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EXHIBIT 10.8(a)
This instrument has been prepared by and when
recorded should be returned to:
Xxxxxxx X. Xxxxx
Xxxxxxx and Xxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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LEASE AGREEMENT
dated as of December 1, 1994
between
COUNTIES OF XXXXXX AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
and
XXXXXXXX MICRO SCIENCE, INC.
-----------------------------------------
$5,300,000
Counties of Xxxxxx and Washington
Industrial Development Agency
Industrial Development Revenue Bonds, Series 1994
(Xxxxxxxx Micro Science, Inc. Project)
-----------------------------------------
================================================================================
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LEASE AGREEMENT
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................................................... 1
ARTICLE II REPRESENTATIONS................................................................................ 3
Section 2.1. Representations of Issuer.............................................................. 3
Section 2.2. Representations of Company............................................................. 4
ARTICLE III ISSUANCE OF BONDS; THE PROJECT................................................................. 5
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds.................................. 5
Section 3.2. Acquisition and Construction of Project................................................. 5
Section 3.3. Disbursements from the Construction Fund................................................ 6
Section 3.4. Establishment of Completion Date; Obligation
of Company to Complete.................................................................. 7
Section 3.5. Investment of Moneys.................................................................... 9
Section 3.6. Operation of the Project................................................................ 10
ARTICLE IV LEASE OF PROJECT............................................................................... 10
Section 4.1. Lease.................................................................................. 10
Section 4.2. Rental Payments........................................................................ 10
Section 4.3. Additional Rental Payments............................................................. 11
Section 4.4. Prepayments............................................................................ 11
Section 4.5. Obligations of Company Unconditional................................................... 12
Section 4.6. Letter of Credit....................................................................... 12
Section 4.7. Purchase of Bonds Prohibited........................................................... 13
Section 4.8. Mode Conversions....................................................................... 13
ARTICLE V OTHER COMPANY AGREEMENTS...................................................................... 13
Section 5.1. Maintenance of Existence............................................................... 13
Section 5.2. Qualification in State................................................................. 13
Section 5.3. Arbitrage.............................................................................. 13
Section 5.4. Company's Obligation with Respect to Exclusion
of Interest Paid on the Bonds.......................................................... 14
Section 5.5. Financing Statements................................................................... 14
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ARTICLE VI NO RECOURSE TO ISSUER; INDEMNIFICATION................................................................ 14
Section 6.1. No Recourse to Issuer........................................................................ 14
Section 6.2. Indemnification.............................................................................. 14
ARTICLE VII PROJECT COVENANTS..................................................................................... 15
Section 7.1. Insurance................................................................................... 15
Section 7.2. Prohibition of Liens........................................................................ 15
Section 7.3. Maintenance, Repairs, Replacements and Removals............................................. 15
Section 7.4. Inspection of the Project................................................................... 16
Section 7.5. Granting of Easements....................................................................... 16
Section 7.6. Compliance with Governmental Regulations.................................................... 16
Section 7.7. Trustee's Right to Perform.................................................................. 16
Section 7.8. Identification of Property.................................................................. 17
Section 7.9. Use of Premises............................................................................. 17
Section 7.10. Casualty; Condemnation...................................................................... 17
Section 7.11. Taxes and Assessments....................................................................... 17
ARTICLE VIII ASSIGNMENT OR SUBLEASE................................................................................ 17
Section 8.1. Assignment or Sublease by Company............................................................ 17
Section 8.2. Assignment by Issuer......................................................................... 18
ARTICLE IX DEFAULTS AND REMEDIES................................................................................. 18
Section 9.1. Events of Default; Remedies.................................................................. 18
Section 9.2. Delay Not Waiver; Remedies................................................................... 18
Section 9.3. Attorneys' Fees and Expenses................................................................. 18
ARTICLE X MISCELLANEOUS......................................................................................... 18
Section 10.1. Notices.................................................................................... 18
Section 10.2. Binding Effect............................................................................. 19
Section 10.3. Severability............................................................................... 19
Section 10.4. Amendments................................................................................. 19
Section 10.5. Right of Company to Perform Issuer's Agreements............................................ 19
Section 10.6. Expiration of Rights of Bank............................................................... 19
Section 10.7. Applicable Law............................................................................. 19
Section 10.8. Captions; References to Sections........................................................... 19
Section 10.9. Complete Agreement......................................................................... 19
Section 10.10. Termination................................................................................ 19
Section 10.11. Counterparts............................................................................... 20
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EXHIBIT A -- LEGAL DESCRIPTION.................................................................................. A-1
EXHIBIT B -- PROJECT DESCRIPTION................................................................................ B-1
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LEASE AGREEMENT dated as of December 1, 1994, between COUNTIES
OF XXXXXX AND WASHINGTON INDUSTRIAL DEVELOPMENT AGENCY, a
corporate governmental agency constituting a body corporate
and politic and a public benefit corporation of the State of
New York (the "Issuer"), and XXXXXXXX MICRO SCIENCE, INC., a
Delaware corporation (the "Company").
WHEREAS, the Issuer is authorized by the New York State Industrial
Development Agency Act, Title I of Article 18-A of the New York State General
Municipal Law, as amended, and Chapter 862 of the Laws of 1971 of the State of
New York (collectively, the "Act"), to provide financing for a "Project," as
defined in the Act, located within the jurisdiction of the Issuer; and
WHEREAS, the Issuer proposes to issue $5,300,000 Industrial Development
Revenue Bonds, Series 1994 (Xxxxxxxx Micro Science, Inc. Project) pursuant to
the Indenture in order to provide funds to finance the acquisition,
construction, rehabilitation and equipping of certain industrial development
facilities more particularly described in Exhibit B hereto (the "Project"); and
WHEREAS, the Issuer proposes to lease the Project to the Company, and
the Company desires to lease the Project from the Issuer;
Accordingly, the Issuer and the Company hereby agree as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Agreement, unless the context clearly requires
otherwise, all terms defined in Article I of the Indenture have the same
meanings in this Agreement.
"Authorized Company Representative" shall mean any person designated by
the Company to act on behalf of the Company pursuant to a written instrument
filed with the Trustee, the Issuer and the Bank containing the specimen
signature of such person. Such instrument may designate an alternate or
alternates.
"Completion Date" means the date the acquisition, construction,
rehabilitation and equipping of the Project is certified to be complete in
accordance with the provisions of Section 3.4 hereof.
"Construction Period" means the period between the beginning of
construction or the date on which Bonds are first delivered to the purchasers
thereof, whichever is earlier, and the Completion Date.
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"Cost of the Project" means the sum of the items authorized to be paid
from the Construction Fund pursuant to the provisions of Section 3.3 hereof.
