Exhibit 4.12
LOAN AGREEMENT
ELCO INDUSTRIES, INC.
AND
CITY OF LOGANSPORT, INDIANA
DATED AS OF SEPTEMBER 1, 1993
The rights of the City of Logansport, Indiana, under this Agreement
(except the right to receive payment for its expenses and the right to
receive indemnities) have been assigned to INB National Bank, as Trustee
under a Mortgage and Trust Indenture dated as of the date of this
Agreement, among Elco Industries, Inc., the Municipality and the Trustee.
TABLE OF CONTENTS
Section Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Exhibits
Section 1.1. Terms Defined . . . . . . . . . . . . . . . 2
Section 1.2. Rules of Interpretation . . . . . . . . . . 4
Section 1.3. Exhibits. . . . . . . . . . . . . . . . . . 5
ARTICLE II
The Loan and The Project
Section 2.1. Municipality's Representations, Warranties,
and Covenants . . . . . . . . . . . . . . . 6
Section 2.2. Company's Representations, Warranties, and
Covenants . . . . . . . . . . . . . . . . . 6
Section 2.3. The Project . . . . . . . . . . . . . . . . 8
Section 2.4. Mortgage, Security Agreement, and Title
Insurance . . . . . . . . . . . . . . . . . 8
Section 2.5. Granting of Easements . . . . . . . . . . . 9
Section 2.6. Release of Liens. . . . . . . . . . . . . . 9
ARTICLE III
The Bonds, Use of Proceeds, The Note
Section 3.1. Agreement to Issue Bonds. . . . . . . . . . 11
Section 3.2. Disbursements From Redemption Fund. . . . . 11
Section 3.3. The Company is Required to Pay in the Event
Redemption Fund is Insufficient.. . . . . . 11
Section 3.4. Investment of Redemption Fund and Bond Fund
Moneys. . . . . . . . . . . . . . . . . . . 11
Section 3.5. Covenants With Respect to Arbitrage . . . . 11
Section 3.6. Loan Payments and Other Amounts Payable . . 12
Section 3.7. Obligation of Company Unconditional . . . . 13
ARTICLE IV
Particular Covenants of the Company
Section 4.1. Consent to Assignment to Trustee. . . . . . 15
Section 4.2. Payment of Expenses of Issuance of Bonds. . 15
Section 4.3. Company to Maintain its Existence; Conditions
Under Which Exceptions Permitted. . . . . . 15
Section 4.4. Further Assurances and Corrective
Instruments. . . . . . . . . . . . . . . . 15
Section 4.5. Covenants of Company With Respect to Use of
Bond Proceeds.. . . . . . . . . . . . . . . 15
Section 4.6. Indemnification of Municipality and Trustee 16
Section 4.7. Right of Access to Project. . . . . . . . . 16
Section 4.8. Reports, Certificates, and Other Information 16
Section 4.9. Consolidated Tangible Net Worth . . . . . . 17
Section 4.10.Insurance . . . . . . . . . . . . . . . . . 17
Section 4.11.Taxes and Liabilities . . . . . . . . . . . 17
ARTICLE V
Maintenance, Taxes, and Insurance
Section 5.1. Maintenance and Modifications of Project
by Company . . . . . . . . . . . . . . . . 18
Section 5.2. Taxes, Other Governmental Charges, and
Utility Charges . . . . . . . . . . . . . . 18
Section 5.3. Insurance Required. . . . . . . . . . . . . 19
Section 5.4. Application of Net Proceeds of Insurance. . 19
Section 5.5. Additional Provision Respecting Insurance . 19
Section 5.6. Advances by Trustee . . . . . . . . . . . . 20
ARTICLE VI
Damage, Destruction, and Condemnation
Section 6.1. Damage and Destruction. . . . . . . . . . . 21
Section 6.2. Condemnation. . . . . . . . . . . . . . . . 22
ARTICLE VII
Prepayment of Note
Section 7.1. Optional Prepayment of Note . . . . . . . . 23
Section 7.2. Mandatory Prepayment of Note. . . . . . . . 23
Section 7.3. Extraordinary Event Prepayment of the Note. 23
Section 7.4. Notice of Prepayment. . . . . . . . . . . . 23
ARTICLE VIII
Events of Default and Remedies
Section 8.1. Events of Default . . . . . . . . . . . . . 24
Section 8.2. Remedies on Default . . . . . . . . . . . . 25
Section 8.3. Application of Moneys . . . . . . . . . . . 25
Section 8.4. Remedies Cumulative . . . . . . . . . . . . 26
Section 8.5. Delay or Omission Not a Waiver. . . . . . . 26
Section 8.6. Remedies Subject to Provisions of Law . . . 26
ARTICLE IX
Supplements and Amendments to This Agreement
Section 9.1. Supplements and Amendments to This
Agreement . . . . . . . . . . . . . . . . . 27
ARTICLE X
Miscellaneous
Section 10.1.Binding Effect. . . . . . . . . . . . . . . 28
Section 10.2.Severability. . . . . . . . . . . . . . . . 28
Section 10.3.Amounts Remaining in Bond Fund. . . . . . . 28
Section 10.4.Amendments, Changes, and Modifications. . . 28
Section 10.5.Execution in Counterparts . . . . . . . . . 28
Section 10.6.Notices . . . . . . . . . . . . . . . . . . 28
Section 10.7.References to Bonds Ineffective After
Bonds are Paid. . . . . . . . . . . . . . . 28
Section 10.8.Agreement for Benefit of Parties Hereto . . 28
Section 10.9.Waiver. . . . . . . . . . . . . . . . . . . 28
Section 10.10.Captions and Table of Contents . . . . . . 29
Section 10.11.Survival of Covenants, Representations, and
Warranties . . . . . . . . . . . . . . . . 29
Section 10.12.Applicable Law . . . . . . . . . . . . . . 29
Section 10.13.Holidays . . . . . . . . . . . . . . . . . 29
Exhibit A--Description of Project, Project Site, and Project Equipment
Exhibit B--Form of Promissory Note
LOAN AGREEMENT
This LOAN AGREEMENT has been executed as of September 1, 1993, by
and between ELCO INDUSTRIES, INC., a Delaware corporation (the "Company"),
and the CITY OF LOGANSPORT, INDIANA (the "Municipality").
RECITALS
1. Definitions of certain of the terms used in these Recitals
are set out in Article I hereof and Article I of the Indenture (as defined
in Article I hereof).
2. The Municipality previously issued its $3,500,000 principal
amount City of Logansport, Indiana, Economic Development Mortgage Revenue
Bonds, Series 1988 (Elco Industries, Inc. Project) (the "1988 Bonds"), the
proceeds of which were used to assist the Company with the acquisition,
construction, installation, and equipping of the Project which is located
on the Project Site near the Municipality.
3. The Company has determined that it can achieve a
significant cost savings through the refunding and refinancing of the 1988
Bonds. To assist the Company in achieving and effecting such savings, the
Municipality, pursuant to IC 5-1-5, IC 36-7-11.9, and IC 36-7-12, will
issue $3,500,000 aggregate principal amount of City of Logansport,
Indiana, Economic Development Refunding Revenue Bonds, Series 1993 (Elco
Industries, Inc. Project) (the "Bonds"), and will loan the proceeds
thereof to the Company, which will use such proceeds for the purpose of
retiring and redeeming the 1988 Bonds, all as described herein and in the
Indenture.
4. As evidence of its obligation to repay the funds loaned to
it under this Loan Agreement, the Company is issuing to the Municipality
its Note.
5. Pursuant to a Mortgage and Trust Indenture dated as of the
date of this Agreement, among the Company, the Municipality, and INB
National Bank, as Trustee, the Municipality will issue the Bonds and, as
security for the payment of the Bonds and the performance of the
obligations of the Municipality and the Company under the Indenture and
the Note, the Municipality will assign the Note and its rights under this
Agreement (except the right to receive payment for its expenses, the right
to receive indemnities, and rights relating to any amendments to this
Agreement) to the Trustee and the Company will grant to the Trustee a
mortgage on the Project Site and a security interest in the Project
Equipment. The Bonds will be payable solely out of the revenues and other
amounts derived from the Note and under this Agreement and shall not in
any respect be a general obligation of, an indebtedness of, or constitute
a charge against the general credit of the Municipality, the State of
Indiana, or any political subdivision thereof.
AGREEMENT
In consideration of the premises and the mutual covenants
contained herein, the Company and the Municipality agree as follows:
ARTICLE I
Definitions and Exhibits
Section 1.1. Terms Defined. As used in this Agreement, the
following terms shall have the following meanings unless the context
otherwise requires:
"Act" means IC 5-1-5, IC 36-7-11.9, and IC 36-7-12, as from time
to time amended.
"Agreement" means this Loan Agreement and any amendment and
supplement thereto.
"Agreement Term" means the period commencing on the date of this
Agreement and, subject to the provisions of this Agreement, ending on such
date as the Bonds have been fully paid and retired or provision for such
payment made as provided in the Indenture.
"Authorized Company Representative" means a person designated to
act on behalf of the Company by written certificate furnished to the
Municipality and the Trustee containing the specimen signature of the
person and signed on behalf of the Company by its President, any of its
Vice-Presidents, its Chief Financial Officer, its Secretary, or any of its
Assistant Secretaries. The certificate may designate an alternate or
alternates. The Authorized Company Representative may be an employee of
the Company.
