Exhibit 10.12
$8,400,000
▇▇▇▇▇▇▇▇▇▇ COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
FEDERALLY TAXABLE VARIABLE RATE DEMAND REVENUE BONDS
(NEOSE TECHNOLOGIES, INC. PROJECT), SERIES B OF 1997
Neose Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: P. ▇▇▇▇▇▇▇▇ ▇▇▇▇, President
Dear Sirs:
This confirms the agreement between CORESTATES CAPITAL
MARKETS, A DIVISION OF CORESTATES BANK, N.A., (the "Remarketing Agent") and
NEOSE TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"), for the
undersigned to act as exclusive remarketing agent for the above-captioned Bonds
(the "Bonds"). This Agreement is dated as of March 1, 1997, but effective on the
date of issuance of the Bonds.
The Bonds are being issued pursuant to a Trust Indenture,
dated as of March 1, 1997 (the "Indenture") between ▇▇▇▇▇▇▇▇▇▇ County Industrial
Development Authority (the "Issuer") and Dauphin Deposit Bank and Trust Company,
as trustee (the "Trustee") and are supported by an irrevocable Letter of Credit
issued by CoreStates Bank, N.A. (as issuer of the Letter of Credit, the "Bank")
to the Trustee. All capitalized terms and phrases used herein and not defined
herein shall have the meanings specified in the Indenture.
1. Acceptance of Appointment of Remarketing Agent;
Responsibilities of Remarketing Agent.
(a) Subject to the terms and conditions herein contained,
CoreStates Capital Markets, a division of CoreStates Bank, N.A. hereby accepts
its appointment as Remarketing Agent under the Indenture in connection with the
placement and sale of Bonds, from time to time, subsequent to the initial
placement, issuance and sale of the Bonds and hereby accepts all of the duties
and obligations imposed on it under the Indenture as Remarketing Agent,
including, without limitation, the Remarketing Agent's obligations under the
Indenture to:
(i) hold all Bonds delivered to it by the Trustee under
the Indenture for delivery to the Holders thereof;
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(ii) hold all moneys representing the purchase price of
Bonds for delivery to the Trustee pursuant to the Indenture for the
benefit of the persons entitled to receive the payment of such
purchase price (such moneys to be held uninvested); and
(iii) keep such books and records as shall be consistent
with prudent industry practice and make such books and records
available for inspection by the Issuer, the Trustee and the Borrower
at all reasonable times.
(b) Subject to the terms and conditions herein contained,
the Remarketing Agent, upon timely receipt of appropriate notice pursuant to the
Indenture with respect to any Bonds, shall exercise its best efforts to arrange
for the sale of such Bonds in the principal amount described in such notice, at
a purchase price equal to the principal amount thereof plus accrued interest
thereon, if any, on the purchase date in respect of which such notice is given.
(c) It is understood and agreed that no assurance can be
given that any such purchases will be consummated on any purchase date, and it
is further understood and agreed that the Remarketing Agent shall in no respect
be deemed to be warranting that any such purchases will be consummated on the
purchase date or to be assuming any liability or undertaking any obligation of
any nature in the event any such purchases shall not be consummated on the
purchase date.
(d) The Remarketing Agent agrees that its duties hereunder
will include the determination of interest rates to be borne by the Bonds as set
forth in the Indenture.
(e) The Remarketing Agent may cease its efforts to arrange
for the sale of the Bonds with immediate effect if it determines that for any
reason, including without limitation: (i) a pending or proposed change in
applicable tax laws; (ii) a material adverse change in the financial condition
of the Borrower or the Bank; (iii) a banking moratorium; (iv) hostilities
adversely affecting the market conditions generally or for municipal
obligations; (v) a down-rating of the Bonds; (vi) an imposition of material
restrictions on the Bonds or similar obligations; or (vii) a material
misstatement or omission in the Disclosure Materials (as such phrase is defined
in Section 2 hereof), it is not advisable to attempt to remarket the Bonds.
