EXHIBIT 10.6
INDUSTRIAL DEVELOPMENT REVENUE
BONDS,
CREDIT AGREEMENT DATED FEBRUARY 28,
2007
CREDIT
AGREEMENT
Dated as of February 28,
2007
By and Between
ADVANCED FIBERGLASS TECHNOLOGIES,
INC.,
M & W FIBERGLASS,
LLC,
JAMIE L. MANCL AND JENNIFER
MANCL
AS BORROWER
And
NEKOOSA PORT EDWARDS STATE
BANK
Relating to:
$4,000,000
City of Wisconsin Rapids,
Wisconsin
Industrial Development Revenue
Bonds, Series 2007A, Series 2007B and Series 2007C
(Advanced Fiberglass Technologies
Project)
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RECITALS
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1
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AGREEMENT
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1
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ARTICLE I
DEFINITIONS
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1
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1.01
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Defined
Terms
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1
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1.02
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Other
Terms
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7
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ARTICLE II
PURCHASE OF THE BONDS; REPAYMENT OF THE LOAN
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7
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2.01
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Purchase of the
Bonds
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7
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2.02
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Repayment of
the Loan
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7
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2.03
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Yield
Protection
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8
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
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8
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3.01
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Organization,
Etc.
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9
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3.02
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Authorization
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9
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3.03
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No Conflicting
Obligations
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9
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3.04
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No
Defaults
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9
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3.05
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No
Litigation
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9
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3.06
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Financial
Statements
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9
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3.07
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Accuracy of
Information
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9
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3.08
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Taxes
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10
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3.09
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Property
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10
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3.10
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Licenses,
Franchises
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10
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3.11
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Places of
Business; Collateral
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10
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3.12
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Other
Names
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10
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3.13
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Federal Reserve
Regulations
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10
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3.14
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ERISA
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11
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3.15
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Investment
Company Act; Public Utility Holding Company Act
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11
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3.16
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Environmental
Laws
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11
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ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE OF THE BONDS
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11
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4.01
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Certain Related
Documents
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11
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4.02
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Bond
Documents
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11
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4.03
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Closing
Certificate
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11
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4.04
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UCC
Searches
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12
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4.05
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Insurance
Certificates
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12
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4.06
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Title
Insurance
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12
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4.07
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Survey. [Reserved]
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12
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4.08
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Environmental
Reports
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12
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4.09
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Counsel
Opinion
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12
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4.10
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Real Estate
Appraisals
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12
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4.11
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Proceedings
Satisfactory
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13
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4.12
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Project
Compliance
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13
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4.13
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Supporting
Documents
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13
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ARTICLE IVA
CONDITIONS TO BANK'S AGREEMENT TO PURCHASE BONDS AND TO FUND
BORROWER'S REQUISITIONS
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13
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4A.1
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Construction
Contract
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13
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4A.3
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Title
Endorsements
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13
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ARTICLE V
AFFIRMATIVE COVENANTS
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13
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5.01
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Existence;
Compliance With Laws; Maintenance of Business; Taxes
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13
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5.02
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Maintenance of
Property; Insurance
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14
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5.03
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Financial
Statements
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14
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5.04
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Inspection of
Property and Records/Bank Audits
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15
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5.05
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Use of
Proceeds
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16
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5.06
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Bank
Accounts
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16
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5.07
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Compliance With
Other Agreements
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16
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5.08
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Compliance With
Laws
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16
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5.09
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Payment of Fees
and Costs
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17
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5.10
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Project
Disbursements
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17
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5.11
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No Liens;
Plans; Covenants, Conditions and Restrictions
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17
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5.12
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Project
Lease
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17
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5.13
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Key-Person Life
Insurance
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17
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5.14
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Minimum
Tangible Net Worth
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18
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5.15
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Debt Service
Coverage Ratio
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18
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5.16
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Total
Indebtedness to Tangible Net Worth Ratio
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18
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5.17
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Annual Resting
of Line of Credit
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18
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5.18
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Mortgage on
After-Acquired Real Estate
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18
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ARTICLE VI
NEGATIVE COVENANTS
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18
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6.01
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Sale of Assets,
Consolidation, Merger, Acquisitions, Etc.
