Exhibit 10.2.1
LOAN AGREEMENT
THIS LOAN AGREEMENT (herein called the "Agreement") is made and entered
into as of the 22nd day of May, 1997 by and between Jefferson County, Arkansas
(herein called "Lender"), and TSI Redfield Laboratories, Inc. (herein called
"Borrower").
W I T N E S S E T H:
WHEREAS, Lender is authorized to loan grant funds to qualified applicants
under the Arkansas Industry and Aerospace Development Fund Program ("AIADFP")
conducted under the auspices of the Arkansas Industrial Development Commission
("AIDC"), with funds provided through the State of Arkansas, to facilitate
economic development and the creation of jobs within the State of Arkansas; and
WHEREAS, the loan of said grant funds from Lender to Borrower will permit
the construction of facilities, and the creation of new employment opportunities
for low to moderate income persons; and
WHEREAS, Borrower will use the loan funds to construct improvements upon
the property described herein.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter contained, the parties hereby covenant and agree as follows:
1. Conditioned upon receipt of the grant funds by Lender from AIDC under
its Grant Agreement with Lender dated April 23, 1997, as amended, (herein called
"Grant Agreement") Lender agrees to loan and Borrower agrees to borrow the sum
of Three Hundred Fifty Thousand and No/100's Dollars ($350,000.00) (herein
called the "Loan"), which sum shall be used by Borrower as set out above.
2. Loan proceeds will be utilized only for those purposes specifically
identified
within the Grant Agreement.
3. One of the purposes of the Grant Agreement is to create employment for
low and moderate income persons.
4. Borrower agrees to use its best efforts to achieve that
purpose and agrees that the interest rate on the Loan specified
in the Note shall be adjusted in accordance with the following,
but in no event to exceed the maximum rate allowed by law:
(a) If, by June 30, 1999, no less than eighteen (18)
jobs having a minium average annual salary of
$23,088 have not been created by Borrower and
verified by the AIDC, the interest rate of the
Loan will be raised to the maximum allowable under
Arkansas law and will remain at that rate for the
remaining term of the Loan or any extension or
renewal of same.
5. Borrower shall execute in favor of the Lender its
Promissory Note ("Note") in the principal sum of $350,000.00
with five and one half percent 5.5% interest as stated in
the Note, being in the form attached hereto as Exhibit "A".
Said sum shall be repaid according to the Note's terms.
6. Borrower acknowledges that the funds for the Loan will
come to Lender under the terms of the Grant Agreement and agrees
that the disbursement of the funds from the Loan shall be made in
accordance with the Grant Agreement attached hereto as Exhibit
"B". Borrower agrees to comply with the terms and restrictions
of the Grant Agreement and to provide to Lender and/or the AIDC,
at the Borrower's expense such reports, audits, documentation, or
other information as may be required in connection therewith.
7. Nothing in this transaction shall impair Lender's
compliance with the terms of the Grant Agreement, and in the
event of any such conflict, the terms of the Grant Agreement
shall control, and the terms of all documents used in this
transaction shall be deemed modified accordingly; provided,
however, that in event of any such conflict, Lender will attempt
to have said Grant Agreement amended or modified to accommodate
such conflict, and this override provision shall apply only if
such request is denied.
8. Borrower, acknowledges that it understands and will
comply with the following applicable federal laws and regulations
which are conditions for receipt of the funds provided herein:
(a) Borrower will comply with the provisions of Public
Law 88-352 which refers to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000 d, et
seq. The law provides that no person in the
United States will on the grounds of race, color,
or national origin, be denied the benefits of, or
be subjected to discrimination under, any program
or activity receiving federal financial
assistance.
(b) Borrower will comply with the provisions of
Section 109 of the Housing and Community
Development Act of 1974, as amended, which
requires that no person in the United States may
be excluded from participation in or be denied any
program activity funded in whole or part with
Community Development funds made available
pursuant to Title I of the Housing and Community
Development Act of 1974, as amended, on the
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grounds of race, color, national origin, or sex.
Section 109 further provides that any regulations
under the Age Discrimination Act of 1975, 42
U.S.C. Section 6101, et seq., or with respect to
any otherwise qualified handicapped individual as
provided in Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. Section 794, will also apply to
any such program or activity.
(c) Borrower will comply with Executive Order 11246,
as amended, which applies to all federally
assisted construction contracts and subcontracts.
Borrower will not discriminate against any
employee or applicant for employment because of
race, color, religion, sex, or national origin and
will take affirmative action to ensure that
applicants are employed, and that employees are
treated during employment, without regard to their
race, color, religion, sex or national origin.
Such action will include, but not be limited to
the following: employment, upgrading, promotion or
transfer, recruitment, or recruitment advertising;
layoff or termination; rate of pay or other forms
of compensation; and selection for training,
including apprenticeship.
