BOND PURCHASE AGREEMENT
August 25, 2004
$2,000,000
ILLINOIS FINANCE AUTHORITY
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT
REVENUE BONDS, SERIES 2004
(CFC INTERNATIONAL, INC. PROJECT)
Illinois Finance Authority
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CFC International, Inc.
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Ladies and Gentlemen:
The undersigned LaSalle Capital Markets, a Division of ABN AMRO Financial
Services, Inc. (the "Purchaser"), hereby offers to enter into this Bond Purchase
Agreement (the "Purchase Agreement") with you, for the purchase by the Purchaser
and the execution and delivery by the Illinois Finance Authority (the "Issuer")
of the Bonds specified below. This offer is made subject to acceptance by the
Issuer and CFC International, Inc. (the "Company") prior to 4:00 P.M., Central
Daylight Savings Time, on the date hereof, and upon such acceptance this
Purchase Agreement shall be in full force and effect in accordance with its
terms and shall be binding upon the Issuer, the Purchaser and the Company. All
terms not defined herein shall have the meanings set forth in the Official
Statement (defined below), or if not set forth therein, as set forth in the
Indenture (defined below).
1. Upon the terms and conditions herein, the Purchaser hereby agrees to
purchase from the Issuer, and the Issuer hereby agrees to sell to the Purchaser,
all (but not less than all) of the $2,000,000 aggregate principal amount of the
Issuer's Variable Rate Demand Industrial Development Revenue Bonds, Series 2004
(CFC International, Inc. Project) (the "Bonds"), as more fully described in the
Official Statement, at the purchase price of $2,000,000 for its services
rendered hereunder, the Company agrees to pay a fee of $20,000 to the Purchaser.
In addition, the Company is responsible for paying all other costs associated
with the issuance and placement of the Bonds, including the fees and expenses of
counsel to the Purchaser and of counsel to the Bank (as defined below).
The Purchaser represents, warrants and covenants to the Issuer and the
Company that the Bonds will be offered in accordance with applicable state and
federal laws. The Purchaser further represents, warrants and covenants that it
has been duly authorized to execute this Purchase Agreement, that when executed
by the Purchaser and accepted by the Issuer, this Purchase Agreement will be a
valid and binding obligation of the Purchaser.
The Purchaser also agrees that it shall do the following:
(a) offer the Bonds only pursuant to the Official Statement and shall
not make any statements in connection with the offering and sale of the
Bonds that go beyond or are inconsistent with the information contained in
the Official Statement;
(b) comply with all applicable registration and qualification
requirements applicable to the Purchaser or the Bonds under any securities
or Blue Sky Law of any jurisdiction in which such registration or
qualification is required;
(c) not make any untrue or misleading statement in connection with the
offering and sale of the Bonds and shall ensure that all information
contained in the Official Statement under the caption "Underwriting" is
true and correct in all material respects and does not omit any statement
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading; and
(d) perform its responsibilities as the underwriter of the Bonds under
applicable federal and state securities laws, including, without
limitation, its obligations to review the Official Statement in a
professional manner and to make such investigation as appropriate in order
to have a reasonable basis for concluding that the Official Statement does
not contain any untrue statement of a material fact and does not omit to
state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The Purchaser shall advise the Issuer if at any time during the
Underwriting Period (as defined herein) for the Bonds there is any reason for
the Purchaser to believe that the Official Statement then contains any untrue
statement of a material fact or any omission of a material fact necessary in
order to make the statements therein, in light of the circumstances in which
they were made, not misleading, and in such case the Issuer, the Purchaser and
the Company shall take such steps as may be appropriate to amend or supplement
the Official Statement.
2. The Bonds shall be as described in, and shall be secured under and
pursuant to, the Indenture of Trust, dated as of July 1, 2004 (the "Indenture"),
from the Issuer to LaSalle Bank National Association, as trustee (the
"Trustee"), substantially in the form previously submitted to the Purchaser,
with only such changes therein as shall be mutually agreed upon by the Trustee,
the Company, the Issuer and the Purchaser. The Bonds are secured by payments
provided for in the Loan Agreement, dated as of July 1, 2004 by and between the
Issuer and the Company, dated as of July 1, 2004 (the "Loan Agreement") and the
related promissory note (the "Note"). The Bonds are further secured by a letter
of credit (the "Letter of Credit"), dated the date of issuance of the Bonds,
issued by LaSalle Bank National Association (in such capacity, the "Bank")
provided pursuant to the Letter of Credit and Reimbursement Agreement (the
"Reimbursement Agreement"), dated as of July 1, 2004, between the Company and
the Bank.
3. The Issuer and the Company shall deliver or cause to be delivered to the
Purchaser promptly after their acceptance hereof, 10 copies of the Official
Statement, dated August 25, 2004, relating to the Bonds. The Official Statement,
including the cover page, the appendices thereto and all information
incorporated therein, with only such amendments, supplements or changes therein
as shall have been accepted by us, is hereinafter referred to as the "Official
Statement". The Company has authorized the use of copies of the Official
Statement, the Indenture and the Loan Agreement and the Remarketing Agreement
dated as of July 1, 2004 between the Company and LaSalle Capital Markets, a
Division of ABN AMRO Financial Services, Inc., as remarketing agent, dated as of
July 1, 2004 (the "Remarketing Agreement"), all as described in the Official
Statement, in connection with the placement of the Bonds. The Purchaser agrees
that it will not confirm the placement of any Bonds unless the confirmation of
such placement is accompanied or preceded by the delivery of a copy of the
Official Statement.
4. The Issuer, subject to the limitations provided herein, represents and
warrants to and agrees with the Purchaser as follows with respect to the Bonds:
(a) The Issuer is a body politic and corporate and public
instrumentality of the State, created and existing under the Act.
