Exhibit 10.1.2
BOND PURCHASE AGREEMENT
County of Arapahoe, Colorado
$6,500,000
Adjustable Rate Demand
Industrial Development Revenue Bonds, Series 2001
(PECO II, Inc. Project)
consisting of
$2,000,000 Series 2001A Bonds and $4,500,000 Series 2001B Bonds
Dated
August 8, 2001
THIS BOND PURCHASE AGREEMENT, dated August 8, 2001 by and among the COUNTY
OF ARAPAHOE, COLORADO, a county and political subdivision duly organized and
existing under the laws of the State of Colorado (the "Issuer"), PECO II, INC.,
an Ohio corporation (the "Borrower"), THE HUNTINGTON NATIONAL BANK, a national
banking association (the "Letter of Credit Bank") and HUNTINGTON CAPITAL CORP.,
as Underwriter (the "Underwriter").
1. Background.
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(a) Pursuant to the request of the Borrower, the Issuer has agreed to
finance costs of the acquisition, construction, renovation, equipping and
installation of improvements to a facility for the manufacture of communications
powers systems, power distribution equipment and systems integration equipment
and services (the "Project"), through the issuance and sale of $6,500,000
aggregate principal amount of its Adjustable Rate Demand Industrial Development
Revenue Bonds, Series 2001 (PECO II, Inc. Project) (the "Series 2001 Bonds"),
consisting of $2,000,000 Series 2001A Bonds (the "Series 2001A Bonds") and
$4,500,000 Series 2001B Bonds (the "Series 2001B Bonds").
(b) The Series 2001 Bonds will be issued pursuant to a resolution (the
"Resolution") adopted on July 31, 2001, by the Board of County Commissioners of
the Issuer, and will be secured under a Trust Indenture (the "Indenture"), dated
as of August 1, 2001, between the Issuer and The Huntington National Bank, as
trustee (the "Trustee") for the holders of the Series 2001 Bonds. The Series
2001 Bonds will be payable from the Revenues, as defined in the Indenture,
including the Project Notes (the "Notes"), as defined in a Loan Agreement (the
"Agreement"), dated as of August 1, 2001, between the Issuer and the Borrower,
pursuant to which the Issuer will make the proceeds of the Series 2001 Bonds
available to the Borrower for the purposes therein described. The Series 2001
Bonds will also be secured by an assignment pursuant to the Indenture of certain
of the Issuer's rights under the Agreement. The principal of and up to 45 days'
interest on, and certain purchase price payments relating to, the Series 2001
Bonds will also be secured by irrevocable Letters of Credit (the "Letters of
Credit"), each relating to a separate series of the Series 2001 Bonds, dated the
date of initial delivery of the Series 2001 Bonds, issued by the Letter of
Credit Bank in favor of the Trustee. Pursuant to a Reimbursement Agreement (the
"Letter of Credit Agreement") dated as of August 1, 2001 between the Borrower
and the Letter of Credit Bank, the Borrower will agree to reimburse the Letter
of Credit Bank for amounts drawn on the Letters of Credit.
The Borrower's obligations under the Letter of Credit Agreement will be
secured by a Security Agreement (Equipment, Fixtures, Inventory, and
Receivables) and a Deed of Trust, Assignment of Rents, and Security Agreement,
each dated as of August 1, 2001 (collectively, the "Security Documents") between
the Borrower and the Bank. The Borrower has executed and delivered to the Letter
of Credit Bank financing statements on Form UCC-1's (the "Financing
Statements").
Pursuant to the Indenture, Bondholders initially will have certain options
to tender Series 2001 Bonds for purchase, which tendered Series 2001 Bonds will
be purchased with funds drawn on the Letters of Credit, subject to subsequent
remarketing as provided in the Indenture.
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(c) It is intended that the Project will conform with the provisions of
the County and Municipality Development Revenue Bond Act, Section 29-3-101 et
seq., Colorado Revised Statutes (the "Act") and that the proceeds of the Series
2001 Bonds will be expended so that the interest on the Series 2001A Bonds and,
from and after a Tax Exempt Conversion Date, as defined in the Indenture, the
interest on the converted Series 2001B Bonds (the "Segregated Series 2001B
Bonds"), will be excludible from gross income for Federal income tax purposes,
and that the Series 2001 Bonds may be purchased by the Underwriter without
registration of any security under the Securities Act of 1933 (the "Securities
Act") or qualification of any indenture under the Trust Indenture Act of 1939
(the "Trust Indenture Act"). In order that interest on the Series 2001A Bonds
shall be and remain excludible from gross income for federal income tax purposes
from and after the Closing, the Issuer, the Trustee and the Borrower will enter
into a Tax Regulatory Agreement for the Series 2001A Bonds (the "Tax Regulatory
Agreement"), dated as of August 1, 2001.
(d) In order to induce the Issuer and the Underwriter to enter into this
Bond Purchase Agreement, to induce the Issuer to issue and deliver the Series
2001 Bonds, and to induce the Underwriter to purchase the Series 2001 Bonds, the
Borrower and the Letter of Credit Bank have joined in this Bond Purchase
Agreement.
(e) Subject to the provisions of the Agreement and the Indenture, the
proceeds of the sale of the Series 2001 Bonds are to be made available to the
Borrower to provide a portion of the funds necessary to pay the cost of the
acquisition, construction, renovation, equipping and installation of the Project
by the Borrower, and to pay certain expenses related to the issuance of the
Series 2001 Bonds, including, but not limited to, the costs of preparing and
reproducing or printing the Indenture, the Agreement, the Tax Regulatory
Agreement, the Security Documents, the Letters of Credit, the Letter of Credit
Agreement, the Series 2001 Bonds, the Resolution and any other resolutions of
the Board of County Commissioners of the Issuer, the Offering Memorandum
describing the Series 2001 Bonds (the "Offering Memorandum"), the expenses
incurred in connection with the qualification of the Series 2001 Bonds under
state securities laws, administrative fees, Underwriter's fees, the fees and
disbursements of Bond Counsel and the respective counsel for the Issuer, the
Trustee, the Letter of Credit Bank, the Underwriter and the Borrower, and other
expenses for which payment or reimbursement is permitted under the provisions of
the Agreement, including without limitation the Trustee's acceptance fee, fees
for obtaining CUSIP numbers on the Series 2001 Bonds, and fees payable in
respect of the Series 2001 Bonds to the Municipal Securities Rulemaking Board.
2. Purchase, Sale and Closing. Subject to the terms and conditions and in
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reliance upon the representations, warranties and agreements set forth herein,
the Underwriter hereby agrees to purchase all (but not less than all) of the
Series 2001 Bonds as contemplated herein. The purchase price for the Series
2001 Bonds shall be $6,500,000, representing the principal of such Series 2001
Bonds, there being no accrued interest thereon. The Series 2001 Bonds shall be
initially issued in minimum denominations of $250,000. The closing for the
delivery of and payment for the Series 2001 Bonds shall take place at the
offices of ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Columbus, Ohio on August 8, 2001, or at
such other date, place, or time as may be designated by the Underwriter, with
the approval of the Borrower (the "Closing"). The Underwriter will accept
delivery of the Series 2001 Bonds and shall arrange for the purchase
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price of the Series 2001 Bonds to be paid as set forth herein by wire transfer
in immediately available funds to an account specified by the Trustee for the
account of the Borrower. As compensation for its services as Underwriter, the
Borrower shall pay a fee to the Underwriter equal to $58,500, which shall be
paid upon Closing.
