LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is entered into as of
April 1, 1999, by and between LONGVIEW INDUSTRIAL CORPORATION
(the "Issuer"), a nonstock nonprofit industrial development
corporation duly created and existing under the Constitution and
laws of the State of Texas , and XXXXXXX INDUSTRIES, INC. (the
"Company"), a Missouri corporation, as borrower;
W I T N E S S E T H:
That the parties hereto, intending to be legally bound
hereby and for and in consideration of the mutual agreements
herein contained, DO HEREBY AGREE, as follows:
ARTICLE I
DEFINITIONS AND CERTAIN RULES OF INTERPRETATION
Section 1.1. Definitions. In addition to the words and
terms elsewhere defined herein, the following words and terms as
used herein shall have the following meanings unless the context
or use clearly indicates another or different meaning or intent,
and any other words and terms defined in the Indenture shall have
the same meanings when used herein as assigned them in the
Indenture unless the context or use clearly indicates another or
different meaning or intent:
"Act" means the Development Corporation Act of 1979, Article
5190.6, Vernon's Texas Civil Statutes, as amended.
"Bank" means NationsBank, N.A., in its capacity as the
issuer of the Letter of Credit, and its successors in such
capacity and their assigns, and if a Substitute Letter of Credit
is issued, the issuer thereof.
"Bank Documents" means the Reimbursement Agreement and the
Pledge Agreement.
"Bank Representative" means each person at the time
designated to act on behalf of the Bank by written certificate
furnished to the Company and the Trustee containing the specimen
signature of each such person and signed on behalf of the Bank by
a Vice President, Assistant Vice President or its President.
Such Certificate may designate an alternate or alternates.
"Bond Counsel" means, with respect to the original issuance
of the Bonds, McCall, Xxxxxxxxx & Xxxxxx L.L.P., 000 Xxxxx
Xxxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000, and thereafter such
other firm of nationally recognized attorneys at law appointed by
the Company and acceptable to the Remarketing Agent, the Trustee
and the Issuer, and if a Letter of Credit shall then be in effect
with respect to the Bonds, approved by the Bank, and experienced
in issuing opinions with respect to tax-exempt bonds under the
exemptions provided in the Code.
"Bond Fund" means the Bond principal and interest payment
fund created by Section 4.02 of the Indenture.
"Bondholder" or "Holder of the Bonds" means the registered
owner of any Bond shown on the bond registration books kept by
the Trustee as Bond Registrar.
"Bonds" means the Variable Rate Demand Revenue Bonds of the
Issuer issued pursuant to the Indenture. Any percentage of Bonds
specified herein for any purpose is to be figured on the
aggregate principal amount of Bonds then outstanding.
"Company" means Xxxxxxx Industries, Inc., a Missouri
corporation, and its successors and assigns.
"Company Documents" means this Loan Agreement, the Note, the
Bond Purchase Agreement, the Remarketing Agreement, and the Bank
Documents.
"Company Representative" means each person at the time
designated to act on behalf of the Company by written certificate
furnished to the Issuer and the Trustee containing the specimen
signature of such person and signed on behalf of the Company by
an authorized officer of the Company. Such certificate may
designate an alternate or alternates.
"Completion Date" means the date determined pursuant to
Section 3.3.
"Cost" means with respect to the Project, the cost of
acquisition, construction, reconstruction, improvement,
expansion, equipping and furnishing of the Project as provided in
the Act, including without limitation, the cost of the
acquisition of all land, rights-of-way, property rights,
easements, and interests, the cost of all machinery and
equipment, financing charges, interest during construction,
necessary reserve funds, cost of estimates and of engineering and
legal services, plans, specifications, surveys, estimates of cost
and of revenue, other expenses necessary or incident to
determining the feasibility and practicability of acquiring,
constructing, reconstructing, improving, and expanding any such
Project, administrative expense, and such other expense as may be
necessary or incident to the acquisition, construction,
reconstruction, improvement, and expansion thereof, the placing
of the same in operation, and the financing of the Project.
"Counsel" means an attorney, or firm thereof, admitted to
practice law before the highest court of any state in the United
States of America or the District of Columbia.
"Default" means an event or condition the occurrence of
which would, with the lapse of time or the giving of notice or
both, become an event of default hereunder.
"Event of Default" means one of the events so denominated
and described in Section 6.1 hereof.
"Financing Statements" means any and all financing
statements (including continuation statements) filed for record
from time to time to perfect the security interests created or
assigned.
"Fiscal Agent" means the Fiscal Agent appointed in
accordance with Section 9.09 of the Indenture.
"Indenture" means the Trust Indenture, of even date
herewith, between the Issuer and the Trustee, pursuant to which
the Bonds are to be issued and secured, including any indentures
supplemental thereto.
"Independent Counsel" means an attorney, or firm thereof,
admitted to practice law before the highest court of any state in
the United States of America or the District of Columbia and not
an employee on a full-time basis of either the Issuer, the
Trustee, the Bank or the Company (but who or which may be
regularly retained by any one or more of them).
"Independent Engineer" means an engineer or engineering firm
registered and qualified to practice the profession of
engineering under the laws of the State and not an employee on a
full-time basis of either the Issuer or the Company (but who or
which may be regularly retained by either).
"Issuer" means Longview Industrial Corporation, and its
successors and assigns..
"Loan Agreement" means this Loan Agreement as it now exists
and as it may hereafter be amended pursuant to Article XI of the
Indenture.
"Net Proceeds of Sale of the Bonds" means those proceeds of
the sale of the Bonds remaining after payment of all expenses in
connection with the issuance of the Bonds and the deposit of all
accrued interest (if any) received from the sale of the Bonds in
the Bond Fund, together with investment earnings on such net
proceeds earned prior to the Completion Date.
"Note" shall mean the promissory note of the Company in the
principal amount of $4,200,000 dated as of April 1, 1999, in the
form attached hereto as Exhibit B, issued pursuant hereto and
delivered to the Issuer as consideration for the Loan of the
proceeds of the Bonds, and any amendment or supplement thereto or
substitution therefor.
"Outstanding," when used with reference to the Bonds, shall
have the meaning set forth in Article I of the Indenture.
"Payment in Full of the Bonds" specifically encompasses the
situations referred to in Section 7.01 of the Indenture.
"Person" means any natural person, corporation, cooperative,
partnership, trust or unincorporated organization, government or
governmental body or agency, political subdivision or other legal
entity as in the context may be appropriate.
"Pledged Revenues" means and shall include:
(a) the payments required to be made by or on behalf of the
Company under this Loan Agreement except payments to (i) the
Trustee and the Fiscal Agent for services rendered as Trustee
under the Indenture and as Fiscal Agent for the Bonds and
payments to be made to any Co-Trustee for services rendered under
the Indenture and (ii) expenses, indemnification and other
payments required to be made pursuant to Sections 5.2 and 6.4
hereof, and
(b) any proceeds which arise with respect to any
disposition of any of the property, money, securities and
interests granted by the Issuer to the Trustee under the Granting
Clause of the Indenture.
"President" means the President or the Vice President of the
Issuer.
"Project" means the acquisition, installation, construction
and equipping of certain manufacturing facilities, consisting of
improvements and equipment to be used by the Company or its
affiliates in the manufacture of terminal trucks, specialty
vehicles and related products, to be located in the City of
Longview, Texas, as more fully described on Exhibit A hereto.
"Qualified Costs of Construction" means that portion of the
Cost of the Project which is chargeable to the Project's capital
account for federal income tax purposes or which would be so
chargeable either with a proper election by the Company under the
Code or but for a proper election by the Company to deduct such
amount and which were incurred and paid, or are to be incurred
and paid, after April 14, 1998.
"Reimbursement Agreement" means the Reimbursement Agreement,
of even date herewith, between the Company and the Bank, under
the terms of which the Bank agrees to issue and deliver the
Letter of Credit to the Trustee, and any amendment or supplement
thereto, and if a Substitute Letter of Credit is issued, the
agreement between the Bank and the Company pursuant to which such
Substitute Letter of Credit is issued.
"Secretary" means the Secretary of the Issuer.
"State" means the State of Texas.
"Substitute Letter of Credit" means the Substitute Letter of
Credit or an extension of the existing Letter of Credit issued in
accordance with Section 4.3 hereof.
"Trustee" means Norwest Bank Minnesota, National
Association, a national banking association, having its principal
corporate trust office in Minneapolis, Minnesota, or any co-
trustee or any successor trustee under the Indenture.
"Trustee Fees" means the periodic fees and expenses charged
by the Trustee in order to serve as Trustee under the Indenture.
"U.C.C." means the Uniform Commercial Code of the State, as
now or hereafter amended.
Section 1.2. Certain Rules of Interpretation. The
definitions set forth in Section 1.1 shall be equally applicable
to both the singular and plural forms of the terms therein
defined and shall cover all genders.
"Herein," "hereby," "hereunder," "hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to this Loan
Agreement and not solely to the particular Article, Section or
subdivision hereof in which such word is used.
Reference herein to an Article number (e.g., Article IV) or
a Section number (e.g., Section 6.2) shall be construed to be a
reference to the designated Article number or Section number
hereof unless the context or use clearly indicates another or
different meaning or intent.
Any terms defined in Article I of the Indenture and not
defined herein are hereby incorporated by reference.
Section 1.3. Other Defined Terms. Capitalized terms used
herein and not otherwise defined in this Loan Agreement shall
have the meanings given such terms in the Indenture.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Issuer. The Issuer
makes the following representations as the basis for the
undertakings on its part herein contained:
(a) The Issuer (i) is a nonstock nonprofit industrial
development corporation duly organized and existing under the
laws of the State, (ii) has full power and authority to enter
into the transactions contemplated by this Loan Agreement and the
Indenture and to carry out its obligations under this Loan
Agreement and the Indenture, including the issuance of the Bonds,
(iii) is not in default under any provisions of the laws of the
State which would affect its existence or its powers referred to
in this subsection and (iv) by proper corporate action has duly
authorized the execution and delivery of this Loan Agreement, the
Bonds and the Indenture.
(b) Under existing statutes and decisions, no taxes on
income or profits are imposed on the Issuer. The Issuer will not
knowingly take or omit to take any action reasonably within its
control which action or omission would impair the exclusion of
interest paid on the Bonds from the gross income of the owners of
the Bonds for federal income tax purposes.
