clause (d),if such failure of
performance shall be such that it cannot be corrected within such
period, it shall not constitute an event of default during the 90
day period beginning 31 days after the delivery of the above
described notice (but shall, if not corrected, constitute an
Event of Default thereafter) if: (i) such failure of performance,
in the reasonable opinion of the Trustee, is correctable without
material adverse effect on the Bonds (ii) corrective action is
instituted by or on behalf of the Company within such period and
(iii) such corrective action is diligently pursued until such
failure of performance is corrected. The Trustee may request
(and may rely upon) from the Company or the Municipality a
certificate to the effect that the Company or the Municipality
has instituted corrective action and will diligently pursue such
action and believes that its failure of performance can be
corrected through such action.
(e) A decree or order shall have been entered by a court of
competent jurisdiction constituting an order for relief under the
Bankruptcy Code or adjudging the Company insolvent or approving
as properly filed a petition seeking reorganization of the
Company under the Bankruptcy Code or any other federal or state
law relating to bankruptcy or insolvency or appointing a receiver
or decreeing or ordering the winding up or liquidation of the
affairs of the Company or the sequestration of a substantial part
of the property of the Company, and any such decree or order
shall remain in force undischarged and unstayed for period of
ninety days.
(f) The Company shall file a petition seeking relief under
the bankruptcy Code or shall suffer the imposition of an order
thereunder or shall institute or consent to the institution of
bankruptcy or insolvency proceedings against it or shall file a
petition or answer or consent seeking reorganization or relief
(other than as a creditor) under the Bankruptcy Code or any other
federal or state law relating to bankruptcy or insolvency or
shall consent to the filing of any such petition or shall consent
to the appointment of a receiver or shall make an assignment for
the benefit of creditors or shall admit in writing its inability
to pay its debts generally as they become due or shall fail to
pay its debts generally as they become due, or action shall be
taken by the Company in furtherance of any of the aforesaid
purposes.
(g) If the Trustee receives notice from the Bank on or
before the date or dates specified in the Letter of Credit or
Alternate Letter of Credit following a drawing on the Letter of
Credit or Alternate Letter of Credit for interest that it will
not reinstate to the stated amount of its Letter of Credit or
Alternate Letter of Credit an amount to cover such Interest.
(h) Receipt of Written Notice from the Bank that an event
of default as defined in the Reimbursement Agreement has occurred
and that the Letter of Credit or Alternate Letter of Credit, as
the case may be, will expire not less than 30 days after such
notice.
Section 8.2. Remedies on Default. Whenever any Event
of Default referred to in Section 8.1 shall have happened and be
continuing, the Trustee:
(a) Shall to the extent that the Indenture so requires or
permits, declare the Note and all amounts payable thereunder,
whether by acceleration of maturity or otherwise, to be
immediately due and payable.
(b) The Trustee may take whatever action may appear
necessary or desirable to collect the amounts due and to become
due under this Agreement and the Note, or to enforce performance
and observance of any obligation, agreement or covenant of the
Company under this Agreement and the Note.
Section 8.3. Application of Moneys. All moneys collected
by the Trustee under Section 8.2 shall be applied as follows:
FIRST: To pay any sums required to be paid by the Company
pursuant to this Agreement, the Note, the Indenture or the Bonds
other than principal, premium and interest on the Note or the
Bonds, including specifically any amounts required to be paid to
the United States of America pursuant to Section 148(f) of the
Code.
SECOND: To pay the whole amount then due, owing and unpaid
upon the Note for principal, premium, if any, and interest in
accordance with Section 705 of the Indenture. Payment shall be
made upon presentation of the Note and the notation on the Note
of the payment, if partially paid, or the surrender and
cancellation of the Note, if fully paid.
THIRD: To pay the Company, its successors or assigns, upon
the written request of the Company or to whosoever maybe lawfully
entitled to receive the same upon its written request, or as any
court of competent jurisdiction may direct.
Section 8.4. Remedies Cumulative. No remedy granted by
this Agreement is intended to be exclusive of any other remedy.
All available remedies shall be cumulative.
Section 8.5. Delay or Omission Not a Waiver. No delay
or omission of the Trustee to exercise any right or power
accruing upon any Event of Default shall impair the right or
power, or shall be construed to be a waiver of the Event of
Default or an acquiescence therein. Every power and remedy may
be exercised as often as the Trustee deems expedient.
Section 8.6. Remedies Subject to Provisions of Law.
All rights, remedies and powers provided by this Article may be
exercised only to the extent that their exercise does not violate
any applicable provision of law. All the provisions of this
Article are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to
the extent necessary so that they will not render this Agreement
invalid or unenforceable under the provisions of any applicable
law.
ARTICLE IX
Supplements and Amendments to this Agreement
Section 9.1. Supplements and Amendments to this
Agreement. Reference is made to Article X of the Indenture.
ARTICLE X
Miscellaneous
Section 10.1. Binding Effect This Agreement shall
inure to the benefit of and shall be binding upon the
Municipality, the Company and their respective successors and
assigns.
Section 10.2. Severability. In the event any provision
of this Agreement shall be held invalid or unenforceable by any
court of competent Jurisdiction, that holding shall not
invalidate or render unenforceable any other provisions hereof.
Section 10.3. Amounts Remaining in Debt Service Fund.
Any amounts remaining in the Debt Service Fund upon expiration or
termination of this Agreement in accordance with the Indenture
shall belong to and be paid to the Company by the Trustee.
Section 10.4. Amendments, Changes and Modifications.
After the Bonds are issued and before they are paid in full (or
provision for payment in fu11 is made), this Agreement may not be
amended, assigned or terminated without the written consent of
the Trustee.
Section 10.5. Execution in Counterparts. This
Agreement may be executed in several counterparts, each of which
shall be an original.
Section 10.6. Notices. All notices, certificates,
payments or other communications hereunder shall be sufficiently
given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or overnight
express mail addressed as follows: if to the Municipality, at
the Xxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention of its
Clerk-Treasurer; if to the Company, at 0000 Xxxxxxxxx Xxxx, X.X.
Xxx 0000, Xxxxxxxx, Xxxxxxxx 00000. Attention of its Chief
Financial Officer with a copy to the attention of its President;
or to such other address as may hereafter be furnished by notice.
Section l0.7. References to Bonds Ineffective After
Bonds are Paid. Upon payment in full of the Bonds (or provision
for payment thereof having been made in accordance with the
provisions of the Indenture) and payment of all fees and charges
of the Municipality, Trustee, Tender Agent, and any paying agent,
all references in this Agreement to the Bonds and the Trustee
shall be ineffective and neither the Trustee nor the holders of
the Bonds shall thereafter have any rights hereunder, except
those that shall have theretofore vested.
Section 10.8. Agreement for Benefit of Parties Hereto.
Nothing in this Agreement, express or implied, is intended to
give to any person other than the parties hereto and the holder
of the Note, any right, remedy or claim under or by reason of
this Agreement.
Section 10.9. Waiver. No waiver of any of the
provisions of this Agreement shall be effective and binding
unless set forth in a written notice and no waiver of one
provision shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such
waiver constitute a continuing waiver or a waiver of such
provision in any other instance.
Section 10.10. Captions and Table of Contents. The
captions herein and the Table of Contents are inserted only as a
matter of convenience and do not in any way define, limit,
construe or describe the scope or intent of this Agreement or any
section thereof or in any other way effect this Agreement.
Section 10.11. Survival of Covenants, Representations
and Warranties. All covenants, representations and warranties
made by the Company and the Municipality contained herein or in
any other document, certificate or instrument delivered in
connection with the sale of any of the Bonds shall be continuing
and shall survive delivery of the Bonds and the other
transactions contemplated by this Agreement and the Indenture.
Section 10.12. Applicable Law. This Agreement shall
be governed by and construed in accordance with the Laws of the
State of Indiana.
Section 10.11. Holidays. Where a date of payment on
the Note is not a Business Day, then payment may be made on the
first Business Day thereafter.
IN WITNESS WHEREOF, the Municipality and the Company
have caused this Agreement to be executed all as of the date
first above written.
CITY OF LOGANSPORT, INDIANA
By: Xxxx X. Xxxxx
Xxxx X. Xxxxx, Mayor
(SEAL)
ATTEST:
Xxxx Xxxx Xxxxxxx
Xxxx Xxxx Xxxxxxx, Clerk-Treasurer
ELCO INDUSTRIES, INC.
By: August X. XxXxxx
August X. XxXxxx, Chief Financial
Officer
ATTEST:
Xxxxxxx X. Heal
Xxxxxxx X. Heal, Secretary
EXHIBIT A
(Description of the Project)
The Project is the acquisition of and installation of
the following machinery and equipment at the Company's existing
manufacturing facility that is located within the boundaries of
the Issuer:
Description Estimated Cost
Heat treat furnace and
related equipment $1,000,000
Multi-slide forming machine 1,000,000
Presses 300,000
CNC machinery centers 150,000
Wire EDM machine 200,000
Custom design secondary
operations machines 350,000
Total $3,000,000
EXHIBIT B
(Form of Note)
ELCO INDUSTRIES, INC.