3. Issuer's Representations and Warranties. The Issuer makes the
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following representations and warranties:
(a) The Issuer is a county and political subdivision of the State of
Colorado, authorized by the provisions of the Act, among other things, (i) to
issue revenue bonds, such as the Series 2001 Bonds, and to make the proceeds of
such Series 2001 Bonds available to persons such as the Borrower for the
purposes described in the Agreement, payable from the Note Payments from the
Borrower and secured by a pledge of said Note Payments, and (ii) to secure such
Series 2001 Bonds in the manner contemplated by the Indenture.
(b) The Issuer has full legal right, power and authority (i) to adopt the
Resolution, (ii) to enter into this Bond Purchase Agreement, the Indenture, the
Tax Regulatory Agreement, the Remarketing Agreement and the Agreement, (iii) to
issue, sell and deliver the Series 2001 Bonds to the Underwriter as provided
herein, and (iv) to carry out and consummate all other transactions contemplated
by each of the aforesaid documents, and the Issuer has complied with all
provisions of applicable law, including the Act, in all matters relating to such
transactions.
(c) The Issuer has duly authorized (i) the issuance and sale of the Series
2001 Bonds upon the terms set forth herein and in the Indenture, (ii) the
execution, delivery and due performance of this Bond Purchase Agreement, the
Series 2001 Bonds, the Indenture, the Tax Regulatory Agreement, the Remarketing
Agreement and the Agreement, and (iii) the taking of any and all such action as
may be required on the part of the Issuer to carry out, give effect to and
consummate the transactions contemplated by such instruments. All consents or
approvals, if any, necessary to be obtained by the Issuer in connection with the
foregoing have been received, and the consents or approvals so received, if any,
are still in full force and effect.
(d) The Resolution has been duly adopted by the Issuer, is in full force
and effect and constitutes the legal, valid and binding act of the Issuer. This
Bond Purchase Agreement constitutes, and the Indenture, the Tax Regulatory
Agreement, the Remarketing Agreement and the Agreement, when executed and
delivered, will constitute legal, valid and binding obligations of the Issuer in
accordance with their respective terms, except that enforceability may be
limited by laws relating to bankruptcy, reorganization or other similar laws
affecting the rights of creditors, by the exercise of judicial discretion in
accordance with general principles of equity, and by matters of public policy.
(e) When duly authenticated by the Trustee and delivered to and paid for
by the Underwriter at the Closing in accordance with the provisions of this Bond
Purchase Agreement, the Series 2001 Bonds will have been duly authorized,
executed, issued and delivered and will constitute legal, valid and binding
special, limited obligations of the Issuer in conformity with the laws of the
State of Colorado, including the Act, will be entitled to the benefit and
security of the Agreement and the Indenture, and will be enforceable in
accordance with their terms, except
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that enforceability may be limited by laws relating to bankruptcy,
reorganization or other similar laws affecting the rights of creditors, by the
exercise of judicial discretion in accordance with general principles of equity,
and by matters of public policy.
(f) Neither the adoption of the Resolution, the execution and delivery of
this Bond Purchase Agreement, the Series 2001 Bonds, the Indenture, the Tax
Regulatory Agreement, the Remarketing Agreement or the Agreement, nor the
consummation of the transactions contemplated therein or the compliance with the
provisions thereof, will conflict with, or constitute on the part of the Issuer
a violation of, or a breach of or default under, any statute, indenture,
mortgage, commitment, note or other agreement or instrument to which the Issuer
is a party or by which it is bound, or under any provision of the Colorado
Constitution or under any existing law, rule, regulation, resolution, charter,
judgment, order or decree to which the Issuer is subject.
(g) Other than the Indenture and the Agreement, the Issuer has not entered
into any contract or arrangement of any kind which might give rise to any lien
or encumbrance on the Project or the Revenues.
(h) Except as disclosed to the Letter of Credit Bank and the Underwriter,
to the best knowledge of the Issuer, there is no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public
board or body, pending or threatened against the Issuer, which in any way
questions the powers of the Issuer referred to in paragraph (a) above, or the
validity of any proceedings taken by the Issuer in connection with the issuance
of the Series 2001 Bonds, or wherein an unfavorable decision, ruling or finding
would materially adversely affect the transactions contemplated by, or the
validity or enforceability of, the Resolution, the Indenture, the Agreement, the
Series 2001 Bonds, the Tax Regulatory Agreement, the Remarketing Agreement or
this Bond Purchase Agreement.
(i) Any certificate relating to the Series 2001 Bonds signed by any
official of the Issuer and delivered to the Underwriter at or before the Closing
shall be deemed a representation and warranty by the Issuer to the Underwriter
as to the truth of the statements therein contained.
It is understood and agreed that the representations, warranties,
covenants, obligations and agreements of the Issuer contained in this Section 3
and elsewhere in this Bond Purchase Agreement and in the certificate
contemplated by Section 9(a)(ii) of this Bond Purchase Agreement shall not
create any general obligation or liability of the Issuer. Any obligation or
liability of the Issuer hereunder is payable solely out of amounts paid to the
Issuer under the Agreement, as well as Bond Proceeds, the temporary investment
thereof and payments made pursuant to the Letters of Credit. No present or
future member, officer, agent or employee of the Issuer or its Board of County
Commissioners in his or her official capacity or otherwise shall be liable
personally on the Series 2001 Bonds, or as such, be subject to any personal
liability or accountability by reason of the issuance thereof, or by of the
representations, warranties, covenants and obligations contained in this Bond
Purchase Agreement, the Indenture, the Agreement, the Remarketing Agreement or
the Tax Regulatory Agreement. It is further understood and agreed that the
Issuer makes no representations or warranties as to (i) the financial position
or operating condition of the Borrower or the Letter of Credit Bank, or (ii) any
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statements (financial or otherwise), information, representations, documents or
certifications provided or to be provided by the Borrower, the Letter of Credit
Bank or the Underwriter in connection with the offer or sale of the Series 2001
Bonds or (iii) the correctness, completeness or accuracy of the Offering
Memorandum (except for the statements and information related to it contained
under the caption, "The Issuer").
4. Borrower's Representations and Warranties. The Borrower makes the
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following representations and warranties:
(a) The Borrower is an Ohio corporation, duly organized and validly
existing and in good standing under the laws of the State of Ohio, and
authorized to do business in the State of Colorado, with full power to own the
Borrower's properties and conduct the Borrower's business. The Borrower has
full legal right, power and authority to execute and deliver this Bond Purchase
Agreement, the Agreement, the Notes, the Security Documents, the Financing
Statements, the Remarketing Agreement, the Tax Regulatory Agreement and the
Letter of Credit Agreement, to provide for the operation and management of the
Project, and to take any and all such action as may be required on the
Borrower's part to carry out, give effect to and consummate the transactions
contemplated by this Bond Purchase Agreement, the Agreement, the Security
Documents, the Financing Statements, the Remarketing Agreement, the Tax
Regulatory Agreement and the Letter of Credit Agreement.