"Indenture" means the Indenture of Trust relating to the Bonds, dated
as of the date of this Agreement, between the Issuer and Xxxxxx Bank and Trust
Company, as Trustee, as such Indenture of Trust may be amended or supplemented
from time to time in accordance with its terms.
"Industrial Building" means, the buildings, structures and related
facilities constructed on the Premises as part of the Project. It is recognized
that the term, within the meaning of the Act, also comprehends machinery and
equipment, which are referred to in this instrument as Leased Equipment.
"Leased Equipment" means those items of machinery, equipment and other
personal property acquired from the proceeds of the sale of the Bonds or the
proceeds of any payment, if any, by the Company pursuant to Section 7.3 hereof,
which property is generally described in Exhibit B attached hereto.
"Permitted Encumbrances" means, as of any particular time, (i) liens
for ad valorem taxes and impositions not then delinquent, (ii) this Lease
Agreement and the Indenture, (iii) those utility, access and other easements and
rights-of-way, restrictions, reservations, reversions and exceptions which, in
the opinion of the Company, will not materially reduce the value of the Project
or interfere with or impair the operations being conducted therein (or, if no
operations are being conducted therein, the operations for which the Project
were designed), (iv) such minor defects, irregularities, encumbrances,
easements, rights-of-way, and clouds on title as normally exist with respect to
properties similar in character to the Project and as do not in the aggregate,
in the opinion of the Company, materially reduce the value of the Project or
materially impair the property affected thereby for the purpose for which it was
acquired or is held, including those exceptions listed in the Endorsement to
ALTA owner's title policy No. 9303-04727, issued by Chicago Title Insurance
Company, dated March 28, 1994, and (v) all leases, subleases, liens and
encumbrances on the Premises in existence on the effective date of this
Agreement.
"Premises" means the real property described in Exhibit A.
"Project" means the Premises, the Industrial Building and the Leased
Equipment, if any, more specifically described in Exhibit B hereto.
"Qualified Costs of Construction" means that portion of the Cost of the
Project which is chargeable to the Project's capital account for Federal income
tax purposes or which would be so chargeable either with a proper election by
the Company under the Code or but for a proper election by the Company to deduct
such amount and which were incurred and paid, or are to be incurred and paid,
after November 22, 1993.
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ARTICLE II
REPRESENTATIONS
Section 2.1. Representations of Issuer. The Issuer represents as follows:
(a) The Issuer (1) is a corporate governmental agency
constituting a body corporate and politic and a public benefit
corporation duly organized and existing under the laws of the State,
(2) has full power and authority to enter into the transactions
contemplated by this Agreement, the Tax Agreement, the Offering
Agreement and by the Indenture and to carry out its obligations under
this Agreement, the Tax Agreement, the Offering Agreement and the
Indenture, including the issuance of the Bonds, (3) is not in default
under any provisions of the laws of the State and (4) by proper
corporate action has duly authorized the execution and delivery of this
Agreement, the Bonds, the Tax Agreement, the Offering Agreement and the
Indenture.
(b) Under existing statutes and decisions, no taxes on income
or profits are imposed on the Issuer. The Issuer will not knowingly
take or omit to take any action reasonably within its control which
action or omission would impair the exclusion of interest paid on the
Bonds from the federal gross income of the owners of the Bonds.
(c) Neither the execution and delivery by the Issuer of this
Agreement, the Indenture, the Tax Agreement or the Offering Agreement
nor the consummation by the Issuer of the transactions contemplated
hereby or thereby conflicts with, will result in a breach of or default
under or will (except with respect to the lien of the Indenture) result
in the imposition of any lien on any property of the Issuer pursuant to
the terms, conditions or provisions of any statute, order, rule,
regulation, agreement or instrument to which the Issuer is a party or
by which it is bound.
(d) Each of this Agreement, the Tax Agreement, the Offering
Agreement and the Indenture has been duly authorized, executed and
delivered by the Issuer and each constitutes the legal, valid and
binding obligation of the Issuer enforceable against the Issuer in
accordance with its terms.
(e) There is no litigation or proceeding pending, 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, the Indenture, the Tax Agreement, the
Offering Agreement or the Bonds or the ability of the Issuer to comply
with its obligations under this Agreement, the Indenture, the Tax
Agreement, the Offering Agreement or the Bonds.
(f) The Issuer is not in default under any of the provisions
of the laws of the State which would affect its existence or its powers
referred to in the preceding subsection (a).
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(g) The Issuer hereby finds and determines that, based on
representations of the Company, all requirements of the Act have been
complied with and that the financing of the Project through the
issuance of the Bonds will further the public purposes of the Act.
(h) No member, director, officer or official of the Issuer has
any interest (financial, employment or other) in the Company or the
transactions contemplated by this Agreement.
(i) The Issuer will apply the proceeds from the sale of the
Bonds as specified in the Indenture and this Agreement. So long as any
of the Bonds remain outstanding and except as may be authorized by the
Indenture, the Issuer will not issue or sell any bonds or obligations,
other than the Bonds, the principal of or premium, if any, or interest
on which will be payable from the property described in the granting
clause of the Indenture.
(j) The Project will be wholly located within the Town of
Xxxxxxxxx, Washington County, New York.
(k) The representations and warranties of the Issuer contained
in the Offering Agreement are incorporated by reference herein and are
true and correct in all material respects on the Closing Date.
Section 2.2. Representations of Company. The Company represents as
follows:
(a) The Company (1) is a corporation duly incorporated and in
good standing in the state of Delaware, (2) is duly qualified to
transact business and in good standing in the State, (3) is not in
violation of any provision of its certificate of incorporation or its
by-laws, (4) has full corporate power to own its properties and conduct
its business, (5) has full legal right, power and authority to enter
into this Agreement, the Reimbursement Agreement, the Remarketing
Agreement, the Guaranty, the Tax Agreement and the Offering Agreement
and consummate all transactions contemplated by this Agreement, the
Reimbursement Agreement, the Remarketing Agreement, the Guaranty, the
Tax Agreement and the Offering Agreement and (6) by proper corporate
action has duly authorized the execution and delivery of this
Agreement, the Reimbursement Agreement, the Remarketing Agreement, the
Guaranty, the Tax Agreement and the Offering Agreement.
(b) Neither the execution and delivery by the Company of this
Agreement, the Reimbursement Agreement, the Remarketing Agreement, the
Guaranty, the Tax Agreement or the Offering Agreement nor the
consummation by the Company of the transactions contemplated hereby or
thereby conflicts with, will result in a breach of or default under or
will result in the imposition of any lien on any property of the
Company pursuant to the certificate of incorporation or by-laws of the
Company or the terms, conditions or provisions of any statute, order,
rule, regulation, agreement or instrument to which the Company is a
party or by which it is bound.