(f) The Remarketing Agent shall have the right to suspend
or cancel forthwith its obligations under this Agreement and the Indenture (it
being agreed that any such suspension or cancellation shall not constitute a
default hereunder or under the Indenture on the part of the Remarketing Agent)
by notifying the Borrower, the Trustee, the Issuer, Jefferson Bank (the
"Participating Bank") and the Bank of its election to do so, if at any time any
of the following events occurs:
(i) An Event of Default under the Indenture, the
Participating Bank Agreement or the Reimbursement Agreement or an
event which with the giving of notice or lapse of time or both would
be an Event of Default under the Indenture, the
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Participating Bank Agreement or the Reimbursement Agreement has
occurred, whether or not the Bank or the Participating Bank has
notified the Trustee to draw on the Letter of Credit; or
(ii) A Rating Service shall revise, withdraw or
otherwise change its rating (or one of its ratings) of the Bonds in
a manner that adversely affects the market for the Bonds; or
(iii) Intentionally Omitted; or
(iv) Legislation shall have been enacted by the Congress
of the United States of America or by the Commonwealth of
Pennsylvania, or a decision shall have been rendered by a court of
the United States of America or the Commonwealth of Pennsylvania, or
a regulation or ruling shall have been issued by a federal authority
or an authority of the Commonwealth of Pennsylvania, which has the
effect, either directly or indirectly, of materially adversely
affecting the Remarketing Agent's ability to remarket the Bonds; or
(v) Any fee of the Remarketing Agent under this
Agreement remains unpaid for a period of 30 days after such fee
becomes due and payable.
(g) Anything herein or in the Indenture to the contrary
notwithstanding: (i) the Remarketing Agent's duties and obligations accepted
under this Agreement shall terminate on the date of conversion to a Term Mode;
(ii) the Remarketing Agent shall have no obligation under this Agreement to
determine the Term Rate in connection with the conversion of the interest rate
thereon to a Term Rate; and (iii) the Remarketing Agent shall have no obligation
under this Agreement to remarket Bonds upon a mandatory tender for purchase
pursuant to the Indenture.
(h) The Remarketing Agent represents as of the date hereof
that: (i) it is authorized by law to perform its duties and obligations as
Remarketing Agent under this Agreement and the Indenture; (ii) it routinely
engages in the remarketing of municipal securities such as the Bonds; and (iii)
it will settle all transactions pursuant to industry practice within five days
of execution.
(i) Executed copies of this Agreement shall be delivered to
the Issuer and the Trustee for the purpose of evidencing the Remarketing Agent's
acceptance of its duties and obligations under the Indenture as required by
Section 8.13 thereof.
(j) Except as otherwise provided in the Indenture, the
Remarketing Agent agrees that it will not remarket to the Issuer, the Borrower
or any Affiliate, any Bonds to be purchased pursuant to Section 4.01 or 4.02 of
the Indenture.
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2. Furnishings of Disclosure Materials.
(a) The Borrower agrees to furnish the Remarketing Agent
with as many copies as the Remarketing Agent may reasonably request of the final
Placement Memorandum, dated March 20, 1997 (the "Placement Memorandum"),
relating to the Bonds.
(b) If the Remarketing Agent reasonably determines that it
is necessary to use any other disclosure materials in connection with its
remarketing of Bonds, the Remarketing Agent will so notify the Borrower, and the
Remarketing Agent shall not be obligated to remarket Bonds until it has been
provided (and the Borrower will use its best efforts so to provide) such
disclosure materials reasonably satisfactory to the Remarketing Agent and its
counsel for the remarketing of the Bonds. The Placement Memorandum and any such
disclosure materials, together with any amendments and supplements thereto and
any other information provided to the Remarketing Agent pursuant to this Section
2, are herein referred to as the "Disclosure Materials". The Borrower will
supply the Remarketing Agent, at no expense to the Remarketing Agent, with as
many copies as the Remarketing Agent may reasonably request, of all Disclosure
Materials, and will use its best efforts to amend such materials (and any
documents that may be incorporated by reference therein) so that such materials
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In connection with any
Disclosure Materials, the Borrower will use its best efforts to provide the
Remarketing Agent with such certificates, opinions of counsel (including bond
counsel) and other support for the information contained therein as the
Remarketing Agent and its counsel may reasonably request. All fees and expenses
reasonably incurred by the Remarketing Agent in connection with such revisions
and updating, including without limitation the costs of printing and the fees
and expenses of counsel to the Remarketing Agent and of bond counsel, shall be
paid by the Borrower.
