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EXHIBIT 10.8
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LOAN AGREEMENT
BETWEEN
STATE INDUSTRIAL DEVELOPMENT AUTHORITY,
AS LENDER,
AND
SIMCALA, INC.
AND
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF MONTGOMERY,
AS BORROWERS
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RELATING TO
$6,000,000
STATE INDUSTRIAL DEVELOPMENT AUTHORITY
TAXABLE INDUSTRIAL REVENUE BONDS
(SIMCALA, INC. PROJECT)
SERIES 1995
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DATED
AS OF
JANUARY 1, 1995
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KAUFMAN & ROTHFEDER, P.C.
MONTGOMERY, ALABAMA
BOND COUNSEL
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LOAN AGREEMENT
BETWEEN
STATE INDUSTRIAL DEVELOPMENT AUTHORITY
AND
SIMCALA, INC.
AND
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF MONTGOMERY
I N D E X
ARTICLE I DEFINITIONS.................................................................... 2
Section 1.1 Definitions............................................................. 2
Section 1.2 Interpretation.......................................................... 8
Section 1.3 Captions and Headings................................................... 9
ARTICLE II REPRESENTATIONS AND COVENANTS.................................................. 10
Section 2.1 Representations by the Issuer........................................... 10
Section 2.2 Representations and Covenants by the Company - General.................. 10
Section 2.3 Representations and Covenants by the Company - SIDA Act................. 11
ARTICLE III LOAN PROVISIONS................................................................ 13
Section 3.1 Loan; Loan Payments..................................................... 13
Section 3.2 Additional Payments..................................................... 13
Section 3.3 Obligations of Company Unconditional.................................... 14
Section 3.4 Assignment of Loan Agreement............................................ 14
ARTICLE IV PROVISIONS RESPECTING THE PROJECT.............................................. 16
Section 4.1 Agreement to Complete Project........................................... 16
Section 4.2 No Warranty of Suitability by Issuer.................................... 16
Section 4.3 Completion of the Project............................................... 16
ARTICLE V ADDITIONAL AGREEMENTS AND COVENANTS............................................ 17
Section 5.1 General Covenants....................................................... 17
Section 5.2 Indemnification......................................................... 17
Section 5.3 Compliance with Other Documents......................................... 17
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Section 5.4 Letter of Credit; Alternate Credit Facility............................. 17
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES................................................. 21
Section 6.1 Events of Default....................................................... 21
Section 6.2 Remedies on Default..................................................... 21
Section 6.3 No Remedy Exclusive..................................................... 22
Section 6.4 Agreement to Pay Attorneys' Fees and Expenses........................... 22
Section 6.5 No Additional Waiver Implied by One Waiver.............................. 22
ARTICLE VII MISCELLANEOUS.................................................................. 23
Section 7.1 Limitation of Issuer's Liability........................................ 23
Section 7.2 Limitation of IDB's Liability........................................... 23
Section 7.3 Execution Counterparts.................................................. 24
Section 7.4 Binding Effect; Assignability........................................... 24
Section 7.5 Amendments.............................................................. 24
Section 7.6 Severability............................................................ 24
Section 7.7 Notices................................................................. 24
Section 7.8 Governing Law........................................................... 25
Section 7.9 Term of Loan Agreement.................................................. 25
SIGNATURES ...................................................................................... 26
ACKNOWLEDGMENTS ................................................................................. 27
Exhibit A Description of Realty
Exhibit B Form of Note
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LOAN AGREEMENT
This LOAN AGREEMENT made and entered into as of January 1, 1995 (as the
same may hereafter be amended or supplemented, this "Loan Agreement"), between
the STATE INDUSTRIAL DEVELOPMENT AUTHORITY (the "Issuer"), a public corporation
organized under the laws of the State of Alabama (the "State"), as lender, and
SIMCALA, INC., a Delaware corporation qualified to transact business in and
pursuant to the laws of the State (the "Company") and THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF MONTGOMERY, a public corporation organized under the laws
of the State (the "IDB"), as borrowers, their respective successors and assigns,
under the circumstances summarized in the following recitals (with capitalized
terms used but not defined therein having the meanings given to them in Article
1 hereof):
A. The Issuer will issue the Bonds pursuant to the Bond Resolution in
order to finance part of the costs of acquiring, constructing and equipping the
Project.
B. Pursuant to this Loan Agreement, the Issuer will make the Loan to
the Company and the Company will agree to make Loan Payments to or for the
account of the Issuer, as herein and in the Note provided, at such times and in
such amounts as shall be sufficient to pay when due Debt Service on or Purchase
Price of the Bonds.
C. Title to the Project is nominally vested in the IDB, but is leased
by the IDB to and used by the Company in accordance with the provisions of the
Lease Agreement. Pursuant to the Lease Agreement, and in furtherance of the
public purposes for which it was created under the IDB Act, the IDB shall join
in the execution and delivery of this Loan Agreement, the Note and the
Mortgages, essentially as an accommodation to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties to this Loan Agreement hereby formally
covenant, agree and bind themselves as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the words and terms
elsewhere defined in this Loan Agreement or by reference to another document,
unless the context or use clearly indicates another or different meaning or
intent:
"Act of Bankruptcy" means the filing of a petition in bankruptcy (or
other commencement of a bankruptcy or similar proceeding) by or against the
Company or by the Issuer, as debtor, under any applicable bankruptcy,
reorganization, insolvency or other similar law now or hereinafter in effect.
"Additional Payments" means the amounts required to be paid by the
Company pursuant to the provisions of Section 3.2 hereof.
"Affiliate" means, as to any specified Person, another Person that
directly, or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with the specified Person.
"Alternate Credit Facility" means an irrevocable letter of credit, a
surety bond, an insurance policy or other credit facility delivered to the
Trustee pursuant to Section 5.4 of this Loan Agreement.
"Available Moneys" shall mean (a) original proceeds of the Bonds held
in any fund or account under the Indenture, together with investment earnings on
such proceeds, provided such proceeds are not furnished by, and do not come into
the possession of, the Company; (b) moneys paid by the Company to the Trustee
pursuant to this Loan Agreement, together with investment earnings on such
moneys, provided that, at the time of such payment and for a period of at least
123 days thereafter, there shall not have occurred any Act of Bankruptcy, as
evidenced by a certificate of the Company and the Issuer delivered to the
Trustee to that effect; provided such moneys need not have been on deposit for
123 days if the Company shall furnish to the Trustee, the Tender Agent and any
Rating Agency by which the Bonds shall then be rated an unqualified opinion of
counsel of national recognition experienced in bankruptcy matters, which opinion
shall be certified in writing by Moody's to be acceptable in form and content,
that payment of such moneys to the Holders would not constitute an avoidable
preference under Section 547 of the Federal Bankruptcy Code in the event of the
filing of a petition thereunder by or against the Company or by the Issuer; and
(c) moneys received by the Trustee from a draw under the Letter of Credit or
Alternate Credit Facility (provided such moneys are the Bank's own funds and are
not funds furnished by the Company), together with investment earnings on such
moneys.
