Loan Agreement,
MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
BETWEEN
ENVIROTEST SYSTEMS CORP.
Mortgagor
AND
INDIANA DEVELOPMENT FINANCE AUTHORITY
Mortgagee
FIRST MORTGAGE NOTE, SERIES 1996
Dated as of June 1, 1996
Certain of the rights of the Issuer hereunder have been assigned to Old
National Trust Company, as Trustee under a Trust Indenture dated as of the date
hereof, from the Issuer.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND EXHIBITS . . . . . . . . . . . . . . . . . . 5
Section 1.1. Terms Defined . . . . . . . . . . . . . . . . . . . . . 5
Section 1.2. Rules of Interpretation. . . . . . . . . . . . . . . . . 11
Section 1.3. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II. REPRESENTATIONS; LOAN OF SERIES 1996 BOND PROCEEDS . . . . . 13
Section 2.1. Representations by Issuer. . . . . . . . . . . . . . . . 13
Section 2.2. Representations by Company . . . . . . . . . . . . . . . 13
Section 2.3. Loan of Series 1996 Bonds Proceeds by Issuer . . . . . . 15
ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . 16
Section 3.1. Consent to Assignments to Trustee. . . . . . . . . . . . 16
Section 3.2. The Loan; Loan Payments . . . . . . . . . . . . . . . . 16
Section 3.3. Maintenance of Lien; Recording . . . . . . . . . . . . . 18
Section 3.4. Further Assurances; After-acquired Property. . . . . . . 19
Section 3.5. Corporate Existence . . . . . . . . . . . . . . . . . . 19
Section 3.6. Financial Reporting . . . . . . . . . . . . . . . . . . 20
Section 3.7. Taxes, Charges and Assessments . . . . . . . . . . . . . 21
Section 3.8. Liens . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.9. Compliance with Orders, Ordinances, Etc. . . . . . . . . 22
Section 3.10. Permitted Contests; Waiver by Requisite Bondholders. . 22
Section 3.11. Repairs, Maintenance and Alterations . . . . . . . . . . 23
Section 3.12. Company Duties Under Indenture . . . . . . . . . . . . . 23
Section 3.13. Insurance . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.14. Trustee's Right to Perform Company's Covenants; Advances 24
Section 3.15. Indemnity . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.16. Issuance of Substitute Notes . . . . . . . . . . . . . . 26
Section 3.17. Payment of Expenses of Issuance of Series 1996 Bonds . . 26
Section 3.18. Mortgagee Title Insurance Policy . . . . . . . . . . . . 26
Section 3.19. Funding of Indenture Funds; Investments . . . . . . . . 27
Section 3.20. Other Amounts Payable by the Company . . . . . . . . . . 27
Section 3.21. Leased Mortgage Property . . . . . . . . . . . . . . . . 27
Section 3.22. Completion of Project . . . . . . . . . . . . . . . . . 28
Section 3.23. Sale, Substitution, or Lease of Mortgaged Property . . . 29
Section 3.24. Substitution and Removal of Equipment . . . . . . . . . 30
Section 3.25. Right of Access to the Mortgaged Property . . . . . . . 31
Section 3.26. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . 31
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Section 3.27. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.28. Security Agreement . . . . . . . . . . . . . . . . . . . 31
Section 3.29. Balance in the Debt Service Reserve Fund . . . . . . . . 33
Section 3.30. Reimbursement of Issuer . . . . . . . . . . . . . . . . 34
Section 3.31. Maintenance of Licenses and Permits . . . . . . . . . . 34
Section 3.32. Notices of Disputes, Defaults and Other Matters . . . . 34
Section 3.33. Hazardous Substances . . . . . . . . . . . . . . . . . . 35
Section 3.34. Amendments to IDEM Contract . . . . . . . . . . . . . . 36
ARTICLE IV. DAMAGE, CONDEMNATION, AND LOSS OF TITLE. . . . . . . . . . . . 37
Section 4.1. Damage . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.2. Other Provisions with Respect to Net Proceeds. . . . . . 38
Section 4.3. Insufficiency of Net Proceeds. . . . . . . . . . . . . . 38
Section 4.4. Excess Net Proceeds. . . . . . . . . . . . . . . . . . . 38
ARTICLE V. PREPAYMENT OF SERIES 1996 NOTE . . . . . . . . . . . . . . . . 39
Section 5.1. Optional Prepayment. . . . . . . . . . . . . . . . . . . 39
Section 5.2. Mandatory Prepayment . . . . . . . . . . . . . . . . . . 39
Section 5.3. Notice of Prepayment . . . . . . . . . . . . . . . . . . 40
ARTICLE VI. ACQUISITION OF PROJECT SITES AND EQUIPMENT . . . . . . . . . . 41
Section 6.1. Acquisition of Project Sites and Equipment . . . . . . . 41
Section 6.2. Amendments to Loan Agreement . . . . . . . . . . . . . . 41
ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES THEREFOR . . . . . . . . . . . 42
Section 7.1. Events of Default. . . . . . . . . . . . . . . . . . . . 42
Section 7.2. Foreclosure and Sale of Mortgaged Property . . . . . . . 44
Section 7.3. Sale a Bar . . . . . . . . . . . . . . . . . . . . . . . 45
Section 7.4. Receipt Sufficient Discharge for Purchaser . . . . . . . 45
Section 7.5. Sale to Accelerate Notes . . . . . . . . . . . . . . . . 45
Section 7.6. Application of Proceeds of Sale . . . . . . . . . . . . 45
Section 7.7. Payment of Defaulted Amounts on Demand of Trustee . . . 46
Section 7.8. Trustee May Enforce Demand . . . . . . . . . . . . . . . 46
Section 7.9. Trustee Entitled to Appointment of Receiver. . . . . . . 47
Section 7.10. Remedies Cumulative. . . . . . . . . . . . . . . . . . . 47
Section 7.11. Delay or Omission Not a Waiver . . . . . . . . . . . . . 48
Section 7.12. Waiver of Extension, Appraisement or Stay Laws . . . . . 48
Section 7.13. Remedies Subject to Provisions of Law. . . . . . . . . . 48
Section 7.14. Remedies Under Uniform Commercial Code . . . . . . . . . 48
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ARTICLE VIII. IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.1. Immunity . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.2. Liability of Issuer. . . . . . . . . . . . . . . . . . . 49
ARTICLE IX. SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT. . . . . . . 50
Section 9.1. Supplements and Amendments to this Loan Agreement. . . . 50
ARTICLE X. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . 51
Section 10.1. Loan Agreement for Benefit of Parties Hereto . . . . . . 51
Section 10.2. Severability . . . . . . . . . . . . . . . . . . . . . . 51
Section 10.3. Limitation on Interest . . . . . . . . . . . . . . . . . 51
Section 10.4. Addresses for Notice and Demands . . . . . . . . . . . . 51
Section 10.5. Successors and Assigns . . . . . . . . . . . . . . . . . 52
Section 10.6. Counterparts . . . . . . . . . . . . . . . . . . . . . . 52
Section 10.7. Governing Law . . . . . . . . . . . . . . . . . . . . . 52
Section 10.8. Company's Option Upon IDEM Termination Event . . . . . . 52
Section 10.9. Issuer Procedures . . . . . . . . . . . . . . . . . . . 56
EXHIBIT A THE INDUSTRIAL DEVELOPMENT FACILITIES. . . . . . . . . . . . . . . 61
EXHIBIT B FIRST MORTGAGE NOTE, SERIES 1996 . . . . . . . . . . . . . . . . . 63
EXHIBIT C FORM OF AMENDMENT TO Loan Agreement. . . . . . . . . . . . . . . . 67
EXHIBIT D FORM OF AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . 72
SCHEDULE I DESCRIPTION OF PENDING OR ThREATENED LITIGATION
AGAINST COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 78
SCHEDULE II PERMITTED ENCUMBRANCES . . . . . . . . . . . . . . . . . . . . 79
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Loan Agreement, MORTGAGE, SECURITY AGREEMENT
AND FINANCING STATEMENT
This is a Loan Agreement, MORTGAGE, SECURITY AGREEMENT AND FINANCING
STATEMENT, dated as of June 1, 1996 (herein referred to sometimes as "this Loan
Agreement" or "this Mortgage") between ENVIROTEST SYSTEMS CORP., a corporation
duly organized and validly existing under the laws of the State of Delaware (the
"Company"), and the INDIANA DEVELOPMENT FINANCE AUTHORITY (the "Issuer"), a body
corporate and politic duly organized and validly existing under the laws of the
State of Indiana.
PRELIMINARY STATEMENT
The Indiana Code, Title 4, Article 4, Chapters 10.9 and 11 (collectively
the "Act"), has been enacted by the Indiana General Assembly.
The Act provides that the Issuer is authorized to issue bonds and loan the
proceeds thereof for the purpose of financing the costs of acquisition,
construction, or installation of industrial development projects, including
land, machinery, equipment, or any combination thereof, for the public purpose
of promoting opportunities for gainful employment and business opportunities
which will be of public benefit to the health, safety, morals, and general
welfare of the State of Indiana and its citizens.
The Issuer intends to issue its Taxable Economic Development Revenue Bonds,
Series 1996 (Envirotest Systems Corp. Project) in the aggregate principal amount
of $14,345,000 (the "Series 1996 Bonds") pursuant to the Trust Indenture dated
as of June l, 1996 (the "Indenture") between the Issuer and Old National Trust
Company, as Trustee (the "Trustee"), and intends to lend the proceeds of the
Series 1996 Bonds pursuant to the provisions of this Loan Agreement to the
Company to finance an industrial development project (as deemed in the Act).
This Loan Agreement provides for the repayment by the Company of the loan
of the proceeds of the Series 1996 Bonds and further provides (i) for the
Company's repayment obligation to be evidenced by the Company's First Mortgage
Note, Series 1996 (the "Series 1996 Note") in substantially the form attached
hereto as "Exhibit B," and (ii) for such loan and the Series 1996 Note to be
secured by the mortgage and security interest herein provided.
Pursuant to the Indenture, the Issuer will pledge and assign the Series
1996 Note and assign certain of its rights under this Loan Agreement as security
for the Series 1996 Bonds. The Series 1996 Bonds issued under the Indenture
will be payable out of (i) the payments to be made by the Company on the Series
1996 Note and any other Notes issued hereunder or (ii) Bond proceeds and other
proceeds required to be deposited in the Redemption Account as deemed in the
Indenture.
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GRANTING CLAUSES
In consideration of the premises, the loan of the proceeds of the Series
1996 Bonds to be made by the Issuer, the acceptance of the Series 1996 Note by
the Issuer, and of other good and valuable consideration, the receipt whereof is
hereby acknowledged, and in order to secure the payment of the principal of,
premium, if any, and interest payable on the Series 1996 Note and any notes
issued in substitution therefor (herein collectively referred to as the "Notes")
and the performance of all the covenants of the Company contained herein, the
Company has executed and delivered this Loan Agreement and by these presents
does assign, grant, mortgage and warrant and grant a security interest in, to
the Issuer and its successors and assigns forever, all the Company's right,
title and interest in, to and under any and all of the following described
property whether now owned or existing or hereafter acquired or arising (herein
called the "Mortgaged Property"):
DIVISION I
The right, title and interest in the land described in Exhibit A hereto and
in all supplements and additions hereto, together with the entire interest
(whether now owned or hereafter acquired) in and to said land and the entire
interest of the Company in and to all buildings, structures, improvements and
appurtenances now standing, or at any time hereafter constructed or placed, upon
such land, including all right, title and interest of the Company, if any, in
and to all building material, building equipment and fixtures permanently
affixed to the real estate of every kind and nature whatsoever on said land or
in any building, structure or improvement now or hereafter standing on said
land, including without limiting the generality of the foregoing engines, pumps,
dynamos, generators, furnaces, heating equipment, fans, air conditioning
equipment, ventilating equipment, refrigerating equipment, cleaning equipment,
power equipment, incinerators, plumbing, machinery, appliances, apparatus,
devices, hot water heaters, water softeners, electrical fixtures, gas fixtures,
light fixtures, windows, doors, storm doors, overhead doors, storm windows,
screen doors, screen windows, loading docks and wells, platforms, awnings,
television and radio masts and antennae, mail boxes, door openers and controls,
sprinklers, alarm systems, flooring, suspended ceilings, grills, and
landscaping, built-in equipment, shelves, lofts, outdoor lighting, fences,
gates, weather vanes, septic tanks and systems, elevators, if any, and the
reversion or reversions, remainder or remainders, in and to said land, and
together with the entire interest of the Company in and to all and singular the
tenements, hereditament, easements, rights-of-way, rights, privileges and
appurtenances to said land, belonging or in any wise appealing thereto,
including without limitation the entire right, title and interest of the Company
in, to and under any streets, ways, alleys, gores or strips of land adjoining
said land, and all claims or demands whatsoever of the Company either in law or
in equity, in possession or expectancy of, in and to said land, it being the
intention of the parties hereto that, so far as may be permitted by law, all
property of the character hereinabove described, which is now owned or is
hereafter acquired by the Company and is permanently affixed or attached to said
land, shall be and remain or become and constitute a portion of said land and
the security covered by and subject to the lien of this Mortgage, and, subject
to the
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terms and conditions of this Mortgage, together with all rents, income,
revenues, issues and profits thereof;
DIVISION II
All machinery, equipment, fixtures and tangible personal property of the
Company fitted on Exhibit A hereto and in all supplements and additions hereto,
and any substitutions and replacements therefor (herein called the "Equipment");
all proceeds from any sale, exchange, transfer or other disposition thereof and
proceeds of insurance and tort claims, and all books, records, manuals, and
other documents related to the operation and maintenance thereof;
DIVISION III
All right, title, and interest of the Company in, to, and under the IDEM
Contract, including without limitation all amounts paid or payable to the
Company thereunder, and under all other contracts, non-exclusive software
license agreements, other license agreements, leases, and other agreements that
are necessary for, or used or useful in connection with, the operation or
maintenance of the Project;
DIVISION IV
Any and all other property of every kind and nature from time to time
hereafter, by delivery or by writing of any kind, conveyed, pledged, assigned or
transferred as and for additional security hereunder by the Company or by anyone
on its behalf to the Issuer or the Trustee, including without limitation, funds
of the Company held by the Trustee as security for the Bonds;
DIVISION V
All awards, payments, and proceeds as a result of conversion, damage,
destruction or loss of any of the foregoing, including all insurance,
condemnation and tort claims and other claims and obligations dischargeable in
cash;
DIVISION VI
All moneys and securities from time to time held by the Issuer or the
Trustee under the terms of this Mortgage or the Indenture.
SUBJECT, HOWEVER, to Permitted Encumbrances, as deemed in Article I hereof;
TO HAVE AND TO HOLD all and singular, the Mortgaged Property, whether now
owned or hereafter acquired, unto the Issuer, its successors and assigns
forever; provided, however, that this Mortgage is executed upon the express
condition that if the Company shall pay or cause to be paid all indebtedness
secured hereby and shall keep, perform and observe all
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and singular the covenants and promises expressed in the Notes and this
Mortgage to be kept, performed and observed by the Company, then this
Mortgage and the rights hereby granted shall cease, determine and be void;
otherwise to remain in full force and effect.
The Company hereby acknowledges and agrees that the indebtedness and
obligations secured by the Mortgage include, and that the Mortgage is given to
secure, advances that may be made to the Company and obligations that may be
incurred by the Company in addition and subsequent to any advances that are made
or are outstanding on the date of this Mortgage ("future advances"), and that
this Mortgage shall secure all future advances of every nature and kind,
PROVIDED HOWEVER, that the aggregate principal amount of the indebtedness and
obligations secured by this Mortgage in all events shall not exceed $28,000,000,
such maximum amount being stated herein pursuant to and in accordance with
Indiana Code Section 32-8-11-9 and not being a commitment by the Issuer to make
future advances in that amount.
The Company and the Issuer hereby further covenant and agree as follows:
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ARTICLE I.
DEFINITIONS AND EXHIBITS
Section 1.1. TERMS DEFINED. As used in this Mortgage, the following
terms shall have the following meanings unless the context clearly otherwise
requires:
"Act" means collectively Indiana Code 4A-10.9 and 11, and any successor
provisions of the Indiana Code or successor codes.
"Bond Counsel" means a nationally recognized firm of municipal bond
attorneys acceptable to the Issuer.
"Bondholder" or "owner of a Bond" or any similar term means the owner of a
Series 1996 Bond.
"Bonds" or "Bond" means the Series 1996 Bonds or any replacement thereof.
"Bond Fund" means the Bond Fund established by Section 4.3 of the
Indenture.
"Bond Placement Agreement" means the Bond Placement Agreement dated June
27, 1996 among the Issuer, Charles Eden & Company, the Company and the Original
Purchaser.
"Breakage Amount" means if amounts are transferred to the Redemption
Account in order to redeem any principal amount of the Series 1996 Bonds before
their scheduled due date (whether as the result of an acceleration, voluntary
prepayment, mandatory prepayment, or otherwise) and to effect a prepayment of a
portion of the Series 1996 Note, the amount equal to the actual cost to the
Original Purchaser to break any interest rate swap agreement then in place with
respect to the Bonds.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Company" means Envirotest Systems Corp., a corporation duly organized and
validly existing under the laws of the State of Delaware and in good standing in
the State of Indiana, or any successors thereto permitted under Section 3.5
hereof.
"Completion Date" means the date of completion of the Project as
established pursuant to the provisions of Section 3.2 hereof.
