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EXHIBIT 10.14
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
SERIES A INTERCREDITOR AGREEMENT
This Series A Intercreditor Agreement ("Agreement") is executed as of
November 1, 1985, by and between ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a national banking
association ("Trustee").
1. Recitals.
1.1 The Series A Bonds. The Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), pursuant to that certain Trust Indenture executed as of even date
herewith between Trustee and Issuer (the "Trust Indenture"), has agreed to
issue its Trinity River Industrial Development Authority Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985A (the "Series A Bonds"). The proceeds of the Series A
Bonds are to be loaned to Radiation Sterilizers, Incorporated, a California
corporation ("Company"), and will be secured by the Deeds of Trust (as defined
below). Trustee is the trustee for the Series A Bonds.
1.2 The Series A Reimbursement Agreement and the Series A
Letter of Credit. Pursuant to the terms of that certain Series A Reimbursement
Agreement executed between Company and Bank as of even date herewith (the
"Series A Reimbursement Agreement"), Bank has agreed to issue an irrevocable
standby letter of credit in the face amount of $2,198,596.00 (the "Series A
Letter of Credit"). Trustee is empowered to draw upon the Series A Letter of
Credit for the benefit of the purchasers of the Series A Bonds as provided in
the Series A Letter of Credit. The obligations of Company to Bank under the
Series A Reimbursement Agreement and other documents executed in connection
therewith have been guaranteed by ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California
limited part-
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nership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty").
1.3 Security Documents. The obligations of Company to
Trustee relating to the payment of the principal amount of, and accrued
interest on, the Series A Bonds, and the obligations of Company to Bank under
the Series A Reimbursement Agreement and the other Loan Documents are secured
by the following documents (collectively, the "Security Documents"):
(a) A Deed of Trust with Assignment of Rents (the
"Texas Deed of Trust") dated as of even date herewith,
executed by Company, as trustor, in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
as trustee, for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the City of
Fort Worth, County of Tarrant, State of Texas (the "Texas
Property");
(b) An Open End Mortgage dated as of even date
herewith, executed by Company, as borrower, for the benefit of
Bank and Trustee, as beneficiary, encumbering real property
located in the Township of Orange, County of Delaware, State
of Ohio (the "Ohio Property");
(c) A Deed to Secure Debt dated as of even date
herewith, executed by Company, as grantor, for the benefit of
Bank and Trustee, as grantee encumbering real property located
in the City of Atlanta, County of DeKalb, State of Georgia
(the "Georgia Property");
(d) A Deed of Trust with Assignment of Rents and
Fixture Filing dated as of even date herewith, executed by
Guarantor, as trustor, in favor of American Securities
Company, as security trustee, for the benefit of Bank and
Trustee, as beneficiary, encumbering real property located in
the City of Hayward, County of Alameda, State of California
(the "Hayward Property"); and
(e) A Mortgage dated as of even date herewith,
executed by Guarantor for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the Village
of Schaumburg, County of ▇▇▇▇, State of Illinois (the
"Illinois Property").
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(f) A Company Security Agreement dated as of even
date herewith, executed by Company, as debtor, in favor of
Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Ohio
Property, the Texas Property and the Georgia Property.
(g) A Guaranty Security Agreement dated as of
even date herewith, executed by Guarantor, as debtor, in favor
of Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Hayward
Property and the Illinois Property,
The deeds of trust referred to in subsections (a) through (e) are collectively
referred to herein as the "Deeds of Trust". The Texas Property, the Ohio
Property, the Georgia Property, the Hayward Property and the Illinois Property
are sometimes collectively referred to herein as the "Properties."
1.4 Agreement. In consideration of, and as a
condition to, the issuance of the Series A Letter of Credit, Bank and Trustee
hereby agrees as hereinafter provided.
2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement
to Company or to any other person or entity of all or any portion of the
proceeds of the Series A Bonds or any other funds held from time to time by
Trustee under the Trust Indenture in connection therewith without the approval
of Bank (subject to certain pre-approvals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and
subsequent communications relating thereto) given to Company of or with respect
to a default under Section 1101 of the Trust Indenture or with respect to an
event which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication
is given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents.
If such a default occurs of which Trustee has knowledge for which no notice is
required to be given to
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Company, Trustee shall deliver a notice of such default to Bank immediately
upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have the
following rights in the event of the occurrence of an Event of Default under
the Series A Reimbursement Agreement, the Guaranty or any of the other Loan
Documents:
(a) The right to implement any or all of its rights under
the Series A Reimbursement Agreement and the other Loan
Documents (other than a foreclosure under the Texas Deed of
Trust), including without limitation commencement of actions
against Company to recover sums owing under the Loan Documents
and/or to obtain injunctive relief and making demand upon
Guarantor for the performance of its obligations under the
Guaranty, without giving notice to Trustee of Bank's intention
to cause a default to be declared under the Trust Indenture;
in such event, there shall be no declaration by Trustee of a
default under the Trust Indenture notwithstanding any such
action by Bank unless there are grounds for such default other
than by reason of the occurrence of an Event of Default under
the Series A Reimbursement Agreement; or
(b) The right, with or without implementation of any or
all of its rights under the Reimbursement Agreement and the
other Loan Documents (including the right to foreclose under
the Texas Deed of Trust), to give notice to Trustee of Bank's
intention to cause a default to be declared under the Trust
Indenture; in such event, Trustee shall immediately declare
such a default and make an A Drawing under the Series A Letter
of Credit.
5. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in
Section 4, above, shall limit the rights of Trustee in the event of the
occurrence of an event of default under the Bond Documents other than an event
of default which occurs by reason of the occurrence of an Event of Default under
the Series A Reimbursement Agreement. Trustee hereby acknowledges and agrees
that the occurrence of an Event of Default under the Series A Reimbursement
Agreement shall not constitute an Event of Default under the Bond Documents
unless Bank has given the notice described in Section 4(b), above.
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6. Bank Right to Cure Bond Document Defaults.
If Company fails to cure a default under any Bond Document
within the applicable cure period, Trustee shall notify Bank in writing of such
failure and shall refrain from exercising any remedy under the Bond Documents
or at law in the event that Bank either (a) cures such default within fifteen
(15) days following receipt of such notice, or (b) if such default is not
capable of being cured by the payment of money, commences cure within thirty
(30) days and thereafter diligently proceeds with such cure. Nothing in this
Section 6 shall be construed to either (1) obligate Bank to cure any default by
Company or (2) obligate Trustee to refrain from exercising any remedy in the
event that such non-exercise would, in the opinion of bond counsel (▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇), adversely affect the tax-exempt status of interest on the
Series A Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by
Trustee of funds from all sources (including without limitation any payments
under the Series A Letter of Credit) which are sufficient to retire in full the
obligations of Bank under the Series A Letter of Credit, Trustee shall do the
following:
7.1 Subject to Section 1105 of the Trust Indenture, use all funds
in its possession pursuant to the Trust Indenture and all funds paid under the
Series A Letter of Credit as may be necessary to promptly redeem and retire all
outstanding Series A Bonds at their face amount plus any accrued interest.
7.2 At the option of Bank, either reconvey, release and
cancel, or assign to Bank, all of its right, title and interest under the
Security Documents and execute, acknowledge and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment.
7.3 Assign to Bank all of its interest in the cash
collateral held in the Reserve Accounts and execute and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such assignment.
7.4 Deliver to Bank, in good funds and to such account as
Bank shall designate, the entire balance of undisbursed proceeds of the Series
A Bonds and any other funds then held by Trustee under the Trust Indenture,
together with
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any interest and other sums accrued on all such sums, as of the date of payment
by Bank on the Series A Letter of Credit, subject to (i) Section 1105 of the
Trust Indenture and (ii) prior payment of any unpaid fees and expenses (not to
include any fees or expenses of outside legal counsel) of Trustee described in
Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest
under or in connection with the Series A Loan Agreement and the Trust
Indenture, including without limitation all sums in which Trustee has an
interest pursuant to the provisions of the Trust Indenture and all causes of
action and other rights which have accrued or may accrue thereafter; provided,
however, that Bank shall not be subject to any of the trust obligations of
Trustee with regard to such sums, causes of action and other rights.