(b) The Borrower has duly authorized, executed and delivered this Bond
Purchase Agreement, the Agreement, the Notes, the Security Documents, the
Financing Statements, the Remarketing Agreement, the Tax Regulatory Agreement,
and the Letter of Credit Agreement and has taken or will take all such action as
may be required on the part of the Borrower to carry out, give effect to and
consummate the transactions contemplated by each of the aforesaid documents.
This Bond Purchase Agreement constitutes, and the Agreement, the Notes, the
Security Documents, the Financing Statements, the Letter of Credit Agreement,
the Remarketing Agreement and the Tax Regulatory Agreement, when executed and
delivered, will constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms, except that
enforceability may be limited by laws relating to bankruptcy, reorganization or
other similar laws affecting the rights of creditors, by the exercise of
judicial discretion in accordance with general principles of equity, and by
matters of public policy.
(c) Neither the execution and delivery of this Bond Purchase Agreement,
the Agreement, the Notes, the Security Documents, the Financing Statements, the
Letter of Credit Agreement, the Remarketing Agreement or the Tax Regulatory
Agreement, nor the consummation of the transactions contemplated therein or the
compliance with the provisions thereof, will conflict with, or constitute on the
part of the Borrower a violation of, or a breach of or default under the
Borrower's Articles of Incorporation, Code of Regulations, any action or
resolution of its shareholders or Board of Directors, or any committee thereof,
or any statute, indenture, mortgage, commitment, note or other agreement or
instrument to which the Borrower is a party or by which the Borrower is bound,
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Borrower or any of the Borrower's activities or
properties. All consents, approvals, authorizations and orders of governmental
or regulatory authorities which are required for the Borrower's execution and
delivery of,
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consummation of the transactions contemplated by and compliance with the
provisions of this Bond Purchase Agreement, the Agreement, the Security
Documents, the Financing Statements, the Notes, the Letter of Credit Agreement,
the Remarketing Agreement and the Tax Regulatory Agreement have been, or at the
time of execution thereof will have been, obtained except for such as cannot
reasonably be obtained by such time, as disclosed to the Letter of Credit Bank
and the Underwriter.
(d) Except as disclosed to the Letter of Credit Bank and the Underwriter,
there is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, pending or, to the best
knowledge of the Borrower, threatened, against or affecting the Borrower or the
actions taken or contemplated to be taken by the Borrower, nor, to the best
knowledge of the Borrower, is there any basis therefor, wherein an unfavorable
decision, ruling or finding would materially adversely affect the business,
financial condition or operations of the Borrower, or the transactions
contemplated by, or the validity or enforceability of, this Bond Purchase
Agreement, the Tax Regulatory Agreement, the Agreement, the Security Documents,
the Notes, the Financing Statements, the Remarketing Agreement or the Letter of
Credit Agreement, or which would in any way question the tax-exempt status of
the interest on the Series 2001A Bonds from and after the Closing.
(e) No event has occurred and no condition exists which, upon issuance of
the Series 2001 Bonds, would constitute (or with the giving of notice or lapse
of time, or both, would constitute) an Event of Default under the Agreement or
the Letter of Credit Agreement.
(f) The Borrower is not in violation of any provision of, or in default
under, its Articles of Incorporation, Code of Regulations, any action or
resolution of its shareholders or directors, or any committee thereof, or any
statute, indenture, mortgage, commitment, note or other agreement or instrument
to which the Borrower is a party or by which it is bound, or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Borrower or any of the Borrower's activities or properties, other than
violations or defaults the effect of which do not and will not have a material
adverse effect on the Borrower's business, financial condition or operations, or
the transactions contemplated hereby.
(g) The Borrower hereby authorizes the distribution of the Offering
Memorandum. The information contained in the Offering Memorandum is, and as of
the Closing will be, true and correct in all material respects, and the Offering
Memorandum, with respect to such information, does not and will not contain any
untrue or misleading statement of a material fact.
5. Letter of Credit Bank's Representations and Warranties. The Letter of
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Credit Bank makes the following representations and warranties:
(a) The Letter of Credit Bank is a national banking association duly
organized and validly existing in good standing under the laws of the United
States of America. The Letter of Credit Bank has full legal right, power and
authority to execute and deliver this Bond Purchase Agreement, the Letters of
Credit and the Letter of Credit Agreement, and to take any and all such action
as may be required on its part to carry out, give effect to and consummate the
transactions
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contemplated by this Bond Purchase Agreement, the Letters of Credit and the
Letter of Credit Agreement.
(b) The Letter of Credit Bank has duly authorized the execution and
delivery of this Bond Purchase Agreement, the Letters of Credit and the Letter
of Credit Agreement, and the taking of all such action as may be required on the
part of the Letter of Credit Bank to carry out, give effect to and consummate
the transactions contemplated by each of the aforesaid documents. This Bond
Purchase Agreement constitutes, and the Letters of Credit and the Letter of
Credit Agreement, when executed and delivered, will constitute legal, valid and
binding obligations of the Letter of Credit Bank enforceable in accordance with
their respective terms, except that enforceability may be limited by laws
relating to bankruptcy, reorganization or other similar laws affecting the
rights of creditors, and by the exercise of judicial discretion in accordance
with general principles of equity.
(c) Neither the execution and delivery of this Bond Purchase Agreement,
the Letters of Credit or the Letter of Credit Agreement nor the consummation of
the transactions contemplated therein or the compliance with the provisions
thereof, will conflict with, or constitute on the part of the Letter of Credit
Bank a violation of, or a breach of or default under, its Articles of
Association or Bylaws or any statute, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Letter of
Credit Bank. All consents, approvals, authorizations and orders of governmental
or regulatory authorities which are required for the Letter of Credit Bank's
execution and delivery of, consummation of the transactions contemplated by and
compliance with the provisions of this Bond Purchase Agreement, the Letters of
Credit and the Letter of Credit Agreement have been obtained; provided that the
representations and warranties contained in this paragraph (c) shall not be
construed to extend to compliance with or any filings or approvals under the
securities laws of the United States of America or of the State of Colorado or
any other jurisdiction.
(d) There is no action, suit, proceeding, inquiry or investigation, at law
or in equity, before or by any court, public board or body, pending or, to the
best knowledge of the Letter of Credit Bank, threatened, against or affecting
the Letter of Credit Bank, which would materially adversely affect the
transactions contemplated by, or the validity or enforceability of, this Bond
Purchase Agreement, the Letters of Credit or the Letter of Credit Agreement.
(e) The Letter of Credit Bank is not in violation of any provision of, or
in default under, its Articles of Association or Bylaws or any statute, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Letter of Credit Bank, other than violations or defaults
the effect of which do not and will not have a material adverse effect on its
business, financial condition or operations, or the transactions contemplated
hereby.
(f) The information contained in the Offering Memorandum with respect to
the Letter of Credit Bank, the Letters of Credit and the Letter of Credit
Agreement is, and as of the Closing will be, true and correct in all material
respects, and the Offering Memorandum, with respect to such information, does
not and will not contain any untrue or misleading statement of a material fact.
