OKLAHOMA INDUSTRIES AUTHORITY
AND
TOWER TECH, INC.
---------------------------------
LOAN AGREEMENT
---------------------------------
Dated as of October 1, 1996
=================================================================
The interest of the Oklahoma Industries Authority in this Loan
Agreement has been assigned (except for amounts payable under Sections 4.2(b),
4.2(e), 7.2 and 8.4 hereof) pursuant to the Indenture of Trust dated as of the
date hereof from the Issuer to Boatmen's National Bank of Oklahoma, as trustee
(the "Trustee"), and is subject to the security interest of the Trustee
thereunder.
LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Loan Agreement and is only
for convenience of reference.)
Page
PARTIES ..................................... 1
PREAMBLES ..................................... 1
ARTICLE I
DEFINITIONS ..................................... 3
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2.1 Representations, Covenants and Warranties
of the Issuer....................... 6
SECTION 2.2 Representations, Covenants and Warranties
of the Company..........................6
ARTICLE III
ACQUISITION AND CONSTRUCTION OF THE
PROJECT; ISSUANCE OF THE BONDS
SECTION 3.1 Agreement to Acquire, Construct, Furnish
and Equip the Project.....................9
SECTION 3.2 Agreement to Issue the Bonds; Application
of Bond Proceeds..........................9
SECTION 3.3 Disbursements from the Construction Fund..... 9
SECTION 3.4 Furnishing Documents to the Trustee.......... 9
SECTION 3.5 Establishment of Completion Date............. 9
SECTION 3.6 Company Required to Pay in Event
Construction Fund Insufficient............... 10
ARTICLE IV
LOAN PROVISIONS
SECTION 4.1 Loan of Proceeds......................... 11
SECTION 4.2 Amounts Payable.......................... 11
SECTION 4.3 Obligations of Company Unconditional..... 12
ARTICLE V
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 5.1 Damage, Destruction and Condemnation..... 14
SECTION 5.2 Application of Net Proceeds.............. 14
SECTION 5.3 Insufficiency of Net Proceeds............ 14
ARTICLE VI
SPECIAL COVENANTS
SECTION 6.1 No Warranty of Condition or Suitability
by Issuer...................................15
SECTION 6.2 Access to the Project.........................15
SECTION 6.3 Further Assurances and Corrective
Instruments.................................15
SECTION 6.4 Issuer and Company Representatives............15
SECTION 6.5 Standby Bond Purchase Agreement...............15
ARTICLE VII
ASSIGNMENT, SELLING, LEASING;
INDEMNIFICATION; REDEMPTION
SECTION 7.1 Assignment, Selling and Leasing.................. 16
SECTION 7.2 Release and Indemnification Covenants............ 16
SECTION 7.3 Redemption of Bonds.............................. 18
SECTION 7.4 Issuer to Grant Security Interest
to Trustee..................................... 18
SECTION 7.5 Indemnification of Trustee....................... 18
ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.1 Defaults Defined................................. 19
SECTION 8.2 Remedies on Default.............................. 20
SECTION 8.3 No Remedy Exclusive.............................. 21
SECTION 8.4 Agreement to pay Attorneys' Fees and
Expenses....................................... 21
SECTION 8.5 No Additional Waiver Implied by One
Waiver; Consent of Standby Purchaser
Required for Waivers........................... 21
ARTICLE IX
OPTIONS TO TERMINATE AGREEMENT
SECTION 9.1 Option to Terminate Upon the Occurrence
of Certain Events............................... 22
SECTION 9.2 Optional Prepayment............................... 23
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Term of Agreement.................................. 24
SECTION 10.2 Notices............................................ 24
SECTION 10.3 Binding Effect..................................... 24
SECTION 10.4 Severability....................................... 24
SECTION 10.5 Amounts Remaining in Funds......................... 24
SECTION 10.6 Amendments, Changes and Modifications.............. 25
SECTION 10.7 Execution in Counterparts.......................... 25
SECTION 10.8 Applicable Law..................................... 25
SECTION 10.9 Captions........................................... 25
TESTIMONIUM .................................................... 26
SIGNATURES .................................................... 26
EXHIBIT A - Project Site
EXHIBIT B - Project Building
EXHIBIT C - Form of Requisition
EXHIBIT D - Form of Completion Certificate
EXHIBIT E - Payment Schedule
LOAN AGREEMENT
THIS LOAN AGREEMENT is dated as of October 1, 1996, between OKLAHOMA
INDUSTRIES AUTHORITY (the "Issuer") and TOWER TECH, INC., a corporation
organized and existing under the laws of the State of Oklahoma (the "Company").
W I T N E S S E T H :
WHEREAS, the Issuer is empowered under the Act to assist any person, firm
or corporation in the financing of certain projects and facilities, through the
issuance of its limited obligation revenue bonds. The Company has proposed the
acquisition of land and the constructing and equipping of the Project and as an
inducement therefor has requested the Issuer to assist in the financing of the
Project and certain other expenses incidental thereto, as provided in the Act
and detailed in this Agreement and generally as follows: The Issuer proposes to
issue the Bonds under the Act and use the proceeds thereof to make the Loan to
the Company to be repaid in such Loan Repayments sufficient to pay the principal
and interest of the Bonds. From the proceeds of the Loan, the Company will pay
the cost of acquisition, construction and equipping of the Project. Under the
terms of the Agreement, the Company will make Loan Repayments, and will be
responsible for paying any costs of the Project exceeding the amount of the
Bonds, maintaining and insuring the Project, and paying all taxes and expenses
relating to the Project. The Issuer's obligation with respect to the Bonds is
subject to the limitations therein contained, including the limitation that the
principal of and interest on the Bonds and any other costs or pecuniary
liability relating to the Bonds, the Loan and installation of the Project or any
proceeding, document or certification incidental to the foregoing, shall never
be payable from tax revenues or public funds of the State or any agency thereof
or general funds or assets of the Issuer (except as specifically set forth
therein) or Oklahoma County, but shall be payable only from the Loan Repayments,
or otherwise by the Company.
WHEREAS, the Issuer has determined that entering into this Agreement and
thereby assisting in the financing of the Project through the issuance of its
Bonds will promote and serve the intended purposes of the Act and will serve a
valid public purpose.