(c) Neither the execution and delivery by the Issuer of
this Loan Agreement or the Indenture, nor the consummation by the
Issuer of the transactions contemplated by this Loan Agreement or
the Indenture, conflicts with, will result in a breach of or
default under or will (except with respect to the lien of the
Indenture) result in the imposition of any lien on any property
of the Issuer pursuant to the terms, conditions or provisions of
any statute, order, rule, regulation, agreement or instrument to
which the Issuer is a party or by which it is bound.
(d) Each of this Loan Agreement and the Indenture has been
duly authorized, executed and delivered by the Issuer and each
constitutes the legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to
or limiting creditors' rights generally or by equitable
principles of general applicability.
(e) There is no litigation or proceeding pending, or to the
knowledge of the Issuer threatened, against the Issuer, or to the
knowledge of the Issuer affecting it, which would adversely
affect the validity of this Loan Agreement, the Indenture or the
Bonds or the ability of the Issuer to comply with its obligations
under this Loan Agreement, the Indenture or the Bonds.
(f) The Issuer hereby finds and determines that all
requirements of the Act have been complied with, the Project
constitutes and will constitute a "project" within the meaning of
the Act and the financing of the Project through the issuance of
the Bonds will further the public purposes of the Act.
(g) No member, director, officer, official, agent or
employee of the Issuer has any interest (financial, employment or
other) in the Company or the transactions contemplated by this
Loan Agreement.
(h) The Issuer will apply the proceeds from the sale of the
Bonds as specified in the Indenture and this Loan Agreement. So
long as any of the Bonds remain outstanding and except as may be
authorized by the Indenture, the Issuer will not issue or sell
any bonds or obligations, other than the Bonds, the principal of,
premium, if any, or interest on which will be payable from the
Trust Estate.
(i) The Project will be wholly located within the
boundaries of the Issuer.
(j) No approval, authorization or consent of any
governmental or public agency or authority or officer (other than
those which have been obtained) is required in connection with
the execution and delivery by the Issuer of this Loan Agreement,
the Indenture or the Bonds, other than any required under the
securities laws of the United States or any state, as to all of
which no representation is made by the Issuer.
(k) Based upon the representations made by the Company, the
Board of Directors hereby finds that (i) the Project is suitable
for the promotion of industrial or manufacturing development and
expansion, (ii) the Project will have a direct, positive and
favorable impact on employment in the Governmental Unit, and
(iii) that the Project is in furtherance of the public purposes
as set forth in the Act.
(l) The Governmental Unit has by resolution approved this
Agreement as required by the Act.
Section 2.2. No Representation or Warranty by Issuer as to
Project. The Issuer makes no representation or warranty
concerning the suitability of the Project for the purpose for
which it is being undertaken by the Company. The Issuer has not
made any independent investigation as to the feasibility or
creditworthiness of the Company. Any bond purchaser, assignee of
the Loan Agreement or any other party with any interest in this
transaction, shall make its own independent investigation as to
the creditworthiness and feasibility of the Project, independent
of any representation or warranties of the Issuer.
Section 2.3. Representations by the Company. The Company
makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Organization and Power. The Company (i) is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Missouri, (ii) is not required to
qualify to transact business in the State, and (iii) has all
requisite power and authority and all necessary licenses and
permits to own and operate its properties and to carry on its
business as now being conducted and as presently proposed to be
conducted.
(b) Pending Litigation. There are no proceedings pending,
or to the knowledge of the Company threatened, against or
affecting the Company in any court or before any governmental
authority, arbitration board or tribunal which if adversely
determined, would materially and adversely affect the
transactions contemplated by this Loan Agreement, the Bond
Purchase Agreement, the Remarketing Agreement or the Indenture or
which, in any way, would materially and adversely affect the
properties, business, prospects, profits or condition (financial
or otherwise) of the Company, or the ability of the Company to
perform its obligations under the Company Documents. The Company
is not in default with respect to an order of any court,
governmental authority, arbitration board or tribunal.
(c) Agreements Are Legal and Authorized. The execution and
delivery by the Company of each of the Company Documents and the
compliance by the Company with all of the provisions hereof and
thereof (i) are within the corporate power of the Company, (ii)
will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property of
the Company under the provisions of, any agreement, articles of
incorporation, by-laws or other instrument to which the Company
is a party or by which it may be bound, or any license, judgment,
decree, law, statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company
or any of its activities or properties, and (iii) have been duly
authorized by all necessary corporate action on the part of the
Company.
(d) Governmental Consent. Neither the Company nor any of
its business or properties, nor any relationship between the
Company and any other person, nor any circumstances in connection
with the execution, delivery and performance by the Company of
the Company Documents or the offer, issue, sale or delivery by
the Issuer of the Bonds, is such as to require the consent,
approval or authorization of, or the filing, registration or
qualification with, any governmental authority on the part of the
Company other than those already obtained; provided, however,
that no representation is made as to any consents, approvals or
authorizations required in connection with the construction or
occupancy of the Project.
(e) No Defaults. No event has occurred and no condition
exists with respect to the Company that would constitute an
"event of default" under any of the Company Documents or which,
with the lapse of time or with the giving of notice or both,
would become such an "event of default." The Company is not in
violation in any material respect of any agreement, articles of
incorporation, by-laws or other instrument to which it is a party
or by which it may be bound.
(f) Compliance with Law. The Company is not in violation
in any material way of any laws, ordinances, governmental rules
or regulations to which it is subject and has not failed to
obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to
the conduct of its business, which violation or failure to obtain
might materially and adversely affect the properties, business,
prospects, profits or conditions (financial or otherwise) of the
Company.
(g) Inducement. The Project will be wholly located within
the boundaries of the City of Longview, Texas, consist of the
facilities described in Exhibit A hereto, and constitute a
"project" within the meaning of the Act. The Company represents
to the Issuer and the Department that (1) the Project will
contribute to the economic growth or stability of the
Governmental Unit by (A) increasing or stabilizing employment
opportunities in the Governmental Unit, (B) significantly
increasing or stabilizing the property tax base of the
Governmental Unit and the State, and (C) promoting commerce
within the Governmental Unit and the State; (2) it has no present
intention of using or moving any portion of the Project out of
the State or disposing of or abandoning the Project; and (3) it
has no present intention of directing the Project to a use other
than the purposes represented to the Governmental Unit and the
Department.
(h) Use of Proceeds. The proceeds of the Bonds will be
used solely to finance the cost of acquisition, construction,
installation and equipping of the Project and the costs of
issuance of the Bonds.
(i) Estimated Time of Completion of the Project. The
Company estimates that the Project will be completed in November,
2000.
(j) Location of Project. The Project is located entirely
within the geographical boundaries of the City of Longview,
Texas.
Section 2.4. Intentionally Omitted.
Section 2.5. Purchase of Bonds by Issuer and Company.
Except for purchases to retire Bonds and purchases pursuant to
Section 3.07 of the Indenture, the Issuer and the Company agree
that they shall not purchase any Bonds, directly or indirectly.
ARTICLE III
ISSUANCE OF THE BONDS; ACQUISITION, CONSTRUCTION,
INSTALLATION AND FINANCING OF PROJECT
Section 3.1. Agreement to Acquire, Construct and Equip the
Project. The Company shall cause the acquisition, construction
and equipping of the Project to be completed as described in
Exhibit A, as such Exhibit A may be amended from time to time by
the Company; provided, that in the case of any material change in
such Exhibit A there shall be filed with the Issuer and the
Trustee the written approving Opinion of Bond Counsel to the
effect that such change shall be permitted by the Act and shall
not impair the exclusion of the interest on any of the Bonds from
gross income of the owners thereof for federal income tax
purposes. The Company agrees to obtain all licenses, permits and
consents required for the acquisition, construction and
installation of the Project, and the Issuer shall have no
responsibility therefor.
The Company will not take any action or fail to take any
action which would adversely affect the qualification of the
Project under the Act or the exclusion of the interest on the
Bonds from gross income of the owners thereof for federal income
tax purposes.
Section 3.2. Agreement to Issue Bonds; Application of
Proceeds; Construction Fund. In order to provide funds to make a
loan to the Company for the payment of a portion of the cost of
acquiring, constructing and equipping the Project, the Issuer
agrees that as soon as possible it will authorize, sell and cause
to be delivered to the initial purchaser or purchasers thereof,
the Bonds, bearing interest and maturing as set forth in Article
II of the Indenture, at a price to be approved by the Company and
Bank, and it will thereupon make the loan of the proceeds of the
Bonds received from said sale by depositing said proceeds in the
Construction Fund created in the Indenture. The moneys in the
Construction Fund shall be used to finance the acquiring,
constructing and equipping of the Project and for paying certain
of the costs of issuing the Bonds.
Section 3.3. Establishment of Completion Date. The
Completion Date shall be evidenced to the Issuer and the Trustee
by a certificate in the form of Exhibit D hereto, signed by a
Company Representative stating (a) the Cost of Project, (b) that
the acquisition, construction and equipping of the Project have
been completed substantially in accordance with Section 3.1, and
(c) that, except for amounts retained by the Trustee for the Cost
of Project not then due and payable, if any, the full Cost of
Project has been paid. Notwithstanding the foregoing, such
certificate shall state that it is given without prejudice to any
rights against third parties which exist at the date of such
certificate or which may subsequently come into being.
Section 3.4. Company Required to Complete Project. If the
proceeds derived from the sale of the Bonds issued for such
purpose are not sufficient to pay in full the Cost of Project,
the Company shall pay so much of the cost thereof as may be in
excess of the proceeds of the Bonds and any investment income
thereon available therefor. The Company agrees that if, after
exhaustion of the proceeds derived from the sale of the Bonds and
investment income thereon, the Company should pay any portion of
the Cost of Project pursuant to the provisions of this Section,
it shall not be entitled to any reimbursement therefor from the
Issuer or the Trustee nor shall it be entitled to any abatement,
diminution or postponement of its payments hereunder or under the
Note.
Section 3.5. Limitation of Issuer's Liability. Anything
contained in this Loan Agreement to the contrary notwithstanding,
any obligation the Issuer may incur in connection with the
undertaking of the project for the payment of money shall not be
deemed to constitute a debt or general obligation of the Issuer,
the Governmental Unit, the State or any political subdivision
thereof, but shall be payable solely from the revenues and
receipts derived by it from this Loan Agreement and the Note,
including payments received under the Note, and from payments
made pursuant to the Letter of Credit. No provision in this Loan
Agreement or any obligation herein imposed upon the Issuer or the
breach thereof, shall constitute or give rise to or impose upon
the Issuer, the Governmental Unit, the State or any political
subdivision thereof a pecuniary liability or a charge upon its
general credit or taxing powers. No officer or member of the
Issuer shall be personally liable on this Loan Agreement.
