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Title: |
Mortgage and Security Agreement |
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Date: |
2004 |
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Preview shows 22KB of 149KB total |
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$45 |
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#375077 |
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COUNTIES OF WARREN AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
AND
ANGIODYNAMICS, INC.
TO
KEYBANK NATIONAL ASSOCIATION
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MORTGAGE AND SECURITY AGREEMENT
----------
DATED AS OF AUGUST 1, 2002
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THIS MORTGAGE AND SECURITY AGREEMENT (A) AFFECTS TANGIBLE AND INTANGIBLE
PERSONAL PROPERTY AS WELL AS REAL PROPERTY, (B) CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS, AND (C) IS INTENDED TO CONSTITUTE A SECURITY AGREEMENT UNDER THE
UNIFORM COMMERCIAL CODE OF THE STATE OF NEW YORK.
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{PAGE}
TABLE OF CONTENTS
Page
----
MORTGAGE AND SECURITY AGREEMENT................................................2
ARTICLE I......................................................................6
DEFINITIONS
ARTICLE II....................................................................28
LAND MORTGAGE; GRANTING CLAUSES; SECURITY AGREEMENT; GENERAL COVENANTS
SECTION 2.01. GRANTING CLAUSES.............................................28
SECTION 2.02. SECURITY AGREEMENT...........................................30
SECTION 2.03. INFORMATION UNDER THE UNIFORM COMMERCIAL CODE................30
SECTION 2.04. PERFORMANCE OF COVENANTS.....................................31
SECTION 2.05. PRIORITY OF LIEN OF MORTGAGE; DISCHARGE OF LIENS AND
ENCUMBRANCES.................................................31
ARTICLE III...................................................................32
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE ISSUER.................32
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................32
SECTION 3.03. PAYMENT OF PRINCIPAL AND INTEREST ON THE BONDS...............33
ARTICLE IV....................................................................34
MAINTENANCE, MODIFICATION, TAXES AND INSURANCE
SECTION 4.01. MAINTENANCE OF AND MODIFICATIONS TO THE MORTGAGED
PROPERTY BY THE COMPANY......................................34
SECTION 4.02. INSURANCE REQUIRED...........................................34
SECTION 4.03. TAXES, ASSESSMENTS AND UTILITY CHARGES.......................34
ARTICLE V.....................................................................36
SPECIAL COVENANTS
SECTION 5.01. RIGHT OF ACCESS TO THE MORTGAGED PROPERTY....................36
SECTION 5.02. INSPECTION OF BOOKS AND RECORDS..............................36
SECTION 5.03. AGREEMENT TO PROVIDE INFORMATION.............................36
SECTION 5.04. BOOKS OF RECORD AND ACCOUNT..................................36
SECTION 5.05. COMPLIANCE WITH APPLICABLE LAWS..............................36
SECTION 5.06. RECORDATION OF MORTGAGE AND FILING OF SECURITY INSTRUMENTS...37
SECTION 5.07. ENFORCEMENT OF DUTIES AND OBLIGATIONS OF THE COMPANY.........37
SECTION 5.08. ENVIRONMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS......37
ARTICLE VI....................................................................40
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT DEFINED....................................40
SECTION 6.02. ACCELERATION; ANNULMENT OF ACCELERATION......................41
i
{PAGE}
SECTION 6.03. ENFORCEMENT OF REMEDIES......................................42
SECTION 6.04. APPOINTMENT OF RECEIVERS.....................................43
SECTION 6.05. APPLICATION OF MONEYS........................................44
SECTION 6.06. REMEDIES CUMULATIVE..........................................44
SECTION 6.07. TERMINATION OF PROCEEDINGS...................................44
SECTION 6.08. WAIVER AND NON-WAIVER OF EVENT OF DEFAULT....................44
SECTION 6.09. REPAYMENT AND SECURING OF EXPENSES PAID BY THE BANK..........45
SECTION 6.10. REPAYMENT AND SECURING OF COLLECTION COSTS
INCURRED BY THE BANK.........................................45
SECTION 6.11. OTHER ACTIONS BY THE HOLDER..................................45
SECTION 6.12. SALE IN ONE PARCEL...........................................46
ARTICLE VII...................................................................46
MISCELLANEOUS
SECTION 7.01. LIMITATION OF RIGHTS.........................................46
SECTION 7.02. NOTICES......................................................46
SECTION 7.03. COUNTERPARTS.................................................48
