Execution Copy
$4,500,000
COUNTY OF PUTNAM INDUSTRIAL DEVELOPMENT AGENCY
VARIABLE RATE DEMAND REVENUE BONDS, SERIES 2000
(DYNACEPT CORPORATION PROJECT)
BOND PURCHASE AGREEMENT
December 28, 2000
County of Putnam Industrial Development Agency
34 Gleneida Avenue
Carmel, New York 10512
Ladies and Gentlemen:
The undersigned, NatCity Investments, Inc. (the "Underwriter"), hereby offers to
enter into this Bond Purchase Agreement with you, County of Putnam Industrial
Development Agency (the "Issuer"), for the purchase by the Underwriter and the
sale by the Issuer of $4,500,000 aggregate principal amount of its Variable Rate
Demand Revenue Bonds, Series 2000 (Dynacept Corporation Project) (the "Bonds").
This offer is made subject to acceptance by the Issuer on the date hereof, and
upon such acceptance, and approval hereof by Dynacept Corporation (the
"Institution"), this Bond Purchase Agreement shall be in full force and effect
in accordance with its terms and shall be binding upon the Issuer, the
Institution and the Underwriter.
The Letter of Representation which is dated the date hereof and attached hereto
as Exhibit A (the "Letter of Representation") has been signed by the Institution
and delivered to the Issuer and the Underwriter to induce the Issuer and the
Underwriter to enter into this Bond Purchase Agreement.
1. Upon the terms and conditions and upon the basis of the representations,
warranties and covenants set forth herein, the Underwriter hereby agrees to
purchase and the Issuer hereby agrees to sell to the Underwriter, all (but not
less than all) of the Bonds, which are to mature, to be subject to optional and
mandatory tender for purchase and to optional and mandatory redemption prior to
maturity, and to bear interest as set forth in Exhibit B attached hereto and
made a part hereof, at an aggregate price of $4,464,000 (par less Underwriter's
discount of $36,000).
2. The Bonds shall be as described in, and shall be issued pursuant to a
resolution adopted by the Issuer on November 28, 2000 (the "Bond Resolution"),
and an Indenture of Trust dated as of December 1, 2000 (the "Indenture"),
between the Issuer and National City Bank of Michigan/Illinois as trustee (in
such capacity, the "Trustee"). Payments by the Issuer with respect to the
principal of and interest on the Bonds (other than Bank Bonds described in the
Indenture), shall be secured by an irrevocable, direct pay letter of credit (the
"Letter of Credit") issued by National City Bank of Michigan/Illinois (in such
capacity, the "Bank"), in favor of the Trustee, pursuant to a Reimbursement
Agreement, dated as of December 1, 2000, between the Institution and the Bank
(the "Reimbursement Agreement"). The proceeds from the sale of the Bonds shall
be used by the Issuer for the benefit of the Institution pursuant to a Lease
Agreement dated as of December 1, 2000, between the Issuer and the Institution
(the "Agreement"), for the purpose of financing a portion of the costs of the
"Facility" described in the Indenture and paying certain costs associated with
the issuance and credit enhancing of the Bonds. The land on which the Facility
is to be located will be conveyed by the Institution to the Issuer pursuant to a
Bargain and Sale Deed (defined in the Indenture and herein as the "Deed of
Trust") dated December 28, 2000 from the Institution to the Issuer and such land
and the Facility will be leased by the Issuer to the Institution pursuant to the
Agreement.
3. The Issuer and the Institution approve the sale of the Bonds to the
Underwriter on the terms referred to herein. However, the Underwriter reserves
the right to change the initial price of the Bonds as it shall deem necessary in
connection with the marketing of the Bonds (which shall not affect the
Underwriter's agreement to purchase the Bonds nor the price at which the Bonds
shall be purchased from the Issuer). The Issuer confirms the authority of the
Underwriter in accordance with law prior to the date hereof, to use the Offering
Circular dated December 20, 2000 (the "Offering Circular") in connection with
the offering and sale of the Bonds. In addition, the Issuer authorizes the use
by the Underwriter in connection with the offering and sale of the Bonds of the
material included in the Bond Resolution, the Agreement and the Indenture;
provided, that the Issuer assumes no responsibility for any other materials
which may be used by the Underwriter in connection with the offering and sale of
the Bonds, except for any information furnished by the Issuer which concerns the
Issuer, and any such materials shall contain a disclaimer which shall be
acceptable to the Issuer's counsel.
4. The Issuer agrees to provide or cause to be provided to the Underwriter when
the Offering Circular first becomes available sufficient copies of the Offering
Circular to enable the Underwriter to comply with the requirements of Rule G-32
of the Municipal Securities Rulemaking Board and for its use in remarketing the
Bonds; and the Underwriter agrees to file a copy of the Offering Circular with a
nationally recognized municipal securities information repository on or before
the Closing Date. In addition, at the time of or before execution by the Issuer
of this Bond Purchase Agreement (or as soon as reasonably practicable thereafter
but no later than the Closing Date), the Issuer shall also deliver or cause to
be delivered to the Underwriter, together with such reasonable number of
certified copies thereof as it may request:
(a) A copy of the Bond Resolution certified by the Issuer's authorized officer
as having been duly adopted by the Issuer and being in full force and
effect on the date hereof.
