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EXHIBIT 10.23
LETTER OF CREDIT
AGREEMENT
Between
RADIATION STERILIZERS, INCORPORATED
and
▇▇▇▇▇ FARGO BANK, N.A.
Dated as of December 1, 1984
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TABLE OF CONTENTS
Page
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1. Definitions and Accounting Terms ...................................... 1
1.1 Defined Terms ................................................. 1
1.2 Use of Defined Terms .......................................... 5
1.3 Accounting Terms .............................................. 5
1.4 Exhibits ...................................................... 5
2. Bonds ................................................................. 5
3. Letter of Credit ...................................................... 5
4. Loan Documents ........................................................ 5
4.1 Notes ......................................................... 5
4.2 Guaranty ...................................................... 6
4.3 Security Documents ............................................ 6
4.4 Pledge Agreement .............................................. 7
4.5 Other Documents and Actions ................................... 7
4.6 Additional Security ........................................... 7
5. Conditions to Issuance and Disbursements .............................. 8
5.1 Conditions to Issuance ........................................ 8
5.2 Conditions to Disbursements ................................... 10
6. Reimbursement and Other Payments; Extension ........................... 10
6.1 Reimbursement ................................................. 10
6.2 Fees .......................................................... 11
6.3 Increased Cost Due to Change in Law 12
6.4 Obligations Absolute .......................................... 12
6.5 Extension of Letter of Credit 13
7. Representations and Warranties by Company 13
7.1 Formation of Company .......................................... 13
7.2 Execution, Delivery and Performance of
Loan Documents and Bond Documents .......................... 14
7.3 Financial Statements .......................................... 15
7.4 No Material Adverse Change .................................... 16
7.5 Tax Liability ................................................. 16
7.6 Compliance with Laws .......................................... 16
7.7 Litigation .................................................... 16
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7.8 Official Statement ............................................ 16
7.9 Conditions to Disbursement .................................... 17
8. Representations and Warranties by Bank ................................ 17
8.1 Formation of Bank ............................................. 16
8.2 Authorization ................................................. 17
8.3 No Conflict ................................................... 17
8.4 Actions and Proceedings ....................................... 17
9. Affirmative Covenants ................................................. 18
9.1 Governmental Approvals ........................................ 18
9.2 Continued Existence ........................................... 18
9.3 Books and Records ............................................. 18
9.4 Annual Operating Statements ................................... 18
9.5 Notice of Certain Events ...................................... 19
9.6 Opinions ...................................................... 19
9.7 Defaults of Others ............................................ 19
9.8 Tax Appeals ................................................... 19
9.9 Surplus Construction Funds .................................... 20
9.10 Notice Re Disbursement Conditions ............................. 20
10. Negative Covenants .................................................... 20
10.1 Transfers of Project or Obligations ........................... 20
10.2 Liens on Project .............................................. 20
10.3 Liens on Personal Property .................................... 20
11. Events of Default and Remedies Upon Default ........................... 21
11.1 Events of Default ............................................. 21
11.2 Remedies Upon Default ......................................... 22
11.3 Cumulative Remedies; No Waiver ................................ 23
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12. Miscellaneous ......................................................... 24
12.1 Actions ....................................................... 24
12.2 Nonliability of Bank .......................................... 25
12.3 No Representations by Bank .................................... 26
12.4 No Third Parties Benefited .................................... 26
12.5 Indemnity by Company .......................................... 26
12.6 Commissions ................................................... 27
12.7 Binding Effect ................................................ 27
12.8 Execution in Counterparts ..................................... 27
12.9 Prior Agreements; Amendments; Contents ........................ 28
12.10 Survival of Representations and
Warranties .................................................. 28
12.11 Notices ....................................................... 28
12.12 Further Assurances ............................................ 29
12.13 Governing Law ................................................. 30
12.14 Severability of Provisions .................................... 30
12.15 Inconsistency With Security Documents ......................... 30
12.16 Headings ...................................................... 30
12.17 Time of the Essence ........................................... 30
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EXHIBITS
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"A" Letter of Credit .................................................. 31
"B" Promissory Note ................................................... 32
"C" Conditions to Disbursement ........................................ 33
"D" Legal Descriptions of the Properties .............................. 34
"E" Permitted Title Exceptions ........................................ 35
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LETTER OF CREDIT AGREEMENT
This Letter of Credit Agreement is entered into as of December
1, 1984, by and between RADIATION STERILIZERS, INCORPORATED, a California
corporation ("Company"), and ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank").
1. Definitions And Accounting Terms.
1.1 Defined Terms. As used in this Letter of Credit
Agreement, the following terms shall have the meanings set forth respectively
after each:
(a) "Agreement" means this Letter of Credit
Agreement, either as originally executed or as it may from time to
time be supplemented, modified or amended.
(b) "ALTA Policies" means the policies of title
insurance covering the Properties required pursuant to Section 5.1.3
of this Agreement.
(c) "Bond Documents" means all of the
instruments, documents and agreements which may be executed from time
to time by Issuer, Trustee, the Original Purchaser and/or Company in
connection with the Bonds, including without limitation the following,
each of which were executed as of even date herewith unless otherwise
indicated and in each case either as originally executed or as the
same may from time to time be supplemented, modified or amended:
(1) Loan Agreement between Issuer and
Company (the "Loan Agreement");
(2) Trust Agreement between Issuer and
Trustee (the "Trust Agreement");
(3) Bond Purchase Agreement between Company,
Issuer and the Original Purchaser (the "Bond Purchase
Agreement").
(d) "Bond Legislation" means the resolution
adopted by the Board of County Commissioners of the Issuer authorizing
the issuance of the Bonds.
(e) "Bond Proceeds" means the proceeds of the
Bonds, including without limitation any insurance or condemnation
proceeds or other assets held by the
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Trustee in special funds established pursuant to the Bond Documents or
otherwise.
(f) "Bonds" means the County of Delaware, Ohio
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project) to be issued pursuant to the Trust
Agreement.
(g) "Business Day" means any day of the year,
other than a Saturday or a Sunday, (a) on which banks located (i) in
the cities in which the principal corporate trust office of the
Trustee and the principal office of the Bank are located, and (ii) in
New York, New York, are not required or authorized by law to remain
closed, and (b) on which the New York Stock Exchange is not closed.
(h) "Code" means the Internal Revenue Code of
1954, as amended, and references to the Code and Sections of the Code
shall include relevant regulations and proposed regulations thereunder
and any successor provisions to such Sections, regulations or proposed
regulations.
(i) "Company Bonds" means Bonds (a) purchased by
Trustee or the Remarketing Agent (as defined in the Trust Agreement)
with moneys furnished by Company pursuant to Section 4.11 of the Loan
Agreement and (b) delivered to Bank or its nominee pursuant to Section
7(l) or 7(m) of the Bond Legislation as a result of the occurrence of
an Event of Default.
(j) "Conditions to Disbursement" means the
conditions set forth in Exhibit "C" hereto, either as now existing or
as it may from time to time be supple- mented, modified or amended.
(k) "Deeds of Trust" means the deeds of trust
covering the Properties required pursuant to Section 4.3(a) of this
Agreement, either as originally executed or as any of them may from
time to time be supplemented, modified or amended.
(l) "Designated Representative" means either the
"Authorized Company Representative" under the Loan Agreement or, if
Bank so requests, a different Person, authorized by Company, with the
approval of Bank, to deliver certificates, requests for disbursements
and other documents and material to Bank pursuant to this Agreement.
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(m) "Disbursement" means each of the
disbursements by Trustee of Bond Proceeds pursuant to this Agreement
and the Bond Documents.
(n) "Documents" means, collectively, the Bond
Documents and the Loan Documents.
(o) "Drawing Bonds" means Bonds delivered or
deemed delivered to Bank or its nominee pursuant to the Trust
Agreement and Section 7 of the Bond Legislation as the result of a "C
Drawing," or a "C Drawing" and a "D Drawing," under the Letter of
Credit.
(p) "Event of Default" means each of those events
so designated in Article 11 of this Agreement.
(q) "Financing Statements" means the UCC-1
financing statements required pursuant to Section 4.3(c) of this
Agreement, either as originally executed or as they may from time to
time be supplemented, modified or amended.
(r) "Fiscal Year" means Company's fiscal year,
ending on March 31 of each calendar year.
(s) "Guarantor" means ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a
California limited partnership.
(t) "Guaranty" means the guaranty required
pursuant to Section 4.2 of this Agreement, either as originally
executed or as it may from time to time be supplemented, modified or
amended.
(u) "Issuer" means the County of Delaware, Ohio.
(v) "Letter of Credit" means the letter of credit
to be issued by Bank pursuant to this Agreement, either as originally
executed or as it may from time to time be supplemented, modified or
amended.
(w) "Loan Documents" means, collectively, this
Agreement, the Notes and the Security Documents, in each case either
as originally executed or as the same may from time to time be
supplemented, modified or amended.
(x) "Notes" means the promissory note or notes
required pursuant to Section 4.1 of this Agree-
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ment, either as originally executed or as from time to time
supplemented, modified or amended.
(y) "Original Purchaser" means Prudential-Bache
Securities Inc., a Delaware corporation.
(z) "Person" means any person or entity, whether
an individual, trustee, corporation, partnership, trust,
unincorporated organization or otherwise.
(aa) "Personal Property" means all of Guarantor's
right, title, interest in and to all furniture, furnishings, fixtures,
machinery, equipment, inventory and personal property of every kind
and nature, whether tangible or intangible, now or hereafter located
at, upon or about any of the Properties, or used or to be used in
connection with or relating to or arising with respect to any
Property.
(bb) "Pledge Agreement" means the pledge and
security agreement required pursuant to Section 4.4 of this Agreement,
either as originally executed or as it may from time to time be
supplemented, modified or amended.
(cc) "Project" means the construction and
operation of the industrial facility described in Exhibit "F" hereto
for the sterilization of packaged products using ionizing radiation,
as provided in the Loan Agreement.
(dd) "Project Costs" means all costs of any nature
whatsoever incurred by or on behalf of Company in connection with the
Project.
(ee) "Properties" means, collectively, the parcels
of real property described in Exhibit "D" attached hereto.
(ff) "Security Agreement" means the security
agreement covering the Personal Property required pursuant to Section
4.3(b) of this Agreement, either as originally executed or as it may
from time to time be supplemented, modified or amended.
(gg) "Security Documents" means, collectively, the
Deeds of Trust, the Security Agreement, the Financing Statements, the
Guaranty, the Pledge Agreement, and any other mortgage, deed of trust,
security agreement, financing statement, assignment or guaranty now,
hereto-
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fore or hereafter executed to secure the Notes, the obligations of
Company to Bank under this Agreement, the obligations of Guarantor to
Bank under the Guaranty or the obligations of Company to Trustee under
the Loan Agreement and other Documents, in each case either as
originally executed or as the same may from time to time be
supplemented, modified or amended.
(hh) "Trustee" means Bank One Trust Company, N.A., a
national banking association, or its successors as trustee under the
Trust Agreement.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and any defined term
used in the singular shall refer to any number of the members of the relevant
class.
1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, generally accepted accounting principles applied
on a consistent basis.
1.4 Exhibits. All Exhibits to this Agreement, either as
now existing or as the same may from time to time be supplemented, modified or
amended, are incorporated herein by this reference.
2. Bonds Company contemplates entry into the Bond Documents in
order to cause the issuance of the Bonds, so that the Bond Proceeds may be used
to finance the Project.
3. Letter of Credit. In order to enhance the market ability of
the Bonds, Company has requested Bank to issue an irrevocable letter of credit
in the form attached hereto as Exhibit "A" (such letter of credit and any
successor or substitute letter of credit issued pursuant to this Agreement
being herein individually and collectively referred to as the "Letter of
Credit") in an aggregate amount not exceeding $5,047,672.00, of which an amount
not exceeding $4,900,000.00 shall be available to pay the principal amount or
purchase price of the Bonds, an amount not exceeding $147,672.00 shall be
available in accordance with the terms of the Letter of Credit to pay for
interest accrued on the Bonds, all as more particularly provided in the Letter
of Credit. Bank is willing to issue the Letter of Credit on the terms and
conditions contained in this Agreement and the other Loan Documents.
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4. Loan Documents.
4.1 Notes. The obligation of Company to make payment to
Bank of its obligations pursuant to this Agreement and the other Loan Documents
shall be evidenced by, and shall bear interest at the rates specified in, one
or more promissory notes of Company which shall be executed by Company and
delivered by Company to Bank in such form and content, and at such times, as
Bank may from time to time require by notice to Company. The promissory note
to be executed by Company and delivered pursuant to Section 5.1.1(a), below,
shall be in the form attached hereto as Exhibit "B". Such promissory note(s),
together with any and all other promissory notes required by Bank pursuant to
this Section 4.1 shall be modified or amended by Company from time to time as
required by Bank. Without limitation upon the generality of the foregoing, in
the event that the obligations of Company under this Agreement or any of the
other Loan Documents exceeds or may exceed the face amount of the promissory
note delivered pursuant to Section 5.1.1(a), below, Company shall execute and
deliver to Bank, at Bank's request, an additional note or notes in substitution
for, or in addition to, the promissory note delivered pursuant to Section
5.1.1(a), below. The interest rate under any such promissory notes or
amendments thereto shall be consistent with the interest rate in the promissory
note attached hereto as Exhibit "B". All of the promissory notes required
pursuant to this Section 4.1 are referred to collectively in this Agreement as
the "Notes."
4.2 Guaranty. In consideration of Bank's entry into this
Agreement and the other Loan Documents, and as security for the prompt payment
when due of all sums of principal and interest advanced by Bank pursuant to the
Letter of Credit as well as for payment of any other sums owing pursuant to
this Agreement, the Notes or any of the other Loan Documents, Company shall, at
its sole expense, deliver or cause to be delivered to Bank a guaranty (the
"Guaranty") executed by Guarantor, in such form and content as Bank shall in
its sole discretion require.
4.3 Security Documents. In consideration of Bank's entry
into this Agreement and the other Loan Documents, and as security for (1) each
and every obligation of Guarantor under the Guaranty, and (2) each and every
obligation of Company to Trustee under the Loan Agreement and the other
Documents, Company shall, at its sole expense, deliver or cause to be delivered
by Guarantor to the Bank, and record or cause to be recorded, if appropriate,
the
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following documents, each of which shall be in such form and content, and
executed by such persons and/or entities, as Bank shall in its sole discretion
require, and all of which, along with the Guaranty, are collectively referred
to in this Agreement as the "Security Documents":
(a) A deed of trust covering each of the
Properties (collectively, the "Deeds of Trust").
(b) A security agreement granting to Bank and
Trustee a security interest in the Personal Property (the "Security
Agreement").
(c) Two financing statements covering the
Personal Property (the "Financing Statements").
4.4 Pledge Agreement. In consideration of Bank's entry
into this Agreement and the other Loan Documents, and as security for the
prompt payment when due of all sums of principal and interest advanced by Bank
pursuant to the Letter of Credit as well as for payment of any other sums owing
pursuant to this Agreement, the Notes or any of the other Loan Documents,
Company shall, at its sole expense, deliver or cause to be delivered to Bank a
pledge and security agreement (the "Pledge Agreement") executed by Company, in
such form and content as Bank shall in its sole discretion require, assigning
to Bank Company's right, title and interest to the Drawing Bonds and the
Company Bonds.
