EXHIBIT 10.2
INDUSTRIAL DEVELOPMENT REVENUE
BONDS,
BOND AGREEMENT DATED FEBRUARY 28,
2007
$4,000,000
City of Wisconsin Rapids,
Wisconsin
Industrial Development Revenue
Bonds, Series 2007A, 2007B and 2007C
(Advanced Fiberglass Technologies
Project)
By and Among
CITY OF WISCONSIN RAPIDS,
WISCONSIN,
as Issuer,
M & W FIBERGLASS,
LLC,
ADVANCED FIBERGLASS TECHNOLOGIES,
INC.,
and
JAMIE L. MANCL and JENNIFER
MANCL,
as Borrowers
NEKOOSA PORT EDWARDS STATE
BANK,
as Trustee
and
NEKOOSA PORT EDWARDS STATE
BANK,
as Original Purchaser
Dated February 28, 2007
$4,000,000
City of Wisconsin Rapids,
Wisconsin
Industrial Development Revenue
Bonds, Series 2007A, 2007B and 2007C
(Advanced Fiberglass Technologies
Project)
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Use of Phrases;
Rules of Construction
|
|
|
|
|
ARTICLE II ISSUANCE AND TERMS OF BONDS
|
|
|
|
|
Creation of
Bonds for Issuance
|
|
|
|
|
Maturity;
Repayment of Principal; Interest Payments
|
|
|
|
|
|
|
|
|
|
Occurrence of a
Determination of Taxability
|
|
|
|
|
Mandatory and
Optional Redemption of Bonds
|
|
|
|
|
Optional
Redemption of Bonds Upon Occurrence of Certain Extraordinary
Events
|
|
|
|
|
Purchase and
Cancellation of Bonds
|
|
|
|
|
Notice and
Effect of Redemption
|
|
|
|
|
Bonds to be
Limited Obligations of the Issuer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for
Registration, Transfer and Exchange of Bonds
|
|
|
|
|
Persons Treated
as Bondowners
|
|
|
|
|
Manner of
Payment of Bonds
|
|
|
|
|
Mutilated,
Lost, Stolen or Destroyed Bonds
|
|
|
|
|
Trustee
Designated as Bond Registrar
|
|
|
|
|
Disposition of
Bonds Upon Payment; Safekeeping of Bonds Surrendered for
Exchange
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE III FUNDS AND ACCOUNTS
|
|
|
|
|
Application of
Proceeds of Bonds
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Insurance and
Condemnation Proceeds Fund
|
|
|
|
|
Rebate Credit
Account; Arbitrage
|
|
|
|
|
Trust Funds
Held in Trust
|
|
|
|
|
Permitted
Investment of Trust Funds
|
|
|
|
|
ARTICLE IV TERMS OF LOANS
|
|
|
|
|
Amount and
Source of Loans
|
|
|
|
|
Withdrawals
from the Project Fund
|
|
|
|
|
Establishment
of Completion Date
|
|
|
|
|
|
|
|
|
|
Distribution of
Project Fund on Completion Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowers’ Obligations
Unconditional
|
|
|
|
|
Credit for
Accrued Interest and Investment Earnings on Bond Fund
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nature of
Borrowers’ Obligations
|
|
|
|
|
Fees and
Expenses of Issuer
|
|
|
|
|
ARTICLE V ISSUER’S REPRESENTATIONS AND
COVENANTS
|
|
|
|
|
Payment of
Principal and Interest
|
|
|
|
|
Performance of
and Authority for Covenants
|
|
|
|
|
Right to
Payments; Instruments of Further Assurance
|
|
|
|
|
|
|
|
|
|
Cooperation of
the Issuer and Trustee
|
|
|
|
|
|
|
|
|
|
ARTICLE VI BORROWERS’ REPRESENTATIONS AND
COVENANTS
|
|
|
|
|
Representations
by the Borrowers Individually
|
|
|
|
|
Representations
by the Borrowers Collectively
|
|
|
|
|
Completion of
Project by the Borrowers
|
|
|
|
|
Payment of
Project Costs by the Borrower
|
|
|
|
|
|
|
|
|
|
Borrowers to
Repair, Replace, Rebuild or Restore
|
|
|
|
|
Maintenance of
Property; Insurance
|
|
|
|
|
Compliance with
Zoning Laws
|
|
|
|
|
|
|
|
|
|
Assurance of
Tax-exemption
|
|
|
|
|
Legal
Existence; Compliance with Laws; Maintenance of Business;
Taxes
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certain
Financial Covenants.
|
|
|
|
|
Operating Funds
and Accounts.
|
|
|
|
|
Inspection of
Property and Records
|
|
|
|
|
Comply With,
Pay and Discharge All Notes, Mortgages, Deeds of Trust and
Leases
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VII POWERS AND DUTIES OF TRUSTEE
|
|
|
|
|
|
|
|
|
|
Specific Duty
of Trustee to File Continuation Statements
|
|
|
|
|
Notice to
Bondowners if an Event of Default Occurs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Appointment of
Successor Trustee by Bondowners; Temporary Trustee
|
|
|
|
|
Concerning Any
Successor Trustee
|
|
|
|
|
Acquisition of
Conflicting Interests by Trustee
|
|
|
|
|
Requirement of
a Corporate Trustee
|
|
|
|
|
|
|
|
|
|
ARTICLE VIII BOND DEFAULTS AND REMEDIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Right of
Bondowners to Direct Proceedings
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remedies Vested
in Trustee
|
|
|
|
|
Rights and
Remedies of Bondowners
|
|
|
|
|
Termination of
Proceedings
|
|
|
|
|
|
|
|
|
|
ARTICLE IX LOAN DEFAULTS AND REMEDIES
|
|
|
|
|
|
|
|
|
|
Certain Notices
to Borrower
|
|
|
|
|
Acceleration
Upon Certain Circumstances
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attorneys’ Fees and Expenses
|
|
|
|
|
|
|
|
|
|
Waiver of Stay
or Extension Laws
|
|
|
|
|
|
|
|
|
|
|
Amendments
Without Bondowners’ Consent
|
|
|
|
|
Amendments With
Bondowners’ Consent
|
|
|
|
|
|
|
|
|
|
Special
Provisions Regarding Certain Amendments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE XIII AGREEMENT TO PURCHASE BONDS AND FUND
Borrowers’ REQUISITIONS
|
|
|
|
|
|
|
|
|
|
Certain Related
Documents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Section
13.13
|
Project
Compliance
|
63
|
|
|
Section
13.14
|
Supporting
Documents
|
63
|
$4,000,000
City of Wisconsin Rapids,
Wisconsin
Industrial Development Revenue
Bonds, Series 2006
(Advanced Fiberglass Technologies
Project)
THIS BOND AGREEMENT (“ Bond Agreement ”), dated
February 28, 2007, is by and among:
(i) the
CITY OF WISCONSIN RAPIDS, WISCONSIN (the “
Issuer ”);
(ii)
M & W FIBERGLASS, LLC , a Wisconsin limited liability
company (“ M & W ”);
(iii)
ADVANCED FIBERGLASS TECHNOLOGIES, INC. , a Wisconsin
corporation (“ Advanced
”);
(iv)
JAMIE L. MANCL , an individual and JENNIFER MANCL ,
an individual, as husband and wife (the “ Mancls
” and, together with M & W and Advanced, sometimes
collectively referred to herein collectively as the “
Borrowers ” and individually as a “
Borrower ”);
(v)
NEKOOSA PORT EDWARDS STATE BANK , a a Wisconsin banking
corporation, as original purchaser of the Bonds issued hereunder
(the “ Original Purchaser ”);
(vi)
NEKOOSA PORT EDWARDS STATE BANK , a Wisconsin banking
corporation, as trustee (the “ Trustee
”).
The Issuer desires to issue the Bonds
(hereinafter defined) and to lend the proceeds thereof to the
Borrowers, and the Borrowers wish to borrow such proceeds from the
Issuer, for the purpose of financing the Project (hereinafter
defined).
Pursuant to its authorizing Resolution
(hereinafter defined), the Issuer has authorized the Bonds to be
issued in the aggregate principal amount not to exceed $4,000,000
and has provided that the Bonds will be issued as tax-exempt bonds
of the Issuer.
In consideration of the premises, the promises
of the Issuer and the Borrowers set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and to secure the payment of the
principal of, premium, if any, and interest on all Bonds issued and
outstanding under this Bond Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01
Definitions
. Capitalized terms
herein shall have the respective meanings set forth
below:
Advanced : Advanced Fiberglass
Technologies, Inc., a Wisconsin corporation.
Advanced Organizational Documents
: The Articles of
Incorporation and By-Laws of Advanced.
Affiliate : Any (a) director, officer or
employee of the Person, or (b) Person directly or indirectly
controlling or controlled by, or under direct or indirect common
control with, another Person. A Person shall be deemed
to control another Person if the controlling Person directly or
indirectly, either individually or together with (in the case of an
individual) his spouse, lineal descendants and ascendant and
brothers or sisters by blood or adoption or spouses of such
descendants, ascendant, brothers and sisters, owns five percent or
more of any class of voting securities of the controlled Person or
possesses, directly or indirectly, the power to direct, or cause
the direction of, the management or policies of the controlled
Person, whether through the ownership of voting securities, through
common directors, trustees or officers, by contract or
otherwise.