(b) The Issuer is authorized under the laws of the State to (i) issue
the Bonds for the purposes for which they are to be issued as set forth in
the Official Statement; (ii) lend the proceeds of the Bonds to the Company
for the purposes set forth in the Official Statement; (iii) enter into the
Indenture, the Loan Agreement, this Purchase Agreement, the Remarketing
Agreement and the Tax Exemption Certificate and Agreement dated the date of
issuance of the Bonds (the "Tax Agreement") among the Issuer, the Company
and the Trustee; and (iv) pledge and assign to the Trustee the payments to
be made by the Company under the Loan Agreement and the Note and the
Issuer's rights under the Loan Agreement that are pledged or assigned as
security for the payment of the principal of, premium, if any, and interest
on the Bonds.
(c) The Issuer has full power and authority to consummate the
transactions contemplated on its part by the Bonds, the Official Statement,
the Indenture, the Loan Agreement, this Purchase Agreement and the Tax
Agreement.
(d) The information relating to the Issuer contained under the
captions "INTRODUCTORY STATEMENT", "THE ISSUER" and "LITIGATION - The
Issuer," in the Official Statement does not, as of the date hereof, and
will not, as of the Closing Date (as hereinafter defined), contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Issuer has duly authorized and approved the execution and
delivery of this Purchase Agreement.
(f) Prior to the Closing (as hereinafter defined), the Issuer shall
have duly authorized all necessary action to be taken by it for (i) the
issuance and sale of the Bonds and the lending of the proceeds of the Bonds
to the Company on the terms and for the purposes set forth herein and in
the Official Statement and (ii) the approval, execution, delivery and/or
receipt, as the case may be, by the Issuer of the Indenture, the Loan
Agreement, this Purchase Agreement, the Tax Agreement, the Bonds, the
Official Statement and any and all such other agreements and documents as
may be required to be approved, executed, delivered and/or received by the
Issuer in order to carry out, give effect to, and consummate the
transactions contemplated hereby and by the Official Statement.
(g) The Issuer shall, on or before the Closing Date, execute and
deliver the Indenture, the Loan Agreement, this Purchase Agreement, the Tax
Agreement and the Bonds and shall approve and authorize the distribution of
the Official Statement.
(h) The Bonds, when issued, delivered and paid for as provided herein
and in the Indenture will have been duly authorized and issued and will
constitute valid and binding limited obligations of the Issuer enforceable
in accordance with their terms and entitled to the benefits and security of
the Indenture and the Loan Agreement, subject in each instance to any
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws and laws affecting the enforcement of creditors' rights
generally or relating to a public body such as the Issuer as from time to
time in effect, and further subject to the availability of equitable
remedies. The Bonds do not pledge the credit of the Issuer, the State or
any political subdivision or agency thereof nor shall there be a charge
against the general revenues of such entities or of the Issuer or a lien
against any of their property except as specifically provided in the
Indenture. The Bonds shall be special, limited obligations of the Issuer
and no taxes are required to be levied for the payment of the principal of,
premium, if any, and interest on the Bonds; such principal of, premium, if
any, and interest on the Bonds being payable (except to the extent
otherwise provided in the Indenture) solely out of moneys to be received by
the Issuer as payments under the Loan Agreement and the Note that are
pledged under the Indenture and any other amounts derived from the Loan
Agreement and the Note, from specified amounts on deposit with the Trustee
under the Indenture and from amounts available from draws on the Letter of
Credit and the income from the temporary investment of any of the
foregoing.
(i) This Purchase Agreement is and, when executed and delivered, each
of the Indenture, the Loan Agreement, this Purchase Agreement, the
Remarketing Agreement and the Tax Agreement will be, assuming the due and
valid authorization, execution and delivery of such documents by the other
parties thereto, the legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their respective terms,
subject to any applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting the enforcement of creditors' rights
generally and subject to the availability of equitable remedies, and to the
qualification that enforcement of the indemnification provisions of this
Purchase Agreement may be limited by federal or state securities laws.
(j) Except as may be set forth in the Official Statement, there is no
action, suit, proceeding, inquiry or investigation at law or in equity
before or by any court, public board or body pending in which summons has
been served or, to the best knowledge of the Issuer, threatened against or
affecting the Issuer wherein an unfavorable decision, ruling or finding
would adversely affect (i) the corporate existence of the Issuer or the
right of the members of the Issuer to their offices or the right of the
officers of the Issuer to their respective offices, (ii) the validity of or
the Issuer's power to engage in the transactions contemplated hereby or by
the Official Statement, (iii) the validity of the proceedings taken by the
Issuer for the approval, adoption, authorization, execution, delivery,
receipt and performance, as the case may be, of the Bonds, the Official
Statement, the Indenture, the Loan Agreement, this Purchase Agreement, the
Tax Agreement or any agreement or any 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 by the Official Statement, (iv) the
validity or enforceability of the Bonds, the Official Statement, the Loan
Agreement, this Purchase Agreement, the Tax Agreement 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 herein or in
the Official Statement or (v) the federal tax-exempt status of the interest
on the Bonds or the amounts to be received by the Issuer pursuant to the
Loan Agreement.
(k) The execution and delivery by the Issuer of the Bonds, the
Indenture, the Loan Agreement, this Purchase Agreement, the Tax Agreement
and the other documents contemplated hereby or by the Official Statement,
and compliance with their respective provisions, the approval and delivery
by the Issuer of the Official Statement, and the assignment of the Loan
Agreement, including the specified rights of the Issuer under the Loan
Agreement, to the Trustee, do not and will not conflict with, or constitute
on the part of the Issuer a breach of or a default under, any existing law,
court or administrative regulation, decree, order, agreement, indenture,
mortgage or lease to which the Issuer is a party or by which the Issuer or
any of its property is or may be bound.
