LOAN AGREEMENT
between
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
LESLIE CONTROLS, INC.
relating to the
$4,765,000
Hillsborough County Industrial Development Authority
Industrial Development Revenue Refunding Bonds
(Leslie Controls, Inc. Project), Series 1994
__________________________________________________________
NOTE: CERTAIN RIGHTS OF THE HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY UNDER THIS LOAN AGREEMENT HAVE
BEEN ASSIGNED TO, AND ARE SUBJECT TO A SECURITY
INTEREST IN FAVOR OF, THE FIRST NATIONAL BANK OF
BOSTON, TRUSTEE FOR THE OWNERS OF THE BONDS UNDER A
TRUST INDENTURE OF EVEN DATE HEREWITH, AS AMENDED OR
SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING
SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE TRUSTEE
AT 150 ROYALL STREET, CANTON, MASSACHUSETTS.
__________________________________________________________
DATED AS OF July 1, 1994
TABLE OF CONTENTS
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION . . . . . . . . . . . . 2
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Rules of Construction. . . . . . . . . . . . . . . . 7
ARTICLE II REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1. Representations by the Issuer. . . . . . . . . . . . 8
Section 2.2. Representations, Warranties and Covenants by the
Company. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III CONSENT TO ASSIGNMENT. . . . . . . . . . . . . . . . 13
Section 3.1. Company Consent to Assignment of Agreement and
Execution of Indenture . . . . . . . . . . . . . . . 13
ARTICLE IV ISSUANCE OF THE BONDS . . . . . . . . . . . . . . . . . . . . 13
Section 4.1. Agreement to Issue the Bonds . . . . . . . . . . . . 13
Section 4.2. No Third Party Beneficiary . . . . . . . . . . . . . 13
ARTICLE V LOAN BY THE ISSUER TO THE COMPANY; REPAYMENT. . . . . . . . . 14
Section 5.1. Loan by the Issuer; Repayment. . . . . . . . . . . . 14
Section 5.2. No Set-Off . . . . . . . . . . . . . . . . . . . . . 14
Section 5.3. Prepayments. . . . . . . . . . . . . . . . . . . . . 14
Section 5.4. Credits Against the Note . . . . . . . . . . . . . . 15
Section 5.5. Letter of Credit and Reimbursement Agreement . . . . 15
ARTICLE VI OPERATION; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN . . . . . . . . . . . . 15
Section 6.1. Operation of the Project by the Company. . . . . . . 15
Section 6.2. Taxes and Utility Charges. . . . . . . . . . . . . . 15
Section 6.3. Insurance. . . . . . . . . . . . . . . . . . . . . . 16
Section 6.4. Eminent Domain . . . . . . . . . . . . . . . . . . . 16
Section 6.5. Application of Net Proceeds of Insurance and
Eminent Domain . . . . . . . . . . . . . . . . . . . 16
Section 6.6. Parties to Give Notice . . . . . . . . . . . . . . . 17
ARTICLE VII SPECIAL COVENANTS. . . . . . . . . . . . . . . . . . 18
Section 7.1. Access to the Project and Inspection . . . . . . . . 18
Section 7.2. Further Assurances and Corrective Instruments. . . . 18
Section 7.3. Tax and Arbitrage Covenants; Notice of Event of
Taxability . . . . . . . . . . . . . . . . . . . . . 18
Section 7.4. Recording and Filing; Other Instruments. . . . . . . 20
Section 7.5. Administrative Expenses. . . . . . . . . . . . . . . 20
Section 7.6. Indemnity Against Claims . . . . . . . . . . . . . . 20
Section 7.7. Release and Indemnification. . . . . . . . . . . . . 21
Section 7.8. Additional Information . . . . . . . . . . . . . . . 21
Section 7.9. Default Certificates . . . . . . . . . . . . . . . . 21
Section 7.10. Observe Laws . . . . . . . . . . . . . . . . . . . . 22
Section 7.11. Election . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.12. No Warranty of Condition of Suitability by the
Issuer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.13. Redemption of Prior Bonds. . . . . . . . . . . . . . 23
ARTICLE VIII ASSIGNMENT, LEASING AND SELLING. . . . . . . . . . . 23
Section 8.1. Assignment of this Loan Agreement or Lease or
Sale of the Project by the Company . . . . . . . . . 23
Section 8.2. Restrictions on Transfer of the Issuer's Rights. . . 24
Section 8.3. Assignment by the Issuer . . . . . . . . . . . . . . 24
Section 8.4. Merger of Issuer . . . . . . . . . . . . . . . . . . 24
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . 25
Section 9.1. Events of Default Defined. . . . . . . . . . . . . . 25
Section 9.2. Remedies on Default. . . . . . . . . . . . . . . . . 26
Section 9.3. Application of Amounts Realized in Enforcement of
Remedies . . . . . . . . . . . . . . . . . . . . . . 26
Section 9.4. No Remedy Exclusive. . . . . . . . . . . . . . . . . 27
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses. . . . 27
Section 9.6. Correlative Waivers. . . . . . . . . . . . . . . . . 27
ARTICLE X PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 10.1. Optional Prepayments . . . . . . . . . . . . . . . . 27
Section 10.2. Mandatory Prepayments. . . . . . . . . . . . . . . . 28
Section 10.3. Other Mandatory Prepayments. . . . . . . . . . . . . 28
ARTICLE XI REBATE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 29
Section 11.1. Creation of the Rebate Fund. . . . . . . . . . . . . 29
ARTICLE XII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 29
Section 12.1. References to the Bonds Ineffective After Bonds
Paid . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 12.2. No Implied Waiver. . . . . . . . . . . . . . . . . . 29
Section 12.3. Issuer Representative. . . . . . . . . . . . . . . . 29
Section 12.4. Company Representative . . . . . . . . . . . . . . . 30
Section 12.5. Notices. . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.6. If Payment or Performance Date Is Other Than a
Business Day . . . . . . . . . . . . . . . . . . . . 31
Section 12.7. Binding Effect . . . . . . . . . . . . . . . . . . . 31
Section 12.8. Severability . . . . . . . . . . . . . . . . . . . . 31
Section 12.9. Amendments, Changes and Modifications. . . . . . . . 31
Section 12.10. Execution in Counterparts. . . . . . . . . . . . . . 31
Section 12.11. Applicable Law . . . . . . . . . . . . . . . . . . . 31
Section 12.12. No Charge Against Issuer Credit. . . . . . . . . . . 31
Section 12.13. Issuer Not Liable. . . . . . . . . . . . . . . . . . 32
Section 12.14. Expenses . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.15. Amounts Remaining with the Trustee . . . . . . . . . 32
Execution by the Issuer. . . . . . . . . . . . . . . . . . . . . . . . . 33
Execution by the Company . . . . . . . . . . . . . . . . . . . . . . . . 33
Exhibit A Promissory Note
Exhibit B The Project
_______________________
LOAN AGREEMENT
_______________________
This LOAN AGREEMENT, dated as of July 1, 1994, between the
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Issuer"), a
public body corporate and politic and a public instrumentality created
pursuant to the laws of the State of Florida (the "State"), and LESLIE
CONTROLS, INC. (the "Company"), a corporation organized and existing under
the laws of the State of New Jersey.
W I T N E S S E T H:
WHEREAS, the Act (as hereinafter defined) authorizes the creation of
industrial development agencies to facilitate the financing of capital
projects comprising an industrial and manufacturing plant; and
WHEREAS, the Act further authorizes each agency to issue its bonds for
the purpose of carrying out any of its corporate purposes; and
WHEREAS, pursuant to and in accordance with the provisions of the Act,
the County Commissioners of Hillsborough County, Florida created the
Issuer; and
WHEREAS, the Issuer is authorized and empowered to enter into this
Loan Agreement by the provisions of the Act; and
WHEREAS, the Issuer has heretofore indicated its willingness to issue
industrial revenue bonds under the Act for the purpose of refunding in
whole the outstanding principal amount of the Issuer's Industrial
Development Revenue Bonds (Leslie Controls, Inc. Project), Series 1986 in
the original aggregate principal amount of $7,200,000 (the "Prior Bonds"),
the proceeds of which were used to finance, in whole or in part, the cost
of acquiring, constructing and installing a certain project in Hillsborough
County, Florida (the "Project") owned and operated by the Company; and
WHEREAS, to obtain funds for such purposes the Issuer will issue and
sell its Industrial Development Revenue Refunding Bonds (Leslie Controls,
Inc. Project), Series 1994 in the aggregate principal amount of $4,765,000
dated as of July 1, 1994 (the "Bonds"), under and pursuant to the Act, to
be secured by and contain such terms and provisions as are set forth in
that certain Trust Indenture (the "Indenture") dated as of July 1, 1994
between the Issuer and The First National Bank of Boston, Boston,
Massachusetts, as Trustee (the "Trustee"), and the proceeds from the sale
of the Bonds shall be deposited with the Trustee and disbursed in the
manner and for the purposes set forth herein and in the Indenture, all as
more fully provided herein and therein; and
WHEREAS, in undertaking the issuance of the Bonds the Issuer has
observed the criteria and requirements established by the Act.
