BOND FINANCING AGREEMENT
Dated May 27, 2003
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
and
IMMUNOMEDICS, INC., as Borrower
and
FLEET NATIONAL BANK, as Agent
and
FLEET NATIONAL BANK, as Purchaser
TABLE OF CONTENTS
Page
ARTICLE I....................................................................3
DEFINITIONS..................................................................3
1.1. Definitions.......................................................3
ARTICLE II..................................................................10
REPRESENTATIONS AND WARRANTIES..............................................10
2.1. Representations and Warranties of the Borrower...................10
2.2. Representations of the Authority.................................14
2.3. Representations and Warranties of the Agent......................16
2.4. Representations and Warranties of the Purchaser..................16
ARTICLE III.................................................................18
AUTHORIZATION OF THE BOND; DETAILS OF THE BOND..............................18
3.1. Purpose of the Bond, Grant of Authority..........................18
3.2. Authorization of the Bonds.......................................18
3.3. Provisions of the Bond...........................................18
3.4. Redemption Provisions............................................19
3.5. Medium of Payment................................................20
3.6. Execution........................................................20
3.7. Registration, Transfer and Exchange of Bond......................20
3.8. Execution of Indenture...........................................21
3.9. Mutilated, Destroyed, Lost or Stolen Bond........................22
3.10. Conditions Precedent to Delivery of the Bond.....................22
3.11. Temporary Bond...................................................25
3.12. Cancellation of Surrendered Bond.................................25
ARTICLE IV..................................................................26
THE LOAN; REPAYMENT OF LOAN; TERMS..........................................26
4.1. Loan of Bond Proceeds............................................26
4.2. Repayment of Loan................................................26
i
4.3. Prepayment of Loans..............................................32
4.4. Borrower's Obligation............................................33
4.5. Term.............................................................33
4.6. Benefit of Holder................................................33
4.7. Payment on Termination of Agreement..............................34
4.8. Administration Fees and Expenses.................................34
4.9. Continuing Enforcement of Agreement..............................34
4.10. Purchaser's Fees and Expenses....................................35
4.11. Replacement of Note or Other Documents...........................35
4.12. Interest Limitation..............................................35
4.13. Sale of Loan.....................................................36
4.14. Right to Sell Portion of Loans to Prospective Participant........36
4.15. Use of Proceeds (Regulation U)...................................37
4.16. Set-Off..........................................................37
ARTICLE V...................................................................38
ESTABLISHMENT OF FUNDS AND ACCOUNTS; APPLICATION OF BOND PROCEEDS AND
OTHER MONEYS..........................................................38
5.1. Establishment of Funds and Accounts..............................38
5.2. Application of Proceeds of Bond; Disbursements...................38
5.3. Application of Moneys in Project Fund; Disbursements.............38
5.4. Application of Amounts in the Debt Service Fund..................39
5.5. Rebate Fund......................................................39
5.6. Non-Presentment of Bond..........................................41
5.7. Additional Payments Under the Agreement..........................41
ARTICLE VI..................................................................42
EVENTS OF DEFAULT...........................................................42
6.1. Events of Default................................................42
6.2. Acceleration and Annulment Thereof; Notice to Holder;
Remedies.........................................................43
6.3. Additional Remedies..............................................45
6.4. Rights Cumulative................................................45
ii
6.5. Termination of Proceedings.......................................46
6.6. Notice of Default................................................46
6.7. Waiver of Event of Default.......................................46
ARTICLE VII.................................................................47
INSURANCE AND CONDEMNATION..................................................47
7.1. Insurance Coverage and Terms.....................................47
7.2. Damage, Destruction and Condemnation; Application of
Insurance Proceeds and Condemnation Awards.......................47
7.3. Eminent Domain...................................................49
ARTICLE VIII................................................................50
OTHER COVENANTS OF THE BORROWER.............................................50
8.1. Further Assurances; Financing Statements.........................50
8.2. Assignment of Agreement; No Defense or Set-Off...................50
8.3. Covenant Against Adverse Acts....................................50
8.4. Covenant Against Encumbrances....................................50
8.5. Payment of Agent's Compensation and Expenses.....................51
8.6. Indemnification of the Authority with respect to Disclosure......51
8.7. Indemnification of the Authority with respect to the Project
and Other Matters................................................51
8.8. Covenants of Borrower with Respect to Exemption of Interest
from Federal Income Taxation.....................................53
8.9. Rebate Covenant..................................................53
8.10. Corrective Instruments...........................................55
8.11. Taxes and Liens..................................................55
8.12. Compliance with Department of Environmental Protection...........56
8.13. Pledged Funds....................................................56
8.14. Financial Statements.............................................56
8.15. Further Covenants................................................57
8.16. Payment Upon an Event of Taxability..............................57
8.17. Filing of Other Documents........................................57
ARTICLE IX..................................................................58
iii
CONCERNING THE AGENT........................................................58
9.1. Agent; Appointment and Acceptance of Duties......................58
9.2. Agent Entitled to Indemnity......................................58
9.3. Responsibilities of Agent........................................58
9.4. Agent May Enforce Authority's Rights Under the Agreement.........59
9.5. Evidence on which the Authority and the Agent May Act............59
9.6. Compensation.....................................................59
9.7. Permitted Acts...................................................60
9.8. Resignation of Agent.............................................60
9.9. Removal of Agent.................................................60
9.10. Successor Agent..................................................61
9.11. Transfer of Rights and Property to Successor Agent...............61
9.12. Merger, Conversion or Consolidation of Agent.....................62
9.13. Filing of Certain Continuation Statements and Other
Documents........................................................62
9.14. Action When Bond No Longer Outstanding...........................62
ARTICLE X...................................................................63
INVESTMENTS.................................................................63
10.1. Investment of Funds..............................................63
10.2. Valuation and Sale of Investments................................63
ARTICLE XI..................................................................64
MISCELLANEOUS...............................................................64
11.1. Defeasance.......................................................64
11.2. Evidence of Signatures of Holder and Ownership of Bonds..........65
11.3. Preservation and Inspection of Documents.........................65
11.4. Severability of Invalid Provisions...............................65
11.5. Notices. 66
11.6. Costs and Expenses...............................................66
11.7. Immunity and Indemnification of the Authority....................67
11.8. Authority Not Responsible for Insurance, Taxes, Execution of
Agreement, or Application of Moneys Applied in Accordance
with Agreement...................................................67
iv
11.9. Pledge to the Federal Reserve....................................67
11.10. Integration Clause..............................................68
11.11. Amendments......................................................68
11.12. New Jersey Law Governs..........................................68
11.13. Waiver of Jury Trial............................................68
11.14. Section Headings................................................68
11.15. Execution in Counterparts.......................................69
Exhibit A [Assignment]
Exhibit B [Requisition]
Exhibit C [Form of Bond]
Exhibit D [Form of Note]
v
BOND FINANCING AGREEMENT (as the same may be amended or supplemented from
time to time as permitted herein, the "Agreement") dated May 27, 2003 by and
among the NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the "Authority"), a public
body corporate and politic and constituting an instrumentality of the State of
New Jersey (the "State"), having its principal office at 00 Xxxx Xxxxx Xxxxxx,
X.X. Xxx 000, Xxxxxxx, Xxx Xxxxxx 00000, IMMUNOMEDICS, INC. (the "Borrower"), a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey, having its principal office at 300 American Road,
Xxxxxx Plains, New Jersey, FLEET NATIONAL BANK, a national banking association
having an office at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000, as agent
(together with its successors, the "Agent") and FLEET NATIONAL BANK, as
purchaser (the "Purchaser");
WHEREBY, in consideration of ONE DOLLAR ($1.00) lawful money of the United
States, paid by the parties to each other, receipt whereof is hereby
acknowledged and other good and valuable consideration,
IT IS HEREBY RECITED THAT:
The New Jersey Economic Development Authority Act, constituting Chapter 80
of the Pamphlet Laws of 1974 of the State of New Jersey, approved on August 7,
1974, as amended and supplemented (and as may be further amended and
supplemented, the "Act"), declares it to be in the public interest and to be the
policy of the State of New Jersey (the "State") to xxxxxx and promote the
economy of the State, increase opportunities for gainful employment and improve
living conditions, assist in the economic development or redevelopment of
political subdivisions within the State, and otherwise contribute to the
prosperity, health and general welfare of the State and its inhabitants by
inducing manufacturing, industrial, commercial, recreational, retail, service
and other employment promoting enterprises by making available financial
assistance to qualified businesses to locate, remain or expand within the State;
To accomplish the purposes of the Act, the Authority is empowered (i) to
issue bonds and (ii) to extend credit to such employment promoting enterprises
in the name of the Authority, on such terms and conditions and in such manner as
it may deem proper for such consideration and upon such terms and conditions as
the Authority may determine to be reasonable;
By application dated August 23, 2001, as amended (the "Application"), the
Borrower applied to the Authority for financial assistance, to be used by the
Borrower to finance (i) the renovation of the Borrower's existing manufacturing
facility to expand its current production capability of cancer therapeutic
products; (ii) the acquisition of equipment and machinery needed for the
expansion of the Borrower's production capability (items (i) and (ii) being the
"Project"); and (iii) payment of certain costs incurred in connection with the
issuance of the Bond (as hereinafter defined).
To provide funds for the costs of the Project, the Authority has
determined to issue its Economic Development Bond (Immunomedics, Inc. Project)
Series 2003 A in the principal
amount of $1,000,000 (the "Series 2003 A Bond"), and its Economic Development
Bonds (Immunomedics, Inc. Project) Series 2003 B (Federally Taxable) in the
principal amount of $5,376,000 (the "Series 2003 B Bond", and together with the
Series 2003 A Bond, the "Bonds"), to sell the Bonds to the Purchaser (the
"Sale"), and to loan the proceeds of the Bonds to the Borrower (the "Loan"), all
pursuant to this Agreement;
The Loan shall be evidenced by (i) promissory note for the Series 2003 A
Bond (the "Series 2003 A Note"), and (ii) a promissory note for the Series 2003B
Bond (the "Series 2003 B Note", and together with the Series 2003 A Note, the
"Notes") each of which executed by the Borrower (the "Note") and shall be
secured by a Pledge Agreement (as hereinafter defined).
The payment of principal, Redemption Price, if any, of and interest on the
Bonds, as well as any other amounts payable by the Authority under this
Agreement, shall be secured by the assignment by the Authority to the Agent,
subject to the Authority's Reserved Rights (as hereinafter defined), of all of
the Authority's right, title and interest in and to the Loan Documents (as
hereinafter defined) and the Revenues by an assignment executed simultaneously
herewith in the form of Exhibit A attached hereto and made part hereof (as the
same may be amended or supplemented, from time to time, as herein and therein
permitted, the "Assignment"); and
It is understood and agreed that the source of payment by the Authority
for the principal, and Redemption Price, if any, of and interest on the Bonds,
as well as any other amounts called for under this Agreement and the other Loan
Documents, shall be limited exclusively to the revenues or other moneys derived
pursuant to this Agreement and the other Loan Documents (as hereinafter
defined); and
The execution and delivery of this Agreement has been duly authorized by
the Authority, and all conditions, acts and things necessary and required by the
Constitution or statutes of the State or otherwise to exist, to have happened,
or to have been performed precedent to or in connection with the execution and
delivery of this Agreement to exist, have happened and have been performed;
IT IS HEREBY AGREED THAT:
2
ARTICLE I
DEFINITIONS
1.1. Definitions.
As used herein and in any agreement supplemental hereto (except as
otherwise expressly provided or if the context clearly otherwise requires):
(a) the following terms shall have the meanings hereinabove assigned
to them:
Act
Agent
Agreement
Application
Assignment
Authority
Bonds
Borrower
Loan
Series 2003 A Note
Series 2003 B Note
Notes
Project
Purchaser
Sale
Series 2003 A Bond
Series 0000 X Xxxx
Xxxxx
(b) the following terms shall have the meanings specified below:
"Account" or "Accounts" means any account established pursuant to
this Agreement.
"Authority Documents" means this Agreement, the Bonds, the
Assignment and any document executed by the Authority in connection therewith or
the Financing, as they may be revised, supplemented or amended.
"Authority's Fee" means the fee payable to the Authority for its
services in connection with the issuance of the Bonds.
"Authorized Officer" means (i) in the case of the Authority, the
Chairman, the Vice Chairman, the Executive Director, Managing Director of
Investment Banking, and any
3
other Person authorized in writing by the Authority to act on its behalf; and
(ii) in the case of the Borrower, any Person duly authorized in writing by the
Borrower to act on its behalf.
"Bankruptcy Code" means the federal Bankruptcy Code, 11 U.S.C.
ss.101 et seq., as amended and supplemented from time to time.
"Bond Counsel" means a firm of attorneys of nationally recognized
standing on the subject of municipal bonds.
"Bond Year" means the twelve-month period beginning on June 1 in any
calendar year and ending on May 31 of the next succeeding calendar year.
"Business Day" or "business day" means, in each case, any day other
than a Saturday, Sunday or a day on which banking institutions in the State of
New Jersey are authorized or required by law to close.
"Cancellation Date" has the meaning given in Section 6.2(d) hereof.
"Closing" means the date of issuance of the Bond.
"Code" means the Internal Revenue Code of 1986, as amended and
supplemented, and the regulations promulgated thereunder from time to time in
effect.
"Collateral" means the property owned by the Borrower and pledged as
collateral for the Loan, as further described in the Pledge Agreement.
"Debt Service Fund" means the Fund created by Section 5.1 hereof.
"Debt Service Payment Date" means each date on which principal of or
interest on the Bond is due and payable (whether the maturity date or the date
of redemption or acceleration), as described in the Bond.
"Debt Service Requirements" means for any Bond Year the scheduled
amount required to be paid to the Holder during such period in respect of the
principal and the interest due on such Bonds during such period. For purposes of
determining Debt Service Requirements, there shall not be taken into account any
amounts with respect to any portion of the Bonds that is no longer Outstanding
as of the beginning of such Bond Year.
"Default Rate" shall mean the interest rate per annum, determined on
a daily basis and payable on demand, that is equal to five percent (5%) in
excess of the Prime Rate, provided, however, that the Default Rate shall in no
event be more than the highest rate permitted by the applicable usury law in
respect of the Borrower.
"Determination of Taxability" means, with respect to the Series 2003
A Bond, the first to occur of the following events: (i) the date on which the
Borrower determines that an Event of Taxability has occurred by filing with the
Agent a statement to that effect supported by one or more tax schedules, returns
or documents that disclose that such an Event of Taxability has occurred; (ii)
the date on which the Borrower or the Agent is advised by private ruling,
technical advice or any other written communication from any authorized official
of the Internal Revenue Service that, based upon any filings of the Borrower or
any other Person, or upon any
4
review or audit of the Borrower or any other Person, or upon any other grounds
whatsoever, an Event of Taxability has occurred; (iii) the date on which the
Agent or the Borrower is advised that a court of competent jurisdiction has
issued an order, declaration, ruling or judgment to the effect that an Event of
Taxability has occurred; or (iv) the date the Agent shall have received written
notice from any Holder of the Series 2003 A Bond that such Holder has received a
written assertion or claim by any authorized official of the Internal Revenue
Service that an Event of Taxability has occurred.
"Event of Cancellation" means the Event of Cancellation described in
Section 6.2(d) hereof.
"Event of Default" means any event of default under this Agreement,
as defined in Article VI hereof.
"Event of Taxability" means, with respect to the Series 2003 A Bond,
the change of any law, the occurrence of any event or the existence of any
circumstances (including, without limitation, the fact that any representation,
warranty or certification of the Borrower contained in this Agreement is untrue
or the breach by the Borrower of any covenants of the Borrower set forth in this
Agreement which has the effect of causing the interest payable on the Series
2003 A Bond to become includable in the gross income of any Holder thereof under
Section 61 of the Code for federal income tax purposes (other than (i) interest
received by a Holder who is a "substantial user" or a "related person" as such
terms are used in Section 144(a)(3) of the Code), and (ii) interest that is an
item of tax preference includable in a Holder's alternative minimum taxable
income). The date of an Event of Taxability shall be the effective date as of
which such interest becomes subject to taxation.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of 1986,
constituting Title 11 of the United States Code, as amended and supplemented,
and any successor law.
"Financing" means the making of the Loan and the Sale hereunder.
"Financing Documents" means, collectively, the Authority Documents
and the Loan Documents.
"Fiscal Year" means the twelve month period designated by the
Borrower for financial reporting purposes, which initially is the calendar year.
"Fund" or "Funds" means any fund or funds established pursuant to
this Agreement.
"Government Obligations" means non-callable (a) general and direct
obligations of the United States of America for the full and timely payment of
which the full faith and credit of the United States of America is pledged, or
(b) obligations issued by a person controlled or supervised by and acting as an
instrumentality of the United States of America, the payment of the principal
of, premium (if any) and interest on which are fully guaranteed as full faith
and credit obligations by the United States of America.
5
"Holder" means the Purchaser, or each other Person to whom a Bond is
transferred in accordance with this Agreement.
"Indemnified Parties" means the Authority, the Agent, each Holder,
any Person who "controls" the Authority, the Agent or the Holder within the
meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20
of the Securities Exchange Act of 1934, as amended, any member, officer,
director, official, employee, agent and attorney of the Authority, the State,
the Agent or any Holder and their respective executors, administrators, heirs,
successors and assigns.
"Independent" means a Person who is neither an officer, employee or
member of the board of trustees of the Borrower, a member, officer or employee
of the Authority, or a partnership, corporation or association having a partner,
director, officer, member or substantial stockholder who is an officer, employee
or member of the board of the Borrower, or a member, officer or employee of the
Authority; provided, however, that the fact that such Person is retained
regularly by or transacts business with the Authority or the Borrower shall not
make such Person an employee within the meaning of this definition.
"Initial Rebate Computation Date" means the first date on which the
Rebatable Arbitrage is computed for the Series 2003 A Bond under Treasury
Regulation Section 1.148-3.
"Investment Obligations" means (i) Government Obligations; (ii)
obligations issued or guaranteed by any instrumentality or agency of the United
States of America, whether now existing or hereafter organized; (iii)
obligations issued or guaranteed by any state of the United States or the
District of Columbia; provided that at the time of their purchase such
obligations are rated in either of the two highest rating categories by a
nationally recognized rating agency; (iv) repurchase agreements or money market
funds fully secured by obligations of the kind specified in clauses (i), (ii),
or (iii) above, including repurchase agreements with the Agent and money market
funds controlled by the Agent; (v) commercial paper or finance company paper
that is rated not less than P-1 or A-1 or their equivalents by Moody's or
Standard & Poor's, or their successors; (vi) time deposits (which may be
represented by certificates of deposit) and interest-bearing demand deposits in
any bank, trust company, or financial institution (including the Agent) which is
a member of the Federal Deposit Insurance Corporation ("FDIC"), provided that
such time or demand deposits, to the extent not fully and continuously insured
by the FDIC, are fully secured by obligations of the type referred to in clauses
(i), (ii) or (iii) above, which shall have a market value as determined and
certified by the Agent or a Person satisfactory to the Agent (exclusive of
accrued interest) at all times at least equal to the principal amount plus
accrued interest of such deposits so secured and be lodged with the Agent, as
custodian, by the bank, trust company or financial institution issuing such
certificate of deposit, except such deposits need not be so secured if the long
term debt of the bank, trust company or financial institution, or that of its
parent corporation, is rated in either of the two highest rating categories of a
nationally recognized rating agency; (vii) units of participation in the New
Jersey Cash Management Fund, or any similar common trust fund that is
established pursuant to State law as a legal depository of public money and for
which the Treasury of the United States is custodian; and (viii) shares of an
Investment Company, organized under the Investment
6
Company Act of 1940, as amended, including an Investment Company for which the
Agent is investment advisor, which invests its assets substantially in
obligations of the type described in clauses (i), (ii) or (iii) above.
"LIBOR Rate" means the rate per annum as determined on the basis of
the offered rates for deposits in U.S. dollars, for a period of one (1), two
(2), three (3) or six (6) months (each, an "Interest Period") which appears on
the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
London Business Days prior to the end of the Interest Period (or the next
Business Day, if such date is not a Business Day); provided, however, if the
rate described above does not appear on the Telerate System on any applicable
interest determination date, the LIBOR Rate shall be the rate (rounded upward,
if necessary, to the nearest one hundred-thousandth of a percentage point),
determined on the basis of the offered rates for deposits in dollars for a
period substantially equal to the Interest Period on the Reuters Page "LIBO" (or
such other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London Time), on the day that is two
(2) London Business Days prior to the beginning of such Interest Period. If
neither the Telerate System nor the Reuters Page is available, the LIBOR Rate
may be determined in accordance with Section 4.2(c) hereof.
"Loan Documents" means this Agreement, the Note, the Pledge
Agreement and any other document now or hereafter executed by the Borrower in
connection therewith with the Financing, as they may be revised, supplemented or
amended.
"Loan Value" shall have the meaning assigned to such term in the
Pledge Agreement.
"Outstanding" or "Bond Outstanding" means any Bond that has been
issued pursuant to this Agreement, except:
(a) a Bond canceled because of payment at, or redemption prior to,
maturity;
(b) a Bond for the payment or redemption of which moneys or
securities shall have been theretofore deposited with the Agent
(whether upon or prior to the maturity or redemption date of such
Bond) in the manner provided in Section 11.1 hereof; provided that
if the Bond is to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given or arrangements
satisfactory to the Agent shall have been made therefor, or waiver
of such notice satisfactory in form to the Agent shall have been
filed with the Agent; and
(c) a Bond in exchange for or in lieu of which another Bond has been
delivered under Section 3.7 or 3.9 hereof.
For the purpose of any approval, consent, decision, request or
direction required or permitted hereunder to be made by the Holder,
no Bond shall be deemed to be Outstanding for the period of time
during which it is held by the Authority, the Borrower, any
corporation fifty (50%) percent or more of the outstanding voting
stock of which is owned by the Borrower, or any Person who is with
respect to a
7
major portion of the Project, a lessee thereof or an assignee of the
rights of the Borrower under this Agreement.
"Person" or "Persons" means any individual, limited liability
company, corporation, partnership, joint venture, trust or incorporated
organization, or a governmental agency or any political subdivision thereof.
"Pledge Agreement" means that certain Pledge Agreement by and
between the Authority and the Borrower, dated of even date herewith, pursuant to
which the Borrower shall grant to the Authority a first lien security interest
in the Collateral.
"Prepayment" shall have the meaning given in Section 4.3 hereof.
"Prime Rate" means the variable per annum rate of interest so
designated from time to time by the Purchaser as its prime rate.
"Project Fund" means the Fund so designated and established pursuant
to Section 5.1 of this Agreement.
"Project Costs" means the costs incurred by the Borrower in
connection with the Project.
"Purchaser's Tax Cost of Funds" means the minimum allowable interest
rate that will not cause the Purchaser to be charged any imputed interest
expense in connection with the Purchaser's purchase of tax-exempt assets, as
determined by the Internal Revenue Service.
"Qualified Costs of the Project" shall mean, with respect to costs
financed with proceeds of the Series 2003 A Bond, (i) those costs which (a) are
incurred after the date on which the preliminary resolution was adopted by the
Authority for the acquisition, construction or improvement of either land or
property subject to the allowance for depreciation provided by Section 167 of
the Code within the meaning of Treas. Reg. 1.103-10(b)(1)(ii) and (b) may, by a
proper election under the Code (or may, but for a proper election under the Code
to deduct such item), be capitalized for federal income tax purposes on the
books of the Borrower, and (ii) costs of issuance of the Series 2003 A Bond,
attorneys' fees, printing costs, Authority's fees, letter of credit fees,
agents' fees and other similar expenses; provided, that, any expenditure of
Series 2003 A Bond proceeds that, when added to all previous expenditures of
Series 2003 A Bond proceeds for the payment of costs in (ii) above, would cause
the total amount of such costs to exceed 2% of the issue price of the Series
2003 A Bond (within the meaning of Treasury Regulation Section 1.148-1(b) (not
including pre-issuance accrued interest on the Series 2003 A Bond), shall not be
considered a Qualified Cost of the Project for purposes of this definition.
"Rebatable Arbitrage" means the amount of rebate required to be paid
as calculated in accordance with Treasury Regulation Section 1.148-3.
"Rebate Computation Date" means each date on which the Rebatable
Arbitrage is computed for the Bond under Treasury Regulation Section 1.148-3.
"Rebate Fund" means the Fund so designated and established pursuant
to Section 5.1 of this Agreement.
8
"Rebate Year" means with respect to the first Rebate Year, the
period beginning on the date of issuance of the Series 2003 A Bond (the date of
initial delivery of the Series 2002 Bond in exchange for the issue price from
the Purchaser) and ending one (1) year later. Each subsequent Rebate Year shall
be a twelve (12) month period that begins on the date after the expiration of
the preceding Rebate Year.
"Redemption Price" means, when used with respect to a Bond, the
principal amount of such Bond plus the applicable premium, if any, payable upon
redemption thereof pursuant to this Agreement.
"Requisition" means the requisition to be executed by the Borrower
in the form attached hereto as Exhibit B.
"Reserve Percentage" shall mean the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves)
which is imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D.
