HomeMy WebLinkAboutOrdinance #4340CERTIFICATE
THE UNDERSIGNED CERTIFIES THAT SHE IS THE CITY CLERK FOR THE CITY
OF CANTON, ILLINOIS, AND THAT THE CITY COUNCIL AT A REGULARLY
CONSTITUTED MEETING OF SAID CITY COUNCIL OF THE CITY OF CANTON ON THE
16TH DAY OF MAY, 2023 ADOPTED ORDINANCE NO. 4340 A TRUE AND CORRECT COPY
OF WHICH IS CONTAINED IN THIS PAMPHLET.
GIVEN UNDER MY HAND AND SEAL THIS 16TH DAY OF MAY, 2023.
(SEAL)
ANDREXSMITH-WALTERS
ITY CLERK
ORDINANCE NO. 4340
AN ORDINANCE AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$15,000,000 AGGREGATE PRINCIPAL AMOUNT OF HEALTH CARE
FACILITIES REVENUE BONDS, SERIES 2023 (GRAHAM HOSPITAL
ASSOCIATION PROJECT) OF THE CITY OF CANTON, FULTON COUNTY,
ILLINOIS, THE PROCEEDS OF WHICH SHALL BE LOANED TO GRAHAM
HOSPITAL ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT
CORPORATION, TO FINANCE OR REIMBURSE THE ACQUISITION,
CONSTRUCTION, RENOVATION AND EQUIPPING OF HEALTH CARE
FACILITIES LOCATED WITHIN THE CITY OF CANTON, ILLINOIS, THE
CITY OF GALESBURG, ILLINOIS, AND THE CITY OF MACOMB,
ILLINOIS; PROVIDING FOR THE PLEDGE AND ASSIGNMENT OF
REVENUES AND OTHER AVAILABLE FUNDS FOR THE PAYMENT OF
SAID BONDS TO BE ISSUED IN ONE OR MORE SERIES; AUTHORIZING
A BOND AND LOAN AGREEMENT AND A TAX COMPLIANCE
AGREEMENT; AUTHORIZING AGREEMENTS TO SECURE FURTHER
THE PAYMENT OF SAID BONDS; AND AUTHORIZING OTHER ACTIONS
IN CONNECTION WITH THE ISSUANCE OF SUCH BONDS
WHEREAS, the City of Canton, Fulton County, Illinois (hereinafter called the "City"), is
a municipality duly organized and validly existing under the Constitution and laws of the State of
Illinois, and by virtue of the Constitution and laws of the State of Illinois, including the Industrial
Building Revenue Bond Act, 50 ILCS 445/1 et seq., as supplemented and amended, including by
the Illinois Bond Replacement Act, the Registered Bond Act, the Bond Authorization Act and
the Local Government Debt Reform Act (collectively, the "Act'), is authorized and empowered,
among other things: (a) to provide funds for the acquisition of privately owned industrial
projects, including health care facilities, (b) to issue its revenue bonds for the purposes set forth
herein, (c) to secure such revenue bonds by a pledge and assignment of revenues and other
available funds and other documents, as provided for herein, and (d) to enact this Ordinance and
execute the Bond and Loan Agreement, as hereinafter identified, and all other documents to be
executed by it, upon the terms and conditions provided therein; and
WHEREAS, the City Council of the City of Canton, Illinois (the "Council") has
heretofore found and determined, and does hereby confirm, that the financing of the acquisition,
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construction, renovation and equipping of certain health care facilities of Graham Hospital
Association, an Illinois not-for-profit corporation (the "Borrower"), constituting industrial
projects to be located within the jurisdictions of the City, the City of Galesburg, Illinois, and the
City of Macomb, Illinois (collectively, the "Project Jurisdictions"), which facilities consist of a
medical office/clinic building and hospital facilities located at 210 West Walnut Street, Canton,
Illinois, 126 N. 5th Avenue, Canton, Illinois, 1630 East Jackson Street, Macomb, Illinois, 1174
North Seminary Street, Galesburg, Illinois, 530 North Seminary Street, Galesburg Illinois, and
2028 North Seminary Street, Galesburg, Illinois (collectively, the "Facilities") and will consist of
financing various improvements to the Facilities, including without limitation, the acquisition,
construction, remodeling and equipping of certain health facilities constituting industrial projects
under the Act, including, but not limited to, various equipment and system upgrades and related
hospital infrastructure (collectively, the "Project"), all as more fully set forth in the Bond and
Loan Agreement, will relieve conditions of unemployment and underemployment and encourage
the increase of industry and commerce within the Project Jurisdictions, thereby reducing the evils
attendant upon unemployment and underemployment and providing for the increased welfare
and prosperity of the residents of the Project Jurisdictions, and that the City, by assisting with the
financing of the Project through the issuance of revenue bonds in the maximum aggregate
principal amount of not to exceed $15,000,000, will be acting in a manner consistent with and in
furtherance of the provisions of the Act; and
WHEREAS, subject to consent by the County of Knox, Illinois and the County of
McDonough, Illinois pursuant to Section 4(a) of the Act, it is determined by the City that the
amount necessary to finance or reimburse the costs of or related to the Project will require the
issuance, sale and delivery of not to exceed $15,000,000 aggregate principal amount of Health
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4883-3722-9150.5
Care Facilities Revenue Bonds, Series 2023 (Graham Hospital Association Project) (the "Series
2023 Bonds" or the "Bonds"); and
WHEREAS, it is necessary to authorize the execution of a Bond and Loan Agreement
(the "Bond and Loan Agreement") among the City, the Borrower and such financial institution
and/or trustee as may be approved by the Issuer and the Borrower, including, without limitation
Clayton Holdings, LLC, or an affiliate thereof (the "Purchaser"), under the terms of which the
City will lend the proceeds of the Bonds, issued in one or more series, to the Borrower in order
to provide funds for the financing of the Project, the payments to be paid by the Borrower to the
City in repayment of the loan to be sufficient to pay at maturity the principal of, premium, if any,
and interest on the Bonds; and
and
WHEREAS, the City proposes to sell the Bonds upon a negotiated basis to the Purchaser;
WHEREAS, the City has caused to be prepared and presented the following documents,
which the City proposes to enter into:
1. the Bond and Loan Agreement;
2. the Bonds.
WHEREAS, pursuant to the provisions of Section 147(f) of the Internal Revenue Code of
1986, as amended (the "Code"), a public hearing regarding the issuance of the Bonds was held
by the City Council on May 16, 2023, pursuant to notice given by electronic posting on the
City's primary public website on May 9, 2023; and
WHEREAS, the City Council is the applicable elected representative body required to
approve the issuance of the Bonds on behalf of the City within the meaning of the Code;
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4883-3722-9150.5
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CANTON, FULTON COUNTY, ILLINOIS, AS FOLLOWS:
Section 1. The financing of the costs of the Project and the financing all or a portion
of the costs of issuance of the Bonds through the issuance and sale of the Bonds, in one or more
series, in accordance with the terms of the Bond and Loan Agreement are hereby authorized and
approved. The use of the proceeds of the Bonds to finance or reimburse the costs of the Project
and finance all or a portion of the cost of issuance of the Bonds is in furtherance of the public
purposes of the City.
Section 2. That the form, terms and provisions of the proposed Bond and Loan
Agreement be, and the same hereby is, in all respects approved, and that the Mayor and the City
Clerk be, and they are hereby authorized, empowered and directed to execute and deliver such
instrument in the name and on behalf of the City, and to cause the Bond and Loan Agreement to
be delivered to the Borrower and the Purchaser. The Bond and Loan Agreement is to be in
substantially the form attached to this Ordinance as Exhibit A and is hereby approved, and the
Mayor and City Clerk are hereby authorized to make changes to the Bond and Loan Agreement
as are consistent with this Ordinance. The execution of any and all documents related to the
Bond and Loan Agreement, and the Bonds by officials of the City shall constitute conclusive
evidence of the City's approval of any and all changes or revisions therein from the form of the
Bond and Loan Agreement hereby approved; and that from and after the execution and delivery
of such instruments, the officials, agents and employees of the City are hereby authorized,
empowered and directed to do all such acts and things and to execute all such documents as may
be necessary to carry out and comply with the provisions of such instruments as executed. The
City has not confirmed, and assumes no responsibility for, the accuracy, sufficiency or fairness
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4883-3722-9150.5
of any representations, statements, reports, financial information, offering or disclosure
documents or other information submitted by the Borrower to the Purchaser relating to the
Bonds, the Project, the Borrower or the history, businesses, properties, organization,
management, financial condition, market area or any other matter relating to the Borrower or the
Project. The Bond and Loan Agreement shall constitute and is hereby made a part of this
Ordinance and copies of such document shall be placed in the official records of the City, and
shall be made available for public inspection.
Section 3. That the issuance of the Bonds in the aggregate principal amount of not to
exceed $15,000,000 and subject to optional and mandatory redemption in accordance with the
terms and provisions of the Bond and Loan Agreement, as executed, and bearing interest initially
as determined in accordance with the Bond and Loan Agreement but in no event is the interest
rate on the Bonds (regardless of the rate period) to exceed twelve percent (12%) per annum, with
a maturity no later than June 1, 2063, is hereby approved and the Mayor and the City Clerk of
the City be and are hereby authorized, empowered and directed to cause to be prepared the
Bonds in the form and having the other terms and provisions specified in the Bond and Loan
Agreement (as executed and delivered); that the Bonds shall be designated "Health Care
Facilities Revenue Bonds, Series 2023 (Graham Hospital Association Project)"; that the Bonds
shall be executed in the name of the City with the manual or facsimile signature of its Mayor and
the manual or facsimile signature of its City Clerk and the seal of the City shall be impressed or
reproduced thereon, and that the Mayor or any other officer of the City shall cause the Bonds, as
so executed and attested, to be delivered to the Purchaser; and the form of the Bonds submitted
to this meeting as the same appears in the Bond and Loan Agreement, subject to appropriate
insertion and revision in order to comply with the provisions of said Bond and Loan Agreement
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4883-3722-9150.5
be, and the same hereby are, approved, and when the same shall be executed on behalf of the
City in the manner contemplated by the Bond and Loan Agreement and this Ordinance in the
aggregate principal amount of not to exceed $15,000,000, it shall represent the approved form of
the Bonds of the City.
Section 4. The Bonds shall be special limited obligations of the City and except to
the extent payable from Bonds proceeds or moneys from the investment thereof, shall be payable
solely from the revenues and receipts and other amounts received by or on behalf of the City
pursuant to the Bond and Loan Agreement. The Bonds and interest thereon shall not be deemed
to constitute an indebtedness or a general obligation of the City, the State of Illinois or any
political subdivision thereof within the meaning of any constitutional or statutory provision or a
charge against the general credit or taxing powers, if any, of the City, the State of Illinois or any
political subdivision thereof. No taxing powers of the City, the State of Illinois or any political
subdivision thereof are pledged or available to pay the Bonds or interest thereon. The special
limited nature of the obligation represented by the Bonds are more fully set forth in the Bond and
Loan Agreement, which provisions are incorporated herein by reference.
Section 5. That the sale of the Bonds to the Purchaser at a price not to exceed
$15,000,000 is hereby in all respects authorized and approved.
Section 6. That from and after the execution and delivery of the Bond and Loan
Agreement, the proper officials, agents and employees of the City are hereby authorized,
empowered and directed to do all such acts and things and to execute all such documents as may
be necessary to carry out and comply with the provisions of said document as executed and to
further the purposes and intent of this Ordinance, including the preamble hereto. The Mayor and
the City Clerk be, and they are hereby, further authorized and directed for and on behalf of the
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4883-3722-9150.5
City, to execute all papers, documents, certificates and other instruments that may be required for
the carrying out of the authority conferred by this Ordinance or to evidence said authority,
including without limitation the signing of IRS Form 8038 and the filing thereof as therein
required and the certifications relating to Section 148 of the Code and the regulations
promulgated thereunder and changes in the documents approved hereby as approved by the
officials of the City executing the same, and to exercise and otherwise take all necessary action
to the full realization of the rights, accomplishments and purposes of the City under the Bond
and Loan Agreement and to discharge all of the obligations of the City thereunder. In its
performance of the covenants pertaining to federal income tax laws, the City may rely upon the
written advice of nationally recognized bond counsel. For purposes of certifying to matters of
arbitrage, the Mayor is hereby designated an officer responsible for issuing the Bonds.
Section 7. That all acts and doings of the officials of the City which are in conformity
with the purposes and intent of this Ordinance and in furtherance of the issuance and sale of the
Bonds in the aggregate principal amount of not to exceed $15,000,000 and the financing of the
Project to that amount be, and the same hereby are, in all respects, approved and confirmed.
Section 8. That the City hereby approves the Project, the plan of financing and the
issuance of the Bonds pursuant to Section 147(f) of the Code.
Section 9. The Bonds will be restricted, or caused to be restricted, and the proceeds
of the Bonds used, in such manner and to such extent, as may be necessary, after taking into
account reasonable expectations at the time the Bonds is delivered to the Purchaser, so that they
will not constitute arbitrage Bonds under Section 148 of the Code.
Section 10. That the Bonds shall be issued in compliance with and under the authority
of the provisions of this Ordinance and the Bond and Loan Agreement.
WE
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Section 11. No recourse under or upon any obligation, covenant, acceptance or
agreement contained in this Ordinance, or in the Bond and Loan Agreement, or under any
judgment which may be obtained against the City or by the enforcement of any assessment or by
any legal or equitable proceeding by virtue of any constitution or statute or otherwise, or under
any circumstances, shall be had against the Mayor, City Clerk, City Treasurer, any alderman of
the City Council or any other member, director, officer, employee or agent of the City as such,
past, present, or future, either directly or through the City, or otherwise, for the payment of or to
the City or any receiver thereof, or for or to any owner of the Bonds, or otherwise, of any sum
that may be due and unpaid by the City upon any of Bonds. Any and all personal liability of
every nature, whether at common law or in equity, or by statute or by constitution or otherwise,
of any such officer, as such, to respond by reason of any act or omission on his or her part, or
otherwise, for, directly or indirectly, the payment for or to the City or any receiver thereof, or for
or to the owner or any holder of any Bonds, or otherwise, of any sum that may remain due and
unpaid upon the Bonds, shall be deemed to be expressly waived and released as a condition of
and consideration for the execution and delivery of the Bond and Loan Agreement, the issuance
of the Bonds, and related documents and instruments.
Section 12. That the provisions of this Ordinance (except Section 11) are hereby
declared to be separable, and if any section, phrase or provision shall, for any reason, be declared
to be invalid, such declaration shall not affect the validity of the remainder of the sections,
phrases or provisions.
Section 13. All statutes of the State of Illinois or any parts thereof which are in
conflict with the provisions of this Ordinance are hereby superseded by this Ordinance to the
extent permitted by applicable law.
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Section 14. That all ordinances, resolutions, orders or parts thereof in conflict with the
provisions of this Ordinance ("Conflicting Council Actions") are to be read as authorizing this
Ordinance. To the extent such a reading is not possible, all Conflicting Council Actions are
hereby superseded and repealed to the extent of such conflict.
Section 15. This Ordinance shall be in full force and effect from and after its passage
and approval, in accordance with law.
WE
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I
This Ordinance is hereby passed and deposited in the office of the City Clerk this 6th of
June, 2023.
AYES: AldeMersons Grimm, Nelson, Lovell, Hale, Gossett, Ketcham, Lingenfelter
NAYS: None
ABSENT: Alderperson Chamberlin
APPROVED by me the 6th day of
June, 2023.
4IJ A - &
KENT CD WELL, Mayor
4883-3722-9150.5
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WALTERS, City Clerk
STATE OF ILLINOIS )
) SS.
COUNTY OFFULTON )
CERTIFICATION OF ORDINANCE
I, the undersigned, do hereby certify that I am the duly elected, qualified and acting City Clerk of the
City of Canton, Illinois, a unit of local government and municipality duly organized and existing under the
Constitution and laws of the State of Illinois (the "City"), and as such official I am the keeper of the records
and files of the City and of the Mayor and City Council (the "Corporate Authorities").
I do further certify that the attached ordinance constitutes a full, true and correct excerpt from the
proceedings of the meeting of the City's Corporate Authorities held on June 6, 2023, insofar as same relates
to the adoption of Ordinance No. 4340, entitled:
AN ORDINANCE AUTHORIZING THE ISSUANCE OF NOT TO EXCEED
$15,000,000 AGGREGATE PRINCIPAL AMOUNT OF HEALTH CARE FACILITIES
REVENUE BONDS, SERIES 2023 (GRAHAM HOSPITAL ASSOCIATION
PROJECT) OF THE CITY OF CANTON, FULTON COUNTY, ILLINOIS, THE
PROCEEDS OF WHICH SHALL BE LOANED TO GRAHAM HOSPITAL
ASSOCIATION, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, TO FINANCE
OR REIMBURSE THE ACQUISITION, CONSTRUCTION, RENOVATION AND
EQUIPPING OF HEALTH CARE FACILITIES LOCATED WITHIN THE CITY OF
CANTON, ILLINOIS, THE CITY OF GALESBURG, ILLINOIS, AND THE CITY OF
MACOMB, ILLINOIS; PROVIDING FOR THE PLEDGE AND ASSIGNMENT OF
REVENUES AND OTHER AVAILABLE FUNDS FOR THE PAYMENT OF SAID
BONDS TO BE ISSUED IN ONE OR MORE SERIES; AUTHORIZING A BOND
AND LOAN AGREEMENT AND A TAX COMPLIANCE AGREEMENT;
AUTHORIZING AGREEMENTS TO SECURE FURTHER THE PAYMENT OF SAID
BONDS; AND AUTHORIZING OTHER ACTIONS IN CONNECTION WITH THE
ISSUANCE OF SUCH BONDS
a true, correct and complete copy of which ordinance as adopted at such meeting appears in the minutes
of such meeting and is hereto attached. Such ordinance was adopted and approved on the date and as
therein set forth.
I do further certify that the deliberations of the Corporate Authorities on the adoption of the above
ordinance were taken openly, that the vote on the adoption of such ordinance was taken openly, that
such meeting was held at a specified time and place convenient to the public, that notice of such meeting
was duly given to all of the news media requesting such notice, that the agenda for the meeting was duly
posted at the City Hall at least 48 hours prior to the meeting; that such meeting was called and held in
strict compliance with the provisions of the open meetings laws of the State of Illinois, as amended, and
that the Corporate Authorities have complied with all of the applicable provisions of such laws and their
procedural rules in the adoption of such ordinance.
IN WITNESS WHEREOF, I hereunto affix my official signature and the seal of the City of Canton,
Fulton County, Illinois, this 6th day of June, 2023.
(SEAL)
I WALTERS, City Clerk
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4883-3722-9150.5
Exhibit A
[Attached]
4883-3722-9150.5
BOND AND LOAN AGREEMENT
Dated as of June 1, 2023
among
CITY OF CANTON, FULTON COUNTY, ILLINOIS
GRAHAM HOSPITAL ASSOCIATION
and
CLAYTON HOLDINGS, LLC
$12,500,000
MAXIMUM PRINCIPAL AMOUNT
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2023
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
The rights of the City of Canton, Fulton County, Illinois, hereunder, other than Unassigned
Rights (as defined herein), have been assigned to the Purchaser (as defined herein).
4868-2026-4287.3
BOND AND LOAN AGREEMENT
Table of Contents
Section Heading Page
ARTICLEI. Definitions.........................................................................................................1
ARTICLE II. Representations and Warranties......................................................................10
Section 2.1. Representations and Warranties of Issuer........................................................10
Section 2.2. Representations and Warranties of the Borrower ............................................ l l
Section 2.3. Representations and Warranties of the Purchaser...........................................15
ARTICLE III. Issuance and Sale of Bond; Issuer Covenants.................................................15
Section 3.1. Agreement to Issue and Sell Bond; Designation; Application of Bond
ARTICLEIV. Repayment.......................................................................................................27
Section 4.1. Loan Repayment..............................................................................................27
Section4.2. Prepayments.....................................................................................................27
Section 4.3. Obligations of Borrower Unconditional..........................................................27
ARTICLE V.
Proceeds...........................................................................................................15
Section 3.2.
Issuance of Bond; Form; Dating; Conditions Precedent.................................16
Section 3.3.
Principal of and Interest on the Bond..............................................................17
Section3.4.
Tender..............................................................................................................20
Section3.5.
Redemption......................................................................................................22
Section 3.6.
Execution; Limited Obligation........................................................................23
Section3.7.
Bond Register..................................................................................................24
Section 3.8.
Mutilated, Lost, Stolen or Destroyed Bond.....................................................25
Section 3.9.
Cancellation of Bond.......................................................................................25
Section 3.10.
Temporary Bond..............................................................................................25
Section3.11.
Payment of Bond.............................................................................................25
Section 3.12.
Further Assurances..........................................................................................25
Section3.13.
Tax Exemption.................................................................................................26
Section 3.14.
Performance of Covenants; Issuer...................................................................26
Section 3.15.
Fees, Charges and Expenses of the Bond Registrar and the Issuer .................26
ARTICLEIV. Repayment.......................................................................................................27
Section 4.1. Loan Repayment..............................................................................................27
Section4.2. Prepayments.....................................................................................................27
Section 4.3. Obligations of Borrower Unconditional..........................................................27
ARTICLE V.
Borrower Covenants........................................................................................28
Section 5.1.
Financing Statements.......................................................................................28
Section 5.2.
Borrower's Obligation with Respect to Exclusion of Interest Paid on
theBond...........................................................................................................28
Section 5.3.
Maintenance of Corporate Existence and Tax Status......................................29
Section 5.4.
Required Reporting..........................................................................................30
Section 5.5.
Taxes, Charges and Assessments....................................................................30
Section 5.6.
Compliance with Laws; Taxes and Assessments............................................30
Section 5.7.
Permitted Contests...........................................................................................30
Section 5.8.
Maintenance of Project....................................................................................31
4868-2026-4287.3
Section 5.9. Covenants to Purchaser....................................................................................31
Section 5.10. Use of the Project.............................................................................................31
Section 5.11. Application of Certain Gifts............................................................................32
Section 5.12. Costs of Issuance Fund....................................................................................32
Section 5.13. Completion Certificate.....................................................................................33
ARTICLE VI. Limited Obligation; No Recourse to Issuer; Indemnification .........................34
Section 6.1. Limited Obligation; No Recourse....................................................................34
Section 6.2. Indemnification................................................................................................34
Section 6.3. Default by the Issuer; Limited Liability..........................................................36
ARTICLE VII. Assignment and Transfer.................................................................................36
Section 7.1. Assignment by Borrower.................................................................................36
Section 7.2. Assignment by Issuer.......................................................................................37
Section 7.3. Transfer of Bond..............................................................................................37
ARTICLE VIII
Section 8.1.
Section 8.2.
Section 8.3.
Section 8.4.
Section 8.5.
Section 8.6.
Section 8.7.
ARTICLE IX.
Section 9.1.
Section 9.2.
Section 9.3.
Section 9.4.
Section 9.5.
Section 9.6.
Section 9.7.
Section 9.8.
Section 9.9.
Section 9.10
Section 9.11
Section 9.12
Events of Defaults and Remedies....................................................................37
Eventsof Default.............................................................................................37
Acceleration..................................................................................................... 39
OtherRemedies...............................................................................................39
Waiverof Past Defaults...................................................................................39
Purchaser May File Proofs of Claim...............................................................39
Attorneys' Fees and Expenses.........................................................................39
NoRemedy Exclusive.....................................................................................40
Miscellaneous
Notices ..........
BindingEffect.........................................................
Severability.............................................................
Amendments...........................................................
Governing Law .......................................................
Captions; References to Sections ............................
Complete Agreement ..............................................
Term of this Agreement; Discharge .......................
Counterparts............................................................
Payments/Actions Due on Non -Business Days......
No Warranty by Issuer or Purchaser .......................
Covenant Agreement ..............................................
........................................ 40
........................................ 40
........................................ 41
........................................ 41
........................................ 41
........................................ 41
........................................ 41
........................................41
........................................ 42
........................................42
........................................ 42
........................................ 42
........................................ 43
Schedule I Principal Payments................................................................................. S-1
Exhibit A-1 — Form of Variable Bank Purchase Rate Bond ....................................... A-1-1
Exhibit A-2 Form of Fixed Bank Purchase Rate Bond ........................................... A-2-1
Exhibit B Form of Investor Letter............................................................................B-1
Exhibit C — Project Description..................................................................................0-1
Exhibit D Form of Certificate and Request for Supplemental Advance ................. D-1
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4868-2026-4287.3
This Bond and Loan Agreement dated as of June 1, 2023 (this
"Agreement"), among the CITY OF CANTON, FULTON
COUNTY, ILLINOIS, a municipality incorporated and existing
under the provisions of the laws of the State of Illinois, operating
under the provisions of the Illinois Municipal Code, as amended
(the "Issuer"), CLAYTON HOLDINGS, LLC, a limited
liability company, as the initial Purchaser, as hereinafter defined
(the "Bank"), and GRAHAM HOSPITAL ASSOCIATION, an
Illinois not for profit corporation (the "Borrower").
WHEREAS, the Issuer, by virtue of the Constitution and laws of the State of Illinois,
including the Industrial Building Revenue Bond Act, 50 ILCS 445/1 et seq., as supplemented
and amended, including the Illinois Bond Replacement Act, the Registered Bond Act, the Bond
Authorization Act and the Local Government Debt Reform Act (collectively, the "Act"), is
authorized to issue its revenue bonds to finance the cost of the Project, as hereinafter defined;
and
WHEREAS, pursuant to the provisions of the Act, the Issuer may issue revenue bonds to
provide funds for the making of loans to assist in providing financing for industrial projects, and
for the purpose of refunding any such obligations previously issued; and
WHEREAS, the Issuer proposes to issue its Health Care Facilities Revenue Bond, Series
2023 (Graham Hospital Association Project) in the maximum principal amount of $12,500,000
(the "Bond") for the benefit of the Borrower. The Bond will be sold to the initial Purchaser,
pursuant to Section 3.1 of this Agreement, and the total amount of money to be paid by the initial
Purchaser, in exchange for the Bond (the "Bond Proceeds") will be loaned by the Issuer to the
Borrower as described in this Agreement; and
WHEREAS, the Borrower desires to use the Bond Proceeds, together with certain other
moneys, to (a) finance, refinance or reimburse the Borrower for the costs of the acquisition,
construction, remodeling and equipping of certain health facilities constituting industrial projects
under the Act described in Exhibit C hereto (the "Project") and (b) finance or reimburse the
Borrower for certain of the costs incurred in connection with the issuance of the Bond, all as
permitted under the Act; and
WHEREAS, payment of principal of, premium, if any, and interest on the Bond will be
the special, limited obligation of the Issuer payable solely from payments to be made by the
Borrower and available for such purpose as described in this Agreement;
The Issuer, the Borrower and the Purchaser hereby agree as follows:
ARTICLE I.
DEFINITIONS
For all purposes of this Agreement, unless the context clearly requires otherwise, the
following terms shall have the following meanings.
4868-20264287.3
"Advance" means the Initial Advance and any Supplemental Advance.
"Act" means, collectively, the Industrial Building Revenue Bond Act, 50 ILCS 445/1 et
seg., as supplemented and amended, including the Illinois Bond Replacement Act, the Registered
Bond Act, the Bond Authorization Act and the Local Government Debt Reform Act.
"Agreement" means this Bond and Loan Agreement, as amended or supplemented from
time to time in accordance with its terms.
"Applicable Factor" means (a) during the Initial Period, 79% and (b) during any
subsequent Interest Period, the percentage determined by the Purchaser on or prior to the first
day of such Interest Period; provided that the Applicable Factor shall be greater than 65% and
shall not be more than 100%.
"Applicable Margin" means:
(a) During the Initial Period, 71 basis points (0.71%); and
(b) during any subsequent Interest Period, the Applicable Margin determined by the
Purchaser in accordance with Section 3.3(c) hereof.
"Authorized Denomination" means, with respect to the Bond, $150,000 and any integral
multiple of $1,000 in excess thereof.
"Authorized Officer" means, with respect to the Borrower, the Chief Executive Officer or
Chief Financial Officer of the Borrower or any other officer of the Borrower designated by the
Borrower to act on behalf of the Borrower.
"Bank Purchase Mode" shall mean the Mode in which the Bonds bear interest at the
Bank Purchase Rate.
"Bank Purchase Mode Term" shall mean each period of time during which the Bonds are
held in the Bank Purchase Mode. It is anticipated that there may be four (4) such Bank Purchase
Mode Terms, each of a duration of eight and one half (8.5) years, the first of which commences
on the Closing Date, and is referred to as the "initial Bank Purchase Mode Term."
"Bank Purchase Rate" means either a Fixed Bank Purchase Rate or a Variable Bank
Purchase Rate.
"Bond' means the $12,500,000 City of Canton, Fulton County, Illinois Health Care
Facilities Revenue Bond, Series 2023 (Graham Hospital Association Project), issued pursuant to
this Agreement.
"Bond Counsel" means the firm of Ice Miller LLP, or any other law firm having a
national reputation in the field of municipal law whose opinions are generally accepted by
purchasers of municipal bonds, acceptable to the Issuer and the Purchaser.
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"Bond Proceeds" means the total amount of money to be paid by the initial Purchaser in
exchange for the Bond, which money will be applied in accordance with this Agreement
"Bond Registrar" means the Purchaser.
"Bondholder" has the meaning set forth in the Covenant Agreement.
"Borrower" means Graham Hospital Association, an Illinois not for profit corporation,
and its successors and assigns, and any surviving, resulting or transferee entity as provided in
Section 5.3 of this Agreement.
"Borrower Agreements" is defined in Section 2.2(a) hereof.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions in New York, New York, Chicago, Illinois or the State are authorized
by law to close, (b) a day on which the New York Stock Exchange or the Federal Reserve Bank
is closed or (c) a day on which the principal office of the Calculation Agent or the Purchaser is
closed.
