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EXHIBIT 10.47
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PLACEMENT AND REMARKETING AGREEMENT
AMONG
VILLAGE OF GURNEE, ILLINOIS,
STERIGENICS INTERNATIONAL,
AND
WHEAT, FIRST SECURITIES, INC.
Dated as of
April 1, 1996
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Relating to the Issuance of:
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project),
Series 1996
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PLACEMENT REMARKETING AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this Placement and Remarketing
Agreement and is, only for convenience of reference.)
Section 1. Definitions ......................................... 2
Section 2. Appointment of Placement Agent ...................... 2
Section 3. General Obligations of Placement Agent .............. 2
Section 4. Appointment of Remarketing Agent .................... 2
Section 5. General Obligations of Remarketing Agent ............ 2
Section 6. Determination of Interest Rates ..................... 3
Section 7. Maintenance of Registration; Records ................ 3
Section 8. Manner of Offer and Sale ............................ 3
section 9. Denominations; Conditions to Placement and
Remarketing ......................................... 5
Section 10. Wheat Not Obligated to Advance Own Funds; No
Liability for Inability to Place or Remarket Bonds .. 9
Section 11. Private Placement Memorandum; Rating and Blue
Sky Qualification ................................... 9
Section 12. Representations and Warranties of Wheat ............. 11
Section 13. Representations, Warranties, Covenants and
Agreements of the Company ........................... 11
Section 14. Representations of the Issuer ....................... 13
Section 15. Payment of Fees ..................................... 14
Section 16. Resignation and Removal ............................. 15
Section 17. Termination ......................................... 15
Section 18. Nature of Wheat's Obligations ....................... 15
Section 19. Other Transactions by Wheat ......................... 16
Section 20. Notices ............................................. 16
Section 21 Survival of Representations and Warranties .......... 16
Section 22. Consultation with Experts ........................... 16
Section 23. Liability of Wheat .................................. 16
Section 24. Officials of Company Not Liable ..................... 16
Section 25. Indemnification ..................................... 17
Section 26. Severability ........................................ 18
Section 27. Assignment; Successors and Assigns .................. 18
Section 28. Amendments .......................................... 19
Section 29. Applicable Law ...................................... 19
Section 30. Counterparts ........................................ 19
Section 31. Headings ............................................ 19
EXHIBIT A SUPPLEMENTAL OPINION OF BOND COUNSEL
EXHIBIT B BANKRUPTCY PREFERENCE OPINION OF
PLACEMENT AGENT COUNSEL
EXHIBIT C OPINION OF COUNSEL TO THE ISSUER
EXHIBIT D OPINION OF COUNSEL TO THE COMPANY
EXHIBIT E OPINION OF COUNSEL TO THE PLACEMENT AGENT
EXHIBIT F OPINION OF COUNSEL TO THE CREDIT PROVIDER
EXHIBIT G OPINION OF COUNSEL TO THE CONFIRMING BANK
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PLACEMENT AND REMARKETING AGREEMENT
This PLACEMENT AND REMARKETING AGREEMENT (this "Agreement") is made and
entered into as of April 1, 1996, among the VILLAGE OF GURNEE, ILLINOIS, a
Municipal corporation and a body politic and corporate of the State of Illinois
(the "Issuer"), STERIGENICS INTERNATIONAL, a California Corporation (the
"Company"), and WHEAT, FIRST SECURITIES, INC., a Virginia corporation, as the
placement Agent and as the Remarketing Agent ("Wheat," the "Placement Agent" or
the "Remarketing Agent," as applicable);
PREAMBLES
WHEREAS, the Issuer has authorized the issuance and sale of its
Industrial Development Revenue Bonds (SteriGenics International Project), Series
1996, in the aggregate principal amount of $7,750,000 the "Bonds"), pursuant to
the provisions of an Indenture of Trust dated as of April 1, 1996 (the
"Indenture," between the Issuer and Bank One, Columbus, N.A., as trustee (the
"Trustee"), the proceeds of which will be loaned by the Issuer to the Company
pursuant to the provisions of a Loan Agreement dated as of April 1, 1996 (the
"Loan Agreement"), such loan to be evidenced by the company's promissory note in
the aggregate principal amount of $7,750,000 (the "Note"), and will be used to
provide financing for a part of the cost of the acquisition, construction,
equipping and installation of a manufacturing facility located in the Village of
Gurnee, Lake County, Illinois to be owned and operated by the Company;
WHEREAS, the payment when due of the principal of, interest on and
Purchase Price (as hereinafter defined) of the Bonds will be secured initially,
to the extent provided therein, by a letter of credit in the initial stated
amount of $7,880,000 (the "Letter of Credit" and, together with any Alternate
Credit Facility, the "Credit Facility") dated the date of issuance and delivery
of the Bonds (the "Date of Issuance") and issued by Comerica Bank-California
(together with any issuer of an Alternate Credit Facility, the "Credit
Provider") and confirmed by Comerica Bank, a Michigan banking corporation (the
"Confirming Bank");
WHEREAS, the Bonds are more fully described in the Preliminary Private
Placement Memorandum dated April 15, 1996 (the "Preliminary Private Placement
Memorandum") and the Private Placement Memorandum dated April 19, 1996 (together
with the Preliminary Private Placement Memorandum, the "Private Placement
Memorandum") prepared in connection with the initial placement of the Bonds on
the Date of Issuance;
WHEREAS, the Company and the Issuer have requested that Wheat act as
the Placement Agent to locate the initial purchasers of the Bonds on the Date of
Issuance;
WHEREAS, the Bonds, once initially placed on the Date of Issuance, are
subject to both optional and mandatory tender for purchase by the owners thereof
under the circumstances set forth in the Indenture;
WHEREAS, the Indenture and this Agreement provide for the remarketing
of the Bonds in certain circumstances when so tendered for purchase from time to
time; and
WHEREAS, the Company and the Issuer have requested that Wheat act as
their agent to effect such remarketing and to perform certain other services as
contemplated by the Indenture and this Agreement, and the execution of this
Agreement will assist the Company and the Issuer in carrying out the purposes
for which the Bonds were issued;
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NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS. Capitalized terms used herein but not defined
herein shall have the same meaning as set forth in the Indenture.
Section 2. APPOINTMENT OF PLACEMENT AGENT. Wheat is hereby appointed,
and subject to the ,terms and conditions contained in this Agreement, Wheat
accepts such appointment, as exclusive placement Agent for the initial offering,
issuance and sale of the Bonds on the Date of Issuance.
Section 3. GENERAL OBLIGATIONS OF PLACEMENT AGENT.
(a) As agent for the Company and the Issuer, the Placement
Agent will arrange for the purchase of $7,750,000 aggregate principal
amount of the Bonds on the Date of Issuance by Qualifying Investors (as
hereinafter defined) at a price equal to 100% of the principal amount
thereof, shall collect and deliver to the Trustee the purchase price so
paid therefor in immediately available funds, and, if the Bonds are not
to be held in book-entry only form, shall deliver to the Trustee a list
of all the initial purchasers of such Bonds, including the name,
address and taxpayer or other identifying number of, and the principal
amount of Bonds purchased by each such purchaser.
(b) Purchasers shall be required to deposit the purchase price
of Bonds with the Placement Agent on or before the Date of Issuance for
transfer by the Placement Agent to the Trustee on the Date of Issuance.
(c) The Placement Agent agrees that on the Date of Issuance it
will transfer to the Trustee, for the account of the Company, the
purchase price of the Bonds in immediately available funds, but only to
the extent that each purchaser has deposited the purchase price of the
Bonds to be purchased by such purchaser with the Placement Agent. If
any purchaser does not deposit with the Placement Agent the purchase
price of the Bonds to be purchased by such purchaser or otherwise
refuses to purchase the Bonds to be purchased by such purchaser, the
Placement Agent will use its best efforts to arrange for a substitute
purchaser for such Bonds on the terms set forth in this Section and in
Section 8.
Section 4. APPOINTMENT OF REMARKETING AGENT.
(a) Pursuant to the Indenture and this Agreement, Wheat is
appointed, and subject to the terms and conditions contained in the
Indenture and this Agreement, Wheat hereby accepts such appointment, as
exclusive Remarketing Agent in connection with offering and selling the
Bonds from time to time in the secondary market subsequent to their
initial offering, issuance and sale on the Date of Issuance.
(b) The Company and the Issuer agree that, unless this
Agreement has been previously terminated pursuant to the terms hereof
and subject to Section 27(b) below, the Remarketing Agent shall act as
the exclusive Remarketing Agent for the Company and the Issuer with
respect to the offer and sale of the Bonds in the secondary market on
the terms and conditions contained in this Agreement and in the
Indenture at all times.
Section 5. GENERAL OBLIGATIONS OF REMARKETING AGENT. The Remarketing
Agent, as agent for the Company and the Issuer and not as principal, undertakes
to use its best efforts to remarket to Qualifying Investors on the applicable
Purchase Date in accordance with Section 3.05 of the Indenture
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all Bonds that have been property tendered for purchase and to perform all other
obligations and duties Remarketing Agent provided for in the Indenture subject
to the terms and conditions hereof and thereof. If the proceeds from remarketing
are insufficient to purchase such Bonds on the Purchase Date, remarketing Agent
will thereafter continue to use its best efforts to remarket any such Bonds
which have been purchased with a draw on the Credit Facility and which are held
for the account of the Company, subject to the pledge of the Credit Provider,
after the Purchase Date, subject to the terms and company conditions of the
Indenture and this Agreement.
Section 6. DETERMINATION OF INTEREST RATES. The Placement Agent shall
determine the initial interest rate, applicable to the Bonds from the Date of
Issuance to and including April 23, 1996 and thereafter shall determine the
Variable Rate on the Bonds and the Term Rate on the Bonds in accordance with,
and shall provide notice thereof to the parties, in the manner and at the times
set forth in Section 03(b) of the Indenture.