NOW, THEREFORE, in consideration of the respective representations and
agreements contained herein, the parties hereto, recognizing that in the
performance of the agreements of the Issuer herein contained, any
obligation it may thereby incur for the payment of money shall not be
deemed to constitute a debt, liability or obligation of the Issuer or of
the State of Florida or any political subdivision thereof, except to the
extent that the Bonds hereinafter mentioned shall be a limited obligation
of the Issuer, payable solely from revenues provided therefor under the
provisions of this Loan Agreement, the Note and from the Credit Facility
Issuer under a Credit Facility (each as hereinafter defined) or derived
from the exercise of the rights of the Issuer thereunder, agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions.
In addition to words and terms elsewhere defined in this Loan
Agreement or in the Indenture, the following words and terms shall have the
following meanings:
"Act" shall mean all applicable provisions of the Constitution and
laws of the State of Florida, including without limitation the Florida
Industrial Development Financing Act, Parts II and III of Chapter 159,
Florida Statutes, as amended from time to time and the resolution of the
Board of County Commissioners of Hillsborough County, Florida adopted on
October 27, 1971 organizing the Issuer.
"Administrative Expenses" shall mean the amounts payable pursuant to
Section 7.5 hereof by the Company to or for the account of the Issuer to
provide for payment of reasonable costs and expenses incurred by the
Issuer.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this
definition, "control", when used with respect to a Person, means the power
to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Bond" or "Bonds" shall mean the Hillsborough County Industrial
Development Authority Industrial Development Revenue Refunding Bonds
(Leslie Controls, Inc. Project), Series 1994, authorized to be issued
pursuant to the Bond Resolution in accordance with the Indenture in the
aggregate principal amount of $4,765,000, including such Bonds issued in
replacement for mutilated, destroyed, lost or stolen Bonds pursuant to
Section 210 of the Indenture.
"Bond Documents" shall mean collectively the Indenture, the Bonds,
this Loan Agreement, the Note, the Letter of Credit Documents, the Tender
Agency Agreement and the Remarketing Agreement.
"Bond Resolution" shall mean the resolution adopted by the Issuer on
July 25, 1994 authorizing the execution and delivery of the Issuer
Documents and the issuance of the Bonds by the Issuer.
"Closing Date" means the date of the issuance and delivery of the
Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, including,
when appropriate, the statutory predecessor of the Code, and all applicable
regulations (whether proposed, temporary or final) under that Code and the
statutory predecessor of the Code, and any official rulings and judicial
determinations under the foregoing applicable to the Bonds.
"Company" shall mean Leslie Controls, Inc., a New Jersey corporation,
and its successors or assigns and any surviving, resulting or transferee
corporation or other entity.
"Company Representative" shall mean any one of the persons at the time
designated to act on behalf of the Company by written certificate furnished
to the Issuer and the Trustee containing the specimen signatures of such
persons and signed on behalf of the Company by the President or any duly
authorized officer of the Company.
"Consistent Basis" shall mean, in reference to the application of
Generally Accepted Accounting Principles, that the accounting principles
observed in the period referred to are comparable in all material respects
to those applied in the preceding period, except as to any changes
consented to by the Credit Facility Issuer.
"Counsel" shall mean an attorney or firm of attorneys acceptable to
the Trustee, and may, but need not, be counsel to the Issuer or the
Company.
"Credit Facility" shall mean the Letter of Credit or any Alternate
Credit Facility delivered to the Trustee pursuant to Article VI of the
Indenture.
"Credit Facility Issuer" shall mean the Bank with respect to the
Letter of Credit and if applicable the institution issuing any Alternate
Credit Facility.
"Determination of Taxability" shall be defined as and shall be deemed
to have occurred on the first to occur of the following:
(i) on the date when the Company files any statement,
supplemental statement or other tax schedule, return or document
(whether pursuant to Treasury Regulations Section 1.103-10(b)(2)(vi),
as the same may be amended or supplemented, or otherwise) which
discloses that an Event of Taxability shall have in fact occurred;
(ii) on the date when any Bondholder or former Bondholder
notifies the Company or the Trustee that it has received an approving
written opinion of Bond Counsel to the effect that an Event of
Taxability shall have occurred unless, within one hundred eighty (180)
days after receipt by the Company of such notification from the
Trustee, any Bondholder or any former Bondholder, the Company shall
obtain and deliver to the Trustee a favorable ruling or determination
letter issued to or on behalf of the Company by the Commissioner or
any District Director of Internal Revenue (or any other government
official exercising the same or a substantially similar function from
time to time) to the effect that, after taking into consideration such
facts as form the basis for the opinion that an Event of Taxability
has occurred, an Event of Taxability shall not have occurred;
(iii) on the date when the Company shall be advised in writing by
the Commissioner or any District Director of Internal Revenue (or any
other government official or agent exercising the same or a
substantially similar function from time to time) that, based upon
filings of the Company, or upon any review or audit of the Company, or
upon any other ground whatsoever, an Event of Taxability shall have
occurred;
(iv) on the date when the Company shall receive notice in writing
from any Bondholder or former Bondholder, or from the Trustee, that
the Internal Revenue Service (or any other government agency
exercising the same or a substantially similar function from time to
time) has assessed as includable in the gross income of any Bondholder
or former Bondholder the interest on such Bondholder's or former
Bondholder's Bond due to the occurrence of an Event of Taxability;
provided, however, no Determination of Taxability shall be deemed to have
occurred under subparagraph (iii) or (iv) hereof unless the Company has
been afforded the opportunity, at its expense, to contest any such
assessment or unfavorable ruling and, further, no Determination of
Taxability shall be deemed to have occurred until such contest, if made,
has been finally determined.
"Eminent Domain" shall mean the taking of title to, or the temporary
use of, the Project or any part thereof pursuant to eminent domain or
condemnation proceedings, or any voluntary conveyance of any part of the
Project during the pendency of, or as a result of a threat of, such
proceedings.
"Event of Default" or "Default" shall have the meaning set forth in
Section 9.1 hereof.
"Event of Taxability" shall mean a change in law or fact or the
interpretation thereof, or the occurrence or existence of any fact, event
or circumstance (including, without limitation, the issuance of obligations
or the incurring of capital expenditures in excess of those permitted by
Section 103(b)(6)(D) of the 1954 Code, or the taking of any action by the
Company, or the failure to take any action by the Company, or the making by
the Company of misrepresentation herein or in any certificate required to
be given in connection with the issuance, sale or delivery of the Bonds)
which has the effect of causing the interest paid or payable on any Bond to
become includable in the gross income of any Bondholder or former
Bondholder of any Bond other than a Bondholder or former Bondholder who is
or was a "substantial user" or "related person" as such terms are used in
Section 147(a) of the Code.
"Financing Statements" means any and all financing statements
(including continuation statements) filed for record from time to time to
perfect the security interests created or assigned hereby or by the
Indenture.
"Generally Accepted Accounting Principles" shall mean those principles
of accounting set forth in pronouncements of the Financial Accounting
Standards Board and its predecessors or pronouncements of the American
Institute of Certified Public Accountants or those principles of accounting
which have other substantial authoritative support and are applicable in
the circumstances as of the date of application, as such principles are
from time to time supplemented and amended.
"Indenture" shall mean the Trust Indenture of even date herewith by
and between the Issuer and the Trustee, together with any amendments or
supplements thereof permitted thereby.
"Issuer" shall mean Hillsborough County Industrial Development
Authority and its successors and assigns.
"Issuer Documents" shall mean collectively the Indenture and this Loan
Agreement.
"Issuer Representative" shall mean any one of the persons at the time
designated to act on behalf of the Issuer by written certificate furnished
to the Company and the Trustee containing the specimen signatures of such
persons and signed on behalf of the Issuer by the Chairman.
"Letter of Credit Documents" shall mean the Letter of Credit, the
Reimbursement Agreement and the Pledge Agreement.
"Loan Agreement" shall mean this Loan Agreement and any amendments and
supplements thereto permitted by the Indenture.
"Net Proceeds" means the proceeds received by the Issuer from the sale
of the Bonds including all earnings and profits thereon but excluding any
proceeds deposited in a reasonably required reserve or replacement fund.
When used with respect to any insurance proceeds or award resulting from,
or other amount received in connection with, Eminent Domain, the term "Net
Proceeds" shall mean the gross proceeds from such proceeds, award or other
amount, less all expenses (including attorneys' fees) incurred in the
realization thereof.
"1954 Code" shall mean the Internal Revenue Code of 1954, as amended
through August 15, 1986, and all applicable regulations (whether proposed,
temporary or final) thereunder and any official rulings and determinations
under the foregoing applicable to the Bonds or the Prior Bonds.
"Note" shall mean the promissory note given by the Company pursuant
to Section 5.4 of this Loan Agreement, substantially in the form of Exhibit
"A" attached hereto.
"Overdue Rate" shall mean the Prime Rate plus two percent, or the
maximum contract rate permitted by law, whichever is lower.
"Payment of the Bonds" shall mean payment of (i) the principal of and
interest on the Bonds in accordance with their terms whether through
payment at maturity, upon acceleration or prepayment, (ii) all amounts due
as Administrative Expenses or otherwise, and (iii) any and all other
liabilities and obligations arising under the Indenture and this Loan
Agreement, in any case, in such a manner that all such amounts due and
owing with respect to the Bonds shall have been paid.