PROMISSORY NOTE
FOR VALUE RECEIVED, Elco Industries, Inc. (the
"Company"), a Delaware Corporation, promises to pay to The City
of Logansport, Indiana, or registered assigns, on or before 2
o'clock p.m. (Logansport time) (a) on October 1, 2003,a sum
which, together with other moneys available therefor in the Debt
Service Fund under the Trust Indenture (the "Indenture") dated as
of December 1, 1989, between the City of Logansport, Indiana (the
"Municipality"), and INB National Bank, as trustee (the
"Trustee"), will equal the principal amount of the Bonds defined
below) which becomes due on that date; (b) on the first business
day of each month commencing January 2, 1990, a sum which,
together with other moneys available therefor in the Debt Service
Fund under the Indenture, will equal the interest which becomes
due on the Bonds outstanding on that date; (c) on the dates fixed
for redemption or tender of the Bonds in whole or in part, the
principal of and premium, if any, and interest on the Bonds to be
redeemed to the date fixed for redemption; and (d) immediately
upon a declaration of acceleration of the maturity of the Bonds
by the Trustee, the principal, interest and premium, if any, to
the date of declaration of acceleration.
All payments of principal, premium, if any, and interest
are to be made directly to the Trustee (or subsequent registered
owner) for the account of the Municipality in immediately
available funds. This Note is security for the payment of the
Municipality's Economic Development Revenue Bonds, (Elco
Industries, Inc., Project) issued pursuant to the Indenture (the
"Bonds"). All of the terms, conditions, and provisions of the
Indenture are incorporated into this Note by reference.
This Note is issued pursuant to the Loan Agreement (the
"Agreement") dated as of December 1, 1989, between the
Municipality and the Company and is entitled to the benefits, and
is subject to the conditions, thereof. The obligation of the
Company to make the payments required under this Note is absolute
and unconditional without any defense or right of setoff,
counterclaim or recoupment by reason of any default by the
Municipality under the Agreement or under any other agreement
between the Company and the Municipality or out of any
indebtedness or liability at any time owing to the Company by the
Municipality or for any other reason.
This Note is subject to prepayment under the terms and
conditions, and in the amounts, provided in Article VII of the
Agreement.
This Note is transferable only upon the books of the
Trustee kept for that purpose at its principal office in its
capacity as Note Registrar, upon surrender for transfer of this
Note at the principal office of the Trustee, endorsed for
transfer by the registered owner or accompanied by an assignment
executed by the registered owner or his authorized attorney.
Upon such surrender for transfer, the Trustee shall validate and
deliver in the name of the transferee a new Note which shall have
been executed by the Company.
If the Company fails to make any of the payments under
this Note, the amount unpaid shall continue as an obligation of
the Company until fully paid and shall bear interest(to the
extent permitted by law) until paid at a per annum rate of
interest equal to the per annum rate then in effect on the Bonds.
If an "Event of Default" occurs under Section 8.1 of the
Agreement, the principal of this Note may be declared due and
payable as provided in, Article VIII of the Agreement.
Where a date of payment is not a business day in the City
of Indianapolis, Indiana, Rockford, Illinois, Chicago, Illinois,
or New York, New York. then payment may be made on the first
business day thereafter.
All amounts payable under the terms of this Note are
payable without relief from valuation and appraisement laws and
with attorneys' fees. The maker and any endorsers waive demand,
presentment for payment, protest, notice of protest and notice of
non-payment or dishonor and consent to any and all extensions of
time for payment without notice.
All terms used in this Note which are defined in the
Agreement and not in this Note shall have the meanings assigned
to them in the Agreement.
IN WITNESS WHEREOF, the Company has caused this Note to
be executed and delivered this _ day of December, 1989.
ELCO INDUSTRIES. INC.
By: August X. XxXxxx
August X. XxXxxx, Chief Financial
Officer
ATTEST:
Xxxxxxx X. Heal
Xxxxxxx X. Heal, Secretary
LOAN AGREEMENT
THERMOPLASTICS, INC.
AND
CITY OF MISHAWAKA, INDIANA
DATED AS OF DECEMBER 1, 1989
The rights of the City of Mishawaka, Indiana, under this Agreement
(except the
right to receive payment for its expenses, the right to receive
indemnities, and
rights relating to the amendment of this Agreement) have been
assigned to INB
National Bank, Indianapolis, Indiana, as Trustee under a Trust
Indenture dated
as of the date of this Agreement, between the City and the Trustee.
TABLE OF CONTENTS
Section Page
RECITALS................................... .................
1
AGREEMENT.......................................................
1
ARTICLE I
Definitions and Exhibits
1.1. Terms Defined..............................................
2
1.2. Rules of Interpretation....................................
3
1.3. Exhibits...................................................
4
ARTICLE II
The Loan and The Project
2.1. Municipality's Representations, Warranties and Covenants...
4
2.2. Company's Representations, Warranties and Covenants........
4
2.3. The Project................................................
7
ARTICLE III
The Bonds, Use of Proceeds, The Note
3.1. Agreement to Issue Bonds...................................
7
3.2. Disbursements from Construction Fund.......................
8
3.3. Company is Required to Pay in the Event Construction Fund
is Insufficient............................................
8
3.4. Investment of Construction Fund and Bond Fund Moneys.......
8
3.5. Covenants with Respect to Arbitrage........................
9
3.6. Loan Payments and Other Amounts Payable....................
9
3.7. Obligation of Company Unconditional........................
11
3.8. Letter of Credit and Alternate Letter of Credit............
12
ARTICLE IV
Particular Covenants of the Company
4.1. Consent to Assignment to Trustee...........................
12
4.2. Payment of Expenses of Issuance of Bonds...................
12
4.3. Company to Maintain its Existence; Conditions Under
Which Exceptions Permitted.................................
13
4.4. Further Assurances and Corrective Instruments..............
13
4.5. Covenants of Company with Respect to Use of Bond Proceeds..
13
4.6. Indemnification of Municipality and Trustee................
13
4.7. Certificate of No Default..................................
13
4.8. Insurance..................................................
14
4.9. Taxes and Liabilities......................................
14
4.10 Company to Furnish Notice of Fixed Interest Rate and
Mandatory Redemption Dates.................................
14
4.11. Notice of Adjustment Dates, Rate Determination Dates,
Rate Change Dates, Interest Payment Dates and LOC
Termination Tender Dates...................................
14
ARTICLE V
Maintenance, Taxes and Insurance
5.1. Maintenance and Modifications of Project by Company.........
14
5.2. Taxes, Other Governmental Charges and Utility Charges.......
14
5.3. Insurance Required..........................................
15
5.4. Application of Net Proceeds of Insurance....................
15
5.5. Additional Provision Respecting Insurance...................
15
ARTICLE VI
Damage, Destruction and Condemnation
6.1. Damage and Destruction......................................
16
6.2. Condemnation................................................
16
ARTICLE VII
Prepayment of Note
7.1. Optional Prepayment of Note.................................
16
7.2. Mandatory Prepayment of Note in the Event of a
Determination of Taxability.................................
17
7.3. Purchase of Bonds...........................................
17
7.4. Extraordinary Event Prepayment of the Note..................
17
7.5. Notice of Prepayment........................................
17
ARTICLE VIII
Events of Default and Remedies
8.1. Events of Default...........................................
18
8.2. Remedies on Default.........................................
19
8.3. Application of Moneys.......................................
19
8.4. Remedies Cumulative.........................................
20
8.5. Delay or Omission Not a Waiver..............................
20
8.6. Remedies Subject to Provisions of Law.......................
20
ARTICLE IX
Supplements and Amendments to this Agreement
9.1. Supplements and Amendments to this Agreement................
20
ARTICLE X
Miscellaneous
10.1. Binding Effect.............................................
20
10.2. Severability...............................................
20
10.3. Amounts Remaining in Bond Fund.............................
20
10.4. Amendments, Changes and Modifications......................
20
10.5. Execution in Counterparts..................................
21
10.6. Notices....................................................
21
10.7. References to Bonds Ineffective After Bonds are Paid.......
21
10.8. Agreement for Benefit of Parties Hereto....................
21
10.9. Waiver.....................................................
21
10.10 Captions and Table of Contents.............................
21
10.11 Survival of Covenants, Representations and warranties......
21
10.12 Applicable Law.............................................
22
10.13 Holidays...................................................
22
EXHIBIT A: Description of Project
EXHIBIT B: Form of Note
LOAN AGREEMENT
This LOAN AGREEMENT has been executed as of December 1, 1989, by
and between
THERMOPLASTICS, INC., an Indiana corporation (the "Company"), and
the CITY OF
MISHAWAKA, INDIANA (the "Municipality").
RECITALS
1. Definitions of certain of the terms used in these Recitals are
set out in
Article I hereof and Article I of the Indenture.
2. The Company is pursuing the acquisition, construction,
installation and
equipping of the Project which is to be located on the Project
Site.
3. To finance a portion of the costs of the Project, the Company is
borrowing
from the Municipality funds derived from the sale of the Bonds, and
the Company,
as evidence of its obligation to repay the funds, is issuing to the
Municipality
its Note.
4. Pursuant to IC 36-7-11.9 and IC 36-7-12, the Municipality is
obtaining funds
to loan to the Company through the sale of $3,500,000 aggregate
principal amount
of City of Mishawaka, Indiana Economic Development Revenue Bonds,
Series 1989
(Elco Industries, Inc./Thermoplastics, Inc. Project).