Section 7. MAINTENANCE OF REGISTRATION, RECORDS. Wheat (a) shall
maintain its registration as broker-dealer and a municipal securities dealer
with the Securities and Exchange Commission (the "SEC") under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and its qualification as a
member of the National Association of Securities Dealers, Inc. (the "NASD"), (b)
if the Bonds are held in book-entry only form, shall advise the Registrar and
Paying Agent of the name, address and taxpayer or other identifying number of,
and the principal amount of Bonds purchased by, each purchaser whom it has sold
Bonds pursuant to the provisions of the Indenture and this Agreement, (c) shall
hold all moneys delivered to it under this Agreement or under the Indenture for
the purchase of Bonds in trust or the benefit of the person who shall have so
delivered such moneys until the applicable securities depository, if the Bonds
are then held in book-entry only form, or the Registrar and Paying Agent, if the
Bonds are not then held in book-entry only form, reflects the ownership of such
Bonds on the registration books maintained for that purpose and thereupon
transfer such moneys (i) to the Trustee in the case of each initial placement of
Bonds or (ii) to the prior owner of the Bonds or to the Credit Provider to
reimburse it for any draw on the Credit Facility to purchase such Bonds, as
appropriate, in the case of any remarketing of the Bonds, and (d) shall keep
such records of purchases and sales of the Bonds and make and deliver such
confirmations relating thereto, as shall be consistent with prudent and
customary practice in the municipal securities industry.
Section 8. MANNER OF OFFER AND SALE.
(a) Prior to the first Conversion Date, Wheat, agrees:
(i) to offer and sell the Bonds at all times in
compliance with the exemptions set forth in the SEC's Rule
15c2-12(c);
(ii) not to offer or sell Bonds by means of any form
of general solicitation or general advertising, including but
not limited to, the following:
(A) any advertisement, article, notice or
other communication published in any newspaper,
magazine or similar media or broadcast over
television or radio; and
(B) any seminar or meeting whose attendees
have been invited by any general solicitation or
general advertising;
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(iii) not to offer or sell Bonds to any person unless
immediately prior to making such sale Wheat, after making
reasonable inquiry, has reasonable grounds to believe and does
believe:
(A) that such person is a bank, savings and
loan association, financial institution, corporation,
pension and profit sharing account, business,
partnership, trust or substantial individual
investor, accustomed to dealings in the money-market
and is capable in its own sources of evaluating the
merits of investing in obligations comparable to the
Bonds (based on its own sources, obtaining copies of
the Indenture, the Loan Agreement and the Credit
Facility and the limited information in the Private
Placement Memorandum) and to whom securities could be
sold in reliance upon the exemption afforded by
Section 3(a) (3) or Section 4(2) of the Securities
Act of 1933, as amended (the "1933 Act"), and
comparable exemptions contained in other applicable
federal and state laws (herein referred to as
"Qualifying Investors");
(B) based upon information supplied by such
person to the Placement Agent or the Remarketing
Agent, as applicable, that (1) such person is
acquiring the Bonds for its own account or as trustee
or investment advisor for an account over which it
has investment discretion for the purpose of
investment and not with a view to, or for sale in
connection with, any distribution of such Bonds nor
with any present intention of distributing or selling
such Bonds, subject to its right to tender the Bonds
for purchase pursuant to their terms and except that
the disposition of its property shall at all times be
and remain within its control and (2) such person
understands that the Bonds are not being registered
under the 1933 Act and the Bonds are being sold to
such person in a transaction that is exempt from the
registration requirements of the 1933 Act; and
(C) that all representations made and
information furnished by such person in connection
with the purchase of any Bonds are true and correct
in all material respects;
(iv) no to give any information or make any
representation in connection with the offering and sale of any
Bonds other than those contained in the Private Placement
Memorandum.
(b) The Company and the Issuer hereby approve the offering and sale of
the Bonds prior to the first Conversion Date to prospective purchasers who are
Qualifying Investors on the terms set forth in this Agreement.
(c) The Remarketing Agent, in its individual capacity, may become the
owner of or may in good faith buy, sell, own, hold or deal in the Bonds as if it
were not the Remarketing Agent.
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Section 9. DENOMINATIONS; CONDITIONS TO PLACEMENT AND REMARKETING.
(a) The Placement Agent and the Remarketing Agent, as applicable, shall
not be authorized or required to offer any Bonds under this Agreement other than
in an Authorized Denomination.
(b) The Placement Agent's obligations under this Agreement shall be
conditioned upon the performance by the Issuer and the Company of their
respective obligations to be performed hereunder and shall also be subject to
the following additional conditions:
(i) the representations and warranties of the Issuer and the
Company contained herein shall be true, complete and correct on the
date hereof and of the Date of Issuance as if made on the Date of
Issuance;
(ii) as of the Date of Issuance, (A) this Agreement, the Loan
Agreement, the Note, the Private Placement Memorandum, the Bonds, the
Indenture, and the Confirmation Letter and the Credit Facility shall be
in full force and effect and shall be in the forms previously furnished
to the Placement Agent except for such changes as may have been agreed
to by the Placement Agent, and (B) there shall be in full force and
effect such ordinances and resolutions as, in the opinion of Bond
Counsel, shall be necessary in connection with the transactions
contemplated hereby;
(iii) none of the following shall have occurred between the
date hereof and the Date of Issuance:
(A) legislation shall lave been enacted by the
Congress of the United States of America or the legislature of
the State of Illinois or shall have been reported out of
committee of either body or be pending in a committee of
either body, or shall have been recommended to the Congress of
the United States of America or otherwise endorsed for passage
(by press release, other form of notice or otherwise) by the
President of the United States, the Treasury Department of the
United States, the Internal Revenue Service or the Chairman or
ranking minority member of the Committee on Finance of the
United States Senate or the Committee on Ways and Means of the
United States House of Representatives, or legislation shall
have been proposed for consideration by either such Committee
or by the staff of the Joint Committee on Taxation of the
Congress of the United States, or legislation shall have been
favorably reported for passage to either House of the Congress
of the United States by a Committee of such House to which
such legislation has been referred for consideration, or a
decision shall have been rendered by a court of the United
States or of the State of Illinois or the United States, Tax
Court or a ruling shall have been made or a regulation or
temporary regulation shall have been proposed or made or any
other release or announcement shall have been made by the
Treasury Department of the United States or any branch thereof
or the Internal Revenue Service, with respect to federal or
the State of Illinois taxation upon revenues or other income
of the general character to be derived by the Issuer or upon
interest received on obligations of the general character of
the Bonds, which in the reasonable judgment of the Placement
Agent, materially adversely affects the market for the Bonds;
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(B) there shall exit any event or condition that, in
the reasonable judgment of the Placement Agent, either (1)
makes untrue or incorrect in any material respect as of such
time any statement or information contained in the Private
Placement Memorandum or (2) is not reflected in the Private
Placement Memorandum but should be reflected therein in order
to make the statements and information contained therein not
misleading;
(C) in the reasonable judgment of the Placement
Agent, the market price or marketability of the Bonds or the
ability to enforce contracts for the sale of Bonds shall have
been materially adversely affected by an amendment of or
supplement to the Private Placement Memorandum,
notwithstanding the Placement Agent's approval of such
amendment or supplement prior to its distribution;
(D) there shall have occurred any outbreak of
hostilities, escalation of existing hostilities, or other
national or international calamity or crisis, the effect of
such outbreak, escalation, calamity or crisis on the financial
markets of the United States being such as, in the reasonable
judgment of the Placement Agent, materially adversely affects
the market for the Bonds;
(E) there shall be in force a general suspension of
trading on the New York Stork Exchange or minimum or maximum
prices for trading shall have been fixed and be in force, or
maximum ranges for prices for securities shall have been
requited and be in force on the New York Stock Exchange,
whether by virtue of a determination by the New York Stock
Exchange or by order of the SEC or any other governmental
authority having jurisdiction;
(F) a general banking moratorium shall have been
established by either federal, Illinois, Michigan, California
or New York authorities or any devaluation of the dollar shall
have been proposed or effected by any governmental authority
of the United States;
(G) there shall be any material adverse change in the
affairs of the Issuer or the Company that, in the reasonable
judgment of the Placement Agent, affects materially and
adversely the market price or the marketability of the Bonds;
(H) there shall be any material adverse change in the
financial position of the Credit Provider or the Confirming
Bank that, in the reasonable judgment of the Placement Agent,
affects materially and adversely the market price or the
marketability of the Bonds;
(I) there shall be established any new material
restriction on transactions in securities (including the
imposition of any limitation on interest rates) or the
placement of the Bonds by the Placement Agent as contemplated
by this Agreement;
(J) there shall occur a default with respect to the
debt obligations of or the institution of proceedings under
bankruptcy laws by or against any state of the United States
or agency or instrumentality thereof or any municipality
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located in the United States or agency or instrumentality
thereof that, in the reasonable judgment of the Placement
Agent, affects materially and adversely the market price or
marketability of the Bonds; or
(K) any legislation shall be enacted. or proposed,
any decision of any federal or state court or any ruling or
regulation (final, temporary or proposed) of the SEC or other
governmental agency shall have been made or issued that would
(1) make the Bonds or any securities of the Issuer or of any
similar body subject to the registration requirements of the
1933 Act, or (2) require the qualification of an indenture
with respect to the Bonds or any such securities under the
Trust Indenture Act of 1939, as amended;
(iv) at or prior to the Date of Issuance, the Placement Agent shall
receive the following documents, in each case satisfactory in form and substance
to the Placement Agent and its counsel:
(A) the unqualified approving opinion, dated as of
the Date of Issuance of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, as bond counsel
("Bond Counsel"), substantially in the form attached to the
Private Placement Memorandum as Appendix D thereto,
accompanied by a supplemental opinion of Bond Counsel, dated
as of the Date of Issuance, substantially in the form attached