"Bank" means Chemical Bank, New York, New York, and its successors and
assigns, as issuer of the Initial Letter of Credit, until such time, if any, as
a Substitute
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Letter of Credit or Alternate Credit Facility shall become effective pursuant to
Section 5.4 hereof, and thereafter "Bank" shall mean the issuer or provider of
such Substitute Letter of Credit or Alternate Credit Facility.
"Basic Rent" means that portion of the rentals payable under the Lease
Agreement in respect of Debt Service on or Purchase Price of the Bonds.
"Bond" or "Bonds" means the $6,000,000 Taxable Industrial Revenue Bonds
(SIMCALA, Inc. Project) Series 1995 of the Issuer issued and delivered under the
Bond Resolution and the Indenture.
"Bond Purchase Agreement" means the Bond Purchase Agreement, dated the
date of final pricing of the Bonds by the Original Purchaser, among the Issuer,
the Company and the Original Purchaser.
"Bond Resolution" means the resolution of the Issuer adopted January
11, 1995 authorizing the issuance of the Bonds and the execution and delivery of
the Issuer Documents, among other matters.
"Building" means, collectively, all structures and improvements now
existing or hereafter expanded, constructed, reconstructed or made on the
Realty, as they may at any time exist.
"Business Day" means any day other than (A) a Saturday or Sunday or (B)
a day on which commercial banks are required or authorized by law to close in
any of the following locations: (i) the city in which the Trustee's Office (as
defined in the Indenture) is located, (ii) the city in which the principal
office of the Remarketing Agent is located, (iii) the city in which the office
of the Bank at which drawings under the Letter of Credit are to be made is
located, or (iv) the City of New York, New York.
"Company Documents" means, individually or collectively, as the context
may require, each or all of this Loan Agreement, the Note, the Mortgages, the
Bond Purchase Agreement, the Reimbursement Agreement, the Lease Agreement and
such other documents or instruments as the Company may enter into in order to
consummate the transactions contemplated hereby and thereby.
"Completion Date" means the date of completion of the Project to be
established by the Company in accordance with Section 4.3 hereof.
"Construction Fund" means the fund created pursuant to the Lease
Agreement and described in Section 3.1 hereof.
"Debt Service" means, for any period or payable at any time, the
principal, interest and any premium due on the Bonds for that period or payable
at that time.
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"Department" means the Department of Revenue of the State.
"Equipment" means any items of equipment, fixtures and tangible
personal property located in or on the Building or the Realty and any item of
equipment, fixtures or tangible personal property acquired in substitution
therefor or as a renewal or replacement thereof pursuant to the provisions of
the Lease Agreement and the Mortgages.
"Event of Default" means an Event of Default specified and defined in
Section 6.1 hereof.
"Existing Letter of Credit" means, as of any particular time, the
Letter of Credit or Alternate Credit Facility held by the Trustee at that time.
"Extension Letter of Credit" means a Substitute Letter of Credit from
the same Bank which issued the Existing Letter of Credit, substantially
identical to the Existing Letter of Credit except that it has a Stated
Termination Date at least one year later than that of the Existing Letter of
Credit.
"First Mortgage" means the Real Estate Mortgage, Assignment of Lease
and Security Agreement of even date herewith from the Company and the IDB to the
guarantor of the Company's obligations to the Bank under the Reimbursement
Agreement, as the same may hereafter be amended or supplemented.
"Governmental Authority" means the United States, any state or
political subdivision thereof and any court, agency, department, commission,
board, bureau or instrumentality of any of the foregoing.
"Holder" means the Person in whose name a Bond is registered on the
books kept and maintained by the Registrar for the registration and transfer of
Bonds.
"IDB Act" means Article 4, Chapter 54, Title 11 of the Code of Alabama
of 1975, as amended.
"IDB Documents" means, individually or collectively, as the context may
require, each or all of this Loan Agreement, the Note, the Mortgages, the Lease
Agreement and such other documents or instruments as the IDB may enter into in
order to consummate the transactions contemplated hereby and thereby.
"Indenture" means the Trust Indenture of even date herewith between the
issuer and the Trustee, as the same may hereafter be amended or supplemented.
"Initial Letter of Credit" means the initial Letter of Credit in the
form attached to the Reimbursement Agreement as Schedule I and delivered to the
Trustee on or prior to the Issue Date.
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"Interest Payment Date," when used with respect to any installment of
interest on a Bond, means the date specified in such Bond as the fixed date on
which such installment of interest is due and payable, as more particularly
described in the Indenture.
"Interest Rate for Advances" means the rate per annum which is one
percent per annum in excess of that rate announced from time to time by the
Trustee as its "prime" or "base" rate.
"Issue Date" means the date of initial authentication and delivery of
the Bonds.
"Issuer Documents" means, individually or collectively, as the context
may require, each or all of this Loan Agreement, the Indenture, the Bond
Purchase Agreement and such other documents or instruments as the Issuer may
issue into in order to consummate the transactions contemplated hereby, thereby
and by the Bond Resolution.
"Lease Agreement" means the Consolidated, Amended and Restated Lease
Agreement of even date herewith between the IDB, as lessor, and the Company, as
lessee, as the same may hereafter be amended and supplemented.
"Letter of Credit" means the Initial Letter of Credit and, unless the
context or use indicates another or different meaning or intent, any Substitute
Letter of Credit.
"Loan" means the loan by the Issuer to the Company and the IDB of the
proceeds received from the sale of the Bonds to the Original Purchaser.
"Loan Payment Date" means the Business Day preceding (a) any date on
which any Debt Service on the Bonds shall be due and payable, whether at
maturity, upon acceleration, call for redemption or otherwise, or (b) any Tender
Date on which the Purchase Price of Bonds shall be due and payable.
"Loan Payments" means the amounts required to be paid by the Company in
repayment of the Loan pursuant to Section 3.1 hereof and the Note.
"Mandatory Tender" means a tender of Bonds required to be made by the
provisions of the Indenture.
"Mortgages" means any instrument conveying a mortgage on and/or
security interest in the Project or any part thereof or any rents, income and
profits therefrom, including without limitation the First Mortgage and the
Subordinated Mortgages.
"Necessary Authorizations" means, with respect to any given action or
effect, all authorizations, consents, approvals, permits, licenses and
exemptions of, filings and registrations with, and reports to, all Governmental
Authorities which are necessary or required to accomplish such action or achieve
such effect.
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"Note" means the promissory note of the Company and the IDB, dated the
Issue Date, in the form attached as Exhibit B to this Loan Agreement and in
principal amount equal to the aggregate principal amount of the Bonds,
evidencing the obligation of the Company to make Loan Payments.
"Optional Tender" means a tender of Bonds at the option of the Holder
thereof pursuant to the provisions of the Indenture.
"Original Purchaser" means, as to the Bonds, Merchant Capital, L.L.C.,
Montgomery, Alabama.
"Person" includes natural persons, firms, associations, partnerships,
trusts, corporations and public bodies.
"Preliminary Agreement" means the Preliminary Agreement dated September
12, 1994 between the Issuer and the Company.
"Project" means the Realty, the Building and the Equipment, to be
acquired, constructed, equipped, owned and operated by the Company pursuant to
the Lease Agreement and this Loan Agreement for use as silicon metal
manufacturing facilities or other purposes consistent with the provisions of the
IDB Act and the SIDA Act, as such Realty, Building and Equipment may at any time
exist.