Authorized Representative of the
Borrowers : Unless and until otherwise
designated by any Borrower by written notice to all of the Parties,
Jamie L. Mancl, acting in his capacity as President of
Advanced and Manager of M & W and as an individual, authorized
to bind each Borrower and all of the Borrowers to contracts, to
execute and deliver Borrowers’ Requisitions and to give Trust
Fund investment directions hereunder on behalf of the
Borrowers.
Bankruptcy Condition : The (i) filing of a petition in
bankruptcy by or against any Borrower or the Issuer as debtor under
the United States Bankruptcy Code, 11 U.S.C. § 101 et
seq., or (ii) continuance of other judicial proceedings with
respect to any Borrower or the Issuer as debtor under similar or
successor federal or state bankruptcy, reorganization or insolvency
laws.
Bond Amount : $4,000,000.
Bond Counsel : A law firm whose legal and tax
opinion on municipal bond issues is nationally recognized,
initially, Whyte Hirschboeck Dudek S.C.
Bond Fund : The Trust Fund described in
Section 3.03
Bond Proceeds : The proceeds of the sale of the
Bonds, namely, such amount not to exceed $4,000,000, as may be
advanced hereunder by the Original Purchaser.
Bond Register : The registration books maintained
by the Trustee pursuant to Section 2.15.
Bondowners : At the time or times of
determination, the Persons who are registered owners of Bonds as
shown in the Bond Register maintained by the Trustee pursuant to
Section 2.15.
Bonds : The Issuer’s aggregate
$4,000,000 Industrial Development Revenue Bonds, Series 2007A,
2007B and 2007C (Advanced Fiberglass Technologies Project), issued
pursuant to this Bond Agreement.
Bond Year : Each year ending on January
31.
Borrower : Any of M & W, Advanced or the
Mancls, individually.
Borrowers : All of M & W, Advanced and the
Mancls, collectively. Whenever in this Bond
Agreement the term Borrowers is used, it shall refer to the action
(or inaction) or the right or obligation of all three of the
Borrowers, collectively, except as the context otherwise clearly
requires.
Borrowers’ Address : The address which the Borrowers
designate for the delivery of notices hereunder. Until
changed by notice from any Borrower to all Parties, the
Borrower’s address shall be:
Prior to the
Completion Date:
c/o Advanced
Fiberglass Technologies, Inc.
Wisconsin
Rapids, Wisconsin 54494
After the
Completion Date:
c/o Advanced
Fiberglass Technologies, Inc.
Wisconsin
Rapids, Wisconsin 54494
|
Borrower's Certificate : A certificate signed on behalf of
any Borrower by an Authorized Officer of the Borrowers.
Borrowers’ Requisition
: A withdrawal from the
Project Fund pursuant to Section 4.02, in the form of
Exhibit D attached hereto.
Business Day : Any day other than a Saturday,
Sunday or other day on which banks are required or authorized to
remain closed in the city in which the Trustee’s Principal
Office is located.
Clerk : The Clerk of the Issuer.
Code : The Internal Revenue Code of 1986,
as amended.
Completion Date : The completion date of the Project
established in accordance with Section 4.03.
Counsel : An attorney acceptable to the
Trustee, duly admitted to practice law before the highest court of
any state, who may be an attorney for any Borrower, the Original
Purchaser, the Trustee or the Issuer.
Dated Date : February 28, 2007.
Defeasance Obligations
: Any of the following
which are not subject to prepayment in whole or in part or to
redemption by the issuer thereof prior to maturity:
(a)
Government Obligations;
(b)
Evidences of ownership of proportionate interests in future
interest and principal payments on Government Obligations held by a
bank or trust company as custodian, under which the owner of the
investment is the real party in interest and has the right to
proceed directly and individually against the obligor on the
Government Obligations, and which underlying Government Obligations
are not available to satisfy any claim of the custodian or any
person claiming through the custodian or to whom the custodian may
be obligated; and
(c)
Obligations described in Section 103(a) of the Code, which
obligations have been assigned the highest rating assigned to
legally defeased debt by Standard & Poor’s Ratings
Services, a Division of The McGraw-Hill Companies, Inc., and
Moody’s Investors Service and provision for the payment of
the principal of, premium, if any, and interest on which shall have
been made by the irrevocable deposit with a bank or trust company
acting as a trustee or escrow agent for holders of such obligations
of securities described in clauses (a) or (b), the maturing
principal of and interest on which, when due and payable, will
provide sufficient moneys to pay when due the principal of,
premium, if any, and interest on such obligations, and which
securities described in clauses (a) or (b) are not available
to satisfy any other claim, including any claim of the trustee or
escrow agent or of any person claiming through the trustee or
escrow agent or proceedings arising out of such
insolvency.
Determination of Taxability
: The issuance of a
statutory notice of deficiency by the Internal Revenue Service, or
a ruling of the National Office or any District Office of the
Internal Revenue Service, or a final decision of a court of
competent jurisdiction, or a regulation or revenue ruling issued by
the Internal Revenue Service, after the period, if any, for contest
or appeal by the taxpayer of such action, ruling or decision has
expired without any such contest or appeal having been properly
instituted by the taxpayer, or delivery to the Issuer by Bond
Counsel of an opinion, which holds or declares in effect that the
interest payable on any of the Bonds is includable for federal
income tax purposes in the gross income of the Bondowners of such
Bonds (other than a Bondowner who is a substantial user of the
Project or a related person, as such terms are defined in the
Code).
Employee Plan : Any savings, profit sharing, or
retirement plan or any deferred compensation contract or other plan
maintained for employees of any Borrower or its Subsidiaries and
covered by Title IV of ERISA, including, without limitation, any
“multiemployer plan” as defined in ERISA.
Environmental Law : Any local, state or federal law or
other statute, law, ordinance, rule, code, regulation, decree or
order governing, regulating or imposing liability or standards of
conduct concerning the use, treatment, generation, storage,
disposal or other handling or release of any Hazardous
Substance.
Environmental Liability : All liability arising under,
resulting from or imposed by any Environmental Law.
ERISA : The Employee Retirement Income
Security Act of 1974, as amended, and any successor statute,
together with the regulations and published interpretations
thereunder, in each case as in effect from time to time.
Event of Default : Any of the events described as such
in Section 8.01 (a “ Bond Default ”) or in
Section 9.01 (a “ Loan Default
”).
Event of Taxability : The circumstance of interest paid
or payable on any Bond becoming includable (other than for purposes
of a tax on preferences of the type imposed by Section 56 of
the Code or any successor statute thereto or any similar federal
tax on preferences or similar items and other than by reason having
to do with the tax status of, or rules applicable to, the
particular individual Bondowner rather than the status of, or rules
applicable to, all persons generally) for federal income tax
purposes in the gross income of any Bondowner (other than a
Bondowner who is a “substantial user” or a
“related person” within the meaning and for the
purposes of Section 147(a) of the Code) as a consequence of
any act, omission or event whatsoever; provided ,
however , that a change in the Code enacted after the date
of issuance of the Bonds which results in interest on borrowings by
state and local governments generally being included in gross
income shall not be an Event of Taxability.
GAAP : Those generally accepted accounting
principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting through
appropriate boards or committees thereof and which are consistently
applied for all periods so as to properly reflect the financial
condition, results of operations and cash flows of a Borrower and
its Subsidiaries.
Government Authority : Any nation or government, any state
or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or
other entity owned or controlled through stock or capital ownership
or otherwise, by any of the foregoing.
Government Obligations : Securities which are direct full
faith and credit obligations of the United States or securities as
to which the payment of both principal and interest are
unconditionally guaranteed by the United States of
America.
Guarantor : Fiberglass Piping and Fitting
Company, a Wisconsin corporation.
Hazardous Substance : Any pollutant, contaminant, waste
or toxic or hazardous chemicals, wastes or substances, including,
without limitation, asbestos, urea formaldehyde insulation,
petroleum, PCB’s, air pollutants, water pollutants, and other
substances defined as hazardous substances or toxic substances in
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. § 9061 et
seq., Hazardous Materials Transportation Act, 49 U.S.C.
§ 1802, the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et seq., the Toxic
Substance Control Act of 1976, as amended, 15
U.S.C. § 2601 et seq., the Solid Waste Disposal Act, 42
U.S.C. § 3251 et seq., the Clean Air Act, 42 U.S.C.
§ 1857 et seq., the Clean Water Act, 33 U.S.C.
§ 1251 et seq., Chapters 280-299 of the Wisconsin
Statutes, or any other statute, rule, regulation or order of any
Government Authority having jurisdiction over the control of such
wastes or substances, including without limitation the United
States Environmental Protection Agency, the United States Nuclear
Regulatory Agency, the State of Wisconsin and the Milwaukee County
Department of Health.
Highest Elected Official : The Mayor of the Issuer.
Indebtedness : All liabilities or obligations of a
Person, whether or not included on the liability portion of a
balance sheet, and shall include, without limitation, all (a)
indebtedness for borrowed money; (b) indebtedness for the deferred
purchase price of property or services for which the Persons is
liable, contingently or otherwise, as obligor, guarantor or
otherwise; (c) any commitment by which the Person assures a
creditor against loss, including, without limitation, contingent
reimbursement obligations with respect to letters of credit; (d)
obligations which are evidenced by notes, acceptances or other
instruments; (e) indebtedness guaranteed in any manner by the
Person, including without limitation guaranties in the form of an
agreement to repurchase or reimburse; (f) any unfunded obligation
of the Person, to an Employee Plan; (g) all liabilities secured by
any Lien on any Property owned by the Person, even though it has
not assumed or otherwise become liable for the payment thereof; and
(h) other liabilities or obligations of the Person and its
Subsidiaries which would, in accordance with GAAP, be included on
the liability portion of a balance sheet.