"Permitted Encumbrances" shall mean, as of any particular time, liens
for ad valorem and special assessments, if any, which are not then
delinquent or which are being contested in good faith.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture, joint-stock
company, or a government or agency or political subdivision thereof.
"Prime Rate" shall mean that rate of interest per annum announced by
First Union National Bank of North Carolina at its principal office in
Charlotte, North Carolina, from time to time to be its prime rate.
"Project" shall mean the land or buildings and other improvements
thereon, and all machinery, equipment, apparatus, office furnishings and
other property financed in whole or in part with the proceeds of the Prior
Bonds, including any substitutions therefor and any repairs, renewals and
replacements thereof from time to time, including the real property
described in Exhibit "B" attached hereto and by this reference made a part
hereof.
"Rebate Fund" means the Fund of that name created pursuant to Section
504 of the Indenture and described in Section 11.1 hereof.
"Regulations" shall mean the applicable Treasury Regulations under
Sections 103 and 141 through 150 of the Code whether at the time proposed,
temporary, final or otherwise.
"Reimbursement Agreement" shall mean the Letter of Credit,
Reimbursement and Guaranty Agreement of even date herewith by and among the
Company, Watts Industries, Inc. as guarantor, and the Bank, and any
supplements or amendments thereto.
"Related Person" means "related person" within the meaning of Section
103(b)(6)(C) of the 1954 Code by reference to Sections 267, 707(b) and
1563(a) of the 1954 Code, except that fifty percent is substituted for
eighty percent in Section 1563(a).
"Security interest" or "security interests" shall refer to the
security interests created in the Indenture and shall have the meaning set
forth in the U.C.C.
"State" shall mean the State of Florida.
"Tax Regulatory Certificate" shall mean the certificate of the
Company, dated the date of delivery of the Bonds, setting forth certain
facts, estimates and circumstances with respect to the Bonds.
"Trustee" shall mean the banking institution at the time serving as
Trustee under the Indenture.
Section 1.2. Rules of Construction.
(a) Words of masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders, and words of
the neuter gender shall be deemed and construed to include correlative
words of the masculine and feminine genders.
(b) The table of contents, captions and headings in this Loan
Agreement are for convenience only and in no way define, limit or describe
the scope or intent of any provisions or Sections of this Loan Agreement.
(c) All references herein to particular Articles or Sections are
references to Articles or Sections of this Loan Agreement unless some other
reference is established.
(d) All accounting terms not specifically defined herein shall be
construed in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis.
(e) All references herein to the Company shall be deemed to refer to
each of the Persons if more than one are described by such term and any
agreement, obligation, duty or liability of the Company shall be a joint
and several agreement, obligation, duty or liability of each of the Persons
so described by such term.
(f) Any terms not defined herein but defined in any of the other Bond
Documents shall have the same meaning herein.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the Issuer.
The Issuer makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Organization and Authority. The Issuer is a public body
corporate and politic and a public instrumentality created pursuant to the
laws of the State of Florida. The Issuer has all requisite power and
authority under the Act to (i) adopt the Bond Resolution, (ii) issue the
Bonds, (iii) use the proceeds thereof to refund the Prior Bonds, and (iv)
enter into, and perform its obligations under the Issuer Documents.
(b) Pending Litigation. There are no actions, suits, proceedings,
inquiries or investigations pending, or to the knowledge of the Issuer
threatened, against or affecting the Issuer in any court or before any
governmental authority or arbitration board or tribunal, which involve the
possibility of materially and adversely affecting the transactions
contemplated by the Issuer Documents or which, in any way, would adversely
affect the validity or enforceability of the Bonds, the Issuer Documents or
any agreement or instrument to which the Issuer is a party and which is
used or contemplated for use in the consummation of the transactions
contemplated hereby or thereby or the ability of the Issuer to perform its
respective obligations hereunder and thereunder.
(c) Agreements Are Legal and Authorized. The adoption of the Bond
Resolution, the issuance and sale of the Bonds and the execution and
delivery by the Issuer of the Issuer Documents and the compliance by the
Issuer with all of the provisions of each thereof and of the Bonds (i) are
within the purposes, powers and authority of the Issuer, (ii) have been
done in full compliance with the provisions of the Act, are legal and will
not conflict with or constitute on the part of the Issuer a violation of or
a breach of or default under, or result in the creation of any lien, charge
or encumbrance upon any property of the Issuer (other than as contemplated
by this Loan Agreement and the Indenture) under the provisions of, any
charter instrument, by-law, indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which the Issuer is a party
or by which the Issuer is bound, or any license, judgment, decree, law,
statute, order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer or any of its activities or
properties, and (iii) have been duly authorized by all necessary corporate
action on the part of the Issuer.
(d) Governmental Consents. Neither the nature of the Issuer nor any
of its activities or properties, nor any relationship between the Issuer
and any other person, nor any circumstance in connection with the offer,
issue, sale or delivery of any of the Bonds is such as to require the
consent, approval or authorization of, or the filing, registration or
qualification with, any governmental authority on the part of the Issuer in
connection with the execution, delivery and performance of the Issuer
Documents or the offer, issue, sale or delivery of the Bonds, other than
those already obtained, which include (i) the approval of the Board of
County Commissioners, (ii) the compliance with the information reporting
requirements contained in Section 149(e) of the Code, (iii) the public
approval of the issuance of the Bonds contained in Section 147(f) of the
Code, and (iv) the filing of Financing Statements perfecting the security
interests created under the Indenture; provided, however, no representation
is made herein as to compliance with the securities or "blue sky" laws of
any jurisdiction.
(e) No Defaults. No event has occurred and no condition exists with
respect to the Issuer which would constitute an Event of Default as defined
in this Loan Agreement or the Indenture or which, with the lapse of time or
with the giving of notice or both, would become an Event of Default under
this Loan Agreement or the Indenture. The Issuer is not in default under
the Act or under any charter instrument or by-law.
(f) No Prior Pledge. Neither this Loan Agreement nor any of the
revenues pledged under the Indenture have been pledged or hypothecated in
any manner or for any purpose other than as provided in the Indenture as
security for the payment of the Bonds.
(g) Nature and Location of Project. The refinancing of the costs of
the Project is in furtherance of the public purpose intended to be served
by the Act and is specifically authorized by the Act. The Project is
located wholly within the geographic limits of the Issuer.
(h) Public Hearing and Approval. A public hearing was duly held by
the Hillsborough County Industrial Development Authority on June 15, 1994,
upon reasonable public notice, at which hearing members of the public were
afforded reasonable opportunity to be heard on all matters pertaining to
the location and nature of the Project and the refinancing thereof and to
the issuance of the Bonds. On July 13, 1994, after the above mentioned
public hearing, the issuance of the Bonds was approved by the Hillsborough
County Board of County Commissioners, which is the applicable elected
representative of the Issuer.
(i) Due Authorization. By the Bond Resolution the Issuer has
authorized the issuance and sale of the Bonds to provide funds for
refunding, by payment and redemption, the Prior Bonds, and authorized and
approved the Issuer's execution, delivery and performance of the Issuer
Documents, the endorsement of the Note and the other instruments
contemplated hereby to be executed and delivered by the Issuer, which Bond
Resolution has not been amended, modified or rescinded and continues to be
in full force and effect.
(j) Limited Obligations. Notwithstanding anything herein contained
to the contrary, any obligation the Issuer may hereby incur for the payment
of money shall not be deemed to constitute a debt, liability or obligation
of the Issuer, Hillsborough County or of the State of Florida or any
political subdivision thereof, except to the extent that the Bonds shall be
a limited obligation of the Issuer payable solely from (i) the revenues
hereunder and under the Note, (ii) revenues derived from the sale of the
Bonds, and (iii) amounts on deposit from time to time in the Bond Fund,
subject to the provisions of this Loan Agreement and the Indenture
permitting the application thereof for the purposes and on the terms and
conditions set forth herein and therein.
(k) Issuance of Bonds. To accomplish the foregoing, the Issuer
proposes to issue $4,765,000 in aggregate principal amount of its Bonds
immediately following the execution and delivery of this Loan Agreement.
The date, denominations, interest rate, maturity date, redemption
provisions and other pertinent provisions with respect to the Bonds are set
forth in the Indenture (particularly Articles II and III thereof).
(l) Validity of Issuer Documents. When duly executed and delivered
on behalf of the Issuer, and assuming the due authorization, execution and
delivery by the Company of this Loan Agreement, and the due authorization,
execution and delivery by the Trustee of the Indenture, each of the Issuer
Documents shall constitute a valid and binding obligation of the Issuer
enforceable in accordance with its terms.
(m) Representations and Other Written Statements. Neither the
representations of the Issuer contained in this Loan Agreement or the
Indenture nor any written statement relating to the Issuer furnished by the
Issuer in connection with the transactions contemplated hereby, contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not
misleading.
Section 2.2. Representations, Warranties and Covenants by the
Company.