(d) Borrower will comply with the Xxxxxxxx
"Anti-Kickback" Act, 18 U.S.C. Section 874 as
supplemented by the Department of Labor
Regulations, 29 CFR Part 3.
(e) Borrower will comply with the Xxxxx-Xxxxx Act, as
amended, 40 U.S.C. Section 276a, et seq.
(f) Borrower will comply with the National Environment
Policy Act
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of 1969, 42 U.S.C. Section 4321, et seq., and 24 CFR Part 58.
(h) Borrower hereby agrees to comply with all other
federal and state laws as outlined in AIDC ACED
Administrative Procedures Manual and all
supplements thereto.
9. Borrower represents and warrants as follows:
(a) Borrower is a duly organized corporation existing
and in good standing under the laws of the State
of Arkansas, and has full power and authority to
deliver this Agreement, the Note, the security
documents, and each and every other instrument or
document required herein to be delivered, and to
perform the transactions contemplated hereby and
thereby, and is duly qualified to do business
wherever necessary to carry out its present
operations.
(b) The making and performance of this Agreement, the
Note, the security documents, and each and every
other document required to be delivered hereunder
are within Borrower's powers, have been duly
authorized by all necessary corporate action, have
received all necessary governmental approvals, and
do not contravene any law, regulation or decree or
any contractual restriction (otherwise than those
which shall be waived or discharged at the time of
making of the Loan) binding on Borrower.
(c) This Agreement, the Note, and security documents,
and each and every other document required to be
delivered hereunder,
5
when duly executed and delivered, will be legal and binding
obligations of Borrower enforceable in accordance with their
respective terms.
(d) There are no pending or threatened actions or
proceedings before any court or administrative
agency which may materially adversely affect the
financial conditions or operations of Borrower
except as specifically disclosed in writing to the
Lender prior to the date of this Agreement.
(e) Federal and state income tax returns required of
Borrower have been timely filed or an appropriate
extension for filing obtained, and to the best of
the knowledge and information of said parties no
claims are being asserted with respect to such
taxes, except as may have been previously
described in writing to Lender or for which
adequate reserves are maintained.
10. The obligation of Lender to make the Loan is subject to the
conditions precedent that Lender shall have received at closing, in
form and substance satisfactory to Lender, the following:
(a) The Promissory Note, this Agreement, and all
security documents.
(b) Certified copies of Borrower's Articles of
Incorporation filed with the Arkansas Secretary of
State; the Bylaws certified by the Secretary of
Borrower; a Certificate of Good Standing of
Borrower from the Arkansas Secretary of State.
6
(c) Certified copies of corporate resolutions from
Borrower evidencing authorization for the
undertakings contemplated hereby, including the
authorization to procure and guarantee credit,
borrow money, pledge as security and/or mortgage
on behalf of the Borrower, and designating
corporate officers with such authorization.
(d) Certified copies of all documents evidencing
necessary action and governmental approvals, if
any, with respect to this Agreement, the Note, and
security documents (or a certificate that no such
documents are required).
(e) Opinion letter of Borrower's attorney in a form
and content acceptable to Lender, if required,
including an opinion that Genzyme Transgenics
Corporation is authorized to guarantee repayment
of this loan; the binding nature of the loan
documents;and the authority of the officers to
sign the loan documents.
(f) A Mortgagee's title insurance policy in an amount
of at least $350,000.00 issued by a company
approved by Lender, insuring the fee simple title
of TSI Redfield Laboratories,Inc and the priority
of the Mortgage given Lender in conjunction with
the Loan.
11. If any of the following events (herein called "Events of
Default"") shall occur and be continuing, then the Loan shall be in
default, and at the option of Lender shall be
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subject to acceleration and enforcement as permitted by law, to wit:
(a) Borrower shall default in any payment of principal
of or interest on the Note pursuant to the terms
thereof, including all grace periods; or
(b) Any representation or warranty made in connection
with the execution and delivery of this Agreement,
the Note, or any of the security documents or in
any certificate furnished pursuant hereto or
thereto shall prove to be at any time incorrect in
any material respect; or
(c) Borrower shall default in the performance of any
other term, covenant or agreement contained in
this Agreement, including a temporary failure to
employ the persons specified in Paragraph 3 and 4
of this Agreement, the Note, or any of the
security documents; or
(d) Borrower shall be or become insolvent or bankrupt
or have ceased or cease paying its debts as they
mature or make an assignment of or for the benefit
of creditors, or a trustee or receiver or
liquidator shall be appointed for either all or
for a substantial part of its property, or
bankruptcy, reorganization, arrangement,
insolvency, or similar proceedings shall be
instituted by or against Borrower under the law of
any jurisdiction (provided, however, that in the
event an involuntary bankruptcy action is
commenced against Borrower, Borrower
8
shall have 90 days to secure the dismissal of such action);
or
(e) Any security document or interest therein shall be
canceled (except by operation of law upon payment
in full of the indebtedness secured thereby) or
otherwise cease to be in full force and effect and
enforceable in accordance with its terms against
Borrower or any mortgage given Lender does not
vest in Lender a fully perfected and valid
security interest, except when waived in writing.