"Project Costs" means costs of or relating to the Project which may be
paid (or the prior payment of which may be reimbursed) with proceeds of the
Bonds, including without limitation the following: (a) all costs related to the
acquisition of real and personal properties or any interest therein; (b) the
cost of labor, materials and supplies furnished or used in the construction,
installation, renovation or rehabilitation of buildings and structures; (c)
acquisition, transportation and installation costs for personal property and
fixtures; (d) fees for architectural, engineering, legal and supervisory
services, including any legal, accounting, underwriting and fiduciary fees and
expenses incurred by the Issuer or the Company in connection with the issuance
of the Bonds; (e) expenses incurred in the enforcement of any remedy against any
contractor, subcontractor, materialmen, vendor, supplier or surety; (f) interest
accruing on indebtedness incurred by the Issuer or the Company (including the
Bonds) in connection with the acquisition and construction of, or other work on,
the Project for the period ending 24 months after the date the Project is placed
in service; (g) fees for an appraisal of the Project; (h) costs of obtaining or
maintaining credit enhancement and/or liquidity facilities in respect of the
Bonds; and (i) insurance premiums and taxes incurred until the Project is (or
was) placed in service.
"Project Supervisor" means any employee or agent of the Company now or
hereafter authorized in writing, by the President or any Vice President of the
Company, to act in connection with matters pertaining to the Project pursuant to
the provisions hereof.
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"Purchase Price" means, with respect to any Bond tendered for purchase
by Optional Tender or Mandatory Tender, 100% of the principal amount thereof
plus accrued interest thereon, if any, from the last preceding Interest Payment
Date to the Tender Date.
"Rating Agency" means Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Corporation ("S&P"), both of New York, New York, their
respective successors and assigns and any other nationally recognized securities
rating agency.
"Realty" means the real estate and interests therein constituting the
site of the Building, as described in Exhibit A hereto, less any such real
estate, interests in real estate and other rights as may be released from the
Lease Agreement and the Mortgages pursuant to the respective provisions thereof
or taken by the exercise of the power of eminent domain.
"Registrar" means the Trustee in its capacity as Registrar for the
Bonds under the Indenture.
"Reimbursement Agreement" means the Reimbursement Agreement of even
date herewith between the Company and the Bank, as issuer of the Initial Letter
of Credit, as the same may hereafter be amended or supplemented, or any
comparable agreement relating to a Substitute Letter of Credit or Alternate
Credit Facility.
"Related Documentation" means the documentation required to accompany a
Substitute Letter of Credit or Alternate Credit Facility in accordance with the
provisions of Section 5.4 of this Loan Agreement.
"Remarketing Agent" means the Remarketing Agent appointed in accordance
with Section 518 of the Indenture.
"Reserved Rights" means all of the rights of the Issuer to receive
Additional Payments or reimbursement pursuant to Section 3.2(a) hereof, to be
held harmless and indemnified pursuant to Section 5.2 hereof, to be reimbursed
for attorney's fees and expenses pursuant to Section 6.4 hereof, to receive
notices hereunder and to give or withhold consent to amendments, supplements,
modifications or termination of this Loan Agreement.
"SIDA Act" means Act No. 93-851 enacted at the 1993 First Special
Session of the Alabama Legislature, as amended.
"State" means the State of Alabama.
"Stated Termination Date" means the date on which the Letter of Credit
is stated to expire, which shall in each case be the 15th day of a calendar
month.
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"Subordinated Mortgages" means three separate subordinated Real Estate
Mortgages, Assignments of Lease and Security Agreements from the Company and the
IDB to subordinated creditors of the Company.
"Substitute Letter of Credit" means an irrevocable letter of credit
delivered to the Trustee in substitution for the Existing Letter of Credit, in
compliance with the requirements of Section 5.4 of this Loan Agreement and
accompanied by the Related Documentation.
"Tender Date" means any date on which Bonds are to be purchased
pursuant to an Optional Tender or a Mandatory Tender, as the case may be.
"Trustee" means the institution serving as such under the Indenture,
initially, First Alabama Bank, Montgomery, Alabama.
Section 1.2 Interpretation. Any reference herein to the Issuer or
to any member of the Board of Directors or officer thereof includes entities or
officials succeeding to their respective functions, duties or responsibilities
pursuant to or by operation of law or lawfully performing their functions.
Any reference to a section or provision of the Constitution of the
State or the SIDA Act, or to a section, provision or chapter of the Code of
Alabama of 1975 or to any statute of the United States of America, includes that
section, provision or chapter as amended, modified, revised, supplemented or
superseded from time to time, provided that no amendment, modification,
revision, supplement or superseding section, provision or chapter shall be
applicable solely by reason of this provision, if it constitutes in any way an
impairment of the rights or obligations of the Issuer, the Holders, the Trustee,
the Bank, the IDB or the Company under this Loan Agreement, the Note, the Bonds,
the Indenture, the Mortgages or any other instrument or document entered into in
connection with any of the foregoing, including without limitation, any
alteration of the obligation to pay Debt Service on or Purchase price of the
Bonds in the amount and manner, at the times, and from the sources provided in
the Bonds, except as permitted therein.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof," "hereby,"
"herein," "hereto," "hereunder" and similar terms refer to this Loan Agreement,
and the term "hereafter" means after, and the term "heretofore" means before,
the effective date of this Loan Agreement, which shall be the Issue Date. Words
of any gender include the correlative words of the other genders, unless the
sense indicates otherwise.
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Section 1.3 Captions and Headings. The captions and headings in
this Loan Agreement are solely for convenience of reference and in no way
define, limit or describe the scope or intent of any Articles, Sections,
subsections, paragraphs, subparagraphs or clauses hereof.
[END OF ARTICLE I]
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ARTICLE II
REPRESENTATIONS AND COVENANTS
Section 2.1 Representations by the Issuer. The Issuer makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) The Issuer is a public corporation organized under the
laws of the State. Under the provisions of the SIDA Act the Issuer has
the power to enter into and consummate the transactions contemplated by
the Issuer Documents and to carry out its obligations thereunder. By
proper action the Issuer has duly authorized the execution, delivery
and performance of the Issuer Documents and the Issuance of the Bonds.
(b) The execution, delivery and performance by the Issuer of
the Issuer Documents and the issuance of the Bonds are within the
Issuer's powers, and each such document, when executed and delivered,
will constitute a legal, valid and binding obligation of the issuer
enforceable against the Issuer in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting
creditors' rights generally and by the application of general
principles of equity.
(c) It will do all things in its power in order to maintain
its existence or assure the assumption of its obligations under the
Issuer Documents by any successor public body, as provided in the
Indenture.
Section 2.2 Representations and Covenants by the Company - General.
The Company represents and covenants that:
(a) It is a corporation duly organized and validly existing
under the laws of the State of Delaware and qualified to transact
business under the laws of the State.
(b) The execution, delivery and performance by the Company of
the Company Documents and the carrying out of the transactions
contemplated thereby are within the Company's corporate powers, have
been duly authorized by all necessary corporate action on the part of
the Company, and do not violate any provision of law, any order of any
court or other governmental agency, the Articles of Incorporation or
Bylaws of the Company, or any indenture, agreement or other instrument
to which the Company or any Affiliate of the Company is a party or by
which the Company or any Affiliate of the Company or any of its or
their properties or assets is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under, any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any of the
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properties or assets of the Company or any Affiliate of the Company
(other than the liens of the Mortgages).
