Exhibit 10.1
FINANCE AUTHORITY OF MAINE
and
CASELLA WASTE SYSTEMS, INC.
FINANCING AGREEMENT
Dated as of December 1, 2005
Relating to
$25,000,000
FINANCE AUTHORITY OF MAINE
SOLID WASTE DISPOSAL REVENUE BONDS
(CASELLA WASTE SERVICES, INC.
PROJECT)
SERIES 2005
TABLE OF CONTENTS
|
|
|
Page
|
|
ARTICLE I
|
DEFINITIONS
|
2
|
|
Section 1.1
|
Definition of Terms
|
2
|
|
Section 1.2
|
Number and Gender
|
2
|
|
Section 1.3
|
Articles, Sections, Etc
|
2
|
|
ARTICLE II
|
REPRESENTATIONS AND WARRANTIES OF THE AUTHORITY
AND THE COMPANY
|
2
|
|
Section 2.1
|
Representations of the Authority
|
2
|
|
Section 2.2
|
Representations and Warranties of the
Company
|
3
|
|
ARTICLE III
|
ISSUANCE OF THE BONDS; APPLICATION OF
PROCEEDS
|
5
|
|
Section 3.1
|
Agreement to Issue Bonds; Application of Bond
Proceeds
|
5
|
|
Section 3.2
|
Disbursements from the Project Fund;
Disbursements from the Costs of Issuance Fund
|
6
|
|
Section 3.3
|
Establishment of Completion Date; Obligation of
Company to Complete
|
7
|
|
Section 3.4
|
Investment of Moneys in Funds
|
7
|
|
Section 3.5
|
Limitation of Authority’s
Liability
|
7
|
|
ARTICLE IV
|
LOAN OF PROCEEDS; REPAYMENT PROVISION
|
8
|
|
Section 4.1
|
Loan of Bond Proceeds; Issuance of
Bonds
|
8
|
|
Section 4.2
|
Loan Payments and Payment of Other
Amounts
|
8
|
|
Section 4.3
|
Unconditional Obligation
|
10
|
|
Section 4.4
|
Assignment of Authority’s
Rights
|
10
|
|
Section 4.5
|
Amounts Remaining in Funds
|
10
|
|
ARTICLE V
|
SPECIAL COVENANTS AND AGREEMENTS
|
11
|
|
Section 5.1
|
Right of Access to the Project
|
11
|
|
Section 5.2
|
Disposition of Project
|
11
|
|
Section 5.3
|
The Company’s Maintenance of Its
Existence
|
11
|
|
Section 5.4
|
Records and Financial Statements of
Company
|
12
|
|
Section 5.5
|
Insurance
|
12
|
|
Section 5.6
|
Maintenance and Repairs; Taxes; Utility and
Other Charges
|
12
|
|
Section 5.7
|
Qualification in Maine
|
13
|
|
Section 5.8
|
Tax Covenant
|
13
|
|
Section 5.9
|
Continuing Disclosure
|
13
|
|
Section 5.10
|
Assignment by Company
|
13
|
|
Section 5.11
|
Cooperation in Filings and Other
Matters
|
14
|
|
|
|
|
|
i
|
Section 5.12
|
Letter of Credit
|
14
|
|
ARTICLE VI
|
[RESERVED]
|
15
|
|
ARTICLE VII
|
LOAN DEFAULT EVENTS AND REMEDIES
|
15
|
|
Section 7.1
|
Loan Default Events
|
15
|
|
Section 7.2
|
Remedies on Default
|
16
|
|
Section 7.3
|
Agreement to Pay Attorneys’ Fees and
Expenses
|
17
|
|
Section 7.4
|
No Remedy Exclusive
|
17
|
|
Section 7.5
|
No Additional Waiver Implied by One
Waiver
|
18
|
|
ARTICLE VIII
|
PREPAYMENT
|
18
|
|
Section 8.1
|
Redemption of Bonds with Prepayment
Moneys
|
18
|
|
Section 8.2
|
Options to Prepay Installments
|
18
|
|
Section 8.3
|
Mandatory Prepayment
|
18
|
|
Section 8.4
|
Amount of Prepayment
|
18
|
|
Section 8.5
|
Notice of Prepayment
|
19
|
|
ARTICLE IX
|
NON-LIABILITY OF AUTHORITY; EXPENSES;
INDEMNIFICATION
|
19
|
|
Section 9.1
|
Non-liability of Authority; Limitations on
Authority Actions and Responsibilities
|
19
|
|
Section 9.2
|
Expenses
|
21
|
|
Section 9.3
|
Indemnification
|
21
|
|
ARTICLE X
|
MISCELLANEOUS
|
22
|
|
Section 10.1
|
Notices
|
22
|
|
Section 10.2
|
Matters to be Considered by Authority
|
23
|
|
