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BOND AGREEMENT

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BOND AGREEMENT | Document Parties: ENERGY COMPOSITES CORP | ADVANCED FIBERGLASS TECHNOLOGIES, INC | M & W FIBERGLASS, LLC | NEKOOSA PORT EDWARDS STATE BANK You are currently viewing:
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ENERGY COMPOSITES CORP | ADVANCED FIBERGLASS TECHNOLOGIES, INC | M & W FIBERGLASS, LLC | NEKOOSA PORT EDWARDS STATE BANK

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Title: BOND AGREEMENT
Governing Law: Wisconsin     Date: 10/17/2008

BOND AGREEMENT, Parties: energy composites corp , advanced fiberglass technologies  inc , m & w fiberglass  llc , nekoosa port edwards state bank
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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)

 

 

 

 

 

 

BOND AGREEMENT

 

 

 

 

 

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)

 

 

BOND AGREEMENT

 

 

TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS

 

 

Section 1.01

Definitions

 

 

Section 1.02

Use of Phrases; Rules of Construction

12

 

 

ARTICLE II ISSUANCE AND TERMS OF BONDS

   13

 

Section 2.01

Creation of Bonds for Issuance

13

 

Section 2.02

Maturity; Repayment of Principal; Interest Payments

13

 

Section 2.03

Interest on the Bonds.

14

 

Section 2.04

Occurrence of a Determination of Taxability

15

 

Section 2.05

Mandatory and Optional Redemption of Bonds

16

 

Section 2.06

Optional Redemption of Bonds Upon Occurrence of Certain Extraordinary Events

18

 

Section 2.07

Purchase and Cancellation of Bonds

20

 

Section 2.08

Notice and Effect of Redemption

20

 

Section 2.09

Bonds to be Limited Obligations of the Issuer

20

 

Section 2.10

Source of Payment

21

 

Section 2.11

Pledged Revenues

21

 

Section 2.12

Form of Bonds

21

 

Section 2.13

Execution of Bonds

21

 

Section 2.14

Authentication

22

 

Section 2.15

Provision for Registration, Transfer and Exchange of Bonds

22

 

Section 2.16

Persons Treated as Bondowners

23

 

Section 2.17

Manner of Payment of Bonds

23

 

Section 2.18

Mutilated, Lost, Stolen or Destroyed Bonds

23

 

Section 2.19

Trustee Designated as Bond Registrar

23

 

Section 2.20

Disposition of Bonds Upon Payment; Safekeeping of Bonds Surrendered for Exchange

23

 

Section 2.21

Delivery of Bonds

24

 

Section 2.22

Parity

24

 

Section 2.23

Discharge

24

 

 

ARTICLE III FUNDS AND ACCOUNTS

26

 

Section 3.01

Application of Proceeds of Bonds

26

 

Section 3.02

Project Fund

26

 

Section 3.03

Bond Fund

27

 

Section 3.04

Redemption Fund

27

 

 

 

i


 

 

Section 3.05

Insurance and Condemnation Proceeds Fund

28

 

Section 3.06

Rebate Credit Account; Arbitrage

29

 

Section 3.07

Trust Funds Held in Trust

30

 

Section 3.08

Permitted Investment of Trust Funds

30

 

 

ARTICLE IV TERMS OF LOANS

30

 

Section 4.01

Amount and Source of Loans

30

 

Section 4.02

Withdrawals from the Project Fund

31

 

Section 4.03

Establishment of Completion Date

32

 

Section 4.04

Completion Date

32

 

Section 4.05

Distribution of Project Fund on Completion Date

32

 

Section 4.06

Repayment of Loan

32

 

Section 4.07

Additional Payments

32

 

Section 4.08

Borrowers’ Obligations Unconditional

33

 

Section 4.09

Credit for Accrued Interest and Investment Earnings on Bond Fund

33

 

Section 4.10

Prepayment of Loan

33

 

Section 4.11

Other Security

33

 

Section 4.12

Nature of Borrowers’ Obligations

33

 

Section 4.13

Fees and Expenses of Issuer

34

 

 

ARTICLE V ISSUER’S REPRESENTATIONS AND COVENANTS

34

 

Section 5.01

Payment of Principal and Interest

34

 

Section 5.02

Performance of and Authority for Covenants

34

 

Section 5.03

Right to Payments; Instruments of Further Assurance

34

 

Section 5.04

Title to Project

34

 

Section 5.05

Cooperation of the Issuer and Trustee

35

 

Section 5.06

Performance by Issuer

35

 

 

ARTICLE VI BORROWERS’ REPRESENTATIONS AND COVENANTS

35

 

Section 6.01

Representations by the Borrowers Individually

35

 

Section 6.02

Representations by the Borrowers Collectively

37

 

Section 6.03

Completion of Project by the Borrowers

38

 

Section 6.04

Payment of Project Costs by the Borrower

38

 

Section 6.05

Sums for Completion

38

 

Section 6.06

Borrowers to Repair, Replace, Rebuild or Restore

39

 

Section 6.07

Maintenance of Property; Insurance

40

 

Section 6.08

Compliance with Zoning Laws

40

 

Section 6.09

Indemnification

40

 

Section 6.10

Assurance of Tax-exemption

41

 

Section 6.11

Legal Existence; Compliance with Laws; Maintenance of Business; Taxes

41

 

Section 6.12

Financial Statements

41

 

Section 6.13

Environmental Compliance

42

 

Section 6.14

Certain Financial Covenants.

43

 

Section 6.15

Operating Funds and Accounts.