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18
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6.02
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Indebtedness
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19
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6.03
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Liens
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19
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6.04
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Guaranty
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19
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6.05
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Loans,
Investments
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19
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6.06
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Compliance with
ERISA
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19
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6.07
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Restricted
Payments
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19
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6.08
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Project Lease
– No Modification
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20
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6.09
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Salaries
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20
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6.10
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Change In
Control
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20
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ARTICLE VII
EVENTS OF DEFAULT
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20
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7.01
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Events of
Default Defined
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20
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7.02
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Remedies Upon
Event of Default
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21
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ARTICLE VIII
MISCELLANEOUS
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22
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8.01
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Indemnity
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22
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8.02
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Assignability;
Successors
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22
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8.03
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Survival
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22
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8.04
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Counterparts;
Headings
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22
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8.05
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Entire
Agreement; Amendments
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22
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8.06
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Notices
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22
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8.07
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No
Waiver
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24
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8.08
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Severability
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24
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8.09
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Further
Assurances
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24
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8.10
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Conflicts and
Ambiguities
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24
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8.11
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Governing
Law
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24
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8.12
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Consent to
Jurisdiction
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25
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8.13
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Fees and
Expenses
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25
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8.14
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Assignments;
Participations
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26
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8.15
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WAIVER OF
JURY TRIAL
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26
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SCHEDULE
1.01(a) - Project Real Property
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SCHEDULE 3.11 -
Places of Business/Locations of Collateral
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated February 28, 2007
(this “ Agreement ”), is made by and between
ADVANCED FIBERGLASS TECHNOLOGIES, INC., a Wisconsin corporation
(the “ Corporation ”), M & W FIBERGLASS,
LLC, a Wisconsin limited liability company (the “ LLC
”), JAMIE L. MANCL, an individual resident of the State of
Wisconsin, and JENNIFER MANCL, an individual resident of the State
of Wisconsin (Jamie L. Mancl and Jennifer Mancl being referred to
herein as the “ Individual Borrowers ”) (as used
herein the term “ Borrower ” shall mean, the
Corporation, the LLC and the Individual Borrowers, individually or
collectively, as the context requires), and NEKOOSA PORT EDWARDS
STATE BANK, Nekoosa, Wisconsin, as lender and as agent for the
financial institutions from time to time parties hereto (the
“ Bank ” or the “ Original
Purchaser ”).
RECITALS
A. The
City of Wisconsin Rapids, Wisconsin (the “ Issuer
”), will issue its Industrial Development Revenue Bonds,
Series 2007A, 2007B and 2007C (Advanced Fiberglass Technologies
Project) in the aggregate principal amount of Four Million Dollars
($4,000,000) (the “ Bonds ”), pursuant to a Bond
Agreement dated as of February 28, 2007 (the “ Bond
Agreement ”), by and among the Issuer, the Borrower,
Nekoosa Port Edwards State Bank, as trustee (the “
Trustee ”) and the Original Purchaser (the “
Bond Agreement ”).
B. The
proceeds derived from the issuance of the Bonds will be loaned to
the Borrowers pursuant to the Bond Agreement, and used for
(i) the construction of an approximately 70,000 square foot
manufacturing facility to be located at 4400 Commerce Drive in the
City of Wisconsin Rapids, Wisconsin (the “ Facility
”) to be owned by the LLC and leased to the Corporation and
use in connection with the Corporation’s manufacturing
business; and (ii) the acquisition and installation of
equipment at the Facility (collectively (i) and (ii) are referred
to herein as the “ Project ”).
