EXHIBIT 10.2 INDUSTRIAL DEVELOPMENT REVENUE BONDS, BOND AGREEMENT DATED FEBRUARY 28, 2007

 

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BOND AGREEMENT

 

 

By and Among

as Issuer,

as Borrowers

as Trustee

and

as Original Purchaser

Dated February 28, 2007

 

BOND AGREEMENT

 

 

 

BOND AGREEMENT

 

THIS BOND AGREEMENT (“Bond Agreement”), dated February 28, 2007, is by and among:

 

(i)           the CITY OF WISCONSIN RAPIDS, WISCONSIN (the “Issuer”);

 

(ii)          M & W FIBERGLASS, LLC, a Wisconsin limited liability company (“M & W”);

 

(iii)         ADVANCED FIBERGLASS TECHNOLOGIES, INC., a Wisconsin corporation (“Advanced”);

 

(iv)          JAMIE L. MANCL, an individual and JENNIFER MANCL, an individual, as husband and wife (the “Mancls” and, together with M & W and Advanced, sometimes collectively referred to herein collectively as the “Borrowers” and individually as a “Borrower”);

 

(v)           NEKOOSA PORT EDWARDS STATE BANK, a a Wisconsin banking corporation, as original purchaser of the Bonds issued hereunder (the “Original Purchaser”);

 

(vi)          NEKOOSA PORT EDWARDS STATE BANK, a Wisconsin banking corporation, as trustee (the “Trustee”).

 

The Issuer desires to issue the Bonds (hereinafter defined) and to lend the proceeds thereof to the Borrowers, and the Borrowers wish to borrow such proceeds from the Issuer, for the purpose of financing the Project (hereinafter defined).

 

Pursuant to its authorizing Resolution (hereinafter defined), the Issuer has authorized the Bonds to be issued in the aggregate principal amount not to exceed $4,000,000 and has provided that the Bonds will be issued as tax-exempt bonds of the Issuer.

 

In consideration of the premises, the promises of the Issuer and the Borrowers set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to secure the payment of the principal of, premium, if any, and interest on all Bonds issued and outstanding under this Bond Agreement, the parties agree as follows:

 

 

 

 

 

Section 1.01 Definitions.  Capitalized terms herein shall have the respective meanings set forth below:

 

Advanced:    Advanced Fiberglass Technologies, Inc., a Wisconsin corporation.

 

Advanced Organizational Documents:  The Articles of Incorporation and By-Laws of Advanced.

 

Affiliate:  Any (a) director, officer or employee of the Person, or (b) Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person.  A Person shall be deemed to control another Person if the controlling Person directly or indirectly, either individually or together with (in the case of an individual) his spouse, lineal descendants and ascendant and brothers or sisters by blood or adoption or spouses of such descendants, ascendant, brothers and sisters, owns five percent or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct, or cause the direction of, the management or policies of the controlled Person, whether through the ownership of voting securities, through common directors, trustees or officers, by contract or otherwise.

 

Authorized Representative of the Borrowers:  Unless and until otherwise designated by any Borrower by written notice to all of the Parties, Jamie L. Mancl, acting in his capacity as President of Advanced and Manager of M & W and as an individual, authorized to bind each Borrower and all of the Borrowers to contracts, to execute and deliver Borrowers’ Requisitions and to give Trust Fund investment directions hereunder on behalf of the Borrowers.

 

Bankruptcy Condition:  The (i) filing of a petition in bankruptcy by or against any Borrower or the Issuer as debtor under the United States Bankruptcy Code, 11 U.S.C. § 101 et seq., or (ii) continuance of other judicial proceedings with respect to any Borrower or the Issuer as debtor under similar or successor federal or state bankruptcy, reorganization or insolvency laws.

 

Bond Amount:  $4,000,000.

 

Bond Counsel:  A law firm whose legal and tax opinion on municipal bond issues is nationally recognized, initially, Whyte Hirschboeck Dudek S.C.

 

Bond Fund:  The Trust Fund described in Section 3.03

 

Bond Proceeds:  The proceeds of the sale of the Bonds, namely, such amount not to exceed $4,000,000, as may be advanced hereunder by the Original Purchaser.

 

Bond Register:  The registration books maintained by the Trustee pursuant to Section 2.15.

 

Bondowners:  At the time or times of determination, the Persons who are registered owners of Bonds as shown in the Bond Register maintained by the Trustee pursuant to Section 2.15.

 

 

 

Bonds:  The Issuer’s aggregate $4,000,000 Industrial Development Revenue Bonds, Series 2007A, 2007B and 2007C (Advanced Fiberglass Technologies Project), issued pursuant to this Bond Agreement.

 

Bond Year:  Each year ending on January 31.

 

Borrower:  Any of M & W, Advanced or the Mancls, individually.

 

Borrowers:  All of M & W, Advanced and the Mancls, collectively.  Whenever in this Bond Agreement the term Borrowers is used, it shall refer to the action (or inaction) or the right or obligation of all three of the Borrowers, collectively, except as the context otherwise clearly requires.

 

Borrowers’ Address:  The address which the Borrowers designate for the delivery of notices hereunder.  Until changed by notice from any Borrower to all Parties, the Borrower’s address shall be:

 

Prior to the Completion Date:   Mr. Jamie L. Mancl c/o Advanced Fiberglass Technologies, Inc. 2330 S. 16th Street Wisconsin Rapids, Wisconsin 54494 Phone:     ###-###-#### Fax:          ###-###-####   After the Completion Date:   Mr. Jamie L. Mancl c/o Advanced Fiberglass Technologies, Inc. 4400 Commerce Drive Wisconsin Rapids, Wisconsin 54494 Phone:     ###-###-#### Fax:          ###-###-####

Borrower's Certificate:  A certificate signed on behalf of any Borrower by an Authorized Officer of the Borrowers.

 

Borrowers’ Requisition:  A withdrawal from the Project Fund pursuant to Section 4.02, in the form of Exhibit D attached hereto.

 

Business Day:  Any day other than a Saturday, Sunday or other day on which banks are required or authorized to remain closed in the city in which the Trustee’s Principal Office is located.

 

Clerk:  The Clerk of the Issuer.

 

Code:  The Internal Revenue Code of 1986, as amended.

 

 

 

Completion Date:  The completion date of the Project established in accordance with Section 4.03.

 

Counsel:  An attorney acceptable to the Trustee, duly admitted to practice law before the highest court of any state, who may be an attorney for any Borrower, the Original Purchaser, the Trustee or the Issuer.

 

Dated Date:  February 28, 2007.

 

 

(a)     Government Obligations;

 

 

 

Determination of Taxability:  The issuance of a statutory notice of deficiency by the Internal Revenue Service, or a ruling of the National Office or any District Office of the Internal Revenue Service, or a final decision of a court of competent jurisdiction, or a regulation or revenue ruling issued by the Internal Revenue Service, after the period, if any, for contest or appeal by the taxpayer of such action, ruling or decision has expired without any such contest or appeal having been properly instituted by the taxpayer, or delivery to the Issuer by Bond Counsel of an opinion, which holds or declares in effect that the interest payable on any of the Bonds is includable for federal income tax purposes in the gross income of the Bondowners of such Bonds (other than a Bondowner who is a substantial user of the Project or a related person, as such terms are defined in the Code).