(l) A public hearing was held with respect to the Bonds on August 6,
2004 and the approval of the Bonds of the "applicable representative" has
or will be obtained prior to the Closing, all as described in Section
147(f) of the Code.
(m) The resolution of the Issuer adopted August 10, 2004, approving
and authorizing the execution and delivery of the Indenture, the Loan
Agreement, this Purchase Agreement, the Tax Agreement and the Bonds and the
use and distribution of the Official Statement, was duly adopted at a
meeting of the members of the Issuer that was called and held pursuant to
law and with all public notice required by law and at which a quorum was
present and acting throughout.
(n) The Issuer will furnish such information, execute such instruments
and take such other action in cooperation with the Purchaser and
Purchaser's counsel as they may reasonably request (i) in any endeavor to
qualify the Bonds for offering and sale under the securities or "blue sky"
laws or other securities laws or regulations of such jurisdictions of the
United States as the Purchaser may request, (ii) for the application for
exemption from such qualification, (iii) for the Purchaser's determination
of their eligibility for investment under the laws of such jurisdictions as
the Purchaser's designates and (iv) to provide for the continuance of such
qualifications or exemptions in effect for so long as required for the
distribution of the Bonds; provided, however, that the Issuer shall not be
required by the foregoing to consent to jurisdiction in any state other
than the State and shall not be deemed to have made any representation with
regard to securities or "blue sky" laws or other securities laws of the
United States. The Issuer shall not be obligated to pay any expenses or
costs (including legal fees) incurred in connection with such
qualification.
(o) Any certificate signed by an authorized officer of the Issuer and
delivered to the Purchaser shall be deemed a representation and warranty by
the Issuer to the Purchaser as to the statements made therein.
(p) Other than as disclosed in the Official Statement and as required
under Section 147(f) of the Code with respect to the Bonds, no further
authorization, approval, consent or other order of any governmental
authority or agency, or of any other entity or person(s) is required for
the valid authorization, execution and delivery by the Issuer of the Bonds
and the other documents contemplated thereby or the authorization and
delivery of the Official Statement.
(q) Neither the existence or territorial jurisdiction of the Issuer
nor the title of the officers or members of the governing body of the
Issuer to their respective offices or membership are being contested and no
authority or proceeding for the issuance of the Bonds has been repealed,
revoked or rescinded.
Under no circumstances will any obligation, covenant, representation or
warranty of the Issuer created by or arising out of this Purchase Agreement or
out of the Bonds, or the resolution authorizing the Bonds, be or become an
indebtedness of the Issuer, the State or any political subdivision of the State
or be a charge against the general credit or taxing power, if any, of the Issuer
or the State or any political subdivision of the State or give rise to a
pecuniary liability of the Issuer, or on the part of any member, officer,
employee or agent of the Issuer, the State or any political subdivision of the
State, but shall be payable solely out of the revenues and other funds pledged
under the Indenture. The Issuer has no taxing power.
5. The Company represents and warrants to and agree with the Issuer and the
Purchaser as follows with respect to the Bonds:
(a) The Company has full power and authority to own its properties and
to conduct its business as now being conducted.
(b) The information relating to the Company or the Project contained
in the Official Statement on the cover page and under the captions
"INTRODUCTION," "THE COMPANY," "THE PROJECT," "ESTIMATED SOURCES AND USES
OF FUNDS," and "LITIGATION" are, as of date hereof; and will be, as of the
Closing Date, true and correct in all material respects for the purposes
for which their use is or was authorized; and such sections do not, and as
of the Closing Date will not, include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
made in such sections in light of the circumstances under which they are or
were made, not misleading. Neither this Purchase Agreement nor any other
document, certificate or written statement furnished to the Purchaser or
the Issuer pursuant to this Purchase Agreement or the Loan Agreement by or
relating to the Company contains any untrue statement of a materia1 fact or
omits to state a material fact necessary to make the statements contained
herein or therein, under the circumstances under which they are or were
made, not misleading.
(c) Subsequent to the respective dates as of which information was
given to the Purchaser and except as set forth in or contemplated by the
Official Statement, no event has occurred which has affected or may affect
materially and adversely the business, properties, operations, prospects or
financial condition of either of the Company.
(d) Neither the execution and delivery of the Loan Agreement, the
Note, the Reimbursement Agreement, the Remarketing Agreement, the Tax
Agreement and this Purchase Agreement, and the approval and execution of
the Official Statement and this Purchase Agreement and compliance by the
Company with the provisions on the Company's part contained therein nor the
consummation of any other of the transactions contemplated hereby or
thereby, nor the fulfillment of the terms hereof or thereof, conflicts with
or constitutes a breach of or default under nor contravenes any law,
administrative regulation, judgment, decree, loan agreement, indenture,
bond, note, resolution, agreement or other instrument to which the Company
is a party or to which the Company is otherwise subject, nor does any such
execution, delivery, approval, adoption or compliance result in the
creation or imposition of any lien, charge or other security interest or
encumbrance of any nature whatsoever upon any of the properties or assets
of the Company under the terms of any such law, administrative regulation,
judgment, decree, loan agreement, indenture, bond, note, deed of trust,
resolution, agreement or other instrument, except as provided by the Loan
Agreement, the Note or the Reimbursement Agreement or the other documents
executed in connection therewith.
(e) The Company is not in breach of or default in any material respect
under any applicable law or administrative regulation or any applicable
judgment or decree or any loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which it is a party or to
which it is otherwise subject, and no event has occurred and is continuing
which, with the passage of time or the giving of notice, or both, would
constitute a default or an event of default under any such instrument.