12. No failure or delay on the part of any holder of the Note in
exercising any power or right hereunder or under any security document
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power
hereunder. No modification or waiver of any provision of this
Agreement, the Note, or any security document, nor consent to any
departure by Borrower therefrom shall be effective except only in the
specific instance and for the purpose for which given. No notice to
or demand of Borrower in any case shall entitle Borrower any other or
further notice or demand in similar or other circumstances. The
holder of the Note shall in no event be required to exercise any of
its remedies with respect to any security document before exercising
any remedies hereunder or otherwise to enforce the provisions of this
Agreement, the Note, or other security document.
13. Whenever any payment to be made hereunder or under the Note
shall be stated to be due on a Saturday, Sunday or a public holiday
under the laws of the State of Arkansas, such payment may be made on
the next succeeding business day and such extension of time
9
shall in such case be included in computing interest, if any, in connection
with such payment.
14. All communications and notices provided for hereunder shall
be in writing and mailed or delivered to the parties hereto at their
business addresses set forth below or, as to each party, at such other
address as shall be designated by such party in a written notice to
the other parties.
JEFFERSON COUNTY, ARKANSAS Barraque at Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
TSI Redfield Laboratories, Inc. 000 Xxxx Xxxxx Xx.
Xxxxxxxx, Xxxxxxxx 00000
15. Borrower agrees to pay all costs and expenses in connection
with the preparation, execution, and delivery of this Agreement, the
Note, and the security documents (including the reasonable fees and
out-of-pocket expenses of counsel for Lender and/or the AIDC) and any
and all fees, taxes or expenses payable in connection with the filing,
refiling, recording and rerecording of any security documents and
costs and expenses, if any, in connection with the enforcement of this
Agreement, the Note, and the security documents, as well as any and
all liabilities with respect to or resulting from any amount payable
or determined to be payable in connection with the preparation,
execution, delivery and enforcement of this Agreement, the Note and
the security documents or such filing, refiling, recording,
rerecording of any security document.
16. This Agreement shall be binding upon and inure to the
benefit of Borrower and Lender, and their respective heirs, personal
representatives, successors and assigns, except that Borrower may not
assign or transfer its rights hereunder without the prior written
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consent of Lender. The term "Lender" as used anywhere within the
terms of this Loan Agreement shall include any successor or assignee
of Lender.
17. This Agreement and the Note shall be deemed to be contracts
under the laws of the State of Arkansas and for all purposes shall be
governed by and construed in accordance with the laws of said State or
the laws of the United States of America, as shall be applicable.
18. This Agreement shall remain in full force and effect until
the Note is paid in full.
19. All available loan proceeds hereunder must be drawn by
Company within three(3)months from the date of loan closing. Any
funds not so drawn will be utilized by Lender to reduce the
outstanding principal amount of this loan.
20. No equipment, machinery, or other personalty of Borrower
shall be removed from the premises of Borrower's place of business
without the prior written consent of Lender, except in the ordinary
course of the Borrower's business and disposition of worn-out,
obsolete or unused equipment.
21. Borrower shall provide Lender with quarterly interim
financial statements during the term of This Loan within forty five
(45) days of the end of each calendar quarter.
22. Within 90 days of the end of each fiscal year, Borrower and
Guarantor shall provide Lender with year-end compiled financial
statements during the term of This Loan.
23. In conjunction with Paragraphs 3 and 4 hereof, Borrower
shall provide quarterly job creation reports to Lender and A.I.D.C.
within ten (10) days following the end of each calendar quarter.