C. To
provide the funds to be loaned to the Borrowers for payment of the
costs of the Project, the Issuer has contracted for the sale of the
Bonds to the Bank, and the Bank has agreed to purchase such Bonds
in reliance on Borrowers’ agreeing to the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE in consideration of the premises
and the mutual agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.01
Defined Terms . As used herein, the following
terms shall have the following meanings:
“ Agreement ” shall mean this
Credit Agreement, as amended, restated, supplemented, modified or
extended from time to time.
“ Appraised Value ” shall
have the meaning set forth in Section 4.10.
“ Bank ” shall mean Nekoosa
Port Edwards State Bank, a Wisconsin banking corporation, and its
successors and assigns.
“ Bond Agreement ” shall mean
the Bond Agreement dated as of February 28, 2007, by and among the
Issuer, the Trustee, the Borrower and the Bank pursuant to which
the Bonds shall be issued.
“ Bond Documents ” shall mean
the Bonds, the Bond Agreement, the Promissory Note and all
instruments, and other agreements executed by the Borrower in
connection with the Bonds.
“ Bond Proceeds ” the
proceeds of the sale of the Bonds such amount not to exceed
$4,000,000 as may be advanced by the Original Purchaser under the
Bond Agreement.
“ Bond Rate ” shall mean the
then-applicable interest rate on the Bonds.
“ Bond Year ” shall mean,
commencing with the Closing Date, each year ending on February 28
or February 29 (as applicable).
“ Bonds ” shall mean the
Issuer’s Industrial Development Revenue Bonds, Series 2007A,
Series 2007B and Series 2007C (Advanced Fiberglass Technologies
Project) issued on the Closing Date, in the aggregate principal
amount of Four Million Dollars ($4,000,000).
“ Borrower ” shall mean
individually or collectively, as the context requires, the
Corporation, the LLC, and the Individual Borrowers.
“ Business Day ” shall mean a
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
Bank’s Principal Office is located.
“ Closing Date ” shall mean
February 28, 2007.
“ Code ” shall mean the
Internal Revenue Code of 1986, as amended and recodified from time
to time.
“ Collateral ” shall mean all
of the rights, interest and Property of Borrower granted to the
Bank as collateral hereunder or to the Trustee as collateral under
the Bond Documents and under the Related Documents, and all other
rights, interests and Property from time to time granted to the
Bank as collateral for the payment and performance of the
Obligations.
“ Collateral Assignment of Construction
Contracts ” shall mean the Collateral Assignment of
Construction Contracts dated February 28, 2007 by Borrower in favor
of the Trustee and the Bank, as amended, restated, supplemented,
modified or extended from time to time.
“ Collateral Assignment of Life
Insurance ” shall mean the Collateral Assignment of Life
Insurance dated February 28, 2007 by Borrower in favor of the
Trustee and the Bank, as amended, restated, supplemented, modified
or extended from time to time.
“ Corporation ” shall mean
Advanced Fiberglass Technologies, Inc., a Wisconsin
corporation.
“ Debt Service Coverage Ratio
” of any entity or entities on any date shall mean the ratio
of (i) EBITDAR for the 12-month period ending on the
measurement date to (ii) interest expenses plus principal
payments coming due during the 12-month period beginning on the day
after the measurement date.
“ Default ” shall mean an
event which with the giving of notice or the passage of time or
both would constitute an Event of Default.
“ Default Rate ” shall mean a
rate equal to the Bond Rate plus 3%, per annum.
“ Disbursing Agreement ”
shall mean the Disbursing Agreement dated as of February 28, 2007,
among the Borrower, the Bank, the Trustee and the Title Company, as
amended, restated, extended, supplemented or otherwise modified
from time to time.
“ EBITDAR ” means earnings
before interest, taxes, depreciation, amortization and rent
expense.
“ Employer Plan ” shall mean
any pension or welfare benefit plan of Borrower.
“ Environmental Law” or
“Environmental Laws ” shall mean 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, including without limitation, any pollutant,
contaminant, waste or toxic or hazardous chemicals, wastes or
substances, including, without limitation, asbestos, urea
formaldehyde insulation, petroleum, PCBs, 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 254, 281, 283, 285, 287, 289, 291, 292, 293, 295 and
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 Commission, and the State of
Wisconsin.