 

Employee Plan:  Any savings, profit sharing, or retirement plan or any deferred compensation contract or other plan maintained for employees of any Borrower or its Subsidiaries and covered by Title IV of ERISA, including, without limitation, any “multiemployer plan” as defined in ERISA.

 

 

 

Environmental Law:  Any local, state or federal law or other statute, law, ordinance, rule, code, regulation, decree or order governing, regulating or imposing liability or standards of conduct concerning the use, treatment, generation, storage, disposal or other handling or release of any Hazardous Substance.

 

Environmental Liability:  All liability arising under, resulting from or imposed by any Environmental Law.

 

ERISA:  The Employee Retirement Income Security Act of 1974, as amended, and any successor statute, together with the regulations and published interpretations thereunder, in each case as in effect from time to time.

 

Event of Default:  Any of the events described as such in Section 8.01 (a “Bond Default”) or in Section 9.01 (a “Loan Default”).

 

Event of Taxability:  The circumstance of interest paid or payable on any Bond becoming includable (other than for purposes of a tax on preferences of the type imposed by Section 56 of the Code or any successor statute thereto or any similar federal tax on preferences or similar items and other than by reason having to do with the tax status of, or rules applicable to, the particular individual Bondowner rather than the status of, or rules applicable to, all persons generally) for federal income tax purposes in the gross income of any Bondowner (other than a Bondowner who is a “substantial user” or a “related person” within the meaning and for the purposes of Section 147(a) of the Code) as a consequence of any act, omission or event whatsoever; provided, however, that a change in the Code enacted after the date of issuance of the Bonds which results in interest on borrowings by state and local governments generally being included in gross income shall not be an Event of Taxability.

 

GAAP:  Those generally accepted accounting principles and practices which are recognized as such by the American Institute of Certified Public Accountants acting through appropriate boards or committees thereof and which are consistently applied for all periods so as to properly reflect the financial condition, results of operations and cash flows of a Borrower and its Subsidiaries.

 

Government Authority:  Any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled through stock or capital ownership or otherwise, by any of the foregoing.

 

Government Obligations:  Securities which are direct full faith and credit obligations of the United States or securities as to which the payment of both principal and interest are unconditionally guaranteed by the United States of America.

 

Guarantor:  Fiberglass Piping and Fitting Company, a Wisconsin corporation.

 

Hazardous Substance:  Any pollutant, contaminant, waste or toxic or hazardous chemicals, wastes or substances, including, without limitation, asbestos, urea formaldehyde insulation, petroleum, PCB’s, air pollutants, water pollutants, and other substances defined as hazardous substances or toxic substances in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9061 et seq., Hazardous Materials Transportation Act, 49 U.S.C. § 1802, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Toxic

 

 

 

Highest Elected Official:  The Mayor of the Issuer.

 

Indebtedness:  All liabilities or obligations of a Person, whether or not included on the liability portion of a balance sheet, and shall include, without limitation, all (a) indebtedness for borrowed money; (b) indebtedness for the deferred purchase price of property or services for which the Persons is liable, contingently or otherwise, as obligor, guarantor or otherwise; (c) any commitment by which the Person assures a creditor against loss, including, without limitation, contingent reimbursement obligations with respect to letters of credit; (d) obligations which are evidenced by notes, acceptances or other instruments; (e) indebtedness guaranteed in any manner by the Person, including without limitation guaranties in the form of an agreement to repurchase or reimburse; (f) any unfunded obligation of the Person, to an Employee Plan; (g) all liabilities secured by any Lien on any Property owned by the Person, even though it has not assumed or otherwise become liable for the payment thereof; and (h) other liabilities or obligations of the Person and its Subsidiaries which would, in accordance with GAAP, be included on the liability portion of a balance sheet.

 

Insurance and Condemnation Proceeds Fund:  The Trust Fund described in Section 3.05.

 

Issuer:  City of Wisconsin Rapids, Wisconsin, its successors and assigns.

 

Issuer’s Address:  The address which the Issuer designates for the delivery of notices hereunder.  Until changed by notice from the Issuer to all Parties, the Issuer’s Address shall be:

 

City of Wisconsin Rapids 444 West Grand Avenue Wisconsin Rapids, WI 54495 Attn: City Clerk Phone:  (715) 421-8208 Fax:        ###-###-####

Lien:  Any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), deed of trust, charge, preference, priority, security interest or other security agreement or preferential arrangement of any kind or nature whatsoever including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code of the State of Wisconsin or comparable law of any jurisdiction.

Loan:  The Loan of the Bond Proceeds by the Issuer to the Borrowers.

 

 

 

Loan Documents:  The documents relating to the Bonds and the Loan, including the Resolution, this Bond Agreement, the Security Documents, the Promissory Note, and other documents executed and delivered at the Closing.

 

Loan Repayments:  The payments required to be made by the Borrowers pursuant to Section 4.06.

 

M & W:  M & W Fiberglass, LLC, a Wisconsin limited liability company.

 

M & W Organizational Documents:  The Articles of Organization and Operating Agreement of M & W.

 

Mancls:  Jamie L. Mancl, an individual, and Jennifer Mancl, an individual, as husband and wife.

 

Material Adverse Effect:  (a) an Event of Default, (b) a material adverse change in the business, prospects or condition (financial or otherwise) of a Borrower or any of its respective Subsidiaries or in any Property, (c) the termination of any material agreement to which a Borrower is a party, (d) any material impairment of the right to carry on the business as now or proposed to be conducted by a Borrower, or (e) any material impairment of the ability of a Borrower to perform its obligations under this Bond Agreement or the Security Documents.

 

Net Proceeds:  The gross proceeds of an insurance claim or condemnation award with respect to the Project after payment of all expenses (including attorneys’ fees and any extraordinary fee or expense of the Trustee) incurred in its collection.

 

No Arbitrage Certificate:  That certain No Arbitrage Certificate dated February 28, 2007made by the Issuer and acknowledged, with respect to accuracy and reasonableness of certain expectations, facts and estimates contained therein, by the Borrower.

 

Obligations:  The Promissory Note, all mandatory prepayments, all costs and expenses and all other Indebtedness of the Borrowers to the Original Purchaser, including, without limitation, all Obligations as defined in the Credit Agreement.

 

Of Record: When used in reference to any Bondowner, the Person whose name appears in the registration books maintained by the Trustee pursuant to Section 2.15 as the owner of a Bond.

 

Opinion of Counsel:  A written opinion of Counsel or Bond Counsel.

 

Original Issue Date:  February 28, 2007.

 

Original Purchaser:  Nekoosa Port Edwards State Bank, a Wisconsin banking corporation, Nekoosa, Wisconsin.