24. Borrower covenants, represents and warrants that to the
extent it uses,
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generates, manufactures, stores or disposes of, on, under or about its
manufacturing premises ("Premises") or transports to or from the Premises any
flammable explosives, radioactive materials, hazardous wastes, toxic
substances, or related materials (hereinafter "Hazardous Materials"), it will
do so only in full compliance with the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 1801,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. Section 6901,
et seq.); and all other statutes and regulations governing, defining or
regulating the manner and method of storage, transportation or disposition of
Hazardous Materials. Borrower further agrees to indemnify and hold harmless
Lender, its directors assigns, officers, employees and agents, from and
against any and all liability (i) including foreseeable and unforeseeable
consequential damages, directly or indirectly arising out of use, generation,
storage or disposition of Hazardous Materials by the Borrower or any operator
of the Premises during Borrower's ownership thereof, and (ii) including,
without limitation, the cost of any required or necessary remediation,
repair, cleanup or detoxification and the preparation of any closure or other
required plans, whether such action is required or necessary prior to or
following transfer of title attributable, directly or indirectly, to the
presence or use, generation, storage, release, threatened release, or
disposal of Hazardous Materials by any person on the Premises during
Borrower's ownership thereof, and the Borrower's obligations pursuant to this
indemnity shall survive satisfaction or discharge of this Loan indebtedness,
and shall survive, notwithstanding that the alleged liability of Lender shall
be by reason of any exercise by it of control or dominion over the Premises
or the activities of the Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
LENDER:
JEFFERSON COUNTY, ARKANSAS
BY: /s/ Xxxx Xxxxx
-------------------------------
County Judge
ATTEST:
BY: Xxxxxx Xxxxxxx
-----------------------
TITLE: County Clerk
---------------------
BORROWER:
TSI REDFIELD LABORATORIES, INC.
BY: /s/ Xxxx X. Xxxxx
----------------------------------
TITLE: Treasurer
--------------------------------
00
XXXXXXXXXXXXXX
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF JEFFERSON )
BE IT REMEMBERED, that on this day came before me, the
undersigned Notary Public, within and for the County and State
aforesaid, duly commissioned, qualified and acting, Xxxx Xxxxx and
Xxxxxx Xxxxx who stated that they County Judge and County Clerk of
Jefferson County, Arkansas, duly authorized in their respective
capacity to execute the foregoing instrument for and in the name and
behalf of said Jefferson County, and further stated and acknowledged
that they have so signed, executed and delivered said foregoing
instrument for the consideration, uses and purposes therein mentioned
and set forth.
DATED this 4th day of June, 1997.
/s/ Xxxxxx Xxx Xxxxxxxxx
------------------------------
Notary Public
My Commission Expires:
/s/ 6-14-2005
--------------
[Seal]
00
XXXXXXXXXXXXXX
XXXXX XX Xxxxxxxx )
) ss:
COUNTY OF Pulaski )
BE IT REMEMBERED that on this day came before me, the undersigned
Notary Public, within and for the County and State aforesaid, duly
commissioned, qualified and acting, Xxxx X. Xxxxx who acknowledged
that he is the Treasurer of TSI Redfield Laboratories, Inc. duly
authorized in his respective capacity to execute the foregoing
instrument for and in the name and behalf of said Company, and further
stated and acknowledged that he has so signed, executed and delivered
said foregoing instrument for the consideration, uses and purposes
therein mentioned and set forth.
DATED this 22nd day of May, 1997.
/s/ Xxxx Xxxxxxxx III
--------------------------
Notary Public
My Commission Expires:
09-30-01
---------
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EXHIBIT A
PROMISSORY NOTE
$350,000.00 _____ day of May, 0000
XXXXXX XXXX, XXXXXXXX
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of Jefferson County, Arkansas, the principal sum of Three Hundred
Fifty Thousand and 00/100 dollars ($350,000) with interest on the
outstanding principal amount hereof from September 1, 1997 until
maturity at the rate of five and one half percent (5.5%) per annum.
This indebtedness shall become due and payable as follows:
Provided that the entire principal balance of the loan
evidenced by this Promissory Note is disbursed to the
Borrower prior to August 1, 1997, principal and interest
shall be due and payable in sixty (60) consecutive quarterly
installments of Eight Thousand Six Hundred Four and 58/100's
Dollars each ($8,604.58). The first such installment shall
be due and payable on October 1, 1997 and each successive
quarterly installment shall be due and payable on the first
day of each calendar quarter thereafter.
All payments made hereunder shall be applied first to accrued
interest and any balance to principal.
The indebtedness represented by this Promissory Note is secured,
among other things, by a guaranty agreement and a lien and security
interest in real estate.
The maker, endorsers, sureties, guarantors, and all other persons
now or hereafter liable hereon waive presentment, demand for payment,
protest and notice of dishonor, and the endorsers, sureties, and
guarantors consent that the owner or holder hereof shall have the
right, without notice, to deal in any way at any time with any party
hereto or to grant to any such party any extensions of time for
payment of any of said indebtedness or any other indulgences or
forbearances whatever without in any way affecting the personal
liability of any party hereunder.
If any payment due under this Promissory Note is not paid
within fifteen (15) days after the date payment is due, the
entire principal amount outstanding hereunder together with all
accrued interest thereon shall at once become due and payable,
without notice, at the option of the holder hereof. Failure to
exercise such option shall not constitute a waiver of the right
to exercise such option at any time thereafter. A late charge of
Fifty and 00/100 Dollars ($50.00) will be assessed against the
undersigned for any payments not received within fifteen (15)
days after the due date thereof.