"Reserved Rights" means the rights of the Authority to receive
payments and notices under this Agreement, to consent to any amendments,
modifications or supplements to this Agreement or any other Loan Document, to
enforce pursuant to Article VI hereof the Defaults and Remedies herein and the
provisions and covenants in this Agreement under the following Sections hereof:
2.1(b)(1) (Important Inducement), 2.1(b)(2) (No Untrue Statements), 2.1(b)(3)
(Project Users), 2.1(b)(4) (Maintain Existence; Merge, Sell, Transfer),
2.1(b)(5) (Relocate Project), 2.1(b)(6) (Operate Project), 2.1(b)(7) (Annual
Certification), 2.1(b)(8) (Preservation of Project), 2.1(b)(9) (Access to the
Project and Inspection), 2.1(b)(10) (Additional Information), 6.1 (Events of
Default), 6.2 (Remedies), 6.3 (Additional Remedies), 7.1 (Insurance Coverage and
Terms), 8.6 (Indemnification of the Authority - Disclosure), 8.7
(Indemnification of the Authority - Project), 8.8 (Borrower's Covenants re
Exemption of Interest from Federal Income Taxation), 8.9 (Rebate Covenant), 8.14
(Financial Statements), 8.17 (Filing of Other Documents) and 11.6 (Costs and
Expenses). These Reserved Rights have been assigned to the Agent but are also
held and retained by the Authority concurrently with the Agent (except those
rights set forth in Section 6.2 relating to Events of Cancellation herein, which
are retained exclusively by the Authority), and may be exercised and enforced
whether or not the Agent shall have exercised or shall have purported to
exercise such rights and remedies, without limiting the obligation of the Agent
to do so.
"Revenues" means amounts received by the Authority from the Borrower
pursuant to Article IV of this Agreement.
"Tax Certificate" means a certificate executed at Closing relating
to the use of the proceeds of the Series 2003 A Bond and other matters relating
to compliance with the Code.
9
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of the Borrower.
The Borrower represents, warrants and covenants that on the date
hereof and, unless otherwise specified, at all times thereafter until the Bonds
are no longer Outstanding:
(a) General Representations and Warranties.
(1) Organization, Powers, Etc. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey, has the power and authority to own its properties
and assets and to carry on its business as now being conducted (and as now
contemplated) and has the power to borrow hereunder and to execute and deliver
and to perform all of its obligations hereunder.
(2) Execution of this Agreement. The Borrower's execution,
delivery and performance of this Agreement has been duly authorized by all
requisite corporate action and does not and will not violate any provision of
law, rule, or regulation, any order of any court or other agency or government,
or any provision of its organizational documents or any provision of any
indenture, agreement or other instrument to which it is a party or by which it
or its property is bound, or result in the creation or imposition of any lien,
charge or encumbrance of any nature, other than the liens created or
contemplated hereby and do not and will not require any authorization, consent,
approval, license, exemption of, or filing or registration with, any court or
governmental department, commission, board, bureau or instrumentality, other
than consents or approvals already obtained in the ordinary course of business.
(3) Obligations of the Borrower. This Agreement is a
legal, valid and binding obligation of the Borrower enforceable against it in
accordance with its terms except as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the enforcement of creditors' rights generally and except to the extent that the
enforceability thereof may be limited by the application of general principles
of equity.
(4) Use of Project. The use of the Project is materially
in compliance with all zoning, water, air pollution or other environmental
quality standards or other ordinances, orders, laws or regulations applicable
thereto. The Borrower has caused the Project to be designed materially in
compliance with all federal, State and local laws or ordinances (including rules
and regulations) relating to zoning, building, safety and environmental quality.
(5) Payment of Taxes. The Borrower has filed or caused to
be filed all federal, state and local tax returns which are required to be filed
or has obtained appropriate extensions therefore, and has paid or caused to be
paid all taxes as shown on said returns or on any assessment received by them,
to the extent that such taxes have become due and payable.
10
(6) No Action Affecting Exemption. The Borrower has not
taken and will not take any action and knows of no action that any Person has
taken or intends to take that would cause interest on the Series 2003 A Bond to
be includable in the gross income of the Holder for federal income tax purposes.
(7) No Defaults. The Borrower is not in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which it is a party or by
which it is bound, to the extent such default would result in a materially
adverse impact on the financial position or condition of the Borrower.
(8) Financial Statements. All financial statements now
furnished to the Authority by the Borrower are true, accurate and correct in all
material respects as of the date thereof and have or, with respect to the
financial statements hereafter furnished to the Authority, will have been
prepared in accordance with generally accepted accounting principles,
consistently applied. Such financial statements do, or will, fairly present the
Borrower's financial condition, as of the date of such statements, and the
results of its respective operations for the fiscal period then ended and there
has been no materially adverse change, financial or otherwise, in its condition
since the date of the last financial statement furnished to the Authority.
(9) Required Documents. The Borrower shall deliver, or
cause to be delivered, the opinions of counsel, the certificates of certain
officers of the Borrower and all other instruments and documents required by
this Agreement.
(10) No Litigation. There is no action, suit, proceeding
or investigation at law or in equity before or by any court, arbitration board
or tribunal, public board or body pending or, to the best knowledge of the
Borrower, threatened against or affecting the Borrower, or, to the best
knowledge of the Borrower, any basis therefor, wherein an unfavorable decision,
ruling or finding would (i) materially adversely affect the transactions
contemplated by this Agreement, or any other agreement or instrument to which
the Borrower is a party, which is used or contemplated for use in the
consummation of the transactions contemplated by this Agreement, or (ii)
adversely affect the exemption of interest on the Bond from federal income
taxation or the exemption of the interest on the Bond or the gain on the sale
thereof from taxation under the New Jersey Gross Income Tax Act (P.L. 1976,
c.47) as amended.
(11) Environmental Compliance. Except as set forth on
Schedule I hereto, the Borrower does not and will not, and will not permit any
tenant of the Project facility to, store, treat, process, generate, collect,
transport nor in any other manner produce or handle any material designated as a
hazardous substance or hazardous waste under any applicable state or federal
environmental statute except for (i) heating oil which is stored in underground
tanks and (ii) asbestos which may exist on underground pipes and which may be
present in other areas of its properties; provided, however, that no
asbestos-containing materials existing on its properties are friable or unsound,
damaged or otherwise in deteriorated condition or present a risk of becoming
airborne or otherwise adversely affect human health or the environment. All
11
exceptions set forth in clauses (i) and (ii) immediately above are stored,
treated, processed, generated, collected, transported, produced and handled in
compliance with all applicable state and federal environmental statutes and
regulations. The Borrower has obtained and will keep, and will require each and
every tenant of the Project facility to obtain and keep current all
environmental permits required by law, including but not limited to such permits
as are required pursuant to the Water Pollution Control Act N.J.S.A. 58:10A-1 et
seq., and the Solid Waste Management Act, N.J.S.A. 13:E-1 et seq. All
environmental permits which the Borrower is currently required to maintain are
identified on Schedule II hereto. The Borrower is not presently or in the past
engaged in any activity prohibited by the Water Pollution Control Act, N.J.S.A.
58:10A-1 et seq., the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., the
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. and N.J.S.A.
23:5-28, or any other state or federal environmental statute or regulation. The
Borrower will not take, and will not permit any tenant of the Project facility
to take, any action or engage in any activity, or fail to take any action or
engage in any activity in violation of any state or federal environmental
statute or regulation. There are no proceedings pending, or to the best
knowledge of the Borrower, threatened against the Borrower before any
governmental authority, court or other tribunal alleging or involving violation
of any state or federal environmental statute or regulation. The Project
facility is not subject to the provisions of the New Jersey Environmental
Cleanup Responsibility Act, as amended and now known as the Industrial Site
Recovery Act.
(12) General Obligation. This Agreement and the
obligations created hereunder are general obligations of the Borrower to which
its full faith and credit are pledged. The Borrower shall cooperate with the
Agent in connection with the execution, recording and filing, as the case may
be, of the Pledge Agreement, all financing statements, continuation statements
and other documents as may be necessary from time to time to perfect or continue
the perfection of the security interest granted hereunder.
(13) Sign. The Borrower shall erect at the Project site
the sign, if any, provided by the Authority pursuant to the Authority's
requirements.
(b) Public Purpose Covenants.
(1) Important Inducement. The availability of the
financial assistance by the Authority as provided for herein has been an
important inducement to the Borrower to undertake the Project and to locate the
Project in the State.
(2) No Untrue Statements. The Borrower covenants that the
representations, statements and warranties of the Borrower set forth in the
Application, this Agreement, or any other Loan Document (1) are true, correct
and complete, (2) do not contain any untrue statement of a material fact, and
(3) do not omit to state a material fact necessary to make the statements
contained herein or therein not misleading or incomplete. The Borrower
understands that all such statements, representations and warranties have been
relied upon as an inducement by the Authority to issue the Bond.
(3) Project Users. Prior to leasing, subleasing or
consenting to the subleasing or assignment of any lease of all or any part of
the Project, during the period
12
commencing on the date hereof and terminating three years after the Borrower has
completed the acquisition, renovation and construction of all or substantially
all of the Project, and (ii) upon the request of the Authority from time to time
thereafter, the Borrower shall cause a Project Occupant Information Form to be
submitted to the Authority by every prospective lessee, sublessee or lease
assignee of the Project. The Borrower shall not permit any such leasing,
subleasing or assigning of leases that would impair the excludability of
interest paid on the Bond from the gross income of the Holder thereof for
purposes of federal income taxation, or that would impair the ability of the
Borrower to operate the Project or cause the Project not to be operated as an
authorized project under the Act.
(4) Maintain Existence; Merge, Sell, Transfer. The
Borrower shall maintain its existence as a legal entity and shall not sell,
assign, transfer or otherwise dispose of the Project or substantially all of its
assets without the consent of the Authority; provided however that the Borrower
may merge with or into or consolidate with another entity, and the Project or
this Agreement may be transferred pursuant to such merger or consolidation
without violating this section provided (1) the Borrower causes the proposed
surviving, resulting or transferee company to furnish the Authority with a
Change of Ownership Information Form; (2) the net worth of the surviving,
resulting or transferee company following the merger, consolidation or transfer
is equal to or greater than the net worth of the Borrower immediately preceding
the merger, consolidation or transfer; (3) any litigation or investigations in
which the surviving, resulting or transferee company or its principals, officers
and directors are involved, and any court, administrative or other orders to
which the surviving, resulting or transferee company or its officers and
directors are subject, relate to matters arising in the ordinary course of
business; (4) the merger, consolidation or transfer shall not impair the
excludability of interest paid on the Series 2003 A Bond from the gross income
of the Purchaser thereof for purposes of federal income taxation or cause a
reissuance pursuant to an opinion of Bond Counsel; (5) the surviving, resulting
or transferee company assumes in writing the obligations of the Borrower under
this Agreement and the Note, and (6) after the merger, consolidation or
transfer, the Project shall be operated as an authorized project under the Act.
(5) Relocate Project. The Borrower shall not relocate the
Project or any part thereof out of the State. The Borrower shall not relocate
the Project within the State without the prior written consent of an Authorized
Officer of the Authority and an opinion of Bond Counsel that the relocation will
not affect the tax-exempt status of the Series 2003 A Bond.
(6) Operate Project. The Borrower shall operate or cause
the Project to be operated as an authorized project for a purpose and use as
provided for under the Act until the expiration or earlier termination of this
Agreement.
(7) Annual Certification. On each anniversary hereof, the
Borrower shall furnish to the Authority the following:
(A) a certification indicating whether or not the
Borrower is aware of any condition, event or act which
constitutes an Event of Default, or which would
constitute an Event of Default with the
13
giving of notice or passage of time, or both, under any
of the Loan Documents;
(B) a written description of the present use of the
Project and a description of any anticipated material
change in the use of the Project or in the number of
employees employed at the Project, and
(C) a report from every entity that leases or occupies
space at the Project indicating the number of persons
the entity employs at the Project.
(8) Preservation Of Project.
(A) The Borrower will at all times preserve and protect
the Project in good repair, working order and safe condition, and from time to
time will make, or will cause to be made, all needed and proper repairs,
renewals, replacements, betterments and improvements thereto including those
required after a casualty loss. The Borrower shall pay all operating costs,
utility charges and other costs and expenses arising out of ownership,
possession, use or operation of the Project. The Authority shall have no
obligation and makes no warranties respecting the condition or operation of the
Project.
(B) The Borrower will not use as a basis for contesting
any assessment or levy of any tax the financing under this Agreement or the
issuance of the Bond by the Authority and, if any administrative body or court
of competent jurisdiction shall hold for any reason that the Project facility or
the Property is exempt from taxation by reason of the financing under this
Agreement or the issuance of the Bonds by the Authority or other Authority
action in respect thereto, the Borrower covenants to make payments in lieu of
all such taxes in an amount equal to such taxes and, if applicable, interest and
penalties.
(9) Access to the Project and Inspection. The Authority
and its duly authorized agents shall have the right, at all reasonable times
upon the furnishing of notice that is reasonable under the circumstances to the
Borrower, to enter upon the Property and to examine and inspect the Project.
(10) Additional Information. Until payment of the Bonds
shall have occurred, the Borrower shall promptly, from time to time, deliver to
the Authority such information and materials relating to the Project and the
Borrower as the Authority may reasonably request. An Authorized Officer of the
Authority shall also be permitted, at all reasonable times, to examine the books
and records of the Borrower with respect to the Project and the obligations of
the Borrower hereunder, but such Authorized Officer shall not be entitled to
access to trade secrets or other proprietary information (other than financial
information of the Borrower.)
2.2. Representations of the Authority.
The Authority represents to and agrees with the Purchaser that as of
date hereof and as of the date of the Closing:
14
(a) Organization and Authority. The Authority is a public body
corporate and politic, duly created and existing as a political subdivision of
the State, with the power and authority set forth in the Act, including the
power and authority to authorize the issuance of the Bond under the Act.
(b) The Agreement. The Authority has the requisite authority to
enter into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Authority and, assuming the due authorization, execution and
delivery by the other parties hereto, will constitute a valid and binding
obligation of the Authority, enforceable in accordance with its terms (subject
to any applicable bankruptcy, insolvency, moratorium or other similar laws or
equitable principles affecting creditors' rights or remedies generally.)
(c) The Bonds. The Authority has the requisite authority to execute
the Bonds and when delivered to and paid for by the Purchaser at the Closing in
accordance with the provisions of this Agreement and the Resolution, the Bonds
will have been duly authorized, executed and issued and will constitute valid
and binding limited obligations of the Authority enforceable in accordance with
their terms and entitled to the benefits and security of this Agreement (subject
to any applicable bankruptcy, insolvency, moratorium or other similar laws or
equitable principles affecting creditors' rights or remedies generally).
(d) No Conflict. The adoption of the Resolution and the execution of
this Agreement and the Bonds and compliance by the Authority with the provisions
thereof and hereof, under the circumstances contemplated thereby and hereby, to
the knowledge of the Authority, do not and will not in any material respect
conflict with or constitute on the part of the Authority a breach of or default
under any indenture, deed of trust, mortgage, agreement, or other instrument to
which the Authority is a party, or conflict with, violate, or result in a breach
of any existing law, public administrative rule or regulation, judgment, court
order or consent decree to which the Authority is subject.
(e) Due Adoption. The Resolution and the forms of this Agreement and
the Bonds were adopted or approved at a duly convened meeting of the Authority,
with respect to which all legally required notices were duly given, and at which
meetings quorums were present and acting at the time of the adoption thereof.
(f) Special Limited Obligation. The State of New Jersey is not
obligated to pay, and neither the faith and credit nor taxing power of the State
of New Jersey is pledged to the payment of the principal or redemption premium,
if any, of or interest on the Bonds. The Bonds are special, limited obligations
of the Authority, payable solely out of the revenues or other receipts, funds or
moneys of the Authority pledged under this Agreement and from any amounts
otherwise available under this Agreement for the payment of the Bonds. The Bonds
do not now and shall never constitute a charge against the general credit of the
Authority. The Authority has no taxing power.
(g) Authority as Conduit Issuer. Except with respect to defaults
under certain obligations of the Authority in which it has acted only as a
conduit issuer for the benefit of borrowers, the Authority, to the best of its
knowledge, has never defaulted and is not now in
15
default with respect to, any bonds, notes or other obligations which it has
issued within the meaning of N.J.S.A. 49:3-50, as amended and as interpreted by
the Bureau of Securities of the State.
(h) No Representations as to Borrower. It is specifically understood
and agreed that the Authority makes no representation as to the financial
position or business condition of the Borrower and does not represent or warrant
as to the correctness, completeness or accuracy of any of the statements,
information (financial or otherwise), representations or certifications
furnished or to be made and furnished by the Borrower in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated thereunder or in connection with the sale of the Bond.
2.3. Representations and Warranties of the Agent.
The Agent represents and warrants that:
(a) Organization. The Agent is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America.
(b) Authorization; Agreements Valid and Binding. The execution,
delivery and performance of this Agreement has been duly authorized by all
requisite corporate action of the Agent and, assuming due execution by the other
parties hereto, this Agreement constitutes a valid and binding agreement of the
Agent, enforceable in accordance with its terms (subject to any applicable
bankruptcy, insolvency, moratorium or other similar laws or equitable principles
affecting creditors' rights or remedies generally).
(c) Power and Legal Capacity; Acceptance. The Agent has the power to
execute this Agreement and to accept the duties and obligations of Agent
hereunder, and by the execution of this Agreement, has validly accepted its
appointment as Agent hereunder.
(d) No Authorization Required. No further authorization of any
federal or State banking regulatory agency having jurisdiction over the Agent is
required with respect to the transactions contemplated on the part of the Agent
by the Financing Documents.
(e) No Consent Required. Neither the consummation of the
transactions contemplated on the part of the Agent by the Financing Documents,
nor compliance with the terms, conditions or provisions hereof, require consent
under any agreements, indentures or other instruments to which the Agent is a
party or by which it may be bound.
2.4. Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants that:
(a) Independent Investigation. The Purchaser has made an independent
investigation and evaluation of the financial position and business condition of
the Borrower and the value of the Project, or has caused such investigation and
evaluation of the Borrower and the Project to be made by persons it deems
competent to do so. The Purchaser has not relied on the Authority for any
information regarding the Borrower or the Project and the Purchaser expressly
relieves the Authority and its agents, representatives and attorneys of any
liability for failure to
16
provide such information or for any untrue fact or material omission in any
information regarding the Borrower or the Project that may have been provided by
the Borrower or the Authority, and their agents, representatives and attorneys.
(b) Investment Representation. The Purchaser is purchasing the Bonds
for its own account, with the purpose of investment and not with the intention
of distribution or resale thereof. The Bonds will not be sold unless registered
in accordance with the rules and regulations of the Securities and Exchange
Commission or the Authority is furnished with an opinion of counsel or a "No
Action" letter from the Securities and Exchange Commission that such
registration is not required.
17
ARTICLE III
AUTHORIZATION OF THE BOND; DETAILS OF THE BOND
3.1. Purpose of the Bond, Grant of Authority.
The Authority hereby authorizes and directs an Authorized Officer to
execute and deliver all documents and take all incidental action necessary to
enable the Authority to issue and sell the Bond.
3.2. Authorization of the Bonds.
The Authority hereby authorizes the issuance of two Bonds to be designated
(a) Economic Development Bond (Immunomedics, Inc. Project) Series 2003 A in a
principal amount of $1,000,000, and (b) Economic Development Bond (Immunomedics,
Inc. Project) Series 2003 B (Federally Taxable) in a principal amount of
$5,376,000, in order to make the Loan. The Bond shall be a special and limited
obligation of the Authority payable solely from amounts in the Funds and
Accounts held under the Loan Documents.
3.3. Provisions of the Bond.
(a) The Bonds shall be sold to the Purchaser in the manner to be
determined by the Authority and upon terms acceptable to the Authority, subject
to all requirements of the Act.
(b) The Series 2003 A Bond shall be issued as a fully-registered
bond without coupons in the denomination of $1,000,000. The Series 2003 A Bond
shall mature on the maturity date and bear interest at the rates set forth in
the form of the Series 2003 A Bond attached hereto and incorporated herein as
Exhibit C. Principal and interest shall be payable initially on each Debt
Service Payment Date in accordance with the schedule provided in the form of the
Series 2003 A Bond.
(c) The Series 2003 B Bond shall be issued as a fully-registered
bond without coupons in the denomination of $5,376,000. The Series 2003 B Bond
shall mature on the maturity date and bear interest at the rate set forth in the
form of the Series 2003 B Bond attached hereto and incorporated herein as
Exhibit D. Principal and interest shall be payable initially on each Debt
Service Payment Date in accordance with the schedule provided in the form of the
Series 2003 B Bond.
(d) The Bonds are to be in substantially the forms set forth in
Exhibits C and D hereto with such insertions, omissions or variations (including
the printing of portion of the text on the reverse side) as may be necessary or
appropriate or as may be permitted by this Agreement or the Act.
(e) Any monthly installment of principal or interest or any portion
thereof due on a Bond that is not received by the Holder within ten (10) days of
the due date, shall bear
18
interest at the rate of five percent (5%) of the amount of the payment then due
(the "Late Payment Fee") until such time as such installment is received by the
Holder, and such additional amount of interest due and owing pursuant to this
subparagraph shall be paid to the Holder together with the installment of
principal and interest past due on such Bond.
3.4. Redemption Provisions.
(a) Redemption Provisions.
(1) Extraordinary Mandatory Redemption-Casualty and Condemnation
Proceeds. The Bonds are subject to mandatory redemption by the Authority prior
to maturity, in whole at any time, or in part on any Debt Service Payment Date
to the extent proceeds of insurance or condemnation awards are received with
respect to the Project and are applied for this purpose pursuant to Section 7.2
of this Agreement at a Redemption Price equal to one hundred percent (100%) of
the principal amount to be redeemed, plus interest accrued to the redemption
date.
(2) Optional Redemption. The Bonds are subject to optional
redemption by the Authority, at the direction of the Borrower, upon at least
three (3) Business Days' notice, in whole or in part at any time at a Redemption
Price equal to one hundred percent (100%) of the principal amount to be
redeemed, plus interest accrued to the redemption date; provided, however, that
any such partial redemption shall be in an amount of $100,000.00 or an integral
multiple of $100,000.00 in excess thereof, and provided further that no such
redemption shall be made other than on a Debt Service Payment Date.
(3) Optional Redemption-Determination of Taxability. The Series
2003 A Bonds are subject to optional redemption at the option of the Purchaser
in whole as soon as practicable but no later than sixty (60) days following a
Determination of Taxability. Upon the occurrence of any such event, the Series
2003 A Bond shall be redeemed by the Authority at a redemption price equal to
one hundred percent (100%) of the principal amount of the Series 2003 A Bond
plus accrued interest up to, but not including, the redemption date.
(4) Mandatory Redemption - Loss in Collateral Value. The Bonds
are subject to mandatory redemption by the Authority, at the direction of the
Agent, in part at any time when the aggregate amount of the Loan outstanding
shall exceed the Loan Value of the Collateral, at a redemption price equal to
the difference between the amount of the Loan outstanding and the then-current
Loan Value of the Collateral; provided, however, that the Borrower shall receive
at least two (2) Business Days' notice prior to any such redemption.
(5) Selection of Bond to be Redeemed. Any redemption prior to
maturity will be accompanied by payment of all accrued and unpaid interest due
to the date of redemption on the principal amount of the Bond to be redeemed and
all other fees, expenses and other sums due and owing under the Loan Documents.
Any partial redemption will be applied to installments of principal due on the
Bond to be redeemed in an equal proportion, whether such redemption be voluntary
or involuntary, whether by acceleration of the Loan or upon an Event of Default
or otherwise.
19
(6) Notice of Redemption. When required to redeem the Bond under
any provision of this Agreement (other than Section 3.4(a)(3)), the Authority,
at the direction of the Borrower, shall direct the Agent to mail notice of the
redemption by first class mail, postage prepaid, not less than fifteen (15) days
nor more than thirty (30) days prior to the redemption date to the Holder or to
provide such other notice as shall be acceptable to the Holder. Such notice
shall be given in the name of the Authority, shall identify the Bond, or portion
thereof, to be redeemed, shall specify the redemption date and the Redemption
Price, and shall state that on the redemption date the Bond, or portion thereof,
called for redemption will be payable at the principal corporate trust office of
the Agent and that from that date interest will cease to accrue.
(7) Payment of Redeemed Bond. Notice having been given by
mailing in the manner provided in Section 3.4(a)(6) hereof, a Bond called for
redemption shall become due and payable on the redemption date so designated at
the Redemption Price, plus accrued interest to the date fixed for redemption,
upon presentation and surrender thereof at the office specified in such notice.
3.5. Medium of Payment.
Principal of and interest on the Bonds shall be payable, with respect to
interest, principal or Redemption Price, in any coin or currency of the United
States of America which, at the time of payment, is legal tender for the payment
of public and private debts, in immediately available funds or other method
acceptable to the Holder or, if requested by the Holder, by wire transfer.