 

Original Purchaser’s Address:  The address which the Original Purchaser designates for the delivery of notices hereunder.  Until changed by notice from the Original Purchaser to the Borrower, the Issuer and the Trustee, the Original Purchaser’s Address is:

 

 

 

Nekoosa Port Edwards State Bank 405 Market Street P.O. Box 9 Nekoosa, WI 54457 Phone:    ###-###-#### Fax:         ###-###-####

 

Outstanding Bonds and Outstanding (when used with reference to Bonds):  All Bonds which have been authenticated and delivered by the Trustee hereunder, except:

 

(a)           Bonds or portions thereof cancelled by the Trustee or delivered to the Trustee for cancellation; and

 

(b)           Bonds in lieu of which other Bonds have been authenticated and delivered in accordance with Sections Section 2.13, Section 2.14 and Section 2.21.

 

Participant:  Bankers’ Bank, Madison, Wisconsin.

 

Paying Agent:  Any bank or banks designated pursuant to this Bond Agreement as the agent of the Issuer to receive and disburse the principal of and interest on the Bonds; initially, the Trustee.

 

Payment Date:  Monthly on the 28th day of each month, commencing on March 28, 2007.

 

Prime Rate: the Prime Rate of Interest as published in the “Money Rates” section of the most recent Midwest Edition of The Wall Street Journal, provided that if at any time the Prime Rate of Interest is no longer so published in the Midwest Edition of The Wall Street Journal published as of the business day immediately preceding any adjustment in the interest rate on the Bonds to the Prime Rate, then “Prime Rate” shall mean the interest rate announced as its Prime Rate of Interest by the largest commercial bank headquartered in the State of Wisconsin on such date.

 

PBGC:  The Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.

 

Person:  An individual, partnership, corporation, limited liability company, enterprise, association, business trust, joint stock company, joint venture, trust, unincorporated organization, governmental authority or any agency or political subdivision thereof, or other entity of whatever nature.

 

Pledged Revenues:  All revenues and income derived by or for the account of the Issuer from or for the account of the Borrowers pursuant to the terms hereof, including, without limitation (i) all payments by the Borrowers on the Loan or pursuant to Section 4.07, (ii) all cash and securities held from time to time in the Trust Funds (with the exception of the Rebate Credit Account) and the investment earnings thereon, and (iii) all proceeds of any casualty insurance or condemnation awards payable with respect to the Project.

 

Project:  The project described in Exhibit A attached hereto.

 

 

 

Project Costs:

 

(a)           All legal, abstracting, surveying, financial and accounting and other fees and expenses, printing and engraving costs and expenses incurred in connection with the establishment of title, the authorization, sale and issuance of the Bonds (including any underwriter’s or agent’s fees, commitment or origination fees, or points in connection with the issuing of the Bonds but, to the extent paid from Bond proceeds, not to exceed two percent of the face amount of the Bonds), and the preparation of this Bond Agreement and all other documents, including filing fees for any financing statements deemed necessary by Counsel;

 

(b)           All costs of improving the Project Site;

 

(c)           All costs of acquiring and installing the Project Equipment;

 

(d)           All architectural, engineering, consulting, legal, supervisory and other services incurred and to be incurred in the construction, purchase, acquiring, installing, improving, equipping or furnishing of the Project;

 

(e)           The contract price of all labor, services, materials, supplies and equipment furnished under any contract entered into in connection with the construction, purchase, acquisition, installing, improving, equipping or furnishing of the Project;

 

(f)           The cost of all other labor, services, materials, supplies and equipment necessary to complete the Project;

 

(g)           All fees and expenses of the Trustee that become due before the Completion Date;

 

(h)           To the extent permitted by the Statute and not prohibited by rules or regulations of the Internal Revenue Service and not otherwise paid from Bond proceeds deposited in the Bond Fund, all interest accruing up until and not later than the completion of the Project, on money borrowed by a Borrower for temporary financing of Project Costs if such money was borrowed by a Borrower for the specific purpose of temporarily financing Project Costs and was not part of a general purpose open line of credit, and interest accruing on the Bonds prior to, and up to completion of the Project;

 

(i)           Without limitation by the foregoing, all other expenses which under GAAP constitute necessary capital expenditures for the completion of the construction, acquisition, purchase, installation, improving, equipping or furnishing of the Project, not including initial working capital or expendable supplies (all of which are nevertheless to be supplied by a Borrower or the Borrowers from its own funds without reimbursement);

 

(j)           All advances, payments and expenditures made or to be made by the Issuer, the Trustee or any other person with respect to any of the foregoing expenses; and

 

(k)           Reimbursement of the Borrowers for its payment of any of the foregoing incurred after June 20, 2006.

 

Project Equipment:  The equipment to be installed by a Borrower at the Project Site as part of the Project, and listed on Exhibit A attached hereto.

 

 

 

Project Fund:  The Trust Fund described in Section 3.02.

 

Project Site:  The location of the Project and the Project Equipment, namely, 4400 Commerce Drive, in the City of Wisconsin Rapids, Wood County, Wisconsin.

 

Promissory Note:  The Promissory Notes to the Issuer from the Borrowers, dated the Original Issue Date, in the original principal amounts of $3,000,000 (the “Series A Note”), $500,000 (the “Series B Note”) and $500,000 (the “Series C Note”).

 

Property:  Any interest of the Borrowers or any of their respective Subsidiaries of any kind in property or assets, whether real, personal, mixed, tangible or intangible, wherever located, and whether now owned or subsequently acquired or arising and in the products, proceeds, additions and accessions thereof or thereto.

 

Qualified Investments:  Includes any of the following securities, in and to the extent that the Trustee has not been notified that the same have not been disqualified as legal for the investment of the Issuer’s moneys:  Government Obligations and (a) the obligations, including discount notes, of (i) Federal National Mortgage Association, (ii) Federal Intermediate Credit Banks, (iii) Federal Banks for Cooperatives, (iv) Federal Land Banks, (v) Federal Home Loan Banks, (vi) Federal Financing Bank, (vii) Federal Farm Credit System, (viii) Federal Home Loan Mortgage Corporation, (ix) Government National Mortgage Association, (x) Federal Housing Administration, and (xi) Farmers Home Administration; provided, however, that obligations listed in this subpart (a) shall be guaranteed by the United States of America; (b) unsecured certificates of deposit, demand deposits, including interest bearing money market accounts, trust deposits, time deposits or bankers acceptances (in each case having maturities of not more than 360 days) of any domestic bank (including the Original Purchaser and the Trustee and any bank affiliated with the Trustee) including a branch office of a foreign bank, which branch office is located in the United States, provided that such bank at the time of purchase, has a short-term “Bank Deposit” rating of “Prime-1” or better by Moody’s Investors Service and a rating of “A-1” or better by Standard & Poor’s Ratings Services; (c) certificates of deposit or time deposits fully collateralized by Government Obligations; (d) any repurchase agreement by the Trustee that is with a bank or institution, which bank, institution or holding company thereof is rated “BAA1” or better by Moody’s Investors Service or “B+” or better by Standard & Poor’s Ratings Services, provided that such repurchase agreement may not extend more than 30 days beyond its issuance and such repurchase obligation will be for Government Obligations; and notwithstanding any of the foregoing, to the extent that any obligations described in this definition are repurchase agreements then (i) the Trustee must have perfected a first security interest in such obligations, (ii) the Trustee or a third party acting solely as agent for the Trustee must have possession of such obligations, (iii) such obligations must be free and clear of third party claims, and (iv) any investment in a repurchase agreement will be considered to mature on the date the bank or trust company providing the repurchase agreement is obligated to repurchase the Government Obligations; (e) commercial paper or finance company paper rated not less than A 1 or prime-one or their equivalents by Standard & Poor’s Ratings Services and Moody’s Investors Service; (f) state and local government obligations, the interest on which is excludable from the gross income of the holder thereof for federal income tax purposes pursuant to Section 103(a) of the Code, provided that such obligations have a rating of “A “ or better from Standard & Poor’s Ratings Services or Moody’s Investors Service; (g) the “Tax-Exempt Money Market Fund” for which the Trustee acts as investment advisor; (h) the “Short Term Investment Fund” of the Trustee; and (i) so long as the Original Purchaser is the Bondowner of all of the Bonds Outstanding,

 

 

 

Rebate Credit Account:  The account described in Section 3.06, which account shall not be pledged for the benefit of the Bondowners hereunder.