"Costs of Construction" with respect to the Project shall be deemed to
include the following, to the extent such items represent the costs of
acquisition, construction, or installation of an industrial development project,
as defined and set forth in the Act:
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(i) obligations of Issuer or of Company incurred for labor and
materials (including obligations payable to Company) in connection with the
acquisition, construction, installation, transportation and equipping of
the Project;
(ii) the cost of contract bonds and of insurance of all kinds that may
be required or necessary during the course of acquisition, construction,
and equipping of the Project;
(iii) all costs and expenses of site preparation, engineering
services, consulting architect fees, including the costs incurred for test
borings, surveys, estimates, plans and specifications and preliminary
investigation therefor, and for supervising construction, as well as for
the performance of all other duties required by or consequent upon the
proper construction of the Project;
(iv) all costs and expenses incurred in connection with the issuance
of the Bonds for the purpose of providing funds for construction of the
Project, including without limitation compensation and expenses of Trustee,
underwriting and legal expenses of Trustee, underwriting and placement
fees, Bond Counsel fees, Issuer Counsel fees, Company Counsel fees, counsel
fees and administrative fees (including a front-end fee of $72,175 and
documentation fee of $7,234) of the Original Purchaser in connection with
issuance of the Bonds, costs of printing and engraving, recording and
filing fees;
(v) all costs and expenses required to be paid, under the terms of
any contract or contracts, for the acquisition, construction, installation,
transportation or equipping of the Project, including the Project Sites;
and
(vi) any sums required to reimburse Issuer or Company for advances
made by either of them for any of the above items or for any other costs
incurred and for work done by either of them which are properly chargeable
to the Project, including construction period interest costs.
"Counsel" means an attorney duly admitted to practice law before the
highest court of any state and, without limitation, may include legal counsel
for either the Issuer or the Company.
"Default Rate" means the Prime Rate plus 2.00% per annum.
"Equipment" shall have the meaning ascribed thereto in Division II of the
Granting Clauses hereof.
"Fully Funded" means with respect to the Debt Service Reserve Fund created
under Section 4.5 of the Indenture $2,119,651.98, the amount equal to the
maximum annual debt service on the Outstanding Bonds.
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"Governmental Obligations" shall mean, for purposes of the definition of
"Qualified Investments" contained herein, direct obligations of the United
States of America or obligations for which the full faith and credit of the
United States is pledged to provide for the payment of principal and interest,
maturing not more than 90 days from the date of such investment; and shall mean
for purposes of Section 11.1 of the Indenture, any of the following securities,
if and to the extent the same are non-callable and not prepayable: direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, including
obligations issued or held in book-entry form on the books of the Department of
the Treasury of the United States of America and including a receipt,
certificate or any other evidence of an ownership interest in an aforementioned
obligation, or in specified portions thereof (which may consist of specified
portions of interest thereon).
"Gross Revenues" means amounts paid by IDEM pursuant to the IDEM Contract.
"Hazardous Substance" means any substance identified in Section 101(14) of
CERCLA, any petroleum or petroleum product, including crude oil or any
extraction thereof, and polychlorinated biphenyl ("PCB") capacitors or
transformers contaIning PCB.
"IDEM" means the Indiana Department of Environmental Management.
"IDBM Contract" means the contract for contractor services for
implementation, operation, and assistance in administration of a centralized
vehicle emissions testing program, between the Company and IDEM, including
without limitation all amendments and modifications thereto and all change
orders and waivers issued thereunder.
"IDEM Termination Event" means a termination under the IDEM Contract (i) as
a result of the event specified in Article XXIV (l) of the IDEM Contract or (ii)
pursuant to Article XXV of the IDEM Contract in accordance with the provisions
of such Article, or (iii) pursuant to Article XVI (6)(E) of the IDEM Contract in
accordance with the provisions of such Article.
"Indenture" means the Trust Indenture dated as of June l, 1996, between the
Issuer and the Trustee and all amendments and supplements thereto.
"Interest Payment Date(s) means each March l, June l, September l and
December l of each year that the Bonds are Outstanding and interest and/or
principal payments are due thereon.
"Issuer" means the Indiana Development Finance Authority or any successor
thereto or assign thereof.
"Loan" means the loan by the Issuer to the Company of the proceeds received
from the sale of the Series 1996 Bonds and evidenced by the Series 1996 Note.
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"Loan Payments" means the amounts required to be paid by the Company in
repayment of the Loan or otherwise pursuant to the provisions of the Series 1996
Note and Article III of this Loan Agreement.
"Mortgaged Property" means the property described in the Granting Clauses
hereof plus any additional property which shall have been subjected to the lien
hereof pursuant to the provisions of Article VI hereof.
"Net Proceeds," when used with respect to any insurance or condemnation
award, means the gross proceeds from the insurance or condemnation award
remaining after payment of all expenses (including attorneys' fees and any
extraordinary expenses of the Company, the Trustee or the Issuer) incurred in
the collection of such gross proceeds.
"1934 Act" means the Securities Exchange Act of 1934.
"Note" or "Notes" means the Series 1996 Note and any Notes issued in
exchange therefor pursuant to Section 3.16 hereof.
"Opinion of Counsel" shall mean an opinion in writing signed by Counsel who
may be an employee of or Counsel to the Company and who shall be satisfactory to
the Trustee in its reasonable discretion.
"Original Purchaser" means The Sumitomo Bank, Limited, acting through its
Chicago Branch, the original purchaser of the Series 1996 Bonds.
"Outstanding," with reference to Bonds, means all Bonds theretofore issued
and not yet paid and discharged under the terms of the Indenture; with reference
to Notes, means all Notes theretofore issued and not yet paid or discharged
under the terms of this Loan Agreement; and with reference to any other
indebtedness or obligation secured by the Mortgage means that such indebtedness
or obligation has been incurred but not yet paid or discharged.
"Permitted Encumbrances" means, as of any particular time, (i) any
exception to title shown in Exhibit A hereto, (ii) liens for ad valorem taxes
and special assessments or installments thereof not then delinquent, (iii) this
Mortgage, and the Indenture, (iv) utility, access and other easements and rights
of-way, mineral rights, restrictions and exceptions that will not materially
interfere with or impair the operations being conducted on the real estate
included in the Mortgaged Property, (v) such casements, rights-of-way, zoning
and building laws, ordinances or regulations and similar restrictions as do not
materially impair the value of the Mortgaged Property affected thereby or its
usefulness for the purpose for which it was acquired or is held by the Company,
(vi) liens arising in connection with workmen's compensation, unemployment
insurance, social security, taxes, assessments, statutory obligations, or other
similar liens and charges arising in the ordinary course of the Company's
operations or required by law as a condition precedent to the transaction of the
business of the Company or the exercise of any privileges or licenses of the
Company; provided, however, that no amount secured by any lien
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or charge described in this item (vi) shall be overdue unless, if overdue,
such lien and the amount it secures are being contested in good faith by the
Company, and the Company has established appropriate reserves in connection
therewith, and if the amount involved exceeds $500,000 the Company has
reserved sufficient amounts with the Trustee to satisfy all such liens, (vii)
mechanics' liens of record arising from the construction of the Project,
provided such liens are being contested by the Company in good faith and
provided further that the Company shall have reserved sufficient amounts with
the Trustee to satisfy all such liens; (viii) the rights of the lessors, if
any, of any of the Project Sites; and (ix) any encumbrance approved by the
Original Purchaser.
"Prime Rate" means a variable per annum rate of interest equal at all times
to the rate of interest established by The Sumitomo Bank, Limited as its "Prime
Rate", such rate to change contemporaneously with each change in such
established rate, provided that it is understood that the Prime Rate shall not
necessarily be representative of the rate of interest actually charged by The
Sumitomo Bank, Limited on any loan or class of loans.
"Project" means the industrial development project described in Exhibit A
hereto and made a part hereof.
"Project Sites" means the real estate, singly or collectively, as the case
may be, as described in the Project description in Exhibit A, on which the
Project is located.
"Public Debt Instruments" means (a) that certain Indenture dated as of
March 15, 1994 among the Company, the Guarantors identified therein, and First
Trust National Association, (b)that certain Indenture dated as of April l, 1993
among the Company, the Guarantors identified therein and First Trust National
Association, and (c) any and all replacements (whether direct or indirect),
deferrals, renewals, extensions, refinancings, refundings and additional public
debt issued by the Company.
"Qualified Investments" means:
(i) Government Obligations;
(ii) bonds, debentures, notes, participation certificates or other
evidences of indebtedness issued, or the principal of and interest on which
are unconditionally guaranteed, by, the Federal National Mortgage
Association, the Bank for Cooperatives, the Federal Intermediate Credit
Bank, the Federal Home Loan Bank System, the Federal Land Banks, the
Government National Mortgage Association or any other agency or
instrumentality of or corporation wholly owned by the United States of
America when such obligations are backed by the full faith and credit of
the United States;
(iii) obligations of any state of the United States of America or
any political subdivision thereof, which at the time of investment are
rated "A1" or higher by Moody's and "A+" or higher by S&P; or which are
rated by Moody's "VMIG-1" or
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better and by S&P "A-1" or better with respect to commercial paper, or
"MIG 1" and "SP-1," respectively, with respect to municipal notes;
(iv) certificates of deposit maturing in one year or less from the
date of purchase issued by, bankers' acceptances, and deposit accounts of,
and time deposits with, commercial banks of recognized standing having a
rating of "A" or better from Moody's and S&P chartered in the United States
of America or Canada with capital, surplus and undivided profits
aggregating in excess of $250,000,000;
(v) demand or fully insured time deposits, insured by the Federal
Deposit Insurance Corporation, used in the ordinary course of the Company's
business with commercial banks;
(vi) repurchase agreements with any bank, trust company or national
banking association insured by the Federal Deposit Insurance Corporation,
including, but not limited to, the indenture trustee under the Public Debt
Instruments or any of its affiliates provided that at the time of
investment such bank, trust company or national banking association is
rated "A1" or better by Moody's and "A+" or better by S&P, or with any
government bond dealer recognized as a primary dealer by the Federal
Reserve Bank of New York, which agreements are fully and continuously
secured by a valid and perfected first priority security interest in
obligations described in paragraph (i) or (ii) of this definition;
(vii) commercial paper of any corporation, including banking or
financial institutions, including, but not limited to, the indenture
trustee under the Public Debt Instruments or any of its affiliates, the
corporate debt of which, at the time of investment, is rated "A1" or better
by Moody's and "A+" or better by S&P, and maturing not more than 270 days
from the date of creation thereof;
(viii) guaranteed investment contracts or similar funding
agreements issued by insurance companies, the corporate debt of which, at
the time of investment, is rated "A1" or better by Moody's and "A+" or
better by S&P;
(ix) shares or interests in taxable government money market portfolios
restricted to obligations with maturities of one year or less issued by, or
the payment of principal and interest with respect to which is guaranteed
by, the United States of America, and which, at the time of investment, are
rated "Aa" or better by Moody's and "AA" or better by S&P;
(x) interest in any money market portfolio exempt from federal income
taxation and haying assets in excess of one billion dollars
($1,000,000,000); PROVIDED THAT, at the time of investment, such portfolio
is rated "A1" or better by Moody's and "A+" or better by S&P;
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(xi) shares of money market funds that invest solely in investments in
(i) through (viii) above; and
(xiii) any investments with the Original Purchaser or its
affiliates or any investments approved by the Original Purchaser.
"Redemption Account" means the Redemption Account within the Bond Fund
established by Section 4.3 of the Indenture.
"Release" has the meaning given to such term in Section 101(22) of CERCLA.
"Series 1996 Bonds" means the Indiana Development Finance Authority Taxable
Economic Development Revenue Bonds, Series 1996 (Envirotest Systems Corp.
Project) in the aggregate principal amount of $14,345,000.
"Series 1996 Note" means the Company's First Mortgage Note, Series 1996 in
the principal amount of $14,345,000 in substantially the form attached hereto as
Exhibit B which will be issued and delivered by the Company to the Issuer to
evidence the loan of the proceeds of the Series 1996 Bonds and any Note issued
in exchange therefor.
"State" means the State of Indiana.
"Trustee" means the trustee and/or cc-trustee at the time serving as such
under the Indenture.
Section 1.2. RULES OF INTERPRETATION. For all purposes of this Loan
Agreement, except as otherwise expressly provided, or unless the context
otherwise requires:
(a) "This Loan Agreement" or "this Mortgage" means this instrument as
originally executed and as it may from time to time be supplemented or
amended pursuant to the applicable provisions hereof.
(b) All references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Loan 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 and the
singular as well as the plural.
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(d) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as consistently applied.
(e) Any terms not defined herein but defined in the Indenture shall
have the same meaning herein.
(f) The terms defined elsewhere in this Loan Agreement shall have the
meanings therein prescribed for them.
Section 1.3. EXHIBITS. The following Exhibits are attached to and by
reference made a part of this Loan Agreement.
Exhibit A. Description of the Mortgaged Property and Project.
Exhibit B. Form of Series 1996 Note.
Exhibit C. Form of Amendment to Loan Agreement.
Exhibit D. Form of Amendment to Indenture.
(End of Article I)
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ARTICLE II.
REPRESENTATIONS; LOAN OF SERIES 1996 BOND PROCEEDS
Section 2.1. REPRESENTATIONS BY ISSUER. Issuer represents and warrants
that:
(a) Issuer is a body corporate and politic of the State of Indiana. Under
the provisions of the Act, and based upon representations made and information
provided by the Company, Issuer is authorized to enter into the transactions
contemplated by this Loan Agreement and to carry out its obligations hereunder.
Issuer has been duly authorized to execute and deliver this Loan Agreement.
Issuer agrees that it will do or cause to be done all things within its power
necessary to preserve and keep in full force and effect its existence.
(b) Issuer agrees to provide funds from the issuance of the Series 1996
Bonds to loan to the Company for the financing of the Project, subject to the
consideration of the Series 1996 Note and the Company granting a mortgage and
security interest on the Mortgaged Property to the Issuer, all for the benefit
of the holders of the Bonds and the Issuer, in order to promote employment
creation and create opportunities for gainful employment and business
opportunities, and to secure the Bonds by pledging certain of its rights and its
interest in this Loan Agreement and the Series 1996 Note to the Trustee.
(c) The Issuer represents that the Series 1996 Note will be assigned to
the Trustee pursuant to the Indenture, and that no further assignment is
contemplated by the Issuer, since the Issuer recognizes that the Series 1996
Note has not been registered under the Securities Act of 1933.
Section 2.2. REPRESENTATIONS BY COMPANY. Company represents and warrants
that:
(a) Company is a corporation duly organized and validly existing under the
laws of the State of Delaware, and is duly qualified to transact business as a
foreign corporation under the laws of the State of Indiana, is not in violation
of any provision of its Articles of Incorporation or by-laws, has not received
notice and has no reasonable grounds to believe that it is in violation of any
laws in any manner material to its ability to perform its obligations under this
Loan Agreement and the Series 1996 Note, has power to enter into and to perform
its obligations under this Loan Agreement and the Series 1996 Note and has duly
authorized the execution and delivery of this Loan Agreement and the Series 1996
Note by appropriate action.
(b) The Company intends to operate or cause the Project to be operated as
an auto emission testing facility under the IDEM Contract until the expiration
or earlier termination of this Loan Agreement as provided herein.
(c) Neither the execution and delivery of this Loan Agreement, the
consummation of the transactions contemplated hereby and thereby including
execution and delivery of the Series 1996 Note nor the fulfillment of or
compliance with the terms and conditions of this Loan
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Agreement, will contravene any law or any governmental rule, regulation or
order presently binding on the Company or conflicts with or results in a
breach of the terms, conditions or provisions of any corporate restriction or
any agreement or instrument to which Company is now a party or by which it is
bound, or constitutes a default under any of the foregoing, or results in the
creation or imposition of any liens, charges, or encumbrances whatsoever upon
any of the property or assets of Company under the terms of any instrument or
agreement, except as contemplated herein.
(d) The Company represents and warrants that it is now or as of the date
of acquisition thereof will be lawfully seized and possessed and is now or as of
the date of acquisition thereof will be the lawful owner of the Mortgaged
Property, including either a fee simple interest in or a land lease interest in
the Project Sites, free and clear of all liens, security interests, charges or
encumbrances whatever except Permitted Encumbrances, and that the Company will
have full power and lawful authority to mortgage and grant a security interest
in the Company's rights in the Mortgaged Property to the Issuer; and that the
Company will have either good and marketable fee title or lease interest in and
to the Project Sites at the time of acquisition thereof, subject only to
Permitted Encumbrances and will preserve, warrant and defend the same unto the
Issuer against the claims of all persons and parties. This Mortgage and all
amendments thereto will constitute a direct and valid First lien on such
Mortgaged Property, subject only to Permitted Encumbrances. The Mortgaged
Property will constitute the only assets and property, tangible and intangible,
necessary for the performance of the IDBM Contract.
(e) The execution, delivery and performance by the Company of this Loan
Agreement and the Series 1996 Note do not require the consent or approval of,
the giving of notice to, 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, other than as required hereby.
(f) Assuming the due authorization, execution and delivery thereof by the
other parties thereto, this Loan Agreement and the Series 1996 Note have been
duly executed and delivered by the Company and constitute the legal, valid and
binding agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors' rights in general.
The enforceability of the Company's obligations under said documents is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(g) There are no actions, suits or proceedings pending, or to the
knowledge of the Company, threatened, before any court, administrative agency or
arbitrator which, individually or in the aggregate, might result in any material
adverse change in the financial condition of the Company and its subsidiaries
taken as a whole or might impair the ability of the Company to perform its
obligations under this Loan Agreement or the Series 1996 Note, except as
described in Schedule I attached hereto.
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(h) No event has occurred and is continuing which with the lapse of time
or the giving of notice or both would constitute an Event of Default under this
Loan Agreement or the Series 1996 Note.
(i) At the time of acquisition of its interest in the Project Sites, the
Company will represent that to its knowledge, after due inquiry: (i) no person
or entity has used, generated, treated or stored Hazardous Substances on any of
the Project Sites except in accordance with all applicable laws, except for such
use, generation, treatment or storage of Hazardous Substances that will not
reasonably require additional investigation and/or remediation of any individual
Project Site, (ii) no Release or discharge of any Hazardous Substance in, on,
into or beneath the surface of any Project Site or any property adjacent to any
Project Site has occurred, except for such Releases or discharges of Hazardous
Substances that will not reasonably require additional investigation and/or
remediation of any individual Project Site, (iii) no person or entity has
received any notification that it is a potentially responsible party under
Section 107 of CERCLA, or any analogous state or local law providing for the
investigation and remediation of releases of Hazardous Substances, as a result
of the alleged release or disposal of Hazardous Substances on any Project Site,
and (iv) there is no and upon completion of construction of the Project there
will be no urea formaldehyde insulation, asbestos, or underground storage tank
on any Project Site, except to the extent that the existence of such listed
substances, products or equipment is (a) in accordance with all applicable laws
and (b) not reasonably likely to have a material adverse affect on the
liquidation value of the Project Site, and if such representations can not be
given to the satisfaction of the Original Purchaser, the Trustee and the Issuer,
the Company shall not acquire its interest in such land parcels.