4.5 Other Documents and Actions. Company agrees to
execute, acknowledge and/or deliver or cause to be executed, acknowledged
and/or delivered to Bank such other instruments, agreements and other documents
(including without limitation such amendments to the Security Documents as may
be required by Bank in order to reflect amendments or supplements to this
Agreement or the Notes, as provided in Section 4.1, above), and to take such
actions, upon request by Bank, as Bank may reasonably request in order to carry
out the purposes of this Agreement and the other Loan Documents and the
transactions contemplated thereby and to protect and/or further the validity,
priority and/or enforceability of the Security Documents or subject to the
Security Documents any property, together with any renewals, additions,
substitutions, replacements or betterments thereto, intended by the terms of
this Agreement or the other Loan Documents to be covered by the Security
Documents.
4.6 Additional Security. Bank shall not acquire any
security for the obligations of Company, Guarantor or
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. under this Agreement or the other Loan Documents, other
than the rights granted to Bank under the Pledge Agreement and the Guaranty as
of the date hereof unless Company shall have afforded to Trustee, for the
benefit of the holders of the Bonds, prior to or simultaneously with the taking
by Bank of such security, rights which shall, at the option of Bank, be either
senior to the rights of Bank or of equal priority with the rights of Bank in
connection with such security.
5. Conditions to Issuance and Disbursements.
5.1 Conditions to Issuance. The obligation of Bank to
issue the Letter of Credit is subject to the following conditions precedent:
5.1.1 Bank shall have received all of the
following, each of which shall be in form and substance satisfactory to Bank:
(a) the original promissory note to be delivered
pursuant to Section 4.1. above;
(b) the original Guaranty;
(c) the original Deeds of Trust;
(d) the original Security Agreement;
(e) the original Financing Statements;
(f) the original Pledge Agreement;
(g) copies of the articles and by-laws of Company
and any and all supplements and amendments thereto, all
certified to be true and correct by the Secretary of Company;
(h) an original of each of the opinions,
certificates, letters and other documents specified in,
Section 5(b) of the Bond Purchase Agreement, in each case
addressed to Bank;
(i) a written opinion of Company's counsel, in
form and substance satisfactory to Bank, covering such matters
relating to Company and the Loan Documents as may be required
by Bank;
(j) a copy of the partnership agreement of
Guarantor and a copy of the certificate of limited
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partnership of Guarantor as recorded in San Mateo County,
California, and copies of any and all amendments to such
documents, all certified as true, complete and correct by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.;
(k) a written opinion of Guarantor's counsel, in
form and substance satisfactory to Bank, covering such matters
relating to Guarantor and the Loan Documents as may be required
by Bank;
(l) the certificate required pursuant to Section
7.2.1, below;
(m) a copy of the Bond Legislation, certified by
the Clerk of the Board of County Commissioners of Issuer (which
certificate shall state that the Bond Legislation is in full
force and effect on the date of initial authentication and
delivery of the Bonds to the Original Purchaser);
(n) an executed copy (or a duplicate thereof) of
the Trust Agreement and the Loan Agreement;
(o) the financial statements of Company and
Guarantor required to be furnished hereunder and under the
Guaranty, and the insurance policies required to be furnished
by the Guarantor under the Guaranty; and
(p) such other instruments, certificates,
opinions, consents and other documents as Bank may reasonably
require.
5.1.2 The Deeds of Trust shall have been duly
recorded.
5.1.3 Company shall, at its sole expense, have
delivered or caused to be delivered to Bank original ALTA form extended coverage
lender's policies of title insurance, or evidence of commitments therefor
satisfactory to Bank, in form and substance and issued by an insurer or insurers
satisfactory to Bank, together with such indorsements (including without
limitation CLTA Form 100 and 116 endorsements) and binders thereto as may from
time to time be required by Bank, naming Bank and Trustee, as their interests
appear, as insured, in an aggregate policy amount of not less than
$5,047,672.00, insuring the Deeds of Trust to be valid liens upon the
Properties, subordinate to no prior mortgages, deeds of trust or like
encumbrances other than the matters listed in Exhibit "E" attached hereto (the
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"Permitted Encumbrances"), and showing the Properties to be owned by Guarantor
in fee simple.
5.1.4 The Financing Statements shall have been
filed with the California Secretary of State, and Bank shall have received a
certificate of the California Secretary of State, in form and substance
satisfactory to Bank, showing the Financing Statements to be subject to no
prior filings other than filings perfecting rights of other lenders with
respect to security interests ("Permitted Liens") granted by Company in
conjunction with any Permitted Encumbrance.
5.1.5 The Bonds shall have been simultaneously
duly executed and delivered, all of the Bonds shall have been sold, and the
full authorized face amount of the Bonds (less such fees to the Original
Purchaser as are paid therefrom at the time of sale, as provided in the Bond
Documents) shall have been received by Trustee, as required pursuant to the
Bond Documents.
5.2 Conditions to Disbursements. The conditions described
in Exhibit "C" attached here all be conditions precedent to each Disbursement.
Following the initial purchase of the Bonds by the Original Purchaser, Bank
shall provide Trustee with a standing written approval of all Disbursements
thereafter requested by the Authorized Company Representative (as defined in
the Loan Agreement); provided, however, that such standing approval shall be
revoked in the event that either Bank or Trustee learns that any Condition to
Disbursement was not on the date of this Agreement, or has since ceased to be,
fulfilled. Following any such revocation, Bank's approval shall be required at
the time of each Disbursement unless and until Bank, in its sole discretion,
chooses to provide Trustee with another revocable standing approval.
6. Reimbursement and Other Payments; Extension.
6.1 Reimbursement. Company hereby agrees to pay to Bank
at the times indicated, in cash or by such other means as may be satisfactory
to Bank in its sole discretion, the following:
(a) on the date of any disbursement of funds by
Bank under the Letter of Credit, the entire amount of any and all
funds disbursed by Bank under the Letter of Credit;
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(b) upon demand, all reasonable amounts expended,
advanced or incurred by Bank (i) in connection with the negotiation,
preparation, execution, delivery, issuance, administration and
performance of the Letter of Credit, this Agreement or any other Loan
Document, or any matter related thereto; (ii) to satisfy any
obligation of Company or Guarantor under this Agreement or any of the
Loan Documents; and (iii) to collect the Notes and to enforce the
rights of the Bank under this Agreement or any other Loan Document
(including without limitation any costs incurred by Bank in connection
with any insolvency or bankruptcy proceeding affecting Company or
Guarantor or any other Person involved in the Project), which amounts
will include all court costs, appraisal fees, reasonable attorneys'
fees, fees of auditors and accountants and investigation expenses
reasonably incurred by Bank in connection with any such matters;
(c) upon demand, all other amounts owing to Bank
by Company under this Agreement or any of the other Loan Documents,
together with interest thereon from the date such amounts become due
at the interest rate provided in the Notes.
All sums owing pursuant to this Section 6.1 shall be evidenced by, and shall be
payable with interest as provided in, the Notes. Any disbursement of funds by
Bank under the Letter of Credit is hereby deemed a demand for payment of a like
amount under the Notes.
6.2 Fees. Company hereby agrees to pay to Bank, in cash
or by such other means as may be satisfactory to Bank in its sole discretion,
amounts as follows:
(a) (i) on or before the date on which the Bonds
are sold to the Original Purchaser pursuant to the Bond Purchase
Agreement, as a loan administration fee for the first year of the term
of the Letter of Credit, in advance, an amount equal to one percent
(1%) of the undrawn amount initially available to be drawn under the
Letter of Credit; and (ii) for each subsequent year that the Letter of
Credit remains in effect until the expiration of its three (3) year
term, Company will pay to Bank, in advance, on or before the
anniversary of issuance of the Letter of Credit, a loan administration
fee in an amount equal to one percent (1%) of the undrawn amount
available to be drawn under the Letter of Credit as of the last day of
the pre-
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ceding year of the term of the Letter of Credit (which amount will
take into account principal reductions of the Bonds).
In no event shall Bank have any obligation to make reimbursement or to
otherwise account to Company in respect of fees paid by Company as a result of
any reduction in the undrawn amount under the Letter of Credit.
6.3 Increased Costs Due to Change in Law. If any change
in any law or regulation or in the interpretation thereof by any court or
administrative agency shall either (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against letters of credit
issued by Bank, or (ii) impose on Bank any other condition regarding this
Agreement or the Letter of Credit (other than changes in the rates of income
taxation generally applicable to Bank), and the result of any such event shall
be to increase the cost to Bank of issuing or maintaining the Letter of Credit
(which increase in cost shall be determined by Bank's reasonable allocation of
the aggregate of such cost increases resulting from such events), and such
requirement or cost shall remain in effect for more than one hundred eighty
(180) days after notice thereof from Bank to Company, then (a) Bank shall so
notify Company, and (b) upon receipt of such notice from Bank, Company shall
promptly pay to Bank, from time to time as specified by Bank, additional
amounts which shall be sufficient to compensate Bank for such increased costs
as accrue after the expiration of such one hundred eighty (180) day period,
together with interest on each such amount from the date of such notice until
payment in full thereof at the rate contained in the Notes. A certificate as
to such increased cost incurred by Bank as a result of any such event,
submitted by Bank to Company, shall be conclusive as to the amount thereof.
6.4 Obligations Absolute. The obligations of Company
under this Agreement and the Notes shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and the Notes, under all circumstances whatsoever, including, without
limitation, the following circumstances:
(a) any lack of validity or enforceability of the
Letter of Credit, or any of the Loan Documents or the Bond Documents
or any other agreement or instrument related thereto;
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(b) any amendment or waiver of or any consent to
departure from the terms of the Letter of Credit or any of the Loan
Documents or the Bond Documents or any other agreement or instrument
related thereto;
(c) the existence of any claim, set-off, defense
or other right which the Company, Guarantor or Issuer may have at any
time against Trustee, any beneficiary or any transferee of the Letter
of Credit (or any Person for whom Trustee, any such beneficiary or any
such transferee may be acting), Bank or any other Person, whether in
connection with this Agreement, the Letter of Credit, any of the other
Loan Documents, the Bonds or any other agreement or instrument related
thereto, or in connection with the Project or any unrelated
transaction;
(d) any statement, draft or any other document
presented under the Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect, or any statement therein being
untrue or inaccurate in any respect whatsoever;
(e) the surrender or impairment of any security
for the performance or observance of the terms of this Agreement, any
of the other Loan Documents or any other agreement related thereto; or
(f) any other circumstance, happening or omission
whatsoever, whether or not similar to any of the foregoing.
6.5 Extension of Letter of Credit. The term of the Letter
of Credit may be extended if, following Company's request, Bank and Company
reach agreement on the terms of such extension. Bank shall not be obligated to
enter into any such extension or to otherwise extend, modify or supplement the
Letter of Credit or any of the other Loan Documents.
7. Representations and Warranties by Company. As a material
inducement to Bank's entry into this Agreement and the transactions
contemplated hereby, Company represents and warrants to Bank that:
7.1 Formation of Company. Company (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California, (b) has all requisite power and authority to conduct its
business and to own and lease its properties, and (c) is duly qualified to do
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business in, and is in good standing in, every jurisdiction in which the nature
of business conducted by it makes such qualification necessary or where failure
to so qualify would have a material adverse effect on its business or financial
condition or its performance of its obligations under the Loan Documents or the
Bond Documents.
7.2 Execution, Delivery and Performance of Loan Documents
and Bond Documents.
7.2.1 Company and Guarantor have all requisite
power and authority to execute and deliver, and to perform all of their
obligations under, the Loan Documents and the Bond Documents, and shall execute
and deliver to Bank, prior to the issuance of the Letter of Credit and as a
condition thereto, a certificate evidencing the due authorization and consent
of the board of directors of Company and the partners in Guarantor to the
execution of the Loan Documents and Bond Documents and the entry by Company and
Guarantor into the transaction contemplated thereby.
7.2.2 The execution and delivery by Company and
Guarantor of, and the performance by Company and Guarantor of all of their
obligations under, each Loan Document and Bond Document have been duly
authorized by all necessary action and do not and will not:
(a) require any consent or approval not
heretofore obtained of any Person having any interest in Company or
Guarantor;
(b) violate any provision of, or require any
consent under the articles or by-laws of Company or the partnership
agreement or certificate of partnership of Guarantor;
(c) result in or require the creation or
imposition of any mortgage, deed of trust, pledge, lien, security
interest, claim, charge, right of others, or other encumbrance of any
nature (other than as contemplated under the Loan Documents and the
Bond Documents) upon or with respect to any property now owned or
leased or hereafter acquired by Company or Guarantor;
(d) violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to Company or
Guarantor; or
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(e) result in a breach of or constitute a default
under, or cause or permit the acceleration of any material obligation
owed under, any indenture or loan or credit agreement or any other
agreement, lease, or instrument to which Company or Guarantor is a
party or by which Company or Guarantor or any of their property is
bound or affected.
7.2.3 At the time of execution of this Agreement,
neither Company nor Guarantor is in default in any respect that is materially
adverse to the interests of the holders of the Loan Documents or the Bond
Documents or that would have any material adverse effect on the financial
condition of Company or Guarantor or the conduct of their business under any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination, award, indenture, agreement, lease or instrument described in
Section 7.2.2(d) or Section 7.2.2(e), above,
7.2.4 No authorization, consent, approval, order,
license, exemption from, or filing or registration or qualification with, any
court or governmental department, public body, authority, commission, board,
bureau, agency, or instrumentality, is or will be required to authorize, or is
otherwise required (except for such authorizations, consents, approvals,
orders, licenses, exemptions or filings as may be required under the state
securities or "Blue Sky" laws in connection with the sale of the Bonds by the
Original Purchaser under the Bond Purchase Agreement, which shall be obtained
to the extent necessary by the Original Purchaser) in connection with the
following:
(a) the execution and delivery by Company and
Guarantor of, and the performance by Company and Guarantor of all of
their respective obligations under, the Loan Documents and the Bond
Documents, or
(b) the creation of the liens, security
interests, or other charges or encumbrances described in the Loan
Documents and the Bond Documents.
7.2.5 Each of the Loan Documents and the Bond
Documents, when executed and delivered, will constitute the legal, valid, and
binding obligations of Company and Guarantor (to the extent each is a party
thereto or obligated thereunder), enforceable against Company and Guarantor in
accordance with its terms.
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7.3 Financial Statements. Company and Guarantor have
each furnished to Bank their respective financial statements, and such
statements and any other financial statements or reports submitted by Company
or Guarantor to Bank or to the Original Purchaser accurately reflect the
financial position of Company and Guarantor as of the date thereof.
7.4 No Material Adverse Change. There has been no
material adverse change in the condition, financial or otherwise, of Company or
Guarantor since the dates of the financial statements described in Section 7.3,
above.
7.5 Tax Liability. Company and Guarantor have each filed
all tax returns (federal, state and local) required to be filed and has paid
all taxes shown thereon to be due and all property taxes due, including
interest and penalties, if any; provided, however, that Company and Guarantor
shall not be required to pay and discharge any such tax so long as the legality
thereof shall be promptly and actively contested in good faith and by
appropriate proceedings. Company and Guarantor have each established and are
maintaining adequate reserves for tax liabilities, if any (including any tax
liabilities contested pursuant to this Section 7.5).