SECTION 7.04. APPLICABLE LAW...............................................49
SECTION 7.05. TABLE OF CONTENTS AND SECTION HEADINGS NOT CONTROLLING.......49
SECTION 7.06. SEVERABILITY.................................................49
SECTION 7.07. COVENANTS RUN WITH THE LAND..................................49
SECTION 7.08. AMENDMENT....................................................49
SECTION 7.09. USURY........................................................49
SECTION 7.10. NO RECOURSE; SPECIAL OBLIGATION..............................49
SECTION 7.11. TAX LAWS.....................................................50
SECTION 7.12. REVENUE STAMPS...............................................51
SECTION 7.13. FURTHER ASSURANCE............................................51
SECTION 7.14. SATISFACTION OF MORTGAGE.....................................51
SECTION 7.15 LIEN LAW.....................................................51
EXHIBIT A.....................................................................54
DESCRIPTION OF THE LAND
EXHIBIT B.....................................................................55
DESCRIPTION OF THE EQUIPMENT
ii
{PAGE}
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT dated as of August 1, 2002 (the
"Mortgage") from the COUNTIES OF WARREN AND WASHINGTON INDUSTRIAL DEVELOPMENT
AGENCY, a public benefit corporation of the State of New York having an office
for the transaction of business located at 5 Warren Street, Glens Falls, New
York 12801 (the "Issuer") and ANGIODYNAMICS, INC., a corporation organized and
existing under the laws of the State of New York, having an office for the
transaction of business located at 603 Queensbury Avenue, Queensbury, New York
12804 (the "Company") to KEYBANK NATIONAL ASSOCIATION, a banking corporation
organized and existing under the laws of the State of New York, having an office
for the transaction of business located at 66 South Pearl Street, Albany, New
York 12207, as Bank (the "Bank") for the holders of the Issuer's Multimode
Variable Rate Industrial Development Revenue Bonds (Angiodynamics, Inc.
Project), Series 2002 in the aggregate principal amount of $3,500,000 (the
"Initial Bonds") and any Additional Bonds (as defined in the Indenture
hereinafter referred to and collectively with the Initial Bonds, the "Bonds")
issued pursuant to a certain trust indenture dated as of August 1, 2002 (the
"Indenture") by and between the Issuer and the Bank;
WITNESSETH:
WHEREAS, Title 1 of Article 18-A of the General Municipal Law of the State
of New York (the "Enabling Act") was duly enacted into law as Chapter 1030 of
the Laws of 1969 of the State of New York; and
WHEREAS, the Enabling Act authorizes and provides for the creation of
industrial development agencies for the benefit of the several counties, cities,
villages and towns in the State of New York (the "State") and empowers such
agencies, among other things, to acquire, construct, reconstruct, lease,
improve, maintain, equip and dispose of land and any building or other
improvement, and all real and personal properties, including, but not limited
to, machinery and equipment deemed necessary in connection therewith, whether or
not now in existence or under construction, which shall be suitable for
manufacturing, warehousing, research, civic, commercial or industrial purposes,
in order to advance the job opportunities, health, general prosperity and
economic welfare of the people of the State and to improve their standard of
living; and
WHEREAS, the Enabling Act further authorizes each such agency to lease or
sell any or all of its facilities, to issue its bonds, for the purpose of
carrying out any of its corporate purposes and, as security for the payment of
the principal and redemption price of and interest on any such bonds so issued
and any agreements made in connection therewith, to mortgage and pledge any or
all of its facilities, whether then owned or thereafter acquired, and to pledge
the revenues and
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receipts from the lease or sale thereof to secure the payment of such bonds and
interest thereon; and
WHEREAS, the Issuer was created, pursuant to and in accordance with the
provisions of the Enabling Act, by Chapter 862 of the Laws of 1971 of the State,
as amended (collectively, with the Enabling Act, the "Act") and is empowered
under the Act to undertake the Project (as hereinafter defined) in order to so
advance the job opportunities, health, general prosperity and economic welfare
of the people of the State and improve their standard of living; and
WHEREAS, the Company has presented an application (the "Application") to
the Issuer which Application requested that the Issuer consider undertaking a