Section 2.3. LOAN OF SERIES 1996 BONDS PROCEEDS BY ISSUER. Concurrently
with the execution and delivery hereof, the Issuer is issuing the Series 1996
Bonds and is lending the proceeds from the sale thereof to the Company by making
the deposits and payments specified in Section 3. 1 of the Indenture. Such loan
is being evidenced by the execution and delivery by the Company of the Series
1996 Note substantially in the form attached hereto as Exhibit B.
(End of Article II)
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ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
Section 3.1. CONSENT TO ASSIGNMENTS TO TRUSTEE. The Company acknowledges
and consents to the pledges and assignments of the Series 1996 Note and the
assignment of the Issuer's rights hereunder to the Trustee pursuant to the
Indenture and agrees that the Trustee may enforce the rights, remedies and
privileges granted to the Issuer hereunder other than the rights of the Issuer
under Sections 3.15, 3.17, 3.30 and 3.33(e) hereof and to execute and deliver
supplements and amendments to this Loan Agreement pursuant to Section 9. l
hereof, except that the Trustee may enforce the rights of the Issuer under the
Sections cited above to the extent provided in the Indenture.
Section 3.2. THE LOAN; LOAN PAYMENTS.
The Issuer hereby agrees to loan the proceeds of the Bonds to the Company,
and the Company agrees to accept such loan in accordance with, and subject to,
the provisions of this Loan Agreement.
Subject to the provisions of Section 10.8 hereof, the Company agrees to
make the following Loan Payments:
(1) on or before the last day of each month, commencing March
31, 1997, until such time as the principal of, and the premium, if
any, and interest on the Bonds shall have been paid in full, or
provisions made for such full payment in accordance with the
provisions of the Indenture, to the Trustee for deposit in the Bond
Fund, a sum equal to one third (1/3) of the aggregate amount of
interest payable by the Issuer on the then Outstanding Bonds on the
next succeeding Interest Payment Date; and
(2) on or before the last day of each month, commencing March
31, 1997, to the Trustee for deposit in the Bond Fund, a sum equal to
one third (1/3) of the aggregate amount of principal payable, whether
by redemption or otherwise, by the Issuer on the then Outstanding
Bonds on the next succeeding Interest Payment Date; and
(3) on or before the last day of each month any amounts
necessary to bring current the monthly installments due and payable
during any three (3) month period between Interest Payment Dates; and
(4) all amounts required to assure that such Debt Service
Reserve Fund is Fully Funded as and when required by Section 3.29
hereof and Section 4.5 of the Indenture; and
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(5) all amounts advanced by the Issuer or the Trustee under
authority of this Loan Agreement or the Indenture which the Company is
obligated to repay; and
(6) all amounts required to fund any Breakage Amount or any
other premium due upon redemption of the Bonds; and
(7) all fees and other costs, including without limitation fees
and expenses of counsel to the Trustee, Trustee fees and expenses,
including those payable to the Trustee for services or indemnity under
the Indenture and the fees and other costs, including counsel fees,
incurred for services of any building institution designated as an
additional paying agent.
The monthly Loan Payments payable by the Company under this Loan Agreement
are expected to equal in the aggregate an amount which, with other funds in the
Bond Fund then available for the payment of principal and interest on the Bonds,
shall be sufficient to provide for the payment in full of the interest on, and
principal of the Bonds as they become due and payable on each Interest Payment
Date. The Company shall be entitled to a credit on the last monthly payment due
immediately preceding an Interest Payment Date in the amount of any investment
earnings deposited to the Bond Fund since the Interest Payment Date immediately
preceding. If for any reason the amount deposited in the Bond Fund as
capitalized interest pursuant to Section 3.1 of the Indenture is insufficient to
make the interest payments due on the Bonds on September 1, 1996, December
1,1996 and March l, 1997, the Company shall pay on the last day before each such
Interest Payment Date an amount, which when added to the amount then on deposit
in the Bond Fund, will be sufficient to make the interest payment due on the
Bonds on such Interest Payment Dates.
The Company shall pay, or cause to be paid, the Loan Payments without any
further notice thereof except as may be specifically required by this Section
3.2.
The Company covenants and agrees with and for the express benefit of the
Issuer, the Trustee and the owners of the Bonds that all payments pursuant
hereto and to the Notes and shall be made by the Company on or before the date
the same become due, and the Company shall perform all of its other obligations,
covenants and agreements hereunder (subject to the provisions of Section 10.8
hereof), without notice or demand (except as provided herein), and without
abatement, deduction, reduction, diminution, waiver, abrogation, set-off,
counterclaim, recoupment, defense or other modification or any right of
termination or cancellation arising from any circumstance whatsoever, whether
now existing or hereafter arising, and regardless of any act of God,
contingency, event or cause whatsoever, and irrespective (without limitation) of
whether the Company's Mortgaged Property or any part thereof is defective or
nonexistent, or whether the Company's revenues are sufficient to make such
payments, and notwithstanding any damage to, or loss, theft or destruction of,
the Mortgaged Property or any part thereof, expiration of this Mortgage, any
failure of consideration or frustration of purpose, the taking by eminent domain
or otherwise of title to or of the right of temporary use of, all or any part of
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the Mortgaged Property, legal curtailment of the Company's use thereof, or
whether with or without the approval of the Issuer, any change in the tax or
other laws of the United States of America, the State of Indiana, or any
political subdivision of either thereof, any change in the Issuer's legal
organization or status, or any default of the Issuer hereunder, and regardless
of the invalidity of any portion of this Mortgage; and the Company hereby waives
the provisions of any statute or other law now or hereafter in effect impairing
or conflicting with any of its obligations, covenants or agreements under this
Mortgage or which releases or purports to release the Company therefrom. Nothing
in this Mortgage shall be construed as a waiver by the Company of any rights or
claims the Company may have against the Issuer under this Mortgage or otherwise,
but any recovery upon such rights and claims shall be had from the Issuer
separately, it being the intent of this Mortgage that the Company shall be
unconditionally and absolutely obligated without right of set-off or abatement,
to perform fully all of its obligations, agreements and covenants under this
Mortgage for the benefit of the holders of the Bonds.
It is understood and agreed that all payments made by Company pursuant to
Section 3.2 hereof and the Notes are pledged to Trustee pursuant to the granting
clauses of the Indenture. Company assents to such pledge, and hereby agrees
that, as to Trustee, its obligation to make such payments shall be absolute and
shall not be subject to any defense or any right of set-off, counterclaim or
recoupment arising out of any breach by Issuer or Trustee of any obligation to
Company, whether hereunder or otherwise, or out of any indebtedness or liability
at any time owing to Company by Issuer. Issuer hereby directs Company and
Company hereby agrees to pay to Trustee at its principal office all said amounts
payable by Company pursuant to Section 3.2 hereof and the Notes.
It is understood and agreed that Company shall be obligated to continue to
pay the amounts specified herein and in the Notes whether or not the Project is
damaged, destroyed or taken in condemnation and that there shall be no abatement
of any such payments and other charges by reason thereof.
As security for payment of the Loan Payments, the Company agrees to cause
IDEM to directly transfer the Gross Revenues of the Project to the Trustee for
deposit in the Revenue Fund. The Gross Revenues and any additional amounts paid
by the Company, if necessary, shall be used by the Trustee to pay, throughout
the term of the Loan, the Loan Payments, in such lawful money of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
All transfers of Gross Revenues shall be made to the Trustee at the
designated office of the Trustee in Evansville, Indiana, or at such other
location as shall be designated in writing by the Trustee to the Company and
IDEM.
Section 3.3. MAINTENANCE OF LIEN; RECORDING. The Company will, at its
expense, take all necessary action to maintain and preserve the lien and
security interest of this Mortgage as valid and perfected first liens and
security interests, subject only to Permitted Encumbrances, so long as any Note,
or other indebtedness or obligation secured hereby is outstanding. The
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Company will, forthwith after the execution and delivery of this Mortgage and
thereafter from time to time, cause this Mortgage and any financing
statements in respect thereof to be filed, registered and recorded in such
manner and in such places as may be required by law in order to publish
notice of, perfect, maintain the priority of, and fully to protect the lien
and security interest hereof upon, and the title of the Company to, the
Mortgaged Property; and from time to time will perform or cause to be
performed any other act as provided by law and will execute or cause to be
executed any and all continuation statements and further instruments that may
be requested by the Issuer, the Original Purchaser or Trustee for such
publication, perfection, maintenance of priority, and protection. The Company
will pay or cause to be paid all filing, registration and recording fees
incident to such filing, registration and recording, and all expenses
incident to the preparation, execution and acknowledgment of such instruments
of further assurance, and all federal or state fees and other similar fees,
duties, imposts, assessments and charges arising out of or in connection with
the execution and delivery of this Mortgage and such instruments of further
assurance.
Section 3.4. FURTHER ASSURANCES; AFTER-ACQUIRED PROPERTY. (a) The Company
will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, conveyances,
mortgages, assignments, transfers and assurances as the Issuer, the Original
Purchaser or Trustee reasonably may require for the better assuring, conveying,
mortgaging, assigning and confirming unto the Issuer and the Trustee all and
singular the Mortgaged Property as now or hereafter constituted, within ten (10)
days of any request of the Issuer, Trustee or Original Purchaser.
(b) Without the need for any request by the Issuer, the Original Purchaser
or the Trustee, all right, title and interest of the Company in and to all
improvements, betterment, renewals, substitutions and replacements of, the
Mortgaged Property or any part thereof, hereafter constructed or acquired by the
Company, and all additions and accessions thereto and proceeds thereof
immediately upon such construction or acquisition, without any further
mortgaging, conveyance or assignment, shall become and be part of the Mortgaged
Property and shall be subject to the lien and security interest of this Mortgage
and Parity Instruments as fully and completely and with the same effect as
though now owned by the Company, but at any and all times the Company will
execute and deliver to the Issuer and the Original Purchaser any and all such
further assurances, mortgages, conveyances or assignments therefor and other
instruments with respect thereto as the Issuer or the Original Purchaser may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Mortgage.
Section 3.5. CORPORATE EXISTENCE. (a) So long as debt is outstanding
under the Public Debt Instruments, not later than thirty (30) days prior to the
effective date thereof, the Company will give written notice to the Issuer, the
Trustee and each Bondholder of any change or proposed change in its corporate
existence, including without limitation dissolution, merger, consolidation, or
reorganization.
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(b) When debt is no longer outstanding under the Public Debt
Instruments, not later than thirty (30) days prior to the effective date
thereof, the Company will give written notice to the Issuer, the Trustee
and each Bondholder of any change or proposed change in its corporate
existence, will not dissolve or otherwise dispose of all or substantially
all of its assets, and will not consolidate with or merge into another
corporation, or permit one or more other corporations to consolidate or
merge with it; provided, that the Company may, without violating the
agreement contained in this Section, consolidate or merge with another
corporation, permit one or more other corporations to consolidate or merge
into it, or transfer to another corporation organized under the laws of one
of the states of the United States all or substantially all of its assets
as an entirety and thereafter dissolve provided (i) the surviving,
resulting or transferee corporation, as the case may be, is organized under
the laws of one of the states of the United States, and remains or becomes
qualified to do business in the State, (ii) such corporation assumes in
writing all of the obligations of the Company herein, including the
obligations of the Company under this Section, and (iii) such corporation
shall have a rating the same as or higher than the Company's rating on its
public debt as rated on the date of delivery of the Series 1996 Note and if
the Company's public debt is not rated after such merger or consolidation,
such corporation shall have a net worth equal to or higher than the net
worth of the Company on the date of delivery of the Series 1996 Note.
Section 3.6. FINANCIAL REPORTING. (a) The Company agrees to keep at all
times books and records and accounts in which full, true and correct entries
will be made of all dealings or transactions in relation to the business and
affairs of the Company in accordance with generally accepted accounting
principles consistently applied.
(b) The Company shall furnish to the Trustee and to the Bondholders:
(i) for as long as any of the Public Debt Instruments are in
effect, copies of all information filed with the Securities and
Exchange Commission as well as all compliance certificates, reports
and information required to be delivered to the trustees under the
Public Debt Instruments, as and when the same are provided to such
trustees; and
(ii) at such time as the Company is no longer a reporting company
under the 1934 Act, at all times not covered by (i) above, (A) within
45 days after the end of each fiscal quarter of each calendar year of
the Company, unaudited quarterly financial statements of the Company,
attested to by the chief financial officer of the Company; and (B)
within 120 days after the close of each fiscal year, a copy of the
annual Financial statements and annual consolidating statements of the
Company, audited by an independent certified public accountant
selected by the Company which shall be a nationally recognized Big Six
accounting firm or otherwise reasonably acceptable to the Trustee and
the
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Original Purchaser and accompanied by an opinion of such accountants
unqualified as to scope; and
(iii) at such time as the Company is no longer a reporting
company under the 1934 Act, an authorized officer the Company shall
certify annually that he has obtained no knowledge of the occurrence
of any material adverse change in the financial condition of the
Company.
In addition, the Company shall furnish such additional information as the
Issuer, the Trustee or the Original Purchaser may reasonably request concerning
the Company, insofar as such information may be provided without violation of
the provisions of the 1934 Act, in order to enable the Issuer, the Trustee or
the Original Purchaser to determine whether the covenants, terms and provisions
of this Loan Agreement have been complied with by the Company and for that
purpose all pertinent financial books, documents and vouchers relating to its
business affairs and properties shall at all times upon reasonable prior notice
during regular business hours be open to the inspection of such persons or their
accountants or other agents (who may make copies of all or any part thereof) as
shall from time to time be designated by the Issuer, the Trustee or the Original
Purchaser. The party making any such request shall bear the expenses incurred in
connection with honoring the request.
Without limiting the foregoing, the Company will permit the Issuer, the
Trustee and the Original Purchaser (or such persons as the Original Purchaser
may designate) to visit and inspect, at the expense of the Issuer, the Trustee
or the Original Purchaser, any of the properties of the Company and to discuss
the affairs, fiances and accounts of the Company with its officers and
independent accountants, in so far as such information may be provided without
violation of the provisions of the 1934 Act, all upon reasonable prior notice
and at such reasonable times during normal business hours and as often as the
Trustee or the Original Purchaser may reasonably desire. Access to and
inspections of the Project and Project Sites during the period of construction
of the Project shall be governed solely by Section 3.25 of this Loan Agreement.
Section 3.7. TAXES, CHARGES AND ASSESSMENTS. The Company covenants and
agrees, subject to the provisions of Section 3.10 hereof, to pay when the same
shall become due or payable:
(a) all taxes and charges on account of the ownership, use, occupancy
or operation of the Mortgaged Property, including but not limited to all
sales, use, occupancy, real and personal property taxes, all permit and
inspection fees, occupation and license fees and all water, gas, electric
light, power or other utility charges assessed or charged on or against
such Mortgaged Property or on account of the Company's use or occupancy
thereof or the activities conducted thereon or therein; and
(b) all taxes, assessments and impositions, general and special,
ordinary and extraordinary, of every name and kind, which shall be taxed,
levied, imposed or assessed upon all or any part of such Mortgaged
Property, or the interest of the Company therein.
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If under applicable law any such tax, charge, fee, rate, imposition or
assessment may at the option of the taxpayer be paid in installments, the
Company may exercise such option.
Nothing contained herein shall be deemed to constitute an admission by the
Company that the Company is liable for any tax, charge, fee, rate, imposition or
assessment.
Section 3.8. LIENS. Subject to the provisions of Section 3.10 hereof, the
Company will not allow to exist and will not create or permit to be created or
exist and will, at its cost and expense, promptly discharge all liens, security
interests, encroachments, encumbrances and charges on the Mortgaged Property or
any part thereof that are not Permitted Encumbrances.
Section 3.9. COMPLIANCE WITH ORDERS, ORDINANCES, ETC. Subject to the
provisions of Section 3.10 hereof, the Company will, at its sole cost and
expense, comply with all present and future laws, ordinances, orders, decrees,
rules, regulations and requirements of every duly constituted governmental
authority, commission and court and the officers thereof of which it has notice,
and the failure to comply with which would materially and adversely affect the
Mortgaged Property or the use, occupancy or condition thereof.
Section 3.10. PERMITTED CONTESTS; WAIVER BY REQUISITE BONDHOLDERS. The
Company shall not be required to pay any tax, charge, fee, rate, imposition or
assessment required to be paid under Section 3.7 hereof, nor to remove any lien,
security interest, encroachment, encumbrance or charge required to be removed
under Section 3.8 hereof, nor to comply with any law, ordinance, order, decree,
rule, regulation or requirement referred to in Section 3.9 hereof, so long as
the Company shall in good faith and at its cost and expense, and after providing
the Issuer and the Original Purchaser with written notice, contest the amount or
validity thereof, or take other appropriate action with respect thereto, in an
appropriate manner or by appropriate proceedings, which shall operate during the
pendency thereof to prevent (a) the collection of or other realization upon the
tax, charge, assessment, lien, security interest or encumbrance so contested and
(b) the sale, forfeiture or loss of the Mortgaged Property or any part thereof
to satisfy the same; and provided that no such contest or action shall subject
the Issuer or the Trustee to any liability unless the Company properly
indemnifies the Issuer or the Trustee, as the case may be. While any such
matters are pending, the Company shall have the right to pay, remove or cause to
be discharged or marked exempt the tax, charge, assessment, lien, security
interest or encumbrance being contested. Each such contest shall be promptly
prosecuted to final conclusion or settlement, and the Company will pay, and save
the Issuer and the Trustee harmless against, all losses, judgments, decrees and
costs (including attorneys' fees and expenses in connection therewith) and will,
promptly after the final determination or settlement of such contest or action,
pay and discharge the amounts which shall be levied, assessed or imposed or
determined to be payable thereon, together with all penalties, fines, interests,
costs and expenses thereon or in connection therewith. During the pendency of
each such contest, the Company shall maintain appropriate reserves for any
contested liability, which reserves will be maintained with the Trustee as
required in order for such liens to be considered Permitted Encumbrances.