Section 3.6. Disclaimer of Warranties. The Company
recognizes that since the Project has been or will be acquired,
constructed and equipped by the Company and by contractors and
suppliers selected by the Company, NEITHER THE ISSUER NOR THE
TRUSTEE MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO THE MERCHANTABILITY, CONDITION OR WORKMANSHIP OF
ANY PART OF THE PROJECT OR ITS SUITABILITY FOR THE PURPOSES OF
THE COMPANY OR THE EXTENT TO WHICH PROCEEDS DERIVED FROM THE SALE
OF THE BONDS WILL PAY THE COST TO BE INCURRED IN CONNECTION
THEREWITH.
Section 3.7. Cost of Project. Anything herein
notwithstanding, no item of cost which exceeds with all other
such items (a) five percent (5%) of the net proceeds (including
investment proceeds) of the Bonds which is not a Qualified Costs
of Construction under the Code, including but not limited to (i)
costs paid or incurred prior to Xxxxx 00, 0000, (xx) interest on
the Bonds following completion of the acquisition, construction
and equipping of the Project, or (iii) the costs of issuance of
the Bonds, or (b) two percent (2%) of the principal amount of the
Bonds which is an issuance cost, shall be considered a Cost of
Project that is eligible to be paid or reimbursed from the
proceeds of the Bonds. To the extent permitted by law without
affecting the exclusion of the interest on the Bonds from gross
income of the owners thereof for federal income tax purposes, if
the Company determines that it has exceeded the foregoing
limitation, it shall immediately repay to the Construction Fund
sufficient monies to bring it into compliance with such
limitation.
Section 3.8. Payments from Construction Fund. The Trustee
shall use moneys in the Construction Fund solely to pay the Cost
of Project. Before any payment shall be made from the
Construction Fund, there shall be filed with the Trustee:
(a) A requisition, in the form attached hereto as Exhibit
C, signed by a Company Representative and approved in writing by
an officer of the Bank, stating to whom the payment is to be
made, the amount of payment, the purpose in reasonable detail for
which the obligation to be paid was incurred, and that the
obligation stated on the requisition has been incurred by the
Company in or about the acquisition, construction or equipping of
the Project, each item is a proper charge against the
Construction Fund and the obligation has not been the basis for a
prior requisition which has been paid, together with a
certificate attached to such requisition and signed by a Company
Representative stating that:
(1) there has been received no written notice of any
lien, right to lien or attachment upon, or claim affecting
the right of the payee to receive payment of, any of the
moneys payable under such requisition to any of the persons,
firms, or corporation named therein;
(2) such requisition contains no items representing
payment on account of any percentage entitled to be retained
at the date of the certificate;
(3) the payment of such requisition will not result in
less than 95% of the net proceeds of the Bonds expended or
to be expended under such requisition and all prior
requisitions being considered as having been used for
Qualified Costs of Construction;
(4) the payment of such requisition will not violate
the prohibitions on use of proceeds set forth in Section
5.12; and
(5) no Event of Default hereunder or under the
Indenture or event which after notice or lapse of time or
both would constitute an Event of Default hereunder or under
the Indenture has occurred and not been waived or cured.
(b) An invoice or other appropriate evidence of the
obligation described in the requisition required by subsection
(a) above, or written confirmation from the Bank that such items
are on file with the Bank.
Upon receipt of each such requisition and accompanying
certificate, the Trustee shall make payment from the Construction
Fund in accordance with such requisition.
Section 3.9. Investment of Funds. Except for amounts on
deposit in the Rebate Fund, any moneys held in the Bond Fund or
the Construction Fund or any other fund created under the
Indenture shall be invested or reinvested by the Trustee as set
forth in Section 4.11 of the Indenture, to the extent permitted
by law, in the Eligible Investments (as defined in the
Indenture), at the telephonic or oral direction (confirmed in
writing) of the Company Representative. Amounts on deposit in
the Rebate Fund shall be invested pursuant to Section 5.12. All
such investments shall at all times be a part of the fund (the
Construction Fund, the Bond Fund or such other fund created under
the Indenture, as the case may be) from where the moneys used to
acquire such investments shall have come, and all income and
profits on such investments shall be credited to, and losses
thereon shall be charged against, such fund.
Section 3.10. Special Arbitrage Certifications. The
Company covenants with the Issuer, the Trustee and the owners
from time to time of the Bonds that so long as any Bond remains
Outstanding, moneys on deposit in any fund or account in
connection with the Bonds, whether or not such moneys were
derived from the proceeds of the sale of the Bonds or from any
other sources, will not be used in a manner which will cause the
Bonds to be "arbitrage bonds," within the meaning of Section 148
of the Code and any lawful regulations promulgated or proposed
thereunder.
Section 3.11. Depositories of Moneys and Security for
Deposit. All moneys received by the Issuer in connection with
the issuance of the Bonds (other than for its fees and expenses)
shall be deposited in the Construction Fund created under the
Indenture. All such moneys deposited shall be applied in
accordance with the terms and for the purposes herein set forth
and shall not be subject to lien or attachment by any creditor of
the Issuer.
The Issuer and the Company agree for the benefit of each
other and for the benefit of the Trustee and the holders of the
Bonds that the Net Proceeds of the sale of the Bonds will not be
used in any manner which would affect the exclusion from gross
income for federal income tax purposes of the interest on the
Bonds.
ARTICLE IV
PROVISIONS FOR PAYMENT
Section 4.1. Title to the Project. The Issuer acknowledges
that (a) the Issuer will not be vested with any interest in the
Project as a result of its authorization, sale, or issuance of
the Bonds to finance the cost of the acquisition, construction,
equipping, or installation thereof, and (b) that the only
security for the Bonds will be the Letter of Credit and the
moneys deposited in the funds and accounts created under the
Indenture.
Section 4.2. Payment Obligations of the Company.
(a) As consideration for the issuance of the Bonds and the
lending of the Bond proceeds to the Company by the Issuer in
accordance with the provisions of this Loan Agreement, the
Company agrees to execute and deliver to the Issuer the Note. In
addition, the Company agrees (i) except as provided in subsection
(b) of this Section, to make prompt payment to the Trustee, as
assignee and pledgee of the Issuer, for deposit in the Bond Fund,
on all payments on the Note as and when the same shall be due and
payable, and (ii) to pay pursuant hereto and the Note sums
sufficient to pay the principal and purchase price of, premium,
if any, or interest on the Bonds (whether at maturity, upon
redemption or acceleration, or otherwise) when and as the same
shall be due and payable. All such payments shall be made to the
Trustee at its principal office in lawful money of the United
States of America, except as may be otherwise agreed to by the
Trustee.
(b) In order to provide for the payments required in
subsection (a) of this Section, the Company shall cause the Bank
to deliver the Letter of Credit to the Trustee simultaneously
with the original issue and delivery of the Bonds, and hereby
authorizes and directs the Trustee to draw moneys under the
Letter of Credit in accordance with the provisions of the
Indenture to the extent necessary to make any payments of
principal and purchase price of, and interest on the Bonds as and
when the same become due. The Company shall receive as a credit
against its obligations to make the payments described in
subsection (a) of this Section all payments made by the Bank
under the Letter of Credit and all other amounts described in
Section 4.01 of the Indenture.
(c) If the Company should fail to make any of the payments
required in subsection (a) and (b) above, the item or installment
which the Company has failed to make shall continue as an
obligation of the Company until the same shall have been fully
paid, and the Company agrees to pay the same with interest
thereon at the rate per annum borne by the Bonds until paid in
full.
(d) In addition, the Company agrees to pay the costs of
issuing the Bonds which are not being paid with the proceeds of
the sale of the Bonds either by paying any or all of such costs
directly or by depositing the same with the Trustee. Any monies
so deposited with the Trustee shall be disbursed by the Trustee
in accordance with written instructions from the Company.
(e) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Company
hereunder shall be subject to the limitation that payments
constituting interest under this Section shall not be required to
the extent that the receipt of such payment by the holder of any
Bond would be contrary to the provisions of law applicable to
such holder which limit the maximum rate of interest which may be
charged or collected by such holder.
Section 4.3. Letter of Credit; Substitute Letter of Credit.
(a) The Letter of Credit delivered to the Trustee
simultaneously with the original issuance and delivery of the
Bonds constitutes an irrevocable obligation of the Bank to pay to
the Trustee, upon request and in accordance with the terms
thereof, up to an amount equal to the sum of (i) the principal
amount of the Bonds then outstanding plus (ii) an amount equal to
interest for 35 days on the principal amount of each Bond then
outstanding at the rate of twelve percent (12%) per annum.
(b) The Company shall have the option from time to time to
provide the Trustee with a Substitute Letter of Credit in
accordance with the provisions of Section 5.03 of the Indenture.
If at any time there shall have been delivered to the Trustee a
Substitute Letter of Credit, together with the other documents
and opinions required by this Section 5.03 of the Indenture, then
the Trustee shall accept such Substitute Letter of Credit and
promptly surrender the previously held Letter of Credit to the
issuer thereof for cancellation, in accordance with the terms of
such Letter of Credit. If at any time there shall cease to be
any Bonds outstanding under the Indenture, the Trustee shall
promptly surrender the Letter of Credit to the issuer thereof, in
accordance with the terms of such Letter of Credit, for
cancellation. The Trustee shall comply with the procedures set
forth in the Letter of Credit relating to the termination
thereof.
Section 4.4. Administrative Expenses. The Company shall
pay, or cause to be paid, an amount equal to (a) the fees and
charges of the Trustee incurred in connection with the rendering
of its ordinary and extraordinary services as Trustee under the
Indenture, as and when the same become due, including the
reasonable fees of its Counsel, (b) the fees and charges of the
Fiscal Agent for acting as Fiscal Agent for the Bonds, including
the fees and expenses of its Counsel, (c) the fees and expenses
of the Underwriter for serving as Underwriter for the Bonds,
including the fees and expenses of its Counsel, and any other
amounts due and payable to the Underwriter under the Bond
Purchase Agreement, (d) the fees and expenses of the Remarketing
Agent for serving as Remarketing Agent for the Bonds, including
the fees and expenses of its Counsel, and any other amounts due
and payable to the Remarketing Agent under the Remarketing
Agreement, (e) the fees and expenses of the Rating Agency for
issuing and maintaining its securities rating on the Bonds,
(f) the out-of-pocket expenses, administrative expenses and
Counsel fees of the Issuer and (g) the fees and expenses of Bond
Counsel. The Company may, without constituting grounds for an
Event of Default hereunder, withhold payment of any such fees and
charges of the Trustee or the Fiscal Agent, to contest in good
faith the necessity for any extraordinary services of the Trustee
and the reasonableness of any extraordinary expenses of the
Trustee, or to contest in good faith the necessity for any
services performed and expenses paid or incurred by, and the
reasonableness of any fees, charges or expenses of, the Fiscal
Agent. If the Company should fail to make any of the payments
required in this Section, the item or installment which the
Company has failed to make shall continue as an obligation of the
Company until the same shall have been fully paid, with interest
thereon at the rate per annum borne by the Bonds until paid in
full.