(f) There is no action, suit, proceeding or investigation at law or in
equity before or by any court or governmental agency or body pending or
threatened against the Company wherein an adverse decision, ruling or
finding would (i) result in any material and adverse change in the
condition (financial or otherwise), business or prospects of the Company or
which would materially and adversely affect the properties of the Company,
and which has not been disclosed in the Official Statement, (ii) materially
and adversely affect the transactions contemplated by this Purchase
Agreement, or (iii) materially and adversely affect the validity or
enforceability against the Company of the Loan Agreement, the Note, the
Reimbursement Agreement, the Remarketing Agreement, the Tax Agreement or
this Purchase Agreement.
(g) The Company has the full power and authority to execute and
deliver and to perform its obligations hereunder and under the Loan
Agreement, the Note, the Reimbursement Agreement, the Remarketing
Agreement, the Tax Agreement and to engage in the transactions contemplated
by this Purchase Agreement and the Official Statement relating to the offer
and sale of the Bonds. The Loan Agreement, the Reimbursement Agreement, the
Remarketing Agreement, the Tax Agreement and this Purchase Agreement have
been duly authorized and, when executed and delivered by the respective
parties hereto and thereto, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors' rights and
general principles of equity, and except as the indemnification provisions
hereof may be limited by applicable securities law or public policy.
(h) The application to the Issuer and the completed questionnaires, if
any, supplied by the Company to the Issuer, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP,
Chicago, Illinois ("Bond Counsel") and/or the Purchaser or its counsel with
respect to the Project to be financed with the proceeds of the Bonds are
true, correct and complete in all material respects for the purposes for
which supplied.
(i) No consent, approval, authorization or other action by any
governmental or regulatory authority that has not been obtained is or will
be required by the Company for the issuance and sale of the Bonds or the
consummation of the other transactions contemplated by the Remarketing
Agreement, the Tax Agreement, this Purchase Agreement and the Official
Statement, except for such licenses, certificates, approvals, variances or
permits which may be necessary for the construction or operation of the
Project and for which the Company has applied (or for which the Company
will apply in the ordinary course of business) and expect to receive, and
except as may be required under the state securities or "blue sky" laws in
connection with the purchase of the Bonds by the Purchaser.
(j) The Company authorizes the use by the Purchaser of the Official
Statement (including the Appendices thereto and all information
incorporated therein by reference), the Loan Agreement, the Note, the
Reimbursement Agreement, the Remarketing Agreement and the information
therein and herein in connection with the purchase of the Bonds.
(k) The Company will not take or omit to take any action which action
or omission will in any way cause the proceeds from the sale of the Bonds
to be applied in a manner contrary to that provided in the Indenture and
the Loan Agreement.
(l) The Company will deliver all opinions, certificates, letters and
other instruments and documents reasonably required by this Purchase
Agreement, the Loan Agreement, the Remarketing Agreement, the Reimbursement
Agreement and the Tax Agreement.
(m) Any certificate of the Company delivered to the Purchaser shall be
deemed a representation and warranty by the Company to the Purchaser as to
the statements made therein.
(n) The Company will furnish such information, execute such
instruments and take such other action in cooperation with the Issuer and
the Purchaser as may be required to qualify the Bonds for offering and sale
under the "blue sky" or other securities laws of such jurisdictions as the
Purchaser may designate.
(o) The representations, warranties, agreements and indemnities
contained herein shall survive the Closing and any investigation made by or
on behalf of the Issuer or the Purchaser or any such director, officer or
any such controlling person as to any matters described in or related to
the transactions contemplated hereby and by the Official Statement, the
Indenture, the Reimbursement Agreement, the Loan Agreement, the Note, the
Remarketing Agreement and the Tax Agreement.
6. The Company shall indemnify the Issuer and the Purchaser and shall hold
them harmless as follows:
(a) The Company shall pay and indemnify and hold harmless the Issuer
and any person who "controls" the Issuer within the meaning of Section 15
of the Securities Act of 1933, as amended, and any member, officer,
director, trustee, official and employee of the Issuer, and each person, if
any, who has the power, directly or indirectly, to direct or cause the
direction of the management and policies of the Issuer pursuant to the Act
or the Issuer's regulations or bylaws (each an "Issuer Indemnified Party",
and collectively, the "Issuer Indemnified Parties") from any loss, claim,
damage, tax, penalty or expense (including reasonable attorneys' fees and
expenses), or liability of any nature due to any and all suits, actions,
legal or administrative proceedings, or claims arising or resulting from or
in any way connected with: (i) the financing of the Project or the
installation, operation, use, or maintenance of the properties of the
Company, (ii) any act, failure to act, or misrepresentation by any person
in connection with the issuance, sale, delivery or remarketing of the
Bonds, or (iii) any act, failure to act, or misrepresentation by the Issuer
in connection with this Purchase Agreement or any other document involving
the Issuer in this matter. If any suit, action or proceeding is brought
against any of the Issuer Indemnified Parties, that suit, action or
proceeding shall be defended by counsel to the Issuer or the Company, as
the Issuer shall determine. If the defense is by counsel to the Issuer, the
Company shall indemnify the Issuer Indemnified Parties for the reasonable
cost of that defense including reasonable attorneys' fees and expenses. If
the Issuer determines that the Company shall defend the Issuer or any
Issuer Indemnified Parties, the Company shall immediately assume the
defense at their own cost. Neither the Issuer nor the Company shall be
liable for any settlement of any proceeding made without each of their
consent (which consent shall not be unreasonably withheld).