5. Pursuant to a Trust Indenture dated as of the date of this
Agreement, between
the Municipality and INB National Bank, Indianapolis, Indiana, as
Trustee, the
Municipality will issue the Bonds and, as security for the payment
of the Bonds
and the performance of the obligations of the Municipality and the
Company under
the Indenture and the Note, the Municipality will assign the Note
and its rights
under this Agreement (except the right to receive payment for its
expenses, the
right to receive indemnities and rights relating to any amendments
to this
Agreement) to the Trustee and the Company will cause to be issued
to the Trustee
an irrevocable direct pay letter of credit of The Mitsui Bank,
Limited, dated
December 14, 1989. The Bonds will be payable solely out of the
revenues and other
amounts derived from the Note and under this Agreement and from the
Letter of
Credit and shall not, in any respect, be a general obligation of,
an indebtedness
of, or constitute a charge against the general credit of the
Municipality, the
State of Indiana, or any political subdivision thereof.
AGREEMENT
In consideration of the premises and the mutual covenants contained
herein, the
Company and the Municipality agree as follows:
ARTICLE I
Definitions and Exhibits
Section 1.1. Terms Defined. As used in this Agreement, the
following terms shall
have the following meanings unless the context otherwise requires:
"Act" means IC 36-7-11.9 and IC 36-7-12, as from time to time
amended.
"Agreement" means this Loan Agreement and any amendment and
supplement thereto.
"Agreement Term" means the period commencing on the date of this
Agreement and,
subject to the provisions of this Agreement, ending on such date as
the Bonds
have been fully paid and retired or provision for such payment made
as provided
in the Indenture.
"Authorized Company Representative" means any officer designated to
act on behalf
of the Company by written certificate furnished to the Municipality
and the
Trustee containing the specimen signature of the person and signed
on behalf of
the Company by its President, any of its Vice Presidents, its Chief
Financial
Officer, its Secretary or any of its Assistant Secretaries.
The certificate may designate an alternate or alternates. The
Authorized Company
Representative may be an employee of the Company.
"Bonds" means the $3,500,000 aggregate principal amount of the City
of Mishawaka,
Indiana Economic Development Mortgage Revenue Bonds, Series 1989
(Elco
Industries, Inc./Thermoplastics, Inc. Project).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Mishawaka Economic Development Commission,
a development
commission created by the Municipality pursuant to the Act.
"Company" means Thermoplastics, Inc., an Indiana corporation, and
its successors
and assigns.
"Counsel" means an attorney-at-law (who may be counsel to the
Trustee, the
Municipality or the Company).
"Debt Service Fund" means the fund created in Section 402 of the
Indenture.
"Indenture" means the Trust Indenture, dated as of the date of this
Agreement,
between the Municipality and INB National Bank, Indianapolis,
Indiana, as
Trustee, relating to the Bonds, and any indenture supplemental
thereto.
"Letter of Credit" means the irrevocable direct pay letter of
credit of The
Mitsui Bank, Limited dated December 14, 1989 issued to the Trustee
for the
benefit of the bondholders under a Reimbursement Agreement among
said Bank, the
Trustee and the Company dated as of December 1, 1989.
"Loan" means the $3,500,000 loan in principal amount by the
Municipality to the
Company of the proceeds from the sale of the Bonds.
"Municipality" or "Issuer" means the City of Mishawaka, Indiana,
and any
successor.
"Net Proceeds" means, when used with respect to any insurance
proceeds or any
condemnation award, the amount remaining after deducting all
expenses (including
attorneys' fees) incurred in the collection of such proceeds or
award from the
gross proceeds thereof.
"Note" or "Promissory Note" means the Note of the Company in
substantially the
form of Exhibit B hereto and any Note issued in exchange therefor.
"Project" means the expansion of and the acquisition, construction,
and equipping
of certain economic development facilities, all as set forth on
Exhibit A
attached hereto.
"Project Cost" means and includes all those costs related to the
Project which
are permitted to be financed under the Code, the Act, this
Agreement and the
Indenture and which do not result in a loss of the exclusion from
gross income
for federal income tax purposes of the interest on the
Bonds under the Code.
"Project Fund" means the fund created in Section 302 of the
Indenture.
"Reimbursement Agreement" means the Reimbursement Agreement between
the Company
and The Mitsui Bank, Limited dated as of December 1, 1989, under
which the Letter
of Credit will be issued.
"Trustee" means the trustee at the time serving under the
Indenture.
Section 1.2. Rules of Interpretation. For all purposes of this
Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) "This Agreement" means this instrument as originally executed
and as it may
from time to time be supplemented or amended.
(b) The words "herein," "hereof" 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.
(c) The terms defined in this Article have the meanings assigned to
them in this
Article and include the plural as well as the singular.
(d) All accounting terms not otherwise defined herein have the
meanings assigned
to them in accordance with generally accepted accounting
principles.
(e) Any terms not defined herein but defined in the Indenture shall
have the same
meaning herein.
(f) The terms defined elsewhere in this Agreement shall have the
meanings therein
prescribed for them.
Section 1.3. Exhibits. The following Exhibits are a part of this
Agreement:
Exhibit A: Description of the Project.
Exhibit B: Form of Note, form of Note Registrar's Certificate of
Validation and
form of Assignment.
ARTICLE II
The Loan and The Project
Section 2.1. Municipality's Representations. Warranties and
Covenants.
(a) The Municipality represents and warrants that:
(i) The Municipality is a duly organized and existing municipal
corporation and
political subdivision of the State of Indiana, with full power and
authority
under the Act to enter into the transactions contemplated by this
Agreement and
to carry out its obligations hereunder.
(ii) The Municipality has duly authorized the issuance, execution
and delivery
of the Bonds and the execution and delivery of this Agreement.
(b) The Municipality covenants that:
(i) The Municipality shall not take any action to interfere with
any obligation
it may have with respect to the Bonds, the proceedings authorizing
the Bonds or
this Agreement.
(ii) The Municipality shall provide funds from the proceeds from
the sale of the
Bonds for the financing of a portion of the costs of the Project,
and shall
secure the payment of the Bonds by assigning this Agreement (except
the right to
receive payment for its expenses, the right to receive indemnities
and rights
relating to any amendment of this Agreement) and the Note to the
Trustee pursuant to the Indenture.
Section 2.2. Company's Representations. Warranties and Covenants.
The Company
makes the following representations and warranties (all as of the
date on which
this Agreement has been executed) and in addition, makes the
following covenants:
(a) It is a duly organized and validly existing corporation in good
standing
under the laws of the State of Indiana and is duly qualified to
transact business
in Indiana, has the power and authority to own its properties and
assets and to
carry on its business as now being conducted and as now
contemplated, and has
full power and authority to issue the Note and to execute and
deliver this
Agreement, the Reimbursement Agreement and all other agreements
contemplated by
this Agreement to which the Company is a party; all actions
necessary for the
execution and delivery of the Note, this Agreement and the
Indenture have been
taken; and the Note will be a valid and binding obligation of the
Company.
(b) The execution, delivery and performance of this Agreement, the
Note and the
Reimbursement Agreement will not conflict with or result in a
breach of, or a
default under, the Company's Articles of Incorporation, By-Laws, or
any material
agreement or instrument to which the Company is a party or by which
it is bound
(excepting, however such agreements or instruments with respect to
which the
Company has been required to and has obtained waivers or consents)
or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the
property or assets of the Company, except for the lien of the
Indenture and
liens, charges or encumbrances in favor of The Mitsui Bank, Limited
to secure the
obligations of the Company under the Reimbursement Agreement.
(c) At least 95% of the proceeds from the Bonds (including any
income earned on
the investment of such proceeds) will be used for the acquisition
of land,
construction of an addition to and expansion of the Company's
existing
manufacturing facility and the acquisition and installation of
machinery and
equipment for the Project. No more than 2% of the proceeds of the
Bonds will
be used for the costs of issuance of the Bonds, including any
broker's,
underwriter's or placement agent's discount or other compensation.
Costs of
issuance paid from the Bond proceeds together with any other
expenditures which
are not described in the first sentence of this subsection will be
not more than
5% of the proceeds of the Bonds. No part of the proceeds are to be
used by the
Company, directly or indirectly, as working capital or to finance
inventory.
(d) The Project and all components thereof (other than land) will
consist of
property of a character subject to the allowance for depreciation
under the Code.
(e) The indication of interest by the Issuer on the date of
adoption of the
inducement resolution to issue its Bonds and lend the proceeds to
the Company for
the purposes set forth herein has encouraged the Company to acquire
and construct
the Project, and will promote diversification of economic
development and create
new or preserve existing job opportunities in the area. The
Project, or any
components thereof which is to be paid for out of the proceeds of
the Bonds, had
not been acquired, constructed, equipped, furnished or
rehabilitated by the
Company prior to the adoption of the inducement resolution of the
Common Council
of the Issuer with respect to the Project.