WHEREAS, the Issuer has been advised by Bond Counsel that this Agreement
conforms to the provisions and requirements of the Act. It is intended and
understood by the Issuer and the Company that this Agreement and all other
documentation relating to the issuance of the Bonds shall provide that Costs (as
herein defined), payment of principal and interest on the Bonds or any other
pecuniary liability of the Issuer relating to the issuance of the Bonds, this
Agreement or the Project shall never be payable from tax revenues or other
public or general funds or assets of the Issuer (except as specifically set
forth therein) or the County, but shall be payable solely and only from the
Trust Estate, or from other funds derived from the Project or otherwise by the
Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and subject to the limitations hereinafter contained, the parties hereto
covenant, agree and bind themselves as follows:
ARTICLE I
DEFINITIONS
All capitalized, undefined terms used herein shall have the same meanings
as used in Article I of the hereinafter defined Indenture. In addition, the
following words and phrases shall have the following meanings:
"Bonds" means $4,405,000 Oklahoma Industries Authority Adjustable
Rate Taxable Industrial Revenue Bonds
(Tower Tech Project) Series 1996.
"Consulting Engineer" means any licensed professional architect or engineer
or an architectural or engineering firm (who may be in the employ of the Company
or chosen by the Company) acceptable to the Standby Purchaser.
"Cost" with respect to the Project shall be deemed to include all items
permitted to be financed under the provisions of the Act, including, but not
limited to:
(i) all costs which the Issuer or the Company shall be
required to pay under the terms of any contract or contracts for the
acquisition, rehabilitation, furnishing or equipping of the Project;
(ii) obligations of the Company incurred for labor and
materials (including obligations payable to the Company) in connection
with the acquisition, rehabilitation, furnishing or equipping of the
Project, including reimbursement to the Company for all advances and
payments made in connection with the Project;
(iii) the cost of performance or other bonds and any and
all types of insurance that may be necessary or appropriate to have in
effect during the course of rehabilitation of the Project;
(iv) all costs of engineering and architectural services,
including the costs of the Company for test borings, surveys,
estimates, plans and specifications and preliminary investigations
therefor, and for supervising rehabilitation, as well as for the
performance of all other duties required by or consequent to the proper
rehabilitation of the Project;
(v) all expenses incurred in connection with the issuance of
the Bonds, including but not limited to, compensation, fees and
expenses of the Issuer, the Trustee, including reasonable counsel fees,
compensation to any financial consultant, underwriters or placement
agents, legal fees and expenses, cost of printing and engraving,
recording and filing fees, and costs of title insurance, if any; and
(vi) any sums required to reimburse the Company for advances
made by the Company for any of the above items or for any other costs
incurred which are presently chargeable to the Project.
"County" means the County of Oklahoma, State of Oklahoma.
"Default" means any Default under this Agreement as specified in and
defined by Section 8.1 hereof.
"Indenture" means the Indenture of Trust dated as of this date between the
Issuer and the Trustee, pursuant to which the Bonds are authorized to be issued,
and any amendments and supplements thereto.
"Loan" means the Loan made pursuant to Section 4.1 of this Agreement.
"Loan Repayment" means the amounts payable by the Company pursuant to
Section 4.2 hereof.
"Net Proceeds" when used with respect to any insurance proceeds or any
condemnation award, means the amount remaining after deducting all expenses
(including attorneys' fees) incurred in the collection of such proceeds or award
from the gross proceeds thereof.
"Project" means the Project Building and the Project Site.
"Project Building" means (i) the property which is described generally in
Exhibit B hereto, and (ii) any items of machinery, equipment, or other tangible
property acquired in substitution for, or as a renewal or replacement of or a
modification or improvement to, the property described in (i) above.
"Project Site" means the real estate described in Exhibit A hereto on which
the Project Building will be situated and any other interests in real property,
leasehold interests, easements, licenses and rights in real property hereafter
acquired by the Company with proceeds of the Bonds for use in connection with
the Project.
"Requisition" means a written request for a disbursement from the
Construction Fund signed by a Company Representative, substantially in the form
attached hereto as Exhibit C and satisfactorily completed as contemplated by
said form.
"State" means the State of Oklahoma.
"Substitute Credit Enhancement" means a standby bond purchase agreement
or similar credit enhancement delivered to the Trustee in accordance with
Section 6.5 hereof, replacing any existing Standby Bond Purchase Agreement
issued on substantially identical terms and conditions as the then existing
Standby Bond Purchase Agreement.
"Term of Agreement" means the term of this Agreement as specified in
Section 10.1 hereof.
* END OF ARTICLE I *
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of the Issuer. The
Issuer represents, covenants and warrants that:
(a) The Project and the financing thereof through issuance of
the Bonds will promote the public purposes of the Act and the public
welfare by encouraging and assisting the location, purchase,
rehabilitation, reconstruction, modernization, improvement,
maintenance, repair, furnishing, equipping and expansion by industrial
and commercial enterprises of their facilities near Oklahoma County and
the alleviation and prevention of conditions of unemployment and by
otherwise strengthening the economy of Oklahoma County and the City of
Oklahoma City.
(b) The Issuer has the necessary power under the Act, and has
duly taken all action on its part required to authorize, execute and
deliver the Agreement and to issue the Bonds. The execution and
performance by the Issuer will not violate or conflict with any
agreement or instrument by which the Issuer or its properties are
bound.
(c) The Issuer covenants that it will not pledge the amounts
derived from this Agreement other than as contemplated by the
Indenture.
Section 2.2. Representations, Covenants and Warranties of the
Company. The Company represents, covenants and warrants that:
(a) The Company is a corporation validly organized and
existing under the laws of the State of Oklahoma and duly authorized to
do business in the State. The execution, delivery and performance by
the Company of this Agreement and the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the
Company and such actions do not violate any provision of the Company's
charter. The Company has the power to enter into this Agreement.
(b) The Company agrees that during the Term of Agreement it
will maintain its existence, will not dissolve or otherwise dispose of
all or substantially all of its assets and will not consolidate with or
merge into another legal entity or permit one or more other legal
entities to consolidate with or merge into it; provided that the
Company may, without violating the agreement contained in this Section,
consolidate with or merge into another legal entity, or permit one or
more legal entities to consolidate with or merge into it, or sell or
otherwise transfer to another legal entity all or substantially all of
its assets as an entirety and thereafter dissolve, provided (i) that
the surviving, resulting or transferee legal entity, as the case may
be, shall have a net worth immediately subsequent to such acquisition,
consolidation, merger or transfer at least equal to that of the Company
immediately prior to such acquisition, consolidation, merger or
transfer; and (ii) that if the surviving, resulting or transferee legal
entity, as the case may be, is not the Company, then such legal entity
shall be a legal entity organized and existing under the laws of one of
the States of the United States of America, shall be qualified to do
business in the State, and shall assume all of the obligations of the
Company under the Agreement, in which event the Issuer shall release
the Company in writing, concurrently with and contingent upon such
acquisition, consolidation, merger or transfer; and provided further
that, prior to such acquisition, consolidation, merger, or transfer,
the Trustee shall be furnished with a certificate from Company stating
that in the opinion of the Company none of the covenants contained in
this Agreement will be violated as a result of such acquisition,
consolidation, merger or transfer.
