EXHIBIT 10.10
LOAN AGREEMENT
between
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
▇▇▇▇▇▇ CONTROLS, INC.
relating to the
$4,765,000
Hillsborough County Industrial Development Authority
Industrial Development Revenue Refunding Bonds
(▇▇▇▇▇▇ Controls, Inc. Project), Series 1994
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NOTE: CERTAIN RIGHTS OF THE HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY UNDER THIS LOAN AGREEMENT HAVE BEEN
ASSIGNED TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF,
THE FIRST NATIONAL BANK OF BOSTON, TRUSTEE FOR THE OWNERS OF THE
BONDS UNDER A TRUST INDENTURE OF EVEN DATE HEREWITH, AS AMENDED
OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH
SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE AT ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
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DATED AS OF July 1, 1994
TABLE OF CONTENTS
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION . . . . . . 2
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Rules of Construction. . . . . . . . . . . . . . . 7
ARTICLE II REPRESENTATIONS . . . . . . . . . . . . . . . . . 8
Section 2.1. Representations by the Issuer. . . . . . . . . . . 8
Section 2.2. Representations, Warranties and Covenants by the
Company. . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III CONSENT TO ASSIGNMENT. . . . . . . . . . . . . . . 13
Section 3.1. Company Consent to Assignment of Agreement and
Execution of Indenture . . . . . . . . . . . . . . 13
ARTICLE IV ISSUANCE OF THE BONDS . . . . . . . . . . . . . . 13
Section 4.1. Agreement to Issue the Bonds . . . . . . . . . . . 13
Section 4.2. No Third Party Beneficiary . . . . . . . . . . . . 13
ARTICLE V LOAN BY THE ISSUER TO THE COMPANY; REPAYMENT. . . 14
Section 5.1. Loan by the Issuer; Repayment. . . . . . . . . . . 14
Section 5.2. No Set-Off . . . . . . . . . . . . . . . . . . . . 14
Section 5.3. Prepayments. . . . . . . . . . . . . . . . . . . . 14
Section 5.4. Credits Against the Note . . . . . . . . . . . . . 15
Section 5.5. Letter of Credit and Reimbursement Agreement . . . 15
ARTICLE VI OPERATION; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN . . . . . . 15
Section 6.1. Operation of the Project by the Company. . . . . . 15
Section 6.2. Taxes and Utility Charges. . . . . . . . . . . . . 15
Section 6.3. Insurance. . . . . . . . . . . . . . . . . . . . . 16
Section 6.4. Eminent Domain . . . . . . . . . . . . . . . . . . 16
Section 6.5. Application of Net Proceeds of Insurance and
Eminent Domain . . . . . . . . . . . . . . . . . . 16
Section 6.6. Parties to Give Notice . . . . . . . . . . . . . . 17
ARTICLE VII SPECIAL COVENANTS. . . . . . . . . . . . . . . . . 18
Section 7.1. Access to the Project and Inspection . . . . . . . 18
Section 7.2. Further Assurances and Corrective Instruments. . . 18
Section 7.3. Tax and Arbitrage Covenants; Notice of Event of
Taxability . . . . . . . . . . . . . . . . . . . . 18
Section 7.4. Recording and Filing; Other Instruments. . . . . . 20
Section 7.5. Administrative Expenses. . . . . . . . . . . . . . 20
Section 7.6. Indemnity Against Claims . . . . . . . . . . . . . 20
Section 7.7. Release and Indemnification. . . . . . . . . . . . 21
Section 7.8. Additional Information . . . . . . . . . . . . . . 21
Section 7.9. Default Certificates . . . . . . . . . . . . . . . 21
Section 7.10. Observe Laws . . . . . . . . . . . . . . . . . . . 22
Section 7.11. Election . . . . . . . . . . . . . . . . . . . . . 22
Section 7.12. No Warranty of Condition of Suitability by the
Issuer . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.13. Redemption of Prior Bonds. . . . . . . . . . . . . 23
ARTICLE VIII ASSIGNMENT, LEASING AND SELLING. . . . . . . . . . 23
Section 8.1. Assignment of this Loan Agreement or Lease or
Sale of the Project by the Company . . . . . . . . 23
Section 8.2. Restrictions on Transfer of the Issuer's Rights. . 24
Section 8.3. Assignment by the Issuer . . . . . . . . . . . . . 24
Section 8.4. Merger of Issuer . . . . . . . . . . . . . . . . . 24
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES. . . . . . . . . . 25
Section 9.1. Events of Default Defined. . . . . . . . . . . . . 25
Section 9.2. Remedies on Default. . . . . . . . . . . . . . . . 26
Section 9.3. Application of Amounts Realized in Enforcement of
Remedies . . . . . . . . . . . . . . . . . . . . . 26
Section 9.4. No Remedy Exclusive. . . . . . . . . . . . . . . . 27
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses. . . 27
Section 9.6. Correlative Waivers. . . . . . . . . . . . . . . . 27
ARTICLE X PREPAYMENTS . . . . . . . . . . . . . . . . . . . 27
Section 10.1. Optional Prepayments . . . . . . . . . . . . . . . 27
Section 10.2. Mandatory Prepayments. . . . . . . . . . . . . . . 28
Section 10.3. Other Mandatory Prepayments. . . . . . . . . . . . 28
ARTICLE XI REBATE PROVISIONS . . . . . . . . . . . . . . . . 29
Section 11.1. Creation of the Rebate Fund. . . . . . . . . . . . 29
ARTICLE XII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 29
Section 12.1. References to the Bonds Ineffective After Bonds
Paid . . . . . . . . . . . . . . . . . . . . . . . 29
Section 12.2. No Implied Waiver. . . . . . . . . . . . . . . . . 29
Section 12.3. Issuer Representative. . . . . . . . . . . . . . . 29
Section 12.4. Company Representative . . . . . . . . . . . . . . 30
Section 12.5. Notices. . . . . . . . . . . . . . . . . . . . . . 30
Section 12.6. If Payment or Performance Date Is Other Than a
Business Day . . . . . . . . . . . . . . . . . . . 31
Section 12.7. Binding Effect . . . . . . . . . . . . . . . . . . 31
Section 12.8. Severability . . . . . . . . . . . . . . . . . . . 31
Section 12.9. Amendments, Changes and Modifications. . . . . . . 31
Section 12.10. Execution in Counterparts. . . . . . . . . . . . . 31
Section 12.11. Applicable Law . . . . . . . . . . . . . . . . . . 31
Section 12.12. No Charge Against Issuer Credit. . . . . . . . . . 31
Section 12.13. Issuer Not Liable. . . . . . . . . . . . . . . . . 32
Section 12.14. Expenses . . . . . . . . . . . . . . . . . . . . . 32
Section 12.15. Amounts Remaining with the Trustee . . . . . . . . 32
Execution by the Issuer. . . . . . . . . . . . . . . . . . . . . . . . 33
Execution by the Company . . . . . . . . . . . . . . . . . . . . . . . 33
Exhibit A Promissory Note
Exhibit B The Project
LOAN AGREEMENT
This LOAN AGREEMENT, dated as of July 1, 1994, between the HILLSBOROUGH
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Issuer"), a public body corporate
and politic and a public instrumentality created pursuant to the laws of the
State of Florida (the "State"), and ▇▇▇▇▇▇ CONTROLS, INC. (the "Company"), a
corporation organized and existing under the laws of the State of New Jersey.
W I T N E S S E T H:
WHEREAS, the Act (as hereinafter defined) authorizes the creation of
industrial development agencies to facilitate the financing of capital projects
comprising an industrial and manufacturing plant; and
WHEREAS, the Act further authorizes each agency to issue its bonds for the
purpose of carrying out any of its corporate purposes; and
WHEREAS, pursuant to and in accordance with the provisions of the Act, the
County Commissioners of Hillsborough County, Florida created the Issuer; and
WHEREAS, the Issuer is authorized and empowered to enter into this Loan
Agreement by the provisions of the Act; and
WHEREAS, the Issuer has heretofore indicated its willingness to issue
industrial revenue bonds under the Act for the purpose of refunding in whole the
outstanding principal amount of the Issuer's Industrial Development Revenue
Bonds (▇▇▇▇▇▇ Controls, Inc. Project), Series 1986 in the original aggregate
principal amount of $7,200,000 (the "Prior Bonds"), the proceeds of which were
used to finance, in whole or in part, the cost of acquiring, constructing and
installing a certain project in Hillsborough County, Florida (the "Project")
owned and operated by the Company; and
WHEREAS, to obtain funds for such purposes the Issuer will issue and sell
its Industrial Development Revenue Refunding Bonds (▇▇▇▇▇▇ Controls, Inc.
Project), Series 1994 in the aggregate principal amount of $4,765,000 dated as
of July 1, 1994 (the "Bonds"), under and pursuant to the Act, to be secured by
and contain such terms and provisions as are set forth in that certain Trust
Indenture (the "Indenture") dated as of July 1, 1994 between the Issuer and The
First National Bank of Boston, Boston, Massachusetts, as Trustee (the
"Trustee"), and the proceeds from the sale of the Bonds shall be deposited with
the Trustee and disbursed in the manner and for the purposes set forth herein
and in the Indenture, all as more fully provided herein and therein; and
WHEREAS, in undertaking the issuance of the Bonds the Issuer has observed
the criteria and requirements established by the Act.