(c) The Company has, to the best of its knowledge, obtained
and will use its reasonable efforts to maintain all Necessary
Authorizations for the acquisition, construction and equipping of the
Project, and has, to the best of its knowledge, obtained or will
promptly obtain and will use its reasonable efforts to maintain all
Necessary Authorizations for the operation of the Project and for the
due execution, delivery and performance by the Company of each of the
Company Documents. In particular, all building permits required for the
construction or renovation of the Building have been or will when and
as necessary be obtained and, once obtained, will be maintained in full
force and effect, and all utility services (including water supply,
storm and sanitary sewerage, electric and telephone facilities)
necessary for the construction or renovation and operation of the
Building for the intended purposes are or will be available.
(d) Each of the Company Documents, when executed and
delivered, will constitute a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and by the application of general
principles of equity.
(e) There is no pending or, to the best of its knowledge,
threatened action, investigation or proceeding before any court,
governmental agency or arbitrator against or affecting the Company or
any Affiliate of the Company (i) in any way contesting or affecting the
Project, the validity of this Loan Agreement or any of the other
Company Documents, (ii) in any way contesting the existence or powers
of the Company as a limited liability company, or (iii) in any material
way affecting the ability of the Company to discharge its obligations
under any of the Company Documents.
Section 2.3 Representations and Covenants by the Company - SIDA Act.
(a) The Company expects that the Project will be used in a
trade or business described in SIC Code No. 3339 throughout the term of
the Bonds. If, in the future, there is a cessation of that operation,
the Company may in its discretion resume that operation or accomplish
an alternate use by the Company or others which will be consistent with
the SIDA Act and the IDB Act.
(b) Either (i) the average hourly wage for full-time hourly
wage paid employees at the Project will be at least $8.00 per hour or
(ii) average total compensation (including benefits) for full time paid
employees at the Project will be at least equivalent to $10.00 per
hour.
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(c) The Company expects and agrees to invest not less than
$6,000,000 on Project Costs on or before March 1, 1998.
(d) The Company expects to employ at least 130 full time new
employees at the Project within 18 months after the date that the
Project is placed in service by the Company. The Company has not laid
off any employees in the State during the two years preceding the Issue
Date. This term "new employees" includes only those individuals (i) who
have not previously been employed by the Company in the State; (ii)
will be employed at the Project; and (iii) will be subject to the
personal income tax imposed by Section 40-18-2 of the Code of Alabama
of 1975, as amended, upon commencement of employment by the Company at
the Project.
(e) The Company did not commence the acquisition or
construction of the Project prior to the date of the Preliminary
Agreement. For purposes of this paragraph, preliminary expenditures not
exceeding 10% of the total cost of the Project for items such as
architectural, engineering, surveying, soil testing, feasibility and
similar costs shall not be considered as the commencement of
acquisition or construction.
(f) The amount of Job Development Fees (as defined in the SIDA
Act) assessed by the Company and withheld from the gross wages of its
new employees at the Project shall not exceed the amount permitted by
the SIDA Act and the rules and regulations of the Issuer and the
Department in existence on the Issue Date.
(g) The Company has complied and will comply with all of the
provisions of the SIDA Act and the Issuer's rules and regulations
applicable to it.
Failure to comply with the representations and warranties contained in this
Section 2.3 shall not constitute an Event of Default under Section 6.1 hereof
but may constitute grounds for the reduction, suspension or denial by the
Department of the right to collect Job Development Fees and the credits against
corporate income taxes granted by the SIDA Act.
[END OF ARTICLE II]
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ARTICLE III
LOAN PROVISIONS
Section 3.1 Loan; Loan Payments.
(a) Simultaneously with the execution and delivery hereof, the
Issuer will issue the Bonds and will make the Loan by causing the
proceeds from the sale of the Bonds to be deposited with the Trustee
into the Construction Fund in the name of the IDB for the benefit of
the Company, in accordance with the provisions of the Lease Agreement
and the Indenture, in order (i) to reimburse the Company for any
amounts advanced by the Company to pay Project Costs subsequent to the
date of the Preliminary Agreement and (ii) to pay Project Costs. In
consideration of the Loan, the Company and the IDB shall, concurrently
with the issuance of the Bonds, execute and deliver the Note
(evidencing the obligation to make Loan Payments in respect of Debt
Service on or Purchase Price of the Bonds) to the Trustee, the First
Mortgage to the guarantor of the Company's obligations to the Bank
under the Reimbursement Agreement and the Subordinated Mortgages to
certain other creditors of the Company in respect of the Project.
(b) The Company shall make Loan Payments in repayment of the
Loan by 12:00 p.m. Montgomery, Alabama time on each Loan Payment Date,
in the amount necessary to pay the Debt Service on or Purchase Price of
the Bonds which is due and payable on that date. The IDB's obligations
under this Loan Agreement and the Note shall be limited solely to the
Basic Rent and any other revenues and receipts derived from the leasing
of the Project to the Company under the Lease Agreement (excluding,
however, any such revenues and receipts payable to the IDB as part of
its Unassigned Rights as therein defined).
(c) All Loan Payments shall be paid directly to the Trustee
for the account of the Issuer for application to the payment of Debt
Service on or Purchase Price of the Bonds or the reimbursement to the
Bank of amounts drawn under the Letter of Credit.
(d) Upon payment in full of the Debt Service on the Bonds,
whether at maturity or upon redemption or otherwise, the Note shall be
deemed fully paid, the obligations of the Company and the IDB
thereunder shall be terminated and the Note shall be surrendered by the
Trustee to the Company for cancellation.
Section 3.2 Additional Payments. (a) In further consideration of
the Loan by the Issuer, the Company covenants and agrees to pay as Additional
Payments hereunder the reasonable expenses of the Issuer Incurred at the request
of the Company, or in the performance of its duties under this Loan Agreement,
or in connection with any litigation which may at any time be instituted
involving the Project, this Loan Agreement or the Indenture, or in the pursuit
of any remedies under this Loan Agreement or the Indenture.
-13-
17
The Issuer reserves the right to adopt and impose an administrative fee to be
paid annually by the Company to the Issuer during the term of the Bonds (such
fee not to exceed 1/10th of 1% of the principal amount of such Bonds
outstanding) and the Company agrees to pay such administrative fee to the Issuer
if, as and when requested. The Company shall make such Additional Payments
within ten days after receipt of an invoice therefor.
(b) The Company covenants and agrees to pay as further
Additional Payments hereunder the fees, charges and expenses of the
Trustee and the other Fiduciaries (as defined in the Indenture) for
acting as such under the Indenture, as and when the same become due,
provided that the Company may, without creating a default hereunder,
contest in good faith the necessity for any extraordinary services or
extraordinary expenses and the reasonableness of any such fees, charges
or expenses. Following the payment or incurring of any such costs,
expenses or liabilities, such Additional Payments are payable by the
Company upon written demand therefor, and if not paid upon such demand
shall bear interest from the date of demand at the Interest Rate for
Advances.