hereto as Exhibit A;
(B) the opinion of counsel to the Issuer, dated as of
the Date of Issuance, substantially in the form attached
hereto as Exhibit C
(C) the opinion of counsel to the Company, dated as
of the Date of Issuance, substantially in the form attached
hereto as Exhibit D;
(D) the opinion of Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
L.L.P., counsel to the Placement Agent, dated as of the Date
of Issuance, substantially in the form attached hereto as
Exhibit E accompanied by a bankruptcy preference opinion of
counsel to the Placement Agent, dated as of the Date of
Issuance, substantially in the form attached hereto as Exhibit
B;
(E) the opinion of counsel to the Credit Provider,
dated as of the Date of Issuance, substantially in the form
attached hereto as Exhibit F;
(F) the opinion of counsel to the Confirming Bank,
dated as of the Date of Issuance, substantially in the form
attached hereto as Exhibit G;
(G) a certificate or certificates, dated as of the
Date of Issuance, signed by an authorized officer of the
Issuer and in form and substance satisfactory to the Placement
Agent, to the effect that the representations and warranties
of the Issuer contained in this Agreement are true and correct
in all material respects as of the Date of Issuance and that
the Issuer has performed its obligations under this Agreement;
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(H) a certificate of the President of the Company, or
such other officer as is acceptable to the Placement Agent,
dated as of the Date of Issuance, in form and substance
satisfactory to the Placement Agent, to the effect that the
representations and warranties of the Company contained in
this Agreement are true and correct in all material respects
as of the Date of issuance and that the Company has performed
its obligations under this Agreement;
(I) a certificate of the Secretary of the Company,
dated as of the Date of Issuance, in form and substance
satisfactory to the Placement Agent and its counsel,
certifying (1) that attached thereto is a copy of the articles
of incorporation of the Company, and all amendments thereto,
certified as of a recent date by the Secretary of State of the
State of California, and that such documents have not been
amended since such date; (2) that attached thereto is a true
and complete copy of the Bylaws of the Company, as in affect
on the date of such certification, (3) that attached thereto
is a true and complete copy of the resolutions of the Board of
Directors of the Company authorizing the execution and
delivery of all documents and all transactions contemplated by
the Private Placement Memorandum and this Agreement and (4)
that attached thereto are certificates issued as of a recent
date by the Secretary of State of the State of California and
the State of Illinois, respectively, as to the good standing
and authorization of the Company to do business in each of
those jurisdictions;
(J) a certificate dated as of the Date of Issuance of
an authorized officer of each of the Credit Provider and the
Confirming Bank satisfactory to the Placement Agent and its
counsel and in form and substance satisfactory to the
Placement Agent, to the effect that no event affecting the
Credit Provider, the Confirming Bank or their operations has
occurred that either (1) makes untrue or incorrect in any
material respect as of the Date of Issuance any statement or
information contained in the Private Placement Memorandum or
(2) is not reflected in the Private Placement Memorandum but
should be reflected therein in order to make the statements
and information therein not misleading;
(K) copies of the documents required to be filed with
the Trustee prior to delivery of the Bonds pursuant to Section
2.09 of the Indenture;
(L) copies of the Private Placement Memorandum,
executed on behalf of the Company by the President of the
Company (or such other authorized officer as the Placement
Agent shall have approved) and on behalf of the Issuer by an
authorized officer of the Issuer;
(M) evidence of the ratings of A and A-1 issued by
Standard & Poor's, with respect to the Bonds; and
(N) such additional legal opinions, consents,
certificates, proceedings, instruments and other documents as
the Placement Agent, counsel for the Placement Agent, or Bond
Counsel may reasonably request to evidence compliance by the
Issuer, the Company, the Credit Provider and the Confirming
Bank with legal requirements, the truth and accuracy, as of
the Date of Issuance, of the representations of the Issuer and
the Company contained in this Agreement and the due
performance or satisfaction by the Issuer and the Company at
or
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prior to such time of all agreements then to be performed and
all conditions then to be satisfied by the Issuer and the
Company;
(c) The Remarketing Agent shall not be required to remarket
any Bonds under this Agreement it after the Date of Issuance;
(i) Any representation or warranty of the Company or
the Issuer made or incorporated by referenced in this
Agreement shall prove to have been untrue, incorrect
incomplete or misleading in any material respect;
(ii) Any fee, reimbursement, indemnity or other
amount payable to the Remarketing Agent under this Agreement
is not paid when due, or a default by the Company or the
Issuer in the observance or performance of any other covenant
or agreement contained in this Agreement shall have occurred
and be continuing;
(iii) Any event or condition, set forth in Section
9(b)(iii) shall have occurred; or
(iv) The Company and the Remarketing Agent fail to
agree upon a fee to be paid to the Remarketing Agent in
connection with the initial conversion of the interest rate
determination method on the Bonds from a Variable Rate to a
Term Rate no later than 45 days prior to the first Conversion
Date.
(d) No Bond redeemed pursuant to Article IV of the Indenture
shall be referenced after such redemption.
Section 10. WHEAT NOT OBLIGATED TO ADVANCE OWN FUNDS; NO LIABILITY FOR
INABILITY TO PLACE OR REMARKET BONDS.
(a) The Company and the Issuer acknowledge and agree that
Wheat, as the Placement Agent and the Remarketing Agent, as applicable,
(i) is only acting under this Agreement as the agent of the Company and
the Issuer, and not as a principal, insofar as the purchase of Bonds is
concerned, (ii) is only obligated to use its best efforts to place or
remarket any Bonds, as applicable and (iii) is in no way obligated
under this Agreement to advance its own funds to purchase the Bonds in
the event any purchaser fails to pay the purchase price of any Bonds to
be purchased by it or in the event Wheat, as the Placement Agent or the
Remarketing Agent, as applicable, is unable to arrange for the purchase
of any Bonds.
(b) The Company and the Issuer further acknowledge and agree
that the Remarketing Agent shall in no respect be deemed (i) to be
warranting that it will be able to remarket the Bonds on any particular
Purchase Date or (ii) to be assuming any liability or undertaking any
obligation of any nature in the event such remarketing shall not be
consummated on any particular Purchase Date.
Section 11. Private Placement Memorandum; Rating and Blue Sky
Qualification.
(a) The Company has prepared or caused to be prepared the
Private Placement Memorandum, in form and substance satisfactory to the
Placement Agent, in connection with the initial offering and sale of
Bonds on the Date of Issuance, and the Company agrees at its cost to
amend or supplement the Private Placement Memorandum with Wheat's
assistance as the
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Placement Agent or the Remarketing Agent as applicable, whenever requested by
Wheat, as the Placement Agent or the Remarketing Agent, as applicable, when, in
the reasonable judgment of the Placement Agent or the Remarketing Agent, as
applicable, such amendment or supplementation is required in order to offer and
sell the Bonds in accordance with federal and any applicable state securities
laws. The Company agrees to notify Wheat, as the Placement Agent or the
Remarketing Agent, as applicable, in writing if an event shall have occurred a
result of which, in the judgment of the Company or its counsel, the Private
Placement Memorandum includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstance under which they were made,
not misleading, or if it is necessary to amend or supplement the Private
Placement Memorandum to comply with any law, and forthwith to prepare an
appropriate amendment or supplement so that the statements in the Private
Placement Memorandum as so amended or supplemented will not, in the light of the
circumstances under which they were made, be misleading, or so that the Private
Placement Memorandum will comply with law, as the case may be.
(b) The Company agrees to promptly furnish, or cause to be promptly
furnished, to Wheat, upon its request, as applicable, such financial statements
and other information concerning the Company (including such certificates,
opinions of counsel and other support for such information) as Wheat, reasonably
determines is necessary or desirable in connection with the offer, placement,
remarketing and sale of the Bonds at any time and from time to time.
(c) The Company agrees to use its best efforts to furnish promptly, or
cause to be furnished promptly, to the Placement Agent or the Remarketing Agent,
as applicable, such financial and other information (including, without
limitation, credit and debt ratings) concerning the Credit Provider and the
Confirming Bank as the Placement Agent or the Remarketing Agent, as applicable,
reasonably determines is necessary or desirable in connection with the offer,
placement, remarketing and sale of the Bonds at any time and from time to time.
(d) The Company and the Issuer hereby authorize and approve of the use
and distribution of the Private Placement Memorandum (including any amendments,
modifications and supplements thereto) and all exhibits and appendices thereto
and all other documents provided by the Company and the Issuer to the Placement
Agent for use in the initial placement of the Bonds and the Remarketing Agent
for use in the subsequent remarketing of the Bonds. The Company agrees to cause
the Placement Agent and the Remarketing Agent to be furnished with as many
copies of the Private Placement Memorandum and all exhibits and appendices
thereto and documents incorporated by reference therein as the Placement Agent
and the Remarketing Agent may reasonably request and to furnish the Placement
Agent and the Remarketing Agent, with such other information as the Company
deems necessary or as the Remarketing Agent may reasonably request from time to
time in connection with the remarketing of the Bonds in accordance with the
terms of this Agreement.
(e) The Company will cooperate fully with Wheat and pay all reasonable
costs and expenses incurred by Wheat (i) in obtaining, with the prior written
consent of the Company, and maintaining a rating on the Bonds by one or more
national rating agencies for so long as such a rating or ratings are reasonably
deemed necessary by Wheat, as the Remarketing Agent, in order to remarket the
Bonds at the lowest interest cost possible to the Company and (ii) in the
qualification of the Bonds for offering and sale and the determination of the
eligibility of the Bonds for investment under the laws of such jurisdictions as
Wheat, as the Remarketing Agent shall designate, and the Company will use its
best efforts to continue any such qualification in
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effect so long as required for the remarketing of the Bonds by Wheat,
as the Remarketing Agent, provided that the Company shall not be
required to take any action which would subject it to general service
of process or to qualify as a foreign corporation in any jurisdiction
where it is not now so subject.
(f) In the event that the Remarketing Agent, in connection
with the remarketing of the Bonds, is ever required to comply with Rule
15c2-12 or a. comparable rule of the SEC in connection with the Bonds,
the Company and the Issuer agree to cooperate (at the sole cost and
expense of the Company) with the Remarketing Agent so as to enable the
Remarketing Agent to comply with the then applicable requirements of
Rule 15c2-12 or such comparable rule.