NOW, THEREFORE, in consideration of the respective representations and
agreements contained herein, the parties hereto, recognizing that in the
performance of the agreements of the Issuer herein contained, any obligation it
may thereby incur for the payment of money shall not be deemed to constitute a
debt, liability or obligation of the Issuer or of the State of Florida or any
political subdivision thereof, except to the extent that the Bonds hereinafter
mentioned shall be a limited obligation of the Issuer, payable solely from
revenues provided therefor under the provisions of this Loan Agreement, the Note
and from the Credit Facility Issuer under a Credit Facility (each as hereinafter
defined) or derived from the exercise of the rights of the Issuer thereunder,
agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions.
In addition to words and terms elsewhere defined in this Loan Agreement or
in the Indenture, the following words and terms shall have the following
meanings:
"Act" shall mean all applicable provisions of the Constitution and laws of
the State of Florida, including without limitation the Florida Industrial
Development Financing Act, Parts II and III of Chapter 159, Florida Statutes, as
amended from time to time and the resolution of the Board of County
Commissioners of Hillsborough County, Florida adopted on October 27, 1971
organizing the Issuer.
"Administrative Expenses" shall mean the amounts payable pursuant to
Section 7.5 hereof by the Company to or for the account of the Issuer to provide
for payment of reasonable costs and expenses incurred by the Issuer.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control",
when used with respect to a Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bond" or "Bonds" shall mean the Hillsborough County Industrial Development
Authority Industrial Development Revenue Refunding Bonds (▇▇▇▇▇▇ Controls, Inc.
Project), Series 1994, authorized to be issued pursuant to the Bond Resolution
in accordance with the Indenture in the aggregate principal amount of
$4,765,000, including such Bonds issued in replacement for mutilated, destroyed,
lost or stolen Bonds pursuant to Section 210 of the Indenture.
"Bond Documents" shall mean collectively the Indenture, the Bonds, this
Loan Agreement, the Note, the Letter of Credit Documents, the Tender Agency
Agreement and the Remarketing Agreement.
"Bond Resolution" shall mean the resolution adopted by the Issuer on July
25, 1994 authorizing the execution and delivery of the Issuer Documents and the
issuance of the Bonds by the Issuer.
"Closing Date" means the date of the issuance and delivery of the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, including, when
appropriate, the statutory predecessor of the Code, and all applicable
regulations (whether proposed, temporary or final) under that Code and the
statutory predecessor of the Code, and any official rulings and judicial
determinations under the foregoing applicable to the Bonds.
"Company" shall mean ▇▇▇▇▇▇ Controls, Inc., a New Jersey corporation,
and its successors or assigns and any surviving, resulting or transferee
corporation or other entity.
"Company Representative" shall mean any one of the persons at the time
designated to act on behalf of the Company by written certificate furnished to
the Issuer and the Trustee containing the specimen signatures of such persons
and signed on behalf of the Company by the President or any duly authorized
officer of the Company.
"Consistent Basis" shall mean, in reference to the application of Generally
Accepted Accounting Principles, that the accounting principles observed in the
period referred to are comparable in all material respects to those applied in
the preceding period, except as to any changes consented to by the Credit
Facility Issuer.
"Counsel" shall mean an attorney or firm of attorneys acceptable to the
Trustee, and may, but need not, be counsel to the Issuer or the Company.
"Credit Facility" shall mean the Letter of Credit or any Alternate Credit
Facility delivered to the Trustee pursuant to Article VI of the Indenture.
"Credit Facility Issuer" shall mean the Bank with respect to the Letter of
Credit and if applicable the institution issuing any Alternate Credit Facility.
"Determination of Taxability" shall be defined as and shall be deemed to
have occurred on the first to occur of the following:
(i) on the date when the Company files any statement, supplemental
statement or other tax schedule, return or document (whether pursuant to
Treasury Regulations Section 1.103-10(b)(2)(vi), as the same may be amended
or supplemented, or otherwise) which discloses that an Event of Taxability
shall have in fact occurred;
(ii) on the date when any Bondholder or former Bondholder notifies the
Company or the Trustee that it has received an approving written opinion of
Bond Counsel to the effect that an Event of Taxability shall have occurred
unless, within one hundred eighty (180) days after receipt by the Company
of such notification from the Trustee, any Bondholder or any former
Bondholder, the Company shall obtain and deliver to the Trustee a favorable
ruling or determination letter issued to or on behalf of the Company by the
Commissioner or any District Director of Internal Revenue (or any other
government official exercising the same or a substantially similar function
from time to time) to the effect that, after taking into consideration such
facts as form the basis for the opinion that an Event of Taxability has
occurred, an Event of Taxability shall not have occurred;
(iii) on the date when the Company shall be advised in writing by the
Commissioner or any District Director of Internal Revenue (or any other
government official or agent exercising the same or a substantially similar
function from time to time) that, based upon filings of the Company, or
upon any review or audit of the Company, or upon any other ground
whatsoever, an Event of Taxability shall have occurred;
(iv) on the date when the Company shall receive notice in writing from
any Bondholder or former Bondholder, or from the Trustee, that the Internal
Revenue Service (or any other government agency exercising the same or a
substantially similar function from time to time) has assessed as
includable in the gross income of any Bondholder or former Bondholder the
interest on such Bondholder's or former Bondholder's Bond due to the
occurrence of an Event of Taxability;
provided, however, no Determination of Taxability shall be deemed to have
occurred under subparagraph (iii) or (iv) hereof unless the Company has been
afforded the opportunity, at its expense, to contest any such assessment or
unfavorable ruling and, further, no Determination of Taxability shall be deemed
to have occurred until such contest, if made, has been finally determined.
"Eminent Domain" shall mean the taking of title to, or the temporary use
of, the Project or any part thereof pursuant to eminent domain or condemnation
proceedings, or any voluntary conveyance of any part of the Project during the
pendency of, or as a result of a threat of, such proceedings.
"Event of Default" or "Default" shall have the meaning set forth in Section
9.1 hereof.
"Event of Taxability" shall mean a change in law or fact or the
interpretation thereof, or the occurrence or existence of any fact, event or
circumstance (including, without limitation, the issuance of obligations or the
incurring of capital expenditures in excess of those permitted by Section
103(b)(6)(D) of the 1954 Code, or the taking of any action by the Company, or
the failure to take any action by the Company, or the making by the Company of
misrepresentation herein or in any certificate required to be given in
connection with the issuance, sale or delivery of the Bonds) which has the
effect of causing the interest paid or payable on any Bond to become includable
in the gross income of any Bondholder or former Bondholder of any Bond other
than a Bondholder or former Bondholder who is or was a "substantial user" or
"related person" as such terms are used in Section 147(a) of the Code.
"Financing Statements" means any and all financing statements (including
continuation statements) filed for record from time to time to perfect the
security interests created or assigned hereby or by the Indenture.
"Generally Accepted Accounting Principles" shall mean those principles of
accounting set forth in pronouncements of the Financial Accounting Standards
Board and its predecessors or pronouncements of the American Institute of
Certified Public Accountants or those principles of accounting which have other
substantial authoritative support and are applicable in the circumstances as of
the date of application, as such principles are from time to time supplemented
and amended.
"Indenture" shall mean the Trust Indenture of even date herewith by and
between the Issuer and the Trustee, together with any amendments or supplements
thereof permitted thereby.
"Issuer" shall mean Hillsborough County Industrial Development Authority
and its successors and assigns.
"Issuer Documents" shall mean collectively the Indenture and this Loan
Agreement.
"Issuer Representative" shall mean any one of the persons at the time
designated to act on behalf of the Issuer by written certificate furnished to
the Company and the Trustee containing the specimen signatures of such persons
and signed on behalf of the Issuer by the Chairman.
"Letter of Credit Documents" shall mean the Letter of Credit, the
Reimbursement Agreement and the Pledge Agreement.
"Loan Agreement" shall mean this Loan Agreement and any amendments and
supplements thereto permitted by the Indenture.
"Net Proceeds" means the proceeds received by the Issuer from the sale of
the Bonds including all earnings and profits thereon but excluding any proceeds
deposited in a reasonably required reserve or replacement fund. When used with
respect to any insurance proceeds or award resulting from, or other amount
received in connection with, Eminent Domain, the term "Net Proceeds" shall mean
the gross proceeds from such proceeds, award or other amount, less all expenses
(including attorneys' fees) incurred in the realization thereof.
"1954 Code" shall mean the Internal Revenue Code of 1954, as amended
through August 15, 1986, and all applicable regulations (whether proposed,
temporary or final) thereunder and any official rulings and determinations under
the foregoing applicable to the Bonds or the Prior Bonds.
"Note" shall mean the promissory note given by the Company pursuant to
Section 5.4 of this Loan Agreement, substantially in the form of Exhibit "A"
attached hereto.