Insurance and Condemnation Proceeds
Fund : The
Trust Fund described in Section 3.05.
Issuer : City of Wisconsin Rapids,
Wisconsin, its successors and assigns.
Issuer’s Address : The address which the Issuer
designates for the delivery of notices hereunder. Until
changed by notice from the Issuer to all Parties, the
Issuer’s Address shall be:
Wisconsin
Rapids, WI 54495
Phone:
(715) 421-8208
|
Lien : Any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), deed of trust, charge, preference, priority,
security interest or other security agreement or preferential
arrangement of any kind or nature whatsoever including, without
limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any
financing statement under the Uniform Commercial Code of the State
of Wisconsin or comparable law of any jurisdiction.
Loan : The Loan of the Bond Proceeds by
the Issuer to the Borrowers.
Loan Documents : The documents relating to the Bonds
and the Loan, including the Resolution, this Bond Agreement, the
Security Documents, the Promissory Note, and other documents
executed and delivered at the Closing.
Loan Repayments : The payments required to be made by
the Borrowers pursuant to Section 4.06.
M & W : M & W Fiberglass, LLC, a
Wisconsin limited liability company.
M & W Organizational Documents
: The Articles of
Organization and Operating Agreement of M & W.
Mancls : Jamie L. Mancl, an individual, and
Jennifer Mancl, an individual, as husband and wife.
Material Adverse Effect : (a) an Event of Default, (b) a
material adverse change in the business, prospects or condition
(financial or otherwise) of a Borrower or any of its respective
Subsidiaries or in any Property, (c) the termination of any
material agreement to which a Borrower is a party, (d) any material
impairment of the right to carry on the business as now or proposed
to be conducted by a Borrower, or (e) any material impairment of
the ability of a Borrower to perform its obligations under this
Bond Agreement or the Security Documents.
Net Proceeds : The gross proceeds of an insurance
claim or condemnation award with respect to the Project after
payment of all expenses (including attorneys’ fees and any
extraordinary fee or expense of the Trustee) incurred in its
collection.
No Arbitrage Certificate : That certain No Arbitrage
Certificate dated February 28, 2007made by the Issuer and
acknowledged, with respect to accuracy and reasonableness of
certain expectations, facts and estimates contained therein, by the
Borrower.
Obligations : The Promissory Note, all mandatory
prepayments, all costs and expenses and all other Indebtedness of
the Borrowers to the Original Purchaser, including, without
limitation, all Obligations as defined in the Credit
Agreement.
Of Record : When used in reference to any Bondowner, the
Person whose name appears in the registration books maintained by
the Trustee pursuant to Section 2.15 as the owner of a
Bond.
Opinion of Counsel : A written opinion of Counsel or
Bond Counsel.
Original Issue Date : February 28, 2007.
Original Purchaser : Nekoosa Port Edwards State Bank, a
Wisconsin banking corporation, Nekoosa, Wisconsin.
Original Purchaser’s Address
: The address which the
Original Purchaser designates for the delivery of notices
hereunder. Until changed by notice from the Original
Purchaser to the Borrower, the Issuer and the Trustee, the Original
Purchaser’s Address is:
Nekoosa Port
Edwards State Bank
|
|
Outstanding Bonds and Outstanding (when used with reference
to Bonds): All Bonds which have been authenticated and
delivered by the Trustee hereunder, except:
(a) Bonds
or portions thereof cancelled by the Trustee or delivered to the
Trustee for cancellation; and
(b) Bonds
in lieu of which other Bonds have been authenticated and delivered
in accordance with Sections Section 2.13,
Section 2.14 and Section 2.21.
Participant : Bankers’ Bank, Madison,
Wisconsin.
Paying Agent : Any bank or banks designated
pursuant to this Bond Agreement as the agent of the Issuer to
receive and disburse the principal of and interest on the Bonds;
initially, the Trustee.
Payment Date : Monthly on the 28th day of each
month, commencing on March 28, 2007.
Prime Rate : the Prime Rate of Interest as published in the
“Money Rates” section of the most recent Midwest
Edition of The Wall Street Journal , provided that if at any
time the Prime Rate of Interest is no longer so published in the
Midwest Edition of The Wall Street Journal published as of
the business day immediately preceding any adjustment in the
interest rate on the Bonds to the Prime Rate, then “Prime
Rate” shall mean the interest rate announced as its Prime
Rate of Interest by the largest commercial bank headquartered in
the State of Wisconsin on such date.
PBGC : The Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV of
ERISA.
Person : An individual, partnership,
corporation, limited liability company, enterprise, association,
business trust, joint stock company, joint venture, trust,
unincorporated organization, governmental authority or any agency
or political subdivision thereof, or other entity of whatever
nature.
Pledged Revenues : All revenues and income derived by
or for the account of the Issuer from or for the account of the
Borrowers pursuant to the terms hereof, including, without
limitation (i) all payments by the Borrowers on the Loan or
pursuant to Section 4.07, (ii) all cash and securities held
from time to time in the Trust Funds (with the exception of the
Rebate Credit Account) and the investment earnings thereon, and
(iii) all proceeds of any casualty insurance or condemnation awards
payable with respect to the Project.
Project : The project described in
Exhibit A attached hereto.
(a) All
legal, abstracting, surveying, financial and accounting and other
fees and expenses, printing and engraving costs and expenses
incurred in connection with the establishment of title, the
authorization, sale and issuance of the Bonds (including any
underwriter’s or agent’s fees, commitment or
origination fees, or points in connection with the issuing of the
Bonds but, to the extent paid from Bond proceeds, not to exceed two
percent of the face amount of the Bonds), and the preparation of
this Bond Agreement and all other documents, including filing fees
for any financing statements deemed necessary by
Counsel;
(b) All
costs of improving the Project Site;
(c) All
costs of acquiring and installing the Project Equipment;
(d) All
architectural, engineering, consulting, legal, supervisory and
other services incurred and to be incurred in the construction,
purchase, acquiring, installing, improving, equipping or furnishing
of the Project;
(e) The
contract price of all labor, services, materials, supplies and
equipment furnished under any contract entered into in connection
with the construction, purchase, acquisition, installing,
improving, equipping or furnishing of the Project;
(f) The
cost of all other labor, services, materials, supplies and
equipment necessary to complete the Project;
(g) All
fees and expenses of the Trustee that become due before the
Completion Date;
(h) To
the extent permitted by the Statute and not prohibited by rules or
regulations of the Internal Revenue Service and not otherwise paid
from Bond proceeds deposited in the Bond Fund, all interest
accruing up until and not later than the completion of the Project,
on money borrowed by a Borrower for temporary financing of Project
Costs if such money was borrowed by a Borrower for the specific
purpose of temporarily financing Project Costs and was not part of
a general purpose open line of credit, and interest accruing on the
Bonds prior to, and up to completion of the Project;
(i) Without
limitation by the foregoing, all other expenses which under GAAP
constitute necessary capital expenditures for the completion of the
construction, acquisition, purchase, installation, improving,
equipping or furnishing of the Project, not including initial
working capital or expendable supplies (all of which are
nevertheless to be supplied by a Borrower or the Borrowers from its
own funds without reimbursement);
(j) All
advances, payments and expenditures made or to be made by the
Issuer, the Trustee or any other person with respect to any of the
foregoing expenses; and
(k) Reimbursement
of the Borrowers for its payment of any of the foregoing incurred
after June 20, 2006.
Project Equipment : The equipment to be installed by a
Borrower at the Project Site as part of the Project, and listed on
Exhibit A attached hereto.
Project Fund : The Trust Fund described in
Section 3.02.
Project Site : The location of the Project and the
Project Equipment, namely, 4400 Commerce Drive, in the City of
Wisconsin Rapids, Wood County, Wisconsin.
Promissory Note : The Promissory Notes to the Issuer
from the Borrowers, dated the Original Issue Date, in the original
principal amounts of $3,000,000 (the “ Series A Note
”), $500,000 (the “ Series B Note ”) and
$500,000 (the “ Series C Note ”).
Property : Any interest of the Borrowers or
any of their respective Subsidiaries of any kind in property or
assets, whether real, personal, mixed, tangible or intangible,
wherever located, and whether now owned or subsequently acquired or
arising and in the products, proceeds, additions and accessions
thereof or thereto.