8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series A Pledge
Agreement any Pledged Bonds (as defined in the Series A Pledge Agreement)
(other than by delivery to the Trustee for cancellation) unless, at the time of
or before such release, the aggregate amount available under the Series A
Letter of Credit shall be reinstated in an amount equal to the full principal
amount of the Pledged Bonds released together with the portion of any drawing
made under the Series A Letter of Credit with respect to the interest portion
of the purchase price of the Pledged Bonds so being released. Also,
notwithstanding rights and remedies given to Bank in the Series A Pledge
Agreement to dispose of Pledged Bonds, at any time the Series A Letter of
Credit remains in effect, Bank shall not dispose of any Pledged Bonds other
than by delivery to the Trustee for cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash
collateral to be deposited by Company in the Reserve Accounts (pursuant to
Section 6.6 of the Series A Reimbursement Agreement) in exchange for any
substitute collateral reasonably satisfactory to Bank.
10. Termination of Shared Interest Requirement.
Trustee hereby agrees that, immediately upon receipt by
Trustee of written assurances (from bond counsel or otherwise) that Trustee is
not required, for purposes of maintenance of the rating of the Series A Bonds
or otherwise, to hold a
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shared interest in the Security Documents, Trustee shall, at the option of
Bank, either reconvey, release and cancel, or assign to Bank all of its right,
title and interest under the Security Documents and the Reserve Accounts, and
will execute, acknowledge and deliver to Bank such instruments and documents as
may be reasonably necessary in connection with such reconveyance, release,
cancellation or assignment.
11. Notices.
11.1 Trustee shall immediately give Bank notice of (a) its
resignation or removal or any other actual or planned change in the identity of
Trustee, whether pursuant to the Trust Indenture or otherwise, and (b) any
actual or planned amendment of the Trust Indenture or any supplement thereto,
or any request by any person or entity for the same.
11.2 Trustee shall deliver to Bank copies of any reports
to be delivered by Trustee pursuant to the Trust Indenture, as it may be
amended from time to time, such delivery to be reasonably concurrent with
Trustee's delivery of such reports pursuant to the Trust Indenture.
11.3 All notices, requests, demands, directions or other
communications which may be given pursuant to this Agreement must be in writing
and must be mailed or personally delivered to the appropriate party at its
address as follows:
If to Trustee: Bank One Trust Company, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
If to Bank: ▇▇▇▇▇ Fargo Bank, N.A.
Real Estate Industries Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 11.3. If any notice, request, demand, direction
or other communication is given by mail it will be effective upon the earlier
of (a) 96 hours after deposit in the U.S. Mail, certified or registered mail,
return receipt requested postage prepaid or (b) actual receipt, as indicated by
the return receipt; if given by personal delivery, when delivered.
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12. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to
interpret or enforce their rights under this Agreement, the prevailing party in
such action shall be entitled to recover its costs and attorneys' fees as
awarded by the court in such action.
13. Amendments; Governing Law
This Agreement may be amended only by a written agreement
signed by both Bank and Trustee. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
14. Miscellaneous.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth for them in the Series A Reimbursement
Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of any Bond Document, this Agreement shall
control.
IN WITNESS WHEREOF, Bank and Trustee have caused this
Agreement to be duly executed as of the date first written above.
"Bank":
▇▇▇▇▇ FARGO BANK, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ P.O.
---------------------------------
"Trustee":
BANK ONE TRUST COMPANY, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ Vice Pres
---------------------------------
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STATE OF CALIFORNIA )
) ss.
COUNTY OF Santa ▇▇▇▇▇ )
On March 20, 1986 before me, the undersigned, personally
appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person who executed this instrument as Vice
President of the association therein named and acknowledged to me that said
association executed it.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
[SEAL OMITTED] Notary Public in and for said
County and State
My commission expires:
STATE OF CALIFORNIA )
) ss.
COUNTY OF Santa ▇▇▇▇▇ )
On _________, 19__, before me, the undersigned, personally
appeared,__________ personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as
_________________ of the association therein named and acknowledged to me that
said association executed it.
----------------------------------------
Notary Public in and for said
County and State
My commission expires:
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STATE OF OHIO )
) ss.
COUNTY OF Franklin )
On this 14th day of March, 1986, before me, the subscriber, a
notary Public in and for said state and county, personally appeared ▇▇▇▇
▇▇▇▇▇▇▇ who stated that she is the Vice President of Bank One Trust Company,
N.A., a national banking association, who acknowledged that he executed the
foregoing instrument on behalf of such national banking association and that
such execution was duly authorized by such national banking association and was
his voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
my official seal on this 14th day of March, 1986.
/s/ Signature Unreadable
----------------------------------------
Notary Public/
My commission expires:
This instrument prepared by: ▇▇▇▇▇ ▇▇▇▇, Esq,
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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THIS INSTRUMENT WAS PREPARED BY
AND SHOULD BE RETURNED TO:
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & HAMPTON
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
SERIES A INTERCREDITOR AGREEMENT
This Series A Intercreditor Agreement ("Agreement") is
executed as of November 1, 1985, by and between ▇▇▇▇▇ FARGO BANK, N.A., a
national banking association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a
national banking association ("Trustee").
1. Recitals.
1.1 The Series A Bonds. The Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), pursuant to that certain Trust Indenture executed as of even date
herewith between Trustee and Issuer (the "Trust Indenture"), has agreed to
issue its Trinity River Industrial Development Authority Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985A (the "Series A Bonds"), The proceeds of the Series A
Bonds are to be loaned to Radiation Sterilizers, Incorporated, a California
corporation ("Company"), and will be secured by the Deeds of Trust (as defined
below). Trustee is the trustee for the Series A Bonds,
1.2 The Series A Reimbursement Agreement and the Series A
Letter of Credit. Pursuant to the terms of that certain Series A Reimbursement
Agreement executed between Company and Bank as of even date herewith (the
"Series A Reimbursement Agreement"), Bank has agreed to issue an irrevocable
standby letter of credit in the face amount of $2,198,596.00 (the "Series A
Letter of Credit"). Trustee is empowered to draw upon the Series A Letter of
Credit for the benefit of the purchasers of the Series A Bonds as provided in
the Series A Letter of Credit. The obligations of Company to Bank under the
Series A Reimbursement Agreement and other documents executed in connection
therewith have been guaranteed by ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California
limited part-
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nership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty").
1.3 Security Documents. The obligations of Company to
Trustee relating to the payment of the principal amount of, and accrued
interest on, the Series A Bonds, and the obligations of Company to Bank under
the Series A Reimbursement Agreement and the other Loan Documents are secured
by the following documents (collectively, the "Security Documents"):
(a) A Deed of Trust with Assignment of Rents (the
"Texas Deed of Trust") dated as of even date herewith,
executed by Company, as trustor, in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
as trustee, for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the City of
Fort Worth, County of Tarrant, State of Texas (the "Texas
Property");
(b) An Open End Mortgage dated as of even date
herewith, executed by Company, as borrower, for the benefit of
Bank and Trustee, as beneficiary, encumbering real property
located in the Township of Orange, County of Delaware, State
of Ohio (the "Ohio Property");
(c) A Deed to Secure Debt dated as of even date
herewith, executed by Company, as grantor, for the benefit of
Bank and Trustee, as grantee encumbering real property located
in the City of Atlanta, County of DeKalb, State of Georgia
(the "Georgia Property");
(d) A Deed of Trust with Assignment of Rents and
Fixture Filing dated as of even date herewith, executed by
Guarantor, as trustor, in favor of American Securities
Company, as security trustee, for the benefit of Bank and
Trustee, as beneficiary, encumbering real property located in
the City of Hayward, County of Alameda, State of California
(the "Hayward Property"); and
(e) A Mortgage dated as of even date herewith,
executed by Guarantor for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the Village
of Schaumburg, County of ▇▇▇▇, State of Illinois (the
"Illinois Property").
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(f) A Company Security Agreement dated as of even
date herewith, executed by Company, as debtor, in favor of
Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Ohio
Property, the Texas Property and the Georgia Property.
(g) A Guaranty Security Agreement dated as of
even date herewith, executed by Guarantor, as debtor, in favor
of Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Hayward
Property and the Illinois Property.