"Overdue Rate" shall mean the Prime Rate plus two percent, or the maximum
contract rate permitted by law, whichever is lower.
"Payment of the Bonds" shall mean payment of (i) the principal of and
interest on the Bonds in accordance with their terms whether through payment at
maturity, upon acceleration or prepayment, (ii) all amounts due as
Administrative Expenses or otherwise, and (iii) any and all other liabilities
and obligations arising under the Indenture and this Loan Agreement, in any
case, in such a manner that all such amounts due and owing with respect to the
Bonds shall have been paid.
"Permitted Encumbrances" shall mean, as of any particular time, liens for
ad valorem and special assessments, if any, which are not then delinquent or
which are being contested in good faith.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture, joint-stock company, or
a government or agency or political subdivision thereof.
"Prime Rate" shall mean that rate of interest per annum announced by First
Union National Bank of North Carolina at its principal office in
Charlotte, North Carolina, from time to time to be its prime rate.
"Project" shall mean the land or buildings and other improvements thereon,
and all machinery, equipment, apparatus, office furnishings and other property
financed in whole or in part with the proceeds of the Prior Bonds, including any
substitutions therefor and any repairs, renewals and replacements thereof from
time to time, including the real property described in Exhibit "B" attached
hereto and by this reference made a part hereof.
"Rebate Fund" means the Fund of that name created pursuant to Section 504
of the Indenture and described in Section 11.1 hereof.
"Regulations" shall mean the applicable Treasury Regulations under Sections
103 and 141 through 150 of the Code whether at the time proposed, temporary,
final or otherwise.
"Reimbursement Agreement" shall mean the Letter of Credit, Reimbursement
and Guaranty Agreement of even date herewith by and among the Company, ▇▇▇▇▇
Industries, Inc. as guarantor, and the Bank, and any supplements or amendments
thereto.
"Related Person" means "related person" within the meaning of Section
103(b)(6)(C) of the 1954 Code by reference to Sections 267, 707(b) and 1563(a)
of the 1954 Code, except that fifty percent is substituted for eighty percent in
Section 1563(a).
"Security interest" or "security interests" shall refer to the security
interests created in the Indenture and shall have the meaning set forth in the
U.C.C.
"State" shall mean the State of Florida.
"Tax Regulatory Certificate" shall mean the certificate of the Company,
dated the date of delivery of the Bonds, setting forth certain facts, estimates
and circumstances with respect to the Bonds.
"Trustee" shall mean the banking institution at the time serving as
Trustee under the Indenture.
Section 1.2. Rules of Construction.
(a) Words of masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders, and words of the neuter
gender shall be deemed and construed to include correlative words of the
masculine and feminine genders.
(b) The table of contents, captions and headings in this Loan Agreement
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or Sections of this Loan Agreement.
(c) All references herein to particular Articles or Sections are
references to Articles or Sections of this Loan Agreement unless some other
reference is established.
(d) All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis.
(e) All references herein to the Company shall be deemed to refer to
each of the Persons if more than one are described by such term and any
agreement, obligation, duty or liability of the Company shall be a joint and
several agreement, obligation, duty or liability of each of the Persons so
described by such term.
(f) Any terms not defined herein but defined in any of the other Bond
Documents shall have the same meaning herein.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Issuer.
The Issuer makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Organization and Authority. The Issuer is a public body corporate
and politic and a public instrumentality created pursuant to the laws of the
State of Florida. The Issuer has all requisite power and authority under the Act
to (i) adopt the Bond Resolution, (ii) issue the Bonds, (iii) use the proceeds
thereof to refund the Prior Bonds, and (iv) enter into, and perform its
obligations under the Issuer Documents.
(b) Pending Litigation. There are no actions, suits, proceedings,
inquiries or investigations pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer in any court or before any
governmental authority or arbitration board or tribunal, which involve the
possibility of materially and adversely affecting the transactions contemplated
by the Issuer Documents or which, in any way, would adversely affect the
validity or enforceability of the Bonds, the Issuer Documents or any agreement
or instrument to which the Issuer is a party and which is used or contemplated
for use in the consummation of the transactions contemplated hereby or thereby
or the ability of the Issuer to perform its respective obligations hereunder and
thereunder.
(c) Agreements Are Legal and Authorized. The adoption of the Bond
Resolution, the issuance and sale of the Bonds and the execution and delivery by
the Issuer of the Issuer Documents and the compliance by the Issuer with all of
the provisions of each thereof and of the Bonds (i) are within the purposes,
powers and authority of the Issuer, (ii) have been done in full compliance with
the provisions of the Act, are legal and will not conflict with or constitute on
the part of the Issuer a violation of or a breach of or default under, or result
in the creation of any lien, charge or encumbrance upon any property of the
Issuer (other than as contemplated by this Loan Agreement and the Indenture)
under the provisions of, any charter instrument, by-law, indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to which the
Issuer is a party or by which the Issuer is bound, or any license, judgment,
decree, law, statute, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Issuer or any of its activities or
properties, and (iii) have been duly authorized by all necessary corporate
action on the part of the Issuer.
(d) Governmental Consents. Neither the nature of the Issuer nor any
of its activities or properties, nor any relationship between the Issuer and any
other person, nor any circumstance in connection with the offer, issue, sale or
delivery of any of the Bonds is such as to require the consent, approval or
authorization of, or the filing, registration or qualification with, any
governmental authority on the part of the Issuer in connection with the
execution, delivery and performance of the Issuer Documents or the offer, issue,
sale or delivery of the Bonds, other than those already obtained, which include
(i) the approval of the Board of County Commissioners, (ii) the compliance with
the information reporting requirements contained in Section 149(e) of the Code,
(iii) the public approval of the issuance of the Bonds contained in Section
147(f) of the Code, and (iv) the filing of Financing Statements perfecting the
security interests created under the Indenture; provided, however, no
representation is made herein as to compliance with the securities or "blue sky"
laws of any jurisdiction.
(e) No Defaults. No event has occurred and no condition exists with
respect to the Issuer which would constitute an Event of Default as defined in
this Loan Agreement or the Indenture or which, with the lapse of time or with
the giving of notice or both, would become an Event of Default under this Loan
Agreement or the Indenture. The Issuer is not in default under the Act or under
any charter instrument or by-law.
(f) No Prior Pledge. Neither this Loan Agreement nor any of the revenues
pledged under the Indenture have been pledged or hypothecated in any manner or
for any purpose other than as provided in the Indenture as security for the
payment of the Bonds.
(g) Nature and Location of Project. The refinancing of the costs of the
Project is in furtherance of the public purpose intended to be served by the Act
and is specifically authorized by the Act. The Project is located wholly within
the geographic limits of the Issuer.
(h) Public Hearing and Approval. A public hearing was duly held by the
Hillsborough County Industrial Development Authority on June 15, 1994, upon
reasonable public notice, at which hearing members of the public were afforded
reasonable opportunity to be heard on all matters pertaining to the location and
nature of the Project and the refinancing thereof and to the issuance of the
Bonds. On July 13, 1994, after the above mentioned public hearing, the issuance
of the Bonds was approved by the Hillsborough County Board of County
Commissioners, which is the applicable elected representative of the Issuer.
(i) Due Authorization. By the Bond Resolution the Issuer has authorized
the issuance and sale of the Bonds to provide funds for refunding, by payment
and redemption, the Prior Bonds, and authorized and approved the Issuer's
execution, delivery and performance of the Issuer Documents, the endorsement of
the Note and the other instruments contemplated hereby to be executed and
delivered by the Issuer, which Bond Resolution has not been amended, modified or
rescinded and continues to be in full force and effect.
(j) Limited Obligations. Notwithstanding anything herein contained to the
contrary, any obligation the Issuer may hereby incur for the payment of money
shall not be deemed to constitute a debt, liability or obligation
of the Issuer, Hillsborough County or of the State of Florida or any political
subdivision thereof, except to the extent that the Bonds shall be a limited
obligation of the Issuer payable solely from (i) the revenues hereunder and
under the Note, (ii) revenues derived from the sale of the Bonds, and (iii)
amounts on deposit from time to time in the Bond Fund, subject to the provisions
of this Loan Agreement and the Indenture permitting the application thereof for
the purposes and on the terms and conditions set forth herein and therein.
(k) Issuance of Bonds. To accomplish the foregoing, the Issuer proposes
to issue $4,765,000 in aggregate principal amount of its Bonds immediately
following the execution and delivery of this Loan Agreement. The date,
denominations, interest rate, maturity date, redemption provisions and other
pertinent provisions with respect to the Bonds are set forth in the Indenture
(particularly Articles II and III thereof).
(l) Validity of Issuer Documents. When duly executed and delivered on
behalf of the Issuer, and assuming the due authorization, execution and delivery
by the Company of this Loan Agreement, and the due authorization, execution and
delivery by the Trustee of the Indenture, each of the Issuer Documents shall
constitute a valid and binding obligation of the Issuer enforceable in
accordance with its terms.