“ Event of Default ” shall
have the meaning assigned in Section 7.01 hereof.
“ ERISA ” shall mean 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.
“ GAAP ” shall mean 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 the Borrower.
“ Government Authority ”
shall mean 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.
“ Guarantor ” shall mean
Fiberglass Piping & Fitting Company, a Wisconsin
corporation.
“ Guaranty ” shall mean that
certain Guaranty dated as of February 28, 2007 given by Guarantor
in favor of the Trustee and the Bank.
“ Indebtedness ” shall mean
all liabilities or obligations of Borrower, whether primary or
secondary or absolute or contingent or secured or
unsecured: (a) for borrowed money or for the
deferred purchase price of property or services (excluding trade
obligations incurred in the ordinary course of business, which are
not the result of any borrowing); (b) as lessee under leases
that have been or should be capitalized according to GAAP
consistently applied; (c) evidenced by notes, bonds,
debentures or similar obligations; (d) under any guaranty or
endorsement (other than in connection with the deposit and
collection of checks in the ordinary course of business), and other
contingent obligations to purchase, provide funds for payment,
supply funds to invest in any Person, or otherwise assure a
creditor against loss; or (e) secured by any Liens on assets
of Borrower, whether or not the obligations secured have been
assumed by Borrower.
“ Individual Borrowers ”
shall mean Jamie Mancl and Jennifer Mancl, each an individual
resident of the State of Wisconsin.
“ Interest Payment Date ”
shall mean each date on which a payment of interest is due on the
Bonds pursuant to Section 2.02 of the Bond
Agreement.
“ Issuer ” shall mean the
City of Wisconsin Rapids, a political subdivision of the State of
Wisconsin.
“ Lien” or “Liens
” shall mean any mortgage, pledge, assignment, deposit,
encumbrance, lien (statutory or other), deed of trust, security
interest, or security agreement of 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 UCC or comparable law of any
jurisdiction.
“ LLC ” shall mean M & W
Fiberglass, LLC, a Wisconsin limited liability company.
“ Loan ” shall mean the loan
by the Issuer to the Borrower of the Bond Proceeds.
“ Material Adverse Effect ”
shall mean (a) an Event of Default, (b) a material
adverse change in the business, property, prospects, operations or
condition (financial or otherwise) of the Borrower, (c) the
termination of any material agreement to which the Borrower is a
party which has a material adverse effect on the operations or
condition of the Borrower, (d) any material impairment of the
right to carry on the business as now or proposed to be conducted
by the Borrower, or (e) any material impairment of the ability
of the Borrower to perform the Obligations under this Agreement or
the Related Documents. A Material Adverse Effect shall be deemed to
have occurred if the cumulative effect of an individual event and
all other then existing events would result in a Material Adverse
Effect.
“ Mortgage ” shall mean
that certain Construction Mortgage and Assignment of Leases and
Rents dated as of February 28, 2007 and executed pursuant to the
requirements hereof by Borrower in favor of the Trustee and the
Bank which, among other things, grants to the Trustee and the Bank
a mortgage on the Project Real Property, as amended, restated,
supplemented, modified, or extended from time to time.
“ Net Income ” shall mean for
any period, the net earnings of a Person as determined according to
GAAP consistently applied, excluding the effect of (a) gains
from a write up of assets, (b) gains from the acquisition of
any securities, (c) gains resulting from the sale of any
investments or capital assets, (d) amortization of any
deferred credit arising from the acquisition of any Person, and
(e) proceeds of any life insurance payable to such
Person.
“ Obligations ” shall mean
the obligation to make payments on the Promissory Note, and all
mandatory prepayments, all costs, fees and expenses, all
liabilities of Borrower under the Bond Documents, all liabilities
of Borrower to the Bank, and all other Indebtedness of Borrower to
the Bank, whether or not evidenced by this Agreement, including,
without limitation, all liabilities under interest rate swap
agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements designed to protect against
fluctuations in interest rates or currency exchange
rates.