The Company makes the following representations as the basis for the
undertakings on its part herein contained:
(a) Corporate Organization and Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New Jersey and is qualified to do business and is in good standing
under the laws of the State.
(b) Pending Litigation. There are no proceedings pending, or to the
knowledge of the Company threatened against or affecting the Company in any
court or before any governmental authority or arbitration board or tribunal
which are likely to have a material adverse effect on the ability of the
Company to perform its obligations under this Loan Agreement and the Bond
Documents to which it is a party.
(c) Agreements Are Legal and Authorized. The execution and delivery
by the Company of this Loan Agreement, the Note and the Bond Documents to
which it is a party and the compliance by the Company with all of the
provisions hereof (and thereof) (i) are within the corporate power of the
Company, (ii) after giving effect to the redemption of the Prior Bonds will
not conflict with or result in any breach of any of the provisions of, or
constitute a default under any agreement, charter document, by-law or other
instrument to which the Company is a party or by which it may be bound, and
(iii) have been duly authorized by all necessary corporate action on the
part of the Company.
(d) No Defaults. No event has occurred and no condition exists with
respect to the Company that would constitute an Event of Default under this
Loan Agreement, the Note, the Bond Documents to which it is a party or the
Indenture or which, with the lapse of time or with the giving of notice or
both, would become an Event of Default under this Loan Agreement, the Note,
the Indenture or the Bond Documents to which it is a party.
(e) Nature and Location of Project. The Project has been completed
in accordance with the Project Summary (described in Exhibit "B" attached
hereto and made a part hereof), constitutes a "project" within the meaning
of the Act and is located wholly within the geographic limits of the
Issuer.
(f) Ownership and Operation of Project. The Company presently
intends to operate the Project as a manufacturing facility from the date
hereof to the expiration or sooner termination of this Agreement as
provided herein, and as a "project" within the meaning of the Act.
(g) Disclosure Documents. Except as reflected or referenced in the
Private Placement Memorandum dated August 4, 1994 relating to the Bonds,
including the documents incorporated therein by reference (the "Private
Placement Memorandum"), there have been no changes in the assets or
liabilities or financial condition of the Company, other than changes in
the ordinary course of business, which in the aggregate are materially
adverse with respect to the Company's ability to perform its obligations
under this Loan Agreement or the Bond Documents to which it is a party.
There were no material liabilities, contingent or otherwise, of the Company
which were not reflected or referenced in the Private Placement Memorandum,
and the Company has not entered into any commitments or contracts since the
date of the Private Placement Memorandum which are not reflected or
referenced in the Private Placement Memorandum, other than in the ordinary
and normal course of its business, which might, in light of any fact or
condition presently known to the Company, have a materially adverse effect
upon the financial condition, operations or business of the Company or its
ability to perform its obligations hereunder or thereunder.
(h) Issuance of Private Activity Bonds. The Company has not caused
or will not cause the issuance of "private activity" bonds (as defined in
the Code) or of "industrial development bonds" (as defined in the 1954
Code) on its behalf in any jurisdiction of the United States during the
30-day period commencing 15 days prior to the issuance of the Bonds.
(i) Use of Proceeds of Bonds. The Company shall not permit the
proceeds of the Bonds to be used in any manner, nor shall it make any
expenditures with respect to the Project or perform or permit any act,
which would cause the Bonds to fail to meet the requirements of Section
147(b) of the Code.
(j) No Further Approval. No authorization, approval, consent, permit
or license of any regulatory body or authority, not already obtained, is
required on the part of the Company for the valid and lawful execution and
delivery of this Loan Agreement and the Note.
(k) Other Events. To the best knowledge of the Company, no event has
occurred which, with the lapse of time or the giving of notice or both,
would give any creditor of the Company the right to accelerate the maturity
of any of such party's outstanding indebtedness for money borrowed.
(l) Certificates and Documents. The certificates and all other
documents delivered and to be delivered by the Company in connection with
the transactions contemplated by this Loan Agreement and the Note and the
other Bond Documents to which it is a party as of their respective dates,
taken as a whole, do not and will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements herein and therein, in the light of the circumstances under
which they are or will be made, not misleading. The certificates and all
other documents delivered and to be delivered by the Company or its
representatives in connection with the transactions contemplated by this
Loan Agreement and the Note and the Bond Documents to which it is a party
are or will be on the dates on which they are or will be delivered true and
complete in all material respects.
(m) Use of Proceeds. All of the proceeds of the sale of the Bonds
will be applied to redeem the principal of the Prior Bonds on the
redemption date thereof. None of the proceeds of the sale of the Bonds
will be applied to pay issuance costs of the Bonds or to pay costs of the
refunding.
(n) Matters Relating to Tax Exemption. The Company will not take or
omit to take any action which would impair the exclusion of the interest on
the Bonds from the gross income of the recipients thereof for federal
income tax purposes, and will comply with all of its covenants and
agreements contained in the Tax Regulatory Certificate.
(o) Certain Arbitrage Matters. After the expiration of any
applicable temporary period under Section 148(d)(3) of the Code, at no time
during any bond year will the aggregate amount of gross proceeds of the
Bonds invested in higher yielding investments (within the meaning of
Section 148(b) of the Code) exceed one hundred fifty percent (150%) of the
debt service on the Bonds for such bond year and the aggregate amount of
gross proceeds of the Bonds invested in higher yielding investments, if
any, will be promptly and appropriately reduced as the amount of
outstanding Bonds are reduced, provided however that the foregoing shall
not require the sale or disposition of any investments in higher yielding
investments if such sale or disposition would result in a loss which
exceeds the amount which would be paid to the United States pursuant to
Section 504 of the Indenture (but for such sale or disposition) at the time
of such sale or disposition if a payment under Section 504 of the Indenture
were due at such time. At no time will any funds constituting gross
proceeds of the Bonds be used in a manner as to constitute failure of
compliance with Section 148 of the Code. The terms "bond year", "gross
proceeds", "higher yielding investments", "yield", and "debt service" have
the meanings assigned to them for purposes of Section 148 of the Code.
(p) Tax Regulatory Certificate. The Company's Tax Regulatory
Certificate executed and delivered by the Company concurrently with the
issuance and delivery of the Bonds is true, accurate and complete in all
material respects as of the date on which executed and delivered.
ARTICLE III
CONSENT TO ASSIGNMENT
Section 3.1. Company Consent to Assignment of Agreement and
Execution of Indenture.
The Company understands that the Issuer, as security for the payment
of the principal of, and the interest on, the Bonds, will assign and pledge
to, and create a security interest in favor of, the Trustee pursuant to the
Indenture in certain of its rights, title and interest in and to this Loan
Agreement including all Pledged Revenues, reserving, however, its rights
(a) pursuant to this Loan Agreement providing that notices, approvals,
consents, requests and other communications be given to the Issuer, (b) to
reimbursement and payment of costs and expenses under this Loan Agreement,
and (c) to indemnification and to exemption from liability, both individual
and corporate, as provided under this Loan Agreement, and the Company
hereby agrees and consents to such assignment and pledge. The Company
acknowledges that it has received a copy of the Indenture and consents to
the execution of the same by the Issuer.
ARTICLE IV
ISSUANCE OF THE BONDS
Section 4.1. Agreement to Issue the Bonds.
To provide funds for redemption of the Prior Bonds, the Issuer agrees
that it will authorize, sell, issue and deliver the Bonds in the aggregate
principal amount of $4,765,000 in the manner set forth in the Indenture and
cause the proceeds of the Bonds to be applied as provided in the Indenture.
Section 4.2. No Third Party Beneficiary.
It is specifically agreed between the parties executing this Loan
Agreement that it is not intended by any of the provisions of any part of
this Loan Agreement to create in the public or any member thereof, other
than as may be expressly provided herein or as contemplated in the
Indenture, a third party beneficiary hereunder, or to authorize anyone not
a party to this Loan Agreement to maintain a suit for personal injuries or
property damage pursuant to the terms or provisions of this Loan Agreement.
The duties, obligations, and responsibilities of the parties to this Loan
Agreement with respect to third parties shall remain as imposed by law.
ARTICLE V
LOAN BY THE ISSUER TO THE COMPANY; REPAYMENT
Section 5.1. Loan by the Issuer; Repayment.
(a) Upon the terms and conditions of this Loan Agreement, the Issuer
shall lend to the Company the proceeds of the sale of the Bonds. The loan
shall be evidenced by and repayable as set forth in the Note.
(b) As consideration for the issuance of the Bonds and the making of
the loan to the Company by the Issuer, the Company will execute and deliver
this Loan Agreement and the Note, in the form attached as Exhibit "A"
hereto, and the Issuer will endorse the Note without recourse to the order
of, and pledge the Note and assign this Loan Agreement and the Note to, the
Trustee, as the assignee of the Issuer under the Indenture,
contemporaneously with the issuance of the Bonds. The Company shall repay
the loan in accordance with the provisions of the Note and of this Loan
Agreement.
Section 5.2. No Set-Off.
The obligation of the Company to make the payments required by the
Note shall be absolute and unconditional. The Company will pay without
abatement, diminution or deduction (whether for taxes or otherwise) all
such amounts regardless of any cause or circumstance whatsoever including,
without limitation, any defense, set-off, recoupment or counterclaim that
the Company may have or assert against the Issuer, the Trustee, any
Bondholder or any other person.