Section 4.5. Obligations of the Company Absolute and
Unconditional. Subject to the provisions of Section 6.5 hereof,
the obligations of the Company to make or to cause (pursuant to
the Letter of Credit) to be made the payments required in
Sections 4.2 and 4.4 and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional and shall not be subject to diminution by set-off,
counterclaim, abatement or otherwise by reason of any action or
inaction of the Trustee, the Issuer or any third party. Until
such time as the principal of, and the interest on, the Bonds
shall have been paid in full, the Company (a) will not suspend or
discontinue any payments provided for in Sections 4.2 and 4.4
except to the extent the same have been prepaid, (b) will perform
and observe all its other agreements contained herein, and (c)
except as provided in Article VII hereof, will not terminate this
Loan Agreement for any cause, including, without limiting the
generality of the foregoing, any acts or circumstances that may
constitute failure of consideration, sale, loss, eviction or
constructive eviction, destruction of or damage to the Project,
condemnation, commercial frustration of purpose, any change in
the tax or other laws of the United States of America or of the
State or any political subdivision of either, or any failure of
the Issuer to perform and observe any agreement, whether express
or implied, or any duty, liability or obligation arising out of
or in connection herewith or with the Indenture. Notwithstanding
the foregoing, the obligation of the Company to make payments
hereunder shall be satisfied and discharged to the extent moneys
are received by the Trustee pursuant to the Letter of Credit.
Nothing contained herein shall be construed as a waiver of
any rights which the Company may have against any person under
this Loan Agreement, the Indenture or otherwise, or under any
provision of law; provided, however, that the Company shall
pursue any rights or remedies against the Trustee, any Bondholder
or any third party in connection herewith, or in connection with
the Indenture, the Company Documents, the Bank Documents or
otherwise relating to the Bonds and security therefor only in a
separate action, and not by way of any set-off, counterclaim,
cross-claim or third party action in any suit brought to enforce
the rights of the bondholders, the Trustee or the Issuer under
this Loan Agreement, the Indenture, the Company Documents, the
Bank Documents or otherwise in connection herewith; and provided
further, that in order to preserve the right of the Company to
raise such issues in any separate suit, any claim of the Company
which, but for this Section 4.5, would be a compulsory
counterclaim, shall be identified as such in the first responsive
pleading filed by the Company to any action brought by the
Issuer, Trustee, any Bondholder or any person.
Section 4.6. Company Consent to Assignment of Loan
Agreement and Execution of Indenture. The Company understands
that the Issuer will, pursuant to the Indenture and as security
for the payment of the principal of, premium, if any, and the
interest on the Bonds, assign and pledge to the Trustee, and
create a security interest in favor of the Trustee in certain of
its rights, title and interest in and to this Loan Agreement
(including all Pledged Revenues) reserving, however, the
Unassigned Rights; and the Company hereby agrees and consents to
such assignment and pledge. The Company acknowledges that it has
received a copy of the Indenture and consents to the execution of
the same by the Issuer; provided, however, such consent does not
constitute a representation as to the accuracy of any
representations or warranties made thereunder.
Section 4.7. Company's Performance Under Indenture. The
Company agrees, for the benefit of the Bondholders, to do and
perform all acts and things contemplated in the Indenture to be
done or performed by it.
ARTICLE V
PARTICULAR AGREEMENTS
Section 5.1. Maintenance, Operation and Insuring of
Project; Taxes; No Operation of Project by Issuer. The Company
hereby agrees that it will at its own expense maintain or cause
to be maintained and operate or cause to be operated all portions
of the Project during their useful lives or until they are
replaced with facilities necessary in their operation. This Loan
Agreement does not prevent the Company from merging or
consolidating with another entity as permitted by Section 5.3.
The Company further agrees that, except for taxes contested in
good faith, it will pay or cause to be paid all taxes levied with
respect to the Project and the income therefrom and that it will
at its own expense keep or cause to be kept the Project properly
insured against loss or damage from such perils usually insured
against by businesses operating or owning like properties and
maintain public liability insurance and all such worker's
compensation or other similar insurance as may be required by
law. Evidence of such insurance will be furnished to the Bank
and, if there is no Bank, to the Trustee upon request. Nothing
contained in this Loan Agreement shall be deemed to authorize or
require the Issuer to operate the Project or to conduct any
business enterprise in connection therewith.
Section 5.2. Release and Indemnification Provisions. The
Company will, whether or not the transactions contemplated by the
Company Documents and the Indenture shall be consummated,
indemnify and hold harmless the Issuer and its officers,
directors, officials, employees, agents and attorneys; the
Department, its directors, employees and agents; and the
Governmental Unit, its officers, agents, attorneys, employees and
members of its governing body (any and all of the foregoing being
hereinafter referred to as the "Indemnified Persons"), from and
against any and all claims, actions, suits, proceedings,
expenses, judgments, damages, penalties, fines, assessments,
liabilities, charges or other costs (including, without
limitation, all attorneys' fees and expenses incurred in
connection with enforcing this Loan Agreement or collecting any
sums due hereunder and any claim or proceeding or any
investigation in connection therewith) relating to, resulting
from or in connection with (a) any cause whatsoever in connection
with the Project, including, without limitation, the acquisition,
design, construction, installation, equipping, operation,
maintenance or use thereof or the financing thereof including any
expenses arising from the failure to make payment of principal
and interest on the Bonds; (b) any act or omission of the Company
or any of its agents, contractors, servants, employees or
licensees, in connection with the Project; (c) the issuance and
sale of the Bonds, (d) a misrepresentation or breach of warranty
by the Company hereunder or under any of the Company Documents or
any offering document relating to the Bonds, or any violation by
the Company of any of its covenants hereunder or under any of the
other Company Documents, and (e) any loss or damage incurred by
the Issuer as a result of violation by the Company of Sections
5.11 or 5.12 of this Loan Agreement.
THE PROVISIONS OF THE PRECEDING PARAGRAPH SHALL REMAIN AND
BE IN FULL FORCE AND EFFECT EVEN IF ANY SUCH LIABILITY, COST,
EXPENSE, DAMAGE OR LOSS OR CLAIM THEREFOR BY ANY PERSON DIRECTLY
OR INDIRECTLY RESULTS FROM, ARISES OUT OF, OR RELATES TO OR IS
ASSERTED TO HAVE RESULTED FROM, ARISEN OUT OF, OR RELATED TO, IN
WHOLE OR IN PART, ONE OR MORE NEGLIGENT ACTS OR OMISSIONS,
EXCLUDING WILLFUL MISCONDUCT, OF ANY OF THE INDEMNIFIED PERSONS,
OR ANY OTHER PARTY ACTING FOR OR ON BEHALF OF ANY OF THE
INDEMNIFIED PERSONS IN CONNECTION WITH THE MATTERS SET FORTH IN
CLAUSES (a) THROUGH (e) OF SAID PARAGRAPH.
In case any action or proceeding shall be brought against
one or more of the Indemnified Persons and in respect of which
indemnity may be sought as provided herein, such Indemnified
Person or Indemnified Persons shall promptly notify the Company
in writing and the Company shall promptly assume the defense
thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person or Indemnified Persons,
payment of all expenses and the right to negotiate and consent to
settlement; but the failure to notify the Company as provided
herein shall not relieve the Company from any liability that it
may have (i) under this Section, so long as the Company is given
the reasonable opportunity to defend such claim, and
(ii) otherwise than under this Section. Any one or more of the
Indemnified Persons shall have the right to employ separate
counsel in any such action and to participate in the defense
thereof, but the reasonable fees and expenses of such counsel
shall be at the expense of such Indemnified Persons or
Indemnified Persons unless (x) the employment of such counsel has
been specifically authorized in writing by the Company, (y) the
named parties to any such action (including any impleaded
parties) include both the Company and such Indemnified Person or
Indemnified Persons and representation of both the Company and
such Indemnified Person or Indemnified Persons by the same
counsel would be inappropriate due to actual or potential
differing interests between them, or (z) the Indemnified Person
or Indemnified Persons have been advised that one or more legal
defenses may be available to any or all of them which may not be
available to the Company in which case the Company shall not be
entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. The
Company shall not be liable for any settlement of any such action
effected without its consent, but if settled with such consent or
if there is a final judgment in any such action with or without
consent, the Company agrees to indemnify and hold harmless the
Indemnified Person or Indemnified Persons from and against any
loss by reason of such settlement or judgment.
The provisions of this Section shall survive the termination
of this Loan Agreement.
Section 5.3. Maintenance of Existence. The Company agrees
that so long as any Bonds remain outstanding it shall maintain
its existence as a corporation organized under the laws of the
State of Missouri and shall not merge or consolidate with any
other entity and shall not transfer or convey all or
substantially all of its property, assets and licenses; provided,
however, the Company may, without violating any provision hereof,
consolidate with or merge into another domestic entity (i.e., an
entity existing under the laws of one of the states of the United
States of America or the District of Columbia) or permit one or
more other domestic entities to consolidate with or merge into
it, or transfer all or substantially all of its assets to another
domestic entity, but only on the condition that:
(a) the assignee entity or the entity resulting from or
surviving such merger (if other than the Company) or
consolidation or the entity to which such transfer is made
expressly assumes in writing and agrees to perform all of the
Company's obligations hereunder and under the Bank Documents and
the other Company Documents;
(b) in connection with any such consolidation, merger or
transfer, the Bank shall expressly ratify and affirm that the
Letter of Credit remains in full force and effect;
(c) the surviving entity shall preserve and keep in full
force and effect all licenses and permits necessary to the proper
conduct of its business; and
(d) the Company obtains and delivers to the Issuer, the
Trustee, and the Bank an Opinion of Bond Counsel to the effect
that the proposed transaction will not adversely affect the
exclusion from gross income of interest on the Bonds for federal
income tax purposes.