 

Record Date:  For the interest payable on any Payment Date means the day (whether or not a Business Day) next preceding such Payment Date.

 

Redemption Date:  The date upon which any Bond is to be redeemed prior to maturity.

 

Redemption Fund:  The Trust Fund described in Section 3.04.

 

Registered Bondowner:  The person in whose name a Bond is registered in the Bond Register.

 

Requirements of Law:  As to any matter or Person, the Certificate or Articles of Incorporation or Organization and Bylaws or Operating Agreement or other organizational or governing documents of such Person, and any law (including, without limitation, any Environmental Law), ordinance, treaty, rule, regulation, order, decree, determination or other requirement having the force of law relating to such matter or Person and, where applicable, any interpretation thereof by any Government Authority.

 

Requisite Consent:  Unless all Bonds are then owned by the Borrower, the affirmative written consent of Bondowners registered as the Bondowners in aggregate not less than a majority in principal amount of the Bonds (other than Bonds owned by the Borrowers or any “related person” as defined in Section 147 of the Code) at the time Outstanding.

 

Security Documents:  the Construction Mortgage and Assignment of Leases and Rents, the Pledge and Security Agreement, the Security Agreement, [the Collateral Assignment of Architect’s Contract], and the Collateral Assignment of Construction Contracts, all by the Borrowers in favor of the Trustee and the Original Purchaser.

 

Series A Bonds:  The Issuer’s $3,000,000 principal amount Industrial Development Revenue Bonds, Series 2007A (Advanced Fiberglass Technologies Project), authorized by and issued pursuant to Section 2.01(a)(i)of this Bond Agreement.

 

Series B Bonds:  The Issuer’s $500,000 principal amount Industrial Development Revenue Bonds, Series 2007B (Advanced Fiberglass Technologies Project), authorized by and issued pursuant to Section 2.01(a)(ii) of this Bond Agreement.

 

Series C Bonds:  The Issuer’s $500,000 principal amount Industrial Development Revenue Bonds, Series 2007C (Advanced Fiberglass Technologies Project), authorized by and issued pursuant to Section 2.01(a)(iii) of this Bond Agreement.

 

Statute:  Section 66.1103 of the Wisconsin Statutes, as amended from time to time.

 

 

 

Subsidiary:  As to any Person, a corporation or limited liability company of which shares of stock or membership interest having voting power (other than stock or membership interest having such power only by reason of the happening of a contingency that has not occurred) sufficient to elect a majority of the board of directors or other managers of such corporation or limited liability company are at the time owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.

 

Tax Certificate:  The Borrower’s certification, executed and delivered on and as of the Closing Date, certifying to certain facts and circumstances upon which Bond Counsel will rely in part in issuing its Opinion of Counsel as to the tax-exempt status of interest on the Bonds, subject to the assumptions, qualifications and limitations set forth in such Opinion of Counsel.

 

Trustee:  Initially, Nekoosa Port Edwards State Bank, Nekoosa, Wisconsin, and any successor banking corporation, banking association or trust company at the time serving as corporate trustee hereunder.

 

Trustee’s Address and Trustee’s Principal Office:  The address or office which the Trustee designates for the delivery of notices or payments hereunder.  Until changed by notice from the Trustee to the Borrower, the Issuer and the Original Purchaser, the Trustee’s Address and Principal Office is:

 

Nekoosa Port Edwards State Bank 405 Market Street P.O. Box 9 Nekoosa, WI 54457 Phone:        ###-###-#### Fax:             ###-###-####

Trust Funds:  The trust funds and accounts administered by the Trustee hereunder.

 

Unassigned Rights:  The Borrower’s obligations to the Issuer under Section 4.13, Section 6.09 and Section 9.07.

 

 

“Herein,” “hereby,” “hereunder,” “hereof” and other equivalent words refer to this Bond Agreement as an entirety and not solely to the particular portion hereof in which any such word is used.

 

The definitions set forth in Section 1.01 shall be deemed applicable whether the words defined are herein used in the singular or the plural.

 

Wherever used herein, any pronoun or pronouns shall be deemed to include both the singular and plural and to cover all genders.

 

Unless otherwise provided, any determinations or reports hereunder which require the application of accounting concepts or principles shall be made in accordance with GAAP.

 

 

 

 

Section 2.01 Creation of Bonds for Issuance.  There is hereby created for issuance an issue of Bonds to be designated:

 

CITY OF WISCONSIN RAPIDS, WISCONSIN

INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2007A, 2007B and 2007C

(ADVANCED FIBERGLASS TECHNOLOGIES PROJECT)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 2.03 Interest on the Bonds.

 

(a)   Series A Bonds.

 

           (i)     Initial Interest Rate.  From the Original Issue Date through February 28, 2012, the Series A Bonds shall bear interest at a fixed rate of Five and 50/100 percent (5.50%) per annum.

 

               (ii)   Interest Rate Resets.    The interest rate on the Series A Bonds shall be reset on each Reset Date to a fixed rate calculated as follows (i) the Prime Rate in effect on the Business Day next preceding the Reset Date minus (ii) 2.25 percentage points.  The Series A Bonds shall bear interest from each Reset Date through the day immediately prior to the next Reset Date at the rate determined according to the formula in the preceding sentence (in each case, the “Reset Rate”).  Notwithstanding the foregoing, the interest rate on the Series A Bonds shall never (i) exceed the Maximum Rate, nor (ii) be lower than the Minimum Rate.

 

 

 

 

 

 

 

(ii)   Reset Date: Each of February 28, 2012; February 28, 2017; and February 28, 2022.

 

(iii)         Maximum Rate: Eighteen and 00/100 percent (18.00%) per annum.

 

(iv)   Minimum Rate:  Four and 00/100 percent (4.00%) per annum.