(m) Representations and Other Written Statements. Neither the
representations of the Issuer contained in this Loan Agreement or the Indenture
nor any written statement relating to the Issuer furnished by the Issuer in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein not misleading.
Section 2.2. Representations, Warranties and Covenants by the
Company.
The Company makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Corporate Organization and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and is qualified to do business and is in good standing under the
laws of the State.
(b) Pending Litigation. There are no proceedings pending, or to the
knowledge of the Company threatened against or affecting the Company in any
court or before any governmental authority or arbitration board or tribunal
which are likely to have a material adverse effect on the ability of the Company
to perform its obligations under this Loan Agreement and the Bond Documents to
which it is a party.
(c) Agreements Are Legal and Authorized. The execution and delivery by the
Company of this Loan Agreement, the Note and the Bond Documents to which it is a
party and the compliance by the Company with all of the provisions hereof (and
thereof) (i) are within the corporate power of the Company, (ii) after giving
effect to the redemption of the Prior Bonds will not conflict with or result in
any breach of any of the provisions of, or constitute a default under any
agreement, charter document, by-law or other instrument to which the Company is
a party or by which it may be bound, and
(iii) have been duly authorized by all necessary corporate action on the part of
the Company.
(d) No Defaults. No event has occurred and no condition exists with
respect to the Company that would constitute an Event of Default under this Loan
Agreement, the Note, the Bond Documents to which it is a party or the Indenture
or which, with the lapse of time or with the giving of notice or both, would
become an Event of Default under this Loan Agreement, the Note, the Indenture or
the Bond Documents to which it is a party.
(e) Nature and Location of Project. The Project has been completed in
accordance with the Project Summary (described in Exhibit "B" attached hereto
and made a part hereof), constitutes a "project" within the meaning of the Act
and is located wholly within the geographic limits of the Issuer.
(f) Ownership and Operation of Project. The Company presently intends
to operate the Project as a manufacturing facility from the date hereof to the
expiration or sooner termination of this Agreement as provided herein, and as a
"project" within the meaning of the Act.
(g) Disclosure Documents. Except as reflected or referenced in the Private
Placement Memorandum dated August 4, 1994 relating to the Bonds, including the
documents incorporated therein by reference (the "Private Placement
Memorandum"), there have been no changes in the assets or liabilities or
financial condition of the Company, other than changes in the ordinary course of
business, which in the aggregate are materially adverse with respect to the
Company's ability to perform its obligations under this Loan Agreement or the
Bond Documents to which it is a party. There were no material liabilities,
contingent or otherwise, of the Company which were not reflected or referenced
in the Private Placement Memorandum, and the Company has not entered into any
commitments or contracts since the date of the Private Placement Memorandum
which are not reflected or referenced in the Private Placement Memorandum, other
than in the ordinary and normal course of its business, which might, in light of
any fact or condition presently known to the Company, have a materially adverse
effect upon the financial condition, operations or business of the Company or
its ability to perform its obligations hereunder or thereunder.
(h) Issuance of Private Activity Bonds. The Company has not caused or will
not cause the issuance of "private activity" bonds (as defined in the Code) or
of "industrial development bonds" (as defined in the 1954 Code) on its behalf in
any jurisdiction of the United States during the 30-day period commencing 15
days prior to the issuance of the Bonds.
(i) Use of Proceeds of Bonds. The Company shall not permit the proceeds
of the Bonds to be used in any manner, nor shall it make any expenditures with
respect to the Project or perform or permit any act, which would cause the Bonds
to fail to meet the requirements of Section 147(b) of the Code.
(j) No Further Approval. No authorization, approval, consent, permit or
license of any regulatory body or authority, not already obtained, is required
on the part of the Company for the valid and lawful execution and delivery of
this Loan Agreement and the Note.
(k) Other Events. To the best knowledge of the Company, no event has
occurred which, with the lapse of time or the giving of notice or both,
would give any creditor of the Company the right to accelerate the maturity
of any of such party's outstanding indebtedness for money borrowed.
(l) Certificates and Documents. The certificates and all other
documents delivered and to be delivered by the Company in connection with the
transactions contemplated by this Loan Agreement and the Note and the other Bond
Documents to which it is a party as of their respective dates, taken as a whole,
do not and will not include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements herein and therein, in
the light of the circumstances under which they are or will be made, not
misleading. The certificates and all other documents delivered and to be
delivered by the Company or its representatives in connection with the
transactions contemplated by this Loan Agreement and the Note and the Bond
Documents to which it is a party are or will be on the dates on which they are
or will be delivered true and complete in all material respects.
(m) Use of Proceeds. All of the proceeds of the sale of the Bonds
will be applied to redeem the principal of the Prior Bonds on the redemption
date thereof. None of the proceeds of the sale of the Bonds will be applied to
pay issuance costs of the Bonds or to pay costs of the refunding.
(n) Matters Relating to Tax Exemption. The Company will not take or
omit to take any action which would impair the exclusion of the interest on
the Bonds from the gross income of the recipients thereof for federal
income tax purposes, and will comply with all of its covenants and
agreements contained in the Tax Regulatory Certificate.
(o) Certain Arbitrage Matters. After the expiration of any applicable
temporary period under Section 148(d)(3) of the Code, at no time during any bond
year will the aggregate amount of gross proceeds of the Bonds invested in higher
yielding investments (within the meaning of Section 148(b) of the Code) exceed
one hundred fifty percent (150%) of the debt service on the Bonds for such bond
year and the aggregate amount of gross proceeds of the Bonds invested in higher
yielding investments, if any, will be promptly and appropriately reduced as the
amount of outstanding Bonds are reduced, provided however that the foregoing
shall not require the sale or disposition of any investments in higher yielding
investments if such sale or disposition would result in a loss which exceeds the
amount which would be paid to the United States pursuant to Section 504 of the
Indenture (but for such sale or disposition) at the time of such sale or
disposition if a payment under Section 504 of the Indenture were due at such
time. At no time will any funds constituting gross proceeds of the Bonds be used
in a manner as to constitute failure of compliance with Section 148 of the Code.
The terms "bond year", "gross proceeds", "higher yielding investments", "yield",
and "debt service" have the meanings assigned to them for purposes of Section
148 of the Code.
(p) Tax Regulatory Certificate. The Company's Tax Regulatory Certificate
executed and delivered by the Company concurrently with the issuance and
delivery of the Bonds is true, accurate and complete in all material respects as
of the date on which executed and delivered.
ARTICLE III
CONSENT TO ASSIGNMENT
Section 3.1. Company Consent to Assignment of Agreement and
Execution of Indenture.
The Company understands that the Issuer, as security for the payment of the
principal of, and the interest on, the Bonds, will assign and pledge to, and
create a security interest in favor of, the Trustee pursuant to the Indenture in
certain of its rights, title and interest in and to this Loan Agreement
including all Pledged Revenues, reserving, however, its rights (a) pursuant to
this Loan Agreement providing that notices, approvals, consents, requests and
other communications be given to the Issuer, (b) to reimbursement and payment of
costs and expenses under this Loan Agreement, and (c) to indemnification and to
exemption from liability, both individual and corporate, as provided under this
Loan Agreement, and the Company hereby agrees and consents to such assignment
and pledge. The Company acknowledges that it has received a copy of the
Indenture and consents to the execution of the same by the Issuer.
ARTICLE IV
ISSUANCE OF THE BONDS
Section 4.1. Agreement to Issue the Bonds.
To provide funds for redemption of the Prior Bonds, the Issuer agrees
that it will authorize, sell, issue and deliver the Bonds in the aggregate
principal amount of $4,765,000 in the manner set forth in the Indenture and
cause the proceeds of the Bonds to be applied as provided in the Indenture.
Section 4.2. No Third Party Beneficiary.
It is specifically agreed between the parties executing this Loan Agreement
that it is not intended by any of the provisions of any part of this Loan
Agreement to create in the public or any member thereof, other than as may be
expressly provided herein or as contemplated in the Indenture, a third party
beneficiary hereunder, or to authorize anyone not a party to this Loan Agreement
to maintain a suit for personal injuries or property damage pursuant to the
terms or provisions of this Loan Agreement. The duties, obligations, and
responsibilities of the parties to this Loan Agreement with respect to third
parties shall remain as imposed by law.
ARTICLE V
LOAN BY THE ISSUER TO THE COMPANY; REPAYMENT
Section 5.1. Loan by the Issuer; Repayment.
(a) Upon the terms and conditions of this Loan Agreement, the Issuer
shall lend to the Company the proceeds of the sale of the Bonds. The loan shall
be evidenced by and repayable as set forth in the Note.
(b) As consideration for the issuance of the Bonds and the making of the
loan to the Company by the Issuer, the Company will execute and deliver
this Loan Agreement and the Note, in the form attached as Exhibit "A" hereto,
and the Issuer will endorse the Note without recourse to the order of, and
pledge the Note and assign this Loan Agreement and the Note to, the Trustee, as
the assignee of the Issuer under the Indenture, contemporaneously with the
issuance of the Bonds. The Company shall repay the loan in accordance with the
provisions of the Note and of this Loan Agreement.