The deeds of trust referred to in subsections (a) through (e) are collectively
referred to herein as the "Deeds of Trust". The Texas Property, the Ohio
Property, the Georgia Property, the Hayward Property and the Illinois Property
are sometimes collectively referred to herein as the "Properties."
1.4 Agreement. In consideration of, and as a condition
to, the issuance of the Series A Letter of Credit, Bank and Trustee hereby
agrees as hereinafter provided.
2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement
to Company or to any other person or entity of all or any portion of the
proceeds of the Series A Bonds or any other funds held from time to time by
Trustee under the Trust Indenture in connection therewith without the approval
of Bank (subject to certain preapprovals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and
subsequent communications relating thereto) given to Company of or with respect
to a default under Section 1101 of the Trust Indenture or with respect to an
event which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication
is given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents.
If such a default occurs of which Trustee has knowledge for which no notice is
required to be
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given to Company, Trustee shall deliver a notice of such default to Bank
immediately upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have
the following rights in the event of the occurrence of an Event of Default
under the Series A Reimburse-ment Agreement, the Guaranty or any of the other
Loan Documents:
(a) The right to implement any or all of its
rights under the Series A Reimbursement Agreement and the
other Loan Documents (other than a foreclosure under the Texas
Deed of Trust), including without limitation commencement of
actions against Company to recover sums owing under the Loan
Documents and/or to obtain injunctive relief and making demand
upon Guarantor for the perform-▇▇▇▇▇ of its obligations under
the Guaranty, without giving notice to Trustee of Bank's
intention to cause a default to be declared under the Trust
Indenture; in such event, there shall be no declaration by
Trustee of a default under the Trust Indenture notwithstanding
any such action by Bank unless there are grounds for such
default other than by reason of the occurrence of an Event of
Default under the Series A Reimbursement Agreement; or
(b) The right, with or without implementation of
any or all of its rights under the Reimbursement Agreement and
the other Loan Documents (including the right to foreclose
under the Texas Deed of Trust), to give notice to Trustee of
Bank's intention to cause a default to be declared under the
Trust Indenture; in such event, Trustee shall immediately
declare such a default and make an A Drawing under the Series
A Letter of Credit.
5. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in
Section 4, above, shall limit the rights of Trustee in the event of the
occurrence of an event of default under the Bond Documents other than an event
of default which occurs by reason of the occurrence of an Event of Default
under the Series A Reimbursement Agreement. Trustee hereby acknowledges and
agrees that the occurrence of an Event of Default under the Series A
Reimbursement Agreement shall not constitute an Event of Default under the Bond
Documents unless Bank has given the notice described in Section 4(b), above.
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6. Bank Right to Cure Bond Document Defaults.
If Company fails to cure a default under any Bond Document
within the applicable cure period, Trustee shall notify Bank in writing of such
failure and shall refrain from exercising any remedy under the Bond Documents
or at law in the event that Bank either (a) cures such default within fifteen
(15) days following receipt of such notice, or (b) if such default is not
capable of being cured by the payment of money, commences cure within thirty
(30) days and thereafter diligently proceeds with such cure. Nothing in this
Section 6 shall be construed to either (1) obligate Bank to cure any default by
Company or (2) obligate Trustee to refrain from exercising any remedy in the
event that such non-exercise would, in the opinion of bond counsel (▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇), adversely affect the tax-exempt status of interest on the
Series A Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by
Trustee of funds from all sources (including without limitation any payments
under the Series A Letter of Credit) which are sufficient to retire in full the
obligations of Bank under the Series A Letter of Credit, Trustee shall do the
following:
7.1 Subject to Section 1105 of the Trust Indenture, use
all funds in its possession pursuant to the Trust Indenture and all funds paid
under the Series A Letter of Credit as may be necessary to promptly redeem and
retire all outstanding Series A Bonds at their face amount plus any accrued
interest.
7.2 At the option of Bank, either reconvey, release and
cancel, or assign to Bank, all of its right, title and interest under the
Security Documents and execute, acknowledge and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment.
7.3 Assign to Bank all of its interest in the cash
collateral held in the Reserve Accounts and execute and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such assignment.
7.4 Deliver to Bank, in good funds and to such account as
Bank shall designate, the entire balance of undisbursed proceeds of the Series
A Bonds and any other funds then held by Trustee under the Trust Indenture,
together with any interest and other sums accrued on all such sums, as of
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the date of payment by Bank on the Series A Letter of Credit, subject to (i)
Section 1105 of the Trust Indenture and (ii) prior payment of any unpaid fees
and expenses (not to include any fees or expenses of outside legal counsel) of
Trustee described in Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest
under or in connection with the Series A Loan Agreement and the Trust
Indenture, including without limitation all sums in which Trustee has an
interest pursuant to the provisions of the Trust Indenture and all causes of
action and other rights which have accrued or may accrue thereafter; provided,
however, that Bank shall not be subject to any of the trust obligations of
Trustee with regard to such sums, causes of action and other rights.
8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series A Pledge
Agreement any Pledged Bonds (as defined in the Series A Pledge Agreement)
(other than by delivery to the Trustee for cancellation) unless, at the time of
or before such release, the aggregate amount available under the Series A
Letter of Credit shall be reinstated in an amount equal to the full principal
amount of the Pledged Bonds released together with the portion of any drawing
made under the Series A Letter of Credit with respect to the interest portion
of the purchase price of the Pledged Bonds so being released. Also,
notwith-standing rights and remedies given to Bank in the Series A Pledge
Agreement to dispose of Pledged Bonds, at any time the Series A Letter of
Credit remains in effect, Bank shall not dispose of any Pledged Bonds other
than by delivery to the Trustee for cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash
collateral to be deposited by Company in the Reserve Accounts (pursuant to
Section 6.6 of the Series A Reimbursement Agreement) in exchange for any
substitute collateral reasonably satisfactory to Bank.
10. Termination of Shared Interest Requirement.
Trustee hereby agrees that, immediately upon receipt by
Trustee of written assurances (from bond counsel or otherwise) that Trustee is
not required, for purposes of maintenance of the rating of the Series A Bonds
or otherwise, to hold a shared interest in the Security Documents, Trustee
shall, at
-6-
17
the option of Bank, either reconvey, release and cancel, or assign to Bank all
of its right, title and interest under the Security Documents and the Reserve
Accounts, and will execute, acknowledge and deliver to Bank such instruments
and documents as may be reasonably necessary in connection with such
reconveyance, release, cancellation or assignment.
11. Notices.
11.1 Trustee shall immediately give Bank notice of (a) its
resignation or removal or any other actual or planned change in the identity of
Trustee, whether pursuant to the Trust Indenture or otherwise, and (b) any
actual or planned amendment of the Trust Indenture or any supplement thereto,
or any request by any person or entity for the same.
11.2 Trustee shall deliver to Bank copies of any reports to be
delivered by Trustee pursuant to the Trust Indenture, as it may be amended from
time to time, such delivery to be reasonably concurrent with Trustee's delivery
of such reports pursuant to the Trust Indenture,
11.3 All notices, requests, demands, directions or other
communications which may be given pursuant to this Agreement must be in writing
and must be mailed or personally delivered to the appropriate party at its
address as follows:
If to Trustee: Bank One Trust Company, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
If to Bank: ▇▇▇▇▇ Fargo Bank, N.A.
Real Estate Industries Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 11.3. If any notice, request, demand, direction
or other communication is given by mail it will be effective upon the earlier
of (a) 96 hours after deposit in the U.S. Mail, certified or registered mail,
return receipt requested postage prepaid or (b) actual receipt, as indicated by
the return receipt; if given by personal delivery, when delivered.
-7-
18
12. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to
interpret or enforce their rights under this Agreement, the prevailing party in
such action shall be entitled to recover its costs and attorneys' fees as
awarded by the court in such action.
13. Amendments; Governing Law.
This Agreement may be amended only by a written agreement
signed by both Bank and Trustee, This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
14. Miscellaneous.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth for them in the Series A Reimbursement
Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of any Bond Document, this Agreement shall
control.
IN WITNESS WHEREOF, Bank and Trustee have caused this Agreement to be duly
executed as of the date first written above.
"Bank":
▇▇▇▇▇ FARGO BANK, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ Signature Unreadable
---------------------------------
"Trustee":
BANK ONE TRUST COMPANY, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ AUTHORIZED SIGNER
---------------------------------
-8-
19
STATE OF CALIFORNIA )
) ss.