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(g) Any certificate signed by any officer of the Letter of Credit Bank and
delivered to the Underwriter or the Issuer shall be deemed a representation and
warranty by the Letter of Credit Bank to the Underwriter and the Issuer as to
the truth of the statements therein contained.
6. Covenants of the Issuer. The Issuer covenants that it will observe all
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covenants of the Issuer in the Indenture and the Agreement and will not issue or
sell any bonds or obligations other than the Series 2001 Bonds, or any
Additional Bonds, as referred to in the Indenture, the principal of, premium, if
any, and interest on which are payable in whole or in part from the Loan
Payments or Revenues (as defined in the Indenture) derived under the Agreement
or are to be secured by a lien on, or pledge of, the payments under the
Agreement.
7. Covenants of the Borrower. The Borrower covenants as follows:
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(a) The Borrower will apply the proceeds of the Series 2001 Bonds as
provided in and subject to all of the terms and provisions of the Agreement and
will observe all covenants of the Borrower in such instrument.
(b) The Borrower will take such action as may be reasonably requested to
facilitate the timely consummation of the transactions contemplated by this Bond
Purchase Agreement.
(c) The Borrower will notify the Letter of Credit Bank and the Underwriter
of any material adverse change in the business, properties or financial
condition of the Borrower occurring before Closing.
(d) As to the Series 2001A Bonds, from and after Closing, and as to the
Segregated Series 2001B Bonds, from and after a Tax Exempt Conversion Date, the
Borrower will not take any action or permit any action to be taken on the
Borrower's behalf, or cause or permit any circumstance within the Borrower's
control to arise or continue, if such action would adversely affect the
excludability from gross income for Federal income tax purposes of the interest
on such Series 2001 Bonds.
8. Covenants of the Letter of Credit Bank. The Letter of Credit Bank
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covenants as follows:
(a) The Letter of Credit Bank will take such action as may be reasonably
requested to facilitate the timely consummation of the transactions contemplated
by this Bond Purchase Agreement.
(b) The Letter of Credit Bank will notify the Underwriter and the Issuer
of any material adverse change in the business, properties or financial
condition of the Letter of Credit Bank occurring before Closing.
9. Conditions of the Underwriter's Obligations. The obligations of the
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Underwriter hereunder shall be subject to the performance by the Issuer, the
Borrower and the Letter of Credit Bank of their respective obligations and
agreements to be performed hereunder, at or prior to the Closing; to the
accuracy as of the date hereof of the representations and warranties of the
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Issuer, the Borrower and the Letter of Credit Bank contained herein; and to the
accuracy of such representations and warranties as if made on and as of the
Closing.
The obligations of the Underwriter hereunder are subject to the following
further conditions:
(a) On or prior to the Closing, the Underwriter shall have received:
(i) Opinions, dated the Closing, of counsel to the Borrower, to
the effect set forth in Appendix A; of Bond Counsel, to the effect set
forth in Appendices B and C; of counsel to the Letter of Credit Bank
to the effect set forth in Appendix D and of counsel or counsels to
the Issuer in form satisfactory to the Letter of Credit Bank and to
the Underwriter; in each case with such changes as the Underwriter may
approve.
(ii) A certificate, dated the Closing, signed by an official of
the Issuer satisfactory to the Underwriter, to the effect that (A)
each of the representations and warranties of the Issuer set forth in
Section 3 hereof and in the Indenture and the Agreement is true,
accurate and complete on the Closing as if made on and as of the
Closing; and (B) each of the agreements of the Issuer to be complied
with and each of the obligations of the Issuer to be performed
hereunder, under the Indenture and under the Agreement on or prior to
the Closing has been complied with and performed.
(iii) A certificate, dated the Closing, signed by a duly
authorized officer of the Borrower satisfactory to the Underwriter, to
the effect that (A) each of the representations and warranties of the
Borrower set forth in Section 4 hereof and in the Agreement, the
Security Documents and the Letter of Credit Agreement is true,
accurate and complete on the Closing as if made on and as of the
Closing; and (B) each of the agreements of the Borrower to be complied
with and each of the obligations of the Borrower to be performed
hereunder and under the Agreement and the Letter of Credit Agreement
on or prior to the Closing has been complied with and performed.
(iv) A certificate, dated the Closing, signed by a duly
authorized officer of the Letter of Credit Bank satisfactory to the
Underwriter, to the effect that (A) each of the representations and
warranties of the Letter of Credit Bank set forth in Section 5 hereof
is true, accurate and complete on the Closing as if made on and as of
the Closing; and (B) each of the agreements of the Letter of Credit
Bank to be complied with and each of the obligations of the Letter of
Credit Bank to be performed hereunder and under the Letter of Credit
Agreement on or prior to the Closing has been complied with and
performed.
(v) Two executed copies of the Indenture, the Agreement, the
Security Documents, the Tax Regulatory Agreement and the Letter of
Credit Agreement, two certified copies of the Resolution, and copies
of the executed Financing Statements, Letters of Credit and the Notes;
all of the foregoing to conform in all
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material respects to the forms of the drafts thereof delivered to the
Underwriter on or prior to the date hereof, with only such changes
therein as may be approved by the Underwriter and its counsel.
(vi) Such additional certificates (including appropriate "no
litigation" certificates), opinions, instruments or other documents as
the Underwriter may request to evidence the truth, accuracy and
completeness as of the Closing, of the representations and warranties
of the Issuer, the Borrower and the Letter of Credit Bank contained
herein and the due performance and satisfaction by the Issuer, the
Borrower and the Letter of Credit Bank at or prior to such time of all
agreements then to be performed and all conditions then to be
satisfied by each of them, as appropriate, in connection with this
Bond Purchase Agreement, the Indenture, the Agreement, the Notes, the
Security Documents, the Tax Regulatory Agreement, the Remarketing
Agreement, the Letter of Credit Agreement and the Letters of Credit.
(b) Between the date hereof and the Closing, legislation shall not have
been enacted by the Congress or be actively considered for enactment by
Congress, or recommended to the Congress for passage by the President of the
United States, or introduced or favorably reported for passage to either house
of the Congress, and neither a decision, order or decree of a court of competent
jurisdiction, nor an order, ruling, regulation or official statement of or on
behalf of the Securities and Exchange Commission shall have been rendered or
made, with the purpose or effect that the issuance, offering or sale of the
Series 2001 Bonds or any related security or obligations of the general
character of the Series 2001 Bonds or any related security as contemplated
hereby, or the execution and delivery of the Indenture or indentures similar
thereto, is or would be in violation of any provision of, or is or would be
subject to registration or qualification requirements under, the Securities Act
or the Trust Indenture Act.
(c) Between the date hereof and the Closing, there shall not have occurred
any action by the Comptroller of the Currency, the Bank Insurance Fund or any
governmental agency or court which calls into question the validity or
enforceability of the Letters of Credit.