Section 5.2. No Set-Off.
The obligation of the Company to make the payments required by the Note
shall be absolute and unconditional. The Company will pay without abatement,
diminution or deduction (whether for taxes or otherwise) all such amounts
regardless of any cause or circumstance whatsoever including, without
limitation, any defense, set-off, recoupment or counterclaim that the Company
may have or assert against the Issuer, the Trustee, any Bondholder or any other
person.
Section 5.3. Prepayments.
The Company may prepay all or any part of the amounts the Note obligates it
to pay as provided in Section 701 of the Indenture with respect to prepayment of
the Bonds. Except as provided in this Section 5.3 and in Sections 10.1, 10.2 and
10.3 hereof, the Company shall not be entitled to prepay the Note or cause the
Bonds to be prepaid. The Company shall prepay all of the amounts it is required
to prepay as provided in Sections 10.2 and 10.3 hereof.
Section 5.4. Credits Against the Note.
To the extent that principal of or interest on the Bonds shall be paid,
there shall be credited against the unpaid principal of or interest on the Note,
as the case may be, an amount equal to the principal of or interest on the Bonds
so paid. If the principal of and interest on and other amounts payable under the
Bonds shall have been paid sufficiently that Payment of the Bonds shall have
occurred, then the Note, ipso facto, shall be deemed to have been paid in full,
the Company's obligations thereon shall be discharged (with the exception of the
obligation of the Company to make certain payments which may subsequently arise
as a result of a Determination of Taxability which shall survive notwithstanding
Payment of the Bonds), and the Note shall be cancelled and surrendered to the
Company.
Section 5.5. Letter of Credit and Reimbursement Agreement.
As a further condition to the Issuer's making the loan hereunder, the
Company shall:
(a) cause the Letter of Credit to be issued and delivered to the Trustee
as security for the Bonds. Until the Conversion Date, the Company shall cause a
Credit Facility meeting the requirements of Section 603 of the Indenture to be
maintained with the Trustee; and
(b) enter into the Reimbursement Agreement with the Bank in form and
substance satisfactory to the Bank and execute and deliver the other Letter of
Credit Documents required by the Bank.
ARTICLE VI
OPERATION; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN
Section 6.1. Operation of the Project by the Company.
(a) The Company shall pay or cause to be paid all costs and expenses of
operation and maintenance of the Project.
(b) The Company may, at its own expense, make from time to time any
additions, modifications or improvements to the Project that it may deem
desirable for its business purposes.
Section 6.2. Taxes and Utility Charges.
(a) The Company shall pay as the same respectively become due, (1) all
taxes, assessments, levies, claims and charges of any kind whatsoever that may
at any time be lawfully assessed or levied against or with respect to the
Project (including, without limiting the generality of the foregoing, any tax
upon or with respect to the income or profits of the Issuer from the Project and
that, if not paid, would become a charge on the payments to be made under this
Loan Agreement or the Note prior to or on a parity with the charge thereon
created by the Indenture and including ad valorem, sales and excise taxes,
assessments and charges upon the Company's interest in the Project), (2) all
utility and other charges incurred in the operation, maintenance, use, occupancy
and upkeep of the Project and (3) all assessments and charges lawfully made by
any governmental body for public improvements that may be secured by a lien on
any portion of the Project.
(b) The Company may, at its expense, contest in good faith any such levy,
tax, assessment, claim or other charge. The Issuer and the Trustee, at the
expense of the Company, will cooperate fully in any such permitted contest.
(c) The Company shall furnish the Issuer and the Trustee, upon request,
with proof of payment of any taxes, governmental charges, utility charges,
insurance premiums or other charges required to be paid by the Company under
this Loan Agreement.
Section 6.3. Insurance.
Until Payment of the Bonds shall be made, the Company will keep the Project
properly and continuously insured against such risks as are customarily insured
against by businesses of like size and type engaged in the same or similar
manufacturing operations (other than business interruption insurance).
Section 6.4. Eminent Domain.
Unless the Company shall have prepaid the Note pursuant to the provisions
of Article X hereof, in the event that title to, or the temporary use of, the
Project, or any part thereof shall be taken by Eminent Domain, the Company shall
be obligated to continue to make the payments required to be made pursuant to
the Note and the Net Proceeds
received as a result of such Eminent Domain shall be applied as provided in
Section 6.5(b) hereof.
Section 6.5. Application of Net Proceeds of Insurance and Eminent
Domain.
(a) The Net Proceeds of the insurance carried with respect to the Project
shall be applied by the Company toward extinguishment of the defect or claim or
satisfaction of the liability with respect to which such insurance proceeds may
be paid.
(b) The Net Proceeds of the insurance carried with respect to the Project
(excluding the Net Proceeds of any business interruption insurance, which shall
be paid to the Company), and the Net Proceeds resulting from Eminent Domain,
except as hereinafter provided, shall be paid to the Trustee and applied as
follows:
(1) If the amount of the Net Proceeds does not exceed $500,000,
the Net Proceeds shall be paid to the Company and shall be applied to the
repair, replacement, renewal or improvement of the Project or at the
Company's election paid to the Trustee and applied as provided in (2)(B)
below.
(2) If the amount of the Net Proceeds exceeds $500,000, the Net
Proceeds shall be paid to and held by the Trustee as a special trust fund
and invested in accordance with Section 602 of the Indenture and the
provisions of Article XI hereof pending receipt of written instructions
from the Company. At the option of the Company, to be exercised within the
period of ninety (90) days from the receipt by the Trustee of such Net
Proceeds, the Company shall advise the Trustee that (A) the Company will
use the Net Proceeds for the repair, replacement, renewal or improvement of
the Project (such funds to be delivered by the Trustee to the Company), or
(B) the Net Proceeds shall be applied to the prepayment of the Bonds as
provided in Article X hereof. If the Company does not advise the Trustee
within said period of ninety (90) days that it elects to proceed under
clause (A) to use such Net Proceeds for the repair, replacement, renewal or
improvement of the Project, such Net Proceeds shall be applied to the
repayment of the Bonds pursuant to Article X hereof. Any prepayment
pursuant to the preceding sentence shall be effected on the next Interest
Payment Date not less than thirty (30) days after the expiration of said
period of ninety (90) days without an election by the Company.
Notwithstanding the foregoing, so long as a Credit Facility is in effect, in the
event of any inconsistency between the terms contained in this Agreement and
those contained in the Reimbursement Agreement, the provisions of the
Reimbursement Agreement should be deemed to control in accordance with its
terms.
(c) The Company agrees that if it shall elect to use the moneys paid
to the Trustee pursuant to subsection (b)(2) of this Section 6.5 for the repair,
replacement, renewal or improvement of the Project, it will restore the Project,
or cause the same to be done, to a condition substantially equivalent to its
condition prior to the occurrence of the event to which the Net Proceeds were
attributable. To the extent that the Net Proceeds are not sufficient to restore
or replace the Project, the Company shall use
its own funds to restore or replace the Project. Any balance remaining after any
such application of such Net Proceeds shall be paid to the Company. The Company
shall be entitled to the Net Proceeds of any insurance or resulting from Eminent
Domain relating to property of the Company not included in the Project and not
providing security for the Note or this Loan Agreement.
Section 6.6. Parties to Give Notice.
In case of any material damage to or destruction of all or any part of the
Project, the Company shall give prompt notice thereof to the Issuer, the Credit
Facility Issuer and the Trustee. In case of a taking or proposed taking of all
or any part of the Project or any right therein by Eminent Domain, the Company
shall give prompt notice thereof to the Issuer, the Credit Facility Issuer and
the Trustee. Each such notice shall describe generally the nature and extent of
such damage, destruction, taking loss, proceeding or negotiations.
ARTICLE VII
SPECIAL COVENANTS
Section 7.1. Access to the Project and Inspection.
The Trustee and the Issuer shall have the right, at all reasonable times
upon the furnishing of reasonable notice to the Company under the circumstances,
to enter upon the Project Site and to examine and inspect the Project.
Section 7.2. Further Assurances and Corrective Instruments.
Subject to the provisions of the Indenture, the Issuer and the Company
agree that they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements and
amendments hereto and such further instruments as may reasonably be required for
correcting any inadequate or incorrect description of the Project, and for
carrying out the intention or facilitating the performance of this Loan
Agreement.
Section 7.3. Tax and Arbitrage Covenants; Notice of Event of
Taxability.
(a) Notwithstanding any other provision hereof, the Company covenants and
agrees that it shall at all times do and perform all acts and things necessary
or desirable and within its reasonable control in order to assure that interest
paid on the Bonds shall, for the purpose of federal income taxation, not be
included in gross income of the recipients thereof, except in the event that
such recipient is a "substantial user" or "related person" within the meaning of
Section 103(b) of the 1954 Code or Section 147(a) of the Code.