If this obligation, after default, is placed in the hands of
an attorney for collection, the maker will be obligated to pay
the holder hereof an additional sum as attorney's fee, not to
exceed ten percent (10%) of the unpaid principal plus all accrued
interest and all costs and expenses of collection.
This is the Note referred to in, and is entitled to the
benefits of, the Loan Agreement of even date herewith between the
undersigned and original payee named above, as the same may be
amended from time to time, which Loan Agreement, among other
things, contains provisions relating to the prepayment and
acceleration of the maturity hereof, and the adjustment of the
aforesaid interest rate, upon the happening of certain stated
events. Reference is also made to said Loan Agreement, as the
same may be amended from time to time.
The loan evidenced by this Promissory Note was negotiated
and consummated in the State of Arkansas and it is understood and
agreed that the legality, enforceability, and construction hereof
shall be governed by Arkansas law, and to the extent applicable,
by the laws of the United States of America.
TSI Redfield Laboratories, Inc.
By:
Title:
INDUSTRY AND AEROSPACE DEVELOPMENT FUND PROGRAM
GRANT AGREEMENT
PART I - SIGNATORY SHEET
Grantee: Jefferson Counts Grant Control#: IADF-9601
Grant Amount: $350.000 Activity Type: Loan for Industry
GRANTOR GRANTEE
Arkansas Industrial Development Name: Jefferson County
Commission Address: Barraque at Xxxx Xxxxxx, Xxxx
Xxxxx, XX
00000
#1 Capitol Mall, Room 4B 210 County: Jefferson
Xxxxxx Xxxx, Xxxxxxxx 00000 Phone: (000) 000-0000
Phone: (000) 000-0000
1. This Grant Agreement is entered into by the Arkansas
Industrial Development Commission, herein referred to as the
Grantor, and Jefferson County, herein referred to as the Grantee,
for the purpose of providing funds to the Grantee to undertake a
project which will xxxxxx and encourage economic development
pursuant to Acts 59 and 60 of 1992 and its successors. The
Grantee agrees to initiate and complete an IADF project in
accordance with the terms of this Grant Agreement. This Grant
Agreement consists of this Signatory Sheet (Part I), General
Terms and Conditions (Part II), and Scope of Work, Special
Conditions and Budget (Part III), and any attachments referenced
herein.
2. The Grantee Wither warrants it wit-conduct and administer
the grant in accordance with this Grant Agreement and all
applicable State laws and regulations.
3. Approved for the Grantor Approved for the Grantee
BY: BY:
/s/ Del Xxxxxxx /s/ Xxxx Xxxxx
--------------- --------------
Signature Signature
4/23/97 4/21/97
------- -------
Date Date
Del Xxxxxxx Xxxx Xxxxx
Executive Director, AIDC County Judge, Jefferson County
EXHIBIT B
INDUSTRY AND AEROSPACE DEVELOPMENT FUND PROGRAM
GRANT AGREEMENT
PART II - GENERAL TERMS AND CONDITIONS
In consideration of the general terms and conditions hereinafter
contained, the Grantor and the Grantee agree as follows:
1. COMPENSATION AND METHOD OF PAYMENT. The Grantor will utilize
a grant request for payment procedure and will authorize the
Grantee to draw up to $350,000 against a Grant Award through
the State Treasury, consistent with all fiscal requirements
stipulated herein. The Grantee may request and receive authorized
grant funds by submitting appropriate forms and documentation,
subject to approval by the Grantor, for payments of allowable
expenses incurred by the Grantee while undertaking approved
project activities in accordance with this Grant Agreement. These
expenses must be identified by line item categories which
correspond to the line item categories on this Grant Agreement's
Scope of Work-Budget. Requisitions will be mailed to the Grantor,
and the Grantor will review and approve the requisitions before
issuing Payment to the Grantee.
It is expressly understood that the Grantor will honor requests
for payment and disburse funds only to the extent that funds have
been released to the Grantor therefore, consistent with the
requirements of the General Accounting and Budgetary Procedures
Law, the Revenue Stabilization Law and any other applicable
fiscal control laws and regulations promulgated by the Department
of Finance and Administration.
2. LEGAL AUTHORITY. By signing the Grant Agreement Document's
Signatory Sheet, the Grantee certifies that it possesses legal
authority to accept grant funds and to execute the project
described in this Grant Agreement. This act of signing will also
certify that the Grantee will comply with all parts of this
Agreement.
3. WAIVERS. No conditions or provisions of this Grant
Agreement may be waived unless approved by the Grantor, in
writing.
4. ASSIGNABILITY. The Grantee will not assign any interest in
this Grant Agreement and will not transfer any interest in the
same (whether by assignment or novation).