 

 

 

 

 

 

 

 

Taxable Interest payable on the Bonds of all Series shall be equal to the higher of (i) the Prime Rate or (ii) the sum of the then-applicable tax-exempt interest rate or rates applicable to each Series of Bonds as determined pursuant to Section 2.03, plus 3.0% per annum.  The Borrowers shall also pay to the Bondowners (and any former Bondowners holding Bonds during any period subsequent to an Event of Taxability) as additional interest, the amount of penalties, additions to tax (exclusive of any taxes imposed under Section 11 or any successor provision of the Code) or interest assessed against the Bondowners (and former Bondowners) on account of a Determination of Taxability.  Taxable Interest to be paid pursuant to this Section for the period between the Event of Taxability and the Payment Date immediately succeeding the Determination of Taxability shall be paid immediately following the Determination of Taxability in the same manner as interest is paid to Bondowners in accordance with this Bond Agreement.

 

Any Bondowner shall have the right, but not the obligation, to arrange for the contest of an allegation that an Event of Taxability has occurred, by appropriate legal proceedings.  In the event no Bondowner shall contest the Event of Taxability, the Borrowers shall have the option but not the obligation to do so.  If (i) the Borrowers shall have made any additional payments to a Bondowner or former Bondowner by reason of an Event of Taxability pursuant to this Section, and (ii) it shall be successfully claimed for the taxable year in question that the interest on the Bonds for such taxable year is excluded from the Bondowner’s or former Bondowner’s taxable income for federal income tax purposes (for this purpose a claim shall be deemed successful only upon the occurrence of a “determination,” as defined in Section 1313(a) or any successor provision of the Code) or, if the Bondowner or former Bondowner shall not have included such interest in the Bondowner’s or former Bondowner’s taxable income for federal income tax purposes upon expiration of the statute of limitations provided by Section 6501 or any successor provision of the Code with respect to such taxable year, then the Bondowner or former Bondowner (as the case may be) shall pay to the Borrowers the amount of any such additional payments which had been made by the Borrowers to the Bondowner or former Bondowner, less any actual expenses incurred by such Bondowner or former Bondowner as a result of the alleged Event of Taxability.  Upon successful challenge of an Event of Taxability, the interest rate on the Bonds shall return to the interest rate ordinarily payable hereunder as if no Event of Taxability had ever been alleged.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In any such case, the Borrowers or Bondowners shall, to exercise their respective option hereunder, give notice to the Issuer, the Trustee and the Bondowners or the Borrower, as the case may be, in writing of its or their intent to exercise this option and specifying the proposed Redemption Date, within thirty (30) days following discovery of the event by the party determining to exercise its option hereunder.  The exercise of either party of its option to redeem the Bonds shall be binding on all parties hereto.  Within sixty (60) days after the giving of notice as set forth above, the Borrowers shall deposit with the Trustee a sum sufficient, together with other funds held by the Trustee and available for such purpose (i) to redeem the Bonds, in whole or in part, as applicable at a redemption price equal to the principal amount thereof, (ii) to pay the interest which will become

 

 

 

If any Borrower shall have received proceeds of an insurance or condemnation award relating to destruction or damage or condemnation of all or any part of the Project, and such net proceeds exceed the amount necessary to rebuild, repair or restore the applicable Facility, such Borrower agrees to direct the Issuer to call for redemption and prepayment Outstanding Bonds equal to the amount of such resulting excess net proceeds.

 

 

 

Each redemption notice shall (i) identify the particular Bonds or portions thereof to be redeemed (including, at a minimum, certificate numbers and called amount for each certificate (for partial calls), Redemption Date, redemption agent name and address, date of issue, maturity date, and other descriptive information, if any, that accurately identifies the particular Bonds called for redemption), (ii) identify the provisions of this Bond Agreement pursuant to which the Bonds are being redeemed, (iii) identify the place of payment, (iv) state the applicable redemption price, including the premium, if any, and (v) state that interest on the Bonds or portions thereof thus called for redemption will cease to accrue from and after the Redemption Date specified therein.

 

If pursuant to this Bond Agreement the Trustee shall hold funds in the form of cash or Government Obligations which are available and will be sufficient in amount to pay the principal of and premium, if any, on the Bonds or portions thereof thus called for redemption and to pay the interest thereon to the Redemption Date, such Bonds or portions thereof shall cease to bear interest from and after the Redemption Date in question.

 

 

 

 

 

 

 

 

Bonds bearing the manual or facsimile signatures of the persons who were the Issuer’s Highest Elected Official and Clerk at the time of the execution thereof shall be valid and sufficient for all purposes notwithstanding that such persons or either of them have ceased to hold such offices prior to the authentication and delivery of the Bonds or did not hold such offices at the date of the Bonds.  For this purpose a Bond executed by facsimile signature shall be deemed to have been executed on the date of the printing thereof.

 

 

 

Each Bond shall be fully negotiable.  Any Bond may be transferred but only by a written assignment duly executed by the Bondowner or by such Bondowner’s duly authorized legal representative.  Upon presentation and any other holder of a participating interest in the Bonds of the Bond together with said executed form of assignment at the Trustee’s Principal Office, the Trustee shall register the transfer in the Bond Register; provided, however, that the Trustee shall have no obligation to register the transfer unless the executed assignment shall be satisfactory to it in form and substance.  Upon registration of the transfer of a Bond, the Trustee shall cancel the surrendered Bond and the Issuer shall issue, and the Trustee shall authenticate, one or more new Bonds of authorized denominations of the same maturity and interest rate and in the same aggregate outstanding principal amount as the surrendered Bond.

 

The Bondowner requesting any registration of transfer or exchange of Bonds shall pay with respect thereto any resulting tax or governmental charge.  All such payments shall be conditions precedent to the exercise of the Bondowner’s rights of registration of transfer or exchange.  The Trustee shall not be required to register the transfer or to exchange any particular Bond after such Bond has been selected for redemption.  All registrations of transfer and exchanges of Bonds shall be accomplished in such manner that no increase or decrease in interest payable on the Bonds results therefrom.

 

 

 

 

 

In any case where the date of maturity of interest on or principal of the Bonds or the date fixed for redemption of any Bonds shall be, in the city in which the Trustee’s Principal Office is located, a Saturday, Sunday or a legal holiday, the payment of principal, premium, if any, and interest need not be made on such date in such city but may be made on the next succeeding Business Day.

 

Interest on any Bond which is payable, and is punctually paid or duly provided for, on any Redemption Date that is not a regularly scheduled Payment Date, shall be paid by check drawn by the Borrower, payable to the order of the person in whose name the Bond is registered at the close of business on the day next preceding such Redemption Date, initially the Original Purchaser.

 

 

 

 

 

Prior to the delivery of the Bonds by the Trustee there shall be filed with the Trustee:

 

 

 

 

 

 

Any Bonds shall be deemed to be paid when payment of the principal of and premium, if any, on such Bond, plus interest thereon to the due date thereof (whether such due date be by reason of maturity or upon redemption as provided herein, or otherwise) either (a) shall have been made or caused to be made in accordance with the terms hereof, or (b) shall have been provided for by irrevocably depositing with the Trustee, in trust and irrevocably setting aside exclusively for such payment, (i) cash, without regard to any investment or reinvestment thereof, sufficient to make such

 

 

 

Notwithstanding the foregoing, no deposit under clause (b) of the immediately preceding paragraph shall be deemed a payment of such Bonds as aforesaid until:

 

 

 

 

 

 

All moneys or Defeasance Obligations set aside and held in trust pursuant to the provisions of this Article for the payment of Bonds (including interest and premium thereon, if any) shall be applied to and used solely for the payment of the particular Bonds (including interest and premium thereon, if any) with respect to which such moneys and Defeasance Obligations have been so set aside in trust.