(c) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions hereof or
thereof, conflicts with or results in a breach of the terms,
conditions, or provisions of any agreement or instrument to which the
Company is bound, or constitutes a default under any of the foregoing,
or results in the creation or imposition of any lien, charge or
encumbrance whatsoever upon any of the property or assets of the
Company under the terms of any such instrument or agreement.
(d) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public
board or body, known to be pending or threatened against or affecting
the Company, nor to the best knowledge of the Company is there any
basis therefor, wherein an unfavorable decision, ruling or finding
would materially adversely affect the transactions contemplated by this
Agreement or which would adversely affect, in any way, the validity or
enforceability of the Bonds, this Agreement or any agreement or
instrument to which the Company is a party, used or contemplated for
use in the consummation of the transactions contemplated hereby.
(e) The Project is of the type authorized and permitted
by the Act, and its estimated Cost is not less than $4,405,000.
(f) The proceeds from the sale of the Bonds will be
used only for payment of Costs of the Project.
(g) The Company will use due diligence to cause the Project to
be operated in accordance with the laws, rulings, regulations, agencies
and political subdivisions thereof. The Company has obtained or caused
to be obtained all requisite approvals of the State and of other
federal, state, regional and local governmental bodies for the
acquisition, rehabilitation, furnishing and equipping of the Project.
(h) The Company will fully and faithfully perform all the
duties and obligations which the Issuer has covenanted and agreed in
the Indenture to cause the Company to perform and any duties and
obligations which the Company is required in the Indenture to perform.
The foregoing shall not apply to any duty or undertaking of the Issuer
which by its nature cannot be delegated or assigned.
(i) The Project when completed will be located entirely
within Oklahoma City.
* END OF ARTICLE II *
ARTICLE III
ACQUISITION AND CONSTRUCTION OF THE
PROJECT; ISSUANCE OF THE BONDS
Section 3.1. Agreement to Acquire, Construct, Furnish and Equip the
Project. The Company agrees to make all contracts and do all things necessary
for the acquisition, rehabilitation, furnishing and equipping of the Project,
with or without advertising for bids.
The Company further agrees that it will acquire the land, construct the
building, furnish and equip the Project with all reasonable dispatch and use its
best efforts to cause acquisition, rehabilitation, furnishing, equipping and
occupancy of the Project to be completed by October 1, 1997 or as soon
thereafter as may be practicable, delays caused by force majeure as defined in
Section 8.1 hereof only excepted; but if for any reason such acquisition,
rehabilitation, furnishing and equipping is not completed by said date there
shall be no resulting liability on the part of the Company and no diminution in
or postponement of the payments required in Section 4.2 hereof to be paid by the
Company.
Section 3.2. Agreement to Issue the Bonds; Application of Bond Proceeds. In
order to provide funds for the payment of the Cost of the Project, the Issuer,
concurrently with the execution of this Agreement, will issue, sell and deliver
the Bonds and deposit the net proceeds thereof with the Trustee in the
Construction Fund.
Section 3.3. Disbursements from the Construction Fund. The Issuer has, in
the Indenture, authorized and directed the Trustee to make disbursements from
the Construction Fund to pay the Costs of the Project, or to reimburse the
Company for any Cost of the Project paid by the Company. The Trustee shall not
make any disbursement from the Construction Fund until the Company shall have
provided the Trustee with a Requisition.
Section 3.4. Furnishing Documents to the Trustee. The Company agrees to
cause such Requisitions to be directed to the Trustee as may be necessary to
effect payments out of the Construction Fund in accordance with Section 3.3
hereof.
Section 3.5. Establishment of Completion Date. The Completion Date shall be
evidenced to the Issuer and the Trustee by delivery of the Completion
Certificate in the form attached as Exhibit "D" hereto, signed by a Company
Representative stating that, except for amounts retained by the Trustee at the
Company's direction to pay any Cost of the Project not then due and payable, (i)
rehabilitation of the Project has been completed and all costs of labor,
services, materials and supplies used in connection with such rehabilitation
have been paid, (ii) all equipment for the Project has been installed, such
equipment so installed is suitable and sufficient for the operation of the
Project, and all costs and expenses incurred in the acquisition and installation
of such equipment have been paid, and (iii) all other facilities necessary in
connection with the Project have been acquired, rehabilitated, furnished and
equipped and all costs and expenses incurred in connection therewith have 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. Forthwith
upon completion of the acquisition, rehabilitation, furnishing and equipping of
the Project, the Company agrees to cause such certificate to be furnished to the
Issuer and the Trustee. Upon receipt of such certificate, the Trustee shall
retain in the Construction Fund a sum equal to the amounts necessary for payment
of the Costs of the Project not then due and payable according to such
certificate. If any such amounts so retained are not subsequently used, prior to
any transfer of said amounts to the Bond Fund as provided below, the Trustee
shall give notice to the Company of the failure to apply said funds for payment
of the Costs of the Project. Any amount not to be retained in the Construction
Fund for payment of the Costs of the Project, and all amounts so retained but
not subsequently used, shall be transferred by the Trustee into the Bond Fund.
Section 3.6. Company Required to Pay in Event Construction Fund
Insufficient. In the event the moneys in the Construction Fund available for
payment of the Costs of the Project should not be sufficient to pay the Costs of
the Project in full, the Company agrees to complete the Project and to pay that
portion of the Costs of the Project in excess of the moneys available therefor
in the Construction Fund. The Issuer does not make any warranty, either express
or implied, that the moneys paid into the Construction Fund and available for
payment of the Costs of the Project will be sufficient to pay all of the Costs
of the Project. The Company agrees that if after exhaustion of the moneys in the
Construction Fund, the Company should pay any portion of the Costs of the
Project pursuant to the provisions of this Section, the Company shall not be
entitled to any reimbursement therefor from the Issuer, the Trustee or the
Owners of any of the Bonds, nor shall the Company be entitled to any diminution
of the amounts payable under Section 4.2 hereof.
