Exhibit 10.41
BUILDING LOAN AGREEMENT
THIS BUILDING LOAN AGREEMENT (this "Agreement") is made and entered
into as of the 1st day of October, 1997, by and among KEYBANK NATIONAL
ASSOCIATION, a national banking association with an office for the transaction
of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Bank"), XXXXXXXX ADHESIVES, INC., a Virginia corporation with an
office for the transaction of business at 0000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx, 00000 (the "Company") and the COUNTY OF SARATOGA INDUSTRIAL
DEVELOPMENT AGENCY, a New York public benefit corporation with an office for the
transaction of business at Saratoga County Municipal Center, 00 XxXxxxxx Xxxxxx,
Xxxxxxxx Xxx, Xxx Xxxx 00000 (the "Issuer").
W I T N E S S E T H:
WHEREAS, the Issuer intends to issue its Multi-Mode Variable Rate
Industrial Development Revenue Bonds (Xxxxxxxx Adhesives, Inc. Project) Series
1997 A in the aggregate principal amount of $6,000,000 (the "Bonds"); and
WHEREAS, the Bonds are to be issued pursuant to that certain Trust
Indenture, dated as of October 1, 1997 (the "Indenture"), between the Issuer and
Star Bank, N.A. (the "Trustee"); and
WHEREAS, as security for the Bonds, the Bank is about to issue its
irrevocable direct pay letter of credit (the "Letter of Credit") in favor of the
Trustee; and
WHEREAS, with regard to the Letter of Credit, the Bank and the Company
have or are about to enter into the Letter of Credit Reimbursement Agreement
dated as of October 1, 1997 (the "Reimbursement Agreement"); and
WHEREAS, the Issuer, the Bank, the Trustee and the Company have agreed
that draws are to be advanced to the Company by the Trustee in accordance with
the provisions of this Agreement and the provisions of the Indenture.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Bank agrees to make and the Company agrees to accept,
on its own behalf and on behalf of the Issuer, the loan representing the
indebtedness, as more particularly set forth in the Reimbursement Agreement,
including the draws made on the Bank under the Letter of Credit to cover
disbursements for construction of the Project Facility in accordance with and
subject to the terms and conditions hereinafter set forth.
ARTICLE 1
TERMS AND DEFINITIONS
In addition to the terms defined in the Indenture and the Reimbursement
Agreement, the following terms shall have the meanings set forth in this
Article. References to documents and other materials shall include those
documents and materials as they may be revised, amended and modified, from time
to time, with the prior written approval of Bank. Capitalized terms not
otherwise defined shall have the meanings set forth in the Indenture.
1.1 Advance. "Advance" means the proceeds of the Term Loan and any
disbursement by the Trustee of Bond proceeds in accordance with the provisions
of this Agreement and Section 407 of the Indenture, upon presentation of a
requisition from the Company.
1.2 Approval. "Approval", "Approved", "approval" or "approved"
means, as the context so determines, an approval by the Bank of a Request for
Disbursement given after full and fair disclosure to the approving parties of
all material facts necessary in order to determine whether approval should be
granted.
1.3 Completion Date. "Completion Date" means May 30, 1998, as such
date may be extended in the sole discretion of the Bank.
1.4 Commitment. "Commitment" means the commitment letter to issue
the Letter of Credit issued by Bank to Company dated May 1, 1997, and accepted
by Company on ________________, 1997.
1.5 Construction Budget. "Construction Budget" means the budget for
total estimated Costs of Project Facility, submitted by Company, approved by
Bank, and attached hereto as Exhibit A.
1.6 Construction Contract. "Construction Contract" means the
contract, dated September 30, 1997, between Company and Contractor and providing
for the construction of the Facility on the Land.
1.7 Construction Inspector. "Construction Inspector" means C.T. Male
Associates, P.C. or at Bank's option either an officer or employee of Bank or
consulting architects, engineers or inspectors appointed by Bank.
1.8 Contingency Reserve. "Contingency Reserve" means the amount(s)
allocated as contingency reserve(s) in the Construction Budget to be disbursed
upon approval of the Bank.
1.9 Contractor. "Contractor" means D.B. Western, Inc., whose address
is 0000 Xxxxxxx Xxxx, Xxxxx Xxxx, Xxxxxx 00000.
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1.10 Costs of Improvement. "Costs of Improvement" means those items
defined as such under Section 2(5) of the Lien Law.
1.11 Request for Disbursement. "Request for Disbursement" means, with
respect to each Advance, Company's request for such Advance, and documents
required by this Agreement and the Indenture to be furnished to Bank as a
condition to such Advance.
1.12 Event of Default. "Event of Default" means any condition or
event described herein as such.
1.13 Governmental Approvals. "Governmental Approvals" means all
approvals, consents, waivers, orders, acknowledgements, authorizations, permits
and licenses required under applicable Requirements to be obtained from any
Governmental Authority for the construction of the Facility and the use,
occupancy and operation of the Project Facility following completion of
construction of the Facility.
1.14 Governmental Authority. "Governmental Authority" means the
United States of America, the state(s) in which the Land is located and Company
and Guarantor are located or organized, any political subdivision thereof,
municipalities in which the Land is located, and any agency, authority,
department, commission, board, bureau, or instrumentality of any of them.
1.15 Guarantor. "Guarantor" means Xxxxxxxx Industries, Inc., a
Virginia corporation with a business address of 000 Xxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
1.16 Indirect Costs. "Indirect Costs" mean and include title
insurance premiums, survey charges, engineering fees, architectural fees, real
estate taxes during the period of construction, commitment fees and interest
payable to Bank under the Loan, premiums for insurance, legal fees and all other
expenses which are, in accordance with sound accounting practices, capital
expenditures relating to the Project Facility.
1.17 Land. "Land" means the real property described in Exhibit B
attached hereto.
1.18 Lien Law. "Lien Law" means the Lien Law of the State of New
York.
1.19 Loan. "Loan" means, collectively, (i) the credit facility
extended by the Bank to the Company in connection with the Project Facility as
evidenced by the Letter of Credit and the Reimbursement Agreement and (ii) the
Term Loan.
1.20 Loan Amount. "Loan Amount" means the amount outstanding on the
Bonds and the indebtedness of the Loan owing by the Company under the
Reimbursement Agreement and the Term Loan.
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1.21 Operating Lease. "Operating Lease" shall mean the lease
agreement between the Company and the Contractor dated September 30, 1997.
1.22 Payment and Performance Bonds. "Payment and Performance Bonds"
mean dual-obligee payment and performance bonds relating to the Contractor as
Bank may require from time to time, issued by a surety company or companies
acceptable to Bank, in each case in an amount not less than the full contract
price.
1.23 Permitted Liens. "Permitted Liens" shall have the meaning
ascribed to it in the Reimbursement Agreement.
1.24 Plans and Specifications. "Plans and Specifications" means the
plans and specifications for the Facility approved by the Bank.
1.25 Project Facility. "Project Facility" shall mean and include all
costs that will be incurred by Company in connection with the acquisition of the
Land, the construction of the Facility, the equipping of the Facility with the
Equipment, and the operation and carrying of the Project Facility through the
expiration date of the Letter of Credit, including without limitation all
Indirect Costs.
1.26 Requirements. "Requirements" means any law, ordinance, order,
rule or regulation of any Governmental Authority relating in any way to the
Project Facility, Company or Guarantor.
1.27 Term Loan. "Term Loan" shall mean the $1,500,000 loan to be made
by the Bank to the Company to assist in the financing of the Project.
1.28 Termination Date. "Termination Date" means the earlier of the
Completion Date or such other date as may be set forth herein which fixes the
termination of Bank's obligations to make Advances.
ARTICLE 2
FINANCING DOCUMENTS
The Financing Documents (as defined in the Indenture) have been duly
authorized, executed and delivered to each of the parties thereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants to Bank as follows:
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3.1 Validity of Financing Documents. That the Financing Documents to
which it is a party are in all respects valid and legally binding obligations,
enforceable in accordance with their respective terms.
3.2 Title to Project Facility. That the Issuer has good clear record
and marketable fee simple absolute title to the Land, subject to no liens,
security interests, charges or encumbrances in favor of any person other than
the Trustee, the Bank or the Contractor.
3.3 Absence of Conflicts. That the execution and delivery of the
Financing Documents by Company and the Guarantor do not, and the performance and
observance by Company and the Guarantor of their obligations thereunder will
not, contravene or result in a breach of (a) any provision of Company's or the
Guarantor's corporate charter or by-laws, or (b) any Requirements, or (c) any
decree or judgement binding on Company or the Guarantor, or (d) except for the
Loan and Security Agreement dated as of July 1, 1996 by and between the Company
and National Bank of Canada, any agreement or instrument binding on Company or
the Guarantor or any of their respective properties, nor will the same result in
the creation of any lien or security interest under any such agreement or
instrument.
3.4 Pending Litigation. That there are no actions, suits,
investigations or proceedings pending, or, to the knowledge of Company,
threatened against or affecting Company, the Guarantor or the Project Facility,
or involving the validity or enforceability of any of the Financing Documents or
the priority of the lien thereof, or which will affect Company's ability to
repay the Loan, at law or in equity or before or by any Governmental Authority.
3.5 Violations of Requirements. That Company has no knowledge of any
violations or notices of violations of any Requirements.
3.6 Compliance with Requirements. That the Plans and Specifications
and construction of the Project Facility pursuant thereto and the use of the
Project Facility contemplated thereby will comply with all Requirements.
3.7 Organization, Status and Authority. (a) The Company (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the state in which it is incorporated, (ii) is duly qualified to do business
and is in good standing in the State of New York, (iii) has the corporate power,
authority and legal right to own and operate its properties and assets, carry on
the business now being conducted and proposed to be conducted by it, and to
engage in the transactions contemplated by the Financing Documents, and (iv) the
execution and delivery of the Financing Documents to which it is a party and the
performance and observance of the provisions thereof have been duly authorized
by all necessary corporate actions.