Section 3.3 Obligations of Company Unconditional. The obligation
of the Company to pay the Loan Payments and to perform and observe the other
agreements and covenants on its part herein contained shall be absolute and
unconditional, irrespective of any rights of setoff, recoupment or counterclaim
it might otherwise have against the Issuer, the Trustee, the Bank or any other
Person. The Company will not suspend or discontinue such Loan Payments or fail
to perform and observe any of its other agreements and covenants contained
herein or terminate this Loan Agreement for any cause whatsoever, including,
without limiting the generality of the foregoing, failure to complete the
Project, any acts or circumstances that may constitute an eviction or
constructive eviction, failure of consideration or commercial frustration of
purpose, any damage to or destruction of the Project, the Invalidity of any
provision of this Loan Agreement, the taking by eminent domain of title to or
the right to temporary use of all or any of the Project, any change in the tax
or other laws of the United States of America or of the State or any political
subdivision thereof, or any failure of the Issuer to perform and observe any
agreement or covenant, whether express or implied, or any duty, liability or
obligation arising out of or connected with this Loan Agreement. Notwithstanding
the foregoing, the Company may, at its own cost and expense and in its own name
or in the name of the Issuer, prosecute or defend any action or proceeding, or
take any other action involving third persons which the Company deems reasonably
necessary, in order to secure or protect its rights of use and occupancy of the
Project and its other rights hereunder. Nothing contained herein shall be
construed to be a waiver of any rights which the Company may have against the
Issuer under this Loan Agreement or under any provision of law.
Section 3.4 Assignment of Loan Agreement. Except for Reserved
Rights, the Issuer has in the Indenture assigned all its right title and
interest in and to this Loan Agreement and the Loan Payments to the Trustee as
security for payment of the Debt Service and Purchase Price of the Bonds. The
Trustee shall have all rights and remedies
-14-
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herein accorded to the Issuer (except for Reserved Rights), and any reference
herein to the Issuer shall be deemed, with the necessary changes in detail, to
include the Trustee, and the Trustee and any Holders are deemed to be third
party beneficiaries of the covenants and agreements of the Company herein
contained. The Company hereby agrees and consents to the Indenture.
[END OF ARTICLE III]
-15-
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ARTICLE IV
PROVISIONS RESPECTING THE PROJECT
Section 4.1 Agreement to Complete Project. The Company will use
its reasonable efforts to cause the acquisition, construction and equipping of
the Project to be completed as soon as practicable in accordance with such plans
and specifications for the Project as the Company has caused to be prepared. The
Company may cause changes or amendments to be made in such plans and
specifications for the Project, provided no such change or amendment will alter
the character of the Project to such an extent that it ceases to be a "project"
under the SIDA Act or the IDB Act. The Issuer hereby authorizes and directs the
Company to requisition disbursements of amounts in the Construction Fund to pay
or reimburse the prior payment of Project Costs, all as more fully described in
Section 405 of the Indenture.
Section 4.2 No Warranty of Suitability by Issuer. The Company
recognizes that since any plans and specifications for the Project have been
prepared to its order, and that since the Equipment has been and is to be
selected by it, the Issuer can make no warranty, either express or implied, or
offer any assurances, that the Project will be suitable for the Company's
purposes or needs.
Section 4.3 Completion of the Project The Company shall notify
the Trustee and the Issuer of the Completion Date of the Project by a
certificate signed by a Project Supervisor stating, as appropriate: (1) the date
on which the acquisition, construction and equipping of the Project were
substantially completed (the "Completion Date"); (ii) that all other facilities
necessary in connection with the Project have been acquired, constructed,
improved and equipped; (iii) that the acquisition, construction, improvement and
equipping of the Project and those other facilities have been accomplished in
such a manner as to conform with all applicable zoning, planning, buildings,
environmental and other similar governmental regulations; (iv) that all costs of
that acquisition, construction, improvement and equipping then or theretofore
due and payable have been paid; and (v) the amounts (if any) of Project Costs
not yet due or of liabilities which the Company is contesting. Such certificate
may state that it is given without prejudice to any rights against third parties
which exist at the date of such certificate or which may subsequently come into
being.
[END OF ARTICLE IV]
-16-
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ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1 General Covenants. The Company will not do or permit
anything to be done on or about the Project that will affect, impair or
contravene any policies of Insurance that may be carried on the Project or any
part thereof against loss or damage by fire, casualty or otherwise. The Company
will, in the use of the Project and the public ways abutting the same, comply
with all lawful requirements of all Governmental Authorities; provided, however,
the Company may, at its own expense and in good faith, contest the validity or
applicability of any such requirement
Section 5.2 Indemnification. To the extent permitted by law, the
Company agrees to indemnify the Issuer for, and hold it harmless against any
loss, liability or expense (including reasonable attorneys' fees) incurred
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the issuance of the Bonds, the acceptance of its duties
and responsibilities under the Issuer Documents, or its performance or
observance of any agreement or covenant on its part to be observed or performed
under the Indenture or this Loan Agreement, including without limitation (i) the
offer and sale of the Bonds or a subsequent sale or distribution of any of the
Bonds and (ii) the exercise, or failure to exercise, any right, privilege or
power of the Issuer under the Issuer Documents. The covenant of indemnity by the
Company contained in this Section shall survive the termination of this Loan
Agreement.
Section 5.3 Compliance with Other Documents. The Company shall comply
and shall cause any lessee, licensee or invitee of the Project to comply with
the terms and provisions of the Lease Agreement, this Loan Agreement and the
Mortgages respecting the Project.
Section 5.4 Letter of Credit; Alternate Credit Facility.
(a) On or before the Issue Date, the Company shall cause to be
delivered to the Trustee the Initial Letter of Credit. The Company may
at any time and from time to time, but shall not be required to,
deliver a Substitute Letter of Credit to the Trustee in substitution
for the Existing Letter of Credit
(b) The Company shall give the Trustee at least 30 days' prior
written notice of its intention to deliver a Substitute Letter of
Credit not fewer than 21 days prior to the date on which such
Substitute Letter of Credit is proposed to be delivered, which date
shall be a Business Day, the Company shall deliver to the Trustee a
binding commitment for the issuance of such Substitute Letter of Credit
and the Related Documentation described in subsection (d)(i) of this
Section.