* END OF ARTICLE III *
ARTICLE IV
LOAN PROVISIONS
Section 4.1. Loan of Proceeds. The Issuer agrees, upon the terms and
conditions contained in this Agreement and the Indenture, to lend to the Company
the proceeds received by the Issuer from the sale of the Bonds. Such proceeds
shall be disbursed to or on behalf of the Company as provided in Section 3.3
hereof.
Section 4.2. Amounts Payable.
(a) The Company hereby covenants and agrees to repay the Loan,
as follows: on or before any interest payment date for the Bonds or any
other date that any payment of interest, premium, if any, or principal
is required to be made in respect of the Bonds pursuant to the
Indenture, until the principal of, premium, if any, and interest on the
Bonds shall have been fully paid or provision for the payment thereof
shall have been made in accordance with the Indenture, in immediately
available funds, a sum which, together with any moneys available for
such payment in the Bond Fund, will enable the Trustee to pay the
amount payable on such date as principal of (whether at maturity or
upon redemption or acceleration or otherwise), premium, if any, and
interest on the Bonds as provided in the Indenture.
(b) The Company will also pay the reasonable expenses of the
Issuer related to the issuance of the Bonds and incurred upon the
written request of the Company.
(c) The Company will also pay the reasonable fees and expenses
of the Trustee under the Indenture and all other amounts which may be
payable to the Trustee under Section 10.02 of the Indenture, such
amounts to be paid directly to the Trustee for the Trustee's own
account as and when such amounts become due and payable.
(d) The Company covenants, for the benefit of the Owners of
the Bonds, to pay or cause to be paid, to the Trustee, such amounts as
shall be necessary to enable the Trustee to pay the Purchase Price of
Bonds delivered to it for purchase, all as more particularly described
in Sections 4.01 of the Indenture.
(e) The Company agrees to pay amounts sufficient to
reestablish the Reserve Fund at the Reserve Fund Requirement within
twelve (12) months of any deficit in the Reserve Fund below the Reserve
Fund Requirement.
(f) Recognizing that Issuer has certain audit, administrative
and clerical expenses, the Company agrees to pay to the Issuer an
administrative payment in a sum equal to its proportionate share of the
audit expense plus one-eighth of one percent (1/8th of 1%) per annum of
the principal amount of the Bonds Outstanding as of the payment date
during the term thereof, one-half of the first year's administrative
payment to be calculated by the Issuer six months after delivery of the
Bonds and payable within thirty (30) days thereafter, with like
calculations and payments semiannually thereafter with the final
payment due when the Bonds are retired. In addition, the Company agrees
to pay to the Issuer, together with interest at the Late Payment Rate,
all sums paid by the Issuer to the Trustee for the benefit of the
Owners of the Bonds, such sums to be due and payable immediately upon
payment by the Issuer. Payments under this subsection (f) shall be made
directly to the Issuer at its office in Oklahoma City, Oklahoma, or at
such other location as my be set forth in writing by the Issuer.
(g) In the event the Company should fail to make any of the
payments required in this Section 4.2, the item or installment so in
default shall continue as an obligation of the Company until the amount
in default shall have been fully paid, and the Company agrees to pay
the same with interest thereon, to the extent permitted by law, from
the date when such payment was due, at the Late Payment Rate.
It is understood and agreed that all payments payable by the
Company under subsections (a), (d) and (e) of this Section 4.2 are
assigned by the Issuer to the Trustee for the benefit of the Owners of
the Bonds. The Company assents to such assignment. The Issuer hereby
directs the Company and the Company hereby agrees to pay to the Trustee
at the Principal Office of the Trustee all payments payable by the
Company pursuant to this subsection.
For the convenience of the parties the fixed payments hereunder are
attached hereto as Exhibit "E".
Section 4.3. Obligations of Company Unconditional. The obligations of
the Company to make the payments required in Section 4.2 and to perform and
observe the other agreements contained herein shall be absolute and
unconditional and shall not be subject to any defense or any right of setoff,
counterclaim or recoupment arising out of any breach by the Issuer or the
Trustee of any obligation to the Company, whether hereunder or otherwise, or out
of any indebtedness or liability at any time owing to the Company by the Issuer
or the Trustee, and, until such time as the principal of, premium, if any, and
interest on the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the Indenture, the Company (i)
will not suspend or discontinue any payments provided for in Section 4.2 hereof,
(ii) will perform and observe all other agreements contained in this Agreement
and (iii) except as provided in Article IX hereof, will not terminate the Term
of Agreement for any cause, including, without limiting the generality of the
foregoing, failure of the Company to complete the acquisition, rehabilitation,
furnishing and equipping of the Project, the occurrence of any acts of
circumstances that may constitute failure of consideration, eviction or
constructive eviction, destruction of or damage to the Project, the taking by
eminent domain of title to or temporary use of any or all of the Project,
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
thereof or any failure of the Issuer or the Trustee to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation
arising out of or connection with this Agreement. Nothing contained in this
Section shall be construed to release the Issuer from the performance of any of
the agreements on its part herein contained, and in the event the Issuer or the
Trustee should fail to perform any such agreement on its part, the Company may
institute such action against the Issuer or the Trustee as the Company may deem
necessary to compel performance so long as such action does not abrogate the
obligations of the Company contained in the first sentence of this Section.
* END OF ARTICLE IV *
ARTICLE V
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 5.1. Damage, Destruction and Condemnation. Unless the Company shall
have exercised its option to terminate this Agreement pursuant to the provisions
of Section 9.1(a) or Section 9.1(b) hereof, if prior to full payment of the
Bonds (or prior to provision for payment thereof having been made in accordance
with the provisions of the Indenture) (i) the Project is destroyed or damaged by
fire or other casualty or (ii) title to or any interest in, or the temporary use
of, the Project shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation acting under
governmental authority, the Company shall be obligated to continue to pay the
amounts specified in Section 4.2 hereof.
Section 5.2. Application of Net Proceeds. The Net Proceeds of any
insurance proceeds or condemnation award resulting from any events described in
Section 5.1 hereof shall be deposited to the Construction Fund and used by the
Company to restore the Project, unless the Bonds are redeemed pursuant to
Section 9.1(a) or 9.1(b).