43

 

Section 6.16

Inspection of Property and Records

43

 

Section 6.17

Comply With, Pay and Discharge All Notes, Mortgages, Deeds of Trust and Leases

44

 

Section 6.18

Appraisals

44

 

 

ii


 

 

Section 6.19

Negative Covenants

44

 

Section 6.20

Consent to Participation

46

 

 

ARTICLE VII POWERS AND DUTIES OF TRUSTEE

46

 

Section 7.01

Acceptance of Trusts

46

 

Section 7.02

Specific Duty of Trustee to File Continuation Statements

48

 

Section 7.03

Notice to Bondowners if an Event of Default Occurs

48

 

Section 7.04

Intervention by Trustee

48

 

Section 7.05

Successor Trustee

49

 

Section 7.06

Resignation by Trustee

49

 

Section 7.07

Removal of Trustee

49

 

Section 7.08

Appointment of Successor Trustee by Bondowners; Temporary Trustee

49

 

Section 7.09

Concerning Any Successor Trustee

50

 

Section 7.10

Acquisition of Conflicting Interests by Trustee

50

 

Section 7.11

Requirement of a Corporate Trustee

51

 

Section 7.12

Trustee’s Fees

51

 

 

ARTICLE VIII BOND DEFAULTS AND REMEDIES

51

 

Section 8.01

Bond Defaults Defined

51

 

Section 8.02

Acceleration

52

 

Section 8.03

Remedies

52

 

Section 8.04

Right of Bondowners to Direct Proceedings

53

 

Section 8.05

Waiver of Certain Rights

53

 

Section 8.06

Application of Moneys

53

 

Section 8.07

Remedies Vested in Trustee

54

 

Section 8.08

Rights and Remedies of Bondowners

54

 

Section 8.09

Termination of Proceedings

55

 

Section 8.10

Waivers of Bond Defaults

55

 

 

ARTICLE IX LOAN DEFAULTS AND REMEDIES

56

 

Section 9.01

Loan Defaults Defined

56

 

Section 9.02

Certain Notices to Borrower

56

 

Section 9.03

Acceleration Upon Certain Circumstances

57

 

Section 9.04

Remedies

57

 

Section 9.05

Disposition of Funds

57

 

Section 9.06

Manner of Exercise

57

 

Section 9.07

Attorneys’ Fees and Expenses

57

 

Section 9.08

Effect of Waiver

58

 

Section 9.09

Waiver of Stay or Extension Laws

58

 

 

ARTICLE X AMENDMENTS

58

 

Section 10.01

Amendments Without Bondowners’ Consent

58

 

Section 10.02

Amendments With Bondowners’ Consent

58

 

Section 10.03

Consent of Borrower

59

 

Section 10.04

Special Provisions Regarding Certain Amendments

59

 

 

ARTICLE XI ASSIGNMENT

59

 

 

iii


 

ARTICLE XII GENERAL

60

 

Section 12.01

Notices

60

 

Section 12.02

Consent of Bondowners

61

 

Section 12.03

Limitation of Rights

61

 

Section 12.04

Captions

61

 

Section 12.05

Execution Counterparts

61

 

Section 12.06

Severability

61

 

Section 12.07

Binding Effect

61

 

Section 12.08

Governing Law

61

 

 

ARTICLE XIII AGREEMENT TO PURCHASE BONDS AND FUND Borrowers’ REQUISITIONS

61

 

Section 13.01

Pledges.

62

 

Section 13.02

Certain Related Documents

62

 

Section 13.03

Bond Documents

62

 

Section 13.04

Closing Certificate

62

 

Section 13.05

UCC Searches

62

 

Section 13.06

Insurance Certificates

62

 

Section 13.07

Title Insurance

62

 

Section 13.08

Survey

62

 

Section 13.09

Environmental Reports

63

 

Section 13.10

Counsel Opinion

63

 

Section 13.11

Real Estate Appraisals

63

 

Section 13.12

Proceedings Satisfactory

63

 

Section 13.13

Project Compliance

  63

 

Section 13.14

Supporting Documents 

   63 

 

 

iv


 

 

$4,000,000

City of Wisconsin Rapids, Wisconsin

Industrial Development Revenue Bonds, Series 2006

(Advanced Fiberglass Technologies Project)

 

 

BOND AGREEMENT

 

 

 

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:

 

 

1


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.

 

 

2


 

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:

 

Mr. Jamie L. Mancl

c/o Advanced Fiberglass Technologies, Inc.

2330 S. 16 th Street

Wisconsin Rapids, Wisconsin 54494

Phone:    (715) 421-2060

Fax:         (715) 421-2048

 

After the Completion Date:

 

Mr. Jamie L. Mancl

c/o Advanced Fiberglass Technologies, Inc.

4400 Commerce Drive

Wisconsin Rapids, Wisconsin 54494

Phone:    (715) 421-2060

Fax:         (715) 421-2048

 

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.

 

 

3


 

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.

 

 

4


 

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

 

 

5


 

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:

 

City of Wisconsin Rapids

444 West Grand Avenue

Wisconsin Rapids, WI 54495

Attn: City Clerk

Phone:  (715) 421-8208

Fax:       (715) 421-8280

 

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.

 

 

6


 

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:

 

 

7


 

Nekoosa Port Edwards State Bank

405 Market Street

P.O. Box 9

Nekoosa, WI 54457

Phone:   (715) 886-3104

Fax:        (715) 886-3310

 

 

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.

 

 

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Project Costs :

 

(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.

 

 

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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,

 

 

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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.

 

 

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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

405 Market Street

P.O. Box 9

Nekoosa, WI 54457

Phone:       (715) 886-3104

Fax:            (715) 886-3310

 

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.

 

 

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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.

 

 

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(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 .

 

(a)     Series A 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

 

 

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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

 

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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

 

 

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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

 

 

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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:

 

 

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(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

 

 

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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

 

 

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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.

 

 

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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.

 

 

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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

 

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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

 

 

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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.

 

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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


 
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