(b) An executed copy of the Indenture.
(c) Executed copies of the Deed of Trust and the Agreement.
(d) A specimen Bond.
(e) An executed copy of this Bond Purchase Agreement and related Letter of
Representation.
(f) A specimen copy of the Letter of Credit.
(g) An executed copy of the Reimbursement Agreement and executed copies of any
documents required to be delivered thereunder.
(h) An executed copy of the Remarketing Agreement (as defined in the
Indenture).
(i) A copy of the Offering Circular.
5. The Issuer represents to and agrees with the Underwriter that:
(a) The Issuer is a corporate governmental agency constituting a body
corporate and politic and a public benefit corporation of the State of
New York authorized and existing under Article 18-A and Section 927-f of
the General Municipal Law of the State of New York (Chapter 24 of the
Consolidated Laws of New York) (collectively, the "Act"). The Issuer
is authorized to issue the Bonds and to use the proceeds from the sale
of the Bonds for the purpose of acquiring, constructing, reconstructing,
and improving and equipping any project (as defined in the Act) which
shall be suitable for, among other things, manufacturing, warehousing,
research, civic, commercial or industrial purposes.
(b) The adoption of the Bond Resolution, the execution and delivery by the
Issuer of the Bonds, this Bond Purchase Agreement, the Agreement and the
Indenture and compliance with the provisions of the Bond Resolution and of
each of such instruments do not and will not conflict with or constitute a
breach of, or default under, any indenture, commitment, agreement or other
instrument to which the Issuer is a party or by which it is bound.
(c) The Issuer has full legal right, power and authority (i) to adopt the Bond
Resolution described in subparagraph (a) of Paragraph 4 hereof, (ii) to
enter into this Bond Purchase Agreement, the Indenture and the Agreement,
(iii) to issue, sell and deliver the Bonds to the Underwriter as provided
herein, and (iv) to carry out and consummate all other transactions
contemplated by each of such documents, and the Issuer has complied with
the provisions of the Act in all matters relating to such transactions.
(d) The Issuer has duly authorized the execution, delivery and due performance
of this Bond Purchase Agreement, the Indenture and the Agreement, the
delivery of the Offering Circular and the taking of any such action as
may be required on the part of the Issuer to carry out, give effect to
and consummate the transactions contemplated by such instruments.
(e) The Bond Resolution has been duly adopted by the Issuer and is in full
force and effect and constitutes the valid and binding action of the
Issuer; and this Bond Purchase Agreement, the Agreement and the Indenture,
upon due execution and delivery thereof, and assuming due and valid
authorization, execution and delivery thereof by the other parties
thereto, will each constitute a valid and binding obligation of the
Issuer, enforceable in accordance with its terms, except as may be limited
by bankruptcy, reorganization or other similar laws and equitable
principles of general application relating to or affecting the enforcement
of creditors' rights generally.
(f) When delivered to and paid for by the Underwriter at the closing in
accordance with the provisions of this Bond Purchase Agreement, the Bonds
will have been duly authorized, executed, issued and delivered and,
assuming due authentication by the Trustee, will constitute valid and
binding limited obligations of the Issuer of the character referred to
in the Act, in conformity with, and entitled to the benefit and security
of, the Act, the Indenture and the Agreement.
(g) No approvals, consents or authorizations of or by any governmental or
public agency, authority or person (except as may be required under the
securities or "blue sky" laws of any state, including the State of New
York, with respect to which the Issuer makes no representation) not
already obtained are required by the Issuer in connection with the
issuance and sale of the Bonds, the execution and delivery of, or the
performance of its obligations under, this Bond Purchase Agreement, the
Bonds, the Indenture and the Agreement.
(h) There is no action, suit, proceeding or investigation, at law or in
equity, or before any court, public board or body, served upon or to the
best knowledge of the Issuer threatened against or affecting the Issuer,
wherein an unfavorable decision, ruling or finding would materially and
adversely affect the transactions contemplated by this Bond Purchase
Agreement or which in any way would adversely affect the validity or
enforceability of the Bonds, the Indenture, the Agreement or this Bond
Purchase Agreement (or of any other instrument required or contemplated
for use in consummating the transactions contemplated thereby).
(i) If between the date hereof and the applicable date provided under Rule
15c2-12(b)(4) of the Securities and Exchange Commission (but in no event
earlier than 25 days after the Closing Date) (and whether or not the Bonds
are subject to such Rule) any event shall occur which might or would cause
the Offering Circular to contain any untrue statement of a material fact
or to omit to state any material fact necessary, to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (A) the Issuer shall notify the Underwriter of any such event
of which it has knowledge and, (B) whether or not the Issuer has
knowledge, if in the opinion of the Underwriter any such event requires
the preparation and publication of a supplement or amendment to the
Offering Circular, the Issuer, at the expense of the Institution, will
supplement or amend the Offering Circular in a form and in a manner
approved by the Underwriter.