Section 5.3. Prepayments.
The Company may prepay all or any part of the amounts the Note
obligates it to pay as provided in Section 701 of the Indenture with
respect to prepayment of the Bonds. Except as provided in this Section 5.3
and in Sections 10.1, 10.2 and 10.3 hereof, the Company shall not be
entitled to prepay the Note or cause the Bonds to be prepaid. The Company
shall prepay all of the amounts it is required to prepay as provided in
Sections 10.2 and 10.3 hereof.
Section 5.4. Credits Against the Note.
To the extent that principal of or interest on the Bonds shall be
paid, there shall be credited against the unpaid principal of or interest
on the Note, as the case may be, an amount equal to the principal of or
interest on the Bonds so paid. If the principal of and interest on and
other amounts payable under the Bonds shall have been paid sufficiently
that Payment of the Bonds shall have occurred, then the Note, ipso facto,
shall be deemed to have been paid in full, the Company's obligations
thereon shall be discharged (with the exception of the obligation of the
Company to make certain payments which may subsequently arise as a result
of a Determination of Taxability which shall survive notwithstanding
Payment of the Bonds), and the Note shall be cancelled and surrendered to
the Company.
Section 5.5. Letter of Credit and Reimbursement Agreement.
As a further condition to the Issuer's making the loan hereunder, the
Company shall:
(a) cause the Letter of Credit to be issued and delivered to the
Trustee as security for the Bonds. Until the Conversion Date, the Company
shall cause a Credit Facility meeting the requirements of Section 603 of
the Indenture to be maintained with the Trustee; and
(b) enter into the Reimbursement Agreement with the Bank in form and
substance satisfactory to the Bank and execute and deliver the other Letter
of Credit Documents required by the Bank.
ARTICLE VI
OPERATION; TAXES AND UTILITY
CHARGES; INSURANCE AND EMINENT DOMAIN
Section 6.1. Operation of the Project by the Company.
(a) The Company shall pay or cause to be paid all costs and expenses
of operation and maintenance of the Project.
(b) The Company may, at its own expense, make from time to time any
additions, modifications or improvements to the Project that it may deem
desirable for its business purposes.
Section 6.2. Taxes and Utility Charges.
(a) The Company shall pay as the same respectively become due, (1)
all taxes, assessments, levies, claims and charges of any kind whatsoever
that may at any time be lawfully assessed or levied against or with respect
to the Project (including, without limiting the generality of the
foregoing, any tax upon or with respect to the income or profits of the
Issuer from the Project and that, if not paid, would become a charge on the
payments to be made under this Loan Agreement or the Note prior to or on a
parity with the charge thereon created by the Indenture and including ad
valorem, sales and excise taxes, assessments and charges upon the Company's
interest in the Project), (2) all utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Project and (3)
all assessments and charges lawfully made by any governmental body for
public improvements that may be secured by a lien on any portion of the
Project.
(b) The Company may, at its expense, contest in good faith any such
levy, tax, assessment, claim or other charge. The Issuer and the Trustee,
at the expense of the Company, will cooperate fully in any such permitted
contest.
(c) The Company shall furnish the Issuer and the Trustee, upon
request, with proof of payment of any taxes, governmental charges, utility
charges, insurance premiums or other charges required to be paid by the
Company under this Loan Agreement.
Section 6.3. Insurance.
Until Payment of the Bonds shall be made, the Company will keep the
Project properly and continuously insured against such risks as are
customarily insured against by businesses of like size and type engaged in
the same or similar manufacturing operations (other than business
interruption insurance).
Section 6.4. Eminent Domain.
Unless the Company shall have prepaid the Note pursuant to the
provisions of Article X hereof, in the event that title to, or the
temporary use of, the Project, or any part thereof shall be taken by
Eminent Domain, the Company shall be obligated to continue to make the
payments required to be made pursuant to the Note and the Net Proceeds
received as a result of such Eminent Domain shall be applied as provided in
Section 6.5(b) hereof.
Section 6.5. Application of Net Proceeds of Insurance and Eminent
Domain.
(a) The Net Proceeds of the insurance carried with respect to the
Project shall be applied by the Company toward extinguishment of the defect
or claim or satisfaction of the liability with respect to which such
insurance proceeds may be paid.
(b) The Net Proceeds of the insurance carried with respect to the
Project (excluding the Net Proceeds of any business interruption insurance,
which shall be paid to the Company), and the Net Proceeds resulting from
Eminent Domain, except as hereinafter provided, shall be paid to the
Trustee and applied as follows:
(1) If the amount of the Net Proceeds does not exceed $500,000,
the Net Proceeds shall be paid to the Company and shall be applied to
the repair, replacement, renewal or improvement of the Project or at
the Company's election paid to the Trustee and applied as provided in
(2)(B) below.
(2) If the amount of the Net Proceeds exceeds $500,000, the Net
Proceeds shall be paid to and held by the Trustee as a special trust
fund and invested in accordance with Section 602 of the Indenture and
the provisions of Article XI hereof pending receipt of written
instructions from the Company. At the option of the Company, to be
exercised within the period of ninety (90) days from the receipt by
the Trustee of such Net Proceeds, the Company shall advise the Trustee
that (A) the Company will use the Net Proceeds for the repair,
replacement, renewal or improvement of the Project (such funds to be
delivered by the Trustee to the Company), or (B) the Net Proceeds
shall be applied to the prepayment of the Bonds as provided in
Article X hereof. If the Company does not advise the Trustee within
said period of ninety (90) days that it elects to proceed under clause
(A) to use such Net Proceeds for the repair, replacement, renewal or
improvement of the Project, such Net Proceeds shall be applied to the
repayment of the Bonds pursuant to Article X hereof. Any prepayment
pursuant to the preceding sentence shall be effected on the next
Interest Payment Date not less than thirty (30) days after the
expiration of said period of ninety (90) days without an election by
the Company.
Notwithstanding the foregoing, so long as a Credit Facility is in effect,
in the event of any inconsistency between the terms contained in this
Agreement and those contained in the Reimbursement Agreement, the
provisions of the Reimbursement Agreement should be deemed to control in
accordance with its terms.
(c) The Company agrees that if it shall elect to use the moneys paid
to the Trustee pursuant to subsection (b)(2) of this Section 6.5 for the
repair, replacement, renewal or improvement of the Project, it will restore
the Project, or cause the same to be done, to a condition substantially
equivalent to its condition prior to the occurrence of the event to which
the Net Proceeds were attributable. To the extent that the Net Proceeds
are not sufficient to restore or replace the Project, the Company shall use
its own funds to restore or replace the Project. Any balance remaining
after any such application of such Net Proceeds shall be paid to the
Company. The Company shall be entitled to the Net Proceeds of any
insurance or resulting from Eminent Domain relating to property of the
Company not included in the Project and not providing security for the Note
or this Loan Agreement.
Section 6.6. Parties to Give Notice.
In case of any material damage to or destruction of all or any part of
the Project, the Company shall give prompt notice thereof to the Issuer,
the Credit Facility Issuer and the Trustee. In case of a taking or
proposed taking of all or any part of the Project or any right therein by
Eminent Domain, the Company shall give prompt notice thereof to the Issuer,
the Credit Facility Issuer and the Trustee. Each such notice shall
describe generally the nature and extent of such damage, destruction,
taking loss, proceeding or negotiations.
ARTICLE VII
SPECIAL COVENANTS
Section 7.1. Access to the Project and Inspection.
The Trustee and the Issuer shall have the right, at all reasonable
times upon the furnishing of reasonable notice to the Company under the
circumstances, to enter upon the Project Site and to examine and inspect
the Project.
Section 7.2. Further Assurances and Corrective Instruments.
Subject to the provisions of the Indenture, the Issuer and the Company
agree that they will, from time to time, execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, such supplements and
amendments hereto and such further instruments as may reasonably be
required for correcting any inadequate or incorrect description of the
Project, and for carrying out the intention or facilitating the performance
of this Loan Agreement.
Section 7.3. Tax and Arbitrage Covenants; Notice of Event of
Taxability.
(a) Notwithstanding any other provision hereof, the Company covenants
and agrees that it shall at all times do and perform all acts and things
necessary or desirable and within its reasonable control in order to assure
that interest paid on the Bonds shall, for the purpose of federal income
taxation, not be included in gross income of the recipients thereof, except
in the event that such recipient is a "substantial user" or "related
person" within the meaning of Section 103(b) of the 1954 Code or Section
147(a) of the Code.
(b) Neither the Company nor the Issuer shall take any action or fail
to take any action, and the Company covenants that it will not approve the
Trustee's taking any action or failing to take any action or making any
investment or use of the proceeds of the Bonds, if such action, use or
failure would adversely affect the tax-exempt status of the interest on the
Bonds under Section 103 of the Code or cause any of the Bonds to be an
"arbitrage bond" within the meaning of Section 148 of the Code and the
Treasury Regulations as the same may be applicable to the Bonds at the time
of such action, investment or use.