 

If moneys or Defeasance Obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of Bonds and the interest and premium, if any, thereon and such Bonds and the interest and premium, if any, thereon shall not have in fact been actually paid in full, no amendment to the provisions of this Section 2.23 shall be made without the consent of the Bondowner of each of the Bonds affected thereby.

 

 

 

 

 

It is the intention of the Parties that neither the entire $3,000,000 principal amount of the Series A Bonds nor the entire $500,000 principal amount of the Series B Bonds nor the entire $500,000 principal amount of the Series C Bonds will, in any case, be funded on the Effective Date.  Rather, the Borrowers will submit one or more Borrowers’ Requisitions to the Trustee and the Original Purchaser in accordance with Section 4.02.  The Original Purchaser shall review each such Borrowers’ Requisition and if, in the Original Purchaser’s absolute discretion, the Original Purchaser shall approve such Borrowers’ Requisition, the Original Purchaser shall (i) disburse the amount requested in such Borrowers’ Requisition directly to or on behalf of the Borrowers as specified in the applicable Borrowers’ Requisition, and (ii) notify the Trustee of such disbursement, and thereupon the Trustee shall be deemed to have received such amount from the Original Purchaser in payment of a corresponding amount of the original purchase price of the Series A Bonds, Series B Bonds or Series C Bonds, as the case may be, and to have deposited such amount into the applicable Project Fund Account, and to have contemporaneously disbursed such amount in payment or reimbursement of Project Costs in accordance with Section 4.02.

 

 

The Trustee is hereby authorized and directed to disburse moneys from the Project Fund to pay (or reimburse the Borrowers for) Project Costs.  Except as otherwise provided below, such disbursements shall be made only upon a Borrower’s Requisition made by or on behalf of the Borrowers meeting the requirements of and submitted in accordance with Section 4.02.  Notwithstanding the foregoing, there shall never be disbursed from either the Project Fund – Series A Account or the Project Fund – Series B Account to pay or reimburse any of the costs of acquiring and installing the Project Equipment, and there shall never be disbursed from the Project Fund – Series C Account to pay or reimburse any of the Project Costs other than the costs of acquiring and installing the Project Equipment, in each case including a ratable portion of indirect costs (such as, by way of example and not limitation, Trustee’s fees and the costs of issuing the Bonds).

 

In addition, disbursements from the Project Fund shall be subject to such further terms and conditions as may be contained in the Credit Agreement and the Disbursing Agreement (as defined in the Credit Agreement).

 

 

If an Event of Default shall have occurred and be continuing, the Trustee (without any authorization from the Borrower) may, if the Trustee has accelerated the Bonds under Section 8.02, apply moneys in the Project Fund in accordance with Section 8.06.

 

Upon the closing of the Project Fund in accordance with Section 4.05, any remaining balance in the Project Fund shall be transferred to the Bond Fund.

 

 

 

 

 

 

The Issuer covenants that it will deposit or cause to be deposited into the Bond Fund, but solely from Pledged Revenues, amounts sufficient to pay when due the principal of and interest on the Bonds.  Except as otherwise expressly provided herein, moneys in the Bond Fund shall be used solely for the payment of principal of and interest on the Bonds when due at stated maturity, upon redemption prior to maturity, upon acceleration of maturity, or otherwise in accordance with the terms hereof.  The Issuer hereby authorizes and directs the Trustee to withdraw sufficient moneys from the Bond Fund to pay the Bonds and the interest thereon as the same become due and payable.

 

 

 

 

 

 

 

 

The Issuer hereby authorizes and directs the Trustee to (i) transfer funds from the Redemption Fund to the Bond Fund when and as required to pay the principal of any Bonds called for redemption in accordance with this Bond Agreement; (ii) withdraw funds from the Redemption Fund to pay any premiums payable on Bonds called for redemption in accordance with this Bond Agreement; and (iii) transfer funds from the Redemption Fund to the Bond Fund to pay the final payment of principal on the Bonds at the last maturity thereof.  Except to the extent moneys in the Redemption Fund are needed for the purposes described in the foregoing clauses (i) and (ii), the Trustee is authorized to use funds in the Redemption Fund for the purchase of Bonds for cancellation; provided that such purchases shall be made only to the extent authorized by the Borrowers in a Borrowers’ Certificate; and provided further that the purchase price for any Bond so purchased shall not exceed the principal amount thereof plus any accrued and unpaid interest thereon.

 

 

The Trustee shall deposit into the Insurance and Condemnation Proceeds Fund, when and as received, the Net Proceeds of title insurance claims, casualty insurance claims and eminent domain awards in accordance with and to the extent provided herein.

 

The Trustee is hereby authorized and directed to use moneys in the Insurance and Condemnation Proceeds Fund in accordance with directions from the Borrowers in a Borrowers’ Certificate, with the Original Purchaser’s consent (subject, however, to the rights of the Bondowners to require prepayment on the Bonds pursuant to Section 2.06), for any of a combination of the following purposes:

 

 

 

 

 

 

 

The amount computed to be rebatable arbitrage as of each Computation Date (the “Rebate Credit Amount”) shall be paid by the Borrowers to the Trustee for deposit to the Rebate Credit Account as of such Computation Date.  The Borrowers have agreed in Section 4.07 to fund the deficiency if the amounts on deposit in the funds and accounts created by this Bond Agreement are less than the Rebate Credit Amount. The Trustee is authorized to hire such experts as it deems necessary to make this calculation, which shall be an expense of the Trustee paid by the Borrowers under Section 4.07.  All earnings from the reinvestment of any amounts in the Rebate Credit Account shall remain in the Rebate Credit Account.

 

Within 60 days of each Computation Date, the Borrowers shall cause the Trustee to pay to the United States at least 90% of the rebatable arbitrage as of such Computation Date, and within 60 days of the final Computation Date, the Borrowers shall cause the Trustee to pay to the United States all of the rebatable arbitrage as of the final Computation Date and any income attributable to such rebatable arbitrage; provided, however, that no such income shall be included in the final rebate payment if such income is less than $300.  The Trustee shall pay such amounts by check or draft to the United States; and file a copy of the Form 8038 received from the Borrowers with respect to the Bonds and a statement summarizing the determination of the amount required to be paid to the United States with the Internal Revenue Service Center, Ogden, Utah 84201.

 

Notwithstanding anything to the contrary in this Section, rebatable arbitrage shall be calculated and paid as provided in Section 148(f) of the Code and applicable regulations thereunder.  In the event the Issuer is or the Borrowers are of the opinion (supported by an opinion of Bond Counsel) that it is necessary or advisable to restrict or limit the yield on the investment of any moneys held in any Trust Fund in order to avoid the Bonds being considered “arbitrage bonds” within the meaning of Section 148(f) of the Code, the Issuer may (and shall if so requested by the

 

 

 

 

 

All such investments and reinvestments shall be made in Qualified Investments having a maturity not later than the estimated time when the moneys so invested will be needed for the purposes of the Trust Fund of which they are a part.