(d) None of the following shall have occurred: (i) additional material
restrictions not in force as of the date hereof shall have been imposed upon
trading in securities generally by any governmental authority or by any national
securities exchange or such trading shall have been suspended; (ii) the New York
Stock Exchange or other national securities exchange, or the National
Association of Securities Dealers, Inc. or other national securities
association, or the Municipal Securities Rulemaking Board or other similar
national self-regulatory rule-making board, or any governmental authority, shall
impose, as to the Series 2001 Bonds or similar obligations, any material
restrictions not now in force, or increase materially those now in force, with
respect to the extension of credit by, or change in the net capital requirements
of, underwriters; (iii) the Treasury Department of the United States or the
Internal Revenue Service shall issue an order, ruling or regulation, in each
such case with the purpose or effect, directly or indirectly, of including the
interest that would be received by the holders of the Series 2001A Bonds or
Segregated Series 2001B Bonds in gross income of such holders for income tax
purposes or subjecting to federal income taxation the proceeds that would be
recovered by the
10
Issuer under the Agreement; (iv) a general banking moratorium shall have been
declared by Federal, New York, Colorado or Ohio authorities; or (v) a war
involving the United States of America, whether or not declared, or any other
national or international calamity or crisis, or a financial crisis, shall have
occurred, the effect of which, in the judgment of the Underwriter, would make it
impracticable to market the Series 2001 Bonds or would materially and adversely
affect the ability of the Underwriter to enforce contracts for the sale of the
Series 2001 Bonds.
(e) All matters relating to this Bond Purchase Agreement, the Series 2001
Bonds, the Resolution, the Indenture, the Agreement, the Notes, the Security
Documents, the Tax Regulatory Agreement, the Remarketing Agreement, the Letters
of Credit, the Letter of Credit Agreement and the consummation of the
transactions contemplated by this Bond Purchase Agreement, shall be reasonably
satisfactory to and subject to the approval of the Underwriter.
If any of the conditions specified in the preceding provisions of this
Section shall have not been fulfilled when and as required by this Bond Purchase
Agreement, this Bond Purchase Agreement and the Underwriter's obligations
hereunder may be terminated by the Underwriter at, or at any time prior to, the
Closing. Any such termination shall be without liability on the Underwriter's
part.
10. No Pecuniary Liability of Issuer. No provision, covenant, or
--------------------------------
agreement contained in this Bond Purchase Agreement, and no obligation herein
imposed upon the Issuer, or the breach thereof, shall constitute an indebtedness
of the Issuer or the State of Colorado or any political subdivision thereof
within the meaning of any Colorado Constitutional provision or statutory
limitation or shall constitute or give rise to a pecuniary liability of the
Issuer or the State of Colorado or any political subdivision thereof or a charge
against its general credit or taxing powers. In making the agreements,
provisions and covenants set forth in this Agreement, the Issuer has not
obligated itself, except to the extent that the Issuer is authorized to act
pursuant to Colorado law and except with respect to the Revenues, as defined in
the Indenture. The Issuer and its Board of County Commissioners and any of their
respective officials, officers, employees, members or agents shall have no
monetary liability arising out of the obligations of the Issuer hereunder or in
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
Revenues or moneys received from the Borrower.
11. Survival of Representations, Warranties, Covenants, Agreements and
------------------------------------------------------------------
Indemnities. All representations, warranties, covenants, agreements and
-----------
indemnities contained in this Bond Purchase Agreement, or contained in the
certificates of members, officials or officers of the Issuer, its Board of
County Commissioners, the Borrower or the Letter of Credit Bank submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation by or on behalf of the Underwriter or any person
controlling the Underwriter, and shall survive delivery of the Series 2001 Bonds
to, and payment therefor by, the Underwriter.
12. Payment of Expenses. All expenses incident to the issuance of the
-------------------
Series 2001 Bonds (including the charges, fees and disbursements described in
Section 1(e) above) will be paid by the Borrower (on the Closing to the extent
statements therefor are then available). If the
11
Series 2001 Bonds are not delivered to the Underwriter (other than because of a
default by the Underwriter) as herein provided, all such expenses, except as
otherwise provided in the Reimbursement Agreement, shall be paid by the
Borrower. The Underwriter shall not be obligated to pay any expenses incurred in
connection with the transactions contemplated by this Bond Purchase Agreement.
13. Parties in Interest. This Bond Purchase Agreement is made solely for
-------------------
the benefit of the Issuer and its officials and officers, and the Underwriter,
the Borrower, the Letter of Credit Bank and their respective successors and
assigns, and no other person, partnership, association or corporation shall
acquire or have any right under or by virtue of this Bond Purchase Agreement.
The term "successors and assigns" shall not include any purchaser of the Series
2001 Bonds from the Underwriter merely by reason of such purchase.
14. Notices. Any notice or other communication to be given to any party
-------
to this Bond Purchase Agreement may be given by delivering the same in writing
at the respective addresses set forth below:
Issuer: County of Arapahoe, Colorado
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, County Attorney
----
Borrower: PECO II, Inc.
▇▇▇▇ ▇▇▇▇ - CFO
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Letter of The Huntington National Bank
Credit Bank: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Underwriter: Huntington Capital Corp. - 9/th/ Floor
Mr. ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
15. Severability. If any provision of this Bond Purchase Agreement shall
------------
be held or deemed to be or shall, in fact, be inoperative, invalid or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions or in all jurisdictions because it conflicts with any provisions
of any Constitution, statute, rule of public policy, or any other reason, such
circumstance shall not have the effect of rendering the provision in question
inoperable or unenforceable in any other case or circumstance, or of rendering
any other provision or provisions of this Bond Purchase Agreement invalid,
inoperative or unenforceable to any extent whatever.
12
16. Applicable Law. This Bond Purchase Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of Colorado, except to the
extent that Colorado conflict of law rules would require the substantive rules
of law of any other jurisdiction to apply.
17. Counterparts. This Bond Purchase Agreement may be executed in several
------------
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
COUNTY OF ARAPAHOE, COLORADO
By:_______________________________
Title:____________________________
PECO II, INC.
By: ___________________________
Title: ________________________
THE HUNTINGTON NATIONAL BANK,
as Letter of Credit Bank
By: ________________________
Title: ________________________
HUNTINGTON CAPITAL CORP.,
as Underwriter
By: ___________________________
Title: ________________________
13
LIST OF APPENDICES
Appendix Item
-------- ----
A Opinion of Counsel to Borrower
B Approving Opinion of Bond Counsel
C Preference Opinion of Bond Counsel
D Opinion of Counsel to Letter of Credit Bank
E Opinion of Counsel to the Issuer
14
APPENDIX A
[Letterhead of Counsel to Borrower]
__________, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Huntington National Bank, as Trustee
Business Service Center
7 Easton Oval - EA4E63
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
The Huntington National Bank,
as Letter of Credit Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Huntington Capital Corp.,
as Underwriter
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
RE: $6,500,000 County of Arapahoe, Colorado Adjustable Rate
Demand Industrial Development Revenue Bonds, Series 2001 (PECO
II, Inc. Project)
Ladies and Gentlemen:
This opinion is being rendered to you pursuant to your respective
requests to us as counsel for PECO II, Inc. (the "Borrower"), pursuant to
Section 9(a)(i) of the Bond Purchase Agreement dated August 8, 2001 (the "Bond
Purchase Agreement"), among County of Arapahoe, Colorado (the "Issuer"), the
Borrower, The Huntington National Bank, a national banking association, as
provider of the letters of credit (the "Bank") and Huntington Capital Corp., as
Underwriter (the "Underwriter"), and pursuant to Section 5.1.1 of the
Reimbursement
1
Agreement dated as of August 1, 2001 (the "Letter of Credit Agreement") between
the Borrower and the Bank, all relating to the issuance and sale by the Issuer
of the above-captioned bonds (the "Series 2001 Bonds"). We have examined
executed copies of the Loan Agreement dated as of August 1, 2001 (the
"Agreement"), between the Issuer and the Borrower relating to the Series 2001
Bonds, the Indenture, the Notes, the Bond Purchase Agreement, the Offering
Memorandum, the Tax Regulatory Agreement, the Security Documents, the Financing
Statements and the Remarketing Agreement, each as defined in the Bond Purchase
Agreement (such documents, other than the Indenture and the Offering Memorandum,
collectively referred to as the "Financing Documents"), relating to the Bonds.