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(c) This Agreement, the Reimbursement Agreement, the
Remarketing Agreement, the Guaranty, the Tax Agreement and the Offering
Agreement have been duly authorized, executed and delivered by the
Company and constitute the legal, valid and binding obligations of the
Company in accordance with its terms.
(d) There is no litigation or proceeding pending, or to the
knowledge of the Company threatened, against the Company which could
adversely affect the validity of this Agreement, the Reimbursement
Agreement, the Remarketing Agreement, the Guaranty, the Tax Agreement
or the Offering Agreement or the ability of the Company to comply with
its obligations under this Agreement, the Reimbursement Agreement, the
Remarketing Agreement, the Guaranty, the Tax Agreement or the Offering
Agreement.
(e) The information contained in the Tax Agreement, the
Project Certificate and all other written information relating to the
Project provided by the Company to the Issuer and bond counsel for the
Bonds is true and correct.
(f) The Project will be located wholly within the corporate
limits of the Town of Xxxxxxxxx, Washington County, New York.
(g) The representations and warranties of the Company
contained in the Offering Agreement are incorporated by reference
herein and are true and correct in all material respects on the Closing
Date.
ARTICLE III
ISSUANCE OF BONDS; THE PROJECT
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds. In
order to provide funds to finance the Cost of the Project, the Issuer agrees
that it will issue under the Indenture, sell and cause to be delivered, the
Bonds, bearing interest and maturing as set forth in the Indenture. The Issuer
will thereupon cause the proceeds received from the sale of the Bonds to be
deposited into the Construction Fund in accordance with Section 5.01 of the
Indenture.
Section 3.2. Acquisition and Construction of Project. The Company has
conveyed the Premises to the Issuer and the Company, as agent of the Issuer,
hereby agrees to acquire, construct, rehabilitate and equip the Project in
accordance with this Article III, substantially in accordance with the plans and
specifications therefor prepared by it including any and all supplements,
amendments and additions (or deletions) thereto (or therefrom); provided,
however, that such other facilities and property contemplated by such
supplements, amendments, additions or deletions to the plans and specifications
shall not materially impair the effective use or character of the Project as
contemplated by this Agreement or disqualify the Project as a "Project" within
the meaning of the Act or result in the interest on any Bonds becoming
includable in the gross income of the owners of the Bonds for Federal income tax
purposes.
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In the event that Exhibit A or Exhibit B hereto is to be amended or
supplemented in accordance with the provisions of Section 9.01 of the Indenture,
the Issuer will enter into, and will instruct the Trustee to consent to, an
amendment of or supplement to Exhibit A or Exhibit B hereto upon receipt of:
(i) a copy of the proposed form of amendment or supplement to
Exhibit A or Exhibit B hereto; and
(ii) the written approving opinion of Bond Counsel to the
effect that such amendment or supplement will not have the effect of
disqualifying the Project as a "project" within the meaning of the Act
or result in the interest on any Bonds becoming includable in the gross
income of the owners of the Bonds for Federal income tax purposes.
Section 3.3. Disbursements from the Construction Fund. The Issuer
authorizes and directs the Trustee upon compliance with Section 5.10 of the
Indenture to disburse the moneys in the Construction Fund to or on behalf of the
Company for the following purposes:
(a) Payment to the Company of such amounts, if any, as shall
be necessary to reimburse the Company for advances and payments made by
it prior to or after the delivery of the Bonds for expenditures in
connection with the preparation of plans and specifications for the
Project (including any preliminary study or planning of the Project or
any aspect thereof) and the acquisition, construction, rehabilitation
or equipping of the Project.
(b) Payment of the initial or acceptance fee of the Trustee,
fees of the Trustee and any paying agent incurred during the
Construction Period, fees relating to the underwriting or placement of
the Bonds, legal, financial and accounting fees and expenses, printing
and engraving costs incurred in connection with the authorization, sale
and issuance of the Bonds, the execution and filing of the Indenture
and the preparation of all other documents in connection therewith, and
payment of all fees, costs and expenses for the preparation of this
Agreement, the Indenture, the Bonds and all related agreements and
instruments.
(c) Payment for labor, services, materials and supplies used
or furnished in the acquisition, construction, rehabilitation or
equipping of the Project, all as provided in the plans, specifications
and work orders therefor, payment for the cost of the construction,
acquisition and installation of utility services or other facilities,
and acquisition and installation of all real and personal property
deemed necessary in connection with the Project and payment for the
miscellaneous capitalized expenditures incidental to any of the
foregoing items.
(d) Payment of the fees, if any, for architectural,
engineering, legal, printing, underwriting and supervisory services
with respect to the Project.
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(e) To the extent not paid by a contractor for construction
with respect to any part of the Project, payment of the premiums on all
insurance required to be taken out and maintained during the
Construction Period.
(f) Payment of the taxes, assessments and other charges, if
any, that may become payable during the Construction Period with
respect to the Project, or reimbursement thereof if paid by the
Company.
(g) Payment of expenses incurred in seeking to enforce any
remedy against any contractor or subcontractor in respect of any
default under a contract relating to the Project.
(h) Interest on the Bonds during the Construction Period (or
reimbursement of the Bank for draws under the Letter of Credit to pay
such interest).
(i) Fees of the Bank during the Construction Period for the
issuance of the Letter of Credit.
(j) Payment of any other costs permitted by the Act which will
not affect the exemption from Federal income taxes of interest on the
Bonds.
All moneys remaining in the Construction Fund after the Completion Date
and after payment or provision for payment of all other items provided for in
the preceding subsections (a) to (j), inclusive, of this Section, shall at the
direction of the Company be used in accordance with Section 3.4 hereof.
Each of the payments referred to in this Section shall be made upon
receipt by the Trustee of a written order complying with the form set forth in
Section 5.10 of the Indenture signed by the Authorized Company Representative.
The Company covenants and agrees that it will cause at least 95% of the
moneys in the Construction Fund (including any earnings on investment of such
moneys) to be disbursed for Qualified Costs of Construction and all of such
proceeds to be disbursed for costs permitted by the Act. The Company further
covenants that no more than $106,000 of the moneys in the Construction Fund will
be disbursed for payment of issuance costs within the meaning of the Code.