“ Outstanding Bonds ” shall
mean, at any date, the aggregate principal amount of the Bonds on
such date.
“ PBGC ” shall mean the
Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
“ Participants ” shall have
the meaning in Section 8.14.
“ Payment Date ” shall mean
monthly on the 28 th day of each month commencing March 28,
2007.
“ Permitted Liens ” shall
mean, as to any Person: (a) Liens for taxes, assessments, or
governmental charges, carriers’, warehousemen’s,
repairmen’s, mechanics’, materialmen’s and other
like Liens created by law, which are either not delinquent or are
being contested in good faith by appropriate proceedings which will
prevent foreclosure of such Liens, and against which adequate cash
reserves have been provided; (b) easements, restrictions,
minor title irregularities and similar matters which have no
material adverse effect upon the ownership and use of the affected
Property; (c) Liens or deposits in connection with
worker’s compensation,
unemployment insurance, social security or other
insurance or to secure customs duties, public or statutory
obligations in lieu of surety, stay or appeal bonds, or to secure
performance of contracts or bids, other than contracts for the
payment of money borrowed, or deposits required by law as a
condition to the transaction of business or other Liens or deposits
of a like nature made in the ordinary course of business;
(d) Liens in favor of the Bank; and (e) Liens created by
sellers of goods sold to such Person on open account, which Liens
attach solely to the goods sold and secure solely the purchase
price of said goods during the period during which said goods are
in the possession of such Person on a trial or
“approval” basis and before which the purchase price
for said goods becomes due and payable.
“ Person ” shall mean an
individual, partnership, corporation, firm, enterprise, business
trust, joint stock company, trust, limited liability company,
limited liability partnership unincorporated association, joint
venture, Government Authority or other entity of whatever
nature.
“ Project ” shall have the
meaning assigned in Recital B.
“ Project Lease ” shall mean
that certain Lease Agreement executed pursuant to the requirements
hereof by and between the LLC, as lessor, and the Corporation, as
lessee, pursuant to which Borrower leases the Project Real Estate
to the Corporation, as amended, restated, extended, supplemented or
otherwise modified from time to time.
“ Project Real Property ”
shall mean the real property (including improvements and accessions
thereto) described on Schedule 1.01(a) attached
hereto.
“ Property ” shall mean any
interest of a Person 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.
“ Promissory Note ” shall
mean the Promissory Notes dated as of February 28, 2007 in the
principal amounts of $3,000,000 (the “ Series A Note
”), $500,000 (the “ Series B Note ”), and
$500,000 (the “ Series C Note ”), made by
Borrower in favor of the Issuer and assigned to the Bank, as
original purchaser of the Bonds.
“ Related Documents ” shall
mean this Agreement, the Disbursing Agreement, the Mortgage, the
Security Agreement, the Collateral Assignment of Construction
Contracts, the Collateral Assignment of Life Insurance and all
other certificates, resolutions, or other documents required or
contemplated hereunder.
“ Requirements of Law ” shall
mean, as to any matter, Property or Person, the 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 zoning and 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. !
“ Restricted Payments ” shall
mean, as to any Person, (a) dividends, distributions, or other
payments by such Person based upon an ownership interest in said
entity, or (b) purchases, redemptions or other acquisitions,
direct or indirect, by such Person of an ownership interest in said
entity, whether now or hereafter outstanding.
“ Security Agreement ” shall
mean the Security Agreement dated February 28, 2007, among the
Borrower, the Trustee and the Bank, all as amended, restated,
supplemented, extended or otherwise modified from time to
time.
“ Subsidiary ” shall mean, as
to any Person, a corporation of which shares of stock having voting
power (other than stock 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 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.