Qualified Investments : Includes any of the following
securities, in and to the extent that the Trustee has not been
notified that the same have not been disqualified as legal for the
investment of the Issuer’s moneys: Government
Obligations and (a) the obligations, including discount notes, of
(i) Federal National Mortgage Association, (ii) Federal
Intermediate Credit Banks, (iii) Federal Banks for Cooperatives,
(iv) Federal Land Banks, (v) Federal Home Loan Banks, (vi) Federal
Financing Bank, (vii) Federal Farm Credit System, (viii) Federal
Home Loan Mortgage Corporation, (ix) Government National
Mortgage Association, (x) Federal Housing Administration, and
(xi) Farmers Home Administration; provided ,
however , that obligations listed in this subpart (a) shall
be guaranteed by the United States of America; (b) unsecured
certificates of deposit, demand deposits, including interest
bearing money market accounts, trust deposits, time deposits or
bankers acceptances (in each case having maturities of not more
than 360 days) of any domestic bank (including the Original
Purchaser and the Trustee and any bank affiliated with the Trustee)
including a branch office of a foreign bank, which branch office is
located in the United States, provided that such bank at the time
of purchase, has a short-term “Bank Deposit” rating of
“Prime-1” or better by Moody’s Investors Service
and a rating of “A-1” or better by Standard &
Poor’s Ratings Services; (c) certificates of deposit or
time deposits fully collateralized by Government Obligations; (d)
any repurchase agreement by the Trustee that is with a bank or
institution, which bank, institution or holding company thereof is
rated “BAA1” or better by Moody’s Investors
Service or “B+” or better by Standard &
Poor’s Ratings Services, provided that such repurchase
agreement may not extend more than 30 days beyond its issuance and
such repurchase obligation will be for Government Obligations; and
notwithstanding any of the foregoing, to the extent that any
obligations described in this definition are repurchase agreements
then (i) the Trustee must have perfected a first security interest
in such obligations, (ii) the Trustee or a third party acting
solely as agent for the Trustee must have possession of such
obligations, (iii) such obligations must be free and clear of third
party claims, and (iv) any investment in a repurchase agreement
will be considered to mature on the date the bank or trust company
providing the repurchase agreement is obligated to repurchase the
Government Obligations; (e) commercial paper or finance company
paper rated not less than A 1 or prime-one or their equivalents by
Standard & Poor’s Ratings Services and Moody’s
Investors Service; (f) state and local government obligations, the
interest on which is excludable from the gross income of the holder
thereof for federal income tax purposes pursuant to
Section 103(a) of the Code, provided that such obligations
have a rating of “A “ or better from Standard &
Poor’s Ratings Services or Moody’s Investors Service;
(g) the “Tax-Exempt Money Market Fund” for which the
Trustee acts as investment advisor; (h) the “Short Term
Investment Fund” of the Trustee; and (i) so long as the
Original Purchaser is the Bondowner of all of the Bonds
Outstanding,
investment agreements or certificates of deposit
as may be approved by the Borrowers and the Original Purchaser;
provided , however , that such investment ratings
shall apply only at the time of acquisition of such
investment.
Rebate Credit Account : The account described in
Section 3.06, which account shall not be pledged for the
benefit of the Bondowners hereunder.
Record Date : For the interest payable on any
Payment Date means the day (whether or not a Business Day) next
preceding such Payment Date.
Redemption Date : The date upon which any Bond is to
be redeemed prior to maturity.
Redemption Fund : The Trust Fund described in
Section 3.04.
Registered Bondowner : The person in whose name a Bond is
registered in the Bond Register.
Requirements of Law : As to any matter or Person, the
Certificate or Articles of Incorporation or Organization and Bylaws
or Operating Agreement or other organizational or governing
documents of such Person, and any law (including, without
limitation, any Environmental Law), ordinance, treaty, rule,
regulation, order, decree, determination or other requirement
having the force of law relating to such matter or Person and,
where applicable, any interpretation thereof by any Government
Authority.
Requisite Consent : Unless all Bonds are then owned by
the Borrower, the affirmative written consent of Bondowners
registered as the Bondowners in aggregate not less than a majority
in principal amount of the Bonds (other than Bonds owned by the
Borrowers or any “related person” as defined in
Section 147 of the Code) at the time Outstanding.
Security Documents : the Construction Mortgage and
Assignment of Leases and Rents, the Pledge and Security Agreement,
the Security Agreement, [the Collateral Assignment of
Architect’s Contract], and the Collateral Assignment of
Construction Contracts, all by the Borrowers in favor of the
Trustee and the Original Purchaser.
Series A Bonds : The Issuer’s $3,000,000
principal amount Industrial Development Revenue Bonds, Series 2007A
(Advanced Fiberglass Technologies Project), authorized by and
issued pursuant to Section 2.01(a)(i)of this Bond
Agreement.
Series B Bonds : The Issuer’s $500,000
principal amount Industrial Development Revenue Bonds, Series 2007B
(Advanced Fiberglass Technologies Project), authorized by and
issued pursuant to Section 2.01(a)(ii) of this Bond
Agreement.
Series C Bonds : The Issuer’s $500,000
principal amount Industrial Development Revenue Bonds, Series 2007C
(Advanced Fiberglass Technologies Project), authorized by and
issued pursuant to Section 2.01(a)(iii) of this Bond
Agreement.
Statute : Section 66.1103 of the
Wisconsin Statutes, as amended from time to time.
Subsidiary : As to any Person, a corporation or
limited liability company of which shares of stock or membership
interest having voting power (other than stock or membership
interest having such power only by reason of the happening of a
contingency that has not occurred) sufficient to elect a majority
of the board of directors or other managers of such corporation or
limited liability company are at the time owned, or the management
of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person.
Tax Certificate : The Borrower’s certification,
executed and delivered on and as of the Closing Date, certifying to
certain facts and circumstances upon which Bond Counsel will rely
in part in issuing its Opinion of Counsel as to the tax-exempt
status of interest on the Bonds, subject to the assumptions,
qualifications and limitations set forth in such Opinion of
Counsel.
Trustee : Initially, Nekoosa Port Edwards
State Bank, Nekoosa, Wisconsin, and any successor banking
corporation, banking association or trust company at the time
serving as corporate trustee hereunder.
Trustee’s Address and Trustee’s Principal Office
: The address or office which the Trustee designates for
the delivery of notices or payments hereunder. Until
changed by notice from the Trustee to the Borrower, the Issuer and
the Original Purchaser, the Trustee’s Address and Principal
Office is:
Nekoosa Port
Edwards State Bank
|
Trust Funds : The trust funds and accounts
administered by the Trustee hereunder.
Unassigned Rights : The Borrower’s obligations to
the Issuer under Section 4.13, Section 6.09 and
Section 9.07.
Section 1.02
Use of Phrases; Rules of
Construction . The following provisions shall be
applied wherever appropriate herein:
“ Herein ,” “
hereby ,” “ hereunder ,” “
hereof ” and other equivalent words refer to this Bond
Agreement as an entirety and not solely to the particular portion
hereof in which any such word is used.
The definitions set forth in Section 1.01
shall be deemed applicable whether the words defined are herein
used in the singular or the plural.
Wherever used herein, any pronoun or pronouns
shall be deemed to include both the singular and plural and to
cover all genders.
Unless otherwise provided, any determinations or
reports hereunder which require the application of accounting
concepts or principles shall be made in accordance with
GAAP.
ARTICLE II
ISSUANCE AND TERMS OF
BONDS
Section 2.01
Creation of Bonds for
Issuance . There is hereby created for
issuance an issue of Bonds to be designated:
CITY OF WISCONSIN RAPIDS,
WISCONSIN
INDUSTRIAL DEVELOPMENT REVENUE
BONDS, SERIES 2007A, 2007B and 2007C
(ADVANCED FIBERGLASS TECHNOLOGIES
PROJECT)
The Bonds shall be issued in the aggregate
principal amount not to exceed FOUR MILLION AND 00/100 DOLLARS
($4,000,000.00).
(a) The
Issuer has, pursuant to the Bond Resolution, further divided the
Bonds into three series, designated as
“Series 2007A,” “Series 2007B”
and “Series 2007C” as provided
below. The Bonds of each and all Series shall have
parity with all Bonds of every other Series as provided in
Section 2.22.
(i) The
Bonds designated as Series 2007A shall be issued in the
maximum aggregate principal amount of THREE MILLION AND 00/100
DOLLARS ($3,000,000.00) and are referred to herein as the “
Series A Bonds .”
(ii) The
Bonds designated as Series 2007B shall be issued in the
maximum aggregate principal amount of FIVE HUNDRED THOUSAND AND
00/100 DOLLARS ($500,000) and are referred to herein as the “
Series B Bonds .”
(iii) The
Bonds designated as Series 2007C shall be issued in the
maximum aggregate principal amount of FIVE HUNDRED THOUSAND AND
00/100 DOLLARS ($500,000) and are referred to herein as the “
Series C Bonds .”
(b) The
Bonds of each series shall be numbered in such manner as the
Trustee shall deem appropriate, provided that each particular Bond
shall have a different identifying number. The Bonds
shall be issuable in the form of typewritten or printed, fully
registered Bonds. The Bonds shall specify the Original
Issue Date as their original issue date, and each particular Bond
shall be dated, as its registration date, the date of its
authentication.
Section 2.02
Maturity; Repayment of
Principal; Interest Payments
The Bonds shall mature as
follows:
(i) The
Series A Bonds shall have a final maturity date (the “
Series A Maturity Date ”) of July 28,
2027. On the Series A Maturity Date there shall be
a full and final payment of all unpaid principal and accrued unpaid
interest in respect of the Series A Bonds.
(ii) The
Series B Bonds shall have a final maturity date of July 28,
2014 (the “ Series B Maturity Date
”). On the Series B Maturity Date there shall
be a full and final payment of all unpaid principal and accrued
unpaid interest in respect of the Series B Bonds.
(iii) The
Series C Bonds shall have a final maturity date of July 28,
2014 (the “ Series C Maturity Date
”). On the Series C Maturity Date there shall
be a full and final payment of all unpaid principal and accrued
unpaid interest in respect of the Series C Bonds.
(b)
Principal of the Bonds shall be repaid by the Issuer (from payments
to be made by the Borrowers hereunder) in such amounts and on such
dates as provided in Section 2.05.