Section 5.3. Insufficiency of Net Proceeds. Unless the Company shall have
exercised its option to terminate this Agreement pursuant to the provisions of
Section 9.1(a) or 9.1(b) hereof, if the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement of the
Project, the Company will nonetheless complete the work and will pay any cost in
excess of the amount of the Net Proceeds. The Company agrees that if by reason
of any such insufficiency of the Net Proceeds, the Company shall make any
payments pursuant to the provisions of this Section, the Company shall not be
entitled to any reimbursement therefor from the Issuer, the Trustee or the
Owners of any of the Bonds, nor shall the Company be entitled to any diminution
of the amounts payable under Section 4.2 hereof.
* END OF ARTICLE V *
ARTICLE VI
SPECIAL COVENANTS
Section 6.1. No Warranty of Condition or Suitability by Issuer. THE ISSUER
MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PROJECT OR THE CONDITION
THEREOF, OR THAT THE PROJECT WILL BE SUITABLE FOR THE PURPOSES OR NEEDS OF THE
COMPANY. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
THAT THE COMPANY WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE PROJECT. THE
ISSUER MAKES NO 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 COMPANY'S PURPOSES.
Section 6.2. Access to the Project. The Company agrees that the Issuer, the
Standby Purchaser, the Trustee and their duly authorized agents, attorneys,
experts, engineers, accountants and representatives shall have the right to
inspect the Project at all reasonable times and on reasonable notice. The
Issuer, the Standby Purchaser, the Trustee and their duly authorized agents
shall also be permitted, at all reasonable times, to examine the books and
records of the Company with respect to the Project.
Section 6.3. Further Assurances and Corrective Instruments. The Issuer and
the Company agree that they will, from time to time, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required for carrying
out the expressed intention of this Agreement.
Section 6.4. Issuer and Company Representatives. Whenever under the
provisions of this Agreement the approval of the Issuer or the Company is
required or the Issuer or the Company is required to take some action at the
request of the other, such approval or such request shall be given for the
Issuer by an Issuer Representative and for the Company by a Company
Representative. The Trustee shall be authorized to act on any such approval or
request.
Section 6.5. Standby Bond Purchase Agreement. The Company covenants and
agrees to maintain a Standby Bond Purchase Agreement or a Substitute Credit
Enhancement at all times that the Bonds remain Outstanding. The Company
covenants and agrees that it will not take any action which will impair its
rights or the rights of any other party under the Standby Bond Purchase
Agreement or Substitute Credit Enhancement. At any time the Company may, at its
option, subject to the provisions of the Standby Bond Purchase Agreement and the
Indenture, provide for the delivery to the Trustee of a Substitute Credit
Enhancement in lieu of the Standby Bond Purchase Agreement then in effect.
* END OF ARTICLE VI *
ARTICLE VII
ASSIGNMENT, SELLING, LEASING;
INDEMNIFICATION; REDEMPTION
Section 7.1. Assignment, Selling and Leasing. This Agreement may not be
assigned and the Project may not be sold or leased, as a whole or in part,
except upon payment in full of the principal, interest and premium, if any, on
the Bonds.
Section 7.2. Release and Indemnification Covenants.
(a) The Company shall and hereby agrees to indemnify and save
the Issuer, the Standby Purchaser and the Trustee harmless against and
from all claims by or on behalf of any person, firm, corporation or
other legal entity arising from the conduct or management of, or from
any work or thing done on, the Project during the Term of Agreement,
including without limitation, (i) any condition of the Project, (ii)
any breach or default on the part of the Company in the performance of
any of its obligations under this Agreement, (iii) any act or
negligence of the Company or of any of its agents, contractors,
servants, employees or licensees with respect to the conduct or
management of, or work or things done on, the Project or (iv) any act
or negligence of any assignee or lessee of the Company, or of any
agents, contractors, servants, employees or licensees of any assignee
or lessee of the Company with respect to the conduct or management of,
or work or things done on, the Project. The Company shall indemnify and
save the Issuer, the Standby Purchaser and the Trustee harmless from
any such claim arising as aforesaid, or in connection with any action
or proceeding brought thereon, and upon notice from the Issuer, the
Standby Purchaser or the Trustee, the Company shall defend them or any
of them in any such action or proceeding.
(b) Notwithstanding the fact that, except as specifically set
forth on the face of the Bonds, it is the intention of the parties
hereto that the Issuer shall not incur any pecuniary liability by
reason of the terms of this Agreement or the undertakings required of
the Issuer hereunder, by reason of the issuance of the Bonds, by reason
of the execution of the Indenture or by reason of the performance of
any act requested of the Issuer by the Company, including all claims,
liabilities or losses arising in connection with the violation of any
statutes or regulation pertaining to the foregoing; nevertheless, if
the Issuer should incur any such pecuniary liability, then in such
event the Company shall indemnify and hold the Issuer harmless against
all claims, demands or causes of action whatsoever, by or on behalf of
any person, firm or corporation or other legal entity arising out of
the same or out of any offering statement or lack of offering statement
in connection with the sale or resale of the Bonds and all costs and
expenses incurred in connection with any such claim or in connection
with any action or proceeding brought thereon, and upon notice from the
Issuer, the Company shall defend the Issuer in any such action or
proceeding. All references to the Issuer in this Section 7.2 shall be
deemed to include its trustees, officers, employees and agents.
(c) The Company agrees to indemnify and hold harmless the
Issuer, the Standby Purchaser and the Placement Agents from and against
any and all loss, liability, claim, damage and expenses whatsoever (i)
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Private Placement Memorandum which
relates to the Company, to the Project or to the Company's
participation in the transactions contemplated by the Indenture, the
Agreement or the Standby Bond Purchase Agreement or arising out of the
omission or alleged omission from the Private Placement Memorandum of
any material fact required to be stated therein or necessary to make
the statements as they relate to the Company or the Project or to the
Company's participation in the transactions contemplated by the
Indenture, the Agreement or the Standby Bond Purchase Agreement in the
light of the circumstances under which they were made, not misleading
unless such statement or omission was made in reliance upon information
furnished to the Company by the Issuer, the Standby Purchaser or the
Placement Agents, as the case may be, (ii) to the extent of the
aggregate amount paid in settlement of any litigation, commenced or
threatened, arising from a claim based on any such untrue statement or
omission or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company, and
(iii) reasonable expenses incurred in investigating, preparing or
defending against any litigation, commenced or threatened, arising from
a claim based upon any such untrue statements or omission or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid pursuant to the preceding clauses of this sentence.