(f) The sum of the following does not exceed $10,000,000:
(i) the aggregate face amount of any outstanding issues of
obligations (other
than the Bonds) exempt from taxation under Sections 103 and 144 of
the Code, the
proceeds from which were or will be used primarily with respect to
the Project
or other facilities (a) located within the County of Cass (but not
in any
incorporated municipality) or within the Municipality and (b) the
principal user
of which is or will be the Company or any other principal user of
the Project or
related person or persons within the meaning of Section 144 of the
Code;
(ii) the aggregate principal amount of the Bonds; and
(iii) the sum of all capital expenditures (within the meaning of
Section 144(a)
of the Code (and, pursuant to said section, specifically excluding
capital
expenditures made from the proceeds of bonds described in paragraph
(i) and (ii)
above)) relating to the facilities described in subsection (i) and
made during
the period beginning three years prior to the date on which the
Bonds are
issued and ending on the date on which the Bonds are issued.
(g) The "average maturity" of the Bonds (taking into account their
issue prices)
does not exceed 120% of the "average reasonably expected economic
life" of the
facilities to be financed with the proceeds of the Bonds (taking
into account the
respective cost of such facilities), all as determined in
accordance with the
provisions of Section 147(b) of the Code.
(h) No portion of the proceeds of the Bonds will be used to provide
any facility
the primary purpose of which is retail food and beverage service,
automobile
sales or services, or the provision of recreation or entertainment,
any private
or commercial golf course, country club, massage parlor, tennis
club, skating
facility (including roller skating, skateboard and ice skating),
racquet sports
facility (including any handball or racquetball court), hot tub
facility, suntan
facility, racetrack, airplane, sky box or other private luxury box,
health club
facility, facility used for gambling, or facility used for the sale
of alcoholic
beverages.
(i) The Bonds are not and shall not be "federally guaranteed" as
defined in
Section 149(b) of the Code.
(J) No portion of the proceeds of the Bonds will be used to acquire
land (or an
interest therein) or to acquire any property (or an interest
therein) where the
first use of such property is not pursuant to such acquisition.
(k) The aggregate authorized face amount of the Bonds allocated to
any "test
period beneficiary," as such term is defined in Section 144 of the
Code, when
increased by the outstanding tax-exempt industrial development
bonds of such
beneficiary, does not and shall not exceed $40,000,000.
(1) The execution, delivery and performance by the Company of this
Loan Agreement
and the Note do not require the consent or approval of, the giving
of notice of,
the registration with, or the taking of any other action in respect
of, any
federal, state or other governmental authority or agency, not
previously obtained
or performed.
(m) No litigation, arbitration proceedings or governmental
proceedings are
pending or threatened against the Company which would, if adversely
determined,
materially and adversely affect the right and power of the Company
to execute and
deliver this Loan Agreement and all documents and instruments
related hereto or
contemplated hereby to which the Company is a party or signatory.
(n) Except with respect to future capital expenditures, the Company
will take no
action which would (and will omit no action reasonably within its
power, the
omission of which would) cause the interest on the Bonds to become
includable for
Federal income tax purposes in the gross income of any Bondholder,
other than a
Bondholder who is a "substantial user" of the Project or a "related
person"
within the meaning and for the purpose of Section 147 of the Code.
While this
Agreement does not restrict the Company as to future capital
expenditures (and
such expenditures, if sufficiently large, could cause the interest
on the bonds
to become includable in gross income for Federal income tax
purposes), the
Company presently believes and expects that it will comply with the
applicable
Code limitations on future capital expenditures.
Section 2.3. The Project. The Company shall cause the Project to be
acquired,
constructed, installed and equipped with all reasonable dispatch in
accordance
with the Company's specifications and directions. It is the
Company's present
intention to use the Project, or to cause it to be used, throughout
the term of
this Agreement as an Economic development facility" within the
meaning of the
Act. The failure or inability of the Company to use the Project, or
to cause it
to be used, for the intended purposes shall not affect in any way
the Company's
obligations under this Agreement or the Note and shall not be
deemed a breach or
default under this Agreement as long as the use does not affect the
validity of
the Bonds or result in the interest on the Bonds becoming
includable for Federal
income tax purposes in the gross income of a Bondholder.
ARTICLE III
The Bonds, Use of Proceeds, The Note
Section 3.1. Agreement to Issue Bonds. In order to provide funds to
make the
Loan, the Municipality shall issue the Bonds and sell them to the
purchaser or
purchasers thereof and deposit the proceeds with the Trustee as
follows:
(a) Into the Debt Service Fund, the accrued interest, if any, paid
by the
purchasers of the bonds; and
(b) Into the Project Fund, the balance of the proceeds.
Section 3.2. Disbursements from Project Fund. The Indenture
authorizes the
Trustee to make payments from the Project Fund to pay Project Costs
and to
reimburse the Company for Project Costs paid by it. Payments shall
be made upon
receipt of requisitions signed by an Authorized Company
Representative stating:
(a) the requisition number, (b) the name and address of the person,
firm or
corporation to whom payment is due or to whom the Company has made
payment for
which reimbursement is to be made, (c) the amount to be paid, and
(d) that each
obligation has been properly incurred, is a Project Cost that is a
proper charge
against the Project Fund, and has not been the basis of any
previous withdrawal.
The requisition shall be accompanied by copies of such invoices,
cancelled checks
(or other evidence of payment) and similar documentation as the
Trustee may
reasonably request.
After the Trustee has paid all amounts requisitioned from the
Project Fund and
has received a certificate from the Company stating that the
Project has been
completed, or that the Project cannot or will not be completed for
the reasons
specified therein, any balance in the Project Fund shall, subject
to compliance
with the Act, be transferred to the Purchase Fund and disbursed in
accordance
with the provisions of the Indenture relating thereto; provided,
that at least
95% of the amount actually expended has been expended on property
of a character
subject to the allowance for depreciation under the Code
("qualified
facilities"). If such balance, plus any amounts actually expended
other than on
qualified facilities, exceeds the permissible 5% insubstantial
amount of the Bond
proceeds, the Company shall so notify the Trustee in writing, which
written
notification shall include detailed instructions as to the
disposition of such
balance, including instructions that the Trustee shall deposit such
excess into
a special escrow account within the Purchase Fund and detailed
instructions
pursuant to which the Trustee shall invest and use any amount so
deposited to
redeem or retire the Bonds, or portions thereof, in accordance with
Internal Revenue Service Rev. Proc. 79-5 and Rev. Proc. 81-22 and
any subsequent
amendments, modifications or replacements thereof at the earliest
redemption date
occurring after such deposit.
Section 3.3. Company is Required to Pay in the Event Project Fund
is
Insufficient. In the event the moneys in the Project Fund
available for payment
of the Project Costs should not be sufficient to pay the costs of
acquiring,
constructing, installing and equipping the Project in full, the
Company shall
complete the Project and pay that portion of the costs of the
Project in excess
of the moneys available in the Construction Fund.
Section 3.4. Investment of Project Fund and Debt Service Fund
Moneys. Moneys held
as part of the Debt Service Fund shall be invested by the Trustee
at the
direction of the Company in direct obligations of the United States
of America
or in other obligations backed by the full faith and credit of the
United States
of America. Subject to the provisions of Section 405 of the
Indenture, any moneys
held as part of the Construction Fund shall be invested by the
Trustee at the
direction of the Company in (a) obligations of the United States of
America, or
(b) obligations the principal and interest of which are guaranteed
by the United
States of America, or (c) obligations of any agency of the United
States of
America, or (d) certificates of deposit or bankers acceptances
issued by, or
interest bearing time or demand deposits with, any bank, trust
company or
national banking association (including the Trustees any affiliate
of the Trustee
and any paying agent) having a combined capital and surplus of at
least
$10,000,000, or (e) contracts with any entity meeting the
requirements specified
in (d) above for the purchase and sale of Obligations of the type
specified in
(a) or (b) above (including contracts with the Trustee, any
affiliate of the
Trustee and any paying agent), or (f) commercial paper which has
been classified
for rating purposes by Xxxxx'x Investors Service, Inc., as Prime-2
or by Standard
and Poor's Corporation as A-2 (other than commercial paper of the
Company or any
"related person"), or (g) obligations the interest on which is
excludable from
gross income for Federal income tax purposes and that are rated at
least "A"
"MIG"-2" or Prime-2 by Moody's Investor's Service, Inc., or "A" or
"A-2" by
Standard and Poor's Corporation or an equivalent rating by any
other national
rating agency, or (h) funds, mutual funds, common trust funds or
any similar
entity whose investments consist of the foregoing.
Section 3.5. Covenants with Respect to Arbitrage. The Company and
the
Municipality covenant to each other and to and for the benefit of
the holders of
the Bonds that no use will be made of the proceeds from the issue
and sale of the
Bonds which, if such use could have been reasonably expected on the
date of issue
of the Bonds, would have caused the Bonds to be classified as
arbitrage bonds
within the meaning of Section 103(b)(2) of the Code. As long as any
Bonds are
outstanding, the Municipality and the Company shall not violate the
requirements
of the Code relating to arbitrage bonds, and any regulations
thereunder including
the requirement of Section 148 of the Code relating to the rebate
of certain
amounts to the United States government. The Company will provide
to the Trustee
instructions relating to the permissible investment of Bond
proceeds and
instructions and computations (using investment information
provided by the
Trustee) relating to the amount required to be rebated to the
United States, all
in conformity with Section 148 of the Code. The Company reserves
the right,
however, to make a ny investment of proceeds permitted under the
laws of the
State of Indiana, if the sections of the Code relating to arbitrage
bonds or the
regulations thereunder are repealed or relaxed or are held void by
final
judgment of a court of competent jurisdiction, so long as the
investment would
not result in making the interest on the Bonds includable in the
gross income of
the holders thereof for purposes of Federal income taxation. In
making
investments, the Company may rely on an opinion of counsel of
recognized
competence in such matters. The Trustee may make any and all such
investments
through its own bond department.