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Section 3. 11. REPAIRS, MAINTENANCE AND ALTERATIONS. The Company will at
its own cost and expense keep the Mortgaged Property in good repair and order,
reasonable wear and tear excepted, and in as reasonably safe condition as its
operation will permit and will make all necessary repairs thereto, interior and
exterior, structural and non-structural, ordinary as well as extraordinary and
foreseen as well as unforeseen, and all necessary replacements or renewals.
The Company shall have the right from time to time at its own cost and
expense to make additions, alterations and changes, whether structural or non-
structural (hereinafter collectively referred to as "alterations") in or to the
Mortgaged Property; provided, however, that any additions, alterations and
changes shall not diminish the value of the Mortgaged Property in any material
respect, except such changes or modifications as required by IDEM or the
provisions of the IDEM Contract.
Section 3.12. COMPANY DUTIES UNDER INDENTURE. The Company agrees to
perform all obligations under the Indenture to be performed by the Company and
to comply with all provisions of the Indenture applicable to the Company.
Section 3.13. INSURANCE. The Company shall maintain the following
insurance at its sole cost and expense:
(a) Insurance against loss and/or damage to the Mortgaged Property
under a policy or policies covering such risks as are ordinarily insured
against by similar companies, but in any event including fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, civil commotion,
damage from aircraft, smoke and uniform standard extended coverage and
vandalism and malicious mischief endorsements, limited only as may be
provided in the standard form of such endorsements at the time in use in
the State of Indiana. Such insurance shall be in such amount as shall be
approved by the Requisite Bondholders. No policy of insurance shall be so
written that the proceeds thereof will produce less than the minimum
coverage required by the preceding sentence, by reason of co-insurance
provisions or otherwise, without the prior consent thereto in writing by
the Requisite Bondholders.
(b) Comprehensive general public liability insurance for injuries to
persons and/or property, in limits not less than, and with deductibles not
greater than, that approved by the Requisite Bondholders.
(c) Workmen's compensation insurance respecting all employees of the
Company in such amount as is customarily carried by like organizations
engaged in like activities of comparable size and liability exposure;
provided that the Company may be self-insured with respect to all or any
part of its liabilit0y for workmen's compensation.
(d) Business interruption insurance with a minimum coverage amount of
$1,000,000 and for a period at least equal to the shortest of (i) the time
required to
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resume normal business operations, (ii) the time reasonably necessary
to repair, rebuild or replace the damaged property or (iii) six months.
(e) Professional liability or malpractice insurance in limits not
less than that which is customarily carried by like organizations engaged
in like activities of comparable size and liability exposure.
Each policy of insurance shall (i) be issued by one or more recognized,
financially sound and responsible insurance companies qualified or authorized
under the laws of the State of Indiana to assume the risks covered by such
policy, (ii) name the Trustee, the Company, and the Issuer as assureds, as their
respective interests may appear, and (iii) provide that such policy shall not be
cancelled without at least 30 days prior written notice to each assured named
therein. With respect to the insurance required by subsection (a) above, the
policy or policies shall provide that whenever the Net Proceeds resulting from a
claim exceed $100,000, such Net Proceeds shall be payable to the Trustee, and if
such Net Proceeds are equal to or less than $100,000, such Net Proceeds shall be
payable directly to the Company. As to the insurance required by subsections
(b) through (e) above, the Net Proceeds shall be payable to or for the benefit
of the Company.
Upon the delivery of this Loan Agreement and thereafter not less than 10
days prior to the expiration dates of any policies, certificates, binders, or
other evidence of insurance satisfactory to the Trustee given by the respective
insurers of such policies shall be delivered by the Company to the Trustee. If
requested in writing by the Trustee, the Company shall furnish the Trustee with
the schedule of premium payment dates and receipted bills or other evidence
satisfactory to the Trustee of the payment when due of all premiums for all
policies of insurance at any time required to be maintained hereunder. Upon
reasonable prior written notice the Company will permit the Trustee to visit the
offices of the Company and inspect the Company's insurance records including all
policies of insurance maintained pursuant to this Section and to make copies of
all or any part thereof.
Any of the foregoing insurance maintained by the Company pursuant hereto
may be evidenced by one or more blanket insurance policies covering the
Mortgaged Property and other property or assets of the Company.
Section 3.14. TRUSTEE'S RIGHT TO PERFORM COMPANY'S COVENANTS; ADVANCES.
In the event the Company shall fail to (i) perform any covenant contained in
Section 3.7 hereof, (ii) remove any lien, security interest, encumbrance or
charge pursuant to Section 3.8 hereof, (iii) maintain the Mortgaged Property in
repair pursuant to Section 3. 11 hereof, (iv) procure the insurance required by
Section 3. 11 or 3. 13 hereof, or (v) fail to make any other payment or perform
any other act required to be performed hereunder, then and in each such case
(unless the same is being contested or other appropriate action is being taken
with respect thereto pursuant to Section 3. 10 hereof) the Trustee, upon not
less than 5 days prior written notice to the Company, may (but shall not be
obligated to) remedy such default for the account of the Company and make
advances for that purpose. No such performance or advance shall operate to
release the
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Company from any such default, and any sums so advanced by the
Trustee shall be due and payable by the Company on demand and shall bear
interest at the Default Rate from the date of the advance until repaid.
Section 3.15. INDEMNITY. Subject to the provisions of the second to last
paragraph of this Section, the Company will pay, and protect, indemnify and save
the State, the Issuer (including members, directors, officers, agents, attorneys
and employees thereof), the Bondholders and the Trustee harmless from and
against, all liabilities, losses, damages, costs, expenses (including attorneys'
fees and expenses of the Issuer and the Trustee), causes of actions, suits,
claims, demands and judgments of any nature arising from or relating to:
(a) The acceptance or administration of the Indenture or the trusts
thereunder or the performance of the Issuer's duties thereunder, except
with respect to liability from such Trustees' negligence or willful
misconduct in connection with such action taken;
(b) Any injury to or death of any person or damage to property in or
upon the Project or resulting from or connected in any way to the
financing, construction, maintenance, operation, use, non-use, condition or
occupancy of the Project or a part thereof;
(c) Violation of any agreement or condition of this Loan Agreement or
the Indenture, except by the Issuer or the Trustee;
(d) Violation of any contract, agreement or restriction by the
Company relating to the Project or a part thereof;
(e) Violation of any law, ordinance or regulation arising out of the
ownership, occupancy or use of the Project or a part thereof;
(f) Undertaking the Project or the failure to undertake the Project;
(g) Any act, failure to act, or misrepresentation by the Company, or
any of the Company's agents, contractors, servants, employees or licensees;
(h) Any act, omitted act, or misrepresentation by the Issuer, other
than a failure to seek an appropriation from the Indiana General Assembly
as required by Section 4.6 of the Indenture, in connection with or in the
performance of any obligation related to the issuance, sale, or delivery of
(or failure to issue, sell or deliver) the Bonds under this Loan Agreement
or the Indenture, or any other agreement executed by or on behalf of the
Issuer (provided that nothing in this clause should be construed to
indemnify or release the Issuer from any liability which it would otherwise
have had arising from the intentional misrepresentation or wilful
misconduct on the part of the Issuer other than as contemplated in this
Loan Agreement); and
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(i) The authorization, issuance, sale, trading, redemption, or
servicing of the Bonds and the provision of any information or
certification furnished by the Company in connection therewith, concerning
the Bonds, the Project or the Company.
The foregoing indemnification shall survive the termination of this Loan
Agreement and the payment or satisfaction of the indebtedness and obligations
secured hereby except as provided in Section 10.8 hereof.
Notwithstanding the foregoing, the obligation to indemnify, defend and hold
harmless the State, acting by and through IDEM, for liability arising from the
performance of the IDEM Contract, shall be limited to such liability caused by
any act or omission of the Company and/or its subcontractors under the IDA
Contract, if any.
The foregoing shall not be construed to prohibit the Company from pursuing
its remedies against either the Issuer or the Trustee for damages to the Company
resulting from personal injury or property damage caused by the intentional
misrepresentation or willful misconduct of either the Issuer or the Trustee or
the negligence or willful misconduct of the Trustee or breach of the Indenture
by the Trustee.
Section 3.16. ISSUANCE OF SUBSTITUTE NOTES. Upon the surrender of any
Note or upon the receipt of a written notice of loss, theft, destruction or
mutilation of any Note, the Company will execute and deliver to the holder
thereof a new Note dated the date of the Note being surrendered or the original
date of the Note in the case of any lost, stolen, destroyed or mutilated Note,
but with appropriate notations thereon to reflect payments of principal and
interest thereon; provided, however, that there shall never be outstanding at
any one time more than one Note of any one series. Prior to execution and
delivery of any such replacement Note the Company shall be indemnified to its
reasonable satisfaction by the person seeking such replacement Note.
Section 3.17. PAYMENT OF EXPENSES OF ISSUANCE OF SERIES 1996 BONDS. The
Company agrees to be liable for and pay for any recording expenses, trustee's
acceptance fees, commitment fees, escrow and title insurance costs, legal fees,
printing expenses and other fees and expenses incurred or to be incurred by or
on behalf of the Issuer and the Trustee in connection with or as an incident to
the issuance and sale of the Series 1996 Bonds and the subsequent administration
of this Loan Agreement. To the extent the foregoing are Costs of Construction,
such costs, fees and expenses shall be paid with the proceeds of the Series 1996
Bonds pursuant to the Indenture.
Section 3.18. MORTGAGEE TITLE INSURANCE POLICY. Concurrently with the
acquisition of each Project Site the Company will deliver to the Issuer, Trustee
and Original Purchaser an ALTA policy or policies of mortgagee title insurance
in a form acceptable to the Issuer, Trustee and Original Purchaser in the
aggregate amount equal to the purchase price of the land, building improvements
and fixtures constituting the Project, issued by a title insurance company
satisfactory to the Issuer, the Trustee and the Original Purchaser, insuring
that the Trustee has
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a first mortgage lien on the Mortgaged Property, subject only to Permitted
Encumbrances, if any. Any Net Proceeds received from such policy or policies
shall be deposited in the Redemption Account for the redemption of Bonds in
order to effect a prepayment of a portion of the Note as provided in Section
5.2 hereof.
Section 3.19. FUNDING OF INDENTURE FUNDS; INVESTMENTS. The Issuer shall
deposit with the Trustee all proceeds from the sale of the Series 1996 Bonds in
the manner specified in Article ffl of the Indenture, and the Trustee shall
deposit such proceeds in the manner specified in such Article. Further, the
Company shall deposit with the Trustee an amount sufficient, when added to the
amount already deposited in the Debt Service Fund, to cause the Debt Service
Reserve Fund to be Fully Funded.
The Trustee is hereby authorized, upon the direction of the Company, to
trade with itself in the purchase and sale of securities for such investments.
The Trustee shall not be liable or responsible for any loss resulting from any
such investment. All such investments shall be held by or under the control of
the Trustee and any income resulting therefrom shall be applied in the manner
specified in the Indenture.
Section 3.20. OTHER AMOUNTS PAYABLE BY THE COMPANY. The Company agrees to
pay directly to the Trustee from time to time as long as there are Bonds
Outstanding an amount equal to the fees and expenses of the Trustee for the
services of the Trustee, as trustee, and as bond registrar and paying agent and
for the necessary extraordinary services rendered by it and extraordinary
expenses incurred by it under the Indenture, as and when the same become due.
Notwithstanding anything in this Section 3.20 to the contrary, the Company may,
without creating an event of default as herein deemed, contest in good faith the
necessity for any such services, fees, charges or expenses of the Trustee.
Section 3.21. LEASED MORTGAGED PROPERTY.
(a) The Company will pay or cause to be paid all rents, additional
rents, taxes, assessments, water rates, sewer rates, and other charges
mentioned in and made payable by the Company under the terms of any lease
or other agreement pursuant to which the Company is the lessee of any
Project Site or Equipment (a "Lease"), when and as often as the same shall
become due and payable.
(b) The Company: (i) will at all times promptly and faithfully keep
and perform, or cause to be kept and performed, all the covenants and
conditions contained in each Lease to be kept and performed by the Company
and will in all respects conform to and comply with the material terms,
covenants and conditions of each Lease; (ii) will do all things necessary
to preserve and to keep unimpaired its rights and estate under each Lease;
and (iii) will not do or permit anything to be done, the doing of which, or
refrain from doing anything, the omissions of which, will be grounds for
declaring a forfeiture or termination, in whole or in part, of any Lease.
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(c) The Company will not modify, extend, change, amend or in any way
alter the terms of any Lease of any Project Site or terminate, cancel or
surrender any such Lease, or waive, excuse, condone or in any way release
or discharge the lessor thereunder of or from any of the lessor's interest,
obligations, covenants, conditions and agreements by such lessor to be done
and performed.
(d) The Company will (i) promptly notify the Trustee in writing of
the receipt by the Company of any notice from the lessor under any lease
notice or claiming any default by the Company in the performance or
observance of any of the terms, covenants, or conditions on the part of the
Company under such Lease; and (ii) promptly notify the Trustee in writing
of the receipt by the Company of any notice from the lessor of any Lease to
the Company of any notice from such lessor of termination of such Lose.
Section 3.22. COMPLETION OF PROJECT.
(a) Company agrees that:
(i) It will make, execute, acknowledge and deliver any
contracts, orders, receipts, writings and instructions with any other
persons, fins or corporations and in general do all things which may
be requisite or proper, all for completing the Project.
(ii) It will construct the Project in accordance with the final
plans and specifications approved by IDEM, will substantially complete
construction of the Lake/Porter portion of the Project by July l, 1997
and the Clark/Floyd portion of the Project by August 1,1997, and will
comply in all material respects with all restrictions, conditions,
ordinances, codes, regulations, and laws of all governmental
authorities and agencies having jurisdiction over or an interest in
the Project or any portion thereof.
(iii) It will, upon completion of the Project, furnish to the
Trustee (i) final lien waivers from all contractors or suppliers who
have furnished material or labor for the Project; (ii) a final
endorsement to the mortgagee title insurance policy or policies
required by Section 3.18 hereof, reflecting completion of the Project.
In the event the moneys in the Construction Fund should not be sufficient
to pay in full the costs to be paid therefrom, the Company agrees, for the
benefit of the Issuer and the Bondholders and in order to fulfill the purposes
of the Act, to complete the Project and to pay that portion of the costs
therefor as may be in excess of the moneys available therefor in such
[MISSING ORIGINAL PAGE 29]
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(ii) Notwithstanding the foregoing, but subject to receipt of prior
written consent from the Issuer and the Original Purchaser, the Company may
sell all or any portion of any Project Site that is no longer needed to
perform its obligations under the IDEM Contract at such Project Site. All
proceeds received by the Company (net of reasonable selling expenses
actually incurred by the Company, not exceeding five percent (5%) of such
proceeds) as a result of any such action shall be paid to the Trustee for
deposit to the Redemption Account for redemption of Bonds in order to
effect prepayment of a portion of the Note in accordance with Section 5.2
hereof. If the Company purchases or otherwise acquires an alternative
Project Site to replace an existing Project Site, the alternative Project
Site shall become Mortgaged Property. Following the execution, delivery
and recording by the Company of such documents as may be necessary to
subject such alternative Project Site to the lien of this Mortgage, subject
only to Permitted Encumbrances, the Company may, subject to receipt of
prior written consent from the Issuer and the Original Purchaser, sell the
replaced Project Site, and all proceeds received upon such sale shall be
applied as follows: (1) an amount equal to the excess of such proceeds over
the price paid by the Company to acquire the alternative Project Site shall
be paid to the Trustee for deposit to the Redemption Account for redemption
of Bonds in order to effect prepayment of a portion of the Note in
accordance with Section 5.2, and (2) the remainder shall be released to the
Company. Upon paying over the proceeds of sale in accordance with this
clause (ii), the lien of this Mortgage against the Project Site so sold
shall be released. No release effected under the provisions of this Section
3.23 shall, except to the extent provided in Section 5.4 hereof, entitle
the Company to any abatement or diminution of the payments to be made
hereunder.
Section 3.24. SUBSTITUTION AND REMOVAL OF EQUIPMENT. Except as provided
in this Section and Section 3.23 hereof, Equipment comprising part of the
Mortgaged Property shall remain in or near the buildings comprising the
Mortgaged Property and on the site thereof. The Company may from time to time
substitute Equipment in the Mortgaged Property if the Equipment so substituted
shall be of equivalent utility to that replaced, and if such substitution is
made in accordance with the terms of the IDEM Contract. Such substituted
Equipment shall become a part of the Mortgaged Property and be included under
the terms of the Mortgage, and the replaced Equipment shall become the property
of the Company free and clear of any claims of the Issuer, the Trustee or the
Bondholders therein or thereto, upon payment to the Trustee, for deposit to the
Redemption Account for the redemption of Bonds in order to effect the prepayment
of a portion of the Note in accordance with Section 5.2, of (1) if the replaced
Equipment is sold by the Company, the amount by which the proceeds of such sale
(net of reasonable selling expenses actually incurred by the Company) exceed the
purchase price paid by the Company for the substituted Equipment, or (2) if the
Equipment is not sold by the Company, the amount by which the fair market value
of the replaced Equipment exceeds the purchase price paid by the Company for the
substituted Equipment. Any such substituted Equipment with an aggregate fair
market value in excess of $100,000 shall be identified in writing by the Company
to the Trustee, and the Original Purchaser and shall require the consent of the
Original Purchaser.
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The Trustee, at the request of the Company, shall release from the lien of
the Mortgage any Equipment comprising part of the Mortgaged Property without
substitution therefor so long as such property is no longer used by or useful to
the Company in the performance of its obligations under the IDEM Contract
(whether by reason of changed techniques, obsolescence, depreciation or
otherwise), provided that the Company shall pay to the Trustee for deposit in
the Redemption Account (i) if such Equipment is sold, all proceeds from the sale
of such Equipment (net of reasonable selling expenses actually incurred by the
Company) or (ii) if such Equipment is not sold the fair market value, if any, of
the Equipment and such amount shall be used for redemption of the Bonds in order
to effect prepayment of a portion of the Notes as provided in Section 5.2
hereof. Upon such payment, the Equipment shall be free and clear of any claims
of the Issuer, the Trustee or the Bondholders. This provision shall not entitle
the Company to any abatement or diminution of the payments payable hereunder.