Section 3.4. Establishment of Completion Date; Obligation of Company to
Complete. The Completion Date shall be evidenced to the Trustee and the Issuer
by a certificate signed by the Authorized Company Representative stating the
Completion Date and the Cost of the Project and stating that (i) construction of
the Project has been completed substantially in accordance with the plans,
specifications and work orders therefor and all labor, services, materials and
supplies used in such construction have been paid for (other than costs and
expenses for which payment has been withheld), (ii) all other facilities
necessary in connection with the Project have been constructed, acquired and
installed in accordance with the plans, specifications and work orders therefor
and all costs and expenses incurred in connection therewith (other than costs
and
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expenses for which payment has been withheld) have been paid and (iii) at least
95% of the costs previously disbursed and to be disbursed from the Construction
Fund (including moneys to be disbursed in accordance with the next succeeding
paragraph of this Section 3.4) are Qualified Costs of Construction, and all of
such costs are costs permitted by the Act. The Company may withhold payment and
direct the Trustee to retain in the Construction Fund an amount sufficient to
pay any Cost of the Project which has been incurred; such retained moneys shall
be disbursed after the Completion Date in the manner provided in Section 3.3
hereof. If the Company withholds the payment of any such cost or expense of the
Project the certificate shall state the amount of such withholding and the
reason therefor. Notwithstanding the foregoing, such certificate may state that
it is given without prejudice to any rights against third parties which exist at
the date of such certificate or which may subsequently come into being. It shall
be the duty of the Company to cause such certificate to be furnished to the
Trustee within 60 days after the Project shall have been completed.
Moneys (including investment proceeds) remaining in the Construction
Fund on the date of such certificate may be used, at the direction of the
Authorized Company Representative, to the extent indicated, for one or more of
the following purposes:
(1) for the payment, in accordance with the provisions of this
Agreement, of any Cost of the Project not theretofore paid, as
specified in the above-mentioned completion certificate; or
(2) for transfer to the Bond Fund, but only if, and to the
extent that, the Trustee has been furnished with an opinion of Bond
Counsel to the effect that such transfer is lawful under the Act and
does not adversely affect the exclusion from Federal gross income of
interest on any of the Bonds.
Any moneys (including investment proceeds) remaining in the
Construction Fund on the date of the aforesaid certificate and not set aside for
the payment of Costs of the Project as specified in (1) above or transferred to
the Bond Fund pursuant to (2) above shall on such date be deposited by the
Trustee in a separate escrow account and used to pay all or part of the
redemption price of Bonds at the earliest redemption date or dates on which
Bonds may be redeemed without the payment of a premium or, at the option of the
Company, at an earlier redemption date or dates; provided that, until so used
such moneys may also be used, at the direction of the Authorized Company
Representative, for one or more of the following purposes:
(a) to pay all or part of the price of purchasing Bonds on
tender, in the open market or at private sale, at a purchase price not
in excess of 100% of the principal amount of such Bonds plus accrued
interest to the date of such purchase for the purpose of cancellation;
(b) for the payment of qualifying costs of any additional
improvements to be installed or constructed on the Project site,
provided that such use of funds is permitted under the Act; or
(c) for any other purpose permitted by the Act;
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provided, that the earnings on the investment of the moneys on deposit in such
escrow account shall be transferred on each interest payment date on the Bonds
to the Bond Fund and shall be used to pay interest on the Bonds coming due on
each interest payment date on the Bonds (or to reimburse the Bank for draws
under the Letter of Credit to pay interest on the Bonds), but no moneys on
deposit in such escrow account may be used for any of the purposes specified in
this paragraph (including the redemption of Bonds) unless and until the Trustee
has been furnished with an opinion of Bond Counsel to the effect that such use
is lawful under the Act and does not adversely affect the exclusion from gross
income for Federal income tax purposes of the interest on any of the Bonds; and
provided further that, until used for one or more of the foregoing purposes,
moneys on deposit in such escrow account may be invested in investments
authorized by Section 3.5 of this Agreement, but may not be invested to produce
a yield on such moneys (computed from the Completion Date and taking into
account any investment of such moneys during the period from the Completion Date
until such moneys were deposited in such escrow account) greater than the yield
on the Bonds from which such proceeds were derived, all as such terms are used
in and determined in accordance with Section 103(c) of the Code and regulations
promulgated thereunder.
In the event the moneys in the Construction Fund available for payment
of the Costs of the Project should not be sufficient to pay the costs thereof in
full, the Company agrees to pay directly, or to deposit in the Construction Fund
moneys sufficient to pay, the costs of completing the Project as may be in
excess of the moneys available therefor in the Construction Fund. The Issuer
does not make any warranty, either express or implied, that the moneys which
will be paid into the Construction Fund and which, under the provisions of this
Agreement, will be available for payment of the Costs of the Project, will be
sufficient to pay all the costs which will be incurred in that connection. The
Company agrees that if after exhaustion of the moneys in the Construction Fund
the Company should pay, or deposit moneys in the Construction Fund for the
payment of, any portion of the said costs of the Project pursuant to the
provisions of this Section it shall not be entitled to any reimbursement
therefor from the Issuer or from the Trustee or from the owners of any of the
Bonds, nor shall it be entitled to any diminution of the amounts payable under
Article IV hereof.
Section 3.5. Investment of Moneys. Any moneys held as a part of the
Bond Fund or the Construction Fund shall be invested or reinvested by the
Trustee, at the direction of the Authorized Company Representative as provided
in Section 5.05 of the Indenture and in the Tax Agreement, to the extent
permitted by law in Qualified Investments. Any such investment may be purchased
at the offering or market price thereof at the time of such purchase. The
Trustee may make any and all such investments through its own bond department.
The investments so purchased shall be held by the Trustee and shall be
deemed at all times a part of the fund for which they were made and the interest
accruing thereon and any profit realized therefrom shall be credited to such
fund and any net losses resulting from such investment shall be charged to such
fund and paid by the Company.
Although the Company recognizes that it may obtain a broker
confirmation or written statement containing comparable information at no
additional cost, the Company hereby agrees
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that confirmations of investments made by the Trustee pursuant to Section 4.07
of the Indenture are not required to be issued by the Trustee for each month in
which a monthly statement is rendered. No such statement need be rendered
pursuant to the provisions hereof if no activity occurred in the fund or account
during such preceding month.
Section 3.6. Operation of the Project. The Company will not, nor will
it allow any lessee or other user of the Project to, make any material change in
its use of the Project unless the Trustee and the Issuer receive an opinion of
Bond Counsel to the effect that such change will not impair the exclusion of
interest on the Bonds from the gross income of holders of the Bonds for federal
income tax purposes.
The Company will agree to operate the Project, or cause any lessee or
other user of the Project to operate the Project, as a "project" as contemplated
by the Act and in such a manner that it will not impair the exclusion of
interest on the Bonds from gross income of the holders of the Bonds for federal
income tax purposes.
Upon a sale of all or any portion of the Company's interest in the
Project (to the extent permitted hereunder), the Company will obtain the
agreement of the purchaser of the Project or any interest therein to comply with
the provisions of this Agreement, regardless of whether such purchaser assumes
the obligations of the Company under this Agreement generally.