(c) The Company shall give prompt written notice to the Issuer and
the Trustee of the filing by the Company of any statement, tax schedule,
return or document with the Internal Revenue Service which discloses that
an Event of Taxability shall have occurred and its receipt of any written
advice from the Internal Revenue Service that an Event of Taxability shall
have occurred.
(d) The Company acknowledges that it has examined, executed and
delivered the Tax Regulatory Certificate and its terms relating to
compliance with the Code and shall comply with the covenants, instructions
and guidelines contained in the Tax Regulatory Certificate. The Company's
obligation to make any payments of Rebate Amounts (as defined in the Tax
Regulatory Certificate) required by the Tax Regulatory Certificate and to
prepare and furnish to the Issuer and the Trustee the statements and forms
described therein shall survive payment in full of the Bonds
notwithstanding any provision of this Loan Agreement to the contrary.
(e) The Company and the Issuer will furnish accurate information
necessary to enable Bond Counsel to make any certifications which might be
required under the Regulations.
(f) Whenever the Issuer shall be required to file, deliver or
execute, or produce any reports, notices or other documents under the Code
or the Regulations while the Bonds are outstanding, the Company shall
furnish or cause the proper person to furnish in due time to the Issuer,
through the attorney for the Issuer, the completed form of such report,
notice or other required document together with (a) a certification by the
Company or other proper person required to provide information that such
document is accurate, and (b) if requested by the Issuer or if otherwise
required herein or in the Indenture, an opinion of Bond Counsel addressed
to the Issuer that the report or other document is not in violation of any
provision of law or of the Issuer Documents or other documents constituting
a part of the transcript of proceedings relating to the issuance of the
Bonds and that such report, notice or other required document meets the
legal requirements for such filing, delivery or execution. In the event of
the failure or refusal of the Company or other proper person to comply with
this provision, the Company agrees to pay the statement for attorney's fees
and administrative time presented by the Issuer for filing, delivering or
executing such report or documents, such statement to be paid within thirty
(30) days after written notice to the Company by the Issuer.
In order to insure that interest on the Bonds is not and will not
become subject to federal income taxes as a result of failure of the Bonds
to satisfy the requirement of Section 149(e) of the Code, the Company
covenants with the Issuer and the Trustee that it will, on or before the
date of issuance of the Bonds supply to the Issuer and the Trustee all
information required under Internal Revenue Service Form 8038, Information
Return for Private Activity Bond Issues (Form 8038), including without
limitation the following:
(a) the date of issue, the amount of lendable proceeds of the issue,
and the stated interest rate, term and face amount of each obligation which
is part of the issue;
(b) the name of the applicable elected representative who approved
the issue, or a description of the voter referendum by which the issue was
approved; and
(c) a description of any property to be financed from the proceeds of
the issue.
The Company further covenants that on or before the due date thereof,
it will cause Form 8038 to be completed, executed and filed with the
appropriate office of the Internal Revenue Service.
Section 7.4. Recording and Filing; Other Instruments.
(a) The Company covenants that it will, at its expense, cause Counsel
in the State to take all steps as are reasonably necessary to render an
opinion to the Issuer and the Trustee not earlier than sixty (60) nor later
than thirty (30) days prior to each anniversary date occurring at five-year
intervals after the issuance of the Bonds to the effect that all financing
statements, continuation statements, notices and other instruments required
by applicable law have been recorded or filed or re-recorded or re-filed in
such manner and in such places required by law in order fully to preserve
and protect the rights of the Trustee in the granting by the Issuer of
certain rights of the Issuer, pursuant to the Indenture, under this Loan
Agreement and the Note.
(b) The Company and the Issuer shall execute and deliver all
instruments and shall furnish all information and evidence deemed necessary
or advisable by such Counsel to enable him to render the opinion referred
to in subsection (a) of this Section. The Company shall file and re-file
and record and re-record or cause to be filed and re-filed and recorded and
re-recorded all instruments required to be filed and re-filed and recorded
or re-recorded pursuant to the opinion of such Counsel and shall continue
or cause to be continued the liens of such instruments for so long as the
Bonds shall be outstanding, except as otherwise required by this Loan
Agreement.
Section 7.5. Administrative Expenses.
The Company shall pay to or for the account of the Issuer within
thirty (30) days after notice thereof all reasonable costs and expenses
incurred by the Issuer in connection with the financing and administration
of the Project, including, without limitation, the costs of administering
this Loan Agreement and the fees and expenses of the Trustee, attorneys,
consultants and others.
Section 7.6. Indemnity Against Claims.
(a) The Company will pay and discharge and will indemnify and hold
harmless the Issuer and the Trustee from (1) any lien or charge upon
amounts payable hereunder by the Company to the Issuer, (2) any taxes,
assessments, impositions and other charges in respect of the Project, and
(3) any claim of any kind or character whatsoever arising from, connected
with or in any way related to the Bonds or the Project except such claims
that result from the gross negligence or willful misconduct of the Issuer
or the Trustee.
(b) If any claim of any such lien or charge upon payments, or any
such taxes, assessments, impositions or other charges, are sought to be
imposed, the Issuer or the Trustee, as the case may be, will give prompt
notice to the Company, and the Company shall have the sole right and duty
to assume, and shall assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
Section 7.7. Release and Indemnification.
The Company shall at all times protect and hold the Issuer and its
members, officers, employees and agents harmless against any claims or
liability resulting from any loss or damage to property or any injury to or
death of any person that may be occasioned by any cause whatsoever
pertaining to the Bonds, the Project or the use thereof, including without
limitation any lease thereof or assignment of its interest in this
Agreement, such indemnification to include reasonable expenses and
attorneys' fees incurred by the Issuer and its members, officers,
employees, attorneys and agents in connection therewith, provided that such
indemnity shall be effective only to the extent of any loss that may be
sustained by the Issuer, its members, officers, employees, attorneys and
agents in excess of the Net Proceeds received by it or them from any
insurance carrier with respect to such loss and provided further that the
benefits of this Section 7.7 shall not inure to any person other than the
Issuer and its members, officers, employees, attorneys and agents. In case
any action or proceeding is brought against the Issuer or any of its
members, officers, employees or agents by reason of any such claim, the
affected party shall notify the Company and the Company shall resist or
defend such action or proceeding and control the conduct thereof; provided,
however, that the Issuer shall have the right to retain separate counsel,
with the fees and expenses to be paid by the Company, if representation of
the Issuer would be inappropriate due to an actual conflict of interest, as
reasonably determined by the Issuer or the Company, between the Issuer and
the Company. The Issuer and its members, officers, employees and agents
shall cooperate and join with the Company at the expense of the Company as
may be required in connection with any such action or proceeding. The
Company shall not be responsible for any settlement reached without the
Company's consent.
Section 7.8. Additional Information.
The Issuer and the Trustee are authorized to provide information
concerning the outstanding principal amount and payment history of, and
other information pertaining to, the Bonds or the Note to any agency or
regulatory authority of the State requesting such information.
Section 7.9. Default Certificates.
The Company shall deliver to the Trustee forthwith, upon obtaining
knowledge of any Event of Default hereunder or under the Note, the
Indenture, or the Reimbursement Agreement, a certificate of the Company
specifying the nature and period of existence thereof and what action the
Company proposes to take with respect thereto.
Section 7.10. Observe Laws.
The Company shall observe all applicable laws, regulations and other
valid requirements of any regulatory authority with respect to its
operations at the Project.
Section 7.11. Election.
The Issuer hereby elects to have the provisions of Sections 144(a)(4)
of the Code apply to the Bonds. In support of this election, the Issuer
states as follows:
(a) The name of the Issuer is:
Hillsborough County Industrial Development Authority
and its address is:
c/o Thomas K. Morrison, Esq., Morrison, Morrison & Mills, P.A.,
Suite 100, 1200 West Platt Street, Tampa, FL 33606.
(b) The principal user of the Project will be:
Leslie Controls, Inc.
Employer Identification Number: 221063780
(c) The Bonds are in the principal amount of $4,765,000, and are to
be issued on August 4, 1994. Except for the Prior Bonds (which will be
paid in full and redeemed within 90 (ninety) days of the date of issuance
of the Bonds), there are no outstanding prior issues the proceeds of which
have been or are to be used primarily with respect to facilities located or
to be located in the County, the principal users of which is or will be the
Company or any Related Persons.
(d) There were no "Section 103(b)(6)(d) capital expenditures by the
Issuer," as that term is defined in the Regulations, which were paid or
incurred during the three (3) years preceding the date of issuance of the
Prior Bonds to facilities located in Hillsborough County the principal user
of which is or will be the Company or any Related Person, except as
described in the Tax Regulatory Certificate of the Company.
(e) Except for the Bonds and the Prior Bonds, there is no outstanding
issue of qualified small issue bonds (as that term is used in Section
141(e)(1)(D) of the Code) issued on behalf of the Company, the proceeds of
which have been or will be issued primarily with respect to:
(1) Any facility located in whole or in part in the County; or
(2) Any "contiguous or integrated facility" (within the meaning
of Section 1.103-10(b)(2)(ii)(e) of the Regulations) with respect to
any facility located in whole or in part in the County.