3.8 Availability of Utilities. That all utility services necessary
and sufficient for the construction, development and operation of the Project
Facility for its intended purposes are
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presently available to the boundaries of the Land through dedicated public
rights of way or through perpetual private easements, approved by Bank, with
respect to which the Mortgage creates a valid, binding and enforceable first
lien, including, but not limited to, water supply, storm and sanitary sewer,
gas, electric and telephone facilities, and drainage.
3.9 Condition of Project Facility. That neither the Project Facility
nor any portion thereof is now damaged or injured as result of any fire,
explosion, accident, flood or other casualty or has been the subject of any
Condemnation, and to the knowledge of Company, no Condemnation is pending or
contemplated.
3.10 Brokerage Commissions. That any brokerage commissions due in
connection with the transactions contemplated hereby have been paid in full and
that any such commissions coming due in the future will be promptly paid by
Company. Company agrees to and shall indemnify Bank from any liability, claims
or losses arising by reason of any such brokerage commissions. This provision
shall survive the repayment of the Loan and shall continue in full force and
effect so long as the possibility of such liability, claims or losses exists.
3.11 Financial Statements. That the financial statements of Company
and the Guarantor previously delivered to Bank are true and correct in all
respects, have been prepared in accordance with generally accepted accounting
principles consistently applied, and fairly present the respective financial
conditions of the Company and the Guarantor as of the respective dates thereof
and the results of their operations for the periods covered thereby; that no
adverse change has occurred in the assets, liabilities, or financial conditions
reflected therein since the respective dates thereof; and that no additional
borrowings have been made by Company or the Guarantor since the date thereof
other than the borrowing contemplated hereby or previously consented to in
writing by the Bank.
3.12 Taxes. That all federal, state and other tax returns of Company
and the Guarantor required by law to be filed have been filed, that all federal,
state and other taxes, assessments and other governmental charges upon Company
and the Guarantor or their respective properties which are due and payable have
been paid, and that Company and the Guarantor have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods for which such returns have been filed.
3.13 Other Contracts. Except for the Financing Documents, the
Construction Contract and the Operating Lease, Company has made no contract or
arrangement of any kind or type whatsoever (whether oral or written, formal or
informal), the performance of which by the other party thereto could give rise
to a lien or encumbrance on the Project Facility, except for contracts (all of
which have been disclosed in writing to Bank) made by Company with parties who
have executed and delivered lien waivers to Company, and which, in the opinion
of Bank's counsel, will not create rights in existing or future lien claimants
which may be superior to the lien of the Mortgage.
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3.14 Construction Contract. That (i) the Construction Contract is in
full force and effect; (ii) both Company and Contractor are in full compliance
with their respective obligations under the Construction Contract; (iii) the
work to be performed by Contractor under the Construction Contract is the work
called for by the Plans and Specifications and all work required to complete the
Project Facility in accordance with the Plans and Specifications is provided for
under the Construction Contract; and (iv) all work on the Project Facility shall
be completed in accordance with the Plans and Specifications in a good and
workmanlike manner and shall be free of any defects for which the Company is not
compensated in accordance with the terms of the Construction Contract.
3.15 Access. That the rights of way for all roads necessary for the
full utilization of the Project Facility for its intended purposes have either
been acquired by the Company, the appropriate Governmental Authority or have
been dedicated to public use and accepted by such Governmental Authority, and
all such roads shall have been completed, or all necessary steps shall have been
taken by Company and such Governmental Authority to assure the complete
construction and installation thereof prior to the date upon which access to the
Project Facility via such roads will be necessary. All curb cuts, driveway
permits and traffic signals shown on the Plans and Specifications or otherwise
necessary for access to the Project Facility are existing or have been fully
approved by the appropriate Governmental Authority.
3.16 No Default. That no Event of Default exists and no event which
but for the passage of time, the giving of notice or both would constitute an
Event of Default has occurred.
3.17 Plans and Specifications. That Company has furnished Bank true
and complete sets of the Plans and Specifications which comply with all
Requirements, all Governmental Approvals, and all restrictions, covenants and
easements affecting the Project Facility, and which have been approved by the
Contractor, Company's Architect, and such Governmental Authority as is required
for construction of the Project Facility.
3.18 Governmental Approvals. That Company has obtained all
Governmental Approvals from, and has given all such notices to, and has taken
all such other actions with respect to such Governmental Authority as may be
required under applicable Requirements for the construction of the Facility.
3.19 Construction Budget. That the Construction Budget accurately
reflects all costs of construction of the Project Facility.
3.20 Effect of Request for Disbursement. That each Request for
Disbursement submitted as provided in Article 6 hereof and pursuant to the
Indenture shall constitute an affirmation that the representations and
warranties contained in Article 3 of this Agreement and in the other Financing
Documents remain true and correct as of the date thereof; and unless the Bank is
notified to the contrary, in writing, prior to the disbursement of the requested
Advance or any portion thereof, shall constitute an affirmation to the Bank and
the Trustee that the same remain true and correct on the date of such
disbursement.
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3.21 The Company is Agent; Disbursement of Funds. That the Issuer, in
compliance with and subject to the terms of the Installment Sale Agreement, has
appointed the Company its true and lawful agent, and the Company has accepted
such agency for the purpose, among other things, of causing the Facility to be
constructed and equipped in accordance with the terms and conditions of this
Agreement. The Issuer has authorized the Trustee, with the consent of the Bank,
to disburse all monies, as provided for in this Agreement, the Indenture and the
Installment Sale Agreement directly to the Company in accordance with this
Agreement.
ARTICLE 4
COVENANTS OF COMPANY
The Company hereby covenants and agrees with Bank as follows:
4.1 Construction Contract. (i) To permit no default under the terms
of the Construction Contract, (ii) to waive none of the obligations of
Contractor thereunder, (iii) to do no act which would relieve Contractor from
its obligations to construct the Facility according to the Plans and
Specifications, and (iv) to make no amendments to or change orders under the
Construction Contract without the prior approval of Bank.
4.2 Insurance. To obtain insurance or evidence of insurance as
required by the Financing Documents.
4.3 Application of Loan Proceeds. To use the proceeds of the Bonds
solely for the purpose of paying for the cost of the acquisition, construction
and equipping of the Project Facility in accordance with the terms of this
Agreement and the Indenture.
4.4 Project Facility Costs and Expenses. To pay all Project Facility
Costs, regardless of the amount, and to pay all costs and expenses of Bank with
respect to the financing, acquisition and construction of the Project Facility,
including but not limited to, appraisal fees, inspection fees, surveying costs,
legal fees(including legal fees incurred by Bank subsequent to the closing of
the Loan in connection with the disbursement, administration, collection or
transfer of the Loan), advances, recording expenses, surveys, intangible taxes,
expenses of foreclosure (including attorney's fees) and similar items.
4.5 Commencement and Completion of Construction. To commence
construction of the Facility and the acquisition and installation of the
Equipment within thirty (30) days after the date hereof and to diligently pursue
construction to completion prior to the Completion Date in accordance with the
Plans and Specifications, in full compliance with all restrictions, covenants
and easements affecting the Project Facility, all Requirements, and all
Governmental Approvals, and with all terms and conditions of the Financing
Documents without deviation from the Plans and Specifications unless with the
prior approval of Bank and the surety company or companies issuing any Payment
and Performance Bond; to pay all sums and to perform such
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duties as may be necessary to complete such construction of the Facility and the
acquisition and installation of the Equipment in accordance with the Plans and
Specifications and in full compliance with all restrictions, covenants and
easements affecting the Project Facility, all Requirements and all Governmental
Approvals, and with all terms and conditions of the Financing Documents, all of
which shall be accomplished on or before the Completion Date, free from any
liens, claims or assessments (actual or contingent) asserted against the Project
Facility for any material, labor or other items furnished in connection
therewith. Evidence of satisfactory compliance with the foregoing shall be
furnished by Company to Bank on or before the Completion Date.
4.6 Right of Bank to Inspect Project Facility. To permit Bank and
its representatives and agents to enter upon the Project Facility and to inspect
the Project Facility and all materials to be used in the construction thereof
and to cooperate and cause Contractor to cooperate with Bank and its
representatives and agents during such inspections (including making available
to Bank working copies of the Plans and Specifications together with all related
supplementary materials); provided, however, that this provision shall not be
deemed to impose upon Bank any obligation to undertake such inspections.
4.7 Correction of Defects. Unless Company demonstrates to Bank that
such corrective work is inappropriate or inconsistent with the Plans and
Specifications, to promptly correct all defects in the Facility or any departure
from the Plans and Specifications not previously approved by Bank. Company
agrees that any Advance, whether before or after such defects or departures from
the Plans and Specifications are discovered by, or brought to the attention, of
Bank, shall not constitute a waiver of Bank's right to require compliance with
this covenant.
4.8 Sign Regarding Construction Financing. At Bank's option, to
erect promptly and maintain on a suitable site on the Land a sign indicating
that construction financing is being provided by Bank, all to the satisfaction
of Bank; and to prevent the destruction or removal of said sign without the
prior approval of Bank.
4.9 Approval of Change Orders. To permit no material deviations from
the Plans and Specifications during construction without the prior approval of
Bank and the surety company or companies issuing any Payment and Performance
Bonds.
4.10 Notice of Occupancy. To notify Bank at least ten (10) days prior
to, and again on, the date of occupancy of any portion of the Project Facility.
4.11 Books and Records. To keep and maintain complete proper and
accurate books, records and accounts reflecting all items of income and expense
of Company in connection with the Project Facility and the construction of the
Facility, the acquisition and installation of the Equipment and the results of
the operation thereof; and, upon the request of Bank, to make such books,
records and accounts immediately available to Bank for inspection or independent
audit.