ARTICLE IV
LEASE OF PROJECT; RENTAL PAYMENTS
Section 4.1. Lease; Issuance of Bonds. From and after the effective
date of this Agreement and until the term of this Agreement has expired, the
Issuer hereby leases to the Company and the Company hereby leases from the
Issuer the Project, subject to Permitted Encumbrances, for the rental set forth
in Section 4.2. In order to finance the costs of the Project, the Issuer will
issue, sell and deliver the Bonds to the initial purchasers thereof and deposit
the proceeds of the Bonds with the Trustee as provided in Section 5.01 of the
Indenture. The Issuer authorizes the Trustee to disburse the proceeds of the
Bonds in accordance with Section 5.01 of the Indenture. The Company hereby
approves the Indenture and the issuance by the Issuer of the Bonds.
Section 4.2. Rental Payments. In consideration for the lease of the
Project from the Issuer to the Company, the Company agrees to make rental
payments as follows:
(a) Principal, Premium and Interest. On or before 11:00 a.m.
(local time at the principal corporate office of the Trustee) on each
day on which any payment of principal of, premium, if any or interest
on the Bonds shall become due (whether on an interest payment date, at
maturity, or upon redemption or acceleration or otherwise), the Company
will pay, in immediately available funds, an amount which, together
with other moneys held by the Trustee in the Bond Fund and available
therefor (including, without limitation, proceeds of draws under the
Letter of Credit), will enable the Trustee to make such payment in full
in a timely manner. If the Company defaults in any payment
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required by this Section, the Company will pay interest (to the extent
allowed by law) on such amount until paid at the rate provided for in
the Bonds.
(b) Purchase Price. The Company agrees to pay to the Tender
Agent (or if the Bonds are in the Book Entry System, the Trustee)
amounts sufficient to pay the purchase price of Bonds on each optional
or mandatory tender date pursuant to Section 2.03 or 2.04 of the
Indenture, provided the Company shall receive a credit for the amount
of remarketing or Letter of Credit proceeds available for such purpose
under the Indenture on each such date.
In furtherance of the foregoing, so long as any Bonds are outstanding
the Company will pay all amounts required to prevent any deficiency or default
in any payment of the principal or purchase price of, premium, if any, or
interest on the Bonds, including any deficiency caused by an act or failure to
act by the Trustee, the Company, the Issuer or any other person.
All amounts payable under this Section by the Company are assigned by
the Issuer to the Trustee pursuant to the Indenture for the benefit of the
Bondholders. The Company consents to such assignment. Accordingly, the Company
will pay directly to the Trustee (or in the case of the purchase price of Bonds
when the Bonds are not in a Book Entry System, to the Tender Agent) at its
principal corporate trust office all payments payable by the Company pursuant to
this Section.
The Company will pay all amounts owing to the Bank under the
Reimbursement Agreement directly to the Bank when due and no such payment shall
be made to the Trustee.
Section 4.3. Additional Rental Payments. As additional rental payments
for the Project, the Company will also pay the following within 45 days after
receipt of a xxxx therefor:
(a) The reasonable fees and expenses of the Issuer in
connection with this Agreement and the Bonds, such fees and expenses to
be paid directly to the Issuer; provided that the Company shall have
approved such expenses in writing prior to their incurrence.
(b) (i) The reasonable fees and expenses of the Trustee, the
Tender Agent and all other fiduciaries and agents serving under the
Indenture (including any expenses in connection with any redemption of
the Bonds), and (ii) all reasonable fees and expenses, including
attorneys' fees, of the Trustee for any extraordinary services rendered
by it under the Indenture. All such fees and expenses are to be paid
directly to the Trustee or other fiduciary or agent for its own account
as and when such fees and expenses become due and payable.
(c) The fees and expenses of the Remarketing Agent in
accordance with the terms of the Remarketing Agreement.
Section 4.4. Prepayments; Payment in Full of Bonds and Purchase of the
Project. The Company may prepay to the Trustee all or any part of the amounts
payable under Section 4.2(a)
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at any time, provided that the Bonds shall be subject to redemption solely as
provided in the Indenture and the Bonds. A prepayment shall not relieve the
Company of its obligations under this Agreement until all the Bonds have been
paid or provision for the payment of all the Bonds has been made in accordance
with the Indenture. In the event of a mandatory redemption of the Bonds, the
Company will prepay all amounts necessary for such redemption. In the event that
the Company pays all of the amounts payable pursuant to Section 4.2 hereof and
the Bonds are no longer Outstanding, such payment shall constitute the purchase
of the Project by the Company.
At such time as the Company purchases the Project as described above or
upon the expiration of the term of this Agreement when no Bonds are Outstanding,
the Issuer will deliver to the Company documents conveying to the Company legal
title to the Project, as it then exists, subject to the following: (i) those
liens and encumbrances (if any) to which title to said property was subject on
the date hereof; (ii) those liens and encumbrances created by the Company or to
the creation or suffering of which the Company consented; (iii) those liens and
encumbrances resulting from the failure of the Company to perform or observe any
of the agreements on its part contained in this Agreement; and (iv) Permitted
Encumbrances other than this Agreement.
The Company hereby agrees to purchase and the Issuer hereby agrees to
sell, the Project at such time as no Bonds are Outstanding within the meaning of
the Indenture. The payment in full of the Bonds shall constitute full
consideration for the purchase and sale of the Project and no further
consideration or obligations shall be due hereunder.
Section 4.5. Obligations of Company Unconditional. The obligations of
the Company to make the payments required by Sections 4.2 and 4.4 and to perform
its other obligations contained in this Agreement shall be absolute and
unconditional. Until the principal of and interest on the Bonds shall have been
fully paid or provision for the payment of the Bonds made in accordance with the
Indenture, the Company (a) will not suspend or discontinue any payments provided
for in Section 4.2 hereof, (b) will perform all its other obligations in this
Agreement and (c) will not terminate this Agreement for any cause including any
acts or circumstances that may constitute failure of consideration, defect in
Issuer's title to the Project, destruction of or damage to the Project, the
taking by eminent domain of title to or temporary use of any or all of 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.
Section 4.6. Letter of Credit. The Company shall provide for the
delivery of the Initial Letter of Credit to the Trustee simultaneously with the
original issuance and delivery of the Bonds. The Company may provide for the
delivery of an Alternate Credit Facility in substitution or replacement for the
then existing Letter of Credit or Alternate Credit Facility but only in
accordance with Section 5.03 of the Indenture.
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Section 4.7. Purchase of Bonds Prohibited. So long as a Letter of
Credit is in effect, the Company shall not, directly or indirectly, purchase any
Bonds with any funds that do not constitute Available Moneys, except as required
by Section 4.2(b) of this Agreement.