The Issuer and Company agree to execute and deliver such documents (if any)
as the Issuer or Company or Trustee may reasonably request in connection with
any action taken by the Issuer or Company under this Section.
Section 3.25. RIGHT OF ACCESS TO THE MORTGAGED PROPERTY. The Company
shall allow the Original Purchaser and its agents at all reasonable times during
development and construction of the Project, entry and free access to the
Project, and to inspect all work done, labor performed and materials furnished
on or about the Project. Without limiting the generality of the foregoing,
Purchaser shall have the right to have materials and work tested at the
Company's expense by third parties selected by the Original Purchaser if
reasonably deemed necessary by the Original Purchaser. Company agrees that any
inspection by the Original Purchaser of the improvements is for the purpose of
protecting the security of the Original Purchaser. No such inspection shall be a
representation by the Original Purchaser that there has been strict compliance
by the general contractor or any subcontractor with the approved plans and
specifications or that the construction is free from faulty materials or
workmanship, nor shall any inspection by the Original Purchaser constitute
approval of any certification given to the Original Purchaser or relieve any
person making such certification from responsibility therefor.
Section 3.26. RESERVED.
Section 3.27. RESERVED.
Section 3.28. SECURITY AGREEMENT. (a) With respect to those items
referenced in the Granting Clauses in which a security interest may be created
under Article 9 of the Uniform Commercial Code, as adopted and in effect in the
State (herein sometimes referred to as the "Collateral"), this Loan Agreement is
hereby made and declared to be a security agreement encumbering each and every
item of such property comprising a part of the Collateral, in compliance with
the provisions of the Uniform Commercial Code as adopted and in effect in the
State. The Company hereby authorizes the Issuer, and the Trustee as the assignee
of the Issuer, to execute and file, without necessity for the execution thereof
by the Company, any financing statements, continuation statements, or other
instruments or documents that the Issuer or the
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Trustee may deem necessary or desirable to perfect and maintain the lien of
this security agreement upon the Collateral and all parts thereof. The
Company and Issuer agree that the filing of any such financing statement(s)
in the records normally having to do with personal property shall not in any
way affect the agreement of the parties hereto that all Equipment used in
connection with the production of income from the Mortgaged Property or
adapted for use therein or which is described or reflected in this Loan
Agreement is, and at all times and for all purposes and in all proceedings,
both legal and equitable, shall be regarded as part of the real estate
conveyed hereby regardless of whether any such item is physically attached to
the improvements or that serial numbers are used for the better
identification of certain items capable of being thus identified in an
exhibit hereto, or as any such item is referred to or reflected in any such
financing statement(s) so filed at any time.
(b) The mention in any such financing statement(s) of the rights in
and to (i) the proceeds of any insurance policy, (ii) any award in
condemnation or eminent domain proceedings for a taking or for loss of
value, or (iii) Company's interest as landlord in any present or future
lease or sublease or rights to income growing out of the use and/or
occupancy of the Mortgaged Property, whether pursuant to a tenant lease of
space or otherwise, shall not in any way alter any of the rights of the
Issuer as determined by this Loan Agreement or affect the priority of the
Issuer's security interest granted hereby or by any other recorded
document, it being understood and agreed that such mention in such
financing statement(s) is solely for the protection of the Issuer in the
event any court shall at any time hold with respect to the foregoing
clauses (i) to (iii) of this Section 3.28(b) that notice of the Issuer's
priority of interest, to be effective against a particular class of
persons, must be filed in the Uniform Commercial Code records.
(c) The security interest granted herein shall attach as soon as the
Company obtains any interest in any of the Collateral and before the
Collateral becomes fixtures or before the Collateral is installed or
affixed to any other collateral for the benefit of Issuer, to secure the
indebtedness evidenced by the Company's Notes and all other indebtedness
and obligations secured by this Loan Agreement, and all other sums and
charges which may become due hereunder or thereunder. The security interest
granted to the Issuer shall cover cash and non-cash proceeds of the
Collateral, but nothing contained herein shall be construed as authorizing,
either expressly or by implication, the sale or other disposition of the
Collateral by the Company except on the terms and conditions set forth in
this Loan Agreement.
(d) In the event of a default hereunder, the Issuer (or the Trustee
as the assignee of the Issuer), pursuant to said Uniform Commercial Code
shall have the option of proceeding as to both real and personal property
in accordance with its rights and remedies in respect of the real property,
in which event the default and remedy provisions of the Uniform Commercial
Code shall not apply. The parties agree that, in the event an election is
made to proceed with respect to the Collateral separately from the real
property, the requirement of the Uniform Commercial Code as to reasonable
notice of any proposed sale or disposition of the Collateral shall be met
if such notice is
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mailed to the Company at the address for notice set forth
herein at least five (5) days prior to the time of such sale or
disposition.
(e) All replacements, substitutions and additions, and accessions to
the Collateral shall become and be immediately subject to the security
interest of this Loan Agreement and shall be covered thereby. Company
warrants and represents that all Collateral now is, and that all
replacements thereof, substitutions therefor or additions and accessions
thereto will be, free and clear of liens, encumbrances or security
interests of others, except for Permitted Encumbrances.
(f) Company warrants that (i) its name, identity, and principal place
of business are as referred to in Article X hereof; (ii) it has been using
or operating under said name and identity without change for a continuous
period of more than four (4) months prior to the date hereof; and (iii) the
location of all tangible Collateral will be the real estate constituting
the Project Sites to be acquired with the proceeds the Series 1996 Bonds.
Company covenants and agrees that it will furnish the Issuer and Trustee
with notice of any change in the matters addressed by clauses (i) or (iii)
of this Section 3.28(f) at least thirty (30) days prior to the effective
date of any such change, and Company will promptly execute any financing
statement(s) or other instrument(s) deemed necessary by the Issuer or
Trustee to prevent any filed financing statement from becoming misleading
or losing its perfected status.
(g) Some of the items comprising the Collateral are goods that are or
are to become, fixtures related to the real estate described on Exhibit A
attached hereto and it is intended that, as to those goods, this Loan
Agreement shall be effective as a financing statement filed as a fixture
filing from the date of its filing for record in the real estate records of
the county in which the real estate is located. The information in this
Section 3.28(g) is provided in order that this Loan Agreement shall comply
with the requirements of the Uniform Commercial Code as enacted in the
State of Indiana, for mortgage instruments to be filed as financing
statements. The Company is the "Debtor" and its name is as set forth in the
definition thereof contained herein. The "Secured Party" is the Issuer with
the Trustee being its assignee, and their respective names are as set forth
in the definitions thereof contained herein. The mailing address of the
Company, location of the chief executive offices of the Company and mailing
address of the Trustee and Issuer from which information concerning the
security interest granted herein may be obtained is set forth in Article X
hereof. A statement indicating the types or describing the items
comprising the Collateral is set forth hereinabove.
Section 3.29. BALANCE IN THE DEBT SERVICE RESERVE FUND. Except when the
Company's obligations under this Loan Agreement have been released pursuant to
Section 10.8 hereof, at any time that the Debt Service Reserve Fund is less than
Fully Funded and the Company has received notice of such deficiency from the
Trustee pursuant to Section 4.5 or 4.6 of the Indenture, the Company immediately
shall deposit moneys with the Trustee for deposit in the Debt Service Reserve
Fund as required under the Indenture so that it is Fully Funded.
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Section 3.30. REIMBURSEMENT OF ISSUER. Upon demand, the Company shall
deposit money with the Trustee to reimburse the Issuer for (a) any deposits made
to the Debt Service Reserve Fund by the Issuer or the State, from whatever
source, in order to maintain the Debt Service Reserve Fund as Fully Funded,
except when the Company's obligations under this Loan Agreement have been
released pursuant to Section 10.8 hereof; and (b)all costs and expenses
(including attorneys' fees and expenses and court costs) incurred by the Issuer
or the State to enforce the obligations of the Company under this Loan
Agreement. In addition, the Company shall pay interest at the Default Rate on
the amounts owed under the preceding sentence from the date of demand until such
amounts are paid to the Issuer.
Section 3.31. MAINTENANCE OF LICENSES AND PERMITS. The Company shall
maintain all material licenses, permits and all related or other material
agreements necessary for the Company to operate the Project and perform the IDEM
Contract. The Company will at all times comply with any and all governmental
authority that may at any time have jurisdiction or power to regulate, license,
or grant permits in respect of the facilities or activities of the Company,
whether such regulations, rules, or requirements presently exist, or are
modified, promulgated, or implemented after the date hereof, if the failure to
comply might have or result in a material, adverse impact on the Company's
ability to perform its obligations under the IDBM Contract or this Loan
Agreement.
Section 3.32. NOTICES OF DISPUTES, DEFAULTS AND OTHER MATTERS. The
Company shall promptly give written notice to the Issuer and the Original
Purchaser of:
(a) Except when the Company is a reporting company under the 1934
Act, any citation, order to show cause, or other legal process or order
that could have a material adverse effect on the Company, directing the
Company to become a party to or to appear at any proceeding or hearing by
or before any governmental authority that has granted to the Company a
material license, contract, certificate of compliance or permit, and
include with such notice a copy of any such citation, order to show cause,
or other legal process or order;
(b) Any (i) refusal or failure of any governmental authority to renew
or extend any material license or governmental approval necessary to
perform the IDEM Contract; or (ii) proposed or actual revocation,
termination, or modification (whether favorable or adverse) thereof; or
(iii) dispute or other action with respect thereto; or (iv) denial or
threatened denial or revocation or modification by any governmental
authority of any material license or governmental approval necessary to
perform the IDEM Contract; or (v) notice from any governmental authority of
the imposition of any material fumes or penalties or forfeitures with
respect to the IDEM Contract; or (vi) threat or notice with respect to any
of the foregoing or with respect to any proceeding or hearing that might
result in any of the foregoing;
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(c) Any dispute concerning, or any threatened nonrenewal or
modification of any material contract, license agreement, lease, or other
agreement that is part of the Mortgaged Property to which the Company is a
party;
(d) Any actions, proceedings, or claims of which the Company may have
notice, that may be commenced or asserted against the Company in which the
amount involved is (i) $500,000 or more, and is not fully covered by
insurance, which arise from the Company's performance of its obligations
under the IDEM Contract, or (ii) if not solely a claim for monetary
damages, could, if adversely determined, have a material adverse effect on
the Company or its ability to perform the IDEM Contract;
(e) The occurrence of any default or event of default; or
(f) Any notice of material breach or termination received by the
Company from IDEM under the IDEM Contract.
Section 3.33. HAZARDOUS SUBSTANCES. The Company covenants and agrees that:
(a) Company shall not permit the Mortgaged Property or any portion
thereof to be a site for the storage, use, generation, manufacture,
disposal, or transportation of Hazardous Substances, except as necessary
for the construction and operation of the Project in substantial compliance
with all applicable laws governing Hazardous Substances and in the ordinary
course of the Company's performance of the IDEM Contract.
(b) Company shall not permit any Hazardous Substances to be disposed
of off the Mortgaged Property other than in properly licensed disposal
sites.
(c) Company, at its sole expense, will keep and maintain the
Mortgaged Property and each portion thereof in substantial compliance with
and shall not cause or permit the Mortgaged Property or any portion thereof
to be in violation in any material respect of any laws governing Hazardous
Substances.
(d) Company will, within five (5) Business Days, advise the Issuer
and the Original Purchaser in writing of any Release of Hazardous
Substances where there is a reasonable possibility that such Release could
result in remediation and other expenditures in excess of $50,000 and of
any claim regarding Hazardous Substances.
(e) Company agrees to indemnify and hold harmless the Issuer, the
Trustee, and the Original Purchaser from and against any and all claims,
demands, damages, losses, liens, liabilities, penalties, fines, lawsuits,
and other proceedings and costs and expenses (including reasonable
attorneys' fees), arising directly or indirectly from or out of, or in any
way connected to (i) the accuracy or accuracy of the representations made
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pursuant to Section 2.2(i) or any breach by the Company of its covenants in
this Section 3.33, (ii) any Release of Hazardous Substances and any
activities on the Mortgaged Property during the Company's ownership,
possession or control of the Mortgaged Property which directly or
indirectly results in the Mortgaged Property or any other property being
contaminated with Hazardous Substances, (iii) the discovery of Hazardous
Substances on the Mortgaged Property that were released, discharged or
disposed of during or prior to the Company's ownership, possession, or
control of the Mortgaged Property, (iv) the cleanup of Hazardous Substances
that were released, stored, discharged or disposed of during or prior to
the Company's ownership, possession, or control of the Mortgaged Property,
from the Mortgaged Property; and (v) the discovery of Hazardous Substances
and/or the cleanup of the Hazardous Substances from adjacent or other
property that has become contaminated as a result of any activity on the
Mortgaged Property during or prior to the Company's ownership, possession,
or control of the Mortgaged Property; provided, that the Company shall have
no obligation to indemnify or hold harmless the Issuer, the Trustee or the
Original Purchaser to the extent that any liability covered by this
subsection arises from the storage, use, generation, handling, management,
transportation, release or disposal of Hazardous Substances by the Issuer,
the Trustee or the Original Purchaser, respectively. The indemnification
provided in this subsection shall survive the termination of this Loan
Agreement and the satisfaction of the indebtedness and obligations secured
hereby.
Section 3.34. AMENDMENTS TO IDEM CONTRACT. For so long as the Bonds are
Outstanding, the Company shall not amend, supplement, terminate (except for an
IDEM Termination Event) or otherwise modify the IDEM Contract in any manner that
would reduce the aggregate amount payable to the Company thereunder, or consent
to any such action without the prior written consent of the Original Purchaser,
which consent shall not be unreasonably withheld.
(End of Article III)
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ARTICLE IV.
DAMAGE, CONDEMNATION, AND LOSS OF TITLE
Section 4.1. DAMAGE. The Company agrees to notify the Trustee immediately
(a) of any damage to the Mortgaged Property resulting from fire or other
casualty if such damage causes the Company to be unable to perform its
obligations under the IDEM Contract for a period in excess of thirty (30) days,
or (b) upon obtaining knowledge of the institution of any proceedings for the
condemnation or taking of the Mortgaged Property or any portion thereof for
public or quasi-public use if such condemnation causes the Company to be unable
to perform its obligations under the IDEM Contract for a period in excess of
thirty (30) days.
In the event the Company is obligated to rebuild or replace the Project in
order to perform its obligations under the terms of the IDEM Contract and an
event of default does not exist hereunder, the Company will forthwith use the
Net Proceeds of any insurance or condemnation award to repair, reconstruct,
restore or replace such Mortgaged Property in order to so perform such
obligations.
If the Company is obligated to rebuild or replace the Project in order to
perform its obligations under the terms of the IDEM Contract and an event of
default exists hereunder, the Net Proceeds of any insurance or condemnation
award received by the Company shall be transferred promptly by the Company to
the Trustee and all Net Proceeds shall, at the direction of the Original
Purchaser, either be used to repair, reconstruct, restore or replace such
Mortgaged Property or be deposited in the Redemption Account of the Bond Fund
for the redemption of Bonds in order to effect the prepayment of a portion of
the Note pursuant to Section 5.2 hereof.
If the Company is not obligated to repair, reconstruct, restore or replace
such Mortgaged Property in order to perform its obligations under the IDEM
Contract, the Net Proceeds of any insurance or condemnation award shall be
transferred promptly to the Trustee, and the Trustee shall deposit all Net
Proceeds into the Redemption Account of the Bond Fund for redemption of the
Bonds in order to effect the prepayment of a portion of the Note pursuant to
Section 5.2 hereof.
So long as an event of default does not exist hereunder and the Project is
to be repaired, reconstructed, restored or replaced, any Net Proceeds received
by the Trustee pursuant to Section 3.13 or Section 4.2 hereof shall be released
from time to time by the Trustee to the Company upon the receipt of the written
request of an authorized officer of the Company specifying the expenditures made
or the indebtedness incurred in connection with such repair, reconstruction,
restoration or replacement and stating that such Net Proceeds, together with any
other moneys legally available for such purposes, will be sufficient to complete
such repair, reconstruction, restoration or replacement. In such event, the
Company shall complete the repair, reconstruction, restoration or replacement of
such Mortgaged Property, whether or not
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the Net Proceeds of insurance or
condemnation award received for such purposes are sufficient to pay for the
same.
The Company shall deliver to the Issuer, the Original Purchaser (so long as
the Original Purchaser is the only holder of the Series 1996 Bonds) and the
Trustee, within ninety (90) days after the completion of the repair,
reconstruction, restoration, or replacement of the Project, a restoration
certificate of its authorized Company representative stating that (i) the
Project has been repaired, reconstructed, restored, or replaced, and (ii) he or
she has made such investigation of such sources of information as are deemed to
be necessary, including pertinent records of the Company, and is of the opinion
that the repair, reconstruction, restoration, or replacement of the Project has
been fully paid for and that no claim or claims exist against the Issuer or the
Company or against the properties of either out of which a lien based on
furnishing labor or material for such repair, reconstruction, restoration, or
replacement of the Project, exists or might ripen; provided, however, there may
be excepted from the foregoing statement any claim or claims or liens
constituting Permitted Encumbrances. In the event such restoration certificate
shall state that there is a claim or claims in controversy which create or might
ripen into a lien, there shall be filed with the Issuer and the Trustee a
certificate of the Company when and as such claim or claims shall have been
fully paid or otherwise satisfied or released.
Section 4.2. OTHER PROVISIONS WITH RESPECT TO NET PROCEEDS. The Company
shall cause the Net Proceeds of any insurance or condemnation award in excess of
$100,000, or the entire amount thereof if an event of default exists hereunder,
to be paid to the Trustee to be deposited in a special trust account of the
Construction Fund and shall be invested or reinvested in Qualified Investments
subject to the Company's right to receive the same pursuant to Section 4.1
hereof.