7.6 Compliance with Laws. Company and Guarantor are and
shall remain in compliance in all material respects with all laws, regulations
and requirements applicable to their respective businesses and have each
obtained all authorizations, consents, approvals, orders, licenses, exemptions
from, and have each accomplished all filings or registrations or qualifications
with, any court or governmental department, public body, authority, commission,
board, bureau, agency or instrumentality, failure to obtain or comply with
which would have a material and adverse effect upon their respective
businesses.
7.7 Litigation. There are no actions, suits or
proceedings pending or threatened against or affecting Company or Guarantor or
the property of Company or Guarantor before any court or governmental
department, public body, authority, commission, board, bureau, agency or
instrumentality, except as expressly disclosed to Bank in writing by Company or
Guarantor prior to the execution of this Agreement.
7.8 Official Statement. To the best of Company's
knowledge, neither the Official Statement nor the Preliminary Official
Statement provided in connection with the Bonds,
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nor any certificate or statement or any data furnished by Company to Bank or to
Trustee or any other person or entity in connection with the negotiation of
this Agreement or any of the other Loan Documents or the Bond Documents or the
transactions contemplated thereby (other than statements contained in the
Preliminary Official Statement which were revised or corrected in the Official
Statement) contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained herein or therein, in the light
of the circumstances under which they were made, not misleading.
7.9 Conditions to Disbursement. All of the Conditions to
Disbursement have been fulfilled, except as expressly disclosed to Bank in
writing by Company prior to the execution of this Agreement.
8. Representations and Warranties by Bank. As a material
inducement to Company's entry into this Agreement and the transactions
contemplated hereby, Bank represents and warrants to Company that:
8.1 Formation of Bank. Bank is a national banking
association, duly organized, validly existing and in good standing; Bank has
all requisite corporate power to carry on its business as now being conducted,
and has all requisite corporate power and authority to enter into this
Agreement, issue the Letter of Credit, and perform its obligations hereunder
and thereunder.
8.2 Authorization. The execution, delivery and
performance of this Agreement and the issuance of the Letter of Credit by the
Bank have been duly authorized by all necessary corporate action on the part of
Bank.
8.3 No Conflict. The execution, delivery and performance
of this Agreement and the issuance of the Letter of Credit by Bank do not
conflict with or violate any provision of the articles of incorporation or
by-laws of Bank and do not, to the best of Bank's knowledge, conflict with,
violate, result in a breach of, or cause a default under (i) any provision of
federal, state or local law or regulation relating to the business or assets of
Bank, (ii) any provision of any consent, arbitration award, judgment or decree
by which Bank is bound, or (iii) any provision of any agreement or instrument
to which Bank is a party or by which Bank or its assets are bound or
restricted.
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8.4 Actions and Proceedings. There is no pending action
or proceeding before any court, governmental agency or arbitrator against Bank
and, to the best of Bank's knowledge, there is no threatened action or
proceeding against Bank before any court, governmental agency or arbitrator
which would materially and adversely affect the ability of the Bank to perform
its obligations under this Agreement or the Letter of Credit, subject to
applicable laws, principles and judicial decisions.
9. Affirmative Covenants. For so long as any obligation of
Company in connection with this Agreement or any of the other Loan Documents
remains outstanding, Company shall, unless Bank otherwise consents in writing:
9.1 Governmental Approvals. Deliver to Bank, from time
to time at Bank's request, evidence in form and substance satisfactory to Bank
that Company has complied with all applicable laws, ordinances, regulations and
other requirements relating thereto.
9.2 Continued Existence. Maintain its existence, and
continue to be a corporation in good standing in the State of California. In
connection with the covenants given pursuant to this Section 9.2, Company
agrees that it will not dissolve or otherwise dispose of all or substantially
all of its assets.
9.3 Books and Records. Maintain full and complete books
of account and other records reflecting the results of its operations (in
conjunction with any other ventures as well as specifically with respect to the
Project), including without limitation all contributions of equity investment
capital, and provide to Bank, promptly after request by Bank therefor, such
financial statements and other information pertaining to Company, and the
assets and operations of Company, as Bank may from time to time request.
9.4 Annual Operating Statements. Deliver to Bank the
following:
(a) Promptly and in any event within ninety
(90)days after the end of each Fiscal Year, balance sheets and
statements of income for Company's operations for such Fiscal Year,
accompanied with all supporting schedules and certificates of
Company's chief financial officer that the statements are true and
correct.
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(b) Upon request, to copies of all such regular
or periodic financial statements or financial reports as Company shall
send to its shareholder(s).
(c) Upon request, copies of all such regular or
periodic reports which are available for public inspection which
Company may be required to file with any federal or state department,
bureau, commission or agency, including without limitation tax
returns.
(d) Promptly and in any event within one hundred
twenty (120) days after the end of each Fiscal Year, a certification
of a Designated Representative that no Event of Default has occurred
and Company is in compliance with all covenants and agreements made by
Company and contained in this Agreement or any of the Loan Documents.
9.5 Notice of Certain Events. Promptly notify Bank if
(a) Company learns of the occurrence of any event which constitutes, or will,
with the passage of time or the giving of notice or both, constitute an Event
of Default or a default under this Agreement or any of the other Loan Documents
or any of the Bond Documents, together with a detailed statement by a
responsible officer of Company specifying the nature thereof and what action
Company is taking or proposes to take with respect thereto, or (b) Company
receives any notice from, or the taking of any other action by, the holder of
any promissory note, debenture or other evidence of indebtedness of Company or
of any security (as defined in the Securities Act of 1933, as amended) of
Company with respect to a claimed default, together with a detailed statement
by a responsible officer of Company specifying the notice given or other action
taken by such holder and the nature of the claimed default and what action
Company is taking or proposes to take with respect thereto, or (c) Company
learns of the existence of any legal, judicial or regulatory proceedings
affecting Company or any property of Company in which the amount involved is
material and is not covered by insurance or which, if adversely determined,
would cause a material adverse change in the financial condition of Company, or
(d) there shall occur or exist any other event or condition causing a material
adverse change in the financial condition of Company.
9.6 Opinions. Deliver to Bank, concurrently with the
delivery thereof to Trustee, a copy of each opinion of counsel required
pursuant to the Bond Documents, in each case addressed to Bank.
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9.7 Defaults of Others. Use its best efforts to cure or
cause to be cured all defaults of Trustee or Issuer under the Bond Documents,
if economically practical and/or required in order to avoid an event of default
under the Bonds.
9.8 Tax Appeals. Bring, maintain and diligently
prosecute any and all actions, appeals and proceedings which are available to
Company in order to challenge, reverse or set aside a "determination of
taxability," as that term is defined in the Bond Documents.
9.9 Surplus Construction Funds. Subsections 3.3(k)(iii)
and (iv) of the Loan Agreement notwithstanding, use moneys in the Construction
Fund (as defined in the Loan Agreement) remaining after the Project is complete
and fully paid for solely for the purposes described in Subsections 3.3(k)(i)
and (ii) of the Loan Agreement and/or for the purchase of Cobalt- 60 and
similar raw materials for use in the operation of the Project.
9.10 Notice re Disbursement Conditions. Promptly notify
Bank if Company learns that any Condition to Disbursement was not on the date
of this Agreement, or has since ceased to be, fulfilled.
10. Negative Covenants. For so long as any obligation of Company
in connection with this Agreement or any of the other Loan Documents remains
outstanding, Company shall not, unless Bank otherwise consents in writing:
10.1 Transfers of Project or Obligations. Assign or
delegate any obligations under the Bonds, the Letter of Credit, this Agreement
or any of the other Loan Documents or Bond Documents, or sell, assign, convey,
lease as a whole or otherwise transfer the Project or any interest therein,
without the express prior written consent of Bank, which consent may be granted
or withheld in its sole discretion. In connection with the restrictions
contained in this Section 10.1, Company acknowledges that Bank has entered into
the transaction contemplated by this Agreement in reliance upon the financial
strength, creditworthiness, reputation and management expertise of Company and
would not have entered into such transaction but for such reliance.
10.2 Liens on Project. Create or cause or suffer to
become effective any mortgage, deed of trust or like lien or encumbrance
affecting the Project or any portion of the same, except for the lien of
non-delinquent real property
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taxes and those matters listed in Exhibit "G" hereto. In connection with the
restrictions contained in this Section 10.2 and in Section 10.3, below, Company
acknowledges that liens and encumbrances of the Project will, in Bank's view,
impair Company's financial strength and creditworthiness.
10.3 Liens on Personal Property. Install in, or otherwise
use in connection with, the Project any personal property under any security
agreements or similar agreements however denominated whereby the right is
reserved or accrues to anyone to remove or repossess any such items or whereby
any Person other than Bank or Trustee reserves or acquires a lien upon such
items.
11. Events of Default and Remedies Upon Default.
11.1 Events of Default. The occurrence of any one or more
of the following, whatever the reason therefor, shall constitute an Event of
Default hereunder:
(a) Company shall fail to pay any amount of
principal or interest owing under this Agreement, the Notes or any of
the Loan Documents, together with interest thereon from the due date
until payment at the rate provided in the Notes, within ten (10) days
after the date on which payment is due; or
(b) Either Company or Guarantor shall fail to
perform or observe any term, covenant or agreement contained in any of
the Loan Documents on its part to be performed or observed the breach
of which can be cured by the payment of money, within ten (10) days
after notice; or
(c) Either Company or Guarantor shall fail to
perform or observe any term, covenant or agreement contained in any of
the Loan Documents on its part to be performed or observed, other than
terms, covenants or agreements the breach of which can be cured by the
payment of money, within thirty (30) days after notice (provided,
however, that if cure cannot reasonably be effected within such thirty
(30) day period there shall be no Event of Default under this Section
11.1(c) so long as Company or Guarantor commences cure within such
thirty (30) day period and thereafter diligently prosecutes such cure
to completion); or
(d) Trustee declares any default in connection
with the Bonds or the Bond Documents; or
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(e) Company shall fail to perform or observe any
term, covenant or agreement contained in any of the Bond Documents on
its part to be performed or observed; or
(f) Any representation or warranty in any of the
Loan Documents or Bond Documents or in any certificate, agreement,
instrument or other document made or delivered pursuant to or in
connection with any of the Loan Documents or Bond Documents proves to
have been incorrect in any material respect when made; or
(g) All or a substantial portion of any Property
is condemned, seized or appropriated by a governmental authority; or
(h) The dissolution or liquidation of Company or
Guarantor or failure by Company or Guarantor promptly to lift any
execution, garnishment or attachment of such consequence as will
materially impair its ability to make any payments under the Loan
Documents, or the entry of an order for relief by a court of competent
jurisdiction in any proceeding for the liquidation or reorganization
of Company or Guarantor, or the filing of a petition by or against
Company or Guarantor under the provisions of any bankruptcy act or
under any similar act which may be hereafter enacted, or an assignment
by Company or Guarantor for the benefit of its creditors, or the entry
by Company or Guarantor into an agreement of composition with its
creditors or the appointment of a receiver, trustee, custodian,
liquidator or similar officer for Company or Guarantor; or
(i) Cessation of ownership or operation by
Guarantor of any Property (except as a result of damage, destruction
or condemnation of the Property, if Guarantor thereafter complies with
the provisions of the Loan Documents pertaining thereto) without the
prior approval of Bank required under Section 11.3 of the Guaranty.
11.2 Remedies Upon Default. Upon the occurrence of any
Event of Default, Bank may, at its option, do any or all of the following:
(a) Declare the principal of all amounts owing
under the Notes, this Agreement and the other Loan Documents
(including all obligations secured by the Security Documents) and all
other indebtedness of
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Company to Bank, together with interest thereon, to be forthwith due
and payable, regardless of any other specified maturity or due date,
without notice of default, presentment or demand for payment, protest
or notice of nonpayment or dishonor, or other notices or demands of
any kind or character, and without the necessity of prior recourse to
any security;
(b) Implement any remedies available to Bank
under or in connection with the Bond Documents;
(c) Terminate its consent to the disbursement or
release of the Bond Proceeds;
(d) If the Event of Default may be cured by Bank
by taking actions or making payments of money, Bank shall have the
right (but not the obligation) to take such actions (including without
limitation the retention of attorneys and the commencement or
prosecution of actions on its own behalf or on behalf of Company),
make such payments and pay for the costs of such actions (including
without limitation attorneys' fees and court costs) from its own
funds; provided, that the taking of such actions at Bank's expense or
the making of such payments by Bank out of Bank's own funds shall not
be deemed to cure such Event of Default, and the same shall not be so
cured unless and until Company shall have reimbursed Bank for such
payment, together with interest at the rate provided for in the Notes,
from the date of such payment until the date of reimbursement. If
Bank advances its own funds for such purposes, such funds shall be
considered advances under the Notes and shall be secured by the
Security Documents, notwithstanding that such advances may cause the
total amount advanced hereunder to exceed the face amount of the Notes
or the amount committed to be advanced pursuant to this Agreement, and
Company shall immediately upon demand reimburse Bank therefor with
interest at the rate provided for in the Notes, from the date of such
advance until the date of reimbursement; and
(e) Exercise any and all of its rights under the
Loan Documents or the Bond Documents or as provided by law including,
without limitation, foreclosing on any security, and exercise any
other rights with respect to any security, whether under the Security
Documents or any other agreement or as provided by law, all in such
order and in such manner as Bank in its sole discretion may determine.
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11.3 Cumulative Remedies; No Waiver. All remedies of Bank
provided for herein are cumulative and shall be in addition to any and all
other rights and remedies provided in the Letter of Credit, the Notes, the
Security Documents, the Bond Documents or any of the Loan Documents, or
provided by law from time to time; provided, however, that Bank hereby agrees
to waive, at any time after the commencement of a proceeding by or against
Company, Guarantor or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. in bankruptcy or reorganization, its
right to set off any and all deposits (general or special) at any time held and
other indebtedness at any time owing by Bank to or for the credit or the
account of Company, Guarantor or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., as applicable, against
any and all of the obligations of Company, Guarantor or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.,
as applicable, now or hereafter existing in respect of the obligations of
Company, Guarantor or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., as applicable, set forth herein or
in any of the other Loan Documents. The exercise of any right or remedy by
Bank hereunder shall not in any way constitute a cure or waiver of default
hereunder or under the Letter of Credit, the Notes, the Security Documents, the
Bond Documents or any of the Loan Documents, nor invalidate any notice of
default or any act done pursuant to any such notice, nor prejudice Bank in the
exercise of any rights hereunder or under the Letter of Credit, the Notes, the
Security Documents, the Bond Documents or the Loan Documents, unless in the
exercise of said rights, Bank and Trustee realize all amounts owed to either
under the Letter of Credit, this Agreement, the Notes, the Security Documents,
the Bond Documents and the Loan Documents and all Events of Default are cured.