COUNTY OF __________ )
On ______________, 19 __, before me, the undersigned,
personally appeared ________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed this
instrument as ___________ of the association therein named and acknowledged to
me that said association executed it.
/s/ Signature Unreadable
----------------------------------------
[SEAL OMITTED] Notary Public in and for said
County and State
My commission expires:
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On _____________, 19__, before me, the undersigned, personally
appeared ________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person who executed this instrument as
___________ of the association therein named and acknowledged to me that said
association executed it.
----------------------------------------
Notary Public in and for said
County and State
My commission expires:
-9-
20
STATE OF OHIO )
) ss.
COUNTY OF FRANKLIN )
On this 10th day of December, 1985, before me, the subscriber,
a notary public in and for said state and county, personally appeared ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, who stated that he is the Senior Trust Officer of Bank One Trust
Company, N.A., a national banking association, who acknowledged that he
executed the foregoing instrument on behalf of such national banking
association and that such execution was duly authorized by such national
banking association and was his voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
my official seal on this 10TH day of DECEMBER 1985.
/s/ Signature Unreadable
----------------------------------------
Notary Public
My commission expires: Never Expires.
This instrument prepared by: ▇▇▇▇▇ ▇▇▇▇, Esq.
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-10-
21
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & HAMPTON
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
SERIES A INTERCREDITOR, AGREEMENT
This Series A Intercreditor Agreement ("Agreement") is executed as of
November 1, 1985, by and between ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a national banking
association ("Trustee").
1. Recitals.
1.1 The Series A Bonds.The Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), pursuant to that certain Trust Indenture executed as of even date
herewith between Trustee and Issuer (the "Trust Indenture"), has agreed to
issue its Trinity River Industrial Development Authority Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985A (the "Series A Bonds"). The proceeds of the Series A
Bonds are to be loaned to Radiation Sterilizers, Incorporated, a California
corporation ("Company"), and will be secured by the Deeds of Trust (as defined
below). Trustee is the trustee for the Series A Bonds.
1.2 The Series A Reimbursement Agreement and the Series A
Letter of Credit. Pursuant to the terms of that certain Series A Reimbursement
Agreement executed between Company and Bank as of even date herewith (the
"Series A Reimbursement Agreement"), Bank has agreed to issue an irrevocable
standby letter of credit in the face amount of $2,198,596.00 (the "Series A
Letter of Credit"). Trustee is empowered to draw upon the Series A Letter of
Credit for the benefit of the purchasers of the Series A Bonds as provided in
the Series A Letter of Credit. The obligations of Company to Bank under the
Series A Reimbursement Agreement and other documents executed in connection
therewith have been guaranteed by ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California
limited part-
-1-
22
nership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty"),
1.3 Security Documents. The obligations of Company to
Trustee relating to the payment of the principal amount of, and accrued
interest on, the Series A Bonds, and the obligations of Company to Bank under
the Series A Reimbursement Agreement and the other Loan Documents are secured
by the following documents (collectively, the "Security Documents"):
(a) A Deed of Trust with Assignment of Rents (the
"Texas Deed of Trust") dated as of even date herewith,
executed by Company, as trustor, in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
as trustee, for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the City of
Fort Worth, County of Tarrant, State of Texas (the "Texas
Property");
(b) An Open End Mortgage dated as of even date
herewith, executed by Company, as borrower, for the benefit of
Bank and Trustee, as beneficiary, encumbering real property
located in the Township of Orange, County of Delaware, State
of Ohio (the "Ohio Property");
(c) A Deed to Secure Debt dated as of even date
herewith, executed by Company, as grantor, for the benefit of
Bank and Trustee, as grantee encumbering real property located
in the City of Atlanta, County of DeKalb, State of Georgia
(the "Georgia Property");
(d) A Deed of Trust with Assignment of Rents and
Fixture Filing dated as of even date herewith, executed by
Guarantor, as trustor, in favor of American Securities
Company, as security trustee, for the benefit of Bank and
Trustee, as beneficiary, encumbering real property located in
the City of Hayward, County of Alameda, State of California
(the "Hayward Property"); and
(e) A Mortgage dated as of even date herewith,
executed by Guarantor for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the Village
of Schaumburg, County of ▇▇▇▇, State of Illinois (the
"Illinois Property").
-2-
23
(f) A Company Security Agreement dated as of even
date herewith, executed by Company, as debtor, in favor of
Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Ohio
Property, the Texas Property and the Georgia Property.
(g) A Guaranty Security Agreement dated as of
even date herewith, executed by Guarantor, as debtor, in favor
of Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Hayward
Property and the Illinois Property.
The deeds of trust referred to in subsections (a) through (e) are collectively
referred to herein as the "Deeds of Trust". The Texas Property, the Ohio
Property, the Georgia Property, the Hayward Property and the Illinois Property
are sometimes collectively referred to herein as the "Properties."
1.4 Agreement. In consideration of, and as a
condition to, the issuance of the Series A Letter of Credit, Bank and Trustee
hereby agrees as hereinafter provided.
2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement
to Company or to any other person or entity of all or any portion of the
proceeds of the Series A Bonds or any other funds held from time to time by
Trustee under the Trust Indenture in connection therewith without the approval
of Bank (subject to certain pre-approvals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and
subsequent communications relating thereto) given to Company of or with respect
to a default under Section 1101 of the Trust Indenture or with respect to an
event which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication
is given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents.
If such a default occurs of which Trustee has knowledge for which no notice is
required to be given to
-3-
24
Company, Trustee shall deliver a notice of such default to Bank immediately
upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have
the following rights in the event of the occurrence of an Event of Default
under the Series A Reimbursement Agreement, the Guaranty or any of the other
Loan Documents:
(a) The right to implement any or all of its
rights under the Series A Reimbursement Agreement and the
other Loan Documents (other than a foreclosure under the Texas
Deed of Trust), including without limitation commencement of
actions against Company to recover sums owing under the Loan
Documents and/or to obtain injunctive relief and making demand
upon Guarantor for the performance of its obligations under
the Guaranty, without giving notice to Trustee of Bank's
intention to cause a default to be declared under the Trust
Indenture; in such event, there shall be no declaration by
Trustee of a default under the Trust Indenture notwithstanding
any such action by Bank unless there are grounds for such
default other than by reason of the occurrence of an Event of
Default under the Series A Reimbursement Agreement; or
(b) The right, with or without implementation of
any or all of its rights under the Reimbursement Agreement and
the other Loan Documents (including the right to foreclose
under the Texas Deed of Trust), to give notice to Trustee of
Bank's intention to cause a default to be declared under the
Trust Indenture; in such event, Trustee shall immediately
declare such a default and make an A Drawing under the Series
A Letter of Credit.
5. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in
Section 4, above, shall limit the rights of Trustee in the event of the
occurrence of an event of default under the Bond Documents other than an event
of default which occurs by reason of the occurrence of an Event of Default
under the Series A Reimbursement Agreement. Trustee hereby acknowledges and
agrees that the occurrence of an Event of Default under the Series A
Reimbursement Agreement shall not constitute an Event of Default under the Bond
Documents unless Bank has given the notice described in Section 4(b), above.
-4-
25
6. Bank Right to Cure Bond Document Defaults.
If company fails to cure a default under any Bond Document
within the applicable cure period, Trustee shall notify Bank in writing of such
failure and shall refrain from exercising any remedy under the Bond Documents
or at law in the event that Bank either (a) cures such default within fifteen
(15) days following receipt of such notice, or (b) if such default is not
capable of being cured by the payment of money, commences cure within thirty
(30) days and thereafter diligently proceeds with such cure. Nothing in this
Section 6 shall be construed to either (1) obligate Bank to cure any default by
Company or (2) obligate Trustee to refrain from exercising any remedy in the
event that such non-exercise would, in the opinion of bond counsel (▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇), adversely affect the tax-exempt status of interest on the
Series A Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by
Trustee of funds from all sources (including without limitation any payments
under the Series A Letter of Credit) which are sufficient to retire in full the
obligations of Bank under the Series A Letter of Credit, Trustee shall do the
following:
7.1 Subject to Section 1105 of the Trust Indenture, use
all funds in its possession pursuant to the Trust Indenture and all funds paid
under the Series A Letter of Credit as may be necessary to promptly redeem and
retire all outstanding Series A Bonds at their face amount plus any accrued
interest.