"Bonds" means the $3,500,000 aggregate principal amount of the
City of Logansport, Indiana, Economic Development Refunding Revenue Bonds,
Series 1993 (Elco Industries, Inc. Project).
"Bond Fund" means the fund created in Section 402 of the
Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Elco Industries, Inc., a Delaware corporation,
and its successors and assigns.
"Consolidated Current Assets" and "Consolidated Current
Liabilities" means such assets and liabilities of the Company and its
subsidiaries on a consolidated basis as shall be determined in accordance
with generally accepted accounting principles to constitute current assets
and current liabilities, respectively; provided, however, that current
assets shall be determined after deduction of all applicable reserves and
deferred charges and current liabilities shall include the proper accruals
for taxes, bonuses, and other expenses resulting from the operations of
the Company and its subsidiaries to the date of such computation and all
Indebtedness payable on demand or within 12 months from the date of such
computation, including all serial maturity and sinking fund or other
payments or prepayments required to be made on Indebtedness (including the
Note) within 12 months after such date.
"Consolidated Net Tangible Assets" means the total amount of all
assets of the Company and its subsidiaries (less depreciation, depletion,
and other properly deductible valuation reserves) after deducting (i) all
items which in accordance with generally accepted accounting principles
would be included in the liability side of a consolidated balance sheet,
including deferred income taxes, deferred investment tax credits, and
Minority Interests, but excluding capital stock of any class, surplus, and
Funded Debt, and (ii) goodwill, patents, trade names, trademarks,
unamortized debt discount and expense, prepaid advertising, deferred
research and development expense, organization expense, and such other
assets as are properly classified as "intangible assets" in accordance
with generally accepted accounting principles. In determining the value
of assets hereunder, investments in and advances to persons other than
subsidiaries shall be taken at cost or book value, whichever is less.
"Consolidated Tangible Net Worth" means Consolidated Net Tangible
Assets, less all outstanding Funded Debt, all determined in accordance
with generally accepted accounting principles consolidating the Company
and its subsidiaries.
"Counsel" means an attorney-at-law (who may be counsel to the
Trustee, the Municipality, or the Company).
"Funded Debt" means (i) all capitalized obligations with respect
to leases required by generally accepted accounting principles to be
capitalized on a balance sheet of the lessee and (ii) all Indebtedness for
borrowed money or incurred in connection with the acquisition of assets
which has a final maturity of more than one year from the date of creation
thereof (or which is renewable or extendable at the option of the obligor
for a period or periods more than one year from the date of creation)
notwithstanding the fact that payments in respect thereof are required to
be made less than one year after the date thereof and notwithstanding that
any amount thereof is, at the time of any determination of Funded Debt,
also included in Consolidated Current Liabilities.
"Indebtedness" means (i) all items which in accordance with
generally accepted accounting principles would be included in determining
total liabilities as shown on the liability side of the balance sheet as
of the date at which Indebtedness is to be determined, other than capital
stock, capital surplus, earned surplus, retained earnings, and reserves
for deferred income taxes; (ii) Indebtedness secured by any mortgage,
pledge, or lien existing on property owned subject to such mortgage,
pledge, or lien, whether or not the Indebtedness secured thereby shall
have been assumed; and (iii) guarantees, endorsements, and other
contingent obligations and respective indebtedness of others.
"Indenture" means the Mortgage and Trust Indenture, dated as of
the date of this Agreement, among the Company, the Municipality, and the
Trustee, relating to the Bonds, and any indenture supplemental thereto.
"Loan" means the $3,500,000 loan by the Municipality to the
Company of the proceeds from the sale of the Bonds.
"Minority Interest" shall mean any shares of stock of any class
of a subsidiary (other than directors qualifying shares as required by
law) that are not owned by the Company and/or one or more of its
subsidiaries. Minority Interest shall be valued by valuing Minority
Interest constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater, and by
valuing Minority Interest constituting common stock at the book value of
capital and surplus applicable thereto adjusted, if necessary, to reflect
any changes from the book value of such common stock required by the
foregoing method of valuing Minority Interest and preferred stock.
"Municipality" means the City of Logansport, Indiana, and any
successor.
"Net Proceeds" means, when used with respect to any insurance
proceeds or any condemnation award, the amount remaining after deducting
all expenses (including attorneys' fees) incurred in the collection of
such proceeds or award from the gross proceeds thereof.
"1988 Bonds" means the City of Logansport, Indiana, Economic
Development Mortgage Revenue Bonds, Series 1988 (Elco Industries, Inc.
Project).
"Note" means the Note of the Company in substantially the form of
Exhibit B hereto and any Note issued in exchange therefor.
"Project" means the Project Site and the facilities described in
Part I of Exhibit A hereto.
"Project Equipment" means the equipment, machinery, and fixtures
listed and described in Part II of Exhibit A hereto.
"Project Cost" means and includes all those costs related to the
Project which are permitted to be financed under the Code, the Act, this
Agreement, and the Indenture and which do not result in a loss of the
exclusion from gross income for federal income tax purposes of the
interest on the Bonds under the Code.
"Project Site" means the real estate described in Part III of
Exhibit A on which the Project is located.
"Purchaser" means Robert W. Baird & Co. Incorporated.
"Redemption Fund" means the fund created in Section 302 of the
Indenture.
"Trustee" means INB National Bank, and any successor trustee or
co-trustee serving under the Indenture.
Section 1.2. Rules of Interpretation. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) "This Agreement" means this instrument as originally
executed and as it may from time to time be supplemented or amended.
(b) The words "herein," "hereof," and "hereunder" and other
words of similar import refer to this Agreement as a whole and not
to any particular Article, Section, or other subdivision.
(c) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular.
(d) All accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles.
(e) Any terms not defined herein but defined in the
Indenture shall have the same meaning herein.
(f) The terms defined elsewhere in this Agreement shall have
the meanings therein prescribed for them.
Section 1.3. Exhibits. The following Exhibits are a part of
this Agreement:
Exhibit A:Description of the Project (Part I), the Project
Equipment (Part II), and the Project Site (Part III)
Exhibit B:Form of Note, form of Note Registrar's Certificate of
Validation, and form of Assignment
ARTICLE II
The Loan and The Project
Section 2.1. Municipality's Representations, Warranties, and
Covenants.
(a) The Municipality represents and warrants that:
(i) The Municipality is a duly organized and existing
municipal corporation and political subdivision of the State of
Indiana, with full power and authority under the Act to enter into
the transactions contemplated by this Agreement and to carry out its
obligations hereunder.
(ii) The Municipality has duly authorized the issuance,
execution, and delivery of the Bonds and the execution and delivery
of this Agreement.
(b) The Municipality covenants that:
(i) The Municipality shall not take any action to interfere
with any obligation it may have with respect to the Bonds, the
proceedings authorizing the Bonds, or this Agreement.
(ii) The Municipality shall provide funds from the proceeds
from the sale of the Bonds for the redemption and retirement of the
1988 Bonds, and shall secure the payment of the Bonds by assigning
this Agreement (except the right to receive payment for its
expenses, the right to receive indemnities, and rights relating to
any amendment of this Agreement) and the Note to the Trustee
pursuant to the Indenture.
Section 2.2. Company's Representations, Warranties, and
Covenants. The Company makes the following representations and warranties
(all as of the date on which this Agreement has been executed) and in
addition, makes the following covenants:
(a) It is a duly organized and validly existing corporation
in good standing under the laws of the State of Delaware, has the
power and authority to own its properties and assets and to carry on
its business as now being conducted and as now contemplated, and has
full power and authority to issue the Note and to execute and
deliver this Agreement and the Indenture; all actions necessary for
the execution and delivery of the Note, this Agreement, and the
Indenture have been taken; and the Note will be a valid and binding
obligation of the Company.
(b) The execution, delivery, and performance of this
Agreement, the Note, and the Indenture will not conflict with or
result in a breach of, or a default under, the Company's Articles of
Incorporation, By-Laws, or any material agreement or instrument to
which the Company is a party or by which it is bound (excepting,
however, such agreements or instruments with respect to which the
Company has been required to and has obtained waivers or consents)
or result in the creation or imposition of any lien, charge, or
encumbrance upon any of the property or assets of the Company,
except for the lien of the Indenture.
(c) The 1988 Bonds were, to the best knowledge and belief of
the Company, exempt from federal and State of Indiana income
taxation when issued, as described in and subject to the limitations
contained in the offering circular for the 1988 Bonds, the Company
has no knowledge of any event occurring since the date of issuance
of the 1988 Bonds that adversely affects that tax-exempt status of
the 1988 Bonds and the Company has received no notification of any
such event from the Municipality, the trustee for the 1988 Bonds, a
holder of a 1988 Bond, the Internal Revenue Service, or the State of
Indiana.
(d) The "average maturity" of the Bonds (taking into account
their issue prices) does not exceed one hundred twenty percent
(120%) of the remaining "average reasonably expected economic life"
of the facilities originally financed with the proceeds of the 1988
Bonds (taking into account the respective cost of such facilities),
all as determined in accordance with the provisions of
Section 147(b) of the Code.
(e) No portion of the proceeds of the Bonds will be used to
provide any facility the primary purpose of which is retail food and
beverage service, automobile sales or services, or the provision of
recreation or entertainment, any private or commercial golf course,
country club, massage parlor, tennis club, skating facility
(including roller skating, skateboard, and ice skating), racquet
sports facility (including any handball or racquetball court), hot
tub facility, suntan facility, race track, airplane, skybox or other
private luxury box, health club facility, facility used for
gambling, or facility used for the sale of alcoholic beverages.