No waiver by Bank of any default or breach by Company or Guarantor hereunder
shall be implied from any omission by Bank to take action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default expressly made the subject of the
waiver. Any such express waiver shall be operative only for the time and to
the extent therein stated. Any waiver of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach of
the same covenant, term or condition. The consent or approval by Bank to or of
any act by Company or Guarantor requiring further consent or approval shall not
be deemed to waive or render unnecessary consent or approval to or of any
subsequent act,
12. Miscellaneous.
12.1 Actions. Bank shall have the right to commence,
appear in, and defend any action or proceeding pur-
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porting to affect the rights or duties of Bank, Company or Guarantor hereunder
or under the Guaranty or the payment of any funds hereunder or under the
Guaranty, and in connection therewith Bank may pay necessary expenses, employ
counsel and pay reasonable attorneys' fees. Company agrees to pay to Bank, on
demand, all costs and expenses incurred by Bank in connection therewith,
including without limitation reasonable attorneys' fees, together with interest
from the date of expenditure at the rate provided in the Notes. In the event
that either Bank or Company shall bring an action against the other to
interpret or enforce the terms or provisions of the Letter of Credit, the
Notes, this Agreement or any of the other Loan Documents, the prevailing party
in such action shall be entitled to recover its attorneys' fees and costs
(whether or not taxable) as awarded by a court of competent jurisdiction,
whether or not such action is prosecuted to final judgment.
12.2 Nonliability of Bank. Company acknowledges and
agrees that:
(a) the relationship between Company and Bank is,
and shall at all times remain, solely that of borrower and lender, and
Bank neither undertakes nor assumes any responsibility or duty to
Company to select, review, inspect, supervise, pass judgment upon or
inform Company of any matter in connection with the Project, including
without limitation matters relating to the adequacy or legal
sufficiency of any of the documents, agreements or arrangements
pertaining to the Bonds, the Bond Documents or the rights or
obligations of any Person in connection therewith; and Company shall
rely entirely upon its own judgment with respect to such matters, and
any review, inspection, supervision, exercise of judgment or
information supplied to Company by Bank in connection with such
matters is for the protection of Bank only and neither Company nor any
other Person is entitled to rely thereon;
(b) Bank owes no duty of care to protect Company
against negligent, faulty, inadequate or defective building or
construction;
(c) Bank shall not be responsible or liable to
Company for any loss, damage, liability or claim of any kind relating
to injury or death to persons or damage to property or negligent,
faulty, inadequate or defective building or construction and Company
hereby
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indemnities and holds Bank harmless from any such loss, damage,
liability or claim.
(d) Bank shall not be responsible or liable to
Company for use which may be made of the Letter of Credit or for any
acts or omissions of Trustee and any beneficiary or transferee in
connection therewith;
(e) Bank shall not be responsible or liable to
Company for the validity, sufficiency or genuineness of documents
(except as to Bank's signatures thereon), or of any endorsements
thereon, even if such documents should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent, or forged
(except to the extent Bank is grossly negligent in accepting or
relying upon such documents);
(f) Bank shall not be responsible or liable to
Company as a result of any circumstances in any way related to the
making or failure to make payment under the Letter of Credit, other
than as a result of the gross negligence or willful misconduct of
Bank.
12.3 No Representations by Bank. By accepting or
approving anything required to be observed, performed or fulfilled, or to be
given to Bank pursuant to this Agreement or any of the other Loan Documents or
Bond Documents, including any certificate, statement of profit and loss or
other financial statement, survey, appraisal or insurance policy, Bank shall
not be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation to anyone with respect thereto by
Bank. Bank may accept documents in connection with the Letter of Credit or any
of the other Loan Documents or Bond Documents which appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
12.4 No Third Parties Benefited. This Agreement is made
for the purpose of defining and setting forth certain obligations, rights and
duties of Company and Bank in connection with the Letter of Credit. It shall
be deemed a supplement to the Notes and the Security Documents. It is made for
the sole protection of Company, Bank, and Bank's successors and assigns. No
other Person shall have any rights of any nature hereunder or by reason hereof,
except to the extent that Trustee is expressly granted rights hereunder.
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12.5 Indemnity by Company. Company hereby indemnifies and
holds harmless Bank and its directors, officers, agents and employees
(collectively the "indemnities") from and against:
(a) any and all claims, demands, actions or
causes of action that are asserted against any indemnitee by any
Person if the claim, demand, action or cause of action directly or
indirectly relates to a claim, demand, action or cause of action that
the Person has or asserts against Company in connection with the
issuance of the Letter of Credit, the Bonds, any of the Bond
Documents, or the transaction to which such documents pertain;
(b) any and all claims, demands, actions or
causes of action that are asserted against any indemite by any Person
and arise from or in connection with (i) any statement or omission,
actual or alleged, in the Bond Documents, or (ii) any breach or
default, actual or alleged, of the representations, warranties,
covenants, conditions or agreements contained in this Agreement or any
of the other Loan Documents or in any of the Bond Documents; and
(c) any and all liabilities, losses, costs or
expenses (including court costs and attorneys' fees) that any
indemnitee suffers or incurs as a result of the assertion of any
claim, demand, action or cause of action specified in Section 12.5(a)
or Section 12.5(b), above.
The indemnity contained in this Section 12.5 shall not extend to any claims,
demands, actions, causes of action, liabilities, losses, costs or expenses
which result solely from the gross negligence or willful misconduct of Bank.
12.6 Commissions. Company hereby indemnities and holds
Bank harmless any responsibility, cost and/or liability, including any
attorneys' fees incurred, in connecm tion with any claim by any Person for the
payment of any commission, charge or brokerage fee in connection with the Bonds
or any of the other transactions contemplated in con- nection with this
Agreement.
12.7 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Company, Bank and their respective successors and
assigns, subject to the provisions of Section 10.1. above.
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12.8 Execution in Counterparts. This Agreement and any other Loan
Document except the Notes may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, taken together
will be deemed to be but one and the same instrument. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
12.9 Prior Agreements; Amendments; Consents. This Agreement,
together with the other Documents, contains the entire agreement between Bank
and Company with respect to the Letter of Credit, and all prior negotiations,
understandings and agreements with respect to the Letter of Credit are
superseded by this Agreement and the other Documents. No amendment,
modification, supplement, termination or waiver of any provision of this
Agreement or any of the other Loan Documents, and no consent to any departure
by Company therefrom, may in any event be effective unless in writing signed by
Bank, and then only in the specific instance and for the specific purpose
given.
12.10 Survival of Representations and Warranties. All
representations and warranties of Company contained herein or in any other Loan
Document (qualified in each case by the facts and circumstances surrounding
each such document at the time such document was executed) will survive the
delivery of the Letter of Credit and the execution and delivery of the Notes,
and are material and have been and will be relied upon by Bank, notwithstanding
any investigation made by Bank or on behalf of Bank. For the purpose of the
foregoing, all statements contained in any certificate, agreement or other
writing delivered by or on behalf of Company or Guarantor pursuant hereto or
pursuant to any other Loan Document or in connection with the transactions
contemplated hereby or thereby shall be deemed to be representations and
warranties of Company contained herein or in the other Loan Documents, as the
case may be.
12.11 Notices. All notices, requests, demands, directions and other
communications provided for in this Agreement and under any of the other Loan
Documents must be in writing and must be mailed, telegraphed, delivered or sent
by Telex or cable to the appropriate party at its address as follows:
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34
If to Company:
Radiation Sterilizers, Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
General Counsel
Radiation Sterilizers, Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Bank:
▇▇▇▇▇ Fargo Bank, N.A,
Real Estate Industries Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
with a copy to:
Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Addresses for purposes of notice may be changed from time to time by written
notice sent to the other parties in accordance with this Section 12.11. Any
notice, request, demand, direction or other communication given by telegram,
Telex or cable must be confirmed within 48 hours by letter mailed or delivered
to the appropriate party at its respective address. 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 telegraph or cable,
when delivered to the telegraph company with charges prepaid; if given by
Telex, when sent; or if given by personal delivery, when delivered.
12.12 Further Assurances. Company shall, at its expense and without
expense to Bank, do, execute and deliver
-29-
35
such further acts and documents as Bank from time to time requires for the
purpose of assuring and confirming unto Bank the rights hereby created or
intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of any Loan Document, or for assuring
the validity of any security interest or lien under any Security Document.
12.13 Governing Law. All of the Loan Documents shall be governed
by, and construed and enforced in accordance with, the laws of the State of
California.
12.14 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid shall be
inoperative, unenforceable or invalid without affecting the remaining
provisions, and to this end the provisions of all Loan Documents are declared
to be severable.
12.15 Inconsistency With Security Documents. In the event that any
of the provisions of the Security Documents are inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall prevail.
12.16 Headings. Article and section headings in this Agreement are
included for convenience of reference only and are not part of this Agreement
for any other purpose,
-30-
36
12.17 Time of the Essence. Time is of the essence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
"Company":
RADIATION STERILIZERS, INCORPORATED
a California corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Its President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
-------------------------------
Its Secretary
"Bank":
▇▇▇▇▇ FARGO BANK, N.A.,
a national banking association
By [SIG]
-------------------------------
[SIG]
-------------------------------
Printed/Name and Title
-31-
37
EXHIBIT "A"
LETTER OF CREDIT
Irrevocable Letter of
Credit No. _____
Dated as of _______, 1984
Bank One Trust Company, N.A.
as Trustee and Paying Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Ladies and Gentlemen:
▇▇▇▇▇ Fargo Bank, N.A. ("Bank") hereby establishes in your favor for
the account of Radiation Sterilizers, Incorporated, a California corporation
("Company"), its Irrevocable Letter of Credit No. ______ ("Letter of Credit")
in a maximum amount of up to 5,047,672.00 (as more fully described below)
effective immediately and expiring at Bank's counters by 4:00 P.M., San
Francisco time, on January 15, 1988, unless extended by Bank (the "Expiration
Date").
This Letter of Credit is being issued in connection with that
certain Trust Agreement (the "Trust Agreement") dated as of December 1, 1984,
between you, as Trustee, and the County of Delaware, Ohio (the "Issuer"),
pursuant to which the Issuer has agreed to authorize and issue and sell certain
County of Delaware, Ohio Variable Rate Demand Industrial Development Revenue
Bonds (Radiation Sterilizers, Incorporated Project) (the "Bonds") in the
aggregate principal amount of $4,900,000.00, the payment of which Bonds is
secured by, among other things, this Letter of Credit.
As used in this Letter of Credit, the term "business day"
shall mean a day other than (i) a Saturday, (ii) a Sunday, (iii) a day upon
which banking institutions in the State of California or the City of New York
are authorized or required by law to close, or (iv) a day on which the New York
Stock Exchange is closed.
You, as Trustee and Paying Agent, pursuant to the Trust
Agreement, are hereby irrevocably authorized to draw on Bank for the account of
Company, in accordance with the terms and conditions hereof and subject to
reductions in amounts as hereinafter set forth, an aggregate amount not
exceeding $5,047,672,00 (Five Million Forty-Seven Thousand Six Hundred
Seventy-Two Dollars) (the "Stated Amount"), of
-1-
EXHIBIT "A"--Page 1 of 18
38
which (A) an aggregate amount not exceeding $4,900,000.00 may be drawn upon
with respect to "A Drawings" and "C Drawings", as defined below, to cover
principal of the Bonds, and (B) an aggregate amount not exceeding $147,672.00
may be drawn upon with respect to "B Drawings," "D Drawings" and E Drawings",
as defined below, to cover 55 days of interest on the Bonds.
Funds under this Letter of Credit are only available to you
against your draft(s) drawn on ▇▇▇▇▇ Fargo Bank, N.A., stating on their face:
"Drawn under ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of Credit No. ________"
and upon your presenting to ▇▇▇▇▇ Fargo Bank, N.A. one or more of the
following written certificates:
(A) Your written certificate signed by you in the form of
Exhibit A attached hereto appropriately completed (an "A Drawing");
(B) Your written certificate signed by you in the form of
Exhibit B attached hereto appropriately completed (a "B Drawing");
(C) Your written certificate signed by you in the form of
Exhibit C attached hereto appropriately completed (a "C Drawing");
(D) Your written certificate signed by you in the form of
Exhibit D attached hereto appropriately completed (a "D Drawing"),
(E) Your written certificate signed by you in the form of
Exhibit E attached hereto appropriately completed (an "E Drawing").
All documents presented to Bank in connection with any demand
for payment hereunder, as well as all notices and other communications to Bank
with respect to this Letter of Credit, shall be in writing and addressed and
presented to Bank at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Letter of Credit Operations -- AU 1175, or any
other place in the United States which may be designated by Bank by written
notice delivered to you. Such documents, notices and other communications
shall be personally delivered to Bank, or may be sent to Bank by tested Telex
or over a telecopier, in which case draft requirements are waived, to the
following numbers, as applicable:
-2-
39
Telex No: ________________(Answerback: ________________)
Telecopier No: _______________ (Telecopy Model ________)
If Bank receives any of your drafts drawn hereunder at such office, all in
strict conformity with the terms and conditions of this Letter of Credit, on or
prior to the Expiration Date, Bank will honor the same and make payment
hereunder. Payments to you under this Letter of Credit shall be made by wire
transfer of immediately available funds into your Account No. ______________ at
Bank, or into such other account as you designate to bank in writing from time
to time. If a proper draft and certificate are presented by 11:30 A.M., New
York time, payment will be made that same business day; otherwise payment will
be made the next business day.
Upon a Drawing hereunder, the total amount of this Letter of
Credit shall be reduced as follows:
(A) With respect to any A or B Drawing, the total amount
of this Letter of Credit shall be reduced by the amount of such
Drawing; and
(B) With respect to any C or D Drawing, the total amount
of this Letter of Credit shall be reduced by the amount of such
Drawing, provided that Bank shall reinstate the amount of such drawing
if such amount is paid to Bank by Company prior to default under that
certain Letter of Credit Agreement, dated as of December 1, 1984 (the
"Reimbursement Agreement"), by and between Company and Bank. In
addition, in the event Bank transfers any Drawing Bonds (as defined in
the Reimbursement Agreement) in its possession following any C Drawing
to any person or entity (other than to you, as Trustee, for
cancellation), an amount equal to the amount of such C Drawing (and
any corresponding D Drawing) which was applied to pay principal and
interest on the Bonds being so transferred shall automatically be
reinstated hereunder. Bank will send notice of any such reinstatement
to you, as Trustee, in the form attached hereto as Exhibit F.
(C) With respect to any E Drawing, the total amount of
this Letter of Credit shall be reduced by the amount of such Drawing
and such amount shall then be immediately and automatically
reinstated, and Bank will send notice of such reinstatement to you, as
Trustee, in the form attached hereto as Exhibit F.
-3-
40
Only you, as Trustee and Paying Agent, may make a drawing
under this Letter of Credit. Upon the payment to you, as Trustee and Paying
Agent, of the amount specified in a draft drawn hereunder, Bank will be fully
discharged on its obligation under this Letter of Credit with respect to such
draft and shall not thereafter be obligated to make any further payments under
this Letter of Credit in respect to such draft to you or any other person who
may have made to you or makes to you a demand for payment of principal of,
purchase price of or interest on any Bond. By paying to you an amount demanded
in such draft(s) we make no representation as to the correctness of the amount
demanded in such draft(s).