"Calculation Agent" means a professional consulting, financial advisory, accounting,
investment banking or commercial banking firm selected by the Borrower and acceptable to the
Purchaser, having the skill and experience necessary to render the particular report required and
having a favorable reputation for such skill and experiences, which firm does not control the
Borrower and is not controlled by or under common control with the Borrower. The Calculation
Agent for the Initial Period shall be the Purchaser unless the Purchaser and the Borrower
mutually agree to the appointment of another entity serving in such role.
"Closing Date" means June _, 2023, the date of the issuance and delivery of the Bond to
the initial Purchaser.
"CME Term SOFR Reference Rate" means the SOFR based forward-looking one-month
CME Term SOFR Reference Rate administered by CME Group Benchmark Administration
Limited ( "CBA ").
"Code" means the Internal Revenue Code of 1986, as amended. Each citation to a
Section of the Code shall include the Treasury regulations applicable to such Section.
"Completion Certificate" means the certificate delivered by the Borrower to the Issuer
pursuant to Section 5.13 hereof.
"Conversion Date" means December 1, 2031.
"Costs of Issuance" means (a) any reasonable costs incurred by the Borrower in
connection with the issuance of the Bond, including, but not limited to, any legal and accounting
fees and expenses, title, survey, recording and financing statement fees and expenses, financial
consultants' fees, financing charges, printing and engraving costs and any other fees relating to
the preparation of any documents necessary for the issuance of the Bond; (b) any fees and
reasonable expenses of the Issuer, the Purchaser and any Bond Registrar and the reasonable fees
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and expenses of their counsel incurred in connection with the issuance of the Bond; and (c) any
other fees and expenses incurred in connection with the issuance of the Bond.
"Costs of Issuance Fund' means the Costs of Issuance Fund established under this
Agreement.
"Costs of the Project" means any costs incurred with respect to the Project that are
consistent with the Tax Agreement and that will not cause any of the representations or
certifications contained in the Tax Agreement to be untrue or result in a violation of any
covenant in this Agreement or the Tax Agreement.
"Covenant Agreement" means the Continuing Covenant Agreement dated as of June 1,
2023, between the Borrower and the Purchaser, as supplemented or amended from time to time,
or any similar agreement between the Borrower and the then current Purchaser.
"Cumulative Outstanding Principal Amount" means the sum of the Initial Advance and
all Supplemental Advances, less the principal amount of the Bond redeemed pursuant to
Section 3.5 hereof, as reflected in the records maintained by the Bond Registrar and on
Schedule II to the Bond, as provided in Section 3.1(D) hereof; provided, however, that the
Cumulative Outstanding Principal Amount of the Bond shall not exceed the Maximum Principal
Amount of the Bond.
"Date of Advance" means has the meaning set forth in Section 3.1(c)(ii) hereof.
"Default" means any event or condition, which, with notice, the passage of time or any
combination of the foregoing, would constitute an Event of Default.
"Default Rate" means the rate of interest equal to the rate of interest then in effect for the
Bonds plus [four percent (4.00%)]; provided however, that in no event shall the Default Rate
exceed the Maximum Rate.
"Determination of Taxability" means and shall be deemed to have occurred on the first to
occur of the following:
(i) the date when the Borrower files any statement, supplemental statement or
other tax schedule, return or document which discloses that an Event of Taxability shall
have in fact occurred;
(ii) the date when the Bondholder or any former Bondholder notifies the
Issuer and the Borrower that it has received a written opinion by a nationally recognized
firm of attorneys of substantial expertise on the subject of tax-exempt municipal finance
to the effect that an Event of Taxability shall have occurred unless, within one hundred
eighty (180) days after receipt by the Borrower of such notification from the Bondholder
or any former Bondholder, the Borrower shall deliver to the Bondholder and any former
Bondholder a ruling or determination letter issued to or on behalf of the Issuer or the
Borrower by the Commissioner or any District Director of the Internal Revenue Service
(or any other governmental official exercising the same or a substantially similar function
from time to time) to the effect that, after taking into consideration such facts as form the
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basis for the opinion that an Event of Taxability has occurred, an Event of Taxability
shall not have occurred;
(iii) the date when the Issuer or the Borrower shall be advised in writing by the
Commissioner or any District Director of the Internal Revenue Service (or any other
government official or agent exercising the same or a substantially similar function from
time to time) that, based upon filings of the Borrower, or upon any review or audit of the
Borrower or upon any other ground whatsoever, an Event of Taxability shall have
occurred; or
(iv) the date when the Borrower shall receive notice from the Bondholder or
any former Bondholder that the Internal Revenue Service (or any other government
official or agency exercising the same or a substantially similar function from time to
time) has assessed as includable in the gross income of such Bondholder or such former
Bondholder the interest on the Bond due to the occurrence of an Event of Taxability;
provided, however, no Determination of Taxability shall occur under subparagraph (iii) or (iv)
hereunder unless the Borrower has been afforded the opportunity, at its expense, to contest any
such assessment, and, further, no Determination of Taxability shall occur until such contest, if
made, has been finally determined; and provided further, however, that upon demand from the
Bondholder or former Bondholder, the Issuer shall promptly reimburse, but solely from
payments made by the Borrower, such Bondholder or former Bondholder for any payments,
including any taxes, interest, penalties or other charges, such Bondholder (or former Bondholder)
shall be obligated to make as a result of the Determination of Taxability.
"Electronic Notice" means (a) notice transmitted through electronic mail ("e-mail") or
facsimile machine, if operative as between the party sending the notice and the party that is to
receive the notice, and (b) if not so operative between any two parties, notice given in writing or
by telephone (promptly confirmed in writing).
"Event of Default" is defined in Section 8.1 of this Agreement.
"Event of Taxability" means a (i) change in Law or fact or the interpretation thereof, or
the occurrence or existence of any fact, event or circumstance (including, without limitation, the
taking of any action by the Borrower, or the failure to take any action by the Borrower, or the
making by the Borrower of any misrepresentation herein or in any certificate required to be
given in connection with the issuance, sale or delivery of the Bond) which has the effect of
causing interest paid or payable on the Bond to become includable, in whole or in part, in the
gross income of the Bondholder or any former Bondholder for federal income tax purposes or
(ii) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any
official action by the Internal Revenue Service or the Department of the Treasury, which decree,
judgment or action shall be final under applicable procedural law, in either case, which has the
effect of causing interest paid or payable on the Bond to become includable, in whole or in part,
in the gross income of the Bondholder or any former Bondholder for federal income tax purposes
with respect to the Bond.
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"Final Draw Date" means the earliest of (i) December _, 2024, or (ii) the date on which
the Purchaser has honored Advances in an amount equal to the Maximum Principal Amount of
the Bond.
"Fixed Bank Purchase Rate" means an interest rate per annum, to be established on the
commencement date of each Interest Period (and remain in effect during such Interest Period),
by calculation of the Purchaser, which interest rate shall be equal to the product of (A) the
Applicable Factor, multiplied by (B) the sum of (x) the Treasury Rate, plus (y) the Applicable
Margin.
"Governmental Authority" means any federal, state or local government (whether
domestic or foreign), any political subdivision thereof or any other governmental,
quasi -governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity (including any zoning authority, the Federal Deposit Insurance Corporation or the
Federal Reserve Board, any central bank or any comparable authority), or any arbitrator with
authority to bind a party at law.
"Government Securities Business Day" means each business day on which the SOFR is
published. For the purpose of this Agreement, the SOFR Index shall not be less than zero
percent (0.00%).
"Initial Advance" means the advance made by the initial Purchaser, to the Borrower of
$ under the Bond on the Closing Date pursuant to this Agreement.
"Initial Period" means the period from the Closing Date to (but not including) the first
Purchase Date, which is December 1, 2031.
"Interest Payment Date" means (i) the first Business Day of each calendar month,
commencing July 1, 2023, and (ii) any date on which all or a portion of the Bond is redeemed.
"Interest Period" means, initially, the Initial Period, and thereafter, the period from each
Purchase Date to but not including the subsequent Purchase Date or the Maturity Date, as
applicable, during which period the Bond bears interest at the rate established in accordance with
Section 3.3(b) hereof (subject to redemption or prepayment (by acceleration or otherwise)). No
Interest Period may be less than one year in duration unless the Bond matures in less than one
year and the Interest Period ends on the Maturity Date.
"Interest Rate Reset Date" means the first Business Day of each calendar month
occurring after the Closing Date.
"Investor Letter" means a letter from the Purchaser substantially in the form attached
hereto as Exhibit B, and, in the case of Clayton Holdings, LLC, as the initial Purchaser, "Investor
Letter" means the Letter of the Purchaser in the form attached hereto as Exhibit B that was
delivered to Issuer concurrently with the issuance of the Bond.
"Laws" means, collectively, all international, foreign, federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
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4868-2026-4287.3
Governmental Authority charged with the enforcement, interpretation or administration thereof,
and all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.
"Maturity Date" means June 1, 2053.
"Maximum Federal Corporate Tax Rate" means, for any day, the maximum rate of
income taxation imposed on corporations pursuant to Section I I(b) of the Code, as in effect as of
such day (or, if as a result of a change in the Code, the rate of income taxation imposed on
corporations generally shall not be applicable to the Purchaser, the maximum statutory rate of
federal income taxation which could apply to the Purchaser as of such day).
"Maximum Principal Amount of the Bond' means $12,500,000.
"Maximum Rate" means the highest rate of interest permitted by applicable law.
"Opinion of Bond Counsel" means an opinion of Ice Miller LLP, Chicago, Illinois, or of
any other firm of nationally recognized municipal bond attorneys acceptable to the Issuer and the
Purchaser.
"Opinion of Counsel" means a written opinion of counsel who is (i) of high reputation
and expertise as determined by the Issuer, and (ii) acceptable to the Purchaser or the Issuer, as
the case may be, and who may be an employee of or counsel to the Issuer or the Borrower.
The term "outstanding" when used with reference to the Bond, or "Bond outstanding"
means the Bond, which has been authenticated and delivered to the Purchaser under this
Agreement, except the following:
(a) any portion of the Bond canceled or delivered to the Bond Registrar for
cancellation;
(b) any portion of the Bond in lieu of which others have been authenticated under
Section 3.7 (relating to registration and exchange of a Bond) or Section 3.8 (relating to a
mutilated, lost, stolen or destroyed Bond);
(c) any portion of the Bond provision for payment of which has been made via
creation of an irrevocable escrow pursuant to Section 9.8 hereof, and
(d) The Bond, to the extent that principal payments have been made thereon.
"Ordinance" means the bond ordinance adopted by the Issuer approving the issuance and
sale of the Bond(s).
"Person" means an individual, a corporation, a partnership, an association, a trust or any
other entity or organization, including a government or political subdivision or any agency or
instrumentality thereof.
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4868-2026-4287.3
"Pricing Date" means, for any fiscal quarter of the Borrower, the date on which the
Purchaser is in receipt of the Borrower's most recent financial statements for the fiscal quarter
then ended, pursuant to the Covenant Agreement.
"Project" means the hospital facilities of the Borrower, the costs of the acquisition,
construction, renovation and equipping of which are to be financed, refinanced or reimbursed
with proceeds of the Bond, as more fully described in Exhibit C hereto (which Exhibit C may be
amended, supplemented or restated from time to time).
"Property" means any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible, whether now owned or hereafter acquired.
"Purchase Date" means (i) the Conversion Date, if the Bond is converted to a Variable
Bank Purchase Rate, (ii) initially, December 1, 2031, and (iii) any subsequent purchase date
selected by the Borrower and the Purchaser, on which date the Bond will be subject to
mandatory tender at the end of the related Interest Period, as contemplated by Section 3.4 hereof.
"Purchaser" means the registered owner or owners of the Bond and initially means
Clayton Holdings, LLC, and its successors and assigns; provided, however, that, for purposes of
Section 8.2 through Section 8.5 hereof, the term "Purchaser" shall mean the owners of a majority
in the aggregate principal amount of the Bond then outstanding.
"Rebate Fund" means the fund by that name created under the Tax Agreement.
"Redemption Price Payment Date" means a date on which the redemption price of all or
a portion of the Bond is paid upon the redemption thereof in accordance herewith.
"Request for Advance" means an executed Borrower Request for a Supplemental
Advance substantially in the form of Exhibit D attached hereto.
"SOFR" means the secured overnight financing rate as published by the Federal Reserve
Bank of New York, or a successor administrator of the secured overnight financing rate.
"SOFR Index" means for any applicable period, the rate per annum equal to the CME
Term SOFR Reference Rate two Government Securities Business Days prior to the
commencement of such interest period; provided that if such rate is not published on such
determination date then the rate will be the SOFR Index on the first Government Securities
Business Day immediately prior thereto on which the SOFR Index is published.
"SOFR Interest Period" means each period commencing on an Interest Rate Reset Date
and ending on the day occurring immediately prior to the next Interest Rate Reset Date;
provided, however, that no SOFR Interest Period may end later than the Maturity Date.
"State" means the State of Illinois.
"Supplemental Advance" means any additional advance of Bond Proceeds subsequent to
the Initial Advance made pursuant to Section 3.1(C) of this Agreement; provided that (i) the
aggregate amount of the Initial Advance and all Supplemental Advances shall not exceed the
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Maximum Principal Amount of the Bond and (ii) a request by the Borrower may not occur more
frequently than once every calendar month.
"Tax Agreement" means the Tax Representation Certificate between the Issuer and the
Borrower, dated the Closing Date, as amended from time to time.
"Taxable Rate Factor" means for each day that the Taxable Rate is determined, the
quotient of (i) one divided by (ii) one minus the Maximum Federal Corporate Tax Rate in effect
as of such day, rounded upward to the second decimal place.
"Tax -Exempt Organization" means an entity organized under the laws of the United
States of America or any state thereof which is an organization described in Section 501(c)(3) of
the Code, which is exempt from federal income taxes under Section 501(a) of the Code, and
which is not a "private foundation" within the meaning of Section 509(a) of the Code, or
corresponding provisions of federal income tax laws from time to time in effect.
"Taxable Rate" means, for each day, a rate of interest per annum equal to the product of
(i) the interest rate on the Bond for such day and (ii) the applicable Taxable Rate Factor.
"Treasury Rate " means: (i) for the Initial Purchase Period, [3.56]% which was the
weekly average yield of U.S. government securities adjusted to a 7 -Year Treasury constant
maturity reported by the Board of Governors of the Federal Reserve Board ("FRB") in statistical
release H.15 (the "H.15 Release") as of the Thursday most recently preceding the Initial Indexed
Put Date, and (ii) for any subsequent Interest Period, the weekly average yield of U.S.
government securities adjusted to a Treasury constant maturity reported by the FRB in the H.15
Release, or other publication, for the number of years most closely approximate (rounded up) to
the number of years in such Interest Period, as reported as of the Thursday most recently
preceding the commencement date of such Interest Period. If the Treasury Rate is no longer
available or is clearly erroneous, the Treasury Rate for any Purchase Period shall be based upon
a replacement index selected by the Purchaser, that in the Purchaser's good faith opinion most
closely approximates the Treasury Rate that is no longer available or is erroneous. The H.15 is
currently available at https://www.federalreserve.gov/releases/h15/.
"Unassigned Rights" means the rights of the Issuer under this Agreement (i) to the
payment of certain fees, costs and expenses, and interest thereon; (ii) to exemption from certain
fees, costs and expense; (iii) to be released, indemnified, held harmless and defended; (iv) to
withhold consent of sales, transfers and other dispositions (other than sales, transfers and other
dispositions of the Bond made in compliance with the terms hereof and the terms of the
Covenant Agreement); (v) to exemption from individual and corporate liability; (vi) to receive
notice, reports, opinions, financial information and statements and the like; (viii) to approve and
to withhold approval or consent of matters requiring the approval or consent of the Issuer;
(viii) to exercise certain remedies; (ix) to execute and deliver supplements and amendments to
this Agreement; and (x) to enter into other agreements.
"Unremarketed Bond" means a Bond which, on the applicable Purchase Date, has not
been redeemed, repaid or successfully remarketed to another Person other than the Purchaser.
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4868-20264287.3
"Variable Bank Purchase Rate" means the per annum interest rate borne by the Bond
equal to the product of (A) the Applicable Factor multiplied by (B) the sum of (x) the SOFR
Index for each SOFR Interest Period, as determined on each Government Securities Business
Day, plus (y) the Applicable Margin. The Variable Bank Purchase Rate shall be rounded up to
the fifth decimal place.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of Issuer. The Issuer makes the
following representations and covenants as the basis for its undertakings herein contained:
(a) The Issuer, a municipality duly organized and validly existing under the
Constitution and laws of the State, and by virtue of the Constitution and laws of the State and the
Act, is authorized to enter into the transactions contemplated by this Agreement and to carry out
its obligations hereunder, and has been duly authorized to execute and deliver this Agreement
and the Tax Agreement.
(b) It is the Issuer's understanding, based upon certain representations of the
Borrower, that the issuance and sale of the Bond and the lending of the proceeds of the Bond to
the Borrower (which proceeds, together with certain other moneys, will be applied for the benefit
of the Borrower) is to provide a portion of the moneys required to finance, refinance or
reimburse the Borrower for the Costs of the Project and the Costs of Issuance.
(c) The Issuer covenants that it has not and will not pledge or assign its interest in this
Agreement, or the revenues and income derived pursuant to this Agreement, excepting
Unassigned Rights, other than to the Purchaser.
(d) To the best knowledge of the Issuer, neither the Issuer's execution and delivery of
this Agreement, its consummation of the transactions contemplated on its part hereby, nor the
Issuer's fulfillment of or compliance with the terms and conditions of this Agreement conflicts
with or results in a breach of the terms, conditions or provisions of any material restriction,
agreement or instrument to which the Issuer is a party, or by which it or any of its property is
bound, or constitutes a default under any of the foregoing.
(e) To the best knowledge of the Issuer, no member of the Issuer or officer, agent or
employee thereof is, in his or her own name or in the name of a nominee, an officer, director or
holder of an ownership interest of more than 7-1/2% in any person, association, trust,
corporation, partnership or other entity which is, in its own name or in the name of a nominee, a
party to any contract or agreement upon which the member or officer, agent or employee may be
called upon to act or vote in connection with the financing of the Project.
(f) To provide funds to loan to the Borrower for the purposes described in (b) above,
the Issuer has authorized its Bond in the principal amount of $12,500,000 to be issued under and
secured by this Agreement, pursuant to which the Issuer's rights and interests in this Agreement,
and revenue and income will be pledged and assigned as security for payment of the principal,
purchase price, premium, if any, and interest on the Bond.
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(g) There is no litigation or proceeding pending as to which the Issuer has received
actual notice, or to the knowledge of the Issuer threatened, against the Issuer, or to the
knowledge of the Issuer affecting it, which would adversely affect the validity of this Agreement
or the Bond or the ability of the Issuer to comply with its obligations under this Agreement or the
Bond.
(h) The Issuer will not purchase the Bond.
(i) The Issuer shall have no responsibility for the preparation, filing or recording of
any instrument, document or financing statement or for the maintenance of any security interest
intended to be perfected thereby. The Issuer will execute such instruments as may be necessary
in connection with such filing or recording.
Section 2.2. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a not for profit corporation duly incorporated under the laws of
the State, is in good standing and duly authorized to conduct its business in the State. The
Borrower is duly authorized and has full power under all applicable laws and its articles of
incorporation and Bylaws to create, issue, enter into, execute and deliver, as the case may be, this
Agreement, the Covenant Agreement and the Tax Agreement (collectively, the "Borrower
Agreements").
(b) The execution and delivery of the Borrower Agreements on the Borrower's part
have been duly authorized by all necessary corporate action, and neither the Borrower's
execution and delivery of the Borrower Agreements, the Borrower's consummation of the
transactions contemplated on its part thereby, nor the Borrower's fulfillment of or compliance
with the terms and conditions thereof, conflicts with or results in a material breach of the Articles
of Incorporation or Bylaws of the Borrower or any material agreement or instrument to which
the Borrower is now a party or by which it is bound (except for any such breaches for which the
Borrower has obtained a waiver or a required consent), or constitutes a material default (or
would constitute a material default with due notice or the passage of time or both) under any of
the foregoing.
(c) The Borrower intends to use, and will use, the Project in such a manner as to
maintain the status of the Project as health care facilities, for at least the duration of this
Agreement. The Borrower is duly authorized and has, or will receive prior to operation of its
facilities, all necessary licenses and permits to occupy and operate its facilities under the laws,
rulings, regulations and ordinances of the State and the departments, agencies and political
subdivisions thereof, and the Borrower has obtained all requisite approvals of federal, state,
regional and local governmental bodies relating to the acquisition, construction, equipping and
operation of its facilities. The Borrower's facilities are in all material respects in compliance with
all applicable federal, state and local zoning, subdivision, environmental, pollution control and
other laws, rules, regulations, codes and ordinances.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of
the Borrower, threatened against the Borrower seeking to restrain, enjoin or in any way limit the
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approval or issuance and delivery of the Borrower Agreements or which would in any manner
challenge or adversely affect the corporate existence or powers of the Borrower to enter into and
carry out the transactions described in or contemplated by or the execution, delivery, validity or
performance by the Borrower of the Borrower Agreements. In addition, except as disclosed in
writing to the Issuer and the Purchaser, no litigation, proceedings or investigations are pending
or, to the knowledge of the Borrower, threatened in writing against the Borrower, except
litigation, proceedings or investigations involving claims for which the probable ultimate
recoveries and the estimated costs and expenses of defense, in the commercially reasonable
opinion of management of the Borrower (i) will be entirely within the applicable insurance
policy limits (subject to applicable deductibles) or are not in excess of the total of the available
assets held under applicable self-insurance programs or (ii) will not have a material adverse
effect on the operations or condition, financial or otherwise, of the Borrower.
(e) The Borrower is a Tax -Exempt Organization. The Borrower has received a
determination letter of the Internal Revenue Service to the foregoing effect, which letter is in full
force and effect, and will maintain its status as such an organization as long as the Bond is
Outstanding. The Borrower is not a "private foundation" as defined in Section 509(a) of the
Code. The Borrower has not declared and has not been determined to have any "unrelated
business taxable income" (as defined in Section 512 of the Code) in an amount which could have
a material adverse effect on the Borrower's status as a Tax -Exempt Organization or which, if
such income were subject to federal income taxation, would have a material adverse effect on the
condition, financial or otherwise, of the Borrower.
(f) The audited financial statements of the Borrower as of June 30, 2021 and 2022
and for the years then ended, prepared and certified by independent certified public accountants,
correctly and fairly present the financial condition of the Borrower as of said dates and the
results of the operations of the Borrower for each of such periods, all in accordance with
generally accepted accounting principles consistently applied except as stated in the notes
thereto, and there has been no material adverse change in the condition, financial or otherwise, of
the Borrower since June 30, 2022.
(g) The information used in the preparation of the financial statements referred to in
paragraph (f) above, the Borrower Agreements and any other written statement furnished by the
Borrower to the Issuer or the Purchaser do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained therein or herein not
misleading. There is no fact which the Borrower has not disclosed to the Issuer and the
Purchaser in writing which materially adversely affects or, so far as the Borrower can now
foresee, will materially adversely affect the financial condition or results of operations of the
Borrower, the Borrower's status as a Tax -Exempt Organization, the ability of the Borrower to
own and operate the Project or the Borrower's ability to make payments under this Agreement
when and as the same become due and payable.
(h) Compliance by the Borrower with the provisions of the Borrower Agreements
will not involve, to the extent applicable, any prohibited transaction within the meaning of the
Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as
"ERISA"), or Section 4975 of the Code. No "employee pension benefit plans", that are subject
to Title IV of ERISA (herein sometimes referred to as "Plans"), maintained by the Borrower, nor
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any trust created thereunder, have incurred any "accumulated funding deficiency" as defined in
Section 302 of ERISA, to the extent applicable and the present value of all benefits vested under
all Plans, if any, did not exceed, as of the last annual valuation date, the value of the assets of the
Plans allocable to such vested benefits.
(i) With respect to the construction of the Project with proceeds of the Bond, the
Borrower has complied with and will comply with the Illinois Prevailing Wage Act, 820 ILCS
130/1 to 130/12, to the extent required by the Act and other applicable laws.
0) The Borrower has filed or caused to be filed all tax returns required by law to be
filed and has paid or caused to be paid all taxes, assessments and other governmental charges
levied upon or in respect of any of its properties, assets or franchises, other than taxes the
validity or amount of which are being contested in good faith by the Borrower by appropriate
proceedings and for which the Borrower shall have set aside on its books adequate reserves in
accordance with generally accepted accounting principles. The charges, accruals and reserves on
the books of the Borrower in respect of taxes for all fiscal periods are adequate, and there is no
unpaid assessment for additional taxes for any fiscal period or any basis therefor.
(k) No authorization, consent, license, exemption or filing or registration with any
court or Governmental Authority is or will be necessary to the valid execution, delivery or
performance by the Borrower of any of the Borrower Agreements to which it is a party.
(1) The Borrower has not received notice to the effect that its operations are not in
compliance with any of the requirements of applicable federal, state or local environmental,
health and safety statutes and regulations or are the subject of any governmental investigation
evaluating whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or remedial action
could have a material adverse effect on the financial condition, facilities, business or operations
of the Borrower.
(m) The Borrower is not in default under the terms of any covenant, indenture or
agreement of or affecting the Borrower or any of its facilities, which default would have a
material adverse effect on the financial condition, facilities, business or operations of the
Borrower.
(n) Neither the business nor the facilities of the Borrower are currently affected by
any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance), materially and adversely affecting the business, facilities or operations of
the Borrower.
(o) No Event of Default has occurred and is continuing.
(p) The Borrower hereby makes to the Purchaser and to the Issuer the same
representations and warranties as are set forth by it in each of the Borrower Agreements, as
executed by the Borrower on the Closing Date, to which it is a party, which representations and
warranties, as well as the related defined terms contained therein, are hereby incorporated herein
by reference for the benefit of the Purchaser and the Issuer with the same effect as if each and
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every such representation and warranty and defined term were set forth herein in its entirety and
were made as of the date hereof. No amendment to such representations and warranties or
defined terms made pursuant to any Borrower Agreement shall be effective to amend such
representations and warranties and defined terms as incorporated by reference herein without the
prior written consent of the Purchaser and the Issuer.
(q) The Borrower will use the proceeds of the Bond, together with certain other
moneys, solely to finance, refinance or reimburse the Borrower for the Costs of the Project and
the Costs of Issuance.
(r) The Borrower is not in violation of any laws, regulations, rules statutes or orders
relating to terrorism or money laundering ("Anti -Terrorism Laws"), including Executive Order
No. 13224 on Terrorist Financing, effective September 24, 2001 (the "Executive Order"), and
the Patriot Act. In addition, the Borrower is none of the following:
(i) a Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order;
(ii) a Person owned or controlled by, or acting for or on behalf of, any Person
that is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order;
(iii) a Person with which the Purchaser is prohibited from dealing or otherwise
engaging in any transaction by any Anti -Terrorism Law; or
(iv) a Person that commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order.
(s) The Borrower does not (i) conduct any business or engage in making or receiving
any contribution of funds, or to the best of its knowledge, goods or services to or for the benefit
of any Person described in subsection (r)(ii) above, (ii) deal in, or otherwise engage in any
transaction relating to, any property or interests in property blocked pursuant to the Executive
Order or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti -Terrorism Law.
(t) This Agreement and the other Borrower Agreements are the legal, valid and
binding obligations of the Borrower, enforceable in accordance with their respective terms
(subject to any applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting the enforcement of credits' rights generally from time to time in effect and to
applicable legal principles and procedural requirements if equitable and other specific remedies
are sought).
(u) No amounts shall be disbursed to the Borrower or disbursed at the direction of the
Borrower except to pay or to reimburse the Borrower for the Costs of the Project or except as
otherwise permitted herein.
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(v) The acquisition, construction, renovation and equipping of the Project will
provide additional industrial facilities within the boundaries of the State and the Issuer which
will assist in the creation and preservation of jobs. The undertaking of the financing of the
Project and the loan of the proceeds of the Bond has constituted an inducement to the Borrower
to construct and equip and operate the Project in Canton, Illinois, Galesburg, Illinois, and
Macomb, Illinois.
Section 2.3. Representations and Warranties of the Purchaser. The Purchaser
represents, warrants and acknowledges that the representations of the Purchaser set forth in the
Investor Letter are true and correct and are incorporated by reference herein.
ARTICLE III.
ISSUANCE AND SALE OF BOND; ISSUER COVENANTS
Section 3.1. Agreement to Issue and Sell Bond; Designation; Application of Bond
Proceeds. (A) Issuance and Sale of Bond. In order to finance, refinance or reimburse the
Borrower for certain of the Costs of the Project and the Costs of Issuance, there is hereby
authorized and created one series of Bonds designated "City of Canton, Fulton County, Illinois
Health Care Facilities Revenue Bond, Series 2023 (Graham Hospital Association Project)." The
Bond, as issued on the Closing Date, shall be issued in a Cumulative Outstanding Principal
Amount equal to the amount of the Initial Advance. The total principal amount of the Bond that
may be issued pursuant to this Agreement and the total principal amount of the Advances that
may be made under the Bond are hereby expressly limited to the Maximum Principal Amount of
the Bond.
The Purchaser agrees that it will purchase the Bond on the Closing Date from the Issuer,
upon the terms and conditions set forth herein and in the Covenant Agreement, at a purchase
price of 100% of the Initial Advance.
(B) Initial Advance. The Issuer and the Borrower hereby direct the Purchaser to apply
the proceeds of the Initial Advance received from the sale of the Bond as follows:
(i) the amount of $ shall be deposited into the Costs of Issuance
Fund created under this Agreement, to be used to pay Costs of Issuance; and
(ii) the balance of the proceeds of the Initial Advance ($ shall be
transferred to or at the direction of the Borrower in accordance with this Agreement, to be
used, together with certain other moneys, to pay the Costs of the Project.
(C) Supplemental Advances.