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4.12 Financial Statements and Other Information. To furnish to Bank
such financial statements and information as Company has agreed to provide
elsewhere in the Financing Documents.
4.13 Construction Inspector. To permit Bank to retain the
Construction Inspector (the "Construction Inspector") at the cost of Company to
perform the following services on behalf of Bank:
(a) To review and advise Bank whether, in the opinion of the
Construction Inspector, the Plans and Specifications are satisfactory;
(b) To review Requests for Disbursements and change orders;
(c) To make periodic inspections (approximately at the date
of each Request for Disbursement) for the purpose of assuring that
construction of the Facility to date is in accordance with the Plans
and Specifications and to approve Company's then current Request for
Disbursement as being consistent with Company's obligations under this
Agreement and the Indenture, including inter alia, an opinion as to
Company's continued compliance with the provisions of Section 6.1 (f)
(4) hereof.
The fees of the Construction Inspector shall be paid by Company
forthwith upon billing therefor and expenses incurred by Bank on account thereof
shall be reimbursed to Bank forthwith upon request therefor, but neither Bank
nor the Construction Inspector shall have any liability to Company on account of
(i) the services performed by the Construction Inspector, (ii) any neglect or
failure on the part of the Construction Inspector to properly perform its
services, or (iii) any approval by the Construction Inspector of construction of
the Facility. Neither Bank nor the Construction Inspector assumes any obligation
to Company or any other person concerning the quality of construction of the
Facility or the absence therefrom of defects.
4.14 Soil Tests. To provide promptly to Bank at Company's expense
such soil tests and environmental assessments of the Land as Bank may require
from time to time.
4.15 Payment and Performance Bonds. To furnish to Bank and maintain a
Payment and Performance Bond for the Contractor.
4.16 Insufficiency of Loan Proceeds. To deposit funds with Bank as
follows: If at any time or from time to time during the terms of this Agreement,
in Bank's judgment and opinion, the remaining undisbursed portion of the Project
Fund, together with the undisbursed balances of other sums previously deposited
by Company with Bank or the Trustee in connection with the Loan, is or will be
insufficient to fully complete the construction of the Facility and the
acquisition and installation of the Equipment therein in accordance with the
Plans and Specifications, to pay all other Project Facility Costs, to pay all
interest accrued or to accrue on the Loan during the term of the Loan from and
after the date hereof, and to pay all other sums due or to become due under the
Financing Documents, regardless of how such condition may
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be caused, Company shall, within seven (7) days after written notice thereof
from Bank, deposit with Bank such sums of money in cash as Bank may require, in
an amount sufficient to remedy such condition, and sufficient to pay any liens
for services and materials alleged to be due and payable at that time in
connection with the Project Facility, and, at Bank's option, no further Advances
shall be made by the Trustee until the provisions of this Paragraph have been
fully complied with. All such deposited sums shall stand as additional security
for Company's obligations under this Agreement and shall be disbursed by Bank in
the same manner as Advances under this Agreement before any further Advances of
the Bond proceeds shall be made. Neither the Bank nor the Trustee shall have no
obligation to pay Company any interest with respect to such deposited funds.
4.17 Additional Documents. To perform hereunder as follows:
(a) Regarding Construction. To furnish to Bank all
instruments, documents, boundary surveys, footing or foundation
surveys, certificates, plans and specifications, appraisals, title and
other insurance, reports and agreements and each and every other
document and instrument required to be furnished by, the terms of the
Commitment or this Agreement or the other Financing Documents, all at
Company's expense.
(b) Regarding Preservation of Security. To execute and
deliver to Bank such documents, instruments, assignments and other
writings, and to do such other acts necessary or desirable, to preserve
and protect the collateral at any time securing or intended to secure
the Loan, as Bank may require.
(c) Regarding this Agreement. To do and execute all and such
further lawful and reasonable acts, conveyances and assurances in the
law for the better and more effective carrying out of the intents and
purposes of this Agreement as Bank shall require from time to time.
4.18 Financing Publicity. To permit Bank to obtain publicity in
connection with the construction of the Project Facility through press releases
and participation in such events as ground breaking and opening ceremonies; and
to give Bank ample advance notice of such events and to give Bank as much
assistance as possible in connection with obtaining such publicity as Bank may
request.
4.19 Easements and Restrictions. To submit to Bank for Bank's
approval prior to the execution thereof by Company all proposed easements,
restrictions, covenants, permits, licenses, and other instruments which would or
might affect the title to the Project Facility, accompanied by a survey showing
the exact proposed location thereof and such other information as Bank shall
reasonably require. Company shall not subject the Project Facility or any part
thereof to any easement, restriction or covenant (including any restriction or
exclusive use provision in any lease or other occupancy agreement) without the
prior approval of Bank.
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4.20 Compliance with Requirements. To comply promptly with all
requirements and governmental approvals and to furnish Bank, on demand, with
independent evidence of such compliance.
4.21 Leases. To enter into no leases or occupancy agreements
affecting the Project Facility without the prior approval of Bank. Company shall
deliver to Bank executed counterparts of all leases and occupancy agreements
affecting the Project Facility whether executed before or after the date of this
Agreement, and shall not amend any provision thereof or waive any obligations of
tenants under any leases or occupancy agreements affecting the Project Facility
without the prior approval of Bank.
4.22 Compliance With Restrictions, Covenants and Easements. To comply
with all restrictions, covenants and easements affecting the Project Facility.
4.23 Laborers, Subcontractors and Materialmen. To furnish to Bank,
upon request at anytime, and from time to time, affidavits listing all laborers,
subcontractors, materialmen, and any other parties who might or could claim
statutory or common law liens and are furnishing or have furnished labor or
material to the Project Facility or any portion thereof, together with
affidavits, or other evidence satisfactory to Bank, showing that such parties
have been paid all amounts then due for labor and materials furnished to the
Project Facility. In addition, Company will notify Bank immediately, and in
writing, if Company receives any notice, written or oral, from any laborer,
subcontractor or materialmen to the effect that said laborer, subcontractor or
materialmen has not been paid when due for any labor or materials furnished in
connection with the construction of the Facility or the acquisition and
installation of the Equipment.
4.24 Further Assurance of Title. To further assure title as follows:
If at any time Bank or Bank's counsel has reason to believe that, except as
permitted by Section 5.8 hereof, any Advance is not secured or will or may not
be secured by the Indenture and/or the Mortgage as a first lien or security
interest on the Project Facility, then Company shall, within ten (10) days after
written notice from Bank, do all things and matters necessary, to assure to the
satisfaction of Bank and Bank's counsel that any Advance previously made
hereunder or to be made hereunder is secured or will be secured by the Mortgage
as a first lien or first security interest on the Project Facility, and Bank, at
its option, may decline to make further Advances hereunder until Bank has
received such assurance.
4.25 No Transfers or Encumbrances. To cause or permit no sale,
conveyance, transfer, assignment or encumbering of the Project Facility or any
interest therein without the prior approval of the Issuer, the Trustee or the
Bank.
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ARTICLE 5
AGREEMENT TO LEND
Subject to the terms and conditions set forth in this Agreement, the
Reimbursement Agreement and the Indenture, Bank agrees to consent to Advances to
Company from time to time during the period from the date hereof to the
Termination Date in an aggregate principal amount of up to and including the
Loan Amount to pay Project Facility Costs actually incurred in connection with
the acquisition of the Land, construction of the Facility and the acquisition
and installation of the Equipment in the Facility (including Indirect Costs) if
and to the extent such Project Facility Costs are reflected in the Construction
Budget as being funded by proceeds of the Bonds.
5.1 Reimbursement Agreement. The Company shall have an obligation to
pay all sums due under the Reimbursement Agreement and the other Financing
Documents.
5.2 Advances. The Construction Budget reflects, by category and line
items, the purposes and the amounts for which funds to be advanced by Bank under
this Agreement and the Indenture are to be used. Bank shall not be required to
disburse for any category or line item more than the amount specified therefor
in the Construction Budget.
5.3 Cost Overruns. If Company becomes aware of any change in the
Project Facility Costs which will increase a category or line item of the
Project Facility Costs reflected on the Construction Budget (as the Construction
Budget is revised from time to time and approved by Bank), Company shall
immediately notify Bank in writing and promptly submit to Bank for its approval
a revised Construction Budget. No further Advances need be consented to by Bank
unless and until the revised Construction Budget so submitted by Company is
approved by Bank, and Bank reserves the right to approve or disapprove any
revised Construction Budget in its sole and absolute discretion. If Bank
approves the revised Construction Budget, and such revised Construction Budget
reflects Project Facility Costs to be funded by Bank in excess of the Loan
Amount, the amount of such excess shall be funded by the Company.
5.4 Contingency Reserve. Any amount allocated as Contingency Reserve
in the Construction Budget is not intended to be disbursed and will only be
disbursed upon the prior approval of Bank, which approval can be withheld for
any reason or for no reason. The disbursement of a portion of the Contingency
Reserve shall in no way prejudice Bank from withholding disbursement of any
further portion of the Contingency Reserve.
5.5 Stored Materials. Subject to the limitations contained in
Section 5.8 hereof, Bank shall disburse funds for materials, furnishings,
fixtures, machinery or equipment not yet incorporated into Land, the Facility or
Equipment (the "Stored Materials") subject to the requirements set forth in
items (a) through (e) below. Subject to the provisions of Section 5.8 hereof,
any disbursement for the cost of Stored Materials shall be contingent upon Bank
receiving satisfactory evidence that:
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(a) The Stored Materials are components in a form ready for
incorporation into the Facility or Equipment;
(b) The Stored Materials are stored at the Land, in a bonded
warehouse, at a site controlled by Company, or at such other site as
Bank shall approve, and are protected against theft and damage;
(c) The Stored Materials have been paid for in full or will
be paid for with the funds to be disbursed and all lien rights or
claims of the supplier have been released or will be released upon
payment with disbursed funds;
(d) Bank has or will have upon payment with disbursed funds a
perfected, first priority security interest in the Stored Materials;
and
(e) The Stored Materials are insured for an amount equal to
their replacement costs.