The Company shall be notified in writing of the nature of each and any
such claim within a reasonable time after the assertion thereof, but
failure to notify the Company shall not relieve them from any liability
which they may have on account of this indemnity. Each of the Issuer,
the Standby Purchaser and the Placement Agents shall be entitled to
participate at its own expense in the defense of any such claim.
Notwithstanding anything to the contrary contained herein, the Company
shall have no liability to indemnify the Issuer or the Trustee against claims or
damages resulting from the Issuer's or Trustee's own gross negligence or willful
misconduct.
Section 7.3. Redemption of Bonds. The Company, upon giving forty-five (45)
days written notice to the Trustee, shall have and is hereby granted the option
to cause all or a portion of the Bonds to be redeemed at the times permitted by
the Indenture. The Issuer, at the request of the Company, shall forthwith take
all steps (other than the payment of the money required for such redemption)
necessary under the applicable redemption provisions of the Indenture to effect
redemption of all or part of the Outstanding Bonds, as may be specified by the
Company, on the date established for such redemption.
Section 7.4. Issuer to Grant Security Interest to Trustee. The parties
hereto agree that pursuant to the Indenture, the Issuer shall assign to the
Trustee, in order to secure payment of the Bonds, all of the Issuer's right,
title and interest in and to this Agreement, except for the Issuer's rights
under Sections 4.2(b), 4.2(f), 7.2 and 8.4 hereof.
Section 7.5. Indemnification of Trustee. The Company shall and hereby
agrees to indemnify the Trustee for, and hold the Trustee harmless against, any
loss, liability or expense (including the costs and expenses of defending
against any claim of liability) incurred without gross negligence or willful
misconduct by the Trustee and not in violation of any of the terms of the
Indenture and arising out of or in connection with its acting as Trustee under
the Indenture.
* END OF ARTICLE VII *
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.1. Defaults Defined. The following shall be "Defaults" under this
Agreement and the term "Default" shall mean, whenever it is used in this
Agreement, any one or more of the following events:
(a) Failure by the Company to pay any amount required to be
paid under subsection (a) or (d) of Section 4.2 hereof, which failure
shall have resulted in a Default under clause (a), (b) or (c) of
Section 9.01 of the Indenture.
(b) Failure by the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed, other than as referred to in Section 8.1(a), for a period of
thirty (30) days after written notice specifying such failure and
requesting that it be remedied shall have been given to the Company by
the Issuer or the Trustee; provided, however, if the failure stated in
the notice cannot be corrected within the applicable period, the Issuer
and the Trustee may consent to an extension of such time if corrective
action is instituted by the Company within the applicable period and
diligently pursued until such failure is corrected.
(c) The dissolution or liquidation of the Company, except as
authorized by Section 2.2 hereof, or the voluntary initiation by the
Company of any proceeding under any federal or state law relating to
bankruptcy, insolvency, arrangement, reorganization, readjustment of
debt or any other form of debt relief, or the initiation against the
Company of any such proceeding which shall remain undismissed for sixty
(60) days, or failure by the Company to promptly have discharged any
execution, garnishment or attachment of such consequence as would
impair the ability of the Company to carry on its operations at the
Project, or assignment by the Company for the benefit of creditors, or
the entry by the Company into an agreement of composition with its
creditors or the failure generally by the Company to pay its debts as
they become due.
(d) Any representation or warranty made by the Company herein
or any statement in any report, certificate, financial statement or
other instrument furnished in connection with this Agreement or the
Standby Bond Purchase Agreement shall at any time prove to have been
false or misleading in any material respect when made or given.
(e) The Company shall fail to perform or observe any other
term, covenant, condition or agreement contained or incorporated by
reference herein (other than a term, covenant, condition or agreement a
default in the performance or observance of which is elsewhere in this
Section specifically dealt with) and such failure shall remain
unremedied for thirty (30) days after notice to remedy the same.
(f) The occurrence of a Default under the Indenture.
The provisions of subsection (b) of this Section are subject to the following
limitation: if by reason of force majeure the Company is unable in whole or in
part to carry out any of its agreements contained herein (other than its
obligations contained in Article IV hereof), the Company shall not be deemed in
Default during the continuance of such inability. The term "force majeure" as
used herein shall mean, without limitation, the following: acts of God; strikes
or other industrial disturbances; acts of public enemies; order or restraints of
any kind of the government of the United States of America or of the State or of
any of their departments, agencies or officials, or of any civil or military
authority; insurrections; riots; landslides; earthquakes; fires; storms;
droughts; floods; explosions; breakage or accident to machinery, transmission
pipes or canals; and 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
agreement, provided that the settlement of strikes and other industrial
disturbances shall be entirely within the discretion of the Company and the
Company shall not be required to settle 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 8.2. Remedies on Default. Whenever any Default referred to in
Section 8.1 hereof shall have happened and be continuing, the Trustee, or the
Issuer with the written consent of the Trustee, may take one or any combination
of the following remedial steps:
(a) If the Trustee has declared the Bonds immediately due and
payable pursuant to Section 9.02 of the Indenture, by written notice to
the Company, declare an amount equal to all amounts then due and
payable on the Bonds, whether by acceleration on maturity (as provided
in the Indenture) or otherwise, to be immediately due and payable as
liquidated damages under this Agreement and not as a penalty, whereupon
the same shall become immediately due and payable;
(b) Have reasonable access to and inspect, examine and make
copies of the books and records and any and all accounts, data and
income tax and other tax returns of the Company during regular business
hours of the Company if reasonably necessary in the opinion of the
Trustee; or
(c) Take whatever action at law or in equity may appear
necessary or desirable to collect the amounts then due and thereafter
to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this Agreement.
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.
Section 8.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Issuer or the Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Agreement or now
or hereafter existing at law or in equity. No delay or omission to exercise any
right or power accruing upon any 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. In order to
entitle the Issuer or the Trustee to exercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice, other than such notice as
may be required in this Article. Such rights and remedies as are given the
Issuer hereunder shall also extend to the Trustee, and the Trustee, the Standby
Purchaser and the Owners of the Bonds, subject to the provisions of the
Indenture, shall be entitled to the benefit of all covenants and agreements
herein contained.