(b) The Company shall indemnify and hold harmless the Purchaser and
any person who "controls" the Purchaser within the meaning of Section 15 of
the Securities Act of 1933, as amended, and any officer, director,
official, and employee of the Purchaser (each an "Agent Indemnified Party"
and collectively, the "Agent Indemnified Parties") from any loss, claim,
damage, tax, penalty, or expense (including reasonable attorneys' fees and
expenses), or liability of any nature due to any and all suits, actions,
legal or administrative proceedings, or claims arising or resulting from,
or in any way connected with: (i) the financing of the Project or the
installation, operation, use, or maintenance of the properties of the
Company, (ii) any act, failure to act, or misrepresentation by the Company
or any director, officer, employee, agent, or independent contractor of the
Company in connection with the issuance, sale, delivery or remarketing of
the Bonds, or (iii) any act, failure to act, or misrepresentation by the
Issuer or the Purchaser in connection with this Purchase Agreement or any
other document involving the Issuer or the Purchaser in this matter (except
to the extent any such act, failure to act or misrepresentation by the
Purchaser or any director, officer, employee, agent, or independent
contractor of the Purchaser involved the gross negligence or willful
misconduct of the Purchaser or any of its directors, officers, employees,
agents or independent contractors); provided, however, that no such
indemnification shall be extended to the Purchaser in connection with any
matter to the extent that the Purchaser is required to indemnify the
Company pursuant to Section 7(b) of this Purchase Agreement. In case any
claim shall be made or any action shall be brought against one or more of
the Agent Indemnified Parties, the Agent Indemnified Parties seeking
indemnity hereunder shall promptly notify the Company in writing, and the
Company shall promptly assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Purchaser, the payment of all
expenses and the right to negotiate and consent to settlement. If any of
the Agent Indemnified Parties is advised in an opinion of counsel that
there may be legal defenses available to it which are adverse to or in
conflict with those available to the Company, or that the defense of such
Agent Indemnified Party should be handled by separate counsel, the Company
shall not have the right to assume the defense of such Agent Indemnified
Party, but shall be responsible for the reasonable fees and expenses of
counsel retained by the Agent Indemnified Party in assuming its own
defense, and provided also that if the Company shall have failed to assume
the defense of such action or to retain counsel reasonably satisfactory to
the Company, within a reasonable time after written notice of the
commencement of such action, the fees and expenses of counsel retained by
the Agent Indemnified Parties shall be paid by the Company. Notwithstanding
and in addition to any of the foregoing, any one or more of the Agent
Indemnified Parties shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Agent Indemnified
Parties, unless the employment of such counsel had been specifically
authorized, in writing, by the Company. The Company shall not be liable for
any settlement of any such action effected without its written consent, but
if settled with the consent of the Company or if there is a final judgment
for the plaintiff in any such action with or without consent, the Company
shall indemnify and hold harmless the Agent Indemnified Parties from and
against any loss or liability by reason of such settlement or judgment.
(c) The Company shall also indemnify the Issuer Indemnified Parties
and the Agent Indemnified Parties for all reasonable costs and expenses,
including reasonable attorneys' fees and expenses, incurred in: (i)
enforcing any obligation of the Company under this Purchase Agreement or
any related agreement, (ii) taking any action requested by the Company,
(iii) taking any action required by this Purchase Agreement or any related
agreement, or (iv) taking any action considered necessary by the Issuer or
the Purchaser and which is authorized by this Purchase Agreement or any
related agreement.
(d) Any provision of this Purchase Agreement or any other instrument
or document executed and delivered in connection therewith to the contrary
notwithstanding, the Issuer retains the right to (i) enforce any applicable
federal or state law or regulation or ordinance of the Issuer and (ii)
enforce any rights accorded the Issuer by federal or state law or
regulation or ordinance of the Issuer, and nothing in this Purchase
Agreement shall be construed as an express or implied waiver thereof.
(e) The indemnity provided herein is not intended to supersede any
indemnity to which the Issuer is entitled to under the Loan Agreement. Any
indemnity provided herein is in addition to any other indemnification
provided by the Company to the Indemnified Parties.
7. The Purchaser shall indemnify the Issuer and the Company and shall hold
them harmless as follows:
(a) The Purchaser agrees, at its expense, to indemnify, defend and
hold harmless the Issuer along with the Issuer's members, officers,
employees and each person, if any, who has the power, directly or
indirectly, to direct or cause the direction of the management and policies
of the Issuer, pursuant to the Act or the Issuer's regulations or bylaws,
("Issuer Indemnified Parties"), from and against any and all losses,
claims, damages, demands, liabilities, costs or expenses (collectively,
"Claims"), including reasonable attorneys' fees and expenses, if such
Claims are a result of, arise out of or are materially increased,
strengthened or enhanced by or would not exist but for a breach by the
Purchaser of its duties under, or failure to abide by any of its covenants
in this Purchase Agreement. The Purchaser shall promptly assume the defense
of any claim made against any Issuer Indemnified Party, including the
employment of counsel reasonably satisfactory to the Issuer, at the sole
expense of the Purchaser.
(b) The Purchaser shall likewise indemnify, hold harmless and defend
the Company and their officers, if any, managers, members, directors or
other officials, and every person who controls the Company within the
meaning of the Securities Act of 1933 and the Securities Exchange Act of
1934, as amended, from and against any and all losses, claims, damages,
demands, liabilities, fees and expenses, including reasonable attorneys'
fees which is based in whole or in part upon (i) a statement or omission
made by the Company in reliance upon written information furnished to them
by the Purchaser or (ii) the failure of the Purchaser to comply with any
registration or qualification requirements applicable to such Purchaser or
the Bonds under any securities or Blue Sky Laws of any jurisdiction in
which such registration or qualification is required.