Section 12. REPRESENTATIONS AND WARRANTIES OF WHEAT. Wheat, as the
Placement Agent and Remarketing Agent, by its acceptance hereof, represents and
warrants to the Company and the Issuer as follows:
(a) It is registered as a broker dealer and as a municipal
securities dealer with the SEC under Section 15 of the 1934 Act, is
qualified as a member of the NASD, and is authorized by law to perform
all the duties imposed upon it by this Agreement;
(b) It has full power and authority to take all actions
required or permitted to be taken by it by or under, and to perform and
observe the covenants and agreements on its part contained in, this
Agreement; and
(c) The execution, delivery and performance of this Agreement
by it have been duly authorized, no further corporate action by it is
required therefor, and this Agreement represents its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws, judicial
decisions or principles of equity relating to or affecting the
enforcement of creditors' rights or contractual obligations generally.
Section 13. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY. The Company represents and warrants to, and covenants and agrees
with the Issuer, the Placement Agent and the Remarketing Agent as follows:
(a) Each of the Company's representations and warranties
contained in the Loan Agreement is true and correct on and as of the
date hereof and are hereby made to the Placement Agent and the
Remarketing Agent as if set forth herein;
(b) The Company has full right, power and authority to take
all actions required or permitted to be taken by the Company by or
under, and to perform and observe the covenants and agreements on its
part contained in, this Agreement;
(c) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws, judicial decisions or principles of equity relating to or
affecting the enforcement of creditors' rights generally;
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(d) The execution and delivery of this Agreement, and compliance with
the terms, conditions or provisions hereof, do not upon the date of execution
and delivery hereof and will not violate any existing law or any existing
regulation, order, writ, injunction decree of any court or governmental
instrumentality applicable to the Company, or result in a breach of any of the
Terms, conditions or provisions of, or constitute a default under, any mortgage,
indenture, agreement or instrument to which the Company is a part or by which it
or any of its properties is bound;
(e) There is no action, suit, proceeding or inquiry, or, to the best
knowledge and information of the Company, any investigation, at law or in
equity, or before or by any court, public board or body or other governmental
authority, pending or, to the best knowledge and information of the Company,
threatened against or affecting the Company wherein an unfavorable decision,
ruling or finding could materially adversely affect the condition (financial or
otherwise) of the Company, or the transactions contemplated by this Agreement or
the Private Placement Memorandum, or that in any manner raises any question
concerning the legality, validity or enforceability of this Agreement, the
Bonds, the Indenture or the Loan Agreement, nor to the best knowledge and belief
of the Company is there any basis therefor;
(f) The information relating to the Company contained or incorporated
by reference in the Private Placement Memorandum or otherwise supplied by the
Company in writing for inclusion therein does not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements made therein, in light of the circumstances under which they were
made and considering the purpose for which such information was so supplied or
included, not misleading;
(g) The Company is not in default in the payment of the principal of or
interest on any of its indebtedness for borrowed money or under any instrument
under or subject to which any indebtedness has been incurred and no event has
occurred and is continuing that, with the lapse of time or the giving of notice
or both, would constitute an event of default under any such instrument;
(h) The Company will not take or omit to take any action, which action
or omission might in any way result in the inclusion of interest on the Bonds in
the gross income of the owners thereof for federal income tax purposes;
(i) The Company agrees to make available to Wheat, without cost,
sufficient copies of any relevant documents pertaining to the Company as
reasonably may be required from time to time for the prompt and efficient
performance by Wheat as the Placement Agent or the Remarketing Agent, as
applicable, of its obligations under this Agreement, including its obligations
in connection with the remarketing of the Bonds; and
(j) Except as and to the extent the Placement Agent or the Remarketing
Agent, as applicable, receives express prior written notice in reasonable detail
to the contrary, none of the foregoing representations, warranties or
information is or will be false or misleading in any material respect on (or as
of me date made, or on or as of the Date of Issuance or any Purchase Date.
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Section 14. REPRESENTATIONS OF THE ISSUER. The Issuer
represents to the Company, the Placement Agent and the Remarketing
Agent:
(a) Each of the representations of the Issuer contained in the
Loan Agreement and in the Indenture are true and correct on and as of
the date hereof and are hereby made to the Placement Agent and the
Remarketing Agent, as if set forth this Agreement;
(b) All actions required on the part of the Issuer for the
issuance of the Bonds and the execution and delivery of, and the
performance of its obligations under, this Agreement and under the Loan
Agreement, the Indenture and the Bonds have been duly and effectively
taken; this Agreement has been duly authorized, executed and delivered
and, assuming the due authorization, execution and delivery by the
other parties thereto is a valid, binding and enforceable agreement of
the Issuer, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally; and the Bonds have been duly authorized,
executed, issued and delivered, and in the hands of the owners thereof
constitute, legal, valid and binding special limited obligations of the
Issuer, enforceable against the Issuer in accordance with their
respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally;
(c) To the best knowledge of the Issuer, there is no action,
suit, proceeding or investigation pending before or by any court, board
or body or other governmental authority, or threatened against or
affecting the Issuer, or any basis therefor, to restrain or enjoin the
issuance or delivery of the Bonds or the collection, application or
pledge of the revenues pledged under the Indenture for the Bonds or in
any way contesting or affecting the authority for the issuance of the
Bonds or the validity or enforceability of the Bonds, the Loan
Agreement, the Indenture or this Agreement or the power of the Issuer
to execute and deliver such documents or to consummate the transactions
contemplated therein or the existence or powers of the Issuer or the
titles of its officers to their respective offices, or wherein an
unfavorable decision, ruling or finding would materially adversely
affect the transactions contemplated hereby and in the Indenture or the
Loan Agreement, or which in any way would materially adversely affect
the validity of the Bonds, the Indenture, the resolutions adopted in
connection with the issuance of the Bonds, the Loan Agreement or this
Agreement, nor to the best knowledge and belief of the Issuer is there
any basis therefor;
(d) The execution, delivery and performance by the Issuer of
this Agreement, the Loan Agreement, the Indenture and the Bonds do not
and will not violate any order, injunction, ruling or decree by which
the Issuer is bound, and do not and will not constitute a breach of or
a default under any agreement, indenture, mortgage, lease, note or
other obligation, instrument or arrangement to which the Issuer is a
party or by which the Issuer or any of its property is bound, or
contravene or constitute a violation of any federal or State
constitutional or statutory provision, rule or regulation to which the
Issuer or any of its property is subject, and no approval or other
action by, or filing or registration with, any governmental authority
or agency is required in connection therewith that has not been
obtained or accomplished, other than any filings, registrations or
consents that may be required pursuant to any federal or State
securities laws; and
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(e) The information contained under the caption "THE ISSUER"
and in the first paragraph under the caption "LITIGATION" contained in
the Private Placement Memorandum does not contain any untrue statement
of a material fact and does not omit to state a material fact necessary
in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
Section 15. PAYMENT OF FEES.
(a) Upon receipt by the Trustee of payment in full of the
purchase price of the Bonds on the Date of Issuance, the Company shall
pay the Placement Agent a placement fee of 0.75% of the original
aggregate principal amount of the Bonds for its services initially
placing the Bonds.
(b) The Company shall pay Wheat, as the Remarketing Agent, in
advance on the Date of Issuance a remarketing and operations fee for
services to be rendered by the Remarketing Agent under the Indenture
and under this Agreement for the Bonds for the period from the Date of
Issuance through the date which is the first year anniversary of the
Date of Issuance, equal to 0.15% per annum of the aggregate principal
amount of the Bonds placed on the Date of Issuance. Thereafter, so long
as Wheat continues to serve as the Remarketing Agent under this
Agreement, the Company shall pay Wheat in advance on each anniversary
of the Date of Issuance for services to be rendered by it under the
Indenture and hereunder as the Remarketing Agent, a continuing
remarketing and operations fee equal to 0.15% per annum of the
principal amount of the Bonds outstanding on the date such remarketing
fee is due (calculated on the basis of the actual number of days within
the period for which such fee has been prepaid over a 365 or 366-day
year, as appropriate). If the aggregate principal amount of Bonds
outstanding should decrease or if the Remarketing Agent, should fail to
remarket Bonds or resign or be removed during any period for which the
remarketing and operations fee has been prepaid, an appropriate
pro-rata adjustment, based on the principal amount of Bonds outstanding
for each day during the period that Wheat was serving as Remarketing
Agent hereunder shall be made. If, pursuant to the preceding sentence,
the Company is entitled to a reimbursement, such amount shall be
reimbursed to the Company (i) by credit against the next annual fee due
Wheat thereunder so long as it continues to serve as the Remarketing
Agent or (ii) in the event Wheat shall resign or be removed, by check
in the amount of the pro-rata adjustment due commencing with the date
of the resignation or removal of Wheat, if earlier, and shall be paid
by Wheat within 60 days of such resignation date. Wheat shall notify
the Company in writing of the amount of the remarketing and operations
fee, as calculated by Wheat, at least ten Business Days prior to the
date such fee payment is due.
(c) The Company also shall pay the Remarketing Agent all
reasonable out-of-pocket costs and expenses of Wheat to the extent
incurred in connection with the issuance, placement and remarketing of
the Bonds and the preparation, execution and delivery of this
Agreement, the Preliminary Private Placement Memorandum, the Private
Placement Memorandum, the Indenture, the Loan Agreement, the Bonds and
any other documents contemplated to be delivered in connection herewith
or therewith.
(d) The Company also shall pay all other reasonable fees and
expenses incurred in connection with the issuance, placement and
remarketing of the Bonds and the preparation, execution and delivery of
this Agreement, the Preliminary Private Placement Memorandum, the
Private Placement Memorandum, the Indenture, the Loan Agreement, the
Bonds and any other it document that may be delivered in connection
herewith or therewith, including, but not limited
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to the reasonable fees and expenses of Bond Counsel and counsel to the
Issuer, counsel for the Placement Agent and the Remarketing Agent,
counsel for the Credit Provider, counsel for the Confirming Bank,
counsel for the Company and counsel for the Trustee, the fees and
expenses of the Issuer, the Credit Provider, the Confirming Bank and
the Trustee, the cost of photocopying and delivery of the Bonds, the
cost of printing the Preliminary Private Placement Memorandum and the
Private Placement Memorandum, and all rating agency fees, if any.