(c)
Notwithstanding anything else herein to the contrary, the principal
amount of any series of Bonds Outstanding shall never exceed the
aggregate amounts transferred from the Original Purchaser to the
Trustee for Deposit into the Project Fund pursuant to
Section 3.01 less repayments of principal made by the Issuer,
provided , however , that nothing herein shall be
construed to obligate the Borrowers to proceed with the Project,
and in the event Borrowers do not proceed with the Project, the
Borrowers shall have no obligation hereunder, other than the
repayment, together with interest, of amounts advanced by the
Original Purchaser.
(d)
Payments of principal in excess of the scheduled installments set
forth herein and related payments of premium, if any, shall be
credited against scheduled installments in inverse order with
respect to the Bonds (for this purpose, treating all Bonds as a
single series).
Section 2.03
Interest on the
Bonds .
(i) Initial
Interest Rate . From the Original Issue Date through
February 28, 2012, the Series A Bonds shall bear interest
at a fixed rate of Five and 50/100 percent (5.50%) per
annum.
(ii)
Interest Rate Resets . The interest
rate on the Series A Bonds shall be reset on each Reset Date
to a fixed rate calculated as follows (i) the Prime Rate in
effect on the Business Day next preceding the Reset Date
minus (ii) 2.25 percentage
points. The Series A Bonds shall bear interest from
each Reset Date through the day immediately prior to the next Reset
Date at the rate determined according to the formula in the
preceding sentence (in each case, the “ Reset Rate
”). Notwithstanding the foregoing, the interest
rate on the Series A Bonds shall never (i) exceed the
Maximum Rate, nor (ii) be lower than the Minimum
Rate.
(b) Series B
Bonds . The Series B Bonds shall bear interest
from the Original Issue Date through the Series B Maturity Date at
a fixed rate of Five and 75/100 percent (5.75%) per
annum.
(c)
Series C Bonds . The Series C Bonds
shall bear interest from the Original Issue Date through the
Series C Maturity Date at a fixed rate of Five and 75/100
percent (5.75%) per annum.
(d)
Definitions . The following definitions are
applicable to this Section 2.03:
(i)
Marginal Bank Tax Rate : The tax rate at which a
commercial bank located in the United States and subject to federal
income taxation as a corporation would be taxed for federal income
tax purposes pursuant to the applicable provisions of the Code or
any future
United States internal revenue or similar laws
applicable to such bank, if such bank’s taxable income were
in the highest tax bracket specified by the Code. As of
the date of this Bond Agreement, the Marginal Bank Tax Rate is
Thirty-Five and 00/100 percent (35.00%)
(ii)
Reset Date : Each of February 28, 2012; February 28, 2017;
and February 28, 2022.
(iii)
Maximum Rate : Eighteen and 00/100 percent (18.00%) per
annum.
(iv) Minimum
Rate : Four and 00/100 percent (4.00%) per
annum.
(v)
Default Rate : The rate of interest per annum
equal to the greater of (i) the Prime Rate or (ii) the
sum of the then-applicable tax-exempt interest rate or rates
applicable to each Series of Bonds as determined pursuant to
Section 2.03, plus 3.0%, but in any event not greater than the
Maximum Rate nor less than the Minimum Rate.
(e) Tax-Exempt
Yield Protection . Notwithstanding the foregoing,
the interest rate on the Bonds shall be subject to further
adjustment on any Payment Date if on such Payment Date the Marginal
Bank Tax Rate has changed to become either greater than or less
than 35%. The adjusted interest rate shall be determined
by multiplying the then-applicable interest rate on the Bonds
immediately prior to such change by a fraction: (i) the
numerator of which is the difference between (A) 100% and (B)
the applicable Marginal Bank Tax Rate immediately after such change
and (ii) the denominator of which is the difference between
(A) 100% and (B) the Marginal Bank Tax Rate in effect
immediately prior to such change.
(f)
Interest Determinations Final . All
determinations of the interest rate hereunder shall be final and
conclusive absent manifest error.
(g)
Computation of Interest . Interest on the Bonds
shall be computed on a 360 day year, actual days elapsed basis.
Interest shall accrue only on principal amounts actually deposited
and from the date such amounts are actually deposited into the
Project Fund pursuant to Section 3.01 and Section 4.02 of
this Bond Agreement.
(h)
Interest-Only Payments . Interest shall be
payable on each Payment Date, commencing on March 28, 2007 through
and including July 28, 2007 (the “ Interest Only
Period ”). From and after August 28, 2007,
interest shall be included in the monthly principal and interest
payments payable as provided in Section 2.05(a).
(i)
Default Interest . Overdue principal and interest
on each Bond shall (to the extent legally enforceable) bear
interest at the Default Rate. Any interest on any Bond
which is payable, but is not punctually paid or duly provided for,
may be paid in any lawful manner, at the discretion of the
Trustee.
Section 2.04
Occurrence of a Determination
of Taxability . The Bonds shall bear interest,
payable on the first Payment Date after the occurrence of a
Determination of Taxability with respect to all prior periods,
computed at the rate set forth in the following paragraph, but not
to exceed the Maximum Rate (the “ Taxable Rate
”) (on a 360-day year, actual days elapsed basis) on the
outstanding principal amount of the Bonds (as reduced from time to
time) from the date of the Event of Taxability, less any interest
already paid, from the date of the Event of
Taxability to such Payment
Date. Thereafter, the Bonds shall bear interest at the
Taxable Rate (“ Taxable Interest ”) as provided
in this Section on the Bonds Outstanding on each Payment
Date. Except for Taxable Interest allocable to the
period between the Event of Taxability and the Payment Date
immediately succeeding the Determination of Taxability, Taxable
Interest payable under this Section shall be payable with respect
to the same period, at the same time and in the same manner as
interest payments regularly paid pursuant to this Bond
Agreement.
Taxable Interest payable on the Bonds of all
Series shall be equal to the higher of (i) the Prime Rate or
(ii) the sum of the then-applicable tax-exempt interest rate
or rates applicable to each Series of Bonds as determined pursuant
to Section 2.03, plus 3.0% per annum. The Borrowers
shall also pay to the Bondowners (and any former Bondowners holding
Bonds during any period subsequent to an Event of Taxability) as
additional interest, the amount of penalties, additions to tax
(exclusive of any taxes imposed under Section 11 or any successor
provision of the Code) or interest assessed against the Bondowners
(and former Bondowners) on account of a Determination of
Taxability. Taxable Interest to be paid pursuant to this
Section for the period between the Event of Taxability and the
Payment Date immediately succeeding the Determination of Taxability
shall be paid immediately following the Determination of Taxability
in the same manner as interest is paid to Bondowners in accordance
with this Bond Agreement.
Any Bondowner shall have the right, but not the
obligation, to arrange for the contest of an allegation that an
Event of Taxability has occurred, by appropriate legal
proceedings. In the event no Bondowner shall contest the
Event of Taxability, the Borrowers shall have the option but not
the obligation to do so. If (i) the Borrowers shall have
made any additional payments to a Bondowner or former Bondowner by
reason of an Event of Taxability pursuant to this Section, and (ii)
it shall be successfully claimed for the taxable year in question
that the interest on the Bonds for such taxable year is excluded
from the Bondowner’s or former Bondowner’s taxable
income for federal income tax purposes (for this purpose a claim
shall be deemed successful only upon the occurrence of a
“determination,” as defined in Section 1313(a) or
any successor provision of the Code) or, if the Bondowner or former
Bondowner shall not have included such interest in the
Bondowner’s or former Bondowner’s taxable income for
federal income tax purposes upon expiration of the statute of
limitations provided by Section 6501 or any successor
provision of the Code with respect to such taxable year, then the
Bondowner or former Bondowner (as the case may be) shall pay to the
Borrowers the amount of any such additional payments which had been
made by the Borrowers to the Bondowner or former Bondowner, less
any actual expenses incurred by such Bondowner or former Bondowner
as a result of the alleged Event of Taxability. Upon
successful challenge of an Event of Taxability, the interest rate
on the Bonds shall return to the interest rate ordinarily payable
hereunder as if no Event of Taxability had ever been
alleged.
Section 2.05
Mandatory and Optional
Redemption of Bonds . No Bond may be called for
redemption prior to its stated maturity except as provided in this
Section 2.05; provided , however , that nothing
herein shall be deemed to limit the right of acceleration of Bond
maturities upon the occurrence of a Bond Default.
(a)
Amortizing Redemptions . Each Series of Bonds
shall be subject to mandatory redemption in accordance with the
redemption schedule set forth. On or prior to each “
Amortizing Redemption Date ” set forth below, the
Borrowers shall provide to the Trustee immediately available funds
sufficient to effect the redemption of the principal amount of
Bonds
required to be redeemed on such Amortizing
Redemption Date as set forth below plus accrued interest to the
Redemption Date.
(i)
Series A Bonds . Following the Interest Only
Period, beginning on August 28, 2007, and on the 28
th day of each calendar month through and including
July 28, 2012, sixty (60) equal monthly principal and interest
payments each in the amount of Twenty Thousand Seven Hundred
Seventy-Six and 10/100 Dollars ($20,776.10). On each
Reset Date, the monthly principal and interest payments due
hereunder shall be adjusted to level monthly principal and interest
payments sufficient to amortize the then-current Principal Balance
hereof over the remaining term to the Series A Maturity Date
at the applicable Reset Rate (with the first such adjusted payment
due on the March 28th following the Reset Date).