(i) On any Interest Payment Date on or prior to the Final Draw Date, so long
as there is no Event of Default which has occurred and is continuing hereunder and the
other conditions precedent set forth in this subsection (C) are satisfied, the Borrower may
request a Supplemental Advance from the Purchaser by delivering a Request for Advance
to the Purchaser in accordance with clause (ii) of this subsection (C) and the Issuer will
loan the related Bond Proceeds to the Borrower pursuant to the terms of this Agreement
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to finance the Costs of the Project; provided, however, that (a) such Supplemental
Advance shall be in an amount equal to an Authorized Denomination (other than the final
Supplemental Advance which may be in an amount less than an Authorized
Denomination), (b) the principal amount of such Supplemental Advance, together with
the Initial Advance and all previous Supplemental Advances, shall not exceed the
Maximum Principal Amount of the Bond, (c) the conditions precedent to such
Supplemental Advance set forth in this subsection (C) have been satisfied and (d) the
conditions precedent to such Supplemental Advance set forth in the Covenant Agreement
have been satisfied. Upon the satisfaction of all such conditions precedent, the Purchaser
shall transfer the Bond Proceeds related to such Supplemental Advance to or at the
direction of the Borrower.
(ii) The Borrower shall give written notice to the Purchaser in the form of a
Request for Advance no later 1:00 p.m. (Chicago time) on a Business Day which is not
less than five (5) Business Days prior to the date on which the related Supplemental
Advance is to be made, which date, in each case, shall be an Interest Payment Date (a
"Date of Advance"). If the Purchaser receives a Request for Advance after 1:00 p.m.
(Chicago time) on a Business Day, such Request for Advance shall be deemed to have
been received on the following Business Day. Requests for Advances shall be delivered
to the Purchaser in the form of Exhibit D hereto via facsimile at the Purchaser's
telecopier number set forth in Section 9.1 hereof or by Electronic Notice for receipt of
Requests for Advances.
(iii) Each Supplemental Advance shall increase the Cumulative Outstanding
Principal Amount of the Bond by the amount of such Supplemental Advance.
(iv) Interest on each Supplemental Advance shall begin to accrue upon
payment by the Purchaser of the Supplemental Advance to or at the direction of the
Borrower.
(D) Record of Cumulative Outstanding Principal Amount of the Bond. Schedule II to
the Bond shall be the official record of the Cumulative Outstanding Principal Amount of the
Bond. Upon receipt of the Initial Advance and any Supplemental Advance, the Purchaser, as
Bond Registrar, shall record the Cumulative Outstanding Principal Amount of the Bond on
Schedule II to the Bond and shall authenticate Schedule II, and the Cumulative Outstanding
Principal Amount of the Bond shall be increased as shown on Schedule H. On each date upon
which a portion of the Cumulative Outstanding Principal Amount of the Bond is redeemed
pursuant to Section 3.5 hereof, the Purchaser, as Bond Registrar, shall record the principal
amount so redeemed on Schedule II to the Bond and shall authenticate Schedule II, and the
Cumulative Outstanding Principal Amount of the Bond shall be reduced as shown on Schedule
H. Upon each increase or reduction in the Cumulative Outstanding Principal Amount of the
Bond, the Purchaser will provide, upon request, a copy of the revised and authenticated Schedule
II to the Borrower.
Section 3.2. Issuance of Bond; Form; Dating; Conditions Precedent. The total
principal amount of the Bond that may be outstanding shall not exceed $12,500,000. The Bond
shall be substantially in the form of Exhibit A-1 to this Agreement if the Bond bears interest at
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the Variable Bank Purchase Rate or substantially in the form of Exhibit A-2 to this Agreement if
the Bond bears interest at the Fixed Bank Purchase Rate. The Bond shall be dated the Closing
Date, shall mature, shall be subject to redemption as provided herein, and subject to prior
payments of principal installments, on the Maturity Date and shall be subject to mandatory
tender as provided herein. The Bond shall be issued as a single fully registered Bond in a
principal amount not in excess of the Maximum Principal Amount of the Bond. The Bond may
have notations, legends or endorsements required by law or usage. The Bond will be numbered
as determined by the Bond Registrar.
Upon the execution and delivery of this Agreement and the following documents, the
Issuer will execute the Bond and deliver the Bond to the Purchaser:
(a) A copy, duly certified by the Issuer, of the Ordinance adopted and
approved by the Issuer authorizing (i) the execution and delivery of this Agreement and
the Tax Agreement and (ii) the issuance, execution and sale of the Bond;
(b) A copy, duly certified by the Secretary or an Assistant Secretary of the
Borrower, of the resolutions adopted by the Board of Trustees of the Borrower or the
Executive Committee of the Board of Trustees authorizing the execution and delivery of
the Borrower Agreements and approving the issuance and sale of the Bond;
(c) Executed counterparts of the Borrower Agreements and the executed
Investor Letter;
(d) An opinion of counsel for the Borrower in form and substance satisfactory
to the Issuer, the Purchaser and Bond Counsel;
(e) An opinion of counsel for the Issuer in form and substance satisfactory to
the Purchaser, the Borrower and Bond Counsel;
(f) An opinion of Bond Counsel in form and substance satisfactory to the
Purchaser, the Issuer and the Borrower; and
(g) Such further documents, certificates and opinions as may be required by
the provisions of the Ordinance, this Agreement, the Covenant Agreement, the other
Borrower Agreements or the closing agenda prepared by Bond Counsel in connection
with the issuance and delivery of the Bond, the satisfaction of such requirements to be
conclusively evidenced by the delivery of the Bond by the Issuer to the Purchaser and by
the delivery of the opinion of Bond Counsel referred to in paragraph (f) of this
Section 3.2.
Section 3.3. Principal of and Interest on the Bond.
(a) Principal. Principal of the Bond shall be payable on the first Business Day of
each calendar month and in the amounts set forth as mandatory sinking fund redemption
payments in Schedule I hereto and on the Maturity Date, subject to any optional redemption,
mandatory tender (including on the Purchase Date) or other prepayment of the Bond (including,
without limitation, any acceleration of the Bond) as provided herein. Notwithstanding the
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foregoing, the Purchaser, the Borrower and the Issuer may designate in writing a different
payment schedule, in substitution for Schedule I hereto, upon delivery to the Issuer, the
Purchaser and the Borrower of an Opinion of Bond Counsel to the effect that the designation of
such different payment schedule will not adversely affect the exclusion of interest on the Bond
from gross income for federal income tax purposes. Upon the designation of any new payment
schedule, Schedule I attached to this Agreement and the Bond shall be amended to reflect the
terms of such new payment schedule. Principal shall be paid by wire transfer on each date on
which principal is due and payable to each owner to the wire transfer account number or at the
address, as the case may be, shown on the registration books maintained by the Purchaser.
(b) Interest. Subject to the provisions of Section 3.3(c), (d) and (e) hereof, the Bond
shall bear interest at either the Variable Bank Purchase Rate or a Fixed Bank Purchase Rate
established pursuant to Section 3.3(c) hereof from the Closing Date to and including the earliest
of the day preceding (i) its redemption date, (ii) its prepayment date (by acceleration, mandatory
tender or otherwise) and (iii) the Purchase Date. Interest on the Bond shall be payable on each
Interest Payment Date. Interest shall be paid by wire transfer on each Interest Payment Date to
each owner to the wire transfer account number or at the address, as the case may be, shown on
the registration books maintained by the Purchaser. Initially, the Bond will bear interest at the
Fixed Bank Purchase Rate from the Closing Date to and including the (i) Conversion Date, if the
Borrower elects to convert the Bank Purchase Rate to a Variable Bank Purchase Rate on the
Conversion Date, or (ii) December 1, 2031, if the Borrower does not exercise its option to
convert the Bank Purchase Rate to a Variable Bank Purchase Date on the Conversion Date.
On the Conversion Date, the Borrower may elect to convert the Bank Purchase Rate to a
Variable Bank Purchase Rate upon 30 days' prior written notice to the Purchaser (such notice
shall include a request of an indicative variable rate to be provided by the Purchaser). Upon
receipt of such notice by the Purchaser, the Purchaser shall provide an indicative variable rate to
the Borrower at least 14 days prior to the Conversion Date. All decisions as to whether the Bank
Purchase Rate is converted to a Variable Bank Purchase Rate are in the sole decision of the
Borrower. The Borrower shall notify the Purchaser whether it elects to exercise its option to
convert the Bank Purchase Rate to a Variable Bank Purchase Rate by the 7th day prior to the
Conversion Date. If the Borrower accepts a proposed Variable Bank Purchase Rate from the then
current Purchaser, the Borrower shall cause the Bond to be replaced with the form of Bond
attached hereto as Exhibit A-1 and an opinion of Bond Counsel to be delivered in form and
substance satisfactory to the Purchaser, the Bond shall bear interest at a Variable Bank Purchase
Rate as agreed to in writing, by the Borrower and the Purchaser for the period commencing on
the Conversion Date to, but not including the Purchase Date, as determined in accordance with
Section 3.3(c) below, the mandatory tender for purchase in accordance with Section 3.4 hereof
shall be considered satisfied on the Conversion Date and the then current Purchaser shall remain
the owner of the Bond.
The initial Fixed Bank Purchase Rate shall be established by the Purchaser on the Closing
Date and shall be effective for the period commencing on the Closing Date through, but not
including, the Conversion Date.
Interest on the Bond bearing interest at a Variable Bank Purchase Rate shall be computed
on the basis of a 360 -day year for the actual number of days elapsed. Interest on the Bond
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bearing interest at a Fixed Bank Purchase Rate shall be computed on the basis of a 360 -day year,
consisting of twelve months of 30 days each. Notwithstanding anything in this Agreement to the
contrary, at no time shall the interest rate on the Bond exceed the Maximum Rate.
The amount of interest due on the Bond on an Interest Payment Date shall be determined
by the Calculation Agent and communicated to the Borrower by Electronic Notice or other
written notice no later than noon, Chicago time, on the third Business Day prior to each Interest
Payment Date (such communication to set forth the amount of interest due at the then applicable
Bank Purchase Rate).
(c) Rate Reset on Purchase Date. In connection with a Purchase Date, the Bond may
be retained by the then existing Purchaser, remarketed to a new Purchaser or purchased by the
Borrower, as described in Section 3.4 hereof.
If the Bond will be retained by the then existing Purchaser or remarketed to a new
Purchaser on a Purchase Date, then on or before noon, Chicago time, on each Purchase Date, the
interest rate on the Bond will be established for the next succeeding Interest Period and shall be
the lowest rate of interest which will, in the reasonable judgment of the then existing Purchaser
(if the Bond is to be retained by the then existing Purchaser) or the new Purchaser (if the Bond is
to be remarketed to a new Purchaser), permit such Purchaser to buy the Bond at par, plus accrued
interest (if any), on such Purchase Date taking into account such factors as the existing Purchaser
or the new Purchaser deems relevant. To effect such new interest rate, (A) the Purchaser shall
select a new Purchase Date, and (B) the definitions of Applicable Factor, Applicable Margin,
Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate,
SOFR Index, SOFR Interest Period, Default Rate, Interest Period and Purchase Date, as
applicable (together with any other necessary definitions or provisions) contained herein may be
adjusted as needed so that the new interest rate borne by the Bond commencing on such Purchase
Date is the lowest rate of interest which will, in the reasonable judgment of the then existing
Purchaser or the new Purchaser, as applicable, permit such Purchaser to buy the Bond at par,
plus accrued interest (if any), on such Purchase Date. Prior to the effectiveness of the interest
rate on the Bond for the next succeeding Interest Rate Period, such interest rate shall be
confirmed by a Calculation Agent as an interest rate, including an Applicable Factor, Applicable
Margin, Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable
Rate, SOFR Index, SOFR Interest Period, Default Rate, Interest Period and Purchase Date, as
applicable, on the Bond that will permit the Bond to be sold at par, plus accrued interest (if any),
on the Purchase Date. Prior to the effectiveness of any such new interest rate and such
adjustments, there shall be delivered to the Issuer, the Borrower and the then existing Purchaser
(if the Bond is to be retained by the then existing Purchaser) or the new Purchaser (if the Bond is
to be remarketed to a new Purchaser) an Opinion of Bond Counsel to the effect that such new
interest rate and such adjustments will not adversely affect the exclusion of interest on the Bond
from gross income for federal income tax purposes.
If on a Purchase Date the Bond is neither retained by the then existing Purchaser pursuant
to Section 3.4(a) hereof nor remarketed to one or more new Purchasers pursuant to Section 3.4(c)
hereof, but is purchased by the Borrower pursuant to Section 3.4(b) hereof and not canceled, the
Bond shall continue to bear interest at the interest rate borne by the Bond for the immediately
preceding Interest Period. If the Bond is later remarketed on a date subsequent to such Purchase
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Date, on or before noon, Chicago time, on the date such Bond is to be remarketed, a new interest
rate on the Bond shall be established, which will be effective until the next succeeding Purchase
Date or the Maturity Date, as applicable (subject to redemption or prepayment (by acceleration
or otherwise)), and such new interest rate shall be the lowest rate of interest which will, in the
reasonable judgment of the new Purchaser or Purchasers, as applicable, permit such Purchaser or
Purchasers to buy the Bond at par, plus accrued interest (if any), on such date of remarketing. To
effect such new interest rate, the definitions of Applicable Factor, Applicable Margin, Bank
Purchase Rate, Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, SOFR
Index, SOFR Interest Period, Default Rate, Interest Period and Purchase Date, as applicable
(together with any other necessary definitions or provisions) contained herein may be adjusted as
needed to reflect the new interest rate borne by the Bond commencing on such date of
remarketing. Prior to the effectiveness of such new interest rate on the Bond on the remarketing
date, such new interest rate shall be confirmed by a Calculation Agent as an interest rate,
including an Applicable Factor, Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase
Rate, Variable Bank Purchase Rate, Taxable Rate, SOFR Index, SOFR Interest Period, Default
Rate, Interest Period and Purchase Date, as applicable, on the Bond that will permit the Bond to
be remarketed at par, plus accrued interest (if any), on the remarketing date. Prior to the
effectiveness of any such new interest rate, adjustments and remarketing, there shall be delivered
to the Issuer, the Borrower and the new Purchaser or Purchasers an Opinion of Bond Counsel to
the effect that such new interest rate, such adjustments and such remarketing will not adversely
affect the exclusion of interest on the Bond from gross income for federal income tax purposes.
(d) Default Rate. In case any Event of Default occurs hereunder and is continuing,
the Bond shall bear interest at a floating rate equal to Default Rate (as defined in Article I
hereof). The Purchaser, the Borrower and the Issuer may agree in writing prior to any
adjustment that the Bond will bear interest at a different Default Rate if there is delivered to the
Issuer, the Purchaser and the Borrower an Opinion of Bond Counsel to the effect that the
designation of such different Default Rate will not adversely affect the exclusion of interest on
the Bond from gross income for federal income tax purposes.
(e) Determination of Taxability. If a Determination of Taxability has occurred, the
Bond (or portion thereof to which such Determination of Taxability applies) shall bear interest at
the Taxable Rate from and after the Event of Taxability that gave occasion to such
Determination of Taxability or such earlier period of time from which interest thereon (or any
portion of interest thereon) has been so determined to be taxable.
(f) Unremarketed Bond. Notwithstanding anything herein to the contrary, any
Unremarketed Bond shall bear interest on the dates, in the amounts and in the manner set forth in
the Covenant Agreement. A Bond shall cease to be an Unremarketed Bond only if such
Unremarketed Bond is remarketed and transferred or such Unremarketed Bond is redeemed in
full.
Section 3.4. Tender.
(a) Tender on Purchase Date. Subject to the provisions of the following paragraph,
the Bond is subject to mandatory tender for purchase on the Conversion Date, if the Bond is
converted to a Variable Bank Purchase Rate, and on each Purchase Date. The purchase price
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shall be 100% of the outstanding principal amount thereof plus accrued interest to the Purchase
Date. The Bond shall bear interest on and after each Purchase Date at the rate established in
accordance with the requirements of Section 3.3(c) or (d) hereof, including the requirement for
the delivery of an Opinion of Bond Counsel to the effect that the establishment of such rate will
not adversely affect the exclusion of interest on the Bond from gross income for federal income
tax purposes.
The Borrower may, by written notice to the Purchaser, not sooner than 180 days but no
later than ninety (90) days prior to the Purchase Date, request that the Purchaser continue holding
the Bond following such Purchase Date. If the Borrower so requests, the Purchaser will make
reasonable efforts to respond to such request within thirty (30) days after receipt of all
information necessary, in the Purchaser's reasonable judgment, to permit the Purchaser to make
an informed credit decision. The Purchaser may, in its sole and absolute discretion, decide to
accept or reject any such request, and no consent shall become effective unless the Purchaser
shall have consented thereto in writing; provided, however, that the failure of the Purchaser to
respond to such a request to extend the Purchase Date within such thirty (30) day period shall be
deemed an election by the Purchaser not to continue holding the Bond following such Purchase
Date. In its sole and absolute discretion, the Purchaser may propose the length of the new
Interest Period (including the new Purchase Date) and the interest rate to be effective during such
new Interest Period, including the Applicable Factor, the Applicable Margin and any other
conditions precedent to its decision to continue to hold the Bond. In the event the Purchaser
determines that it will not make such proposal, the Bond shall be subject to mandatory tender
pursuant to this Section. If the Purchaser does make such proposal, the Borrower may, in its sole
and absolute discretion, decide to approve, reject or renegotiate any such proposal, and no
approval of the Borrower with respect thereto shall become effective unless in writing. In the
event the Borrower rejects such proposal or fails to definitively respond to such proposal on or
before thirty (30) days prior to the related Purchase Date, the Borrower shall be deemed to have
rejected or failed to approve such proposal and the Bond shall be subject to mandatory tender
pursuant to this Section.
The agreement by the Purchaser to continue to hold the Bond shall be conditioned upon
the preparation, execution and delivery of documentation in form and substance satisfactory in
all respects to the Purchaser.
If the Purchaser agrees to hold the Bond during the new Interest Period, the interest rate
to be borne by the Bond shall be established by the Purchaser and confirmed by a Calculation
Agent in accordance with Section 3.3(c) and there shall be delivered to the Issuer, the Borrower
and the Purchaser an Opinion of Bond Counsel to the effect that the establishment of such rate
will not adversely affect the exclusion of interest on the Bond from gross income for federal
income tax purposes.
(b) Obligation to Purchase. In the event of any tender, the Borrower shall purchase
the Bond in whole at a purchase price of 100% of the principal amount thereof plus accrued
interest to the Purchase Date. Upon the purchase of the Bond, the Bond shall thereafter be
registered in the name of the Borrower or such other person or entity as the Borrower shall
designate, subject to the requirements set forth in paragraph (c) below, or, at the direction of the
Borrower, shall be canceled by the Bond Registrar. No such purchase of the Bond shall be
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deemed to be an extinguishment of the debt represented by the Bond unless the Bond is canceled
following such purchase.
(c) Remarketing. It is expressly acknowledged by the parties hereto that, in the event
the Bond is tendered for purchase on a Purchase Date, the Borrower may seek to remarket such
tendered Bond to one or more new Purchasers and may apply any proceeds thereof to the
payment of the purchase price of such tendered Bond; provided, however, that the Bond may
only be remarketed if (i) the interest rate to be borne by the Bond is established in accordance
with Section 3.3(c) hereof, (ii) there is delivered to the Issuer, the Borrower and each new
Purchaser an Opinion of Bond Counsel to the effect that the remarketing of the Bond to each
new Purchaser will not adversely affect the exclusion of interest on the Bond from gross income
for federal income tax purposes, (iii) each new Purchaser makes the representations set forth in
Section 2.3 hereof and executes and delivers an Investor Letter, (iv) the Borrower complies with
(A) all applicable rules and procedures of the Issuer and (B) all applicable state and federal
securities and other laws in connection with such remarketing and (v) the Purchaser shall have
received (A) 100% of the principal amount of such tendered Bond to be remarketed, plus accrued
interest thereon, and (B) payment and satisfaction in full has been made of all Obligations (as
defined in the Covenant Agreement) under the Covenant Agreement.
Section 3.5. Redemption.
(a) Optional Redemption. Subject to any limitations set forth in the Covenant
Agreement, the Bond shall be subject to optional redemption prior to maturity, at the direction of
the Borrower, in whole or in part (provided that the Bond may not be redeemed in part if the
principal amount remaining outstanding after such partial redemption would not be an
Authorized Denomination), on any date on or after December _, 2024, selected by the
Borrower, upon not less than 10 days' prior written notice to the Issuer and the Purchaser (or
such shorter time as agreed to by the Issuer and the Purchaser), at a redemption price described
in the schedule below; provided, however, that, in addition to such redemption price, the
Borrower shall also pay to the Purchaser any amounts prescribed in Section 4.04 or 4.05 of the
Covenant Agreement with respect to any such redemption.
Optional
Redemption Date
Redemption Price
December
2024 thru November 2025
103% of the par value
thereof
plus accrued interest
December
2025 thru November 2028
102% of the par value
thereof
plus accrued interest
December
, 2028 thru November 2031
101 % of the par value
thereof
plus accrued interest
December , 2031 and thereafter
100% of the par value
thereof
plus accrued interest
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Upon surrender of the Bond optionally redeemed in part, the Bond Registrar shall record
the principal amount so redeemed on Schedule II to the Bond and shall authenticate Schedule II,
and the Cumulative Outstanding Principal Amount of the Bond shall be reduced as shown on
Schedule IL Notwithstanding anything in this Agreement to the contrary, at no time shall the
unredeemed portion of the Bond be in a principal amount less than $100,000. Partial redemption
payments shall be allocated to the principal installments payable on the Bond pro -rata among the
remaining principal installments unless the Purchaser and the Borrower agree otherwise and
there is delivered to the Issuer, the Purchaser and the Borrower an Opinion of Bond Counsel to
the effect that crediting such payments in another manner will not adversely affect the exclusion
of interest on the Bond from gross income for federal income tax purposes. Schedule 1 attached
hereto and to the Bond shall be amended as promptly as possible to reflect the effect of such
payment.
(b) Mandatory Sinking Fund Redemption. The Bond is subject to mandatory sinking
fund redemption in accordance with the schedule set forth in Schedule 1 attached hereto. Upon
the mandatory sinking fund redemption of the Bond, the Bond Registrar shall record the
principal amount so redeemed on Schedule II to the Bond and shall authenticate Schedule II, and
the Cumulative Outstanding Principal Amount of the Bond shall be reduced as shown on
Schedule H.
(c) Unremarketed Bonds. Unremarketed Bonds are subject to special mandatory
redemption at a redemption price equal to 100% of the principal amount of the Bonds to be
redeemed plus accrued interest thereon at the Default Rate (as defined in the Covenant
Agreement) to but not including the date of such redemption, on the dates, in the amounts and in
the manner set forth in the applicable Covenant Agreement. If the Covenant Agreement does not
provide for the amortization of Unremarketed Bonds over a period of time, or if the Covenant
Agreement provides for such amortization but the conditions precedent set forth therein are not
satisfied, such Bonds shall bear interest from and after the Purchase Date at the Default Rate.
Section 3.6. Execution; Limited Obligation. The Bond shall be executed on behalf of
the Issuer with the manual or facsimile signature of its Mayor (or other authorized officer of the
Issuer) and shall have impressed or imprinted thereon the official seal of the Issuer or a facsimile
thereof and shall be attested by the manual or facsimile signature of the City Clerk. All
authorized facsimile signatures shall have the same force and effect as if manually signed. In
case any official whose signature or facsimile of whose signature shall appear on the Bond shall
cease to be such official before the delivery of the Bond, such signature or such facsimile shall
nevertheless be valid and sufficient for all purposes, the same as if such official had remained in
office until delivery. The Bond may be signed on behalf of the Issuer by such persons who, at
the time of the execution of such Bond, are duly authorized or hold the appropriate office of the
Issuer, although on the date of the Bond such persons were not so authorized or did not hold such
offices.
The Bond, together with all principal and interest thereon and premium, if any, with
respect thereto, are special, limited obligations of the Issuer secured by this Agreement and shall
always be payable solely from amounts payable by the Borrower under this Agreement are and
shall always be a valid claim of the owner thereof only against the revenues and income derived
from this Agreement, which revenues and income shall be used for no other purpose than to pay
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the principal installments of, premium, if any, and interest on the Bond, except as may be
otherwise expressly authorized in this Agreement.
The Bond and the obligation to pay principal and interest thereon and any premium with
respect thereto do not now and shall never constitute an indebtedness or an obligation of the
Issuer, within the purview of any constitutional or statutory limitation or provision or a charge
against the general credit or the taxing powers of the Issuer, but shall be payable solely from the
revenues and income derived from this Agreement. No owner of the Bond shall have the right to
compel the exercise of the taxing power of the Issuer to pay any principal installment of,
redemption premium, if any, or interest on the Bond.
Notwithstanding any provision or obligation to the contrary set forth herein, no provision
of this Agreement shall be construed so as to give rise to a pecuniary liability of the Issuer or to
give rise to a charge upon the general credit of the Issuer, the liability of the Issuer hereunder
shall be limited to its interest in the Project, this Agreement, the Bond and all other related
documents and collateral and the lien of any judgment shall be restricted thereto. In the
performance of the agreements of the Issuer herein contained, any obligation it may incur for the
payment of money shall not be a debt of the Issuer, nor shall the Issuer be liable on any
obligation so incurred. The Issuer does not assume general liability for the repayment of the
bonds or for the costs, fees, penalties, taxes, interest, commissions, charges, insurance or any
other payments recited herein, and shall be obligated to pay the same only out of the amounts
payable by the Borrower hereunder. The Issuer shall not be required to do any act whatsoever or
exercise any diligence whatsoever to mitigate the damages to the Borrower if a default shall
occur hereunder.
No recourse shall be had for the payment of the principal of, premium, if any, and interest
on the Bond or for any claim based thereon or upon any obligation, covenant or agreement
contained in this Agreement against any past, present or future member, officer, agent or
employee of the Issuer, or any incorporator, member, officer, employee, director or trustee of
any successor corporation, as such, either directly or through the Issuer or any successor
corporation, under any rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such incorporator, member,
officer, employee, director, agent or trustee as such is hereby expressly waived and released as a
condition of and consideration for the execution of this Agreement and the issuance of the Bond.
Section 3.7. Bond Register. The Bond may be presented at the office of the Bond
Registrar for registration, transfer and exchange. The Bond Registrar shall keep a register of the
Bond and of its transfer and exchange.
The Bond may be transferred only on the register maintained by the Bond Registrar.
Upon surrender for transfer of the Bond to the Bond Registrar, duly endorsed for transfer or
accompanied by an assignment duly executed by the holder or the holder's attorney duly
authorized in writing, the Bond Registrar will authenticate a new Bond in an equal total principal
amount and registered in the name of the transferee.
The Issuer may treat the registered owner of the Bond as the absolute owner thereof for
all purposes, whether or not the Bond shall be overdue, and shall not be bound by any notice to
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the contrary. All payments of or on account of the principal of and premium, if any, and the
interest on the Bond as herein provided shall be made only to or upon the written order of the
registered owner thereof or his legal representative, but such registration may be changed as
herein provided. All such payments shall be valid and effectual to satisfy and discharge the
liability upon the Bond to the extent of the sum or sums so paid.
The Bond Registrar shall require the payment by the Purchaser requesting exchange or
transfer of any tax or other governmental charge required to be paid in respect of the exchange or
transfer, but shall not impose any other charge.
Section 3.8. Mutilated, Lost, Stolen or Destroyed Bond. If the Bond is mutilated, lost,
stolen or destroyed, the Bond Registrar will authenticate a new Bond of the same denomination
if any mutilated Bond shall first be surrendered to the Bond Registrar, and if, in the case of any
lost, stolen or destroyed Bond, there shall first be furnished to the Bond Registrar evidence of
such loss, theft or destruction, together with a satisfactory indemnity to the Bond Registrar, the
Issuer and the Borrower. If the Bond has matured, instead of issuing a duplicate Bond, the Bond
Registrar may with the consent of the Borrower pay the Bond without requiring surrender of the
Bond (except in the case of a mutilated Bond) and make such requirements as the Bond Registrar
deems fit for its protection, including a lost instrument bond. The Issuer and the Bond Registrar
may charge the Borrower their customary fees and reasonable expenses in this connection.
Section 3.9. Cancellation of Bond. Whenever the Bond is delivered to the Bond
Registrar for cancellation (upon payment, redemption or otherwise), or for transfer or
replacement pursuant to Section 3.7, 3.8 or 3.10, the Bond Registrar shall promptly cancel and
destroy the Bond in accordance with its customary procedures and issue a certificate of
destruction to the Borrower and the Issuer.
Section 3.10. Temporary Bond. Until a definitive Bond is ready for delivery, the Issuer
may execute and the Bond Registrar shall authenticate a temporary Bond substantially in the
form of the definitive Bond, with appropriate variations. The Issuer shall, without unreasonable
delay, prepare and the Bond Registrar shall authenticate a definitive Bond in exchange for the
temporary Bond. Such exchange shall be made by the Bond Registrar without charge to the
Purchaser.
Section 3.11. Payment of Bond. Subject to the provisions of Section 7.2 hereof, the
Issuer shall promptly pay the principal of, premium, if any, and interest on the Bond on the dates
and in the manner provided in the Bond, but solely and only from payments to be made by the
Borrower and available for such purpose hereunder, it being agreed and understood that the
Bond and interest thereon shall be a limited obligation of the Issuer which are not in any way a
general obligation of the Issuer nor payable in any manner from any other funds of the Issuer.
Section 3.12. Further Assurances. To the extent permitted by law and at the expense of
the Borrower, the Issuer shall execute and deliver such further instruments, and do such further
acts, as the Purchaser may reasonably require for the better assuring, assigning and confirming to
the Purchaser the amounts assigned hereunder for the payment of the Bond.