Section 3.6 Loan Payments and Other Amounts Payable.
(a) Concurrently with the sale of the Bonds, the Company shall
execute and
deliver the Note to the Municipality, pursuant to which the Company
shall make
payments sufficient to pay when due (whether at maturity, upon call
for
redemption, by acceleration or otherwise) the principal of and
premium, if any,
and interest on the Bonds. The Note shall be issued as a fully
registered note
substantially in the form attached hereto as Exhibit B. The Trustee
shall act as
Note Registrar and shall cause books for the registration and for
the transfer
of the Note to be kept at its principal office. Upon surrender for
transfer of
the Note at the Principal Office of the Trustee, endorsed for
transfer by the
registered owner or accompanied by an assignment executed by the
registered owner
or his authorized attorney, the Trustee shall validate and deliver
in the name
of the transferee a new Note which shall have been executed by the
Company. The
person in whose name the Note is registered shall be deemed the
absolute owner
thereof for all purposes, and references to the holder of the Note
shall mean the
registered owner thereof. The obligation of the Company to make any
payment in
respect of the loan made hereunder shall be reduced by the amount
of any
reduction under the Indenture of the corresponding payment to be
made by the
Issuer thereunder including any reduction due to payments made by
the Bank to the
Trustee in respect of the principal of premium, if any, or interest
on the Bonds
when due pursuant to the Letter of Credit.
(b) The Company shall pay or cause to be paid to the Tender Agent
as agent for
the Trustee amounts equal to the amounts to be paid to Owners of
Bonds pursuant
to Section 403 of the Indenture, on the dates the purchase price of
Bonds
delivered to the Tender Agent is to be paid from the sources
described in Section
403 of the Indenture. The obligation of the Company to make the
payments required
to be made under this Section 3.6 shall be reduced by the amount of
any moneys
otherwise available for such payment, including particularly, any
payment made
by the Bank to the Trustee in respect of the purchase price of
Bonds pursuant to
the Letter of Credit.
(c) The Company shall also pay when due (i) the reasonable and
necessary fees and
expenses of the Trustee (including any reasonable and necessary
fees and expenses
in its capacity as Note Registrar) the Tender Agent and any paying
agent for
services in connection with the Bonds as specified in Section 802
of the
Indenture and (ii) the reasonable and necessary fees and expenses
of the
Municipality, including reasonable attorneys' fees, in connection
with any
default of the Company under this Agreement or the Note.
(d) If the Company fails to make any of the payments required in
this Section 3.6
or in the Note, all unpaid items or installments shall continue as
an obligation
of the Company until fully paid, and the Company shall pay the same
with interest
thereon (to the extent permitted by law) until paid at a per annum
rate of
interest equal to the per annum rate then in effect on the Bonds.
(e) All payments under this Section 3.6, other than with xxxxxxx.xx
(b) above,
shall be made by the Company directly to the Trustee or as directed
by the
Trustee in immediately available funds and the Trustee shall
deposit all such
payments into the Debt Service Fund, provided that payments under
Section 3.6(c)
shall be made by the Company directly to the person entitled
thereto. The amount
of any money in the Debt Service Fund which is either proceeds from
the sale of
any Bonds or earnings on investments made pursuant to the
provisions of the
Indenture which has been set aside by the Trustee, at the request
of the Company,
for payments of principal, whether at maturity or upon redemption,
of the Bonds
shall be credited against the obligation of the Company to pay the
principal of
the Note. The amount of any money in the Debt Service Fund which is
either
proceeds from the sale of any Bonds or earnings on investments made
pursuant to
the provisions of the Indenture which has been set aside by the
Trustee for
payments of interest on the Bonds shall be credited against the
obligation of the
Company to pay interest on the Note. The principal amount of any
Bonds purchased
by the Company and delivered to the Trustee, or purchased by the
Trustee and
cancelled, shall be credited against the obligation of the Company
to pay the
principal of the Note.
(f) If on any principal or interest payment date the balance in the
Debt Service
Fund is insufficient to make the required payments of principal of
and premium,
if any, and interest on the Bonds on that date, the Company upon
notice shall pay
forthwith any deficiency to the Trustee.
(g) The Company shall not be obligated to make any further payments
under this
Section 3.6, and the Company's liability to make payments under
this Section 3.6
shall cease, at any time that the entire principal of and premium,
if any, and
interest on the Bonds shall have been fully paid in accordance with
their terms
and the provisions of Section 1101 of the Indenture (including,
without
limitation, principal, interest to maturity or earliest redemption
date, as the
case may be, expenses of redemption, redemption premiums, and fees
and expenses
of the Municipality, the Trustee, the Tender Agent, and any paying
agent and any
other costs and fees required to be paid by the Company pursuant to
this
Agreement), or at any time that there shall be in the Debt Service
Fund an amount
sufficient to pay or redeem the Bonds in accordance with the
provisions
of Section 1101 of the Indenture (including, without limitation,
principal,
interest to maturity or earliest redemption date, as the case may
be, expenses
of redemption and redemption premiums, and fees and expenses of the
Municipality,
the Trustee and any paying agent and any other costs and fees
required to be paid
by the Company pursuant to this Agreement) and all other
requirements of Section
1101 of the Indenture have been satisfied in full.
Section 3.7. Obligation of Company Unconditional. The obligation of
he Company
to make the payments and to perform and observe its other
agreements pursuant to
this Agreement and the Note shall be absolute and unconditional and
shall not be
subject to reduction or delay by set-off, counterclaim, abatement
or otherwise.
Until such time as the principal of and premium, if any, and
interest on the
Bonds shall have been fully paid or provision for the payment
thereof shall
have been made in accordance with Section 1101 of the Indenture
(including,
without limitation, principal, interest to maturity or earliest
redemption date,
as the case may be, expenses of redemption, redemption premiums,
and fees and
expenses of the Municipality, the Trustee, the Tender Agent, and
any paying agent
and any other costs and fees required to be paid by the Company
pursuant to this
Agreement), and all other requirements of Section 1101 of the
Indenture have been
satisfied in full, the Company (a) shall not suspend or discontinue
any payments
pursuant to this Agreement or the Note, (b) shall perform and
observe all its
other agreements contained in this Agreement and the Note, and (c)
except as
provided in Article VII hereof, shall not terminate this Agreement
or the Note
for any cause. Nothing contained in this Agreement shall be
construed to release
the Municipality from the performance of any of its obligations;
and in the event
the Municipality shall fail to perform any such agreement on its
part, the
Company may institute such action against the Municipality as the
Company may
deem necessary to compel performance, provided that no such action
shall (i)
violate the agreements on the part of the Company contained in the
first sentence
of this Section 3.7 or (ii) diminish the amounts required to be
paid by the
Company pursuant to Section 3.6 hereof.
Section 3.8. Letter of Credit and Alternate Letter of Credit.
(a) From the date of issuance of the Bonds to and including the
fifth anniversary
of the issuance of the Bonds or the effective date of the Fixed
Interest Rate,
the Company shall provide security for payment of the principal of
and interest
on the Bonds and for payment of the purchase price of Bonds
delivered to the
Tender Agent pursuant to Section 202(d) or Section 503 of the
Indenture by
causing the Letter of Credit to be delivered to the Trustee. The
Company hereby
authorizes and directs the Trustee to draw moneys under the Letter
of Credit, in
accordance with its terms and the terms of the Indentures to the
extent necessary
to pay the principal of, premium if any, and interest on the Bonds
when due and
to pay the purchase price of Bonds as provided in the Indenture.
(b) The Company may, at its election and with the consent of the
Bank provide for
one or more extensions of the Letter of Credit beyond its then
stated date of
expiration. At any time prior to the Trustee's giving of notice of
redemption of
Bonds pursuant to Section 202(e) of the Indenture, the Company may
provide for
the delivery of an Alternate Letter of Credit which must have a
term of at least
one year from its date of delivery provided that the Company must
furnish to the
Trustee written evidence from Moody's if the Bonds are rated by
Moody's, and S&P,
if the Bonds are rated by S&P, to the effect that it has reviewed
such Alternate
Letter of Credit and that its substitution for the Letter of Credit
then in
effect will not, of itself, result in a reduction or withdrawal of
its ratings
of the Bonds from those which then prevail, accompanied by an
opinion of Bond
Counsel that the delivery of such Alternate Letter of Credit is
permitted under
the Indenture and this Agreement and will not adversely affect the
exemption from
federal income taxation of interest on the Bonds.
ARTICLE IV
Particular Covenants of the Company
Section 4.1. Consent to Assignment to Trustee. The Company
acknowledges and
consents to the assignment of the Note and of the Municipality's
rights hereunder
(except the right to receive payment for its expenses, the right to
receive
indemnities and rights relating to any amendments to this
Agreement) to the
Trustee pursuant to the Indenture. Except as otherwise provided
herein, the
Company shall pay to the Trustee all amounts payable under this
Agreement and the
Note, and the Company acknowledges that the Trustee may enforce the
rights,
remedies and privileges granted to the Municipality hereunder.