Section 5.4. Payment of Taxes. The Company has not and
will not maintain that, by virtue of the Project being financed
under the Act, it is entitled to an exemption from Texas sales
and use tax on personal property acquired in connection with the
Project. The Company shall promptly pay or cause to be paid all
taxes, including specifically all sales taxes and ad valorem
taxes, in connection with the Project and the acquisition,
construction, equipping, and furnishing thereof.
Section 5.5. Agreement of Issuer Not to Assign or Pledge.
Except for the assignment and pledge of the Trust Estate in the
Indenture, the Issuer agrees that it will not attempt to further
assign, pledge, transfer or convey its interest in or create any
assignment, pledge, lien, charge or encumbrance of any form or
nature with respect to any of the property, moneys, securities
and rights granted by the Issuer to the Trustee under the
Granting Clause of the Indenture.
Section 5.6. Redemption of Bonds. The Issuer or the
Trustee, at the request at any time of the Company and if the
same are then redeemable, shall forthwith take all steps that may
be necessary under the applicable redemption provisions of the
Indenture to effect redemption of all or any portion of the
Bonds, as may be specified by the Company, on the earliest
redemption date on which such redemption may be made under such
applicable provisions or upon the date set for the redemption by
the Company pursuant to Article VII hereof. As long as the
Company is not in default hereunder and the Issuer is not
obligated to call Bonds pursuant to the terms of the Indenture,
neither the Issuer nor the Trustee shall redeem any Bond prior to
its stated maturity unless requested to do so in writing by the
Company.
Section 5.7. Reference to Bonds Ineffective After Bonds
Paid. Upon Payment in Full of the Bonds and all fees and charges
of the Trustee and the Fiscal Agent, all references herein to the
Bonds, the Fiscal Agent and the Trustee shall be ineffective and
neither the Issuer, the Fiscal Agent, the Trustee nor the holders
of any of the Bonds shall thereafter have any rights hereunder
and the Company shall have no further obligation hereunder,
saving and excepting those that shall have theretofore vested and
any right of any Indemnified Person (as defined in Section 5.2)
to indemnification under Section 5.2, which right shall survive
the payment of the Bonds and the termination of this Loan
Agreement. Reference is hereby made to Section 7.01 of the
Indenture which sets forth the conditions upon the existence or
occurrence of which Payment in Full of the Bonds shall be deemed
to have been made.
Section 5.8. Assignment, Sale or Lease of Project. The
Company may assign its interest in this Loan Agreement and may
sell, lease or otherwise dispose of the Project, in whole or in
part, provided that (a) the purchaser, lessee or transferee in
such transaction shall be bound by the terms and provisions of
this Loan Agreement, (b) such transaction shall not affect the
liability of the Bank under the Letter of Credit, and (c) an
Opinion of Bond Counsel is provided to the Issuer, the Trustee,
and the Bank to the effect that such transaction will not
adversely affect the exclusion of the interest on the Bonds from
gross income for federal income tax purposes.
Section 5.9. Non-Arbitrage Covenant. The Company hereby
covenants and agrees with the Issuer and the Trustee for the
benefit of the holders of any Bonds, present and future, that it
will not make, or permit, any use of the proceeds of the Bonds
which will cause the Bonds to be "arbitrage bonds" within the
meaning of Section 148 of the Code. The Company shall deliver to
the Issuer its certificate, evidencing the reasonable
expectations of the Company, in such reasonable form as the
Issuer shall specify and upon which the Issuer may rely in
furnishing its own certificate.
Section 5.10. Financing Statements. The Company hereby
covenants and agrees with the Issuer and the Trustee that it
shall furnish to the Bank, quinquennially on or before the 1st
day of March of each fifth year (commencing March 1, 2004), an
Opinion of Counsel in a form acceptable to the Bank, to the
effect that all financing or continuation statements have been
filed, and all other action has been taken, to perfect and
validate continuously from the date hereof the security interests
granted by the Indenture.
Section 5.11. Representations and Warranties Relating to
Tax-Exempt Status of Bonds. The Company hereby represents and
warrants that:
(a) all information provided to the Issuer or Bond Counsel
with respect to the use and investment of the proceeds of the
Bonds and the use of the facilities constituting the Project is
true, accurate, correct, and not misleading;
(b) all information provided to the Issuer or Bond Counsel
with respect to the expected economic lives of the facilities
constituting the Project is true, accurate, correct, and not
misleading;
(c) except as set forth in a certificate or written
statement to the Issuer or Bond Counsel prior to the issuance of
the Bonds, the acquisition, construction, reconstruction, or
improvement of any of the facilities constituting the Project did
not commence prior to April 14, 1998, nor was any work performed
or any costs paid or incurred by the Company or any related
person prior to such date which will be paid by, or reimbursed
from, the proceeds of the Bonds;
(d) as of the date of the issuance of the Bonds, there are
no outstanding obligations of any state, territory or possession
of the United States of America, or any political subdivision of
the foregoing or of the District of Columbia, constituting
"exempt small issues", within the meaning of section 1.103-10 of
the Income Tax Regulations or any predecessor regulations (the
"Regulations"), the proceeds of which have been used to finance
facilities located in the Governmental Unit (or outside the
Governmental Unit, but "contiguous" thereto or "integrated"
therewith, within the meaning of the Regulations), and which were
or are to be used primarily by the Company (including any person
related to the Company, as the case may be, within the meaning of
section 144 of the Code), other than the Bonds; and,
(e) the Bonds and any other obligation constituting a
private activity bond under section 144(a) of the Code will not
be sold (A) at substantially the same time, (B) pursuant to a
common plan of marketing, (C) at substantially the same rate of
interest, and (D) with a common or pooled security used or
available to pay debt service thereon.
Section 5.12. General Tax Covenants. The Issuer covenants
that it shall, prior to the issuance of the Bonds, duly elect to
have the provisions of Section 144(a)(4) of the Code apply to
such issue and such election shall be made in accordance with the
applicable regulations and procedures of the Internal Revenue
Service. The Company covenants and agrees that it shall furnish
to the Issuer whatever information is necessary for the Issuer to
make such election, as required by the applicable regulations and
procedures of the Internal Revenue Service.
The Company and Issuer covenant to refrain from such action
which would adversely affect the treatment of the Bonds as
obligations described in Section 103 of the Code, the interest on
which is excludable from "gross income" of the holder for
purposes of federal income taxation. In furtherance thereof, the
Company covenants as follows:
(a) not to use or invest nor to permit the use or
investment of proceeds of the Bonds (including investment
earnings thereon) or the facilities constituting the Project
in a manner that would result in the Bonds not being
"qualified bonds" within the meaning of Section 141(d) of
the Code;
(b) to use at least 95 percent of the proceeds of the
Bonds to provide for the payment of costs of the
acquisition, construction, reconstruction or improvement of
land or depreciable property, and incurred subsequent to
April 14, 1998;
(c) during the six-year period beginning on a date
three years prior to the date of issue of the Bonds and
ending three years after such date, it will not pay or incur
or permit any "principal user" of the Project to pay or
incur capital expenditures (within the meaning of Section
263 of the Code) for facilities located in the Governmental
Unit to the extent that such expenditures when added to the
aggregate face amount of the Bonds would exceed $10,000,000;
(d) that a wholly-owned subsidiary of the Company will
be the only Principal User (within the meaning of the Code)
of the Project;
(e) that all outstanding obligations the interest on
which is exempt from federal income taxation pursuant to
Section 103 of the Code which are allocated to the Company
(or persons related to the Company) do not as of the date of
issue and will not, at any time during the three-year period
commencing on the later of such date or the date on which
the Project was placed-in-service, exceed $40,000,000;
(f) that the Company will not cause the Bonds to be
treated as "federally guaranteed" obligations for purposes
of Section 149 of the Code, as may be modified in any
applicable rules, rulings, policies, procedures, regulations
or other official statements promulgated or proposed by the
Department of the Treasury or the Internal Revenue Service
with respect to "federally guaranteed" obligations described
in Section 149 of the Code. For purposes of this paragraph,
the Bonds shall be treated as "federally guaranteed" if (i)
all or any portion of the principal or interest is or will
be guaranteed directly or indirectly by the United States of
America or any agency or instrumentality thereof, or (ii) a
significant portion of the proceeds of the Bonds will be (A)
used in making loans the payment of principal or interest
with respect to which is to be guaranteed in whole or in
part by the United States of America or any agency or
instrumentality thereof, or (B) invested directly or
indirectly in federally insured deposits or accounts, and
(iii) such guarantee is not described in Section 149(b) of
the Code;
(g) that the costs of issuing the Bonds which are
financed with proceeds of the Bonds will not exceed an
amount equal to 2 percent of the proceeds received from the
sale of the Bonds. Such amounts will not be taken into
account in satisfying the requirement stated above that at
least 95 percent of the Bond proceeds be used to provide the
facilities;
(h) that no portion of the proceeds of Bonds is to be
used to provide the following: an airplane, a skybox or
other private luxury box, a facility primarily used for
gambling or any store the principal business of which is the
sale of alcoholic beverages for consumption off premises;
(i) that the Company shall make such use of the
proceeds of the Bonds and any other funds constituting
"gross proceeds" (whether or not held by the Trustee under
the Indenture) which are allocable to the Bonds, restrict
the investment of such proceeds and other funds, and take
such further action as may be required so that the Bonds
will not constitute "arbitrage bonds" under Section 148 of
the Code and the Regulations. In particular, but not by way
of limitation, the Company covenants that it will provide
written instructions to the Trustee with respect to
investments in accordance with this Loan Agreement.
Moreover, the Company agrees to provide to the Issuer and
the Trustee all required information and moneys necessary to
enable the Trustee to satisfy the obligations imposed on the
Issuer and the Trustee by Section 4.12 of the Indenture with
respect to rebate;
(j) that the Company shall immediately remit to the
Trustee for deposit in the Rebate Fund any deficiency with
respect to rebate as required by Section 4.12 of the
Indenture;
(k) the Company agrees to provide to the Trustee, at
such time as required by the Trustee, all information
required by the Trustee with respect to "nonpurpose
investments" (within the meaning of the Code) not held in
any fund under the Indenture;
(l) that the Company will not pay or agree to pay,
directly or indirectly, to a party other than the United
States of America, any amount that is required to be paid to
the United States of America as a Rebate Amount as provided
in Section 148 of the Code; and
(m) that, at no time during the period in which the
Bonds remain outstanding, will proceeds be invested in
nonpurpose investments (within the meaning of Section 148 of
the Code) at a yield higher than the yield on the Bonds,
other than amounts invested pursuant to an initial temporary
period or as part of a bona fide debt service fund, exceed
150 percent of the debt service on the issue for the bond
year and that the aggregate amount so invested will be
promptly and appropriately reduced as the amount of
outstanding obligations constituting the Bonds is reduced.
