Exhibit 10.17
$5,630,000
CITY OF CHASKA, MINNESOTA
VARIABLE RATE DEMAND PURCHASE REVENUE BONDS
(LIFECORE BIOMEDICAL, INC. PROJECT),
SERIES 2004
BOND PURCHASE AGREEMENT
August 19, 2004
Between
CITY OF CHASKA, MINNESOTA
,
LIFECORE BIOMEDICAL, INC.
and
NORTHLAND SECURITIES, INC.
This document drafted by:
Dorsey & Whitney LLP
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402-1498
$5,630,000
City of Chaska, Minnesota
Variable Rate Demand Purchase Revenue Bonds
(Lifecore Biomedical, Inc. Project),
Series 2004
BOND PURCHASE AGREEMENT
City of Chaska, Minnesota
Chaska, Minnesota
Lifecore Biomedical, Inc.
Chaska, Minnesota
Ladies and Gentlemen:
We
(sometimes referred to as the “Underwriter”) hereby
offer to purchase, upon the terms and conditions hereinafter
specified, $5,630,000 aggregate principal amount of Variable Rate
Demand Purchase Revenue Bonds (Lifecore Biomedical, Inc. Project),
Series 2004 (the “Bonds”), to be issued by City of
Chaska, Minnesota (referred to as the “City” or the
“Issuer”). The Bonds are described in the Official
Statement prepared in connection with the issuance of the Bonds
(together with the respective Appendices thereto, the
“Official Statement”). If and when accepted by all of
you, this document shall constitute our Bond Purchase
Agreement.
1. Background.
The Bonds are to be issued by the Issuer pursuant to, and will be
secured as provided in, the Indenture of Trust (the
“Indenture”) dated as of August 1, 2004, between
the Issuer and Wells Fargo Bank, National Association, as trustee
(as defined in the Indenture, the “Trustee”). The
proceeds of the Bonds will be used to provide refinancing for a
“project” (as more fully described in the Loan
Agreement referred to below, the “Project”) undertaken
by Lifecore Biomedical, Inc., a Minnesota corporation (the
“Borrower”), in the City, through the refunding in full
of the outstanding Industrial Development Revenue Bonds (Lifecore
Biomedical, Inc. Project), Series 1990, issued by the Issuer
in the original aggregate principal amount of $7,000,000 (the
“Refunded Bonds”). The Borrower will be obligated to
make or cause to be made loan repayments at times and in amounts
sufficient to repay the Bonds pursuant to a Loan Agreement (the
“Loan Agreement”) dated as of August 1, 2004, and
the proceeds of the Bonds will be loaned by the Issuer to the
Borrower and will be applied to the refunding of the Refunded
Bonds, as further provided in the Loan Agreement and the
Indenture.
The
Bonds will be subject to such terms and provisions, including
provisions with respect to the optional and mandatory tender and
purchase thereof, as are set forth in the Indenture.
Payment of the
principal of, purchase price for, premium, if any, and interest on
the Bonds is to be supported by a “direct pay”
Irrevocable Letter of Credit (the “Letter of Credit”)
to be issued by M&I Marshall & Ilsley Bank, a state banking
association organized under the laws of the State of Wisconsin (the
“Bank”).
The
Bonds are subject to purchase from the owners thereof by or on
behalf of the Borrower through draws required to be made on the
Letter of Credit on not less than seven days’ notice, and are
also subject to mandatory tender for purchase under certain
circumstances, all as further provided in the Indenture. Bonds
tendered for purchase are to be remarketed, on a best efforts
basis, by Northland Securities, Inc. (the “Remarketing
Agent”) pursuant to the Remarketing Agreement dated as of
August 1, 2004 ( the “Remarketing Agreement”),
between the Borrower and the Remarketing Agent.
The
Bonds are to be sold by us pursuant to the Official
Statement.
2. Issuer’s
Representations and Warranties. The Issuer hereby represents and
warrants to the Underwriter that the issuance of the Bonds by the
Issuer has been duly and validly authorized pursuant to the
adoption by the governing body of a resolution on July 19,
2004 (the “Bond Resolution”), all pursuant to and in
accordance with the relevant provisions of the Act.
3. The
Borrower’s Representations, Covenants and Warranties. The
Borrower makes the following covenants, warranties and
representations:
(a)
The Borrower is a corporation duly organized and existing under the
laws of the State of Minnesota, with full power and authority to
own its properties and conduct its operations as currently being
conducted. The Borrower is conducting its business in substantial
compliance with all applicable and valid laws, rules and
regulations of each jurisdiction where it owns or leases
substantial property or where it transacts material intrastate
business.
(b)
The Borrower has full power and authority to execute and deliver
the Loan Agreement, the Remarketing Agreement, the Tax Exemption
Agreement and this Agreement and to carry out the terms thereof.