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Section 3.13. Tax Exemption. The Issuer covenants, to the extent within its control, to
comply with all requirements that must be satisfied in order for the interest to be paid on the
Bond to be excludible from gross income for purposes of federal income taxation. Toward that
end, the Issuer shall comply with and take all actions expressly required of it by the Tax
Agreement; provided, further, subject to the limitations on its liability as stated herein, and to the
extent permitted by law, the Issuer covenants and agrees that it has not knowingly engaged and
will not knowingly engage in any activities, and that it has not knowingly taken and will not
knowingly take any action, which would result in the interest to be paid on the Bond to be
includible in the gross income of the holder thereof for purposes of federal income taxation;
provided, however, that the Issuer intends to comply with the foregoing undertakings solely
through the obligations and undertakings of the Borrower to comply, which the Borrower and the
Purchaser hereby acknowledge.
Section 3.14. Performance of Covenants; Issuer. The Issuer covenants that it will
faithfully perform on its part at all times any and all covenants, undertakings, stipulations and
provisions expressly required of it in this Agreement or the Tax Agreement, in the Bond
executed, authenticated and delivered hereunder and in all of its proceedings pertaining thereto;
provided, however, that except for the matters set forth in this Agreement, the Tax Agreement
and the Bond relating to payment of the Bond, the Issuer shall not be obligated to take any action
or execute any instrument pursuant to any provision hereof until it shall have been requested to
do so by the Borrower or by the Purchaser, or shall have received the instrument to be executed
and at the option of the Issuer shall have received from the Borrower assurance satisfactory to
the Issuer that the Issuer shall be reimbursed for its reasonable expenses, including legal counsel
fees, incurred or to be incurred in connection with taking such action or executing such
instrument. The Issuer covenants that it is duly authorized under the Constitution and the laws of
the State, including particularly the Act and the Ordinance, to issue the Bond authorized hereby
and to execute this Agreement, to assign and pledge the amounts payable by the Borrower
hereunder (except as otherwise provided herein) and to assign and pledge the amounts hereby
assigned and pledged in the manner and to the extent herein set forth, that all action on its part
for the issuance of the Bond and the execution and delivery of this Agreement has been duly and
effectively taken, and that the Bond is and will be the valid and enforceable obligation of the
Issuer according to the terms thereof and hereof. Anything contained in this Agreement to the
contrary notwithstanding, it is hereby understood that none of the covenants of the Issuer
contained in this Agreement are intended to create a general or primary obligation of the Issuer.
Section 3.15. Fees, Charges and Expenses of the Bond Registrar and the Issuer. The
Bond Registrar and the Issuer shall be entitled to payment and reimbursement from the Borrower
for reasonable fees for their respective services rendered hereunder and all advances, counsel
fees and other expenses reasonably made or incurred by the Bond Registrar and the Issuer in
connection with such services and in connection with entering into this Agreement, including
any such fees and expenses incurred in connection with any actions taken hereunder. The Issuer
shall not be obligated to execute any documents or take any other action under or pursuant to this
Agreement or any other document in connection with the Bond unless and until provision for the
payment of expenses of the Issuer, including legal counsel fees, shall have been made.
Provisions for expenses shall be deemed to have been made upon arrangements reasonably
satisfactory to the Issuer being agreed upon by the Issuer and the party requesting such
execution.
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The Borrower covenants to pay the following within thirty (30) days after receipt of an
invoice therefor:
(a) The fees and expenses of the Issuer incurred or charged by the Issuer in
connection with, and as provided in, this Agreement and the Bond, such fees and
expenses to be paid directly to the Issuer or as otherwise directed in writing by the Issuer;
(b) (i) The fees and expenses of the Bond Registrar and all other fiduciaries
and agents serving under this Agreement (including any expenses in connection with any
redemption of the Bond), and (ii) all fees and expenses, including attorneys' fees, of the
Bond Registrar for any extraordinary services rendered by it under this Agreement. All
such fees and expenses are to be paid directly to the Bond Registrar or other fiduciary or
agent for its own account as and when such fees and expenses become due and payable;
and
(c) All other reasonable fees and expenses incurred in connection with the
issuance of the Bond.
ARTICLE IV.
REPAYMENT
Section 4.1. Loan Repayment. The application of the proceeds of the Bond pursuant to
Section 3.1 hereof shall constitute the loan of such proceeds by the Issuer to the Borrower. As
repayment of such loan, the Borrower agrees to pay directly to the Purchaser (as the assignee of
the Issuer) amounts sufficient to pay the principal of, premium, if any, or interest on the Bond on
each day on which any payment of principal of, premium, if any, or interest on the Bond shall
become due (whether on an Interest Payment Date, at maturity, or upon tender, redemption or
acceleration or otherwise). Such amounts shall be paid in immediately available funds on or
before noon (Chicago time). If the Borrower fails to make full payment required by this Section,
the Borrower shall pay interest (to the extent allowed by law) on such amount until paid at the
Default Rate.
Section 4.2. Prepayments. Subject to the provisions of the Covenant Agreement, the
Borrower may prepay to the Purchaser (subject to Section 3.5(a)), upon not less than 10 days'
prior written notice to the Purchaser and the Issuer (or such shorter time as agreed to by the
Purchaser and the Issuer), all or any part of the amounts payable under Section 4.1 at any time on
any date that the Bond shall be subject to optional redemption, solely as provided in this
Agreement, the Covenant Agreement and the Bond. A prepayment shall not relieve the
Borrower of its obligations under this Agreement until the Bond has been paid in full or
provision for the payment thereof has been made in accordance with this Agreement. In the
event of acceleration of the Bond, the Borrower agrees to prepay all amounts necessary for such
acceleration.
Section 4.3. Obligations of Borrower Unconditional. The obligations of the Borrower
to make the payments required by Sections 4.1 and 4.2 and to perform its other agreements
contained in this Agreement shall be absolute and unconditional. Until the principal of,
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premium, if any, and interest on the Bond shall have been fully paid or provision for the payment
of the Bond made in accordance with this Agreement, the Borrower (a) shall not suspend or
discontinue any payments provided for in Section 4.1 hereof, (b) shall perform all its other duties
and responsibilities called for by this Agreement and (c) shall not terminate this Agreement for
any cause including any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Project, commercial frustration of purpose, any change in the
laws of the United States or of the State or any political subdivision of either or any failure of the
Issuer to perform any of its agreements, whether express or implied, or any duty, liability or
obligation arising from or connected with this Agreement.
ARTICLE V.
BORROWER COVENANTS
Section 5.1. Financing Statements. The Borrower, at its own expense, shall take all
necessary action to maintain and preserve all of the liens and security interests created by, and
granted pursuant to, this Agreement so long as any principal of, premium, if any, or interest on
the Bond remains unpaid. The Borrower shall, forthwith after the execution and delivery of this
Agreement and thereafter from time to time, cause this Agreement, including any amendments
thereof and supplements thereto, and any financing statements in respect thereof to be filed,
registered and recorded in such manner and in such places as may be required by law in order to
publish notice of and fully to perfect and protect such liens and security interests, and from time
to time shall perform or cause to be performed any other act as provided by law and shall execute
or cause to be executed any and all continuation statements and further instruments necessary for
such publication, perfection and protection. Except to the extent it is exempt therefrom, the
Borrower shall pay or cause to be paid all filing, registration and recording fees incident to such
filing, registration and recording, and all expenses incident to the preparation, execution and
acknowledgment of such instruments of further assurance, and all federal or State fees and other
similar fees, duties, imposts, assessments and charges arising out of or in connection with the
execution and delivery of this Agreement and such instruments of further assurance.
The Issuer shall have no responsibility for the preparation, filing or recording of any
instrument, document or financing statement or for the maintenance of any security interest
intended to be perfected thereby. The Issuer, to the extent permitted by law, at the expense of
the Borrower, shall execute such instruments provided to it by the Borrower as may be
reasonably necessary in connection with such filing or recording.
Section 5.2. Borrower's Obligation with Respect to Exclusion of Interest Paid on the
Bond. (a) The Borrower will not take any action, omit to take any action or permit the taking or
omission of any action within its control (including, without limitation, making or permitting any
use of the proceeds of the Bond) if taking or omitting to take such action would result in the
revocation or modification of its status as an organization described in Section 501(c)(3) of the
Code or would cause the interest on the Bond to be included in the gross income of the recipients
thereof for federal income tax purposes. Toward that end, the Borrower covenants that it will
comply with all provisions of the Tax Agreement. This provision shall control in case of conflict
or ambiguity with any other provision of this Agreement.
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(b) Neither the Borrower nor any person related to it within the meaning of
1.150-1(e) of the United States Treasury Regulations and Section 145(b)(3) of the Code,
pursuant to an arrangement, formal or informal, shall purchase bonds of the Issuer (other than the
Bond) in an amount related to the total amount payable by the Borrower under and secured by
this Agreement.
Section 5.3. Maintenance of Corporate Existence and Tax Status. (a) Any dissolution,
liquidation, disposition, consolidation or merger of the Borrower shall be subject to the following
conditions:
(i) no Default or Event of Default exists hereunder and that no Default or
Event of Default will be caused by the dissolution, liquidation, disposition, consolidation
or merger;
(ii) the entity surviving the dissolution, liquidation, disposition, consolidation
or merger assumes (or, if the surviving entity is the Borrower, affirms) in writing and
without condition or qualification all of the obligations of the Borrower under each of the
Borrower Agreements;
(iii) neither (A) the validity nor the enforceability of the Bond nor (B) any
agreements to which the Borrower is a party is adversely affected by the dissolution,
liquidation, disposition, consolidation or merger;
(iv) (A) the exclusion of the interest on the Bond from gross income for
federal income tax purposes is not adversely affected by the dissolution, liquidation,
disposition, consolidation or merger, (B) the provisions of the Act and this Agreement are
complied with concerning the dissolution, liquidation, disposition, consolidation or
merger, and (C) the provisions of the Borrower Agreements are complied with
concerning the dissolution, liquidation, disposition, consolidation or merger;
(v) the Project continues to be as described herein;
(vi) any successor to the Borrower shall be qualified to do business in the State
and shall continue to be qualified to do business in the State throughout the term hereof;
and
(vii) the Issuer has executed a certificate acknowledging receipt and approval
of all documents, information and materials required by this Section 5.3.
As of the effective date of the dissolution, liquidation, disposition, consolidation or
merger, the Borrower (at its cost) shall furnish to the Issuer and the Purchaser (1) an Opinion of
Bond Counsel, in form and substance satisfactory to such parties, as to item (iv) above; (2) an
opinion of counsel (not objected to by the Issuer), in form and substance satisfactory to the
Issuer, as to the legal, valid and binding nature of items (ii) and (iii) above; (3) a certificate of the
Borrower, in form and substance satisfactory to the Issuer, as to items (i), (v) and (vi); and (4) a
true and complete copy of the instrument of dissolution, liquidation, disposition, consolidation or
merger.
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(b) The Borrower agrees, subject to the provisions in subsection (a) above, that (i) it
will at all times maintain its existence as a not for profit corporation organized under the laws of
the State; (ii) it will not take any action or permit any action to be taken by others within its
control which will alter, change or destroy its status as a not for profit corporation or its status as
a Tax -Exempt Organization; and (iii) it will not fail to take any action within its control to
preserve its status as a not for profit corporation or its status as a Tax -Exempt Organization.
The Borrower further covenants that none of its revenues, income or profits, whether
realized or unrealized, will be distributed to any of its officers or trustees or inure to the benefit
of any private person, association or corporation, other than for the lawful corporate purposes of
the Borrower, including but not limited to the Borrower's ability to pay to any person employed
by the Borrower a salary and otherwise to pay to any person, association or corporation the
reasonable value of any service or product performed for or supplied to the Borrower by such
person, association or corporation.
Section 5.4. Required Reporting. This Agreement shall require the Borrower to keep,
or cause to be kept, proper books of records and accounts in which complete and accurate entries
shall be made of all funds and accounts established by or pursuant to this Agreement, which shall
at all reasonable times be subject to inspection by the Issuer.
Section S.S. Taxes, Charges and Assessments. Subject to the provisions of Section 5.7
hereof, to the extent that the Borrower or its properties are or become liable to taxation, the
Borrower covenants and agrees to pay or cause to be paid (when the same shall become due and
payable) all lawful taxes, charges, assessments and other governmental levies against the
Borrower or its properties. If under applicable law any such tax, charge, fee, rate, imposition or
assessment may at the option of the taxpayer be paid in installments, the Borrower may exercise
such option.
Nothing contained in this Section 5.5 shall be deemed to constitute an admission by
either the Issuer or the Borrower that either the Issuer or the Borrower is liable for any tax,
charge, fee, rate, imposition or assessment.
Section 5.6. Compliance with Laws; Taxes and Assessments. Subject to the provisions
of Section 5.7 hereof, the Borrower will, through the term of this Agreement and at no expense
to the Issuer or the Purchaser, promptly comply or cause compliance with all applicable laws,
ordinances, orders, rules, regulations and requirements of duly constituted public authorities
which may be applicable to the Project or to the repair and alteration thereof, or to the use or
manner of use of the Project, including, but not limited to, the Americans with Disabilities Act,
Illinois Accessibility Code, all federal, State and local environmental, health and safety laws,
rules, regulations and orders applicable to or pertaining to the Project, the Federal Worker
Adjustment and Retraining Notification Act and, if applicable, the Illinois Prevailing Wage Act.
Section 5.7. Permitted Contests. The Borrower shall not be required to pay any tax,
charge, fee, rate, assessment or imposition required to be paid under Section 5.5 hereof, or to
comply with any law, ordinance, rule, order, decree, regulation or requirement referred to in
Section 5.6 hereof, so long as the Borrower shall in good faith and at its cost and expense contest
the amount or validity thereof, or take other appropriate action with respect thereto, in an
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appropriate manner or by appropriate proceedings which shall operate during the pendency
thereof to prevent (i) the collection of or other realization upon the tax, fee, rate, assessment,
imposition or charge, so contested, (ii) the sale, forfeiture or loss of its Property or any part
thereof to satisfy the same or (iii) any materially adverse effect on the use, occupancy or
condition of the Borrower's Property taken as a whole; provided that no such contest or action
shall subject the Issuer to any liability unless the Borrower properly indemnifies the Issuer; and
provided, further, that no such contest or action shall subject the Purchaser to any liability in any
case. While any such matters are pending, the Borrower shall have the right to pay, remove or
cause to be discharged or marked exempt the tax, and assessment, imposition or charge being
contested. Each such contest shall be promptly prosecuted to final conclusion or settlement, and
the Borrower will pay, and save the Issuer and the Purchaser harmless against, all losses,
judgments, decrees and costs (including attorneys' fees and expenses in connection therewith)
and will, promptly after the final determination or settlement of such contest or action, pay and
discharge the amounts which shall be levied, assessed or imposed or determined to be payable
therein, together with all penalties, fines, interests, costs and expenses thereon or in connection
therewith.
Section 5.8. Maintenance of Project. The Borrower covenants to preserve and keep
the Project in good repair and order and will maintain the Project in a safe and sound condition,
and from time to time will make all repairs, replacements, renewals and additions deemed
necessary by the Borrower for the efficient functioning thereof; provided, however, that the
foregoing shall not prevent the Borrower from selling, removing or demolishing the Project, or
any portion thereof, not considered by the Borrower to be necessary or useful for the efficient
conduct of its activities, so long as such act or acts are consistent with and not in violation of any
terms, covenants or provisions of the Tax Agreement. The Borrower shall maintain reasonable
amounts of insurance coverage with respect to the Project and shall pay all costs of such
maintenance, repair and insurance.
Section 5.9. Covenants to Purchaser. The Borrower is making certain covenants for
the benefit of the Purchaser (but not for the benefit of the Issuer or any other party), which
covenants are, set forth in Covenant Agreement. Subject to the provisions of Section 2.2(p) and
Section 9.12 hereof, the Borrower and the Purchaser may amend the Covenant Agreement
without the consent of any other party; provided, however, the Borrower shall provide the Issuer
with notice of any such amendment.
Section 5.10. Use of the Project. (a) The Borrower agrees that it will use the Project
only in furtherance of the lawful corporate purposes of the Borrower.
(b) The Borrower further agrees that it will not use the Project or any part thereof
(i) for sectarian instruction or study or as a place of devotional activities or religious worship or
as a facility used primarily in connection with any part of the program of a school or department
of divinity for any religious denomination or the training of ministers, priests, rabbis or other
similar persons in the field of religion or (ii) in a manner which would violate the Establishment
of Religion Clause of the First Amendment to the Constitution of the United States of America,
including the decisions of the United States Supreme Court interpreting the same or any
comparable provisions of the Constitution of the State, including the decisions of the Supreme
Court of the State interpreting the same. Notwithstanding the termination of this Agreement, the
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Borrower agrees that it will continue to comply with the restriction stated in the preceding
sentence on the sectarian use of the Project. To the extent required by law, the Borrower will
permit the Issuer and the Purchaser to inspect the Project upon reasonable notice and during
regular business hours solely in order to determine whether the Borrower has complied with the
provisions of this paragraph and such right of inspection shall survive the termination of this
Agreement.
(c) The Borrower further agrees that it will not use the Project, or permit the Project
to be used, in such manner as would result in the loss of the exclusion from federal gross income
of the Purchaser or any Bondholder or former Bondholder of the interest paid on the Bond
otherwise afforded under Section 103(a) of the Code.
Section 5.11. Application of Certain Gifts. The Borrower hereby recognizes that it may
receive from time to time gifts, grants, donations, bequests or other charitable contributions,
regardless of the form or the source thereof, the proceeds of which when received by the
Borrower are or will be restricted to, or are intended and segregated by the Borrower to be used
for, payment of Costs of the Project (hereinafter referred to as "Restricted Gifts"). Subject to the
provisions of the last two sentences of this Section, the Borrower hereby covenants and agrees
that, if and when the Borrower receives any Restricted Gifts prior to the delivery of the
Completion Certificate to the Issuer pursuant to this Agreement, the Borrower will transfer the
Excess (as hereinafter defined), if any, as soon as practicable after such Excess becomes
available to the Borrower for such purposes, to be used to pay Costs of the Project. The
Borrower acknowledges that, the Excess is subject to the restrictions contained in the Tax
Agreement with respect to amounts on deposit in any project fund, and such amount will
constitute "Gross Proceeds" (as defined in the Tax Agreement). The Borrower further covenants
and agrees that, if and when the Borrower receives any Restricted Gifts after delivery of the
Completion Certificate, the Borrower will apply the Excess to the optional or mandatory
redemption of the Bond in accordance with Section 3.5 hereof (the "Redemption"); provided,
however, that, in connection with such Redemption, the Borrower may deposit the Excess into a
separate, segregated account at a bank or trust company and invest such Excess at a rate not in
excess of the Yield (as defined in the Tax Agreement) on the Bond until such time as the Bond
may be redeemed in accordance with Section 3.5 hereof at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the redemption date. The amount of any
Restricted Gifts to be so transferred on any date to be used to pay the Costs of the Project prior to
delivery of the Completion Certificate or to be so deposited into such separate, segregated
account at a bank or trust company for the Redemption of Bonds after delivery of the
Completion Certificate shall be equal to the excess, if any, of (a) the aggregate amount of
Restricted Gifts received by the Borrower as of such date over (b) the aggregate amount of
moneys not obtained through the issuance of the Bond which the Borrower has theretofore
applied, or intends to apply based on then current estimates, to payment of Costs of the Project
(the "Excess"). The proceeds of any such Restricted Gifts need not be so applied until the
aggregate amount thereof held by the Borrower at any time and not previously so applied is at
least $100,000.
Section 5.12. Costs of Issuance Fund. (a) Concurrently with the execution and delivery
of this Agreement, the Costs of Issuance Fund shall be established pursuant to this Agreement.
Bond Proceeds shall be deposited in the Costs of Issuance Fund in accordance with Section 3.1
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hereof. Bond proceeds for deposit in the Costs of Issuance Fund in accordance with
Section 3.l(B) and (C) hereof shall be applied to the payment of the Costs of Issuance,
respectively, except as otherwise permitted by this Agreement and except to the extent required
to be transferred to the Rebate Fund in accordance with the Tax Agreement.
(b) The Borrower agrees that if, after exhaustion of the moneys in the Costs of
Issuance Fund, the Borrower pays any portion of the Costs of Issuance from sources other than
Bond proceeds, it shall not be entitled to any reimbursement therefor from the Issuer or the
Purchaser, nor shall it be entitled to any diminution of the amounts payable under this
Agreement. The Issuer and the Purchaser do not make any warranty or representation, either
express or implied, that the moneys deposited in the Costs of Issuance Fund, and which under the
provisions of this Agreement will be available for payment of the Costs of Issuance, will be
sufficient to pay all of the Costs of Issuance.
(c) The Borrower agrees that, during the term of this Agreement, the Issuer and the
Purchaser and any representative thereof shall have the right at all reasonable times, upon
reasonable notice, to enter upon the premises and examine and inspect the Project for the purpose
of determining whether the Borrower is in compliance with the terms of the Borrower
Agreements and to copy, at the principal office of the Borrower, all books, records and other
documents of the Borrower relating to the number and types of jobs at the Project. The Issuer
shall have no duty or obligation to investigate whether the Borrower is in compliance with the
terms of the Borrower Agreements, and no examination or inspection pursuant to this subsection
(c) shall create such an obligation.
Section 5.13. Completion Certificate. The Borrower will deliver to the Issuer within 90
days after the completion of the Project (or the portion thereof which is being financed with the
proceeds of the Bonds) a certificate of the Borrower certifying:
(a) that the Project (or portion thereof) has been completed;
(b) that the Project (or portion thereof) has been completed in accordance with the
plans and specifications, the schedule, and the date of completion;
(c) if any item was added, deleted or substituted from the Project, the average
reasonably expected economic life of the Project recalculated as follows:
(i) any item which was not originally listed in Exhibit C but for which was
constituted proper Cost of the Project shall be included in Exhibit C and the Borrower
shall specify the reasonably expected economic life to the Borrower of the additional
item, the date on which such additional item was placed in service, and the original cost
thereof;
(ii) any item which was originally listed on Exhibit C but which the Borrower
subsequently deleted from the Project pursuant to an amendment to the Project
Documents shall be deleted from the Project; and
(iii) all other items shall be assumed to have the economic life and the cost
originally assigned to them on the Closing Date as reflected in the Tax Agreement;
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(d) that the Project or portion thereof has been fully paid for and no claim or claims
exist against the Issuer or the Borrower or against such Project out of which a lien based on
furnishing labor or material exists or might, with the passage of time or the giving of notice,
ripen; provided, however, there may be excepted from the foregoing statement any claim or
claims out of which a lien exists or might, with the passage of time or the giving of notice, ripen
in the event that the Borrower intends to contest such claim or claims, in which event such claim
or claims shall be described; provided that sufficient funds are available to the Borrower through
enumerated bank loans, including letters of credit, or state or federal grants (as certified by the
Borrower) or other funds of the Borrower sufficient to make payment of the full amount which
might in any event be payable in order to satisfy such claim or claims in which event such claim
or claims shall be described.
ARTICLE VI.
LIMITED OBLIGATION; NO RECOURSE TO ISSUER; INDEMNIFICATION
Section 6.1. Limited Obligation; No Recourse. The obligations of the Issuer under this
Agreement are special, limited obligations of the Issuer, payable solely out of the revenues and
income derived under this Agreement and as otherwise provided under this Agreement or the
Ordinance. The obligations of the Issuer hereunder shall not be deemed to constitute an
indebtedness or an obligation of the Issuer, the State or any political subdivision thereof within
the purview of any constitutional limitation or statutory provision, or a charge against the credit
or general taxing powers, if any, of any of them. Neither the Issuer, the Mayor, City Clerk, City
Treasurer, nor any alderman of the City Council, nor any member, director, officer, employee or
agent of the Issuer nor any person executing the Bond shall be liable personally for the Bond or
be subject to any personal liability or accountability by reason of the issuance of the Bond. No
recourse shall be had for the payment of the principal of, premium, if any, and interest on any of
the Bond or for any claim based thereon or upon any obligation, covenant or agreement
contained in this Agreement against any past, present or future member, officer, agent or
employee of the Issuer, or any incorporator, member, officer, employee, director or trustee of
any successor corporation, as such, either directly or through the Issuer or any successor
corporation, under any rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such incorporator, member,
officer, employee, director, agent or trustee as such is hereby expressly waived and released as a
condition of and consideration for the execution of this Agreement and the issuance of the Bond.
Section 6.2. Indemnification. (a) The Borrower will pay, and will protect, indemnify
and save the Issuer, the Mayor, City Clerk, City Treasurer, any alderman of the City Council,
and its past, present and future members, officers, directors, employees, agents, successor,
assigns and any other person, if any, who "controls" the Issuer, as that term is defined in
Section 15 of the Securities Act of 1933, as amended (the Issuer and the other listed persons,
collectively referred to as, the "Indemnified Persons"), harmless from and against any and all
liabilities, losses, damages, taxes, penalties, costs and expenses (including attorneys' fees and
expenses of the Issuer), causes of action, suits, proceedings, claims, demands, tax reviews,
investigations and judgments of whatsoever kind and nature (including, but not limited to, those
arising or resulting from any injury to or death of any person or damage to property) arising from
or in any manner directly or indirectly growing out of or connected with (i) the use, financing,
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non-use, condition or occupancy of the Project, any repairs, construction, alterations, renovation,
relocation, remodeling and equipping thereof or thereto or the condition thereof, including
adjoining sidewalks, streets or alleys and any equipment or facilities at any time located on or
connected with the Project or used in connection therewith but which are not the result of the
gross negligence of the Issuer; (ii) a violation of any agreement, warranty, covenant or condition
of the Borrower set forth in this Agreement or any related document; (iii) a violation of any
contract, agreement or restriction by the Borrower relating to the Project; (iv) violation of any
law, ordinance, rules, regulation or court order affecting the Project or the ownership, occupancy
or use thereof or the Bond or use of the proceeds thereof; (v) a violation of any law, ordinance,
rule, regulation or court order relating to the sale of the Bond; (vi) any statement or information
concerning the Borrower, any of its officers and members, its operations or financial condition
generally or the Project, contained in any document or supplement or amendment thereto
furnished to the Issuer or the Purchaser, that is untrue or incorrect in any material respect, and
any omission from such document of any statement or information which should be contained
therein for the purpose for which the same is to be used or which is necessary to make the
statements therein concerning the Borrower, any of its officers and members and the Project not
misleading in any material respect, provided that such document or supplement or amendment
has been approved by the Borrower; and (vii) the acceptance or administration of this
Agreement, including without limitation the enforcement of any remedies under this Agreement
or any related document.
In case any claim shall be made or any action shall be brought against one or more of the
Indemnified Persons in respect of which indemnity can be sought against the Borrower pursuant
to the preceding paragraph, the Indemnified Person seeking indemnity shall promptly notify the
Borrower, in writing, and the Borrower shall promptly assume the defense thereof, including the
employment of counsel chosen by the Borrower and approved by the Issuer (provided that such
approval by the Issuer shall not be unreasonably withheld), the payment of all expenses and the
right to negotiate and consent to settlement. If any Indemnified Person is advised in a written
opinion of counsel that there may be legal defenses available to such Indemnified Person which
are adverse to or in conflict with those available to the Borrower or that the legal defense of such
Indemnified Person should be handled by separate counsel, the Borrower shall not have the right
to assume the defense of such Indemnified Person, but the Borrower shall be responsible for the
reasonable fees and expenses of counsel retained by such Indemnified Person in assuming its
own defense, and provided also that, if the Borrower shall have failed to assume the defense of
such action or to retain counsel reasonably satisfactory to the Issuer within a reasonable time
after notice of the commencement of such action, the reasonable fees and expenses of counsel
retained by the Indemnified Person shall be paid by the Borrower. Notwithstanding the
foregoing, any one or more of the Indemnified Persons shall have the right to employ separate
counsel with respect to any such claim or in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Person
unless the employment of such counsel has been specifically authorized by the Borrower or
unless the provisions of the immediately preceding sentence are applicable. The Borrower shall
not be liable for any settlement of any such action affected without the consent of the Borrower,
but if settled with the consent of the Borrower or if there be a final judgment for the plaintiff in
any such action with or without consent, the Borrower agrees to indemnify and hold harmless the
Indemnified Person from and against any loss, liability or expense by reason of such settlement
or judgment.
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The Borrower shall also indemnify the Issuer and such Indemnified Persons for all
reasonable costs and expenses, including reasonable counsel fees, incurred in (i) enforcing any
obligation of the Borrower under this Agreement or any related document, (ii) taking any action
requested by the Borrower, (iii) taking any action required by this Agreement or any related
document, or (iv) taking any action considered necessary by the Issuer and which is authorized
by this Agreement or any related document. If the Issuer is to take any action under this
Agreement or any other instrument executed in connection herewith for the benefit of the
Borrower, it will do so if and only if (i) the Issuer is a necessary party to any such action or
proceeding, and (ii) the Issuer has received specific written direction from the Borrower, as
required hereunder or under any other instrument executed in connection herewith, as to the
action to be taken by the Issuer.
(b) All amounts payable to the Issuer under this Section 6.2 shall be deemed to be
fees and expenses payable to the Issuer for the purposes of the provisions hereof. The Issuer and
its members, officers, agents, employees and their successors and assigns shall not be liable to
the Borrower or the Purchaser for any reason.
(c) Any provision of this Agreement or any other instrument or document executed
and delivered in connection therewith to the contrary notwithstanding, the Issuer retains the right
to (i) enforce any applicable federal or State law or regulation or Ordinance of the Issuer and
(ii) enforce any rights accorded to the Issuer by federal or State law or policy or procedure of the
Issuer, and nothing in this Agreement shall be construed as an express or implied waiver thereof.
The obligation of the Borrower under this Section 6.2 shall survive any assignment or
termination of this Agreement.