(f) The Bonds are not and shall not be "federally
guaranteed" as defined in Section 149(b) of the Code.
(g) No portion of the proceeds of the Bonds will be used to
acquire land (or an interest therein) or to acquire any property (or
an interest therein) where the first use of such property is not
pursuant to such acquisition.
(h) The aggregate authorized face amount of the Bonds
allocated to any "test period beneficiary," as such term is defined
in Section 144 of the Code, when increased by the outstanding tax-
exempt industrial development bonds of such beneficiary, does not
and shall not exceed $40,000,000.
(i) The Company represents and warrants that it is the
lawful owner of the Project Site, free and clear of all liens,
security interests, charges, or encumbrances whatever except
Permitted Encumbrances, and that the Company has full power and
lawful authority to mortgage the Project Site and the real property
improvements thereon and grant a security interest in the Project
Equipment to the Trustee; and that the Company has good and
marketable title to the Project Site except Permitted Encumbrances
and will preserve, warrant, and defend the same unto the Trustee
against the claims of all persons and parties.
(j) The execution, delivery, and performance by the Company
of this Loan Agreement and the Note do not require the consent or
approval of, the giving of notice of, the registration with, or the
taking of any other action in respect of, any federal, state, or
other governmental authority or agency not previously obtained or
performed.
(k) No litigation, environmental investigations, arbitration
proceedings, or governmental proceedings are pending or threatened
against the Company which would, if adversely determined, materially
and adversely affect the financial condition or continued operations
or properties of the Company and which the Company believes, after
consulting with its counsel, are reasonably likely to be adversely
determined.
(l) The financial statements of the Company as of June 30,
1993, presented to the Purchasers, present fairly the financial
condition of the Company and the results of its operations as of the
date of such statements in accordance with generally accepted
accounting principles and since such date there has been no material
adverse change in the financial condition of the Company.
(m) The Company will take no action which would (and will
omit no action reasonably within its power, the omission of which
would) cause the interest on the Bonds to become includable for
federal income tax purposes in the gross income of any Bondholder,
other than a Bondholder who is a "substantial user" of the Project
or a "related person" within the meaning and for the purpose of
Section 147 of the Code.
Section 2.3. The Project. The Company shall cause the Project
to continue to be used, throughout the term of this Agreement, as an
"economic development facility" within the meaning of the Act. The
failure or inability of the Company to use the Project, or to cause it to
be used, for the intended purposes shall not affect in any way the
Company's obligations under this Agreement or the Note and shall not be
deemed a breach or default under this Agreement as long as the use does
not affect the validity of the Bonds or result in the interest on the
Bonds becoming includable for Federal income tax purposes in the gross
income of a Bondholder.
Section 2.4. Mortgage, Security Agreement, and Title Insurance.
As security for the payment of the Bonds and the performance of its
obligations under the Indenture and the Note, the Company shall mortgage
the Project Site. The Company shall also grant a security interest in the
Project Equipment. The Company shall provide an ALTA mortgagee's policy
of title insurance issued by a title insurance company reasonably
satisfactory to the Purchaser in an amount not less than $3,500,000 which
policy shall be free and clear of all exceptions except Permitted
Encumbrances. Any Net Proceeds payable under such policy shall, at the
Trustee's option, be either (a) used to acquire and construct replacement
or substitute property for that to which title has been lost and such
property shall be subject to the lien of the Indenture, or (b) used to
redeem the Bonds or portions thereof on the earliest possible redemption
date.
Section 2.5. Granting of Easements. If no Event of Default
shall have happened and be continuing, the Company may at any time or
times, grant easements, licenses, rights-of-way (including the dedication
of public highways), and other rights or privileges in the nature of the
easements with respect to any property subject to the lien of the
Indenture, free from the lien of the Indenture, or release existing
easements, licenses, rights-of-way, and other rights or privileges, with
or without consideration, and the Municipality and the Trustee shall
execute and deliver any instrument necessary or appropriate to confirm and
grant or release any such easement, license, right-of-way, or other right
or privilege upon receipt of: (a) a copy of the instrument of grant or
release, (b) a written application signed by the Authorized Company
Representative requesting such instrument, (c) a certificate executed by
the Authorized Company Representative stating (i) that such grant or
release is not detrimental to the proper conduct of the business of the
Company, and (ii) that such grant or release will not impair the effective
use or interfere with the operation of the Project and will not materially
weaken, diminish or impair the security intended to be given by or under
the Indenture accompanied by a Certificate of an independent architect or
other expert reasonably acceptable to the Trustee to the effect that such
grant or release will not materially and adversely affect the operability
of the Project.
Section 2.6. Release of Liens. The Trustee shall, at the joint
written request of the Company and the Holders of a majority in aggregate
principal amount of the Bonds then outstanding (and without the necessity
of obtaining the consent of the Municipality), release any item of
collateral specified or referred to in the First, Second, or Third
Granting Clause of the Indenture from the lien of the Indenture. The
Municipality and the Trustee shall execute and deliver any instrument
necessary or appropriate to confirm and grant any such disposition or
release.
In addition to the foregoing, the Trustee shall, without the
necessity for obtaining the consent of the Municipality or the
Bondholders, release from the lien of the Indenture the Mortgaged Property
or any portion thereof at any time and from time to time provided that the
Company first furnishes the Trustee with, in the event that a portion of
the Mortgaged Property is to be released, the items set forth in
paragraphs 1 and 2 below, and in the event that the entire Mortgaged
Property is to be released, the items set forth in paragraphs (1)(iii)
and (2) below:
(1) A certificate of the Company containing or stating, as
the case may be (i) an adequate legal description of the portion of
the Mortgaged Property to be released, (ii) an "as-built" survey of
the portion of the Mortgaged Property to be released, (iii) that the
Company intends to exercise its privilege of having such Mortgaged
Property released, (iv) that the portion of the Mortgaged Property
with respect to which the release is requested is not needed to
operate the Project, or that the Company has reserved sufficient
right, title, and interest to fulfill such needs, and (v) that the
release will not materially impair ingress and egress to and from or
the operating unity of the Mortgaged Property; and
(2) Either: (i) cash equal to the current fair market value
of the Mortgaged Property or portion thereof to be released (which
value shall be determined by an independent appraisal), which cash
shall be deposited in the Bond Fund under the Indenture and used for
the purposes for which the Bond Fund exists as set forth in the
Indenture, including, to the extent possible, the redemption of
Bonds prior to maturity or (ii) a first mortgage lien in favor of
the Trustee (which lien may be subject to Permitted Encumbrances) on
real property owned and used in the operations of the Company, the
value of which property (determined as of the date on which such
property becomes subject to the mortgage lien described herein (the
"Substitution Date")) is, in the reasonably opinion of the Trustee,
who may rely on the opinion of an expert independent appraiser
selected by the Trustee, at least equal in value to the value
(determined as of the Substitution Date) of the Mortgaged Property
or portion thereof to be released. If the Company determines to
provide the Trustee the mortgaged land described herein, the
mortgage instrument shall be in a form reasonably acceptable to the
Trustee and shall be accompanied by (a) a policy of title insurance
in the full amount of the value of the property to be subject to the
mortgaged land described herein, issued by a title insurance company
that is both authorized to do business in Indiana and in all other
respects reasonably acceptable to the Trustee, and providing
coverage substantially similar to the coverage provided by the
policy of title insurance issued with respect to the Mortgaged
Property, and (b) an opinion of counsel as to the validity and
enforceability of such mortgage.
In addition to the foregoing, the Trustee shall, without the
necessity for obtaining the consent of the Municipality or the
Bondholders, release from the lien of the Indenture the Project Equipment
or any portion thereof at any time and from time to time provided that the
Company first furnishes the Trustee with cash equal to the value of the
portion of the Project Equipment to be released as determined by an
independent appraisal, which cash shall be deposited in the Bond Fund
under the Indenture and used for the purposes for which the Bond Fund
exists as set forth in the Indenture, including, to the extent possible,
the redemption of Bonds prior to maturity.
ARTICLE III
The Bonds, Use of Proceeds, The Note
Section 3.1. Agreement to Issue Bonds. In order to provide
funds to make the Loan, the Municipality shall issue the Bonds and sell
them to the Purchaser and deposit the proceeds with the Trustee as
follows:
(a) Into the Bond Fund, the accrued interest, if any, paid
by the Purchaser; and
(b) Into the Redemption Fund, the balance of the proceeds.
Section 3.2. Disbursements From Redemption Fund. The Indenture
authorizes the Trustee to make payments from the Redemption Fund to
National City Bank, Indiana (f/k/a Merchants National Bank & Trust Company
of Indianapolis), in its capacity as trustee with respect to the 1988
Bonds and solely for the purpose of discharging, redeeming, and retiring
the 1988 Bonds, provided, however, that any moneys remaining in the
Redemption Fund after such discharge, retirement, redemption, and
termination shall be promptly deposited in the Bond Fund. Payment as
aforesaid shall be made upon receipt by the Trustee of all materials and
documents necessary to evidence to the satisfaction of the Trustee that
the funds being disbursed hereunder are sufficient to discharge fully all
obligations of the Company created and existing in connection with the
1988 Bonds, together with all instruments and documents necessary to
evidence to the satisfaction of the Trustee the discharge of all liens and
encumbrances arising and existing by reason of the 1988 Bonds.