This Agreement, the Remarketing Agreement, the Tax Exemption
Agreement and the Loan Agreement, when executed and delivered by
the respective parties thereto, will have been duly and validly
authorized, executed and delivered by the Borrower, will be in full
force and effect and will be valid and binding instruments of the
Borrower, enforceable in accordance with their terms.
(c)
The consummation of the transactions herein contemplated and
carrying out of the terms hereof will not result in violation of
any provision of, or a default under, the articles of incorporation
or bylaws of the Borrower or any indenture, agreement, mortgage,
deed of trust, indebtedness, instrument, judgment, decree, order,
statute, rule or regulation to which the Borrower is a party or by
which it or its property is bound, other than violations or
defaults which would not have a material and adverse effect on the
operations or financial position of the Borrower or the ability of
the Borrower to perform its obligations under the Loan Agreement,
the Remarketing Agreement, the Tax Exemption Agreement or this
Agreement, or on the legality, validity or enforceability of the
Loan Agreement, the Remarketing Agreement, the Tax Exemption
Agreement or this Agreement; provided, however, that the
representations and warranties in this paragraph shall not apply to
the qualification of the Bonds under state securities or
“Blue Sky” laws or the law of any jurisdiction outside
the United States.
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(d)
No approval, authorization, consent or other order of any public
board or body not obtained as of the date hereof (other than the
registration under and compliance with the securities or
“Blue Sky” laws of any state) is legally required for
the transactions contemplated hereby.
(e)
The Borrower is not in violation of any provision of, or in default
under, its articles of incorporation or bylaws or any indenture,
agreement, mortgage, deed of trust, indebtedness, instrument,
judgment, decree, order, statute, rule or regulation to which it is
a party or by which it or its property is bound, other than
violations and defaults which would not have a material and adverse
effect on the operations or financial position of the Borrower and
which would have no material and adverse effect on the transactions
contemplated hereby. There is no provision of any judgment, decree,
order, statute, rule or regulation that materially adversely
affects the operations, properties, assets, liabilities or
condition (financial or other) of the Borrower.
(f)
There are no legal or governmental proceedings pending or, to the
best of the Borrower’s knowledge, threatened or contemplated
by governmental authorities or threatened by others, to which the
Borrower is or may become a party or to which any property of the
Borrower is or may become subject, other than ordinary routine
litigation incident to the kind of business conducted by the
Borrower which, if determined adversely to the Borrower, would not
individually or in the aggregate have a material adverse effect on
the operations or financial position of the Borrower.
(g)
Neither the Official Statement, nor any amendment or supplement
thereto, does or will contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading;
provided, however, that the Borrower makes no representations,
warranties or agreements as to information contained in the
Official Statement or any such amendment or supplement regarding or
furnished by the Underwriter, the Issuer, or the Bank in reliance
upon and in conformity with written information furnished by us, by
the Issuer or by the Bank specifically for use in the preparation
thereof.
(h)
Subsequent to the respective dates as of which the information
referred to in paragraph (g) was given and prior to the
Closing Date hereinafter mentioned, (1) there has not been and
will not have been any material adverse change in the operations of
the Borrower, or the financial position of the Borrower,
(2) no loss or damage (whether or not insured) to the property
of the Borrower, has been or will have been sustained which
materially and adversely affects the Borrower, and (3) no
legal or governmental proceedings affecting the transactions
contemplated by this Agreement have been or will have been
instituted or threatened which are material and adverse.
(i)
The information supplied or to be supplied by the Borrower that has
been or is to be relied upon by bond counsel (as stated in the
opinion of such bond counsel given as of the date hereof) with
respect to the tax-free status of interest on the Bonds is and
shall be correct and complete.
3
4. Purchase,
Sale and Delivery of the Bonds. On the basis of the representations
and warranties and subject to the terms and conditions set forth
herein, we agree to purchase, and the Issuer agrees to sell to us,
the total principal amount of the Bonds at a purchase price of
$5,573,700 (99% of par). Payment for the Bonds shall be made to the
Issuer or its order in Federal Funds or by certified or official
bank check or checks payable in immediately available funds at the
offices of the Trustee, in Minneapolis, Minnesota, at
10:00 a.m. prevailing time on August 19, 2004, or at such
later date as may be agreed upon by an appropriate officer of the
Issuer and us against delivery of the Bonds to us. The date and
time of such payment and delivery are herein called the
“Closing Date”. The Bonds will be delivered in Book
Entry Only Form, in accordance with the Indenture and standard
procedures of The Depository Trust Company, New York, New
York.
5. The
Borrower’s Covenants. The Borrower will:
(a)
if at any t
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