Section 8.4. Agreement to Pay Attorneys' Fees and Expenses. In the event
the Company should default under any of the provisions of this Agreement and the
Issuer, the Standby Purchaser or the Trustee should reasonably employ attorneys
or reasonably incur other expenses for the collection of payments required
hereunder or the enforcement of performance or observance of any obligation or
agreement on the part of the Company herein contained, the Company agrees that
it will on demand therefor pay to the Issuer, the Standby Purchaser or the
Trustee the reasonable fee of such attorneys and such other expenses so incurred
by the Issuer, the Standby Purchaser or the Trustee.
Section 8.5. No Additional Waiver Implied by One Waiver; Consent of Standby
Purchaser Required for Waivers. In the event any agreement contained in this
Agreement should be breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so waived and shall
not be deemed to waive any other breach hereunder. Neither the Issuer nor the
Trustee may waive any provision hereunder without the prior written consent of
the Standby Purchaser.
* END OF ARTICLE VIII *
ARTICLE IX
OPTIONS TO TERMINATE AGREEMENT
Section 9.1. Option to Terminate Upon the Occurrence of Certain Events. The
Company shall have, and is hereby granted, the option to terminate its
obligations under this Agreement if any of the events set forth below shall
occur:
(a) The Project shall have been damaged or destroyed (i) to
such extent that it cannot, in the Company's judgment, be reasonably
restored within a period of six (6) months to the condition thereof
immediately preceding such damage or destruction, or (ii) to such
extent that the Company is thereby prevented, in the Company's
judgment, from carrying on its normal operations at the Project for a
period of six (6) months or more.
(b) Title to, or the temporary use for a period of six (6)
months or more of, all or substantially all the Project, or such part
thereof as shall materially interfere, in the Company's judgment, with
the operation of the Project for the purpose for which the Project is
designed, shall have been taken under the exercise of the power of
eminent domain by any governmental body or by any person, firm or
corporation acting under governmental authority (including such a
taking or takings as results in the Company being thereby prevented
from carrying on its normal operations at the Project for a period of
six (6) months or more).
(c) Changes which the Company cannot reasonably control or
overcome in the economic availability of materials, supplies, labor,
equipment and other properties and things necessary for the efficient
operation of the Project for the purposes contemplated by this
Agreement shall have occurred which in the judgment of the Company
render the continued operation of the Project uneconomic for such
purposes.
(d) As a result of any changes in the Constitution of the
State or the Constitution of the United States of America or of
legislative or administrative action (whether state or federal) or by
final decree, judgment or order of any court or administrative body
(whether state or federal) entered after the contest thereof by the
Company in good faith, this Agreement shall have become void or
unenforceable or impossible of performance in accordance with the
intent and purposes of the parties as expressed in this Agreement, or
unreasonable burdens or excessive liabilities shall have been imposed
on the Company in respect to the Project, including, without
limitation, federal, state or other ad valorem, property, income, or
other taxes not being imposed on the date of this Agreement.
To exercise such option, the Company shall within ninety (90) days following the
event authorizing such termination, give written notice to the Issuer, the
Standby Purchaser and the Trustee and shall specify therein the date of
redemption of Bonds pursuant to Section 3.01 of the Indenture, which date shall
be the next interest payment date in respect of the Bonds for which the required
notice of redemption can practicably be given, and shall make arrangements
satisfactory to the Trustee for the giving of the required notice of redemption.
In order to exercise such option, the Company shall pay, or cause to be paid, on
or prior to the applicable redemption date, to the Trustee, an amount equal to
the sum of the following:
(1) An amount of money which, when added to the amount then on
deposit and available in the Bond Fund, will be sufficient to retire
and redeem all the Outstanding Bonds on the earliest possible
redemption date after notice as provided in the Indenture, including,
without limitation, the principal amount thereof, all interest to
accrue to said redemption date, and the applicable redemption premium,
if any, plus
(2) An amount of money equal to the Trustee's fees and
expenses under the Indenture accrued and to accrue until such final
payment and redemption of the Bonds, plus
(3) An amount of money equal to the Issuer's fees and expenses
under this Agreement accrued and to accrue until such final payment and
redemption of the Bonds.
Section 9.2. Optional Prepayment. The Company shall be permitted
to prepay the Loan to the extent and
in the manner permitted by the Indenture. No other prepayment is permitted.
* END OF ARTICLE IX *
ARTICLE X
MISCELLANEOUS
Section 10.1. Term of Agreement. This Agreement shall remain in full force
and effect from the date hereof to and including such time as all of the Bonds
and the fees and expenses of the Issuer, the Standby Purchaser and the Trustee
shall have been fully paid or provision made for such payments.
Section 10.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered
or mailed by registered mail, postage prepaid, or sent by a reputable over-night
courier service capable of providing a receipt, addressed as follows: if to the
Issuer, to the Oklahoma Industries Authority, 000 Xxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx 00000; if to the Trustee, to Boatmen's National Bank of Oklahoma, X.X.
Xxx 00000, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention: Corporate Trust Department;
if to the Company, to Tower Tech, Inc., X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxx,
00000, Attention: President; and if to the Standby Purchaser, Oklahoma Gas and
Electric Company, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Treasurer. A duplicate copy of each notice, certificate or other communication
given hereunder by the Issuer or the Company shall also be given to the Trustee
and the Standby Purchaser. The Issuer, the Company, the Trustee and the Standby
Purchaser may, by written notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates or other
communications shall be sent.
Section 10.3. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Issuer, the Company, the Standby Purchaser, the
Trustee, the Owners of Bonds and their respective successors and assigns,
subject, however, to the limitations contained in Section 2.2(b) hereof.
Section 10.4. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 10.5. Amounts Remaining in Funds. Subject to the provisions of
Section 6.10 of the Indenture, it is agreed by the parties hereto that any
amounts remaining in the Bond Fund, the Construction Fund or any other fund
created under the Indenture upon expiration or earlier termination of this
Agreement, as provided in this Agreement, after payment in full of the Bonds (or
provision for payment thereof having been made in accordance with the provisions
of the Indenture) and the fees and expenses of the Trustee in accordance with
the Indenture, shall belong to and be paid to the Company by the Trustee.
Section 10.6. Amendments, Changes and Modifications. Subsequent to the
issuance of Bonds and prior to their payment in full (or provision for the
payment thereof having been made in accordance with the provisions of the
Indenture), and except as otherwise herein expressly provided, this Agreement
may not be effectively amended, changed, modified, altered or terminated without
the written consent of the Trustee and the Standby Purchaser and payment of all
amounts payable to the Standby Purchaser in accordance with the provisions of
the Indenture.