Section 4.2. Payment of Expenses of Issuance of Bonds. In addition
to its payment
obligations under Section 3.6 of this Agreement, the Company shall
pay for all
the reasonable costs and shall be liable and pay for any recording
expenses,
legal fees, printing expenses and other fees and expenses
reasonably incurred or
to be incurred by or on behalf of the Commission, the Municipality
and the
Trustee in connection with or as an incident to the issuance and
sale of the
Bonds or any amendment or supplement to this
Agreement or the Indenture.
Section 4.3. Company to Maintain its Existence: Conditions Under
Which Exceptions
Permitted. The Company shall during the term of this Agreement
maintain its
corporate existence and will be duly qualified to transact business
in the State
of Indiana and shall not voluntarily take, or omit to take, any
action that would
cause the Company to be dissolved, nor shall the Company sell,
lease transfer or
otherwise dispose of all or substantially all of its assets or
consolidate with
or merge into another corporation or permit one or more other
corporations to
consolidate with or merge into it; except that the Company may
consolidate with
or merge into another corporation incorporated and existing under
the laws of the
United States of America or one of the states of the United States
of America or
permit one or more other corporations to consolidate with or merge
into it or
sell or otherwise transfer to another such other corporation all or
substantially
all of its assets as an entirety and may thereafter dissolve,
provided, that
immediately after such action there is no default under the Note,
this Agreement
or the Indenture, and further provided that if the Company is not
the surviving,
resulting or transferee corporation ("the Survivor"), the Survivor
is (a)
qualified to do business in the State of Indiana and (b) shall
expressly assume
and agree to perform all of the Company's obligations under this
Agreement, the
Note and the Indenture.
Section 4.4. Further Assurances and Corrective Instruments. The
Municipality and
the Company shall execute and deliver, or cause to be executed and
delivered,
such supplements hereto and further instruments as may reasonably
be required for
carrying out the intention of or facilitating the performance of
this Agreement.
Section 4.5. Covenants of Company with Respect to Use of Bond
Proceeds.
The Municipality is issuing the Bonds pursuant to an exemption
contained in the
Code. It is the intention of the parties that the interest on the
Bonds remain
excludable from gross income for purposes of federal income
taxation and to that
end the Company covenants with the Municipality and with the
Trustee for the
benefit of the future holders of the Bonds, that it will never,
insofar as it is
able, permit Bond proceeds to be expended or utilized in such a
manner as to
cause the loss of the exclusion claimed other than as a result of
previously
unanticipated capital expenditures.
Section 4.6. Indemnification of Municipality and Trustee. The
Company shall
indemnify and hold the Municipality and the Trustee harmless
against any claim,
loss, liability or expense incurred without negligence or bad faith
or willful
misconduct on the part of the Municipality or the Trustee arising
out of or in
connection with this Agreement, the Note or the Indenture,
including reasonable
attorneys' fees and the costs and expense of defense against any
such claim
or liability.
Section 4.7. Certificate of No Default. The Company shall annually
furnish to the
Trustee a certificate of the President, a Vice-President or the
Chief Financial
Officer of the Company that after reasonable investigation he has
no knowledge
of the occurrence of any event of default under this Agreement or
the Indenture
(or of any event that with the lapse of time or the giving of
notice would
constitute an event of default), or if such officer shall have
obtained knowledge
of any such event of default, he shall disclose the same in such
certificate and the nature thereof.
Section 4.8. Insurance. Subject to Article V of this Agreement,
the Company
shall maintain such insurance as may be required by law and such
other insurances
to such extent and against such hazards and liabilities, as is
customarily
maintained by companies similarly situated.
Section 4.9. Taxes and Liabilities. Subject to Article V of this
Agreement, the
Company shall pay when due all taxes, assessments and other
liabilities including
trade accounts, except such as are being contested in good faith
and by
appropriate proceedings and for which appropriate reserves have
been established
and, as to trade accounts, subject to industry practices .
Section 4.10. Company to Furnish Notice of Fixed Interest Rate and
Mandators
Redemption Dates. The Company agrees that, upon the determination
of a Fixed
Interest Rate for the Series 1989 Bonds pursuant to the Indenture,
the Company
shall cause notice of (i) the specific mandatory redemption dates
or serial
maturities of such Series 1989 Bonds and (ii) the Fixed Interest
Rate applicable
to such Series 1989 Bonds, to be given to the Issuer, the Trustee,
the Paying
Agent, if any, and the Remarketing Agent in accordance with the
Indenture.
Section 4.11. Notice of Adjustment Dates. Rate Determination Dates.
Rate Change
Dates. Interest Payment Dates and LOC Termination Tender Dates.
The Company
shall, or shall cause the Remarketing Agent to, make the
designations and give
the written notices to the Persons to whom the Company or the
Remarketing Agent
are therein required to give notice, as provided in Sections 202
and 209 of the
Indenture. In addition, the Company shall, if required, deliver to
the Trustee
the opinions of Bond Counsel referred to in Sections 202 and 209 of
the
Indenture.
ARTICLE V
Maintenance, Taxes and Insurance
Section 5.1. Maintenance and Modifications of Project by Company.
The Company
shall, during the Agreement Term and at its own expense (a) keep
the Project and
the Project Site in as reasonably safe condition as its operations
shall permit,
and (b) keep the Project in good repair and in good operating
condition, making
from time to time all necessary repairs thereto (including external
and
structural repairs) and renewals and replacements thereof. Subject
to the
provisions of this Agreement and the Indenture, the Company may,
also at its own
expense, make from time to time any additions, modifications or
improvements to
the Project, including specifically additions and expansions to the
Project, as
it may deem desirable for its business purposes that do not
materially adversely
affect the structural integrity of the Project or substantially
reduce its value.
Section 5.2. Taxes. Other Governmental Charges and Utility Charges.
The Company
shall promptly pay, as the same become due, all taxes and
governmental charges
of any kind whatsoever that may at any time be lawfully assessed or
levied
against or with respect to the Project or the Project Site, or any
interest
therein or any machinery, equipment or other property Installed or
bought by the
Company therein or thereon (including, without limiting the
generality of the
foregoing, any taxes levied upon or with respect to the revenues,
income or
profits of the Company from the Project which if not paid, will
become a lien on
the Project or the Project Site prior to or on a parity with the
lien of the
Indenture and including all ad valorem taxes lawfully assessed upon
the Project
or the Project Site), all utility and other charges incurred in the
operation,
maintenance, use, occupancy and upkeep of the Project or the
Project Site and all
assessments and charges lawfully made by any governmental body for
public
improvements that may be secured by lien on the Project or the
Project Site.
The Company may, at its expense and in its own name and behalf, in
good faith
contest by appropriate proceedings any such taxes, assessments and
other charges
and, in the event of any such contest, may permit the taxes,
assessments or other
charges so contested to remain unpaid during the period of such
contest and any
appeal therefrom, provided during such period enforcement of any
such contested
item shall be effectively stayed and appropriate reserves shall be
established.
Section 5.3. Insurance Required. The Company shall insure or cause
to be insured
during the Agreement Term the Project and the Project Site, against
such risks
as are customarily insured against by businesses of like size and
type, paying
as the same become due all premiums in respect thereto, Including
but not
necessarily limited to comprehensive general public liability
insurance to the
extent of $1,000,000 per occurrence against liability for bodily
injury,
including death resulting therefrom, and damage to property
including loss of use
thereof occurring on or in any way related to the Project or the
Project Site or
any part thereof and worker's compensation and occupational disease
coverage as
required by the laws of the State of Indiana.
Section 5.4. Application of Net Proceeds of Insurance. The Net
Proceeds of the
insurance carried pursuant to the provisions of Section 5.3 hereof
shall be paid
and applied as provided in Section 6.1 hereof.
Section 5.5. Additional Provision Respecting Insurance. All
insurance required
in Section 5.3 hereof shall be taken out and maintained in
generally recognized
responsible insurance companies selected by the Company and
qualified to do
business in the State of Indiana. All policies evidencing such
insurance shall
provide for payment to the Company.
A certificate, or certificates, of the insurers that such insurance
Is in force
and effect, together with copies of the insurance policies, shall
be deposited
promptly with the Trustee upon request and, prior to the expiration
of any such
policy, the Company shall furnish the Trustee upon request with
evidence
satisfactory to the Trustee that the policy has been renewed or
replaced, or
is no longer required by this Agreement. The insurance herein
required may be
contained in blanket policies now or hereafter maintained by the
Company.
ARTICLE VI
Damage, Destruction and Condemnation
Section 6.1. Damage and Destruction. Unless the Company shall have
its option
to prepay the Note in full pursuant to the provisions of Section
7.4 hereof, if
prior to full payment of the Bonds (or provision for payment
thereof having been
made in accordance with the provisions of the Indenture) the
Project is destroyed
(in whole or in part) or is damaged by fire or other casualty, the
Company (a)
shall promptly repair, rebuild or restore the property damaged or
destroyed to
substantially the same condition as it existed prior to the event
causing such
damage or destruction, with such changes, alterations and
modifications
(including the substitution and addition of other property) as may
be desired by
the Company and as will not impair operating unity or productive
capacity or the
character of the Project, and (b) shall apply for such purpose so
much as may be
necessary of any Net Proceeds of insurance resulting from such
claims for
losses, as well as any additional moneys of the Company necessary
therefor.