(c) If, at any time during the term of this Agreement, any
event known to the Borrower relating to or affecting the Borrower, the Project
or the Bonds shall occur which materially affects the adequacy of the disclosure
set forth in the Disclosure Materials, including the correctness of any fact
contained in or the propriety of omitting any fact from any Disclosure
Materials, the Borrower will promptly notify the Remarketing Agent in writing of
the circumstances and details of such event.
3. Representations, Warranties, Covenants and Agreements of
the Borrower. The Borrower represents, warrants, covenants and agrees with the
Remarketing Agent as follows:
(a) This Agreement has been duly authorized, executed and
delivered by the Borrower and performance by the Borrower hereunder will not
conflict with, or result in a breach of any of the provisions of, or constitute
a default (or an event which with the giving of notice or the lapse of time or
both would constitute a default) under, any agreement or
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instrument by which the Borrower is bound or violate any law, administrative
regulation or court order to which the Borrower is subject.
(b) The Borrower will diligently cooperate with the
Remarketing Agent to qualify the Bonds to be remarketed by the Remarketing Agent
pursuant to this Agreement under the securities or "Blue Sky" laws of such
jurisdictions as the Remarketing Agent may request; provided that in doing so
the Borrower shall not be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or take any action which would
subject it to the general service of process in any jurisdiction where it is not
now so subject.
(c) The information set forth in the Disclosure Materials
under the caption "THE BORROWER" does not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not
misleading. Furthermore, nothing has come to the Borrower's attention that leads
it to believe the Disclosure Materials contain and (after being amended or
supplemented, if appropriate) will contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that no representation is made with respect to the information set forth
under the caption "THE ISSUER" (relating to the Issuer) and in Appendix A
thereto (relating to the Bank).
(d) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, agency, department,
board or body or before any arbitrator, pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower: (i) which would be
required to be disclosed in any Disclosure Materials in order that they not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading and which is not disclosed in such
Disclosure Materials; or (ii) wherein an unfavorable decision, ruling or finding
would, in any way, materially adversely affect the transactions contemplated
hereby or the validity or enforceability of this Agreement, the Bonds, the
Indenture, the Loan Agreement or the Letter of Credit.
(e) All required consents, rulings and approvals of
governmental authorities (other than registration or filing requirements of
"Blue Sky" authorities, as to which no representation is made) required in
connection with the execution and delivery by the Borrower of this Agreement and
the performance by the Borrower of its obligations hereunder have been obtained
and are in full force and effect.
4. Term of Agreement; Termination. This Agreement shall become
effective upon execution and delivery by the Remarketing Agent and the Borrower
and shall continue in full force and effect to and including the date final
payment on the Bonds is made or the date the Bonds are required to be purchased
pursuant to a mandatory tender for purchase pursuant to the Indenture, subject
to the right of the Remarketing Agent to resign and the right of the Borrower to
request the Remarketing Agent to resign as set forth in this Section 4. The
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Remarketing Agent may be removed by the Issuer, with the written consent of the
Borrower, at any time on 30 days written notice, by an instrument, signed by the
Issuer delivered to the Remarketing Agent, the Trustee, the Participating Bank
and the Bank. The Remarketing Agent may resign at any time on 30 days written
notice to the Borrower, the Issuer, the Trustee, the Participating Bank and the
Bank. Following termination of this Agreement, the provisions of Sections 7 and
9 of this Agreement will continue in effect as to transactions prior to the date
of such termination, and each party will pay the other any amounts owing at the
time of such termination.