The covenants and representations contained in Sections 5.11
and 5.12 of this Loan Agreement are intended to assure compliance
with the Code and any regulations promulgated by the U.S.
Department of Treasury pursuant thereto. In the event that
regulations are hereafter promulgated which modify, or expand
provisions of the Code, the Company will not be required to
comply with a covenant contained in this section to the extent
such modification or expansion, in the Opinion of Bond Counsel,
will not adversely affect the exclusion from gross income of
interest on the Bonds under Section 103(a) of the Code. In the
event that regulations are hereafter promulgated which impose
additional requirements which are applicable to the Bonds, the
Company and the Issuer agree to comply with such additional
requirements to the extent necessary, in the opinion of Bond
Counsel, to preserve the exclusion from gross income of interest
on the Bonds under Section 103(a) of the Code.
Section 5.13. Covenant Regarding Compliance with Rule 15c2-
12. In the event the interest rate on the Bonds is converted to
a Fixed Rate, the Company agrees to cooperate with the Issuer,
the Trustee and the Remarketing Agent, and to do any and all
things necessary, in the event that the Issuer, the Trustee or
the Remarketing Agent, or any of them, are required to comply
with Rule 15c2-12, as amended, of the Securities and Exchange
Commission or any comparable rule (the "Rule"), including,
without limitation, the making of the requisite undertakings
called for by paragraph (b)(5) of the Rule and to pay any
reasonable costs and expenses related thereto.
Section 5.14. Compliance with Reimbursement Agreement. The
Company hereby covenants and agrees that it will comply with all
covenants and obligations applicable to it in the Reimbursement
Agreement from time to time in effect or, if the Reimbursement
Agreement is terminated prior to the termination of this Loan
Agreement, the Company agrees to comply with all covenants and
obligations applicable to it in the Reimbursement Agreement as in
effect immediately prior to the termination thereof until the
termination of this Loan Agreement and the payment of the
Company's obligation hereunder.
Section 5.15. Inspection of Project. The Issuer, the
Trustee and their duly authorized agents shall have the right at
all reasonable times to enter upon any part of the premises of
the Company at which the Project is located and examine and
inspect the same as may be reasonably necessary for the purpose
of determining whether the Company is in compliance with its
obligations under Section 5.1 or in the event of failure of the
Company to perform its obligations under Section 5.1, and the
Issuer, the Trustee and their duly authorized agents shall also
have the right at all reasonable times to examine the books and
records of the Company insofar as such books and records relate
to the acquisition, construction, installation and maintenance of
the Project.
Section 5.16. Project List. The Company shall maintain at
the Project site a list setting forth in reasonable detail all
items constituting the Project.
Section 5.17. No Warranty of Condition or Suitability by
Issuer. The Company recognizes that the Issuer does not deal in
goods of the kind comprising components of the Project or
otherwise hold itself out as having knowledge or skill peculiar
to the practices or goods involved in the Project, and that the
Issuer is not one to whom such knowledge or skill may be
attributed by its employment of an agent or broker or other
intermediary who by his occupation holds himself out as having
such knowledge or skill. The Company further recognizes that
since the components of the Project have been and are to be
designated and selected by the Company, THE ISSUER HAS NOT MADE
AN INSPECTION OF THE PROJECT OR OF ANY FIXTURE OR OTHER ITEM
CONSTITUTING A PORTION THEREOF, AND, EXCEPT AS OTHERWISE PROVIDED
HEREIN, THE ISSUER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS
OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR TO THE
LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR
USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF,
TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, IT BEING
AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE
COMPANY. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE
IN THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A
PORTION THEREOF, WHETHER PATENT OR LATENT, THE ISSUER SHALL HAVE
NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE
PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR
REPRESENTATIONS BY THE ISSUER, EXPRESS OR IMPLIED (TO THE EXTENT
PERMITTED BY APPLICABLE LAW), WITH RESPECT TO THE PROJECT OR ANY
FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER
ARISING PURSUANT TO THE U.C.C. OR ANOTHER LAW NOW OR HEREAFTER IN
EFFECT OR OTHERWISE.
Section 5.18 No Additional Bonds. The Issuer covenants
that it shall not issue additional bonds on a parity with or
senior to the Bonds or refunding bonds without the prior approval
of the Department.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default Defined. The following
shall be "Events of Default" hereunder and the term "Event of
Default" shall mean, whenever it is used herein, any one or more
of the following events:
(a) failure by the Company to make any payment required to
be made under the Note or Section 4.2(a) when the same becomes
due and payable;
(b) failure by the Company to comply with the provisions of
Section 7.2;
(c) failure by the Company to observe or perform any
agreement hereunder or on its part to be observed or performed,
other than as referred to in subsection (a) or (b) of this
Section, for a period of thirty (30) days after written notice,
specifying such failure and requesting that it be remedied, given
to the Company and to the Bank by the Trustee, unless the Trustee
shall agree in writing to an extension of such time prior to its
expiration; provided, however, if the failure stated in the
notice cannot be corrected within the applicable period, the
Trustee will not unreasonably withhold their consent to an
extension of such time if it is possible to correct such failure
and corrective action is instituted by the Company or the Bank
within the applicable period and diligently pursued until the
failure is corrected; or in the case of any such default which
can be cured with due diligence but not within such thirty-day
period, the Company's or Bank's failure to proceed promptly to
cure such default and thereafter prosecute the curing of such
default with due diligence;
(d) any representation by or on behalf of the Company
contained in this Loan Agreement or in any instrument furnished
in compliance with or in reference to this Loan Agreement, the
Indenture or the Reimbursement Agreement proves false or
misleading in any material respect as of the date of the making
or furnishing thereof;
(e) an "Event of Default" as defined in the Indenture,
occurs and is continuing under the Indenture; and
(f) an "Event of Default" as defined in the Reimbursement
Agreement, occurs and is continuing under the Reimbursement
Agreement;
provided, however, that the occurrence of an event described in
Section 6.1(d) shall not constitute an "event of default"
hereunder, without the prior written consent of the Bank.
The Company and the Issuer hereby authorize the Bank to do
any and all things necessary to correct any default described in
paragraph (c) above on behalf of the Company.
The foregoing provisions of subsection (c) of this Section
are subject to the following limitations: If by reason of force
majeure, the Company is unable in whole or in part to carry out
the agreements on its part therein referred to, the failure to
perform such agreements due to such inability shall not
constitute an event of default nor shall it become an event of
default upon appropriate notification to the Company or the
passage of the stated period of time. The term "force majeure"
as used herein shall mean, without limitation, the following:
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders of any kind of the government of
the United States of America or of the State or any of their
departments, agencies, political subdivisions or officials, or
any civil or military authority; insurrections; riots; epidemics;
landslides; lightning; earthquakes; fires; hurricanes; tornadoes;
storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; breakage
or accident to machinery, transmission pipes or canals; partial
or entire failure of utilities; or any other cause or event not
reasonably within the control of the Company. The Company
agrees, however, to remedy with all reasonable dispatch the cause
or causes preventing the Company from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required
to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or
parties when such course is, in the judgment of the Company,
unfavorable to the Company.
Section 6.2. Remedies. Whenever an event of default shall
have happened and be continuing, the Trustee, as the assignee and
pledgee of the Issuer under the Indenture, shall take any one or
more of the following remedial steps:
(a) The Trustee may declare all payments of principal and
accrued interest required to be made under Section 4.2(a) and the
Note to be immediately due and payable, whereupon the same shall
become immediately due and payable. If the Trustee elects to
exercise the remedy afforded in this subsection (a) and
accelerates all payments required to be made under Section
4.2(a), the amount then due and payable by the Company as
accelerated payments shall be the sum of (i) the aggregate
principal amount of the outstanding Bonds, (ii) all interest on
the Bonds then due and to become due to the date of payment of
the principal of the Bonds, and (iii) all other amounts due and
payable to the Issuer, if any, to the Bondholders or to the
Trustee with respect to the payment of the Bonds, including
Counsel fees actually incurred.
(b) Subject to the provisions of Section 6.5 hereof, the
Trustee may take whatever action at law or in equity may appear
necessary or desirable to collect any sums then due and
thereafter to become due hereunder or to enforce performance and
the observance of any agreement of the Company hereunder or under
the Note.
(c) The Trustee may exercise any remedies provided under
the Indenture.
Any amounts collected pursuant to action taken under this Section
shall be paid into the Bond Fund and applied in accordance with
the provisions of the Indenture and after Payment in Full of the
Bonds and the payment of any costs occasioned by an event of
default hereunder, any excess moneys in the Bond Fund shall be
returned to the Company.
The Company hereby authorizes the Trustee to draw moneys
under the Letter of Credit in accordance with the Indenture upon
a declaration of acceleration of payment of the Bonds in an
amount equal to (i) the aggregate principal amount of all
outstanding Bonds and (ii) all interest on the Bonds due and to
become due to the date of payment. The obligation of the Company
to accelerate payment of all payments required to be made by the
Company pursuant to Section 4.2 upon a declaration of
acceleration of payment of the Bonds shall be deemed satisfied
and discharged by a corresponding drawing and payment under the
Letter of Credit.
Section 6.3. No Remedy Exclusive. Subject to the
provisions of Section 6.5, no remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other
remedy, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy hereunder or now or
hereafter existing at law, in equity or by statute. No delay or
omission to exercise any right or power accruing upon the
occurrence of any event of default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right or power may be exercised from time to time and as often as
may be deemed expedient. The Trustee and the holders of the
Bonds, subject to the provisions of the Indenture, shall be
entitled to the benefit of all agreements herein contained.
Section 6.4. Agreement to Pay Counsel Fees and Expenses.
If there should occur a default or an event of default hereunder
and the Trustee or the Issuer should employ Counsel or incur
other expenses for the collection of sums due hereunder or the
enforcement of performance or observance of any agreement on the
part of the Company herein contained, the Company agrees that it
will on demand therefor pay to the Trustee or the Issuer the
reasonable fee of such Counsel and such other reasonable expenses
so incurred by the Trustee or the Issuer.