Section 3.3. The Company is Required to Pay in the Event
Redemption Fund is Insufficient. In the event the moneys in the
Redemption Fund should not be sufficient to pay the costs of retiring,
redeeming, and discharging the 1988 Bonds in full, the Company shall pay
that portion of the cost in excess of the moneys available in the
Redemption Fund.
Section 3.4. Investment of Redemption Fund and Bond Fund Moneys.
Any moneys held as part of the Redemption Fund and Bond Fund shall be
invested by the Trustee at the direction of the Company in Qualified
Investments which shall be direct obligations of the United States of
America or in other obligations backed by the full faith and credit of the
United States of America.
Section 3.5. Covenants With Respect to Arbitrage. The Company
and the Municipality covenant to each other and to and for the benefit of
the holders of the Bonds that no use will be made of the proceeds from the
issue and sale of the Bonds which, if such use could have been reasonably
expected on the date of issue of the Bonds, would have caused the Bonds to
be classified as arbitrage bonds within the meaning of Section 103(b)(2)
of the Code. As long as any Bonds are outstanding, the Municipality and
the Company shall not violate the requirements of the Code relating to
arbitrage bonds, and any regulations thereunder, including the requirement
of Section 148 of the Code relating to the rebate of certain amounts to
the United States government. The Company will provide to the Trustee
instructions relating to the permissible investment of Bond proceeds and
instructions and computations (using investment information provided by
the Trustee) relating to the amount required to be rebated to the United
States, all in conformity with Section 148 of the Code. The Company
reserves the right, however, to make any investment of proceeds permitted
under the laws of the State of Indiana, if the sections of the Code
relating to arbitrage bonds or the regulations thereunder are repealed or
relaxed or are held void by final judgment of a court of competent
jurisdiction, so long as the investment would not result in making the
interest on the Bonds includable in the gross income of the holders
thereof for purposes of Federal income taxation. In making investments,
the Company may rely on an opinion of counsel of recognized competence in
such matters. The Trustee may make any and all such investments through
its own bond department.
Section 3.6. Loan Payments and Other Amounts Payable.
(a) Concurrently with the sale of the Bonds, the Company shall
execute and deliver the Note to the Municipality, pursuant to which the
Company shall make payments sufficient to pay when due (whether at
maturity, upon call for redemption, by acceleration or otherwise) the
principal of, premium, if any, and interest on the Bonds. The Note shall
be issued as a fully registered note substantially in the form attached
hereto as Exhibit B. The Trustee shall act as Note Registrar and shall
cause books for the registration and for the transfer of the Note to be
kept at its principal office. Upon surrender for transfer of the Note at
the principal office of the Trustee, endorsed for transfer by the
registered owner or accompanied by an assignment executed by the
registered owner or his authorized attorney, the Trustee shall validate
and deliver in the name of the transferee a new Note which shall have been
executed by the Company. The person in whose name the Note is registered
shall be deemed the absolute owner thereof for all purposes, and
references to the holder of the Note shall mean the registered owner
thereof.
(b) The Company shall also pay when due (i) the reasonable and
necessary fees and expenses of the Trustee (including any reasonable and
necessary fees and expenses in its capacity as Note Registrar) and any
paying agent for services in connection with the Bonds as specified in
Section 903 of the Indenture, and (ii) the reasonable and necessary fees
and expenses of the Municipality, including reasonable attorneys' fees, in
connection with any default of the Company under this Agreement, the Note
or the Indenture.
(c) If the Company fails to make any of the payments required
in this Section 3.6 or in the Note, all unpaid items or installments shall
continue as an obligation of the Company until fully paid, and the Company
shall pay the same with interest thereon (to the extent permitted by law)
until paid at a per annum rate of interest equal to the per annum rate
then in effect on the Bonds plus two percent (2%), or at the maximum rate
permitted by law, whichever is lesser.
(d) All payments under this Section 3.6 shall be made by the
Company directly to the Trustee in immediately available funds and the
Trustee shall deposit all such payments into the Bond Fund provided that
payments under Section 3.6(b) shall be made by the Company directly to the
person entitled thereto. The amount of any money in the Bond Fund which
is either proceeds from the sale of any Bonds or earnings on investments
made pursuant to the provisions of the Indenture which has been set aside
by the Trustee, at the request of the Company, for payments of principal,
whether at maturity or upon redemption, of the Bonds shall be credited
against the obligation of the Company to pay the principal of the Note.
The amount of any money in the Bond Fund which is either proceeds from the
sale of any Bonds or earnings on investments made pursuant to the
provisions of the Indenture which has been set aside by the Trustee for
payments of interest on the Bonds shall be credited against the obligation
of the Company to pay interest on the Note. The principal amount of any
Bonds purchased by the Company and delivered to the Trustee, or purchased
by the Trustee and cancelled, shall be credited against the obligation of
the Company to pay the principal of the Note.
(e) If on any principal or interest payment date the balance in
the Bond Fund is insufficient to make the required payments of principal
of, premium, if any, and interest on the Bonds on that date, the Company
upon notice shall pay forthwith any deficiency to the Trustee.
(f) The Company shall not be obligated to make any further
payments under this Section 3.6, and the Company's liability to make
payments under this Section 3.6 shall cease, at any time that the entire
principal of and premium, if any, and interest on the Bonds shall have
been fully paid in accordance with their terms and the provisions of
Section 1201 of the Indenture (including without limitation, principal,
interest to maturity or earliest redemption date, as the case may be,
expenses of redemption, redemption premiums, and fees and expenses of the
Municipality, the Trustee, and any paying agent and any other costs and
fees required to be paid by the Company pursuant to this Agreement), or at
any time that there shall be in the Bond Fund an amount sufficient to pay
or redeem the Bonds in accordance with the provisions of Section 1201 the
Indenture (including without limitation, principal, interest to maturity
or earliest redemption date, as the case may be, expenses of redemption
and redemption premiums, and fees and expenses of the Municipality, the
Trustee and any paying agent and any other costs and fees required to be
paid by the Company pursuant to this Agreement) and all other requirements
of Section 1201 of the Indenture have been satisfied in full.
Section 3.7. Obligation of Company Unconditional. The
obligation of the Company to make the payments and to perform and observe
its other agreements pursuant to this Agreement and the Note shall be
absolute and unconditional and shall not be subject to reduction or delay
by set-off, counterclaim, abatement, or otherwise. Until such time as the
principal of, premium, if any, and interest on the Bonds shall have been
fully paid or provision for the payment thereof shall have been made in
accordance with Section 1201 of the Indenture (including without
limitation, principal, interest to maturity or earliest redemption date,
as the case may be, expenses of redemption, redemption premiums, and fees
and expenses of the Municipality, the Trustee and any paying agent and any
other costs and fees required to be paid by the Company pursuant to this
Agreement), and all other requirements of Section 1201 of the Indenture
have been satisfied in full, the Company (a) shall not suspend or
discontinue any payments pursuant to this Agreement or the Note, (b) shall
perform and observe all its other agreements contained in this Agreement
and the Note, and (c) except as provided in Article VII hereof, shall not
terminate this Agreement or the Note for any cause. Nothing contained in
this Agreement shall be construed to release the Municipality from the
performance of any of its obligations; and in the event the Municipality
shall fail to perform any such agreement on its part, the Company may
institute such action against the Municipality as the Company may deem
necessary to compel performance, provided that no such action shall
(i) violate the agreements on the part of the Company contained in the
first sentence of this Section 3.7, or (ii) diminish the amounts required
to be paid by the Company pursuant to Section 3.6 hereof.
ARTICLE IV
Particular Covenants of the Company
Section 4.1. Consent to Assignment to Trustee. The Company
acknowledges and consents to the assignment of the Note and of the
Municipality's rights hereunder (except the right to receive payment for
its expenses, the right to receive indemnities, and rights relating to any
amendments to this Agreement) to the Trustee pursuant to the Indenture.
Except as otherwise provided herein, the Company shall pay to the Trustee
all amounts payable under this Agreement and the Note, and the Company
acknowledges that the Trustee may enforce the rights, remedies, and
privileges granted to the Municipality hereunder.
Section 4.2. Payment of Expenses of Issuance of Bonds. In
addition to its payment obligations under Section 3.5 of this Agreement,
the Company shall pay for all the reasonable costs and shall be liable and
pay for any recording expenses, legal fees, printing expenses, and other
fees and expenses reasonably incurred or to be incurred by or on behalf of
the Municipality and the Trustee in connection with or as an incident to
the issuance and sale of the Bonds or any amendment or supplement to this
Agreement or the Indenture.