Upon the earliest of (i) 15 days after the making by you of an
A Drawing (and any associated B Drawing) hereunder; (ii) Bank's receipt of a
certificate signed by your officer and an officer of Company stating (a) that
no Bonds are Outstanding within the meaning of the Trust Agreement and (b) that
such officers are duly authorized to sign such certificate on behalf of you and
Company; (iii) Bank's receipt of a certificate signed by your officer and an
officer of Company stating (a) that an Alternate Letter of Credit (as defined
in the Trust Agreement) has been accepted by you as Trustee under the Trust
Agreement and (b) that such officers are duly authorized to sign such
certificate on behalf of you and on behalf of Company; (iv) Bank's receipt of a
certificate signed by your officer and an officer of Company stating (a) that
no less than 15 days prior to the date of such certificate, the interest rate
on the Bonds was converted to a Fixed Interest Rate (as defined in the Trust
Agreement), (b) that you have not received written notification from both
Company and Bank stating that this Letter of Credit is not to be cancelled, and
(c) that such officers are duly authorized to sign such certificate on behalf
of you and on behalf of Company; or (v) the Expiration Date, this Letter of
Credit shall automatically terminate and be delivered to Bank for cancellation.
This Letter of Credit shall be governed by (i) the Uniform
Customs and Practice for Documentary Credit as fixed by the Congress of the
International Chamber of Commerce from time to time (the "Uniform Customs") and
(ii) the laws of the State of California, including the Uniform Commercial Code
as in effect in the State of California. In the event of a conflict between the
Uniform Customs and the laws of the State of California, the Uniform Customs
shall prevail. Communications with respect to this Letter of Credit shall be
in writing and shall be addressed to Bank at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
-4-
41
Attention: Letter of Credit Operations - AU 1175, specifically referring
to the number of this Letter of Credit.
This Letter of Credit is transferable in its entirety to any
transferee who has succeeded you as Trustee under the Trust Agreement. Each
letter of credit issued upon any such transfer may be successively transferred.
Transfer of the available balance under this Letter of Credit to such
transferee shall be effected by the presentation to Bank of this Letter of
Credit accompanied by a certificate substantially in the form of Exhibit G
attached hereto. Following such presentation, and as soon as this original
Letter of Credit is returned to the Bank and the Bank has been paid its
customary transfer fee, Bank shall forthwith transfer the same to your
transferee or, if so requested by your transferee, issue an irrevocable letter
of credit to your transferee with provisions therein consistent with those of
this Letter of Credit.
This Letter of Credit sets forth in full Bank's undertaking,
and such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Bonds and the Trust Agreement),
except only the certificates) and the draft(s) referred to herein; and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement except for such certificates) and such draft(s).
Very truly yours,
▇▇▇▇▇ FARGO BANK, N.A.
By __________________________________
Its ______________________________
-5-
42
EXHIBIT A
CERTIFICATE FOR "A DRAWING"
(PRINCIPAL UPON ACCELERATION, FULL
REDEMPTION, OR MATURITY)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A,, a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to ▇▇▇▇▇ Fargo Bank, N.A.
("Bank"), with reference to ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of
Credit No. ___________ (the "Letter of Credit," the capitalized terms defined
therein and not defined herein being used as therein defined) issued by Bank in
favor of Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the
Trust Agreement for the holders of the Bonds.
(2) Trustee and Paying Agent is making a drawing under
LaeLetter of Credit with respect to the payment of principalupon acceleration,
full redemption or maturity of the Bonds.
(3) Trustee presently holds $________ in the A Subaccount of
the Bond Fund and $__________ in the B Subaccount of the Bond Fund. Trustee
presently holds no other amounts in the Bond Fund, holds no amounts in the
Construction Fund, and holds no other funds in its capacity as Trustee or
Paying Agent under the Trust Agreement.
(4) All funds in the B Subaccount of the Bond Fund have
been delivered to Trustee by Company within the past 123 days and so do not
constitute "available funds." Of the funds in the A Subaccount of the Bond
Fund, $ ________ is needed by Trustee to pay current interest on the
outstanding Bonds; the remainder of the funds in such A Subaccount are
"available funds."
(5) The amount of principal of the Bonds which is due and
payable for which Trustee does not have available funds will and the amount of
the draft accompanying this certificate does not exceed such amount.
(6) The amount of the draft accompanying this
certificate, together with the aggregate of all prior
A-1
43
payments made pursuant to A Drawings and C Drawings (other than reinstated
amounts), under the Letter of Credit for the payment of the principal amount or
purchase price of the Bonds, does not exceed $4,900,000.00.
(7) The amount of the draft accompanying this certificate
was computed in accordance with the terms and conditions of the Bonds and the
Trust Agreement.
(8) Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will apply it directly to the payment when
due of the appropriate amount of principal owing on account of the Bonds
pursuant to the Trust Agreement, (b) no portion of it shall be applied by the
undersigned for any other purpose, and (c) no portion of it shall be commingled
with other funds held by the undersigned. This drawing is made in accordance
with the provisions of the Trust Agreement.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the _____ day of __________, 19__.
BANK ONE TRUST COMPANY, N.A.
a national banking association,
as Trustee and Paying Agent
By ________________________________
Title __________________________
A-2
44
EXHIBIT B
CERTIFICATE FOR "B DRAWING"
(ACCRUED INTEREST UPON ACCELERATION,
FULL REDEMPTION, OR MATURITY)
The undersigned, a duly authorized officer of Bank one Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to ▇▇▇▇▇ Fargo Bank, N.A.
("Bank"), with reference to ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of
Credit No. ______ (the "Letter of Credit," the capitalized terms defined
therein and not defined herein being used as therein defined) issued by Bank in
favor of Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the
Trust Agreement for the holders of the Bonds.
(2) Trustee and Paying Agent is making a drawing under
one setter of Credit with respect to the payment of accrued and unpaid interest
upon acceleration, full redemption, or maturity of the Bonds.
(3) Interest on the Bonds is due and payable and the
amount of the draft accompanying this certificate does not exceed the amount
available on the date hereof to be drawn under the Letter of Credit in respect
of payment of interest accrued on the Bonds on or prior to their stated
maturity date.
(4) The amount held by Trustee in the A Subaccount of the
Bond Fund is $_____________. This amount, together with the amount of the
accompanying draft, equals the accrued interest which is due and payable on the
Bonds.
(5) The amount of the draft accompanying this
certificate, together with the aggregate of all prior B, D and E Drawings under
the Letter of Credit (other than reinstated amounts), does not exceed
$147,672.00
(6) The amount of the draft accompanying this certificate
was computed in accordance with the terms and conditions of the Bonds and the
Trust Agreement.
(7) Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will apply it directly
B-1
45
to the payment when due of the appropriate amount of interest owing on account
of the Bonds pursuant to the Trust Agreement, (b) no portion of it shall be
applied by the undersigned for any other purpose, and (c) no portion of it
shall be commingled with other funds held by the undersigned. This drawing is
made in accordance with the provisions of the Trust Agreement.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the _________ day of _______________, 19__.
BANK ONE TRUST COMPANY, N.A
a national banking association
as Trustee and Paying Agent
By ____________________________
Title ______________________
B-2
46
EXHIBIT C
CERTIFICATE FOR "C DRAWING"
(PRINCIPAL OF BONDS DELIVERED
TO REMARKETING AGENT OR TRUSTEE)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee"), and as
Paying Agent ("Paying Agent") hereby certifies to ▇▇▇▇▇ Fargo Bank, N.A.
("Bank"), with reference to ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of
Credit No. ___________ (the "Letter of Credit," the capitalized terms defined
therein and not defined herein being used as therein defined) issued by Bank in
favor of Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the
Trust Agreement for the holders of the Bonds.
(2) Trustee and Paying Agent is making a drawing under
the Letter of Credit (a) at the written request of the Remarketing Agent (as
defined in the Reimbursement Agreement) to pay, pursuant to Section 7(i) of the
Bond Legislation (as defined in the Trust Agreement), the principal amount of
the purchase price of those repurchased Bonds which the Remarketing Agent has
been unable to remarket, the principal amount of which is equal to the amount
of the draft accompanying this certificate and which Bonds (i) are now held by
the undersigned and (ii) shall be reregistered in the name of Bank, or its
agent, as pledgee, and delivered to Bank, or such agent, within 5 business days
following receipt by the undersigned of the amount demanded hereby; or (b) to
pay, pursuant to Section 7(j) of the Bond Legislation (as defined in the Trust
Agreement), the portion of the purchase price of the Bonds delivered to Trustee
for purchase equal to the principal amount of such Bonds, and Trustee shall
deliver to Bank, or its agent, as pledgee, within 5 business days following
receipt by the undersigned of the amount demanded hereby, a principal amount of
Bonds equal to the amount of the draft accompanying this certificate.
(3) The amount of the draft accompanying this
certificate, together with the aggregate of all prior payments made pursuant to
A Drawings and C Drawings under the Letter of Credit for the payment of the
principal amount or purchase price of the Bonds (other than reinstated
amounts), does not exceed $4,900,000.00.
C-1
47
(4) Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will either (i) deliver it to the
Remarketing Agent only for the purpose of purchase of the Bonds referenced in
Paragraph 2(a) hereof, or (ii) use it for the purpose of purchase of the Bonds
referred to in Paragraph 2(b) hereof; (b) no portion of it shall be applied by
the undersigned for any other purpose; and (c) no portion of it shall be
commingled with other funds held by the undersigned. This drawing is made in
accordance with the provisions of the Trust Agreement.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the day of ______________ 19__.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Paying Agent and Trustee
By _____________________________
Title _______________________
C-2
48
EXHIBIT D
CERTIFICATE FOR "D DRAWING"
(ACCRUED INTEREST ON BONDS DELIVERED
TO REMARKETING AGENT OR TRUSTEE)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to ▇▇▇▇▇ Fargo Bank, N.A.
("Bank"), with reference to ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of
Credit No. _____________ (the "Letter of Credit," the capitalized terms defined
therein and not defined herein being used as therein defined) issued by Bank in
favor of Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the
Trust Agreement for the holders of the Bonds.
(2) Trustee and Paying Agent is making a drawing under
one Letter of Credit (a) at the written request of the Remarketing Agent (as
defined in the Reimbursement Agreement), to pay, pursuant to Section 7(i) of
the Bond Legislation (as defined in the Trust Agreement), the amount of accrued
interest on those Bonds that the Remarketing Agent has been unable to remarket,
which amount of accrued interest is equal to the amount of the draft
accompanying this certificate; or (b)to pay, pursuant to Section 7(j) of the
Bond Legislation (as defined in the Trust Agreement), the portion of the
purchase price of the Bonds delivered to Trustee for purchase equal to the
amount of accrued and unpaid interest on such Bonds to the date of purchase
thereof, which amount of accrued interest is equal to the amount of the draft
accompanying this certificate.
(3) The amount of the draft accompanying this
certificate, together with the aggregate of all prior B, D and E Drawings under
the Letter of Credit (other than reinstated amounts), does not exceed
$147,672.00
(4) The amount of the draft accompanying this certify was
computed in accordance with the terms and conditions of the Bonds and the Trust
Agreement.
(5) Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will either (i) deliver it to the
Remarketing Agent only for the purpose of reimburse-
D-1
49
ment or payment of accrued interest referenced in Paragraph 2(a) hereof, or
(ii) use it for the purpose of reimbursement or payment of accrued interest
referenced in Paragraph 2(b) hereof; (b) no portion of it shall be applied by
the undersigned for any other purpose; and (c) no portion of it shall be
commingled with other funds held by the undersigned. This drawing is made in
accordance with the provisions of the Trust Agreement.
(6) To the extent that the payment demanded hereby is to
be made in accordance with the Letter of Credit on a date between a Record Date
and the corresponding Interest Payment Date (as those terms are defined in the
Trust Agreement), Trustee now holds and shall, within 5 business days following
receipt by the undersigned of the payment demanded hereby, deliver to Bank,
due-▇▇▇▇ checks that, in the aggregate, are in the amount and in the form
required by the Trust Agreement.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the __________ day of _______, 19____.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Paying Agent and Trustee
By _____________________________
Title _______________________
D-2
50
EXHIBIT E
CERTIFICATE FOR "E DRAWING"
(ACCRUED INTEREST UPON INTEREST PAYMENT DATE)
The undersigned, a duly authorized officer of Bank one Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to ▇▇▇▇▇ Fargo Bank, N.A.
("Bank"), with reference to ▇▇▇▇▇ Fargo Bank, N.A. Irrevocable Letter of
Credit No. ______ (the "Letter of Credit," the capitalized terms defined
therein and not defined herein being used as therein defined) issued by Bank in
favor of Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the
Trust Agreement for the holders of the Bonds.
(2) Trustee and Paying Agent is making a drawing under
the Letter of Credit with respect to the payment of accrued and unpaid interest
upon an Interest Payment Date during the continuance of an Event of Default
under the Reimbursement Agreement for which Bank has not yet exercised its
right to demand that Trustee accelerate the Bonds.
(3) Interest on the Bonds is due and payable and the
amount of the draft accompanying this certificate does not exceed the amount
available on the date hereof to be drawn under the Letter of Credit in respect
of payment of interest accrued on the Bonds on or prior to their stated
maturity date.
(4) The amount held by Trustee in the A Subaccount of the
Bond Fund is $____. This amount, together with the amount of the accompanying
draft, equals the accrued interest which is due and payable on the Bonds.
(5) The amount of the draft accompanying this
certificate, together with the aggregate of all prior B, D and E Drawings under
the Letter of Credit (other than reinstated amounts), does not exceed
$147,672.00
(6) The amount of the draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the Trust
Agreement.
E-1
51
(7) Upon receipt by the undersigned of the amount
demanded hereby, (a) the undersigned will apply it directly to the payment when
due of the appropriate amount of interest owing on account of the Bonds
pursuant to the Trust Agreement, (b) no portion of it shall be applied by the
undersigned for any other purpose, and (c) no portion of it shall be commingled
with other funds held by the undersigned. This drawing is made in accordance
with the provisions of the Trust Agreement.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate is of the __________ day of _____________, 19__.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Trustee and Paying Agent
By _____________________________
Title _______________________
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
NOTICE OF AUTOMATIC REINSTATEMENT OF AMOUNTS AVAILABLE
UNDER IRREVOCABLE LETTER OF CREDIT NO. _____________
DATED AS OF _______, 1984
The undersigned, a duly authorized officer of ▇▇▇▇▇ Fargo
Bank, N.A. ("Bank"), hereby certifies to the Trustee under the Trust Agreement
dated as of December 1, 1984, between the County of Delaware, Ohio and Bank One
Trust Company, N.A., a national banking association ("Trustee"), with reference
to Irrevocable Letter of Credit No._______ (the "Letter of Credit") issued by
Bank in favor of Trustee, that the amount drawn by Trustee pursuant to its
Drawing dated as of ___________________, has been reinstated as of ___________
and is available for draw subject to the terms of the Letter of Credit.
In witness whereof, Bank has executed and delivered this
Certificate this _______ day of ________ 19__.
▇▇▇▇▇ FARGO BANK, N.A.
By: ____________________________
Its ________________________
F-1
53
EXHIBIT G
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Letter of Credit Operations
AU 1175
Re: ▇▇▇▇▇ Fargo Bank, N.A.,
Irrevocable Letter of Credit No.
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in
and to such Letter of Credit are transferred to the transferee and the
transferee shall have sole rights as beneficiary thereof, including sole rights
relating to any amendments, whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are to be advised
direct to the transferee without necessity of any consent of or notice to the
undersigned beneficiary.
The advice of such Letter of Credit is returned herewith,
along with your customary transfer fee, and we ask
G-1
54
you to endorse the transfer on the reverse thereof and forward it direct to the
transferee with your customary notice of transfer.