7.2 At the option of Bank, either reconvey, release and
cancel, or assign to Bank, all of its right, title and interest under the
Security Documents and execute, acknowledge and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment,
7.3 Assign to Bank all of its interest in the cash
collateral held in the Reserve Accounts and execute and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such assignment.
7.4 Deliver to Bank, in good funds and to such account as
Bank shall designate, the entire balance of undisbursed proceeds of the Series
A Bonds and any other funds then held by Trustee under the Trust Indenture,
together with any interest and other sums accrued on all such sums, as of
-5-
26
the date of payment by Bank on the Series A Letter of Credit, subject to (i)
Section 1105 of the Trust Indenture and (ii) prior payment of any unpaid fees
and expenses (not to include any fees or expenses of outside legal counsel) of
Trustee described in Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest
under or in connection with the Series A Loan Agreement and the Trust
Indenture, including without limitation all sums in which Trustee has an
interest pursuant to the provisions of the Trust Indenture and all causes of
action and other rights which have accrued or may accrue thereafter; provided,
however, that Bank shall not be subject to any of the trust obligations of
Trustee with regard to such sums, causes of action and other rights.
8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series A Pledge
Agreement any Pledged Bonds (as defined in the Series A Pledge Agreement)
(other than by delivery to the Trustee for cancellation) unless, at the time of
or before such release, the aggregate amount available under the Series A
Letter of Credit shall be reinstated in an amount equal to the full principal
amount of the Pledged Bonds released together with the portion of any drawing
made under the Series A Letter of Credit with respect to the interest portion
of the purchase price of the Pledged Bonds so being released. Also,
notwithstanding rights and remedies given to Bank in the Series A Pledge
Agreement to dispose of Pledged Bonds, at any time the Series A Letter of
Credit remains in effect, Bank shall not dispose of any Pledged Bonds other
than by delivery to the Trustee for cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash
collateral to be deposited by Company in the Reserve Accounts (pursuant to
Section 6.6 of the Series A Reimbursement Agreement) in exchange for any
substitute collateral reasonably satisfactory to Bank.
10. Termination of Shared Interest Requirement.
Trustee hereby agrees that, immediately upon receipt by
Trustee of written assurances (from bond counsel or otherwise) that Trustee is
not required, for purposes of maintenance of the rating of the Series A Bonds
or otherwise, to hold a shared interest in the Security Documents, Trustee
shall, at
-6-
27
the option of Bank, either reconvey, release and cancel, or assign to Bank all
of its right, title and interest under the Security Documents and the Reserve
Accounts, and will execute, acknowledge and deliver to Bank such instruments
and documents as may be reasonably necessary in connection with such
reconveyance, release, cancellation or assignment.
11. Notices.
11.1 Trustee shall immediately give Bank notice of (a) its
resignation or removal or any other actual or planned change in the identity of
Trustee, whether pursuant to the Trust Indenture or otherwise, and (b) any
actual or planned amendment of the Trust Indenture or any supplement thereto,
or any request by any person or entity for the same.
11.2 Trustee shall deliver to Bank copies of any reports
to be delivered by Trustee pursuant to the Trust Indenture, as it may be
amended from time to time, such delivery to be reasonably concurrent with
Trustee's delivery of such reports pursuant to the Trust Indenture.
11.3 All notices, requests, demands, directions or other
communications which may be given pursuant to this Agreement must be in writing
and must be mailed or personally delivered to the appropriate party at its
address as follows:
If to Trustee: Bank One
Trust Company, N.A. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention:
Corporate Trust
If to Bank: ▇▇▇▇▇ Fargo
Bank, N.A. Real Estate
Industries Group ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice
President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 11.3. If any notice, request, demand,
direction or other communication is given by mail it will be effective upon the
earlier of (a) 96 hours after deposit in the U.S. Mail, certified or registered
mail, return receipt requested postage prepaid or (b) actual receipt, as
indicated by the return receipt; if given by personal delivery, when delivered.
-7-
28
12. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to
interpret or enforce their rights under this Agreement, the prevailing party in
such action shall be entitled to recover its costs and attorneys' fees as
awarded by the court in such action.
13. Amendments; Governing Law.
This Agreement may be amended only by a written agreement
signed by both Bank and Trustee. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
14. Miscellaneous.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth for them in the Series A Reimbursement
Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of any Bond Document, this Agreement shall
control.
IN WITNESS WHEREOF, Bank and Trustee have caused this
Agreement to be duly executed as of the date first written above.
Signed and Acknowledged "Bank":
in the presence of:
▇▇▇▇▇ FARGO BANK, N.A.
/S/ Signature Unreadable
-----------------------------
Witness By /s/ ▇▇▇▇▇ Tare
-------------------------------------
Its Assistant Vice President
---------------------------------
/s/ Signature Unreadable
-----------------------------
Witness
Signed and Acknowledged "Trustee":
in the presence of
BANK ONE TRUST COMPANY, N.A.
/s/ Signature Unreadable
-----------------------------
Witness By /s/ Signature Unreadable
------------------------------------
Its /s/ Authorized Signer
---------------------------------
/s/ Signature Unreadable
-----------------------------
Witness
-8-
29
STATE OF CALIFORNIA )
) ss.
COUNTY OF _________ )
On December 13, 1985, before me, the undersigned, personally
appeared __________, personally known to me (or proved to me on the/basis of
satisfactory evidence) to be the person who executed this instrument as
Assistant Vice President of the association therein named and acknowledged to
me that said association executed it.
/s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------------------
[SEAL OMITTED] Notary Public in and for said
County and State
My commission expires:
STATE OF CALIFORNIA )
) ss.
COUNTY OF ________ )
On ___________, 19 __, before me, the undersigned, personally
appeared _____________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as
___________ of the association therein named and acknowledged to me that said
association executed it.
----------------------------------------
Notary Public in and for said
County and State
My commission expires:
-9-
30
STATE OF OHIO )
) ss.
COUNTY OF FRANKLIN )
On this 10th day of December, 1985, before me, the subscriber,
a notary public in and for said state and county, personally appeared ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, who stated that he is the Senior Trust Officer of Bank One Trust
Company, N.A., a national banking association, who acknowledged that he
executed the foregoing instrument on behalf of such national banking
association and that such execution was duly authorized by such national
banking association and was his voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
my official seal on this 10TH day of DECEMBER 1985.
/s/ Signature Unreadable
----------------------------------------
Notary Public
My commission expires: NEVER EXPIRES
This instrument prepared by: ▇▇▇▇▇ ▇▇▇▇, Esq.
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-10-
31
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & HAMPTON
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
SERIES A INTERCREDITOR AGREEMENT
This Series A Intercreditor Agreement ("Agreement") is executed as of
November 1, 1985, by and between ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a national banking
association ("Trustee").
1. Recitals.
1.1 The Series A Bonds. The Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), pursuant to that certain Trust Indenture executed as of even date
herewith between Trustee and issuer (the "Trust Indenture"), has agreed to
issue its Trinity River Industrial Development Authority Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985A (the "Series A Bonds"). The proceeds of the Series A
Bonds are to be loaned to Radiation Sterilizers, Incorporated, a California
corporation ("Company"), and will be secured by the Deeds of Trust (as defined
below). Trustee is the trustee for the Series A Bonds.
1.2 The Series A Reimbursement Agreement and the Series A
Letter of Credit. Pursuant to the terms of that certain Series A Reimbursement
Agreement executed between Company and Bank as of even date herewith (the
"Series A Reimbursement Agreement"), Bank has agreed to issue an irrevocable
standby letter of credit in the face amount of $2,198,596.00 (the "Series A
Letter of Credit"). Trustee is empowered to draw upon the Series A Letter of
Credit for the benefit of the purchasers of the Series A Bonds as provided in
the Series A Letter of Credit. The obligations of Company to Bank under the
Series A Reimbursement Agreement and other documents executed in connection
therewith have been guaranteed by ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California
limited part-
-1-
32
nership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty").