(b) Neither the Company nor the Issuer shall take any action or fail to
take any action, and the Company covenants that it will not approve the
Trustee's taking any action or failing to take any action or making any
investment or use of the proceeds of the Bonds, if such action, use or failure
would adversely affect the tax-exempt status of the interest on the
Bonds under Section 103 of the Code or cause any of the Bonds to be an
"arbitrage bond" within the meaning of Section 148 of the Code and the Treasury
Regulations as the same may be applicable to the Bonds at the time of such
action, investment or use.
(c) The Company shall give prompt written notice to the Issuer and the
Trustee of the filing by the Company of any statement, tax schedule, return or
document with the Internal Revenue Service which discloses that an Event of
Taxability shall have occurred and its receipt of any written advice from the
Internal Revenue Service that an Event of Taxability shall have occurred.
(d) The Company acknowledges that it has examined, executed and delivered
the Tax Regulatory Certificate and its terms relating to compliance with the
Code and shall comply with the covenants, instructions and guidelines contained
in the Tax Regulatory Certificate. The Company's obligation to make any payments
of Rebate Amounts (as defined in the Tax Regulatory Certificate) required by the
Tax Regulatory Certificate and to prepare and furnish to the Issuer and the
Trustee the statements and forms described therein shall survive payment in full
of the Bonds notwithstanding any provision of this Loan Agreement to the
contrary.
(e) The Company and the Issuer will furnish accurate information necessary
to enable Bond Counsel to make any certifications which might be required under
the Regulations.
(f) Whenever the Issuer shall be required to file, deliver or execute,
or produce any reports, notices or other documents under the Code or the
Regulations while the Bonds are outstanding, the Company shall furnish or cause
the proper person to furnish in due time to the Issuer, through the attorney for
the Issuer, the completed form of such report, notice or other required document
together with (a) a certification by the Company or other proper person required
to provide information that such document is accurate, and (b) if requested by
the Issuer or if otherwise required herein or in the Indenture, an opinion of
Bond Counsel addressed to the Issuer that the report or other document is not in
violation of any provision of law or of the Issuer Documents or other documents
constituting a part of the transcript of proceedings relating to the issuance of
the Bonds and that such report, notice or other required document meets the
legal requirements for such filing, delivery or execution. In the event of the
failure or refusal of the Company or other proper person to comply with this
provision, the Company agrees to pay the statement for attorney's fees and
administrative time presented by the Issuer for filing, delivering or executing
such report or documents, such statement to be paid within thirty (30) days
after written notice to the Company by the Issuer.
In order to insure that interest on the Bonds is not and will not become
subject to federal income taxes as a result of failure of the Bonds to satisfy
the requirement of Section 149(e) of the Code, the Company covenants with the
Issuer and the Trustee that it will, on or before the date of issuance of the
Bonds supply to the Issuer and the Trustee all information required under
Internal Revenue Service Form 8038, Information Return for Private Activity Bond
Issues (Form 8038), including without limitation the following:
(a) the date of issue, the amount of lendable proceeds of the issue, and
the stated interest rate, term and face amount of each obligation which
is part of the issue;
(b) the name of the applicable elected representative who approved the
issue, or a description of the voter referendum by which the issue was approved;
and
(c) a description of any property to be financed from the proceeds of the
issue.
The Company further covenants that on or before the due date thereof, it
will cause Form 8038 to be completed, executed and filed with the appropriate
office of the Internal Revenue Service.
Section 7.4. Recording and Filing; Other Instruments.
(a) The Company covenants that it will, at its expense, cause Counsel in
the State to take all steps as are reasonably necessary to render an opinion to
the Issuer and the Trustee not earlier than sixty (60) nor later than thirty
(30) days prior to each anniversary date occurring at five-year intervals after
the issuance of the Bonds to the effect that all financing statements,
continuation statements, notices and other instruments required by applicable
law have been recorded or filed or re-recorded or re-filed in such manner and in
such places required by law in order fully to preserve and protect the rights of
the Trustee in the granting by the Issuer of certain rights of the Issuer,
pursuant to the Indenture, under this Loan Agreement and the Note.
(b) The Company and the Issuer shall execute and deliver all instruments
and shall furnish all information and evidence deemed necessary or advisable by
such Counsel to enable him to render the opinion referred to in subsection (a)
of this Section. The Company shall file and re-file and record and re-record or
cause to be filed and re-filed and recorded and re-recorded all instruments
required to be filed and re-filed and recorded or re-recorded pursuant to the
opinion of such Counsel and shall continue or cause to be continued the liens of
such instruments for so long as the Bonds shall be outstanding, except as
otherwise required by this Loan Agreement.
Section 7.5. Administrative Expenses.
The Company shall pay to or for the account of the Issuer within thirty
(30) days after notice thereof all reasonable costs and expenses incurred by the
Issuer in connection with the financing and administration of the Project,
including, without limitation, the costs of administering this Loan Agreement
and the fees and expenses of the Trustee, attorneys, consultants and others.
Section 7.6. Indemnity Against Claims.
(a) The Company will pay and discharge and will indemnify and hold
harmless the Issuer and the Trustee from (1) any lien or charge upon amounts
payable hereunder by the Company to the Issuer, (2) any taxes, assessments,
impositions and other charges in respect of the Project, and (3) any claim of
any kind or character whatsoever arising from, connected with or in any way
related to the Bonds or the Project except such claims that result from the
gross negligence or willful misconduct of the Issuer or the Trustee.
(b) If any claim of any such lien or charge upon payments, or any such
taxes, assessments, impositions or other charges, are sought to be imposed, the
Issuer or the Trustee, as the case may be, will give prompt notice to the
Company, and the Company shall have the sole right and duty to assume, and shall
assume, the defense thereof, with full power to litigate, compromise or settle
the same in its sole discretion.
Section 7.7. Release and Indemnification.
The Company shall at all times protect and hold the Issuer and its members,
officers, employees and agents harmless against any claims or liability
resulting from any loss or damage to property or any injury to or death of any
person that may be occasioned by any cause whatsoever pertaining to the Bonds,
the Project or the use thereof, including without limitation any lease thereof
or assignment of its interest in this Agreement, such indemnification to include
reasonable expenses and attorneys' fees incurred by the Issuer and its members,
officers, employees, attorneys and agents in connection therewith, provided that
such indemnity shall be effective only to the extent of any loss that may be
sustained by the Issuer, its members, officers, employees, attorneys and agents
in excess of the Net Proceeds received by it or them from any insurance carrier
with respect to such loss and provided further that the benefits of this Section
7.7 shall not inure to any person other than the Issuer and its members,
officers, employees, attorneys and agents. In case any action or proceeding is
brought against the Issuer or any of its members, officers, employees or agents
by reason of any such claim, the affected party shall notify the Company and the
Company shall resist or defend such action or proceeding and control the conduct
thereof; provided, however, that the Issuer shall have the right to retain
separate counsel, with the fees and expenses to be paid by the Company, if
representation of the Issuer would be inappropriate due to an actual conflict of
interest, as reasonably determined by the Issuer or the Company, between the
Issuer and the Company. The Issuer and its members, officers, employees and
agents shall cooperate and join with the Company at the expense of the Company
as may be required in connection with any such action or proceeding. The Company
shall not be responsible for any settlement reached without the Company's
consent.
Section 7.8. Additional Information.
The Issuer and the Trustee are authorized to provide information concerning
the outstanding principal amount and payment history of, and other information
pertaining to, the Bonds or the Note to any agency or regulatory authority of
the State requesting such information.
Section 7.9. Default Certificates.
The Company shall deliver to the Trustee forthwith, upon obtaining
knowledge of any Event of Default hereunder or under the Note, the Indenture, or
the Reimbursement Agreement, a certificate of the Company specifying the nature
and period of existence thereof and what action the Company proposes to take
with respect thereto.
Section 7.10. Observe Laws.
The Company shall observe all applicable laws, regulations and other
valid requirements of any regulatory authority with respect to its operations at
the Project.
Section 7.11. Election.
The Issuer hereby elects to have the provisions of Sections 144(a)(4) of
the Code apply to the Bonds. In support of this election, the Issuer states as
follows:
(a) The name of the Issuer is:
Hillsborough County Industrial Development Authority
and its address is:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(b) The principal user of the Project will be:
▇▇▇▇▇▇ Controls, Inc.
Employer Identification Number: ▇▇▇▇▇▇▇▇▇
(c) The Bonds are in the principal amount of $4,765,000, and are to be
issued on August 4, 1994. Except for the Prior Bonds (which will be paid in full
and redeemed within 90 (ninety) days of the date of issuance of the Bonds),
there are no outstanding prior issues the proceeds of which have been or are to
be used primarily with respect to facilities located or to be located in the
County, the principal users of which is or will be the Company or any Related
Persons.
(d) There were no "Section 103(b)(6)(d) capital expenditures by the
Issuer," as that term is defined in the Regulations, which were paid or incurred
during the three (3) years preceding the date of issuance of the Prior Bonds to
facilities located in Hillsborough County the principal user of which is or will
be the Company or any Related Person, except as described in the Tax Regulatory
Certificate of the Company.