5. SPECIAL CONDITIONS. The Grantee will comply with all special
conditions and attachments incorporated herein to this grant
award. Compliance approval and clearance of special conditions
will be given by the Grantor in writing after receipt and review
of evidence of compliance from the Grantee. Official notification
of a special condition and the Grantor's approval and/or
clearance of special conditions must be retained by the Grantee
in its files.
6. FINANCIAL MANAGEMENT AND ACCOUNTING. The Grantee will
establish and maintain a financial management and accounting
system which conforms to generally accepted accounting principles
and complies with all applicable State requirements.
7. ALLOWABLE COSTS. All costs necessary to carry out the
eligible activities in the project must be consistent with and
not exceed the limitations imposed by special conditions, scope
of work and budget.
8. AMENDMENTS AND MODIFICATIONS. The Grantor will consider
project amendments if they are necessitated by actions beyond the
control of a Grantee. The Grantee may request or the Grantor may
require an amendment or modification of the Grant Agreement.
However, such amendment or modification will not take effect
until approved, in writing, by the Grantor. The Grant must be
signed and returned to AIDC by the Grantee within 3 working days.
The Grantee must request prior approval for all amendments or
modifications. Amendments will not be approved which would
materially alter the circumstances under which the grant was
originally funded.
9. RECORD KEEPING. The Grantee agrees to keep such records as
the Grantor may require. All such records, and other records
pertinent to the grant and work undertaken as part of the
project, will be retained by the Grantee for a period of three
years after the final audit of the program.
10. ACCESS TO RECORDS. The Grantor and duly authorized officials
of the State will have full access and the right to examine any
pertinent documents, papers, records, and books of the Grantee
and of persons or organizations with which the Grantee may
contract, which involve transactions related to this Grant
Agreement. The Grantee's contract with other persons or
organizations must specifically provide for the Grantor's access
to documents as provided herein.
11. REPORTS. The Grantee, at such times and in such forms as
the Grantor may require, will furnish the Grantor with such
periodic reports as it may request pertaining to the activities
undertaken pursuant to this Grant Agreement, the costs and
obligations incurred in connection therewith, and any other
matters covered by this Grant Agreement. Failure to comply will
result in sanction upon Grantee, Administrator, Engineer or Sub
Contractor. This sanction will result in AIDC not working with
said persons for a period of not less than one year or more than
five years and/or a suspension of existing funding.
12. OBLIGATIONS REGARDING THIRD PARTY RELATIONSHIPS. The
Grantee will remain fully obligated under the provisions of the
Grant Agreement notwithstanding its designation of any third
party or parties for the undertaking of all or any part of the
project described herein. Any subcontractor which is not the
Grantee will comply with all lawful requirements of the Grantee
necessary to ensure that the project is carried out in accordance
with the provisions of this Grant Agreement. The Grantee shall
secure all such services in accordance with applicable State law
and the
provisions of this Grant Agreement, and shall notify the
Grantor, in writing, of the method utilized to Secure services,
the name and address of the service provider(s), the scope of
work anticipated and the terms of compensation.
13. CONFLICT OF INTEREST. No officer or employee of the
Grantor, no member, officer, or employee of the Grantee or its
designees or agents, no member of the governing body of the
jurisdiction in which the project is undertaken or located and no
other official of such locality or localities who exercises any
functions or responsibilities with respect to the project during
his tenure, will have any personal or pecuniary gain or interest,
direct or indirect, in any contract or subcontract, or the
proceeds thereof, for work to be performed in connection with the
project assisted under this agreement. The Grantee will
incorporate, or cause to incorporate, in all such contracts or
subcontracts a provision prohibiting such interest pursuant to
the purpose of this provision. The Grantor reserves the right to
waive certain provisions of this clause in the event of a
situation, once justified as unavoidable by the Grantee, and
approved by the Grantor which necessitates such a waiver.
14. POLITICAL ACTIVITY. No portion of the funds provided
hereunder will be used for any partisan political activity or to
further the election or defeat of any candidate for public office
or influence the approval or defeat of any ballot issue.
15. NOTICES. The Grantee will comply with all public notices or
notices to individuals required by applicable State laws.
16. PROHIBITION AGAINST PAYMENTS OF BONUS OR COMMISSION. The
assistance prodded under this Grant Agreement will not be used in
payment of any bonus or commission for the purpose of obtaining
approval of the application for such assistance or any other
approval or concurrence under this Grant Agreement.