3.6. Execution.
The Bonds shall be executed in the name and on behalf of the Authority by
the manual or facsimile signature of its Executive Director or other Authorized
Officer and its official seal (or a facsimile thereof) shall be thereunto
affixed, imprinted, engraved or otherwise reproduced, and attested by the manual
or facsimile signature of the Secretary or Assistant Secretary of the Authority.
3.7. Registration, Transfer and Exchange of Bond.
The Bonds shall be transferable only upon the books of the Agent
maintained at the principal corporate trust office of the Agent, by a Holder in
person or by its attorney duly authorized in writing, upon surrender thereof
together with a written instrument of transfer satisfactory to the Authority and
the Agent and duly executed by the Holder or its duly authorized attorney. No
transfer of a Bond shall be valid unless (i) made on such books and similarly
noted by endorsement of the Authority on such Bond, or, at the expense of the
Holder, the Authority shall cause the Agent to execute and deliver a new Bond
registered in the name of the transferee; and (ii) the Holder requesting the
transfer shall assign to the transferee, all of the rights of the Authority
assigned to the Holder pursuant to the Assignment. Notwithstanding any other
provision of this Agreement or any other Financing Document, the Bonds shall be
transferable only as a whole to a single purchaser and may not be transferred in
part except after full compliance with the provisions of Section 3.8. Nothing
contained in the preceding sentence shall be deemed to preclude the Purchaser or
any subsequent Holder from
20
selling or otherwise transferring all or part of its interest in the Bond
pursuant to a participation agreement so long as the Bonds remain registered in
the name of the Purchaser or Holder; in such event, the Authority, the Borrower
and the Agent may treat and consider the Persons in whose name the Bonds are
registered as the holder and absolute owner of the Bonds for all purposes
notwithstanding any transfer of an interest in the Bonds in accordance with this
sentence.
3.8. Execution of Indenture.
(a) If the Holder at any time proposes to sell, pledge, assign or
otherwise transfer a Bond so that thereafter there will be more than one Holder,
the Authority will, as soon as reasonably possible after the receipt of a
written request from the Holder, execute and deliver to a bank or trust company,
as trustee, having a capital and surplus of at least $10,000,000 (if there be
such an institution willing, qualified and able to accept the trust upon
reasonable or customary terms), an Indenture of Trust the ("Indenture"),
providing for the execution and delivery thereunder of a new Economic
Development Bond (Immunomedics, Inc. Project) of the Authority (herein called
the "Indentured Bond"), equal in aggregate principal amount to the outstanding
and unpaid principal amount of the transferred Bond at the time of such
authorization and in all other respects substantially similar to, and having
substantially all the rights and privileges carried by, the Bond.
(b) Any action taken by the Authority pursuant to this Section 3.8 shall
be taken by the Authority as soon as practicable (as determined by the
Authority) after such written request from the Holder; provided however, no such
action under this Section 3.8 shall be taken (i) without the approval of counsel
chosen by the Authority, (ii) the receipt by the Authority of an approving
opinion of Bond Counsel, (such approval or opinion to be obtained at the sole
cost of the Borrower) and (iii) if it shall constitute an Event of Default.
(c) In connection with the execution of the Indenture, the Holder shall
assign to the trustee under the Indenture, to be held by such trustee for the
benefit of all the Holders of the Indentured Bond, all of the rights of the
Authority assigned to such Holder pursuant to the Assignment and, in that
connection, will execute and deliver all such instruments and documents as may
be deemed necessary or appropriate by counsel for the Authority and by such
independent counsel as shall be designated by such Holder. The terms and
provisions of the Indentured Bond shall be set forth in the Indenture, which
shall also embody the substance of all covenants, conditions and provisions set
forth in the Authority Documents.
(d) Prior to taking any of the foregoing actions, the Authority shall have
received indemnification satisfactory to it for any costs and expenses it may
bear, including the costs of counsel.
(e) Prior to a proposed sale of a Bond, provided no Event of Default has
occurred and is continuing, the selling Holder shall provide the Borrower with
fifteen (15) days notice of the terms of the proposed sale and shall afford the
Borrower the opportunity to purchase or cause the purchase of such Bond on the
proposed sale date for the same terms. In the event the Borrower intends to
purchase or cause the purchase of such Bond, it shall provide
21
notice to the selling Holder within such fifteen (15) day period and at least
two (2) days prior to the proposed sale date.
3.9. Mutilated, Destroyed, Lost or Stolen Bond.
If any Bond shall become mutilated, the Authority shall execute and
deliver a new Bond of like tenor and denomination in exchange and substitution
for the Bond so mutilated, but only upon surrender to the Agent of such
mutilated Bond for cancellation, and the Authority and the Agent may require
reasonable indemnity therefor. If any Bond shall be reported lost, stolen or
destroyed, evidence as to the ownership and the loss, theft or destruction
thereof shall be submitted to the Authority and the Agent; and if such evidence
shall be satisfactory to an Authorized Officer of the Authority and the Agent
and indemnity satisfactory to an Authorized Officer of the Authority and the
Agent shall be given, the Authority shall execute, and thereupon the Agent shall
authenticate and deliver a new Bond of like tenor and denomination. The cost of
providing any substitute Bond under the provisions of this Section shall be
borne by the Holder for whose benefit such substitute Bond is provided.
Every substituted Bond issued pursuant to this Section shall constitute an
additional contractual obligation of the Authority, whether or not the Bond
alleged to have been destroyed, lost or stolen shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Bonds duly issued hereunder.
The Bonds shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and all other
rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments, investments or other securities without their surrender.
3.10. Conditions Precedent to Delivery of the Bond.
The Agent, upon receipt of the purchase price thereof from the Purchaser,
shall deliver to or upon the order of the Authority the Bonds authorized to be
issued pursuant to this Agreement upon delivery to the Agent of:
(a) a copy, certified by an Authorized Officer of the Authority, of
all resolutions adopted and proceedings had by the Authority
authorizing the issuance of the Bonds, including the resolution
authorizing, the execution, delivery and performance of this
Agreement;
(b) an executed copy of this Agreement and of the other Financing
Documents;
(c) the executed Assignment;
(d) an opinion of Bond Counsel to the effect that the Bonds and the
execution and delivery of this Agreement has been duly authorized by
the Authority, that the Bonds have been duly issued and this
Agreement has been duly executed by the
22
Authority and that, assuming proper authorization and execution of
this Agreement by the parties thereto other than the Authority, the
Bonds and this Agreement are valid and binding obligations of the
Authority, enforceable against it in accordance with their terms,
and that under existing statutes, rulings and court decisions,
assuming continued compliance with certain tax-related covenants and
certifications made by the Borrower, interest on the Series 2003 A
Bond is not includable in gross income for Federal income tax
purposes, and that interest on the Series 2003 A Bond is not
includable as gross income under the existing New Jersey Gross
Income Tax Act; provided, that such opinion may state that the
enforceability of the Bonds and this Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights
generally and except to the extent that the enforceability thereof
may be limited by the application of general principles of equity;
(e) an opinion of counsel to the Borrower to the effect that the
execution and delivery of Loan Documents have been duly authorized,
executed and delivered by the Borrower, and each of the Loan
Documents is the valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its respective
terms, provided, that, such opinion may state that the
enforceability of the Loan Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and except to the extent that the enforceability thereof
may be limited by the application of general principles of equity;
(f) copies of (i) the Borrower's organizational documents, together
with a good standing certificate dated not more than ten (10) days
prior to Closing, (ii) a duly adopted resolution of the Borrower
approving the Loan and the issuance of the Bonds by the Authority
and authorizing the execution and delivery of the Loan Documents,
and (iii) all other documents required by the Authority or the
Purchaser in connection therewith;
(g) original or duplicate policies of any insurance policies
required to be maintained pursuant to Section 7.1 hereof, together
with evidence of the payment of the last quarterly premium therefor.
Those policies shall insure for the full insurable replacement value
of the Property and shall provide for the Purchaser as the first
mortgagee under a standard New Jersey Mortgagee Endorsement Clause;
(h) original or duplicate policies of comprehensive public liability
insurance covering injury and damage to persons and property with
limits acceptable to the Purchaser and naming the Purchaser as an
additional insured;
23
(i) such other insurance as is from time to time carried by most
owners of similar property including, but not limited to, rental or
business interruption insurance, boiler and machinery insurance and
elevator insurance;
(j) in connection with the insurance described in the subparagraphs
(g) through (i), the Borrower may furnish certificates of blanket
coverage in lieu of original or duplicate policies as long as the
Property is identified and specifically allocated amounts are shown.
In addition, all such insurance polices shall (i) be written by
insurance companies authorized or licensed to do business in the
State having an Xxxxxx X. Best Company, Inc. rating of A or higher
and a financial size category of not less than VII and (ii) include
a provision that no later than thirty (30) days prior to any policy
expiration the Purchaser shall receive written notice from the
insurer as to cancellation;
(k) a certificate of the Borrower to the effect that there exists no
action, suit, investigation, litigation or proceeding pending or
threatened in any court or before any arbitrator or governmental or
regulatory agency or authority that (i) could reasonably be expected
to (A) have a material adverse affect on the business, condition
(financial or otherwise), operations, performance, properties or
prospects of the Borrower, except for claims or litigation
previously disclosed to the Purchaser and the Authority in writing;
(B) adversely affect the ability of the Borrower to perform its
obligations under the Loan Documents or (C) adversely affect the
rights and remedies of the Agent under the Loan Documents or (ii)
purports to adversely affect any aspect of the Project facility
(collectively, a "Material Adverse Effect");
(l) a certificate of the Borrower to the effect that all of the
information previously provided by or on behalf of the Borrower or
any of its subsidiaries to the Purchaser prior to its commitment
shall be true and correct in all material aspects; and no
development or changes shall have occurred, and no additional
information shall have come to the attention of the Purchaser, that
(i) has resulted in or could reasonably be expected to result in a
material change in, or material deviation from, such information or
(ii) has had or could reasonably be expected to have a Material
Adverse Effect;
(m) evidence that all applicable approvals for the use and occupancy
of the Project facility have been obtained from all governmental
agencies or public utility companies having jurisdiction including,
but not limited to: all environmental approvals; approvals for
sewer, water, gas, electric and other utilities; a final certificate
of occupancy and all zoning approvals. All of such approvals and
permits shall be legally valid and shall remain in full force and
effect throughout the term of the Loan; and
(n) such additional documents, certificates and opinions of counsel
as may be required by the Authority to effect the issuance and sale
of the Bonds.
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When the documents mentioned in this Section have been filed with the
Agent and when the Bonds shall have been executed as required by this Agreement,
the Agent shall deliver the Bonds in accordance with a certificate from the
Authority but only upon payment to the Agent for the account of the Authority of
the purchase price of the Bonds.
3.11. Temporary Bond.
Pending preparation of definitive Bonds, or by agreement with the
Purchaser, the Authority may issue temporary printed or typewritten Bonds of
substantially the tenor recited above, in fully registered form without interest
coupons. Until exchanged for a definitive Bond, upon surrender, a temporary Bond
shall have the same rights, remedies and security hereunder as a definitive
Bond.
3.12. Cancellation of Surrendered Bond.
Any Bond surrendered for payment, redemption or exchange and any Bond
purchased with moneys from any Fund shall be canceled by the Agent. The Agent
shall deliver the canceled bonds to the Authority.
25
ARTICLE IV
THE LOAN; REPAYMENT OF LOAN; TERMS
4.1. Loan of Bond Proceeds.
Upon the issuance of the Bonds in accordance with the provisions of this
Agreement, the proceeds thereof shall be loaned to the Borrower for the purpose
of paying for the costs of the Project and certain costs incurred by the
Authority and the Borrower in connection with the issuance and sale of the
Bonds, all in the manner provided herein. The Loan is evidenced by the Notes,
forms of which are attached hereto as Exhibits E and F.
4.2. Repayment of Loan.
(a) The obligations of the Borrower to make or cause to be made the
payments payable under this Agreement and the Notes shall be absolute and
unconditional and the amount, manner and time of payment of such payments shall
not be decreased, abated, postponed or delayed for any cause or by reason of the
happening of any event, except to the extent that the Authority has available
the proceeds of use and occupancy insurance for application to the making of
such payments.
(b) The Borrower shall repay the Notes in immediately available
funds and in lawful money of the United States of America, together with
interest, as hereinafter provided for, as follows:
(i) interest, (computed on the basis of a 360 day year for
actual days elapsed) at said office in like money on the unpaid
principal amount of the Loan from time to time outstanding at a rate
per annum from the date hereof until maturity, to be elected by the
Borrower pursuant to the notice requirements set forth in Paragraph
(c) hereof, equal to either:
(A) (1) with respect to the Series 2003 B Note, a
fluctuating rate per annum equal to the Prime Rate less two
hundred (200) basis points, which rate shall be adjusted from
time to time when and as the Prime Rate shall change and which
such changes in the rate of interest resulting from changes in
the Prime Rate shall take effect immediately without notice or
demand of any kind (that portion of the Loan bearing interest
at this rate is sometimes hereinafter called a "Prime Loan"),
and (2) with respect to the Series 2003 A Note, the higher of
(a) the Purchaser's Tax Cost of Funds, or (b) the tax-exempt
equivalent of the Prime Rate less two hundred (200) basis
points, which shall be adjusted in accordance with the
foregoing subparagraph (1) (that portion of the Loan bearing
interest at this rate is sometimes hereinafter called a
"Tax-Exempt Prime Loan"); or
26
(B) subject to availability, (1) with respect to the
Series 2003 B Note, a fixed rate of fifteen (15) basis points
plus the LIBOR Rate for the Interest Period as selected
pursuant to the terms of this Agreement (that portion of the
Loan bearing interest at this rate is sometimes hereinafter
called a "LIBOR Loan"), and (2) with respect to the Series
2003 A Note, the higher of (a) the Purchaser's Tax Cost of
Funds, or (b) the tax-exempt equivalent of fifteen (15) basis
points plus the LIBOR Rate (that portion of the Loan bearing
interest at this rate is sometimes hereinafter called a
"Tax-Exempt LIBOR Loan"); provided, however, that no Interest
Period with respect to a LIBOR Loan or a Tax-Exempt LIBOR Loan
shall extend beyond the final maturity of the respective Note;
and provided, further, that if prior to the end of any such
Interest Period the Borrower and the Purchaser fail to agree
upon a new Interest Period therefor as set forth in Paragraph
(c) hereof, such LIBOR Loan or Tax-Exempt LIBOR Loan shall
automatically continue as a LIBOR Loan or Tax-Exempt LIBOR
Loan with the same Interest Period as that previously selected
by the Borrower, and shall continue to renew for Interest
Periods of the same length until such time as a new Interest
Period therefor is agreed upon;
(ii) with respect to the Series 2003 A Note, in sixty (60)
equal successive monthly principal installments, the first 59 of
which shall each be in the amount of SIXTEEN THOUSAND SIX HUNDRED
SIXTY-SIX DOLLARS AND SIXTY-SIX CENTS ($16,666.66) and the 60th and
final such principal installment shall be in the amount of the then
remaining principal balance of the Notes together with all accrued
and unpaid interest, each such payment payable on the first day of
each month in each year commencing July 1, 2003 until the entire
principal balance and all accrued and unpaid interest shall have
been paid in full; and
(iii) with respect to the Series 2003 B Note, in sixty (60)
equal successive monthly principal installments, the first 59 of
which shall each be in the amount of EIGHTY-NINE THOUSAND SIX
HUNDRED DOLLARS ($89,600) and the 60th and final such principal
installment shall be in the amount of the then remaining principal
balance of the Notes together with all accrued and unpaid interest,
each such payment payable on the first day of each month in each
year commencing July 1, 2003 until the entire principal balance and
all accrued and unpaid interest shall have been paid in full.
(c) In consideration of the issuance of the Bond and the granting of
the Loans, the Borrower hereby agrees as follows:
(i) In connection with the conversion or continuing of the
interest rate or rates payable during the term of the Loans, the
Borrower shall, on any Business Day, provide the Purchaser an
irrevocable notice of a request for the interest rate on the Loan
hereunder (i) in the case of LIBOR Loans or Tax-Exempt LIBOR
27
Loans three (3) Business Days before the continuation or conversion,
as the case may be, and (ii) in the case of Prime Loans or
Tax-Exempt Prime Loans not less than one (1) nor more than five (5)
Business Days before the continuation or conversion, as the case may
be, setting forth (A) the amount of the applicable Loan that shall
bear interest at the rate requested, which shall not be less than
$100,000, (B) the requested Interest Period commencement date, (C)
whether the borrowing or Interest Period is to be for a LIBOR Loan,
Tax-Exempt LIBOR Loan, Prime Loan, Tax-Exempt Prime Loan or a
combination thereof, and (D) if entirely or partially a LIBOR Loan
or Tax-Exempt LIBOR Loan, the length of the Interest Period
therefor, which shall be one (1), two (2), three (3) or six (6)
months, in the case of LIBOR Loans and Tax-Exempt LIBOR Loans. As
used in this paragraph (c), (1) "conversion" shall mean the
conversion from one interest rate to another interest rate asset
forth below, and (2) "continue" shall mean the continuation of a
particular LIBOR Rate from a concluding Interest Period into a
successive Interest Period of equivalent length. Such notice shall
be written (including, without limitation, via facsimile
transmission) and shall be sufficient if received by l p.m. on the
date on which such notice is to be given. If any such request is
sent by facsimile it shall be confirmed in writing sent by the
Borrower to the Purchaser within two Business Days thereafter.
(ii) The Borrower shall have the right at any time on prior
irrevocable written or telex notice to the Purchaser as specified in
this Agreement (A) to continue any LIBOR Loan or Tax-Exempt LIBOR
Loan as a LIBOR Loan or Tax-Exempt LIBOR Loan with the same or
different Interest Period as that previously selected by the
Borrower, (B) to convert any LIBOR Loan or Tax-Exempt LIBOR Loan
into a Prime Loan or Tax-Exempt Prime Loan and (C) to convert any
Prime Loan or Tax-Exempt Prime Loan into a LIBOR Loan or Tax-Exempt
LIBOR Loan (specifying the Interest Period to be applicable
thereto), subject to the following:
(1) in the case of a conversion of less than all of the
outstanding Loan, the aggregate principal amount of Loan
converted shall not be less than $100,000 and shall be an
integral multiple thereof;
(2) no LIBOR Loan or Tax-Exempt LIBOR Loan shall be
converted at any time other than at the end of an Interest
Period applicable thereto; and
(3) any portion of a Loan maturing or required to be
prepaid in less than one month may not be converted into or
continued as a LIBOR Loan or Tax-Exempt LIBOR Loan.
In the event that the Borrower shall not give notice to continue any
LIBOR Loan or Tax-Exempt LIBOR Loan as a LIBOR Loan or Tax-Exempt LIBOR Loan
with the same or different Interest Period as that previously selected by the
Borrower or to convert any such
28
LIBOR Loan or Tax-Exempt LIBOR Loan into a Prime Loan or Tax-Exempt Prime Loan,
then on the last day of the Interest Period thereof, such LIBOR Loan or
Tax-Exempt LIBOR Loan (unless prepaid) shall automatically continue as a LIBOR
Loan or Tax-Exempt LIBOR Loan with the same Interest Period as that previously
selected by the Borrower.
The Interest Period applicable to any LIBOR Loan or Tax-Exempt LIBOR
Loan resulting from a conversion or continuation shall be specified by the
Borrower in the irrevocable notice delivered by the Borrower pursuant to this
Note; provided, however, that, if such notice does not specify either the type
of Loan or the Interest Period to be applicable thereto, the Loan shall
automatically be continued, as the case may be, (i) if such Loan was a LIBOR
Loan or Tax-Exempt LIBOR Loan as of such notice, as a LIBOR Loan or Tax-Exempt
LIBOR Loan for the same Interest Period as that previously selected by the
Borrower, or (ii) if such Loan was a Prime Loan or Tax-Exempt Prime Loan as of
such notice, as a Prime Loan or Tax-Exempt Prime Loan, until such required
information is furnished pursuant to the terms hereof. Notwithstanding anything
to the contrary contained above, no more than three (3) LIBOR Loan Interest
Periods shall be outstanding at any one time and if an Event of Default shall
have occurred and is continuing, no LIBOR Loan or Tax-Exempt LIBOR Loan may be
continued as a LIBOR Loan or Tax-Exempt LIBOR Loan with the same or different
Interest Period as that previously selected by the Borrower and no Prime Loan or
Tax-Exempt Prime Loan may be converted into a LIBOR Loan or Tax-Exempt LIBOR
Loan.
(iii) Notwithstanding anything contained in the foregoing
subparagraph (c)(i) or (c)(ii) to the contrary, none of the
following shall be permitted to occur unless the Borrower has
delivered to the Authority and the Agent an Opinion of Bond Counsel
to the effect that such change shall not adversely affect the
tax-exempt status of the Bond:
(1) the continuation of a LIBOR Loan (or any portion
thereof) as a LIBOR Loan or Tax-Exempt LIBOR Loan with a
different Interest Period as that previously selected by the
Borrower;
(2) the conversion of a LIBOR Loan or Tax-Exempt LIBOR
Loan (or any portion thereof) into a Prime Loan or Tax-Exempt
Prime Loan; and
(3) the conversion of a Prime Loan or Tax-Exempt Prime
Loan or Tax-Exempt Prime Loan (or any portion thereof) into a
LIBOR Loan or Tax-Exempt LIBOR Loan.
(d) If the Purchaser determines that the effect of any applicable
law or government regulation, guideline or order or the interpretation thereof
by any governmental authority charged with the administration thereof (such as,
for example, a change in official reserve requirements which the Purchaser is
required to maintain in respect of loans or deposits or other funds procured for
funding such loans) is to increase the cost to the Purchaser of making or
continuing LIBOR Loans or Tax-Exempt LIBOR Loans hereunder or to reduce the
amount of any payment of principal or interest receivable by the Purchaser
thereon, then the Borrower will
29
pay to the Purchaser on demand such additional amounts as the Purchaser may
determine to be required to compensate the Purchaser for such additional costs
or reduction. Any additional payment under this section will be computed from
the effective date at which such additional costs have to be borne by the
Purchaser. A certificate as to any additional amounts payable pursuant to this
paragraph (d) setting forth the basis and method of determining such amounts
shall be conclusive, absent manifest error, as to the determination by the
Purchaser set forth therein if made reasonably and in good faith. The Borrower
shall pay any amounts so certified to it by the Purchaser within 10 days of
receipt of any such certificate.
(e) In the event, and on each occasion, that on the day two (2)
Business Days prior to the commencement of any Interest Period for a LIBOR Loan
or Tax-Exempt LIBOR Loan, the Purchaser shall have determined (a) that dollar
deposits in the amount of the requested principal amount of such LIBOR Loan or
Tax-Exempt LIBOR Loan are not generally available in the London interbank
market, (b) that the rate at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to the Purchaser of making or
maintaining such LIBOR Loan or Tax-Exempt LIBOR Loan during such Interest
Period, or (c) that reasonable means do not exist for ascertaining the LIBOR
Rate, the Purchaser shall, as soon as practicable thereafter, give written or
telex notice of such determination to the Borrower. In the event of any such
determination, until the circumstances giving rise to such notice no longer
exist, no LIBOR Loans or Tax-Exempt LIBOR Loans will be made hereunder. Each
determination by the Purchaser hereunder shall be conclusive absent manifest
error.
(f) LIBOR Loans or Tax-Exempt LIBOR Loans:
(i) Notwithstanding anything to the contrary herein contained,
if any change in any law or regulation or in the interpretation
thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for
the Purchaser to make or maintain any LIBOR Loan or Tax-Exempt LIBOR
Loan, then, by written notice to the Borrower, the Purchaser shall:
(A) declare that LIBOR Loans or Tax-Exempt LIBOR Loans
will not thereafter be made by the Purchaser hereunder,
whereupon the Borrower shall be prohibited from requesting
LIBOR Loans or Tax-Exempt LIBOR Loans from the Purchaser
hereunder unless such declaration is subsequently withdrawn;
and
(B) require that all outstanding LIBOR Loans or
Tax-Exempt LIBOR Loans made by it be converted to Prime Loans
or Tax-Exempt Prime Loans, in which event (1) all such LIBOR
Loans or Tax-Exempt LIBOR Loans shall be automatically
converted to Prime Loans or Tax-Exempt Prime Loans as of the
effective date of such notice as provided in Section 4.2(c)(i)
hereof and (2) all payments and prepayments of principal which
would otherwise have been applied to repay the converted LIBOR
Loans or Tax-Exempt LIBOR Loans shall instead be applied to
repay the
30
Prime Loans or Tax-Exempt Prime Loans resulting from the
conversion of such LIBOR Loans or Tax-Exempt LIBOR Loans.
For purposes of this paragraph (f), a notice to the Borrower by the
Purchaser pursuant to paragraph (f)(A) above shall be effective, if lawful, on
the last day of the then current Interest Period; in all other cases, such
notice shall be effective on the day of receipt by the Borrower.