(e) For the services of the Remarketing Agent in connection
with the remarketing of Bonds upon the adjustment of the interest rate
determination method to a Term Rate, the Company shall pay to the
Remarketing Agent a mutually agreed upon fee. In the event the Company
and the Remarketing Agent are unable to agree upon a fee, the
Remarketing Agent shall be under no obligation to use its reasonable
efforts to remarketing the Bonds upon such conversion to a Term Rate.
(f) All fees and expenses described in this Section, to the
extent they are identifiable and billed, shall be paid on the Date of
Issuance, and the first Conversion Date, and the remainder shall be
paid promptly upon receipt of statements therefor. The obligations of
the Company under this Section shall survive the issuance and maturity
of the Bonds and any termination of this Agreement
Section 16. RESIGNATION AND REMOVAL. Wheat may resign and be discharged
of its duties and obligations as Remarketing Agent under this Agreement and
under the Indenture and may be removed all of its duties and obligations as
Remarketing Agent hereunder and under the Indenture in the manner with the prior
notice specified in Section 8.23 of the Indenture.
Section 17. TERMINATION. This Agreement shall terminate (except as to
rights to any fees payable and rights to indemnity or contributions, which shall
survive any terminations on the earliest of (i) the removal or resignation of
Wheat pursuant to Section 16, (ii) the first Conversion Date, (iii) the date of
final maturity of the Bonds, (iv) the date of redemption of the Bonds in full or
(v) any Credit Expiration Date.
Section 18. NATURE OF WHEAT'S OBLIGATIONS. Without limiting the
foregoing, Wheat is hereby expressly authorized and directed to honor its
obligations under and in compliance with the terms of this Agreement without
regard to, and without any duty on its part to inquire into, the existence of
any disputes or controversies between the Issuer, the Company, the Trustee, the
Credit Provider, the Confirming Bank, the holders of the Bonds or any other
person or the respective rights, duties or liabilities of any of them, or
whether any facts or occurrences represented in any of the documents presented
under this Agreement or the Indenture or the Loan Agreement is true and correct.
The duties and obligations of wheat under this Agreement are only those
expressly set forth in this Agreement and in the Indenture, and no implied
covenants or obligations shall be read into this Agreement against Wheat.
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Section 19. OTHER TRANSACTIONS BY WHEAT. Wheat in its individual
capacity, either as principal or agent, may buy, sell, own and hold any Bonds
and may do anything any other owner of Bonds may in any action which any owner
of Bonds may be entitled to take to the same extent and as if it did not act in
any capacity under this Agreement. Wheat, either as principal agent, or also may
engage in or be interested in any financial or other transaction with the
Issuer, the Credit Provider or the Confirmation Bank and may act as fiduciary or
agent for any committee or body of owners of Bonds or the owners of any other
obligations of the Issuer, the Company, the Credit Provider or the Confirmation
Bank as freely as if it did not act in any capacity under this Agreement.
Section 20. NOTICES. Unless otherwise provided in this Agreement, all
demands, notices, approvals, requests, consents, opinions and other
communications under this Agreement shall be given or (a) telex or telecopier at
such number as each party hereto may subsequently designate to the other or (b)
in writing, which shall be deemed to have been given when delivered in person or
by a third party or mailed by first class registered or certified mail, postage
prepaid, or by overnight delivery service to issuer, the Company, the Trustee,
the Credit Provider, the Confirming Bank, the Placement Agent Remarketing Agent
at the addresses specified in Section 13.07 of the Indenture. The Issuer, the
company, the Trustee, the Credit Provider, the Placement Agent or the
Remarketing Agent may by given hereunder, designate any further or different
numbers or addresses to which subsequent notices, approvals, requests consents,
opinions or other communications shall be sent or persons to whose attention the
same shall be directed.
Section 21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Issuer, the Company the Placement Agent
and the Remarketing Agent in this Agreement shall remain operative and in full
force and effect regardless of (a) any investigation made by or on behalf the
Placement Agent, the Remarketing Agent, the Issuer, the Credit Provider, the
Confirming Bank or the Company, (b) delivery of and any payment for any Bonds
under this Agreement or (c) termination or cancellation of this Agreement.
Section 22. CONSULTATION WITH EXPERTS. Wheat, as the Placement Agent or
the Remarketing Agent, may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faiths in accordance with the
advice of such counsel, accountants or experts.
Section 23. LIABILITY OF WHEAT. Neither Wheat, as the Placement Agent
or the Remarketing Agent, nor any of its directors, officers, agents, or
employees shall be liable for any action taken or not taken by it in connection
with this Agreement (a) with the consent or at the request of the holders of all
of the Bonds or (b) in the absence of its own gross negligence or willful
misconduct. Wheat, as the Placement Agent or the Remarketing Agent, shall not
incur any liability by acting or refraining to act in reliance upon, and may
conclusively rely as to the truth and accuracy of statements contained in, any
notices certificates or other communications under this Agreement believed by it
to be genuine or to be signed by the proper party or parties.
Section 24. OFFICIALS OF COMPANY NOT LIABLE. No covenant or agreement
contained herein shall be deemed to be the covenant or agreement of any officer,
director, agent, or employee of the Company in his or her individual capacity
and no officer, director, agent, or employee of the Company shall be liable
personally under this Agreement.
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Section 25. INDEMNIFICATION. The Company agrees to indemnify and hold
harmless the Issuer Section and any member, commissioner, trustee, officer,
director, employee or agent of the Issuer, the Placement Agent or the,
Remarketing Agent and each person, if any, who controls the Issuer, the
Placement Agent or the Remarketing Agent within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act the "Indemnified Parties") from and
against any and all losses, claims, damages, facilities expenses whatsoever
(collectively "Loss" which any of them may incur or suffer, without negligence
willful misconduct or bad faith on the part of the Placement Agent or the
Remarketing Agent, arising out of, connection with or relating to the placement
or remarketing of the Bonds, including, without limitation, any Loss caused by,
or which arises out of or relates to, any breach) by the company of its
representations (or alleged or warranties set forth in this Agreement, or any
untrue statement or misleading statement of a material fact contained in the
Private Placement Memorandum or orated therein by reference (except statements
pertaining to the Credit Provider, the Confirming the Issuer, the Placement
Agent or the Remarketing Agent) or supplied by the Company in writing in
connection with the placement or remarketing of Bonds in accordance with the
terms hereof effectively, the "Disclosure Materials") or which arises out of or
relates to, any omission or alleged omission from such Disclosure Materials of
any material fact required to be stated therein or necessary in order to make
the statements contained therein, in light of the circumstances under which they
were made and consider no the purposes for which such information is so
contained or supplied, not misleading except omissions or alleged omissions
pertaining to the Issuer. This indemnity agreement is in addition to any other
liability that the Company may otherwise have.
In case any action (including any governmental investigation) shall be
brought against one or more of the Indemnified Parties hereunder and in respect
to which indemnity may be sought against the company as provided hereinabove,
the Indemnified Parties shall promptly notify the Company in writing and the
Company shall promptly assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party or Indemnified
Parties, payment of all licenses and the right to negotiate and consent to
settlement; but the omission to notify the Company as provided herein shall not
relieve the Company from any liability which it may have (i) under this Section,
so long as the Company is given the reasonable opportunity to defend such claim,
and (ii) otherwise than under this Section. Any one or more of the Indemnified
Parties 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 or Indemnified Parties unless
(i) the employment of such counsel has been specifically authorized in writing
by the Company, or (ii) the named parties to any such action (including any
impleaded parties) include both the Company and such Indemnified Party or
indemnified Parties and representation of both the Company and such Indemnified
Party or Indemnified parties by the: same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the Indemnified
Party or Indemnified Parties have been advised that one or more legal defenses
may be available to any or all of them which may not be available to the Company
in which case the Company shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the fees and expenses of such
counsel. The Company shall not be liable for any settlement of any such action
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff in any such action with or without
consent, the Company agrees to indemnify and hold harmless the Indemnified
Parties from and against any loss or liability by reason of such settlement or
judgment.
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section is due in accordance with
its terms but is for any reason held by a court to be unavailable from the
Company or unenforceable against the Company on grounds of policy or otherwise,
the Company and Wheat shall contribute severally to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with
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investigating or defending same) to which the Company and Wheat may be subject
in such proportionas is appropriate to reflect the relative fault of the Company
on the one hand and Wheat on the other hand, as well as any other relevant
equitable considerations provided, however that no person guilty of asudulent
misrepresentation within the meaning of Section 11(f) of the 1933 Act shall by
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution shall, promptly after
receipt of notice of or commencement of any action, suit or such party in
respect of which a claim for contribution may be made against another party
under this paragraph, notify such party from whom contribution may be sought,
but the omission so to notify such party shall not relieve the party from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise, The liabilities under this paragraph are in addition to
other liabilities that the parties may have.
The obligations under this Section shall survive the issuance and the
maturity of the Bonds and termination of this Agreement.
Section 26. SEVERABILITY. 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 provisions of any constitution,
statute, rule of public policy, or 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.
Section 27. ASSIGNMENT; SUCCESSORS AND ASSIGNS.
(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, except that Wheat may assign its
rights and obligations hereunder to an affiliate as provided in
paragraph (b) below.