1.3 Security Documents. The obligations of Company to
Trustee relating to the payment of the principal amount of, and accrued
interest on, the Series A Bonds, and the obligations of Company to Bank under
the Series A Reimbursement Agreement and the other loan Documents are secured
by the following documents (collectively, the "Security Documents"):
(a) A Deed of Trust with Assignment of Rents (the "Texas
Deed of Trust") dated as of even date herewith, executed by Company,
as trustor, in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as trustee, for the benefit
of Bank and Trustee, as beneficiary, encumbering real property located
in the City of Fort Worth, County of Tarrant, State of Texas (the
"Texas Property");
(b) An Open End Mortgage dated as of even date herewith,
executed by Company, as borrower, for the benefit of Bank and Trustee,
as beneficiary, encumbering real property located in the Township of
Orange, County of Delaware, State of Ohio (the "Ohio Property");
(c) A Deed to Secure Debt dated as of even date herewith,
executed by Company, as grantor, for the benefit of Bank and Trustee,
as grantee encumbering real property located in the City of Atlanta,
County of DeKalb, State of Georgia (the "Georgia Property");
(d) A Deed of Trust with Assignment of Rents and Fixture
Filing dated as of even date herewith, executed by Guarantor, as
trustor, in favor of American Securities Company, as security trustee,
for the benefit of Bank and Trustee, as beneficiary, encumbering real
property located in the City of Hayward, County of Alameda, State of
California (the "Hayward Property"); and
(e) A Mortgage dated as of even date herewith, executed
by Guarantor for the benefit of Bank and Trustee, as beneficiary,
encumbering real property located in the Village of Schaumburg, County
of ▇▇▇▇, State of Illinois (the "Illinois Property").
-2-
33
(f) A Company Security Agreement dated as of even date
herewith, executed by Company, as debtor, in favor of Bank and
Trustee, as secured party, granting a security interest in certain
personal property relating to the Ohio Property, the Texas Property
and the Georgia Property.
(g) A Guaranty Security Agreement dated as of even date
herewith, executed by Guarantor, as debtor, in favor of Bank and
Trustee, as secured party, granting a security interest in certain
personal property relating to the Hayward Property and the Illinois
Property.
The deeds of trust referred to in subsections (a) through (e) are collectively
referred to herein as the "Deeds of Trust". The Texas Property, the Ohio
Property, the Georgia Property, the Hayward Property and the Illinois Property
are sometimes collectively referred to herein as the "Properties."
1.4 Agreement. In consideration of, and as a
condition to, the issuance of the Series A Letter of Credit, Bank and Trustee
hereby agrees as hereinafter provided.
2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement
to Company or to any other person or entity of all or any portion of the
proceeds of the Series A Bonds or any other funds held from time to time by
Trustee under the Trust Indenture in connection therewith without the approval
of Bank (subject to certain pre-approvals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and subsequent
communications relating thereto) given to Company of or with respect to a
default under Section 1101 of the Trust Indenture or with respect to an event
which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication
is given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents.
If such a default occurs of which Trustee has knowledge for which no notice is
required to be given to
-3-
34
Company, Trustee shall deliver a notice of such default to Bank immediately
upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have
the following rights in the event of the occurrence of an Event of Default
under the Series A Reimbursement Agreement, the Guaranty or any of the other
Loan Documents:
(a) The right to implement any or all of its rights under
the Series A Reimbursement Agreement and the other Loan Documents
(other than a foreclosure under the Texas Deed of Trust), including
without limitation commencement of actions against Company to recover
sums owing under the Loan Documents and/or to obtain injunctive relief
and making demand upon Guarantor for the performance of its
obligations under the Guaranty, without giving notice to Trustee of
Bank's intention to cause a default to be declared under the Trust
Indenture; in such event, there shall be no declaration by Trustee of
a default under the Trust Indenture notwithstanding any such action by
Bank unless there are grounds for such default other than by reason of
the occurrence of an Event of Default under the Series A Reimbursement
Agreement; or
(b) The right, with or without implementation of any or
all of its rights under the Reimbursement Agreement and the other Loan
Documents (including the right to foreclose under the Texas Deed of
Trust), to give notice to Trustee of Bank's intention to cause a
default to be declared under the Trust Indenture; in such event,
Trustee shall immediately declare such a default and make an A Drawing
under the Series A Letter of Credit.
5. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in
Section 4, above, shall limit the rights of Trustee in the event of the
occurrence of an event of default under the Bond Documents other than an event
of default which occurs by reason of the occurrence of an Event of Default
under the Series A Reimbursement Agreement. Trustee hereby acknowledges and
agrees that the occurrence of an Event of Default under the Series A
Reimbursement Agreement shall not constitute an Event of Default under the Bond
Documents unless Bank has given the notice described in Section 4(b), above.
-4-
35
6. Bank Right to Cure Bond Document Defaults.
If Company fails to cure a default under any Bond Document
within the applicable cure period, Trustee shall notify Bank in writing of such
failure and shall refrain from exercising any remedy under the Bond Documents
or at law in the event that Bank either (a) cures such default within fifteen
(15) days following receipt of such notice, or (b) if such default is not
capable of being cured by the payment of money, commences cure within thirty
(30) days and thereafter diligently proceeds with such cure. Nothing in this
Section 6 shall be construed to either (1) obligate Bank to cure any default by
Company or (2) obligate Trustee to refrain from exercising any remedy in the
event that such non-exercise would, in the opinion of bond counsel (▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇), adversely affect the tax-exempt status of interest on the
Series A Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by
Trustee of funds from all sources (including without limitation any payments
under the Series A Letter of Credit) which are sufficient to retire in full the
obligations of Bank under the Series A Letter of Credit, Trustee shall do the
following:
7.1 Subject to Section 1105 of the Trust Indenture, use
all funds in its possession pursuant to the Trust Indenture and all funds paid
under the Series A Letter of Credit as may be necessary to promptly redeem and
retire all outstanding Series A Bonds at their face amount plus any accrued
interest.
7.2 At the option of Bank, either reconvey, release and
cancel, or assign to Bank, all of its right, title and interest under the
Security Documents and execute, acknowledge and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment.
7.3 Assign to Bank all of its interest in the cash
collateral held in the Reserve Accounts and execute and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such assignment.
7.4 Deliver to Bank, in good funds and to such account as
Bank shall designate, the entire balance of undisbursed proceeds of the Series
A Bonds and any other funds then held by Trustee under the Trust Indenture,
together with any interest and other sums accrued on all such sums, as of
-5-
36
the date of payment by Bank on the Series A Letter of Credit, subject to (i)
Section 1105 of the Trust indenture and (ii) prior payment of any unpaid fees
and expenses (not to include any fees or expenses of outside legal counsel) of
Trustee described in Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest
under or in connection with the Series A Loan Agreement and the Trust
Indenture, including without limitation all sums in which Trustee has an
interest pursuant to the provisions of the Trust Indenture and all causes of
action and other rights which have accrued or may accrue thereafter; provided,
however, that Bank shall not be subject to any of the trust obligations of
Trustee with regard to such sums, causes of action and other rights.
8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series A Pledge
Agreement any Pledged Bonds (as defined in the Series A Pledge Agreement)
(other than by delivery to the Trustee for cancellation) unless, at the time of
or before such release, the aggregate amount available under the Series A
Letter of Credit shall be reinstated in an amount equal to the full principal
amount of the Pledged Bonds released together with the portion of any drawing
made under the Series A Letter of Credit with respect to the interest portion
of the purchase price of the Pledged Bonds so being released. Also,
notwithstanding rights and remedies given to Bank in the Series A Pledge
Agreement to dispose of Pledged Bonds, at any time the Series A Letter of
Credit remains in effect, Bank shall not dispose of any Pledged Bonds other
than by delivery to the Trustee for cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash
collateral to be deposited by Company in the Reserve Accounts (pursuant to
Section 6.6 of the Series A Reimbursement Agreement) in exchange for any
substitute collateral reasonably satisfactory to Bank.
10. Termination of Shared Interest Requirement.
Trustee hereby agrees that, immediately upon receipt by
Trustee of written assurances (from bond counsel or otherwise) that Trustee is
not required, for purposes of maintenance of the rating of the Series A Bonds
or otherwise, to hold a shared interest in the Security Documents, Trustee
shall, at
-6-
37
the option of Bank, either reconvey, release and cancel, or assign to Bank all
of its right, title and interest under the Security Documents and the Reserve
Accounts, and will execute, acknowledge and deliver to Bank such instruments
and documents as may be reasonably necessary in connection with such
reconveyance, release, cancellation or assignment.