(ii)
Series B
Bonds . Following the Interest Only Period,
beginning on August 28, 2007, and on the 28
th day of each calendar month through and including
July 28, 2014, eighty-four (84) equal monthly principal and
interest payments in the amount of Seven Thousand Two Hundred
Sixty-Five and 78/100 Dollars ($7,265.78);
(iii)
Series C
Bonds . Following the Interest Only Period,
beginning on August 28, 2007, and on the 28
th day of each calendar month through and including
July 28 2014, eighty-four (84) equal monthly principal
and interest payments in the amount of Seven Thousand Two Hundred
Sixty-Five and 78/100 Dollars ($7,265.78).
(b)
Redemption at Original Purchaser's Option (Put Right)
. The Series A Bonds shall be subject to mandatory
redemption, in whole, but not in part, on any Reset Date at the
option of the Original Purchaser, so long as the Original Purchaser
owns of Record all of the Outstanding Series A
Bonds. The Original Purchaser shall give prior written
notice to all Parties of such mandatory redemption not less than
ninety (90) days prior to any Reset Date. In the case of
a redemption pursuant to this Section 2.05(b), the redemption
price shall be 100% of the principal amount of the Bonds so
redeemed, plus all accrued interest to the Put Date.
(c)
Redemption at Borrower's Option (Call Right)
. Any Bond not redeemed pursuant to subsections (a)
or (b), above, is subject to redemption in whole or in part at the
option of the Borrowers on any Payment Date upon thirty (30) days
prior written notice (" Call Notice ") to the Trustee and,
so long as the Original Purchaser is the owner of any Outstanding
Bonds, to the Original Purchaser. Any such Call Notice
shall specify the Payment Date and the principal amount of the
Bonds to be redeemed on such Payment Date. In the Call
Notice, the Borrowers shall also identify the source of funds that
it will use to pay the redemption price (including any premium) and
shall certify that the circumstances described in
subsection (d)(ii), below, do not exist. In the
event the Original Purchaser is not the holder of Record of all
(100%) principal amount of the Bonds then outstanding, then the
Call Notice shall be given to the Trustee not less than 60 days
prior to the Payment Date on which the Borrowers propose to effect
such redemption (in which case the Trustee shall comply with the
requirements of Section 2.08 pertaining to notices of
redemption). In the case of a redemption pursuant to
this Section 2.05(c), the redemption price shall be par plus
accrued interest to the Redemption Date, plus the Redemption
Premium, if any, calculated as determined under
subsection (d), below.
(d)
Premium Upon Certain Redemptions . A premium ("
Redemption Premium ") shall be due upon certain redemptions
pursuant to subsection (c), above (but not in respect
of
redemptions pursuant to either
subsection (a) or subsection (b)). The
Redemption Premium shall be payable in the following circumstances
and shall be calculated as provided below:
(i) In the
case of an optional redemption under subsection (c), or one or
more such redemptions, in any calendar year in a principal amount
that exceeds Twenty and 00/100 percent (20.00%) of the principal
amount of Bonds Outstanding on December 31 of the next
preceding calendar year (the " Threshold "), there shall be
due upon redemption a premium calculated as follows: (i) the
principal amount being redeemed in excess of the Threshold,
multiplied by (ii) Four and 00/100 percent (4.00%).
(ii) In the
case of an optional redemption in any amount where the source of
funds to be used by the Borrowers is derived by the Borrowers from
a loan, borrowing, extension of credit, credit facility, letter of
credit or otherwise from a bank, financial institution or other
institutional lender (other than the Original Purchaser or the
Participant), or one or more of such borrowings or transactions,
then there shall be due upon redemption a premium calculated as
follows: (i) the principal amount being redeemed multiplied by
(ii) four and 00/100 percent (4.00%).
(e)
Notwithstanding any provision of ARTICLE X or any other
provision of the Bond Agreement to the contrary, the provisions of
subsections (a) through (d) of this Section 2.05,
including the redemption schedule set forth in Schedule 2.05,
may, so long as the Original Purchaser is the Owner of Record of
all (100%) in principal amount of the Bonds then Outstanding, be
amended or modified in any respect by a written
instrument executed by the Borrowers, the Guarantor and the
Original Purchaser, provided, that such amendment shall not
be effective unless the Borrowers have obtained (at the
Borrowers’ expense) a written Opinion of Bond Counsel to the
effect that such amendment or modification shall not, in and of
itself, cause an Event of Taxability to occur. No prior
notice to or consent of the Issuer or the Trustee shall be required
to effect an amendment or modification pursuant to this
Section 2.05(e); however , the Borrowers shall file
with the Issuer and the Trustee the written instrument, signed by
the Borrowers, the Guarantor and the Original Purchaser, together
with the written opinion of Bond Counsel, within 30 days of the
effective date of any such amendment or modification and upon such
filing this Bond Agreement shall for all purposes be amended as of
the date appearing on such instrument. Notwithstanding
the foregoing, the failure to make or a delay in making such filing
shall not affect the validity of such amendment. The
Issuer and the Trustee agree to cooperate with any requirement of
Bond Counsel necessary in the Opinion of Bond Counsel to render
such Opinion, including without limitation rendering any
certificate, executing any informational return on Form 8038
with the Service, or otherwise, provided that the Issuer or
the Trustee shall in each case be indemnified for the costs and
expenses of any such action as provided in
Section 6.09.
Section 2.06
Optional Redemption of Bonds
Upon Occurrence of Certain Extraordinary Events
. The Bonds shall be
subject to redemption, in whole or in part, at par plus accrued
interest to the Redemption Date at the option of the Borrower, or
the Bondowners by Requisite Consent. If the Project is
affected as set forth below, each shall have an independent option
to have the Loan repaid in whole out of Net Proceeds of an
insurance or condemnation award relating to destruction or damage
or condemnation of all or any part of the Project, and to direct
the Issuer (i) to call for redemption and prepayment all the
Outstanding Bonds if the Project, is set forth below, or (ii) to
call for redemption and prepayment that amount of Outstanding Bonds
attributable to debt incurred for the Project as determined by the
Trustee if:
(a) The
Project shall have been damaged or destroyed to such extent that,
in the opinion of the Borrowers expressed in a Borrowers’
Certificate, or in the written opinion of an independent architect
acceptable to the Trustee and, if the Original Purchaser then owns
any of the Bonds, the Original Purchaser, filed with the Issuer and
the Trustee following such damage or destruction (i) the completion
of the Project will be delayed for at least six months, (ii) it is
not practicable or desirable to rebuild, repair or restore the
Project within a period of six consecutive months following such
damage or destruction, or (iii) the Borrowers are or will be
thereby prevented from carrying on its normal operations for a
period of at least six consecutive months;
(b) Title
to or the temporary use of all or substantially all of the shall
have been taken under the exercise of the power of eminent domain
by any governmental Issuer to such extent that, in the opinion of
the Borrowers expressed in a Borrowers’ Certificate, or in
the written opinion of an independent architect acceptable to the
Trustee and, if the Original Purchaser then owns any of the Bonds,
the Original Purchaser filed with the Issuer and the Trustee (i)
the completion of the Project will be delayed for at least six
months, or (ii) the Borrowers are or will be thereby prevented from
carrying on its normal operations at the Project site for a period
of at least six consecutive months;
(c) Any
court or administrative body of competent jurisdiction shall enter
a judgment, order or decree requiring the Borrowers to cease all or
any substantial part of its operations at the Project site to such
extent that, in the opinion of the Borrowers expressed in the
Borrower’s Certificate, or in the written opinion of Counsel,
who is also acceptable to the Original Purchaser if the Original
Purchaser then owns any of the Bonds, filed with the Issuer and the
Trustee, the Borrowers are or will be thereby prevented from
carrying on its normal operations at the Project site for a period
of at least six consecutive months;
(d) As a
result of any changes in the Constitution of Wisconsin 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), this Bond Agreement shall have become
void or unenforceable or impossible of performance in accordance
with the intent and purposes of the parties as expressed herein, or
unreasonable burdens or excessive liabilities shall have been
imposed on the Issuer or any Borrower including, without
limitation, federal, state or other ad valorem, property, income or
other taxes not being imposed on the date hereof; or
(e) If it
shall be discovered that any Borrower’s title to the Project
shall be materially defective, and any Borrower’s title to
the Project shall be lost by reason of such defect.
In any such case, the Borrowers or Bondowners
shall, to exercise their respective option hereunder, give notice
to the Issuer, the Trustee and the Bondowners or the Borrower, as
the case may be, in writing of its or their intent to exercise this
option and specifying the proposed Redemption Date, within thirty
(30) days following discovery of the event by the party determining
to exercise its option hereunder. The exercise of either
party of its option to redeem the Bonds shall be binding on all
parties hereto. Within sixty (60) days after the giving
of notice as set forth above, the Borrowers shall deposit with the
Trustee a sum sufficient, together with other funds held by the
Trustee and available for such purpose (i) to redeem the Bonds, in
whole or in part, as applicable at a redemption price equal to the
principal amount thereof, (ii) to pay the interest which will
become
due on such Bonds to and including the
Redemption Date, and (iii) to pay all expenses of the Issuer and
the Trustee accrued and to accrue through the Redemption
Date.
If any Borrower shall have received proceeds of
an insurance or condemnation award relating to destruction or
damage or condemnation of all or any part of the Project, and such
net proceeds exceed the amount necessary to rebuild, repair or
restore the applicable Facility, such Borrower agrees to direct the
Issuer to call for redemption and prepayment Outstanding Bonds
equal to the amount of such resulting excess net
proceeds.