It is understood and agreed that the Issuer makes no representations or
warranties as to (i) the financial or business condition of the Institution or
the Bank, (ii) any statements (financial or otherwise), representations,
documents or certifications provided or to be provided by the Institution or the
Bank in connection with the purchase of the Bonds or (iii) the correctness,
completeness or accuracy of such statements, representations, documents or
certifications.
6. At 10:00 a.m., New York City time, on December 28, 2000, or at such other
time or on such earlier or later business day as shall have been agreed upon by
the Issuer, the Institution and the Underwriter, the Issuer will deliver to or
at the direction of the Underwriter the Bonds in definitive form, duly executed
and authenticated, together with the other documents hereinafter mentioned; and
the Underwriter will accept delivery of the Bonds and pay the price of the Bonds
as set forth herein in immediately available federal reserve funds payable to
the order of the Trustee for the account of the Issuer. Delivery and payment as
stated above shall be made at the offices of Swidler Berlin Shereff Friedman,
LLP ("Bond Counsel"), The Chrysler Building, 405 Lexington Avenue, New York, New
York, 10174, or at such other place as shall be mutually agreeable to the
parties hereto. Such payment and delivery is hereinafter called the "Closing,"
and such date and time are called the "Closing Date" herein. The Bonds will be
made available for checking and packaging by or at the direction of the
Underwriter, to the Trustee on behalf of The Depository Trust Company, New York,
New York, not later than, 10:00 am., New York City time, on the business day
next preceding the Closing Date.
7. The Underwriter's obligations under this Bond Purchase Agreement to purchase
the Bonds shall be subject to the performance by the Issuer of its obligations
to be performed under this Bond Purchase Agreement at or prior to the Closing,
to the performance by the Institution of the obligations and agreements to be
performed by it at or prior to the Closing under the Letter of Representation,
and to the accuracy in all material respects of the representations and
warranties of the Issuer and of the Institution contained in this Bond Purchase
Agreement and in the Letter of Representation, respectively, as of the date
hereof and as of the Closing Date, as set forth in or contemplated by the
Offering Circular, and shall also be subject to the following conditions:
(a) At the Closing Date, the Indenture, Deed of Trust, the Agreement, the
Letterof Credit, the Reimbursement Agreement, the Offering Circular, the
Bond Resolution, this Bond Purchase Agreement and the Letter of Repre-
sentation shall be in full force and effect, and shall not have been
amended, modified or supplemented except as may have been agreed to in
writing by the Underwriter.
(b) The Bonds shall have been duly authorized, executed and authenticated in
accordance with the provisions of the Indenture.
(c) No legislation shall have been enacted by the Congress of the United
States, adopted by either House thereof, or introduced in either House
thereof, no decision by a Court of the United States or the Tax Court of
the United States shall have been rendered and no ruling, regulation or
determination by or on behalf of the Department of Treasury of the United
States, the Internal Revenue Service or other governmental agency shall
have been made, with respect to federal taxation upon receipts, revenues
or other income of the general character expected to be derived by the
Issuer, including payments under the Agreement, or upon interest received
on bonds of the general character of the Bonds or which would have the
effect of adversely changing directly or indirectly the federal income
tax consequences of interest on bonds of the general character of the
Bonds in the hands of the holders thereof, which in the reasonable opinion
of the Underwriter materially affects the market for the Bonds adversely.
(d) The United States shall not have become engaged in hostilities which have
resulted in a declaration of war or a national emergency, nor shall there
have occurred any outbreak of major hostilities or any other national or
international calamity or crisis, which in the reasonable opinion of the
Underwriter materially affects the market for the Bonds adversely; nor
shall there have occurred a general suspension of trading on the New York
Stock Exchange or the declaration of a general banking moratorium by
United States, New York or Michigan state authorities; nor shall there
exist any event which, in the reasonable opinion of the Underwriter,
either (i) makes untrue or incorrect in any material respect any statement
or information contained in the Offering Circular or (ii) is not reflected
in the Offering Circular but should be reflected therein in order to make
the statements and information contained therein not materially mis-
leading.
(e) No order, decree or injunction of any court of competent jurisdiction,
nor any order, ruling, regulation or determination by the Securities and
Exchange Commission or any state securities administrator, shall have been
made with the purpose or effect of prohibiting or limiting the issuance,
offering or sale of the Bonds as contemplated hereby.
(f) At or prior to the Closing Date, the Underwriter shall have received the
following documents:
(1) Each of the documents referred to in Paragraph 4 hereof;
(2) The opinions, dated the Closing Date, and in form and substance
satisfactory to the Underwriter, the Bank and the Issuer of
(i) Bond Counsel, both approving opinion and supplemental, expressing
their unqualified opinion as to the validity and tax-exempt status of
the Bonds and as to such other matters as the Underwrite shall
reasonably request, (ii) Varnum, Riddering, Schmidt & Howlett LLP,
and Hogan & Rossi as counsel for the Institution, (iii) Howard &
Howard Attorneys, P.C., as counsel for the Bank; and (iv) Cuddy &
Feder & Worby LLP and Carl Lodes, Esq., as counsel for the Issuer.