Section 6.2. Condemnation. Unless the Company shall have exercised
its option
to prepay the Note in full pursuant to the provisions of Section
7.4 hereof, in
the event that title to, or the temporary use of, the Protect or
the Project Site
or any part thereof shall be taken under the exercise of the power
of eminent
domain by any governmental body or by any person, firm or
corporation acting
under governmental authority, the Company shall be obligated to
continue to
make payments on the Note and all other payments specified herein.
The Company
and the Trustee shall cause the Net Proceeds received by them or
either of them
from any award made in such eminent domain proceedings to be paid
to and held by
the Trustee in a separate trust account, and to be applied, at the
option of the
Company, in one or more of the following ways as shall be directed
in writing by
the Company:
(a) The prompt repair, restoration, relocation, modification or
improvement of
the Project and the Project Site, to substantially the same
condition as existed
prior to the exercise of said power of eminent domain, or
(b) Redemption of the Bonds pursuant to Section 7.4 hereof.
Unless the Company shall have exercised its option to prepay the
Note in full
pursuant to the provisions of Section 7.4 hereof within the time
period set forth
therein, the condemnation award should be applied as provided in
(a) above.
ARTICLE VII
Prepayment of Note
Section 7.1. Optional Prepayment of Note. Prior to the Conversion
Date and so
long as the Bonds are in a Short Period (as defined in the
Indenture), the
Company may, at its option, prepay
the Note in whole or in part (but in whole multiples of $100,000)
at any time by
paying to the Trustee a sum sufficient, together with other funds
in the Debt
Service Fund and available for that purpose, to pay (a) the
principal of, and
interest on that portion of the Bonds then outstanding to be
redeemed, and (b)
all reasonable and necessary fees and expenses of the Trustee, the
Tender Agent,
the Remarketing Agent, and any paying agent accrued and to accrue
through the
redemption date. After the Conversion Date or at any time prior
thereto when the
Bonds are in an Adjustment Period other than a Short Period (as
defined in the
Indenture), the Company may prepay the loan made hereunder, in
whole or in art,
on any Interest Payment Date, upon 45 days' written notice to the
Trustees in a
principal amount equal to 100% of the principal amount of Bond to
be redeemed on
such Interest Payment Date, plus a premium on such principal amount
equal to the
premium to be paid in connection with the redemption of the Bonds
as provided in
Section 501(A)(2) of the Indenture plus accrued interest to the
redemption date.
Section 7.2. Mandatory Prepayment of Note in the Event of a
Determination of
Taxability. The Company shall prepay the amounts due under this
Agreement and
the Note in whole prior to the expiration of this Agreement and
prior to the full
payment (or provision for full payment) of the Bonds on the
earliest practicable
date (selected by the Trustee) within one hundred eighty (180) days
following a
Determination of Taxability (as defined in the Indenture). In the
event of an
obligation to prepay under this Section 7.2, the Company shall pay
to the
Trustee a sum sufficient, together with other funds deposited into
the Debt
Service Fund and available for the purpose, to pay the principal
and interest on
the principal of all the Bonds then outstanding and all reasonable
and necessary
fees and expenses of the Trustee and any paying agent accrued and
to accrue
through final payment of the Bonds.
Section 7.3. Purchase of Bonds. The Company may at any time, and
from time to
time, furnish moneys to the Trustee accompanied by a notice
directing such moneys
to be provided to the Tender Agent to be applied, at such time as
they constitute
Eligible Moneys, to the purchase of Bonds delivered pursuant to
Section 202(d)
or 503 of the Indenture, which Bonds shall, at the direction of the
Company, be
delivered to the Trustee for cancellation.
Section 7.4. Extraordinary Event Prepayment of the Note. The
Company may, at its
option, prepay the Note in whole but not in part, without
redemption premium,
within one year following the occurrence of any of the events
specified in
Article VI of this Agreement by paying the Trustee a sum
sufficient, together
with other funds in the Debt Service Fund and available for that
purpose, to pay
(a) the principal of and interest upon all of the Bonds then
outstanding, and
(b) all reasonable and necessary fees and expenses of the Trustee
and the paying
agent accrued and to accrue through the redemption date.
Section 7.5. Notice of Prepayment. To exercise prepayment under
this Article
VII, the Company shall give written notice to the Trustee at the
time specified
in the Indenture.
ARTICLE VIII
Events of Default and Remedies
Section 8.1. Events of Default. The occurrence and continuance of
any of the
following events shall constitute an "event of default" hereunder:
(a) Default in the due and punctual payment of any installment of
principal of
(whether at stated maturity, upon required prepayment acceleration
or otherwise)
or any payment of interest or redemption premium on the Note;
(b) Failure by the Company to pay the Tender Price with respect to
the purchase
price of the Bonds on the date such purchase price is to be paid.
(c) The dissolution or liquidation of the Company unless such
dissolution or
liquidation is permitted by this Agreement;
(d) Failure by the Company to observe and perform any covenant,
condition or
agreement in this Agreement on its part to be observed or performed
excluding,
however, any covenant, condition or agreement that, if not
observed, would result
in an event of default as described in Section 8.1(a), (b) or (c)
for a period
of thirty days after written notice, specifying the failure and
requesting that
it be remedied, given to the Company by the Trustee, unless the
Trustee agrees
in writing to an extension of the time prior to its expiration;
provided,
however, that with respect to this clause (d), if such failure of
performance
shall be such that it cannot be corrected within such period, it
shall not
constitute an event of default during the 90 day period beginning
31 days after
the delivery of the above described notice (but shall, if not
corrected,
constitute an Event of Default thereafter) if: (i) such failure of
performance,
in the reasonable opinion of the Trustee, is correctable without
material adverse
effect on the Bonds; (ii) corrective action is instituted by or on
behalf of the
Company within such period; and (iii) such corrective action is
diligently
pursued until such failure of performance is corrected. The Trustee
may request
(and may rely upon) from the Company or the Municipality a
certificate to the
effect that the Company or the Municipality has instituted
corrective action and
will diligently pursue such action and believes that its failure of
performance
can be corrected through such action.
(e) A decree or order shall have been entered by a court of
competent
jurisdiction constituting an order for relief under the Bankruptcy
Code or
adjudging the Company insolvent or approving as properly filed a
petition seeking
reorganization of the Company under the Bankruptcy Code or any
other federal or
state law relating to bankruptcy or insolvency or appointing a
receiver or
decreeing or ordering the winding up or liquidation of the affairs
of the Company
or the sequestration of a substantial part of the property of the
Company, and
any such decree or order shall remain in force undischarged and
unstayed for
period of ninety days.
(f) The Company shall file a petition seeking relief under the
Bankruptcy Code
or shall suffer the imposition of an order thereunder or shall
institute or
consent to the institution of bankruptcy or insolvency proceedings
against it or
shall file a petition or answer or consent seeking reorganization
or relief
(other than as a creditor) under the Bankruptcy Code or any other
federal
or state law relating to bankruptcy or insolvency or shall consent
to the filing
of any such petition or shall consent to the appointment of a
receiver or shall
make an assignment for the benefit of creditors or shall admit in
writing its
inability to pay its debts generally as they become due or shall
fail to pay its
debts generally as they become due, or action shall be taken by the
Company
in furtherance of any of the aforesaid purposes.
(g) If the Trustee receives notice from the Bank on or before the
date or dates
specified in the Letter of Credit or Alternate Letter of Credit
following a
drawing on the Letter of Credit or Alternate Letter of Credit for
interest that
it will not reinstate to the stated amount of its Letter of Credit
or Alternate
Letter of Credit an amount to cover such interest.
(h) Receipt of Written Notice from the Bank that an Event of
Default as defined
in the Reimbursement Agreement has occurred and that the Letter of
Credit or
Alternate Letter of Credit, as the case may be, will expire not
less than 30 days
after such notice.
Section 8.2. Remedies on Default. Whenever any Event of Default
referred to in
Section 8.1 shall have happened and be continuing, the Trustee:
(a) Shall to the extent that the Indenture so requires or permits,
declare the
Note and all amounts payable thereunder, whether by acceleration of
maturity or
otherwise, to be immediately due and payable.
(b) The Trustee may take whatever action may appear necessary or
desirable to
collect the amounts due and to become due under this Agreement and
the Note, or
to enforce performance and observance of any obligation, agreement
or covenant
of the Company under this Agreement and the Note.
Section 8.3. Application of Moneys. All moneys collected by the
Trustee under Section 8.2 shall be applied as follows:
FIRST: To pay any sums required to be paid by the Company pursuant
to this
Agreement, the Note, the Indenture or the Bonds other than
principal, premium and
interest on the Note or the Bonds, including specifically any
amounts required
to be paid to the United States of America pursuant to Section
148(f) of the
Code.
SECOND: To pay the whole amount then due, owing and unpaid upon the
Note for
principal, premium, if any, and interest in accordance with Section
705 of the
Indenture. Payment shall be made upon presentation of the Note and
the notation
on the Note of the payment, if partially paid, or the surrender and
cancellation
of the Note, if fully paid.
THIRD: To pay the Company, its successors or assigns, upon the
written request
of the Company or to whosoever may be lawfully entitled to receive
the same upon
its written request, or as any court of competent jurisdiction may
direct.