We have also examined the original, photostatic or certified copies of the
Borrower's Articles of Incorporation, Code of Regulations, resolution of its
Board of Directors and such other records of the Borrower and other documents
and materials, and have made such inquiries, as we have deemed relevant and
necessary.
We have assumed the genuineness of all signatures, other than those of
the Borrower, and the authenticity of all documents submitted to me as originals
and as certified, conformed or photostatic copies. In addition, we have relied
as to factual matters, without an independent investigation, on certificates or
other comparable documents of officers of the Borrower and on the
representations and warranties of the Borrower contained in the Agreement, the
Letter of Credit Agreement, the Security Documents and the Bond Purchase
Agreement. We have further assumed that each of the foregoing documents have
been duly authorized, executed and delivered by and on behalf of each party
thereto, other than the Borrower.
Based on the foregoing, we are of the opinion that:
1. The Borrower is an Ohio corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio, duly licensed
to do business as a foreign corporation under the laws of the State of Colorado,
is not in violation of any provision of its Articles of Incorporation, Code of
Regulations, or any resolution of its shareholders, Board of Directors, or any
committee thereof, has full power and authority to conduct the business now
being conducted by the Borrower and proposed to be conducted by the Borrower
with respect to the Project, as defined in the Agreement, and has full power and
authority to execute and deliver and carry out and perform the Borrower's
obligations under the Financing Documents.
2. The Financing Documents have been duly authorized, executed and
delivered by the Borrower and are valid, binding and legally enforceable
obligations of the Borrower in accordance with their respective terms, except as
the enforceability of the same may be subject to bankruptcy, insolvency,
reorganization, moratorium and other laws in effect from time to time affecting
creditors' rights, and to the exercise of judicial discretion in accordance with
general principles of equity. The Borrower has duly taken any and all action
necessary to carry out and give effect to the transactions contemplated to be
performed on the Borrower's part by the Financing Documents.
3. The execution and delivery of the Financing Documents, the
performance by the Borrower of the Borrower's obligations thereunder, and the
present conduct of business by the Borrower do not and will not conflict with,
violate or constitute a default under the Borrower's Articles of Incorporation,
Code of Regulations, or any resolution of its shareholders,
2
Board of Directors, or any committee thereof, or any court or administrative
order, decree or ruling, or any law, statute, ordinance or regulation, or any
agreement, indenture, mortgage, lease, note or other obligation or instrument,
binding upon the Borrower or any of the Borrower's properties or assets, and no
approval or other action by any governmental authority or agency is required in
connection therewith except such approvals and actions as have already been
obtained or taken.
4. Other than as disclosed to the addressees hereto there is no
action, suit, proceeding, inquiry or investigation at law or in equity before or
by any judicial or administrative court, board or agency, pending or threatened
against or affecting the Borrower, or any of the Borrower's properties,
businesses or securities, or any basis for any such action, suit, proceeding,
inquiry or investigation, wherein an unfavorable decision, ruling or finding
would materially and adversely affect the Project or the delivery, validity or
enforceability of the Financing Documents, or the consummation of the
transactions contemplated thereby, or which would have a material and adverse
effect on the business, assets or financial condition of the Borrower.
5. Other than as disclosed to the addressees hereof, the
acquisition, construction, renovation, equipping, installation and operation of
the Project, as contemplated, in the Agreement, does not conflict with or is in
violation of any applicable zoning or other land use law, rule, regulation or
ordinance as in effect on the date hereof.
6. We have no reason to believe that any representation or warranty
made by the Borrower in the Financing Documents, or any certificate delivered by
the Borrower or any of its officers, at the closing of the sale of the Series
2001 Bonds to the Underwriter, is untrue or incorrect in any material respect or
omits to state a material fact necessary to make such representation or warranty
not misleading.
7. To the best of our knowledge, the statements and information
relating to the Borrower and the Project in the Offering Memorandum are accurate
in all material respects and do not contain any untrue statement of material
fact or omit to state any material fact required to be stated therein or
necessary in order to make such statements and information therein not
misleading.
8. The Bank has been, pursuant to the Security Documents and
accompanying financing statements, granted a valid and enforceable first deed of
trust lien on and security interest in the Project, free and clear of all liens
and claims. No financing statement covering the Project or any part thereof is
on file in any public office.
[Reliance or reference to Borrower's Colorado counsel]
Very truly yours,
3
APPENDIX B
FORM OF BOND COUNSEL OPINION
[See Offering Memorandum for Form of Bond Counsel Opinions]
1
APPENDIX C
[Form of Bond Counsel Preference Opinion]
[Closing Date]
The Huntington National Bank, as Trustee
Columbus, Ohio
RE: $6,500,000 County of Arapahoe, Colorado Adjustable Rate Demand
Industrial Development Revenue Bonds, Series 2001 (PECO II, Inc.
Project)
Ladies and Gentlemen:
We have acted as Bond Counsel to County of Arapahoe, Colorado (the
"Issuer") in connection with the issuance of its $6,500,000 Adjustable Rate
Demand Industrial Development Revenue Bonds, Series 2001 (PECO II, Inc.
Project). In connection with the issuance of the Bonds, The Huntington National
Bank (the "Bank") will issue irrevocable Letters of Credit dated August 8, 2001
(the "Letters of Credit") to The Huntington National Bank, as Trustee
("Trustee"), for the benefit of the Bondholders covering the payment of the
principal of and interest on the Bonds.
In rendering this opinion, we have examined executed counterparts of the
Reimbursement Agreement dated as of August 1, 2001, between the Bank and PECO
II, Inc. (the "Borrower"); the Letters of Credit; the Trust Indenture dated as
of August 1, 2001 (the "Indenture") between the Issuer and the Trustee; the Bond
Purchase Agreement (the "Purchase Agreement") dated August 8, 2001, among
Huntington Capital Corp., as Underwriter, the Bank, the Borrower and the Issuer
(collectively the "Financing Documents"); and such other documents as we deemed
necessary for purposes of this opinion.
In rendering this opinion, we have assumed the genuineness of all
signatures, other than the Issuer, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies, which assumptions we have not independently verified.