(3) A certificate of the Issuer, dated the Closing Date, to the effect
that (a) the Bond Resolution has not been amended, modified or
supplemented and remains in full force and effect, (b) each of the
representations and warranties of the Issuer set forth in Paragraph 5
hereof are true, accurate and complete in all material respects as of
the Closing Date and (c) each of the agreements of the Issuer as set
forth in the Bond Purchase Agreement to be complied with at or prior
to the Closing Date has been complied with;
(4) A certificate of the Issuer, dated the Closing Date, to the effect
that no litigation or other proceeding has been served upon or, to
its knowledge, threatened against the Issuer in any court, public
board or body to restrain or enjoin the issuance or delivery of any
of the Bonds, or the collection of receipts and revenues pledged or
to be pledged to pay the principal of and interest on the Bonds
(including, without limitation, payments under the Agreement), or
in any way contesting or affecting the validity of the Bonds, the
Indenture, the Deed of Trust, the Agreement, the Letter of Credit,
the Reimbursement Agreement or this Bond Purchase Agreement, or the
collection of such receipts and revenues or the pledge thereof, or
contesting the powers of the Issuer, which certificate shall be in
form and substance acceptable to the Underwriter (but in lieu of
such certificate the Underwriter may, in its sole discretion,
accept a certificate by Bond Counsel acceptable to the Underwriter
and its counsel in form and substance, that in their opinion the
issues raised in any such litigation are without substance or that
the contentions of any party adverse to the Issuer are without
merit);
(5) A certificate, dated the Closing Date, signed by the Institution,
certifying that:
(i) the representations and warranties contained in Paragraph 1 of
the Letter of Representation and in the Reimbursement Agreement
are true and correct and that the Institution has complied with
all its agreements contained in such documents;
(ii) since the date of the Letter of Representation there has been
no material adverse change in the general affairs or in the
financial position or net assets of the Institution;
(iii) since the date of the Letter of Representation no event has
occurred and is continuing which with the lapse of time or
the giving of notice, or both, would constitute an Event of
Default by the Institution under the Agreement or the
Reimbursement Agreement;
(6) A certificate of the Trustee, dated the Closing Date, (A) as to the
due execution and delivery of the Indenture by the Trustee,
(B) evidencing its qualification and power to act as Trustee under
the Indenture, and (C) as to the due authentication and delivery of
the Bonds by the Trustee;
(7) A certificate of the Bank dated the Closing Date, signed by an
officer of the Bank to the effect that:
(i) The Bank is a national banking association duly organized and
validly existing under the laws of the United States;
(ii) The Letter of Credit and the Reimbursement Agreement have been
duly and validly authorized, executed and delivered by the Bank
and constitute the legal, valid and binding obligations of the
Bank enforceable against the Bank in accordance with their
terms, except as limited by (A) bankruptcy, insolvency,
reorganization, moratorium and other laws relating to, or
affecting generally, the enforcement of creditors' rights and
remedies against banks, as the same may be applied in the event
of the bankruptcy, insolvency, liquidation, reorganization or
similar situation of the Bank or a moratorium applicable to
the Bank, and (B) the availability of equitable remedies,
including specific performance and injunctive relief;
(iii) All of the conditions precedent to the issuance of the Letter
of Credit contained in the Reimbursement Agreement have been
satisfied or waived by the Bank;
(iv) The execution and delivery of the Letter of Credit by the Bank
will, taking into account all other extensions of credit by the
Bank to the Institution, not result in any violation of or
default under any law, regulation, rule, decree or agreement
affecting the Bank, including without limitation, any law,
regulation or rule limiting the amount of credit which the Bank
may extend to any single borrower;
(v) No litigation or proceedings are pending or, to the best of the
knowledge of the Bank, threatened seeking to restrain, enjoin
or, to the best of the knowledge of the Bank, in any way limit
the issuance by the Bank of the Letter of Credit or which would
in any manner challenge or adversely affect the corporate
existence or power of the Bank to enter into and carry out the
transactions described in or contemplated by, or the execution,
delivery, validity or performance by the Bank of the terms and
provisions of, the Letter of Credit or the Reimbursement
Agreement;
(vi) The Bank has reviewed the information in the Offering Circular
captioned "THE LETTER OF CREDIT" and "SUMMARY OF CERTAIN
PROVISIONS OF THE REIMBURSEMENT AGREEMENT" and in Appendix B
(collectively, the "Bank Information"), and has approved all
such information for use within the Offering Circular and
Appendix B, and such information is true and correct and does
not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading;
(vii) As of the Closing Date, there has been no material adverse
change in the business, properties, condition (financial or
otherwise) or operations of the Bank from that set forth in the
Offering Circular and Appendix B;
(viii) If during the period commencing on the date of the Bond
Purchase Agreement and ending on the applicable date provided
under Rule 15c2-12(b)(4) of the Securities and Exchange
Commission (but in no event earlier than 25 days after the
Closing Date) (whether or not the Bonds are subject to such
Rule), the Bank discovers or has reason to believe that any of
the Bank Information as of the date of the Offering Circular
contained any untrue statement of or omitted a material fact,
the Bank will promptly notify the Underwriter of same. In
addition, if during the same period, any event shall occur
which might or would cause any of the Bank Information to
contain any untrue statement of a material fact or to omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, the Bank, at the request of the
Underwriter or the Institution, will notify the Underwriter (if
not already notified) of the occurrence of any such event and
provide a description of same. If in the opinion of the
Underwriter any such notification or event requires the pre-
paration and publication of a supplement or amendment to the
Offering Circular, the Bank, at the expense of the Institution,
will provide such information as is necessary to supplement or
amend the Offering Circular in a form and in a manner
reasonably approved by the Underwriter; and
(ix) The Bank is not now, and has never been, in default in con-
nection with a letter of credit, line of credit or similar
agreement issued to secure any of the Issuer's obligations.