Section 6.3. Default by the Issuer; Limited Liability. Notwithstanding any provision or
obligation to the contrary set forth herein, no provision of this Agreement shall be construed so
as to give rise to a pecuniary liability of the Issuer or to give rise to a charge upon the general
credit of the Issuer, the liability of the Issuer hereunder shall be limited to its interest in the
Project, this Agreement and all other related documents and collateral and the lien of any
judgment shall be restricted thereto. In the performance of the agreements of the Issuer herein
contained, any obligation it may incur for the payment of money shall not be a debt of the Issuer,
nor shall the Issuer be liable on any obligation so incurred. The Issuer does not assume general
liability for the repayment of the Bond or for the costs, fees, penalties, taxes, interest,
commissions, charges, insurance or any other payments recited herein, and shall be obligated to
pay the same only out of the amounts payable by the Borrower hereunder. The Issuer shall not
be required to do any act whatsoever or exercise any diligence whatsoever to mitigate the
damages to the Borrower if a default shall occur hereunder.
ARTICLE VII.
ASSIGNMENT AND TRANSFER
Section 7.1. Assignment by Borrower. The rights of the Borrower under this
Agreement may be assigned to, and the obligations of the Borrower assumed by, another party in
whole or in part, but only with the prior written consent of the Purchaser and the Issuer, the
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Issuer's consent not to be unreasonably withheld. No such assignment will be made, however,
unless the Borrower causes there to be delivered to the Purchaser and the Issuer an Opinion of
Bond Counsel to the effect that such assignment will not cause interest on the Bond to be
includable in the gross income of the owners thereof for federal income tax purposes.
Section 7.2. Assignment by Issuer. As security for the payment of the Bond, the Issuer
hereby assigns and pledges to the Purchaser all of its right, title and interest in and to this
Agreement, including the right to receive payments hereunder (except pursuant to its Unassigned
Rights, including, without limitation, the right to receive payment of expenses, fees,
indemnification and the rights to make determinations and receive notices, as herein provided),
and hereby directs the Borrower to make said payments directly to the Purchaser. The Borrower
herewith assents to such assignment and pledge and will make payments directly to the
Purchaser without withholding, defense or set off by reason of any dispute between the Borrower
and the Issuer or Purchaser, and hereby agrees that its obligation to make payments hereunder
and to perform its other agreements contained herein are absolute and unconditional.
Section 7.3. Transfer of Bond. The Bond may be transferred by the Purchaser in whole
or in part subject to (a) compliance with the terms of the Investor Letter executed and delivered
by the Purchaser on the Closing Date and Section 9.13(b) of the Covenant Agreement, (b) the
execution and delivery by any new registered owner of a new Investor Letter and (c) any such
new registered owner making the representations set forth in Section 2.3 hereof. If the Bond is
transferred in part, the parties hereto acknowledge that it may be necessary to amend this
Agreement and the form of the Bond to recognize that there are multiple registered owners and
to affect the role of an agent or majority bondholder for such registered owners.
ARTICLE VIII.
EVENTS OF DEFAULTS AND REMEDIES
Section 8.1. Events of Default. An "Event of Default" is any of the following:
(a) There is a failure to make due and punctual payment of any interest on the Bond
on the date on which the same is due.
(b) There is a failure to make due and punctual payment of principal of or premium,
if any, on the Bond on the date on which the same is due, at maturity, upon acceleration, tender
or redemption or otherwise.
(c) There is a failure to make the due and punctual payment of purchase price for the
Bond on any Purchase Date on which the same is due.
(d) The Issuer fails to perform any of its agreements in this Agreement or the Bond
(except a failure that results in an Event of Default under clause (a), (b) or (c) above) and to
remedy such default within 30 days after the earlier to occur of (i) written notice thereof from
the Purchaser or the Borrower to the Issuer or (ii) the date on which the Issuer has actual
knowledge thereof, unless the nature of the default is such that it cannot be remedied within the
thirty -day period and the Issuer has instituted corrective action within a period of time
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reasonably agreed to by the Purchaser and diligently pursues such action until the default is
remedied.
(e) An "event of default" (as described in the Covenant Agreement) has occurred and
is continuing under the Covenant Agreement (after the expiration of any applicable cure period),
which notice may include a direction to cause a mandatory tender of the Bonds.
(f) The Borrower fails to perform any of its agreements in this Agreement (except for
a failure that results in an Event of Default under clause (a), (b) or (c) of this Section) and to
remedy such default within 30 days after the earlier to occur of (i) written notice thereof from the
Purchaser or the Issuer to the Borrower or (ii) the date on which the Borrower has actual
knowledge thereof.
(g) The Borrower pursuant to or within the meaning of any Bankruptcy Law (as
defined below) (i) commences a voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the appointment of a Custodian (as defined
below) for the Borrower, or any substantial part of its Property or (iv) makes a general
assignment for the benefit of its creditors.
(h) A petition is filed with respect to the Borrower by a Person other than the
Borrower under any Bankruptcy Law and is not dismissed within 60 days after such filing.
(i) A court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against the Borrower in an involuntary case, (ii) appoints a Custodian for
the Borrower or any substantial part of its Property or (iii) orders the winding up or liquidation of
the Borrower.
0) Any representation or warranty made by the Borrower herein or in any statement
or certificate furnished to the Issuer or the Purchaser of the Bond in connection with the sale
thereof or furnished by the Borrower pursuant hereto is found to have been untrue in any
material respect as of the date of the issuance or making thereof.
(k) Default under any instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness of the Borrower if that default either (i) is caused
by a failure to make any payment when due on such debt, after giving effect to any applicable
grace periods or (ii) results in the acceleration, or would permit the acceleration of, of such debt
prior to its express maturity.
(1) Any final judgment or judgments which are not paid in full by insurance, with
written acknowledgement of such coverage having been provided by the provider of such
insurance coverage to the Purchaser, shall be entered or filed against the Borrower or against any
of its Property and remains unsatisfied, unvacated, unbonded or unstayed for a period of 30 days.
(m) An event of default occurs and is continuing under any Borrower Agreement and
the Bond (after the expiration of any applicable cure period).
(n) An event of default occurs and is continuing under any other agreement under
which the Purchaser or any of its subsidiaries, affiliates or successors loans money, directly or
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indirectly, via conventional loan or a municipal bond purchase or otherwise, to the Borrower, or
under any agreement or instrument securing such a loan (after the expiration of any applicable
cure period).
As used in this Section 8. 1, the term "Bankruptcy Law" means Title 11 of the United
States Code or any similar federal or State law for the relief of debtors, and the term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
Section 8.2. Acceleration. If any Event of Default occurs and is continuing, the
Purchaser, by written notice to the Issuer and the Borrower (except for an Event of Default under
Section 8.1(g), (h) or (i) hereof, for which a declaration can be made without any notice), may
declare the principal of, premium if any, and accrued interest on the Bond to be due and payable
immediately, and such principal, premium, if any, and interest shall thereupon become and be
immediately due and payable.
The Purchaser may rescind an acceleration and its consequences if all existing Events of
Default have been cured or waived, so long as such rescission does not conflict with any
judgment or decree of a court of competent jurisdiction.
Section 8.3. Other Remedies. If an Event of Default occurs and is continuing, the
Purchaser may pursue any available remedy by proceeding at law or in equity to collect the
principal of, premium, if any, or interest on the Bond or to enforce the performance of any
provision of the Bond or this Agreement; provided, however, that payments of principal of,
premium, if any, or interest on the Bond are payable by the Issuer solely from payments to be
made by the Borrower and available for such purpose as described hereunder.
A delay or omission by the Purchaser in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in
the Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative.
Section 8.4. Waiver of Past Defaults. The Purchaser, by written notice to the Issuer
and the Borrower, may waive an existing Event of Default and its consequences. If the
Purchaser waives an Event of Default, it shall be deemed to be cured and shall no longer be
deemed to be continuing, but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent to it.
Section 8.5. Purchaser May File Proofs of Claim. The Purchaser may file such proofs
of claim and other papers or documents as may be necessary or advisable in order to have the
claims of the Purchaser allowed in any judicial proceedings relative to the Borrower, its creditors
or its Property and, unless prohibited by law or applicable regulations, may vote on behalf of the
holder in any election of a trustee in bankruptcy or other person performing similar functions.
Section 8.6. Attorneys' Fees and Expenses. If the Borrower should default under any
provision of this Agreement and the Issuer or the Purchaser should employ attorneys or incur
other expenses for the collection of the payments due under this Agreement, the Borrower shall,
on demand, pay to the Issuer or the Purchaser, as the case may be, the reasonable fees of such
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attorneys and such other reasonable expenses so incurred by the Issuer or the Purchaser, as the
case may be.
Section 8.7. No Remedy Exclusive. No remedy herein conferred upon or reserved to
the Issuer or the Purchaser is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement, now or hereafter existing, at law or in equity or by statute.
No delay or omission to exercise any right or power and accruing upon any Event of Default
hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be deemed
expedient.
ARTICLE IX.
MISCELLANEOUS
Section 9.1. Notices. Unless otherwise specifically provided herein, any notice,
request, complaint, demand, communication or other paper shall be sufficiently given and shall
be deemed given when the same is (a) deposited in the United States mail and sent by first class
mail, postage prepaid, or (b) delivered, in each case to the parties at the addresses set forth below
or at such other address as a party may designate by notice to the other parties:
If to the Issuer by first class mail
With a copy to:
City of Canton
2 North Main Street
Canton, Illinois 61520
Attention: Mayor
City of Canton
2 North Main Street
Canton, Illinois 61520
Attention: City Attorney
If to the Borrower: Graham Hospital Association
210 West Walnut Street
Canton, Illinois 61520
Attention: Bob Senneff, Chief Executive
Officer
Telephone: (309) 649-5175
Telecopier: (309) 649-5101
Email: rsenneff@grahamhospital.org
With a copy to:
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Graham Hospital Association
210 West Walnut Street
Canton, Illinois 61520
Attention: Julie Reeder, Chief Financial
Officer
Telephone: (309) 649-5240
Telecopier: (309) 649-5101
Email: jreeder@grahamhospital.org
If to the Purchaser: Clayton Holdings, LLC
Attention:
Telephone:
Telecopier:
Email:
Any addressee may designate additional or different addresses for purposes of this
Section.
Section 9.2. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Issuer, the Borrower, the Purchaser and their respective successors and assigns.
Section 9.3. Severability. If any provision of this Agreement shall be determined to be
unenforceable at any time, that shall not affect any other provision of this Agreement or the
enforceability of that provision at any other time.
Section 9.4. Amendments. Except as otherwise provided herein, after the issuance of
the Bond, this Agreement may not be effectively amended or terminated without the written
consent of the parties hereto.
Section 9.5. Governing Law. This Agreement shall be governed exclusively by and
construed in accordance with the internal laws of the State applicable to contracts to be wholly
performed therein.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EACH OF THE PARTIES
HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON
LAW OR STATUTORY CLAIMS.
Section 9.6. Captions; References to Sections. The captions in this Agreement are for
convenience only and do not define or limit the scope or intent of any provisions or Sections of
this Agreement. References to Articles and Sections are to the Articles and Sections of this
Agreement, unless the context otherwise requires.
Section 9.7. Complete Agreement. This Agreement represents the entire agreement
among the Issuer, the Purchaser and the Borrower with respect to its subject matter. Certain tax
matters relating to the Bond and the use of the Project are set forth in the Tax Agreement. The
Borrower has made certain additional covenants to the Purchaser as set forth in the Covenant
Agreement.
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Section 9.8. Term of this Agreement; Discharge. This Agreement shall be in full force
and effect from the date hereof, and shall continue in effect until the payment in full of all
principal of, premium, if any, and interest on the Bond; all fees, charges, indemnities and
expenses of the Issuer, the Bond Registrar and the Purchaser have been fully paid or provision
made for such payment (the payment of which fees, charges, indemnities and expenses shall be
evidenced by a written certification of the Borrower that it has fully paid or provided for all such
fees, charges, indemnities and expenses), and all other amounts due hereunder have been duly
paid or provision made for such payment. The principal of, premium, if any, and interest on the
Bond may be deemed paid in full in advance of the actual payment thereof if an irrevocable
escrow is funded for such purpose in form and substance satisfactory to the Purchaser. All
representations, certifications and covenants by the Borrower as to the indemnification of various
parties and the payment of fees and expenses of the Issuer and the Bond Registrar as described in
Section 3.15 hereof, and all matters affecting the tax-exempt status of the Bond shall survive the
termination of this Agreement.
Upon the termination of this Agreement as aforesaid, all amounts on deposit in any funds
or accounts created hereunder (if any) shall be paid in the following order: (a) to the Purchaser,
to the extent any amounts remain owing to the Purchaser hereunder or under the Covenant
Agreement, and shall be credited against any indebtedness evidenced by the Bond or the other
Borrower Agreements; (b) to the Issuer, to the extent any amounts remain owing to the Issuer
hereunder; and (c) to the Borrower.
Section 9.9. Counterparts. This Agreement may be executed in several counterparts,
each one of which shall constitute an original and all of which collectively shall constitute but
one instrument.
Section 9.10. Payments/Actions Due on Non -Business Days. If any date for the payment
of principal of, premium, if any, or interest on the Bond, or the taking of any other action
required or permitted to be taken hereunder, is not a Business Day, then such payment shall be
due, or such action shall or may be taken, as the case may be, on the first Business Day
thereafter.
Section 9.11. No Warranty by Issuer or Purchaser. THE BORROWER RECOGNIZES
THAT THE ISSUER AND THE PURCHASER EACH HAS NOT MADE AN INSPECTION
OF THE PROJECT OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A
PORTION THEREOF, AND THE ISSUER AND THE PURCHASER EACH MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH
RESPECT TO THE SAME OR THE LOCATION, USE, DESCRIPTION, DESIGN,
MERCHANTABILITY, CONDITION, WORKMANSHIP, OR FITNESS, SUITABILITY OR
USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF.
THE BORROWER FURTHER RECOGNIZES THAT THE ISSUER AND THE PURCHASER
EACH HAS NO TITLE INTEREST TO ANY PART OF THE PROJECT AND THAT THE
ISSUER AND THE PURCHASER EACH MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND AS TO THE BORROWER'S TITLE THERETO OR
OWNERSHIP THEREOF OR OTHERWISE, IT BEING AGREED THAT ALL RISKS
INCIDENT THERETO ARE TO BE BORNE BY THE BORROWER. IN THE EVENT OF
ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROJECT OR ANY FIXTURE
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OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR
LATENT, NEITHER THE ISSUER NOR THE PURCHASER SHALL HAVE ANY
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF
THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY
THE ISSUER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROJECT OR ANY
FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER
ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OF THE STATE OR
ANOTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
Section 9.12. Covenant Agreement. The Issuer hereby acknowledges that it understands
that the Purchaser and the Borrower are parties to the Covenant Agreement.
The Borrower hereby acknowledges that in the Tax Agreement it has covenanted that it
will not take any action, omit to take any action or permit the taking or omission of any action
within its control (including, without limitation, making or permitting any use of the Bond
Proceeds) if taking, permitting or omitting to take such action would cause the Bonds to be
arbitrage bonds within the meaning of the Code or would otherwise cause the interest on the
Bonds to be included in the gross income of the recipients thereof for federal income tax
purposes.
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4868-2026-4287.3
43-
4868-2026-4287.3
In Witness Whereof, the Issuer, the Borrower and the Purchaser have caused this Bond
and Loan Agreement to be executed in their respective corporate names as of the date first above
written.
CITY OF CANTON, FULTON COUNTY,
ILLINOIS
[SEAL]
Attest:
By: /" - (.�" �- —
Its: City Clerk
GRAHAM HOSPITAL ASSOCIATION, an
Illinois not-for-profit corporation
By:
Its:
President/Chief Executive Officer
CLAYTON HOLDINGS, LLC
By:
Its:
Signature Page to
Bond and Loan Agreement
4868-2026-4287.3
SCHEDULE I TO THE AGREEMENT
PRINCIPAL PAYMENTS
1 of the Year Amount
S-1
4868-2026-4287.3
EXHIBIT A-1
FORM OF VARIABLE BANK PURCHASE RATE BOND
THIS BOND AND THE TERMS CONTAINED HEREIN ARE SUBJECT TO THE
PROVISIONS OF THAT CERTAIN INVESTOR LETTER OF THE PURCHASER (AS
DEFINED HEREIN) DATED JUNE _, 2023, THE FORM OF WHICH IS ATTACHED
TO THE BOND AND LOAN AGREEMENT (AS DEFINED HEREIN) AS EXHIBIT B
(THE "INVESTOR LETTER"), AND ANY TRANSFEREE OR ASSIGNEE OF THIS
BOND (OR ANY PORTION THEREOF) IS REQUIRED TO EXECUTE AND DELIVER
THE THEN CURRENT FORM OF THE INVESTOR LETTER AND AFFIRM THE
REPRESENTATIONS CONTAINED THEREIN PRIOR TO ACCEPTANCE OF THIS
BOND.
THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF
ANY, WITH RESPECT HERETO, AND INTEREST HEREON ARE SPECIAL,
LIMITED OBLIGATIONS OF THE ISSUER, SECURED BY THE BOND AND LOAN
AGREEMENT AND PAYABLE SOLELY FROM PAYMENTS MADE BY THE
BORROWER PURSUANT TO THE BOND AND LOAN AGREEMENT AND AS
OTHERWISE PROVIDED IN THE BOND AND LOAN AGREEMENT. THIS BOND
AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF ANY, WITH
RESPECT HERETO, AND INTEREST HEREON DO NOT AND SHALL NOT BE
DEEMED TO CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE
ISSUER, THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE PURVIEW OF ANY CONSTITUTIONAL OR STATUTORY
LIMITATION OR PROVISION OR A CHARGE AGAINST THE GENERAL CREDIT
OR TAXING POWERS, IF ANY, OF ANY OF THEM. NO OWNER OF THIS BOND
SHALL HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE TAXING POWER
OF THE ISSUER, THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION
THEREOF TO PAY ANY PRINCIPAL INSTALLMENT OF, REDEMPTION
PREMIUM, IF ANY, OR INTEREST ON THIS BOND.
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4868-2026-4287.3
WO .
Not to Exceed $12,500,000
UNITED STATES OF AMERICA
STATE OF ILLINOIS
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2023
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
DATED DATE: June , 2023
REGISTERED OWNER: Clayton Holdings, LLC
MAXIMUM PRINCIPAL AMOUNT: Twelve Million Five Hundred Thousand Dollars
MATURITY DATE: June 1, 2053
BANK PURCHASE RATE: Variable Bank Purchase Rate
The CITY OF CANTON, FULTON COUNTY, ILLINOIS (the "Issuer"), a municipality
duly organized and validly existing under the Constitution and the laws of the State of Illinois
(the "State"), and by virtue of the Constitution and laws of the State, including the Industrial
Building Revenue Bond Act, 50 ILCS 445/1 et seq., as supplemented and amended (the "Act"),
for value received, hereby promises to pay, solely from the sources described in this Bond, to the
Registered Owner identified above, or registered assigns, on the principal payment dates
described below through the Maturity Date specified above (or if this Bond is called for earlier
redemption as described herein, on the redemption date), the Cumulative Outstanding Principal
Amount of this Bond (as set forth on Schedule II hereto), which shall not exceed the Maximum
Principal Amount shown above, and to pay interest on the Cumulative Outstanding Principal
Amount of this Bond solely from the sources described in this Bond. This Bond will bear
interest from the date hereof on the balance of said principal sum from time to time remaining
outstanding and unpaid at the rate or rates described below until the payment of principal in full.
1. Bond and Loan Agreement. This Bond is the bond issued under the Bond and
Loan Agreement dated as of June 1, 2023 (the "Bond and Loan Agreement"), among the Issuer,
Clayton Holdings, LLC (together with its successors and assigns and any successor owner of this
Bond, the "Purchaser"), and Graham Hospital Association, an Illinois not for profit corporation
(the "Borrower"), and is limited to $12,500,000 in authorized principal amount. The terms of
this Bond include those in the Bond and Loan Agreement.
The Issuer has loaned the Bond Proceeds to the Borrower pursuant to the Bond and Loan
Agreement. The Borrower will use the Bond Proceeds, together with certain other moneys, to
(a) finance, refinance or reimburse the Borrower for the costs of the acquisition, construction,
renovation and equipping certain of its hospital facilities and (b) finance or reimburse the
Borrower for certain of the costs incurred in connection with the issuance of this Bond, all as
permitted under the Act.
2. Definitions. To the extent not defined herein, capitalized terms used in this Bond
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4868-2026-4287.3
shall have the same meanings as set forth in the Bond and Loan Agreement.
3. Payments on this Bond. This Bond is a special, limited obligation of the Issuer
and, as provided in the Bond and Loan Agreement, is payable solely from payments to be made
by the Borrower under the Bond and Loan Agreement at the designated office of the Purchaser
as described below. The Borrower has agreed in the Bond and Loan Agreement to pay to the
Purchaser amounts sufficient to pay all amounts coming due on this Bond.
(a) Principal. Principal of this Bond shall be payable on the first Business
Day of each calendar month and in the amounts set forth as mandatory sinking fund
redemption payments in Schedule 1 hereto and on December 1, 2031, which is the
Purchase Date, subject to any optional redemption, mandatory tender or other
prepayment of this Bond (including, without limitation, any acceleration of this Bond) as
provided herein. Notwithstanding the foregoing, the Purchaser, the Borrower and the
Issuer may designate in writing a different payment schedule, in substitution for
Schedule I hereto, upon delivery to the Issuer, the Purchaser and the Borrower of an
Opinion of Bond Counsel to the effect that the designation of such different payment
schedule will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes; provided, however, that such schedule shall
provide that the principal amount of this Bond remaining outstanding, if any, is in an
Authorized Denomination. Upon the designation of any new payment schedule,
Schedule I attached to the Bond and Loan Agreement and this Bond shall be amended to
reflect the terms of such new payment schedule. Principal shall be paid by wire transfer
on each date on which principal is due and payable to each owner to the wire transfer
account number or at the address, as the case may be, shown on the registration books
maintained by the Purchaser.
(b) Interest. Subject to the provisions summarized in paragraph (c), (d) and
(e) below, this Bond shall bear interest either at the Variable Bank Purchase Rate or a
Fixed Bank Purchase Rate established pursuant to paragraph (c) below from the Closing
Date to and including the earliest of the day preceding (i) its redemption date, (ii) its
prepayment date (by acceleration, mandatory tender or otherwise) and (iii) the Purchase
Date. Interest on this Bond shall be payable on each Interest Payment Date. Interest
shall be paid by wire transfer on each Interest Payment Date to each owner to the wire
transfer account number or at the address, as the case may be, shown on the registration
books maintained by the Purchaser. Initially, this Bond will bear interest at the Fixed
Bank Purchase Rate from the Closing Date to and including the (i) Conversion Date, if
the Borrower elects to convert the Bank Purchase Rate to a Variable Bank Purchase Rate
on the Conversion Date, or (ii) December 1, 2031, if the Borrower does not exercise its
option to convert the Bank Purchase Rate to a Variable Bank Purchase Date on the
Conversion Date.
The Purchaser shall determine the Variable Bank Purchase Rate, which rate shall
be effective commencing on (and including) the first day of the applicable SOFR Interest
Period to (and including) the last day of such SOFR Interest Period. Interest on this Bond
bearing interest at a Variable Bank Purchase Rate shall be computed on the basis of a
360 -day year for the actual number of days elapsed. Notwithstanding anything in the
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4868-2026-4287.3
Bond and Loan Agreement to the contrary, at no time shall the interest rate on this Bond
exceed the Maximum Rate.
The amount of interest due on this Bond on an Interest Payment Date shall be
determined by the Purchaser and communicated to the Borrower by Electronic Notice or
other written notice no later than noon, Chicago time, on the third Business Day prior to
each Interest Payment Date (such communication to set forth the amount of interest due
at the then applicable Bank Purchase Rate).
(c) Rate Reset on Purchase Date. In connection with a Purchase Date, this
Bond may be retained by the then existing Purchaser, remarketed to a new Purchaser or
purchased by the Borrower, as described in Section 5 below.
If this Bond will be retained by the then existing Purchaser or remarketed to a
new Purchaser on a Purchase Date, then on or before noon, Chicago time, on each
Purchase Date, the interest rate on this Bond will be established for the next succeeding
Interest Period and shall be the lowest rate of interest which will, in the reasonable
judgment of the then existing Purchaser (if this Bond is to be retained by the then existing
Purchaser) or the new Purchaser (if this Bond is to be remarketed to a new Purchaser),
permit such Purchaser to buy this Bond at par, plus accrued interest (if any), on such
Purchase Date taking into account such factors as the existing Purchaser or the new
Purchaser deems relevant. To effect such new interest rate, (A) the Purchaser shall select
a new Purchase Date, and (B) the definitions of Applicable Factor, Applicable Margin,
Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable
Rate, SOFR Index, SOFR Interest Period, Default Rate, Interest Period and Purchase
Date, as applicable (together with any other necessary definitions or provisions)
contained in the Bond and Loan Agreement may be adjusted as needed so that the new
interest rate borne by this Bond commencing on such Purchase Date is the lowest rate of
interest which will, in the reasonable judgment of the then existing Purchaser or the new
Purchaser, as applicable, permit such Purchaser to buy this Bond at par, plus accrued
interest (if any), on such Purchase Date. Prior to the effectiveness of the interest rate on
this Bond for the next succeeding Interest Rate Period, such interest rate shall be
confirmed by a Calculation Agent as an interest rate, including an Applicable Factor,
Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank
Purchase Rate, Taxable Rate, SOFR Index, SOFR Interest Period, Default Rate, Interest
Period and Purchase Date, as applicable, on this Bond that will permit this Bond to be
sold at par, plus accrued interest (if any), on the Purchase Date. Prior to the effectiveness
of any such new interest rate and such adjustments, there shall be delivered to the Issuer,
the Borrower and the then existing Purchaser (if this Bond is to be retained by the then
existing Purchaser) or the new Purchaser (if this Bond is to be remarketed to a new
Purchaser) an Opinion of Bond Counsel to the effect that such new interest rate and such
adjustments will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes.
If on a Purchase Date this Bond is neither retained by the then existing Purchaser
as described in Section 5(a) below nor remarketed to one or more new Purchasers as
described in Section 5(c) below, but is purchased by the Borrower as described in
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4868-2026-4287.3
Section 5(b) hereof and not canceled, this Bond shall continue to bear interest at the
interest rate borne by this Bond for the immediately preceding Interest Period. If this
Bond is later remarketed on a date subsequent to such Purchase Date, on or before noon,
Chicago time, on the date this Bond is to be remarketed, a new interest rate on this Bond
shall be established, which will be effective until the next succeeding Purchase Date or
the Maturity Date, as applicable (subject to redemption or prepayment (by acceleration or
otherwise)), and such new interest rate shall be the lowest rate of interest which will, in
the reasonable judgment of the new Purchaser or Purchasers, as applicable, permit such
Purchaser or Purchasers to buy this Bond at par, plus accrued interest (if any), on such
date of remarketing. To effect such new interest rate, the definitions of Applicable
Factor, Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase Rate, Variable
Bank Purchase Rate, Taxable Rate, SOFR Index, SOFR Interest Period, Default Rate,
Interest Period and Purchase Date, as applicable (together with any other necessary
definitions or provisions) contained in the Bond and Loan Agreement may be adjusted as
needed to reflect the new interest rate borne by this Bond commencing on such date of
remarketing. Prior to the effectiveness of such new interest rate on this Bond on the
remarketing date, such new interest rate shall be confirmed by a Calculation Agent as an
interest rate, including an Applicable Factor, Applicable Margin, Bank Purchase Rate,
Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, SOFR Index,
SOFR Interest Period, Default Rate, Interest Period and Purchase Date, as applicable, on
this Bond that will permit this Bond to be remarketed at par, plus accrued interest (if
any), on the remarketing date. Prior to the effectiveness of any such new interest rate,
adjustments and remarketing, there shall be delivered to the Issuer, the Borrower and the
new Purchaser or Purchasers an Opinion of Bond Counsel to the effect that such new
interest rate, such adjustments and such remarketing will not adversely affect the
exclusion of interest on this Bond from gross income for federal income tax purposes.
(d) Default Rate. In case any Event of Default occurs under the Bond and
Loan Agreement and is continuing, this Bond shall bear interest at the Default Rate (as
defined in the Bond and Loan Agreement). The Purchaser, the Borrower and the Issuer
may agree in writing prior to any adjustment that this Bond will bear interest at a
different Default Rate if there is delivered to the Issuer, the Purchaser and the Borrower
an Opinion of Bond Counsel to the effect that the designation of such different Default
Rate will not adversely affect the exclusion of interest on this Bond from gross income
for federal income tax purposes.
(e) Determination of Taxability. If a Determination of Taxability has
occurred, this Bond (or portion thereof to which such Determination of Taxability
applies) shall bear interest at the Taxable Rate from and after the Event of Taxability that
gave occasion to such Determination of Taxability or such earlier period of time from
which interest thereon (or portion of interest thereon) has been so determined to be
taxable.
(f) Unremarketed Bond. Notwithstanding anything herein to the contrary,
Unremarketed Bonds shall bear interest on the dates, in the amounts and in the manner
set forth in the Covenant Agreement. A Bond shall cease to be an Unremarketed Bond
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4868-2026-4287.3
only if such Unremarketed Bond is remarketed and transferred or such Unremarketed
Bond is redeemed in full.
4. Redemption. This Bond is subject to redemption only as described below:
(a) Optional Redemption. Subject to any limitations set forth in the Covenant
Agreement, this Bond shall be subject to optional redemption prior to maturity, at the
direction of the Borrower, in whole or in part (provided that this Bond may not be
redeemed in part if the principal amount remaining outstanding after such partial
redemption would not be an Authorized Denomination), on any date on or after
December _, 2024, selected by the Borrower, upon not less than 10 days' prior written
notice to the Issuer and the Purchaser (or such shorter time as agreed to by the Issuer and
the Purchaser), at a redemption price described in the schedule below; provided, however,
that, in addition to such redemption price, the Borrower shall also pay to the Purchaser
any amounts prescribed in Section 4.04 or 4.05 of the Covenant Agreement with respect
to any such redemption.