(g) Alternate Determination of LIBOR Rate. If the LIBOR Rate cannot
be determined in accordance with the definition of "LIBOR Rate" in Section 1.1
hereof, the following procedures shall be used to determine the LIBOR Rate: if
both the Telerate and Reuters system are unavailable, then the rate for that
date will be determined on the basis of the offered rates for deposits in U.S.
dollars for a period of time equal to the Interest Period which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Business Days prior to the end of
the Interest Period, as selected by the Bank. The principal London office of
each of the four major London banks will be requested to provide a quotation of
its U.S. dollar deposit offered rate. If at least two such quotations are
provided, the rate for the date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for that date
will be determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time equal to the Interest Period offered
by major banks in New York City at approximately 11:00 a.m. (New York City
time), on the day that is two London Business Days prior to the end of the
Interest Period. In the event that the Agent is unable to obtain any such
quotation as provided above, it will be deemed that the LIBOR Rate pursuant to a
LIBOR Loan or Tax-Exempt LIBOR Loan cannot be determined. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of the Bank, then for any period
during which such Reserve Percentage shall apply, the LIBOR Rate shall be equal
to the amount determined above divided by an amount equal to 1 minus the Reserve
Percentage.
(h) Each payment on the Notes shall be at least sufficient to pay
the total amount then due and payable on the respective Bonds, and if on any
Debt Service Payment Date, the balance in the Debt Service Fund is insufficient
to make required payments in respect of the Bonds on such dates, the Borrower
shall forthwith pay any such deficiency to the Agent for deposit into the Debt
Service Fund.
(i) If at any time the amount held by the Agent in the Debt Service
Fund shall be sufficient to pay at the times required the principal or
Redemption Price of, and interest on, the Bonds then remaining unpaid, the
Borrower shall not be obligated to make any further payments under the foregoing
provisions.
(j) All payments shall be made by Borrower to the Agent at the
Agent's address on the first page of this Agreement or such other place as the
Agent may from time to time specify in writing, in lawful currency of the United
States of America in immediately
31
available funds, without counterclaim or setoff and free and clear of, and
without any deduction or withholding for, any taxes or other payments.
(k) All payments received by the Agent shall be applied first to the
payment of accrued interest, then to the balance on account of outstanding
principal and then to all fees, expenses and other amounts due to the Purchaser;
provided, however, that following the occurrence of an Event of Default,
payments will be applied to the obligations of Borrower hereunder in accordance
with Section 6.2 hereof.
(l) At all times throughout the term of the Loan, the payment dates
should be adjusted in accordance with the "Following Business Day Convention,"
as hereinafter defined. The Following Business Day Convention shall be used to
adjust any relevant date if that date would otherwise fall on a day that is not
a Business Day. For the purposes herein, the term "Following Business Day
Convention" shall mean that an adjustment will be made if any relevant date
would otherwise fall on a day that is not a Business Day so that the date will
be the first following day that is a Business Day. All payments hereunder shall
be adjusted in accordance with the Following Business Day Convention.
4.3. Prepayment of Loans.
(a) The Borrower shall have the right to pay in full, at any time or
in part, from time to time, without premium or penalty (except as set forth in
paragraph 4.3(d) below), the unpaid balance of the Loans from the proceeds of
insurance or condemnation awards as provided in Section 3.4(a)(1) hereof.
(b) The Borrower shall prepay the entire unpaid balance of the
respective Loans, together with redemption premium, if any, if the events which
require the Agent to redeem the respective Bond in accordance with the
provisions of Section 3.4(a)(3) (with respect to the Series 2003 A Note only) or
3.4(a)(4) hereof have occurred.
(c) To the extent that the interest which is to be paid to the
redemption date will not be available as of the redemption date in the Debt
Service Fund under this Agreement from amounts paid under Section 4.2 hereof,
the Borrower will be responsible to assure that the full amount of accrued
interest to the redemption date will be held as Available Moneys by the Agent as
of the redemption date.
(d) Yield Maintenance Fee. Upon any prepayment in accordance with
subparagraphs (a) or (b) of this Section 4.3, Borrower shall pay to Purchaser,
upon the request of Purchaser, such amount or amounts as shall be sufficient (in
the reasonable opinion of Purchaser) to compensate it for any loss, cost, or
expense inured as a result of: (i) any payment of a LIBOR Loan or Tax-Exempt
LIBOR Loan on a date other than the last day of the Interest Period for such
Loan; (ii) any failure by Borrower to borrow a LIBOR Loan or Tax-Exempt LIBOR
Loan on the date specified by Borrower's written notice; or (iii) any failure by
Borrower to pay a LIBOR Loan or Tax-Exempt LIBOR Loan on the date for payment
specified in Borrower's written notice. Without limiting the foregoing, Borrower
shall pay to Purchaser a "yield maintenance fee" in an amount computed as
follows: The current rate for United States Treasury
32
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closer to the term chosen pursuant to the LIBOR Rate
Election as to which the prepayment is made, shall be subtracted from the LIBOR
Rate, in effect at the time of prepayment. If the result is zero or a negative
number, there shall be no yield maintenance fee. If the result is a positive
number, then the resulting percentage shall be multiplied by the amount of the
principal balance being prepaid. The resulting amount shall be divided by 360
and multiplied by the number of days remaining in the term chosen pursuant to
the LIBOR Rate Election as to which the prepayment is made. Said amount shall be
reduced to present value calculated by using the above-referenced term chosen
pursuant to the LIBOR Rate Election as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to Purchaser upon the
prepayment of a LIBOR Loan or Tax-Exempt LIBOR Loan. Each reference in this
paragraph to "LIBOR Rate Election" shall mean the election by Borrower of the
LIBOR Rate. If by reason of an Event of Default Purchaser elects to declare the
Note to be immediately due and payable, then any yield maintenance fee with
respect to a LIBOR Loan or Tax-Exempt LIBOR Loan shall become due and payable in
the same manner as though Borrower had exercised such right of prepayment.
If demand is made by Purchaser, any yield maintenance fee with
respect to a LIBOR Loan or Tax-Exempt LIBOR Loan shall become due and payable in
the same manner as though Borrower had exercised such right of prepayment.
4.4. Borrower's Obligation.
(a) The Borrower covenants and agrees that this Agreement is a
general obligation of the Borrower and pledges its full faith and credit to the
payment of all amounts required by this Agreement and the other Loan Documents
and a security interest in its interests, if any, in the amounts held in any
Fund or Account hereunder. The Borrower agrees to pay, or cause to be paid, the
amounts required by this Agreement, including all amounts required to be
deposited in any Fund or Account established hereunder, from its general funds
and any other moneys available to it, in the manner and at the times provided in
this Agreement.
4.5. Term.
This Agreement shall remain in full force and effect from the date hereof
until the date on which the principal or Redemption Price of and interest on the
Bonds and any other expenses of the Authority with respect to the Bonds shall
have been fully paid or provision for the payment thereof shall have been made
as provided herein and the Borrower shall have satisfied and performed all other
covenants, agreements and obligations made or undertaken by the Borrower under
this Agreement, at which time the Authority shall release and cancel this
Agreement, except for those provisions of this Agreement which expressly survive
such release and cancellation.
4.6. Benefit of Holder.
This Agreement is executed in part to induce the purchase by the Purchaser
of the Bond, and, accordingly, all covenants, agreements and representations on
the part of the Borrower and
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the Authority, as set forth in this Agreement, are hereby declared to be for the
benefit of the Holders from time to time of the Bonds, the Authority and the
Agent.
4.7. Payment on Termination of Agreement.
The Authority agrees that upon payment in full of the Bonds and
termination of this Agreement, after first deducting any moneys due to the
Authority for the Authority's reasonable and direct expenses, the Authority
shall pay or cause to be paid to the Borrower all moneys or securities held by
the Agent for the account of the Authority pursuant to this Agreement. If such
expenses are not fully met from such payment by the Agent from all moneys and
securities held by the Agent for the account of the Authority, to the Authority,
the Borrower shall reimburse the Authority therefor.
4.8. Administration Fees and Expenses.
The Borrower shall pay or cause to be paid either out of the Project Fund,
with respect to initial fees, or out of its own moneys (i) the reasonable fees,
expenses and charges of the Authority, as and when the same become due,
including the reasonable fees of its counsel and (ii) the reasonable fees and
disbursements, expenses and charges of the Agent for services rendered as Agent
hereunder (other than fees incurred by the Agent in connection with the Closing,
sole responsibility for which shall be borne by the Agent), including the
reasonable fees of its counsel.
If the Borrower should fail to make any of the payments required in this
Section when due, the item or installment which the Borrower has failed to pay
shall continue as an obligation of the Borrower until the same shall have been
fully paid, and the Borrower agrees to pay the same with interest thereon (to
the extent permitted by law) for the period from the date such payment was due
until the same is paid in full at the Default Rate.
4.9. Continuing Enforcement of Agreement.
If, after receipt of any payment of all or any part of the principal or
Redemption Price of and interest on the Bonds and any other expenses of the
Authority with respect to the Bonds, the Authority, the Purchaser or the Agent
is compelled or agrees, for settlement purposes, to surrender such payment to
any Person for any reason (including, without limitation, a determination that
such payment is void or voidable as a preference or fraudulent conveyance, an
impermissible setoff, or a diversion of trust funds), then this Agreement and
the other Loan Documents shall continue in full force and effect, and the
Borrower shall be liable for, and shall indemnify, defend and hold harmless the
Authority, the Purchaser and the Agent with respect to the full amount so
surrendered. The provisions of this Section shall survive the cancellation,
termination or discharge of this Agreement and shall remain effective
notwithstanding the payment of the Bonds, the cancellation of the Notes, the
release of any security interest, lien or encumbrance securing the Bonds or any
other action which the Authority, the Purchaser and the Agent may have taken in
reliance upon its receipt of such payment. Any cancellation, release or other
such action by the Authority, the Purchaser or the Agent shall be deemed to have
been conditioned upon any payment of the Bonds having become final and
irrevocable.
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4.10. Purchaser's Fees and Expenses.
Borrower shall pay on demand all expenses of the Purchaser in connection
with the preparation, administration, default, collection, waiver or amendment
of Loans terms (other than fees incurred by the Purchaser in connection with the
Closing, sole responsibility for which shall be borne by the Purchaser), or in
connection with the Purchaser's exercise, preservation or enforcement of any of
its rights, remedies or options hereunder, including, without limitation, fees
of outside legal counsel or the allocated costs of in-house legal counsel,
accounting, consulting, brokerage or other similar professional fees or
expenses, and any fees or expenses associates with travel or other costs
relating to any appraisals or examinations conducted in connection with the
Loans or any collateral therefor and the amount of all such expenses shall,
until paid, bear interest at the rate applicable to principal hereunder
(including the Default Rate) and be an obligation secured by all collateral.
4.11. Replacement of Note or Other Documents.
Upon receipt of an affidavit of an officer of the Agent as to the loss,
theft, destruction or mutilation of the Note or any other security document
which is not of public record, and in the case of any such loss, theft,
destruction or mutilation, upon surrender and cancellation of such note or other
document, Borrower will issue, in lieu thereof, a replacement Note or other
security document in the same principal amount thereof and otherwise of like
tenor.
4.12. Interest Limitation.
All agreements between Borrower and Purchaser are hereby expressly limited
so that in no contingency or event whatsoever, (whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise),
shall the amount paid or agreed to be paid to Purchaser for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then the Notes shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of Borrower and
Purchaser in the execution, delivery and acceptance of the Notes to contract in
strict compliance with the laws of the State of New Jersey from time-to-time in
effect. If, under or from any circumstances whatsoever, fulfillment of any
provision hereof or of any of the Loan Documents at the time of performance of
such provision shall be due, shall involve transcending the limit of such
validity prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
circumstances whatsoever Purchaser should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced
hereby and not to the payment of interest. This provision shall control every
other provision of all agreements between Borrower and Purchaser.
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4.13. Sale of Loan.
The Purchaser shall have the unrestricted right at any time or from time
to time, and without Borrower's consent, to assign all or any portion of its
rights and obligations hereunder to one or more banks or other financial
institutions (each, an "Assignee"), and Borrower agrees that it shall execute or
cause to be executed such documents, including, without limitation, amendments
to the Agreement and to any other documents, instruments and agreements executed
in connection herewith as Purchaser shall deem necessary to effect the
foregoing. In addition, at the request of Purchaser and any such Assignee,
Borrower shall issue one or more new promissory notes, as applicable, to any
such Assignee and, if Purchaser has retained any of its rights and obligations
hereunder following such assignment, to Purchaser, which new promissory notes
shall be issued in replacement of, but not in discharge of, the liability
evidenced by the promissory note held by Purchaser prior to such assignment and
shall reflect the amount of the respective commitments and loans held by such
Assignee and Purchaser after giving effect to such assignment. Simultaneously
with the issuance and delivery by Borrower of any such new promissory notes,
Purchaser shall deliver to Borrower any previously issued note or notes marked
as "cancelled". Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by Purchaser in
connection with such assignments, and the payment by Assignee of the purchase
price agreed to by Purchaser and such Assignee, such Assignee shall be a party
to the Agreement and shall have all of the rights and obligations of Purchaser
hereunder (and under any and all other guaranties, documents, instruments and
agreements executed in connection herewith) to the extent that such rights and
obligations have been assigned by Purchaser pursuant to the assignment
documentation between Purchaser and such Assignee, and Purchaser shall be
released from its obligations hereunder and thereunder to a corresponding
extent. The Purchaser may furnish any information concerning the Borrower to a
prospective Assignee(s), provided that the Purchaser shall require such
prospective Assignee to agree in writing to maintain the confidentiality of such
information. Purchaser agrees that prior to any sale of the Loan pursuant to
this Section, Purchaser shall provide the Authority with notice of its intent to
enter into such sale, as well as the terms thereof.
4.14. Right to Sell Portion of Loans to Prospective Participant.
Purchaser shall have the unrestricted right at any time and from
time-to-time, and without the consent of or notice to Borrower, to grant to one
or more banks or other financial institutions (each, a "Participant")
participating interests in the Loans. In the event of any such grant by
Purchaser of a participating interest to a Participant, whether or not upon
notice to Borrower, Purchaser shall remain responsible for the performance of
its obligations hereunder and Borrower shall continue to deal solely and
directly with Purchaser in connection with Purchaser's rights and obligations
hereunder. Purchaser may furnish any information concerning Borrower in its
possession from time-to-time to prospective Participants, provided that
Purchaser shall require any such prospective Participant to agree in writing to
maintain the confidentiality of such information.
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4.15. Use of Proceeds (Regulation U).
No portion of the proceeds of the Loans shall be used, in whole or in
part, for the purpose or purchasing or carrying any "margin stock" as such term
is defined in Regulation U of the Board of Governors of the Federal Reserve
System.
4.16. Set-Off.
Subject in all cases to the provisions of Section 6.2 hereof, the Borrower
hereby grants to the Purchaser a lien, security interest and right of setoff as
security for all liabilities and obligations to the Purchaser, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Purchaser and its successors and assigns, or in
transit to any of them (collectively, the "Deposits"), which right shall only be
exercisable by the Purchaser upon the occurrence and during the continuance of
an Event of Default hereunder. In addition to the Purchaser's common law setoff
rights and not in limitation thereof, at any time, without demand or notice, the
Purchaser may, upon the occurrence and during the continuance of an Event of
Default hereunder, set off the Deposits or any part thereof and apply the same
to any liability or obligation of the Borrower even though unmatured and
regardless of the adequacy of any other collateral securing the Loan. ANY AND
ALL RIGHTS TO REQUIRE THE PURCHASER TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Such right
of debit may be exercised by the Purchaser against the Borrower or against any
bankruptcy trustee, debtor-in-possession, assignee for the benefit of creditors,
receiver, or execution, judgment, or attachment creditor of the Borrower, or
against anyone else claiming through or against the Borrower.
Furthermore, in the event any attachment, trustee process (other
than in connection with an acceleration of the Bond under Article VI hereof),
garnishment, or other levy or lien (collectively, a "Garnishment") issues
against any Deposits (the "Liened Funds"), then the Purchaser shall have the
unconditional right, without prior notice to the Borrower, to debit any such
Liened Funds immediately prior to giving effect to such Garnishment and apply
the same to any indebtedness of the Borrower to the Purchaser under the Loan
Documents, whether or not the same has matured.
In addition, without limiting any of the foregoing rights, during
the existence of an Event of Default (or any event which with the passage of
time, giving of notice, or both, would constitute an Event of Default), the
Purchaser shall have the right, without notice, to "freeze" or segregate any or
all of the Deposits such that the Borrower may not access, control, or draw upon
them.
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ARTICLE V
ESTABLISHMENT OF FUNDS AND ACCOUNTS; APPLICATION OF BOND
PROCEEDS AND OTHER MONEYS
5.1. Establishment of Funds and Accounts.
The following Funds shall be established, held, maintained and applied by
the Agent in accordance with this Agreement:
Project Fund;
Debt Service Fund and within such Debt Service Fund, a Series A
Subaccount and a Series B Subaccount; and
Rebate Fund.
5.2. Application of Proceeds of Bond; Disbursements.
Upon the issuance and delivery of the Bonds, the Authority shall forthwith
transfer the proceeds to the Agent and the Agent shall apply the amount of the
proceeds according to a certificate of an Authorized Officer of the Authority,
which certificate shall specify the amounts, if any, to be deposited in the
Project Fund for the payment of certain costs of the Project and a portion of
the costs of issuance of the Bonds.
5.3. Application of Moneys in Project Fund; Disbursements.
(a) The amounts deposited in the Project Fund may be disbursed by
the Agent only upon receipt of a Requisition in the form of Exhibit B attached
hereto and only to the extent there are funds in the Project Fund available for
such purposes. Each Requisition shall be executed by an Authorized Officer of
the Borrower.
In making any such payment from the Project Fund, the Agent may rely
on any such Requisition and any such certificate delivered to it and the Agent
shall be relieved of all liability with respect to making such payments in
accordance with such Requisition and such supporting certificates without
inspection of the Project or any other investigation.
(b) Amounts deposited in the Project Fund representing investment
income from funds held in the Project Fund shall remain in the Project Fund and
be disbursed for the payment of certain costs of the Project in accordance with
Section 5.3(a) above.
(c) Upon request, the Agent shall furnish the Authority with a
record of the requisitions and disbursements from the Project Fund.
(d) In the event Rebatable Arbitrage is due, the Agent shall
transfer from the Project Fund to the Rebate Fund an amount equal to such
Rebatable Arbitrage.
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5.4. Application of Amounts in the Debt Service Fund.
(a) Payments made by the Borrower with respect to the Series 2003 A
Note shall be deposited by the Agent into the Series A Subaccount of the Debt
Service Fund.
(b) Payments made by the Borrower with respect to the Series 2003 B
Note shall be deposited by the Agent into the Series B Subaccount of the Debt
Service Fund.
(c) The Agent shall use amounts on deposit in the Series A
Subaccount of the Debt Service Fund to pay the principal or Redemption Price of
and interest due on the Series 2003 A Bond on any Debt Service Payment Date and
on any redemption date that the Series 2003 A Bond is redeemed pursuant to
Section 3.4 hereof.
(d) The Agent shall use amounts on deposit in the Series B
Subaccount of the Debt Service Fund to pay the principal or Redemption Price of
and interest due on the Series 2003 B Bond on any Debt Service Payment Date and
on any redemption date that the Series 2003 B Bond is redeemed pursuant to
Section 3.4 hereof.
(e) Upon any prepayment by the Borrower under Section 3.4, together
with interest paid in connection with the redemption of the Bond pursuant to the
mandatory and optional redemption provisions of Section 3.4 hereof, the Agent
shall deposit the amount received into the Debt Service Fund.
(f) Amounts deposited in the Debt Service Fund representing
investment income generated from funds held in the Debt Service Fund shall be
retained in the Debt Service Fund.
5.5. Rebate Fund.
(a) The Agent shall establish and maintain with respect to the
Series 2003 A Bond a fund separate from any other fund established and
maintained hereunder designated as the Rebate Fund. The Rebate Fund shall be
held for the benefit of the United States and not for the benefit of the Holder
of the Series 2003 A Bond, which Holder shall have no rights in or to such fund.
(b) Subject to subsection (c) of this Section, as of the last day of
every fifth Bond Year (the "Rebate Computation Date"), the Borrower, on behalf
of the Authority, shall calculate, or cause to be calculated, in accordance with
Section 8.9 hereof, the Rebatable Arbitrage. On or before the sixtieth day after
such date, the Agent at the direction of, and upon the receipt of funds from,
the Borrower shall deposit in the Rebate Fund the amount, if any, needed to
increase the amount in such Fund to an amount equal to the Rebatable Arbitrage
for the period from the date of issuance of the Series 2003 A Bond to the Rebate
Computation Date at issue, or shall transfer from the Rebate Fund to the Project
Fund the amount, if any, needed to reduce the amount in the Rebate Fund to the
Rebatable Arbitrage for such period.
Subject to subsection (c) of this Section, as of the last day on
which the Series 2003 A Bond remaining outstanding is retired (the "Final
Computation Date"), the Borrower, on behalf of the Authority, shall calculate,
or cause to be calculated, the amount required to be
39
paid to the United States of America pursuant to Section 148 of the Code. On or
before the sixtieth day after such date, the Agent, at the direction of, and
upon the receipt of funds from, the Borrower, shall deposit in the Rebate Fund
the amount, if any, needed to increase the amount in such Fund to an amount
equal to the Rebatable Arbitrage for the period from the date of issuance of the
Series 2003 A Bond to the Final Computation Date, or shall transfer from the
Rebate Fund to the Debt Service Fund the amount, if any, needed to reduce the
amount in the Rebate Fund to the amount of the Rebatable Arbitrage for such
period.
After making any transfer required for a Rebate Computation Date and
the Final Computation Date, the Agent, at the direction of the Borrower, shall
immediately pay or cause to be paid to the United States of America the amount
in the Rebate Fund. The amounts in the Rebate Fund shall not be subject to the
claim of any party, including any Holder, and shall not be paid to any party
other than the United States.
All amounts in the Rebate Fund shall be used and withdrawn by the
Authority or the Agent solely for the purposes set forth in this Section. In the
event the amount in the Rebate Fund is for any reason insufficient to pay to the
United States the amounts due as calculated in this Section, the Borrower, or
the Agent at the direction of, and upon the receipt of funds from, the Borrower,
shall deposit in the Rebate Fund the amount for such deficiency.
(c) Notwithstanding the provisions of this Section, the Borrower, on
behalf of the Authority, hereby agrees to calculate the amount to be deposited
in the Rebate Fund and the amount to be rebated to the United States pursuant to
Section 148(f) of the Code in any manner not inconsistent with its arbitrage
covenants set forth in this Agreement and the other Loan Documents. Such
calculation shall give regard to all regulations applicable to such Section
148(f) including any temporary regulations heretofore or hereafter released.
(d) The Authority and the Borrower agree that the Agent shall not be
liable for any damages, costs or liabilities resulting from the performance of
the Agent's duties and obligations under this Section, except that the Agent
shall be liable for its gross negligence or willful misconduct. The Borrower
shall indemnify and hold harmless the Agent from and against any liabilities
which the Agent may incur in the exercise and performance of its duties and
obligations under this Section, excepting only those damages, costs, expenses or
liabilities caused by the Agent's gross negligence or willful misconduct. In
making any deposit or transfer to or payment from the Rebate Fund, the Agent
shall be entitled to rely solely on the written instructions of the Borrower and
shall have no duty to examine such written instruments to determine the accuracy
of the Borrower's calculation of the Rebate Amount or the amounts to be paid to
the United States. In the event that the Borrower or the Authority shall not
comply with their respective obligations under this Section, the Agent shall
have no obligation to cause compliance on their respective behalf.
(e) Notwithstanding anything contained in this Agreement to the
contrary, neither the Authority nor the Agent shall be responsible or liable for
any loss, liability, or expense incurred to the extent incurred as a result of
the failure of the Borrower to fulfill its
40
obligations with respect to the calculation and payment of any rebate amount.
The Authority and the Agent shall be entitled to rely conclusively upon the
calculations provided by the Borrower.
(f) The Agent agrees to furnish the Borrower and the Authority with
notice of the Borrower's obligation to file a written certification to the
Authority and the Agent indicating whether the Borrower has complied with the
6-month exception to the arbitrage rebate requirement. In addition, the Agent
agrees to furnish the Borrower and the Authority with notice of the Borrower's
obligation to prepare its rebate calculation and make its rebate payment, if
any, to the Internal Revenue Service. Such reminder notice shall be furnished to
the Borrower and the Authority at least ninety (90) days prior to each fifth
Bond Year and within thirty (30) days following the redemption or final payment
of the Series 2003 A Bond. The Agent shall have no further obligation for the
computation of the rebate amount or the filing or payment thereof.
5.6. Non-Presentment of Bond.
If a Bond or evidence of beneficial ownership thereof shall not be
presented for payment when the principal thereof becomes due (whether at
maturity, by acceleration, upon call for redemption, upon purchase or
otherwise), all liability of the Authority to the registered owner thereof for
the payment of the applicable Bond, shall forthwith cease, terminate and be
completely discharged if funds sufficient to pay the applicable Bond and
interest due thereon, if any, are held by the Agent uninvested for the benefit
of the registered owner thereof. Thereupon it shall be the duty of the Agent to
comply with the Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 et. seq. with
respect to such funds. The registered owner shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on his part under
this Agreement or on, or with respect to, the applicable Bond.