(8) Evidence satisfactory to the Underwriter of (i) approval of the
issuance of the Bonds by an authorized officer of Putnam County, New
York and (ii) the receipt of volume cap allocation for the Bonds from
the State of New York.
(9) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter or its counsel may deem necessary to
evidence the truth and accuracy as of the Closing Date of the
Issuer's representations herein contained and of the Institution's
representations contained in the Letter of Representation and the due
performance or satisfaction by the Issuer and the Institution at or
prior to the Closing Date of all agreements then to be performed and
all conditions then to be satisfied by the Issuer and the Insti-
tution, respectively.
If the Issuer or the Institution shall be unable to satisfy the conditions to
the obligations of the Underwriter contained in this Bond Purchase Agreement, or
if the obligations of the Underwriter shall be terminated for any reason
permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall
terminate, and neither the Underwriter nor the Issuer shall be under further
obligation hereunder.
8. The Issuer's obligations hereunder to sell and deliver the Bonds shall be
subject to the performance by the Underwriter of its obligations to be performed
hereunder at or prior to the Closing; to the performance by the Institution of
the obligations and agreements to be performed hereunder and under the Letter of
Representation at or prior to the Closing; to the accuracy in all material
respects of the representations and warranties of the Underwriter and of the
Institution contained herein and in the Letter of Representation, respectively,
as of the date hereof and as of the Closing Date, as set forth in or
contemplated by the Preliminary Offering Circular or the Offering Circular, and
shall also be subject to the Issuer having received at or prior to the Closing
Date, the following documents:
(a) The opinions of counsel referred to in Paragraph 7(f)(2) hereof;
(b) The executed Letter of Representation which is dated the date hereof and
attached hereto as Exhibit A;
(c) The certificates described in Paragraph 7(f)(5), Paragraph 7(f)(6) and
Paragraph 7(f)(7) hereof; and
(d) The opinion, dated the Closing Date, of Howard & Howard Attorneys, P.C.,
addressed to and as counsel for the Underwriter, in form and substance
satisfactory to the Issuer and the Underwriter.
9. The Issuer covenants to cooperate with the Underwriter and the Institution
in qualifying the Bonds for sale under the securities or "blue sky" laws of such
states as the Underwriter may request; provided, however, that the Issuer will
not be required to execute a special or general consent to service of process or
qualify as a foreign corporation in connection with any such qualification in
any jurisdiction.
10. Whether or not the Bonds are delivered by the Issuer to the Underwriter
(unless such delivery be prevented by the Underwriter's default hereunder), the
Underwriter shall be under no obligation to pay any expenses incident to the
performance of the obligations of the Issuer hereunder except for those expenses
authorized by the Underwriter in writing. All reasonable expenses and costs
incident to the authorization, issuance, printing, sale and delivery, as the
case may be, of the Bonds, the Indenture, the Agreement, the Letter of Credit,
the Reimbursement Agreement and this Bond Purchase Agreement, including without
limitation (i) the preparation and printing of the Offering Circular; (ii) any
documentary, stamp or other transfer taxes in connection with the original issue
of the Bonds; (iii) all filing, registration, rating agency, blue sky, CUSIP
Service Bureau and recording fees and expenses; (iv) the fees and disbursements
of Issuer's counsel, Bank's counsel, Institution's counsel and the Underwriter's
counsel; (v) the Trustee's fees and expenses; and (vi) the fees and
disbursements of Bond Counsel, shall be paid by the Institution from proceeds of
the Bonds or from funds of the Institution. Nothing herein shall be construed to
relieve the Underwriter from liability for its default hereunder.
Any liability of the Issuer under this Bond Purchase Agreement or any
certificates rendered hereunder or in connection herewith shall be limited to
the security and source of payment pledged for payment of principal of and
premium, if any, and interest on the Bonds under the Indenture, and in the event
the transactions contemplated by this Bond Purchase Agreement do not take place,
regardless of the reason therefor, the Issuer shall have no liability
whatsoever.