(c) Each Substitute Letter of Credit delivered to the Trustee
pursuant to this Section must meet the following criteria:
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(i) if such Substitute Letter of Credit will be
effective during a Seven Day Rate Period (as defined in the
Indenture), such Substitute Letter of Credit shall be
substantially in the same form and of the same tenor as the
Initial Letter of Credit, including provision for the payment
of interest on the Bonds (or the interest portion of the
purchase price of Bonds tendered, or deemed tendered, for
purchase) for a period of 60 days at the maximum rate per
annum, specified in such Substitute Letter of Credit, at which
there has been calculated the amount available to be drawn
thereunder with respect to interest on the Bonds;
(ii) If such Substitute Letter of Credit will be
effective during a Yearly Fixed Rate Period or the Permanent
Fixed Rate Period (both as defined In the Indenture), such
Substitute Letter of Credit shall be substantially in the same
form and of the same tenor as the Initial Letter of Credit
except this such Substitute Letter of Credit must provide for
the payment of (A) interest on the Bonds (or the interest
portion of the purchase price of Bonds tendered, or deemed
tendered, for purchase) for a period of 210 days at the rate
per annum to be borne by the Bonds during such Yearly Fixed
Rate Period or Permanent Fixed Rate Period, plus (B) an amount
equal to 2% of the then principal amount of the Bonds, to
enable the Trustee to pay the redemption premium on the Bonds
in the event of the optional redemption thereof,
(iii) if such Substitute Letter of Credit is being
delivered in connection with a Letter of Credit Substitution
Date or with a conversion of the Interest rate borne by the
Bonds on a Conversion Date or Seven-Day Rate Recommencement
Date (all as defined in the Indenture), then the effective
date of such Substitute Letter of Credit shall be such Letter
of Credit Substitution Date, Conversion Date or Seven-Day Rate
Recommencement Date, as the case may be; and if such
Substitute Letter of Credit is being delivered in connection
with the Stated Termination Date of the Existing Letter of
Credit, then the effective date of such Substitute Letter of
Credit shall be the first Business Day of the calendar month
in which such Stated Termination Date is to occur, and
(iv) such Substitute Letter of Credit must have a
Stated Termination Date that is (A) the 15th day of a calendar
month and (B) not sooner than one year after its effective
date.
(d) Each Substitute Letter of Credit (other than any
Extension Letter of Credit) delivered to the Trustee must be
accompanied by the following Related Documentation, to the extent
applicable:
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(i) written evidence from each Rating Agency that
maintains a rating with respect to the Bonds of (A) the fact
that such Rating Agency has reviewed the proposed Substitute
Letter of Credit (B) the rating or ratings, if any, assigned
or to be assigned by such Rating Agency to the Issuer of the
proposed Substitute Letter of Credit and (C) the rating or
ratings, if any, that such Rating Agency has assigned or would
assign to the Bonds by reason of the substitution;
(ii) an opinion of Bond Counsel to the effect that
such Substitute Letter of Credit is authorized by this Loan
Agreement and the Indenture; and
(iii) an opinion of counsel for the issuer of such
Substitute Letter of Credit to the effect that (A) such
Substitute Letter of Credit is a valid, binding and
enforceable obligation of the issuer thereof (B) use of the
proceeds of a drawing on such Substitute Letter of Credit to
pay Debt Service on the Bonds would not be avoidable as a
preferential payment under Section 547 of the Bankruptcy Code
recoverable under Section 550 thereof should the Company or
the Issuer become a debtor in a proceeding commenced
thereunder, and (C) the Substitute Letter of Credit and the
Bonds are not required to be registered under the Securities
Act of 1933, as amended, and the Indenture is not required to
be qualified under the Trust Indenture Act of 1939, as
amended.
(e) At the close of business on the effective date of any
Substitute Letter of Credit, the Trustee shall return the Existing
Letter or Credit to the issuer thereof, provided that any draws on such
Existing Letter of Credit made on or prior to such date have been
honored. Any draws that under the terms of the Indenture, are to be
made on the Letter of Credit on or prior to the effective date of a
Substitute Letter of Credit shall be made under the Existing Letter of
Credit not later than the close of business on the effective date of a
Substitute Letter of Credit, the Bank shall deliver to the Trustee
written evidence that all obligations of the Company to the issuer of
the Existing Letter of Credit for reimbursement of amounts drawn
thereunder shall have been satisfied, and upon receipt of such evidence
any Bank Bonds held by the Tender Agent (as both said terms are defined
in the Indenture) under the Indenture for the benefit of the issuer of
the Existing Letter of Credit shall be delivered to, or upon the order
of, the Company.
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(f) The Company may, at its option, provide for the delivery
to the Trustee of an Alternate Credit Facility to supplement the Letter
of Credit or to provide credit enhancement In place of a Letter of
Credit. Any such Alternate Credit Facility shall be payable to the
Trustee for the benefit of the Holders of the Bonds and shall have
administrative provisions satisfactory to the Trustee. The
preconditions for delivery of an Alternate Credit Facility shall be
identical in substance to those detailed in this Section for delivery
of a Substitute Letter of Credit with such modifications, however, as
shall be appropriate to comport with the form and character of the
Alternate Credit Facility.
[END OF ARTICLE V]
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default. Any one or more of the following
shall be an Event of Default under this Loan Agreement:
(a) Failure by the Company to pay when due any Loan Payment
or portion thereof.
(b) Failure by the Company to observe or perform any other
covenant, condition or agreement on its part to be observed or
performed and continuation of such failure for a period of 30 days
after receipt of notice thereof from the Trustee or the Issuer, or such
longer period as may be reasonably necessary to cure such default so
long as the Company is diligently pursuing such cure.
(c) The occurrence and continuation of an "Event of Default"
under and as defined in the Indenture or Reimbursement Agreement.
(d) Any representation or warranty made by the Company herein
(other than in Section 2.3 hereof) or in any document, certificate, or
other instrument furnished in connection with this Loan Agreement or
with the issuance and sale of the Bonds shall at any time prove to have
been false or misleading in any material respect as of the time made.
Section 6.2 Remedies on Default. Whenever any such Event of Default
shall have happened and be continuing, the Trustee, as assignee of the Issuer
and on its behalf, or (but only as to any Reserved Rights) the Issuer, may:
(a) declare all Loan Payments payable under this Loan
Agreement for the remainder of the term hereof to be immediately due
and payable;
(b) exercise any or all or any combination of the remedies
specified in the Indenture; or
(c) take whatever action at law or in equity may appear
necessary or desirable to collect the Loan Payments, Additional
Payments or other amounts then due hereunder, whether by declaration or
otherwise, or to enforce any obligation, covenant or agreement of the
Company under this Loan Agreement or arising by law.
The Issuer may, without consent of the Trustee, waive any Event of
Default hereunder with respect to Reserved Rights, and the Trustee may not,
without the written consent of the Issuer, waive any Event of Default hereunder
with respect to Reserved Rights.
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The provisions of this Section are subject to the limitation that any
rescission by the Trustee, pursuant to Section 602 of the Indenture, of its
declaration that all of the Bonds are immediately due and payable also shall
constitute an annulment of any corresponding declaration made pursuant to
paragraph (a) of this Section and a waiver and rescission of the consequences of
that declaration and of the Event of Default with respect to which that
declaration had been made; provided that no such waiver or rescission shall
extend to or affect any subsequent or other default or impair any right
consequent thereon.
Section 6.3 No Remedy Exclusive. No remedy herein conferred upon
or reserved to the Issuer or the Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Loan
Agreement or any related document or now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof but any such right or power may be exercised
from time to time and as often as may be deemed expedient.
Section 6.4 Agreement to Pay Attorneys' Fees and Expenses. In the
event the Company should default under any of the provisions of this Loan
Agreement and the Issuer or the Trustee should employ attorneys or incur other
expenses for the collection of Loan Payments or other sums due under this Loan
Agreement or the enforcement of performance or observance of any obligation or
agreement on the part of the Company herein contained, the Company will on
demand therefor pay to the Issuer and the Trustee the reasonable fees of such
attorneys and such other expenses so incurred; and such amounts shall bear
interest at the Interest Rate for Advances from the date of demand to the date
of payment
Section 6.5 No Additional Waiver Implied by One Waiver. In the
event any agreement contained in this Loan Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder.