Section 4.8. Mode Conversions. The Company has the option to cause the
interest rate on the Bonds to be converted from one Mode to another or from an
Adjustable Rate Period of one duration to an Adjustable Rate Period of the same
or a different duration. Such option may be exercised by the Company as provided
in the Indenture.
ARTICLE V
OTHER COMPANY AGREEMENTS
Section 5.1. Maintenance of Existence. The Company agrees that during
the term of this Agreement and so long as any Bond is outstanding, it will
maintain its corporate existence, will continue to be a corporation in good
standing under the laws of the State of Delaware and the State, will not
dissolve or otherwise dispose of all or substantially all of its assets and will
not consolidate with or merge into another legal entity or permit one or more
other legal entities (other than one or more subsidiaries of the Company) to
consolidate with or merge into it, or sell or otherwise transfer to another
legal entity all or substantially all its assets as an entirety and dissolve,
unless (a) in the case of any merger or consolidation, the Company is the
surviving corporation, or (b)(i) the surviving, resulting or transferee legal
entity is organized and existing under the laws of the United States, a state
thereof or the District of Columbia, and (if not the Company) assumes in writing
all the obligations of the Company under this Agreement, the Remarketing
Agreement and the Tax Agreement and (ii) no event which constitutes, or which
with the giving of notice or the lapse of time or both would constitute an Event
of Default shall have occurred and be continuing immediately after such merger,
consolidation or transfer.
Section 5.2. Qualification in State. Subject to the provisions of
Section 5.1 hereof, the Company agrees that throughout the term of this
Agreement, it will remain qualified to do business in the State.
Section 5.3. Arbitrage. The Company covenants with the Issuer and for
and on behalf of the purchasers and owners of the Bonds from time to time
outstanding that so long as any of the Bonds remain outstanding, moneys on
deposit in any fund in connection with the Bonds, whether or not such moneys
were derived from the proceeds of the sale of the Bonds or from any other
sources, will not be used in a manner which will cause the Bonds to be
"arbitrage bonds" within the meaning of Section 148 of the Code, and any lawful
regulations promulgated thereunder, as the same exist on this date, or may from
time to time hereafter be amended, supplemented or revised. The Company also
covenants for the benefit of the Bondholders to comply with all of the
provisions of the Tax Agreement and the Project Certificate. The Company
reserves the right, however, to make any investment of such moneys permitted by
State law, if, when and to the extent that said Section 148 or regulations
promulgated thereunder shall be repealed or relaxed or shall be held void by
final judgment of a court of competent jurisdiction, but only if any investment
made by virtue of such repeal, relaxation or decision
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would not, in the written opinion of Bond Counsel, result in making the interest
on the Bonds includable in the federal gross income of the owners of the Bonds.
Section 5.4. Company's Obligation with Respect to Exclusion of Interest
Paid on the Bonds. Notwithstanding any other provision hereof, the Company
covenants and agrees that it will not take or authorize or permit, to the extent
such action is within the control of the Company, any action to be taken with
respect to the Project, or the proceeds of the Bonds (including investment
earnings thereon), or any other proceeds derived directly or indirectly in
connection with the Project, which will result in the loss of the exclusion of
interest on the Bonds from the federal gross income of the owners of the Bonds
under Section 103 of the Code (except for any Bond during any period while any
such Bond is held by a person referred to in Section 147(a) of the Code); and
the Company also will not omit to take any action in its power which, if
omitted, would cause the above result. Toward that end, the Company covenants
that it will comply with all provisions of the Tax Agreement and the Project
Certificate. This provision shall control in case of conflict or ambiguity with
any other provision of this Agreement.
Section 5.5. Financing Statements. The Company shall cause such
security agreements, financing statements and all supplements thereto and other
instruments as may be required from time to time to be kept, to be recorded and
filed in such manner and in such places as may be required by law in order to
fully preserve, protect and perfect the security of the Owners of the Bonds and
the rights of the Trustee, and to perfect the security interest created by the
Indenture.
ARTICLE VI
NO RECOURSE TO ISSUER; INDEMNIFICATION
Section 6.1. No Recourse to Issuer. The Issuer will not be obligated to
pay the Bonds except from revenues provided by the Company or from other sources
specified in the Indenture. The issuance of the Bonds will not directly or
indirectly or contingently obligate the Issuer or the State to levy or pledge
any form of taxation whatever or to make any appropriation for their payment.
Neither the Issuer nor any member or officer of the Issuer nor any person
executing the Bonds shall be liable personally for the Bonds or be subject to
any personal liability or accountability by reason of the issuance of the Bonds.
Section 6.2. Indemnification. The Company during the term of this
Agreement releases the Issuer, the Trustee and their members or officers from
and covenants and agrees that the Issuer, the Trustee and their members or
officers shall not be liable for, and agrees to indemnify, defend and hold the
Issuer and the Trustee harmless against, any loss or damage to property or any
injury to or death of any person occurring on or about or resulting from any
defect in the Project, provided that the indemnity provided in this sentence
shall be effective only to the extent of any loss that may be sustained by the
Issuer, the Trustee or their officers in excess of the net proceeds received by
the Issuer or the Trustee from any insurance carried with respect to the loss
sustained, and provided further, that the indemnity shall not be effective for
damages that result from the negligence or intentional acts on the part of the
Issuer, the Trustee or their officers. The Company will also indemnify and save
harmless the Trustee for, and hold it harmless against,
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any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust created under the Indenture, including the cost and expense of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties under the Indenture.
ARTICLE VII
PROJECT COVENANTS
Section 7.1. Insurance. The Company agrees to maintain, or cause to be
maintained, all necessary insurance with respect to the Project in accordance
with its customary insurance practices. The Issuer shall have no obligation to
maintain insurance with respect to the Project.
Section 7.2. Prohibition of Liens. The Company shall not, except as
permitted by Section 7.3 hereof, create or suffer to be created any lien or
charge upon the Project or any part thereof or upon the rents, contributions or
charges or receipts or revenues therefrom other than in favor of the Issuer or
the Trustee. The Company further agrees to pay or cause to be discharged or make
adequate provisions to satisfy and discharge, within 60 days or as soon
thereafter as is reasonable after the same shall accrue, any such lien or charge
and also all lawful claims or demands for labor, materials, supplies or other
charges which, if unpaid, might be or become a lien upon the Project or any part
thereof or the rents, contributions or charges or receipts or revenues
therefrom; provided, however, that nothing in this Section shall require the
Company to pay or cause to be discharged or make provision for any such lien or
charge so long as the validity thereof shall be contested in good faith.