Section 4.3. INSUFFICIENCY OF NET PROCEEDS. If the Company is obligated
to use such Net Proceeds for any repair, reconstruction, restoration, or
replacement of the Project pursuant to Section 4. 1 hereof, and such Net
Proceeds are insufficient to pay in full the cost of any repair, reconstruction,
restoration, or replacement referred to in Section 4. 1 hereof, Company will
nonetheless complete the work and will pay any cost in excess of the amount of
the Net Proceeds held by the Trustee.
Section 4.4. EXCESS NET PROCEEDS. After completion of the repair,
reconstruction, restoration, or replacement of the Project and delivery by the
Company of the restoration certificate pursuant to Section 4. 1 hereof, the
Trustee shall transfer all moneys then in the special trust account of the
Construction Fund to the Redemption Account for the redemption of Series 1996
Bonds in order to effect a prepayment of the Series 1996 Note pursuant to
Section 5.2 hereof.
(End of Article IV)
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ARTICLE V.
PREPAYMENT OF SERIES 1996 NOTE
Section 5.1. OPTIONAL PREPAYMENT.
(a) Except as described in this Article V, the Series 1996 Note is not
subject to optional prepayment by the Company.
(b) The Series 1996 Note may be prepaid at the option of the Company in
whole or in part at any time at 100% of the principal amount thereof, plus a
premium equal to the Breakage Amount, plus accrued interest to the date of
prepayment.
In order to exercise such option to prepay the Series 1996 Note in whole or
in part, the Company must cause funds to be deposited with the Trustee to pay
the principal of, Breakage Amount, if any, and accrued interest to the
prepayment date on Series 1996 Bonds in the same principal amount as the
principal amount of the Series 1996 Note to be prepaid.
In order to exercise such option to prepay the Note in whole, the Company
must deposit with the Trustee sufficient funds to pay the principal amount
thereof; plus a premium equal to the Breakage Amount and accrued interest on all
outstanding Series 1996 Bonds to the prepayment date.
Section 5.2. MANDATORY PREPAYMENT.
(a) Except as described in this Article V, the Series 1996 Note is not
subject to mandatory prepayment by the Company.
(b) The Series 1996 Note shall be prepaid in the amount of any proceeds
available from the sources described in Sections 3.18, 3.22, 3.23, 3.24, 4.1 and
4.4 hereof at any time at 100% of the principal amount thereof, plus a premium
equal to the Breakage Amount, plus accrued interest to the date of prepayment;
PROVIDED, HOWEVER, that if such deposits are not sufficient to redeem the
minimum denomination of a Bond set forth in Section 5.6 of the Indenture, such
amounts shall be retained in the Redemption Account until sufficient funds are
available.
(c) The Series 1996 Note shall be prepaid not later than one year after
the termination of the IDRM Contract as a result of the breach thereof by the
Company at 100% of the principal amount thereof, plus a premium equal to the
Breakage Amount, plus accrued interest to the date of prepayment.
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In the event of a mandatory prepayment described in Section 5.2(b) or (c), the
Company must deposit with the Trustee sufficient funds to pay the principal of,
Breakage Amount, if any, and any other premium required to be paid in connection
with such redemption, and unpaid and accrued interest to the prepayment date on
Series 1996 Bonds in the same principal amount as the principal amount of the
Series 1996 Note to be prepaid.
Section 5.3. NOTICE OF PREPAYMENT. The Company shall give the Trustee
not less than thirty (30) days prior written notice of any prepayment of the
Series 1996 Note pursuant to Section 5.1 or 5.2 hereof, which notice shall
designate the date of prepayment and the amount thereof, and direct the
redemption of Series 1996 Bonds in the same principal amount as the principal
amount of the Series 1996 Note to be prepaid.
(End of Article V)
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ARTICLE VI.
ACQUISITION OF PROJECT SITES AND EQUIPMENT
Section 6.1. ACQUISITION OF PROJECT SITES AND EQUIPMENT. As Project Sites
and Equipment are acquired with the proceeds of the Series 1996 Bonds, the
Company shall represent and certify in the written requests for disbursements to
the Trustee that (a) the facts and representations set forth in Sections 2.2(d),
2.2(h) and 2.2(i) hereof are true and accurate as of such date of requisition
with respect to such Project Site and that the mortgagee title/policy
requirements of Section 3. 18 hereof are being simultaneously complied with and
(b) the facts and representations set forth in Section 2.2(d) and 2.2(h) hereof
are true and accurate as of such date of requisition with respect to such
Equipment.
Section 6.2. AMENDMENTS TO LOAN AGREEMENT. As a condition to the
disbursement by the Trustee as described in Section 6. 1 above, the Company
shall execute and deliver to the Issuer and the Trustee, for the benefit of the
Issuer and the Trustee, amendment(s) to this Loan Agreement and the Indenture,
thereby subjecting the lien of this Mortgage to the additional Project Sites so
acquired. Such amendment(s) shall be in the form attached hereto as EXHIBITS C
and D and incorporated herein by this reference (individually an "Amendment" and
collectively the "Amendments"). After the execution and delivery thereof, and
subject to the conditions set forth herein, such Amendment or Amendments shall
be recorded in the office of the Recorder of each County where such newly
acquired Project Site(s) is situated.
(End of Article VI)
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ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES THEREFOR
Section 7.1. EVENTS OF DEFAULT. (a) The occurrence and continuance of any
of the following events shall constitute an "event of default" hereunder:
(i) failure of the Company to pay any installment of interest or
principal, or any premiums on the Note, or any amount payable under Section
3.30, when the same shall become due and payable, whether at maturity or
upon any date fixed for prepayment or by acceleration or otherwise
(including, without limitation, any failure by the Company to effect any
mandatory prepayment under Section 5.2 hereof), and the continuance of the
same for five (5) days: PROVIDED THAT such failure to pay shall not
constitute an event of default hereunder if it occurs and is continuing
only during the period of the sixty (60) days following the exercise by the
Company of its option under Section 10.8 hereof; or
(ii) failure of the Company to perform any other covenant, condition
or provision hereof, and to remedy such default within 30 days after notice
thereof from the Trustee to the Company, unless the Requisite Bondholders
shall have consented thereto; or
(iii) the occurrence of any default by the Company under either of
the Company's Public Debt Instruments which results in the acceleration of
the Company's debt thereunder; or
(iv) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Company
or for any substantial part of its property, or ordering the windup or
liquidation of its affairs; or the filing and pendency for sixty (60) days
without dismissal of a petition initiating an involuntary case under any
other bankruptcy, insolvency or similar law; or
(v) the commencement by the Company of any voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, whether consent by it to an entry to an order for relief in an
involuntary case and under any such law or to the appointment of or the
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 of it by any general
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
corporate action by the Company in furtherance of any of the foregoing; or
- 41 -
(vi) any representation, warranty, statement, financial statement or
certificate, made or delivered by the Company to the Issuer, the Trustee,
or the Original Purchaser is not true and correct in any material respect
as of the date when made or reaffirmed; or
(vii) at any time that there are no securities outstanding under
the Public Debt Instruments, the Company permits any uninsured judgment or
monetary penalty rendered against it in any judicial or administrative
proceeding in an amount in excess of $1,500,000 to remain unsatisfied for a
period in excess of 45 days unless such judgment or penalty is being
contested in good faith by appropriate proceedings and unless an
appropriate reserve has been established with respect thereto; or
(viii) at any time that there are no securities outstanding under
the Public Debt Instruments, a payment default, aggregating at least
$500,000 at any one tune, which extends beyond any stated period of grace
applicable thereto, including any extension thereof, under any debt of the
Company or any of its subsidiaries with an aggregate principal amount in
excess of $7,500,000, whether now existing or hereafter created, or failure
to pay such debt for borrowed money at its stated maturity, or any other
default that has resulted in the acceleration of debt for borrowed money of
the Company or any of its subsidiaries with an aggregate principal amount
in excess of $7,500,000; or
(b) During the occurrence and continuance of any event of default
hereunder, the Trustee, as assignee of the Issuer pursuant to the Indenture, on
behalf of any unpaid Bondholders and the Issuer shall have the rights and
remedies set forth in this Article vI', in addition to any other remedies herein
or by law provided. It is agreed that the holders of all of the Bonds
outstanding at any time may direct the Trustee, and the Trustee shall abide by
such direction, with regard to the remedy or remedies to be pursued hereunder or
under the Indenture with respect to an event of default hereunder.
(c) Upon the occurrence of an event of default described in Section 7. l
hereof:
(i) ACCELERATION. The Trustee may, and shall if directed by Requisite
Bondholders, by written notice to the Company, declare the principal of the
Notes and all other obligations of the Company hereunder (if not then due and
payable), and the interest accrued thereon to be due and payable immediately,
and upon any such declaration the same shall become and be immediately due and
payable, anything in the Notes or in this Loan Agreement contained to the
contrary notwithstanding.
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(ii) TRUSTEE MAY ENTER AND TAKE POSSESSION. OPERATE AND APPLY INCOME. The
Trustee, personally or by its agents or attorneys, may to the extent permitted
by law enter into and upon all or any part of the Mortgaged Property and each
and every part thereof, and may exclude the Company, its agents and servants
wholly therefrom; and having and holding the same, may use, operate, manage and
control the Mortgaged Property for any lawful purpose, and upon every such
entry, the Trustee, at the expense of the Company either by purchase, repairs or
construction, may from time to time maintain and restore the Mortgaged Property
whereof it shall become possessed as aforesaid, and may insure and reinsure the
same as may seem to it to be judicious; and likewise, from time to time at the
expense of the Company, the Trustee may make all necessary or proper repairs,
renewals, and replacements, and alterations, additions, betterment and
improvements thereto and thereon as to it may seem judicious; and the Trustee
shall be entitled to collect and receive all earnings, revenues, rents, issues,
profits and income of the same and every part thereof; and alter deducting the
expenses of operations, maintenance, repairs, renewals, replacements,
alterations, additions, betterment and improvements and all payments which may
be made for taxes, assessments, insurance and prior or other proper charges upon
the Mortgaged Property or any part thereof, as well as all advances by the
Trustee and compensation for the services of the Trustee and for all counsel and
agents and clerks and other employees by its property engaged and employed, the
Trustee shall apply the moneys arising as aforesaid as provided in Section 7.6
hereof.
(iii) RIGHT TO BRING SUIT, ETC. The Trustee, with or without entry,
personally or by attorney, may in its discretion, proceed to protect and enforce
its rights by a suit or suits in equity or at law, whether for damages or for
the specific performance of any covenant or agreement contained in the Notes,
this Loan Agreement or in aid of the execution of any power herein granted, or
for any foreclosure hereunder, or for the enforcement of any other appropriate
legal or equitable remedy, as the Trustee shall deem most effectual to protect
and enforce any of its rights or duties hereunder; provided, however that all
costs incurred by the Trustee and the Issuer under this Article shall be paid to
the Issuer and the Trustee by the Company on demand.
Section 7.2. FORECLOSURE AND SALE OF MORTGAGED PROPERTY. During
occurrence and continuance of an event of default the Trustee may, with or
without entry, personally or by attorney, sell, to the extent permitted by law,
to the highest bidder all or any part of the Mortgaged Property and all right,
title, interest, claim and demand therein, and the right of redemption thereof,
in one lot as an entirety, or in separate lots, as the Trustee may elect, and in
one sale or in any number of separate sales held at one time or any number of
times, which such sale shall be made at public auction at such place in the
county in which the Mortgaged Property to be sold is situated and at such time
and upon such terms as may be fixed by the Trustee and briefly specified in the
notice of such sale or sales. Any sale by the Trustee may nevertheless, at its
option, be made at such other place or places, and in such other manner, as may
now or hereafter be authorized by law. In the event of any sale of the Mortgaged
Property, the principal of the Notes and all other obligations of the Company
hereunder, if not previously
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due, immediately thereupon shall become due and payable, anything in the
Notes or this Mortgage to the contrary notwithstanding. The parties expressly
agree that notice sent to the Company five (5) days before any such sale
shall be reasonable notice.
Section 7.3. SALE A BAR. Any sale or sales pursuant to Section 7.2 hereof
shall operate to divest all estate, right, title, interest, claim or demand
whatsoever, whether at law or in equity, of the Company, in and to the premises,
property, privileges and rights so sold, and shall be a perpetual bar both at
law and in equity against the Company, its successors and assigns, and against
any and all persons claiming or who may claim the same, or any part thereof,
from, through or under the Company, its successors or assigns.
Section 7.4. RECEIPT SUFFICIENT DISCHARGE FOR PURCHASER. The receipt of
the Trustee or of the court officer conducting any such sale for the purchase
money paid at any such sale shall be a sufficient discharge therefor to any
purchaser of the property, or any part thereof, sold as aforesaid; and no such
purchaser or his representatives, grantees or assigns, after paying such
purchase money and receiving such a receipt, shall be bound to see to the
application of such purchase money upon or for the purpose of this Loan
Agreement, or shall be answerable in any manner whatsoever for any loss,
misapplication or non-application of any such purchase money or any part
thereof, nor shall any such purchaser be bound to inquire as to the necessity or
expediency of any such sale.
Section 7.5. SALE TO ACCELERATE NOTES. In the event of any sale pursuant
to Section 7.2 hereof, the principal of the Notes and all other obligations of
the Company hereunder, if not previously due, immediately thereupon shall become
due and payable, anything in the Notes or this Loan Agreement to the contrary
notwithstanding.
Section 7.6. APPLICATION OF PROCEEDS OF SALE. The purchase money proceeds
or avails of any such sale, together with any other sums which then may be held
by the Trustee under this Loan Agreement as part of the Mortgaged Property or
the proceeds thereof allocable to the Series 1996 Note, whether under the
provisions of this Article or otherwise, shall be paid to the Trustee, who shall
apply such funds as follows:
FIRST: To the payment of the costs and expenses of such sale,
including reasonable compensation to the Issuer, the Trustee, its or
their agents, attorneys and counsel, and the expenses of any judicial
proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by the Issuer or the Trustee
as permitted by this Loan Agreement, together with interest on all
advances made by the Trustee, and to the payment of all taxes,
assessments or liens prior to the lien of this Loan Agreement, except
any taxes, assessments, liens, or other charges, subject to which the
property shall have been sold.
SECOND: To the payment of the whole amount then due, owing and
unpaid upon the Notes for principal, interest and premium, if any; and
in case such proceeds shall be insufficient to pay in full the whole
amount so due, owing or unpaid upon the
- 44 -
Notes, then ratably according to the aggregate of such principal and the
accrued and unpaid interest and premium, if any, without preference or
priority as between principal, interest or premium; such application to
be made upon presentation of the Notes and the notation thereon of the
payment, if partially paid, or the surrender and cancellation thereof,
if fully paid.
THIRD: To payment and satisfaction of the obligations of the
Company under Section 3.30.
FOURTH: To the payment of any other sums required to be paid by
the Company pursuant to any provisions of this Loan Agreement or of the
Notes.
FIFTH: To the payment of the surplus, if any, to the Company or
its successors or assigns, upon the written request of the Company or to
whomsoever may be lawfully entitled to receive the same upon its written
request, or as any court of competent jurisdiction may direct.
Section 7.7. PAYMENT OF DEFAULTED AMOUNTS ON DEMAND OF TRUSTEE. In case
the Company shall:
(i) fail to pay any installment of interest on the Notes when and
as the same shall become due and payable, as therein and herein expressed;
or
(ii) fail to pay the principal of the Notes, when and as the same
shall become due and payable, whether at maturity or upon designation for
prepayment or by declaration, or upon a sale as in Section 7.5 hereof
provided, or otherwise; or
(iii) fail to pay amounts owed to the Issuer under Section 3.30;
then upon written demand of the Trustee the Company will pay to the Trustee the
whole amount which then shall have become due and payable on the Notes for
interest or principal or both, as the case may be, the whole amount then due
under Section 3.30, including interest as provided therein, and in addition
thereto such further amount as shall be sufficient to cover the cost and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder. The exercise by the Trustee under this Section 7.7 shall not
prevent acceleration of the Notes under Section 7.1.
Section 7.8. TRUSTEE MAY ENFORCE DEMAND. In case the Company shall have
failed to pay such principal and interest and other amounts upon demand, the
Trustee, in its own name, may constitute such actions or proceedings at law or
in equity for the collection of the amounts so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company and collect the
- 45 -
moneys adjudged or decreed to be payable out of the property of the Company
wherever situated, in the manner provided by law.
The Trustee shall, if permitted by law, be entitled to recover judgment as
aforesaid either before or after or during the pendency of any proceedings for
the enforcement of the lien of this Mortgage; and the right of the Trustee, to
recover such judgment shall not be affected by any entry or sale hereunder or by
the exercise of any other right, power or remedy for the enforcement of the
provisions of this Mortgage or the foreclosure of the lien hereof; and in case
of a sale of the Mortgaged Property and of the application of the proceeds of
sale, as in Section 7.6 provided, to the payment of the debt hereby secured, the
Trustee shall be entitled to enforce payment and to receive all amounts then
remaining due and unpaid upon the Notes then outstanding, and shall be entitled
to recover judgment for any portion of the debt remaining unpaid, with interest.
No recovery of any judgment by the Trustee, and no levy of an execution
under any judgment upon the Mortgaged Property or upon any other property, shall
affect the lien of this Mortgage upon the Mortgaged Property or any part
thereof, or any lien, rights, powers or remedies of the Trustee hereunder, but
such lien, rights, powers or remedies of the Trustee shall continue unimpaired
as before.
Any moneys thus collected by the Trustee under this Section shall be
applied by the Trustee as provided in Section 7.6 hereof.
Section 7.9. TRUSTEE ENTITLED TO APPOINTMENT OF RECEIVER. The Company
further covenants that upon the happening of any event of default and thereafter
during the continuance of such event of default unless the same shall have been
waived as hereinbefore provided, the Trustee shall be entitled as a matter of
right if it shall so elect, (i) forthwith and without declaring the principal of
the Notes to be due and payable, or (ii) after declaring the same to be due and
payable, or (iii) upon the filing of an action to foreclose this Mortgage or to
enforce the specific performance hereof or in aid thereof or upon the
commencement of any other judicial proceeding to enforce any right of the
Trustee to the appointment of a receiver or receivers of the Mortgaged Property
and of all the earnings, revenues, rents, issues, profits and income thereof,
with such powers as the court making such appointment shall confer, which may
comprise any or all of the powers which the Trustee is authorized to exercise by
the provisions of Section 7. 1(c)(iii). The Company, if requested so to do by
the Trustee will consent to the appointment of any such receiver as aforesaid.