5.6 Amount of Advances. In no event shall any Advance exceed the
full amount of Indirect Costs approved by Bank and theretofore paid or to be
paid with the proceeds of such Advance plus ninety (90%) percent of all costs
for construction of Facility and acquisition and installation of the Equipment
approved by Bank and incurred by Company through the date of the Request for
Disbursement less the aggregate amount of any Advances previously made. It is
further understood that the retainage described above is intended to provide a
contingency fund protecting Bank against failure of Company or the Guarantor to
fulfill any obligations under the Financing Documents, and that Bank may charge
amounts against such retainage in the event Bank is required or elects to expend
its own funds to cure any Event of Default. The retainage described herein will
be advanced by the Bank upon satisfaction of the conditions set forth in Section
6.3 hereof.
5.7 Quality of Work. No Advance shall be due unless all work done at
the date the Request for Disbursement for such Advance is submitted is done in a
good and workmanlike manner and without defects, as confirmed by the report of
the Construction Inspector, but the Trustee upon consent of the Bank, may
disburse all or part of any Advance before the sum shall become due if Bank
believes it advisable to do so, and all such Advances or parts thereof shall be
deemed to have been made pursuant to this Agreement.
5.8 Coordination with Construction Contract. The Bank hereby
acknowledges that certain provisions of the Construction Contract conflict with
the terms of this Building Loan Agreement. The Bank hereby agrees that, to the
extent that the terms of the Construction Contract cause a conflict with any of
the representations, warranties or covenants of the Company contained herein,
such conflict is hereby waived by the Bank and the Bank agrees that such a
conflict will not be a default or Event of Default, or ban the Company from
meeting any condition hereunder. Notwithstanding anything to the contrary
contained herein, the Bank hereby agrees to make Advances hereunder which are
not in compliance with the conditions set
14
forth in Section 5.5 and Article 6 hereof ("Unsecured Advances") to enable the
Company to make certain payments required by Article 2.1 of the Construction
Contract, provided, however, that the aggregate amount of Unsecured Advances
outstanding hereunder shall not at any time exceed $2,566,000. For purposes
hereof, if an Unsecured Advance is used to finance, in whole or in part, goods,
stored materials or Equipment, the amount of such Unsecured Advance may be
readvanced hereunder upon the delivery to the Land of such goods, stored
materials or Equipment.
ARTICLE 6
CONDITIONS PRECEDENT TO
DISBURSEMENT OF BOND PROCEEDS
6.1 Conditions of Initial Advance. The obligation of Bank to consent
to the initial Advance shall be subject to the following conditions precedent:
(a) Financing Documents. The Financing Documents, in form and
substance satisfactory to Bank and the Trustee, shall have been duly
executed and delivered by the parties thereto and shall be in full
force and effect, and Bank shall have received the original or a fully
executed counterpart thereof. All Financing Documents to be filed or
recorded in the public records shall have been so filed or recorded in
the appropriate public records.
(b) Construction Documents. The Construction Contract, in
form and substance satisfactory to Bank, shall have been duly executed
and delivered by the parties thereto, shall be in full force and
effect, and Bank shall have received a certified or a fully executed
counterpart thereof. The Contractor shall have duly executed and
delivered to Bank a consent to the assignment of the Construction
Contract, in form and substance satisfactory to Bank, and Bank shall
have received the original or a fully executed counterpart thereof.
(c) Subcontracts. Company shall have delivered to Bank, and
Bank shall have approved, a list of all subcontractors and materialmen
who have been or, to the extent identified by Company, will be
supplying labor or materials for the Project Facility, a copy of the
standard form of subcontract to be used by the Contractor, and correct
and complete photocopies of all executed subcontracts and contracts.
(d) Other Contracts. Company shall have delivered to Bank
correct and complete photocopies of all other executed contracts with
contractors, engineers or consultants for the Project Facility, and of
all development, management, brokerage, sales or leasing agreements for
the Project Facility.
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(e) Deliveries. The following items or documents shall have
been delivered to Bank:
(1) Plans and Specifications. Two complete sets of the
Plans and Specifications and approval thereof by any necessary
Governmental Authority, with a certification that the Facility
to be constructed complies with all Requirements and
Governmental Approvals and that the Construction Contract
satisfactorily provides for the construction of the Facility.
(2) Title Insurance Policy. A paid Title Insurance
Policy or report in all respects satisfactory to Bank and its
counsel.
(3) Other Insurance. Policies (or, if permitted,
certificates or other evidence of) all insurance required by
this Agreement or any other Financing Document.
(4) Evidence of Sufficiency of Funds. Evidence
satisfactory to Bank that the proceeds of the Bonds will be
sufficient to cover all Project Facility Costs reasonably
anticipated to be incurred and to satisfy the obligations of
Company to Bank under this Agreement and the Indenture.
(5) Evidence of Access, Availability of Utilities,
Governmental Approvals. Evidence satisfactory to Bank as to:
(A) the methods of access to and egress from
the Project Facility, and nearby or adjoining public
ways, meeting the reasonable requirements of property of
the type contemplated to be completed under this
Agreement and the status of completion of any required
improvements to such access;
(B) the availability of storm and sanitary
sewer facilities meeting the reasonable requirements of
the Project Facility;
(C) the availability of all other required
utilities, in location and capacity sufficient to meet
the reasonable needs of the Project Facility; and
(D) the securing of all Governmental Approvals
from the applicable Governmental Authority which are
required under applicable Requirements for the
construction of the Facility, together with copies of all
such Governmental Approvals.
(6) Environmental Report. An environmental assessment
report or reports of one or more qualified environmental
engineering or similar inspection
16
firms approved by Bank in form, scope and substance satisfactory
to Bank, which report or reports shall indicate a condition of
the Land in all respects satisfactory to Bank in its sole
discretion and upon which report or reports Bank is expressly
entitled to rely.
(7) Soil Report. A soil report for the Land prepared
by a soil engineer approved by Bank in form and substance
satisfactory to Bank, containing recommendations for the design
of foundations, paved areas and underground utilities.
(8) Survey. A survey prepared in accordance with
Bank's survey requirements, certified by a land surveyor
registered as such in the state in which the Land is located,
which survey shall be in form and substance satisfactory to
Bank.
(9) Payment and Performance Bonds. Such Payment and
Performance Bonds as may have been requested by Bank.
(10) Request for Disbursement. A Request for
Disbursement complying with the provisions of this Agreement and
the Indenture.
(f) Legal Opinions. Bank shall have received opinions in form
and substance satisfactory to Bank and Bank's counsel from counsel
satisfactory to Bank as to such matters as Bank shall reasonably
request.
(g) Certification Regarding Chattels. Bank shall have
received a certification from the Title Insurer or counsel satisfactory
to Bank (which shall be updated from time to time at Company's expense
upon request by Bank) that a search of the public records disclosed no
conditional sales contracts, chattel mortgages, leases of personalty,
financing statements or title retention agreements which affect the
Project Facility other than Permitted Liens.
(h) Notices. All notices required by any Governmental
Authority or by any applicable Requirement to be filed prior to
commencement of construction of the Facility shall have been filed.
(i) Appraisal. The Bank has received an appraisal of the
Project Facility acceptable to the Bank.
(j) Performance; No Default. Company shall have performed and
complied with all terms and conditions herein required to be performed
or complied with by it at or prior to the date of the initial Advance,
and on the date of the initial Advance, there shall exist no Default or
Event of Default.
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(k) Representations and Warranties. The representations and
warranties made by Company and the Guarantor in the Financing Documents
or otherwise made by or on behalf of Company or the Guarantor in
connection therewith or after the date thereof shall have been true and
correct in all respects on the date on which made and shall also be
true and correct in all respects on the date of the initial Advance.
(l) Other Documents. Such other documents, opinions and
certificates as Bank or its counsel may reasonably require.
(m) Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement and the other
Financing Documents shall be satisfactory to Bank and Bank's counsel in
form and substance, and Bank shall have received all information and
such counterpart originals on certified copies of such documents and
such other certificates, opinions or documents as Bank and Bank's
counsel may reasonably require.
6.2 Conditions of Subsequent Advances. The obligation of Bank to
make any Advance after the initial Advance shall be subject to the following
conditions precedent:
(a) Prior Conditions Satisfied. All conditions precedent to
the initial Advance and any prior Advance shall continue to be
satisfied as of the date of such subsequent Advance.
(b) Performance; No Default. Company shall have performed and
complied with all terms and conditions herein required to be performed
or complied with by it at or prior to the date of such advance, and on
the date of such Advance there shall exist no Default or Event of
Default.
(c) Representations and Warranties. The representations and
warranties made by Company and the Guarantor in the Financing Documents
or otherwise made by or on behalf of Company or the Guarantor in
connection therewith after the date thereof shall have been true and
correct in all respects on the date on which made and shall also be
true and correct in all respects on the date of such Advance.
(d) No Damage. The Facility and the Equipment shall not have
been injured or damaged by fire, explosion, accident, flood or other
casualty, unless Bank shall have received insurance proceeds sufficient
in the judgment of Bank to effect the satisfactory restoration of the
Facility and the Equipment and to permit the completion thereof prior
to the Completion Date.