project (the "Project") consisting of (A)(i) the acquisition of an interest in a
certain parcel or parcels of land located at 603 Queensbury Avenue, Town of
Queensbury, County of Warren, State of New York (the "Land"), (ii) the
acquisition thereon of an approximately 32,000 square foot facility (the
"Existing Facility"), together with equipment therein (the "Existing
Equipment"), (iii) the making of certain renovations to the Existing Facility
(as so renovated, the "Facility") consistent with its present and authorized
use, (iv) the construction of approximately 32,000 square feet of additions(s)
to the Existing Facility, (v) the purchase of additional equipment (together
with the Existing Equipment, the "Equipment" and, together with the Land and the
Facility, the "Project Facility") and (B) the financing of a part of the cost of
the foregoing by issuing its tax-exempt Industrial Development Revenue Bonds
(the "Bonds") in an aggregate principal amount not to exceed $4,500,000.00, all
pursuant to Title 1 of Article 18-A of the General Municipal Law of the State of
New York (collectively, the "Act"), as amended, the proceeds of which may be
applied to the costs of issuance, and, as necessary and appropriate, the
provision of a debt service reserve fund, capitalized interest or other means of
providing credit enhancement for the Bonds; and (C) to lease (with the option to
purchase) and/or sell the Project Facility to the Company, all pursuant to the
Act;
WHEREAS, pursuant to Article 8 of the Environmental Conservation Law,
Chapter 43-B of the Consolidated Laws of New York, as amended (the "SEQR Act"),
and the regulations adopted pursuant thereto by the Department of Environmental
Conservation of the State of New York, being 6 NYCRR Part 617, as amended (the
"Regulations", and collectively with the SEQR Act, "SEQRA"), by resolution
adopted by the members of the Issuer on June 24, 2002 (the "SEQR Resolution"),
the Issuer (A) reviewed the application, (B) determined that the Project
constitutes an "Unlisted Action," and (C) determined that the Project will not
have a "significant effect" on the environment and issued a "negative
declaration" with respect to the Project (as said quoted terms are used in
SEQRA); and
WHEREAS, the Issuer (A) caused notice of a public hearing of the Issuer
(the "Public Hearing") pursuant to Section 859-a of the Act and Section 147(f)
of the Internal Revenue Code of 1986, as amended (the "Code"), to hear all
persons interested in the Project and the financial assistance being
contemplated by the Issuer with respect to the Project, mailed on May ___, 2002
to the chief executive officers of the county and of each city, town, village
and school district in which the Project Facility is to be located, (B) caused
notice of the Public Hearing to be
3
{PAGE}
published on May ___, 2002 in The Post Star, a newspaper of general circulation
available to residents of the City of Albany, (C) conducted the Public Hearing
on June 17, 2002 at 3:00 o'clock, local time in the Board of Supervisors
Chambers in the Warren County Municipal Center, Queensbury, New York 12804, and
(D) prepared a report of the Public Hearing (the "Report") which fairly
summarized the views presented at said public hearing and distributed same to
the members of the Issuer and to the Courts Legislatures of Warren and
Washington County; and
WHEREAS, by certificates dated June 21, 2002 and July 17, 2002 (the "Public
Approval"), the County Legislatures of Washington County and Warren County,
respectively, approved the issuance of the Bonds for purposes of Section 147(f)
of the Code; and
WHEREAS, by resolution adopted by the members of the Issuer on July 15,
2002 (the "Bond Resolution"), the Issuer determined to (A) issue the Initial
Bonds pursuant to the provisions of the Indenture, (B) enter into this Mortgage
and Security Agreement, and (C) enter into certain other documents related to
the foregoing; and
WHEREAS, the Issuer proposes to undertake the Project, to appoint the
Company as agent of the Issuer to undertake the acquisition, construction and
installation of the Current Project, and to sell the Issuer's interest in the
Project Facility to the Company, and the Company desires to act as agent of the
Issuer to undertake the acquisition, construction and installation of the
Current Project and to purchase the Issuer's interest in the Project Facility
from the Issuer, all pursuant to the terms and conditions set forth in the
installment sale agreement dated as of August 1, 2002 (the "Installment Sale
Agreement") between the Issuer and the Company; and
WHEREAS, pursuant to the Deed to Issuer, the Company will convey to the
Issuer the Land; and
WHEREAS, as security for the Bonds, the Issuer will assign to the Bank
