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
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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
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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
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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
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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
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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]
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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 36 West State Street,
P.O. Box 990, Trenton, New Jersey 08625,
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,
Morris Plains, New Jersey, FLEET NATIONAL
BANK, a national banking association
having an office at 208 Harristown Road,
Glen Rock, New Jersey 07458, 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 foster 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
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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:
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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 2003 B Bond
State
(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
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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
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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
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"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
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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
<PAGE>
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.
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"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.
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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.
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<PAGE>
(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
<PAGE>
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
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<PAGE>
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
<PAGE>
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:
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<PAGE>
(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
<PAGE>
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
<PAGE>
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
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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
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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.
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(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
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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
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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
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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;
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(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 Alfred M. 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.
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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
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(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
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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
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<PAGE>
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
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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
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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
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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
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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 P