Section 10.3
|
Severability
|
23
|
|
Section 10.4
|
Execution of Counterparts
|
23
|
|
Section 10.5
|
Amendments, Changes and Modifications
|
23
|
|
Section 10.6
|
Governing Law
|
23
|
|
Section 10.7
|
Authorized Representative
|
23
|
|
Section 10.8
|
Actions by Authority
|
23
|
|
Section 10.9
|
Term of the Agreement
|
24
|
|
Section 10.10
|
Binding Effect
|
24
|
|
Section 10.11
|
Complete Agreement
|
24
|
|
Section 10.12
|
Business Days
|
24
|
|
|
|
|
|
ii
|
Section 10.13
|
Waiver of Personal Liability
|
24
|
|
Section 10.14
|
Waivers
|
24
|
iii
FINANCING
AGREEMENT
This FINANCING AGREEMENT (the
“Agreement”), dated as of December 1, 2005, between
FINANCE AUTHORITY OF MAINE (the “Authority”), and
CASELLA WASTE SYSTEMS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the
“Company”);
W I T N E S S E T
H:
WHEREAS, the Authority is a body
corporate and politic and a public instrumentality of the State of
Maine created under Maine Revised Statutes Annotated
(“MRSA”) Title 10, Section 963 and is authorized
pursuant to 10 MRSA Chapter 110 (the “Act”) to provide
financing for certain projects; and
WHEREAS, in accordance with the Act,
the Authority proposes to finance the costs of acquiring,
constructing, improving, installing or equipping of certain solid
waste disposal, collection and transfer facilities (collectively,
the “Project”) more particularly described in Exhibit A
hereof, and to pay the costs of issuance in connection therewith;
and
WHEREAS, pursuant to and in
accordance with the Act, the Authority has authorized and
undertaken to issue its Solid Waste Disposal Revenue Bonds (Casella
Waste Services, Inc. Project) Series 2005 (the
“Bonds”), pursuant to an Indenture (the
“Indenture”) of even date herewith between the
Authority and LaSalle Bank National Association, as trustee (the
“Trustee”), in order to provide funds to finance the
cost of the Project and to pay the costs of issuance in connection
therewith; and
WHEREAS, the Authority has
undertaken to finance the cost of the Project by loaning the
proceeds derived from the sale of the Bonds to the Company pursuant
to this Agreement, under which the Company is required to make loan
payments sufficient to pay when due the principal of, premium, if
any, and interest on the Bonds and related expenses; and
WHEREAS, the Company has delivered
to the Authority its Note, in the form of Exhibit B attached
hereto, dated December 28, 2005 (the “Note”) as
evidence of its obligations hereunder; and
WHEREAS, pursuant to the Indenture,
the Bonds will be issued and the Authority will assign to the
Trustee its right to receive payments, and certain but not all
other rights, under this Agreement; and
NOW, THEREFORE, for and in
consideration of the premises and the material covenants
hereinafter contained, the parties hereto hereby formally covenant,
agree and bind themselves as follows:
ARTICLE I
DEFINITIONS
Section
1.1
Definition of Terms . Unless the context otherwise requires,
the terms used in this Agreement shall have the meanings specified
in Section 1.1 of the Indenture, as originally executed or as
it may from time to time be supplemented or amended as provided
therein.