We have also assumed that the Financing Documents: (i) were duly authorized,
executed and delivered by the parties thereto, other than the Issuer; (ii) are
the legal, valid and binding obligations of the parties thereto, other than the
Issuer; and (iii) have not been modified or amended. As to questions of fact
material to this opinion, we have relied upon the representations and warranties
contained in the Financing Documents, and on certificates of officers or
representatives of the Bank, the Borrower the Issuer and the Trustee. We have
also relied for purposes of this opinion on the opinions of Porter, Wright,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, as counsel to the Bank, and of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ Co., L.P.A., and
1
________________as counsel to the Borrower, of even date herewith issued in
connection with the referenced transaction.
We have considered the foregoing in light of the United States Bankruptcy
Code as presently in effect, 11 U.S.C. (S)101 et seq. (the "Bankruptcy Code"),
-- ---
and the effect of the filing of a petition in bankruptcy by or against the
Borrower. For purposes of this opinion, we have assumed that: (a) no Bondholder
or any subsequent registered owner, transferee or assignee of the Bonds is an
affiliate of the Borrower, (b) any trustee or debtor-in-possession in any
bankruptcy proceeding involving the Borrower could only avoid those preferential
transfers made within the 91-day period immediately prior to the date of the
filing of the petition initiating that bankruptcy proceeding, (c) the terms and
provisions of the Bonds and the Indenture, including without limitation those
provisions of the Indenture requiring the Trustee to draw under the Letters of
Credit and to hold monies received from drawings under the Letters of Credit, or
from the Borrower for the payment of redemption premium on the Bonds, or from
subsequent purchasers of the Bonds upon a remarketing of the Bonds, in
segregated accounts and not commingled with each other or with other monies, and
to hold monies in segregated accounts for specified periods of time, are fully
and timely complied with as currently written, (d) the payment of the purchase
price for the Bonds by the Bondholders, the issuance of the Bonds, the issuance
of the Letters of Credit, the execution and delivery of the other Financing
Documents, and the granting of a mortgage and other security interests by the
Borrower to secure its obligations under the Letters of Credit and the
Reimbursement Agreement were intended to be and, in fact, were contemporaneous,
(e) no Bondholder or any subsequent registered owner, transferee or assignee of
the Bonds is an "insider" of the Borrower or the Issuer, as that term is defined
in (S)101(30) of the Bankruptcy Code, (f) no additional security will be granted
to or for the benefit of the Trustee or the Bondholders to secure the
performance of the Borrower's obligations under the Bonds or the Financing
Documents, and (g) all remarketings of the Bonds will be done in strict
compliance with the terms of the Indenture as currently written.
Based upon the foregoing, we are of the opinion that:
1. Payments of principal and interest on the Bonds made by the Trustee to
the Bondholders from the drawings under the Letters of Credit, will not
constitute voidable preferences under Section 547 of the Bankruptcy Code or
voidable transfers under Section 549 of the Bankruptcy Code in the event a
petition in bankruptcy is filed by or against the Borrower.
2. Payments of the purchase price of Bonds made by the Trustee to the
Bondholders upon a tender or redemption of the Bonds from drawings under the
Letters of Credit or from monies received by the Trustee from the purchaser of
such Bonds in connection with the remarketing of such Bonds, will not constitute
voidable preferences under Section 547 of the Bankruptcy Code or voidable
transfers under Section 549 of the Bankruptcy Code in the event a petition in
bankruptcy is filed by or against the Borrower.
3. Payments of a redemption premium, if any, on the Bonds made by the
Trustee to the Bondholders from Eligible Funds will not constitute voidable
preferences under Section 547 of the Bankruptcy Code or voidable transfers under
Section 549 of the Bankruptcy Code in the event a petition in bankruptcy is
filed by or against the Borrower.
2
Our analysis and opinions are based on currently enacted statutes and
currently reported judicial decisions interpreting Sections 547 and 549 of the
Bankruptcy Code. Changes in the law by the rendition of subsequent judicial
decisions or by statutory changes could change the conclusions of this opinion.
We bring to your attention the fact that our legal opinions are an
expression of judgment and not a guarantee of a result. Additionally, we do not
undertake to advise you of matters which may come to our attention subsequent to
the date hereof which may affect our legal opinions expressed herein.
Very truly yours,
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
3
APPENDIX D
[Letterhead of Counsel to Letter of Credit Bank]
[Date of Issuance]
The Huntington National Bank, Huntington Capital Corp.
as Trustee as Underwriter
Business Service Center ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP County of Arapahoe, Colorado
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: $6,500,000 County of Arapahoe, Colorado Adjustable Rate Demand
Industrial Development Revenue Bonds, Series 2001 (PECO II, Inc.
Project)
Ladies and Gentlemen:
We have acted as counsel for The Huntington National Bank (the "Bank") in
connection with the issuance by the Bank of two irrevocable letters of credit
(the "Letters of Credit") relating to the issuance of the referenced Bonds.
This opinion is being rendered pursuant to Section 9(a)(i) of the Bond
Purchase Agreement (the "Bond Purchase Agreement"), dated August 1, 2001, among
PECO II, Inc. (the "Borrower"), the Bank, County of Arapahoe, Colorado (the
"Issuer") and Huntington Capital Corp., as Underwriter, relating to the issuance
and sale of $6,500,000 County of Arapahoe, Colorado Adjustable Rate Demand
Industrial Development Revenue Bonds, Series 2001 (PECO II, Inc. Project) (the
"Bonds") as of the date hereof. Terms defined in the Bond Purchase Agreement
are used in this opinion with the meanings assigned to them in the Bond Purchase
Agreement.
We have examined or reviewed the following:
A. Executed counterparts of the Letters of Credit, the Letter
of Credit Agreement and the Bond Purchase Agreement.
B. Applicable provisions of the laws of the United States of
America and the State of Ohio.
1
C. Certificates of public officials and of officers of the
Bank, and such other documents and information as we have
considered relevant and necessary to enable us to render
this opinion.
We have assumed the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, the authenticity of the originals of such
latter documents and the accuracy of the statements contained in such
certificates. We have also assumed the due authorization, execution and delivery
of the parties thereto, other than the Bank, of the documents herein referred
to.
To render this opinion, we have relied as to factual matters on the
representations, warranties and other statements made in the foregoing documents
or in connection therewith.
Based on the foregoing, we are of the opinion that:
1. The Bank is a national banking association duly organized and validly
existing under the laws of the United States of America.
2. The Bank has all necessary national banking association power and
authority to (a) issue the Letters of Credit, and (b) execute and deliver, and
perform its obligations under, the Letters of Credit, the Bond Purchase
Agreement and the Letter of Credit Agreement and enter into and carry out the
transactions contemplated on the Bank's part by such documents.
3. The Letters of Credit have been duly issued, executed and delivered by
the Bank, the Bond Purchase Agreement and the Letter of Credit Agreement have
each been duly authorized, executed and delivered by the Bank and the Letters of
Credit, the Bond Purchase Agreement and the Letter of Credit Agreement are
legal, valid and binding obligations of the Bank, enforceable in accordance with
their respective terms, except that the binding effect and the enforceability
thereof are subject to application of insolvency, reorganization, moratorium and
other laws in effect from time to time affecting the rights of creditors
generally, as such laws may be applied in the event of a bankruptcy, insolvency,
reorganization or other similar proceeding of, or moratorium applicable to, the
Bank and to the application of general principles of equity and public policy.