Section 7.10. REMEDIES CUMULATIVE. Except as provided in Section 7.6
hereof, no remedy herein conferred upon or reserved to the Trustee is intended
to be exclusive of any other remedy or remedies, and each and every such remedy
shall be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
- 46 -
Section 7.11. 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 any such right or power, or shall be construed to be a waiver of any such
event of default or an acquiescence therein; and every power and remedy given by
this Loan Agreement to the Trustee may be exercised from time to time and as
often as may be deemed expedient by the Trustee.
Section 7.12. WAIVER OF EXTENSION, APPRAISEMENT OR STAY LAWS. To the
extent permitted by law, the Company will not during the continuance of any
event of default hereunder insist upon, or plead, or in any manner whatever
claim or take any benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
and terms of performance of this Loan Agreement; nor claim, take or insist upon
any benefit or advantage of any law now or thereafter in force providing for the
valuation or appraisement of the Mortgaged Property, or any part thereof, prior
to any sale or sales thereof which may be made pursuant to any provisions herein
contained, or pursuant to the decree, judgment or order of any court of
competent jurisdiction; nor after any such sale or sales, claim or exercise any
right under any statute heretofore or hereafter enacted by the United States of
America or by any state or territory, or otherwise, to redeem the property so
sold or any part thereof; and the Company hereby expressly waives all benefits
or advantage of any such law or laws and covenants not to hinder, delay or
impede the execution of any power herein granted or delegated to the Trustee,
but to suffer and permit the execution of every power as though no such law or
laws had been made or enacted.
Section 7.13. REMEDIES SUBJECT TO PROVISIONS OF LAW. All rights, remedies
and powers provided by this Article may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law in the
premises, and all the provisions of this Article are intended to be subject to
all applicable mandatory provisions of law which may be controlling in the
premises and to be limited to the extent necessary so that they will not render
this Mortgage invalid or unenforceable under the provisions of any applicable
law.
Section 7.14. REMEDIES UNDER UNIFORM COMMERCIAL CODE. In addition to any
other remedies provided for hereby or by law the Trustee shall have the rights
of a secured party and the Company shall have the rights of a debtor under the
Uniform Commercial Code of Indiana, codified at Indiana Code 26-1 (or any
successor code or statute) with respect to the Collateral upon the occurrence
and continuance of an event of default hereunder, as deemed in Section 7.1
hereof.
(End of Article VII)
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ARTICLE VIII.
IMMUNITY
Section 8.1. IMMUNITY. (a) No covenant or agreement contained in the
Bonds, the Loan Agreement or the Indenture shall be deemed to be a covenant or
agreement of any member, director, officer, agent, attorney or employee of the
Issuer, in his or her individual capacity; neither the members, directors,
officers, agents, attorneys, or employees of the Issuer executing the Bonds
shall be liable personally on the Bonds or be subject to any personal liability
or accountability by reason of the issuance of the Bonds (or failure to issue
such Bonds); and no recourse shall be had for the payment of the principal of,
redemption premium, if any, and interest on any of the Bonds or for any claim
based thereon or upon any obligation, covenant, or agreement contained in the
Bonds, the Indenture, or this Loan Agreement (or any other agreement entered
into by the Issuer with respect thereto) against any past, present, or future
member, director, officer, agent, attorney, or employee of the Issuer (or of any
successor thereto), as such, either directly or through the Issuer or any
successor thereto, under any rule of law or equity, statute or constitution, or
by the enforcement of any assessment or penalty or otherwise, and all such
liability of any such member, director, officer, agent, attorney, or employee,
as such, is hereby expressly waived and released as a condition of and in
consideration for the execution of the Indenture and this Loan Agreement (and
any other agreement entered into by the Issuer with respect thereto) and the
issuance of the Bonds.
(b) No recourse shall be had for the payment of the principal or
prepayment price of, or interest on the Series 1996 Note, or for any claim based
thereon or on this Agreement, against any officer, director or stockholder,
past, present or future, of Company as such, either directly or through Company,
under any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise.
Section 8.2. LIABILITY OF ISSUER. Any and all obligations of the Issuer
under the Bonds, the Indenture, and this Loan Agreement are special, limited
obligations of the Issuer, payable solely out of the revenues and income derived
under this Loan Agreement and as otherwise provided in the Indenture and this
Loan Agreement. The obligations of the Issuer hereunder shall not be deemed to
constitute an indebtedness or an obligation of the Issuer, the State, or any
political subdivision or taxing authority thereof within the purview of any
constitutional or statutory limitation or provision, a pledge of the faith and
credit or a charge against the general taxing powers, if any, of the Issuer, the
State, or any political subdivision or taxing authority thereof. The Issuer has
no taxing authority.
(End of Article VIII)
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ARTICLE IX.
SUPPLEMENTS AND AMENDMENTS TO THIS Loan Agreement
Section 9.1. SUPPLEMENTS AND AMENDMENTS TO THIS LOAN AGREEMENT. Subject
to the provisions of Article X of the Indenture, the Company and the Issuer may
from time to time enter into such supplements and amendments to this Loan
Agreement as to them may seem necessary or desirable to effectuate the purposes
or intent hereof; provided, however, that for so long as the Original Purchaser
is the sole Bondholder, no amendments or supplements may be made to the Loan
Agreement without the prior written consent of the Original Purchaser.
(End of Article IX)
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ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. LOAN AGREEMENT FOR BENEFIT OF PARTIES HERETO. Nothing in
this Loan Agreement, express or implied, is intended or shall be construed to
confer upon, or to give to, any person other than the parties hereto, their
successors and assigns, and the holder of the Notes, any right, remedy or claim
under or by reason of this Loan Agreement or any covenant, condition or
stipulation hereof; and the covenants, stipulations and agreements in this Loan
Agreement contained are and shall be for the sole and exclusive benefit of the
parties hereto, their successors and assigns, the Trustee and the holder of the
Notes.
Section 10.2. SEVERABILITY. In case any one or more of the provisions
contained in this Loan Agreement or in the Notes shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
Section 10.3. LIMITATION ON INTEREST. No provisions of this Loan
Agreement or of the Notes shall require the payment or permit the collection of
interest in excess of the maximum amount permitted by law. If any excess of
interest in such respect is herein or in the Notes provided for, or shall be
adjudicated to be so provided for herein or in the Notes, neither the Company
nor its successors or assigns shall be obligated to pay such interest in excess
of the maximum amount permitted by law, and the right to demand the payment of
any such excess shall be and hereby is waived, and this provision shall control
any provisions of this Loan Agreement and the Notes inconsistent with this
provision.
Section 10.4. ADDRESSES FOR NOTICE AND DEMANDS. All notices, demands,
certificates or other communications hereunder shall be sufficiently given and
shall be deemed given when mailed by registered or certified mail, postage
prepaid, with proper address as indicated below. The Issuer, the Company, and
the Trustee may, by written notice given by each to the others, designate any
address or addresses to which notices, demands, certificates or other
communications to them shall be sent when required as contemplated by this
Mortgage. Until otherwise provided by the respective parties, all notices,
demands, certificates and communications to each of them shall be addressed as
follows:
To the Issuer: Indiana Development Finance Authority
Attn: Executive Director
One North Capitol, Suite 320
Indianapolis, Indiana 46204
- 50 -
To the Company: Envirotest Systems Corp.
Attention: Chief Financial Officer
246 Sobrante Way
Sunnyvale, California 94086
To the Trustee: Old National Trust Company
420 Main Street
P.O. Box 207
Evansville, Indiana 47702
Attention: Corporate Trust Department
Section 10.5. SUCCESSORS AND ASSIGNS. Whenever in this Loan Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included and all the covenants, promises and
agreements in this Loon Agreement contained by or on behalf of the Company, or
by or on behalf of the Issuer, shall bind and inure to the benefit of the
respective successors and assigns, whether so expressed or not. Provided,
however, the Company may not assign its rights or obligations under this Loan
Agreement without the consent of the Issuer and the Bondholders, which may be
withheld in their absolute discretion.
Section 10.6. COUNTERPARTS. This Loan Agreement is being executed in any
number of counterparts, each of which is an original and all of which are
identical. Each counterpart of this Loan Agreement is to be deemed an original
hereof and all counterparts collectively are to be deemed but one instrument.
Section 10.7. GOVERNING LAW. It is the intention of the parties hereto
that this Loan Agreement and the rights and obligations of the parties hereunder
and the Notes and the rights and obligations of the parties thereunder, shall be
governed by and construed and enforced in accordance with, the laws of Indiana.
Section 10.8. COMPANY'S OPTION UPON IDEM TERMINATION EVENT. (a) Subject
to satisfaction of the conditions set forth in (b) below, upon the occurrence of
an IDEM Termination Event, the Company shall have an option to transfer and
convey to the Issuer all of its right, title and interest in the Mortgaged
Property in accordance with (c) below, in full satisfaction of its obligations
hereunder as set forth in (d) below. The option granted in the foregoing
sentence shall be exercisable only by giving written notice of such exercise to
the Issuer, the Trustee and the Original Purchaser (if still a Bondholder),
which written notice shall be given (i) not later than fifteen (15) days after
the occurrence of the IDEM Termination Event, if termination occurs pursuant to
Articles XXV or XVI (6)(E) of the IDEM Contract, or (ii) not later than sixty
(60) days after the occurrence of the IDEM Termination Event, if termination
occurs pursuant to Article XXIV(1) of the IDEM Contract.
- 51 -
(b) The obligation of the Issuer to consummate the transaction
contemplated by subparagraph (c) below and to release the Company from liability
as provided in subparagraph (d) below shall be subject to full performance by
the Company of the provisions of (c) below and satisfaction of all of the
following conditions:
(i) at the time the IDEM Termination Event occurs, at the time
option is exercised, and at the time of Closing (as deemed below):
(A) there shall be securities outstanding under the Public Debt
Instruments, and the outstanding principal balance of the Note shall
be in excess of $7,500,000; (B) no event of default under Section 7.
1(i) shall have occurred and be continuing;
(ii) at the time of Closing (as deemed below): (A) the Company
shall have fully performed all of its obligations under Sections 3.11,
3.13, 3.15, 3.17, 3.21 and 3.33(e), to the extent performance of such
obligations has become due prior to Closing, and (B) any failure by
the Company to perform its obligations under Sections 3.7, 3.8, 3.9,
3.23 or 3.33(a), (b), and (c), shall have been remedied in the manner
and at the times provided in subsection (b)(iv) below;
(iii) at the time the IDEM Termination Event occurs, the
Company shall not have been notified by IDEM in writing that IDEM is
terminating the IDEM Contract as a result of a breach by the Company
of its obligations under the IDEM Contract; and,
(iv) not later than sixty (60) days after the Company exercises
the option granted herein, the Company shall have provided to the
Issuer such evidence as the Issuer reasonably may require that the
Company has fully performed its obligations under Sections 3.7, 3.8,
3.9, 3.23 and 3.33 (a), (b) and (c). Any default under such Sections
shall be remedied by the Company prior to the time of Closing. In the
event the default cannot be remedied by the payment of cash by the
Company, the Company shall be permitted to remedy such default by
either transferring the portion of the Mortgaged Property with the
unremedied default to the Issuer together with an amount equal to the
diminution in fair market value of such portion of the Mortgaged
Property caused by such default or, at the option of the Issuer, such
Mortgaged Property shall be retained by the Company (free of all liens
created under this Loan Agreement) and the Company shall pay to the
Issuer the fair market value of such property (determined as if such
default had not occurred). At the Closing, the Issuer shall reimburse
the Company for reasonable expenses incurred by the Company in
providing evidence of its performance of its obligations under the
Sections cited above in this subsection (b)(iv), provided that (l) all
costs of such remedies shall be borne by the Company and (2) if the
Closing does not occur as a result of the Company's failure to satisfy
the conditions set forth in this subsection (b) or failure to perform
as contemplated by subsection (c), all such expenses shall be borne by
the Company. Notwithstanding the foregoing, if such conditions are not
satisfied within such 60 day period, the Company may continue to
attempt to satisfy such conditions for an additional 120 days so long
as the Company (1) pays any past due payments on the Note, and
(2) continues to make current payments on the Note as they
- 52 -
come due, and (3) otherwise complies with the Sections of this Loan
Agreement listed above in this subsection (b)(iv), and (4) continues
to maintain and insure the Mortgaged Property pursuant to Sections
3.11 and 3.13 hereof. The fair market value of the applicable portion
of the Mortgaged Property, or the amount of any diminution in such
fair market value, thereof, as the case may be, shall be determined,
as of the date of the appraisal, by an MAI appraiser with experience
in valuing such types of property reasonably satisfactory to the
Company and the Issuer. All appraisal costs shall be borne by the
Company.
(c) Within fifteen (15) days after the date the conditions set forth in
subsection (b) above have been satisfied, at a closing (the "Closing") to be
held on a date and at a time that is convenient to each of the parties, at the
offices of the Issuer in Indianapolis, Indiana, the Company shall execute,
acknowledge and deliver to the Issuer each of the following, all in form and
substance acceptable to the Issuer, the Trustee and the Original Purchaser (if
still a bondholder):
(i) general warranty deeds (together with appropriate vendors
affidavits) by which the Company shall convey to the Issuer marketable
fee simple title (or assignment of leasehold interest) to the Project
Sites, subject only to Permitted Encumbrances (provided that those
described in clauses (vi) and (vii) of the definition thereof shall be
either discharged or to the extent not dischargeable such encumbrances
shall be insured over pursuant to an owner's policy of title insurance
from an insurance company reasonably satisfactory to the Issuer with
the costs of such policy to be borne by the Company); and
(ii) bills of sale and assignments by which the Company shall
transfer, assign and convey to the Issuer good and merchantable title
(or assignment of leasehold interest) to the Company's interest in all
other of the Mortgaged Property, subject only to Permitted
Encumbrances (provided that those described in clauses (vi) and (vii)
of the definition thereof shall be either discharged or insured in the
manner set forth in (c)(i) above); and
(iii) a transferable, royalty-free, non-exclusive license for
the use of all Equipment-related software in connection with the
performance of the remaining term of the IDEM Contract; and
(iv) such evidence as the Issuer may require that the actions
contemplated by this Section 10.8 have been duly authorized by all
necessary corporate action on the part of the Company; and
(iv) an opinion (in the form of the ABA Third Party Opinion
Accord) of counsel to the Company to the effect that all documents
executed by the Company and delivered to the Trustee at the Closing
have been duly authorized, executed and delivered and are enforceable
against the Company in accordance with their respective terms, and
- 53 -
that the execution, delivery and performance thereof does not conflict
with or constitute a breach of or default under the Company's
organizational documents, or any agreement, instrument, document,
order, judgment or decree to which it is a party or by which it or its
properties are bound; and
(vi) an indemnification agreement, by which the Company shall
agree to indemnify, defend and hold harmless the Issuer, the Trustee
and the Original Purchaser and their respective members, directors,
officers, agents, attorneys, employees, successors and assigns from
and against any loss, cost, damage, liability, expense (including
attorney's fees), claim, demand or cause of action (including any and
all environmental claims, personal injury and property damage claims)
that (l) arises out of or relates to the operation of the Project or
the operation or ownership of the Mortgaged Property at any time prior
to the Closing, or (2) is incurred as a result of any
misrepresentation or inaccuracy in any document, instrument,
agreement, affidavit, report or certificate executed and/or delivered
by the Company in connection with the transaction contemplated by this
Section 10.8; provided, however, that the foregoing shall not be
deemed to require the Company to indemnify, defend and hold harmless
the Issuer, the Trustee and the Original Purchaser, and their
respective members, directors, officers, agents, attorneys, employees,
successors and assigns from and against any loss, cost, damage,
liability, expense (including attorney's fees), claim, demand, or
cause of action that arises as a consequence of the IDEM Termination
Event itself (other than those items indemnified above) or the
nonpayment of the Bonds.
(d) Upon full performance by the Company of the provisions of (c) above,
the Note, duly cancelled, shall be delivered to the Company and all liability of
the Company to the State, the Issuer, the Trustee and the Original Purchaser
(excluding its liabilities under Section 3.15 and 3.33(e) to the extent such
liability relates to events that occurred prior to the Closing, and under the
indemnification agreement identified in subparagraph (c)(vi) above) hereunder,
under the Indenture, and under the Bond Placement Agreement shall cease and
determine. If the Trustee is then holding reserves established by the Company
pursuant to clauses (vi) or (vii) of the definition of Permitted Encumbrances,
such reserves together with the Company's portion of the Debt Service Reserve
Fund shall be released to the Company.
(e) Any moneys owed to the Company for services rendered under the IDEM
Contract prior to Closing or any claims for compensation or equitable
adjustments the Company has against the State pursuant to the IDEM Contract, at
the time of Closing, shall remain the property of the Company (free and clear of
the lien of this Mortgage) notwithstanding any transfer of the IDEM Contract to
the Issuer or the Trustee pursuant to the provisions hereof and the Indenture.
Section 10.9. ISSUER PROCEDURES. The Issuer agrees that whenever a
consent, waiver or an approval contemplated by the terms hereof is required, the
Issuer may take such action through its Executive Director and other officers,
in consultation with Issuer's counsel if deemed necessary and appropriate by the
Executive Director and such officers. Notwithstanding the
- 54 -
above provision, the Executive Director and such officers shall not be
precluded from seeking official action by the full membership of the Issuer
with regard to any such consent, waiver or approval.
(End of Article x)
- 55 -
IN WITNESS WHEREOF, the Issuer and the Company have caused this Loan
Agreement to be executed in their respective names, and the Issuer and the
Company have caused their corporate seals to be hereunto affixed and attested by
their duly authorized officers, all as of the date First above written.
ENVIROTEST SYSTEMS CORP.
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
- 56 -
INDIANA DEVELOPMENT FINANCE AUTHORITY
By
------------------------------------
William H. King, Vice Chairman
(SEAL)
Attest:
- ----------------------------------
Amy L. Stewart, Executive Director
This instrument prepared by Bruce A. Polizotto, Ice Miller Donadio & Ryan, One
American Square, Box 82001, Indianapolis, Indiana 46282.