certain of the Issuer's rights and remedies under the Installment Sale
Agreement, including the right to receive installment purchase payments and
other amounts payable thereunder, but not including the Unassigned Rights (as
hereinafter defined), pursuant to a pledge and assignment dated as of August 1,
2002 (the "Pledge and Assignment") from the Issuer to the Bank,
WHEREAS, the Company's obligation to make all installment purchase payments
due under the Installment Sale Agreement, and to perform all obligations related
thereto, and the Issuer's obligation to repay the Bonds, will be further secured
by a guaranty dated as of August 1, 2002 (the "Guaranty") from the Company to
the Bank; and
WHEREAS, as security for the Bonds and the Company's obligations under the
Guaranty and the other Financing Documents (as hereinafter defined), the Issuer
and the Company now intend to grant to the Bank a mortgage Lien (as hereinafter
defined) on and security interest in the Project Facility pursuant to this
Mortgage; and
4
{PAGE}
WHEREAS, all things necessary to constitute this Mortgage a valid first
Lien on and pledge of the Mortgaged Property (as hereinafter defined) herein
described in accordance with the terms hereof, have been done and performed, and
the creation, execution and delivery of this Mortgage, as security for the
payment of the principal of, premium, if any, and interest on the Bonds and as
security for the Company's obligations under the Reimbursement Agreement and the
other Financing Documents (as hereinafter defined), have in all respects been
duly authorized;
NOW THEREFORE, THIS MORTGAGE FURTHER WITNESSETH:
KNOW ALL MEN BY THESE PRESENTS, that the Company and the Issuer, in order
to secure payment of the principal of, premium, if any, and interest on the
Bonds, originally in the aggregate principal amount of $3,500,000 according to
the tenor and effect of the Bonds, the payment of all other sums required to be
paid hereunder and under the Indenture, the Reimbursement Agreement and the
other Financing Documents, and the performance and observance by the Issuer and
the Company of all of the covenants, agreements, representations and warranties
herein and in the Indenture, and the other Financing Documents, do hereby
covenant and agree as follows:
5
{PAGE}
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS. The following words and terms used in this Indenture
shall have the respective meanings set forth below unless the context or use
indicates another or different meaning or intent:
"Accountant" means an independent certified public accountant or a firm of
independent certified public accountants selected by the Company and acceptable
to the Bank.
"Act" means Title 1 of Article 18-A of the General Municipal Law of the
State, as amended from time to time, together with Chapter 862 of the Laws of
1971 of the State, as amended from time to time.
"Act of Bankruptcy" means the filing of a petition in bankruptcy (or the
other commencement of a bankruptcy or similar proceeding) by or against the
Bank, the Company or the Issuer under any applicable bankruptcy, insolvency,
reorganization or similar law, now or hereafter in effect.
"Additional Bonds" means any bonds issued by the Issuer pursuant to Section
214 of the Indenture.
"Additional Facility" means any additional property financed with the
proceeds of Additional Bonds.
"Additional Project" means the purposes for which any Additional Bonds may
be issued.
"Affiliate" of any specified entity means any other entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified entity and "control", when used with respect to any
specified entity, means the power to direct the management and policies of such
entity, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Alternate Credit Facility" means any direct pay letter of credit or other
credit enhancement or support facility that has terms which are the same in all
material respects (except for the term and maximum interest rate but including
coverage of accrued interest on the Bonds for 98 days if the Bonds bear interest
at the Weekly Rate or for 183 days if the Bonds bear interest at the Semi-Annual
Rate or the Long-Term Rate) as the then current Credit Facility and (A) shall
have a term of not less than one year, (except if the Long-Term Rate shall then
be in
6
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effect, the term of such Alternate Credit Facility shall not expire prior to (a)
the first par redemption date plus 15 days or (b) the first redemption date plus
15 days if the Alternate Credit Facility covers the redemption premium) (B)
shall be issued by a bank, a trust company or other financial institution or
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