Section 2.07
Purchase and Cancellation of
Bonds . The Borrowers shall have the right
to purchase any outstanding Bond and deliver it to the Trustee for
cancellation. Also, the Trustee may purchase any
outstanding Bond for cancellation in accordance with this Bond
Agreement. Any such purchase and cancellation of a Bond
shall ipso facto reduce the unpaid principal balance of the
Loan on the date of such cancellation by an amount equal to the
principal amount of such Bond. Further, any such
purchase shall be deemed to constitute a redemption of a like
principal amount of Bonds and prior to and in connection with such
purchase, the Borrowers shall comply with the requirements of
Section 2.05(c) (including the payment of a redemption premium
under Section 2.05(d), if applicable). The
reduction shall be applied to the principal installment on the Loan
having the same maturity as the Bond so purchased and
cancelled. Nothing in this Section 2.07 shall
require the owner of any Bond to sell such Bond to the
Borrowers.
Section 2.08
Notice and Effect of
Redemption . Notice of the call for any
redemption of Bonds prior to maturity shall be given by the Trustee
by mailing a copy of the redemption notice by first-class mail not
less than 30 nor more than 60 days prior to the Redemption Date to
the Bondowner of each Bond to be redeemed at the address shown on
the Bond Register; provided , however , that failure
to give any such notice as aforesaid or any defect therein with
respect to any particular Bond shall not affect the validity of any
proceedings for the redemption of any other Bond.
Each redemption notice shall (i) identify the
particular Bonds or portions thereof to be redeemed (including, at
a minimum, certificate numbers and called amount for each
certificate (for partial calls), Redemption Date, redemption agent
name and address, date of issue, maturity date, and other
descriptive information, if any, that accurately identifies the
particular Bonds called for redemption), (ii) identify the
provisions of this Bond Agreement pursuant to which the Bonds are
being redeemed, (iii) identify the place of payment, (iv) state the
applicable redemption price, including the premium, if any, and (v)
state that interest on the Bonds or portions thereof thus called
for redemption will cease to accrue from and after the Redemption
Date specified therein.
If pursuant to this Bond Agreement the Trustee
shall hold funds in the form of cash or Government Obligations
which are available and will be sufficient in amount to pay the
principal of and premium, if any, on the Bonds or portions thereof
thus called for redemption and to pay the interest thereon to the
Redemption Date, such Bonds or portions thereof shall cease to bear
interest from and after the Redemption Date in question.
Section 2.09
Bonds to be Limited
Obligations of the Issuer . The Bonds shall be limited
obligations of the Issuer payable by it solely from the Pledged
Revenues. The Bonds shall not constitute a debt or
obligation of the Issuer, the county in which it is located, the
State of Wisconsin or any political subdivision thereof within the
meaning of any State of Wisconsin
constitutional provision or statutory limitation
and shall not be a charge against its or their respective general
credit or taxing powers and shall not give rise to a pecuniary
liability of the Issuer. In making the agreements,
provisions and covenants set forth in this Bond Agreement, the
Issuer has not obligated itself, except to the extent that the
Issuer is authorized to act pursuant to Wisconsin law and except
with respect to the Pledged Revenues. The Issuer and any
of its officials, officers, employees, members or agent shall have
no monetary liability arising out of the obligations of the Issuer
hereunder or in any connection with any covenant, representation or
warranty made by the Issuer herein and neither the Issuer nor its
officials shall be obligated to pay any amounts in connection with
the transactions contemplated hereby other than from Pledged
Revenues or other monies received from the Borrower.
Section 2.10
Source of
Payment . The principal of, premium, if any,
and interest on the Bonds shall be payable by the Issuer solely
from the Pledged Revenues.
Section 2.11
Pledged
Revenues . The Pledged Revenues are hereby
specifically, irrevocably and exclusively pledged by the Issuer to
the Trustee to secure the punctual payment of the principal of,
premium, if any, and interest on the Bonds, and shall be used for
no other purpose except as otherwise expressly authorized
herein.
Section 2.12
Form of Bonds
. The Bonds shall be
issuable only as fully registered Bonds substantially in the form
set forth in Exhibit B attached hereto, with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Bond Agreement and
may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon, as may be required to
comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such
Bonds as evidenced by their execution of the
Bonds. There may be printed or otherwise reproduced on
any Bond form (i) the legal opinion of Bond Counsel, (ii) customary
“back panel” summary information, (iii) restrictions on
transfer in form approved by the Trustee as required in particular
instances, and (iv) any other information deemed necessary or
appropriate by the Issuer or the Trustee with the approval of Bond
Counsel to give notice of information to
Bondowners. Pending the preparation of definitive Bonds
the Issuer may execute and the Trustee shall authenticate and
deliver temporary Bonds, substantially of the tenor of the
definitive Bonds in lieu of which they are issued, in fully
registered form, with such appropriate insertions, omissions,
substitutions and other variations as the Issuer’s Highest
Elected Official and Clerk may determine, as evidenced by their
manual signing of such Bonds. If temporary Bonds are
issued, the Trustee will cause definitive Bonds to be prepared
without unreasonable delay. After the preparation of
definitive Bonds, the temporary Bonds shall be exchangeable for
definitive Bonds upon surrender of the temporary Bonds at the
Trustee’s Principal Office without charge to the
Bondowner. Upon surrender for cancellation of any one or
more temporary Bonds, the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Bonds of authorized
denominations. Until so exchanged the temporary Bonds
shall in all respects be entitled to the same benefits hereunder as
definitive Bonds, and the principal of, premium, if any, and
interest thereon, when and as payable, shall be paid to the
Bondowners of the temporary Bonds.
Section 2.13
Execution of
Bonds . The Bonds shall be executed on
behalf of the Issuer by its Highest Elected Official under the
official seal of the Issuer attested to by its
Clerk. The signatures of the Highest Elected Official
and Clerk on the Bonds may be manual or facsimile. The
official seal of the Issuer on the Bonds may be actually impressed
or imprinted or may be reproduced thereon by facsimile.
Bonds bearing the manual or facsimile signatures
of the persons who were the Issuer’s Highest Elected Official
and Clerk at the time of the execution thereof shall be valid and
sufficient for all purposes notwithstanding that such persons or
either of them have ceased to hold such offices prior to the
authentication and delivery of the Bonds or did not hold such
offices at the date of the Bonds. For this purpose a
Bond executed by facsimile signature shall be deemed to have been
executed on the date of the printing thereof.
Section 2.14
Authentication
. No Bond shall be
entitled to any benefit hereunder or be valid for any purpose
unless there appears on such Bond a certificate of authentication
substantially in the form set forth in Exhibit B ,
executed on behalf of the Trustee with the manual signature of an
authorized signatory of the Trustee. Such certificate of
authentication executed as aforesaid on a Bond shall be conclusive
evidence that such Bond has been authenticated and delivered
hereunder.
Section 2.15
Provision for Registration,
Transfer and Exchange of Bonds . The Trustee shall cause a register
(herein sometimes referred to as the “ Bond Register
”) to be kept for the purpose of providing for the
registration and transfer of Bonds in accordance with the
provisions of this Section 2.15 and such reasonable additional
regulations as the Trustee may prescribe. Subject to
such regulations, any Bondowner may cause its address on the Bond
Register to be changed by giving written notice to the
Trustee. At reasonable times and under reasonable
regulations established by Trustee, the Bond Register may be
inspected and copied by the Borrower, the Issuer or by Bondowners
(or a designated representative thereof) of 10% or more in
aggregate principal amount of Bonds then Outstanding, the authority
of such designated representative to be evidenced to the
satisfaction of Trustee.
Each Bond shall be fully
negotiable. Any Bond may be transferred but only by a
written assignment duly executed by the Bondowner or by such
Bondowner’s duly authorized legal
representative. Upon presentation and any other holder
of a participating interest in the Bonds of the Bond together with
said executed form of assignment at the Trustee’s Principal
Office, the Trustee shall register the transfer in the Bond
Register; provided , however , that the Trustee shall
have no obligation to register the transfer unless the executed
assignment shall be satisfactory to it in form and
substance. Upon registration of the transfer of a Bond,
the Trustee shall cancel the surrendered Bond and the Issuer shall
issue, and the Trustee shall authenticate, one or more new Bonds of
authorized denominations of the same maturity and interest rate and
in the same aggregate outstanding principal amount as the
surrendered Bond.
The Bondowner requesting any registration of
transfer or exchange of Bonds shall pay with respect thereto any
resulting tax or governmental charge. All such payments
shall be conditions precedent to the exercise of the
Bondowner’s rights of registration of transfer or
exchange. The Trustee shall not be required to register
the transfer or to exchange any particular Bond after such Bond has
been selected for redemption. All registrations of
transfer and exchanges of Bonds shall be accomplished in such
manner that no increase or decrease in interest payable on the
Bonds results therefrom.
Section 2.16
Persons Treated as
Bondowners . The Issuer and the Trustee shall
treat the person in whose name any Bond is registered as the
absolute owner of such Bond for the purpose of receiving payment of
the principal of, premium, if any, and interest thereon and for all
other purposes whatsoever, whether or not such Bond is overdue and
irrespective of any actual, implied or imputed notice to the
contrary. In particular, neither the Participant nor any
other holder of a participating interest in the Bonds shall be
treated as a Bondowner except in accordance with the provisions
described in the second-to-last sentence of
Section 6.20.