Section 4.3. Company to Maintain its Existence; Conditions Under
Which Exceptions Permitted. The Company shall during the term of this
Agreement maintain its corporate existence and will be duly qualified to
transact business in the State of Indiana and shall not voluntarily take,
or omit to take, any action that would cause the Company to be dissolved,
nor shall the Company sell, lease, transfer, or otherwise dispose of all
or substantially all of its assets or consolidate with or merge into
another corporation or permit one or more other corporations to
consolidate with or merge into it; except that the Company may consolidate
with or merge into another corporation incorporated and existing under the
laws of the United States of America or one of the states of the United
States of America or permit one or more other corporations to consolidate
with or merge into it or sell or otherwise transfer to another such
corporation all or substantially all of its assets as an entirety and may
thereafter dissolve, provided, that immediately after such action there is
no default under the Note, this Agreement, or the Indenture, and further
provided that if the Company is not the surviving, resulting or transferee
corporation (the "Survivor"), (a) the Survivor is qualified to do business
in the State of Indiana; (b) the Survivor shall expressly assume and agree
to perform all of the Company's obligations under this Agreement, the
Note, and the Indenture; (c) the Survivor shall be in compliance with the
Consolidated Tangible Net Worth requirements set forth in Section 4.9
hereof; and (d) such action shall have received the approval of the Board
of Directors of the Company acting upon and in response to the advice and
recommendation of senior management of the Company.
Section 4.4. Further Assurances and Corrective Instruments. The
Municipality and the Company shall execute and deliver, or cause to be
executed and delivered, such supplements hereto and further instruments as
may reasonably be required for carrying out the intention of or
facilitating the performance of this Agreement.
Section 4.5. Covenants of Company With Respect to Use of Bond
Proceeds. The Municipality is issuing the Bonds pursuant to an exemption
contained in the Code. It is the intention of the parties that the
interest on the Bonds remain excludable from gross income for purposes of
federal income taxation and, to that end, the Company covenants with the
Municipality and with the Trustee for the benefit of the future holders of
the Bonds, that it will never, insofar as it is able, permit Bond proceeds
to be expended or utilized in such a manner as to cause the loss of the
exclusion claimed.
Section 4.6. Indemnification of Municipality and Trustee. The
Company shall indemnify and hold the Municipality and the Trustee harmless
against any claim, loss, liability, or expense incurred without negligence
or bad faith or willful misconduct on the part of the Municipality or the
Trustee arising out of or in connection with this Agreement, the Note, the
Indenture, or the Project or Project Site, including reasonable attorneys'
fees and the costs and expense of defense against any such claim or
liability.
Section 4.7. Right of Access to Project. The Municipality, the
Trustee, and any of their duly authorized agents shall have the right at
all reasonable times during normal business hours after reasonable prior
notice, subject to the Company's safety and security requirements, to
enter upon the Project Site and to examine and inspect the Project without
interference or prejudice to the Company's operation. The Municipality
and its duly authorized agents shall have such right of access to the
Project as may be reasonably necessary for the proper maintenance of the
Project in the event of failure by the Company to perform its obligations
under Section 5.1 hereof.
The Municipality and the Trustee shall not disclose to any other
person any trade secrets or other information designated by the Company as
confidential and obtained by the Municipality or Trustee from the above
mentioned inspection and examination.
Section 4.8. Reports, Certificates, and Other Information. The
Company shall furnish to the Purchaser and the Trustee:
(a) Annual Statements. As soon as available and in any
event within one hundred twenty (120) days after the close of each
fiscal year of the Company ending after the date of this Agreement,
copies of the consolidated balance sheet of the Company, and a
consolidated statement of income, and a consolidated statement of
cash flow of the Company for such fiscal year, each of which shall
be audited by the Company's independent public accountants.
(b) Quarterly Statements. As soon as available, and in any
event within sixty (60) days after the close of each fiscal quarter
ending after the date of this Agreement (except the last quarter of
each fiscal year), copies of the consolidated balance sheet of the
Company as of the end of such quarter, a consolidated statement of
income and a consolidated statement of cash flow of the Company for
the portion of the fiscal year ended as of the end of such quarter.
All such statements may be prepared internally and shall be
accompanied by a certificate of an appropriate officer of the
Company that such financial statements have been prepared in
material conformity with generally accepted accounting principles
consistently applied (except for changes in which the independent
accountants for the Company concur), and present fairly the
financial position of the Company as of the dates of such
statements.
(c) No Default Certificate. Concurrently with providing
such financial statements, a certificate of the President, a Vice-
President or the Chief Financial Officer of the Company that after
reasonable investigation he has no knowledge of the occurrence of
any Event of Default under this Agreement or the Indenture (or of
any event that with the lapse of time or the giving of notice would
constitute an Event of Default), or if such officer shall have
obtained knowledge of any such Event of Default or default, he shall
disclose the same in such certificate and the nature thereof.
Section 4.9. Consolidated Tangible Net Worth. This Company will
keep and maintain Consolidated Tangible Net Worth at an amount not less
than:
(i) $42,000,000 during the period from the Closing Date to
and including June 30, 1994; or
(ii) $45,000,000 at any time on or after July 1, 1994.
Section 4.10. Insurance. Subject to Article V of this
Agreement, the Company shall maintain such insurance as may be required by
law and such other insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly situated.
Section 4.11. Taxes and Liabilities. Subject to Article V of
this Agreement, the Company shall pay when due all taxes, assessments, and
other liabilities, including trade accounts, except such as are being
contested in good faith and by appropriate proceedings and for which
appropriate reserves have been established and, as to trade accounts,
subject to industry practices.
ARTICLE V
Maintenance, Taxes, and Insurance
Section 5.1. Maintenance and Modifications of Project by
Company. The Company shall, during the Agreement Term and at its own
expense (a) keep the Project and the Project Site in as reasonably safe
condition as its operations shall permit, and (b) keep the Project in good
repair and in good operating condition, making from time to time all
necessary repairs thereto (including external and structural repairs) and
renewals and replacements thereof. Subject to the provisions of this
Agreement and the Indenture, the Company may, also at its own expense,
make from time to time any additions, modifications or improvements to the
Project, including specifically additions and expansions to the Project,
as it may deem desirable for its business purposes that do not materially
adversely affect the structural integrity of the Project or substantially
reduce its value; provided, that all such additions, modifications, and
improvements to the Project shall be located wholly within the boundary
lines of the Project Site or any other real property owned by the Company
and made subject to the mortgage created by the Indenture and that is
subject to no liens, restrictions, or encumbrances of any kind excepting
Permitted Encumbrances.
The Company shall not permit any mechanic's lien, security
interest, or other encumbrance to remain against the Project or the
Project Site for labor or materials furnished in connection with any
additions, modifications, improvements, repairs, renewals, or replacements
so made by it; provided, that if the Company shall first notify the
Trustee of its intention so to do, the Company may in good faith contest
any such mechanic's or similar lien filed or established against the
Project or the Project Site and in such event may permit the items so
contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom unless the Municipality or the Trustee
shall notify the Company that, by nonpayment of any such items, the lien
of the Indenture as to any part of the Project or the Project Site will be
materially endangered or the Project or the Project Site or any part
thereof will be subject to loss or forfeiture, in which event the Company
shall promptly pay and cause to be satisfied and discharged all such
unpaid items or shall promptly provide the Municipality and the Trustee
with a bond or other security, reasonably acceptable to the Trustee.
Section 5.2. Taxes, Other Governmental Charges, and Utility
Charges. The Company shall promptly pay, as the same become due, all
taxes and governmental charges of any kind whatsoever that may at any time
be lawfully assessed or levied against or with respect to the Project or
the Project Site, or any interest therein or any machinery, equipment, or
other property installed or bought by the Company therein or thereon
(including without limiting the generality of the foregoing, any taxes
levied upon or with respect to the revenues, income, or profits of the
Company from the Project which, if not paid, will become a lien on the
Project or the Project Site prior to or on a parity with the lien of the
Indenture and including all ad valorem taxes lawfully assessed upon the
Project or the Project Site), all utility and other charges incurred in
the operation, maintenance, use, occupancy, and upkeep of the Project or
the Project Site and all assessments and charges lawfully made by any
governmental body for public improvements that may be secured by lien on
the Project or the Project Site.
The Company may, at its expense and in its own name and behalf,
in good faith contest by appropriate proceedings any such taxes,
assessments, and other charges and, in the event of any such contest, may
permit the taxes, assessments, or other charges so contested to remain
unpaid during the period of such contest and any appeal therefrom,
provided during such period enforcement of any such contested item shall
be effectively stayed and appropriate reserves shall be established.
Section 5.3. Insurance Required. The Company shall insure or
cause to be insured during the Agreement Term the Project and the Project
Site, against such risks as are customarily insured against by businesses
of like size and type, paying as the same become due all premiums in
respect thereto, including but not necessarily limited to:
(a) Insurance upon the repair or replacement basis if
available, and otherwise to the full insurable value of the Project
(with deductible provisions not to exceed $100,000 in any one
casualty), against loss or damage by fire, lightning, windstorm,
hail, explosion, and similar risks and perils with uniform standard
extended coverage endorsement limited only as may be provided in the
standard form of extended coverage endorsement at the time in use in
Indiana.
(b) Boiler explosion insurance on any steam boilers,
pressure vessels, and pressure piping in an amount not less than the
full replacement cost of the Project (with deductible provisions not
to exceed $100,000), provided that such insurance need not be taken
out unless and until steam boilers, pressure vessels and pressure
piping have been installed in the Project.
(c) Comprehensive general public liability insurance to the
extent of $1,000,000 per occurrence against liability for bodily
injury, including death resulting therefrom, and damage to property
including loss of use thereof occurring on or in any way related to
the Project or the Project Site or any part thereof.
(d) Worker's compensation and occupational disease coverage
as required by the laws of the State of Indiana.