(b) With prior written notice to (but without the consent of)
the Issuer, the Company, the Trustee and the Credit Provider, Wheat may
assign or transfer any or all of its rights and obligations hereunder
to any other affiliate of Wheat so long as (a) there is no change in
the fees payable pursuant to Section 15 hereof, (b) such affiliate is
registered with the SEC as a broker-dealer and a municipal securities
dealer under the 1934 Act and is qualified, and maintains such
qualification as a member of the NASD, and is otherwise permitted to
perform such obligations under all applicable federal and state banking
and securities laws, rules and regulations, and (c) Wheat provides
evidence satisfactory to the Issuer and the Company that Wheat's
assignment or transfer of its rights and obligations hereunder to such
affiliate will not adversely affect the interest rate on the Bonds. The
Issuer and the Company agree to execute any amendment or supplement
hereto as requested by Wheat to effect the assigner or transfer of
rights and obligations contemplated hereby.
(c) This Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective
successors and assigns.
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Section 28. AMENDMENTS. This Agreement may be amended only with the
consent of all of the parties hereto and the Credit Provider.
Section 29. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 30. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which together shall
constitute but one and the same instrument.
Section 31. HEADINGS. Section headings used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Issuer, the Company and Wheat (for itself and
as the Placement Agent and the Remarketing Agent) have caused this Placement and
Remarketing Agreement to be executed in its corporate name by a duly authorized
officer all as of the date first written.
VILLAGE OF GURNEE ILLINOIS
By: /s/
--------------------------------
Village President
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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[COUNTERPART SIGNATURE PAGE TO THE PLACEMENT AND REMARKETING AGREEMENT]
STERIGENICS INTERNATIONAL
By: /s/
--------------------------------
Vice President
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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[COUNTERPART SIGNATURE PAGE TO THE PLACEMENT AND REMARKETING AGREEMENT]
WHEAT, FIRST SECURITIES INC.
as Placement Agent and Remarketing Agent
By: /s/
------------------------------------
Vice President
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EXHIBIT A
[SUPPLEMENTAL OPINION OF BOND COUNSEL]
April 19,1996
Wheat, First Securities, Inc.
Richmond, Virginia
Re: $7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
Reference is made to our approving opinion delivered to you
concurrently herewith to the Bonds identified above (the "Bonds"). At your
request we have undertaken a review of certain other matters pertaining to the
Bonds. Terms not otherwise defined herein shall have the meanings ascribed to
them in the Placement and Remarketing Agreement dated as of April 1, 1996 (the
"Placement and Remarketing Agreement") among Wheat, First Securities, Inc.,
SteriGenics International (the "Company") and the Village of Gurnee, Illinois
(the "Issuer").
We are of the opinion that:
1. The Placement and Remarketing Agreement and the Tax Exemption
Certificate and Agreement dated the date hereof (the "Tax Agreement") among the
Issuer, the Company and the Trustee have been duly authorized, executed and
delivered by the Issuer and, assuming the due authorization, execution and
delivery by, and the binding effect of the Placement and Remarketing Agreement
and the Tax Agreement on, the other parties thereto, are the legal, valid and
binding obligations of the Issuer, enforceable in accordance with their terms,
except as enforceability may be limited by laws relating to bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and by
the availability of equitable remedies.
2. The Issuer has duly authorized the execution and delivery of the
Private Placement Memorandum and has duly consented to the, distribution of the
Private Placement Memorandum by the Placement Agent.
3. In reliance upon certain certificates of the Issuer, the Company and
related parties relating to the Project, the use of proceeds of the Bonds and
related matters, we are of the opinion that the offer, sale and delivery of the
Bonds do not require registration of the Bonds under the Securities Act of 1933,
as amended, and likewise do not require qualification of the Indenture under the
Trust Indenture Act of 1939, as amended. We express no opinion with respect to
the registration requirements of the Securities Act of 1933, as amended,
relating to the obligations of the Credit Provider under the Letter of Credit or
the Confirming Bank under the Confirmation Letter.
26
4. We have reviewed the statements contained in the Private Placement
Memorandum under the captions "Introductory Statement," "Financing Summary, "The
Bonds," "Optional and Mandatory Purchase of Bonds," "Redemption of Bonds," "The
Credit Facility-Drawings Under the Credit Facility,". "The Credit
Facility-Alternate Credit Facility" and in Appendix A to the Private Placement
Memorandum. In our opinion, the statements described above under the foregoing
captions of the Private Placement Memorandum, and insofar as such statements
purport to summarize the terms of the Bonds, the Indenture or the Loan
Agreement, constitute fair and accurate summaries of such matters. We have also
reviewed the statements contained in the Private Placement Memorandum under the
caption "Tax Matters" and, in our opinion, such statements constitute a fair and
accurate summary of the matters relating to the tax exemption of the Bonds.
We express no opinion relating to the Private Placement Memorandum
except for matters explicitly referenced in paragraphs 2 and 4 above,
Respectfully submitted,
-2-
27
EXHIBIT B
[BANKRUPTCY PREFERENCE OPINION OF PLACEMENT AGENT COUNSEL]
April ____, 1996
Bank One, Columbus N.A. as Trustee
Columbus Ohio
Wheat, First Securities, Inc.
Richmond, Virginia
Standard & Poor's
New York, New York
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
We have acted as bond counsel in connection with the authorization and
issuance of the $7,750,000 Village of Gurnee, Illinois Industrial Development
Revenue Bonds (SteriGenics International Project), Series 1996 (the "Bonds"), by
the Village of Gurnee, Illinois (the "Issuer").
The Bonds are being issued pursuant to an Indenture of Trust dated as
of April 1, 1996 (the Indenture") between the Issuer and Bank One, Columbus,
N.A., as trustee (the "Trustee"), The Issuer and SteriGenics International (the
"Company"), have entered into a Loan Agreement dated as of April 1, 1996 (the
"Loan Agreement"), pursuant to which the Company has agreed to make payments to
be used to pay when due the principal of, redemption premium, if any, purchase
price and interest on the Bonds, and such payments and certain other revenues
under the Loan Agreement (collectively, the "Revenues") and the rights of the
Issuer under the Loan Agreement (except certain rights to notices,
indemnification, reimbursements and administrative fees) are pledged and
assigned by the Issuer to the Trustee as security for the Bonds. The Bonds are
payable solely from the Revenues and the other sources referenced in the
Indenture.
As additional security for the Bonds, the Company has caused Comerica
Bank-California (the "Credit Provider") to deliver its letter of credit, dated
the date hereof (the "Original Credit Facility"), to the Trustee. The Original
Credit Facility permits the Trustee to draw moneys pursuant to the terms thereof
in an amount equal to the principal amount of the Bonds outstanding from time to
time plus up to 50 days accrued interest thereon at a maximum interest rate
equal to 12% per annum. The Original Credit Facility is stated to expire on
April 15, 2001, unless extended or sooner terminated in accordance with its
terms. Comerica Bank, a Michigan banking corporation (the "Confirming Bank") has
confirmed the payment of proper draws on the Credit Facility by issuing its
Confirmation Letter dated April 19, 1996 (the "Confirmation Letter"). The
Confirming Bank has covenanted to use its own funds in making
B-1
28
Bank One, Columbus N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 2
any payment under the Confirmation Letter. In the Original Credit Facility and
in the Reimbursement Agreement dated as of April 1, 1996 between the Credit
Provider and the Company (the "Reimbursement Agreement"), the Credit Provider
has covenanted to use its own funds in making any payment under the Original
Credit Facility
We have examined the Indenture, the Loan Agreement, the Original Credit
Facility, the Reimbursement Agreement, the Confirmation Letter and certain other
documents as we deemed necessary to enable us to express the opinions set forth
below. For the purposes of this opinion, we have assumed Holder of the Bonds is
an "insider" with respect to the Issuer or the Company within the meaning of
Title 11 of the United States Code (the "Bankruptcy Code").
Based on the foregoing, we are of the opinion that, under existing law:
1. In the event that the Issuer, the Company, any other person
obligated (as guarantor or otherwise to make payments on the Bonds or under the
Loan Agreement or the Reimbursement Agreement, or an "affiliate" of the Company
(as defined in 11 U.S.C. Section 101(2)) were to become a debtor under the
Bankruptcy Code, payments of principal of, Purchase Price (as defined in the
Indenture) of or interest on the Bonds from the proceeds of a drawing under the
Original Credit Facility or proceeds from payment under the Confirmation Letter
in accordance with the terms of the Indenture will not be recoverable from the
Holders of the Bonds pursuant to Section 550 of the Bankruptcy Code as avoidable
preferential payments under Section 547 of the Bankruptcy Code.
2. In the event the Issuer, the Company, any other person obligated, as
guarantor or otherwise, to make payments on the Bonds or under the Loan
Agreement or the Reimbursement Agreement, or an "affiliate" of the Company (as
defined in 11 U.S.C. Section 10 1(2)) were to become a debtor under the
Bankruptcy Code, payments of principal of, Purchase Price of or interest on the
Bonds with the moneys described in clause (ii) of the definition of "Available
Moneys" in the Indenture will not be recoverable from the Holders of the Bonds
pursuant to Section 550 of the Bankruptcy Code as avoidable preferential
payments under Section 547 of the Bankruptcy Code.
3. In the event the Issuer, the Company, any other person obligated, as
guarantor or otherwise, to make payments on the Bonds or under the Loan
Agreement or the Reimbursement Agreement, or an "affiliate" of the Company (as
defined in 11 U.S.C. Section 10 1(2)) were to become a debtor under the
Bankruptcy Code, payments of the Purchase Price of Bonds with the proceeds from
remarketing the Bonds in accordance with the terms of the Indenture, other than
proceeds of remarketing to an entity other than the Company or the Issuer, will
not be recoverable from the Holders of the Bonds pursuant to Section 550 of the
Bankruptcy (Code as avoidable referential payments under Section 547 of the
Bankruptcy Code.
In rendering this opinion we have relied upon the opinion of Manatt,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, of even date herewith, delivered in connection with the
issuance of the Original Credit Facility and the Confirmation Letter, with
respect to the enforceability of the Original Credit Facility and the
Confirmation Letter and as to the other matters set forth therein.
B-2
29
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 3
The opinions contained herein are rendered solely for your benefit in
connection with the subject Transaction and may not be used or relied upon by,
or published or communicated to, any other party any purpose whatsoever without
or prior written approval in each instance.