(e) Receipt by Bank. Bank shall have received:
(1) Request for Disbursement. A Request for
Disbursement complying with the requirements hereof;
18
(2) Endorsement to Title Insurance Policy. A "run
down" endorsement to the Title Insurance Policy or report
indicating no change in the state of title and containing no
survey exceptions not approved by Bank, which endorsement shall,
expressly or by virtue of a proper "pending disbursements"
clause or endorsement in the policy, increase the coverage of
the policy to the aggregate amount of all proceeds of the Loan
advanced on or before the effective date of such endorsement;
(3) Current Survey. An updated survey if required by
the Bank;
(4) Certificates. Certificates from Company and the
Construction Inspector to the effect that in their opinion,
based upon on-site observations and submissions by the
Contractor, the construction of the Facility and installation of
the Equipment in the Facility to the date thereof was performed
in a good and workmanlike manner and in accordance with the
Plans and Specifications, stating the estimated total cost of
construction of the Facility and installation of the Equipment
in the Facility, stating the percentage of the in-place
construction of the Facility and installation of the Equipment
in the Facility and stating that the remaining non-disbursed
portion of the Bond proceeds allocated for such purpose is
adequate to complete the construction of the Project Facility;
(5) Contracts. Evidence that one hundred percent
(100%) of the cost of the remaining construction work is covered
by firm contracts or subcontracts, or orders for the supplying
of materials, with contractors, subcontractors, materialmen or
suppliers satisfactory to Bank.
(f) Other Documents. Such other documents, opinions and
certificates as Bank or its counsel may reasonably require.
6.3 Conditions of Final Advance. In addition to the conditions set
forth in Paragraph 6.2 above, Bank's obligation to advance sums retained
pursuant to this Agreement shall be subject to receipt by Bank of the following:
(a) Approval of Facility. Evidence of the approval by all
appropriate Governmental Authority of the Facility in its entirety for
permanent occupancy to the extent any such approval is or will be a
condition of lawful use and occupancy of the Project Facility, and
evidence of approval by all appropriate Governmental Authority of the
contemplated uses thereof.
(b) Approval by Construction Inspector. Notification from the
Construction Inspector to the effect that the construction of the
Facility and installation of the Equipment have been completed in a
good and workmanlike manner in accordance with the Plans and
Specifications.
19
(c) Final Survey. A final survey acceptable to Bank showing
the as-built location of the completed Project Facility.
(d) Payment of Costs. Evidence satisfactory to Bank that all
sums due in connection with the construction of the Facility and the
acquisition and installation of the Equipment therein have been paid in
full (or will be paid out of the funds requested to be advanced) and
that no party claims or has a right to claim any statutory or common
law lien arising out of the construction of the Facility, the
acquisition and installation of the Equipment or the supplying of
labor, material, and/or services in connection therewith.
ARTICLE 7
METHOD OF DISBURSEMENT OF LOAN PROCEEDS
Bank agrees to consent to Advances requisitioned of the Trustee in
accordance with the Construction Budget and subject to the following procedures:
7.1 Request for Disbursement to be Submitted. At such time as
Company shall desire an Advance, Company shall complete and execute a Request
for Disbursement for presentation to the Bank for its consent prior to delivery
to the Trustee. Each Request for Disbursement shall be accompanied by:
(a) if the Request for Disbursement includes amounts to be
paid to the Contractor under the Construction Contract, it shall be
accompanied by a completed and itemized Application and Certificate for
Payment (AIA Document No. G702) or similar form approved by Bank,
containing the certification of Contractor and the Construction
Inspector as to the accuracy of same, together with invoices relating
to all items of direct cost covered thereby. All such applications for
payment shall show all subcontractors by name and trade, the total
amount of each subcontract, the amount theretofore paid to each
subcontractor as of the date of such application, and the amount to be
paid from the proceeds of the Advance to each subcontractor;
(b) if the Request for Disbursement includes payments for
Indirect Costs, it shall be accompanied by a completed and itemized
Indirect Cost statement executed by Company, together with invoices for
all items of Indirect Costs covered thereby;
(c) subject to the provisions of Section 5.8 hereof and
except with respect to Permitted Liens, written lien waivers from the
Contractor and such laborers, subcontractors and materialmen for work
done and materials supplied by them which were paid for pursuant to any
prior Request for Disbursement;
20
(d) a written request of Company for any necessary changes in
the Plans and Specifications or the Construction Budget;
(e) copies of all change orders and subcontracts, and, to the
extent requested by Bank, of all inspection or test reports and other
documents relating to the construction of the Project Facility, not
previously delivered to Bank; and
(f) such other information, documentation and certification
as Bank shall reasonably request.
7.2 Notice and Frequency of Advances; Retainage. Each Request for
Disbursement shall be submitted to the Bank for its consent at least five (5)
business days prior to the date of submission of the Request for Disbursement to
the Trustee, and no more frequently than twice per month, based on the value of
the work (including the value of architectural and engineering work) completed,
less the holdback (the "Retainage") provided for at Section 5.6 herein, pending
issuance of certificates of occupancy and such evidence of lien-free completion
of construction as the Bank may reasonably require.
7.3 Funds Advanced. The Company irrevocably authorizes the Trustee
to make an Advance from the Project Fund for any sums requisitioned under this
Agreement in accordance with the Indenture.
7.4 Advances Do Not Constitute a Waiver. No Advance shall constitute
a waiver of any of the conditions of Bank's obligation to make further Advances
nor, in the event Company is unable to satisfy any such condition, shall any
Advance have the effect of precluding Bank from thereafter declaring such
inability to be an Event of Default hereunder.
7.5 Trust Fund Provisions. All proceeds advanced hereunder shall be
subject to the trust fund provisions of Section 13 of the Lien Law. The
affidavit attached hereto as Exhibit C is made pursuant to and in compliance
with Section 22 of the Lien Law, and, if so indicated in said affidavit, a
portion of the Loan Amount will be used, in part, for reimbursement for payments
made by the Company prior to the initial Advance hereunder but subsequent to the
commencement of the construction and equipping of the Facility for items
constituting Costs of Improvement.
ARTICLE 8
EVENTS OF DEFAULTS
The occurrence of any one or more of the following conditions or events
(each an "Event of Default") shall constitute a default under and breach of this
Agreement:
21
(a) any failure by Company to pay as and when due and payable
after the giving of any required notice and the expiration of any
applicable grace period, any interest on or principal of or other sum
payable under the Installment Sale Agreement or the Reimbursement
Agreement; or
(b) any failure by Company to pay as and when due and payable
any other sums to be paid by Company to Bank under this Agreement and
continuance of such failure for a period of five (5) days after written
notice thereof from Bank; or
(c) title to the Project Facility is or becomes
unsatisfactory to Bank, in its reasonable discretion, by reason of any
lien, charge, encumbrance, title condition or exception (including
without limitation, any mechanic's, materialman's or similar statutory
or common law lien or notice thereof) other than Permitted Liens, and
such matter causing title to be or become unsatisfactory is not cured
or removed (including by bonding) within twenty (20) days after notice
thereof from Bank to Company; or
(d) any refusal by the Title Insurer to insure any Advance as
being secured by the Mortgage as a valid first lien on the Project
Facility and continuance of such refusal for a period of twenty (20)
days after notice thereof by Bank to Company; or
(e) the Project Facility is not completed by the Completion
Date or, in the reasonable estimation of Bank, construction of the
Project Facility will not be completed by the Completion Date; or
(f) the Project Facility or any portion thereof is injured by
fire, explosion, accident, flood or other casualty, unless proceeds
available for restoration and held by the Trustee pursuant to the
Indenture are sufficient, in the reasonable estimation of Bank, to
effect the satisfactory restoration of the Project Facility and to
permit the completion of the Facility prior to the Completion Date; or
(g) the Project Facility is subject to any Condemnation, or
the Project Facility or any portion thereof is subject to any
Condemnation which will prevent, in the reasonable estimation of Bank,
the completion of the Project Facility prior to the Completion Date; or
(h) any voucher or invoice is submitted at any time which
Company knows has not been earned by the payee for services performed
or for materials used in or furnished for the Project Facility; or
(i) any cessation at any time in construction of the Facility
for more than twenty (20) consecutive days except for strikes, acts of
God, fire or other casualty, or other causes entirely beyond Company's
control; or
22
(j) any failure by Company to duly observe or perform any
term, covenant, condition or agreement requiring Company to maintain
insurance or to comply with the terms of the Financing Documents after
the giving of any required notice and the expiration of any applicable
cure period; or
(k) Company requests a termination of the Loan, or confesses
inability to continue or complete construction of the Project Facility
in accordance with this Agreement; or
(l) the Guarantor denies that it has any liability or
obligation under the Guaranty or any other agreement to which the
Guarantor is a party, or shall notify Bank of the Guarantor's intention
to attempt to cancel or terminate the Guaranty or any other agreement
to which the Guarantor is a party; or
(m) any representation or warranty made or deemed to be made
by or on behalf of Company or the Guarantor in this Agreement or in any
other Financing Document, or in any report, certificate, financial
statement, Request for Disbursement or other instrument furnished in
connection with this Agreement, any Advance or any other Financing
Document, shall prove to have been false or incorrect in any material
respect as at the date of which made or deemed to be made; or
(n) any dissolution, termination, partial or complete
liquidation, merger or consolidation of Company, or the Guarantor, or
any sale, transfer or other disposition of all or substantially all of
the assets of Company or the Guarantor, other than with the prior
approval of Bank; or
(o) any suit or proceeding shall be filed against Company,
the Guarantor or the Project Facility which, if adversely determined,
would have a materially adverse effect on the ability of Company or the
Guarantor to perform each and every one of their respective obligations
under and by virtue of the Financing Documents; or
(p) any failure by Company to obtain any Governmental
Approvals, or the revocation or other invalidation of any Governmental
Approvals previously issued; or
(q) any change in the legal or beneficial ownership of
Company, other than with the prior approval of Bank; or
(r) any one or more of the obligations of Company or the
Guarantor under the Financing Documents shall at any time and for any
reason cease to be in full force and effect and which shall, in the
reasonable estimation of the Bank, materially adversely affect the
value of the Project Facility or the ability of the Company or the
Guarantor to perform their respective obligations under the Financing
Documents; or
23
(s) any default in the payment of money shall occur under or
in respect of any loan agreement, credit agreement, promissory note,
bond, trust deed, indenture, mortgage, pledge, security agreement,
indemnity or guaranty representing an obligation in excess of $100,000
to which Company or the Guarantor is a party (whether as principal or
guarantor or other surety), or any other default shall occur thereunder
which would entitle the holder thereof to declare all amounts payable
with respect thereto to be immediately due and payable; or
(t) If Company or the Guarantor (i) is adjudicated a debtor
or insolvent, or ceases, is unable, or admits in writing its inability,
to pay its debts as they mature, or makes an assignment for the benefit
of creditors, (ii) applies for, or consents to, the appointment of any
receiver, trustee, or similar officer for it or for all or any
substantial part of its property, or any such receiver, trustee, or
similar officer is appointed without the application or consent of the
Company, or the Guarantor, as the case may be, (iii) institutes, or
consents to the institution of, by petition, application, or otherwise,
any bankruptcy reorganization, arrangement, readjustment of debt,
dissolution, liquidation, or similar proceeding relating to it under
the laws of any jurisdiction, (iv) has any such proceeding instituted
against it which remains thereafter undismissed for a period of sixty
(60) days or (v) has any judgment, writ, warrant of attachment or
execution or similar process issued or levied against a substantial
part of its property of the Company or the Guarantor and such judgment,
writ, or similar process is not released, vacated, or fully bonded
within sixty (60) days after its issue or levy.