Section 5.4. Application of Net Proceeds of Insurance. The Net
Proceeds of the insurance carried pursuant to the provisions of
Section 5.3(a) and (b) hereof shall be paid and applied as provided in
Section 6.1 hereof, and the Net Proceeds of insurance carried pursuant to
the provisions of Section 5.3(c) and (d) hereof shall be applied toward
extinguishment or satisfaction of the liability with respect to which such
insurance proceeds have been paid.
Section 5.5. Additional Provision Respecting Insurance. All
insurance required in Section 5.3 hereof shall be taken out and maintained
in generally recognized responsible insurance companies selected by the
Company and qualified to do business in the State of Indiana. All
policies evidencing such insurance shall provide for payment to the
Company and the Trustee, as their respective interest may appear, and
shall not be cancelled or modified without at least ten (10) days' prior
written notice to the Trustee. The policies required by Section 5.3(a)
and 5.3(b) shall contain standard mortgagee clauses requiring that all Net
Proceeds of insurance resulting from any claim in excess of $250,000 for
loss or damage covered thereby be paid to the Trustee; provided, however,
that all claims, regardless of amount, may be adjusted by the Company with
the insurers, subject to approval of the Trustee to the extent that its
interests may appear as to any settlement of any claim in excess of
$250,000.
A certificate, or certificates, of the insurers that such
insurance is in force and effect, together with copies of the insurance
policies, shall be deposited promptly with the Trustee and, prior to the
expiration of any such policy, the Company shall furnish the Trustee with
evidence satisfactory to the Trustee that the policy has been renewed or
replaced, or is no longer required by this Agreement. The insurance
herein required may be contained in blanket policies now or hereafter
maintained by the Company.
Section 5.6. Advances by Trustee. In the event the Company
shall fail, as required herein, (a) to maintain the full insurance
coverage, (b) to keep the Project and the Project Site in a reasonably
safe condition as its operating condition will permit, (c) to keep the
Project in good repair and good operating condition, (d) to discharge any
mechanic's lien, security interest or other encumbrance, or (e) to pay all
taxes, other governmental charges, and utility charges, the Trustee may
(but shall be under no obligation to) take out the required policies of
insurance and pay the premiums on the same, make the required repairs,
renewals and replacements, discharge the lien or other encumbrance or pay
all taxes, other governmental charges and utility charges; and all amounts
so advanced therefor by the Trustee shall become an additional obligation
of the Company to the Trustee, which amounts, together with interest
thereon (to the extent permitted by law) until paid at the rate of one
percent (1%) per annum over the prime rate (which prime rate shall be the
rate from time to time announced by the commercial banking department of
the Trustee or any of its affiliates to be its prime rate on 90-day
commercial loans), or at the maximum rate permitted by law, whichever is
lesser, the Company shall pay.
ARTICLE VI
Damage, Destruction, and Condemnation
Section 6.1. Damage and Destruction. Unless the Company shall
have exercised its option to prepay the Note in full pursuant to the
provisions of Section 7.1 hereof, if prior to full payment of the Bonds
(or provision for payment thereof having been made in accordance with the
provisions of the Indenture) the Project is destroyed (in whole or in
part) or is damaged by fire or other casualty to such extent that the
claim for loss under the insurance policies required to be carried
pursuant to Section 5.3(a) and (b) hereof resulting from such destruction
or damage is not greater than $250,000, the Company (a) shall promptly
repair, rebuild, or restore the property damaged or destroyed to
substantially the same condition as it existed prior to the event causing
such damage or destruction, with such changes, alterations, and
modifications (including the substitution and addition of other property)
as may be desired by the Company and as will not impair operating unity or
productive capacity or the character of the Project, and (b) shall apply
for such purpose so much as may be necessary of any Net Proceeds of
insurance resulting from such claims for losses, as well as any additional
moneys of the Company necessary therefor. All Net Proceeds of insurance
resulting from such claims for losses not in excess of $250,000 shall be
paid to the Company.
Unless the Company shall have exercised its option to prepay the
Note in full pursuant to the provisions of Section 7.1 hereof, if prior to
full payment of the Bonds (or provision for payment thereof having been
made in accordance with the provisions of the Indenture) the Project is
destroyed (in whole or in part) or is damaged by fire or other casualty to
such extent that the claim for loss under the insurance policies required
to be carried pursuant to Section 5.3(a) and (b) hereof resulting from
such destruction or damage is in excess of $250,000, the Company shall
promptly give written notice thereof to the Trustee. All Net Proceeds of
insurance resulting from such claims for losses shall be paid to and held
by the Trustee in a separate trust account, whereupon (i) the Company
shall proceed promptly to repair, rebuild, or restore the property damaged
or destroyed to substantially the same condition as it existed prior to
the event causing such damage or destruction, with such changes,
alterations and modifications (including the substitution and addition of
other property) as may be desired by the Company and as will not impair
operating unity or productive capacity or the character of the Project,
and (ii) the Trustee shall apply so much as may be necessary of the Net
Proceeds of such insurance to payment of the costs of such repair,
rebuilding, or restoration, either on completion thereof or as the work
progresses as directed by the Company. In the event said Net Proceeds are
not sufficient to pay in full the costs of such repair, rebuilding, or
restoration, the Company shall, nonetheless, complete the work thereof and
shall pay that portion of the costs thereof in excess of the amount of
said Net Proceeds. The Company shall not, by reason of the payment of
such excess costs (whether by direct payment thereof or advances to the
Trustee therefor), be entitled to any reimbursement from the Trustee, or
the holders or owners of the Bonds, or any abatement or diminution of the
amount payable under this Agreement. Any balance of such Net Proceeds
remaining after payment of all the costs of such repair, rebuilding, or
restoration shall be deposited into the Bond Fund. If the Bonds have been
fully paid (or provision for payment thereof has been made in accordance
with the Indenture), any balance of such Net Proceeds shall be paid to the
Company.
Any moneys held by the Trustee in the separate trust account
under the provisions of the preceding paragraph shall, at the written
request of the Authorized Company Representative, be invested or
reinvested by the Trustee as provided in Section 3.4 hereof. The Company
shall forthwith pay to the Trustee the amount of any losses with respect
to principal on such investments.
Section 6.2. Condemnation. Unless the Company shall have
exercised its option to prepay the Note in full pursuant to the provisions
of Section 7.1 hereof, in the event that title to, or the temporary use
of, the Project or the Project Site or any part thereof shall be taken
under the exercise of the power of eminent domain by any governmental body
or by any person, firm, or corporation acting under governmental
authority, the Company shall be obligated to continue to make payments on
the Note and all other payments specified herein. The Company and the
Trustee shall cause the Net Proceeds received by them or either of them
from any award made in such eminent domain proceedings to be paid to and
held by the Trustee in a separate trust account, and to be applied in one
or more of the following ways as shall be directed in writing by the
Company:
(a) The prompt repair, restoration, relocation,
modification, or improvement of the Project and the Project Site, to
substantially the same condition as existed prior to the exercise of
said power of eminent domain.
(b) Redemption of the Bonds pursuant to Section 7.1 hereof;
provided, that no part of any such condemnation award may be applied
for such redemption, unless the Company shall furnish to the Trustee
a certificate of the Authorized Company Representative stating
(i) that the property forming a part of the Project or the Project
Site that was taken by such condemnation proceedings is not
essential to the Company's use or occupancy of the Project or the
Project Site, or (ii) that the Project or the Project Site has been
repaired, restored, relocated, modified or improved to a condition
substantially equivalent to its condition prior to the taking by
such condemnation proceedings.
Unless the Company shall have exercised its option to prepay the
Note in full pursuant to the provisions of Section 7.1 hereof within
ninety (90) days from the date of entry of a final order in any eminent
domain proceedings granting condemnation, the Company shall direct the
Trustee in writing as to which of the ways specified in this Section 6.2
the Company elects to have the condemnation award applied. Any balance of
the Net Proceeds of the award in such eminent domain proceedings shall be
paid into the Bond Fund. If the Bonds have been fully paid (or provision
for payment thereof has been made in accordance with the provisions of the
Indenture), all Net Proceeds shall be paid to the Company.
Any moneys held by the Trustee under the provisions of this
Section 6.2 shall, at the written request of the Authorized Company
Representative, be invested or reinvested by the Trustee in accord with
Section 3.4 hereof. The Company shall forthwith pay to the Trustee the
amounts of any losses with respect to principal on such investments.
ARTICLE VII
Prepayment of Note
Section 7.1. Optional Prepayment of Note. The Company may, at
its option, prepay the Note, in whole or in part, on any date on or after
October 1, 1997 (and if in part, in whole multiples of $5,000), by paying
to the Trustee a sum sufficient, together with other funds in the Bond
Fund and available for that purpose, to pay (a) the principal of, premium
(as specified in the Indenture), and interest on that portion of the Bonds
then outstanding to be redeemed, and (b) all reasonable and necessary fees
and expenses of the Trustee and any paying agent accrued and to accrue
through the redemption date.
Section 7.2. Mandatory Prepayment of Note. The Company shall
prepay the amounts due under this Agreement and the Note in whole prior to
the expiration of this Agreement and prior to the full payment (or
provision for full payment) of the Bonds on the earliest practicable date
(selected by the Trustee) within ninety (90) days following a
Determination of Taxability (as defined in the Indenture).
In the event of an obligation to prepay under this Section 7.2,
the Company shall pay to the Trustee a sum sufficient, together with other
funds deposited into the Bond Fund and available for the purpose, to pay
the principal, premium (as specified in the Indenture), and interest on
the principal of all the Bonds then outstanding and all reasonable and
necessary fees and expenses of the Trustee and any paying agent accrued
and to accrue through final payment of the Bonds.