Very truly yours,
________________________________
Signature of Beneficiary
SIGNATURE AUTHENTICATED
______________________
(Bank)
_______________________
(Authorized Signature)
G-2
55
EXHIBIT "B"
PROMISSORY NOTE
San Jose, California
$5,047,672.00 December 1, 1984
On demand, RADIATION STERILIZERS, INCORPORATED ("Borrower"), a
California corporation, with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, for value received, promises and agrees to pay to the order
of ▇▇▇▇▇ FARGO BANK, N.A., a national banking association ("Bank") at its
banking offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
in coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts, the lesser
of the principal sum of Five Million Forty-Seven Thousand Six Hundred
Seventy-Two Dollars ($5,047,672.00), or so much thereof as may be paid by Bank
under the Letter of Credit issued pursuant to the Reimbursement Agreement
hereinafter mentioned, together with such additional sums as may become owing
by Borrower to Bank pursuant to the Reimbursement Agreement or any of the Loan
Documents, whether by acceleration or otherwise, together with interest thereon
as hereinafter provided.
All capitalized terms which are used but not defined in this
Note shall have the meanings set forth in that certain Letter of Credit
Agreement of even date herewith between Borrower and Bank (such Letter of
Credit Agreement, together with all amendments, modifications or supplements
thereto, is referred to herein as the "Reimbursement Agreement").
In addition to the principal sum referred to in the first
paragraph of this Note, Borrower also agrees to pay interest on all amounts
hereof so paid by Bank under the Letter of Credit or otherwise owing under the
Reimbursement Agreement and remaining from time to time unpaid from the date so
paid by Bank or otherwise becoming owing under the Reimbursement Agreement
until payment thereof at a varying rate per annum (based on an actual day basis
using a 360 day year) which is two percent (2%) above the floating commercial
loan rate announced by Bank from time to time as its prime rate. Adjustments
in the varying interest rate shall be made of, the same day as each change in
the announced prime rate.
Each payment made by Borrower under this Note shall be made in
immediately available funds before 1:00 p.m.,
-1-
EXHIBIT "B"--Page 1 of 3
56
San Francisco, California, time, on the date that such payment is required to
be made. Any payment received and accepted by the Bank after such time shall
be considered for all purposes (including the calculation of interest, to the
extent permitted by law) as having been made on the Bank's next following
business day. As used herein the term "business day" shall mean a day other
than a Saturday, Sunday or a day upon which banking institutions in the State
of California are authorized or required by law to close.
If the date for any payment hereunder falls on a day that is
not a business day, then for all purposes of this Note the same shall be deemed
to have fallen on the next following business day, and such extension of time
shall in such case be included in the computation of payments of interest.
Borrower and any and each co-maker, guarantor, accommodation
party, endorser or other person liable for the payment or collection of this
Note expressly waive demand and presentment for payment, notice of nonpayment,
protest, notice of protest, notice of dishonor, bringing of suit and diligence
in taking any action to collect amounts called for hereunder and in the
handling of any collateral at any time existing as security in connection
herewith, and shall be directly and primarily liable for the payment of all
sums owing and to be owing hereon, regardless of and without any notice,
diligence, act or omission as or with respect to the collection of any amount
called for hereunder or in connection with any lien or security interest at any
time had or existing as security for any amount called for hereunder.
If this Note is not paid when due, Borrower promises and
agrees to pay all costs of collection, foreclosure fees and reasonable
attorneys' fees incurred by Bank whether or not suit is filed.
This Note is issued pursuant to and is entitled to the
benefits of the Reimbursement Agreement and is issued to evidence the
indebtedness, if any, of the Borrower under the Reimbursement Agreement.
Reference is made to the Reimbursement Agreement for all pertinent purposes.
-2-
57
This Note has been made and issued and is payable in the State
of California and shall be governed by the laws of such State.
"Borrower"
RADIATION STERILIZERS, INCORPORATED
a California corporation
By ________________________________
Its ____________________________
By ________________________________
Its ____________________________
-3-
58
EXHIBIT "C"
CONDITIONS TO DISBURSEMENT
1. Conditions to All Disbursements. Bank shall not be
obligated to approve any disbursement of Bond proceeds under Section 3.3 of the
Loan Agreement unless each of the following conditions are fulfilled:
1.1 Completion of Project. The acquisition and
construction of the Project shall have been completed in accordance with the
plans and specifications therefor.
1.2 Permits, Etc. All required governmental inspections,
reports and certifications shall have been made, and all occupancy, use and
other permits required by all applicable governmental regulatory authorities
and public utility companies shall have been issued, for the full operation of
the Project.
EXHIBIT "C"
Page 1 of 1
59
EXHIBIT "D"
(14054-14072 Catalina Street)
All that certain real property together with all appurtenances
thereto and all improvements now or hereafter located thereon, situated in the
City of San Leandro, County of Alameda, State of California and described as
follows:
PARCEL ONE:
PARCEL A, PARCEL MAP NO. 1871, FILED MAY 6, 1976 BOOK 89 OF PARCEL MAPS, PAGE
85, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE SOUTHEASTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF SAID PARCEL A OF PARCLE MAP NO. 1871.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF PARCEL A, PARCEL MAP NO. 1871, FILED MAY 6, 1976, BOOK
89, OF PARCEL MAPS, PAGE 85, ALAMEDA COUNTY RECORDS.
A.P. NO. 080G-0931-018
Exhibit "D"
Page 1 of 5
60
EXHIBIT "D"
(14226 - 14266 Catalina Street)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereone
situated in the City of San Leandro, County of Alameda, State of California,
and described as follows:
PARCEL ONE:
PARCEL 1, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976 BOOK 94 OF PARCEL MAPS,
PAGE 21, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A) A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES
FOR THE BENEFIT OF PARCEL A, PARCEL MAP NO. 1871, FILED MAY 6, 1976,
BOOK 89 OF PARCEL MAPS, PAGE 85, OFFICIAL RECORDS, OVER A STRIP OF
LAND 30 FEET WIDE, THE NORTHWESTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF SAID PARCEL A, OF PARCEL MAP NO. 2044.
B) A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES
FOR THE BENEFIT OF PARCEL 2, PARCEL MAP 2044, FILED DECEMBER 16, 1976,
BOOK 94, PAGE 21, OFFICIAL RECORDS, OVER A STRIP OF LAND 30 FEET WIDE,
THE SOUTHEASTERLY LINE THEREOF BEING THE SOUTHEASTERLY LINE OF SAID
PARCEL 1 OF PARCEL MAP NO. 2044.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE SOUTHEASTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF PARCEL 19, PARCEL MAP NO, 2044, FILED DECEMBER 16, 1976,
BOOK 94, OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF PARCEL 1, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976,
BOOK 94, OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 080G-0932-027
Exhibit "D"
Page 2 of 5
61
EXHIBIT "D"
(▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the City of San Leandro, County of Alameda State of California, and
described as follows: PARCEL ONE:
PARCEL ONE:
PARCEL 1, PARCEL MAP NO. 2379, FILED DECEMBER 27, 1977, BOOK 98, OF PARCEL
MAPS, PAGE 92, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF SAID PARCEL I OF PARCEL MAP NO. 2379.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO PARCEL 1 ABOVE FOR OPEN SPACE AND
VEHICLE ACCESS PURPOSES OVER A STRIP OF LAND 30 FEET WIDE THE SOUTHERLY LINE
THEREOF BEING THE NORTHWESTERN LINE OF PARCEL 1, PARCEL MAP NO. 2181, FILED
JULY 29, 1977, BOOK 97, OF PARCEL MAPS PACE 72, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO PARCEL ONE ABOVE FOR OPEN SPACE AND
VEHICULAR ACCESS PURPOSES OVER A STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY
LINE OF WHICH IS THE NORTHERLY LINE OF PARCEL 2 OF PARCEL MAP NO. 2379, FILED
DECEMBER 27, 1977, BOOK 98, OF PARCEL MAPS, PAGE 92, ALAMEDA COUNTY RECORDS,
ASSESSOR'S PARCEL NO. O80G-0932-031
Exhibit "D"
Page 3 of 5
62
EXHIBIT "D"
(▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the City of Hayward, County of Alameda, State of California, and
described as follows:
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, FILED AUGUST l4, 1969, IN BOOK
63 OF MAPS, PAGES 8 TO 14, INCLUSIVE, ALAMEDA COUNTY RECORD.
ASSESSOR'S PARCEL NO. 432-0114-012-01
Exhibit "D"
Page 4 of 5
63
EXHIBIT "D"
(20464-20472 Corsair Boulevard)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the City of Hayward, County of Alameda State of California, and
described as follows:
PARCEL 1 AS SHOWN ON PARCEL MAP NO. 417, FILED JANUARY 10, 1969, IN BOOK 58 OF
MAPS, PAGE 76, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY
ASSESSOR'S PARCEL NO. ▇▇▇-▇▇▇▇-▇▇▇
Exhibit "D"
Page 5 of 5
64
ORDER NO. 16081: 20464-20472 CORSAIR BOULEVARD
At the date hereof exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $9,798.75 OPEN
2ND INSTALLMENT: $9,798.75 OPEN
LAND $306,971.00
IMPROVEMENTS $874,4O3.00
PERSONAL PPTY. $7,491.00
A.P. NO. ▇▇▇-▇▇▇▇-▇▇▇
CODE AREA 25-060
2. ASSESSMENT FOR ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
ASSESSMENT NO. 489 SERIES 5 ISSUED JANUARY 19, 1970 FOR $64,120.17
PAYABLE IN 50 INSTALLMENTS WITH COUNTY TAXES. ALL AMOUNTS PAID TO AND
INCLUDING 2ND INSTALLMENT OF 1983 - 1984 TAXES AMOUNT TO PAY IN FULL
(NOT INCLUDING AMOUNTS PAYABLE WITH 1984 - 1985 TAX INSTALLMENTS)
$390,34.33 WHICH INCLUDES $30,995.3l PRINCIPAL AND $8,038.12 INTEREST
IF PAID PRIOR TO AUGUST 1, 1985 SAID BOND PAYABLE TO CITY OF HAYWARD.
3. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED
PURSUANT TO CHAPTER 498, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
WHICH CHAPTER BECAME LAW ON JULY 29TH, 1983.
4. CONDITIONS AS RESERVED IN DEED FROM THE CITY OF HAYWARD, A MUNICIPAL
CORPORATION BY INSTRUMENT RECORDED JANUARY 16, 1967, IN REEL 1902,
IMAGE 397, OFFICIAL RECORDS.
5. EASEMENT AS CONTAINED IN THE DECLARATION ABOVE REFERRED TO AS FOLLOWS:
FOR: : RIGHT OF FLIGHT FOR PASSAGE OF AIRCRAFT
AFFECTS: : PORTION OF AIRSPACE
6. COVENANTS, CONDITIONS AND RESTRICTION AS SET FORTH IN A DECLARATION OF
RESTRICTIONS RECORDED JUNE 6, 1967, IN REEL 1975, IMAGE 605, OFFICIAL
RECORDS AND PRERECORDED JUNE 14, 1967, IN REEL 1980, IMAGE 934,
OFFICIAL RECORDS WHICH PROVIDES THAT A VIOLATION THEREOF SHALL NOT
DEFEAT OR RENDER INVALID THE LIEN OF ANY MORTGAGE OR DEED OF TRUST
MADE IN GOOD FAITH AND FOR VALUE DELETING THEREFROM ANY RESTRICTIONS
WHICH ARE BASED UPON "RACE, COLOR RELIGION SEX OF NATIONAL ORIGIN."
SAID RESTRICTION DO NOT CONTAIN A REVERSIONARY CLAUSE
AN INSTRUMENT DECLARING AND ANNEXATION OF SAID COVENANTS, CONDITIONS
AND RESTRICTIONS WAS RECORDED AUGUST 29, 1960, IN REEL 2245, IMAGE
747, OFFICIAL RECORDS.
EXHIBIT "E"
Page 1 of 15
65
ORDER NO. 16081
7. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : RAILROAD
AFFECTS : NORTHEASTERLY 30 FEET OF PREMISES
8. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : PUBLIC UTILITIES
AFFECTS : SOUTHWESTERLY 5 FEET OF PREMISES
9. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR THE
PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED IN THAT
CERTAIN INSTRUMENT
RECORDED : FEBRUARY 27, 1969, REEL 2355, IMAGE 47,
OFFICIAL RECORDS
GRANTED TO : PG. & E & AND P.T. & T
PURPOSE : ELECTRICAL FACILITIES
AFFECTS : THE NORTHEASTERLY 5 FEET OF THE SOUTHWESTERLY
10 FEET OF PREMISES
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE REFERRED TO
10. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : CABOT, CABOT & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROPERTIES,
INC, A DELAWARE CORPORATION
RECORDED : AUGUST 29, 1968, REEL 2245, IMAGE 747, SERIES
NO. BA95374, OFFICIAL RECORDS
11. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS. IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : CABOT, CABOT & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROPERTIES,
INC., A DELAWARE CORPORATION
RECORDED : MAY 15, 1969, REEL 2402, IMAGE 690, SERIES NO.
69-54120, OFFICIAL RECORDS
12. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR THE
PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES CREATED IN THAT CERTAIN
INSTRUMENT
RECORDED : MAY 27, 1969, REEL 2409, IMAGE 810, OFFICIAL RECORDS
RESERVED BY : CABOT, CABOT, AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROPERTIES, INC.
PURPOSE : GAS, POWER, TELEPHONE AND TELEVISION LINES
AFFECTS : PORTION OF PREMISES
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE REFERRED
TO.
EXHIBIT "E"
Page 2 of 15
66
ORDER NO. 16081
13. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR THE
PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES CREATED IN THAT CERTAIN
INSTRUMENT
RECORDED : MAY 27, 1969, REEL 2409, IMAGE 810, OFFICIAL RECORDS
RESERVED BY : CABOT, CABOT, & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROPERTIES, INC.
PURPOSE : RAILROAD
AFFECTS : PORTION OF PREMISES
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE REFERRED
TO.
14. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $690,000.00
DATED : APRIL 6, 1970
TRUSTOR : ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. AND ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, HIS WIFE
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
A CORPORATION
ADDRESS : ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LOAN NO. : 2 163 616
RECORDED : APRIL 13, 1970, REEL 259, IMAGE 200, SERIES
NO. 70-37725,
OFFICIAL : RECORDS
15. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR THE
PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED IN THAT
CERTAIN INSTRUMENT
RECORDED : JANUARY 11, 1971, REEL 2765, IMAGE 707, SERIES
NO. 71-2817, OFFICIAL RECORDS
GRANTED TO : SOUTHERN PACIFIC TRANSPORTATION COMPANY, A
CORPORATION
PURPOSE : RAILROAD AND TRANSPORTATION PURPOSES
AFFECTS : PORTION OF PREMISES
EXHIBIT "E"
Page 3 of 15
67
ORDER NO. 16084: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ the date hereof exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR. 1984 - 1985
1ST INSTALLMENT: $13,088.05 OPEN
2ND INSTALLMENT: $13,088.05 OPEN
LAND : $289,030.00
IMPROVEMENTS : $1,439,299.00
PERSONAL PPTY : $15,614.00
A.P. NO. : 432-0114-012-01
CODE AREA : 25-060
3. ASSESSMENT FOR ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ASSESSMENT NO. 60,
SERIES J ISSUED JANUARY 1, 1970 FOR (NOT SHOWN) PAYABLE IN 50
INSTALLMENTS WITH COUNTY TAXES. ALL AMOUNTS PAID TO AND INCLUDING 2ND
INSTALLMENT OF 1983 - 1984 TAXES. AMOUNT TO PAY IN FULL (NOT
INCLUDING AMOUNTS PAYABLE WITH 1984 - 1985 TAX INSTALLMENTS) SEV ASST,
#59 WHICH INCLUDES (NOT SHOWN) PRINCIPAL AND (NOT SHOWN) INTEREST IF
PAID PRIOR TO AUGUST 1, 1985, SAID BOND PAYABLE TO CITY OF HAYWARD.