Section 7.3. Maintenance, Repairs, Replacements and Removals. The
Company shall at all times during the term of this Agreement maintain, preserve
and keep the Project in good repair, working order and condition, excepting
normal wear and tear, and it will from time to time make or cause to be made all
necessary and proper repairs and replacements in connection with the
maintenance, repairs and replacements referred to in this Section. The Company
may, subject only to other applicable provisions of this Agreement, modify the
Project or make modifications, substitutions, additions, removals, or
improvements thereto from time to time, as it may deem to be desirable for its
uses and purposes, the cost of which modifications, substitutions, additions,
removals, or improvements shall be paid by the Company, and the same (other than
removals) shall be included under the terms of this Agreement as part of the
Project except for property owned by third parties which property will not
become a part of the Project. The Company will not permit any mechanics',
materialmen's or other liens to be established and remain against the Project
for labor or material furnished in connection with any modification,
substitutions, additions, removals, improvements, repairs, renewals or
replacement so made by it; provided, however, that nothing in this Section shall
require the Company to pay or cause to be discharged or make provision for any
such lien or charge so long as the validity thereof shall be contested in good
faith. Upon written request of the Company, the Issuer shall give a xxxx of sale
in quitclaim form to the Company for an item of any Leased Equipment permanently
removed from the Premises by the Company. Nothing contained in this Agreement
shall limit the right of the Company to acquire, and to locate within the
Project, such machinery, equipment, tools,
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tooling, attachments and accessories thereto as the Company shall deem
appropriate, which machinery, equipment, tools, tooling, attachments and
accessories thereto; provided that such item, by its character, does not
constitute an addition, modification or improvement to an existing portion of
the Project, shall remain the property of the Company, the Company's xxxxxx or
the lessor thereof to the Company, as the case may be.
Section 7.4. Inspection of the Project. The Issuer, the Trustee and
their or either of their duly authorized agents shall have the right at all
reasonable times to enter upon the Project and to examine and inspect the
Project upon not less than two Business Days' prior notice to the Company.
Section 7.5. Granting of Easements. If no Event of Default shall have
happened and be continuing, the Company may, notwithstanding anything contained
herein to the contrary, at any time or times:
(a) Grant easements, licenses, rights of way (including the
dedication of public highways) and other rights or privileges in the
nature of easements with respect to any property included in the
Project, free from the Indenture; or
(b) Release existing easements, licenses, rights of way
and other rights or privileges,
all with or without consideration and upon such terms and conditions as the
Company shall determine, and the Issuer agrees that it will execute and deliver
and will cause and direct the Trustee to execute and deliver any instrument
necessary or appropriate to confirm and grant or release any such easement,
license, right of way or privilege, or other right, upon receipt by the Issuer
and the Trustee of a copy of the instrument of grant or release and a written
notice signed by the Company requesting such instrument. If the instrument of
grant shall so provide, any such easement or right and rights of such parties
thereunder shall be superior to the rights of the Issuer and the Trustee under
this Agreement and the Indenture and shall not be affected by any termination of
this Agreement or default on the part of the Company hereunder. Any payments or
other consideration received by the Company for any such grant shall be and
remain the property of the Company.
Section 7.6. Compliance with Governmental Regulations. With respect to
the Project, the Company shall at all times comply with all applicable
requirements of the laws of the State and with all applicable requirements of
any agency, board or commission, created under such laws or of any other duly
constituted public authority, and to the extent possible, will use the Project
only for such purposes as are lawful under the Act, provided, however, that the
Company shall be deemed in compliance with this Section so long as it is
contesting in good faith any such requirement by appropriate legal proceedings.
Section 7.7. Trustee's Right to Perform. If at any time the Company
defaults in the performance of any of its covenants under this Agreement, the
Trustee may (but shall not be obligated to) perform the same after giving the
Company ten days' notice of its intention to do so.
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Section 7.8. Identification of Property. All property of a capital
nature belonging to the Company or others, as described in Section 7.3 hereof,
shall be suitably marked by the Company to identify the Company's ownership or
ownership by a third party.
Section 7.9. Use of Premises. The Issuer shall not, to the extent
permitted by law, attempt to impose upon the use or occupancy of the Project any
laws, ordinances, rules or regulations more burdensome or restrictive than those
in effect upon the date of this Agreement.
Section 7.10. Casualty; Condemnation. If the Project is damaged or
destroyed in whole or in part by casualty, whether or not covered by insurance,
or is taken, in whole or in part, by power of eminent domain, this Agreement
shall nevertheless continue in effect without abatement or suspension of rent
for so long as this Agreement shall remain in effect and any proceeds with
respect thereto received by the Company from insurance providers or government
agencies shall be the sole property of the Company.
Section 7.11. Taxes and Assessments. The Issuer covenants that during
the term of this Agreement, the Issuer will retain title to the Project, except
as herein otherwise expressly provided. The Company has entered into an
Agreement for Payments in Lieu of Taxes dated December 29, 1994 (the "PILOT
Agreement") with the Issuer, pursuant to which it has agreed to pay certain
amounts with respect to the Project.
ARTICLE VIII
ASSIGNMENT OR SUBLEASE
Section 8.1. Assignment or Sublease by Company. The rights and
obligations of the Company under this Agreement may be assigned by the Company
and/or the Project may be subleased as a whole or in part by the Company;
provided, however, that (a) no such assignment or sublease shall relieve the
Company from primary liability for any of its obligations hereunder, (b) each
assignee of the Company's interest in this Agreement shall assume the
obligations of the Company hereunder to the extent of the interest assigned, (c)
the Company shall not less than 30 days prior to the effective date of any such
assignment or sublease, furnish or cause to be furnished to the Issuer and the
Trustee a true and complete copy of each such assignment or sublease contract
and, as applicable, assumption of obligations and (d) prior to any assignment or
sublease, the Company shall have caused to be delivered to the Issuer and the
Trustee an opinion of Bond Counsel to the effect that such assignment or
sublease will not cause interest on the Bonds to be includable in the gross
income of the owners thereof for purposes of federal income taxation.
Notwithstanding the provisions of the preceding paragraph, this
Agreement may be assigned by the Company as provided in the preceding paragraph,
but without the Company remaining liable hereunder, if either (a) the Guaranty
will continue to remain in full force and effect and enforceable notwithstanding
such assignment, or (b) if the Guaranty is to be released in accordance with
Section 9.05 of the Indenture in connection with such assignment, the release of
the Guaranty is accomplished in accordance with the provisions of the Indenture.
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Section 8.2. Assignment by Issuer. The Issuer will assign its rights
under and interest in this Agreement (except for the Unassigned Rights) to the
Trustee pursuant to the Indenture as security for the payment of the Bonds.
Otherwise, the Issuer will not sell, assign or otherwise dispose of its rights
under or interest in this Agreement nor create or permit to exist any lien,
encumbrance or other security interest in or on such rights or interest.