5. Payment of Fees and Expenses.
(a) The Borrower shall pay to the Remarketing Agent, as
compensation for the Remarketing Agent's services hereunder: (1) on the date of
execution and delivery of this Agreement, a fee equal to $8,400; and (2) on each
March 1 thereafter a fee equal to one tenth of one percent (.10%) of the
aggregate principal amount of the Bonds outstanding on such March 1. Such fees
are payable at the Remarketing Agent's address set forth in Section 8 hereof,
are nonrefundable in the event Bonds are thereafter redeemed or paid, and are
subject to change upon 90 days written notice by the Remarketing Agent to the
Borrower.
(b) Expenses of the Remarketing Agent payable by the
Borrower shall include, without limitation, any costs of funds incurred by the
Remarketing Agent in connection with the payment of the purchase price of Bonds
prior to the receipt of funds drawn under the Letter of Credit or the receipt of
remarketing proceeds as provided in the Indenture. Nothing herein shall be
construed as obligating CoreStates Capital Markets, a division of CoreStates
Bank, N.A. in its capacity as Remarketing Agent to pay the purchase price of any
Bond from any of its own funds. The Remarketing Agent will not be entitled to
compensation accruing after this Agreement shall have been terminated.
6. Conditions to Remarketing Agent's Obligations. The
obligations of the Remarketing Agent under this Agreement shall be subject, at
the option of the Remarketing Agent, to the satisfaction of each of the
following conditions:
(i) to the extent that any Disclosure Materials shall
have been provided to the Remarketing Agent in connection with the
remarketing of the Bonds to be purchased on any date, the
Remarketing Agent shall have received such certificates, opinions of
counsel (including bond counsel) and other support for the
information contained in such Disclosure Materials as the
Remarketing Agent or its counsel shall have reasonably requested
pursuant to Section 2(b) hereof; and
(ii) the representations and warranties of the Borrower
contained herein shall be true and correct in all material respects
on and as if made on any date on which the Bonds are to be
remarketed.
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7. Indemnification; Contribution.
(a) To the extent permitted by applicable law, the Borrower
will indemnify and hold harmless the Remarketing Agent and each director,
officer and employee of the Remarketing Agent and each person who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act of
1933, as amended (such Act being herein called the "Securities Act", and any
such person being herein sometimes called an "Indemnified Party"), against any
and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject under any statute or at law or in equity or
otherwise, and shall reimburse any such Indemnified Party for any legal or other
expenses incurred by it in connection with investigating any claims against it
and defending any actions, but only to the extent that such losses, claims,
damages, liabilities or actions arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained under the
caption "THE BORROWER" or describing the operation and affairs of the Borrower
in any Disclosure Materials or 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 are made, not misleading; or (ii) an allegation
or determination that registration under the Securities Act was required in
connection with the offering or sale of the Bonds or the Indenture should have
been qualified under the Trust Indenture Act of 1939, as amended.
(b) If any action or claim shall be brought or asserted
against an Indemnified Party in respect of which indemnity may be sought from
the Borrower, such Indemnified Party shall promptly notify the Borrower in
writing, and the Borrower shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party and the
payment of all expenses. Such Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless: (i) the employment thereof has been specifically
authorized by the Borrower in writing; (ii) the Borrower has failed to assume
promptly the defense and employ counsel reasonably satisfactory to such
Indemnified Party; or (iii) the named parties to any such action (including any
impleaded parties) include such Indemnified Party and the Borrower, and such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Borrower (in which case the Borrower shall not have the
right to assume the defense of such action on behalf of such Indemnified Party),
in any of which events the fees and expenses of such counsel shall be borne by
the Borrower. The Borrower shall not be liable for any settlement of any such
action or claim effected without its consent (which consent shall not be
unreasonably withheld), but if settled with its consent or if there is a final
judgment for the plaintiff in any such action, the Borrower will indemnify and
hold harmless each Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. The indemnity provided in this Section
includes reimbursement for expenses incurred by the Indemnified Party in
investigating the claim and in defending it in accordance with this Section.