4. ASSESSMENT FOR ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ASSESSMENT NO. 59
ASST. #59 & 60 COMBINED, SERIES J ISSUED JANUARY 1, 1970 FOR
$7,9497.89 PAYABLE IN 50 INSTALLMENTS WITH COUNTY TAXES, ALL AMOUNTS
PAID TO AND INCLUDING 2ND INSTALLMENT OF 1983 - 1984 TAXES. AMOUNT TO
PAY IN FULL (NOT INCLUDING AMOUNTS PAYABLE WITH 1984 - 1985 TAX
INSTALLMENTS) $38,639.31 WHICH INCLUDES $31,761.78 PRINCIPAL AND
$60,877.53 INTEREST IF PAID PRIOR TO AUGUST 1, 1985, SAID BOND PAYABLE
TO CITY OF HAYWARD.
5. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED
PURSUANT TO CHAPTER 498, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
WHICH CHAPTER BECAME LAW ON JULY 29TH, 1983.
EXHIBIT "E"
Page 4 of 15
68
ORDER NO. 16084
6. COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATIONS
IN THE DEED
EXECUTED BY : CITY OF HAYWARD, A MUNICIPAL CORPORATION
RECORDED : JANUARY 16, 1967, REEL 1902, IMAGE 397,
OFFICIAL RECORDS INSTRUMENT NO. AZ/4479
7. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE DECLARATION OF
RESTRICTIONS
EXECUTED BY : CABOT, CABOT & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PROPERTIES,
INC.
RECORDED : JUNE 6, 1967, REEL 1975, IMAGE 605, OFFICIAL
RECORDS, ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇/▇▇▇▇▇
RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION OR NATIONAL
ORIGIN ARE DELETED.
AND RE-RECORDED : JUNE 14, 1967, REEL 1980, IMAGE 934,
OFFICIAL RECORDS, INSTRUMENT NO. AZ/56218
SAID COVENANTS, CONDITIONS AND RESTRICTIONS WERE IMPOSED UPON PREMISES
BY INSTRUMENT RECORDED MAY 15, 1969, ON REEL 2402, IMAGE 690,
INSTRUMENT NO. 54120, ALAMEDA COUNTY RECORDS.
SAID COVENANT, CONDITIONS AND RESTRICTIONS HAVE BEEN INCORPORATE BY
REFERENCE THERETO IN A DEED
EXECUTED BY : CABOT, CABOT & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-PROPERTIES,
INC.
RECORDED : FEBRUARY 10, 1971, REEL 2785, IMAGE 418,
OFFICIAL RECORDS, INSTRUMENT NO, 15699
8. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE PURPOSES
STATED HEREIN, AND INCIDENTAL PURPOSES,
IN FAVOR OF : PACIFIC GAS AND ELECTRIC COMPANY AND THE
PACIFIC TELEPHONE AND TELEGRAPH COMPANY
FOR : ELECTRICAL AND COMMUNICATION FACILITIES
RECORDED : FEBRUARY 27, 1969, REEL 2355, IMAGE 47,
OFFICIAL RECORDS,INSTRUMENT NO. 22346
AFFECTS : THE SOUTHWESTERN 10 FEET OF THE
SOUTHEASTERN 40 FEET Of LOT 1 Of PREMISES
9. EASEMENT FOR PUBLIC UTILITY PURPOSES, AS SHOWN UPON THE FILED MAP.
AFFECTS: THE SOUTHWESTERLY PORTION OF PREMISES
10. EASEMENT FOR RAILROAD PURPOSES, AS SHOWN UPON THE FILED MAP,
AFFECTS: THE NORTHERLY AND THE NORTHEASTERLY PORTION
OF SAID PREMISES
EXHIBIT "E"
Page 5 Of 15
69
ORDER NO. 16084
11. AN EASEMENT AFFECTING THE PORTION OF SAID LAND AND FOR THE PURPOSES
STATED HEREIN, AND INCIDENTAL PURPOSES
IN FAVOR OF : SOUTHERN PACIFIC TRANSPORTATION COMPANY
FOR : RAILROAD AND TRANSPORTATION PURPOSES
RECORDED : JANUARY 11, 1971, REEL 2765, IMAGE 707,
OFFICIAL RECORDS, INSTRUMENT NO. 2847
AFFECTS : A NORTHERN AND NORTHEASTERN PORTION OF
PREMISES
12. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF $1,015,000.00
DATED : SEPTEMBER 22, 1971
TRUSTOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A GENERAL
PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A
CALIFORNIA CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, A CORPORATION
ADDRESS : ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
LOAN NO. : 2 166 404
RECORDED : SEPTEMBER 29, 1971, REEL 2960, IMAGE 605
OF OFFICIAL RECORDS, SERIES NO. 71-127548
ASSIGNMENT OF RENTS, AS ADDITIONAL SECURITY FOR THE PAYMENT OF THE
INDEBTEDNESS SECURED BY SAID DEED OF TRUST, WHICH ASSIGNMENT WAS
EXECUTED BY ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A GENERAL PARTNERSHIP, TO THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, A NEW JERSEY CORPORATION,
RECORDED SEPTEMBER 29, 1971, REEL 2960, IMAGE 610, OF OFFICIAL
RECORDS.
A MODIFICATION OF SAID DEED OF TRUST AS THEREIN PROVIDED WAS RECORDED
NOVEMBER 30, 1972, REEL 3268, IMAGE 960, OF OFFICIAL RECORDS.
ASSIGNMENT OF RENTS, AS ADDITIONAL SECURITY FOR THE PAYMENT OF THE
INDEBTEDNESS SECURED BY SAID DEED OF TRUST, WHICH ASSIGNMENT WAS
EXECUTED BY ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A GENERAL PARTNERSHIP, TO THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA A NEW JERSEY CORPORATION.
RECORDED SEPTEMBER 26, 1974, REEL 3782, IMAGE 966, OF OFFICIAL
RECORDS.
AS ADDITIONAL SECURITY FOR THE OBLIGATION SECURED BY SAID INSTRUMENT,
THE LESSORS INTEREST IN THE LEASE(S) REFERRED TO IN EXCEPTION NO. 14
HEREIN WAS ASSIGNED TO SAID BENEFICIARY BY INSTRUMENT RECORDED
SEPTEMBER 8, 1981, SERIES NO. 81-152987, OFFICIAL RECORDS.
EXHIBIT "E"
Page 6 of 15
70
ORDER NO. 16084
13. ANY UNRECORDED LEASE AS DISCLOSED BY ASSIGNMENT OF LEASE AND
AGREEMENT, EXECUTED BY ▇▇▇▇▇▇▇ ▇▇▇▇ AND ASSOCIATES, A GENERAL PARTNER,
TO SHAKEE CORPORATION, A CALIFORNIA CORPORATION, RECORDED SEPTEMBER
26, 1974, REEL 3782, IMAGE 966, OF OFFICIAL RECORDS.
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT ABOVE REFERRED TO.
14. UNRECORDED LEASE UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
LESSOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
LESSEE : BAYSHORE LANDMARK, N.V.
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : SEPTEMBER 8, 1981, SERIES No. 81-152897 OFFICIAL
RECORDS
SAID LEASE ADDITIONALLY ENCLOSED BY NOTICE Of NON-RESPONSIBILITY
RECORDED FEBRUARY 4, 1982, SERIES No. 82-17441, OFFICIAL RECORDS.
THE PRESENT OWNERSHIP OF SAID LEASEHOLD AND OTHER MATTERS AFFECTING
THE INTEREST OF THE LESSEE ARE NOT SHOWN HEREIN.
EXHIBIT "E"
Page 7 of 15
71
ORDER NO. 16086: 14054-14072 CATALINA STREET
At the date hereof exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $89,138.59 OPEN
2ND INSTALLMENT: $89,138.59 OPEN
LAND : $240,190.00
IMPROVEMENTS : $1,243,610.00
A.P. NO. : 080G-0931-018
CODE AREA : 10-057
2. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED
PURSUANT TO CHAPTER 498, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
WHICH CHAPTER BECAME LAW ON JULY 29TH, 1983.
3. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED THAT CERTAIN INSTRUMENT
RECORDED : SEPTEMBER 25, 1959, BOOK 9162, PAGE 181, OF
OFFICIAL RECORDS
GRANTED TO : PACIFIC GAS & ELECTRIC COMPANY
PURPOSE: : PUBLIC UTILITIES
AFFECTS : NORTHEASTERLY 90.22 FEET
THE RIGHT TO THIN AND REMOVE TREES AS RESERVED IN THE ABOVE MENTIONED
INSTRUMENT.
SAID EASEMENT WAS ALSO RECORDED IN BOOK 2053 OF DEEDS, PAGE 245, OF
OFFICIAL RECORDS
SAID EASEMENT IS ALSO SHOWN ON THE FILED MAP
4. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : MAY 10, 1965, REEL 1500, IMAGE 323, SERIES
NO. AX-63856, OF OFFICIAL RECORDS
GRANTED TO : PACIFIC TELEPHONE AND TELEGRAPH COMPANY
A CORPORATION AND PACIFIC GAS AND ELECTRIC COMPANY,
A CORPORATION
PURPOSE : ANCHOR
AFFECTS : A PORTION OF PREMISES
SAID EASEMENT ALSO SHOWN ON THE FILED MAP
5. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY, A PARTNERSHIP
RECORDED : JUNE 20, 1966, REEL 1790, IMAGE 422, Of OFFICIAL
RECORDS
EXHIBIT "E"
Page 8 of 15
72
ORDER NO. 16086
CONTAINS NO REVERSIONARY CLAUSE.
CONTAINS NO MORTGAGEE PROTECTION CLAUSE.
MODIFICATION AND/OR AMENDMENT THEREFORE RECORDED NOVEMBER 14, 1966,
REEL 1872, IMAGE 60, OF OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED AUGUST 7, 1974, REEL
3747, IMAGE 489, OF OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
6. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY
RECORDED : NOVEMBER 29, 1968, REEL 2301, IMAGE 419, OF OFFICIAL
RECORDS
7. DECLARATION OF COVENANT TO PROVIDE RECIPROCAL EASEMENTS MADE BY
▇▇▇▇▇▇▇ ▇▇▇▇ AND ASSOCIATES, A LIMITED PARTNERSHIP. RECORDED MAY 61,
1976, REEL 4356, IMAGE 513, OFFICIAL RECORDS
8. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : OPEN SPACE
AFFECTS : SOUTHERLY 30 FEET OF SAID LAND
9. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $1,450,000.00
DATED : JUNE 70, 1977
TRUSTOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
: ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LOAN NO. : 2 169 514
RECORDED : JUNE 15, 1977, REEL 4909, IMAGE 86, SERIES NO.
77-116896, OFFICIAL RECORDS
EXHIBIT "E"
Page 9 of 15
73
ORDER NO. 16086
10. EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS AND THE INCIDENTS
THERETO, WHICH ENCUMBERS THE LAND DESCRIBED HEREIN, AS CREATED IN THAT
CERTAIN DEED OF TRUST
EXECUTED BY : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
RECORDED : SEPTEMBER 28, 1977, REEL 5067, IMAGE 280, SERIES
NO. 77-192764, OF OFFICIAL RECORDS
AFFECTS : SOUTHERLY 30 FEET OF SAID LAND
UPON RECONVEYANCE OF SAID DEED OF TRUST THIS EASEMENT WILL BE
EXTINGUISHED OF RECORD.
INQUIRY OF THE VESTEE SHOULD BE HAD AS TO ITS DESIRE TO PERMANENTLY
CREATE THIS SERVITUDE.
EXHIBIT "E"
Page 10 of 15
74
ORDER NO. 16087: 14226-14266 CATALINA STREET
At the date hereof exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $6,753.48 OPEN
2ND INSTALLMENT: $6 753.48 OPEN
LAND : $196,044.00
IMPROVEMENTS : $1,034,892,00
PERSONAL PPTY : $4,713.00
A.P. NO. : 080G-0932-027
CODE AREA : 10-057
2 THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED
PURSUANT TO CHAPTER 498, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
WHICH CHAPTER BECAME LAW ON JULY 29TH, 1983.
3. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : SEPTEMBER 25, 1959, BOOK 9162, PAGE 181, OF
OFFICIAL RECORDS
GRANTED TO : PACIFIC GAS & ELECTRIC COMPANY
PURPOSE : PUBLIC UTILITIES
AFFECTS : NORTHEASTERLY 90.22 FEET
THE RIGHT TO THIN AND REMOVE TREES AS RESERVED IN THE ABOVE MENTIONED
INSTRUMENT.
SAID EASEMENT WAS ALSO RECORDED IN BOOK 2053 OF DEEDS, PAGE 245, OF
OFFICIAL RECORDS
SAID EASEMENT IS ALSO SHOWN ON THE FILED MAP
4. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY, A PARTNERSHIP
RECORDED : JUNE 20, 1966, REEL 1790, IMAGE 422, OF OFFICIAL
RECORDS
CONTAINS NO REVERSIONARY CLAUSE.
CONTAINS NO MORTGAGEE PROTECTION CLAUSE.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED NOVEMBER 14, 1966,
REEL 1872, IMAGE 60, OF OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
MODIFICATION AND/OR AMENDMENT THEREOF RECORDED AUGUST 70, 1974, REEL
3747, IMAGE 489, OF OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
EXHIBIT "E"
Page 11 of 15
75
ORDER NO. 16087
5. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY
RECORDED : NOVEMBER 29, 1968, REEL 2301, IMAGE 419, OF
OFFICIAL RECORDS
6. DECLARATION OF COVENANT TO PROVIDE RECIPROCAL EASEMENTS MADE BY
▇▇▇▇▇▇▇ ▇▇▇▇ AND ASSOCIATES, A LIMITED PARTNERSHIP, RECORDED HAY 6,
1976, REEL 4356, IMAGE 513, OFFICIAL RECORDS
7. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : OPEN SPACE
AFFECTS : SOUTHERLY 30 FEET AND NORTHERLY 30 FEET OF PREMISES
8. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $1,050,000.00
DATED : SEPTEMBER 23, 1977
TRUSTOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇
LOAN NO. : 2 169 510
RECORDED : SEPTEMBER 28, 1977, REEL 5067, IMAGE 280, SERIES
NO. 77-192764, OFFICIAL RECORDS
9. EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS AND THE INCIDENTS
THERETO, WHICH ENCUMBERS THE LAND DESCRIBED HEREIN, AS CREATED IN THAT
CERTAIN DEED OF TRUST
EXECUTED BY : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
RECORDED : SEPTEMBER 28, 1977, REEL 5067, IMAGE 280, SERIES
NO. 77-192764, OF OFFICIAL RECORDS
AFFECTS : SOUTHERLY 30 FEET AND NORTHERLY 30 FEET OF PREMISES
UPON RECONVEYANCE OF SAID DEED OF TRUST THIS EASEMENT WILL BE
EXTINGUISHED OF RECORD.