11. Notices.
11.1 Trustee shall immediately give Bank notice of (a) its
resignation or removal or any other actual or planned change in the identity of
Trustee, whether pursuant to the Trust Indenture or otherwise, and (b) any
actual or planned amendment of the Trust Indenture or any supplement thereto,
or any request by any person or entity for the same.
11.2 Trustee shall deliver to Bank copies of any reports
to be delivered by Trustee pursuant to the Trust Indenture, as it may be
amended from time to time, such delivery to be reasonably concurrent with
Trustee's delivery of such reports pursuant to the Trust Indenture.
11.3 All notices, requests, demands, directions or other
communications which may be given pursuant to this Agreement must be in writing
and must be mailed or personally delivered to the appropriate party at its
address as follows:
If to Trustee: Bank One
Trust Company, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
If to Bank: ▇▇▇▇▇ Fargo
Bank, N.A. Real Estate
Industries Group ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 11.3. If any notice, request, demand,
direction or other communication is given by mail it will be effective upon the
earlier of (a) 96 hours after deposit in the U.S. Mail, certified or registered
mail, return receipt requested postage prepaid or (b) actual receipt, as
indicated by the return receipt; if given by personal delivery, when delivered.
-7-
38
12. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to
interpret or enforce their rights under this Agreement, the prevailing party in
such action shall be entitled to recover its costs and attorneys' fees as
awarded by the court in such action.
13. Amendments; Governing Law.
This Agreement may be amended only by a written agreement
signed by both Bank and Trustee. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
14. Miscellaneous.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth for them in the Series A Reimbursement
Agreement. In the event of any
-8-
39
conflict between the provisions of this Agreement and the provisions of any
Bond Document, this Agreement shall control.
IN WITNESS WHEREOF, Bank and Trustee have caused this
Agreement to be duly executed as of the date first written above.
"Bank":
▇▇▇▇▇ Fargo Bank, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ V.P.
---------------------------------
Attest /s/ Signature Unreadable
--------------------------------------
Its /s/ A.V. P.
---------------------------------
Signed, sealed and delivered in presence of
-----------------------------
/s/ Signature Unreadable
-----------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Notary Public, Santa ▇▇▇▇▇ County, California
My commission expires:
[SEAL OMITTED]
-9-
40
"Trustee":
Bank One Trust Company, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ Vice Pres
---------------------------------
Attest /s/ Signature Unreadable
--------------------------------------
Its /s/ Asst Vice President
---------------------------------
Signed , sealed and delivered in presence of
-----------------------------
/s/ Signature Unreadable
-----------------------------
/s/ Signature Unreadable
Notary Public, Franklin County, Ohio
My commission expires:
-10-
41
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
SERIES A INTERCREDITOR AGREEMENT
This Series A Intercreditor Agreement ("Agreement") is executed as of
November 1, 1985, by and between ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a national banking
association ("Trustee").
1. Recitals.
1.1 The Series A Bonds. The Trinity River Industrial
Development Authority, a non-profit industrial development corporation
("Issuer"), pursuant to that certain Trust Indenture executed as of even date
herewith between Trustee and Issuer (the "Trust Indenture"), has agreed to
issue its Trinity River Industrial Development Authority Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985A (the "Series A Bonds"). The proceeds of the Series A
Bonds are to be loaned to Radiation Sterilizers, Incorporated, a California
corporation ("Company"), and will be secured by the Deeds of Trust (as defined
below). Trustee is the trustee for the Series A Bonds.
1.2 The Series A Reimbursement Agreement and the Series A
Letter of Credit. Pursuant to the terms of that certain Series A Reimbursement
Agreement executed between Company and Bank as of even date herewith (the
"Series A Reimbursement Agreement"), Bank has agreed to issue an irrevocable
standby letter of credit in the face amount of $2,198,596.00 (the "Series A
Letter of Credit"). Trustee is empowered to draw upon the Series A Letter of
Credit for the benefit of the purchasers of the Series A Bonds as provided in
the Series A Letter of Credit. The obligations of Company to Bank under the
Series A Reimbursement Agreement and other documents executed in connection
therewith have been guaranteed by ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California
limited part-
-1-
42
nership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty").
1.3 Security Documents. The obligations of Company
to Trustee relating to the payment of the principal amount of, and accrued
interest on, the Series A Bonds, and the obligations of Company to Bank under
the Series A Reimbursement Agreement and the other Loan Documents are secured
by the following documents (collectively, the "Security Documents"):
(a) A Deed of Trust with Assignment of Rents (the
"Texas Deed of Trust") dated as of even date herewith,
executed by Company, as trustor, in favor of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
as trustee, for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the City of
Fort Worth, County of Tarrant, State of Texas (the "Texas
Property");
(b) An Open End Mortgage dated as of even date
herewith, executed by Company, as borrower, for the benefit of
Bank and Trustee, as beneficiary, encumbering real property
located in the Township of Orange, County of Delaware, State
of Ohio (the "Ohio Property");
(c) A Deed to Secure Debt dated as of even date
herewith, executed by Company, as grantor, for the benefit of
Bank and Trustee, as grantee encumbering real property located
in the City of Atlanta, County of DeKalb, State of Georgia
(the "Georgia Property");
(d) A Deed of Trust with Assignment of Rents and
Fixture Filing dated as of even date herewith, executed by
Guarantor, as trustor, in favor of American Securities
Company, as security trustee, for the benefit of Bank and
Trustee, as beneficiary, encumbering real property located in
the City of Hayward, County of Alameda, State of California
(The "Hayward Property"); and
(e) A Mortgage dated as of even date herewith,
executed by Guarantor for the benefit of Bank and Trustee, as
beneficiary, encumbering real property located in the Village
of Schaumburg, County of ▇▇▇▇, State of Illinois (the
"Illinois Property").
-2-
43
(f) A Company Security Agreement dated as of even
date herewith, executed by Company, as debtor, in favor of
Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Ohio
Property, the Texas Property and the Georgia Property.
(g) A Guaranty Security Agreement dated as of
even date herewith, executed by Guarantor, as debtor, in favor
of Bank and Trustee, as secured party, granting a security
interest in certain personal property relating to the Hayward
Property and the Illinois Property.
The deeds of trust referred to in subsections (a) through (e) are collectively
referred to herein as the "Deeds of Trust". The Texas Property, the Ohio
Property, the Georgia Property, the Hayward Property and the Illinois Property
are sometimes collectively referred to herein as the "Properties."
1.4 Agreement. In consideration of, and as a
condition to, the issuance of the Series A Letter of Credit, Bank and Trustee
hereby agrees as hereinafter provided.
2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement
to Company or to any other person or entity of all or any portion of the
proceeds of the Series A Bonds or any other funds held from time to time by
Trustee under the Trust Indenture in connection therewith without the approval
of Bank (subject to certain pre-approvals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and
subsequent communications relating thereto) given to Company of or with respect
to a default under Section 1101 of the Trust Indenture or with respect to an
event which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication
is given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents.
If such a default occurs of which Trustee has knowledge for which no notice is
required to be given to
-3-
44
Company, Trustee shall deliver a notice of such default to Bank immediately
upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have
the following rights in the event of the occurrence of an Event of Default
under the Series A Reimburse-ment Agreement, the Guaranty or any of the other
Loan Documents:
(a) The right to implement any or all of its
rights under the Series A Reimbursement Agreement and the
other Loan Documents (other than a foreclosure under the Texas
Deed of Trust), including without limitation commencement of
actions against Company to recover sums owing under the Loan
Documents and/or to obtain injunctive relief and making demand
upon Guarantor for the perfor-▇▇▇▇▇ of its obligations under
the Guaranty, without giving notice to Trustee of Bank's
intention to cause a default to be declared under the Trust
Indenture; in Such event, there shall be no declaration by
Trustee of a default under the Trust Indenture notwithstanding
any such action by Bank unless there are grounds for such
default other than by reason of the occurrence of an Event of
Default under the Series A Reimbursement Agreement; or
(b) The right, with or without implementation of
any or all of its rights under the Reimbursement Agreement and
the other Loan Documents (including the right to foreclose
under the Texas Deed of Trust), to give notice to Trustee of
Bank's intention to cause a default to be declared under the
Trust Indenture; in such event, Trustee shall immediately
declare such a default and make an A Drawing under the Series
A Letter of Credit.
8. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in
Section 4, above, shall limit the rights of Trustee in the event of the
occurrence of an event of default under the Bond Documents other than an event
of default which occurs by reason of the occurrence of an Event of Default
under the Series A Reimbursement Agreement. Trustee hereby acknowledges and
agrees that the occurrence of an Event of Default under the Series A
Reimbursement Agreement shall not constitute an Event of Default under the Bond
Documents unless Bank has given the notice described in Section 4(b), above.
-4-
45
6. Bank Right to Cure Bond Document Defaults.
If Company fails to cure a default under any Bond Document
within the applicable cure period, Trustee shall notify Bank in writing of such
failure and shall refrain from exercising any remedy under the Bond Documents
or at law in the event that Bank either (a) cures such default within fifteen
(15) days following receipt of such notice, or (b) if such default is not
capable of being cured by the payment of money, commences cure within thirty
(30) days and thereafter diligently proceeds with such cure. Nothing in this
Section 6 shall be construed to either (1) obligate Bank to cure any default by
Company or (2) obligate Trustee to refrain from exercising any remedy in the
event that such non-exercise would, in the opinion of bond counsel (▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇), adversely affect the tax-exempt status of interest on the
Series A Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by
Trustee of funds from all sources (including without limitation any payments
under the Series A Letter of Credit) which are sufficient to retire in full the
obligations of Bank under the Series A Letter of Credit, Trustee shall do the
following:
7.1 Subject to Section 1105 of the Trust Indenture, use
all funds in its possession pursuant to the Trust Indenture and all funds paid
under the Series A Letter of Credit as may be necessary to promptly redeem and
retire all outstanding Series A Bonds at their face amount plus any accrued
interest.
7.2 At the option of Bank, either reconvey, release and
cancel, or assign to Bank, all of its right, title and interest under the
Security Documents and execute, acknowledge and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment.
7.3 Assign to Bank all of its interest in the cash
collateral held in the Reserve Accounts and execute and deliver to Bank such
instruments and documents as may be reasonably necessary in connection with
such assignment.
7.4 Deliver to Bank, in good funds and to such account as
Bank shall designate, the entire balance of undisbursed proceeds of the Series
A Bonds and any other funds then held by Trustee under the Trust Indenture,
together with any interest and other sums accrued on all such sums, as of
-5-
46
the date of payment by Bank on the Series A Letter of Credit, subject to (i)
Section 1105 of the Trust Indenture and (ii) prior payment of any unpaid fees
and expenses (not to include any fees or expenses of outside legal counsel) of
Trustee described in Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest
under or in connection with the Series A Loan Agreement and the Trust
Indenture, including without limitation all sums in which Trustee has an
interest pursuant to the provisions of the Trust Indenture and all causes of
action and other rights which have accrued or may accrue thereafter; provided,
however, that Bank shall not be subject to any of the trust obligations of
Trustee with regard to such sums, causes of action and other rights.
8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series A Pledge
Agreement any Pledged Bonds (as defined in the Series A Pledge Agreement)
(other than by delivery to the Trustee for cancellation) unless, at the time of
or before such release, the aggregate amount available under the Series A
Letter of Credit shall be reinstated in an amount equal to the full principal
amount of the Pledged Bonds released together with the portion of any drawing
made under the Series A Letter of Credit with respect to the interest portion
of the purchase price of the Pledged Bonds so being released. Also,
notwithstanding rights and remedies given to Bank in the Series A Pledge
Agreement to dispose of Pledged Bonds, at any time the Series A Letter of
Credit remains in effect, Bank shall not dispose of any Pledged Bonds other
than by delivery to the Trustee for cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash
collateral to be deposited by Company in the Reserve Accounts (pursuant to
Section 6.6 of the Series A Reimbursement Agreement) in exchange for any
substitute collateral reasonably satisfactory to Bank.
10. Termination of Shared Interest Requirement.
Trustee hereby agrees that, immediately upon receipt by
Trustee of written assurances (from bond counsel or otherwise) that Trustee is
not required, for purposes of maintenance of the rating of the Series A Bonds
or otherwise, to hold a shared interest in the Security Documents, Trustee
shall, at
-6-
47
the option of Bank, either reconvey, release and cancel, or assign to Bank all
of its right, title and interest under the Security Documents and the Reserve
Accounts, and will execute, acknowledge and deliver to Bank such instruments
and documents as may be reasonably necessary in connection with such
reconveyance, release, cancellation or assignment.
11. Notices.
11.1 Trustee shall immediately give Bank notice of (a) its
resignation or removal or any other actual or planned change in the
identity of Trustee, whether pursuant to the Trust Indenture or
otherwise, and (b) any actual or planned amendment of the Trust
Indenture or any supplement thereto, or any request by any person or
entity for the same.
11.2 Trustee shall deliver to Bank copies of any reports
to be delivered by Trustee pursuant to the Trust Indenture, as it may
be amended from time to time, such delivery to be reasonably
concurrent with Trustee's delivery of such reports pursuant to the
Trust Indenture.
11.3 All notices, requests, demands, directions or other
communications which may be given pursuant to this Agreement must be
in writing and must be mailed or personally delivered to the
appropriate party at its address as follows:
If to Trustee: Bank One Trust Company, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
If to Bank: ▇▇▇▇▇ Fargo Bank, N.A.
Real Estate Industries Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 11.3. If any notice, request, demand, direction
or other communication is given by mail it will be effective upon the earlier
of (a) 96 hours after deposit in the U.S. Mail, certified or registered mail,
return receipt requested postage prepaid or (b) actual receipt, as indicated by
the return receipt; if given by personal delivery, when delivered.
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12. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to
interpret or enforce their rights under this Agreement, the prevailing party in
such action shall be entitled to recover its costs and attorneys' fees as
awarded by the court in such action.
13. Amendments; Governing Law.
This Agreement may be amended only by a written agreement
signed by both Bank and Trustee. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
14. Miscellaneous.
All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth for them in the Series A Reimbursement
Agreement. In the event of any conflict between the provisions of this
Agreement and the provisions of any Bond Document, this Agreement shall
control.
IN WITNESS WHEREOF, Bank and Trustee have caused this
Agreement to be duly executed as of the date first written above.
"Bank":
▇▇▇▇▇ FARGO BANK, N.A.
By /s/ Signature Unreadable
-------------------------------------
Its /s/ Assistant Vice President
---------------------------------
"Trustee":
BANK ONE TRUST COMPANY, N.A.,
By /s/ Signature Unreadable
-------------------------------------
Its /s/ AUTHORIZED SIGNER
---------------------------------
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49
STATE OF CALIFORNIA )
) ss.
COUNTY OF San Francisco )
On December 13, 1985, before me, the undersigned, personally appeared
appeared __________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as Asst
Vice President of the association therein named and acknowledged to me that
said association executed it.
[SEAL OMITTED] /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------------------------------
Notary Public in and for said
County and State
My commission expires:
STATE OF CALIFORNIA )
) ss.
COUNTY OF _______ )
On __________, 19 __, before me, the undersigned, personally
appeared ____________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instrument as
________ of the association therein named and acknowledged to me that said
association executed it.
----------------------------------------
Notary Public in and for said
County and State
My commission expires:
-9-
50
STATE OF OHIO )
) ss.
COUNTY OF FRANKLIN )
On this 10th day of DECEMBER 1985, before me, the subscriber,
a notary public in and for said state and county, personally appeared ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ , who stated that the is the SENIOR TRUST OFFICER of Bank One Trust
Company, N.A., a national banking association, who acknowledged that he
executed the foregoing instrument on behalf of such national banking
association and that such execution was duly authorized by such national
banking association and was his voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
my official seal on this 10TH day of DECEMBER, 1985.
/s/ Signature Unreadable
----------------------------------------
Notary Public
My commission expires: NEVER EXPIRES
This instrument prepared by: ▇▇▇▇▇ ▇▇▇▇, Esq.
SHEPPARD, MULLIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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