[END OF ARTICLE VI]
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Limitation of Issuer's Liability.
(a) The covenants and agreements contained in this Loan
Agreement shall never constitute or give rise to a personal or
pecuniary liability or charge against the general credit of the Issuer,
and in the event of a breach of any such covenant or agreement no
personal or pecuniary liability or charge payable directly or
indirectly from the general assets or revenues of the Issuer shall
arise therefrom. Nothing contained in this Section, however, shall
relieve the Issuer from the observance and performance of the covenants
and agreements on its part contained herein.
(b) Other than for willful or wanton acts: no recourse under
or upon any covenant or agreement of this Loan Agreement shall be had
against any past, present or future incorporator, officer or member of
the Board of Directors of the Issuer, or any of its servants, agents or
employees, or of any successor corporation, either directly or through
the Issuer, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Loan Agreement Is solely a
corporate obligation, and that no personal liability whatever shall
attach to, or is or shall be incurred by, any Incorporator, officer or
member of the Board of Directors of the Issuer or any successor
corporation, or any of them, under or by reason of the covenants or
agreements contained in this Loan Agreement
Section 7.2 Limitation of IDB's Liability.
(a) The covenants and agreements contained in this Loan
Agreement shall never constitute or give rise to a personal or
pecuniary liability or charge against the general credit of the IDB,
and in the event of a breach of any such covenant or agreement, no
personal or pecuniary liability or charge payable directly or
indirectly from the general assets or revenues of the IDB shall arise
therefrom. Nothing contained in this Section, however, shall relieve
the IDB from the observance and performance of the covenants and
agreements on its part contained herein.
(b) Other than for willful or wanton acts, no recourse under
or upon any covenant or agreement of this Loan Agreement shall be had
against any past, present or future incorporator, officer or member of
the Board of Directors of the IDB, or any of its servants, agents or
employees, or of any successor corporation, either directly or through
the IDB, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Loan Agreement is solely a
corporate
-23-
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obligation, and that no personal liability whatever shall attach to, or
is or shall be incurred by, any incorporator, officer or member of the
Board of Directors of the IDB or any of its servants, agents or
employees, or any successor corporation, or any of them, under or by
reason of the covenants or agreements contained in this Loan Agreement.
Section 7.3 Execution Counterparts. This Loan Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument
Section 7.4 Binding Effect; Assignability. This Loan Agreement shall
inure to the benefit of, and shall be binding upon, the Issuer, the Company, the
IDB and their respective successors and assigns. This Loan Agreement is
assignable by the Company provided the Company remains primarily liable
hereunder and under the Note, but may not be assigned by the Issuer except to
the Trustee pursuant to the Indenture or as may otherwise be necessary to
enforce or secure payment of Debt Service on and Purchase Price of the Bonds.
Section 7.5 Amendments. So long as any of the Bonds are outstanding,
this Loan Agreement may be amended only in writing signed by the parties hereto
with the written consent of the Trustee and the Bank.
Section 7.6 Severability. In the event any provision of this Loan
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such provision shall be deemed severed herefrom and such holding
shall not invalidate or render unenforceable any other provision hereof.
Section 7.7 Notices. Unless otherwise provided herein, all notices,
certificates or other communications hereunder shall be sufficiently given and
shall be deemed given when delivered or mailed by first class mail, postage
prepaid, or overnight courier service, or sent by telegram, telex, telefax or
other instantaneous transmission device (with hard copy via first class mail or
overnight courier service), addressed as follows:
(a) If to the Issuer, at State Industrial Development
Authority, Alabama Center for Commerce, 401 Adams Avenue, Montgomery,
Alabama 36130, Attention: President, Telefax No. (334) 242-2414;
(b) If to the Trustee, at First Alabama Bank, Post Office Box
511 (zip 36101-0511), 8 Commerce Street (zip 36104), Montgomery,
Alabama, Attention: Bruce Rinehart, Telefax No. (334) 832-8560;
(c) If to the Company, (1) by mail or telegram, at c/o Capital
One Partners, 1111 Chester Avenue, Cleveland, Ohio 44114, Attention:
James M. Petras, Partner, and (ii) by Telefax, at (216) 781-0158; and
-24-
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(d) If to the IDB, at The Industrial Development Board of the
City of Montgomery, Post Office Box 79, Montgomery, Alabama 36101,
Attention: Chairman of the Board of Directors, Telefax No.
(334) 265-4745.
Any of the foregoing parties may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates or
other communications shall be sent.
Section 7.8 Governing Law. This Loan Agreement shall be deemed to
be a contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
Section 7.9 Term of Loan Agreement. Unless sooner terminated in
accordance with the provisions hereof, this Loan Agreement will terminate on the
date of payment in full of the Debt Service on the Bonds, whether at maturity or
upon redemption or otherwise, provided (a) certain expenses (including
Additional Payments then due) shall have been paid or provided for and (b) the
covenant of the Company set forth in Section 5.2 hereof shall survive such
termination.
[END OF ARTICLE VII]
-25-
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IN WITNESS WHEREOF, the Issuer, the Company and the IDS applicable,
caused this Loan Agreement to be executed in their respective names have caused
their respective seals to be hereunto affixed, and have caused this Loan
Agreement to be attested, all by their respective duly authorized officers, as
of the date first hereinabove stated.
STATE INDUSTRIAL DEVELOPMENT
AUTHORITY
(SEAL)
ATTEST: By: /s/
--------------------------------------
Its [Vice] President
/s/
- ---------------------------
Secretary
(SEAL) SIMCALA, INC.
ATTEST:
By: /s/
--------------------------------------
Name:
-------------------------------
/s/ Title:
- --------------------------- ------------------------------
Secretary
(SEAL) THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF
MONTGOMERY
ATTEST:
/s/ By: /s/
- --------------------------- --------------------------------------
Its [Assistant] Secretary Chairman of the Board of Directors
-26-
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ACKNOWLEDGMENT OF ISSUER
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Charles S. Snider, Jr., whose name as President of the State
Industrial Development Authority is signed to the foregoing Loan Agreement and
who is known to me and known to be such officer, acknowledged before me on this
day that, being informed of the contents of said Loan Agreement, he, as such
officer and with full authority, executed the same voluntarily for and as the
act of the Authority.
Given under my hand and official seal of office this 8th day of
February, 1995.
/s/
------------------------------------
Notary Public
My Commission Expires: 12-28/98
--------------
(SEAL)
-27-
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ACKNOWLEDGMENT OF COMPANY
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
I, the undersigned authority, a Notary Public in and for said County in
said State, hereby certify that James M. Petras, whose name as President of
SIMCALA, Inc., a Delaware corporation, is signed to the foregoing Loan Agreement
and who is known to me, acknowledged before me on this day that, being informed
of the contents of the Loan Agreement, he, as said officer and with full
authority, executed the same on behalf of said corporation on the day same bears
date.
Given under my hand and official seal of office this 9th day of
February, 1995.