5.7. Additional Payments Under the Agreement.
The Borrower agrees to make additional payments to the reasonable and
necessary administration expenses of the Authority. All payments received by the
Agent shall be disbursed by the Agent solely for the purposes for which such
additional payments are received.
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ARTICLE VI
EVENTS OF DEFAULT
6.1. Events of Default.
Each of the following shall be an "Event of Default" hereunder:
(a) failure to make any payment of the principal, interest or
Redemption Price of the Bonds on a Debt Service Payment Date, or when it becomes
due and payable at maturity or upon call for redemption; or
(b) failure to pay any payment due (other than a payment of
principal or Redemption Price of, or interest on the Bonds) under this Agreement
or under the other Loan Documents when the same has become due and payable and
upon the expiration of any applicable grace period;
(c) if the Borrower shall:
(1) admit in writing its inability to pay its debts when or as
they become due;
(2) file a petition to be adjudicated a voluntary bankrupt in
bankruptcy or a petition to otherwise take advantage of any State or Federal
Bankruptcy or insolvency law;
(3) make an assignment for the benefit of its creditors or seek
a composition with its creditors;
(4) apply for or consent to the appointment of a trustee or
receiver for the Borrower;
(5) have a final judgment rendered against it in excess of
$100,000 that remains undischarged for thirty (30) days, unless Borrower is
actively contesting such judgment and has placed sufficient funds to cover such
judgment in an escrow account against the final adverse adjudication of such
judgment; or
(d) if the Borrower shall, upon an involuntary petition under any
section or chapter of the Federal Bankruptcy laws filed against it, have an
order for relief filed against it, or if a court of competent jurisdiction shall
enter an order or decree appointing a trustee or receiver (interim or permanent)
for the Borrower, or appointing the Borrower a debtor-in-possession, with or
without the consent of the Borrower, or approving a petition filed against it
seeking reorganization or an arrangement under the Federal Bankruptcy laws or
any other applicable law or statute of the United States of America or any state
thereof, and such adjudication, order or decree is not dismissed or vacated
within a period of sixty (60) days from the date thereof;
(e) if the Borrower defaults in the due observance or performance of
any covenant, condition or agreement, other than a failure to make any payment
required hereunder, on the part of the Borrower to be observed and/or performed
pursuant to the terms hereof and such default shall continue unremedied for
thirty (30) days after Borrower receives written notice
42
thereof or, if such default is of a nature that it cannot be remedied in 30 days
using reasonable diligence, such longer period of time as may reasonably be
required (not to exceed an additional sixty (60) days) so long as Borrower has
commenced such remedy and diligently prosecutes the same to completion;
(f) if any representation or warranty made (i) by the Borrower
herein or in connection herewith or (ii) by the Borrower in any report,
certificate, financial statement or other instrument furnished in connection
with this Agreement shall prove to be false, misleading or incorrect in any
material respect when made;
(g) if, so long as the Bonds shall be Outstanding, a default shall
have been declared in the payment of the principal of, or interest on, any of
the Borrower's indebtedness or any indebtedness guaranteed by the Borrower to
the Purchaser or any other lender which remains unpaid following the expiration
of any applicable grace period and which results in the maturity of such
indebtedness being accelerated; or
(h) a default or event of default under any of the other Loan
Documents.
6.2. Acceleration and Annulment Thereof; Notice to Holder; Remedies.
(a) If any Event of Default occurs, the Agent may, upon written
notice immediately effective, and shall, upon the direction of the Authority or
the Holder, declare an acceleration of the Bonds, declare all amounts then due
and thereafter to become due and payable during the term of this Agreement in
respect of the principal amount of Bonds then Outstanding, together with all
interest accrued thereon and all other amounts then payable to the Authority or
the Agent hereunder and under the other Loan Documents to be immediately due and
payable; and upon such declaration the said amounts shall become due and payable
immediately. Any outstanding principal and unpaid interest shall thereafter bear
interest at the Default Rate.
(b) If, after such declaration, all amounts due hereunder and under
the other Loan Documents that were due and payable prior to such declaration are
paid by the Borrower and the Borrower also performs all other things in respect
of which it may have been in default and pays the reasonable charges of the
Authority and the Agent and the Holder, including reasonable attorneys' fees
then, and in every such case, the Holder, by notice to the Borrower and the
Agent, may annul such declaration and its consequences; but no such annulment
shall extend to or affect any subsequent default or impair any right or remedy
consequent thereon.
(c) Whenever any Event of Default shall have happened and be
continuing, the Agent may or shall, as the case may be, take any one or more of
the following remedial steps:
(1) Upon the occurrence of an Event of Default and acceleration
of payment of the Bonds, the Agent may, by written notice to the Authority and
the Borrower, declare all payments to be made by the Borrower under this
Agreement and the other Loan Documents to be immediately due and payable,
whereupon the same shall become immediately due and payable, anything herein or
in the other Loan Documents to the contrary notwithstanding. If the Agent elects
to exercise the remedy afforded in this subsection (1) and
43
accelerates all payments to be made by the Borrower under this Agreement and
under the other Loan Documents for the remainder of the term of the Loan, the
Borrower shall pay an amount sufficient, together with any moneys held by the
Agent in the Funds and available for such purpose to enable the Agent to pay the
principal amount of the outstanding Bonds and all interest on the Bonds then due
and to become due to the date of payment of the Bonds. In addition, the Borrower
shall pay all fees and expenses of the Authority and the Agent accrued and to
accrue through the date of such acceleration.
(2) If any payment on the Bonds is not made when due or if any
Event of Default shall have occurred and be continuing, the Authority, or the
Agent as the Authority's assignee, shall be entitled to take whatever action
under this Agreement or under the other Loan Documents or otherwise at law or in
equity (without the necessity of posting any bond) as may appear necessary or
desirable to collect the amounts payable by the Borrower hereunder or under the
other Loan Documents, then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenants of the
Borrower under this Agreement, or under any of the other Loan Documents or to
otherwise protect its rights hereunder.
(d) Event of Cancellation.
(1) The occurrence of an Event of Default under this Agreement
shall constitute an Event of Cancellation hereunder, and at any time thereafter
during the continuance of such Event of Cancellation, the Authority may, by
written notice to the Purchaser, duly endorse and deliver the Notes without
recourse to the Purchaser and thereafter call and cancel the Bonds. The
Purchaser and any assignees and the Borrower hereby expressly agree that the
Bond may be called and canceled by the Authority in the manner provided above,
and upon the date specified in the notice from the Authority (the "Cancellation
Date"), which shall be at least 30 and no more than sixty (60) days after the
giving of such notice, the Bonds will be called and canceled, and the Purchaser
may, at its option, declare the obligation evidenced by the Notes immediately
due and payable. The Purchaser will deliver the Bonds to the Authority for
cancellation upon the Cancellation Date, but even if such delivery does not
occur, the Bonds will be considered canceled and of no further force or effect
on the Cancellation Date upon delivery to the Purchaser of the Notes duly
endorsed as described above.
(2) Upon the Cancellation Date, the Notes will evidence the
indebtedness from the Borrower to the Purchaser and, in the event the Notes are
not accelerated by the Purchaser, as hereinabove provided, all of the terms of
the Notes will control the obligations of the Borrower to the Purchaser, except
that from and after the Cancellation Date the per annum interest rate will
increase to the Default Rate. If this occurs, the monthly payment shall be
modified to reflect the difference between the interest stated in the Bonds and
the Notes and the increased interest rate called for in this Section. This
condition may be reflected in a separate agreement to be prepared by counsel for
the Purchaser. The Authority will no longer be a party to the transaction and
shall have no further rights with respect thereto (except its right to obtain
outstanding fees and its right of indemnification, which shall survive) and
shall be released of any and all debts, liabilities and obligations to any party
under this Agreement, the
44
Bonds or any other Loan Document. The Authority and the Purchaser shall execute
and deliver to each other such other documents and agreements as the other may
reasonably request in order to evidence the cancellation of the Bonds and the
withdrawal of the Authority from the transaction.
(3) Upon cancellation of the Bonds pursuant to the provisions
hereof, the Authority hereby agrees that the Purchaser (except as stated above)
shall automatically be vested with all of the Authority's right, title and
interest in and to the Loan Documents. Any amounts remaining in the Debt Service
Fund on the Cancellation Date after deduction of amounts which may be due the
Authority pursuant to the terms of this Agreement are assigned to the Purchaser.
The Authority hereby authorizes the holder of any such funds to pay to the
Purchaser any such amounts remaining in the Debt Service Fund on the
Cancellation Date after payments which may be due the Authority.
(4) In the event that there is a dispute among any of the
parties concerning the right of the Authority to cancel the Bonds pursuant to
the provisions of this Section, the Borrower shall nevertheless comply with the
terms of the Notes as hereinabove amended and make all payments required
thereunder from and after the Cancellation Date directly to the Purchaser or its
designee. If a court of competent jurisdiction determines finally that the
Authority's attempted cancellation of the Bonds violated the terms of this
Agreement, the Bonds will be reinstated in accordance with the final order of
the court, but until such final order is made, the Borrower will continue to
comply with the terms of the Notes as hereinabove amended. Any overpayment by
the Borrower will be returned to it by the Purchaser upon reinstatement of the
Bonds.
(e) Any amounts collected pursuant to action taken under this
Section shall be paid into the Debt Service Fund and applied in accordance
herewith.
(f) Upon an Event of Default (whether or not the Purchaser has
accelerated payment of the Notes), the Loan shall bear interest, payable on
demand, at the Default Rate until the unpaid balance of principal and interest
shall have been paid in full.
6.3. Additional Remedies.
In addition to the above remedies, if the Borrower commits a breach, or
threatens to commit a breach of this Agreement or of any other Loan Document,
the Authority shall have the right and remedy, without posting bond or other
security, to have the provisions of this Agreement specifically enforced by any
court having equity jurisdiction, it being acknowledged and agreed that any such
breach or threatened breach will cause immediate and irreparable injury to the
Authority and that money damages will not provide an adequate remedy therefor.
6.4. Rights Cumulative.
All rights and remedies herein given or granted to the Authority are
cumulative, nonexclusive and in addition to any and all rights and remedies that
the Authority may have or be given by reason of any law, statute, ordinance or
otherwise.
45
6.5. Termination of Proceedings.
In case the Authority, the Holder or the Agent shall have proceeded to
enforce any rights under this Agreement and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely, then in every such case the Authority, the Holder, the Agent and the
Borrower shall be restored to their former positions and rights hereunder, and
all rights, remedies and powers of the Authority, the Holder and the Agent shall
continue as if no such proceedings had been taken.
6.6. Notice of Default.
Immediately upon the Agent's actual knowledge of the existence of an Event
of Default the Agent shall give written notice by first class mail to the Holder
of the Bonds then Outstanding, to the Authority and to the Borrower of the
occurrence of any Event of Default after it shall have occurred.
6.7. Waiver of Event of Default.
Notwithstanding anything in this Agreement or in any of the other Loan
Documents to the contrary, neither the Agent nor the Purchaser shall have the
right to waive an Event of Default under any of the Loan Documents which arises
out of a violation of a Reserved Right without the prior written consent of the
Authority, which it shall give in its sole and complete discretion.
Notwithstanding anything herein or in any other Loan Document to the contrary,
nothing herein shall affect the Authority's unconditional right to enforce its
Reserved Rights.
46
ARTICLE VII
INSURANCE AND CONDEMNATION
7.1. Insurance Coverage and Terms.
(a) Until payment of the Bonds shall be made, the Borrower will at a
minimum, maintain general comprehensive liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the Project or
the Project site (such coverage to include provisions waiving subrogation
against the Authority) in amounts not less than $1,000,000 with respect to
bodily injury to any one person, $1,000,000 with respect to bodily injury to two
or more persons in any one accident and, $1,000,000 with respect to property
damage resulting from any one occurrence and naming the Authority as an
additional insured.
(b) Each insurance policy obtained in satisfaction of the
requirement of this Section:
(i) shall be by such insurer (or insurers) as shall be
financially responsible, qualified to do business in the
State and of recognized standing;
(ii) shall be in such form and have such provisions as are
generally considered standard provisions for the type of
insurance involved;
(iii) shall prohibit cancellation or substantial modification,
termination or lapse in coverage by the insurer without
at least 30 days prior written notice to the Authority.
Without limiting the generality of the foregoing, policies carried on the
Project and the Project site shall name the Authority as an additional insured.
Prior to expiration of any such policy, the Borrower shall furnish the Authority
with evidence satisfactory to the Authority that the policy or certificates has
been renewed or replaced in compliance with this Agreement.
(c) In the event the Borrower shall fail to maintain the insurance
coverage required by this Agreement, the Authority or the Agent may (but shall
be under no obligation to), after ten (10) days prior written notice to the
Borrower, unless cured within such ten (10) days, contract for the required
policies of insurance and pay the premiums on the same and the Borrower agrees
to reimburse the Authority or the Agent to the extent of the amounts so advanced
with interest thereon at the maximum rate permitted by law.
7.2. Damage, Destruction and Condemnation; Application of Insurance
Proceeds and Condemnation Awards.
(a) If any of the Project shall be damaged or either partially or
totally destroyed, or if title to, or the temporary use of, the whole or any
part of the Project shall be taken or condemned by a competent authority for any
public use or purpose, there shall be no
47
abatement or reduction in the amounts payable by the Borrower pursuant to this
Agreement and the Borrower shall continue to be obligated to make such payments.
(b) In the event of any damage to, or destruction of, or taking or
condemnation of, the Project, the Borrower may, with the Agent's consent, within
six (6) months of such damage to, or destruction, taking or condemnation of the
Project, elect to repair and/or replace the Project. In the event that the
Borrower, with the Agent's consent, chooses to repair and/or replace the
Project, the proceeds of any insurance covering such damage or destruction and
the proceeds of any such taking or condemnation award relating to the Project
shall be paid:
(1) to the Borrower in the case of any particular damage to,
or destruction, taking or condemnation of, the Project, if such
proceeds do not exceed $100,000 in the aggregate, and the Borrower
shall use such proceeds to pay the costs of repair or replacement of
such damage to, or destruction, taking or condemnation of, the
Project; or
(2) to the Agent in the case of any particular damage to,
taking or condemnation or destruction of, the Project, if such
proceeds exceed $100,000 in the aggregate, to be deposited by the
Agent in the Project Fund and, to the extent of the Borrower's cost
of repair or replacement of such damage to, or destruction, taking
or condemnation of, the Project, to be applied by the Agent in the
manner prescribed and subject to the requirements set forth in
Section 5.3 hereof to pay for the cost of repairing or replacing the
damage to, or destruction, taking or condemnation of, the Project
(the "Repairs and Replacement"). To the extent such proceeds held by
the Agent pursuant to this paragraph exceed the cost of the Repairs
and Replacement, such excess shall be paid to the Borrower.
(c) In the event of any damage to, destruction of, or taking or
condemnation of, the Project, and if the Borrower chooses not to repair and/or
replace the Project pursuant to paragraph (b) of this Section, then:
(1) if the net proceeds, after payment of all costs of
collection, of any insurance covering such damage or destruction and
the proceeds of any such taking or condemnation award do not exceed
$100,000 in the aggregate, such proceeds shall be paid to the
Borrower; or
(2) if the damage to, destruction of, or taking or
condemnation of, the Project results in rendering the Project
substantially unsuitable for the purpose for which it was intended,
or results in an inability to replace the Project in a suitable
manner, as certified by an Authorized Officer of the Borrower, the
net proceeds of any such insurance or condemnation award shall be
paid to the Agent and deemed to be a prepayment of the Loan, but
only if the Borrower gives written notice to the Agent, directing
the Agent to apply the proceeds to the redemption of the Bond
pursuant to Section 3.4.
(d) The net proceeds of all comprehensive general liability,
automobile liability and owner's liability insurance, and all workers
compensation insurance as may be required by Section 7.1(a) hereof shall be
applied by the Borrower to the payment of any judgment, settlement or liability
incurred for risks covered by such insurance.
48
7.3. Eminent Domain.
Immediately after the commencement of any condemnation or similar
proceedings by a third party in the exercise of a power of eminent domain, or a
power in the nature of eminent domain, the Borrower shall immediately notify the
Agent and the Authority in writing. The proceeds of any condemnation award or
other compensation paid by reason of a conveyance in lieu of the exercise of
such power, shall be applied pursuant to Section 7.2 hereof.
49
ARTICLE VIII
OTHER COVENANTS OF THE BORROWER
8.1. Further Assurances; Financing Statements.
Concurrently with the execution and delivery hereof and thereafter from
time to time, the Borrower shall take or cause to be performed all actions
reasonably necessary to perfect and preserve the lien or security interest
granted by this Agreement. The Borrower shall perform or cause to be performed
any such acts, and execute and cause to be executed any and all further
instruments as may be required by law or as shall reasonably be requested by the
Authority or the Agent for such protection of the interests of the Agent and the
Holder, and shall furnish satisfactory evidence to the Authority and the Agent
of recording, registering, filing and refiling of such instruments and of every
additional instrument in such place or places which shall be necessary to
preserve such security interests until the principal, Redemption Price of and
interest on the Bond secured hereby shall have been paid.
8.2. Assignment of Agreement; No Defense or Set-Off.
Subject to the Authority's retention of its Reserved Rights, this
Agreement and the right to receive payments thereunder and under the other Loan
Documents will be assigned by the Authority to the Agent pursuant to the
Assignment attached hereto as Exhibit A and made a part hereof. The Borrower
consents to the assignment by the Authority and agrees to pay or cause to be
paid directly to the Agent amounts due to the Agent under Sections 4.2 and 4.3
hereof and under the other Loan Documents without any defense, set-off or
counterclaim arising out of any default on the part of the Authority under this
Agreement or any transaction between the Borrower and the Authority, including,
without limitation any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the facilities included in the
Project, commercial frustration of purpose, failure of the Authority to perform
and observe any agreement, whether express or implied, or any duty, liability or
obligation arising out of or connected with this Agreement or the Agent not
performing its duties pursuant to the terms of this Agreement. The Borrower
agrees that the Agent may exercise all rights granted the Authority hereunder,
subject to the Authority's Reserved Rights.
8.3. Covenant Against Adverse Acts.
The Borrower agrees that it shall not enter into any contracts or
agreements or perform any acts or request the Authority to enter into any
contracts or agreements or perform any acts which may materially adversely
affect any of its assurances or any rights of the Authority.
8.4. Covenant Against Encumbrances.
Borrower agrees that, except for the liens created hereby, at all times
during the term of this Agreement, it shall neither sell, transfer, dispose of,
pledge, mortgage, assign or otherwise
50
encumber any or all of the Collateral without the prior written consent of the
Authority and the Agent (other than to the Authority, the Agent or the
Purchaser).
8.5. Payment of Agent's Compensation and Expenses.
The Borrower will pay the Agent's reasonable compensation and expenses
under this Agreement, including reasonable counsel fees and disbursements (other
than fees incurred by the Agent in connection with the Closing, sole
responsibility for which shall be borne by the Agent), including, but not
limited to, all costs of redeeming the Bonds thereunder. The Authority shall not
be responsible for any such compensation and expenses.
8.6. Indemnification of the Authority with respect to Disclosure.
The Borrower agrees to indemnify, protect, defend and hold harmless the
Authority and any member, officer, director, employee, agent, or attorney of the
Authority and each person, if any, who controls the Authority within the meaning
of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended (collectively, the "Indemnified
Parties") against any and all losses, claims, damages, liabilities or expenses
whatsoever, including reasonable counsel fees, caused by, or which arise out of
or relate to, any untrue statement or misleading statement or alleged untrue
statement or alleged misleading statement by the Borrower, of a material fact
contained in this Agreement or incorporated therein by reference or supplied by
the Borrower in connection with the sale of the Bonds in accordance with the
terms hereof (the "Disclosure Materials"), or which arise out of or relate to,
any omission or alleged omission from such Disclosure Materials of any material
fact required to be stated therein or necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the provisions of this Section shall not
apply to such misleading or untrue statement or any such omission of material
fact so required to be stated or necessary and which is contained in
information, if any, furnished in writing by the Authority concerning the
Authority. This indemnity agreement is in addition to any other liability which
the Borrower may otherwise have. Notwithstanding anything in the Loan Documents
which may limit recourse to the Borrower or may otherwise purport to limit the
Borrower's liability, the provisions of this Section shall control the
Borrower's obligations and shall survive repayment of the Bonds.
If the indemnification provided heretofore is for any reason
determined to be unavailable to the Indemnified Parties, then, with respect to
any such loss, claim, demand or liability, including expenses in connection
therewith, the Indemnified Parties, shall be entitled as a matter of right to
contribution by the Borrower. The amount of such contribution shall be in such
proportion as is appropriate to reflect the relative culpability of the parties.
8.7. Indemnification of the Authority with respect to the Project and
Other Matters.
(a) The Borrower agrees to and does hereby indemnify and hold
harmless the Indemnified Parties against any and all losses, claims, damages or
liabilities (including all costs, expenses and reasonable counsel fees incurred
in investigating or defending such claim) suffered
51
by any of the Indemnified Parties and caused by, relating to, arising out of,
resulting from, or in any way connected with (a) the condition, use, possession,
conduct, management, planning, design, acquisition, construction, installation,
financing or sale of the Project or any part thereof including the payment of
rebate to the federal government; or (b) any untrue statement of a material fact
contained in information provided by the Borrower with respect to the
transactions contemplated hereby; (c) any omission of a material fact necessary
to be stated therein in order to make such statement not misleading or
incomplete; or (d) the acceptance or administration by the Authority of its
duties under this Agreement. In case any action shall be brought against one or
more of the Indemnified Parties based upon any of the above and in respect to
which indemnity may be sought against the Borrower, such Indemnified Party shall
promptly notify the Borrower in writing, and except where the Borrower is the
claimant the Borrower shall assume the defense thereof, including the employment
of counsel satisfactory to the Indemnified Party, the payment of all costs and
expenses and the right to negotiate and consent to settlement. Any one or more
of the Indemnified Parties shall have the right to employ separate counsel at
the Borrower's expense in any such action and to participate in the defense
thereof if, in the opinion of the Indemnified Party, a conflict of interest
could arise out of the representation of the parties by the same counsel. The
Borrower shall not be liable for any settlement of any such action effected
without Borrower's consent, but if settled with the consent of the Borrower, or
if there is a final judgment for the claimant on any such action, the Borrower
agrees to indemnify and hold harmless the Indemnified Parties from and against
any loss or liability by reason of such settlement or judgment.
(b) The Borrower agrees to and does hereby indemnify and hold
harmless the Indemnified Parties against any and all losses, claims, damages or
liabilities (including all costs, expenses, and reasonable counsel fees incurred
in investigating or defending such claim) suffered by any of the Indemnified
Parties and caused by, relating to, arising out of, resulting from, or in any
way connected to an examination, investigation or audit of the Bond by the
Internal Revenue Service (the "IRS"). In the event of such examination,
investigation or audit, the Indemnified Parties shall have the right to employ
counsel at the Borrower's expense. In such event, the Borrower shall assume the
primary role in responding to and negotiating with the IRS, but shall inform the
Indemnified Parties of the status of the investigation. In the event Borrower
fails to respond adequately and promptly to the IRS, the Authority shall have
the right to assume the primary role in responding to and negotiating with the
IRS and shall have the right to enter into a closing agreement, for which
Borrower shall be liable.
(c) Notwithstanding anything in this Agreement to the contrary which
may limit recourse to the Borrower or may otherwise purport to limit the
Borrower's liability, the provisions of this Section shall control the
Borrower's obligations and shall survive repayment of the Bonds.
52
8.8. Covenants of Borrower with Respect to Exemption of Interest from
Federal Income Taxation.
It is the intention of the parties hereto that the interest on the Series
2003 A Bond be and remain free from Federal income taxation, and, to that end,
the Borrower does hereby covenant with the Authority, the Agent and each of the
holders of the Series 2003 A Bond, as follows:
(a) that it will not take any action, or fail to take any action, if
any such action or failure to take action would adversely affect the exclusion
from gross income of the interest on the Series 2003 A Bond under Section 103 of
the Code.
(b) that it shall not directly or indirectly use or permit the use
(including the making of any investment) of any proceeds of the Series 2003 A
Bond or any other funds of the Authority or the Borrower, or take or omit to
take any action, that would cause the Series 2003 A Bond to be an "arbitrage
bond" within the meaning of Section 148(a) of the Code.
(c) that if a Change in Use occurs while the Series 2003 A Bond is
outstanding, the Borrower agrees that it will deposit monies with the Agent in
such manner to effect the payment of the Series 2003 A Bond or any maturity
thereof at the next optional redemption call date in accordance with the
Agreement. The amounts to be so deposited will be sufficient to pay the
principal of and interest on the Series 2003 A Bond required to be paid no later
than the first date on which such Series 2003 A Bond may be called under the
applicable optional redemption provisions.
(d) that neither it, nor any related person to it (within the
meaning set forth in Treasury Regulation Section 1.150-1(b)), pursuant to an
arrangement, formal or informal, shall purchase the Series 2003 A Bond.