Section
1.2
Number and Gender .
The singular form of any word used herein, including the terms
defined in Section 1.1 of the Indenture, shall include the
plural, and vice versa. The use herein of a word of any
gender shall include all genders.
Section
1.3
Articles, Sections, Etc . Unless otherwise specified, references
to Articles, Sections and other subdivisions of this Agreement are
to the designated Articles, Sections and other subdivisions of this
Agreement as amended from time to time. The words
“hereof,” “herein,” “hereunder”
and words of similar import refer to this Agreement as a
whole. The headings or titles of the several articles and
sections, and the table of contents appended to copies hereof,
shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of the provisions
hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF
THE AUTHORITY AND THE COMPANY
Section
2.1
Representations of the Authority . The Authority makes the following
representations as the basis for its undertakings herein
contained:
(a)
The Authority is a body corporate and politic and a public
instrumentality of the State of Maine duly created under 10 MRSA,
Section 963.
(b)
The Bonds will be issued under and secured by an Indenture,
pursuant to which the Authority’s interest in this Agreement
with respect to the Bonds (except certain rights of the Authority
to payment for expenses and indemnification) will be pledged to the
Trustee as security for payment of the principal of, premium, if
any, and interest on the Bonds.
(c)
All Revenues to be derived by the Authority under this Agreement
and the rights of the Authority hereunder and under the Note
(except for indemnification rights and the rights of the Authority
to receive fees and reimbursement of its expenses and to receive
notices) have been assigned to the Trustee pursuant to the
Indenture to provide for the payment of the Bonds. The
Authority has not pledged and will not pledge any interest in this
Agreement or in the Note for any purpose other than to secure the
Bonds under the Indenture.
(d)
The Authority has made the required findings under the Act with
respect to the issuance of the Bonds and the execution of this
Agreement.
(e)
No director of the Authority has any pecuniary interest in the
Company.
2
(f)
The Authority has designated a share of the State ceiling on
private activity bonds in connection with the issuance of the
Bonds.
(g)
The Authority makes no representation or warranty concerning the
suitability of the Project for the purpose for which it is being
undertaken by the Company. The Authority has not made any
independent investigation as to the feasibility or creditworthiness
of the Company. Any bond purchaser, assignee of this
Agreement or any other party with any interest in this transaction,
shall make its own independent investigation as to the
creditworthiness and feasibility of the Project, independent of any
representation or warranties of the Authority.
Section
2.2
Representations and Warranties of the Company
. The Company represents and
warrants to the Authority that, as of the date of execution of this
Agreement and as of the date of delivery of the Bonds to the
initial purchasers thereof (such representations and warranties to
remain operative and in full force and effect regardless of the
issuance of the Bonds or any investigations by or on behalf of the
Authority or the results thereof):
(a)
The Company has full legal right, power and authority under the
laws of the United States and the State of Maine (i) to enter into
this Agreement and the Note (collectively, the “Company Loan
Documents”), (ii) to agree to be bound by the terms of the
Indenture, (iii) to perform its obligations hereunder and
thereunder, and (iv) to consummate the transactions contemplated by
the Tax Agreement and the Company Loan Documents. The Company
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and qualified to
do business in the State of Maine. The Company has by proper
corporate action duly authorized the execution and delivery of the
Company Loan Documents and the Tax Agreement and the performance of
its obligations thereunder.
(b)
This Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws or judicial decisions affecting the rights of
creditors generally and by judicial discretion in the exercise of
equitable remedies. Upon the execution and delivery thereof,
each of the Company Loan Documents will constitute valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws or judicial
decisions affecting creditors’ rights generally and by
judicial discretion in the exercise of equitable
remedies.
