Exhibit 10.10
$5,630,000
City of Chaska, Minnesota
Variable Rate Demand Purchase Revenue Bonds
(Lifecore Biomedical, Inc. Project)
Series 2004
REMARKETING AGREEMENT
Dated as of August 1, 2004
Between
LIFECORE BIOMEDICAL, INC.
and
NORTHLAND SECURITIES, INC.
This document drafted by:
Dorsey & Whitney LLP
Suite 1500
50 South Sixth Street
Minneapolis, MN 55402-1498
REMARKETING AGREEMENT
This REMARKETING
AGREEMENT dated as of August 1, 2004, between LIFECORE
BIOMEDICAL, INC., a Minnesota corporation (the
“Borrower”) and NORTHLAND SECURITIES, INC., acting as
remarketing agent (the “Remarketing Agent”);
W I T N E S S E T H
WHEREAS, City of
Chaska, Minnesota (the “Issuer”) has approved the
issuance and sale of its Variable Rate Demand Purchase Revenue
Bonds (Lifecore Biomedical, Inc. Project), Series 2004, in the
aggregate principal amount of $5,630,000 (the “Bonds”)
pursuant to an Indenture of Trust dated as of August 1, 2004 (the
“Indenture”) between the Issuer and Wells Fargo Bank,
National Association, as trustee (as defined in the Indenture, the
“Trustee”); and
WHEREAS, the Bonds
are subject to purchase under certain circumstances, as described
in the Bonds and in Sections 4.01, 4.02, 4.06 and 4.11 of the
Indenture; and
WHEREAS, the
Borrower desires that the Remarketing Agent provide a mechanism for
remarketing the Bonds according to the terms and subject to the
conditions described herein;
NOW, THEREFORE,
for and in consideration of the covenants herein made, the parties
hereto hereby agree as follows:
Section 1.
Definitions. Unless a different meaning clearly appears from the
context, all words and terms used herein shall have the respective
meanings assigned to them in the Indenture.
Section 2.
Acceptance of Duties. The Remarketing Agent agrees to serve as the
Remarketing Agent for the Bonds, and to carry out the duties and
obligations of the Remarketing Agent under the Indenture and this
Remarketing Agreement, on the terms and conditions set forth
herein.
Section 3.
Remarketing of the Bonds — Variable Rate.
(a) While the
Bonds bear interest at the Variable Rate, so long as no Event of
Default under the Indenture has occurred and is continuing, the
Remarketing Agent shall perform the functions of the Remarketing
Agent set forth in Section 2.02(c) of the Indenture, and
(ii) upon delivery of notice to the Remarketing Agent by any
Owner of Bonds in accordance with Section 4.06 of the
Indenture, the Remarketing Agent shall use its best efforts to
arrange for the subsequent remarketing of the Bonds referred to in
such notice, at a price equal to their principal amount plus
accrued interest.
(b) Within one
Business Day after receipt thereof, the Remarketing Agent shall
deliver to the Trustee a copy of any notice delivered to the
Remarketing Agent pursuant to Section 4.06 of the
Indenture.
(c) At or prior to
11:00 A.M., Minneapolis, Minnesota time, on the Business Day
preceding the date any Bonds are to be purchased pursuant to
Section 4.06 of the Indenture, the Remarketing Agent shall
give notice by telephone or telex, promptly confirmed in writing,
to the Borrower and the Bank specifying the principal amount of
such Bonds, if any, remarketed by it pursuant to Section 3(a)
hereof and on or prior to 9:00 A.M., Minneapolis, Minnesota time on
the date any Bonds are to be purchased pursuant to
Section 4.06 of the Indenture, the Remarketing Agent shall,
simultaneously with the payment of the Purchase Price for the Bonds
by the Bank, pursuant to a draw under the Letter of Credit (or as
soon thereafter as remarketing proceeds are available therefor),
transfer the proceeds of any such remarketing to the
Bank.
(d) It is the
express intention of the parties hereto that neither the
determination of any interest rate on the Bonds nor any purchase,
sale or transfer of any Bonds as herein provided, shall constitute
or be construed to be the extinguishment of any Bonds or the
obligations represented thereby or the reissuance of any
Bonds.
Section 4.
Remarketing of the Bonds on the Conversion Date. Provided no
Default under the Indenture has occurred and is continuing, the
Remarketing Agent shall, at the request of the Borrower, such
request to be delivered to the Remarketing Agent at least
45 days prior to the Conversion Date, use its best efforts to
arrange for the subsequent remarketing of the Bonds which are
delivered to the Trustee on the Conversion Date pursuant to
Section 4.01 or Section 4.02 of the Indenture, at a price
equal to not less than the principal amount thereof, subject to the
following conditions:
(a) satisfactory
compensation and other terms and conditions shall have been agreed
upon by the Borrower and the Remarketing Agent;
(b) the
Remarketing Agent shall have received an opinion of nationally
recognized bond counsel to the effect that the interest on the
Bonds will continue to be excluded from gross income for federal
income taxation purposes after the Conversion Date;
(c) the
Remarketing Agent shall have received an Official Statement,
private placement memorandum, or other appropriate disclosure
document satisfactory in form and substance to the Remarketing
Agent, to be used in connection with its efforts to arrange for the
remarketing of the Bonds; and
(d) the
Remarketing Agent shall have received such additional documents,
certificates and legal opinions as it may reasonably
request.
Further details
regarding any such remarketing shall be negotiated between the
Borrower and the Remarketing Agent prior to the Conversion
Date.
Section 5.
Remarketing Agent Compensation.
(a) As long as the
Bonds bear interest at the Variable Rate, the Borrower shall pay to
the Remarketing Agent during the term hereof a continuing
remarketing and administration fee (the “Remarketing
Fee”) computed at the annual rate of one-eighth of
2
1.00%
per annum of the aggregate principal amount of the Bonds
outstanding from time to time. Such fee shall be payable annually,
in advance, commencing on t