“ Tangible Net Worth ” shall
mean (1) the total of all of Corporation’s assets,
excluding any noncompetition agreements, capitalized acquisition
costs, goodwill and other intangibles, minus (2) the aggregate
of all Corporation’s liabilities and reserves of every kind
and character, all determined in accordance with generally accepted
accounting principles consistent with those followed in preparation
of the financial statements described in Section 5.03
hereof.
“ Title Company ” shall mean
Goetz Abstract & Title, Inc., as agent for Chicago Title
Insurance Company, 132 1 st Street North, Wisconsin Rapids,
WI 54494, and its successors and assigns.
“ Trustee ” shall mean any
trustee under the Bond Agreement from time to time, initially
Nekoosa Port Edwards State Bank.
“ UCC ” shall mean the
Uniform Commercial Code of the State of Wisconsin, as amended from
time to time.
1.02 Other Terms
. Any capitalized terms used herein which are not
defined shall have the meaning given such terms in the Bond
Agreement. Terms defined in other Sections of this
Agreement shall have the meanings set forth therein.
ARTICLE II
PURCHASE OF THE BONDS; REPAYMENT
OF THE LOAN
2.01 Purchase of the
Bonds . On the Closing Date, the Issuer will issue
the Bonds and lend the Loan to the Borrower and the Borrower will
borrow the Loan from the Issuer, upon the terms and conditions set
forth in the Bond Documents the amount (not to exceed) $4,000,000
of Bond Proceeds and cause such Bond Proceeds to be credited to the
Project Fund for disbursement by the Trustee in accordance with
Sections 3.01 and 4.02 of the Bond Agreement. The
Loan shall be evidenced by the Promissory Note. The
outstanding principal amount of the Loan shall at all times be
equal to the principal amount of the Outstanding Bonds.
2.02 Repayment of
the Loan . The Borrower will pay to the Trustee at
its Principal Office for the account of the Issuer, and for deposit
in the Bond Fund, in immediately available
funds on the last Business Day of each month the
exact amount of interest and principal payable on each Payment Date
in accordance with the Promissory Note and those provisions of
Article IV of the Bond Agreement. This section
shall be construed so that the Borrower’s obligation,
pursuant to this section, shall never be more than to have on
deposit in the Bond Fund on any Payment Date the exact amount of
principal and interest due on the Bonds on that Payment Date
(except for the amount of additional payments required by
Section 4.07 of the Bond Agreement, amounts necessary to
provide for the mandatory redemption of Bonds at the time and in
the manner provided in the Bond Agreement, including upon
acceleration of the Loan pursuant to Section 9.03 of the Bond
Agreement). In the event that the Borrower should fail
to make any of the payments required in this subsection, the item
so in default shall continue as an obligation of the Borrower until
the amount in default shall have been fully paid, and the Borrower
agrees to pay such amount with interest thereon (including, to the
extent permitted by law, interest on the overdue installments of
interest) at the Default Rate.
2.03 Yield
Protection . If, after the Closing Date, the
adoption of or any change in any Requirement of Law or the
compliance of the Bank therewith:
(a) subjects the Bank
to any tax, duty, charge or withholding on or from payments due
from the Borrower (excluding net income taxes and franchise taxes
or any other tax based upon income imposed upon the Bank by the
jurisdiction in which the Bank is incorporated or has its principal
place of business), or changes the basis of taxation of principal,
interest, fees or any other payments to the Bank in respect of this
Agreement or any other Related Agreement, or
(b) imposes or
increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, the
Bank, or
(c) imposes any other
condition the result of which is to increase the cost to the Bank
of holding and owning the Bonds and the extensions of credit and
accommodations contemplated by this Agreement or any Related
Document, or reduces any amount receivable by the Bank in
connection therewith, or requires the Bank to make any payment
calculated by reference to the Outstanding Bonds, or amounts
received by the Bank, by an amount deemed material by the Bank,
then, within ten (10) days of demand by the Bank, the Borrower
agrees that they shall pay the Bank that portion of such increased
expense incurred or resulting in an amount received which the Bank
determines is attributable to receiving any such payment or holding
or owning the Outstanding Bonds.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
In order to induce the Bank to purchase the
Bonds as provided herein, Borrower represents and warrants to the
Bank that all of the matters set forth (or incorporated by
reference) in the Bond Agreement are true and correct, and further
represents and warrants to the Bank as follows:
3.01 Organization,
Etc. The Corporation is a corporation duly formed,
and validly existing under the laws of the State of
Wisconsin. The LLC is a limited liability company duly
organized, and validly existing under the laws of the State of
Wisconsin. Each Borrower has the requisite power and
authority and all necessary licenses, permits and franchises to
execute and deliver, and to perform its obligations under, this
Agreement and each of the Related Documents and Bond Documents to
which it is a party, and to grant the liens and security interests
provided for in this Agreement and the Related Documents and to own
its assets and conduct its business as presently
conducted.