Section 7.3. Extraordinary Event Prepayment of the Note. The
Company may, at its option, prepay the Note, in whole but not in part,
without redemption premium, within one (1) year following the occurrence
of any of the events specified in Section 502 of the Indenture by paying
the Trustee a sum sufficient, together with other funds in the Bond Fund
and available for that purpose, to pay (a) the principal of and interest
upon all of the Bonds then outstanding, and (b) all reasonable and
necessary fees and expenses of the Trustee and the paying agent accrued
and to accrue through the redemption date.
Section 7.4. Notice of Prepayment. To exercise prepayment under
Section 7.1 or 7.3 hereof, the Company shall give written notice to the
Trustee at least forty-five (45) days but not more than seventy-five (75)
days prior to a specified date of the prepayment. To prepay under
Section 7.2 hereof, the Company shall give written notice to the Trustee
within thirty (30) days after the event requiring the prepayment
specifying the date of the prepayment, which shall be not less than forty-
five (45) days nor more than ninety (90) days from the date the notice is
mailed. If the Company fails to give timely notice of a prepayment under
Section 7.2 hereof, the Trustee shall give written notice to the Company
specifying a date of prepayment not less than fifteen (15) days nor more
than sixty (60) days from the date that notice is mailed.
ARTICLE VIII
Events of Default and Remedies
Section 8.1. Events of Default. The occurrence and continuance
of any of the following events shall constitute an "Event of Default"
hereunder:
(a) Default in the due and punctual payment of any
installment of principal of (whether at stated maturity, upon
required prepayment, acceleration or otherwise) or any payment of
interest or redemption premium on the Note;
(b) The dissolution or liquidation of the Company unless
such dissolution or liquidation is permitted by this Agreement;
(c) Failure by the Company to observe and perform any
covenant, condition, or agreement in this Agreement on its part to
be observed or performed other than those referred to in
Section 8.1(a), (b), or (h) for a period of thirty (30) days after
written notice, specifying the failure and requesting that it be
remedied, given to the Company by the Trustee, unless the Trustee
agrees in writing to an extension of the time prior to its
expiration; provided, however, that with respect to this clause (c),
if such failure of performance shall be such that it cannot be
corrected within such period, it shall not constitute an Event of
Default if such failure of performance, in the reasonable opinion of
the Trustee, is correctable without material adverse effect on the
Bonds and if corrective action is instituted by or on behalf of the
Company within such period and diligently pursued until such failure
of performance is corrected.
(d) A decree or order shall have been entered by a court of
competent jurisdiction constituting an order for relief under the
Bankruptcy Code or adjudging the Company insolvent or approving as
properly filed a petition seeking reorganization of the Company
under the Bankruptcy Code or any other federal or state law relating
to bankruptcy or insolvency or appointing a receiver or decreeing or
ordering the winding up or liquidation of the affairs of the Company
or the sequestration of a substantial part of the property of the
Company, and any such decree or order shall remain in force
undischarged and unstated for a period of ninety (90) days.
(e) The Company shall file a petition seeking relief under
the Bankruptcy Code or shall suffer the imposition of an order
thereunder or shall institute or consent to the institution of
bankruptcy or insolvency proceedings against it or shall file a
petition or answer or consent seeking reorganization or relief
(other than as a creditor) under the Bankruptcy Code or any other
federal or state law relating to bankruptcy or insolvency or shall
consent to the filing of any such petition or shall consent to the
appointment of a receiver or shall make an assignment for the
benefit of creditors or shall admit in writing its inability to pay
its debts generally as they become due or shall fail to pay its
debts generally as they become due, or action shall be taken by the
Company in furtherance of any of the aforesaid purposes.
(f) An Event of Default as defined in Section 801 of the
Indenture shall have occurred.
(g) The acceleration of the maturity of any Funded Debt in
excess of $50,000 as a result of a default thereon or with respect
thereto that has not been waived or cured in accordance with the
terms and provisions thereof.
(h) The failure of the Company to maintain Consolidated
Tangible Net Worth at the levels required by Section 4.9 hereof.
Section 8.2. Remedies on Default. Whenever any Event of Default
referred to in Section 8.1 shall have happened and be continuing, the
Trustee:
(a) May, and upon the written request of the owners of not
less than twenty-five percent (25%) of the aggregate principal
amount of the Bonds then outstanding shall, declare the Note and all
amounts payable thereunder, whether by acceleration of maturity or
otherwise, to be immediately due and payable.
(b) The Trustee may take whatever action may appear
necessary or desirable to collect the amounts due and to become due
under this Agreement and the Note, or to enforce performance and
observance of any obligation, agreement or covenant of the Company
under this Agreement and the Note.
Section 8.3. Application of Moneys. All moneys collected by the
Trustee under Section 8.2 hereof shall be applied as follows:
FIRST: To pay any sums required to be paid by the Company
pursuant to this Agreement, the Note, the Indenture or
the Bonds other than principal, premium, if any, and
interest on the Note or the Bonds.
SECOND: To pay the whole amount then due, owing, and unpaid upon
the Note for principal, premium, if any, and interest in
accordance with Section 807 of the Indenture. Payment
shall be made upon presentation of the Note and the
notation on the Note of the payment, if partially paid,
or the surrender and cancellation of the Note, if fully
paid.
THIRD: To pay the Company, its successors, or assigns, upon the
written request of the Company or to whosoever may be
lawfully entitled to receive the same upon its written
request, or as any court of competent jurisdiction may
direct.
Section 8.4. Remedies Cumulative. No remedy granted by this
Agreement is intended to be exclusive of any other remedy. All available
remedies shall be cumulative.
Section 8.5. Delay or Omission Not a Waiver. No delay or
omission of the Trustee to exercise any right or power accruing upon any
Event of Default shall impair the right or power, or shall be construed to
be a waiver of the Event of Default or an acquiescence therein. Every
power and remedy may be exercised as often as the Trustee deems expedient.
Section 8.6. Remedies Subject to Provisions of Law. All rights,
remedies, and powers provided by this Article may be exercised only to the
extent that their exercise does not violate any applicable provision of
law. All the provisions of this Article are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this
Agreement invalid or unenforceable under the provisions of any applicable
law.
ARTICLE IX
Supplements and Amendments to This Agreement
Section 9.1. Supplements and Amendments to This Agreement.
Reference is made to Article XI of the Indenture.
ARTICLE X
Miscellaneous
Section 10.1. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the Municipality, the Company, and
their respective successors and assigns, subject to the limitations in
Sections 4.3 and 10.4 hereof.
Section 10.2. Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, that holding shall not invalidate or render unenforceable
any other provisions hereof.
Section 10.3. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or termination of this
Agreement in accordance with the Indenture shall belong to and be paid to
the Company by the Trustee.
Section 10.4. Amendments, Changes, and Modifications. After the
Bonds are issued and before they are paid in full (or provision for
payment in full is made), this Agreement may not be amended, assigned or
terminated without the written consent of the Trustee.
Section 10.5. Execution in Counterparts. This Agreement may be
executed in several counterparts, each of which shall be an original.
Section 10.6. Notices. All notices, certificates, payments, or
other communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified mail,
postage prepaid, or overnight express mail addressed as follows: if to
the Municipality, at the City Building, Logansport, Indiana 46947,
Attention of its Clerk-Treasurer; if to the Company, at 1111 Samuelson
Road, P.O. Box 7009, Rockford, Illinois 61125, Attention of its Vice
President-Finance with a copy to the attention of its President; or to
such other address as may hereafter be furnished by notice.
Section 10.7. References to Bonds Ineffective After Bonds are
Paid. Upon payment in full of the Bonds (or provision for payment thereof
having been made in accordance with the provisions of the Indenture) and
payment of all fees and charges of the Municipality, Trustee, and any
paying agent, all references in this Agreement to the Bonds and the
Trustee shall be ineffective and neither the Trustee nor the holders of
the Bonds shall thereafter have any rights hereunder, except those that
shall have theretofore vested.
Section 10.8. Agreement for Benefit of Parties Hereto. Nothing
in this Agreement, express or implied, is intended to give to any person
other than the parties hereto and the holder of the Note, any right,
remedy, or claim under or by reason of this Agreement.
Section 10.9. Waiver. No waiver of any of the provisions of
this Agreement shall be effective and binding unless set forth in a
written notice and no waiver of one provision shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar)
nor shall such waiver constitute a continuing waiver or a waiver of such
provision in any other instance.
Section 10.10. Captions and Table of Contents. The captions
herein and the Table of Contents are inserted only as a matter of
convenience and do not in any way define, limit, construe or describe the
scope or intent of this Agreement or any section thereof or in any other
way affect this Agreement.
Section 10.11. Survival of Covenants, Representations, and
Warranties. All covenants, representations, and warranties made by the
Company and the Municipality contained herein or in any other document,
certificate, or instrument delivered in connection with the sale of any of
the Bonds shall be continuing and shall survive delivery of the Bonds and
the other transactions contemplated by this Agreement and the Indenture.
Section 10.12. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Indiana.
Section 10.13. Holidays. Where a date of payment on the Note is
not a Business Day, then payment may be made on the first Business Day
thereafter.
IN WITNESS WHEREOF, the Municipality and the Company have caused
this Agreement to be executed all as of the date first above written.