(c)
The execution and delivery of the Company Loan Documents and the
performance by the Company of its obligations thereunder and the
consummation of the transactions contemplated thereby do not and
will not conflict with, or constitute a breach or result in a
violation of, the certificate of incorporation or bylaws of the
Company, will not violate any law, regulation, rule or ordinance
applicable to the Company or the transactions contemplated hereby
or any material order, judgment or decree of any federal, state or
local court applicable to the Company and (with due notice or the
passage of time, or both), do not conflict with, or constitute a
breach of, or a default under, or result in the creation or
imposition of any prohibited lien, charge or encumbrance whatsoever
upon any of the property or assets of the
3
Company under the terms of any material
document, instrument or commitment to which the Company is a party
or by which the Company or any of its property is bound.
(d)
No consent, approval or authorization of, or the filing,
registration or qualification with, any governmental authority on
the part of the Company is required in connection with the
execution, delivery and performance by the Company of the Company
Loan Documents or the offer, issue, sale or delivery by the
Authority of the Bonds other than those already
obtained.
(e)
Except as disclosed in the Underwriting Agreement, the Company has
not been served with and, to the knowledge of the Company there is
no action, suit, proceeding, inquiry or investigation by or before
any court, governmental agency or public board or body pending or
threatened against the Company which (i) seeks to prohibit,
restrain or enjoin the issuance, sale or delivery of the Bonds or
the loaning of the proceeds of the Bonds to the Company or the
execution and delivery of the Company Loan Documents, (ii)
questions the validity or enforceability of the Company Loan
Documents, (iii) questions the power or authority of the Company to
carry out the transactions contemplated by, or to perform its
obligations under the Company Loan Documents or the powers of the
Company to own, acquire, equip or operate the Project, or (iv)
which would reasonably be expected to materially impair its right
to carry on business substantially as now conducted or as now
contemplated to be conducted, or would materially adversely affect
its financial condition.
(f)
The Company is not in default under any document, instrument or
commitment to which the Company is a party or to which it or any of
its property is subject which default would reasonably be expected
to affect the ability of the Company to carry out its obligations
under the Company Loan Documents.
(g)
Any certificate signed by the Company or an Authorized
Representative of the Company and delivered pursuant to the Company
Loan Documents or the Indenture shall be deemed a representation
and warranty by the Company to the Authority and the Trustee as to
the statements made therein.
(h)
The information contained in the Official Statement pertaining to
the Company, specifically including the information under the
heading “THE PROJECT AND THE APPLICATION OF BOND
PROCEEDS” and in Appendix A, does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(i)
The Cost of the Project is as set forth in the Company’s Tax
Agreement dated the Date of Issuance and has been determined in
accordance with sound engineering/construction and accounting
principles. All the information and representations in the
Company’s Tax Agreement are true and correct as of the date
thereof.
(j)
The Project consists and will consist of those facilities described
in Exhibit A and the Company shall not make any changes to the
Project or to the operation thereof which would adversely affect
the qualification of the Project under the Act or impair
the
4
exemption from federal income taxation of the
interest on the Bonds. In particular, the Company shall
comply with all requirements set forth in the Company’s Tax
Agreement. The Company is fully familiar with the physical
condition of the Project and is not relying on any representation
of any kind by the Authority as to the nature or the condition
thereof.
(k)
The Company or a “related party” as defined in Treasury
Regulations Section 1.150-1(b) (a “Related Party”) has
or will acquire title to the Project sufficient to carry out the
purposes of this Agreement.
(l)
All certificates, approvals, permits and authorizations with
respect to the construction of the Project of applicable local
governmental agencies, the State and the federal government have
been obtained, or if not yet obtained, are expected to be obtained
in due course.
(m)
No event has occurred and no condition exists which would
constitute an Event of Default (as defined in the Indenture) or
Loan Default Event (as defined herein) or which, with the passing
of time or with the giving of notice or both would become such an
Event of Default or Loan Default Event.
ARTICLE III
ISSUANCE OF THE BONDS;
APPLICATION OF PROCEEDS
Section
3.1
Agreement to Issue Bonds; Application of Bond Proceeds
. (a) To provide funds
to finance costs of the Project, the Authority agrees that it will
issue under the Indenture, sell and cause to be delivered to the
purchasers thereof, the Bonds. The Authority will thereupon
apply the proceeds received from the sale of the Bonds as provided
in the Indenture.