 

The Trustee may make and execute any such investment through its own bond department, money center or other investment operation or through the bond department, money center or investment operation of any affiliated bank.

 

 

 

Section 4.01 Amount and Source of Loans.

 

 

 

 

 

In addition, the Borrowers recognize the right of the Trustee or the Original Purchaser to require additional documentation regarding the progress of the Project, absence of liens, percentage of completion, incurrence of costs and similar matters prior to disbursing moneys from the Project Fund, where deemed reasonably necessary.  Such documents may include without limitation:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 6.01 Representations by the Borrowers Individually

 

(a)   M & W.  Except as otherwise stated herein, M & W makes the following representations as the basis for its covenants herein:

 

      (i)   M & W is a duly organized and validly existing Wisconsin limited liability company and: (i) no filing has been made with the Wisconsin Department of Financial Institutions of Articles of Dissolution with respect to M & W, (ii) the members of M & W have not taken any action authorizing the liquidation or dissolution of M & W, (iii) M & W has filed with the Wisconsin Department of Financial Institutions the required annual report for its most recently completed report year , and (iv) M & W is not the subject of a proceeding under Wisconsin Statutes Section 183.09025 to cause its dissolution, and no determination has been made that grounds exist for such action.

 

 

      (iii)   The execution and delivery of this Bond Agreement, the Promissory Note and the Security Documents, the consummation of the transactions contemplated by such instruments, and the fulfillment of the terms and conditions of such instruments do not and will not conflict with or result in a breach of any of the terms or conditions of the M & W Organizational Documents, or any mortgage, indenture, loan agreement or other restriction or of any agreement or instrument to which M & W is now a party or to which any property of M & W is subject, and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any lien, charge or encumbrance of any nature upon any of the property or assets of M & W contrary to the terms of any instrument or agreement to which M & W is a party or by which any of its property or assets is bound.

 

      (iv)   This Bond Agreement constitutes the legal, valid and binding obligation of M & W, enforceable in accordance with its terms, except as the enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, conservatorship, receivership or similar laws affecting the enforcement of creditors' rights generally and general equitable principles.

 

 

      (i)   Advanced is a corporation validly existing under the laws of the State of Wisconsin and: (i) no filing has been made with the Wisconsin Department of Financial Institutions of Articles of Dissolution or a decree of dissolution with respect to Advanced, (ii) the Board of Directors of Advanced has not taken any action authorizing the liquidation or dissolution of Advanced, (iii) Advanced has filed with the Wisconsin Department of Financial Institutions the required annual report for its most recently completed report year,  nd (iv) Advanced is not the subject of a proceeding under Wisconsin Statutes Section 181.1421 to cause its dissolution, and no determination has been made that grounds exist for such action.

 

      (ii)   The execution and delivery of this Bond Agreement, the Promissory Note and the Security Documents, the consummation of the transactions contemplated by such instruments, and the fulfillment of the terms and conditions of such instruments do not and will not conflict with or result in a breach of any of the terms or conditions of the Advanced Organizational Documents, or any mortgage, indenture, loan agreement or other restriction or of any agreement or instrument to which Advanced is now a party or to which any property of Advanced is subject, and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any lien, charge or encumbrance of any nature upon any of the property or assets of Advanced contrary to the terms of any instrument or agreement to which Advanced is a party or by which any of its property or assets is bound.

 

      (iii)   This Bond Agreement constitutes the legal, valid and binding obligation of Advanced, enforceable in accordance with its terms, except as the

 

 

 

enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, conservatorship, receivership or similar laws affecting the enforcement of creditors' rights generally and general equitable principles.

 

 

(i)   Each of them is an adult resident of the State of Wisconsin and they are married to each other.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 6.07 Maintenance of Property; Insurance.  The Borrowers shall:

 

 

 

(c)   Have the Trustee named as an additional insured.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 6.13 Environmental Compliance.  The Borrowers shall:

 

 

 

 

Notwithstanding the foregoing, nothing contained in this Bond Agreement, or in the Loan Documents, or in the enforcement of this Bond Agreement or the Loan Documents, shall constitute or be construed as granting or providing the right, power or capacity to the Issuer or the Original Purchaser to exercise (a) decision-making control of the Borrowers’, any Subsidiary’s or any tenant’s compliance with any Environmental Law, or (b) day-to-day decision making of the Borrower, any Subsidiary or any tenant with respect to (i) compliance with Environmental Laws or (ii) all or substantially all of the operational aspects of the Borrower, any Subsidiary or any tenant.

 

 

Notwithstanding any provision of ARTICLE X or any other provision of the Bond Agreement to the contrary, the provisions of this Section 6.14 may, so long as the Original Purchaser is the holder of record of all (100%) in principal amount of the Bonds then Outstanding, be amended and further amended from time to time to add, delete or modify any financial covenant set forth herein by a written instrument executed by the Borrowers and the Original Purchaser.  No prior notice to or consent of the Issuer or the Trustee shall be required to effect an amendment to this Section 6.14; however, the Borrowers shall file with the Trustee the written instrument, signed by the Borrowers and the Original Purchaser, within 30 days of the effective date of any such amendment.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Trustee shall be deemed to have a conflicting interest hereunder if it has a “conflicting interest” within the meaning of Section 3.10(b)(1) to (9), inclusive, of the Trust Indenture Act of 1939, as amended, except that the Trustee shall not be deemed to have a conflicting interest solely by reason of its having for itself or as a banker become a purchaser, seller or pledgee of the Bonds, it being understood that the Trustee may so deal with Bonds with the same rights that it would have if it were not Trustee and without liability or accountability to the Issuer or Bondowners on account thereof.  Also, it may act as depositary for any purpose for any committee formed to protect the rights of Bondowners or effect or aid in any reorganization growing out of or involving the enforcement of the Bonds or this Bond Agreement whether or not any such committee shall represent the Bondowners of a majority in aggregate principal amount of the Bonds Outstanding hereunder.

 

In the event that the Trustee shall fail to comply with the provisions of this Section 7.10, the Trustee shall within 10 days after the expiration of such 90-day period, transmit notice of such failure to the Bondowners.

 

Any Bondowner who has been a bona fide Bondowner of a Bond or Bonds for at least six months may, on behalf of himself, herself or itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor, if the Trustee fails, after written request therefor by such Bondowner, to comply with the provisions of this Section.

 

 

 

 

 

 

 

(c)   A “Loan Default” shall occur under Section 9.01; or

 

 

 

 

If any Bond Default shall have occurred, and if requested so to do by the Bondowners of at least 25% in aggregate principal amount of Bonds then Outstanding and if indemnified as provided in Section 7.01, the Trustee shall be obliged to exercise such one or more of the rights and powers conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient in the interest of the Bondowners.

 

No remedy by the terms of this Bond Agreement conferred upon or reserved to the Trustee (or to the Bondowners) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bondowners hereunder or now or hereafter existing at law or in equity or by statute.