Section 2.17
Manner of Payment of
Bonds . All principal installments of,
premium, if any, and interest on the Bond issued to the Original
Purchaser shall be paid directly to the Original Purchaser without
presentation or surrender of the Bonds by the Original Purchaser to
the Trustee. The Original Purchaser shall provide
confirmation to the Trustee promptly upon receipt of such payment
which notice shall include the date of payment, the amount of
principal installments of, premium, if any, and interest paid on
the Bond. The interest on any Bond and the principal
which is payable and is punctually paid or duly provided for, on
any Payment Date shall be paid by check drawn by the Borrowers
payable to the order of the person in whose name that Bond is
registered as of the close of business on the Record Date for such
interest and mailed to such person at the address shown on the Bond
Register, initially, the Original Purchaser. Any
interest on any Bond which is payable, but is not punctually paid
or duly provided for, may be paid in any lawful manner, at the
discretion of the Trustee. The principal of, premium, if
any, and interest on all Bonds shall be paid in lawful money of the
United States of America.
In any case where the date of maturity of
interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be, in the city in which the
Trustee’s Principal Office is located, a Saturday, Sunday or
a legal holiday, the payment of principal, premium, if any, and
interest need not be made on such date in such city but may be made
on the next succeeding Business Day.
Interest on any Bond which is payable, and is
punctually paid or duly provided for, on any Redemption Date that
is not a regularly scheduled Payment Date, shall be paid by check
drawn by the Borrower, payable to the order of the person in whose
name the Bond is registered at the close of business on the day
next preceding such Redemption Date, initially the Original
Purchaser.
Section 2.18
Mutilated, Lost, Stolen or
Destroyed Bonds . In the event any Bond is mutilated,
lost, stolen or destroyed, the Issuer may execute and the Trustee
may authenticate a new Bond of like date, maturity and denomination
as the Bond mutilated, lost, stolen or destroyed. In the
case of any lost, stolen or destroyed Bond, there shall first be
furnished to the Issuer and the Trustee evidence of such loss,
theft or destruction satisfactory to the Issuer and the Trustee,
together with indemnity satisfactory to them. In the
event any such Bond shall have matured, the Trustee instead of
issuing a substitute Bond may pay the same without surrender
thereof. The Issuer and the Trustee may charge the
Bondowner of such Bond with their reasonable fees and expenses in
this connection.
Section 2.19
Trustee Designated as Bond
Registrar . The Trustee shall be the bond
registrar for and in respect of all Bonds.
Section 2.20
Disposition of Bonds Upon
Payment; Safekeeping of Bonds Surrendered for
Exchange . All Bonds fully paid, fully
redeemed or purchased by the Trustee for cancellation under the
provisions hereof shall be cancelled when such final payment,
redemption or
purchase is made, and such cancelled Bonds shall
be delivered to the Trustee. All cancelled Bonds shall
be destroyed by the Trustee by cremation, shredding or other
suitable means, and the Trustee shall execute a certificate of
destruction in duplicate describing the Bonds so destroyed and one
executed certificate shall be filed with the Issuer and the other
executed certificate shall be retained by the Trustee.
Section 2.21
Delivery of
Bonds . Upon the execution and delivery of
this Bond Agreement, the Issuer shall issue and execute and deliver
the Bonds to the Trustee, and the Trustee shall authenticate such
Bonds and deliver them to the purchaser(s) as may be directed by
the Issuer.
Prior to the delivery of the Bonds by the
Trustee there shall be filed with the Trustee:
(a) A
certified copy of the resolution(s) of the Issuer authorizing the
issuance of the Bonds and the execution and delivery of this Bond
Agreement;
(b) An
original executed counterparts of this Bond Agreement;
and
(c) A
request and authorization to the Trustee, executed on behalf of the
Issuer by its Highest Elected Official or Clerk, to deliver the
Bonds to the purchaser(s) therein identified, in the form and
amount requested upon payment to the Trustee, for the account of
the Issuer, of a specified sum plus accrued interest on the Bonds
to date of delivery thereof.
Section 2.22
Parity
. This Bond Agreement is
for the equal and ratable benefit and security of all Bonds of all
Series issued and to be issued hereunder. All Bonds of
every Series shall be of equal rank, and no Bondowner shall be
accorded a preference or priority over any other Bondowner except
as expressly authorized or provided herein.
Section 2.23
Discharge
. If the Issuer shall pay
or cause to be paid from the Pledged Revenues the principal,
premium, if any, and interest due or to become due on the Bonds at
the times and in the manner stipulated therein, and if the Issuer
shall not then be in default in any of the covenants and promises
in the Bonds and in this Bond Agreement expressed as to be kept,
performed and observed by it or on its part, and shall pay or cause
to be paid to the Trustee all sums of money due or to become due
according to the provisions hereof, then these presents and the
estate and rights hereby granted shall cease, terminate and be
void, whereupon the Trustee shall cancel and discharge the lien of
this Bond Agreement and execute and deliver to the Issuer such
instruments in writing as shall be requisite to cancel and
discharge the lien hereof, and reconvey, release, assign and
deliver unto the Issuer any and all the estate, right, title and
interest in and to any and all property conveyed, assigned or
pledged to the Trustee or otherwise subject to the lien of this
Bond Agreement, except moneys or securities held by the Trustee in
separate segregated trust accounts pursuant to this Bond Agreement
for the payment of the principal of, premium, if any, and interest
on unpresented Bonds.
Any Bonds shall be deemed to be paid when
payment of the principal of and premium, if any, on such Bond, plus
interest thereon to the due date thereof (whether such due date be
by reason of maturity or upon redemption as provided herein, or
otherwise) either (a) shall have been made or caused to be made in
accordance with the terms hereof, or (b) shall have been provided
for by irrevocably depositing with the Trustee, in trust and
irrevocably setting aside exclusively for such payment, (i) cash,
without regard to any investment or reinvestment thereof,
sufficient to make such
payment or (ii) Defeasance Obligations which are
not callable prior to maturity by the issuer thereof or anyone
acting on its behalf maturing as to principal and interest in such
amounts and at such times, without regard to any investment or
reinvestment thereof, as will provide sufficient moneys, together
with any uninvested cash, to make such payment, and all necessary
and proper fees and expenses of the Trustee pertaining to the Bond
with respect to which such deposit is made. At such time
as a Bond shall be deemed to be paid hereunder as aforesaid, it
shall no longer be deemed to be outstanding hereunder and shall no
longer be secured by or entitled to the benefits hereof, except for
the purposes of any such payment from such moneys or Defeasance
Obligations.
Notwithstanding the foregoing, no deposit under
clause (b) of the immediately preceding paragraph shall be
deemed a payment of such Bonds as aforesaid until:
(a) The
deposit shall have been made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee
consistent herewith and a verification report with respect to the
sufficiency of such deposit prepared by an independent certified
public accountant shall have been delivered to the
Trustee;
(b) In the
case of an escrow trust deposit with respect to Bonds subject to
redemption prior to maturity at the option of the Borrower, the
Borrowers shall have delivered an irrevocable Borrower’s
Certificate designating when such Bonds are to be paid or redeemed
under terms of such escrow trust agreement;
(c) In
case of Bonds which are to be redeemed prior to maturity from such
escrow trust deposit, a redemption notice meeting the requirements
of Section 2.08 and stating that such Bonds are being redeemed
from a deposit made pursuant to this Section 2.23 shall either
(i) have been given, or (ii) shall have been provided for by
delivery to the Trustee of irrevocable instructions for the giving
of such notice;
(d) The
Trustee shall have been furnished with an opinion of Bond Counsel
to the effect that the payment of the Bonds in accordance with said
escrow trust agreement will not adversely affect the excludability
from gross income of the Bondowners for federal income tax purposes
and will not cause the Bonds to be classified as “arbitrage
bonds” under Section 148 of the Code; and
(e) The
Trustee shall have covenanted to give notice of such deposit to the
Bondowner of each Bond outstanding at the address shown on the Bond
Register.
All moneys or Defeasance Obligations set aside
and held in trust pursuant to the provisions of this Article for
the payment of Bonds (including interest and premium thereon, if
any) shall be applied to and used solely for the payment of the
particular Bonds (including interest and premium thereon, if any)
with respect to which such moneys and Defeasance Obligations have
been so set aside in trust.
If moneys or Defeasance Obligations have been
deposited or set aside with the Trustee pursuant to this Article
for the payment of Bonds and the interest and premium, if any,
thereon and such Bonds and the interest and premium, if any,
thereon shall not have in fact been actually paid in full, no
amendment to the provisions of this Section 2.23 shall be made
without the consent of the Bondowner of each of the Bonds affected
thereby.
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01
Application of Proceeds of
Bonds . The Trustee shall deposit the
amount received by it for the account of the Issuer on the Original
Issue Date into the appropriate Project Fund Account or Project
Fund Accounts established pursuant to Section 3.02.
It is the intention of the Parties that neither
the entire $3,000,000 principal amount of the Series A Bonds
nor the entire $500,000 principal amount of the Series B Bonds
nor the entire $500,000 principal amount of the Series C Bonds
will, in any case, be funded on the Effective
Date. Rather, the Borrowers will submit one or more
Borrowers’ Requisitions to the Trustee and the Original
Purchaser in accordance with Section 4.02. The
Original Purchaser shall review each such Borrowers’
Requisition and if, in the Original Purchaser’s absolute
discretion, the Original Purchaser shall approve such
Borrowers’ Requisition, the Original Purchaser shall
(i) disbur