The Issuer shall be under no obligation to pay any fees or expenses incident to
this Bond Purchase Agreement or any transaction contemplated hereby, nor shall
the proceeds of the Bonds be used for such fees or expenses except as provided
in the Agreement or the Indenture. To the extent proceeds of the Bonds are not
available for payment of such fees and expenses, such fees and expenses shall be
paid by the Institution.
11. Any notice or other communication to be given to the Issuer under this Bond
Purchase Agreement may be given by mailing the same in writing at the address
set forth above. Any notice or other communication to be given to the
Underwriter under this Bond Purchase Agreement may be given by mailing the same
in writing to NatCity Investments, Inc., 1965 East Sixth Street, 8th Floor,
Cleveland, Ohio 44114, Attention: Project Finance, with a copy to Dynacept
Corporation, 2 International Boulevard, Brewster, New York 10509, Attention:
Mark Primavera, President, and Triple S Plastics, Suite 200, 7950 Moorsbridge
Road, Portage, Michigan 49023, Attention: Cathy Taylor, Treasurer.
12. It is understood that the representations, warranties and covenants of the
Issuer contained herein are made by the Issuer in order to facilitate the
purchase of the Bonds by the Underwriter and that the same shall not create any
general obligation or liability of the Issuer.
13. This Bond Purchase Agreement is made solely for the benefit of the Issuer,
the Institution and the Underwriter (including the successors or assigns of the
Underwriter) and no other person shall acquire or have any right hereunder or by
virtue hereof. All the Issuer's representations (which are made only as of the
date of this Bond Purchase Agreement and the Closing Date) and agreements in
this Bond Purchase Agreement shall remain operative and in full force and
effect, regardless of (a) any investigation made by or on behalf of the
Underwriter, (b) delivery of and payment for the Bonds hereunder and (c) any
termination of this Bond Purchase Agreement.
14. This Bond Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. This Bond Purchase Agreement may be executed in any number of counterparts.
Yours very truly,
NATCITY INVESTMENTS, INC.
By: _/s/_Timothy_Bennett___
Its: Senior Vice President
Accepted as of the date first written above:
COUNTY OF PUTNAM INDUSTRIAL
DEVELOPMENT AGENCY
By: _/s/_Joseph_F._Girven____
Its: Chairman and Executive Director
Approved as of the date first above written:
DYNACEPT CORPORATION
By: _/s/_Mark_Primavera______
Its: President
EXHIBIT A
LETTER OF REPRESENTATION
December 28, 2000
County of Putnam Industrial Development Agency
34 Gleneida Avenue
Carmel, New York 10512
NatCity Investments, Inc.
1965 East Sixth Street, 8th Floor
Cleveland, Ohio 44114
Ladies and Gentlemen:
County of Putnam Industrial Development Agency (the "Issuer") and NatCity
Investments, Inc. (the "Underwriter") propose to enter into a Bond Purchase
Agreement, dated the date hereof (the "Bond Purchase Agreement"), providing for
the purchase by the Underwriter of $4,500,000 of the Issuer's Variable Rate
Demand Revenue Bonds, Series 2000 (Dynacept Corporation Project) (the "Bonds"),
to be issued under and pursuant to an Indenture of Trust, dated as of
December 1, 2000, by and between the Issuer and National City Bank of
Michigan/Illinois, as trustee (in such capacity, the "Trustee"), pursuant to
a resolution adopted by the Issuer on November 28, 2000 (the "Bond Resolution").
The proceeds of the Bonds will be used by the Issuer for the benefit of Dynacept
Corporation (the "Institution"), pursuant to a Lease Agreement between the
Issuer and the Institution, dated as of December 1, 2000 (the "Agreement"), to
finance a portion of the costs of the "Facility" described in the Indenture and
to pay certain costs associated with the issuance and credit enhancing of the
Bonds. The land on which the Facility is to be located will be conveyed by the
Institution to the Issuer pursuant to a Bargain and Sale Deed (defined in the
Indenture and herein as the "Deed of Trust") dated December 28, 2000 from the
Institution to the Issuer and such land and the Facility will be leased by the
Issuer to the Institution pursuant to the Agreement. The Bonds will be secured
by an irrevocable, direct pay letter of credit (the "Letter of Credit") issued
by National City Bank of Michigan/Illinois (in such capacity, the "Bank")
pursuant to a Reimbursement Agreement between the Institution and the Bank,
dated as of December 1, 2000 (the "Reimbursement Agreement"). The Bonds are
subject to tender for purchase and shall be remarketed from time to time
pursuant to a Remarketing Agreement, dated as of December 1, 2000 (the
"Remarketing Agreement"), between the Institution and the Underwriter acting as
Remarketing Agent.