8. The Company further agree as follows:
(a) The Company ratifies, confirms and consents to the use of the
Official Statement and drafts of the Official Statement by counsel to the
Purchaser in obtaining necessary qualification, exemption, determination or
continuation of any of the foregoing under applicable securities laws.
(b) The Company approve the form of and authorize the Purchaser to
prepare, use and distribute the Official Statement in the final form in
connection with the placement and sale of the Bonds. The Company will cause
at least 10 copies of the Official Statement in such final form to be
executed as soon as possible by authorized representatives.
(d) The Company shall provide to the Purchaser, on the date hereof
sufficient copies of the Official Statement to enable the Purchaser to
comply with the requirements of SEC Rule 15c2-12(b)(4), Rule G-32 of the
Municipal Securities Rulemaking Board and with other applicable legal
requirements.
(e) No amendment or supplement to the Official Statement shall be made
without the written approval of the Purchaser which approval shall not be
unreasonably withheld. If during the period from the date of this Purchase
Agreement to and including the date which is 90 days following the End of
the Underwriting Period for the Bonds (as such term is hereinafter defined)
an event occurs affecting the Company of which the Company has knowledge
and which might or would cause the Official Statement to contain any untrue
statement of a material fact or omit to state a material fact necessary to
be stated therein for the purpose for which it is to be used or to make the
statements therein, in the light of the circumstances under which they were
made, not misleading in any material respect, the Company will notify the
Purchaser and the Issuer, and if in the opinion of the Purchaser such event
requires an amendment or supplement to the Official Statement, the Company
will amend or supplement the Official Statement in a form and in a manner
approved by the Purchaser and the Issuer and furnish to the Purchaser and
the Issuer (i) a reasonable number of copies of the amendment or supplement
and (ii) if such notification shall be subsequent to the date of the
Closing, such legal opinions, certificates, instruments and other documents
as the Purchaser may reasonably deem necessary to evidence the truth and
accuracy of such amendment or supplement. The cost of providing any
amendment or supplement during the .period prior to and including the date
which is 90 days following the End of the Underwriting Period for the Bonds
shall be paid by the Company.
(f) As used herein, "End of the Underwriting Period " for the Bonds
shall mean the date on which the End of the Underwriting Period for the
Bonds has occurred under SEC Rule 15c2-12; provided, however, that the
Purchaser shall be entitled to treat the Closing Date as the "End of the
Underwriting Period" for the Bonds.
9. By 12:00 P.M., Central Daylight Savings Time, on August 19, 2004 (the
"Closing Date"), the certificates, opinions, commitments and other documents
required by Section 10 hereof shall be executed and delivered and payment of
such fees as are called for herein shall be made (such execution, delivery and
payment, together, being referred to as the "Closing"). The Closing shall take
place at the office of Bond Counsel, or such other location as may be agreed
upon by the Issuer, the Company and the Purchaser.
At least two (2) business days prior to the Closing Date, the Issuer will
deliver the Bonds to the Purchaser in definitive form duly executed (or, at the
option of the Purchaser, in book entry form under the book entry system
maintained by The Depository Trust Company), together with the other documents
herein mentioned, and the Purchaser will accept such delivery and facilitate the
payment of the purchase price of the Bonds in federal funds.
10. The obligations of the Purchaser hereunder shall be subject to the
performance by the Issuer and the Company of their respective obligations to be
performed hereunder at and prior to the Closing, to the accuracy in all material
respects, in the reasonable judgment of the Purchaser, of the representations
and warranties of the Issuer and the Company herein as of the date hereof and as
of the Closing and, in the reasonable discretion of the Purchaser, to the
following conditions, including the delivery by the Issuer and the Company, as
the case may be, of the Closing Documents (hereinafter defined) enumerated
herein, in each case in form and substance reasonably satisfactory to the
Purchaser's counsel, as of the Closing:
(a) At the time of the Closing, (i) this Purchase Agreement, the
Official Statement, the Indenture, the Loan Agreement, the Remarketing
Agreement, the Tax Agreement, the Reimbursement Agreement and the Letter of
Credit shall be in full force and effect in the form heretofore approved by
the Issuer, the Company, the Bank and the Trustee, as the case may be, and
none of the foregoing documents shall have been amended, repealed, modified
or supplemented from the forms thereof as of the date hereof or as may have
been approved in writing by the Purchaser and (ii) the Issuer and the
Company shall have duly adopted and there shall be in full force and effect
such resolutions as, in the opinion of Bond Counsel and the Purchaser's
counsel, are necessary and appropriate in connection with the transactions
contemplated hereby and by the Official Statement.
(b) At or prior to the Closing, the Issuer shall have duly executed
and delivered, and the Trustee shall have authenticated, the Bonds, and at
the time of the Closing the proceeds derived from the sale of the Bonds
shall be deposited and applied for the purposes described in the Official
Statement and as provided in the Indenture.