17. TERMINATION BY MUTUAL AGREEMENT. This Grant Agreement may be
terminated, in whole or in part, prior to the completion of
project activities when the Grantor determines that continuation
is not feasible or would not produce beneficial results
commensurate with the further expenditure of funds. The Grantee
will not incur new obligations for the terminated portion after
the effective date, and will cancel as many outstanding
obligations as possible. The Grantor will make funds available to
the Grantee to pay for allowable expenses incurred before the
effective date of termination
18. TERMINATION FOR CAUSE. If the Grantee fails to comply with
the terms of the Grant Agreement, or fails to use the grant for
only those purposes set forth herein, the Grantor may:
(a) Suspend Grant Payments - After notice to the Grantee,
suspend the grant and withhold any further payment or
prohibit the Grantee from incurring additional
obligations of grant funds, pending corrective action
by the Grantee or a decision to terminate by the
Grantor.
(b) Terminate in toto - Terminate the grant in whole, or in
part at any time before the final grant payment is
made.
The Grantor will promptly notify the Grantee in writing of its
determination to terminate, the reason for such termination, and
the effective date of the termination. Payments made to the
Grantee or recoveries by the Grantor will be in accordance with
the legal rights and liabilities of the parties.
19. RECOVERY OF FUNDS. In the event of a default or violation of
the terms of the Grant Agreement by the Grantee, the Grantor may
institute actions to recover all or part of the proper funds paid
to the Grantee.
20. DISPUTES. Except as otherwise provided in this agreement,
any dispute concerning a question of fact arising under this
agreement which is not disposed of by provision of the Grant
Agreement, will be decided by the Grantor which will reduce its
decision to writing and mail or otherwise furnish a copy thereof
to the Grantee. The decision of the Grantor will be final and
conclusive. This does not preclude the consideration of questions
of law in connection with decisions provided for in the preceding
paragraph; provided that nothing in this Grant Agreement will be
construed as making final the decision of any administrative
official, representative, or board on a question of law.
21. INDEMNIFICATION. The Grantee will defend, protect, and save
harmless the Grantor from and against all claims, suits, and
actions arising from any act or omission of the Grantee or any
employee or agents of either in the performance of this Grant
Agreement. However, this clause shall not be construed to waive
A.C.A Section 21-9-301 (1991 supp.).
22. SEVERABILITY. If any provision under this Grant Agreement
or its application to any person or circumstances is held invalid
by any court of competent jurisdiction, this invalidity does not
affect other provisions of the Grant Agreement which can be given
effect without the invalid provision.
23. PERFORMANCE. The Grantor's failure to insist upon the strict
performance of any provision of this contract or to exercise any
right based upon breach thereof or the acceptance of any
performance during such breach, will not constitute a waiver of
any rights under this Grant Agreement.
24. ENFORCEMENT. If the Grantor determines that a Grantee's
performance fails to meet the terms and conditions of its Grant
Agreement, several courses of action may be pursued in order to
resolve the problem. The Grantor may take any of the following
actions, severally or in combination:
(a) Request additional information from the Grantee to
verify the nature of inadequate performance;
(b) Conduct a site visit to examine pertinent records and
recommend remedial cause of action;
(c) Issue a letter of warning, advising the Grantee of the
deficiency, recommendations for corrections, date by
which performance must be corrected and notice that
more serious sanctions may be imposed if the situation
continues or is repeated;
(d) Suspend funding of questioned activities until remedies
are effected;
(e) Require reimbursement of funds improperly spent; or
(f) Refer the matter to the Attorney General of Arkansas
with a recommendation that a civil action be
instituted.
25. AUDIT. The Grantee will be responsible for the conduct of a
financial and compliance audit within a reasonable period after
completion of project activities. Such audit may be performed by
a certified public accountant whose services are secured through
open, competitive bidding process or during the course of an
audit conducted by staff of the Legislative Joint Audit
Committee. The Grantor reserves the right to recover any unspent
or questioned balance of grant funds, if any, from the Grantee
after final audit.
26. CLOSE-OUT. The Grantor will advise the Grantee to initiate
close-out procedures when the Grantor determines, in consultation
with the Grantee, that there are no impediments to close-out and
that the following criteria have been met or soon will be met:
(a) All costs to be paid with grant funds have been
incurred with the exception of any unsettled third
party claims against the Grantee. Costs are incurred
when goods and services are received and/or contract
work is performed;
(b) The last required progress report has been submitted.
The Grantee's failure to submit or update will not
preclude the Grantor from effecting close-out if it is
deemed to be in the State's interest. Any excess grant
amount which may be in the Grantee's possession will be
returned in the event of the Grantee's failure to
furnish or update the report; and
(c) Other responsibilities of the Grantee under this Grant
Agreement and any close-out agreement, and applicable
laws and regulations appear to have been carried out
satisfactorily or there is no further State interest in
keeping the grant open for the purpose of securing
performance.
27. The Grantee agrees, as a condition of receiving grant
assistance, to abide by and adhere to any policy directives,
rules, regulations or other requirements which may be
issued from time to time by the Grantor, and which in the opinion of the
Grantor are necessary for efficient or legal execution of the project.