(b)
The Company agrees that it will, or will cause a Related Party to,
acquire, construct and install, or complete the acquisition,
construction and installation of, the Project, substantially in
accordance with the description of the Project prepared by the
Company and submitted to the Authority, including any and all
supplements, amendments and additions or deletions thereto or
therefrom, it being understood that the approval of the Authority
shall not be required for changes in such description which do not
substantially alter the purpose and description of the Project as
set forth in Exhibit A hereto. The Company further agrees to
proceed with due diligence to complete the Project within three
years from the date hereof. The Company shall not make any
changes to the Project or to the operation thereof which would
affect the qualification of the Project as an “eligible
project” and in particular an “industrial
enterprise” under the Act or impair the exemption from
federal income taxation of the interest on the Bonds. In
particular, the Company agrees to comply with all requirements set
forth in the Tax Agreement. Contracts for carrying out the
Project and purchases in connection therewith shall be made by the
Company in its own name or in the name of a Related
Party.
(c)
In the event that the Company desires to alter or change the
Project, and such alteration or change substantially alters the
purpose and description of the Project as described in
Exhibit A hereto, the Authority may consent (which consent
shall not be unreasonably withheld) to such changes in its
discretion and, if it shall so consent, will instruct the Trustee
to consent to
5
such amendment or supplement to Exhibit A as
shall be required to reflect such alteration or change to the
Project upon receipt of:
(i)
a certificate of the Authorized Representative of the Company
describing in detail the proposed changes which the Authority
determines will not have the effect of disqualifying the Project as
facilities that may be financed pursuant to the Act;
(ii)
a copy of the proposed form of amended or supplemented Exhibit A
hereto; and
(iii)
an Approving Opinion relating to such proposed changes.
Section
3.2
Disbursements from the Project Fund; Disbursements from the Costs
of Issuance Fund .
(a) The Company will authorize and direct the Trustee, upon
compliance with Section 3.3 of the Indenture, to disburse the
moneys in the Project Fund only for the following purposes (and not
for Costs of Issuance), subject to the provisions of
Section 3.3 hereof:
(i)
Payment to the Company of such amounts, if any, as shall be
necessary to reimburse the Company in full for all advances and
payments made by it, prior to or after the delivery of the Bonds,
in connection with the acquisition, construction and installation
of the Project.
(ii)
Payment to any vendors, suppliers or contractors to acquire,
construct and install the Project, as provided in the plans,
specifications and work orders therefor; and payment of the
miscellaneous expenses incidental thereto.
(iii)
Payment of the fees, if any, of architects, engineers, legal
counsel and supervisors expended in connection with the
acquisition, construction and installation of the
Project.
(iv)
Payment of taxes including property taxes, assessments and other
charges, if any, that may become payable during the construction
period with respect to the Project, or reimbursement thereof, if
paid by the Company.
(v)
Payment of any other Costs of the Project permitted by the Tax
Agreement (but not including any Costs of Issuance).
Each of the payments referred to in
this Section 3.2(a) shall be made upon receipt by the Trustee
of a written requisition in the form prescribed by Section 3.3
of the Indenture, signed by the Authorized Representative of the
Company.
(b)
The Company will authorize and direct the Trustee, upon compliance
with Section 3.4 of the Indenture, to disburse the moneys in
the Costs of Issuance Fund to or on behalf of the Company only for
Costs of Issuance. Each of the payments referred to in this
Section 3.2(b) shall be made upon receipt by the Trustee of a
written requisition in the form prescribed by Section 3.4 of
the Indenture, signed by the Authorized Representative of the
Company.
6
(c)
All disbursements from the Project Fund and the Costs of Issuance
Fund must comply with the requirements of the Tax
Agreement.