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.1. Events of Default; Remedies. The occurrence of any Event
of Default under the Indenture shall constitute an Event of Default hereunder
for so long as such Event of Default under the Indenture is continuing. Whenever
any Event of Default has occurred and is continuing, the Trustee may take
whatever action may appear necessary or desirable to collect the payments then
due and to become due or to enforce performance of any agreement of the Company
in this Agreement. Upon any acceleration of the Bonds under the Indenture, all
amounts payable under Section 4.2(a) hereof shall be immediately due and payable
without the necessity of any action by any party.
In addition, if an Event of Default is continuing with respect to any
of the Unassigned Rights, the Issuer may take whatever action may appear
necessary or desirable to it to enforce performance by the Company of such
Unassigned Rights.
Any amounts collected pursuant to action taken under this Section
(except for amounts payable directly to the Issuer or the Trustee pursuant to
Section 4.3, 8.2 and 9.3) shall be applied in accordance with the Indenture.
Section 9.2. Delay Not Waiver; Remedies. A delay or omission by the
Issuer or the Trustee 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 9.3. Attorneys' Fees and Expenses. If the Company should
default under any provision of this Agreement and the Issuer should employ
attorneys or incur other expenses for the collection of the payments due under
this Agreement, the Company will on demand pay to the Issuer the reasonable fees
of such attorneys and such other reasonable expenses so incurred by the Issuer.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices. All notices or other communications hereunder
shall be sufficiently given and shall be deemed given when delivered or mailed
as provided in the Indenture.
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Section 10.2. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the Issuer, the Company and their
respective successors and assigns, subject, however, to the limitations
contained in Section 6.1.
Section 10.3. 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 10.4. Amendments. After the issuance of the Bonds, this
Agreement may be effectively modified, amended, supplemented or terminated only
with the written consent of the Trustee and the Bank and any such modification,
amendment or supplement must be in accordance with the provisions of the
Indenture.
Section 10.5. Right of Company to Perform Issuer's Agreements. The
Issuer irrevocably authorizes and empowers the Company to perform in the name
and on behalf of the Issuer any agreement made by the Issuer in this Agreement
or in the Indenture which the Issuer fails to perform in a timely fashion if the
continuance of such failure could result in an Event of Default. This Section
will not require the Company to perform any agreement of the Issuer.
Section 10.6. Expiration of Rights of Bank. It is expressly understood
that any and all provisions of this Agreement for notices or the furnishing of
documents, information or reports to the Bank and the necessity of obtaining the
consent of the Bank to any modifications, amendments or supplements to this
Agreement or waivers of any of the provisions hereof shall cease and determine
and be of no further force and effect when (a) the Letter of Credit is not in
effect and no amounts are due and payable by the Company to the Bank under the
Reimbursement Agreement, or (b) the Bank is in default on any of its obligations
to pay drawings under the Letter of Credit submitted in conformity with the
terms of the Letter of Credit.
Section 10.7. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 10.8. 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 10.9. Complete Agreement. This Agreement represents the entire
agreement between the Issuer and the Company with respect to its subject matter.
Section 10.10. Termination. When no Bonds are Outstanding under the
Indenture and the Indenture is deemed discharged pursuant to Article X thereof,
the Company and the Issuer shall not have any further obligations under this
Agreement; provided that the Company's covenants in Sections 5.4 and 7.11 and
the provisions of Section 4.4 with respect to mandatory redemption of the Bonds
shall survive so long as any Bond remains unpaid.
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Section 10.11. Counterparts. This Agreement may be signed in several
counterparts. Each will be an original, but all of them together constitute the
same instrument.
COUNTIES OF XXXXXX AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
By /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx, Vice Chairman
[SEAL]
Attest:
By /s/ X. Xxxxx South, Secy.
--------------------------------
XXXXXXXX MICRO SCIENCE, INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Treasurer
[SEAL]
Attest:
By /s/ Xxxxx X. Xxxx
-----------------------------
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STATE OF NEW YORK )
) SS
COUNTY OF XXXXXX )
I, the undersigned Notary Public in and for the State and County
aforesaid, do hereby certify that on the 27th day of December, 1994, the
foregoing instrument was produced to me in said County by Xxxxx X. Xxxxxxx and
X. Xxxxx South, personally known by me to be the Vice Chairman and Secretary,
respectively, of the COUNTIES OF XXXXXX AND WASHINGTON INDUSTRIAL DEVELOPMENT
AGENCY, and acknowledged by them and each of them to be their free act and deed
as Vice Chairman and Secretary of such Agency and the act and deed of said
Agency as authorized by a resolution of such Agency; and they say that they have
read the aforesaid instrument and the statements contained therein are true.
WITNESS my hand and seal this 27th day of December, 1994.
/s/ Xxxxx X. Xxxx
-----------------------
Notary Public
(Seal)
26
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, the undersigned Notary Public in and for the State and County
aforesaid, do hereby certify that on the (28th) day of (December), 1994, the
foregoing instrument was produced to me in said County by Xxxxx X. Xxxxxx and
Xxxxx X. Xxxx, personally known by me to be the Treasurer and Secretary,
respectively, of XXXXXXXX MICRO SCIENCE, INC., a corporation incorporated under
the laws of the State of Delaware, who being by me duly sworn, did say that the
seal affixed to said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors; and said respective persons
acknowledged said instrument to be the free act and deed of said corporation and
to be their free act and deed as such officers of such corporation.
WITNESS my hand and seal this (28th) day of December, 1994.
/s/ Xxxxx Xxxxxxx
-----------------------
Notary Public
(SEAL)
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EXHIBIT A
LEGAL DESCRIPTION
All that certain lot, piece or parcel of land, situate lying and being
in the Town of Xxxxxxxxx, County of Washington and State of New York and more
particularly described as follows:
Lots Number 42 and 43, containing 5.409 acres, more or less,
as shown on a Map of a Survey entitled "The Industrial Park
owned by Counties of Xxxxxx and Washington Industrial
Development Agency" made by Xxxx X. Xxx Xxxxx, dated June 2,
1978, and filed in the Washington County Clerk's Office on
September 19, 1978.
Subject to all rights of the public and to Xxxxx Road, County Line Road
and Park Road in the development of the said Industrial Park.
A-1
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EXHIBIT B
PROJECT DESCRIPTION
The Project consists of the acquisition of a 5.4 acre parcel of real
estate located in the Town of Xxxxxxxxx, Washington County, New York and the
construction of a 33,000 square foot building which houses facilities for the
sterilization of prepackaged medical, pharmaceutical and cosmetic products. In
addition, the Project includes the equipment necessary to operate an ethylene
oxide gas contract sterilization facility, including, but not limited to, five
remanufactured sterilizers, vacuum pump system, both low and high pressure gas
fuel boilers, ethylene oxide abatement systems and racking systems. The Project
is more particularly described in Exhibit A to the Project Certificate.
B-1