Very truly yours,
B-3
30
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 4
The opinions contained herein are rendered solely for your benefit in
connection with the subject Transaction and may not be used or relied upon by,
or published or communicated to, any other party for any purpose whatsoever
without or prior written approval in each instance
Very truly yours,
B-4
31
EXHIBIT C
[OPINION OF COUNSEL TO THE ISSUER]
April __, 1996
Bank One, Columbus, N.A., as Trustee
Columbus, Ohio
Village of Gurnee, Illinois
Gurnee, Illinois
SteriGenics International
Fremont, California
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Chicago, Illinois
Wheat, First Securities, Inc.
Richmond, Virginia
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
I have acted as counsel to the Issuer in connection with the issuance
of the $7,750,000 Village of Gurnee, Illinois Industrial Development Revenue
Bonds (SteriGenics International Project), Series 1996 (the "Bonds"). Terms used
herein that are defined in the Placement and Remarketing Agreement dated as of
April 1, 1996 (the "Placement and Remarketing Agreement") among the Issuer,
SteriGenics International (the "Company") and Wheat, First Securities, Inc.
shall have the meanings given those terms in the Placement and Remarketing
Agreement.
Based upon such investigation as I have deemed appropriate, I am of the
opinion that:
1. The Issuer is a body corporate and politic of the State of Illinois,
validly organized and existing under the Constitution and laws of the State of
Illinois, and has all requisite power and authority (i) to issue, sell and
deliver the Bonds, (ii) to enter into the Indenture, the Placement and
Remarketing Agreement and the Loan Agreement and (iii) to carry out the
transactions contemplated by the Indenture, the Private Placement Memorandum,
the Placement and Remarketing Agreement and the Loan Agreement.
2. The resolution dated April __, 1996 relating to the Bonds (the "Bond
Resolution") has been duly adopted by the Issuer and has not been repealed,
revoked, rescinded or amended and no further action of the Issuer is required
for its continued validity.
C-1
32
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 2
3. Under the Constitution and laws of the State of Illinois, the
execution, delivery and performance of the Indenture, the Loan Agreement and the
Placement and Remarketing Agreement have been authorized by all necessary action
on the part of the Issuer, and, assuming that they are the respective legal,
valid, binding and enforceable obligations of the other parties thereto, the
Indenture, the Loan Agreement, and the Placement and Remarketing Agreement
constitute legal, valid, binding and obligations of the Issuer, except that the
enforceability thereof may be subject to (a) the exercise of judicial discretion
in accordance with general principles of equity, and (b) bankruptcy, involvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally. The rights of the Issuer under the Loan Agreement and the Note have
been duly endorsed and assigned to the Trustee (except for certain retained
rights).
4. The Bonds (a) have been authorized and executed by the Issuer and
delivered to the Trustee for authentication, (b) are legal, valid, binding and
enforceable special limited obligations of the Issuer, except that the rights of
the holders of the Bonds and the enforceability thereof may be subject to (i)
the exercise of judicial discretion in accordance wish general principles of
equity, and (ii) bankruptcy, involvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally, and (c) are entitled to the
benefits and security of the Indenture, the Loan Agreement, the Credit Facility
and the Confirmation Letter.
5. The issuance and sale of the Bonds, the adoption of the Bond
Resolution and the execution and delivery by the Issuer of the Indenture, the
Placement and Remarketing Agreement, the Private Placement Memorandum and the
Loan Agreement and the compliance by the Issuer with the terms thereof and of
the Bonds do not and will not conflict with, or result in any violation or
breach of any of the provisions of, or constitute a default under, any
activating resolution or bylaw of the Issuer or any constitutional provision,
statute, agreement, indenture, note, mortgage, deed of trust, resolution or
other agreement or other instrument to which the Issuer is a party or by which
it is bound, or any license, judgment, decree, order, law, statute, ordinance or
governmental rule or regulation applicable to the issuer, or result in the
creation or imposition of any lien, charge, encumbrance or security interest on
the property of the Issuer other than as contemplated by the Indenture).
6. The Issuer is not in default in any material respect under any
agreement or other instrument to which it is a party or by which it may be
bound.
7. All consents, approvals, orders or authorizations, if any, of any
governmental authority required on the part of the Issuer in connection with the
adoption of the Bond Resolution, the execution and delivery of the Indenture,
the Placement and Remarketing Agreement, the Private Placement Memorandum and
the Loan Agreement, the offer, issue, sale of delivery of the Bonds and the
consummation of the transactions contemplated thereby or by the Private
Placement Memorandum have been seen obtained, and the Issuer has complied with
all applicable provisions of law requiring any designation, declaration, filing,
registration and/or qualification with any governmental authority in connection
with the foregoing and the offer, sale, execution or delivery of the Bonds,
provided, however, no opinion is given concerning any requirement for
registration of the Bonds under federal or state
C-2
33
Bank One, Columbus, N.A. as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 3
securities laws, nor is any opinion given as to the necessity for qualification
of any document under the Trust Indenture Act of 1939, as amended.
8. There are no proceedings pending or, to best of my knowledge,
threatened against the Issuer in any court or before any governmental authority
or arbitration board or tribunal, that could materially and adversely affect the
transactions contemplated by the Private Placement Memorandum or that in any
way, would adversely affect the validity and enforceability of the Bonds, the
Indenture, the Placement and Remarketing Agreement, the Loan Agreement or any
agreement or instrument to which the Issuer is a party and that is contemplated
by the foregoing, or to contest the legal existence or powers of the issuer or
the title to any of the offices of any officer of the Issuer.
9. I have considered the information contained in the Private Placement
Memorandum under the heading "THE ISSUER" and "LITIGATION" as it relates to the
Issuer, and, in regard to such information,or the Private Placement Memorandum
does not contain any untrue statement of a material fact omit to state any
material fact required to be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
10. The Private Placement Memorandum has been duly approved, executed
and delivered by the Issuer, and the Issuer has authorized the distribution of
the Private Placement Memorandum and the use thereof by the Placement Agent in
connection with the placement of the Bonds by the Placement Agent on behalf of
the Issuer and the Company.
11. All actions taken by the Issuer in connection with the Bond
Resolution, the Indenture, the Placement and Remarketing Agreement, the Loan
Agreement, the Private Placement Memorandum and the Bonds are legal and valid in
all respects and none of the proceedings had, or actions taken, with respect to
any of the foregoing have been repealed, revoked or rescinded.
12. Pursuant to the terms of the Indenture, the Issuer has granted to
the Trustee, as security for the Bonds, a security interest in the Trust Estate
(as defined in the Indenture), such security interest being hereinafter referred
to as the "Security Interest." I have caused financing statements (the
"Financing Statements") relating to the Security Interest to be filed as
follows:
In the Office of the County Clerk
Lake County, Illinois on
____, 1996 at __.m., File No. ___; and
In the Office of the Secretary of State of Illinois,
Springfield, Illinois, on ____, 1996 at _ __.m., File No. ___.
C-3
34
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 4
The Security Interest has been perfected as required by the Uniform
Commercial (Code of Illinois ,and there are no other properly indexed financing
statements or liens of record affecting the property in which the Security
Interest has been granted. In order, however, to continue the effectiveness of
the Financing Statements that have been filed as aforesaid, continuation
statements with respect to each of such financing statements must be filed in
the manner and at such times as are prescribed by the Uniform Commercial Code of
Illinois.
Very truly yours,
C-4
35
EXHIBIT D
[OPINION OF COUNSEL TO THE COMPANY]
April ___, 1996
Bank One, Columbus, N.A., as Trustee
Columbus, Ohio
Village of Gurnee, Illinois
Gurnee, Illinois
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Chicago, Illinois
Wheat, First Securities, Inc.
Richmond, Virginia
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
We have acted as counsel to SteriGenics International (the "Company")
in connection with the issuance of the $7,750,000 Village of Gurnee, Illinois
Industrial Development Revenue Bonds (SteriGenics International Project), Series
1996 (the "Bonds"). Terms used herein that are defined in the Placement and
Remarketing Agreement dated as of April 1, 1996 (the "Placement and Remarketing
Agreement"), among the Village of Gurnee, Illinois, Wheat, First Securities,
Inc. And the Company, shall have the meanings given those terms in the Placement
and Remarketing Agreement.
Based on such investigation as we have deemed appropriate, we are of
the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of California, is qualified to do
business and is in good standing in the State of Illinois, and has all requisite
corporate power and authority to carry on its business and own its properties as
it is currently being conducted.
2. The Company is authorized to conduct its business in, and has been
duly qualified and is in good standing as a foreign corporation in, each
jurisdiction in the United States of America in which failure to be so
authorized or qualified might materially adversely affect the business or assets
of the Company.
3. The Company has full corporate power to enter into and perform its
obligations under the Loan Agreement, the Note, the Placement and Remarketing
Agreement and the Reimbursement Agreement (collectively, the "Company
Documents"), and the Company Documents have been duly authorized, executed and
delivered by all necessary corporate action on the part of the Company.
D-1
36
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 2
4. The Company Documents constitute legal, valid and binding
obligations of the Company enforceable in accordance with their respective terms
(assuming due authorization, execution and delivery by the other parties
thereto) except as enforcement may be limited by bankruptcy, insolvency, and
other similiar laws affecting the enforcement of creditors' rights generally and
principles of equity.
5. The Private Placement Memorandum has been duly approved, executed
and delivered by the company, the Company has authorized the distribution of the
Private Placement Memorandum and the use thereof by the Placement Agent in
connection with the placement of the Bonds by the Placement Agent on behalf of
the Issuer and the Company and the Company has approved the terms of the
Indenture.
6. The execution, delivery and approval of the Company Documents, the
compliance by the Company with the respective terms thereof, and the
consummation of the transactions contemplated thereby do not and will not
conflict with or constitute on the part of the Company a violation of, breach of
or default under, (i) the articles of incorporation or bylaws of the Company,
(ii) any indenture, mortgage, deed of trust, lease, note, agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound, or (iii) any constitutional provision or statute or any order, consent
decree, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its activities or property.