(e) Except for the Bonds and the Prior Bonds, there is no outstanding
issue of qualified small issue bonds (as that term is used in Section
141(e)(1)(D) of the Code) issued on behalf of the Company, the proceeds of which
have been or will be issued primarily with respect to:
(1) Any facility located in whole or in part in the County; or
(2) Any "contiguous or integrated facility" (within the meaning
of Section 1.103-10(b)(2)(ii)(e) of the Regulations) with respect to any
facility located in whole or in part in the County.
Section 7.12. No Warranty of Condition of Suitability by the Issuer.
THE ISSUER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE
CONDITION, TITLE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS OF THE PROJECT
OR THAT IT IS OR WILL BE SUITABLE FOR THE COMPANY'S PURPOSES OR NEEDS.
Section 7.13. Redemption of Prior Bonds.
The Company hereby undertakes to refund the Prior Bonds on or before
November 1, 1994 pursuant to Section 401 of the Indenture. In connection with
such refunding, the Company or ▇▇▇▇▇ Industries, Inc. shall pay all additional
amounts sufficient to pay the principal of and interest on the Prior Bonds to
the date of redemption thereof and to pay directly all fees, charges and
expenses of the holders of the Prior Bonds and of the Prior Trustee in
connection with the redemption of the Prior Bonds.
ARTICLE VIII
ASSIGNMENT, LEASING AND SELLING
Section 8.1. Assignment of this Loan Agreement or Lease or Sale of
the Project by the Company.
With the prior written consent of the Credit Facility Issuer, the rights of
the Company under this Loan Agreement may be assigned, and the Project may be
leased or sold as a whole or in part, without the necessity of obtaining the
consent of the Issuer or the Trustee, subject, however, to the following
conditions:
(a) without the prior written consent of the Credit Facility Issuer and
the Issuer, no assignment, transfer, sale or lease shall relieve the Company
from primary liability for any of its obligations hereunder, and if any such
assignment, transfer, sale or lease occurs, the Company shall continue to remain
primarily liable for the payments specified herein and in the Note and for
performance and observance of the other agreements on its part herein provided
to be performed and observed by it; and the Company shall also provide the
Trustee with an approving opinion of Bond Counsel to the effect that such
assignment, transfer, sale or lease will not adversely affect the status of
interest on the Bonds for federal tax purposes.
(b) the assignee, lessee or purchaser shall assume the obligations of
the Company hereunder to the extent of the interest assigned, leased or sold;
and
(c) the Company shall, within thirty (30) days after the delivery thereof,
furnish or cause to be furnished to the Issuer and to the Trustee a true and
complete copy of each such assignment, instrument of transfer, lease or sale
agreement, as the case may be, together with any instrument of assumption.
Section 8.2. Restrictions on Transfer of the Issuer's Rights.
Except for the assignment made pursuant to the Indenture of certain of
its rights under this Loan Agreement and its pledge of the Note, endorsed
without recourse to the order of the Trustee, to the Trustee as security
pursuant to the Indenture, the Issuer will not during the term of this Loan
Agreement sell, assign, transfer or convey any of its interests in this
Loan Agreement or the Note.
Section 8.3. Assignment by the Issuer.
It is understood, agreed and acknowledged that the Issuer, as security for
payment of the principal of and interest on the Bonds, will grant to the Trustee
pursuant to the Indenture, inter alia, certain of its right, title and interest
in and to this Loan Agreement (reserving certain of its rights, as more
particularly described in the Indenture) and will pledge the Note, endorsed as
aforesaid, to the Trustee as security, and the Company hereby assents to such
assignment and pledge.
Section 8.4. Merger of Issuer.
(a) Nothing contained in this Loan Agreement shall prevent the
consolidation of the Issuer with, or merger of the Issuer into, or transfer of
title to the Project to, any other political subdivision, provided that:
(1) the tax-exempt status of the interest on the Bonds shall not
be adversely affected thereby, and
(2) upon such consolidation, merger or transfer, the due and
punctual performance and observance of all the agreements and conditions of
this Loan Agreement to be kept and performed by the Issuer shall be
expressly assumed in writing by the political subdivision resulting from
such consolidation or surviving such merger or to which such merger was
made.
(b) Within thirty (30) days after the consummation of any such
consolidation, merger or transfer of title, the Issuer shall give notice
thereof, in reasonable detail to the Company and the Trustee. The Issuer
promptly shall furnish such additional information with respect to any such
transaction as the Company or the Trustee reasonably may request.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined.
The term "Event of Default" or "Default" shall mean any one or more of the
following events:
(a) the failure by the Company to pay or cause to be paid when due any
payment of principal of or interest on or other amount payable under the Note.
(b) the failure of the Issuer to pay or cause to be paid when due any
payment of principal of or interest on or other amount payable under the Bonds.
(c) the failure of the Company to perform any of its obligations under
Section 7.3 hereof.
(d) the occurrence of an "Event of Default" or "event of default"
under any of the other Bond Documents.
(e) any representation or warranty of the Company contained in
Section 2.2 hereof or in any document, instrument or certificate delivered
pursuant hereto or to the Indenture or in connection with the issuance and
sale of the Bonds shall be false, misleading or incomplete in any material
respect on the date as of which made.
(f) failure by the Company to observe or perform any covenant, condition
or agreement on the part of the Company under the Note or this Loan Agreement,
other than as referred to in the preceding paragraphs of this Section 9.1, for a
period of thirty (30) days after written notice, specifying such failure and
requesting that it be remedied, is given to the Company by the Issuer or the
Trustee.
(g) the commencement against the Company of an involuntary case under
the federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or of any action or proceeding for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or for the winding-up or
liquidation of its affairs and the continuance of any such case, action, or
proceeding unstayed and in effect for a period of thirty (30) consecutive days.
(h) the commencement by the Company of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by it to, or its acquiescence in the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
the making by it of or the consent by it to any assignment for the benefit of
creditors, or the failure of the Company generally to pay its debts as such
debts become due, or the taking of any action by the Company in furtherance of
any of the foregoing.
Section 9.2. Remedies on Default.
(a) If Payment of the Bonds shall not have been made, whenever any Event
of Default referred to in Section 9.1 hereof shall have happened and shall not
have been waived:
(1) The Issuer may, by written notice, declare all installments
of principal repayable pursuant to the Note for the remainder of the term
thereof to be immediately due and payable, whereupon the same, together
with accrued interest thereon as provided for in the Note, shall become
immediately due and payable without presentment, demand, protest or any
other notice whatsoever, all of which are hereby expressly waived by the
Company; provided, however, all such amounts shall automatically be and
become immediately due and payable without notice upon the occurrence of
any event described in Section 9.1(g) or 9.1(h) hereof, which notice the
Company hereby expressly waives.
(2) The Issuer may take whatever other action at law or in
equity may appear necessary or desirable to collect the amounts payable
pursuant to the Note then due and thereafter to become due, or to enforce
the performance and observance of any obligation, agreement or covenant of
the Company under this Loan Agreement or under any of the other Bond
Documents.
(b) In the enforcement of the remedies provided in this Section 9.2, the
Issuer may treat all reasonable expenses of enforcement including,
without limitation, legal, accounting and advertising fees and expenses, as
additional amounts payable by the Company then due and owing and the Company
agrees to pay such additional amounts upon demand.
Section 9.3. Application of Amounts Realized in Enforcement of
Remedies.
Any amounts collected pursuant to action taken under Section 9.2 hereof
shall be paid to the Trustee and applied to the payment of, first, any costs,
expenses and fees incurred by the Issuer and the Trustee as a result of taking
such action; second, to the extent permitted by law, any interest which shall
have accrued on any overdue interest and any accrued interest on any overdue
principal of the Bonds at the rate set forth in the Bonds; third, any overdue
interest on the Bonds; fourth, any overdue principal of the Bonds; fifth, the
outstanding principal balance of the Bonds. If Payment of the Bonds shall have
been made, any remaining moneys shall be applied in accordance with Section
911(b) of the Indenture.
Section 9.4. No Remedy Exclusive.
No remedy herein conferred upon or reserved to the Issuer is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Loan Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon the
occurrence of an Event of Default shall impair any such right or power or shall
be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient.
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses.
In connection with any Event of Default, if the Issuer or the Trustee
employs attorneys or incurs other expenses for the collection of amounts payable
hereunder or for the enforcement of the performance or observance of any
covenants or agreements on the part of the Company herein contained, the Company
agrees that it will on demand therefor pay to the Issuer or the Trustee the
reasonable fees of such attorneys and such other reasonable expenses so incurred
by the Issuer or the Trustee.
Section 9.6. Correlative Waivers.
If an event of default under Section 901 of the Indenture shall be cured or
waived and any remedial action by the Trustee rescinded, any correlative default
under this Loan Agreement shall be deemed to have been cured or waived.
ARTICLE X
PREPAYMENTS
Section 10.1. Optional Prepayments.