If the Company should fail to make any payments required in
this Section, such item shall continue as an obligation of the
Company until the same shall have been paid in full, with
interest thereon from the date such payment was due at the rate
per annum borne by the Bonds until paid in full.
Section 6.5. Waiver of Events of Default and Rescission of
Acceleration. If, in compliance with the requirements of Section
8.10 of the Indenture, the Trustee shall waive any event of
default as therein defined with the written consent of the Bank
and its consequences or rescind any declaration of acceleration
of payments of the principal of and interest on the Bonds, such
waiver shall also waive any event of default hereunder and its
consequences and such rescission of a declaration of acceleration
of the principal of and interest on the Bonds shall also rescind
any declaration of any acceleration of all payments required to
be made under Section 4.2. In case of any such waiver or
rescission, or in case any proceeding taken by the Trustee on
account of any such event of default shall have been discontinued
or abandoned or determined adversely, then and in every such case
the Issuer, the Company, the Trustee, the Bank and the holders of
the Bonds shall be restored to their former positions and rights
hereunder, but no such waiver or rescission shall extend to any
subsequent or other event of default or impair any right
consequent thereon.
ARTICLE VII
PREPAYMENT UNDER AGREEMENT
Section 7.1. Option to Prepay the Note.
(a) Unless there has been a determination which could
result in a Determination of Taxability, the Company shall have
the option (with the consent of the Bank) to prepay the Note
prior to maturity in whole at any time or in part on any Interest
Payment Date and to direct the Trustee to redeem the Bonds in
whole or in part pursuant to Section 3.01(a) or (b)(i) of the
Indenture. To exercise the option granted in this subsection,
the Company shall, not less than 45 days prior to the redemption
date on which the Company elects to cause such prepayment, give
written notice to the Issuer, the Bank, the Fiscal Agent, the
Remarketing Agent and Trustee of its intention to prepay such
installment payments and shall specify therein the principal
amount of Bonds to be redeemed upon such date. Upon the exercise
of any such option, the Company shall direct the Trustee to
redeem the Bonds in whole or in part on the date specified in
such notice and shall make arrangements satisfactory to the
Trustee for the giving of the required notice of redemption of
the Bonds. On or before the redemption date, sufficient
Available Moneys shall be deposited in the Bond Fund to redeem
the Bonds as provided in Section 3.05 of the Indenture and at the
redemption price provided in Section 3.01(a) or (b), as
applicable, of the Indenture; provided however, that the
obligation of the Company to make any such payment shall be
deemed to be satisfied and discharged to the extent of the
corresponding drawing and payment made under the Letter of
Credit. In addition, if the Company elects to prepay the
installment payments hereunder in full, it shall pay to the
Trustee or make provision for the payment satisfactory to the
Trustee of an amount of money equal to the Trustee's and Fiscal
Agent's fees and expenses accrued and to accrue through such
redemption date.
(b) Unless there has been a determination which could
result in a Determination of Taxability, the Company shall have,
and is hereby granted, the option (with the consent of Bank) to
prepay the installment amounts required to be made under Section
4.2(a) in whole and to cancel or terminate this Loan Agreement if
any of the following events shall have occurred:
(i) the Project shall have been damaged or destroyed
to such an extent that, in the judgment of the Company, (A)
it cannot be reasonably restored within a period of three
(3) consecutive months to the condition thereof immediately
preceding such damage or destruction, (B) the Company is
thereby prevented from carrying on its normal operations at
the Project for a period of three (3) consecutive months, or
(C) it would not be economically feasible for the Company to
replace, repair, rebuild or restore the same;
(ii) title in and to, or the temporary use of, all or
substantially all of the Project shall have been taken under
the exercise of the power of eminent domain by any
governmental authority, or person acting under governmental
authority (including such a taking as, in the judgment of
the Company, results in the Company being prevented thereby
from carrying on its normal operations at the Project for a
period of three (3) consecutive months);
(iii) as a result of any changes in the Constitution
of the State or the Constitution of the United States of
America or by legislative or administrative action (whether
State or Federal) or by final decree, judgment, decision or
order of any court or administrative body (whether State or
Federal), this Loan Agreement shall have become void or
unenforceable or impossible of performance in accordance
with the intent and purposes of the parties as expressed
herein;
(iv) unreasonable burdens or excessive liabilities
shall have been imposed on the Company with respect to the
operation of the Project, including, without limitation,
Federal, State or other ad valorem, property, income or
other taxes not being imposed on the date hereof which, in
the judgment of the Company, render the continued operation
of the Project uneconomic; or
(v) this Loan Agreement is terminated prior to its
expiration for any reason other than the occurrence of an
event of default.
To exercise such option, the Company (x) shall, within ninety
(90) days following the event giving rise to the Company's desire
to exercise such option, deliver to the Issuer and to the Trustee
a certificate, executed by an officer of the Company, stating (1)
the event giving rise to the exercise of such option, (2) that
the Company has directed the Trustee to redeem all of the Bonds
in accordance with the provisions of the Indenture, (3) in the
case of (i) or (ii) above, that the Company has discontinued, or
at the earliest practicable date will discontinue, its operation
of the Project, and (4) the date upon which such prepayment is to
be made, which date shall not be less than forty-five (45) days
nor more than ninety (90) days from the date such notice is
mailed; and (y) shall make arrangements satisfactory to the
Trustee for the giving of the required notice of redemption.
The Company hereby authorizes the Trustee to draw moneys
under the Letter of Credit and to deposit such moneys into the
Bond Fund to pay the redemption price of Bonds to be redeemed
upon the exercise by the Company of its option to direct the
redemption of the Bonds pursuant to Sections 7.1(a) or 7.1(b).
The obligation of the Company to make payments to the Trustee
sufficient to redeem the Bonds upon the exercise of such option
shall be deemed to be satisfied and discharged to the extent of
any corresponding drawing and payment under the Letter of Credit.
The prepayment price which shall be paid to the Trustee upon
the Company's exercise of the option granted in this Section
7.1(b) shall be the sum of the following:
(i) an amount of money which, when added to the amount
then on deposit in the Bond Fund, will be sufficient to pay
and redeem all of the Bonds Outstanding on the earliest
applicable redemption date including, without limitation,
principal plus accrued interest thereon to said redemption
date, plus
(ii) an amount of money equal to the Trustee's and the
Fiscal Agent's reasonable fees and expenses under the
Indenture accrued and to accrue until such final payment and
redemption of the Bonds.
(c) Unless there has been a determination which could
result in a Determination of Taxability, the Company shall have
the option (with the consent of Bank) to prepay a portion of the
installment amounts required to be paid under the Note if any of
the following events shall have occurred:
(i) title in and to, or the temporary use of, any
portion of the Project shall have been taken under the
exercise of the power of eminent domain by any governmental
authority, or person acting under governmental authority
(including such a taking as, in the judgment of the Company,
results in the Company being prevented thereby from carrying
on its normal operations with respect to such portion of the
Project for a period of three (3) consecutive months);
provided, however, that such prepayment shall be permitted
only to the extent that the compensation, awards or other
payments therefor are not applied to the repair,
restoration, rebuilding or replacement of the portion of the
Project so affected; or
(ii) the Project or a portion thereof shall have been
damaged or destroyed to such an extent that, in the judgment
of the Company, (A) it cannot be reasonably restored to the
condition thereof immediately preceding such damage or
destruction, (B) the Company is thereby prevented from
carrying on its normal operations at such portion of the
Project for a period of three (3) consecutive months, or (C)
it would not be economically feasible for the Company to
replace, repair, rebuild or restore the same; provided,
however, that such prepayment shall be permitted only to the
extent that any moneys received pursuant to insurance
carried with respect to the Project are not applied to the
repair, restoration, rebuilding or replacement of the
Project.
To exercise such option, the Company (a) shall, within
ninety (90) days following the event giving rise to such option,
deliver to the Issuer and to the Trustee, a certificate, executed
by a general partner or officer of the Company, stating (i) the
event giving rise to such option, (ii) that the Company has
directed the Trustee to redeem a specified amount of the Bonds
(in the amount of $100,000 or integral multiples thereof) in
accordance with the provisions of the Indenture, and (iii) the
date upon which such prepayment is to be made, which date shall
be not less than thirty (30) days nor more than sixty (60) days
from the date such notice is mailed or delivered to the Trustee;
(b) shall deliver to the Issuer and the Trustee an opinion of
Bond Counsel to the effect that such partial redemption will not
adversely effect the tax-exempt status of the interest on the
Bonds; and (c) shall make such arrangements satisfactory to the
Trustee for the giving of the required notice of redemption.
The Company hereby authorizes the Trustee to draw moneys
under the Letter of Credit and to deposit such moneys into the
Bond Fund to pay the redemption price of the Bonds to be redeemed
upon exercise by the Company of its option to direct redemption
of the Bonds in part pursuant to this Section 7.1(c) as provided
in Section 3.01(g) of the Indenture. The obligation of the
Company to make payments to the Trustee sufficient to redeem the
specified portion of the Bonds upon the exercise of such option
shall be deemed to be satisfied and discharged to the extent of
any corresponding drawing and payment under the Letter of Credit.
The prepayment price which shall be paid to the Trustee upon
the Company's exercise of the option granted in this Section
7.1(c) shall be the sum of the following:
(1) an amount of money which, added to the amount then
on deposit in the Bond Fund, will be sufficient to pay and
redeem the Bonds to be redeemed on the applicable redemption
date, including, without limitation, principal plus accrued
interest thereon to said redemption date, plus
(2) an amount equal to the Trustee's and the Fiscal
Agent's fees and expenses under the Indenture accrued and to
accrue because of the exercise of such option.
Section 7.2. Obligation to Prepay the Note in Whole Under
Agreement Under Certain Circumstances. If there occurs a
Determination of Taxability, the Company shall be obligated to
prepay immediately the Note by paying to the Trustee for deposit
in the Bond Fund, the amount required to redeem the Bonds in
accordance with Section 3.01(e) of the Indenture.
The Company hereby authorizes the Trustee to draw moneys
under the Letter of Credit in accordance with the Indenture to
the extent necessary to redeem the Bonds in whole upon the
occurrence of a Determination of Taxability. The obligation of
the Company to make payments to the Trustee sufficient to redeem
the Bonds upon the occurrence of a Determination of Taxability
shall be deemed satisfied and discharged to the extent of any
corresponding drawing and payment under the Letter of Credit.
The Company shall also pay, from funds other than moneys
drawn under the Letter of Credit, all expenses of redemption and
the fees and expenses of the Trustee and the Fiscal Agent. Said
accelerated payments shall also include expenses of redemption
and the fees and expenses of the Trustee and the Fiscal Agent
accrued and to accrue until such final payment and redemption of
the Bonds.