Section 7.12. No Warranty of Condition of Suitability by the Issuer.
THE ISSUER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE
CONDITION, TITLE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS OF THE
PROJECT OR THAT IT IS OR WILL BE SUITABLE FOR THE COMPANY'S PURPOSES OR
NEEDS.
Section 7.13. Redemption of Prior Bonds.
The Company hereby undertakes to refund the Prior Bonds on or before
November 1, 1994 pursuant to Section 401 of the Indenture. In connection
with such refunding, the Company or Watts Industries, Inc. shall pay all
additional amounts sufficient to pay the principal of and interest on the
Prior Bonds to the date of redemption thereof and to pay directly all fees,
charges and expenses of the holders of the Prior Bonds and of the Prior
Trustee in connection with the redemption of the Prior Bonds.
ARTICLE VIII
ASSIGNMENT, LEASING AND SELLING
Section 8.1. Assignment of this Loan Agreement or Lease or Sale of
the Project by the Company.
With the prior written consent of the Credit Facility Issuer, the
rights of the Company under this Loan Agreement may be assigned, and the
Project may be leased or sold as a whole or in part, without the necessity
of obtaining the consent of the Issuer or the Trustee, subject, however, to
the following conditions:
(a) without the prior written consent of the Credit Facility Issuer
and the Issuer, no assignment, transfer, sale or lease shall relieve the
Company from primary liability for any of its obligations hereunder, and if
any such assignment, transfer, sale or lease occurs, the Company shall
continue to remain primarily liable for the payments specified herein and
in the Note and for performance and observance of the other agreements on
its part herein provided to be performed and observed by it; and the
Company shall also provide the Trustee with an approving opinion of Bond
Counsel to the effect that such assignment, transfer, sale or lease will
not adversely affect the status of interest on the Bonds for federal tax
purposes.
(b) the assignee, lessee or purchaser shall assume the obligations of
the Company hereunder to the extent of the interest assigned, leased or
sold; and
(c) the Company shall, within thirty (30) days after the delivery
thereof, furnish or cause to be furnished to the Issuer and to the Trustee
a true and complete copy of each such assignment, instrument of transfer,
lease or sale agreement, as the case may be, together with any instrument
of assumption.
Section 8.2. Restrictions on Transfer of the Issuer's Rights.
Except for the assignment made pursuant to the Indenture of certain of
its rights under this Loan Agreement and its pledge of the Note, endorsed
without recourse to the order of the Trustee, to the Trustee as security
pursuant to the Indenture, the Issuer will not during the term of this Loan
Agreement sell, assign, transfer or convey any of its interests in this
Loan Agreement or the Note.
Section 8.3. Assignment by the Issuer.
It is understood, agreed and acknowledged that the Issuer, as security
for payment of the principal of and interest on the Bonds, will grant to
the Trustee pursuant to the Indenture, inter alia, certain of its right,
title and interest in and to this Loan Agreement (reserving certain of its
rights, as more particularly described in the Indenture) and will pledge
the Note, endorsed as aforesaid, to the Trustee as security, and the
Company hereby assents to such assignment and pledge.
Section 8.4. Merger of Issuer.
(a) Nothing contained in this Loan Agreement shall prevent the
consolidation of the Issuer with, or merger of the Issuer into, or transfer
of title to the Project to, any other political subdivision, provided that:
(1) the tax-exempt status of the interest on the Bonds shall not
be adversely affected thereby, and
(2) upon such consolidation, merger or transfer, the due and
punctual performance and observance of all the agreements and
conditions of this Loan Agreement to be kept and performed by the
Issuer shall be expressly assumed in writing by the political
subdivision resulting from such consolidation or surviving such merger
or to which such merger was made.
(b) Within thirty (30) days after the consummation of any such
consolidation, merger or transfer of title, the Issuer shall give notice
thereof, in reasonable detail to the Company and the Trustee. The Issuer
promptly shall furnish such additional information with respect to any such
transaction as the Company or the Trustee reasonably may request.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined.
The term "Event of Default" or "Default" shall mean any one or more of
the following events:
(a) the failure by the Company to pay or cause to be paid when due
any payment of principal of or interest on or other amount payable under
the Note.
(b) the failure of the Issuer to pay or cause to be paid when due any
payment of principal of or interest on or other amount payable under the
Bonds.
(c) the failure of the Company to perform any of its obligations
under Section 7.3 hereof.
(d) the occurrence of an "Event of Default" or "event of default"
under any of the other Bond Documents.
(e) any representation or warranty of the Company contained in
Section 2.2 hereof or in any document, instrument or certificate delivered
pursuant hereto or to the Indenture or in connection with the issuance and
sale of the Bonds shall be false, misleading or incomplete in any material
respect on the date as of which made.
(f) failure by the Company to observe or perform any covenant,
condition or agreement on the part of the Company under the Note or this
Loan Agreement, other than as referred to in the preceding paragraphs of
this Section 9.1, for a period of thirty (30) days after written notice,
specifying such failure and requesting that it be remedied, is given to the
Company by the Issuer or the Trustee.
(g) the commencement against the Company of an involuntary case under
the federal bankruptcy laws, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy, insolvency or other
similar law, or of any action or proceeding for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of its
property, or for the winding-up or liquidation of its affairs and the
continuance of any such case, action, or proceeding unstayed and in effect
for a period of thirty (30) consecutive days.
(h) the commencement by the Company of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar
law, or the consent by it to, or its acquiescence in the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of or the consent by
it to any assignment for the benefit of creditors, or the failure of the
Company generally to pay its debts as such debts become due, or the taking
of any action by the Company in furtherance of any of the foregoing.
Section 9.2. Remedies on Default.
(a) If Payment of the Bonds shall not have been made, whenever any
Event of Default referred to in Section 9.1 hereof shall have happened and
shall not have been waived:
(1) The Issuer may, by written notice, declare all installments
of principal repayable pursuant to the Note for the remainder of the
term thereof to be immediately due and payable, whereupon the same,
together with accrued interest thereon as provided for in the Note,
shall become immediately due and payable without presentment, demand,
protest or any other notice whatsoever, all of which are hereby
expressly waived by the Company; provided, however, all such amounts
shall automatically be and become immediately due and payable without
notice upon the occurrence of any event described in Section 9.1(g) or
9.1(h) hereof, which notice the Company hereby expressly waives.
(2) The Issuer may take whatever other action at law or in
equity may appear necessary or desirable to collect the amounts
payable pursuant to the Note then due and thereafter to become due, or
to enforce the performance and observance of any obligation, agreement
or covenant of the Company under this Loan Agreement or under any of
the other Bond Documents.
(b) In the enforcement of the remedies provided in this Section 9.2,
the Issuer may treat all reasonable expenses of enforcement including,
without limitation, legal, accounting and advertising fees and expenses, as
additional amounts payable by the Company then due and owing and the
Company agrees to pay such additional amounts upon demand.
Section 9.3. Application of Amounts Realized in Enforcement of
Remedies.
Any amounts collected pursuant to action taken under Section 9.2
hereof shall be paid to the Trustee and applied to the payment of, first,
any costs, expenses and fees incurred by the Issuer and the Trustee as a
result of taking such action; second, to the extent permitted by law, any
interest which shall have accrued on any overdue interest and any accrued
interest on any overdue principal of the Bonds at the rate set forth in the
Bonds; third, any overdue interest on the Bonds; fourth, any overdue
principal of the Bonds; fifth, the outstanding principal balance of the
Bonds. If Payment of the Bonds shall have been made, any remaining moneys
shall be applied in accordance with Section 911(b) of the Indenture.
Section 9.4. No Remedy Exclusive.
No remedy herein conferred upon or reserved to the Issuer is intended
to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Loan Agreement or now or hereafter existing
at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon the occurrence of an Event of Default shall
impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time
and as often as may be deemed expedient.
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses.
In connection with any Event of Default, if the Issuer or the Trustee
employs attorneys or incurs other expenses for the collection of amounts
payable hereunder or for the enforcement of the performance or observance
of any covenants or agreements on the part of the Company herein contained,
the Company agrees that it will on demand therefor pay to the Issuer or the
Trustee the reasonable fees of such attorneys and such other reasonable
expenses so incurred by the Issuer or the Trustee.
Section 9.6. Correlative Waivers.
If an event of default under Section 901 of the Indenture shall be
cured or waived and any remedial action by the Trustee rescinded, any
correlative default under this Loan Agreement shall be deemed to have been
cured or waived.
ARTICLE X
PREPAYMENTS
Section 10.1. Optional Prepayments.
(a) The Company is hereby granted, and shall have, the option to
prepay the unpaid principal of the Note in whole or in part in accordance
with and as set forth in Section 701 of the Indenture with respect to the
prepayment of the Bonds; provided, all prepayments shall be made in
immediately available funds and with interest accrued to the date of
prepayment and that any prepayment of the Note in part shall be applied to
unpaid installments of principal in inverse order of maturity. Any
prepayment pursuant to this subsection (a) shall be made by the Company
taking, or causing the Issuer to take, the actions required (1) for Payment
of the Bonds, in the case of prepayment of the Note in whole, or (2) to
effect prepayment of less than all of the Bonds according to their terms in
the case of a partial prepayment of the Note.