Optional
Redemption Date
Redemption Price
December
2024 thru November 2025
103% of the par value
thereof
plus accrued interest
December
_, 2025 thru November 2028
102% of the par value
thereof
plus accrued interest
December
2028 thru November 2031
101% of the par value
thereof
plus accrued interest
December _, 2031 and thereafter
100% of the par value
thereof
plus accrued interest
Upon surrender of this Bond optionally redeemed in part, the Bond Registrar shall
record the principal amount so redeemed on Schedule II to this Bond and shall
authenticate Schedule 11, and the Cumulative Outstanding Principal Amount of this Bond
shall be reduced as shown on Schedule H. Notwithstanding anything in the Bond and
Loan Agreement to the contrary, at no time will the unredeemed portion of this Bond be
in a principal amount less than $100,000. Partial redemption payments shall be allocated
to the principal installments payable on this Bond pro -rata among the remaining principal
installments unless the Purchaser and the Borrower otherwise agree and there is delivered
to the Issuer, the Purchaser and the Borrower an Opinion of Bond Counsel to the effect
that crediting such payments in another manner will not adversely affect the exclusion of
interest on this Bond from gross income for federal income tax purposes. Schedule 1
attached hereto shall be amended as promptly as possible to reflect the effect of such
payment.
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4868-2026-4287.3
(b) Mandatory Sinking Fund Redemption. This Bond is subject to mandatory
sinking fund redemption in accordance with the schedule set forth in Schedule 1 attached
hereto. Upon the mandatory sinking fund redemption of this Bond, the Bond Registrar
shall record the principal amount so redeemed on Schedule II to this Bond and shall
authenticate Schedule II, and the Cumulative Outstanding Principal Amount of this Bond
shall be reduced as shown on Schedule IT
(c) Unremarketed Bond. Any Unremarketed Bond is subject to special
mandatory redemption at a redemption price equal to 100% of the principal amount of the
Bond to be redeemed plus accrued interest thereon at the Default Rate (as defined in the
Covenant Agreement) to but not including the date of such redemption, on the dates, in
the amounts and in the manner set forth in the Covenant Agreement.
5. Tender.
(a) Tender on Purchase Date. Subject to the provisions of the following
paragraph, this Bond is subject to mandatory tender for purchase on each Purchase Date.
The purchase price shall be 100% of the outstanding principal amount thereof plus
accrued interest to the Purchase Date. This Bond shall bear interest on and after each
Purchase Date at the rate established in accordance with the requirements of Section 3(c)
or (d) above, including the requirement for the delivery of an Opinion of Bond Counsel to
the effect that the establishment of such rate will not adversely affect the exclusion of
interest on this Bond from gross income for federal income tax purposes.
The Borrower may, by written notice to the Purchaser, not sooner than 180 days
but no later than ninety (90) days prior to the Purchase Date, request that the Purchaser
continue holding this Bond following such Purchase Date. If the Borrower so requests,
the Purchaser agrees in the Bond and Loan Agreement that it will make reasonable efforts
to respond to such request within thirty (30) days after receipt of all information
necessary, in the Purchaser's reasonable judgment, to permit the Purchaser to make an
informed credit decision. The Purchaser may, in its sole and absolute discretion, decide
to accept or reject any such request, and no consent shall become effective unless the
Purchaser shall have consented thereto in writing; provided, however, that the failure of
the Purchaser to respond to such a request to extend the Purchase Date within such thirty
(30) day period shall be deemed an election by the Purchaser not to continue holding this
Bond following such Purchase Date. In its sole and absolute discretion, the Purchaser
may propose the length of the new Interest Period (including the new Purchase Date) and
the interest rate to be effective during such new Interest Period, including the Applicable
Factor, the Applicable Margin and any other conditions precedent to its decision to
continue to hold this Bond. In the event the Purchaser determines that it will not make
such proposal, this Bond shall be subject to mandatory tender pursuant to the provisions
of the Bond and Loan Agreement described in this Section 5. If the Purchaser does make
such proposal, the Borrower may, in its sole and absolute discretion, decide to approve,
reject or renegotiate any such proposal, and no approval of the Borrower with respect
thereto shall become effective unless in writing. In the event the Borrower rejects such
proposal or fails to definitively respond to such proposal on or before thirty (30) days
prior to the related Purchase Date, the Borrower shall be deemed to have rejected or
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4868-2026-4287.3
failed to approve such proposal and this Bond shall be subject to mandatory tender
pursuant to the provisions of the Bond and Loan Agreement described in this Section 5.
The agreement by the Purchaser to continue to hold this Bond shall be
conditioned upon the preparation, execution and delivery of documentation in form and
substance satisfactory in all respects to the Purchaser.
If the Purchaser agrees to hold this Bond during the new Interest Period, the
interest rate to be borne by this Bond shall be established by the Purchaser and confirmed
by the Calculation Agent as described in Section 3(c) above and there shall be delivered
to the Issuer, the Borrower and the Purchaser an Opinion of Bond Counsel to the effect
that the establishment of such rate will not adversely affect the exclusion of interest on
this Bond from gross income for federal income tax purposes.
(b) Obligation to Purchase. In the event of any tender, the Borrower has
agreed under the Bond and Loan Agreement to purchase this Bond in whole at a purchase
price of 100% of the principal amount hereof plus accrued interest to the Purchase Date.
Upon the purchase of this Bond, this Bond shall thereafter be registered in the name of
the Borrower, or such other person or entity as the Borrower shall designate, subject to
the requirements of paragraph (c) below, or at the direction of the Borrower, shall be
canceled by the Bond Registrar. No such purchase of this Bond shall be deemed to be an
extinguishment of the debt represented by this Bond unless this Bond is canceled
following such purchase.
(c) Remarketing. It is expressly acknowledged in the Bond and Loan
Agreement by the parties to the Bond and Loan Agreement that in the event this Bond is
tendered for purchase on a Purchase Date, the Borrower may seek to remarket such
tendered Bond to one or more new Purchasers and may apply any proceeds thereof to the
payment of the purchase price of such tendered Bond; provided, however, that this Bond
may only be remarketed if (i) the interest rate to be borne by this Bond is established in
accordance with Section 3(c) above, (ii) there is delivered to the Issuer, the Borrower and
each new Purchaser an Opinion of Bond Counsel to the effect that the remarketing of this
Bond to each new Purchaser will not adversely affect the exclusion of interest on this
Bond from gross income for federal income tax purposes, (iii) each new Purchaser makes
the representations set forth in Section 2.3 and Section 2.4 of the Bond and Loan
Agreement and executes and delivers an Investor Letter, (iv) the Borrower complies with
(A) all applicable rules and procedures of the Issuer and (B) all applicable state and
federal securities and other laws in connection with such remarketing and (v) the
Purchaser shall have received (A) 100% of the principal amount of such tendered Bond to
be remarketed, plus accrued interest thereon, and (B) payment and satisfaction in full of
all Obligations (as defined in the Covenant Agreement) under the Covenant Agreement.
6. Denominations; Transfer; Exchange. This Bond is initially issued as a single
fully registered Bond without coupons in the denomination equal to the then outstanding
principal amount hereof.
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4868-2026-4287.3
A registered owner may transfer this Bond in accordance with the Bond and Loan
Agreement. The Purchaser, as bond registrar (the "Bond Registrar"), may require a registered
owner, among other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Bond and Loan Agreement.
7. Persons Deemed Owners. The registered owner of this Bond may be treated as
the absolute owner thereof for all purposes whether or not this Bond shall be overdue, and shall
not be bound by any notice to the contrary.
8. Defaults and Remedies. The Bond and Loan Agreement provides that the
occurrences of certain events constitute Events of Default. If an Event of Default occurs and is
continuing, the Purchaser may declare the entire principal of this Bond to be due and payable
immediately, as further described in the Bond and Loan Agreement. An Event of Default and its
consequences may be waived as provided in the Bond and Loan Agreement.
9. Authentication. This Bond shall not be valid until the Bond Registrar or an
authenticating agent signs the Certificate of Authentication attached hereto.
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4868-20264287.3
IN WITNESS WHEREOF, as provided by the Act, the City of Canton, Fulton County,
Illinois has caused this Bond to be executed in its name and on its behalf by the manual or
facsimile signature of its Mayor and its corporate seal to be hereunto affixed manually or by
facsimile and attested to by the manual or facsimile signature of its City Clerk.
CITY OF CANTON, FULTON COUNTY,
ILLINOIS
Mayor
[SEAL]
Attest:
ity Clerk
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CERTIFICATE OF AUTHENTICATION
CLAYTON HOLDINGS, LLC, as Bond Registrar, certifies that this is the Bond referred
to in the Bond and Loan Agreement.
CLAYTON HOLDINGS, LLC, as Bond Registrar
[Title]
Date of Authentication:
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4868-2026-4287.3
FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer the Bond on the books kept for registration and
transfer of the within Bond, with full power of substitution in the premises.
Dated:
Note: The signature to this Assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular, without
enlargement or alteration or any change whatsoever.
Signature guaranteed by:
Note: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Bond Registrar, which requirements include
membership or participation in Stamp or such other
"signature guaranty program" as may be determined
by the Bond Registrar in addition to or in
substitution for Stamp, all in accordance with the
Securities Exchange Act of 1934, as amended.
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4868-2026-4287.3
FORM OF REGISTRATION INFORMATION
Under the terms of the Bond and Loan Agreement, the Bond Registrar will register the
Bond in the name of a transferee only if the owner of the Bond (or his duly authorized
representative) provides as much of the information requested below as is applicable to such
owner prior to submitting this Bond for transfer.
Name:
Address:
Social Security or Employer
Identification Number:
If a Trust, Name and Address of
Trustee(s) and Date of Trust:
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4868-20264287.3
SCHEDULE I TO THE BOND
PRINCIPAL PAYMENTS
1 of the Year Amount ($)
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4868-2026-4287.3
SCHEDULE II TO THE BOND
$12,500,000
MAXIMUM PRINCIPAL AMOUNT
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2023
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CUMULATIVE
PRINCIPAL PRINCIPAL OUTSTANDING
AMOUNT AMOUNT PRINCIPAL
DATE ADVANCED REDEEMED AMOUNT AUTHENTICATION
June _, 2023
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4868-2026-4287.3
EXHIBIT A-2
FORM OF FIXED BANK PURCHASE RATE BOND
THIS BOND AND THE TERMS CONTAINED HEREIN ARE SUBJECT TO THE
PROVISIONS OF THAT CERTAIN INVESTOR LETTER OF THE PURCHASER (AS
DEFINED HEREIN) DATED JUNE _, 2023, THE FORM OF WHICH IS ATTACHED
TO THE BOND AND LOAN AGREEMENT (AS DEFINED HEREIN) AS EXHIBIT B
(THE "INVESTOR LETTER"), AND ANY TRANSFEREE OR ASSIGNEE OF THIS
BOND (OR ANY PORTION THEREOF) IS REQUIRED TO EXECUTE AND DELIVER
THE THEN CURRENT FORM OF THE INVESTOR LETTER AND AFFIRM THE
REPRESENTATIONS CONTAINED THEREIN PRIOR TO ACCEPTANCE OF THIS
BOND.
THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF
ANY, WITH RESPECT HERETO, AND INTEREST HEREON ARE SPECIAL,
LIMITED OBLIGATIONS OF THE ISSUER, SECURED BY THE BOND AND LOAN
AGREEMENT AND PAYABLE SOLELY FROM PAYMENTS MADE BY THE
BORROWER PURSUANT TO THE BOND AND LOAN AGREEMENT AND AS
OTHERWISE PROVIDED IN THE BOND AND LOAN AGREEMENT. THIS BOND
AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF ANY, WITH
RESPECT HERETO, AND INTEREST HEREON DO NOT AND SHALL NOT BE
DEEMED TO CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE
ISSUER, THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE PURVIEW OF ANY CONSTITUTIONAL OR STATUTORY
LIMITATION OR PROVISION OR A CHARGE AGAINST THE GENERAL CREDIT
OR TAXING POWERS, IF ANY, OF ANY OF THEM. NO OWNER OF THIS BOND
SHALL HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE TAXING POWER
OF THE ISSUER, THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION
THEREOF TO PAY ANY PRINCIPAL INSTALLMENT OF, REDEMPTION
PREMIUM, IF ANY, OR INTEREST ON THIS BOND.
A-2-1
4868-2026-4287.3
No. R -
Not to Exceed $12,500,000
UNITED STATES OF AMERICA
STATE OF ILLINOIS
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2023
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
DATED DATE:
REGISTERED OWNER:
MATURITY DATE:
BANK PURCHASE RATE:
INTEREST RATE:
June _, 2023
Clayton Holdings, LLC
Twelve Million Five Hundred Thousand Dollars
June 1, 2053
Fixed Bank Purchase Rate
The CITY OF CANTON, FULTON COUNTY, ILLINOIS (the "Issuer"), a municipality
duly organized and validly existing under the Constitution and the laws of the State of Illinois
(the "State"), and by virtue of the Constitution and laws of the State, including the Industrial
Building Revenue Bond Act, 50 ILCS 445/1 et seq., as supplemented and amended (the "Act"),
for value received, hereby promises to pay, solely from the sources described in this Bond, to the
Registered Owner identified above, or registered assigns, on the principal payment dates
described below through the Maturity Date specified above (or if this Bond is called for earlier
redemption as described herein, on the redemption date), the Cumulative Outstanding Principal
Amount of this Bond (as set forth on Schedule II hereto), which shall not exceed the Maximum
Principal Amount shown above, and to pay interest on the Cumulative Outstanding Principal
Amount of this Bond solely from the sources described in this Bond. This Bond will bear
interest from the date hereof on the balance of said principal sum from time to time remaining
outstanding and unpaid at the rate or rates described below until the payment of principal in full.
1. Bond and Loan Agreement. This Bond is the bond issued under the Bond and
Loan Agreement dated as of June 1, 2023 (the "Bond and Loan Agreement'), among the Issuer,
Clayton Holdings, LLC (together with its successors and assigns and any successor owner of this
Bond, the "Purchaser"), and Graham Hospital Association, an Illinois not for profit corporation
(the "Borrower"), and is limited to $12,500,000 in authorized principal amount. The terms of
this Bond include those in the Bond and Loan Agreement.
The Issuer has loaned the Bond Proceeds to the Borrower pursuant to the Bond and Loan
Agreement. The Borrower will use the Bond Proceeds, together with certain other moneys, to
(a) finance, refinance or reimburse the Borrower for the costs of the acquisition, construction,
renovation and equipping certain of its hospital facilities and (b) finance or reimburse the
Borrower for certain of the costs incurred in connection with the issuance of this Bond, all as
permitted under the Act.
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4868-2026-4287.3
2. Definitions. To the extent not defined herein, capitalized terms used in this Bond
shall have the same meanings as set forth in the Bond and Loan Agreement.
3. Payments on this Bond. This Bond is a special, limited obligation of the Issuer
and, as provided in the Bond and Loan Agreement, is payable solely from payments to be made
by the Borrower under the Bond and Loan Agreement at the designated office of the Purchaser
as described below. The Borrower has agreed in the Bond and Loan Agreement to pay to the
Purchaser amounts sufficient to pay all amounts coming due on this Bond.
(a) Principal. Principal of this Bond shall be payable on the first Business
Day of each calendar month and in the amounts set forth as mandatory sinking fund
redemption payments in Schedule I hereto and on December 1, 2031, which is the
Purchase Date, subject to any optional redemption, mandatory tender or other
prepayment of this Bond (including, without limitation, any acceleration of this Bond) as
provided herein. Notwithstanding the foregoing, the Purchaser, the Borrower and the
Issuer may designate in writing a different payment schedule, in substitution for
Schedule I hereto, upon delivery to the Issuer, the Purchaser and the Borrower of an
Opinion of Bond Counsel to the effect that the designation of such different payment
schedule will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes; provided, however, that such schedule shall
provide that the principal amount of this Bond remaining outstanding, if any, is in an
Authorized Denomination. Upon the designation of any new payment schedule,
Schedule I attached to the Bond and Loan Agreement and this Bond shall be amended to
reflect the terms of such new payment schedule. Principal shall be paid by wire transfer
on each date on which principal is due and payable to each owner to the wire transfer
account number or at the address, as the case may be, shown on the registration books
maintained by the Purchaser.
(b) Interest. Subject to the provisions summarized in paragraph (c), (d) and
(e) below, this Bond shall bear interest either at the Fixed Bank Purchase Rate or a
Variable Bank Purchase Rate established pursuant to paragraph (c) below from the
Conversion Date to and including the earliest of the day preceding (i) its redemption date,
(ii) its prepayment date (by acceleration, mandatory tender or otherwise) and (iii) the
Purchase Date. Interest on this Bond shall be payable on each Interest Payment Date.
Interest shall be paid by wire transfer on each Interest Payment Date to each owner to the
wire transfer account number or at the address, as the case may be, shown on the
registration books maintained by the Purchaser.
Interest on the Bond bearing interest at a Fixed Bank Purchase Rate shall be
computed on the basis of a 360 -day year, consisting of twelve months of 30 days each.
Notwithstanding anything in the Bond and Loan Agreement to the contrary, at no time
shall the interest rate on this Bond exceed the Maximum Rate.
The amount of interest due on this Bond on an Interest Payment Date shall be
determined by the Purchaser and communicated to the Borrower by Electronic Notice or
other written notice no later than noon, Chicago time, on the third Business Day prior to
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4868-20264287.3
each Interest Payment Date (such communication to set forth the amount of interest due
at the then applicable Bank Purchase Rate).
(c) Rate Reset on Purchase Date. In connection with a Purchase Date, this
Bond may be retained by the then existing Purchaser, remarketed to a new Purchaser or
purchased by the Borrower, as described in Section 5 below.
If this Bond will be retained by the then existing Purchaser or remarketed to a
new Purchaser on a Purchase Date, then on or before noon, Chicago time, on each
Purchase Date, the interest rate on this Bond will be established for the next succeeding
Interest Period and shall be the lowest rate of interest which will, in the reasonable
judgment of the then existing Purchaser (if this Bond is to be retained by the then existing
Purchaser) or the new Purchaser (if this Bond is to be remarketed to a new Purchaser),
permit such Purchaser to buy this Bond at par, plus accrued interest (if any), on such
Purchase Date taking into account such factors as the existing Purchaser or the new
Purchaser deems relevant. To effect such new interest rate, (A) the Purchaser shall select
a new Purchase Date, and (B) the definitions of Applicable Factor, Applicable Margin,
Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable
Rate, SOFR Index, SOFR Interest Period, Default Rate, Interest Period and Purchase
Date, as applicable (together with any other necessary definitions or provisions)
contained in the Bond and Loan Agreement may be adjusted as needed so that the new
interest rate borne by this Bond commencing on such Purchase Date is the lowest rate of
interest which will, in the reasonable judgment of the then existing Purchaser or the new
Purchaser, as applicable, permit such Purchaser to buy this Bond at par, plus accrued
interest (if any), on such Purchase Date. Prior to the effectiveness of the interest rate on
this Bond for the next succeeding Interest Rate Period, such interest rate shall be
confirmed by a Calculation Agent as an interest rate, including an Applicable Factor,
Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase Rate, Variable Bank
Purchase Rate, Taxable Rate, SOFR Index, SOFR Interest Period, Default Rate, Interest
Period and Purchase Date, as applicable, on this Bond that will permit this Bond to be
sold at par, plus accrued interest (if any), on the Purchase Date. Prior to the effectiveness
of any such new interest rate and such adjustments, there shall be delivered to the Issuer,
the Borrower and the then existing Purchaser (if this Bond is to be retained by the then
existing Purchaser) or the new Purchaser (if this Bond is to be remarketed to a new
Purchaser) an Opinion of Bond Counsel to the effect that such new interest rate and such
adjustments will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes.
If on a Purchase Date this Bond is neither retained by the then existing Purchaser
as described in Section 5(a) below nor remarketed to one or more new Purchasers as
described in Section 5(c) below, but is purchased by the Borrower as described in
Section 5(b) hereof and not canceled, this Bond shall continue to bear interest at the
interest rate borne by this Bond for the immediately preceding Interest Period. If this
Bond is later remarketed on a date subsequent to such Purchase Date, on or before noon,
Chicago time, on the date this Bond is to be remarketed, a new interest rate on this Bond
shall be established, which will be effective until the next succeeding Purchase Date or
the Maturity Date, as applicable (subject to redemption or prepayment (by acceleration or
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4868-2026-4287.3
otherwise)), and such new interest rate shall be the lowest rate of interest which will, in
the reasonable judgment of the new Purchaser or Purchasers, as applicable, permit such
Purchaser or Purchasers to buy this Bond at par, plus accrued interest (if any), on such
date of remarketing. To effect such new interest rate, the definitions of Applicable
Factor, Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase Rate, Variable
Bank Purchase Rate, Taxable Rate, SOFR Index, SOFR Interest Period, Default Rate,
Interest Period and Purchase Date, as applicable (together with any other necessary
definitions or provisions) contained in the Bond and Loan Agreement may be adjusted as
needed to reflect the new interest rate borne by this Bond commencing on such date of
remarketing. Prior to the effectiveness of such new interest rate on this Bond on the
remarketing date, such new interest rate shall be confirmed by a Calculation Agent as an
interest rate, including an Applicable Factor, Applicable Margin, Bank Purchase Rate,
Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, SOFR Index,
SOFR Interest Period, Default Rate, Interest Period and Purchase Date, as applicable, on
this Bond that will permit this Bond to be remarketed at par, plus accrued interest (if
any), on the remarketing date. Prior to the effectiveness of any such new interest rate,
adjustments and remarketing, there shall be delivered to the Issuer, the Borrower and the
new Purchaser or Purchasers an Opinion of Bond Counsel to the effect that such new
interest rate, such adjustments and such remarketing will not adversely affect the
exclusion of interest on this Bond from gross income for federal income tax purposes.
(d) Default Rate. In case any Event of Default occurs under the Bond and
Loan Agreement and is continuing, this Bond shall bear interest at the Default Rate (as
defined in the Bond and Loan Agreement). The Purchaser, the Borrower and the Issuer
may agree in writing prior to any adjustment that this Bond will bear interest at a
different Default Rate if there is delivered to the Issuer, the Purchaser and the Borrower
an Opinion of Bond Counsel to the effect that the designation of such different Default
Rate will not adversely affect the exclusion of interest on this Bond from gross income
for federal income tax purposes.
(e) Determination of Taxability. If a Determination of Taxability has
occurred, this Bond (or portion thereof to which such Determination of Taxability
applies) shall bear interest at the Taxable Rate from and after the Event of Taxability that
gave occasion to such Determination of Taxability or such earlier period of time from
which interest thereon (or portion of interest thereon) has been so determined to be
taxable.
(f) Unremarketed Bond. Notwithstanding anything herein to the contrary,
Unremarketed Bonds shall bear interest on the dates, in the amounts and in the manner
set forth in the Covenant Agreement. A Bond shall cease to be an Unremarketed Bond
only if such Unremarketed Bond is remarketed and transferred or such Unremarketed
Bond is redeemed in full.
4. Redemption. This Bond is subject to redemption only as described below:
(a) Optional Redemption. Subject to any limitations set forth in the Covenant
Agreement, this Bond shall be subject to optional redemption prior to maturity, at the
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4868-20264287.3
direction of the Borrower, in whole or in part (provided that this Bond may not be
redeemed in part if the principal amount remaining outstanding after such partial
redemption would not be an Authorized Denomination), on any date on or after
December _, 2024, selected by the Borrower, upon not less than 10 days' prior written
notice to the Issuer and the Purchaser (or such shorter time as agreed to by the Issuer and
the Purchaser), at a redemption price described in the schedule below; provided, however,
that, in addition to such redemption price, the Borrower shall also pay to the Purchaser
any amounts prescribed in Section 4.04 or 4.05 of the Covenant Agreement with respect
to any such redemption.
Optional
Redemption Date
Redemption Price
December
2024 thru November 2025
103% of the par value
thereof
plus accrued interest
December
2025 thru November 2028
102% of the par value
thereof
plus accrued interest
December
2028 thru November 2031
101% of the par value
thereof
plus accrued interest
December _, 2031 and thereafter
100% of the par value
thereof
plus accrued interest
Upon surrender of this Bond optionally redeemed in part, the Bond Registrar shall
record the principal amount so redeemed on Schedule II to this Bond and shall
authenticate Schedule II, and the Cumulative Outstanding Principal Amount of this Bond
shall be reduced as shown on Schedule IT Notwithstanding anything in the Bond and
Loan Agreement to the contrary, at no time will the unredeemed portion of this Bond be
in a principal amount less than $100,000. Partial redemption payments shall be allocated
to the principal installments payable on this Bond pro -rata among the remaining principal
installments unless the Purchaser and the Borrower otherwise agree and there is delivered
to the Issuer, the Purchaser and the Borrower an Opinion of Bond Counsel to the effect
that crediting such payments in another manner will not adversely affect the exclusion of
interest on this Bond from gross income for federal income tax purposes. Schedule I
attached hereto shall be amended as promptly as possible to reflect the effect of such
payment.
(b) Mandatory Sinking Fund Redemption. This Bond is subject to mandatory
sinking fund redemption in accordance with the schedule set forth in Schedule I attached
hereto. Upon the mandatory sinking fund redemption of this Bond, the Bond Registrar
shall record the principal amount so redeemed on Schedule II to this Bond and shall
authenticate Schedule II, and the Cumulative Outstanding Principal Amount of this Bond
shall be reduced as shown on Schedule H.
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4868-20264287.3
(c) Unremarketed Bond. Any Unremarketed Bond is subject to special
mandatory redemption at a redemption price equal to 100% of the principal amount of the
Bond to be redeemed plus accrued interest thereon at the Default Rate (as defined in the
Covenant Agreement) to but not including the date of such redemption, on the dates, in
the amounts and in the manner set forth in the Covenant Agreement.
5. Tender.
(a) Tender on Purchase Date. Subject to the provisions of the following
paragraph, this Bond is subject to mandatory tender for purchase on each Purchase Date.
The purchase price shall be 100% of the outstanding principal amount thereof plus
accrued interest to the Purchase Date. This Bond shall bear interest on and after each
Purchase Date at the rate established in accordance with the requirements of Section 3(c)
or (d) above, including the requirement for the delivery of an Opinion of Bond Counsel to
the effect that the establishment of such rate will not adversely affect the exclusion of
interest on this Bond from gross income for federal income tax purposes.
The Borrower may, by written notice to the Purchaser, not sooner than 180 days
but no later than ninety (90) days prior to the Purchase Date, request that the Purchaser
continue holding this Bond following such Purchase Date. If the Borrower so requests,
the Purchaser agrees in the Bond and Loan Agreement that it will make reasonable efforts
to respond to such request within thirty (30) days after receipt of all information
necessary, in the Purchaser's reasonable judgment, to permit the Purchaser to make an
informed credit decision. The Purchaser may, in its sole and absolute discretion, decide
to accept or reject any such request, and no consent shall become effective unless the
Purchaser shall have consented thereto in writing; provided, however, that the failure of
the Purchaser to respond to such a request to extend the Purchase Date within such thirty
(30) day period shall be deemed an election by the Purchaser not to continue holding this
Bond following such Purchase Date. In its sole and absolute discretion, the Purchaser
may propose the length of the new Interest Period (including the new Purchase Date) and
the interest rate to be effective during such new Interest Period, including the Applicable
Factor, the Applicable Margin and any other conditions precedent to its decision to
continue to hold this Bond. In the event the Purchaser determines that it will not make
such proposal, this Bond shall be subject to mandatory tender pursuant to the provisions
of the Bond and Loan Agreement described in this Section 5. If the Purchaser does make
such proposal, the Borrower may, in its sole and absolute discretion, decide to approve,
reject or renegotiate any such proposal, and no approval of the Borrower with respect
thereto shall become effective unless in writing. In the event the Borrower rejects such
proposal or fails to definitively respond to such proposal on or before thirty (30) days
prior to the related Purchase Date, the Borrower shall be deemed to have rejected or
failed to approve such proposal and this Bond shall be subject to mandatory tender
pursuant to the provisions of the Bond and Loan Agreement described in this Section 5.
The agreement by the Purchaser to continue to hold this Bond shall be
conditioned upon the preparation, execution and delivery of documentation in form and
substance satisfactory in all respects to the Purchaser.
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4868-2026-4287.3
If the Purchaser agrees to hold this Bond during the new Interest Period, the
interest rate to be borne by this Bond shall be established by the Purchaser and confirmed
by the Calculation Agent as described in Section 3(c) above and there shall be delivered
to the Issuer, the Borrower and the Purchaser an Opinion of Bond Counsel to the effect
that the establishment of such rate will not adversely affect the exclusion of interest on
this Bond from gross income for federal income tax purposes.
(b) Obligation to Purchase. In the event of any tender, the Borrower has
agreed under the Bond and Loan Agreement to purchase this Bond in whole at a purchase
price of 100% of the principal amount hereof plus accrued interest to the Purchase Date.
Upon the purchase of this Bond, this Bond shall thereafter be registered in the name of
the Borrower, or such other person or entity as the Borrower shall designate, subject to
the requirements of paragraph (c) below, or at the direction of the Borrower, shall be
canceled by the Bond Registrar. No such purchase of this Bond shall be deemed to be an
extinguishment of the debt represented by this Bond unless this Bond is canceled
following such purchase.