Section 8.4. Remedies Cumulative. No remedy granted by this
Agreement is
intended to be exclusive of any other remedy. All available
remedies shall be
cumulative.
Section 8.5. Delay or Omission Not a Waiver. No delay or omission
of the Trustee
to exercise any right or power accruing upon any Event of Default
shall impair
the right or power, or shall be construed to be a waiver of the
Event of Default
or an acquiescence therein. Every power and remedy may be
exercised as often as
the Trustee deems expedient.
Section 8.6. Remedies Subject to Provisions of Law. All rights,
remedies and
powers provided by this Article may be exercised only to the extent
that their
exercise does not violate any applicable provision of law. All the
provisions
of this Article are intended to be subject to all applicable
mandatory provisions
of law which may be controlling and to be limited to the extent
necessary so that
they will not render this Agreement invalid or unenforceable under
the provisions
of any applicable law.
ARTICLE IX
Supplements and Amendments to this Agreement
Section 9.1. Supplements and Amendments to this Agreement.
Reference is made to
Article X of the Indenture.
ARTICLE X
Miscellaneous
Section 10.1. Binding Effect. This Agreement shall inure to the
benefit of and
shall be binding upon the Municipality, the Company and their
respective
successors and assigns.
Section 10.2. Severability. In the event any provision of this
Agreement shall
be held invalid or unenforceable by any court of competent
jurisdictions that
holding shall not invalidate or render unenforceable any other
provisions hereof.
Section 10.3. Amounts Remaining in Debt Service Fund. Any amounts
remaining in
the Debt Service Fund upon expiration or termination of this
Agreement in
accordance with the Indenture shall belong to and be paid to the
Company by the
Trustee.
Section 10.4. Amendments. Changes and Modifications. After the
Bonds are issued
and before they are paid in full (or provision for payment in full
is made), this
Agreement may not be amended, assigned or terminated without the
written consent
of the Trustee.
Section 10.5. Execution in Counterparts. This Agreement may be
executed in
several counterparts, each of which shall be an original.
Section 10.6. Notices. All notices, certificates, payments or
other
Communications hereunder shall be sufficiently given and shall be
deemed given
vixen delivered or mailed by registered or certified mail, postage
prepaid, or
overnight express mail addressed as follows: if to the
Municipality, at the City
Hall, 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention of
its City-Clerk;
if to the Company, at 0000 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000,
Attention of its President; or to such other address as may
hereafter be
furnished by notice.
Section 10.7. References to Bonds Ineffective After Bonds are Paid.
Upon payment
in full of the Bonds (or provision for payment thereof having been
made in
accordance with the provisions of the Indenture) and payment of nil
fees and
charges of the Municipality, Trustee, Tender Agent, and any .paying
agent, all
references in this Agreement to the Bonds and the Trustee shall be
ineffective
and neither the Trustee nor the holders of the Bonds shall
thereafter have any
rights hereunder, except those that shall have theretofore vested.
Section 10.8. Agreement for Benefit of Parties Hereto. Nothing in
this
Agreement, express or implied, is intended to give to any person
other than the
parties hereto and the holder of the Note, any right, remedy or
claim under or
by reason of this Agreement.
Section 10.9. Waiver. No waiver of any of the provisions of this
Agreement shall
be effective and binding unless set forth in a written notice and
no waiver of
one provision shall be deemed or shall constitute a waiver of any
other provision
hereof (whether or not similar) nor shall such waiver constitute a
continuing
waiver or a waiver of such provision in any other Instance.
Section 10.10. Captions and Table of Contents. The captions herein
and the Table
of Contents are inserted only as a matter of convenience and do not
in any way
define, limit, construe or describe the scope or intent of this
Agreement or any
section thereof or in any other way affect this Agreement.
Section 10.11. Survival of Covenants. Representations and
Warranties. All
covenants, representations and warranties made by the Company and
the
Municipality contained herein or in any other document, certificate
or instrument
delivered in connection with the sale of any of the Bonds shall be
continuing and
shall survive delivery of the Bonds and the other transactions
contemplated by
this Agreement and the Indenture.
Section 10.12. Applicable Law. This Agreement shall be governed by
and construed
in accordance with the laws of the State of Indiana.
Section 10.13. Holidays. Where a date of payment on the Note is
not A Business
Day, then payment may be made on the first Business Day thereafter.
IN WITNESS WHEREOF, the Municipality and the Company have caused
this Agreement
to be executed all as of the date first above written.
CITY OF MISHAWAKA, INDIANA
(SEAL) By:
Xxxxxx X. Xxxxxxx, Mayor
ATTEST:
Xxxxx X. Xxxxx, City Clerk
THERMOPLASTICS, INC.
By:
August X. XxXxxx
ATTEST:
Xxxxxxx X. Heal, Secretary
EXHIBIT A
(Description of the Project)
The Project is an addition to and expansion of the Company's
existing
manufacturing facility in Mishawaka, Indiana, more particularly
described as
follows:
Description Estimated Cost
Land - 2.9 acres $ 30,000
Parking lot 25,000
(1) Building - 30,000 sq. ft. 558,000
Peripherals (ventilation,
landscaping, fencing, etc.) 37,000
-----------
$ 650,000
Plastic injection molding
machines, including
associated robotics,
grinders, loaders and
hoppers 2,850,000
----------
$3,500,000
EXHIBIT B
(Form of Note)
THERMOPLASTICS, INC.
PROMISSORY NOTE
FOR VALUE RECEIVED, Thermoplastics, Inc. (the "Company"), an
Indiana Corporation,
promises to pay to The City of Mishawaka, Indiana, or registered
assigns, on or
before 2 o'clock p.m. (Mishawaka time) (a) on October 1, 2003, a
sum which,
together with other moneys available therefor in the Debt Service
Fund under the
Trust Indenture (the Indenture") dated as of December 1, 1989,
between the City
of Mishawaka, Indiana (the Municipality"), and INB National bank.
as trustee (the
"Trustee"), will equal the principal amount of the Bonds (defined
below) which
becomes due on that date; (b) on the first business day of each
month commencing
January 2, 1990, a sum which, together with other moneys available
therefor in
the Debt Service Fund under the Indenture, will equal the Interest
which becomes
due on the Bonds outstanding on that date; (,) on the dates fixed
for redemption
or tender of the Bonds in whole or in part, the principal of and
premium, if any,
and interest on the Bonds to be redeemed to the date fixed for
redemption; and
(d) immediately upon a declaration of acceleration of the maturity
of the Bonds
by the Trustee, the Principals interest and premium, if any, to the
date of
declaration of acceleration.
All payments of principal, premium, if any, and interest are to be
made directly
to the Trustee (or subsequent registered owner) for the account of
the
Municipality in immediately available funds. This Note is security
for the
payment of the Municipality's Economic Development Revenue Bonds,
Series 1989
(Elco Industries, Inc./Thermoplastics, Inc. Project) issued
pursuant to tile
Indenture (the "Bonds"). All of the terms, conditions and
provisions of tile
Indenture are incorporated into this Note by reference.
This Note is issued pursuant to the Loan Agreement (the
"Agreement") dated as of
December 1, 1989, between the Municipality and the Company and is
entitled to the
benefits, and is subject to the conditions, thereof. The obligation
of the
Company to make the payments required under this Note is absolute
and
unconditional without any defense or right of setoff, counterclaim
or
recoupment by reason of any default by the Municipality under the
Agreement or
under any other agreement between the Company and the Municipality
or out of any
indebtedness or liability at any time owing to the Company by the
Municipality
or for any other reason.
This Note is subject to prepayment under the terms and conditions,
and in the
amounts, provided in Article VII of the Agreement.
This Note is transferable only upon the books of the Trustee kept
for that
purpose at its principal office in its capacity as Note Registrar,
upon surrender
for transfer of this Note at the principal office of the Trustee,
endorsed for
transfer by the registered owner or accompanied by an assignment
executed by the
registered owner or his authorized attorney. Upon such surrender
for transfer,
the Trustee shall validate and deliver in the name of the
transferee a new Note
which shall have been executed by the Company.
If the Company fails to make any of the payments under this Note,
the amount
unpaid shall continue as an obligation of the Company until fully
paid and shall
bear interest (to the extent permitted by law) until paid at a per
annum rate of
interest equal to the per annum rate then in effect on the Bonds.
If an "Event of Default" occurs under Section 8.1 of the Agreement,
the principal
of this Note may be declared due and payable as provided in Article
VIII of the
Agreement.
Where a date of payment is not a business day in the City of
Indianapolis,
Indiana, Rockford, Illinois, Chicago, Illinois, or New York, New
York, then
payment may be made on the first business day thereafter.
All amounts payable under the terms of this Note are payable
without relief from
valuation and appraisement laws and with attorneys' fees. The maker
and any
endorsers waive demand, presentment for payment, protest, notice of
protest And
notice of non-payment or dishonor and consent to any and all
extensions of time
for payment without notice.
All terms used in this Note which are defined in the Agreement and
not in this
Note shall have the meanings assigned to them in the Agreement.
IN WITNESS WHEREOF, the Company has caused this Note to be executed
and delivered
this day of December, 1989.
THERMOPLASTICS, INC.
By:
ATTEST:
Xxxxxxx X. Heal, Secretary