(b) In the event of damage, destruction or condemnation of the
Project or any part thereof, the Company may, at its option, pursuant to
Section 6.5 hereof and without penalty or premium, prepay the Note in whole
or in part; provided that any such prepayment shall be made in immediately
available funds with the interest accrued to the date of whole or partial
prepayment. Any prepayment pursuant to this subsection (b) shall be made
by the Company taking, or causing the Issuer to take, the actions required
for the full or partial prepayment of the Bond as provided for in
subsection (a) hereof.
(c) To exercise the option granted in subsection (a) or (b) of this
Section 10.1, the Company shall give written notice to the Issuer and the
Trustee which shall specify therein (1) the date of the intended prepayment
of the Note, which shall not be less than thirty (30) nor more than sixty
(60) days from the date the notice is mailed and (2) the principal amount
of the Note to be prepaid. When given, such notice shall be irrevocable by
the Company.
Section 10.2. Mandatory Prepayments.
(a) In the event of a Determination of Taxability, the Company shall,
(1) on a date selected by the Company not more than one hundred eighty
(180) days following the date of the Determination of Taxability, prepay
the entire unpaid principal balance of the Note in full and interest
thereon, without premium, as provided therein. Immediately upon the
occurrence of a Determination of Taxability, the Company shall notify the
Issuer and the Trustee of the date selected for payment pursuant to this
Section 10.2.
(b) In the event any Credit Facility is not renewed and an Alternate
Credit Facility has not been provided in accordance with Section 603 of the
Indenture, the Company shall on or before the Interest Payment Date
occurring closest to but not after fifteen (15) days prior to the
expiration date of the then current Credit Facility, prepay the entire
unpaid principal balance of the Note in full. The Company shall promptly
notify the Issuer and the Trustee of the date selected for such payment.
Section 10.3. Other Mandatory Prepayments.
The amounts required to be applied to the prepayment of the Note by
Sections 5.3 and 6.5 hereof shall be applied by the Company to prepay,
together with accrued interest, all or a portion of the unpaid principal of
the Note. Such prepayment shall be made by the Company taking, or causing
the Issuer to take, the actions required (a) for payment of the Bonds,
whether by redemption prior to the maturity or by payment at maturity, or
(b) to effect the purchase, redemption or payment at maturity of less than
all of the installments of principal of the Bonds in inverse order of their
maturities.
ARTICLE XI
REBATE PROVISIONS
Section 11.1. Creation of the Rebate Fund.
(a) The Issuer shall create and establish with the Trustee a special
trust fund in the name of the Issuer to be designated by the Trustee and
which is referred to herein as the Rebate Fund (the "Rebate Fund"), which
shall be held, invested, expended and accounted for in accordance with this
Loan Agreement.
(b) Moneys in the Rebate Fund shall be held in trust by the Trustee
and, subject to Section 7.3 hereof, shall be held for the benefit of the
United States as contemplated under the provisions of this Loan Agreement
and shall not be considered to be held for the benefit of the Issuer, the
Company, the Trustee or the owners of the Bonds.
ARTICLE XII
MISCELLANEOUS
Section 12.1. References to the Bonds Ineffective After Bonds Paid.
Upon Payment of the Bonds, all references in this Loan Agreement to
the Bonds shall be ineffective and the Issuer and any owner of the Bonds
shall not thereafter have any rights hereunder, excepting reporting and
payment of rebate payments under Section 7.3 hereof and rights of the
Issuer to indemnification and payment of expenses contained, without
limitation, in Sections 7.5, 7.6 and 7.7 hereof.
Section 12.2. No Implied Waiver.
In the event any agreement contained in the Note or this Loan
Agreement should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach thereunder or
hereunder. Neither any failure nor any delay on the part of the Trustee to
exercise any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege.
Section 12.3. Issuer Representative.
Whenever under the provisions of this Loan Agreement the approval of
the Issuer is required or the Issuer is required to take some action at the
request of the Company, such approval shall be made or such action shall be
taken by the Issuer Representative; and the Company, the Trustee and the
Bondholders shall be authorized to rely on any such approval or action.
Section 12.4. Company Representative.
Whenever under the provisions of this Loan Agreement the approval of
the Company is required or the Company is required to take some action at
the request of the Issuer, such approval shall be made or such action shall
be taken by the Company Representative; and the Issuer, the Trustee and the
Bondholders shall be authorized to act on any such approval or action.
Section 12.5. Notices.
(a) All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given when delivered by hand
delivery or mailed by first class, postage prepaid, registered or certified
mail, or sent by nationally-recognized overnight courier addressed as
follows:
(1) if to the Issuer: Hillsborough County Industrial
Development
Authority
c/o Thomas K. Morrison
Morrison, Morrison & Mills, P.A.
Suite 100
1200 West Platt Street
Tampa, FL 33606;
(2) if to the Company: Leslie Controls, Inc.
c/o Watts Industries, Inc.
815 Chestnut Street
North Andover, MA 01845
(Attention: William C. McCartney, Corporate
Controller)
with a copy to: John R. LeClaire, P.C.
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
(3) if to the Trustee: The First National Bank of Boston
150 Royall Street, Mail Stop 45-02-15
Canton, MA 02021
Attention: Corporate Trust Division
(b) The Issuer, the Company or the Trustee may, by notice given
hereunder, designate from time to time any further or different addresses
to which subsequent notices, certificates or other communications shall be
sent.
Section 12.6. If Payment or Performance Date Is Other Than a Business
Day.
If the specified or last date for the making of any payment, the
performance of any act or the exercising of any right, as provided in this
Loan Agreement, shall be a day other than a Business Day, such payment may
be made or act performed or right exercised on the next succeeding Business
Day; provided that interest shall accrue during any such period during
which payment shall not occur.
Section 12.7. Binding Effect.
This Loan Agreement shall inure to the benefit of and shall be binding
upon the Issuer, the Company and their respective successors and assigns,
subject to the provisions of Section 8.3 hereof.
Section 12.8. Severability.
In the event any provision of this Loan Agreement or the Note shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
hereof or thereof.
Section 12.9. Amendments, Changes and Modifications.
Subsequent to the issuance of the Bonds and prior to Payment of the
Bonds, this Loan Agreement and the other Bond Documents, may not be
effectively amended, changed, modified, altered or terminated except in
accordance with the Indenture.
Section 12.10. Execution in Counterparts.
This Loan Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and
the same instrument, and no one counterpart of which need be executed by
all parties.
Section 12.11. Applicable Law.
This Loan Agreement shall be governed by and construed in accordance
with the laws of the State.
Section 12.12. No Charge Against Issuer Credit.
No provision hereof shall be construed to impose a charge against the
general credit of the Issuer or any personal or pecuniary liability upon
any member, official, employee or agent of the Issuer.
Section 12.13. Issuer Not Liable.
Notwithstanding any other provision of this Loan Agreement (a) the
Issuer shall not be liable to the Company, the Trustee, any Bondholder or
any other Person for any failure of the Issuer to take action under this
Loan Agreement, and (b) except with respect to any action for specific
performance or any action in the nature of a prohibitory or mandatory
injunction, neither the Issuer nor any officer or member of the Issuer nor
any other official, employee, attorney or agent of the Issuer shall be
liable to the Company, the Trustee, any Bondholder or any other Person for
any action taken by the Issuer or by any of its officers, servants, agents
or employees or for any failure to take action under this Loan Agreement or
the Indenture except for the Issuer's willful misconduct. In acting under
this Loan Agreement, or in refraining from acting under this Loan
Agreement, the Issuer may conclusively rely on the advice of its counsel.
Section 12.14. Expenses.
The Company agrees to pay all reasonable fees and expenses incurred in
connection with the preparation, execution, delivery, modification, waiver,
and amendment of this Loan Agreement, the other Bond Documents and related
documents, and the fees and expenses of bond counsel, counsel for the
Issuer and counsel for the Trustee in connection therewith or in connection
with any transactions contemplated thereby. The Company also agrees to pay
to the Trustee, as and when the same become due, its reasonable fees for
services rendered and its expenses incurred as Trustee, including the
reasonable fees of its counsel, and such other amounts as the Company
herein assumes or agrees to pay, including costs or expenses necessary to
cancel and discharge the Indenture. The Company also agrees to pay all
expenses incurred by the Trustee or the Issuer in collection of any
indebtedness incurred hereunder in the event of default by the Company,
including reasonable attorneys fees.
Section 12.15. Amounts Remaining with the Trustee.
Any amounts remaining in the Bond Fund or otherwise in trust with the
Trustee under the Indenture or this Loan Agreement shall, after Payment of
the Bonds and all Administrative Expenses in accordance with this Loan
Agreement, be disbursed by the Trustee in accordance with the provisions of
the Indenture or otherwise as may be required by law.
IN WITNESS WHEREOF, the Issuer and the Company have caused this Loan
Agreement to be executed in their respective legal names by their duly
authorized representatives all as of the date first above written.
LESLIE CONTROLS, INC.
By /s/ (Signature)
Its: Assistant Treasurer
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By /s/ (Signature)
Its: Chairman