(c) Remarketing. It is expressly acknowledged in the Bond and Loan
Agreement by the parties to the Bond and Loan Agreement that in the event this Bond is
tendered for purchase on a Purchase Date, the Borrower may seek to remarket such
tendered Bond to one or more new Purchasers and may apply any proceeds thereof to the
payment of the purchase price of such tendered Bond; provided, however, that this Bond
may only be remarketed if (i) the interest rate to be borne by this Bond is established in
accordance with Section 3(c) above, (ii) there is delivered to the Issuer, the Borrower and
each new Purchaser an Opinion of Bond Counsel to the effect that the remarketing of this
Bond to each new Purchaser will not adversely affect the exclusion of interest on this
Bond from gross income for federal income tax purposes, (iii) each new Purchaser makes
the representations set forth in Section 2.3 and Section 2.4 of the Bond and Loan
Agreement and executes and delivers an Investor Letter, (iv) the Borrower complies with
(A) all applicable rules and procedures of the Issuer and (B) all applicable state and
federal securities and other laws in connection with such remarketing and (v) the
Purchaser shall have received (A) 100% of the principal amount of such tendered Bond to
be remarketed, plus accrued interest thereon, and (B) payment and satisfaction in full of
all Obligations (as defined in the Covenant Agreement) under the Covenant Agreement.
6. Denominations; Transfer; Exchange. This Bond is initially issued as a single
fully registered Bond without coupons in the denomination equal to the then outstanding
principal amount hereof.
A registered owner may transfer this Bond in accordance with the Bond and Loan
Agreement. The Purchaser, as bond registrar (the "Bond Registrar"), may require a registered
owner, among other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Bond and Loan Agreement.
7. Persons Deemed Owners. The registered owner of this Bond may be treated as
the absolute owner thereof for all purposes whether or not this Bond shall be overdue, and shall
not be bound by any notice to the contrary.
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4868-2026-4287.3
8. Defaults and Remedies. The Bond and Loan Agreement provides that the
occurrences of certain events constitute Events of Default. If an Event of Default occurs and is
continuing, the Purchaser may declare the entire principal of this Bond to be due and payable
immediately, as further described in the Bond and Loan Agreement. An Event of Default and its
consequences may be waived as provided in the Bond and Loan Agreement.
9. Authentication. This Bond shall not be valid until the Bond Registrar or an
authenticating agent signs the Certificate of Authentication attached hereto.
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4868-2026-4287.3
IN WITNESS WHEREOF, as provided by the Act, the City of Canton, Fulton County,
Illinois has caused this Bond to be executed in its name and on its behalf by the manual or
facsimile signature of its Mayor and its corporate seal to be hereunto affixed manually or by
facsimile and attested to by the manual or facsimile signature of its City Clerk.
CITY OF CANTON, FULTON COUNTY,
ILLINOIS
BLA--41
Y
Mayor
[SEAL]
Attest:
ity Clerk
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4868-2026-4287.3
CERTIFICATE OF AUTHENTICATION
CLAYTON HOLDINGS, LLC, as Bond Registrar, certifies that this is the Bond referred
to in the Bond and Loan Agreement.
CLAYTON HOLDINGS, LLC, as Bond Registrar
[Title]
Date of Authentication:
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4868-20264287.3
FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond, and does hereby irrevocably constitute and appoint
attorney to transfer the Bond on the books kept for registration and
transfer of the within Bond, with full power of substitution in the premises.
Dated:
Note: The signature to this Assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular, without
enlargement or alteration or any change whatsoever.
Signature guaranteed by:
Note: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Bond Registrar, which requirements include
membership or participation in Stamp or such other
"signature guaranty program" as may be determined
by the Bond Registrar in addition to or in
substitution for Stamp, all in accordance with the
Securities Exchange Act of 1934, as amended.
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4868-2026-4287.3
FORM OF REGISTRATION INFORMATION
Under the terms of the Bond and Loan Agreement, the Bond Registrar will register the
Bond in the name of a transferee only if the owner of the Bond (or his duly authorized
representative) provides as much of the information requested below as is applicable to such
owner prior to submitting this Bond for transfer.
Name:
Address:
Social Security or Employer
Identification Number:
If a Trust, Name and Address of
Trustee(s) and Date of Trust:
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4868-20264287.3
SCHEDULE I TO THE BOND
PRINCIPAL PAYMENTS
1 of the Year Amount ($)
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4868-2026-4287.3
SCHEDULE II TO THE BOND
$12,500,000
MAXIMUM PRINCIPAL AMOUNT
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2023
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CUMULATIVE
PRINCIPAL PRINCIPAL OUTSTANDING
AMOUNT AMOUNT PRINCIPAL
DATE ADVANCED REDEEMED AMOUNT AUTHENTICATION
June ,2023
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4868-2026-4287.3
EXHIBIT B
FORM OF INVESTOR LETTER
City of Canton
2 North Main Street
Canton, Illinois 61520
Re: $12,500,000
Maximum Principal Amount
City of Canton, Fulton County, Illinois
Health Care Facilities Revenue Bond, Series 2023
(Graham Hospital Association Project)
(the "Bond")
Ladies and Gentleman:
The undersigned (the "Purchaser") hereby represents and warrants to you as follows:
1. The Purchaser proposes to purchase the Bond. The Purchaser understands
that the Bond has not been registered under the Securities Act of 1933, as amended (the
"1933 Act"), or the securities laws of any state, and will be sold to the Purchaser in
reliance upon certain exemptions from registration and in reliance upon the
representations and warranties of the Purchaser set forth herein. Capitalized terms used
herein shall have the meanings given to them in the Bond and Loan Agreement dated as
of June 1, 2023 (the "Loan Agreement") among the City of Canton, Fulton County,
Illinois (the "Issuer"), Graham Hospital Association, an Illinois not-for-profit corporation
(the "Borrower") and the Purchaser.
2. The Purchaser has sufficient knowledge and experience in business and
financial matters in general, and investments such as the Bond in particular, and is
capable of evaluating the merits and risks involved in an investment in the Bond. The
Purchaser is able to bear the economic risk of, and an entire loss of, an investment in the
Bond.
3. The Purchaser acknowledges it has had an opportunity to ask questions of
and has received answers from the Borrower; and it has received from the Borrower all
information and materials which it regards as necessary to evaluate all merits and risks of
its investment. The Purchaser acknowledges that it has not received nor relied upon any
offering or disclosure document with respect to making its decision to purchase the Bond.
4. The Purchaser has authority to purchase the Bond and to execute this letter
and any other instruments and documents required to be executed by the Purchaser in
connection with the purchase of the Bond.
5. The Purchaser understands and acknowledges that (i) under no
circumstances shall the Bond and the interest thereon be or become an indebtedness or
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4868-2026-4287.3
obligation of the Issuer, the State of Illinois (the "State"), within the purview of any
constitutional or statutory limitation or provision, or a charge against the credit of, or a
pledge of the taxing power of, the Issuer, the State or any political subdivision thereof,
and (ii) the Bond shall be a limited obligation of the Issuer, and no taxes are required to
be levied for the payment of principal, premium, if any, and interest on the Bond; such
principal of, premium, if any, and interest on the Bond being payable (except as
otherwise provided in the Loan Agreement) solely out of moneys to be received by the
Issuer as proceeds from the sale of the Bond or payments or prepayments to be made on
the obligations under the Loan Agreement and from certain income, if any, from the
temporary investment of any of the foregoing, but not limited to payment of principal of,
premium, if any, and interest on the Bond. The Purchaser also acknowledges that the
Bond does not represent a general obligation of the Issuer, the State of Illinois or any
political subdivision thereof. The Purchaser understands that the Bond is not payable
from taxes or any moneys provided by or to the Issuer, other than those described in the
Loan Agreement.
6. The Purchaser acknowledges and understands that the Bond: (i) has not
been and will not be registered or otherwise qualified for sale under the "Blue Sky" laws
and regulations of any jurisdiction, (ii) will not be listed on any stock or other securities
exchange, (iii) will carry no rating from any rating service, and (iv) will not be readily
marketable.
7. The Purchaser is purchasing the Bond solely for its own account for
investment purposes and has no present intention to resell or distribute all or any portion
of, or interest in, the Bond; provided that the Purchaser reserves the right to transfer or
dispose of the Bond at any time, and from time to time, in its complete and sole
discretion, subject, however, to the restrictions described in paragraphs 8, 9, and 10 of
this letter.
8. The Purchaser agrees that it will only offer, sell, pledge, transfer or
exchange the Bond (or any legal or beneficial interest therein) (i) in accordance with an
available exemption from the registration requirements of Section 5 of the 1933 Act and
(ii) in accordance with any applicable state securities laws.
9. The Purchaser is a "qualified institutional buyer" within the meaning of
Rule 144A under the 1933 Act and understands and acknowledges that the Bond may be
offered, resold, pledged or transferred only to: (a) an affiliate of the Purchaser; (b) a trust
or other custodial arrangement established by the Purchaser or an affiliate of the
Purchaser, the owners of any beneficial interest in which are limited to "qualified
institutional buyers" as defined in Rule 144A under the 1933 Act or "accredited
investors" as defined in Rule 501 of Regulation D under the 1933 Act; or (c) with respect
to Non -Purchaser Transferees as defined in the Continuing Covenant Agreement dated as
of June 1, 2023 between the Borrower and the Purchaser (the "Continuing Covenant
Agreement"), a person who is a "qualified institutional buyer" as defined in Rule 144A
promulgated under the 1933 Act or an "accredited investor" as defined in Regulation D
promulgated under the 1933 Act, which qualified institutional buyer or accredited
B-2
4868-2026-4287.3
investor executes and delivers to the Issuer an "investor letter" in the form of this letter,
and in compliance with the Loan Agreement.
10. In entering into this transaction the Purchaser has not relied upon any
representations made by the Issuer or its counsel relating to the legal or financial
consequences or other aspects of the transactions, nor has it looked to, nor expected, the
Issuer to undertake or require any credit investigation or due diligence reviews relating to
the Borrower, its financial condition or business operations, the Borrower's facilities
(including the financing, operation or management thereof), or any other matter
pertaining to the merits or risks of the transaction, or the adequacy of any collateral
pledged to secure repayment of the Bond. The foregoing shall not be construed to mean
that the Purchaser has not relied on opinions of bond counsel and counsel to the Issuer
with respect to the matters set forth therein.
The Purchaser intends to treat its purchase of the Bond as a commercial lending
transaction with the Borrower. The foregoing representations and warranties with respect
to the Purchaser's compliance with certain federal and state securities laws in connection
with its purchase of the Bond have been provided at the Issuer's request and shall not be
construed to be inconsistent with that intent. No other party other than the addressees
hereof may rely on the representations and warranties set forth herein.
CLAYTON HOLDINGS, LLC
1.2
Its:
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4868-20264287.3
EXHIBIT C
PROJECT DESCRIPTION
The acquisition, construction, remodeling and equipping of certain health facilities
constituting industrial projects under the Industrial Building Revenue Bond Act, 50 ILCS 445/1
et seq., as supplemented and amended (the "Act"), including, but not limited to, the convenient
care relocation project and related hospital infrastructure located at 180 South Main Street,
Canton, Illinois 61520 and various equipment and system upgrades at the facility and related
hospital infrastructure located at 210 West Walnut Street, Canton, Illinois 61520, the clinic
expansion project and related hospital infrastructure located at 1630 East Jackson Street,
Macomb, Illinois 61455, and the clinic expansion projects and related hospital infrastructure
located at 1174 North Seminary Street, Galesburg, Illinois 61401, 530 North Seminary Street,
Galesburg, Illinois 61401, and 2028 North Seminary Street, Galesburg, Illinois 61401.
C-1
4868-2026-4287.3
EXHIBIT D
CERTIFICATE AND REQUEST FOR SUPPLEMENTAL ADVANCE No. "
Clayton Holdings, LLC
Attention: ]
Re: $12,500,000 Maximum Principal Amount
City of Canton, Fulton County, Illinois
Health Care Facilities Revenue Bond,
Series 2023 (Graham Hospital Association Project)
(the "Bond")
This Certificate and Request for Supplemental Advance (this "Supplemental Request") is
submitted by the undersigned, [NAME], the [TITLE] of Graham Hospital Association (the
"Borrower"), pursuant to the provisions of Section 3.1(C) of the Bond and Loan Agreement
dated as of June 1, 2023 (the "Agreement"), among the City of Canton, Fulton County, Illinois,
the Borrower and Clayton Holdings, LLC, as the Purchaser, and Section 2.02 of the Continuing
Covenant Agreement dated as of June 1, 2023 (the "Covenant Agreement"), between the
Borrower and the Purchaser. Capitalized terms used herein, but not defined herein, have the
meanings set forth in the Agreement or the Covenant Agreement.
The Borrower hereby requests that the Purchaser make Supplemental Advance No. [_J
(the "Supplemental Advance") to the Borrower on [ , 20[_] (the "Date of Advance")
(which must be an Interest Payment Date) in the amount of $[ of the $12,500,000
Maximum Principal Amount of the Bond, reflecting a loan of Bond proceeds by the Issuer to the
Borrower in the same amount, in order to reimburse the Borrower for the payment of the Costs
of the Project listed on Schedule A hereto, and that the Purchaser wire transfer such amount to
the Borrower as follows:
Bank Name:
ABA Routing No.:
Account No.:
Reference: Series 2023 Bond
In connection therewith, the undersigned hereby certifies that:
(a) The amounts set forth on Schedule A constitute Costs of the Project, and
such costs have been paid by the Borrower and are reimbursable under the Agreement;
(b) All previous amounts received by the Borrower pursuant to the Agreement
and the Covenant Agreement have been used to finance Cost of the Project. No portion
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4868-20264287.3
of the Project Costs to be paid from this Supplemental Advance have previously been
paid or reimbursed from Bond proceeds or from the proceeds of any other tax-exempt
indebtedness;
(c) Such costs are valid Costs of the Project and no part thereof was included
in the Initial Advance or any other Supplemental Requests previously requested from the
Purchaser;
(d) No mechanic liens have been filed of record against the Project (unless a
title indemnity, bond or other security reasonably satisfactory to the Purchaser has been
posted to insure against such lien) and, where applicable, proper lien waivers have been
received with respect to the work for which payment is sought pursuant to this
Supplemental Request;
(e) The amount of Bond proceeds available for disbursement pursuant to one
or more subsequent Supplemental Requests submitted after the Supplemental Advance
hereby requested is made, plus other moneys on hand at the Borrower or committed to
the Borrower that are or will be available and are anticipated by the Borrower to be
applied to pay Costs of the Project, will, after payment of the Supplemental Advance
hereby requested, be sufficient to complete the Project substantially in accordance with
any construction contracts, plans and specifications and building permits therefor in
effect;
(f) Any necessary permits and approvals required for the portion of the
Project for which this Supplemental Request is made have been issued and are in full
force and effect;
(g) The use of the Supplemental Advance hereby requested for the purposes
intended, as described in herein, will not cause any of the representations or certifications
contained in the Tax Agreement to be untrue or result in a violation of any provision of
the Tax Agreement;
(h) Attached hereto are copies of invoices or bills of sale covering the items
for which the Supplemental Advance is being requested that were issued by the
manufacturers, suppliers or other sellers of such items showing the Borrower as the
owner or purchaser thereof and evidencing that the amount of the Supplemental Advance
hereby requested does not exceed the purchase price thereof,
(i) Taking into account the Supplemental Advance hereby requested, the
aggregate amount of Advances to date ($ ) does not exceed the Maximum
Principal Amount of the Bond;
0) we have caused [our inspecting architect] to review and approve the
general contractor's sworn statement covering all work done to date and lien waivers for
all work and materials for which payment is to be made;
D-2
4868-20264287.3
(k) All outstanding claims for labor, materials and/or services furnished prior
to this draw period have been paid or will be paid from the proceeds of this disbursement,
except to the extent such claims are being contested by appropriate legal proceedings,
conducted in good faith and with due diligence; and
(1) All construction performed to date on the Project has been performed in a
fit and workmanlike manner.
The undersigned hereby further certifies that the following statements are true on the date
hereof and will be true on the Date of Advance, both before and after giving effect thereto:
(i) The representations and warranties of the Borrower set forth in Article V
of the Covenant Agreement and Section 2.2 of the Agreement are and will be true and
correct in all material respects (except to the extent any such representation or warranty
expressly relates expressly relates to an earlier date); and
(ii) No Default or Event of Default has occurred and is continuing on the date
hereof, and no Determination of Taxability has occurred.
The undersigned hereby requests that, on the Date of Advance, the Purchaser, as Bond
Registrar, authenticate the revised Schedule II to the Bond evidencing the issuance of the Bond
in the principal amount of the Supplemental Advance hereby requested and the corresponding
increase in the Cumulative Outstanding Principal Amount of the Bond.
Dated:
GRAHAM HOSPITAL ASSOCIATION
By_
Its
CC. City of Canton, Fulton County, Illinois
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4868-20264287.3
SCHEDULE A
TO
REQUEST FOR SUPPLEMENTAL ADVANCE
DESCRIPTION OF PROJECT COSTS
TOTAL:
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4868-2026-4287.3
THIS BOND AND THE TERMS CONTAINED HEREIN ARE SUBJECT TO
THE PROVISIONS OF THAT CERTAIN INVESTOR LETTER OF THE
PURCHASER (AS DEFINED HEREIN) DATED , 2023, THE FORM OF
WHICH IS ATTACHED TO THE BOND AND LOAN AGREEMENT (AS
DEFINED HEREIN) AS EXHIBIT B (THE "INVESTOR LETTER"), AND ANY
TRANSFEREE OR ASSIGNEE OF THIS BOND (OR ANY PORTION THEREOF)
IS REQUIRED TO EXECUTE AND DELIVER THE THEN CURRENT FORM OF
THE INVESTOR LETTER AND AFFIRM THE REPRESENTATIONS
CONTAINED THEREIN PRIOR TO ACCEPTANCE OF THIS BOND.
THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR
PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON ARE
SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, SECURED BY THE
BOND AND LOAN AGREEMENT AND PAYABLE SOLELY FROM PAYMENTS
MADE BY THE BORROWER PURSUANT TO THE BOND AND LOAN
AGREEMENT AND AS OTHERWISE PROVIDED IN THE BOND AND LOAN
AGREEMENT. THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR
PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON DO
NOT AND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS
OR AN OBLIGATION OF THE ISSUER, THE STATE OF ILLINOIS OR ANY
POLITICAL SUBDIVISION THEREOF WITHIN THE PURVIEW OF ANY
CONSTITUTIONAL OR STATUTORY LIMITATION OR PROVISION OR A
CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS, IF ANY,
OF ANY OF THEM. NO OWNER OF THIS BOND SHALL HAVE THE RIGHT
TO COMPEL ANY EXERCISE OF THE TAXING POWER OF THE ISSUER,
THE STATE OF ILLINOIS OR ANY POLITICAL SUBDIVISION THEREOF TO
PAY ANY PRINCIPAL INSTALLMENT OF, REDEMPTION PREMIUM, IF ANY,
OR INTEREST ON THIS BOND.
1
No. R-1
Not to Exceed $17,000,000
UNITED STATES OF AMERICA
STATE OF ILLINOIS
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2020
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
DATED DATE:
REGISTERED OWNER:
MAXIMUM PRINCIPAL AMOUNT:
MATURITY DATE:
BANK PURCHASE RATE:
June ,2023
BMO Harris Investment Company LLC
Seventeen Million Dollars
June 1, 2051
Variable Bank Purchase Rate
The CITY OF CANTON, FULTON COUNTY, ILLINOIS (the "Issuer"), a
municipality duly organized and validly existing under the Constitution and the laws of the
State of Illinois (the "State"), and by virtue of the Constitution and laws of the State,
including The Industrial Project Revenue Bond Act, 65 ILCS 5/11-74-1 et seq., as
supplemented and amended (the "Act"), for value received, hereby promises to pay, solely
from the sources described in this Bond, to the Registered Owner identified above, or
registered assigns, on the principal payment dates described below through the Maturity
Date specified above (or if this Bond is called for earlier redemption as described herein,
on the redemption date), the Cumulative Outstanding Principal Amount of this Bond (as
set forth on Schedule II hereto), which shall not exceed the Maximum Principal Amount
shown above, and to pay interest on the Cumulative Outstanding Principal Amount of this
Bond solely from the sources described in this Bond. This Bond will bear interest from the
date hereof on the balance of said principal sum from time to time remaining outstanding
and unpaid at the rate or rates described below until the payment of principal in full.
1. Bond and Loan Agreement. This Bond is the bond issued under the Bond
and Loan Agreement dated as of June 1, 2020, among the Issuer, BMO Harris Investment
Company LLC (together with its successors and assigns and any successor owner of this
Bond, the "Purchaser"), and Graham Hospital Association, an Illinois not for profit
corporation (the "Borrower"), as amended by the First Amendment to Bond and Loan
Agreement and Related Documents, dated , 2023, among the Issuer, the
Purchaser, and the Borrower (together, the "Bond and Loan Agreement"), and is limited to
$17,000,000 in authorized principal amount. The terms of this Bond include those in the
Bond and Loan Agreement.
2
The Issuer has loaned the Bond Proceeds to the Borrower pursuant to the Bond and
Loan Agreement. The Borrower will use the Bond Proceeds, together with certain other
moneys, to (a) finance, refinance or reimburse the Borrower for the costs of the planning,
design, acquisition, construction, furnishing and equipping certain of its hospital facilities
and (b) finance or reimburse the Borrower for certain of the costs incurred in connection
with the issuance of this Bond, all as permitted under the Act.
2. Definitions. To the extent not defined herein, capitalized terms used in this
Bond shall have the same meanings as set forth in the Bond and Loan Agreement.
3. Payments on this Bond. This Bond is a special, limited obligation of the
Issuer and, as provided in the Bond and Loan Agreement, is payable solely from payments
to be made by the Borrower under the Bond and Loan Agreement at the designated office
of the Purchaser as described below. The Borrower has agreed in the Bond and Loan
Agreement to pay to the Purchaser amounts sufficient to pay all amounts coming due on
this Bond.
(a) Principal. Principal of this Bond shall be payable on June 1 of each
year and in the amounts set forth as mandatory sinking fund redemption payments
in Schedule 1 hereto and on June 1, 2027, which is the Purchase Date, subject to
any optional redemption, mandatory tender or other prepayment of this Bond
(including, without limitation, any acceleration of this Bond) as provided herein.
Notwithstanding the foregoing, the Purchaser, the Borrower and the Issuer may
designate in writing a different payment schedule, in substitution for Schedule I
hereto, upon delivery to the Issuer, the Purchaser and the Borrower of an Opinion
of Bond Counsel to the effect that the designation of such different payment
schedule will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes; provided, however, that such schedule
shall provide that the principal amount of this Bond remaining outstanding, if any,
is in an Authorized Denomination. Upon the designation of any new payment
schedule, Schedule 1 attached to the Bond and Loan Agreement and this Bond shall
be amended to reflect the terms of such new payment schedule. Principal shall be
paid by wire transfer on each date on which principal is due and payable to each
owner to the wire transfer account number or at the address, as the case may be,
shown on the registration books maintained by the Purchaser.
(b) Interest. Subject to the provisions summarized in paragraph (c), (d),
(e), (f), (g), and (h) below, this Bond shall bear interest either at the Variable Bank
Purchase Rate or a Fixed Bank Purchase Rate established pursuant to paragraph (c)
below from the Closing Date to and including the earliest of the day preceding (i)
its redemption date, (ii) its prepayment date (by acceleration, mandatory tender or
otherwise) and (iii) the Purchase Date. Interest on this Bond shall be payable on
each Interest Payment Date. Interest shall be paid by wire transfer on each Interest
Payment Date to each owner to the wire transfer account number or at the address,
as the case may be, shown on the registration books maintained by the Purchaser.
3
Initially, this Bond will bear interest at the Variable Bank Purchase Rate from the
Closing Date to and including the (i) Conversion Date, if the Borrower elects to
convert the Bank Purchase Rate to a Fixed Bank Purchase Rate on the Conversion
Date, or (ii) June 1, 2027 if the Borrower does not exercise its option to convert the
Bank Purchase Rate to a Fixed Bank Purchase Date on the Conversion Date.
(c) The initial Variable Bank Purchase Rate shall be established by the
Purchaser on the Closing Date and shall be effective for the period commencing on
the Closing Date to, but not including, July 1, 2020 (the "Initial Interest Period"),
which is the first Interest Rate Reset Date to occur immediately following the
Closing Date. After the Initial Interest Period, the Purchaser shall determine the
Variable Bank Purchase Rate on each Computation Date, which rate shall be
effective commencing on (and including) the first day of the applicable Index
Interest Period to (and including) the last day of such Index Interest Period.
Interest on this Bond bearing interest at a Variable Bank Purchase Rate shall be
computed on the basis of a 360 -day year for the actual number of days elapsed.
Notwithstanding anything in the Bond and Loan Agreement to the contrary, at no
time shall the interest rate on this Bond exceed the Maximum Rate.
The amount of interest due on this Bond on an Interest Payment Date shall
be determined by the Purchaser and communicated to the Borrower by Electronic
Notice or other written notice no later than noon, Chicago time, on the third
Business Day prior to each Interest Payment Date (such communication to set forth
the amount of interest due at the then applicable Bank Purchase Rate).
(d) Rate Reset on Purchase Date. In connection with a Purchase Date,
this Bond may be retained by the then existing Purchaser, remarketed to a new
Purchaser or purchased by the Borrower, as described in Section 5 below.
If this Bond will be retained by the then existing Purchaser or remarketed to
a new Purchaser on a Purchase Date, then on or before noon, Chicago time, on each
Purchase Date, the interest rate on this Bond will be established for the next
succeeding Interest Period and shall be the lowest rate of interest which will, in the
reasonable judgment of the then existing Purchaser (if this Bond is to be retained
by the then existing Purchaser) or the new Purchaser (if this Bond is to be
remarketed to a new Purchaser), permit such Purchaser to buy this Bond at par,
plus accrued interest (if any), on such Purchase Date taking into account such
factors as the existing Purchaser or the new Purchaser deems relevant. To effect
such new interest rate, (A) the Purchaser shall select a new Purchase Date, and (B)
the definitions of Applicable Factor, Applicable Margin, Bank Purchase Rate,
Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, Adjusted
SOFR Rate, Index Interest Period, Default Rate, Interest Period and Purchase Date,
as applicable (together with any other necessary definitions or provisions)
contained in the Bond and Loan Agreement may be adjusted as needed so that the
new interest rate borne by this Bond commencing on such Purchase Date is the
4
lowest rate of interest which will, in the reasonable judgment of the then existing
Purchaser or the new Purchaser, as applicable, permit such Purchaser to buy this
Bond at par, plus accrued interest (if any), on such Purchase Date. Prior to the
effectiveness of the interest rate on this Bond for the next succeeding Interest Rate
Period, such interest rate shall be confirmed by a Calculation Agent as an interest
rate, including an Applicable Factor, Applicable Margin, Bank Purchase Rate,
Fixed Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, Adjusted
SOFR Rate, Index Interest Period, Default Rate, Interest Period and Purchase Date,
as applicable, on this Bond that will permit this Bond to be sold at par, plus accrued
interest (if any), on the Purchase Date. Prior to the effectiveness of any such new
interest rate and such adjustments, there shall be delivered to the Issuer, the
Borrower and the then existing Purchaser (if this Bond is to be retained by the then
existing Purchaser) or the new Purchaser (if this Bond is to be remarketed to a new
Purchaser) an Opinion of Bond Counsel to the effect that such new interest rate and
such adjustments will not adversely affect the exclusion of interest on this Bond
from gross income for federal income tax purposes.
If on a Purchase Date this Bond is neither retained by the then existing
Purchaser as described in Section 5(a) below nor remarketed to one or more new
Purchasers as described in Section 5(c) below, but is purchased by the Borrower as
described in Section 5(b) hereof and not canceled, this Bond shall continue to bear
interest at the interest rate borne by this Bond for the immediately preceding
Interest Period. If this Bond is later remarketed on a date subsequent to such
Purchase Date, on or before noon, Chicago time, on the date this Bond is to be
remarketed, a new interest rate on this Bond shall be established, which will be
effective until the next succeeding Purchase Date or the Maturity Date, as
applicable (subject to redemption or prepayment (by acceleration or otherwise)),
and such new interest rate shall be the lowest rate of interest which will, in the
reasonable judgment of the new Purchaser or Purchasers, as applicable, permit such
Purchaser or Purchasers to buy this Bond at par, plus accrued interest (if any), on
such date of remarketing. To effect such new interest rate, the definitions of
Applicable Factor, Applicable Margin, Bank Purchase Rate, Fixed Bank Purchase
Rate, Variable Bank Purchase Rate, Taxable Rate, Adjusted SOFR Rate, Index
Interest Period, Default Rate, Interest Period and Purchase Date, as applicable
(together with any other necessary definitions or provisions) contained in the Bond
and Loan Agreement may be adjusted as needed to reflect the new interest rate
borne by this Bond commencing on such date of remarketing. Prior to the
effectiveness of such new interest rate on this Bond on the remarketing date, such
new interest rate shall be confirmed by a Calculation Agent as an interest rate,
including an Applicable Factor, Applicable Margin, Bank Purchase Rate, Fixed
Bank Purchase Rate, Variable Bank Purchase Rate, Taxable Rate, Adjusted SOFR
Rate, Index Interest Period, Default Rate, Interest Period and Purchase Date, as
applicable, on this Bond that will permit this Bond to be remarketed at par, plus
accrued interest (if any), on the remarketing date. Prior to the effectiveness of any
such new interest rate, adjustments and remarketing, there shall be delivered to the
5
Issuer, the Borrower and the new Purchaser or Purchasers an Opinion of Bond
Counsel to the effect that such new interest rate, such adjustments and such
remarketing will not adversely affect the exclusion of interest on this Bond from
gross income for federal income tax purposes.
(d) Default Rate. In case any Event of Default occurs under the Bond
and Loan Agreement and is continuing, this Bond shall bear interest at the Default
Rate (as defined in the Bond and Loan Agreement). The Purchaser, the Borrower
and the Issuer may agree in writing prior to any adjustment that this Bond will bear
interest at a different Default Rate if there is delivered to the Issuer, the Purchaser
and the Borrower an Opinion of Bond Counsel to the effect that the designation of
such different Default Rate will not adversely affect the exclusion of interest on this
Bond from gross income for federal income tax purposes.