Section
3.3
Establishment of Completion Date; Obligation of Company to
Complete . As soon
as practicable after the construction of the Project is completed,
the Authorized Representative of the Company, on behalf of the
Company, shall evidence the Completion Date by providing a
certificate to the Trustee and the Authority (if so requested by
the Authority) stating that the construction of the Project has
been completed substantially in accordance with the plans,
specifications and work orders therefor, and all labor, services,
materials and supplies used in the construction have been paid or
provided for. Notwithstanding the foregoing, such certificate
may state that it is given without prejudice to any rights of the
Company against third parties for any claims or for the payment of
any amount not then due and payable which exists at the date of
such certificate or which may subsequently exist.
All moneys remaining in the Project
Fund after the Completion Date (other than moneys relating to
provisional payments) and after payment or provision for payment of
all other Costs of the Project have been provided for shall be
transferred to the Surplus Account in accordance with Section 3.3
of the Indenture and applied as provided therein.
In the event the moneys in the
Project Fund available for payment of the Costs of the Project are
or will be insufficient to pay the costs of acquisition,
construction and installation of the Project as contemplated in
this Agreement, the Company agrees to pay directly, or to deposit
in the Project Fund moneys sufficient to pay, any costs of
completing the acquisition, construction and installation of the
Project in excess of the moneys available for such purpose in the
Project Fund. The Authority makes no express or implied
warranty that the moneys deposited in the Project Fund and
available for payment of the Costs of the Project, under the
provisions of this Agreement, will be sufficient to pay all the
amounts which may be incurred for such Costs of the Project.
The Company agrees that if, after exhaustion of the moneys in the
Project Fund, the Company should pay, or deposit moneys in the
Project Fund for the payment of, any portion of the Costs of the
Project pursuant to the provisions of this Section, it shall not be
entitled to any reimbursement therefor from the Authority, from the
Trustee or from the holders of any of the Bonds, nor shall it be
entitled to any diminution of the amounts payable under Section
4.2.
Section
3.4
Investment of Moneys in Funds . Any moneys in any fund or account held
by the Trustee shall, at the written request of the Authorized
Representative of the Company, be invested or reinvested by the
Trustee as provided in the Indenture. Such investments shall
be held by the Trustee and shall be deemed at all times a part of
the fund or account from which such investments were made, and the
interest accruing thereon, and any profit or loss realized
therefrom, shall be credited or charged to such fund or
account. The Company acknowledges that to the extent
regulations of the Comptroller of the Currency or other applicable
regulatory entity grant the Company the right to receive brokerage
confirmations of security transactions from the Trustee as they
occur, the Company specifically waives receipt of such
confirmations to the extent permitted by law.
Section
3.5
Limitation of Authority’s Liability . Anything contained in this Agreement to
the contrary notwithstanding, under no circumstances shall the
Authority be
7
obligated directly or indirectly to pay Costs of
the Project, principal of or premium, if any, and interest on the
Bonds, or expenses of operation, maintenance and upkeep of the
Project except from Bond proceeds or from funds received under this
Agreement and the Indenture, exclusive of funds received by the
Authority for its own use. The Authority’s obligations
under the Indenture, this Agreement and the Bonds shall not
constitute a debt or liability of or a pledge of the faith and
credit of the Authority, the State, any political subdivisions
thereof, or any municipality therein. Nothing herein, in the
Indenture or in the Bonds, shall directly, indirectly or
contingently obligate the Authority, the State any political
subdivision thereof or any municipality to levy or pledge any form
of taxation whatsoever or make any appropriation for the payment of
the Bonds.
ARTICLE IV
LOAN OF PROCEEDS; REPAYMENT
PROVISION
Section
4.1
Loan of Bond Proceeds; Issuance of Bonds . The Authority covenants and agrees, upon
the terms and conditions in this Agreement, to make a loan to the
Company from the proceeds of the Bonds for the purpose of financing
the Costs of the Project and the Costs of Issuance. The
Authority further covenants and agrees that it shall take all
actions within its authority to keep this Agreement in effect in
accordance with its terms. Pursuant to said covenants and
agreements, the Authority will issue the Bonds upon the terms and
conditions contained in this Agreement and the Indenture and will
cause the Bond proceeds to be applied as provided in
Article III of the Indenture.