Section 10.7. Execution in Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 10.8. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 10.9. Captions. The captions and headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or
intent of any provisions or Sections of this Agreement.
* END OF ARTICLE X *
IN WITNESS WHEREOF, the Issuer has caused this Agreement to be executed
in its name and the Company has caused this Agreement to be executed in its name
all as of the date first above written.
OKLAHOMA INDUSTRIES AUTHORITY
By:__________________________
Chairman
(Seal)
Attest:
------------------------
Assistant Secretary
TOWER TECH, INC.
By:______________________
President
EXHIBIT "A"
PROJECT SITE
A part of the Southeast Quarter (SE/4) of Section Eleven (11), Township
Ten (10) North, Range Four (4) West of the Indian Meridian, Cleveland
County, Oklahoma, being more particularly described as follows:
COMMENCING at the Southeast corner of said XX/0, XXXXXX Xxxxx
00(Xxxxxx)00'00" Xxxx along the South line of said SE/4 a distance of
1,780.60 feet to the POINT OF BEGINNING; THENCE continuing South
89(Degree)42'04" West along the South line a distance of 843.24 feet to
the Southwest Corner of said SE/4; THENCE North 00(Degree)07'35" West
along the West line of said SE/4 a distance of 1,764.49 feet to a point
880.00 feet South of the Northwest Corner of said SE/4; THENCE North
89(Degree)42'07" East parallel to and 880.00 feet South of the North
line of said SE/4 a distance of 490.00 feet; THENCE South
00(Degree)07'35" East and parallel with the West line of said SE/4 a
distance of 450.00 feet; THENCE North 89(Degree)42'07" East and
parallel with the North line of said SE/4 a distance of 1,380.65 feet
to a point on the West right-of-way line of Xxxx Xxxxxx West Expressway
(Interstate Highway No. 44); THENCE South 18(Degree)12'00" West along
the West right-of-way line of said Expressway for a distance of 501.74
feet to a point of curvature; THENCE Southwesterly along the West
right-of-way line of said Expressway and on the arc of a curve to the
right having a radius of 681.20 feet and a chord bearing of South
33(Degree)11'53" West for an arc distance of 356.68 feet to a point of
tangency; THENCE South 48(Degree)12'00" West along the West
right-of-way line of said Expressway a distance of 515.05 feet; THENCE
South 89(Degree)42'04" West and parallel with the South line of said
SE/4 a distance of 200.00 feet; THENCE South 48(Degree)11'34" West and
parallel to the Westerly right-of-way line of said Expressway for a
distance of 3.15 feet to a point of curvature; THENCE Southwesterly and
parallel to the Westerly right-of-way line of said Expressway and on
the arc of a curve to the left having a radius of 185.78 feet, and a
chord bearing of South 23(Degree)56'51" West for a distance of 157.23
feet; THENCE South 42(Degree)39'21" West a distance of 39.62 feet to a
point 33.00 feet North of the South line of said SE/4; THENCE South
00(Degree)17'56" East a distance of 33.00 feet to the POINT OR PLACE OF
BEGINNING. Said described tract contains 50.1586 acres, more or less.
EXHIBIT "B"
PROJECT BUILDING
105,000 Square Foot Manufacturing Facility located on the real property
described on Exhibit "A" hereto.
EXHIBIT "C"
REQUISITION NO. _____
To: Boatmen's National Bank Re: $4,405,000 Oklahoma
Bank of Oklahoma, as Industries Authority
X.X. Xxxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000 Industrial Revenue
Bonds (Tower Tech, Inc.
Project) Series 1996
Amount Requested:
Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested is
described in reasonable detail in Exhibit A hereto together with the name and
address of the person, firm or corporation to whom payment is due.
2. The bills, invoices or statements of account for each obligation
referenced in Exhibit A are attached hereto as Exhibit B.
3. The Company hereby certifies that:
(a) each obligation mentioned in Exhibit A is a Cost of the
Project, has been properly incurred, is a proper charge against the
Construction Fund and has not been the basis of any previous
disbursement;
(b) no part of the disbursement requested hereby
will be used to pay for materials or equipment not yet
incorporated into the Project or for services not yet
performed in connection therewith;
(c) the expenditure of the amount requested under this
Requisition, when added to all disbursements under previous
Requisitions, will result in the total of such disbursements, other
than disbursements for reasonable expenses incurred in connection with
the issuance of the Bonds, having been used (i) for the acquisition,
rehabilitation, reconstruction or improvement of land or property or
equipping of the Project of a character subject to the allowance for
depreciation under the Code, or (ii) for payment of amounts which are,
for federal income tax purposes, chargeable to the Project's capital
account or would be so chargeable either with a proper election by the
Company or but for a proper election by the Company to deduct such
amounts.
4. All capitalized terms herein shall have the meanings assigned to
them in the Loan Agreement dated as of October 1, 1996 between Oklahoma
Industries Authority and Tower Tech, Inc.
TOWER TECH, INC.
By:___________________________
Company Representative
EXHIBIT "D"
COMPLETION CERTIFICATE
TO: Oklahoma Industries Authority ("Authority")
Boatmen's National Bank of Oklahoma ("Trustee")
FROM: Tower Tech, Inc. ("Company")
SUBJECT: Loan Agreement dated as of the 1st day of October, 1996, between
the Company and the Authority (the "Loan Agreement").
Capitalized terms used herein are defined in the Loan Agreement.
The undersigned does hereby certify:
1. The acquisition, rehabilitation and installation of the Project have
been substantially completed in accordance with the Plans and in such manner as
to conform with all applicable zoning, planning and building regulations of the
governmental authorities having jurisdiction of the Project, as of
_________________, 19_____ (the "Completion Date").
2. The Costs of the Project have been paid in full except for those not yet
due and payable, which are described below and for which moneys for payment
thereof are being held in the Construction Fund:
Costs of the Project not yet due and payable:
Description Amount
$----------------
Total $________________
3. No event of default has occurred under the Loan Agreement or the
Indenture nor has any event occurred which with the giving of notice or lapse of
time or both shall become such an event of default. Nothing has occurred to the
knowledge of the Company that would prevent the performance of its obligations
under the Loan Agreement or the Indenture.
This certificate is given without prejudice to any rights against third
parties which exist at the date hereof or which may subsequently come into
being.
Executed this ______ day of __________________, 19_____.
TOWER TECH, INC.
By:___________________________
Its Authorized Representative
EXHIBIT "E"