(e) Determination of Taxability. If a Determination of Taxability has
occurred, this Bond (or portion thereof to which such Determination of Taxability
applies) shall bear interest at the Taxable Rate from and after the Event of
Taxability that gave occasion to such Determination of Taxability or such earlier
period of time from which interest thereon (or portion of interest thereon) has been
so determined to be taxable.
(f) Unremarketed Bond. Notwithstanding anything herein to the
contrary, Unremarketed Bonds shall bear interest on the dates, in the amounts and
in the manner set forth in the Covenant Agreement. A Bond shall cease to be an
Unremarketed Bond only if such Unremarketed Bond is remarketed and transferred
or such Unremarketed Bond is redeemed in full.
(g) Benchmark Transition. Notwithstanding anything to the contrary in
the Bond and Loan Agreement, after the occurrence of a Benchmark Transition
Event the Purchaser may propose an alternate index to replace the SOFR Index
Rate as the index rate under the, which may include an adjustment, and shall
provide 30 days' advance written notice to the Issuer and the Borrower of the
proposed implementation of such index, and its effective date, and may propose
any reasonable technical, administrative or conforming changes to the Bond and
Loan Agreement and any other related documents, and may make any adjustments
to such index or interest rate spreads, to reflect the adoption and implementation of
the substitute index rate and to permit the administration thereof by the Purchaser
and the Calculation Agent, and shall propose amendments to the Bond and Loan
Agreement or any other related documents reflecting such conforming changes as
provided in the Bond and Loan Agreement. In selecting any such alternate index,
adjustment and conforming changes, the Purchaser shall give due consideration to
(i) any selection or recommendation of a replacement index rate or the mechanism
for determining such a rate by the Relevant Government Body, and (ii) any
evolving or then -prevailing market convention by the official sector for
determining an index as a replacement for the then current index for U.S. dollar -
6
denominated bilateral credit facilities at such time. Until the new index is effective,
this Bond will continue to bear interest with reference to the existing index so long
as it is available and not unlawful or impracticable and otherwise, subject to clause
(h) below, this Bond will bear interest with respect to the new index. Subject to
compliance with the Bond and Loan Agreement, including subparagraph (h) below,
this Bond and the Tax Agreement, the parties to the Bond and Loan Agreement
agree to amend the Bond and Loan Agreement and this Bond (if necessary) to
implement such new index that the Purchaser decides may be appropriate to reflect
the adoption and implementation of the new index.
(h) Opinion of Bond Counsel. Unless a rate described in clause (d), (e)
or (f) above shall be in effect, upon the transition to an interest rate based upon a
new index, adjustments to the index or interest rate spreads or any related changes
pursuant to clause (g) above (including, without limitation, any technical,
administrative or conforming changes in connection therewith), either (i) the
Borrower, at its own expense, will deliver to the Issuer and the Purchaser, an
Opinion of Bond Counsel addressed to and acceptable to the Issuer and the
Purchaser (at no cost to the Issuer or the Purchaser) that the replacement of the
current index with a replacement index and the proposed amendments related
thereto pursuant to clause (g) above do not adversely affect the exclusion from
gross income of interest on this Bond from gross income of the owner of the Bond
or (ii) if no such opinion is delivered to the Issuer and the Purchaser on the
proposed effective date of such replacement, the interest rate on the Bond shall
equal the Taxable Rate, until such opinion is delivered. The Taxable Rate shall be
based on (A) the then current Bank Purchase Rate, while the current index for such
rate is available and not impracticable or unlawful, or (B) the Bank Purchase Rate
utilizing the alternate index and adjustment, if any, if the prior index is unavailable,
impracticable or unlawful.
4. Redemption. This Bond is subject to redemption only as described below:
(a) Optional Redemption. Subject to any limitations set forth in the
Covenant Agreement, this Bond shall be subject to optional redemption prior to
maturity, at the direction of the Borrower, in whole or in part (provided that this
Bond may not be redeemed in part if the principal amount remaining outstanding
after such partial redemption would not be an Authorized Denomination), on a date
selected by the Borrower, upon not less than 10 days' prior written notice to the
Issuer and the Purchaser (or such shorter time as agreed to by the Issuer and the
Purchaser), at a redemption price equal to 100% of the principal amount of such
Bond to be redeemed plus accrued interest thereon to the redemption date, and
without premium; provided, however, that, in addition to such redemption price, the
Borrower shall also pay to the Purchaser any amounts prescribed in Section 4.04 or
4.05 of the Covenant Agreement with respect to any such redemption.
7
Upon surrender of this Bond optionally redeemed in part, the Bond
Registrar shall record the principal amount so redeemed on Schedule II to this Bond
and shall authenticate Schedule 11, and the Cumulative Outstanding Principal
Amount of this Bond shall be reduced as shown on Schedule IL Notwithstanding
anything in the Bond and Loan Agreement to the contrary, at no time will the
unredeemed portion of this Bond be in a principal amount less than $100,000.
Partial redemption payments shall be allocated to the principal installments payable
on this Bond pro -rata among the remaining principal installments unless the
Purchaser and the Borrower otherwise agree and there is delivered to the Issuer, the
Purchaser and the Borrower an Opinion of Bond Counsel to the effect that crediting
such payments in another manner will not adversely affect the exclusion of interest
on this Bond from gross income for federal income tax purposes. Schedule I
attached hereto shall be amended as promptly as possible to reflect the effect of
such payment.
(b) Mandatory Sinking Fund Redemption. This Bond is subject to
mandatory sinking fund redemption in accordance with the schedule set forth in
Schedule 1 attached hereto. Upon the mandatory sinking fund redemption of this
Bond, the Bond Registrar shall record the principal amount so redeemed on
Schedule 11 to this Bond and shall authenticate Schedule 11, and the Cumulative
Outstanding Principal Amount of this Bond shall be reduced as shown on Schedule
H.
(c) Unremarketed Bond. Any Unremarketed Bond is subject to special
mandatory redemption at a redemption price equal to 100% of the principal amount
of the Bond to be redeemed plus accrued interest thereon at the Default Rate (as
defined in the Covenant Agreement) to but not including the date of such
redemption, on the dates, in the amounts and in the manner set forth in the
Covenant Agreement.
5. Tender.
(a) Tender on Purchase Date. Subject to the provisions of the
following paragraph, this Bond is subject to mandatory tender for purchase on each
Purchase Date. The purchase price shall be 100% of the outstanding principal
amount thereof plus accrued interest to the Purchase Date. This Bond shall bear
interest on and after each Purchase Date at the rate established in accordance with
the requirements of Section 3(c) or (d) above, including the requirement for the
delivery of an Opinion of Bond Counsel to the effect that the establishment of such
rate will not adversely affect the exclusion of interest on this Bond from gross
income for federal income tax purposes.
The Borrower may, by written notice to the Purchaser, not sooner than 180
days but no later than ninety (90) days prior to the Purchase Date, request that the
Purchaser continue holding this Bond following such Purchase Date. If the
8
Borrower so requests, the Purchaser agrees in the Bond and Loan Agreement that it
will make reasonable efforts to respond to such request within thirty (30) days after
receipt of all information necessary, in the Purchaser's reasonable judgment, to
permit the Purchaser to make an informed credit decision. The Purchaser may, in
its sole and absolute discretion, decide to accept or reject any such request, and no
consent shall become effective unless the Purchaser shall have consented thereto in
writing; provided, however, that the failure of the Purchaser to respond to such a
request to extend the Purchase Date within such thirty (30) day period shall be
deemed an election by the Purchaser not to continue holding this Bond following
such Purchase Date. In its sole and absolute discretion, the Purchaser may propose
the length of the new Interest Period (including the new Purchase Date) and the
interest rate to be effective during such new Interest Period, including the
Applicable Factor, the Applicable Margin and any other conditions precedent to its
decision to continue to hold this Bond. In the event the Purchaser determines that it
will not make such proposal, this Bond shall be subject to mandatory tender
pursuant to the provisions of the Bond and Loan Agreement described in this
Section 5. If the Purchaser does make such proposal, the Borrower may, in its sole
and absolute discretion, decide to approve, reject or renegotiate any such proposal,
and no approval of the Borrower with respect thereto shall become effective unless
in writing. In the event the Borrower rejects such proposal or fails to definitively
respond to such proposal on or before thirty (30) days prior to the related Purchase
Date, the Borrower shall be deemed to have rejected or failed to approve such
proposal and this Bond shall be subject to mandatory tender pursuant to the
provisions of the Bond and Loan Agreement described in this Section 5.
The agreement by the Purchaser to continue to hold this Bond shall be
conditioned upon the preparation, execution and delivery of documentation in form
and substance satisfactory in all respects to the Purchaser.
If the Purchaser agrees to hold this Bond during the new Interest Period, the
interest rate to be borne by this Bond shall be established by the Purchaser and
confirmed by the Calculation Agent as described in Section 3(c) above and there
shall be delivered to the Issuer, the Borrower and the Purchaser an Opinion of Bond
Counsel to the effect that the establishment of such rate will not adversely affect the
exclusion of interest on this Bond from gross income for federal income tax
purposes.
(b) Obligation to Purchase. In the event of any tender, the Borrower
has agreed under the Bond and Loan Agreement to purchase this Bond in whole at
a purchase price of 100% of the principal amount hereof plus accrued interest to the
Purchase Date. Upon the purchase of this Bond, this Bond shall thereafter be
registered in the name of the Borrower, or such other person or entity as the
Borrower shall designate, subject to the requirements of paragraph (c) below, or at
the direction of the Borrower, shall be canceled by the Bond Registrar. No such
0
purchase of this Bond shall be deemed to be an extinguishment of the debt
represented by this Bond unless this Bond is canceled following such purchase.
(c) Remarketing. It is expressly acknowledged in the Bond and Loan
Agreement by the parties to the Bond and Loan Agreement that in the event this
Bond is tendered for purchase on a Purchase Date, the Borrower may seek to
remarket such tendered Bond to one or more new Purchasers and may apply any
proceeds thereof to the payment of the purchase price of such tendered Bond;
provided, however, that this Bond may only be remarketed if (i) the interest rate to
be borne by this Bond is established in accordance with Section 3(c) above,
(ii) there is delivered to the Issuer, the Borrower and each new Purchaser an
Opinion of Bond Counsel to the effect that the remarketing of this Bond to each
new Purchaser will not adversely affect the exclusion of interest on this Bond from
gross income for federal income tax purposes, (iii) each new Purchaser makes the
representations set forth in Section 2.3 and Section 2.4 of the Bond and Loan
Agreement and executes and delivers an Investor Letter, (iv) the Borrower
complies with (A) all applicable rules and procedures of the Issuer and (B) all
applicable state and federal securities and other laws in connection with such
remarketing and (v) the Purchaser shall have received (A) 100% of the principal
amount of such tendered Bond to be remarketed, plus accrued interest thereon, and
(B) payment and satisfaction in full of all Obligations (as defined in the Covenant
Agreement) under the Covenant Agreement.
6. Denominations; Transfer; Exchange. This Bond is initially issued as a
single fully registered Bond without coupons in the denomination equal to the then
outstanding principal amount hereof.
A registered owner may transfer this Bond in accordance with the Bond and Loan
Agreement. The Purchaser, as bond registrar (the "Bond Registrar"), may require a
registered owner, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the Bond and
Loan Agreement.
7. Persons Deemed Owners. The registered owner of this Bond may be
treated as the absolute owner thereof for all purposes whether or not this Bond shall be
overdue, and shall not be bound by any notice to the contrary.
8. Defaults and Remedies. The Bond and Loan Agreement provides that the
occurrences of certain events constitute Events of Default. If an Event of Default occurs
and is continuing, the Purchaser may declare the entire principal of this Bond to be due and
payable immediately, as further described in the Bond and Loan Agreement. An Event of
Default and its consequences may be waived as provided in the Bond and Loan
Agreement.
9. Authentication. This Bond shall not be valid until the Bond Registrar or an
10
authenticating agent signs the Certificate of Authentication attached hereto.
11
IN WITNESS WHEREOF, as provided by the Act, the City of Canton, Fulton
County, Illinois has caused this Bond to be executed in its name and on its behalf by the
manual or facsimile signature of its Mayor and its corporate seal to be hereunto affixed
manually or by facsimile and attested to by the manual or facsimile signature of its City
Clerk.
[SEAL]
Attest:
By:
Its: ty Clerk
CITY OF CANTON, FULTON COUNTY,
ILLINOIS
By:
Its: Mayor
12
CERTIFICATE OF AUTHENTICATION
BMO HARRIS INVESTMENT COMPANY LLC, as Bond Registrar, certifies that
this is the Bond referred to in the Bond and Loan Agreement.
Date of Authentication: , 2023
BMO HARRIS INVESTMENT
COMPANY LLC, as Bond Registrar
al
Its: Senior Vice President
13
FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond, and does hereby irrevocably constitute and
appoint , attorney to transfer the Bond on the books kept for
registration and transfer of the within Bond, with full power of substitution in the premises.
Dated:
Note: The signature to this Assignment must
correspond with the name as it appears upon
the face of the within Bond in every
particular, without enlargement or alteration
or any change whatsoever.
Signature guaranteed by:
_ Note: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Bond in every
particular, without alteration or enlargement
or any change whatever. Signature(s) must be
guaranteed by an "eligible guarantor
institution" meeting the requirements of the
Bond Registrar, which requirements include
membership or participation in Stamp or such
other "signature guaranty program" as may be
determined by the Bond Registrar in addition
to or in substitution for Stamp, all in
accordance with the Securities Exchange Act
of 1934, as amended.
14
FORM OF REGISTRATION INFORMATION
Under the terms of the Bond and Loan Agreement, the Bond Registrar will register
the Bond in the name of a transferee only if the owner of the Bond (or his duly authorized
representative) provides as much of the information requested below as is applicable to
such owner prior to submitting this Bond for transfer.
Name: _
Address:
Social Security or Employer
Identification Number:
If a Trust, Name and Address of
Trustee(s) and Date of Trust:
15
SCHEDULE I TO THE BOND
PRINCIPAL PAYMENTS
June 1 of the Year Amount
16
SCHEDULE II TO THE BOND
$17,000,000
MAXIMUM PRINCIPAL AMOUNT
CITY OF CANTON, FULTON COUNTY, ILLINOIS
HEALTH CARE FACILITIES REVENUE BOND, SERIES 2020
(GRAHAM HOSPITAL ASSOCIATION PROJECT)
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CUMULATIVE
PRINCIPAL PRINCIPAL OUTSTANDING
AMOUNT AMOUNT PRINCIPAL
DATE ADVANCED REDEEMED AMOUNT AUTHENTICATION
June 18, 2020 $1,453,213 $0 $1,453,213
FIRST AMENDMENT TO BOND AND LOAN AGREEMENT
AND RELATED DOCUMENTS
This First Amendment to Bond and Loan Agreement and Related Documents
(this "Amendment") made as of the _ day of , 2023 (the "Amendment
Date"), by and among BMO HARRIS INVESTMENT COMPANY LLC, a Nevada
limited liability company (the "Purchaser"), GRAHAM HOSPITAL ASSOCIATION, an
Illinois not-for-profit corporation (the "Borrower"), and the CITY OF CANTON,
FULTON COUNTY, ILLINOIS, a municipality duly organized and validly existing
under the Constitution and laws of the State of Illinois (the "Issuer").
RECITALS:
WHEREAS, the Issuer issued its $17,000,000 Health Care Facilities Revenue
Bond, Series 2020 (Graham Hospital Association Project) (the "Bond") and the Purchaser
purchased the Bond pursuant to that certain Bond and Loan Agreement, dated as of June
1, 2020 (the "Bond and Loan Agreement"), by and among the Issuer, Borrower and
Purchaser; and
WHEREAS, the proceeds of the Bond were loaned by the Issuer to the Borrower
for use in the Project (as defined in the Bond and Loan Agreement), and the Borrower is
obligated to pay to the Purchaser amounts sufficient to pay the principal of, premium, if
any, and interest on the Bond when due; and
WHEREAS, the parties hereto wish to amend the Bond and Loan Agreement and
the Related Documents pursuant to this Amendment to modify the interest rate of the
Bond.
NOW, THEREFORE, in consideration of the foregoing and the mutual
undertakings herein set forth, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the
meanings given them in the Bond and Loan Agreement.
2. Conditions Precedent. The agreement by the Purchaser to amend the
Bond and Loan Agreement and the Related Documents shall be subject to satisfaction in
full of the following conditions:
2.1 All of the representations, warranties and covenants of the Borrower
contained in the Bond and Loan Agreement and any of the other Related
Documents shall be true and correct in all material respects as of the date hereof.
2.2 No event or condition has occurred and is continuing as of the date hereof
which constitutes an Event of Default under the Bond and Loan Agreement or any
of the other Related Documents or which, with notice or lapse of time, would
4865-7633-3665.3
constitute an Event of Default under the Bond and Loan Agreement or any of the
other Related Documents.
2.3 No event has occurred which would reasonably be expected to have a
material adverse effect on the financial condition of the Borrower.
2.4 Receipt by the Purchaser of any other documents, instruments and
opinions of counsel as the Purchaser may reasonably require.
3. Amendments to Bond and Loan Agreement.
3.1 The definition of `Base Rate" in Article I of the Bond and Loan
Agreement shall be deleted in its entirety and replaced with the following:
"Base Rate" means, for any day, a fluctuating rate of interest per
annum equal to the greatest of (i) the Prime Rate in effect at such time,
(ii) the Federal Funds Rate in effect at such time plus two percent (2.00%),
(iii) the Daily Simple SOFR in effect at such time plus three percent
(3.00%), and (iv) seven percent (7.00%). Each change in the Base Rate
shall take effect simultaneously with the corresponding change or changes
in the Prime Rate, the Federal Funds Rate or the Daily Simple SOFR, as
the case may be.
3.2 The definition of `Business Day" in Article I of the Bond and Loan
Agreement shall be deleted in its entirety and replaced with the following:
"Business Day" means a day which is not (a) a Saturday, Sunday
or legal holiday on which banking institutions in New York, New York,
Chicago, Illinois or the State are authorized by law to close, (b) a day on
which the New York Stock Exchange or the Federal Reserve Bank is
closed or (c) a day on which the principal office of the Calculation Agent
or the Purchaser is closed. When used while the Bond bears interest at a
rate based on SOFR or any direct or indirect calculation or determination
of SOFR, in order for a day to be a Business Day, such day must also be a
U.S. Government Securities Business Day.
3.2 The definition of "Computation Date" in Article I of the Bond and Loan
Agreement shall be deleted in its entirety and replaced with the following:
"Computation Date" means the second Business Day immediately
preceding each Interest Rate Reset Date.
3.4 The definition of "LIBOR Interest Period" in Article I of the Bond and
Loan Agreement shall be deleted in its entirety and replaced with the following:
"Index Interest Period" means:
2
4865-7633-3665.3
(a) initially, the period
Closing Date and ending on the day
(the first Interest Rate Reset Date
Closing Date); and
beginning on (and including) the
immediately preceding July 1, 2020
:o occur immediately following the
(b) thereafter, each period commencing on an Interest Rate
Reset Date and ending on the day occurring immediately prior to the next
Interest Rate Reset Date; provided, however, that no Index Interest Period
may end later than the Maturity Date.
3.5 The definition of "Variable Bank Purchase Rate" in Article I of the Bond
and Loan Agreement shall be deleted in its entirety and replaced with the
following:
"Variable Bank Purchase Rate" means the per annum interest rate
borne by the Bond equal to the sum of (i) the product of (a) the Applicable
Factor times (b) the Adjusted SOFR Rate for each Index Interest Period,
as determined on each Computation Date, plus (ii) the Applicable Margin.
The Bank Purchase Rate shall be rounded up to the fifth decimal place.
3.6 A following new definitions shall be added to Article I of the Bond and
Loan Agreement:
"Adjusted SOFR Rate" means the sum of (i) the SOFR Index Rate
plus (ii) the Benchmark Adjustment.
"Benchmark Adjustment" means, with respect to the SOFR Index
Rate, 0.114488% and (ii) with respect to any other Benchmark, the
Benchmark Replacement Adjustment determined in accordance with
Section 3.3(f) hereof.
"Benchmark Transition Event" means the occurrence of one or
more of the following events with respect to the SOFR Index Rate (as
determined by the Purchaser in its sole discretion): (a) the SOFR Index
Rate is no longer available or published, (b) the administrator of the SOFR
Index Rate or a governmental authority having jurisdiction over the
Purchaser has made a public statement that the SOFR Index Rate shall no
longer be made available, used or advisable for determining interest rates
of loans, or (c) loans are currently being executed containing, or loans that
include benchmark replacement language similar to that contained in this
Agreement are being executed or modified (as applicable) to incorporate
or adopt, a new benchmark interest rate to replace the SOFR Index Rate
referred therein.
3
4865-7633-3665.3
"Daily Simple SOFR Rate" means, for any day, SOFR, with the
conventions for this rate (which will include a lookback) being established
by the Purchaser in accordance with the conventions for this rate selected
or recommended by the Relevant Governmental Body for determining
"Daily Simple SOFR" for bilateral business loans; provided, that if the
Purchaser decides that any such convention is not administratively feasible
for the Purchaser, then the Purchaser may establish another convention in
its reasonable discretion.
"First Amendment Effective Date" means
2023.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"Relevant Governmental Body" means the FRB and/or the Federal
Reserve Bank of New York, or a committee officially endorsed or
convened by the FRB and/or the Federal Reserve Bank of New York, or
any successor thereto.
"SOFR" means a rate equal to the secured overnight financing rate
(as administered by the Federal Reserve Bank of New York) or a
successor administrator of the secured overnight financing rate).
"SOFR Index Rate" means, for any day, the one-month forward
looking secured overnight financing rate as administered by the CME
Group Benchmark Administration Limited (CBA) (or a successor
administrator designated by the relevant authority, if none is so
designated, a successor administrator selected by the Purchaser) as quoted
for the day that is the Computation Date. If the SOFR Index Rate as so
determined would be less than 0.0%, the SOFR Index Rate will be deemed
to be 0.0% for the purposes of this Agreement. Each determination of the
SOFR Index Rate made by the Calculation Agent shall be conclusive and
binding absent manifest error.
"U.S. Government Securities Business Day" means any day except
for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities
Industry and Financial Markets Association, or any successor thereto,
recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in United States government
securities.
3.7 All references to "Adjusted LIBOR Rate" in the Bond and Loan
Agreement shall be replaced with "Adjusted SOFR Rate."
4
4865-7633-3665.3
3.8 All references to "LIBOR Interest Period" in the Bond and Loan
Agreement shall be replaced with "Index Interest Period."
3.9 The first sentence in Section 3.3(b) of the Bond and Loan Agreement shall
be deleted in its entirety and replaced with the following:
"Subject to the provisions of Section 3.3(c), (d), (e), (f), (g), and
(h) hereof, the Bond shall bear interest at the Bank Purchase Rate from the
Closing Date to and including the earlier of the day preceding (i) its
redemption date, (ii) its prepayment date (by acceleration, mandatory
tender or otherwise) and (iii) the Purchase Date."
3.9 The following new subsections shall be added to Section 3.3 of the Bond
and Loan Agreement:
"(g) Benchmark Transition. Notwithstanding anything to the
contrary herein, after the occurrence of a Benchmark Transition Event the
Purchaser may propose an alternate index to replace the SOFR Index Rate
as the index rate hereunder, which may include an adjustment, and shall
provide 30 days' advance written notice to the Issuer and the Borrower of
the proposed implementation of such index, and its effective date, and
may propose any reasonable technical, administrative or conforming
changes to this Agreement and any other related documents, and may
make any adjustments to such index or interest rate spreads, to reflect the
adoption and implementation of the substitute index rate and to permit the
administration thereof by the Purchaser and the Calculation Agent, and
shall propose amendments to this Agreement or any other related
documents reflecting such conforming changes as provided herein. In
selecting any such alternate index, adjustment and conforming changes,
the Purchaser shall give due consideration to (i) any selection or
recommendation of a replacement index rate or the mechanism for
determining such a rate by the Relevant Government Body, and (ii) any
evolving or then -prevailing market convention by the official sector for
determining an index as a replacement for the then current index for U.S.
dollar-denominated bilateral credit facilities at such time. Until the new
index is effective, the Bond will continue to bear interest with reference to
the existing index so long as it is available and not unlawful or
impracticable and otherwise, subject to clause (h) below, the Bond will
bear interest with respect to the new index. Subject to compliance with
this Agreement, including subparagraph (h) below, the Bond and the Tax
Agreement, the parties hereto agree to amend this Agreement and the
Bond (if necessary) to implement such new index that the Purchaser
decides may be appropriate to reflect the adoption and implementation of
the new index.
5
4865-7633-3665.3
(h) Opinion of Bond Counsel. Unless a rate described in clause
(d), (e) or (f) above shall be in effect, upon the transition to an interest rate
based upon a new index, adjustments to the index or interest rate spreads
or any related changes pursuant to clause (g) above (including, without
limitation, any technical, administrative or conforming changes in
connection therewith), either (i) the Borrower, at its own expense, will
deliver to the Issuer and the Purchaser, an Opinion of Bond Counsel
addressed to and acceptable to the Issuer and the Purchaser (at no cost to
the Issuer or the Purchaser) that the replacement of the current index with
a replacement index and the proposed amendments related thereto
pursuant to clause (g) above do not adversely affect the exclusion from
gross income of interest on the Bond from gross income of the owner of
the Bond or (ii) if no such opinion is delivered to the Issuer and the
Purchaser on the proposed effective date of such replacement, the interest
rate on the Bond shall equal the Taxable Rate, until such opinion is
delivered. The Taxable Rate shall be based on (A) the then current Bank
Purchase Rate, while the current index for such rate is available and not
impracticable or unlawful, or (B) the Bank Purchase Rate utilizing the
alternate index and adjustment, if any, if the prior index is unavailable,
impracticable or unlawful."
3.10 The Purchaser's address in Section 9.1 of the Bond and Loan Agreement
shall be deleted in its entirety and replaced with the following:
If to the Purchaser: BMO Harris Investment Company LLC
320 S. Canal Street
Chicago, Illinois 60606
Attention: Deborah Ellis
Telephone: (312) 461-2734
Telecopier (General): (312) 293-5811
Email: deborah.ellis@bmo.com
3.11 The Form of Bond attached to the Bond and Loan Agreement as Exhibit A
shall be replaced with the Form of Bond attached hereto as Exhibit A.
4. Amendments to Related Documents. The Related Documents shall be
amended in all respects necessary to conform to the changes to the Bond and Loan
Agreement as set forth herein. All references in any of the Related Documents to the
term "Related Documents" are hereby changed to include this First Amendment to Bond
and Loan Agreement and Related Documents.
5. Events of Default and Remedies. Any breach of or default under any of
the terms or provisions of this Amendment shall constitute an Event Default under the
Bond and Loan Agreement and the Related Documents.
6. Waiver and Release of Claims. The Borrower represents to the Purchaser
that it has no defenses, setoffs, claims or counterclaims of any kind or nature whatsoever
6
4865-7633-3665.3
against the Purchaser in connection with the Bond and Loan Agreement or any of the
other Related Documents or any extensions or modifications thereof or any action taken
or not taken by the Purchaser with respect thereto. Without limiting the generality of the
foregoing, and in consideration of the Purchaser's agreements hereunder, the Borrower
hereby releases and discharges the Purchaser, its affiliates and each of their officers,
agents, employees, attorneys, insurers, successors and assigns (collectively, the "Released
Parties"), from and against any and all liabilities, rights, claims, losses, expenses, or
causes of action, known or unknown, arising out of any action or inaction by any of the
Released Parties prior to the date hereof, with respect to the Bond and Loan Agreement
or any of the other Related Documents or this Amendment, or any matter in any way
related thereto or arising in conjunction therewith. The Borrower also waives, releases,
and discharges the Released Parties and each of them from and against any and all known
or unknown rights to setoff, defenses, claims, counterclaims, causes of action, any other
bar to the enforcement of this Amendment or the Bond and Loan Agreement or any of the
other Related Documents.
7. Disclaimer of Reliance. The Borrower expressly disclaims any reliance
on any oral representation made by the Released Parties or any of them with respect to
the subject matter of this Amendment. The Borrower acknowledges and agrees that the
Purchaser is specifically relying upon the representations, warranties, releases and
agreements contained herein, and that this Amendment is being executed by the
Borrower and delivered to the Purchaser as an inducement to the Purchaser to consent as
set forth herein.
8. Notice. All notices and demands under and with respect to this
Amendment shall be given as provided in the Bond and Loan Agreement.
9. Terms. All terms, covenants and provisions of the Bond and Loan
Agreement or any of the other Related Documents not expressly amended hereby shall
remain in full force and effect, and all representations, warranties, covenants and
agreements made by the Borrower in the Bond and Loan Agreement or any of the other
Related Documents are reaffirmed, ratified and restated by Borrower as true and correct
as of the date hereof.
10. Expenses. The Borrower agrees to pay all of the Issuer's and Purchaser's
reasonable expenses and costs, including without limitation, reasonable attorneys' fees
and costs of litigation, incurred in connection with the enforcement of this Amendment or
any of the Related Documents, all of which expenses and costs shall constitute additional
indebtedness of Borrower pursuant to the Related Documents.
11. Counterparts. This Amendment may be signed in one or more
counterparts, each of which shall be deemed an original, and all of which shall constitute
one and the same agreement and shall be binding on and inure to the benefit of the
undersigned and their respective successors and assigns as if all had signed one
instrument.
7
4865-7633-3665.3
IN WITNESS WHEREOF, the parties named below have caused this Amendment
to be executed as of the date and year first above written.
THE CITY OF CANTON
FULTON COUNTY, ILLINOIS
By
Na
Tit
BMO HARRIS INVESTMENT COMPANY
LLC
By: _
Name:
Title:
GRAHAM HOSPITAL ASSOCIATION
By:
Name:
Title:
Signature Page to
First Amendment to Bond and Loan Agreement and Related Documents (Series 2020)
EXHIBIT A
FORM OF BOND
4865-7633-3665.3