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(c) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in paragraphs (a) and
(b) of this Section is due in accordance with its terms but is for any reason
unavailable or insufficient, the Borrower shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same) to
which the Remarketing Agent may be subject in such proportion so that the
Borrower bears them in a portion that considers the benefits received from the
remarketing of the Bonds, the Borrower's knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct or prevent any statement or omission and any other
equitable considerations appropriate under the circumstances; and no person
(including the Remarketing Agent) guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the Securities Act shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act shall
have the same rights as the Remarketing Agent. Any party entitled to
contribution shall, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(c), notify the Borrower, but the omission so to notify the Borrower shall not
relieve the Borrower from any other obligation it may have hereunder.
(d) The agreements contained in this Section 7 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Indemnified Party or delivery of the Bonds.
8. Notices. All notices under this Agreement shall be in
writing and mailed, delivered or transmitted to:
The Remarketing Agent:
CoreStates Capital Markets, a division of
CoreStates Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Municipal Syndicate Desk
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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The Borrower:
Neose Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may, by notice given under this Agreement, designate another address
to which notices hereunder shall be directed. The Remarketing Agent shall accept
delivery of Bonds from the Trustee at the notice address.
9. Remarketing Agent's Liabilities. The Remarketing Agent
shall incur no liability to the Borrower, the Issuer or any other party by its
actions as Remarketing Agent, except for gross negligence, willful misconduct or
breach of the terms of this Agreement.
10. Ownership of Bonds by Remarketing Agent. CoreStates
Capital Markets, a division of CoreStates Bank, N.A., in its individual
capacity, either as principal or agent, may buy, sell, own and hold the Bonds,
and may join in any action which any Holder may be entitled to take with like
effect as if it did not act as Remarketing Agent hereunder. CoreStates Capital
Markets, a division of CoreStates Bank, N.A. or any entity with which it is
affiliated, in its individual capacity, either as principal or agent, may also
engage in or be interested in any financial or other transaction with the
Borrower and may also act as Trustee, the Participating Bank and/or issuer of
the Letter of Credit as freely as if CoreStates Capital Markets, a division of
CoreStates Bank, N.A., did not act as Remarketing Agent hereunder.
11. Intention of Parties. It is the express intention of the
parties hereto that no purchase, sale or transfer of any Bonds, as herein
provided, shall constitute or be construed to be the extinguishment of any Bond
or the indebtedness represented thereby or the reissuance of any Bond or the
refunding of any indebtedness represented thereby.
12. Miscellaneous.
(a) The rights and obligations of the respective parties
hereto may not be assigned or delegated to any other person without the consent
of the other parties hereto,
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except that the Remarketing Agent may assign its rights and obligations
hereunder to an affiliate of the Remarketing Agent. This Agreement will inure to
the benefit of and be binding upon the Borrower and the Remarketing Agent and
their respective successors and assigns, and, except as expressly set forth
herein, will not confer any rights upon any other person.
(b) All of the representations, warranties, covenants and
agreements of the Borrower and the Remarketing Agent in this Agreement shall
remain operative and in full force and effect, regardless of: (i) any
investigation made by or on behalf of the Remarketing Agent or the Borrower; or
(ii) delivery of and payment for any Bonds hereunder.
(c) Section headings have been inserted in this Agreement
as a matter of convenience of reference only, are not a part of this Agreement
and shall not be used in the interpretation of any provisions of this Agreement.
(d) If any provision of this Agreement shall be held or
deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions, because it conflicts with any provision of any constitution,
statute or rule of public policy or for any other reason, such circumstances
shall not have the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case or circumstance, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatever.
(e) This Agreement may be executed in several counterparts
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(g) By executing this Agreement in the respective places
provided below, the Remarketing Agent and the Borrower agree to be legally bound
by the provisions of this Agreement.
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Very truly yours,
CORESTATES CAPITAL MARKETS, A
DIVISION OF CORESTATES BANK, N.A.,
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Senior Vice President
Accepted and agreed to as of the date first above written:
NEOSE TECHNOLOGIES, INC.
By: /s/ P. ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
P. ▇▇▇▇▇▇▇▇ ▇▇▇▇, President
Attest: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Secretary
(SEAL)
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