Section
4.2
Loan Payments and Payment of Other Amounts . (a) On or before 12:00 noon
New York City time on each Bond Payment Date (as hereinafter
defined), until the principal of, premium, if any, and interest on,
the Bonds shall have been fully paid or provision for such payment
shall have been made as provided in the Indenture, the Company
covenants and agrees to pay to the Trustee as a repayment on the
loan made to the Company from Bond proceeds pursuant to
Section 4.1 hereof, a sum equal to the amount payable on such
Bond Payment Date as principal of, and premium, if any, and
interest on, the Bonds as provided in the Indenture. Such
Loan Payments shall be made in federal funds or other funds
immediately available at the Corporate Trust Office of the
Trustee. The term “Bond Payment Date” as used in
this Section shall mean any date upon which any such amounts
payable with respect to the Bonds shall become due, whether upon
redemption, acceleration, maturity or otherwise.
Each payment made pursuant to this
Section 4.2(a) shall at all times be sufficient to pay the
total amount of interest and principal (whether at maturity or upon
redemption or acceleration) and premium, if any, becoming due and
payable on the Bonds on each Bond Payment Date; provided that any
amount held by the Trustee in the Bond Fund on any due date for a
Loan Payment hereunder shall be credited against the Loan Payment
due on such date, to the extent available for such purpose; and
provided further that, subject to the provisions of this paragraph,
if at any time the amounts held by the Trustee in the Bond
Fund are sufficient to pay all of the principal of and
interest and premium, if any, on the Bonds as such payments become
due, the Company shall be relieved of any obligation to make any
further payments under the provisions of this Section.
Notwithstanding the foregoing, if on any date the amount held by
the Trustee in the Bond Fund is insufficient to make any required
payments of principal of (whether
8
at maturity or upon redemption or acceleration)
and interest and premium, if any, on, the Bonds as such payments
become due, the Company shall forthwith pay such deficiency as a
Loan Payment hereunder.
The obligation of the Company to
make any payment required by this Section 4.2(a) shall be
deemed to have been satisfied to the extent of any corresponding
payment made by a Credit Provider to the Trustee pursuant to a
Letter of Credit then in effect with respect to the
Bonds.
(b)
The Company further covenants that it will make any payments
required to be made pursuant to Sections 2.4, 4.6 and 4.8 of
the Indenture at the applicable Purchase Price thereof by
2:45 p.m. New York City time in federal or other immediately
available funds; provided however the obligation to make such
payments shall have been deemed satisfied to the extent that such
Purchase Price shall have been paid from remarketing proceeds or
from a draw under a Letter of Credit pursuant to
Section 4.7(D) of the Indenture.
(c)
The Company also agrees to pay (i) the annual fee of the
Trustee and the Tender Agent, if any, for their ordinary services
rendered as trustee or tender agent, respectively, and their
ordinary expenses incurred under the Indenture, as and when the
same become due, (ii) the reasonable fees, charges and
expenses (including reasonable legal fees and expenses) of the
Trustee, as bond registrar and paying agent, the reasonable fees of
any other paying agent on the Bonds as provided in the Indenture,
and (iii) the reasonable fees, charges and expenses of the
Trustee for the necessary extraordinary services rendered by it and
extraordinary expenses incurred by it under the Indenture, as and
when the same become due. The Trustee’s compensation
shall not be limited by any provision of law regarding the
compensation of a Trustee of an express trust.
(d)
Except to the extent paid or reimbursed from Bond proceeds, the
Company covenants and agrees, without notice from the Authority, to
pay when due the Authority’s Service Charge and to prepay or
reimburse the Authority within thirty days after notice for all
expenses (including reasonable attorney’s fees) incurred by
the Authority in connection with the issuance and carrying of the
Bonds and all expenses reasonably incurred or advances reasonably
made in the exercise of the Authority’s rights or the
performance of its obligations under this Agreement, the Bonds or
the Indenture. Any fees, expenses, reimbursements or other
charges which the Authority may be entitled to receive from the
Company hereunder or thereunder, if not paid when due, shall bear a
late charge equal to 5% of the amount overdue, and if not paid
within sixty (60) days, shall bear interest at twelve percent (12%)
per annum.