- 57 -
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
On this 27th day of June, 1996, before me, a notary public in and for said
county and state, personally appeared F. Robert Miller, the President and Chief
Executive Officer of Envirotest Systems Corp., to me personally known and known
to me to be the same person who executed the within and foregoing instrument,
who, being by me duly sworn, did depose, acknowledge and say: That he is the
President and Chief Executive Officer of Envirotest Systems Corp., the
corporation described in and which executed the foregoing instrument; and that
said instrument was signed and sealed on behalf of the said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 27th
day of June, 1996.
---------------------------------------
(Written Signature)
---------------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
2/2/99 Hamilton
- ----------------------------------- ---------------------------------------
(Seal)
- 58 -
STATE OF INDIANA )
)
) SS:
COUNTY OF MARION )
On this _______ day of ________, 1996, before me, a notary public in and
for said county and state, personally appeared William H. King, to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say: That he is the Vice Chairman of Indiana Development Finance Authority (the
"Issuer"), the body corporate and politic described in and which executed the
foregoing instrument; that he knows the seal of said Issuer; that the seal
affixed to said instrument is the seal of said Issuer; that said instrument was
signed and sealed on behalf of said Issuer; and the said Amy L. Stewart,
Executive Director of the Issuer, acknowledged the execution of said instrument
to be the voluntary act and deed of said Issuer by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
______ day of ______, 1996.
---------------------------------------
(Written Signature)
---------------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
- ---------------------------------- ---------------------------------------
(Seal)
- 59 -
EXHIBIT A
THE INDUSTRIAL DEVELOPMENT FACILITIES
DESCRIPTION OF PROJECT
Centralized inspection/maintenance program facilities located on five sites
in Lake County, Indiana, one site in Porter County, Indiana, one site in Clark
County, Indiana, and one site in Floyd County, Indiana, and all machinery,
equipment and fixtures for the inspection and measurement of motor vehicle
emissions necessary for such operation.
EQUIPMENT
All machinery, equipment, Fixtures and tangible personal property at any
time used or intended to be used in connection with the performance of the IDEM
Contract, including generally but not limited to the following:
(a) Dynamometers
(b) Vehicles
(c) Emissions Testing and Analysis Equipment
(d) Personal Computers and Printers
(e) TV Monitors
(f) Miscellaneous Computer Equipment
(g) Office Equipment
(h) Furniture
(i) Shop Equipment and Tools
-60-
PROJECT SITES
The Project Sites shall consist of eight parcels of land, of which five
(which includes one leasehold) are to be located in Lake County, Indiana, one in
Porter County, Indiana, one in Clark County, Indiana, and one in Floyd County,
Indiana, with specific metes and bounds legal descriptions for each to be added
hereto as acquired by the Company.
PERMITTED ENCUMBRANCES
See Schedule II
-61-
EXHIBIT B
ENVIROTEST SYSTEMS CORP.
FIRST MORTGAGE NOTE, SERIES 1996
FOR VALUE RECEIVED, the undersigned, Envirotest Systems Corp. ("Company"),
a corporation organized and existing under the laws of the State of Delaware and
in good standing under the laws of the State of Indiana, hereby promises to pay
to the order of the Indiana Development Finance Authority ("Issuer"), in
immediately available funds, the principal sum of $14,345,000 and interest
thereon, during the term of the Loan Agreement, Mortgage, Security Agreement and
Financing Statement (the "Loan Agreement") dated as of June l, 1996 between
Issuer and Company, commencing on March 31, 1997, and thereafter on a monthly
basis in arrears on the last day of each month, a sum which will equal 1/3rd of
the principal which will be due on the Series 1996 Bonds on each March 1, June
1, September l and December 1 of each year and a sum which will equal 1/3rd of
the interest which will become due on the Series 1996 Bonds on each March l,
June 1, September 1 and December l of each year (as hereinafter deemed), all
subject to the credits described in the Loan Agreement and to the presence of
other available money for such installment in the Bond Fund under the Trust
Indenture (the "Indenture") dated as of June l, 1996 between the Issuer and Old
National Trust Company, as Trustee (the "Trustee"). The Company's payment
obligations hereunder are subject to release therefrom pursuant to the
provisions of Section 10.8 of the Loan Agreement.
Payments of both principal and interest are to be endorsed to the Trustee,
and are to be made by the Trustee for the account of the Issuer pursuant to such
endorsement by monthly depositing such amounts in the Bond Fund from the Revenue
Fund. Such endorsement is to be made as security for the payment of the bonds
designated "Indiana Development Finance Authority Taxable Economic Development
Revenue Bonds, Series 1996 (Envirotest Systems Corp. Project)" (the "Series 1996
Bonds").
This Note is issued pursuant to and secured by the Loan Agreement, and is
entitled to the benefits, and is subject to the conditions thereof. The
obligations of Company to make the payments required hereunder shall be absolute
and unconditional without any defense or right of set-off, counterclaim or
recoupment by reason of any default by Issuer under the Loan Agreement or under
any other agreement between Company and Issuer or out of any indebtedness or
liability at any time owing to the Company by the Issuer or for any other
reason. Reference is hereby made to the Loan Agreement for a description of the
property thereby mortgaged, the nature and extent of the security for such Notes
and the rights of the holder thereof, the Company and the Issuer in respect
thereof, and the provisions for amending the Loan Agreement, to all of which the
holder hereof, by its acceptance hereof, assents.
-62-
The principal of this Note is subject to prepayment prior to maturity in
the manner stated in the Loan Agreement.
In certain events the principal amount of this Note and a premium amount
determined as set forth in the Loan Agreement and the interest accrued thereon
to the date of prepayment may be prepaid at the option of the Company or shall
be required to be prepaid as provided in the Loan Agreement. In certain events
and in the manner set forth in the Loan Agreement, the Company shall be
obligated to pay additional amounts, including the Breakage Amount or any other
premium required to be paid upon the redemption of any portion of the Series
1996 Bonds.
No recourse shall be had for the payment of the principal or prepayment
price of, or interest on this Note, or for any claim based hereon or on the Loan
Agreement, against any officer, director or stockholder, past, present or
future, of Company as such, either directly or through Company, under any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise.
The Company hereby unconditionally waives diligence, presentment, protest,
notice of dishonor and notice of default of the payment of any amount at any
time payable to the Issuer under or in connection with this Note. All amounts
payable hereunder are payable with reasonable attorneys fees and costs of
collection and without relief from valuation and appraise the laws.
In any case where the date of payment hereunder shall be a Saturday, Sunday
or a legal holiday or a day on which banking institutions are authorized by law
to close, then such payment shall be made on the next succeeding business day
with the same force and effect as if made on the date of payment hereunder.
All terms used in this Note which are deemed in the Loan Agreement shall
have the assigned to them in the Loan Agreement.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
and attested by its duly authorized officers on this ____ day of June, 1996.
ENVIROTEST SYSTEMS CORP.
By
----------------------------------
(SEAL)
Attest:
- ----------------------------------
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ENDORSEMENT
Pay, without recourse, to Old National Trust Company, as Trustee under the
Trust Indenture dated as of June 1, 1996, from the undersigned.
INDIANA DEVELOPMENT FINANCE
AUTHORITY
By
----------------------------------
William H. King, Vice Chairman
(SEAL)
Attest:
- ----------------------------------
Amy L. Stewart, Executive Director
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EXHIBIT C
FORM OF AMENDMENT TO Loan Agreement
AMENDMENT NO. --- TO LOAN AGREEMENT MORTGAGE.
SECURITY AGREEMENT AND FINANCING STATEMENT
THIS AMENDMENT NO. ___TO Loan Agreement, MORTGAGE, SECURITY AGREEMENT AND
FINANCING AGREEMENT, dated as of this ___ day of 199 , is made by and between
ENVIROTEST SYSTEMS CORP., a Delaware corporation (hereinafter referred to as
"Company") and INDIANA DEVELOPMENT FINANCE AUTHORITY, a body corporate and
politic, duly organized and validly existing under the laws of the State of
Indiana (hereinafter referred to as "Issuer").
WITNESSETH THAT:
WHEREAS, the Company has executed and delivered in favor of the Issuer that
certain Loan Agreement, Mortgage, Security Agreement and Financing Statement,
dated as of June 1, 1996, thereby securing, in part, a certain First Mortgage
Note, Series 1996, made by Company in favor of and payable to Issuer, in the
aggregate principal amount of $14,345,000.00 (hereinafter referred to as the
"Loan Agreement"), which Loan Agreement [is attached hereto as EXHIBIT A and
incorporated herein by this reference] or [was recorded as an EXHIBIT A to
Instrument No. __________ recorded on _____________ 199__ in the office of the
Recorder of _______________ County, Indiana]; and
WHEREAS, pursuant to Section 6.1 of the Loan Agreement, as interests in the
Project Sites are acquired by Company with the proceeds of the Series 1996
Bonds, the Company is required to subject such acquired Project Sites to the
lien of the Loan Agreement; and
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WHEREAS, the Company, contemporaneously herewith, has acquired a Project
Site situated in ________ County, Indiana, such Project Site being more
particularly described on EXHIBIT B attached hereto and incorporated herein by
this reference, and desires to subject such acquired Project Sites to the lien
of the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company hereby mortgages and
warrants to the Issuer all of its right, title and interest in and to the
Project Site described on EXHIBIT B attached hereto and in all supplements and
additions thereto, as more particularly described in the Granting Clauses of the
Loan Agreement; subject, however, to Permitted Encumbrances.
The Company intends that the lien of the Loan Agreement, as supplemented by
this Amendment No. ____, shall attach to and encumber the Project Site situated
in ________ County, Indiana and more particularly described on EXHIBIT B
attached hereto as if the same were originally described on EXHIBIT A attached
to the Loan Agreement.
All terms used herein which begin with the initial letter capitalized shall
have the same meanings herein as assigned to them in the Loan Agreement.
Except as modified herein, all terms and conditions of the Loan Agreement,
[as previously supplemented by Amendment Nos. __, __, and __ thereto,] except as
modified herein, shall remain in full force and effect.
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IN WITNESS WHEREOF, the Company has caused this Amendment No. ___ to be
duly executed and attested by its duly authorized officers as of the day, month
and year first above written.
ENVIROTEST SYSTEMS CORP.
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
(SEAL)
ATTEST:
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
INDIANA DEVELOPMENT FINANCE
AUTHORITY
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
(SEAL)
ATTEST:
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
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STATE OF INDIANA )
) SS:
COUNTY OF MARION )
On this ______ day of _____________, 199__, before me, a Notary Public in
and for said County and State, personally appeared _______________________, the
____________ of Envirotest Systems Corp., to me personally known and known to me
to be the same person who executed the within and foregoing instrument, who,
being by me duly sworn, did depose, acknowledge and say: That he is the
_______________________ of Envirotest Systems Corp., the corporation described
in and which executed the foregoing instrument; and that said instrument was
signed and sealed on behalf of the said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
______ day of _____________________ 199 .
------------------------------------
(Written Signature)
------------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
- ------------------------------------ ------------------------------------
(Seal)
-69-
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
On this _______ day of____________ 199___, before me, a Notary Public in
and for said County and State, personally appeared , to me personally known and
known to me to be the same person who executed the within and foregoing
instrument, who, being by me duly sworn, did depose, acknowledge and say: That
he is the _____________ of Indiana Development Finance Authority (the "Issuer"),
the body corporate and politic described in and which executed the foregoing
instrument; that he knows the seal of said Issuer; that the seal affixed to said
instrument is the seal of said Issuer; that said instrument was signed and
sealed on behalf of said Issuer; and the said ________________, ______________
of the Issuer, acknowledged the execution of said instrument to be the voluntary
act and deed of said Issuer by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
______ day of ____________________,199_____.
------------------------------------
(Written Signature)
------------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
- ------------------------------------ -------------------------------------
(Seal)
This instrument was prepared by, and after recordation should be returned to,
Bruce A. Pollzotto, Attorney, Ice Miller Donadio & Ryan, One American Square,
Box 82001, Indianapolis, Indiana 46282-0002, telephone (317) 236-2295.
-70-
EXHIBIT D
FORM OF AMENDMENT
AMENDMENT NO. --- TO TRUST INDENTURE
THIS AMENDMENT NO. ___TO TRUST INDENTURE, dated as of this __ day of
__________ 199_, is made by and between INDIANA DEVELOPMENT FINANCE AUTHORITY, a
body corporate and politic, duly organized and validly existing under the laws
of the State of Indiana (hereinafter referred to as "Issuer"), and OLD NATIONAL
TRUST COMPANY, a chartered corporate trust company (hereinafter referred to as
"Trustee").
WITNESSETH THAT:
WHEREAS, ENVIROTEST SYSTEMS CORP. (the "Company") has executed and
delivered in favor of the Issuer that certain Loan Agreement, Mortgage, Security
Agreement and Financing Statement, dated as of June 1, 1996, thereby securing,
in part, a certain First Mortgage Note, Series 1996, made by Company in favor of
and payable to Issuer, in the aggregate principal amount of $14,345,000.00
(hereinafter referred to as the "Loan Agreement"); and
WHEREAS, by the terms of a Trust Indenture, dated as of June 1, 1996, the
Issuer has agreed to assign its interests in the Mortgaged Property (as deemed
in the Loan Agreement), which Mortgaged Property includes the Project Sites, to
the Trustee for the benefit of the owners of the Series 1996 Bonds (the
"Indenture") which Indenture [is attached hereto as EXHIBIT A and incorporated
herein by this reference] or [was recorded as an EXHIBIT A to Instrument No.
__________ recorded on _____________ 199 in the office of the Recorder of
_______________ County, Indiana]; and
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WHEREAS, pursuant to Section 6. l of the Loan Agreement, as interests in
the Project Sites are acquired by Company with the proceeds of the Series 1996
Bonds, the Company is required to subject such acquired Project Sites to the
lien of the Loan Agreement; and
WHEREAS, the Issuer is required by the Loan Agreement to assign its
interests in the Project Sites to the Trustee as the Project Sites are acquired
pursuant to the Indenture and any amendments thereto; and
WHEREAS, the Company, contemporaneously herewith, has acquired a Project
Site situated in ________ County, Indiana, such Project Site being more
particularly described on EXHIBIT B attached hereto and incorporated herein by
this reference and has subjected such Project Sites to the lien of the Loan
Agreement pursuant to an Amendment to the Loan Agreement, and the Issuer now
desires to assign its interests in the lien of the Loan Agreement to the Trustee
pursuant to the Indenture and this Amendment thereto.
NOW, THEREFORE, in consideration of the foregoing premises, and the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Issuer hereby assigns, to the
Trustee all of its right, title and interest in and to the Project Site
described on EXHIBIT B attached hereto and in all supplements and additions
thereto, as more particularly described in the Granting Clauses of the
Indenture; subject, however, to Permitted Encumbrances.
The Issuer intends that its interests in the lien of the Loan Agreement be
assigned pursuant to the Indenture, as supplemented by this Amendment No. ____,
and such lien in favor of the Trustee shall attach to and encumber the Project
Site situated in ________ County, Indiana
-72-
and more particularly described on EXHIBIT B attached hereto as if the same
were originally described on EXHIBIT A attached to the Indenture.
All terms used herein which begin with the initial letter capitalized shall
have the same meanings herein as assigned to them in the Indenture.
Except as modified herein, all terms and conditions of the Indenture, [as
previously supplemented by Amendment Nos. __, __, and __ thereto,] except as
modified herein, shall remain in full force and effect.
-73-
IN WITNESS WHEREOF, the Issuer has caused this Amendment No. ___ to be duly
executed and attested by its duly authorized officers as of the day, month and
year first above written.
INDIANA DEVELOPMENT FINANCE
AUTHORITY
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
(SEAL)
ATTEST:
By:
----------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
OLD NATIONAL TRUST COMPANY
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
(SEAL)
ATTEST:
By:
---------------------------------
(signature)
Its:
--------------------------------
(printed name and title)
-74-
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
On this ______ day of _______________, 199__ before me, a Notary Public in
and for said County and State, personally appeared ________________________, the
of Old National Trust Company, to me personally known and known to me to be the
same person who executed the within and foregoing instrument, who, being by me
duly sworn, did depose, acknowledge and say: That he is the
_______________________ of Old National Trust Company, the corporation described
in and which executed the foregoing instrument; and that said instrument was
signed and sealed on behalf of the said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
______ day of ____________________, 199___.
-----------------------------------
(Written Signature)
-----------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
- ----------------------------------- -----------------------------------
(Seal)
-75-
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
On this _______ day of ___________________, 199__, before me, a Notary
Public in and for said County and State, personally appeared __________________,
to me personally known and known to me to be the same person who executed the
within and foregoing instrument, who, being by me duly sworn, did depose,
acknowledge and say: That he is the ___________ of Indiana Development Finance
Authority (the "Issuer"), the body corporate and politic described in and which
executed the foregoing instrument; that he knows the seal of said Issuer; that
the seal affixed to said instrument is the seal of said Issuer; that said
instrument was signed and sealed on behalf of said Issuer; and the said
_______________, _____________ of the Issuer, acknowledged the execution of said
instrument to be the voluntary act and deed of said Issuer by it voluntarily
executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
______ day of _________________, 199___.
-----------------------------------
(Written Signature)
-----------------------------------
(Printed Signature)
Notary Public
My commission expires: My county of residence:
- ----------------------------------- -----------------------------------
(Seal)
This instrument was prepared by, and after recordation should be returned to,
Bruce A. Polizotto, Attorney, Ice Miller Donadio & Ryan, One American Square,
Box 82001, Indianapolis, Indiana 46282-0002, telephone (317-236-2295.
-76-
SCHEDULE I
DESCRIPTION OF PENDING OR THREATENED LITIGATION
AGAINST COMPANY
Pursuant to Section 2.2 (g) hereof, the Company is unaware of any
threatened actions, suits or proceedings which, individually or in the
aggregate, might result in a material adverse change in the financial condition
of the Company and its subsidiaries taken as a whole or might impair the ability
of the Company to perform its obligations under this Loan Agreement or the
Series 1996 Note.
-77-