8.9. Rebate Covenant.
(a) The Borrower hereby covenants that in connection with complying
with the requirement for payment of the Rebatable Arbitrage to the United States
with respect to the Series 2003 A Bond, the Borrower will take the following
actions:
(1) Six months after closing, the Borrower will provide a
written certification to the Authority and the Agent indicating whether the
Borrower complied with the 6-month exception to the arbitrage rebate requirement
set forth in the Code.
(2) Unless the Borrower has complied with the 6-month exception,
the Borrower will retain a Rebate Expert on or within 30 days before the Initial
Rebate Computation Date and on each Rebate Computation Date thereafter, (A) to
compute the Rebatable Arbitrage with respect to the Bond for the period ending
on the Initial Rebate Computation Date, (B) to deliver an opinion to the
Authority and the Agent concerning its conclusions with respect to the amount
(if any) of such Rebatable Arbitrage together with a written report providing a
summary of the calculations relating thereto and (C) to deliver an opinion to
the Authority and the Agent that all of the gross Bond Proceeds of the Series
2003 A Bond (within the meaning of Section 148(f) of the Code), other than gross
Bond Proceeds of the Series 2003 A Bond on deposit in a bona fide debt service
fund (within the meaning of Section 148(f) of the Code), have been
53
expended on or prior to the Initial Rebate Computation Date. "Rebate Expert"
means any of the following chosen by the Borrower: (A) Bond Counsel, (B) any
nationally recognized firm of certified public accountants, (C) any reputable
firm which offers to the tax-exempt bond industry rebate calculation services
and holds itself out as having expertise in that area, or (D) such other person
as is approved by Bond Counsel.
(3) In the event the amount in the Project Fund is insufficient
to fund the Rebate Fund, the Borrower shall within ten (10) days of receipt of
the report furnished by the Rebate Expert pursuant to paragraph (2) above, pay
or cause to be paid to the Agent for deposit into the Rebate Fund the difference
between the amount required to fund the Rebatable Arbitrage and the amount on
deposit in the Rebate Fund. If the Borrower fails to make or causes to be made
any payment required pursuant to this paragraph (3) when due, the Authority
shall have the right, but shall not be required, to make such payment to the
Agent on behalf of the Borrower. Any amount advanced by the Authority pursuant
to this paragraph (3) shall be added to the moneys owing by the Borrower under
this Agreement and shall be payable on demand with interest at the Default Rate
as provided in the Note.
(4) In the event Rebatable Arbitrage is due, the Borrower will
direct the Agent to withdraw from the Rebate Fund and pay over to the United
States the Rebatable Arbitrage with respect to the Series 2003 A Bond in
installments as follows: each payment shall be made not later than sixty (60)
days after the then current Rebate Computation Date and shall be in an amount
that ensures that ninety percent (90%) of the Rebatable Arbitrage with respect
to the Series 2003 A Bond, as of the then current Rebate Computation Date, will
have been paid to the United States.
(5) Each payment of the Rebatable Arbitrage to be paid to the
United States shall be filed with the Internal Revenue Service at such address
that may be specified by the Internal Revenue Service. Each payment shall be
accompanied by Form 8038-T (or such other form required by the Internal Revenue
Service furnished by the Borrower or the Authority), executed by the Authority,
and a statement identifying the Authority, the date of the issue, the CUSIP
number for the Series 2003 A Bond and a copy of the applicable Form 8038.
(6) The Borrower acknowledges that the Authority shall have the
right at any time and in the sole and absolute discretion of the Authority to
obtain from the Borrower and the Agent the information necessary to determine
the amount required to be paid to the United States pursuant to Section 148(f)
of the Code. Additionally, the Authority may, with reasonable cause, (A) review
or cause to be reviewed any determination of the amount to be paid to the United
States made by or on behalf of the Borrower and (B) make or retain a Rebate
Expert to make the determination of the amount to be paid to the United States.
The Borrower hereby agrees to be bound by any such review or determination,
absent manifest error, to pay the costs of such review, including without
limitation the reasonable fees and expenses of counsel or a Rebate Expert
retained by the Authority, and to pay to the Agent any additional amounts for
deposit in the Rebate Fund required as the result of any such review or
determination.
54
(7) Notwithstanding any provision of this Section to the
contrary, the Borrower shall be liable, and shall indemnify and hold the
Authority and the Agent harmless against any liability, for payments due to the
United States pursuant to Section 148(f) of the Code. Further, the Borrower
specifically agrees that neither the Authority nor the Agent shall be held
liable, or in any way responsible, and the Borrower shall indemnify and hold
harmless the Agent and Authority against any liability, for any mistake or error
in the filing of the payment or the determination of the amount due to the
United States or for any consequences resulting from any such mistake or error.
The provisions of this paragraph (7) shall survive termination of this
Agreement.
(8) The Authority, the Agent and the Borrower acknowledge that
the provisions of this Section are intended to comply with Section 148(f) of the
Code and the regulations promulgated thereunder and if as a result of a change
in such section of the Code or the regulations promulgated thereunder or in the
interpretation thereof, a change in this Section shall be permitted or necessary
to assure continued compliance with Section 148(f) of the Code and the
promulgated regulations thereunder, then with written notice to the Agent, the
Authority and the Borrower shall be empowered to amend this Section and the
Authority may require, by written notice to the Borrower and the Agent, the
Borrower to amend this Section to the extent necessary or desirable to assure
compliance with the provisions of Section 148 of the Code and the regulations
promulgated thereunder; provided that either the Authority or the Agent shall
require, prior to any such amendment becoming effective, at the sole cost and
expense of the Borrower, an opinion of Bond Counsel satisfactory to the
Authority to the effect that either (A) such amendment is required to maintain
the exclusion from gross income under Section 103 of the Code of interest paid
and payable on the Series 2003 A Bond or (B) such amendment shall not adversely
affect the exclusion from gross income under Section 103 of the Code of the
interest paid or payable on the Series 2003 A Bond.
8.10. Corrective Instruments.
The Authority and the Borrower agree that they will, from time to time,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such supplements and amendments hereto and such further instruments
as may reasonably be required for carrying out the intention or facilitating the
performance of this Agreement.
8.11. Taxes and Liens.
The Borrower will promptly pay, or cause to be paid, all taxes,
assessments or other governmental charges which may lawfully be levied or
assessed upon the income or profits of the Borrower, or upon any property, real,
personal or mixed, belonging to the Borrower or upon any part thereof, and also
any lawful claims for labor, material and supplies which, if unpaid, might
become a lien or charge against any such property; provided, however, the
Borrower shall not be required to pay any such tax, assessment, charge, levy or
claim so long as the validity thereof shall be actively contested in good faith
by proper proceedings; but provided further that any such tax, assessment,
charge, levy or claim shall be paid forthwith upon the commencement
55
of proceedings to foreclose any lien securing the same unless a surety bond
satisfactory to the Agent is obtained and delivered to the Agent.
8.12. Compliance with Department of Environmental Protection.
The Borrower shall operate the Project or cause it to be operated
materially in compliance with all applicable rules and regulations promulgated
by the Department of Environmental Protection of the State or any successor
agency thereto.
8.13. Pledged Funds.
Except as provided for in the Pledge Agreement, the Borrower will not
create or establish any other fund to provide for the payment of debt service on
the Bonds or which will be pledged as collateral for the Bonds and for which
there is reasonable assurance that amounts deposited therein will be available
to pay debt service on the Bonds.
8.14. Financial Statements.
The Borrower shall deliver to the Agent and the Purchaser, and to the
Authority upon request, the following financial statements:
(1) Within ninety (90) days after the close of each Fiscal Year
a balance sheet and an income statement, audited by a certified public
accountant selected by the Borrower and approved by the Purchaser, presenting
the Borrower's assets and liabilities at the close of its Fiscal Year and the
results of its operations during said Fiscal Year.
(2) Within sixty (60) days after the close of each quarter of
the Fiscal Year, an unaudited balance sheet and income statement certified to by
an appropriate officer of the Borrower, presenting the Borrower's assets and
liabilities as of the close of such quarters and the result of its operations
for such quarters. Said balance sheet and income statement may be subject to
audit and year end adjustments.
(3) Within ninety (90) days of the close of each Fiscal Year,
the Borrower's Form 10-K, as filed with the Securities and Exchange Commission
(the "SEC").
(4) Within sixty (60) days after the close of each quarter of
the Fiscal Year, the Borrower's Form 10-Q, as filed with the SEC.
(5) The Borrower further agrees, in addition to, and not in
limitation of, item 3 of this Section to notify the Authority, the Purchaser and
the Agent as soon as possible, but in any event within ten (10) days after the
occurrence of any Event of Default as specified in this Agreement or of any act,
omission, thing or condition which upon the giving of notice or lapse of time,
or both, would constitute such an Event of Default has happened or exists, which
notice shall also specify the Event of Default or act, omission, thing or
condition in question and set forth in detail what action the Borrower proposes
to take with respect thereto.
(6) The Borrower further agrees to provide from the Borrower's
certified public accountant a written acknowledgment stating that such certified
public
56
accountant acknowledges, and the Borrower has knowledge of, the Authority's, the
Agent's and the Purchaser's reliance on the certified public accountant's
information and services.
(7) Each audited financial statement furnished pursuant to this
Section shall be prepared in accordance with generally accepted accounting
principles and practices consistently applied for the period to which it
relates.
8.15. Further Covenants.
Borrower further covenants that it will:
(1) maintain at least one operating account with Purchaser;
(2) not, without the prior written consent of the Authority, the
Purchaser and the Agent, pay any dividends, make any withdrawal from its
capital, make any other distributions or repurchase, redeem, or otherwise
acquire or set aside reserves to acquire, any of its outstanding stock,
partnership or other equity interest, except in the ordinary course of business;
(3) not, without the prior written consent of the Authority, the
Purchaser and the Agent, become directly, indirectly or contingently liable for
the debts of others, except as an endorser of checks or drafts negotiated in the
ordinary course of business; and
(4) not change management without prior written approval of the
Agent;
8.16. Payment Upon an Event of Taxability.
Upon the occurrence of an Event of Taxability caused by any action or
inaction of the Borrower, any obligated party (as defined in the Code), any
tenant or user of the Project or any related person (as defined in the Code)
thereto, the Borrower shall pay to the Purchaser an amount equal to the Federal
and State income taxes, penalties, late charges, fees or expenses, and other
costs incurred by the Purchaser as a result of such Event of Taxability (all
referred to as the "Incremental Amount"), retroactive to the date when such
Event of Taxability occurred. The calculation of the Incremental Amount due
shall be made at the sole judgment of the Purchaser.
8.17. Filing of Other Documents.
The parties hereto shall execute, at the request of the Borrower, and the
Borrower shall file financing statements, continuation statements, notices and
such other documents necessary to perfect all security interests created
pursuant to the terms of this Agreement, and to preserve and protect the rights
of the Agent in the granting by the Authority of certain rights of the Authority
pursuant to this Agreement and the Notes, and the Authority shall have no
responsibilities for such filings whatsoever, other than executing the documents
requested by the Borrower.
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ARTICLE IX
CONCERNING THE AGENT
9.1. Agent; Appointment and Acceptance of Duties.
Fleet National Bank is hereby appointed as Agent. The Agent shall signify
its acceptance of the duties and obligations imposed upon it by this Agreement
by executing this Agreement.
9.2. Agent Entitled to Indemnity.
The Agent shall be under no obligation to institute any suit, or to
undertake any proceeding under this Agreement, or to enter any appearance or in
any way defend in any suit in which it may be made defendant, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any
rights and powers hereunder, until it shall be indemnified by the Borrower to
its satisfaction against any and all costs and expenses, outlays and counsel
fees and other reasonable disbursements, and, subject to Section 9.3 hereof,
against liability. The Agent may, nevertheless, begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it as the
Agent, without indemnity, and in such case the Agent shall be reimbursed by the
Borrower in connection with which such action shall have been taken for all
reasonable costs and expenses, outlays and reasonable counsel fees and other
reasonable disbursements properly incurred in connection therewith.
9.3. Responsibilities of Agent.
The Agent makes no representations as to the validity or sufficiency of
this Agreement or of the Bonds or in respect of the security afforded by this
Agreement, and the Agent shall incur no liability in respect thereof. Except as
otherwise provided herein, the Agent shall be under no responsibility or duty
with respect to: (i) the issuance of the Bond for value; (ii) the application of
the proceeds thereof, except to the extent that such proceeds are received by it
in its capacity as Agent; or (iii) the application of any moneys paid to the
Authority or others in accordance with this Agreement, except as to the
application of any moneys paid to it in its capacity as Agent.
The duties and obligations of the Agent shall be determined by the express
provisions of this Agreement, and the Agent shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Agreement. During the existence of any Event of Default that has not been cured,
the Agent may exercise any of the rights and powers vested in it by this
Agreement. At all times the Agent shall use the same degree of care and skill in
its exercise as a prudent person would exercise or use under the circumstances
in the conduct of the person's own affairs.
The Agent shall not be liable for any action taken or omitted by it in
good faith and believed by it to be authorized or within the discretion, rights
or powers conferred upon it by this Agreement except for its own willful
misconduct or gross negligence.
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9.4. Agent May Enforce Authority's Rights Under the Agreement.
The Authority agrees that the Agent, subject to the provisions of this
Agreement reserving certain rights to the Authority, as assignee of the
Authority (but not in the name of the Authority) may enforce all rights of the
Authority and all obligations of the Borrower under and pursuant to this
Agreement whether or not the Authority is in default hereunder.
9.5. Evidence on which the Authority and the Agent May Act.
The Authority and/or the Agent, as the case may be, may rely conclusively,
and shall be protected and shall incur no liability in acting or proceeding, or
in not acting or not proceeding, in good faith, reasonably and in accordance
with the terms of this Agreement, upon any resolution, order, notice, request,
consent, waiver, certificate, statement, affidavit, requisition, bond or other
paper or document that it shall in good faith reasonably believe to be genuine
and to have been adopted or signed by the proper board or Person or to have been
prepared and furnished pursuant to any of the provisions of this Agreement, or
upon the written opinion of any counsel, architect, engineer, insurance
consultant, management consultant or accountant reasonably believed by the
Authority and/or the Agent, as the case may be, to be qualified in relation to
the subject matter, and the Authority and/or the Agent, as the case may be,
shall be under no duty to make any investigation or inquiry into any statements
contained or matters referred to in any such instrument.
The Agent shall not be under any obligation to see to the recording or
filing of this Agreement, or otherwise to the giving to any Person of notice of
the provisions hereof except as expressly required in connection with this
Agreement.
Except as otherwise provided in this Agreement, any request, notice,
certificate or other instrument from the Authority to the Agent shall be deemed
to have been signed by the proper party if signed by an Authorized Officer of
the Authority, and the Agent may accept and rely upon a certificate signed by an
Authorized Officer of the Authority, as to any action taken by the Authority.
The Agent may consult with counsel, who may or may not be Bond Counsel or
counsel to the Authority, and the opinion of such counsel with respect to
matters of law shall be full and complete authorization and protection in
respect of any action taken or suffered by it in good faith and in accordance
therewith.
Whenever the Agent shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action under this
Agreement, unless other evidence in respect thereof be hereby specifically
prescribed, such matter may be deemed to be conclusively proved and established
by a certificate of an Authorized Officer of the Authority. Such certificate
shall be full warrant for any action taken or suffered in good faith under the
provisions hereof, but in its discretion the Agent may in lieu thereof accept
other evidence of such fact or matter or may require such further or additional
evidence as it may deem reasonable.
9.6. Compensation.
Unless otherwise provided by contract with the Agent, the Agent shall be
paid by the Borrower from time to time reasonable compensation for all services
rendered by it hereunder in
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connection with the Bonds, together with all of its reasonable expenses,
charges, reasonable counsel fees and other disbursements and those of its
counsel, agents and employees incurred in and about the administration and
execution of the trusts hereby created and the exercise of its powers and the
performance of its duties hereunder in connection with the Bonds (other than
fees incurred by the Agent in connection with the Closing, sole responsibility
for which shall be borne by the Agent). The Agent shall be entitled to
indemnification by the Borrower against any such expenses and liabilities that
the Agent may incur in the exercise and performance of such powers and duties
hereunder, and that are not directly or indirectly due to its willful misconduct
or gross negligence. None of the provisions contained in this Agreement shall
require the Agent to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it. The Agent
agrees that the Borrower shall be responsible for the payment of the previously
enumerated fees and expenses and indemnification and the Authority shall not be
responsible for the payment of such fees and expenses or indemnification.
9.7. Permitted Acts.
The Agent and its directors, officers, employees or agents may become the
owner of or may in good faith buy, sell, own, hold and deal in the Bonds and may
join in any action that any Holder may be entitled to take as fully and with the
same rights as if it were not the Agent. The Agent may act as depository for,
and permit any of its officers or directors to act as a member of, or in any
other capacity with respect to, the Authority or any committee formed to protect
the rights of the Holder or to effect or aid in any reorganization growing out
of the enforcement of the Bond or this Agreement, provided that the Agent's
duties as Agent do not conflict with this Section and provided further that this
Section is subject to the limited liability of the Authority as set forth in
Section 2.2(f) hereof.
9.8. Resignation of Agent.
The Agent may at any time resign and be discharged of its duties and
obligations hereunder by giving at least sixty (60) days written notice to the
Borrower, the Authority and the Holder. Such resignation shall take effect upon
the appointment of a successor Agent and the acceptance of such appointment by
such successor.
9.9. Removal of Agent.
The Agent may be removed at any time by the Holder by an instrument or
concurrent instruments in writing signed and acknowledged by such Holder or by
its attorneys-in-fact, duly authorized, and delivered and filed with the Agent,
with a copy to the Borrower. Facsimile copies of each such instrument providing
for any such removal shall also be delivered to the Authority. The Authority may
remove the Agent at any time, so long as no Event of Default shall have occurred
and be continuing, in the sole discretion of the Authority, by filing with the
Agent an instrument signed by an Authorized Officer of the Authority. Notice of
any removal of the Agent by the Authority shall be given by the Authority to the
Holder. The Agent may also be removed at any time for any breach of trust or,
for acting or proceeding in violation of, or for
60
failing to act or proceed in accordance with, any provision of this Agreement
with respect to the duties and obligations of the Agent by any court of
competent jurisdiction upon the application of the Authority or the Holder. Such
removal shall take effect upon the appointment of a successor Agent and the
acceptance of such appointment by such successor Agent.
9.10. Successor Agent.
(a) In case at any time the Agent shall resign, be removed, be
dissolved, become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or if a receiver, liquidator or conservator of the Agent or of its
property shall be appointed, or if any public officer shall take charge or
control of the Agent, or of its property or affairs, a successor Agent may be
appointed by the Holder of the Outstanding Bonds by an instrument or concurrent
instruments in writing signed and acknowledged by such Holder or its
attorneys-in-fact, duly authorized, and delivered to such successor Agent, with
notification thereof being given to the predecessor Agent, and the Authority.
The resignation or removal of the Agent shall take effect upon the appointment
of the successor Agent.
(b) If in a proper case no appointment of a successor Agent shall be
made pursuant to the foregoing provisions of this Section within forty-five (45)
days after the giving by the Agent of written notice of resignation in
accordance with Section 9.8 or after the occurrence of any other event requiring
or authorizing such appointment, the Agent or the Holder may apply to any court
of competent jurisdiction for the appointment of such a successor, and the court
may thereupon, after such notice, if any, as the court may deem proper, appoint
a successor Agent.
(c) Any successor Agent appointed under the provisions of this
Section shall be a commercial bank or trust company chartered under the laws of
any state of the United States of America or a national banking association
organized under the laws of the United States of America having a capital and
surplus aggregating at least $10,000,000 if there is such a bank or trust
company or national banking association willing and able to accept the
appointment on reasonable and customary terms and authorized by law to perform
all the duties required by this Agreement.
9.11. Transfer of Rights and Property to Successor Agent.
Any successor Agent appointed under the provisions of this Agreement shall
execute, acknowledge and deliver to its predecessor and the Authority a written
instrument of acceptance of such appointment, and thereupon such successor,
without any further act, deed or conveyance, shall become fully vested with all
moneys, estates, properties, rights, immunities, powers, duties, obligations and
trusts of its predecessor hereunder, with like effect as if originally appointed
as Agent. However, the Agent then ceasing to act shall, nevertheless, on request
of the Authority or such successor, execute, acknowledge and deliver such
instruments of conveyance and further assurance and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
such successor all the rights, immunities, powers and trusts of such Agent and
all the right, title and interest of such Agent in and to this Agreement and
shall pay over, assign and deliver to such successor any moneys or other
properties subject to the trusts
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and conditions herein set forth. Should any deed, conveyance or instrument in
writing from the Authority be required by such successor for more fully and
certainly vesting in and confirming to it any such moneys, estates, properties,
rights, powers, duties or obligations, any and all such deeds, conveyances and
instruments in writing shall be executed, acknowledged and delivered by the
Authority on request and so far as may be authorized by law.
9.12. Merger, Conversion or Consolidation of Agent.
Any company into which the Agent may be merged or converted or with which
it may be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Agent may
sell or transfer all or substantially all of its corporate trust business shall
be the successor to such Agent, without any further act, deed or conveyance,
provided that such company shall be a commercial bank or trust company or
national banking association qualified to be a successor to such Agent under the
provisions of Section 9.9.
9.13. Filing of Certain Continuation Statements and Other Documents.
(a) From time to time, the Agent shall file or cause to be filed
continuation statements, supplements and amendments at the times required by the
Uniform Commercial Code of the State for the purpose of continuing without lapse
the perfected status of (i) those financing statements, if any, which shall have
been filed at or prior to the issuance of the Bonds in connection with the
security for the Bond pursuant to the authority of the Uniform Commercial Code
of the State, and (ii) any previously filed continuation statements, supplements
or amendments, if any, which shall have been filed as herein required. The
Authority and the Borrower shall sign and deliver to the Agent or its designees
such continuation statements as may be requested of it from time to time by the
Agent. Upon the filing of any such continuation statement the Agent shall
immediately notify the Authority and the Borrower that the same has been
accomplished.
(b) The Agent is authorized to file financing statements that may be
needed to perfect the security interests granted hereunder without the
Borrower's signature.
9.14. Action When Bond No Longer Outstanding.
Subject to the provisions of Section 11.1 hereof, at such time that the
Bond are no longer Outstanding and all amounts due to the Authority and the
Agent hereunder have been paid in full, the Agent and the Authority shall
immediately take all actions to terminate the liens created hereunder including
the execution of any documents and termination statements in connection
therewith and delivery of the same to the Borrower or at its direction. Any
amounts remaining thereafter shall be paid to the Borrower.
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ARTICLE X
INVESTMENTS
10.1. Investment of Funds.
(a) Investment of moneys in the Debt Service Fund and the Project
Fund (including the accounts established thereunder) established hereunder shall
be made by the Agent, in accordance with the written directions of an Authorized
Officer of the Borrower either: (i) to place an order for a designated
investment; or (ii) to purchase an investment for which an order has been
previously placed. The Agent shall not be liable for any investments made
pursuant to such written direction. Pending receipt of written investment
directions from the Borrower, the Agent shall deposit uninvested moneys in
excess of $1,000 within one business day of collection thereof in an interest
bearing account that is commonly utilized by the Agent in its corporate trust
business, provided that any such deposit may be withdrawn at any time upon
demand.
(b) Moneys in the Debt Service Fund and the Project Fund may only be
invested and reinvested in Investment Obligations.
(c) Investments made pursuant to this Agreement shall not mature
later than the date on which the funds are reasonably expected to be required
for the purpose for which they are held.
(d) Neither the Agent nor the Authority shall be liable for any
depreciation in the value of any obligations in which moneys of the Funds or
accounts shall be invested, as aforesaid, or for any loss arising from any
investment or the liquidation thereof.
10.2. Valuation and Sale of Investments.
Obligations purchased as an investment of moneys in any Fund created under
the provisions of this Agreement shall be deemed at all times to be a part of
such Fund and any profit realized from the liquidation of such investment shall
be credited to such Fund, and any loss resulting from the liquidation of such
investment shall be charged to the respective Fund.
In computing the amount in any Fund created under the provisions of this
Agreement for any purpose provided in this Agreement, obligations purchased as
an investment of moneys therein shall be valued at the current market value
thereof.
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ARTICLE XI
MISCELLANEOUS
11.1. Defeasance.
(a) When the Authority shall pay or cause to be paid the principal
and Redemption Price (if any) of and interest on the Bonds and all other sums
payable by the Authority pursuant to this Agreement, and when all amounts due to
the Authority and the Agent under this Agreement shall have been paid in full,
then the pledge hereunder shall be released, discharged and satisfied. In such
event, the Agent shall take such actions as required by Section 9.13.