CITY OF LOGANSPORT, INDIANA
By:____________________________________
William A. Vernon, Mayor
(SEAL)
ATTEST:
__________________________________
Mary Lynn Barnard, Clerk-Treasurer
ELCO INDUSTRIES, INC.
By:____________________________________
August F. DeLuca
Vice President-Finance
ATTEST:
__________________________________
Kenneth L. Heal, Secretary
EXHIBIT A
(Description of the Project)
Part I. The Project
The Project is an approximately 32,000 square foot single story
building located on the Project Site (as described in Part III), the
Project Equipment (as described in Part II), and various other equipment
and machinery housed in other facilities of the Company.
Part II. The Project Equipment
The Project Equipment is a coating line, which consists of a
Spring Tool Model S24 Product Coater from Spring Tools Co., 15075 South
U.S. 131, and a conveyorized coating cure oven which will be purchased
from Advanced Curing Systems, Inc., and which will be used in the coating
process, which consists of dipping metal stampings in the product coater,
then baking them through the conveyorized oven.
Part III. The Project Site
The Project Site consists of a certain parcel of land together
with all permanent improvements thereon located in Cass County, Indiana,
near Logansport and more particularly described as follows:
PARCEL 1
A fractional part of the Northwest Quarter (1/4) of Section Two (2),
Township Twenty-six (26) North, Range One (1) East, Washington Township,
Cass County, Indiana, more fully described as follows: Commencing at the
Southwest Corner of the Northwest Quarter of said Section Two; thence
North 89 degrees 12 minutes 00 seconds East on and along the South line of
said Northwest Quarter a distance of 465.00 feet; thence North 00 degrees
00 minutes 00 seconds East a distance of 14.50 feet to a Pipe lying on the
North Right-of-way of a Public Highway (Wilson Road); thence North
89 degrees 12 minutes 00 seconds East along said North Right-of-way of
said Public Highway (Wilson Road) a distance of 360.00 feet to a Pipe
being the PLACE OF BEGINNING; thence North 00 degrees 00 minutes
00 seconds West a distance of 435.04 feet; thence North 89 degrees
12 minutes 00 seconds East parallel to said North right-of-way a distance
of 236.27 feet to a point 20.00 feet East of the Center Line of an
Existing Drive; thence South 00 degrees 36 minutes 54 seconds East
parallel to said Center Line of said Drive a distance of 435.00 feet to
said North right-of-way of said Public Highway (Wilson Road); thence South
89 degrees 12 minutes 00 seconds West along said Right-of-way a distance
of 240.49 feet to the PLACE OF BEGINNING, being subject to an Ingress and
Egress Easement 40 foot in Width parallel to and the entire length of the
East Line of the above described Parcel 1, said Easement being 20 feet on
both sides of the Center Line of the existing drive.
PARCEL 2
A fractional part of the Northwest Quarter (1/4) of Section Two (2),
Township Twenty-six (26) North, Range One (1) East, Washington Township,
Cass County, Indiana, more fully described as follows: Commencing at the
Southwest Corner of said Northwest Quarter of said Section Two; thence
North 89 degrees 12 minutes 00 seconds East on and along the South line of
sid Northwest Quarter a distance of 465.00 feet; thence north 00 degrees
00 seconds East a distance of 14.50 feet to a Pipe lying on the North
Right-of-way of a Public Highway (Wilson Road); thence North 89 degrees
12 minutes 00 seconds East along said North Right-of-way of said Public
Highway a distance of 360.00 feet to a Pipe being the PLACE OF BEGINNING;
thence South 89 degrees 12 minutes 00 seconds West along the North Right-
of-way of said Public Highway a distance of 150.03 feet to the Center Line
of an Open Ditch; thence along said Center Line of said Ditch on the
following 4 courses: (1) North 19 degrees 16 minutes 54 seconds West a
distance of 130.00 feet; (2) North 06 degrees 56 minutes 16 seconds West
a distance of 88.02 feet; (3) North 03 degrees 06 minutes 59 seconds East
a distance of 90.28 feet; (4) North 00 degrees 40 minutes 34 seconds West
a distance of 134.13 feet; thence North 89 degrees 12 minutes 00 seconds
East parallel to said North Right-of-Way of said Public Highway a distance
of 200.27 feet; thence South 00 degrees 00 minutes 00 seconds East a
distance of 435.04 feet to the PLACE OF BEGINNING; subject to an Easement
75 feet in width from the top of the bank of the existing open drainage
ditch along the entire west side of the above described Parcel 2.
EXHIBIT B
(Form of Note)
ELCO INDUSTRIES, INC.
PROMISSORY NOTE
FOR VALUE RECEIVED, Elco Industries, Inc., (the "Company"), a
Delaware corporation, promises to pay to The City of Logansport, Indiana,
or registered assigns, on or before 2 o'clock p.m. (Logansport time)
(a) on the first day of each October commencing October 1, 1998, and
continuing through October 1, 2000, a sum which, together with other
moneys available therefor in the Bond Fund under the Mortgage and Trust
Indenture (the "Indenture") dated as of September 1, 1993, among the
Company, the City of Logansport, Indiana (the "Municipality"), and INB
National Bank, as trustee (the "Trustee"), will equal the principal amount
of the Bonds (defined below) which becomes due on that date; (b) on the
first day of each April and the first day of each October commencing
April 1, 1994, and continuing through October 1, 2000, a sum which,
together with other moneys available therefor in the Bond Fund under the
Indenture, will equal the interest which becomes due on the Bonds
outstanding on that date; (c) on the dates fixed for redemption of the
Bonds in whole or in part, the principal of, premium, if any, and interest
on the Bonds to be redeemed to the date fixed for redemption; and
(d) immediately upon a declaration of acceleration of the maturity of the
Bonds by the Trustee, the principal, interest and premium, if any, to the
date of declaration of acceleration.
All payments of principal, premium, if any, and interest are to
be made directly to the Trustee (or subsequent registered owner) for the
account of the Municipality in immediately available funds. This Note is
security for the payment of the Municipality's Economic Development
Refunding Revenue Bonds, Series 1993 ( Elco Industries, Inc. Project)
issued pursuant to the Indenture (the "Bonds"). All of the terms,
conditions and provisions of the Indenture are incorporated into this Note
by reference.
This Note is issued pursuant to the Loan Agreement (the
"Agreement") dated as of September 1, 1993, between the Municipality and
the Company and is entitled to the benefits, and is subject to the
conditions, thereof. The obligation of the Company to make the payments
required under this Note is absolute and unconditional without any defense
or right of setoff, counterclaim, or recoupment by reason of any default
by the Municipality under the Agreement or under any other agreement
between the Company and the Municipality or out of any indebtedness or
liability at any time owing to the Company by the Municipality or for any
other reason.
This Note is subject to prepayment under the terms and
conditions, and in the amounts, provided in Article VII of the Agreement.
This Note is transferable only upon the books of the Trustee kept
for that purpose at its principal office in its capacity as Note
Registrar, upon surrender for transfer of this Note at the principal
office of the Trustee, endorsed for transfer by the registered owner or
accompanied by an assignment executed by the registered owner or his
authorized attorney. Upon such surrender for transfer, the Trustee shall
validate and deliver in the name of the transferee a new Note which shall
have been executed by the Company. If the Company fails to make any of
the payments under this Note, the amount unpaid shall continue as an
obligation of the Company until fully paid and shall bear interest (to the
extent permitted by law) until paid at a per annum rate of interest equal
to the per annum rate then in effect on the Bonds plus two percent (2%) or
at the maximum rate permitted by law, whichever is lesser. If an "Event
of Default" occurs under Section 8.1 of the Agreement, the principal of
this Note may be declared due and payable as provided in Article VIII of
the Agreement.
Where a date of payment is not a business day in the City of
Indianapolis, Indiana, Rockford, Illinois, or Chicago, Illinois, then
payment may be made on the first business day thereafter.
All amounts payable under the terms of this Note are payable
without relief from valuation and appraisement laws and with attorneys'
fees. The maker and any endorsers waive demand, presentment for payment,
protest, notice of protest and notice of nonpayment or dishonor and
consent to any and all extensions of time for payment without notice.
All terms used in this Note which are defined in the Agreement
and not in this Note shall have the meanings assigned to them in the
Agreement.
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered this _____ day of September, 1993.
ELCO INDUSTRIES, INC.
By:____________________________________
August F. DeLuca
Vice President-Finance
ATTEST:
_________________________________
Kenneth L. Heal, Secretary
(Form of Note Registrar's Certificate of Validation)
NOTE REGISTRAR'S CERTIFICATE OF VALIDATION
It is hereby certified that this Note has been duly validated by
the Note Registrar.
INB NATIONAL BANK
as Trustee
By:____________________________________
Authorized Representative
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
___________________________________
___________________________________
(Please print or typewrite name (Social security or federal
of employer and address, including identification number of
postal zip code of transferee) assignee)
the within Note, together with accrued interest thereon and all right,
title, and interest thereto, and hereby irrevocably authorize(s) and
appoint(s) any authorized officer of the Trustee under the Indenture, as
such term is defined in said Note, attorney to transfer said Note on the
books of the within named Note Registrar, with full power of substitution
in the premises.
Dated:___________________________
_______________________________________
In the presence of:
_________________________________
NOTICE--The signatures to this assignment must correspond with the name
as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.