The Company shall give prompt written notice to the Issuer
and the Trustee of its receipt of any written advice from the
Internal Revenue Service or court that an event constituting a
Determination of Taxability has occurred.
Upon the redemption date contemplated by this Section 7.2,
provided there has been deposited with the Trustee the total
amount as required, such amount shall constitute the total
compensation due the Issuer and the holders of the Bonds as a
result of an occurrence of such Determination of Taxability and
the Company shall not be deemed to be in default hereunder by
reason of the occurrence of such Determination of Taxability.
Section 7.3. Obligations After Payment of Note and
Termination of Loan Agreement. Notwithstanding anything
contained herein to the contrary, the obligations of the Company
contained in Sections 4.2(d), 4.4, 5.2 and 6.4 shall continue
after payment of the Note and termination of the Loan Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Term of Agreement. Except as provided in
Sections 5.2 and 7.3, this Loan Agreement shall terminate when
Payment in Full of the Bonds shall have been made.
Section 8.2. Notices. All notices, approvals, consents,
requests and other communications hereunder shall be in writing
and shall be deemed to have been given (i) when delivered by hand
or sent by overnight courier, or (ii) when mailed by first class
registered or certified mail, return receipt requested, postage
prepaid, and addressed as follows or (unless specifically
prohibited) when telexed or telecopied to the telex or telecopy
numbers as follows:
If to the Issuer: Longview Industrial Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: City Attorney
Facsimile Number: (000) 000-0000
If to the Company: Xxxxxxx Industries, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention:Vice President of Finance and CFO
Facsimile Number: (000) 000-0000
If to the Trustee: Norwest Bank Minnesota, National Association
Corporate Trust Services MS 0069
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile Number: (000) 000-0000
If to the Bank: NationsBank, N.A.
Institutional Banking
000 Xxxxxxxxx Xxxxxx, X.X.
13th Floor
GA1-006-13-11
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Facsimile Number: (000) 000-0000
If to the
Remarketing Agent: NationsBanc Xxxxxxxxxx Securities LLC
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Manager, Short Term Desk
Facsimile Number: (000) 000-0000
If to the
Fiscal Agent: Norwest Bank Minnesota, National Association
Corporate Trust Services MS 0069
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention:Investor and Payment Services
Facsimile Number: (000) 000-0000
A duplicate copy of each notice, approval, consent, request or
other communication given hereunder by the Issuer, the Company,
the Trustee, the Remarketing Agent or the Bank to any one of the
others shall also be given to all of the others. The Issuer, the
Company, the Trustee and the Bank may, by notice given hereunder,
designate any further or different addresses to which subsequent
notices, approvals, consents, requests or other communications
shall be sent or persons to whose attention the same shall be
directed.
Section 8.3. Binding Effect. This Loan Agreement shall
inure to the benefit of and shall be binding upon the Issuer, the
Company and their respective successors and assigns.
Section 8.4. Severability. If any provision hereof shall
be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 8.5. Amounts Remaining in Bond Fund. It is agreed
by the parties hereto that any amounts remaining in the Bond Fund
and Construction Fund upon expiration or sooner termination of
this Loan Agreement, after Payment in Full of the Bonds, payment
of the fees, charges and expenses of the Trustee, the Remarketing
Agent, the Indexing Agent, the Fiscal Agent and the Bank
(including, without limitation, the fees and expenses of their
respective Counsel), and payment of all other amounts required to
be paid under the Indenture and under the Reimbursement
Agreement, including payment of rebatable arbitrage, shall be
paid immediately to the Company by the Trustee.
Section 8.6. Reliance by Issuer. The Issuer shall have the
right at all times to act in reliance upon the authorization,
representation or certification of the Company Representative or
the Trustee.
Section 8.7. Issuer's Obligations Limited. Except as
otherwise expressly herein provided, no recourse under or upon
any obligation or agreement contained in this Loan Agreement or
in any Bond or under any judgment obtained against the Issuer, or
by the enforcement of any assessment or by any legal or equitable
proceeding by virtue of any constitution or statute or otherwise
or under any circumstances, under or independent of the
Indenture, shall be had against the Issuer.
Notwithstanding anything in this Loan Agreement to the
contrary, it is expressly understood and agreed by the parties
hereto that (a) the Issuer may rely conclusively on the truth and
accuracy of any certificate, opinion, notice or other instrument
furnished to the Issuer by the Trustee or the Company as to the
existence of any fact or state of affairs required hereunder to
be noticed by the Issuer; (b) the Issuer shall not be under any
obligation hereunder to perform any record-keeping or to provide
any legal services, it being understood that such services shall
be performed either by the Trustee or the Company; and (c) none
of the provisions of this Loan Agreement shall require the Issuer
to expend or risk its own funds or to otherwise incur financial
liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder, unless it
shall first have been adequately indemnified to its satisfaction
against the cost, expenses and liability which may be incurred
thereby.
Notwithstanding anything herein contained to the contrary,
any obligation which the Issuer may incur under this Loan
Agreement or under any instrument executed in connection herewith
which shall entail the expenditure of money shall not be a
general obligation of the Issuer but shall be a limited
obligation payable solely from the Pledged Revenues.
Section 8.8. Immunity of Directors, Officers and Employees
of Issuer. No recourse shall be had for the enforcement of any
obligation, promise or agreement of the Issuer contained in the
Indenture, this Loan Agreement or in any Bond issued under the
Indenture for any claim based thereon or otherwise in respect
thereof, against any director, officer, employee or agent, as
such, in his individual capacity, past, present or future, of the
Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by
virtue of any constitutional provision, statute or rule of law,
or by the enforcement of any assignment or penalty or otherwise;
it being expressly agreed and understood that the Bonds, the
Indenture and this Loan Agreement are solely corporate
obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any director, officer, employee or
agent, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or
any successor corporation, under or by reason of any of the
obligations, promises or agreements entered into between the
Issuer and the Company whether contained in this Loan Agreement
or to be implied therefrom as being supplemental hereto or
thereto, and that all personal liability of that character
against every such director, officer, employee or agent is, by
the execution of this Loan Agreement and the Indenture, and as a
condition of, and as part of the consideration for, the execution
of this Loan Agreement and the Indenture, expressly waived and
released.
Section 8.9. Payments by Bank. The Bank shall, to the
extent of any payments made by it pursuant to the Letter of
Credit, be subrogated to all rights of the Issuer or its assigns
(including, without limitation, the Trustee) as to all
obligations of the Company with respect to which such payments
shall be made by the Bank, but, so long as any of the Bonds
remain Outstanding under the terms of the Indenture, such right
of subrogation on the part of the Bank shall be in all respects
subordinate to all rights and claims of the Issuer for all
payments which are then due and payable under the Indenture or
otherwise arising under this Loan Agreement, the Indenture or the
Bonds. The Trustee will, upon request, execute and deliver any
instrument reasonably requested by the Bank to evidence such
subrogation and the Trustee shall assign to the Bank its rights
in any obligations of the Company with respect to which payment
of the entire principal balance and accrued interest thereon
shall be made by the Bank.
Section 8.10. Amendments, Changes and Modifications.
Except as otherwise provided herein or in the Indenture,
subsequent to the date of issuance and delivery of the Bonds and
prior to their Payment in Full, this Loan Agreement and the Note
may not be effectively amended or terminated without the written
consent of the Company and the Bank. This Loan Agreement may be
modified, altered, amended or supplemented in accordance with the
Indenture in order to obtain a rating of the Bonds by the Rating
Agency.
Section 8.11. Counterparts. This Loan Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall
constitute one and the same instrument.
Section 8.12. Captions. The captions and headings herein
are for convenience only and in no way define, limit or describe
the scope or intent of any provisions hereof.
Section 8.13. LAW GOVERNING CONSTRUCTION OF AGREEMENT.
THIS LOAN AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
Section 8.14. No Third Party Beneficiaries. It is
specifically agreed between the parties executing this Loan
Agreement that neither this Loan Agreement nor any of the
provisions hereof are intended to establish in favor of the
public or any member thereof, other than as expressly provided
herein, including assignment of the Issuer's rights under this
Loan Agreement to the Trustee pursuant to the Indenture, the
rights of a third party beneficiary hereunder, as to authorize
any one not a party of this Loan Agreement to maintain a suit for
personal injuries or property damage pursuant to the terms or
provisions of this Loan Agreement. The duties, obligations and
responsibilities of the parties to this Loan Agreement with
respect to third parties shall remain as imposed by law.
Section 8.15. Jurisdiction; Immunities. The Company hereby
irrevocably submits to the non-exclusive jurisdiction of any
Texas State or United States Federal Court sitting in the State
over any action or proceeding arising out of or relating to this
Loan Agreement, the Indenture or the Bonds, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Texas State or
Federal Court. The Company hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the
date hereof at 000 X. Xx. Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, as
its agent to receive on its behalf and its property service of
copies of the summons and complaint and any other process which
may be served in any such action or proceeding. Such service
upon the Company may be made by mailing or delivering a copy of
such process to the Company in care of the Process Agent to the
Process Agent's above address, and the Company hereby irrevocably
authorizes and directs the Process Agent to accept such service
on its behalf. As an alternative method of service the Company
also irrevocably consents to the service of any and all process
in any such action or proceeding by the mailing of copies of such
process to it at its address referred to in Section 8.2 of this
Loan Agreement. The Company agrees that a final judgment (i.e.,
an unappealed judgment with respect to which the period for any
appeal has lapsed) in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. The Company
further waives any objection to venue in the State and any
objection to any action or proceeding in the State on the basis
of forum non conveniens. Nothing in this Section 8.15 shall
affect the right of the Issuer, the Trustee or the Owners of the
Bonds to serve legal process in any other manner permitted by law
or affect the right of any such party to bring any action or
proceeding against the Company or its property in the courts of
any other jurisdiction.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Loan Agreement to be executed in their respective corporate
names and their respective seals to be affixed hereto and
attested by their authorized officers, all as of the date first
above written.
LONGVIEW INDUSTRIAL CORPORATION
SEAL
By: s/Bil Stroudt
President
Attest:
s/Xxxxxx Xxxx
Secretary
XXXXXXX INDUSTRIES, INC.
(SEAL)
By: /s/Xxxxx X. Xxxxx
Vice President of Finance and
CFO
Attest:
/s/Xxxxx X. Xxxxxx
Secretary