(b) A Bond for the payment or redemption of which Available Moneys
shall then be held by the Agent (through deposit by the Authority of moneys for
such payment or redemption or otherwise), whether at or prior to the maturity or
the redemption date of such Bond, shall be deemed to have been paid within the
meaning of this Section; provided, however, that: (i) if any such Bond is to be
redeemed prior to the maturity thereof, the Authority shall have taken all
action necessary hereunder to redeem such Bond and provision reasonably
satisfactory to the Agent shall have been made for the Agent to give notice of
such redemption in accordance with Section 3.4 hereof; (ii) if the maturity or
redemption date of any such Bond shall not then have arrived, provision shall
have been made by the Authority by deposit with the Agent for the payment to the
Holder upon surrender thereof, whether or not prior to the maturity or
redemption date thereof, of the full amount in cash, or Government Obligations
(provided such securities are not subject to any prepayment or redemption prior
to maturity and do not include items described in clauses (iv), (vi), (vii) or
(viii) of Investment Obligations even if secured by Government Obligations), the
principal of and interest on which when due will equal such full amount to which
they would be entitled by way of principal or Redemption Price of and interest
thereon to the date of such maturity or redemption, and provision shall have
been made by the Authority, reasonably satisfactory to the Agent, for mailing by
the Agent, in accordance with Section 3.4 hereof, of a notice to the Holder of
such Bond that such moneys are so available for such payment; (iii) the Agent
shall have received an opinion of counsel from a law firm having a reputation in
the field of bankruptcy law acceptable to the Agent, opining that the amounts
applied to the payment of the Bond, when received by the Holder for principal,
Redemption Price, if any, of and interest on the Bond will not constitute a
voidable preference under Section 547 of the Federal Bankruptcy Code in the
event of bankruptcy by the Authority or the Borrower or will not be recoverable
under Section 550 of the Federal Bankruptcy Code in the event of a bankruptcy by
any guarantor of the Borrower's obligations under this Agreement; and (iv) the
Agent shall have received a report from a certified public accountant verifying
the accuracy of the amount deposited pursuant to this Section to pay the Bond to
be paid pursuant to this Section.
(c) If the Bonds shall not be presented for payment when the
principal thereof becomes due (whether at maturity, by acceleration, upon call
for redemption, upon purchase or
64
otherwise), all liability of the Authority to the Holder thereof for the payment
of the Bonds, shall forthwith cease and be completely discharged if funds
sufficient to pay the Bonds and interest due thereon, if any, shall be held by
the Agent uninvested for the benefit of the Holder, and thereupon it shall be
the duty of the Agent to hold such funds, without liability for interest
thereon, for the benefit of the Holder, who shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on his part under
this Agreement or on, or with respect to, the Bonds.
Any moneys deposited with the Agent or then held by the Agent in trust for
the payment of the principal or Redemption Price of and interest on the Bonds
and remaining unclaimed in accordance with applicable law shall be paid to the
State. Thereafter, the Holder shall look only to the State for payment and then
only to the extent of the amount so received without any interest thereon, and
the Agent shall have no responsibility with respect to such moneys.
11.2. Evidence of Signatures of Holder and Ownership of Bonds.
Any request, consent or other instrument which this Agreement may require
or permit to be executed by the Holder may be in one or more instruments of
similar tenor and shall be signed by such Holder in person or by its attorneys
duly appointed in writing. Proof of the execution of any such instrument or of
an instrument appointing any such attorney or the holding by any person of such
Bond shall be sufficient for any purpose of this Agreement (except as otherwise
herein expressly provided) if in the form of a certificate, which need not be
acknowledged or verified, of an officer of a bank or trust company satisfactory
to the Agent or of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which it purports to
act, that the person signing such request or other instrument acknowledged to
him the execution thereof or by an affidavit of a witness of such execution,
duly sworn to before such notary public or other officer. The authority of the
person or persons executing any such instrument on behalf of a corporate Holder
may be established without further proof if such instrument is signed by a
person purporting to be the president or a vice president of such corporation
with a corporate seal affixed and attested by a person purporting to be its
secretary or an assistant secretary. The Agent may nevertheless in its
discretion require further or other proof in cases where it deems the same
desirable.
11.3. Preservation and Inspection of Documents.
All documents received by the Agent from the Authority or from the Holder
under the provisions of this Agreement shall be retained in its possession and
shall be subject at all reasonable times to the inspection of the Authority, the
Borrower, any Holder and their agents and their representatives, any of whom may
make copies thereof.
11.4. Severability of Invalid Provisions.
If any one or more of the covenants or agreements provided in this
Agreement on the part of the Authority or the Agent to be performed should be
contrary to law, then such covenant or covenants, agreement or agreements shall
be null and void and shall in no way affect the validity of the other provisions
of this Agreement or the Bonds.
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11.5. Notices.
Any notices or other instruments delivered to the following parties
pursuant to this Agreement shall be in writing and shall be sent by registered
or certified mail, delivered by messenger or facsimile transmission or sent by
telegram to such parties to the respective addresses as follows:
If to the Authority:
New Jersey Economic Development Authority
00 Xxxx Xxxxx Xxxxxx
X.X. Xxx 000 Xxxxxxx, Xxx Xxxxxx 00000
Attention: Director of Investment Banking
If to the Agent:
Fleet National Bank
000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: Commercial Lending
If to the Purchaser:
Fleet National Bank
000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: Commercial Lending
If to the Borrower:
Immunomedics Inc.
000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CFO
11.6. Costs and Expenses.
All expenses in connection with the preparation, execution, delivery,
recording and filing of this Agreement, the Notes, and other Financing Documents
and in connection with the preparation, issuance and delivery of the Bonds and
the enforcement of the rights of the Authority in connection with this Agreement
and the Bonds and any and all other documents executed by the Borrower in
connection with any of the foregoing, the Authority's Fees, all reasonable
attorneys' fees, including the fees and disbursements of Xxxxx, Danzig, Scherer,
Xxxxxx & Xxxxxxxx LLP, Bond Counsel, shall be paid directly by the Borrower. The
Borrower
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shall also pay, throughout the term of the Bonds, the Authority's fees and
expenses and the Agent's annual and special fees and expenses under this
Agreement, the Note, including, but not limited to, reasonable attorney's fees
and all costs of issuing, marketing, collecting payment on and redeeming the
Bonds thereunder, and any costs and expenses of the Holder in connection with
any approval, consent or waiver under, or modification of, any such document.
11.7. Immunity and Indemnification of the Authority.
In the exercise of the powers of the Authority and its members, officers,
employees and agents under this Agreement, including, without limitation, the
application of moneys, the investment of funds, or the assignment or other
disposition of the collateral if an Event of Default by the Borrower shall have
occurred, neither the Authority nor its members, officers, employees or agents
shall be accountable to the Purchaser, the Agent or Borrower for any action
taken or omitted by it or them in good faith and believed by it or them to be
authorized or within the discretion or rights or powers conferred. The Authority
and its members, officers, employees and agents shall be protected in its or
their acting upon any paper or documents believed by it or them to be genuine,
and it or they may conclusively rely upon the advice of counsel and may (but
need not) require further evidence of any fact or matter before taking any
action.
11.8. Authority Not Responsible for Insurance, Taxes, Execution of
Agreement, or Application of Moneys Applied in Accordance with Agreement.
(a) The Authority is not under any obligation to effect or maintain
insurance or to renew any policies of insurance or to inquire as to the
sufficiency of any policies of insurance carried by the Borrower, or to report,
or make or file claims or proof of loss for, any loss or damage insured against
or which may occur, or to keep itself informed or advised as to the payment of
any taxes or assessments, or to require any such payment to be made. The
Authority shall have NO responsibility in respect of the sufficiency of the
security provided by this Agreement. The Authority shall not be under any
obligation to see that any duties herein imposed upon any party other than
itself, or any covenants herein contained on the part of any party other than
itself to be performed, shall be done or performed, and the Authority shall not
be under any liability for failure to see that any such duties or covenants are
so done or performed.
(b) The immunities and exemptions from liability of the Authority
hereunder shall extend to its directors, members, attorneys, officers, employees
and agents.
(c) Pursuant to the Act, neither the members of the Authority nor
any person executing bonds for the Authority shall be liable personally on said
bonds by reason of the issuance thereof.
11.9. Pledge to the Federal Reserve.
The Purchaser may at any time pledge all or any portion of its rights
under the Loan Documents including any portion of the Note to any of the twelve
(12) Federal Reserve Banks organized under Section 4 of the Federal Reserve Act,
12 U.S.C. Section 341. No such pledge or enforcement thereof shall release the
Purchaser from its obligations under any of the Loan Documents.
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11.10. Integration Clause.
The Loan Documents are intended by the parties as the final, complete and
exclusive statement of the transactions evidenced by this Agreement and the
other Loan Documents. All prior or contemporaneous promises, agreements and
understandings, whether oral or written, are deemed to be superseded by this
Agreement and the other Loan Documents, and no party is relying upon any
promise, agreement or understanding not set forth in this Agreement and the
other Loan Documents.
11.11. Amendments.
This Agreement may be amended by the parties hereto only in writing and
with the consent of all parties hereto.
11.12. New Jersey Law Governs.
This Agreement, the other Loan Documents and the rights and obligations of
the parties hereunder shall be governed by and construed in accordance with the
laws of the State of New Jersey, excluding the laws applicable to conflicts or
choice of law.
11.13. Waiver of Jury Trial.
BORROWER AND PURCHASER (BY ACCEPTANCE OF THE LOAN DOCUMENTS) MUTUALLY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF PURCHASER
RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS,
AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED EXCEPT AS
PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES. BORROWER CERTIFIES THAT NO REPRE-SENTATIVE, AGENT OR ATTORNEY OF
PURCHASER HAS REPRE-SENTED, EXPRESSLY OR OTHERWISE THAT PURCHASER WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR PURCHASER TO ACCEPT THE LOAN DOCUMENTS AND
MAKE THE LOAN.
11.14. Section Headings.
The Section headings herein have been prepared for convenience only and
are not a part of this Agreement and shall not be taken as an interpretation of
any provision of this Agreement.
68
11.15. Execution in Counterparts.
This Agreement may be executed in multiple counterparts, each of which
shall be regarded for all purposes as an original, and such counterparts shall
constitute but one and the same instrument.
69
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officers as of the date first
above written and consider this to be a sealed document.
ATTEST: IMMUNOMEDICS, INC.
By: By:
-------------------------- --------------------------------
Name: Name:
Title: Title:
ATTEST: NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
By: By:
-------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxxx
Assistant Secretary Executive Director
ATTEST: FLEET NATIONAL BANK, as Agent
By: By:
-------------------------- --------------------------------
Name: Name:
Title: Title:
ATTEST: FLEET NATIONAL BANK, as Purchaser
By: By:
-------------------------- --------------------------------
Name: Name:
Title: Title:
70
EXHIBIT A
ASSIGNMENT
The NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the "Authority")
having its principal office at 00 Xxxx Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxx
Xxxxxx 00000 does hereby sell, assign, transfer and set over to FLEET NATIONAL
BANK (the "Agent" and the "Purchaser"), having its principal corporate trust
office at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000, as Agent under the
Bond Financing Agreement dated May 27, 2003 by and among the Authority,
IMMUNOMEDICS, INC. (the "Borrower"), the Purchaser and the Agent (the
"Agreement"; terms used herein and not defined shall have the meaning given in
the Agreement), (1) all the right, title and interest of the Authority in and to
the Agreement, as well as all payments of principal, Redemption Price, if any,
of and interest on the Authority's $1,000,000 Economic Development Bond
(Immunomedics, Inc. Project) Series 2003 A (the "Series 2003 A Bond"), and its
$5,376,000 Economic Development Bond (Immunomedics, Inc. Project) Series 2003 B
(Federally Taxable) (together with the Series 2003 A Bond, the "Bonds") payable
or which may become payable under the Agreement, the same to be held in trust
and applied by the Agent as provided in said Agreement, and (2) all right, title
and interest of the Authority in and to the other Loan Documents; and the
Authority does hereby constitute and appoint the Agent, its true and lawful
attorney for it as its assignee to collect and receive payment of any and all of
said payments and to give good and sufficient receipts therefor, hereby
ratifying and confirming all that said attorney may do in the premises. Said
Agent may, but, except as otherwise provided in the Agreement, shall not be
required to, institute any proceedings or take any action in its name or as
assignee of the Authority to enforce the obligations of the Borrower thereunder.
EXPRESSLY RESERVING to the Authority the concurrent right:
(a) to receive notices under the Agreement;
(b) to consent to any amendments, modifications or supplements to
the Agreement;
(c) to receive payments under and to enforce pursuant to Article VI
of the Agreement - "EVENTS OF DEFAULT AND REMEDIES", as well as all provisions
or covenants in the Agreement under the following sections:
(1) Section 2.1(b)(1) regarding the important inducement to the
Borrower;
(2) Section 2.1(b)(2) regarding untrue statements;
(3) Section 2.1(b)(3) regarding project users;
(4) Section 2.1(b)(4) regarding the maintenance of existence of
the Borrower and its ability to merge, sell or transfer;
(5) Section 2.1(b)(5) regarding relocation of the Project;
(6) Section 2.1(b)(6) regarding operating the Project as an
authorized project;
(7) Section 2.1(b)(7) regarding the submission of an annual
certificate;
(8) Section 2.1(b)(8) regarding preservation of the Project;
(9) Section 2.1(b)(9) regarding the Authority's access to the
Project;
(10) Section 2.1(b)(10) regarding additional information;
(11) Sections 6.1, 6.2 and 6.3 regarding Events of Default;
(12) Sections 8.6 and 8.7 regarding indemnification;
(13) Sections 8.8 and 8.9 regarding compliance with tax
covenants and the calculation and remittance of rebate;
(14) Section 8.14 regarding financial statements;
(15) Section 8.17 regarding the filing of other documents;
(16) Section 11.6 regarding the payment of the Authority's costs
and expenses;
(17) Section 7.1 regarding the maintenance of general liability
insurance;
(d) to receive indemnification and to be held harmless by the
Borrower; and
(e) to redeem or cancel the Bonds in accordance with the Agreement.
The Authority shall concurrently reserve such rights whether or not the Agent
shall have exercised or shall have purported to exercise such rights and
remedies, without limiting the obligation of the Agent to do so.
ii
IN WITNESS WHEREOF, THE NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
has caused this Assignment to be duly executed and attested by its duly
authorized officers as of the date first above written.
Attest: NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
By: By:
-------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxxx
Assistant Secretary Executive Director
iii
EXHIBIT B
REQUISITION
Fleet National Bank
000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Ladies and Gentlemen:
On behalf of Immunomedics, Inc. (the "Borrower"), I hereby make the
following requisition from the funds representing the proceeds of the sale of
the New Jersey Economic Development Authority (the "Authority") $6,376,000
Economic Development Bonds (Immunomedics, Inc. Project) Series 2003, dated the
date of delivery and payment of the Bonds (the "Bond"), which funds are held by
you in the Project Fund established under the Bond Financing Agreement dated May
27, 2003 (the "Agreement"; terms used herein and not defined shall have the
meaning given in the Agreement) and are to be disbursed in accordance with the
provisions of the Agreement:
Payment to: See Schedule A attached hereto
Amount: $
Reason for Payment: Payment as set forth on Schedule A attached
hereto
I hereby certify:
(a) that an obligation in the stated amount has been incurred in
connection with the issuance of the Bonds or the costs of the Project (as
defined in the Agreement);
(b) that such obligation is a Project Cost, has not been the basis
of any previous withdrawal from the Project Fund and is for a purpose permitted
and specified in the Agreement; and
(c) that such requisition contains no request for payment on account
of any portion of such obligation which the Borrower is, as of the date of such
requisition, entitled to retain under any retained percentage agreements.
I hereby certify that insofar as the amount covered by the above
requisition includes payments to be made for labor, services, materials,
supplies and/or equipment in connection with the acquisition, renovation and
installation of the Project, such labor and/or
i
services were actually performed in a satisfactory manner and such material,
supplies and/or equipment were actually used in or about the construction or
delivered at the site for the Project (as defined in the Agreement) for that
purpose and that any item of equipment with respect to which any payment is
requested constitutes equipment to be used at the Project.
IMMUNOMEDICS, INC.
By:
---------------------------
Name:
Title:
Dated:
Approved by:
FLEET NATIONAL BANK,
as Purchaser
By:
---------------------
Name:
Title:
Schedule A
Name Address Amount
---- ------- ------
i
EXHIBIT C
[FORM OF SERIES 0000 X XXXX]
XXX XXXXX XX XXX XXXXXX IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND
CREDIT NOR TAXING POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE
PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON
THIS BOND. THIS BOND IS A SPECIAL, LIMITED OBLIGATION OF THE AUTHORITY,
PAYABLE SOLELY OUT OF RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY PLEDGED
UNDER THE AGREEMENT AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE
AGREEMENT FOR THE PAYMENT OF THIS BOND. THIS BOND DOES NOT NOW AND SHALL
NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE
AUTHORITY HAS NO TAXING POWER.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
ECONOMIC DEVELOPMENT BOND
(IMMUNOMEDICS, INC. PROJECT) SERIES 2003 A
NUMBER: $1,000,000
INTEREST
DATE RATE
---- --------
May 27, 2003 Variable (as described herein)
MATURITY DATE
-------------
June 1, 2008
REGISTERED OWNER: FLEET NATIONAL BANK
PRINCIPAL AMOUNT: ONE MILLION DOLLARS
THE NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the "Authority"), a public
body corporate and politic, constituting an instrumentality of the State of
i
New Jersey duly organized and existing under the laws of the State of New Jersey
and, in particular, the New Jersey Economic Development Authority Act,
constituting N.J.S.A. 34:1B-1 et. seq., as may be amended and supplemented (the
"Act"), FOR VALUE RECEIVED, hereby promises to pay, but only from the funds
provided therefor as hereinafter set forth, to the registered owner specified
hereinabove, or registered assigns, unless this Bond shall be redeemed and shall
have been previously called for redemption and payment of the Redemption Price
shall have been duly made or provided for, the principal sum specified above,
together with interest on the unpaid principal at the interest rate per annum
specified above. The principal and interest so payable and punctually paid or
duly provided for, on any Debt Service Payment Date, as outlined in the attached
Schedule, will, pursuant to the Agreement (as hereinafter defined) be paid to
the registered owner hereof at the close of business on the dates set forth in
the attached Schedule (whether or not such day is a business day). Payment on
this bond shall be payable in immediately available funds or such other manner
as shall be acceptable to the Holder on the Debt Service Payment Date. The
principal of and interest on this bond shall be paid in any coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
This Bond is issued under and pursuant to the Constitution and Laws of the
State of New Jersey, and under and pursuant to a resolution duly adopted by the
Authority on April 8, 2003. This Bond is a special and limited obligation of the
Authority payable solely from the Revenue derived from the Agreement (as
hereinafter defined) and from the assets pledged thereunder. THE STATE OF NEW
JERSEY IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING
POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR
REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THIS BOND. THIS BOND IS A SPECIAL,
LIMITED OBLIGATION OF THE AUTHORITY, PAYABLE SOLELY OUT OF RECEIPTS, FUNDS OR
MONEYS OF THE AUTHORITY PLEDGED UNDER THE AGREEMENT (AS HEREINAFTER DEFINED) AND
FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE AGREEMENT (AS HEREINAFTER
DEFINED) FOR THE PAYMENT OF THIS BOND. THIS BOND DOES NOT NOW AND SHALL NEVER
CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE AUTHORITY
HAS NO TAXING POWER.
This Bond has been duly authorized as an economic development bond of the
Authority in the principal amount of $1,000,000 and is known as "New Jersey
Economic Development Authority, Economic Development Bond (Immunomedics, Inc.
Project) Series 2003 A (the "Bond").
This Bond is issued for the purpose of financing a project as more fully
defined in the Agreement. Immunomedics, Inc. (the "Borrower") and the Authority
and Fleet National Bank (the "Agent" and the "Purchaser") have entered into a
Bond Financing Agreement dated May 27, 2003 (which agreement as it may from time
to time be amended is hereinafter called the
ii
"Agreement"; capitalized terms used herein and not otherwise defined shall have
the meaning given in the Agreement) pursuant to the terms of which the Authority
has agreed to issue and sell this Bond and to lend the proceeds thereof to the
Borrower, and in consideration thereof the Borrower has agreed to make payments
to the Authority sufficient to pay the principal or Redemption Price (if any) of
and interest on this Bond as the same become due and payable.
This Bond is issued under and pursuant to the Agreement. An executed
counterpart of the Agreement is on file at the principal office of the Agent.
Reference is hereby made to the Agreement for the provisions, among others, with
respect to the custody and application of the proceeds of this Bond, the
collection and disposition of revenues, a description of the funds pledged to
the payment of the principal and Redemption Price of and interest on this Bond,
the nature and extent of the security, the rights, duties and obligations of the
Authority and the Agent and the rights of the Holder of this Bond, and, by the
acceptance of this Bond, the Holder hereof assents to all of the provisions of
the Agreement.
PRINCIPAL AND INTEREST
(a) Principal of this Bond shall be payable by the Borrower in sixty (60)
equal successive monthly principal installments commencing on July 1, 2003, the
first fifty-nine (59) of which shall each be in the amount of SIXTEEN THOUSAND
SIX HUNDRED SIXTY-SIX DOLLARS AND SIXTY-SIX CENTS ($16,666.66) and the 60th and
final such principal installment shall be in the amount of the then remaining
principal balance of the Series 2003 A Note together with all accrued and unpaid
interest, each such payment payable until the entire principal balance and all
accrued and unpaid interest shall have been paid in full.
(b) Interest on the Bond shall accrue from the date of issuance of the
Bond (the "Closing Date") to and including June 1, 2008 (the "Maturity Date"),
and the Borrower shall pay such interest on the first day of each month in each
year commencing July 1, 2003, in immediately available funds and in lawful money
of the United States of America, at the interest rate set forth on Schedule A
attached hereto and made a part hereof, which shall be adjusted from time to
time in accordance with Section 4.2 of the Agreement.
Any monthly installment of principal or interest or any portion thereof
due on the Bond that is not received by the Holder within ten (10) days of the
due date, shall bear interest at the rate of five percent (5%) of the amount of
the payment then due (the "Late Payment Fee") until such time as such
installment is received by the Holder, and such additional amount of interest
due and owing pursuant to this subparagraph shall be paid to the Holder together
with the installment of principal and interest past due on the Bond.
REDEMPTION OF BOND
This Bond is subject to redemption as described below:
iii
(a) Extraordinary Mandatory Redemption-Casualty and Condemnation
Proceeds. This Bond is subject to mandatory redemption by the Authority prior to
maturity, in whole at any time, or in part on any Debt Service Payment Date to
the extent proceeds of insurance or condemnation awards are received with
respect to the Project and are applied for this purpose pursuant to Section 7.2
of the Agreement at a Redemption Price equal to 100% of the principal amount to
be redeemed, plus interest accrued to the redemption date.
(b) Optional Redemption. This Bond is subject to optional redemption
by the Authority, at the direction of the Borrower, upon at least three Business
Day's notice, in whole or in part at any time at a redemption price equal to
100% of the principal amount to be redeemed, plus interest accrued to the
redemption date; provided, however, that any such partial redemption shall be in
an amount of $100,000 or an integral multiple of $100,000 in excess thereof, and
provided further that no such redemption shall be made other than on a Debt
Service Payment Date. Notwithstanding the foregoing, no such optional redemption
shall occur unless there shall be available in the Debt Service Fund sufficient
Available Money to pay all amounts due with respect to such a redemption.
(c) Optional Redemption-Determination of Taxability. This Bond is
subject to optional redemption at the option of the Holder in whole as soon as
practicable but no later than sixty (60) days following a Determination of
Taxability. Upon the occurrence of any such event, this Bond shall be redeemed
by the Authority at a redemption price equal to 100% of the principal amount of
this Bond plus accrued interest up to, but not including, the redemption date.
(d) Mandatory Redemption - Loss in Collateral Value. The Bond is
subject to mandatory redemption by the Authority, at the direction of the Agent,
in part at any time when the aggregate amount of the Loan outstanding shall
exceed the Loan Value of the Collateral, at a redemption price equal to the
difference between the amount of the Loan outstanding and the then-current Loan
Value of the Collateral; provided, however, that the Borrower shall receive at
least two (2) Business Days' notice prior to any such redemption.
(e) Selection of Bond to be Redeemed. Any redemption prior to
maturity will be accompanied by payment of all accrued and unpaid interest due
to the date of redemption on the principal amount of Bond redeemed and all other
fees, expenses and other sums due and owing under the Loan Documents. Any
partial redemption will be applied to installments of principal due on this Bond
redeemed in an equal proportion, whether such redemption be voluntary or
involuntary, whether by acceleration of the Loan or upon an event of default or
otherwise.
Notice of any redemption pursuant to the preceding paragraphs shall be
given by the Agent by first class mail postage prepaid, to the Holder of this
Bond at its address as it appears on the Bond Register, not less than fifteen
(15) nor more than thirty (30) days prior to the redemption date or in such
other manner as shall be acceptable to the Holder. Failure to mail such notice
or defects therein or in the mailing thereof shall not affect the validity of
the redemption.
iv
If the Authority deposits with the Agent funds sufficient to pay the
principal or Redemption Price of this Bond becoming due at maturity, by call for
redemption, or otherwise, together with interest accrued to the due date, as
provided in the Agreement, interest on such Bond will cease to accrue on the due
date. Thereafter the Holder of such Bond will be restricted to the funds so
deposited as provided in the Agreement.
Event of Cancellation.