4. The issuance, execution and delivery of, and performance of its
obligations under, the Letters of Credit, the execution and delivery of the Bond
Purchase Agreement and the Letter of Credit Agreement and the performance by the
Bank of the actions required of it by those documents and the consummation of
the transactions contemplated on the Bank's part in those documents, do not
violate any provisions of the Bank's Articles of Association or Bylaws as
amended to date, or, to our knowledge without independent inquiry, do not
violate any indenture, mortgage, deed of trust, guaranty, lease, agreement or
other instrument to which the Bank is a party or by which it or any of its
property or assets is bound, and do not, and will not, to our knowledge without
independent inquiry, conflict with or violate any provisions of any law,
2
administrative rule or regulation or, to our knowledge without independent
inquiry, any judgment, order or decree to which the Bank or any of its property
or assets is subject.
5. To our knowledge without independent inquiry, there is no claim,
action, temporary restraining order, injunction, suit, proceeding, inquiry or
investigation, at law or in equity, or before or by any judicial or
administrative court, governmental agency, public board or body, pending or
threatened against or affecting the Bank (i) contesting the existence or powers
of the Bank or the titles of its respective officers to their respective
offices, or (ii) seeking to prohibit, restrain or enjoin the issuance of the
Letters of Credit, or (iii) challenging the validity or enforceability of the
Letters of Credit, the Bond Purchase Agreement or the Letter of Credit Agreement
or contesting the power and authority of the Bank to execute and deliver or to
consummate the transactions contemplated on the Bank's part in such documents,
or (iv) wherein an unfavorable decision, ruling or finding would in any way
adversely affect the validity or enforceability of the Letters of Credit, the
Bond Purchase Agreement or the Letter of Credit Agreement (or any other
instrument required or contemplated for use in consummating the transactions
contemplated on the Bank's part thereby) or the transactions contemplated by
such documents.
6. No approval, permit, consent, authorization or order of any court or
any governmental or public agency or authority in the State of Ohio or of the
United States of America not already obtained or effected is required with
respect to the Bank in connection with the issuance, execution and delivery by
the Bank of, or the performance by the Bank of its obligations under, the Bond
Purchase Agreement and the Letter of Credit Agreement.
7. We have also examined the portions of the Offering Memorandum dated
August 8, 2001 relating to the issuance of the Bonds pertaining to the Letters
of Credit as described in Parts I and IV therein and nothing has come to our
attention which causes us to believe that such portions of the Offering
Memorandum are not accurate in all material respects or that they contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements made therein, in light of the circumstances under which
they were made, not misleading.
The foregoing opinions are limited to the laws of the State of Ohio and the
Federal laws of the United States of America; provided that, in giving the
opinions in paragraph 3, 4 and 6, above, we have not considered, nor are we
rendering any opinion with respect to, the securities laws of the United States
of America or of any State or other jurisdiction.
This letter is intended for the information solely of the parties to whom
it is addressed and is not to be quoted in whole or part or otherwise referred
to in any document or to be filed with any governmental or other administrative
agency or other person for any purpose without the prior written consent of the
undersigned. We bring to your attention the fact that our legal opinions are an
expression of judgment and not a guaranty of a result.
We have assumed and the opinions expressed herein concern only the effects
of such laws (excluding the principles of conflicts of laws) as are currently in
effect and published decisions of the Ohio and federal courts, notwithstanding
that the provisions of certain of the
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transaction documents contain choice of law provisions for such documents to be
governed and construed by the laws of another state. Our opinion is based on the
assumption that the internal laws of any other state would, in all relevant
respects, be identical to those of the State of Ohio.
Very truly yours,
▇
▇▇▇▇▇▇▇▇ ▇
[Opinion of Counsel to the Issuer]
[Date of Issuance]
County of Arapahoe, Colorado
Littleton, Colorado
▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Columbus, Ohio
The Huntington National Bank, as Trustee
Columbus, Ohio
Re: $6,500,000 County of Arapahoe, Colorado Adjustable Rate Demand
Industrial Development Revenue Bonds, Series 2001 (PECO II, Inc.
Project) consisting of $2,000,000 Series 2001A Bonds and $4,500,000
Series 2001B Bonds
We have acted as counsel to the County of Arapahoe, Colorado (the "Issuer")
in connection with the issue of the bonds described above (the "Bonds") by the
Issuer pursuant to the Loan Agreement dated as of August 1, 2001 (the "Loan
Agreement") between the Issuer and PECO, II, Inc. (the "Company") and the Trust
Indenture dated as of August 1, 2001 (the "Indenture") between the Issuer and
The Huntington National Bank, as Trustee. In connection with the issue of the
Series 2001A Bonds, the Issuer has entered into a Tax Regulatory Agreement dated
as of August 1, 2001 (the "Tax Agreement") with the Company and the Trustee.
The Bonds are being sold pursuant to a Bond Purchase Agreement (the "Bond
Purchase Agreement") among the Issuer, the Company, The Huntington National Bank
as issuer of letters of credit, and Huntington Capital Corp., as underwriter.
The Loan Agreement, Indenture, Tax Agreement and Bond Purchase Agreement are
referred to collectively herein as the "Bond Documents".
As to questions of fact material to our opinion we have relied upon
representations and covenants of the Issuer and the Company contained in the
Bond Documents, the certified proceedings and other certifications of public
officials furnished to us, and certifications by officials of the Company and
others, without undertaking to verify the same by independent investigation.
We express no opinion with respect to compliance by the Company with
applicable legal requirements in connection with the acquisition, renovation,
equipping, leasing or operation of the Project to be financed by the Agreement.
We have made such examination as we have deemed necessary to render this
opinion. Based on the foregoing, we are of opinion that:
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1. The Issuer is a county and political subdivision duly organized and
existing under the laws of the State of Colorado with the authority to incur and
perform its obligations under the Bond Documents and to issue the Bonds.
2. The Bond Documents and the Bonds have been duly authorized, executed
and delivered by the Issuer pursuant to a resolution of the Issuer's Board of
County Commissioners which was duly adopted on July 31, 2001.
3. To the best of our knowledge after due inquiry, but without
independent investigation, there is no action, suit, proceeding or investigation
at law or in equity before or by any court, either state or federal, or public
board or body, pending or threatened, calling into question the existence or
operations of the Issuer, the validity of the Bond Documents or the Bonds or the
authority of the Issuer to enter into the Bond Documents or to issue the Bonds.
4. To the best of our knowledge after due inquiry, but without
independent investigation, the authorization, execution and delivery by the
Issuer of the Bond Documents and the issuance by the Issuer of the Bonds will
not violate any existing decree, writ or injunction and will not contravene the
provisions of, constitute a default under, or result in the creation of a lien,
charge or encumbrance prohibited by, any existing agreement, indenture, bond
resolution or other instrument to which the Issuer is a party or by which the
Issuer or any of its assets is bound.
Very truly yours.
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