“Authority’s Service
Charge” means payments to the Authority for its own use
consisting of $77,500 (being $80,000 less a credit for $2,500 paid
at the time of initial approval of the Project), payable on the
date of original issuance of the Bonds.
(e)
The Company also agrees to pay the reasonable fees, charges and
expenses of the Remarketing Agent. Such payments shall be
made directly to the Remarketing Agent. The Authority shall
have no obligation whatsoever with respect to the payment of fees,
charges and expenses of the Remarketing Agent.
9
(f)
The Company agrees to pay any amounts required to be deposited in
the Rebate Fund to comply with the provisions of the Tax Agreement
and to pay the fees, charges and expenses of any rebate
analyst.
Section
4.3
Unconditional Obligation . The obligations of the Company to make
the Loan Payments and the other payments required by
Section 4.2 hereof and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional and shall be binding and enforceable in all
circumstances whatsoever, irrespective of any defense or any rights
of set-off, recoupment or counterclaim it might otherwise have
against the Authority, and during the term of this Agreement, the
Company shall pay all payments required to be made on account of
this Agreement (which payments shall be net of any other
obligations of the Company) as prescribed in Section 4.2 and all
other payments required hereunder, free of any deductions and
without abatement, diminution or set-off. The Company shall
be obligated to make the payments whether or not the Project has
come into existence or become functional and whether or not the
Project has ceased to exist or to be functional to any extent and
from any cause whatsoever. The Company shall be obligated to
make such payments regardless of whether the Company is in
possession or is entitled to be in possession of the Project or any
part thereof. Until such time as the principal of, premium,
if any, and interest on, the Bonds shall have been fully paid, or
provision for the payment thereof shall have been made as required
by the Indenture, the Company (i) will not suspend or
discontinue any payments provided for in Section 4.2;
(ii) will perform and observe all of its other covenants
contained in this Agreement; and (iii) except as provided in
Article VIII hereof, will not terminate this Agreement for any
cause, including, without limitation, the occurrence of any act or
circumstances that may constitute failure of consideration,
destruction of or damage to all or a portion of those facilities or
equipment comprising the Project, commercial frustration of
purpose, any change in the tax or other laws of the United States
of America or of the State or any political subdivision of either
of these, or any failure of the Authority or the Trustee to perform
and observe any covenant, whether express or implied, or any duty,
liability or obligation arising out of or connected with this
Agreement or the Indenture, except to the extent permitted by this
Agreement.
Section
4.4
Assignment of Authority’s Rights . As security for the payment of the
Bonds, the Authority will under the Indenture assign to the Trustee
the Authority’s rights under this Agreement and the Note,
including the right to receive Loan Payments hereunder (except the
right of the Authority to receive certain payments, if any, with
respect to fees, expenses and indemnification, or to enforce its
rights under Sections 4.2(d), 7.3, 9.2 and 9.3 and its rights
of indemnification and consent). The Authority hereby directs
the Company to make the Loan Payments required hereunder directly
to the Trustee for deposit as contemplated by the Indenture.
The Authority hereby directs the Company to make the Purchase Price
Payments required hereunder directly to the Trustee or the Tender
Agent as contemplated by the Indenture. The Company hereby
consents to such assignment and agrees to make payments directly to
the Trustee or the Tender Agent, as the case may be, without
defense or set-off by reason of any dispute between the Company and
the Authority or the Trustee.
Section
4.5
Amounts Remaining in Funds . It is agreed by the parties hereto that
after payment in full of (i) the Bonds, or after provision for such
payment shall have been made as provided in the Indenture, (ii) the
fees, charges and expenses of the Authority and the Trustee and
paying agents in acc