7. All consents, approvals or authorizations, if any, of any
governmental authority required on the part of the Company in connection with
the execution and delivery of the Company Documents and the consummation of the
transactions contemplated thereby have been obtained, and the Company has
complied with any applicable provisions of law requiring any designation,
declaration, filing, registration or qualification by the Company with any
governmental authority in connection with such execution, delivery and
consummation.
8. There are no actions, proceedings or investigations pending or, to
the best of our knowledge, threatened against or affecting the Company in any
court or before any governmental authority or body, arbitration board or
tribunal, wherein an unfavorable decision, ruling or finding would have a
materially adverse effect on the financial condition or operations of the
Company or challenging the transactions contemplated by the Company Documents,
or which, in any way, would materially and adversely affect the validity or
enforceability of the Bonds or the Company Documents or any agreement or
instrument to which the Company is a party or by which it is bound and which is
used or contemplated for use in connection with the transactions contemplated
thereby.
9. The information contained in the Private Placement Memorandum under
the headings "ESTIMATED SOURCES AND USES OF FUNDS," "THE PROJECT," "THE COMPANY"
and "LITIGATION" (to the extent that litigation affecting the Company is
described under such heading) does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Except with respect to the items set forth
in the preceding sentence, we did not participate in the preparation of the
Private Placement Memorandum and have not undertaken to
D-2
37
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 3
verify the accuracy of the information contained therein; therefore, we express
no opinion as to the accuracy or completeness thereof; however, nothing has come
to our attention which, would lead us to believe that the Private Placement
Memorandum contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Very truly yours,
D-3
38
EXHIBIT E
[OPINION OF COUNSEL TO THE PLACEMENT AGENT]
April ___, 1996
Wheat, First Securities, Inc.
Richmond, Virginia
$7,750,000
Village of Gurnee, Illinois
industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
We have acted as your counsel in connection with your placement of the
$7,750,000 Village of Gurnee, Illinois Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996 the "Bonds"). Terms used herein
that are defined in the Placement and Remarketing Agreement with respect to the
Bonds dated as of April 1, 1996 shall have the meanings given them in that
Placement and Remarketing Agreement.
Based on such investigation as we have deemed appropriate, we are of
the opinion that the Bonds are exempt from registration pursuant to the
Securities Act of 1933, as amended, and the Indenture is exempt from
qualification as an indenture pursuant to the Trust Indenture Act of 1939, as
amended.
Based upon the examinations which we made as counsel to the Placement
Agent, and without having undertaken to determine independently the accuracy or
completeness of the statements contained in the Private Placement Memorandum,
nothing has come to our attention that would lead us to believe that the Private
Placement Memorandum contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (except that we express no opinion about the information
concerning the validity and tax-exempt status of the Bonds, the Credit Provider,
the Confirming Bank or about the financial and statistical data contained in the
Private Placement Memorandum).
Very truly yours,
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
[OPINION OF COUNSEL TO THE CREDIT PROVIDER]
April ____, 1996
Bank One, Columbus, N.A., as Trustee
Columbus, Ohio
Village of Gurnee, Illinois
Gurnee, Illinois
SteriGenics International
Fremont, California
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Chicago, Illinois
Wheat, First Securities, Inc.
Richmond, Virginia
Standard & Poor's
New York, New York
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
We have acted as counsel to Comerica Bank-California (the "Credit
Provider") in connection with the Reimbursement Agreement (the "Reimbursement
Agreement"), dated as of April 1, 1996 between the Credit Provider and
SteriGenics International (the "Company"), pursuant to which the Credit Provider
has agreed to issue an irrevocable letter of credit (the "Credit Facility")
substantially in the form of Exhibit A thereto in support of certain payments in
respect of the $7,750,000 Village of Gurnee, Illinois Industrial Development
Revenue Bonds (SteriGenics International Project), Series 1996 (the "Bonds").
We have, as such counsel, examined the Reimbursement Agreement, the
Credit Facility and all such corporate records, certificates and other documents
and legal matters as we have deemed relevant and necessary for the purposes of
this opinion.
As to questions of fact material to our opinion, we have relied upon
certificates furnishes to us by appropriate governmental officials and
appropriate officers and representatives of the Credit Provider and the
Confirming Bank. In making the examination referred to above, we have assumed
the genuineness
F-1
40
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 2
of all signatures (other than the signatures of the Credit Provider), the
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity with the original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such documents.
This opinion is limited to the laws of the State of California and the
federal laws of the United States.
Based upon the foregoing examination and review, we are of the opinion
that:
1. The Credit Provider is a banking corporation duly organized and
existing under the laws of the State of California.
2. The Credit Provider has the corporate power and authority to
execute, deliver and perform its obligations under the Credit Facility.
3. The Credit Facility has been duly executed and issued by the Credit
Provider in accordance with the terms of the Reimbursement Agreement and
constitutes the legal, valid and binding obligation of the Credit Provider
enforceable against the Credit Provider in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium, fraudulent conveyance or other similar laws affecting
the enforcement of creditors' rights in general as such laws would apply in the
event of the bankruptcy, insolvency, reorganization, or liquidation of, or other
similar occurrence with respect to the Credit Provider or in the event of any
moratorium or similar occurrence affecting the Credit Provider and subject, as
to enforceability, to general principles of equity (whether enforcement is
sought in a proceeding in equity or at law).
4. Registration of the Credit Facility is not required under the
Securities Act of 1933, as amended.
5. The information appearing under the headings "THE CREDIT FACILITY
--GENERAL," and "--REDUCTION AND REINSTATEMENT OF THE CREDIT FACILITY" and
"SUMMARY OF CERTAIN PROVISIONS OF THE REIMBURSEMENT AGREEMENT" in the
Preliminary Private Placement Memorandum dated April 12, 1996 and the Private
Placement Memorandum dated April 19, 1996, insofar as such statements purport to
summarize certain provisions of the Reimbursement Agreement, accurately or
fairly summarize such provisions.
We are furnishing this opinion to you solely for your benefit and no
other person is entitled to rely hereon. This opinion is not to be used,
circulated, quoted or otherwise referred to for any purpose other than in
connection with the delivery of the Credit Facility.
Very truly yours,
F-2
41
EXHIBIT G
[OPINION OF COUNSEL TO THE CONFIRMING BANK]
April ___, 1996
Bank One, Columbus, N.A., as Trustee
Columbus, Ohio
Village of Gurnee, Illinois
Gurnee, Illinois
SteriGenics International
Fremont, California
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
Chicago, Illinois
First Securities, Inc.
Richmond, Virginia
Standard & Poor's.
New York, New York
$7,750,000
Village of Gurnee, Illinois
Industrial Development Revenue Bonds
(SteriGenics International Project), Series 1996
Ladies and Gentlemen:
We have acted as counsel to Comerica, Bank (the "Confirming Bank") in
connection with the issuance by the Confirming Bank of a confirmation letter
dated the date hereof (the Confirmation Letter") confirming the payment of draws
on the irrevocable direct pay Letter of Credit No. [ ] (the "Credit Facility")
issued by Comerica Bank-California (the "Credit Provider") pursuant to the
Reimbursement Agreement (the "Reimbursement Agreement") dated as of April 1,
1996 between the Credit Provider and SteriGenics International (the "Company"),
in support of certain payments in respect of the $7,750,000 Gurnee, Illinois
Industrial Development Revenue Bonds (SteriGenics International Project), Series
1996 (the "Bonds").
We have, as such counsel, examined the Reimbursement Agreement, the
Credit Facility, the Confirmation Letter and all such corporate records,
certificates and other documents and legal matters as we have deemed relevant
and necessary for the purposes of this opinion.
G-1
42
Bank One, Columbus, N.A., as Trustee
Wheat, First Securities, Inc.
Standard & Poor's
April __, 1996
Page 2
As to questions of fact material to our opinion, we have relied upon
certificates furnishes to us by appropriate governmental officials and
appropriate officers and representatives of the Credit Provider and ,the
Confirming Bank. In making the examination referred to above, we have assumed
the genuineness of all signatures (other than the signatures of the Credit
Provider), the capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity with the original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents.
This opinion is limited to the laws of the State of Michigan and the
federal laws of the United States.
Based upon the foregoing examination and review, we are of the opinion
that:
1. The Confirming Bank is a banking corporation duly organized and
existing under the laws of the State of Michigan.
2. The Confirming Bank has the corporate power and authority to
execute, deliver and perform its obligations under the Confirmation Letter.
3. The Confirmation Letter has been duly executed and issued by the
Confirming Bank at the request of the Credit Provider and constitutes the legal,
valid and binding obligation of the Confirming Bank enforceable against the
Confirming Bank in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors rights in general as such laws would apply in the event of the
bankruptcy, insolvency, reorganization, or liquidation of, or other similar
occurrence with respect to the Confirming Bank or in the event of any moratorium
or similar occurrence affecting the Confirming Bank and subject, as to
enforceability, to general principles of equity (whether enforcement is sought
in a proceeding in equity or at law).
4. Registration of the Confirmation Letter is not required under the
Securities Act of 1933,as amended.
5. The information relating to the Confirming Bank and the Confirmation
Letter appearing under the headings "THE CREDIT FACILITY -GENERAL," and
"--REDUCTION AND REINSTATEMENT OF THE CREDIT FACILITY" and "SUMMARY OF CERTAIN
PROVISIONS OF THE REIMBURSEMENT AGREEMENT" in the Preliminary Private Placement
Memorandum dated April 12, 1996 and the Private Placement Memorandum dated April
19, 1996, insofar as such statements purport to summarize certain provisions of
the Reimbursement Agreement, accurately or fairly summarize such provisions.
We are furnishing this opinion to you solely for your benefit and no
other person is entitled to rely hereon. This opinion is not to be used,
circulated, quoted or otherwise referred to for any purpose other than in
connection with the delivery of the Confirmation Letter.
Very truly yours,
G-2