(u) any failure by Company to duly observe or perform any
other term, covenant, condition or agreement under this Agreement and
continuance of such failure for a period of thirty (30) days after
written notice thereof from Bank; provided, however, that if such
failure is not susceptible of cure during such thirty (30) day period
(but is susceptible of cure) and Company promptly commences and
diligently pursues cure of such failure during such thirty (30) day
period, then such thirty (30) day period shall be extended for an
additional consecutive period of sixty (60) days; or
(v) any "default" or "event of default," as expressly defined
under any of the other Financing Documents shall occur and be
continuing.
ARTICLE 9
RIGHTS AND REMEDIES OF BANK
9.1 Remedies. Upon the occurrence and prior to the curing or waiver
of any Event of Default, Bank may at any time, at its option, exercise any or
all of the following rights and remedies:
24
(a) The Bank may, in its sole discretion, deliver to the
Trustee, with a copy to the Issuer and the Company, notice of such
occurrence and upon compliance with Section ______ of the Indenture,
direct the Trustee to redeem the Bonds; and
(b) The Bank may, in its sole discretion, by notice to the
Trustee, the Issuer and the Company, declare all unpaid principal of
and accrued interest due in accordance with the Reimbursement
Agreement, together with all other sums payable under the Financing
Documents, to be immediately due and payable, whereupon same shall
become and be immediately due and payable, anything in the
Reimbursement Agreement or other Financing Documents to the contrary
notwithstanding, and without presentation, protest or further demand or
notice of any kind, all of which are expressly hereby waived by the
Company; provided however, that the Bank may consent to Advances by the
Trustee thereafter without thereby waiving the right to demand payment
of the sums owing under the Reimbursement Agreement, without being
obligated to consent to any other or further Advances, and without
affecting the validity of or enforceability of the Reimbursement
Agreement or other Bond Documents. Notwithstanding and without limiting
the generality of the foregoing, upon the occurrence of an Event of
Default under paragraph (t) of Article 8, all obligations of the
Trustee to make Advances automatically shall so terminate.
(c) At the discretion of the Bank and on behalf of the
Trustee (but in its own behalf in the event that the Trustee has drawn
upon the Letter of Credit in accordance with the Indenture), the Bank
may cause the Project Facility to be completed and may enter upon the
Land and construct, equip and complete the Project Facility in
accordance with the Plans and Specifications, with such changes therein
as the Bank may, from time to time, and in its sole discretion, deem
appropriate. In connection with any construction of the Project
Facility undertaken by Bank pursuant to the provisions of this
subparagraph, Bank may:
(1) use any funds of Company, including any balance
which may be held by Bank as security or in escrow, and any
funds remaining unadvanced under the Project Fund;
(2) employ existing contractors, subcontractors,
agents, architects, engineers, and the like, or terminate the
same and employ others;
(3) employ security watchmen to protect the Project
Facility;
(4) make such additions, changes and corrections in
the Plans and Specifications as shall, in the judgment of Bank,
be necessary or desirable;
(5) take over and use any and all Equipment contracted
for or purchased by Company, if appropriate, or dispose of the
same as Bank sees fit;
25
(6) execute all applications and certificates on
behalf of Company which may be required by any Governmental
Authority or Requirement or contract documents or agreements;
(7) pay, settle or compromise all existing or future
bills and claims which are or may be liens against the Project
Facility, or may be necessary for the completion of the Project
Facility or the clearance of title to the Project Facility;
(8) enter into leases and occupancy agreements, and
modify or amend existing leases and occupancy agreements, all as
Bank shall deem to be necessary or desirable;
(9) prosecute and defend all actions and proceedings
in connection with the construction of the Facility or in any
other way affecting the Land or the Project Facility and take
such action and require such performance as Bank deems necessary
under any Payment and Performance Bonds; and
(10) take such action hereunder, or refrain from acting
hereunder, as Bank may, in its sole and absolute discretion,
from time to time determine, and without any limitation
whatsoever, to carry out the intent of this subparagraph.
Company shall be liable to Bank for all costs paid or incurred
for the construction, completion and equipping of the Project
Facility, whether the same shall be paid or incurred pursuant to
the provisions of this subparagraph or otherwise, and all
payments made or liabilities incurred by Bank hereunder of any
kind whatsoever shall be deemed advances made to Company under
this Agreement and shall be secured by the Mortgage and the
other Financing Documents.
To the extent that any costs so paid or incurred by Bank,
together with all other Advances made by Bank hereunder, exceed
the Loan Amount, such excess costs shall be paid by Company to
Bank on demand, with interest thereon at the Default Rate set
forth in the Reimbursement Agreement, until paid; and Company
shall execute such notes or amendments to the Reimbursement
Agreement as may be requested by Bank to evidence Company's
obligation to pay such excess costs and until such notes or
amendments are so executed by Company, Company's obligation to
pay such excess costs shall be deemed to be evidenced by this
Agreement and the Reimbursement Agreement. In the event Bank
takes possession of the Project Facility and assumes control of
such construction as aforesaid, it shall not be obligated to
continue such construction longer than it shall see fit and may
thereafter, at any time, change any course of action undertaken
by it or abandon such construction and decline to make further
payments for the account of Company whether or not the Project
Facility shall have been completed. For the purpose of this
subparagraph, the construction, equipping and completion of the
Project Facility shall be deemed to include any action necessary
to cure any Event of Default by Company under any of the terms
and provisions of any of the Financing Documents.
26
(d) Bank may to the extent permitted by applicable law, at
any time and from time to time, without notice (any such notice being
expressly waived), without regard to the adequacy of any collateral,
set off and apply any and all deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the
branch of Bank where the deposits are held) at any time held or other
sums credited by or due from Bank to Company against any and all
liabilities, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising of Company to Bank.
(e) Bank may exercise any or all of the rights and remedies
set forth in the Reimbursement Agreement and the other Financing
Documents.
9.2 Remedies Not in Conflict with the Indenture. In addition, and to
the extent not in conflict with the Indenture, the Company agrees to the
following:
(a) Power of Attorney. For the purposes of carrying out the
provisions and exercising the rights, powers and privileges granted by
or referred to in this Agreement, Company hereby irrevocably
constitutes and appoints Bank, upon and during the continuation of an
Event of Default, its true and lawful attorney-in-fact, with full power
of substitution, to execute, acknowledge and deliver any instruments
and do and perform any acts which are referred to in this Agreement, in
the name and on behalf of Company. The power vested in such
attorney-in-fact is, and shall be deemed to be, coupled with an
interest and irrevocable.
(b) Remedies Cumulative. Upon the occurrence of any Event of
Default, the rights, powers and privileges provided in this Article 9
and all other remedies available to Bank under this Agreement, the
Reimbursement Agreement or under any of the other Financing Documents
or at law or in equity may be exercised by Bank at any time and from
time to time and shall not constitute a waiver of any of Bank's other
rights or remedies thereunder, whether or not the Loan shall be due and
payable, and whether or not Bank shall have instituted any foreclosure
proceedings or other action for the enforcement of its rights under the
Financing Documents.
(c) Annulment of Defaults. An Event of Default shall not be
deemed to be in existence for any purpose of this Agreement, the
Reimbursement Agreement or any Financing Document if Bank shall have
waived such Event of Default in writing or stated that the same has
been cured to its reasonable satisfaction, but no such waiver shall
extend to or affect any subsequent Event of Default or impair any of
the rights of Bank upon the occurrence thereof.
(d) Waivers. Company hereby waives to the extent not
prohibited by applicable law (a) all presentments, demands for payment
or performance, notices of nonperformance (except to the extent
required by the provisions hereof or of any other Financing Documents),
protests and notices of dishonor, (b) any requirement of diligence or
promptness on Bank's part in the enforcement of its rights (but not
fulfillment of its obligations) under the provisions of this Agreement
or any other Financing Document, and (c) any and all notices of every
kind and description which may be required to be given by any statute
or rule of law and
27
any defense of any kind which Company may now or hereafter have with
respect to its liability under this Agreement, the Reimbursement
Agreement or under any other Financing Document.