1. In order to induce the Issuer and the Underwriter to execute, deliver and
perform the Bond Purchase Agreement, and in consideration of such execution,
delivery and performance, the Institution hereby represents, warrants and agrees
with the Underwriter and the Issuer as follows:
(a) That the statements and material (as such statements and material pertain
to the Institution, the terms of the Bonds, the Facility financed with the
proceeds of the Bonds and the documents to which the Institution is a
party) appearing in the Offering Circular dated December 20, 2000 (with
the Appendices thereto, the "Offering Circular"), are accurate statements
or summaries of the matters therein set forth and fairly present the
information purported to be shown and do not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, the Institution
makes no representation as to statements in the Preliminary Offering
Circular and the Offering Circular under the headings "THE ISSUER," "THE
BONDS--Book-Entry-Only System," "UNDERWRITING" and in Appendix B.
(b) That the Institution has taken all necessary action for execution and
delivery of the Agreement, the Deed of Trust, the Payment in Lieu of Tax
Agreement dated as of December 1, 2000 between the Institution and the
Issuer, the Reimbursement Agreement, the PILOT Mortgage dated as of
December 1, 2000 from the Institution to the Issuer and certain other
taxing entities, the Remarketing Agreement, the Tax Regulatory Agreement
dated December 28, 2000 among the Issuer, the Institution and the Trustee,
the Acknowledgment of the Assignment (each as defined in the Indenture),
the Environmental Compliance and Indemnification Agreement (as defined in
the Indenture), any Bank Documents (as defined in the Indenture) not
listed above, the Bond Purchase Agreement and this Letter of Representa-
tion (collectively the "Institution Documents") and performance by the
Institution thereunder does not and will not conflict with or result in a
breach of any of the unwaived provisions of, or constitute a default
under, any agreement or instrument by which the Institution is bound or
result in a violation of law, administrative regulation or court decree
to which the Institution or any of its property is subject, the effect
of which conflict, breach, default or violation could be materially
adverse to the Institution or its ability to perform its obligations
under the Institution Documents.
(c) That, except as contemplated herein or as contemplated or set forth in the
information previously delivered to the Underwriter or the Bank, there has
been no material adverse change in the condition, financial or otherwise,
of the Institution since the date of the Offering Circular.
(d) That, to the best of the Institution's knowledge, neither the Securities
and Exchange Commission nor any state securities administrator has issued
or is threatening to issue any order preventing or suspending the use of
the Offering Circular or the issuance, offer or sale of the Bonds.
(e) That there is no action, suit, proceeding, inquiry or investigation, at
law or in equity, or before or by any court, public board or body, known
by the Institution to be pending or threatened against or affecting the
Institution, nor to the best of the knowledge of the Institution is there
any basis therefor, wherein an unfavorable decision, ruling or finding
would, in any way, materially adversely affect the transactions con-
templated by the Bond Purchase Agreement or the Offering Circular or
which, in any way, would adversely affect the validity or enforceability
of the Bonds, the Indenture or the Institution Documents.
(f) That the Institution will not take or omit to take any action which action
or omission would in any way cause the proceeds from the sale of the Bonds
to be applied in a manner contrary to that provided for in the Indenture
and the Agreement as the same may be in force from time to time.
(g) That the Institution will diligently cooperate with the Underwriter and
its counsel to qualify the Bonds for offer and sale under the securities
or "blue sky" laws of such states as the Underwriter may request; provided
that in no event shall the Institution be obligated to qualify to do
business in any state where it is not now so qualified or to take any
action which would subject it to the general service of process in any
state where it is not now so subject.
(h) That the Institution will pay the reasonable expenses to be paid by it
pursuant to Paragraph 10 of the Bond Purchase Agreement (subject to the
terms and conditions set forth therein).
(i) That if between the date hereof and the applicable date provided under
Rule 15c2-12(b)(4) of the Securities and Exchange Commission (but in no
event earlier than 25 days after the Closing Date) (as defined in the Bond
Purchase Agreement) (and whether or not the Bonds are subject to the
Rule), (A) any event shall occur which might or would cause the Offering
Circular to contain any untrue statement of a material fact or to omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Institution shall notify the Underwriter of any such event of which it has
knowledge and, (B) whether or not the Institution has knowledge, if in the
opinion of the Underwriter any such event requires the preparation and
publication of a supplement or amendment to the Offering Circular, the
Institution will, at Institution's cost, supplement or amend the Offering
Circular in a form and in a manner approved by the Underwriter.
(j) The Institution is not now, and has never been, in default with respect to
its obligations to the Issuer or others in connection with bonds, if any,
previously issued by the Issuer for the benefit of the Institution.
2.(a) The Institution agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter (within the meaning of
Section 15 of the Securities Act of 1933) against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
caused by any untrue statement or alleged untrue statement of a material fact
made by the Institution and contained in the material described in paragraph
1(a) hereof, or in any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) The Institution shall indemnify and hold the Issuer, its officers,
directors, agents, and employees harmless in accordance with Section 8.2 of the
Agreement (in the form approved by the Bond Resolution), the terms of which are
incorporated by reference in this Letter of Representation, which provisions
shall also govern as to the Issuer in matters covered by this Letter of
Representation.