 

No delay or omission to exercise any right or power accruing upon any default or event of default shall impair any such right or power or shall be construed to be a waiver of any such default or event of default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed reasonable or prudent.

 

No waiver of any default or Bond Default hereunder, whether by the Trustee pursuant to the provisions of Section 8.10 or by the Bondowners, shall extend to or shall affect any subsequent default or event of default or shall impair any rights or remedies consequent thereon.

 

 

 

 

 

First:  To the payment to the Persons entitled thereto of all installments of interest then due on the Bonds, in the order of the maturity of the installments of such interest including interest (to the extent permitted by law) on overdue installments of interest, and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto without any discrimination or privilege; and

 

Second:  To the payment to the Persons entitled thereto of the unpaid principal of any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which moneys are held pursuant to the provisions hereof), in the order of their due dates, with interest (to the extent permitted by law) on such Bonds from the respective dates upon which they became due and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the persons entitled thereto without any discrimination or privilege.

 

Third:  To the payment to the Persons entitled thereto of the unpaid premium, if any on any of the Bonds which have been called for redemption, in the order of the redemption dates, with interest (to the extent permitted by law) on such premiums from the respective dates on which such premiums became due, and, if the amount available shall not be sufficient to pay in full the premiums due on any particular redemption date, together with such interest, then to the payment ratably, according to the premium due on such date, to the persons entitled thereto without any discrimination or privilege.

 

 

 

Whenever moneys are to be applied pursuant to the provisions of this Section 8.06, such moneys shall be applied at such times from time to time as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future.  Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an Payment Date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue.  The Trustee shall give such notice as it may deem appropriate of the deposit and shall not be required to make payment to the Bondowner of any unpaid Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

If at any time the Issuer shall request the Trustee to enter into any amendment for any of the purposes of this Section 10.02, the Trustee shall, upon being satisfactorily indemnified with respect to expenses, mail a copy of the notice by first-class mail to each Bondowner thirty (30) days prior to entering into any amendment.  Such notice shall briefly set forth the nature of the proposed amendment and shall state that copies thereof are on file at the Trustee’s Principal Office for inspection by all Bondowners.  If thereafter any such amendment shall have been consented to and approved as herein provided, no Bondowner shall have any right to object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to question the propriety of

 

 

 

 

 

 

 

In consideration of the premises, the acceptance by the Trustee of the trusts hereby created, and the purchase and acceptance of delivery of the Bonds by the Original Purchaser, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to secure the payment of the principal of, premium, if any, and interest on all Bonds at any time issued and outstanding hereunder according to their tenor and effect, and to secure the performance and observance by the Issuer of all the covenants contained in the Bonds and in this Bond Agreement, the Issuer does hereby convey, transfer, set over, pledge, assign, and grant a security interest in and confirm unto the Trustee, its successors and assigns forever, all and singular the properties, revenues and rights hereinafter described and the proceeds thereof (collectively called the “Trust Estate”), to wit:

 

 

 

 

 

 

 

IN TRUST, for the equal and ratable benefit and security of the Bondowners without preference, priority or distinction as to lien or otherwise of any particular Bond over any other Bond, except as otherwise expressly provided herein;

 

PROVIDED, HOWEVER, that the Issuer reserves the right to enforce the Unassigned Rights in its own name and for its own account; and

 

PROVIDED, FURTHER, that if the Issuer shall pay, cause to be paid or provide for the payment of the principal of, premium, if any, and interest on the Bonds in accordance with Section 2.23, and if the Issuer shall promptly, faithfully and strictly keep, perform and observe all of its representations, covenants and agreements contained herein, then in such event this Bond Agreement and the rights hereby granted (excepting Bondowners’ rights theretofore vested) shall cease, terminate and be void, otherwise to remain in full force and effect upon the trusts and subject to the conditions hereinafter set forth.

 

All Bonds issued and secured hereunder are to be issued, authenticated and delivered, and all Trust Funds, revenues and income hereby pledged are to be dealt with and disposed of under and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes herein expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the respective Bondowners from time to time of the Bonds, as set forth herein.

 

 

 

 

A duplicate copy of each notice, certificate or other communication given hereunder by either the Issuer or the Trustee shall also be concurrently given to the Borrowers at its Address.

 

Whenever the Trustee is required hereunder to give notice to Bondowners, it shall give such notice by first class mail to each person on the Bond Register whose Bond is affected thereby.

 

 

 

 

 

 

 

 

 

 

Subject to the conditions set forth in this ARTICLE XIII, the Original Purchaser agrees to purchase the Bonds, and to fund Borrowers’ Requisitions as provided in Sections 3.01, 3.02, 4.01 and 4.02 of this Bond Agreement; provided, however, that the Original Purchaser shall be required to fund a Borrower's Requisition only if no Event of Default is continuing hereunder and if the

 

 

 

In addition to the terms and conditions otherwise contained herein, the obligation of the Original Purchaser to purchase the Bonds is conditioned upon the Original Purchaser receiving each of the following items in form, detail and content satisfactory to the Original Purchaser:

 

 

 

 

 

 

 

 

Section 13.08 Survey.  [Reserved].

 

 

 

 

 

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

IN WITNESS WHEREOF, the Issuer, the Borrowers, the Trustee and the Original Purchaser have caused this Bond Agreement to be executed and delivered as of the date first above written.

 

[SEAL]	CITY OF WISCONSIN RAPIDS, WISCONSIN     By:       /s/ Mary Jo Carson                                      Mary Jo Carson, Mayor     By:       /s/ Vernon J. Borth                                    Vernon J. Borth, City Clerk
	ADVANCED FIBERGLASS TECHNOLOGIES, INC.     By:       /s/ Jamie L. Mancl                                  Jamie L. Mancl, President
	M & W FIBERGLASS, LLC     By:     /s/ Jamie L. Mancl                                              Jamie L. Mancl, Sole Member
	/s/ Jamie L. Mancl                                           JAMIE L. MANCL     /s/ Jennifer Mancl                                          JENNIFER MANCL
	NEKOOSA PORT EDWARDS STATE BANK, as Trustee   By:      /s/ Robb Nash Sigler                              Robb Nash Sigler
	NEKOOSA PORT EDWARDS STATE BANK, as Original Purchaser   By:       /s/ Robb Nash Sigler                             Robb Nash Sigler

 

 

 

PROJECT DESCRIPTION

 

The project consists of the construction and equipping of an approximately 70,000 square-foot manufacturing facility located on a 22 acre parcel in the Rapids East Commerce Center, and having a street address of 4400 Commerce Drive, in the City of Wisconsin Rapids, Wisconsin (the “Project”) to be owned by M&W Fiberglass, LLC and leased to Advanced Fiberglass Technologies, Inc. for its use in connection with its business of manufacturing fiberglass products.   The initial operator of the Project will be Advanced Fiberglass Technologies, Inc.

 

 

FORM OF BOND

 

 

 

FORM OF PROMISSORY NOTE

 

EXHIBIT D

 

 

FORM OF BORROWERS’ REQUISITION

 

 

 

 

 

 

 

 

 

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