----------------------
Pursuant to Section 6.2(d) of the Agreement, the occurrence of an Event of
Default under the Agreement shall constitute an Event of Cancellation hereunder,
and at any time thereafter during the continuance of such Event of Cancellation,
the Authority may, by written notice to the Purchaser, duly endorse and deliver
the Series 2003 A Note without recourse to the Purchaser and thereafter call and
cancel this Bond. The Purchaser and any assignees and the Borrower hereby
expressly agree that this Bond may be called and canceled by the Authority in
the manner provided above, and upon the date specified in the notice from the
Authority (the "Cancellation Date"), which shall be at least thirty (30) and no
more than sixty (60) days after the giving of such notice, this Bond will be
called and canceled, and the Purchaser may, at its option, declare the
obligation evidenced by the Series 2003 A Note immediately due and payable. The
Purchaser will deliver this Bond to the Authority for cancellation upon the
Cancellation Date, but even if such delivery does not occur, this Bond will be
considered canceled and of no further force or effect on the Cancellation Date
upon delivery to the Purchaser of the Series 2003 A Note duly endorsed as
described above.
Upon the Cancellation Date, the Series 2003 A Note will evidence the
indebtedness from the Borrower to the Purchaser and, in the event the Note is
not accelerated by the Purchaser, as hereinabove provided, all of the terms of
the Series 2003 A Note will control the obligations of the Borrower to the
Purchaser, except that from and after the Cancellation Date the per annum
interest rate will increase to the Default Rate. If this occurs, the monthly
payment shall be modified to reflect the difference between the interest stated
in the Bond and the Series 2003 A Note and the increased interest rate called
for in this paragraph. This condition may be reflected in a separate agreement
to be prepared by counsel for the Purchaser. The Authority will no longer be a
party to the transaction and shall have no further rights with respect thereto
(except its right to obtain outstanding fees and its right of indemnification,
which shall survive) and shall be released of any and all debts, liabilities and
obligations to any party under the Agreement, the Bond or any other Loan
Document. The Authority and the Purchaser shall execute and deliver to each
other such other documents and agreements as the other may reasonably request in
order to evidence the cancellation of the Bond and the withdrawal of the
Authority from the transaction.
GENERAL PROVISIONS
Pursuant to the Agreement, the Authority has, for the benefit of the
Holder of this Bond, assigned to the Agent the Authority's right, title and
interest under the Agreement, subject to the
v
reservation of certain rights by the Authority under the Agreement, including,
without limitation, the right to exercise remedies thereunder under certain
circumstances.
The Holder of this Bond shall have no right to enforce the provisions of
the Agreement or to institute any action to enforce the covenants therein, or to
take any action with respect to any Event of Default under the Agreement, or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Agreement.
The Act provides that neither the members of the Authority nor any person
executing bonds for the Authority shall be liable personally on said bond by
reason of the issuance thereof.
In certain events, on the conditions, in the manner and with the effect
set forth in the Agreement, the principal of this Bond may become or may be
declared due and payable before the stated maturity hereof, together with the
interest accrued hereon.
Modifications or alterations of the Agreement and any supplement or
amendment thereto may be made only to the extent and in the circumstances
permitted by the Agreement. Reference is made to the Agreement for a description
of the security for this Bond and for a description of the limitations on
transferring this Bond.
This Bond shall be governed by and construed in accordance with the laws
of the State of New Jersey.
All acts, conditions and things required to happen, exist and be performed
precedent to and in the issuance of this Bond and the execution of the Agreement
have happened, exist and have been performed as so required.
vi
IN WITNESS WHEREOF, the New Jersey Economic Development Authority has
caused this Bond to be executed by the manual or facsimile signature of its
Executive Director and its official seal or a facsimile thereof to be impressed,
imprinted or reproduced hereon and attested by the manual or facsimile signature
of its Assistant Secretary.
[SEAL]
ATTEST: NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
By: By:
-------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxxx
Assistant Secretary Executive Director
vii
CERTIFICATE OF AUTHENTICATION
This Bond is the Bond described in the within-mentioned Bond
Financing Agreement.
FLEET NATIONAL BANK,
as Agent
By:
--------------------------
Authorized Officer
Date of Authentication:
-----------------------
viii
SCHEDULE A
Bond Interest Rate
------------------
i
EXHIBIT D
[FORM OF SERIES 0000 X XXXX]
XXX XXXXX XX XXX XXXXXX IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND
CREDIT NOR TAXING POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE
PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON
THIS BOND. THIS BOND IS A SPECIAL, LIMITED OBLIGATION OF THE AUTHORITY,
PAYABLE SOLELY OUT OF RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY PLEDGED
UNDER THE AGREEMENT AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE
AGREEMENT FOR THE PAYMENT OF THIS BOND. THIS BOND DOES NOT NOW AND SHALL
NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE
AUTHORITY HAS NO TAXING POWER.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
ECONOMIC DEVELOPMENT BOND
(IMMUNOMEDICS, INC. PROJECT) SERIES 2003 (FEDERALLY TAXABLE)
NUMBER: $5,376,000
INTEREST
DATE RATE
---- --------
May 27, 2003 Variable (as described herein)
MATURITY DATE
-------------
June 1, 2008
REGISTERED OWNER: FLEET NATIONAL BANK
PRINCIPAL AMOUNT: FIVE MILLION THREE HUNDRED SEVENTY-SIX THOUSAND DOLLARS
i
THE NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the "Authority"), a public
body corporate and politic, constituting an instrumentality of the State of New
Jersey duly organized and existing under the laws of the State of New Jersey
and, in particular, the New Jersey Economic Development Authority Act,
constituting N.J.S.A. 34:1B-1 et. seq., as may be amended and supplemented (the
"Act"), FOR VALUE RECEIVED, hereby promises to pay, but only from the funds
provided therefor as hereinafter set forth, to the registered owner specified
hereinabove, or registered assigns, unless this Bond shall be redeemed and shall
have been previously called for redemption and payment of the Redemption Price
shall have been duly made or provided for, the principal sum specified above,
together with interest on the unpaid principal at the interest rate per annum
specified above. The principal and interest so payable and punctually paid or
duly provided for, on any Debt Service Payment Date, as outlined in the attached
Schedule, will, pursuant to the Agreement (as hereinafter defined) be paid to
the registered owner hereof at the close of business on the dates set forth in
the attached Schedule (whether or not such day is a business day). Payment on
this bond shall be payable in immediately available funds or such other manner
as shall be acceptable to the Holder on the Debt Service Payment Date. The
principal of and interest on this bond shall be paid in any coin or currency of
the United States of America which, at the time of payment, is legal tender for
the payment of public and private debts.
This Bond is issued under and pursuant to the Constitution and Laws of the
State of New Jersey, and under and pursuant to a resolution duly adopted by the
Authority on April 8, 2003. This Bond is a special and limited obligation of the
Authority payable solely from the Revenue derived from the Agreement (as
hereinafter defined) and from the assets pledged thereunder. THE STATE OF NEW
JERSEY IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING
POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR
REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THIS BOND. THIS BOND IS A SPECIAL,
LIMITED OBLIGATION OF THE AUTHORITY, PAYABLE SOLELY OUT OF RECEIPTS, FUNDS OR
MONEYS OF THE AUTHORITY PLEDGED UNDER THE AGREEMENT (AS HEREINAFTER DEFINED) AND
FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE AGREEMENT (AS HEREINAFTER
DEFINED) FOR THE PAYMENT OF THIS BOND. THIS BOND DOES NOT NOW AND SHALL NEVER
CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE AUTHORITY
HAS NO TAXING POWER.
This Bond has been duly authorized as an economic development bond of the
Authority in the principal amount of $5,376,000 and is known as "New Jersey
Economic Development Authority, Economic Development Bond (Immunomedics, Inc.
Project) Series 2003 B (Federally Taxable) (the "Bond").
This Bond is issued for the purpose of financing a project as more fully
defined in the Agreement. Immunomedics, Inc. (the "Borrower") and the Authority
and Fleet National Bank
ii
(the "Agent" and the "Purchaser") have entered into a Bond Financing Agreement
dated May 27, 2003 (which agreement as it may from time to time be amended is
hereinafter called the "Agreement"; capitalized terms used herein and not
otherwise defined shall have the meaning given in the Agreement) pursuant to the
terms of which the Authority has agreed to issue and sell this Bond and to lend
the proceeds thereof to the Borrower, and in consideration thereof the Borrower
has agreed to make payments to the Authority sufficient to pay the principal or
Redemption Price (if any) of and interest on this Bond as the same become due
and payable.
This Bond is issued under and pursuant to the Agreement. An executed
counterpart of the Agreement is on file at the principal office of the Agent.
Reference is hereby made to the Agreement for the provisions, among others, with
respect to the custody and application of the proceeds of this Bond, the
collection and disposition of revenues, a description of the funds pledged to
the payment of the principal and Redemption Price of and interest on this Bond,
the nature and extent of the security, the rights, duties and obligations of the
Authority and the Agent and the rights of the Holder of this Bond, and, by the
acceptance of this Bond, the Holder hereof assents to all of the provisions of
the Agreement.
PRINCIPAL AND INTEREST
(a) Principal of this Bond shall be payable by the Borrower in sixty (60)
equal successive monthly principal installments commencing on July 1, 2003, the
first fifty-nine (59) of which shall each be in the amount of EIGHTY-NINE
THOUSAND SIX HUNDRED DOLLARS ($89,600) and the 60th and final such principal
installment shall be in the amount of the then remaining principal balance of
the Series 2003 B Note together with all accrued and unpaid interest, each such
payment payable until the entire principal balance and all accrued and unpaid
interest shall have been paid in full.
(b) Interest on the Bond shall accrue from the date of issuance of the
Bond (the "Closing Date") to and including June 1, 2008 (the "Maturity Date"),
and the Borrower shall pay such interest on the first day of each month in each
year commencing July 1, 2003, in immediately available funds and in lawful money
of the United States of America, at the interest rate set forth on Schedule A
attached hereto and made a part hereof, which shall be adjusted from time to
time in accordance with Section 4.2 of the Agreement.
Any monthly installment of principal or interest or any portion thereof
due on the Bond that is not received by the Holder within ten (10) days of the
due date, shall bear interest at the rate of five percent (5%) of the amount of
the payment then due (the "Late Payment Fee") until such time as such
installment is received by the Holder, and such additional amount of interest
due and owing pursuant to this subparagraph shall be paid to the Holder together
with the installment of principal and interest past due on the Bond.
REDEMPTION OF BOND
iii
This Bond is subject to redemption as described below:
(a) Extraordinary Mandatory Redemption-Casualty and Condemnation
Proceeds. This Bond is subject to mandatory redemption by the Authority prior to
maturity, in whole at any time, or in part on any Debt Service Payment Date to
the extent proceeds of insurance or condemnation awards are received with
respect to the Project and are applied for this purpose pursuant to Section 7.2
of the Agreement at a Redemption Price equal to 100% of the principal amount to
be redeemed, plus interest accrued to the redemption date.
(b) Optional Redemption. This Bond is subject to optional redemption
by the Authority, at the direction of the Borrower, upon at least three Business
Day's notice, in whole or in part at any time at a redemption price equal to
100% of the principal amount to be redeemed, plus interest accrued to the
redemption date; provided, however, that any such partial redemption shall be in
an amount of $100,000 or an integral multiple of $100,000 in excess thereof, and
provided further that no such redemption shall be made other than on a Debt
Service Payment Date. Notwithstanding the foregoing, no such optional redemption
shall occur unless there shall be available in the Debt Service Fund sufficient
Available Money to pay all amounts due with respect to such a redemption.
(c) Mandatory Redemption - Loss in Collateral Value. The Bond is
subject to mandatory redemption by the Authority, at the direction of the Agent,
in part at any time when the aggregate amount of the Loan outstanding shall
exceed the Loan Value of the Collateral, at a redemption price equal to the
difference between the amount of the Loan outstanding and the then-current Loan
Value of the Collateral; provided, however, that the Borrower shall receive at
least two (2) Business Days' notice prior to any such redemption.
(d) Selection of Bond to be Redeemed. Any redemption prior to
maturity will be accompanied by payment of all accrued and unpaid interest due
to the date of redemption on the principal amount of Bond redeemed and all other
fees, expenses and other sums due and owing under the Loan Documents. Any
partial redemption will be applied to installments of principal due on this Bond
redeemed in an equal proportion, whether such redemption be voluntary or
involuntary, whether by acceleration of the Loan or upon an event of default or
otherwise.
Notice of any redemption pursuant to the preceding paragraphs shall be
given by the Agent by first class mail postage prepaid, to the Holder of this
Bond at its address as it appears on the Bond Register, not less than fifteen
(15) nor more than thirty (30) days prior to the redemption date or in such
other manner as shall be acceptable to the Holder. Failure to mail such notice
or defects therein or in the mailing thereof shall not affect the validity of
the redemption.
If the Authority deposits with the Agent funds sufficient to pay the
principal or Redemption Price of this Bond becoming due at maturity, by call for
redemption, or otherwise,
iv
together with interest accrued to the due date, as provided in the Agreement,
interest on such Bond will cease to accrue on the due date. Thereafter the
Holder of such Bond will be restricted to the funds so deposited as provided in
the Agreement.
Event of Cancellation.
----------------------
Pursuant to Section 6.2(d) of the Agreement, the occurrence of an Event of
Default under the Agreement shall constitute an Event of Cancellation hereunder,
and at any time thereafter during the continuance of such Event of Cancellation,
the Authority may, by written notice to the Purchaser, duly endorse and deliver
the Series 2003 B Note without recourse to the Purchaser and thereafter call and
cancel this Bond. The Purchaser and any assignees and the Borrower hereby
expressly agree that this Bond may be called and canceled by the Authority in
the manner provided above, and upon the date specified in the notice from the
Authority (the "Cancellation Date"), which shall be at least thirty (30) and no
more than sixty (60) days after the giving of such notice, this Bond will be
called and canceled, and the Purchaser may, at its option, declare the
obligation evidenced by the Series 2003 B Note immediately due and payable. The
Purchaser will deliver this Bond to the Authority for cancellation upon the
Cancellation Date, but even if such delivery does not occur, this Bond will be
considered canceled and of no further force or effect on the Cancellation Date
upon delivery to the Purchaser of the Series 2003 B Note duly endorsed as
described above.
Upon the Cancellation Date, the Series 2003 B Note will evidence the
indebtedness from the Borrower to the Purchaser and, in the event the Series
2003 B Note is not accelerated by the Purchaser, as hereinabove provided, all of
the terms of the Series 2003 B Note will control the obligations of the Borrower
to the Purchaser, except that from and after the Cancellation Date the per annum
interest rate will increase to the Default Rate. If this occurs, the monthly
payment shall be modified to reflect the difference between the interest stated
in the Bond and the Series 2003 B Note and the increased interest rate called
for in this paragraph. This condition may be reflected in a separate agreement
to be prepared by counsel for the Purchaser. The Authority will no longer be a
party to the transaction and shall have no further rights with respect thereto
(except its right to obtain outstanding fees and its right of indemnification,
which shall survive) and shall be released of any and all debts, liabilities and
obligations to any party under the Agreement, the Bond or any other Loan
Document. The Authority and the Purchaser shall execute and deliver to each
other such other documents and agreements as the other may reasonably request in
order to evidence the cancellation of the Bond and the withdrawal of the
Authority from the transaction.
GENERAL PROVISIONS
Pursuant to the Agreement, the Authority has, for the benefit of the
Holder of this Bond, assigned to the Agent the Authority's right, title and
interest under the Agreement, subject to the reservation of certain rights by
the Authority under the Agreement, including, without limitation, the right to
exercise remedies thereunder under certain circumstances.
v
The Holder of this Bond shall have no right to enforce the provisions of
the Agreement or to institute any action to enforce the covenants therein, or to
take any action with respect to any Event of Default under the Agreement, or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Agreement.
The Act provides that neither the members of the Authority nor any person
executing bonds for the Authority shall be liable personally on said bond by
reason of the issuance thereof.
In certain events, on the conditions, in the manner and with the effect
set forth in the Agreement, the principal of this Bond may become or may be
declared due and payable before the stated maturity hereof, together with the
interest accrued hereon.
Modifications or alterations of the Agreement and any supplement or
amendment thereto may be made only to the extent and in the circumstances
permitted by the Agreement. Reference is made to the Agreement for a description
of the security for this Bond and for a description of the limitations on
transferring this Bond.
This Bond shall be governed by and construed in accordance with the laws
of the State of New Jersey.
All acts, conditions and things required to happen, exist and be performed
precedent to and in the issuance of this Bond and the execution of the Agreement
have happened, exist and have been performed as so required.
vi
IN WITNESS WHEREOF, the New Jersey Economic Development Authority has
caused this Bond to be executed by the manual or facsimile signature of its
Executive Director and its official seal or a facsimile thereof to be impressed,
imprinted or reproduced hereon and attested by the manual or facsimile signature
of its Assistant Secretary.
[SEAL]
ATTEST: NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
By: By:
-------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxxx
Assistant Secretary Executive Director
vii
CERTIFICATE OF AUTHENTICATION
This Bond is the Bond described in the within-mentioned Bond
Financing Agreement.
FLEET NATIONAL BANK,
as Agent
By:
--------------------------
Authorized Officer
Date of Authentication:
-----------------------
viii
SCHEDULE A
Bond Interest Rate
------------------
i
EXHIBIT E
FORM OF NOTE
SERIES 2003 A NOTE
No. 1 $1,000,000
FOR VALUE RECEIVED, Immunomedics, Inc. (the "Borrower"), hereby promises
to pay to the New Jersey Economic Development Authority, Trenton, New Jersey
(the "Authority") or its registered assigns (collectively, the "Registered
Owner"), the principal sum as set forth above and to pay to the Registered Owner
hereof interest thereon through June 1, 2008 (the "Maturity Date") in the manner
set forth herein.
Such amounts shall be paid on a date one (1) business day prior to each
Debt Service Payment Date (as defined in the Agreement hereinafter defined) in
amounts sufficient to provide for the payments of principal of, redemption
premium, if any, and interest on the New Jersey Economic Development Authority
Economic Development Bonds (Immunomedics, Inc. Project) Series 2003 A (the
"Related Series 2003 Bond"). Interest shall be calculated at the rate set forth
on Schedule A, attached to and made a part of the Related Series 2003 Bond. Such
amounts shall be paid to Fleet National Bank or its successor, as Agent for the
Related Series 2003 Bond (the "Agent"). Capitalized terms used in this Note
shall have the meanings assigned to them in the Agreement (as hereinafter
defined) unless the context clearly indicates otherwise.
Principal or Redemption Price of, if any, of and interest on this Note are
payable in any coin or currency of the United States of America which, at the
respective times of payment, is legal tender for the payment of public and
private debts.
This Note is issued under and pursuant to the Bond Financing Agreement
dated May 27, 2003 (the "Agreement") among the Borrower, the Authority, the
Agent and Fleet National Bank as purchaser (the "Purchaser") and is entitled to
the benefits and is subject to the restrictions therein set forth. Reference is
made to the Agreement, the Related Series 2003 Bond and the other Financing
Documents (copies of which are on file at the principal office of the Agent) for
a statement of the terms and provisions under which this Note has been issued
and of the manner in which payment of this Note is secured. If any Event of
Default occurs, the principal of and interest on this Note may become payable at
the time, in the manner, with the effect and subject to the conditions provided
in the Agreement, the Related Series 2003 Bond and the other Financing
Documents.
The Note will be subject to redemption prior to maturity, at the times and
at the redemption prices and to the extent that the Related Series 2003 Bond is
subject to redemption as set forth in the Agreement.
Any prepayment, either in whole or in part, shall be made upon notice
thereof in the manner and upon the terms and conditions as provided for in the
Related Series 2003 Bond and as set forth in the Agreement. If this Note shall
have been duly called for prepayment and payment of the redemption price,
together with interest accrued thereon to the date fixed for prepayment, shall
have been made or provided for, as more fully set forth in the Related Series
2003 Bond and the Agreement, interest on this Note shall cease to accrue from
the date fixed for prepayment, and from and after such date this Note shall be
deemed not to be outstanding, and the Holder hereof shall have no rights in
respect of this Note other than payment of the redemption price, together with
accrued interest to the date fixed for prepayment.
All payments made to the Registered Owner hereof shall be valid, and, to
the extent of the sum or sums so paid, effective to satisfy and discharge the
liability for moneys payable on this Note.
This Note shall terminate immediately upon the repayment in full of all
obligations evidenced by this Note.
No covenant or agreement contained in this Note or the Agreement shall be
deemed to be a covenant or agreement of any officer, agent or employee of the
Borrower or the Agent in its individual capacity, and no incorporator, member,
officer, director, or trustee of the Borrower shall be liable personally on this
Note or be subject to any personal liability or accountability by reason of the
issuance of this Note.
[the rest of this page has intentionally been left blank]
ii
IN WITNESS WHEREOF, Immunomedics, Inc. has caused this Note to be executed
in its name and on its behalf by the manual or facsimile signature of its
[President] and its corporate seal to be hereunto affixed, either manually or by
facsimile, and attested by the manual or facsimile signature of its
Secretary/Treasurer all as of the date first above written.
[SEAL]
ATTEST: IMMUNOMEDICS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
Title: Title:
iii
EXHIBIT F
FORM OF NOTE
SERIES 2003 B NOTE
No. 1 $5,376,000
FOR VALUE RECEIVED, Immunomedics, Inc. (the "Borrower"), hereby promises
to pay to the New Jersey Economic Development Authority, Trenton, New Jersey
(the "Authority") or its registered assigns (collectively, the "Registered
Owner"), the principal sum as set forth above and to pay to the Registered Owner
hereof interest thereon through June 1, 2008 (the "Maturity Date") in the manner
set forth herein.
Such amounts shall be paid on a date one (1) business day prior to each
Debt Service Payment Date (as defined in the Agreement hereinafter defined) in
amounts sufficient to provide for the payments of principal of, redemption
premium, if any, and interest on the New Jersey Economic Development Authority
Economic Development Bonds (Immunomedics, Inc. Project) Series 2003 B (Federally
Taxable) (the "Related Series 2003 Bond"). Interest shall be calculated at the
rate set forth on Schedule A, attached to and made a part of the Related Series
2003 Bond. Such amounts shall be paid to Fleet National Bank or its successor,
as Agent for the Related Series 2003 Bond (the "Agent"). Capitalized terms used
in this Note shall have the meanings assigned to them in the Agreement (as
hereinafter defined) unless the context clearly indicates otherwise.
Principal or Redemption Price of, if any, of and interest on this Note are
payable in any coin or currency of the United States of America which, at the
respective times of payment, is legal tender for the payment of public and
private debts.
This Note is issued under and pursuant to the Bond Financing Agreement
dated May 27, 2003 (the "Agreement") among the Borrower, the Authority, the
Agent and Fleet National Bank as purchaser (the "Purchaser") and is entitled to
the benefits and is subject to the restrictions therein set forth. Reference is
made to the Agreement, the Related Series 2003 Bond and the other Financing
Documents (copies of which are on file at the principal office of the Agent) for
a statement of the terms and provisions under which this Note has been issued
and of the manner in which payment of this Note is secured. If any Event of
Default occurs, the principal of and interest on this Note may become payable at
the time, in the manner, with the effect and subject to the conditions provided
in the Agreement, the Related Series 2003 Bond and the other Financing
Documents.
The Note will be subject to redemption prior to maturity, at the times and
at the redemption prices and to the extent that the Related Series 2003 Bond is
subject to redemption as set forth in the Agreement.
Any prepayment, either in whole or in part, shall be made upon notice
thereof in the manner and upon the terms and conditions as provided for in the
Related Series 2003 Bond and as set forth in the Agreement. If this Note shall
have been duly called for prepayment and payment of the redemption price,
together with interest accrued thereon to the date fixed for prepayment, shall
have been made or provided for, as more fully set forth in the Related Series
2003 Bond and the Agreement, interest on this Note shall cease to accrue from
the date fixed for prepayment, and from and after such date this Note shall be
deemed not to be outstanding, and the Holder hereof shall have no rights in
respect of this Note other than payment of the redemption price, together with
accrued interest to the date fixed for prepayment.
All payments made to the Registered Owner hereof shall be valid, and, to
the extent of the sum or sums so paid, effective to satisfy and discharge the
liability for moneys payable on this Note.
This Note shall terminate immediately upon the repayment in full of all
obligations evidenced by this Note.
No covenant or agreement contained in this Note or the Agreement shall be
deemed to be a covenant or agreement of any officer, agent or employee of the
Borrower or the Agent in its individual capacity, and no incorporator, member,
officer, director, or trustee of the Borrower shall be liable personally on this
Note or be subject to any personal liability or accountability by reason of the
issuance of this Note.
[the rest of this page has intentionally been left blank]
ii
IN WITNESS WHEREOF, Immunomedics, Inc. has caused this Note to be executed
in its name and on its behalf by the manual or facsimile signature of its
[President] and its corporate seal to be hereunto affixed, either manually or by
facsimile, and attested by the manual or facsimile signature of its
Secretary/Treasurer all as of the date first above written.
[SEAL]
ATTEST: IMMUNOMEDICS, INC.
By: By:
-------------------------------- --------------------------------
Name: Name:
Title: Title:
iii
SCHEDULE I
Environmental Exceptions
None
iv
SCHEDULE II
Environmental Permits
None