/s/
------------------------------------
Notary Public
My Commission Expires: 11-30-96
(SEAL)
-28-
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ACKNOWLEDGMENT OF IDB
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that R. E. Thornton, Jr., whose signature as the Chairman of the
Board of Directors of The Industrial Development Board of the City of Montgomery
is signed to the foregoing Loan Agreement and who is known to me and known to be
such officer, acknowledged before me on this day that being informed of the
contents of said Loan Agreement, he, as such officer and with full authority,
executed the same voluntarily for and as the act of said Board.
Given under my hand and seal of office this 8th day of February, 1995.
/s/
------------------------------------
Notary Public
My Commission Expires: Oct. 8, 1995
THIS INSTRUMENT WAS PREPARED BY:
Roy S. Goldfinger, Esq.
Kaufman & Rothfeder, P.C.
2740 Zelda Road, 3rd Floor
Post Office Drawer 4540
Montgomery, Alabama 36103-4540
-29-
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EXHIBIT A
DESCRIPTION OF REALTY
PARCEL 1
Begin at the Southeast Comer of Section 5, T-16-N, R-20-E, Montgomery
County, Alabama; thence run along the South Line of said Section 5, S 87(degree)
05' 57' W, 1818.81 feet to a point, thence run N 01(degree) 53' 50" W, 1623.33
feet to an iron pin; thence run N 03(degree) 50' 08" E, 1038.55 feet to a
concrete monument lying on the North Line of the Southeast Quarter of said
Section; thence run N 87(degree) 34' 04" E, 1990.78 feet to a point at the
Northeast Corner of the Southeast Quarter of said Section 5; thence run along
the East Line of said Section, S 04(degree) 03' 41" W, 2657.77 feet to the point
of beginning.
Said described property lying and being situated in the Southeast
Quarter of Section 5, T-16-N, R-20-E, Montgomery County, Alabama, and contains
117.693 acres, more or less.
PARCEL 2
Begin at the Northeast Comer of the Southeast Quarter of Section 5,
T-16-N, R-20-E, Montgomery County, Alabama; thence run along the North Line of
the Southeast Quarter of Said Section, S 87(degree) 34' 04" W, 1990.78 feet to a
concrete monument;, thence continue, S 87(degree) 34' 04" W, 663.34 feet to a
concrete monument lying at the Northwest Comer of the Southeast Quarter of said
Section 5; thence run N 04(degree) 03' 41" E, 90.10 feet to a point lying on the
South right of way of CSX Railroad (100' ROW); thence run along said South right
of way, N 87(degree) 00' 00" E, 2657.34 feet to a point lying on the East Line
of said Section 5; thence run along said East Line, S 04(degree) 03' 41" W,
117.34 feet to the point of beginning.
Said described property lying and being situated in the Northeast Quarter of
Section 5, T-16-N, R-20-E, Montgomery County, Alabama, and contains 6.279 acres,
more or less.
PARCEL 3
Begin at a concrete monument at the Northwest Comer of the Southeast Quarter of
Section 5. T-16-N, R-20-E, Montgomery County, Alabama, thence run S 87(degree)
33' 07" W, 661.96 feet to an iron pin; thence run S 87(degree) 33' 21" W, 671.78
feet to an iron pin; thence run N 04(degree) 03' 41" E 76.74 feet to a point
lying on the South right of way of CSX Railroad; thence run along said South
right of way, N 87(degree) 00' 00" E, 1335.32 feet to a point, thence run S
04(degree) 03' 41" W, 90.10 feet to the point of beginning.
Said described parcel lying and being situated In the Northwest Quarter of
Section 5, T-16-N, R-20-E, Montgomery County, Alabama, and contains 2.487 acres,
more or less.
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EXHIBIT B
FORM OF NOTE
SIMCALA, Inc., a corporation duly organized and validly existing under
the laws of the State of Delaware and qualified to transact business under the
laws of the State of Alabama (the "Company"), and The Industrial Development
Board of the City of Montgomery, a public corporation organized under the laws
of the State of Alabama (the "IDB"), for value received, promise to pay (but in
the case of the IDB, solely from the sources hereinafter provided) to First
Alabama Bank, Montgomery, Alabama (the "Trustee") the principal sum of
SIX MILLION AND NO/100 DOLLARS ($6,000,000)
and to pay interest on the unpaid balance of such principal sum from and after
the date of execution and delivery hereof at the rate per annum from time to
time borne by the Bonds hereinafter defined until the payment of such principal
sum has been made or provided for.
This Note has been executed and delivered by the Company and the IDB to
the Trustee pursuant to, a certain Loan Agreement dated as of January 1, 1995
(the "Agreement") between the State Industrial Development Authority (the
"Issuer" and the Company and the IDB. Terms used but not defined herein shall
have the meanings given to them in the Agreement. Under the Agreement, the
Issuer has loaned the Company the principal proceeds received from the sale of
the Issuers $6,000,000 aggregate principal amount of Taxable Industrial Revenue
Bonds (SIMCALA, Inc. Project) Series 1995 (the "Bonds"') to assist in the
financing of the Project, and the Company has agreed to repay such loan by
making payments ("Loan Payments") at such times and in such amounts as shall be
sufficient to pay when due (whether at maturity or upon redemption or
acceleration) the principal of and interest on ("Debt Service") the Bonds and
the Purchase Price of Bonds due on any Tender Date. Pursuant to the Indenture,
the Issuer has assigned to the Trustee all its rights under the Agreement other
than the Reserved Rights.
All Loan Payments shall be payable in lawful money of the United States
of America and shall be made to the Trustee, for the account of the Issuer, and
applied by the Trustee to pay the Debt Service on or Purchase Price of the Bonds
as and when due or to reimburse the Bank for amounts drawn under the Letter of
Credit to pay such Debt Service or Purchase Price.
The obligation of the Company to make the Loan Payments shall be
absolute and unconditional and the Company shall make such payments without
abatement, diminution or deduction, regardless of any cause or circumstances
whatsoever, including without limitation any defense, set-off, recoupment or
counterclaim which the Company may have or assert against the Issuer, the Bank,
the Trustee, to IDS or any other person. The obligation of the IDS to make Loan
Payments under the Agreement and this Note is
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limited solely to the Basic Rent payable by the Company to the IDS under the
Lease Agreement and any other revenues and receipts derived from the leasing of
the Project under the Lease Agreement (excluding, however, any such revenues and
receipts payable to the IDS as part of its Unassigned Rights, as defined in the
Lease Agreement).
This Note shall be subject to prepayment prior to maturity at times and
in amounts corresponding to the redemption provisions of the Bonds. Any notice
or redemption of the Bonds shall be deemed to be a notice of prepayment of the
Note.
If an Event of Default occurs and is continuing under the terms of the
Agreement the principal of this Note and the interest accrued hereon may be
declared due and payable in the manner and with the effect provided in the
Agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the Company and the IDB has caused this
Note to be executed in its name by its duly authorized officer, as of this ____
day of February, 1995.
SIMCALA, INC.
(SEAL) By:
-------------------------------------------
President
ATTEST:
- ---------------------------
Assistant Secretary
THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF MONTGOMERY
(SEAL)
By:
-------------------------------------------
Chairman of the Board of Directors
ATTEST:
- ---------------------------
Its [Assistant] Secretary
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