(e) Course of Dealing, Etc. No course of dealing between
Company and Bank shall operate as a waiver of any of Bank's rights
under this Agreement or any Financing Document. No delay or omission on
Bank's part in exercising any right under this Agreement or any
Financing Document shall operate as a waiver of such right or any other
right hereunder. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right or remedy on any future occasion No
waiver or consent shall be binding upon Bank unless it is in writing
and signed by Bank. The making of an Advance hereunder during the
existence of an Event of Default shall not constitute a waiver thereof.
ARTICLE 10
GENERAL CONDITIONS
The following conditions shall be applicable throughout the term of
this Agreement:
10.1 Rights of Third Parties. All conditions of the obligations of
Bank hereunder, including the obligation to consent to Advances, are imposed
solely and exclusively for the benefit of Bank and its successors and assigns
and no other person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Bank
will make Advances in the absence of strict compliance with any or all thereof
and no other person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any and all of which may be freely waived in
whole or in part by Bank at any time if in its sole discretion it deems it
desirable to do so. In particular, Bank makes no representations and assumes no
obligations as to third parties concerning the quality of the construction by
Company of the Project Facility or the absence therefrom of defects. In this
connection Company agrees to and shall indemnify Bank from any liability, claims
or losses resulting from the disbursement of Advances or from the condition of
the Project Facility whether related to the quality of construction or otherwise
and whether arising during or after the term of the Loan made by Bank to Company
in connection herewith. This provision shall survive the repayment of the Bonds
and any sums due to the Bank under the Financing Documents and shall continue in
full force and effect so long as the possibility of such liability, claims or
losses exists.
10.2 Limitation on Issuer Liability; Indemnity. No provision or
covenant contained in this Agreement or any obligation herein or the breach
thereof shall constitute or give rise to pecuniary or other liability or charge
upon the Issuer, its members, officers, employees or agents. The Company shall
indemnify the Issuer against all claims, demands, expenses and liabilities under
this Agreement in accordance with the provisions of the Installment Sale
Agreement.
28
10.3 Relationship. The relationship between Bank and Company is
solely that of a lender and borrower, and nothing contained herein or in any of
the other Financing Documents shall in any manner be construed as making the
parties hereto partners, joint venturers or any other relationship other than
lender and borrower.
10.4 Evidence of Satisfaction of Conditions. Any condition of this
Agreement which requires the submission of evidence of the existence or
non-existence of a specified fact or facts implies as a condition the existence
or non-existence, as the case may be, of such fact of facts and Bank shall, at
all times, be free independently to establish to its satisfaction and in its
absolute discretion such existence or non-existence.
10.5 Notices. Any notices required or permitted to be given hereunder
shall be: (i) personally delivered or (ii) given by registered or certified
mail, postage prepaid, return receipt requested, or (iii) forwarded by overnight
courier service, in each instance addressed to the addresses set forth at the
head of this Agreement, or such other addresses as the parties may for
themselves designate in writing as provided herein for the purpose of receiving
notices hereunder. All notices shall be in writing and shall be deemed given,
(i) in the case of notice by personal delivery, upon actual delivery, (ii) in
the case of mail service, four (4) days after deposit with the U.S. Postal
Service, or (iii) in the case of overnight courier, the day after delivery to
the courier service. A duplicate copy of each notice, certificate or other
communication given hereunder by (1) the Company or the Issuer shall also be
given to the Trustee, and (2) the Company, Issuer or the Trustee shall also be
given to the Bank.
10.6 Assignment. Company may not assign this Agreement or any of its
rights or obligations hereunder without the prior approval of Bank.
10.7 Successors and Assigns Included in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be included and
all covenants and agreements contained in this Agreement by or on behalf of
Company or by or on behalf of Bank shall bind and inure to the benefit of their
respective heirs, legal representatives, successors and assigns, whether so
expressed or not.
10.8 Headings. The headings of the Articles, Paragraphs and
subparagraphs of this Agreement are for the convenience of reference only, are
not to be considered a part hereof and shall not limit or otherwise affect any
of the terms hereof.
10.9 Invalid Provisions to Affect No Others. If fulfillment of any
provision hereof or any transaction related hereto at the time performance of
such provisions shall be due, shall involve transcending the limit of validity
presently prescribed by law, with regard to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision herein contained operates
or would prospectively operate to invalidate this Agreement in whole or in part,
then such clause or
29
provision only shall be held for naught, as though not herein contained, and the
remainder of this Agreement shall remain operative and in full force and effect.
10.10 Number and Gender. Whenever the singular or plural number, or
the masculine, feminine or neuter gender is used herein, it shall equally
include the other.
10.11 Governing Law. This Agreement shall be governed by and construed
in accordance with laws of the State of New York.
10.12 Consent to Jurisdiction. Company hereby irrevocably and
unconditionally (a) submits to personal jurisdiction in the State of New York
over any suit, action or proceeding arising out of or relating to this
Agreement, and (b) waives any and all personal rights under the laws of any
state (i) to the right, if any, to trial by jury, or (ii) to object to
jurisdiction within the State of New York or venue in any particular forum
within the State of New York. Nothing contained herein, however, shall prevent
Bank from bringing any suit, action or proceeding or exercising any rights
against any security and against Company, and against any property of Company,
in any other state. Initiating such suit, action or proceeding or taking such
action in any state shall in no event constitute a waiver of the agreement
contained herein that the laws of the State of New York shall govern the rights
and obligations of Company and Bank hereunder or the submission herein by
Company to personal jurisdiction within the State of New York.
10.13 Amendments. Neither this Agreement nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
10.14 No Recourse; Special Obligation. (a) The obligations and
agreements of the Issuer, if any, contained herein and in the other Financing
Documents and any other instrument or document executed in connection therewith
or herewith, and any other instrument or document supplemental thereto or
hereto, shall be deemed the obligations and agreements of the Issuer, and not of
any member, officer, director, agent (other than the Company) or employee of the
Issuer in his individual capacity, and the members, officers, directors, agents
(other than the Company) and employees of the Issuer shall not be liable
personally hereon or thereon or be subject to any personal liability or
accountability based upon or in respect hereof or thereof or of any transaction
contemplated hereby or thereby.
(b) The obligations and agreements of the Issuer contained
herein and therein shall not constitute or give rise to an obligation
of the State of New York or Saratoga County, New York, and neither the
State of New York nor Saratoga County, New York shall be liable hereon
or thereon, and, further, such obligations and agreements shall not
constitute or give rise to a general obligation of the Issuer, but
rather shall constitute limited obligations of the Issuer payable
solely from the revenues of the Issuer derived and to be derived from
the sale or other disposition of the Project Facility (except for
revenues derived by the Issuer with respect to the Unassigned Rights).
30
(c) No order or decree of specific performance with respect
to any of the obligations of the Issuer hereunder shall be sought or
enforced against the Issuer unless (1) the party seeking such order or
decree shall first have requested the Issuer in writing to take the
action sought in such order or decree of specific performance, and ten
(10) days shall have elapsed from the date of receipt of such request,
and the Issuer shall have refused to comply with such request (or, if
compliance therewith would reasonably be expected to take longer than
ten days, shall have failed to institute and diligently pursue action
to cause compliance with such request within such ten day period) or
failed to respond within such notice period, (2) if the Issuer refuses
to comply with such request and the Issuer's refusal to comply is based
on its reasonable expectation that it will incur fees and expenses, the
party seeking such order or decree shall have placed in an account with
the Issuer an amount or undertaking sufficient to cover such reasonable
fees and expenses, and (3) if the Issuer refuses to comply with such
request and the Issuer's refusal to comply is based on its reasonable
expectation that it or any of its members, officers, agents (other than
the Company) or employees shall be subject to potential liability, the
party seeking such order or decree shall (A) agree to indemnify, defend
and hold harmless the Issuer and its members, officers, directors,
agents (other than the Company) and employees against any liability
incurred as a result of its compliance with such demand, and (B) if
requested by the Issuer, furnish to the Issuer satisfactory security to
protect the Issuer and its members, officers, directors, agents (other
than the Company) and employees against all liability expected to be
incurred as a result of compliance with such request. Any failure to
provide the indemnity and/or security required in this Section 10.14
shall not affect the full force and effect of an Event of Default
hereunder.
31
IN WITNESS WHEREOF, the Bank, the Company and the Issuer have executed
this Agreement as of the date first above written.
XXXXXXXX ADHESIVES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx,
Executive Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxx Xxxxx
--------------------------------------
Xxxxxxx Xxx Xxxxx, Senior Banker
COUNTY OF SARATOGA INDUSTRIAL
DEVELOPMENT AGENCY
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Chairman
Xxxxx X. Xxxxxx
32
STATE OF NEW YORK )
)SS.:
COUNTY OF SARATOGA )
On the 9th day of October, 1997, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx; that he is an Executive
Vice President of XXXXXXXX ADHESIVES, INC., the corporation described in and
which executed the foregoing instrument, and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public - State of New York
My Commission Expires:
Xxxxxxx X. Xxxxxx
Notary Public, State of New York
Washington County #01PR4921971
Commission Expires Feb. 28, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SARATOGA )
On this 9th day of October, 1997, before me personally came Xxxxxxx Xxx
Xxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Brunswick, New York; that he is a Senior Banker of KEYBANK NATIONAL
ASSOCIATION, the national banking association described in, and which executed
the above instrument; and that he signed his name thereto by order of the Board
of Directors of said association.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public - State of New York
My Commission Expires:
Xxxxxxx X. Xxxxxx
Notary Public, State of New York
Washington County #01PR4921971
Commission Expires Feb. 28, 1998
33
STATE OF NEW YORK )
) ss.:
COUNTY OF SARATOGA )
On this 7th day of October, 1997, before me personally came Xxxxx X.
Xxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Northumberland, NY; that he is the CHAIRMAN of the COUNTY OF SARATOGA
INDUSTRIAL DEVELOPMENT AGENCY, the public benefit corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the members of said public benefit corporation.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public - State of New York
My Commission Expires:
Xxxxxxx X. Xxxxxx
Notary Public, State of New York
Washington County #01PR4921971
Commission Expires Feb. 28, 1998
01294\bldgloan.2
34
EXHIBIT A
Construction Budget
COPY AT THE OFFICE OF THE BANK
EXHIBIT B
Description of Land
THAT TRACT OR PARCEL OF LAND, situate in the Town of Xxxxxx, County of
Saratoga and State of New York more fully described as Lot Number 3 as shown on
subdivision maps of Xxxxxx Industrial Park prepared by The Saratoga Associates
and filed in the Saratoga County Clerk's Office on March 18, 1992 in drawer
#M-348 A-Z and AA-DD; and as modified by revised subdivision maps of Xxxxxx
Industrial Park prepared by The Saratoga Associates and filed in the Saratoga
County Clerk's Office on February 16, 1994 in drawer #M-398, A-S and being
further bounded and described as follows:
BEGINNING at a point marked with a capped iron rod found at the point
of intersection of the easterly line of Xxxxxx Road with the common division
line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the south as shown on said map;
thence from said point of beginning along said common division line the
following five (5) courses and distances:
1) North 90 deg. 00 min. 00 sec. East, 347.86 feet to a point marked with
a capped iron rod found;
2) South 00 deg. 00 min. 00 sec. West, 32.63 feet to a point marked with a
capped iron rod found;
3) North 90 deg. 00 min. 00 sec. East, 191.52 feet to a point marked with
a capped iron rod found;
4) North 00 deg. 00 min. 00 sec. East, 32.63 feet to a point marked with a
capped iron rod found;
5) North 90 deg. 00 min. 00 sec. East, 680.17 feet to the point of
intersection of the westerly line of Lot No. 5 with the common division line of
Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the south as shown on said map; thence
along said westerly line, South 16 deg. 10 min. 56 sec. West, 102.04 feet to a
point in the northwesterly line of lands of The State of New York as shown on
said map, said point also being at the 145 foot elevation; thence along said
northwesterly and the westerly line of lands of The State of New York as it
winds and turns along the 145 foot elevation in a southerly direction 712 +/-
feet to the point of intersection of said westerly line of lands of The State of
New York with the common division line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0
to the south as shown on said map, the last course having a tie-line of South 33
deg. 02 min. 30 sec. West, 699.47 feet; thence along said common division line,
South 90 deg. 00 min. 00 sec. West, 865.65 feet to a point marked with a capped
iron rod found at the point of intersection of the easterly line of Xxxxxx Road
with the common division line of Xxx Xx. 0 xx xxx xxxxx xxx Xxx Xx. 0 to the
south as shown on said map; thence along said easterly line in a northerly
direction the following four (4) courses and distances:
1) North 00 deg. 00 min. 00 sec. West, 116.35 feet to a point of
curvature;
2) Along a curve to the right an arc length of 464.05 feet to a point of
tangency, said curve having a radius of 2,773.32 feet and a delta angle
of 09 deg. 35 min. 13 sec.;
3) North 09 deg. 35 min. 13 sec. East, 50.00 feet to a point of curvature;
4) Along a curve to the left an arc length of 57.49 feet to the point or
place of beginning, said curve having a radius of 2,294.42 feet and a delta
angle of 01 deg. 26 min. 08 sec., said parcel containing 16.37 +/- acres of land
and being Lot No. 3 as shown on said map.
EXHIBIT C
LIEN LAW, SECTION 00 XXXXXXXXX
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SARATOGA )
XXXXXXX X. XXXXXXX, being duly sworn, deposes and says:
1. I am the Executive Vice President of Xxxxxxxx Adhesives, Inc.,
the entity described as the Company in the Building Loan Agreement to which this
Affidavit is annexed.
2. The Company and the Bank have entered into a certain Building
Loan Agreement relating to the construction and equipping of a Facility on Land
which is more particularly described in Exhibit B. The Building Loan Agreement
is intended to be filed in the Saratoga County Clerk's Office in accordance with
Section 22 of the Lien Law. All capitalized terms used herein and not otherwise
defined shall have the same meanings assigned thereto in the Building Loan
Agreement.
3. The Bond proceeds will be advanced by the Trustee with the
consent of the Bank in accordance with the terms of the Building Loan Agreement
and the Indenture (as defined herein).
4. The consideration, if any, paid, or to be paid, for the Loan is
set forth in item 5(a) below.
5. All other expenses paid or to be paid in connection with the
Loan are as follows:
(a) Fair and reasonable sums paid for obtaining the Loan and
subsequent financing:
(i) Origination or commitment fee for Loan
$60,000
(ii) Appraisal fees
$-0-
(iii) Construction supervisor fees
$-0-
(iv) Fees and disbursements of Bank's counsel
$-0-
(v) Costs of title examination and UCC searches, title
insurance premiums and title continuation charges
$-0-
(vi) Survey costs
$-0-
(vii) Recording and filing fees
$-0-
(viii) Mortgage tax
$-0-
(ix) Bond Placement Agent fee
$60,000
Subtotal: $120,000
(b) Architectural, engineering and surveying fees,
$-0-
(c) Construction period interest
$-0-
(d) Insurance premiums during construction of Project Facility
$-0-
(e) Paid to Bank to repay sums previously loaned to pay costs of
construction,
$1,600,000
(f) Payment and Performance Bond premiums
$-0-
(g) Sums paid to take by assignment prior existing mortgages
$-0-
(h) Sums paid to discharge or reduce the indebtedness under prior
existing mortgages
$-0-
(i) Taxes, assessments and other municipal charges existing prior to
the commencement of construction of the Project Facility
$-0-
(j) Taxes, assessments and other municipal charges accruing during
construction of the Project Facility
$-0-
(k) Other, Land Acquisition
$254,250
Total $1,974,250
Certain of the foregoing amounts are based upon good faith estimates of
costs or expenses not yet incurred and certain items listed above may cost more
or less than such estimates. The Company reserves the right to use unexpended
amounts from any of said items to defray increases incurred in any other item or
items listed above so long as the total amount expended on such items does not
exceed the amount of the Loan.
6. That after payment of all the above fees and expenses, the
amount of money which will be available to pay for the cost of making the
improvements referred to in the Building Loan Agreement will be the sum of $ ,
less all monies needed to pay insurance premiums, interest, taxes, assessments,
water and sewer costs and rent becoming due while the improvements are being
made.
7. All monies advanced by the Bank to the Company under the
Agreement shall be subject to the Trust Fund provisions of Section 13 of the
Lien Law. If an Event of Default occurs during construction of the Facility, the
Bank may refuse to advance additional funds and such unadvanced sums would not
be available to the Company to pay the cost of constructing the Facility.
8. This affidavit is made pursuant to and in compliance with
Section 22 of the Lien Law by the Company, as the "borrower" for the purposes of
said Section.
9. The facts herein stated are true to the best of deponent's
knowledge.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Sworn to before me this
9th day of October, 1997.
/s/ Xxxxx X. Xxxxxx
--------------------------------
NOTARY PUBLIC
STATE OF NEW YORK
XXXXX X. XXXXXX
Notary Public, State of New York
Qualified in Albany County
Commission Expires 10/31/97
EXHIBIT D
COMPANY'S REQUISITION
COMPANY: Xxxxxxxx Adhesives, Inc. ("Company")
TRUSTEE: Star Bank, N.A. ("Trustee")
BANK: KeyBank National Association ("Bank")
REQUISITION NO.: ________________
DATE: ____________________, 1997
PROJECT: $6,000,000 County of Saratoga Industrial Development Agency
Multi-Mode Variable Rate Industrial Revenue Bonds (Xxxxxxxx
Adhesives, Inc. Project), Series 1997 A
Pursuant to the Building Loan Agreement, dated as of October 1, 1997,
by and among the Company, the Bank and County of Saratoga Industrial Development
Agency (the "Agreement"), Company hereby authorizes and requests an Advance by
the Trustee for the following purpose(s) and in the following amounts:
Amount Purpose(s) Attributable to
________________________________________________________________________________
Total: $____________________
Please disburse such funds in the following manner:
IN CONNECTION WITH AND IN ORDER TO INDUCE THE TRUSTEE TO ADVANCE THE
AMOUNT REQUESTED ABOVE, THE COMPANY HEREBY REPRESENTS, WARRANTS AND STIPULATES
TO THE TRUSTEE AND THE BANK AS FOLLOWS:
1. There is existing no Event of Default (as defined in the
Agreement) and no event which but for the passage of time, the giving of notice
or both would constitute an Event of Default. The undersigned has duly complied
with and observed all of the terms, covenants and conditions of each of said
instruments required to be performed by the undersigned to the date of this
Requisition, and unless the Bank is notified to the contrary prior to the
disbursement of the Advance requested above, will be so on the date hereof.
2. The amounts herein are true and correct to the best of the
Company's knowledge and after the honoring of this Requisition, the Loan amount
not yet advanced, less the retainage held, if any, shall be sufficient to pay
for the completion of the costs of construction of the Facility not yet paid.
3. All sums previously requisitioned have been applied to the
payment of the costs of construction of the Facility heretofore incurred and the
proceeds of any Advance made in accordance with this Requisition will be applied
to, and solely to, payment of the foregoing items.
4. All work has been performed fully in accordance with the Plans
and Specifications as defined in the Agreement.
5. The Bank has consented to this requisition as evidenced by its
execution of the consent appearing below.
XXXXXXXX ADHESIVES, INC.
By:_________________________________
Authorized Officer
Consented to this _____ day
of ________________, 1997
KEYBANK NATIONAL ASSOCIATION
By:___________________________________
Xxxxxxx X. Xxx Xxxxx
Vice President