(c) If any action or claim shall be brought or asserted against the Under-
writer or any person so controlling the Underwriter based upon the Offering
Circular or any amendment or supplement thereto and in respect of which
indemnity may be sought from the Institution pursuant to subparagraph (a) of
this Paragraph 2, the Underwriter or such person, as the case may be, shall
promptly notify the Institution in writing, and the Institution shall assume
the defense thereof, including the employment of counsel and the payment of all
expenses thereof. The Underwriter or such person, as the case may be, shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but such employment of separate counsel shall be at the
expense of the Underwriter or such person, as the case may be, unless (i) the
employment thereof has been specifically authorized by the Institution, or
(ii) the Institution has failed to assume the defense and employ counsel, or
(iii) the named parties to any such action (including any impleaded parties)
include both the Underwriter and such person and shall have been advised by such
counsel that there may be one or more legal defenses available to the
Institution (in which case the Institution shall not have the right or obliga-
tion to assume the defense of such action on behalf of the Underwriter or such
person), it being understood, however, that the Institution shall not, in
connection with any such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expense of more than one
separate firm of attorneys for the Underwriter and controlling persons, which
firm shall be designated in writing by the Underwriter. The Institution shall
not be liable for any settlement of any such action effected without its written
consent, but if settled with the written consent of the Institution, or if there
be a final judgment for the plaintiff in any such action, the Institution agrees
to indemnify and hold harmless the Underwriter and any such controlling person
from and against any loss or liability by reason of such settlement or judgment.
(d) The Underwriter agrees to indemnify and hold harmless the Institution and
the Issuer, and their respective officers, directors, agents and employees, to
the same effect as the foregoing indemnity from the Institution to the
Underwriter, but only with respect to information furnished by or on behalf of
the Underwriter expressly for use in connection with the Offering Circular, and
appearing therein under the heading "UNDERWRITING."
(e) The indemnity agreements contained in this Paragraph 2 and the
representations and warranties of the Institution set forth in this Letter of
Representation shall remain operative and in full force and effect after the
Closing Date (as defined in the Bond Purchase Agreement) regardless of any
investigation made by or on behalf of the Underwriter or any person so
controlling the Underwriter or by or on behalf of the Institution or by or on
behalf of the Issuer. A successor of the Underwriter, the Issuer or the
Institution, as the case may be, shall be entitled to the benefits of the
indemnity agreements contained in this Paragraph 2.
In case any action or claim shall be brought against the Institution or the
Issuer or their respective officers, directors, agents or employees, based upon
the Offering Circular, and in respect of which indemnity may be sought from the
Underwriter, the Underwriter shall have the rights and duties given to the
Institution, and the Institution or the Issuer, as the case may be, shall have
the rights and duties given to the Underwriter, by subparagraph (c) of this
Paragraph 2.
3. This Letter of Representation is made solely for the benefit of the Issuer,
the Underwriter and the Institution and their respective successors and assigns
and, except as expressly provided herein, no other person, partnership, associa-
tion or corporation shall acquire or have any right under or by virtue hereof.
The terms "successors" and "assigns" shall not include any purchaser of any of
the Bonds from or through the Underwriter merely because of such purchase.
4. The execution and delivery of this Letter of Representation by the
Institution shall constitute the Institution's approval of and consent to the
Issuer's entering into, acceptance and execution of the Bond Purchase Agreement
and performance thereunder.
5. The validity, interpretation and performance of this Letter of Represen-
tation shall be governed by the laws of the State of Michigan.
6. Any notice or other communication to be given to the Institution under this
Letter of Representation may be given in the same method set forth in Section
14.03 of the Indenture to the Institution at 2 International Boulevard,
Brewster, New York 10509, Attention: Mark Primavera, President, and Triple S
Plastics, Suite 200, 7950 Moorsbridge Road, Portage, Michigan 49023, Attention:
Cathy Taylor, Treasurer; and any notice or other communication to be given to
the Underwriter or the Issuer may be given by delivering the same in writing to
their respective addresses as given above. The Institution, the Issuer and the
Underwriter shall each be fully entitled to rely upon notice so given and to act
thereon.
7. This Letter of Representation shall become effective upon execution of the
Bond Purchase Agreement. The Institution's representations and warranties
contained herein shall remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of the Underwriter or the Issuer,
(b) delivery of, and payment for, the Bonds and (c) any termination of the Bond
Purchase Agreement or this Letter of Representation. This Letter of
Representation may be executed and accepted in any number of counterparts.
Very truly yours,
DYNACEPT CORPORATION
By: _/s/_Mark_Primavera___
Its: President
Accepted and confirmed as of
the date first above written:
NATCITY INVESTMENTS, INC.
By: _/s/_Timothy_Bennett__
Its: Senior Vice President
COUNTY OF PUTNAM INDUSTRIAL
DEVELOPMENT AGENCY
By: _/s/_Joseph_F._Girven__
Its: Chairman and Executive Director
EXHIBIT B
CERTAIN DETAILS OF THE BONDS
$4,500,000 Term Bond, Due January 1, 2021
The Bonds bear interest and are subject to optional and mandatory tendor for
purchase and to optional and mandatory redemption prior to maturity as provided
in the form of Bond attached as Exhibit A to the Indenture and as stated in the
Offering Circular.