28. The Grantee agrees to see that all work is performed and
completed in a manner consistent with timeliness established at
the Grants inception. Failure to meet these timeliness without
acceptable justification may result in sanction and or obligation
of finding to Grantee and/or Sub Contractors.
PART III - SCOPE OF WORK, SPECIAL CONDITIONS, BUDGET
SECTION A - SCOPE OF WORK
Grantee: Jefferson Counts Amendment# N/A
Grant Control#: IADF-9601 Amendment Date N/A
The project, described more fully herein, consists of a grant to
the Grantee to benefit Genzyme Transgenics Corporation (the
"Company"). The proceeds of the loan will be utilized by the
Company to construct a large animal facility at Redfield
Laboratories. Redfield Laboratories is located at 000 Xxxx Xxxxx
Xxxxxx in Redfield. The Company will create a minimum of eighteen
(18) new jobs with a minimum average annual salary of $23,088 as
a result of the project.
Explanation of Source and Use of Funds
Subject to satisfactory performance of the conditions and
stipulations contained herein, the Grantor will disburse up to
$350,000 to the Grantee, which will be loaned to the Company to
construct a large animal facility.
It is expressly understood that other financial participants in
the project include:
1. Arkansas Capital Corporation (ACC) - $350,000 for construction
2. Xxxxxxx First National Bank - a restructuring of the existing debt
Failure of any other financial participant to execute anticipated
agreements shall constitute grounds to nullify the Grant
Agreement, at the discretion of the Grantor.
Documentation of Financial Obligations
Grantor shall cause the following documents to be prepared:
1. A loan agreement between the Grantee and the Company
reflecting, at a minimum:
a. Maximum principal amount of $350,000;
b. Annual interest rate of 5.5% per annum;
c. Maximum term of 15 years;
d. All loan proceeds must be drawn down and expended no
later than three (3) months from the date of loan
closing. Funds not drawn within the time frame will be
applied to a direct reduction of the principal of the
loan. The total loan amount will then be re-amortized
according to the above referenced repayment schedule.
e. Interest begins accruing on the first day of the fourth
month following loan closing. Principal and interest
payments shall be due and payable quarterly for the
term of the loan.
The quarterly principal and interest payments shall be
calculated based on the amount of loan funds drawn down
three (3) months from the date of loan closing. If the
maximum loan amount is drawn down, the quarterly
payments shall be $8,604.58.
f. No prepayment penalty;
g. Funds may be used only for costs associated with the
construction of the large animal facility.
h. A minimum of eighteen (18) jobs will be created no
later than June 30, 1999, with a minimum average annual
salary of $23,088. Records verifying the salary level
of the jobs created will be maintained by the Company
for use by the Grantor to monitor compliance with state
laws and regulations.
i. If by June 30, 1999, a minimum of eighteen (18) jobs
are not created and this is verified, the Grantor has
the option to declare the loan in default and demand
full payment upon notice to the Company.
j. If by June 30, 1999, the average annual salary level of
the new jobs created is not $23,088, the Grantor has
the option to declare the loan in default and demand
full payment upon notice to the Company.
k. Quarterly interim financial statements due within
forty-five (45) days of the end of each quarter for the
term of the loan;
l. Year-end audited financial statements due within ninety
(90) days of the close of each fiscal year for the term
of the loan.
2. A promissory note between the Grantee and the Company;
3. An assignment of financial interest in the loan, promissory
note, and mortgage to the Grantor;
4. A second mortgage on the facility, in favor of the Grantee,
with proceeds assigned to the Grantor;
5. Such other intents, assurances or certifications as are
necessary, in the opinion of the Grantor, to perfect and
secure the loan.
SECTION B - SPECIAL CONDITIONS
Grantee: Jefferson County
Grant Control #: IADF-9601
1. Funds shall not be disbursed until the following special
conditions are met:
a. The Company provides to the Grantor documentation that
Xxxxxxx First National Bank has extended the terms of
its existing debt to a minimum of ten (10) years.
b. The Company provides to the Grantor documentation of a
$350,000 commitment from the Arkansas Capital
Corporation.
2. In the event of default or violation by the Company, the
Grantee shall be obliged only to assist the Grantor in
pursuing any and all legal remedies to recover any grant
funds received and expended hereunder by the Company. It is
expressly understood that the Grantor shall not require any
financial remedy by the Grantee for any failure of
obligation by the Company.
SECTION C - BUDGET
Grantee: Jefferson County Amendment#: N/A
Grant Control#: IADF-9601 Amendment Date: N/A
Category: Industry and Aerospace
Activity: Loan for Industry
Cost Classification Source(s) of Funds Cost Classification
Sub-Costs IADF ACC Total
Loan to Industry
Construction 350,000 350,000 700,000
Totals 350,000 350,000 700 000