(c) At or prior to the Closing, the Purchaser shall have received the
following documents (the "Closing Documents"):
(i) the unqualified approving opinion of Bond Counsel, dated the
Closing Date and addressed to the Trustee in form and substance
satisfactory to the Purchaser;
(ii) the supplemental opinion of Bond Counsel, dated the Closing
Date and addressed to the Purchaser in form and substance satisfactory
to the Purchaser;
(iii) the opinion of Issuer's counsel dated the Closing Date and
addressed to the Issuer, the Trustee, the Purchaser, the Company and
Bond Counsel, in substantially the form and substance satisfactory to
each of them;
(iv) the opinion of counsel to the Company, dated the Closing
Date and addressed to the Issuer, the Trustee, the Purchaser, the
Bank, Bond Counsel and the Company, in substantially the form and
substance satisfactory to each of them;
(v) the opinion of counsel to the Bank, dated the Closing Date,
and addressed to the Issuer, the Company, the Trustee, Bond Counsel
and the Purchaser, in form and substance reasonably satisfactory to
the Purchaser;
(vi) a certificate, dated the Closing Date, of the Issuer
executed on its behalf by an authorized officer thereof to the effect
that (A) the representations and warranties of the Issuer contained
herein are true and correct in all respects on and as of the Closing
Date with the same effect as if made on the Closing Date, (B) the
Issuer has complied with all agreements and conditions of this
Purchase Agreement to be performed or satisfied by the Issuer at prior
to the Closing Date and (C) no event affecting the Issuer has occurred
since the date of the Official Statement (as amended or supplemented
to date) which should be disclosed in the Official Statement for the
purposes for which it is to be used or which it is necessary to
disclose therein in order to make the statements and information
therein not misleading in any material respect;
(vii) a certificate, dated the Closing Date, of the Company
executed on its behalf by an authorized representative thereof to the
effect that (A) the representations and warranties of the Company
contained herein are true and correct in all respects on and as of
Closing Date with the same effect as if made on the Closing Date, (B)
the Company has complied with all agreements and conditions of this
Purchase Agreement to be performed or satisfied by the Company at or
prior to the Closing Date and (C) no event affecting the Company has
occurred since the date of the Official Statement (as amended or
supplemented to date) which should be disclosed in the Official
Statement for the purposes for which it is to be used or which it is
necessary to disclose therein in order to make the statements and
information therein not misleading in any material respect;
(viii) copies of the Official Statement, in such quantity as
reasonably determined by the Purchaser, duly executed by or on behalf
of the Company;
(ix) a copy of all resolutions duly adopted by the Company
authorizing or approving the execution and delivery of the documents
required to be executed and delivered by the Company or approving, as
necessary, the forms of the Indenture and the Bonds, certified by an
authorized representative of the Company;
(x) copies of the certificates of incorporation of the Company
certified by the Delaware Secretary of State as of a date within seven
business days of the Closing Date;
(xi) a good standing certificate for the Company issued by the
Illinois Secretary of State dated within seven business days of the
Closing Date;
(xii) evidence that Standard & Poor's, Ratings Services, a
Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., has issued a rating for
the Bonds that is not lower than A+/A-1 and that such rating is in
effect at the Closing Date and is not then being reviewed;
(xiii) a certificate of the Trustee, in form and substance
satisfactory to the Purchaser, the Company and the Issuer, to the
effect that all moneys and securities delivered to the Trustee under
and pursuant to the Indenture have been duly deposited to the credit
of the appropriate funds established under or in accordance with the
Indenture or otherwise applied as provided in the Indenture and that
the Trustee has no knowledge of any default under the Indenture;
(xiv) copies of all closing documents (not otherwise specified
for delivery hereunder) identified for delivery in the most recent
closing list for the Closing provided by Bond Counsel, duly executed,
if applicable, by the respective parties thereto; and
(xv) such additional legal opinions, certificates, proceedings,
instruments and other documents as counsel to the Purchaser, Bond
Counsel and the Issuer may reasonably request to evidence compliance
by the Issuer and the Company with legal requirements, the truth and
accuracy, as of the time of the Closing, of the respective
representations and warranties of the Company and the Issuer herein
and the due performance or satisfaction by the Issuer and the Company
at or prior to such time of all agreements then to be performed and
all conditions then to be satisfied by the Issuer and the Company or
as otherwise may be deemed necessary by such counsel in connection
with the issuance of the Bonds.
(d) If the Issuer or the Company shall be unable to satisfy the
conditions to the obligations of the Purchaser contained in this Purchase
Agreement, or if the obligations of the Purchaser hereunder may be
terminated for any reason permitted by this Purchase Agreement, then this
Purchase Agreement may be terminated by the Purchaser and if so terminated
neither the Purchaser nor the Company or the Issuer shall be under any
obligations hereunder; provided, however, that the respective obligations
to pay expenses, as provided in Section 13 hereof and the respective
indemnification obligations contained in Sections 6 and 7 hereof shall
continue in full force and effect.
11. After the Closing (a) neither the Issuer nor the Company will not adopt
any amendment of or supplement to the Official Statement to which the Purchaser
shall object in writing or which shall be disapproved by counsel for the
Purchaser and (b) if any event relating to or affecting the Issuer and the
Company shall occur as a result of which it is necessary, in the opinion of
counsel to the Purchaser, to amend or supplement the Official Statement in order
to make the Official Statement not misleading in light of the circumstances
existing at the time it is delivered to the initial purchasers of the Bonds, the
Company will forthwith prepare and furnish to the Purchaser a reasonable number
of copies of an amendment of or supplement to the Official Statement (in form
and substance satisfactory to counsel for the Purchaser and at the Company'
expense) which will amend or supplement the Official Statement so that it will
not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at the time the supplement to the Official Statement is
delivered to the initial purchasers of the Bonds, not misleading. For purposes
of this Section, the Issuer and the Company will each furnish such information
with respect to themselves as the Purchaser may from time to time request.