3.02
Authorization . The making, execution, delivery and
performance of this Agreement the Related Documents by each
Borrower are within the powers of such Borrower, and have been duly
authorized by all necessary action on the part of such
Borrower. The valid execution, delivery and performance
of this Agreement and the Related Documents by each Borrower and
the consummation of the transactions contemplated hereby and
thereby: (a) do not and will not violate any term
or provision of any Requirement of Law; and (b) are not and
will not be subject to any approval, consent or authorization of
any Person or Government Authority, other than those approvals,
consents or authorizations that have already been obtained and
remain in full force and effect. This Agreement and the
Related Documents are the valid and binding obligations of each
Borrower, enforceable against each Borrower in accordance with
their respective terms.
3.03 No Conflicting
Obligations . The making, execution, delivery and performance
of this Agreement and the Related Documents and compliance with
their respective terms do not violate or constitute a default,
breach or violation under any Requirements of Law or any covenant,
Bond Agreement, deed, lease, contract, agreement, mortgage, deed of
trust, note or instrument to which any Borrower is a party or by
which it or its Property is bound.
3.04 No Defaults
. No Borrower is in default under or in violation of
(a) any Requirements of Law, (b) any covenant, indenture,
deed, lease, agreement, mortgage, deed of trust, note or other
instrument to which such Borrower is a party or by which such
Borrower or its Property is bound, or (c) any
Indebtedness.
3.05 No
Litigation . There is no pending or, to the
knowledge of any Borrower, threatened litigation or administrative
proceeding at law or in equity which would, if adversely
determined, result in a Material Adverse Effect, and, to the best
of each Borrower’s knowledge after diligent inquiry, there
are no presently existing facts or circumstances likely to give
rise to any such litigation or administrative
proceeding.
3.06 Financial
Statements . The tax returns and financial
statements which each Borrower previously provided to the Bank are
accurate and complete. There has been no Material
Adverse Effect since the date of the latest of such
statements. Each entity Borrower’s Fiscal Year
ends on December 31 of each year.
3.07 Accuracy of
Information . All information, certificates,
forecasts, or statements given by Borrower to the Bank under this
Agreement and the Related Documents were accurate, true and
complete in all material respects when given, continue to be
accurate, true and complete in all material respects as of the date
hereof, and do not contain any untrue statement or
omission
of a material fact necessary to make the
statements herein or therein not misleading. There is no
fact known to any Borrower which is not set forth in this
Agreement, the Related Documents, the Bond Documents or other
documents, certificates, forecasts, or statements furnished to the
Bank by or on behalf of any Borrower in connection with the
transactions contemplated hereby which will, or which in the future
may (so far as any Borrower can reasonably foresee), cause a
Material Adverse Effect.
3.08 Taxes
. Each Borrower has filed all federal, state, foreign
and local tax returns which were required to be filed, except those
returns for which the due date has been validly
extended. Each Borrower has paid or made provisions for
the payment of all taxes, assessments, fees and other governmental
charges owed, and no tax deficiencies have been proposed,
threatened or assessed against any Borrower. There is no
pending or, to the