(a) The Company is hereby granted, and shall have, the option to prepay
the unpaid principal of the Note in whole or in part in accordance with and as
set forth in Section 701 of the Indenture with respect to the
prepayment of the Bonds; provided, all prepayments shall be made in immediately
available funds and with interest accrued to the date of prepayment and that any
prepayment of the Note in part shall be applied to unpaid installments of
principal in inverse order of maturity. Any prepayment pursuant to this
subsection (a) shall be made by the Company taking, or causing the Issuer to
take, the actions required (1) for Payment of the Bonds, in the case of
prepayment of the Note in whole, or (2) to effect prepayment of less than all of
the Bonds according to their terms in the case of a partial prepayment of the
Note.
(b) In the event of damage, destruction or condemnation of the Project
or any part thereof, the Company may, at its option, pursuant to Section 6.5
hereof and without penalty or premium, prepay the Note in whole or in part;
provided that any such prepayment shall be made in immediately available funds
with the interest accrued to the date of whole or partial prepayment. Any
prepayment pursuant to this subsection (b) shall be made by the Company taking,
or causing the Issuer to take, the actions required for the full or partial
prepayment of the Bond as provided for in subsection (a) hereof.
(c) To exercise the option granted in subsection (a) or (b) of this
Section 10.1, the Company shall give written notice to the Issuer and the
Trustee which shall specify therein (1) the date of the intended prepayment of
the Note, which shall not be less than thirty (30) nor more than sixty (60) days
from the date the notice is mailed and (2) the principal amount of the Note to
be prepaid. When given, such notice shall be irrevocable by the Company.
Section 10.2. Mandatory Prepayments.
(a) In the event of a Determination of Taxability, the Company shall,
(1) on a date selected by the Company not more than one hundred eighty (180)
days following the date of the Determination of Taxability, prepay the entire
unpaid principal balance of the Note in full and interest thereon, without
premium, as provided therein. Immediately upon the occurrence of a Determination
of Taxability, the Company shall notify the Issuer and the Trustee of the date
selected for payment pursuant to this Section 10.2.
(b) In the event any Credit Facility is not renewed and an Alternate
Credit Facility has not been provided in accordance with Section 603 of the
Indenture, the Company shall on or before the Interest Payment Date occurring
closest to but not after fifteen (15) days prior to the expiration date of the
then current Credit Facility, prepay the entire unpaid principal balance of the
Note in full. The Company shall promptly notify the Issuer and the Trustee of
the date selected for such payment.
Section 10.3. Other Mandatory Prepayments.
The amounts required to be applied to the prepayment of the Note by
Sections 5.3 and 6.5 hereof shall be applied by the Company to prepay, together
with accrued interest, all or a portion of the unpaid principal of the Note.
Such prepayment shall be made by the Company taking, or causing the Issuer to
take, the actions required (a) for payment of the Bonds, whether by redemption
prior to the maturity or by payment at maturity, or (b) to effect the purchase,
redemption or payment at maturity of less than all of the installments of
principal of the Bonds in inverse order of their
maturities.
ARTICLE XI
REBATE PROVISIONS
Section 11.1. Creation of the Rebate Fund.
(a) The Issuer shall create and establish with the Trustee a special
trust fund in the name of the Issuer to be designated by the Trustee and which
is referred to herein as the Rebate Fund (the "Rebate Fund"), which shall be
held, invested, expended and accounted for in accordance with this Loan
Agreement.
(b) Moneys in the Rebate Fund shall be held in trust by the Trustee
and, subject to Section 7.3 hereof, shall be held for the benefit of the United
States as contemplated under the provisions of this Loan Agreement and shall not
be considered to be held for the benefit of the Issuer, the Company, the Trustee
or the owners of the Bonds.
ARTICLE XII
MISCELLANEOUS
Section 12.1. References to the Bonds Ineffective After Bonds Paid.
Upon Payment of the Bonds, all references in this Loan Agreement to the
Bonds shall be ineffective and the Issuer and any owner of the Bonds shall not
thereafter have any rights hereunder, excepting reporting and payment of rebate
payments under Section 7.3 hereof and rights of the Issuer to indemnification
and payment of expenses contained, without limitation, in Sections 7.5, 7.6 and
7.7 hereof.
Section 12.2. No Implied Waiver.
In the event any agreement contained in the Note or this Loan Agreement
should be breached by either party and thereafter waived by the other party,
such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach thereunder or hereunder. Neither any failure
nor any delay on the part of the Trustee to exercise any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege.
Section 12.3. Issuer Representative.
Whenever under the provisions of this Loan Agreement the approval of the
Issuer is required or the Issuer is required to take some action at the request
of the Company, such approval shall be made or such action shall be taken by the
Issuer Representative; and the Company, the Trustee and the Bondholders shall be
authorized to rely on any such approval or action.
Section 12.4. Company Representative.
Whenever under the provisions of this Loan Agreement the approval of the
Company is required or the Company is required to take some action at the
request of the Issuer, such approval shall be made or such action shall be taken
by the Company Representative; and the Issuer, the Trustee and the Bondholders
shall be authorized to act on any such approval or action.
Section 12.5. Notices.
(a) All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when delivered by hand delivery or
mailed by first class, postage prepaid, registered or certified mail, or sent by
nationally-recognized overnight courier addressed as follows:
(1) if to the Issuer: Hillsborough County Industrial
Development
Authority
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
Suite 100
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
(2) if to the Company: ▇▇▇▇▇▇ Controls, Inc.
c/▇ ▇▇▇▇▇ Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Corporate
Controller)
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(3) if to the Trustee: The First National Bank of Boston
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
(b) The Issuer, the Company or the Trustee may, by notice given hereunder,
designate from time to time any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 12.6. If Payment or Performance Date Is Other Than a Business Day.
If the specified or last date for the making of any payment, the
performance of any act or the exercising of any right, as provided in this Loan
Agreement, shall be a day other than a Business Day, such payment may be made or
act performed or right exercised on the next succeeding Business Day; provided
that interest shall accrue during any such period during which payment shall not
occur.
Section 12.7. Binding Effect.
This Loan Agreement shall inure to the benefit of and shall be binding upon
the Issuer, the Company and their respective successors and assigns, subject to
the provisions of Section 8.3 hereof.
Section 12.8. Severability.
In the event any provision of this Loan Agreement or the Note shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof or
thereof.
Section 12.9. Amendments, Changes and Modifications.
Subsequent to the issuance of the Bonds and prior to Payment of the Bonds,
this Loan Agreement and the other Bond Documents, may not be effectively
amended, changed, modified, altered or terminated except in accordance with the
Indenture.
Section 12.10. Execution in Counterparts.
This Loan 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, and no one counterpart of which need be executed by all parties.
Section 12.11. Applicable Law.
This Loan Agreement shall be governed by and construed in accordance with
the laws of the State.
Section 12.12. No Charge Against Issuer Credit.
No provision hereof shall be construed to impose a charge against the
general credit of the Issuer or any personal or pecuniary liability upon any
member, official, employee or agent of the Issuer.
Section 12.13. Issuer Not Liable.
Notwithstanding any other provision of this Loan Agreement (a) the Issuer
shall not be liable to the Company, the Trustee, any Bondholder or any other
Person for any failure of the Issuer to take action under this Loan Agreement,
and (b) except with respect to any action for specific performance or any action
in the nature of a prohibitory or mandatory injunction, neither the Issuer nor
any officer or member of the Issuer nor any other official, employee, attorney
or agent of the Issuer shall be liable to the Company, the Trustee, any
Bondholder or any other Person for any action taken by the Issuer or by any of
its officers, servants, agents or employees or for any failure to take action
under this Loan Agreement or the Indenture except for the Issuer's willful
misconduct. In acting under this Loan Agreement, or in refraining from acting
under this Loan Agreement, the Issuer may conclusively rely on the advice of its
counsel.
Section 12.14. Expenses.
The Company agrees to pay all reasonable fees and expenses incurred in
connection with the preparation, execution, delivery, modification, waiver, and
amendment of this Loan Agreement, the other Bond Documents and related
documents, and the fees and expenses of bond counsel, counsel for the Issuer and
counsel for the Trustee in connection therewith or in connection with any
transactions contemplated thereby. The Company also agrees to pay to the
Trustee, as and when the same become due, its reasonable fees for services
rendered and its expenses incurred as Trustee, including the reasonable fees of
its counsel, and such other amounts as the Company herein assumes or agrees to
pay, including costs or expenses necessary to cancel and discharge the
Indenture. The Company also agrees to pay all expenses incurred by the Trustee
or the Issuer in collection of any indebtedness incurred hereunder in the event
of default by the Company, including reasonable attorneys fees.
Section 12.15. Amounts Remaining with the Trustee.
Any amounts remaining in the Bond Fund or otherwise in trust with the
Trustee under the Indenture or this Loan Agreement shall, after Payment of the
Bonds and all Administrative Expenses in accordance with this Loan Agreement, be
disbursed by the Trustee in accordance with the provisions of the Indenture or
otherwise as may be required by law.
IN WITNESS WHEREOF, the Issuer and the Company have caused this Loan
Agreement to be executed in their respective legal names by their duly
authorized representatives all as of the date first above written.
▇▇▇▇▇▇ CONTROLS, INC.
By /s/ (Signature)
Its: Assistant Treasurer
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By /s/ (Signature)
Its: Chairman