12. The Purchaser shall have the right to cancel its obligations to place
the Bonds if between the date hereof and the Closing Date:
(a) legislation shall be enacted, or actively considered for
enactment, by the Congress or recommended by the President of the United
States to the Congress for passage, or favorably reported for passage to
either house of the Congress by any committee of such house to which such
legislation has been referred for consideration, a decision by a court of
the United States or the United States Tax Court shall be rendered, or a
ruling, regulation or official statement by or on behalf of the Treasury
Department of the United States, the Internal Revenue Service or other
agency or department of the United States shall be made or proposed to be
made which has the purpose or effect, directly or indirectly, of imposing
federal income taxes upon revenues or other income to be derived by the
Issuer under the Loan Agreement, or upon interest on the Bonds;
(b) any other action or event shall have transpired which has the
purpose or effect, directly or indirectly, of materially and adversely
affecting the federal income tax consequences of any of the transactions
contemplated hereby or by the Official Statement, or, in the reasonable
opinion of the Purchaser, such action or event pertaining to the federal
income tax consequences referenced above materially and adversely affects
the market for the Bonds or the sale, at the contemplated offering price by
the Purchaser, of the Bonds;
(c) legislation shall be enacted, or actively considered for enactment
by the Congress, with an effective date on or prior to the Closing Date, or
a decision by a court of the United States shall be rendered, or a ruling
or regulation by the Securities and Exchange Commission or other
governmental agency having jurisdiction over the subject matter shall be
made, the effect of which is that (i) the Bonds are not exempt from the
registration, qualification or other requirements of the Securities Act of
1933, as amended and as then in effect, or the Securities Exchange Act of
1934, as amended and as then in effect, or (ii) the Indenture is not exempt
from the registration, qualification or other requirements of the Trust
Indenture Act of 1939, as amended and as then in effect;
(d) a stop order, ruling or regulation by the Securities and Exchange
Commission shall be issued or adopted, the effect of which is that the
issuance, offering or sale of the Bonds, as contemplated hereby or by the
Official Statement, is in violation of any provision of the Securities Act
of 1933, as amended and as then in effect, the Securities Exchange Act of
1934, as amended and as then in effect, or the Trust Indenture Act of 1939,
as amended and as then in effect;
(e) there shall occur any outbreak of hostilities or any national or
international calamity or crisis or a financial crisis the effect of which
on the financial markets of the United States is such as, in the reasonable
judgment of the Purchaser, would materially and adversely affect the market
for the Bonds or the sale, at the contemplated offering price by the
Purchaser, of the Bonds;
(f) a general suspension of trading on the New York Stock Exchange is
in force, the effect of which on the financial markets of the United States
in the reasonable judgment of the Purchaser, as such as would materially
and adversely affect the market for the Bonds or the sale, at the
contemplated offering price, by the Purchaser, of the Bonds;
(g) a general banking moratorium is declared by federal or state
(including specifically Illinois and New York) authorities, the effect of
which on the financial markets of the United States in the reasonable
judgment of the Purchaser, as such as would materially adversely affect the
market for the Bonds or the sale, at the contemplated offering price by the
Purchaser, of the Bonds;
(h) there occurs any material adverse change in the affairs,
operations or financial condition of the Company except as set forth in or
contemplated by the Official Statement;
(i) the Official Statement is not executed, approved and delivered as
provided herein;
(j) any rating of the Bonds by a national rating agency shall be
withdrawn or downgraded;
(k) in the reasonable judgment of the Purchaser, the market price of
the Bonds, or the market price generally of obligations of the general
character of the Bonds, might be adversely affected because (i) additional
material restrictions not in force as of the date hereof shall have been
imposed upon trading in securities generally by any governmental authority
or by any national securities exchange, or (ii) the New York Stock Exchange
or other national securities exchange, or any governmental authority, shall
impose, as to the Bonds or similar obligations, any material restrictions
not now in force, or increase materially those now in force, with respect
to the extension of credit by, or the charge to the net capital
requirements of the Purchaser; or
(l) other than disclosed in the Official Statement, any litigation
shall be instituted, pending or threatened to restrain or enjoin the
issuance, sale or delivery of the Bonds or in any way protesting or
affecting any authority for or the validity of the Bonds, the Indenture,
the Agreement, the Remarketing Agreement, the Letter of Credit or the
existence or powers of the Issuer or the Company.
13. Whether or not the transactions contemplated by this Purchase Agreement
are consummated, all expenses and costs of the Issuer incident to the
performance of its obligations in connection with the authorization, issuance
and delivery of the Bonds to the Purchaser, shall be paid by the Company.
14. Any notice or other communication to be given under this Purchase
Agreement shall be given by mail or courier delivery or by facsimile
transmission as follows:
If to the Company: CFC International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy in each
case to: Holland & Knight LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Issuer: Illinois Finance Authority
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Underwriter: LaSalle Capital Markets, A Division of
ABN AMRO Financial Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Public Finance Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices or communications hereunder by any party shall be given and
served upon each other party.
15. The approval of the Purchaser when required hereunder or the
determination of satisfaction as to any document referred to herein shall be in
writing signed by the Purchaser and delivered to the party requesting such
approval or determination of satisfaction.
16. This Purchase Agreement is made solely for the benefit of the Issuer,
the Company and the Purchaser and no other person shall acquire or have any
rights hereunder or by virtue hereof except as otherwise provided in Sections 6
and 7 hereof. All representations, warranties and agreements of authority in
this Purchase Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Purchaser and shall
survive the delivery of and payment for the Bonds. The covenants and the
agreements of each of the respective parties hereto shall survive the delivery
of and payment for the Bonds and shall remain in full force and effect
thereafter.
17. This Purchase Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, and such counterparts shall together constitute but one and the same
instrument.
18. This Purchase Agreement shall be governed exclusively by and construed
in accordance with the internal laws of the State of Illinois applicable to
contracts to be wholly performed therein.
Very truly yours,
LASALLE CAPITAL MARKETS,
A DIVISION OF ABN AMRO FINANCIAL
SERVICES, INC.
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Accepted:
ILLINOIS FINANCE AUTHORITY
By:
----------------------------------------
____________________, Executive Director
CFC INTERNATIONAL, INC.
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