INQUIRY OF THE VESTEE SHOULD BE HAD AS TO ITS DESIRE TO PERMANENTLY
CREATE THIS SERVITUDE.
EXHIBIT "E"
Page 12 of 15
76
ORDER NO. 16092 : ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
At the date hereof exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
1.A A COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $2,738.79 OPEN
2ND INSTALLMENT: $2,738.79 OPEN
LAND : $66,402.00
IMPROVEMENTS : $432,786.00
A.P. NO. : 080G-0932-031
CODE AREA : 10-057
1.B COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $185.53 OPEN
2ND INSTALLMENT: $185.53 OPEN
LAND : -$61.00
IMPROVEMENTS : $34,32.00
A.P. NO. : 080G-0932-031
CODE AREA : 10-057
REASON : ESCAPED ASSESSMENT
ACTION : ESCAPED ASSESSMENT 1983
3. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED
PURSUANT TO CHAPTER 498, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
WHICH CHAPTER BECAME LAW ON JULY 29TH, 1983.
4. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : SEPTEMBER 25, 1959, BOOK 9162, PAGE 181,
OFFICIAL RECORDS
GRANTED TO : PACIFIC GAS & ELECTRIC COMPANY
PURPOSE : PUBLIC UTILITIES
AFFECTS : NORTHEASTERLY 90.22 FEET
THE RIGHT TO THIN AND REMOVE TREES AS RESERVED IN THE ABOVE MENTIONED
INSTRUMENT
SAID EASEMENT WAS ALSO RECORDED IN BOOK 2053 OF DEEDS, PAGE 245.
5. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : JULY 26, 1965, REEL 1559, IMAGE 237, OFFICIAL
RECORDS
GRANTED TO : THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY AND
PACIFIC GAS AND ELECTRIC COMPANY
PURPOSE : PUBLIC UTILITIES
AFFECTS : A PORTION OF SAID PREMISES
EXHIBIT "E"
Page 13 of 15
77
ORDER NO. 16092
6. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, 1F
ANY, BASED ON RACE, COLOR RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY, A PARTNERSHIP
RECORDED : JUNE 20, 1966, REEL 1790, IMAGE 4229 OFFICIAL
RECORDS
CONTAINS NO REVERSIONARY CLAUSE.
CONTAINS NO MORTGAGEE PROTECTION CLAUSE.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED NOVEMBER 14, 1966,
REEL 1872, IMAGE 60 OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED AUGUST 7, 1974, REEL
374,, IMAGE, 489, OFFICIAL RECORDS BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
7. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF
ANY, BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN
THE DECLARATION
BY : WINDSOR LAND COMPANY
RECORDED : NOVEMBER 29, 1968, REEL 2301, IMAGE 419, OFFICIAL
RECORDS
8. DECLARATION OF COVENANT TO PROVIDE RECIPROCAL EASEMENTS MADE BY
▇▇▇▇▇▇▇ ▇▇▇▇ AND ASSOCIATES, A LIMITED PARTNERSHIP, RECORDED MAY 69,
1976, REEL 4356, IMAGE 513, OFFICIAL RECORDS,
9. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : OPEN SPACE AND ACCESS
AFFECTS : NORTHWESTERLY 30 FEET AND THE SOUTHEASTERLY
30 FEET
10. UNRECORDED LEASE UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
LESSOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
LESSEE : COMPUTERLAND CORPORATION, A CALIFORNIA CORPORATION
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : APRIL 14, 1978, REEL 5346, IMAGE 214, OFFICIAL
RECORDS
SAID LEASE WAS SUBORDINATED TO THE LIEN OF THE DEED OF TRUST REFERRED
TO IN EXCEPTION NO. 11 BY AGREEMENT RECORDED APRIL 14, 1970, REEL
5346, IMAGE 204, OFFICIAL RECORDS.
EXHIBIT "E"
Page 14 of 15
78
ORDER NO. 16092
11. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $475,000.00
DATED : APRIL 6, 1978
TRUSTOR : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : NOT SHOWN
LOAN NO. : 2 169 651
RECORDED : APRIL 14, 1978, REEL 5346, IMAGE 208, SERIES
NO. 78-068115, OFFICIAL RECORDS
AS ADDITIONAL SECURITY FOR THE OBLIGATION SECURED BY SAID INSTRUMENT,
THE LESSOR'S INTEREST IN THE LEASE REFERRED TO IN EXCEPTION NO. 10
HEREIN WAS ASSIGNED TO SAID BENEFICIARY BY INSTRUMENT RECORDED APRIL
14, 1978, REEL 5346, IMAGE 214, OFFICIAL RECORDS
12. EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS AND THE INCIDENTS
THERETO, WHICH ENCUMBERS THE LAND DESCRIBED HEREIN, AS CREATED IN THAT
CERTAIN DEED OF TRUST
EXECUTED BY : ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, A LIMITED PARTNERSHIP
RECORDED : APRIL 14, 1978, REEL 5346, IMAGE 208, OFFICIAL
RECORDS
AFFECTS : NORTHWESTERLY 30 FEET AND SOUTHEASTERLY 30 FEET
UPON RECONVEYANCE OF SAID DEED OF TRUST THIS EASEMENT WILL BE
EXTINGUISHED OF RECORD.
INQUIRY OF THE VESTEE SHOULD BE HAD AS TO ITS DESIRE TO PERMANENTLY
CREATE THIS SERVITUDE.
13. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : MAY 25, 1979, SERIES NO, 79-100886, OFFICIAL
RECORDS
GRANTED TO : GATHER & KING, A GENERAL PARTNERSHIP
PURPOSE : OPEN SPACE AND VEHICULAR ACCESS
AFFECTS : SOUTHEASTERLY 30 FEET
14. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS
CREATED IN THAT CERTAIN INSTRUMENT
RECORDED : (TO BE RECORDED)
RESERVED BY : ▇▇▇▇▇▇▇ ▇▇▇▇ AND ASSOCIATES, A LIMITED PARTNERSHIP
PURPOSE : OPEN SPACE AND VEHICULAR ACCESS
AFFECTS : NORTHWESTERLY 30 FEET
EXHIBIT "E"
Page 15 of 15
79
EXHIBIT "F"
$4,900,000
County of Delaware, Ohio
Variable Rate Demand Industrial Development Revenue Bond
DESCRIPTION OF PROJECT
Bond proceeds loaned to the Company, Radiation Sterilizers, Inc., will
be used to acquire, construct and equip an industrial facility located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. The facility consists of a 20,8OO
square foot building located on a 1.343 acre site. The building is of steel
frame construction with an exterior insulated steel panel that is coated on all
sides with a 20-year factory applied finish. It includes 1,250 square feet of
air conditioned office area and a radiation cell comprising 4,000 square feet.
The radiation cell is a monolithically poured, reinforced concrete structure,
with walls and roof being six feet thick, covering a 23-foot deep, stainless
steel lined, water pool, The balance of the building is used for storing,
loading, and shipping materials.
The building site includes ample on-site parking and a loading dock to
the rear of the building. There are fifty feet of contoured landscaping in
front of the building, and ten to fifteen feet of landscaping along the sides
and rear of the site.
The principal installed equipment consists of a computer controlled
conveyor system and a quantity of Cobalt-60. The business of the Company is to
utilize the Cobalt-60 to sterilize materials--primarily medical
supplies--manufactured by other companies. The process also has potential
applications for sterilizing foodstuffs. The Company, which operates under
licenses from the federal Nuclear Regulatory Commission, has three other
similar, operational facilities: in Tustin, California, Schaumburg, Illinois,
and Decatur, Georgia.
Exhibit "F"
Page 1 of 1
80
SCHEDULE B
Policy Number 65757 File Number __________
This policy does not insure against loss or damage by reason of the following:
1. The lien of all taxes for the ______________ year 1983 and
thereafter.
2. Any lien, or right to a lien, for services, labor or material
heretofore or hereafter furnished, imposed by law and not shown by the
public records.
3. Any encroachments, easements, measurements, variations in area or
content, party walls or other facts which a correct survey of the
premises would show.
4. Rights or claims of parties in possession.
5. Roads ways streams or easements, if any, not shown of record, riparian
rights and the title to any filled-in lands.
6. Assessments, if any, which are a lien but not yet certified to the
County Auditor.
7. Subject to easements, set-back lines and restrictions as shown on the
recorded plat in plat Book 16, Page 107, copy attached.
8. Subject to an easement to Columbus and Southern Ohio Electric Co.
recorded in Deed Book 433, Page 499, copy attached.
EXHIBIT "G"
Page 1 of 1
81
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of December 1, 1984 ("Security Agreement"),
is executed by ▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES, a California limited partnership
("Debtor"), for the benefit of ▇▇▇▇▇ FARGO BANK, N.A., a national banking
association ("Bank"), and Bank One Trust Company, N.A., a national banking
association ("Trustee"), Bank and Trustee being collectively referred to herein
as "Secured Party."
WHEREAS, the County of Delaware, Ohio (the "Issuer") and Radiation Sterilizers,
Incorporated, a California corporation ("RSI"), have entered into a Loan
Agreement as of even date herewith (the "Loan Agreement") whereby the Issuer
has agreed to issue bonds (the "Bonds") in the aggregate principal amount of
$4,900,000 and to lend the proceeds thereof to RSI to finance the construction
and operation of an industrial facility in Delaware County, Ohio, for the
sterilization of packaged products using ionizing radiation; and
WHEREAS, Bank is issuing a Letter of Credit (the "Letter of Credit")
as security for the obligations of RSI with regard to the Bonds and RSI is
executing, in connection therewith, a Letter of Credit Agreement (the
"Reimbursement Agreement"), one or more promissory notes evidencing advances
under the Letter of Credit (the "Notes") and various other documents defined in
the Reimbursement Agreement (and herein) as the "Loan Documents"; and
WHEREAS, Debtor has executed a General Continuing Guaranty of even
date herewith (the "Guaranty") pursuant to which Debtor has guaranteed all of
the obligations of RSI to Bank arising from or in connection with the Letter of
Credit, the Reimbursement Agreement or the other Loan Documents; and
WHEREAS, Debtor, pursuant to those certain deeds of trust dated as of
even date herewith (the "Deeds of Trust"), executed by Debtor, as trustor, in
favor of Secured Party, as beneficiary, has granted liens on the parcels of
real property described in Exhibit "A" hereto (the "Properties"), as security
for Debtor's obligations under the Guaranty; and
WHEREAS, in order to induce Bank to issue its Letter of Credit, Debtor
has agreed to enter into this Security Agreement in order to secure the payment
and performance required under the Guaranty;
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NOW THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, Debtor hereby agrees as follows:
1. Grant of Security Interest. To secure the payment and
performance by RSI of all obligations and indebtedness to Trustee under the
Loan Agreement and all related agreements, the Deeds of Trust and this Security
Agreement, and the payment and performance by Debtor of all obligations and
indebtedness to Bank under the Guaranty, the Deeds of Trust and this Security
Agreement, whether such obligations and indebtedness are now existing or owing
or are hereafter incurred or are absolute or contingent (the "Obligations"),
Debtor hereby grants, assigns and transfers to Secured Party a continuing
security interest in all of its right, title and interest in and to the
following described property (the "Collateral"):
(a) All Debtor's present and future accounts,
instruments, chattel paper, notes, drafts, contract rights,
governmental permits, rights to payment of any kind, any insurance
proceeds, condemnation proceeds, and any general intangibles and
inventory arising from or relating to any Property;
(b) All Debtor's present and future equipment, machinery,
tools, furniture and furnishings, whether owned or leased by Debtor,
now or hereafter located at any Property or relating to any Property;
(c) All fixtures located upon or within any Property or
now or hereafter attached to, or installed in, or used in connection
with any Property including, but not limited to, any and all
partitions; generators; screens; awnings; motors; engines; boilers;
furnaces; pipes; plumbing; elevators; cleaning, call and sprinkler
systems; fire extinguishing apparatus and equipment; water tanks;
heating, ventilating, air-conditioning and air-cooling equipment;
built-in refrigerated rooms and gas and electric machinery,
appurtenances and equipment; in each case whether or not permanently
affixed to that Property; together with all present and future
attachments, accessories, replacements, equipment, additions and any
proceeds thereof;
(d) All water stock, if any, relating to any Property and
all shares of stock or other evidence of ownership of any part of or
interest in any Property that is owned by Debtor in common with
others;
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(e) All present and future trade marks and trade names,
and all present and future books and records pertaining to any
Property or the collateral described in subparagraphs (a) through (e)
above, and the equipment containing such books and records; and
(f) All proceeds and products of any of the foregoing,
including without limitation all monies, deposit accounts, insurance
proceeds and other tangible or intangible property received upon a
sale or other disposition of any of the foregoing.
2. Representations and Warranties of Debtor. Debtor hereby
represents to Secured Party that:
(a) Debtor is the true and lawful owner of and has good
and clear title to the Collateral, subject only to the rights of
Secured Party hereunder and to the rights of other lenders with
respect to each security interest ("Permitted Lien") granted by Debtor
in conjunction with any lien on the related Property that is described
in the Reimbursement Agreement as a "Permitted Encumbrance."
(b) This Security Agreement creates a valid security
interest in favor of Secured Party in the Collateral as it shall exist
from time to time, which security interest will, when perfected, be
superior and prior in right to all claims of creditors of Debtor and
to all other security interests, liens and encumbrances in respect
thereof except the Permitted Liens.
(c) There is no financing statement covering the
Collateral on file in any public office except those perfecting the
Permitted Liens, and, except for the Permitted Liens and the security
interests which inure to the benefit of Secured Party pursuant to this
Security Agreement, there is no adverse lien, security interest or
encumbrance in or upon the Collateral.
(d) Debtor's principal Place of business and chief
executive and accounting offices are located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Covenants by Debtor. Debtor hereby covenants in favor of
Secured Party that:
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(a) Prior to or simultaneously with Debtor's execution of
the Guaranty, Debtor will execute and cause to be filed in accordance
with the Commercial Code of the State of California, financing
statements in form and substance satisfactory to Secured Party, and
thereafter will execute and deliver such other documents (including
but not limited to continuation statements) as Secured Party may
reasonably require in order to perfect or maintain as perfected such
security interests and, to the extent so required by Secured Party,
will give public notice of all such transactions.
(b) Debtor shall notify Secured Party prior to changing
its principal place of business and chief executive and accounting
offices from the location set forth in Section 2(d) of this Security
Agreement.
(c) Debtor shall at all times maintain the Collateral
ingood repair, working order and condition and will fromtime to time
make or cause to be made all needed and proper replacements, repairs,
renewals and improvements so that the efficiency and value of the
Collateral shall not be impaired.
(d) Debtor will at all times keep accurate and complete
records with respect to the Collateral and agrees that the
representatives of Secured Party shall have the right, at any time
during normal business hours or at any other reasonable time, and from
time to time, to call at Debtor's place or places of business where
the Collateral or any part thereof may be held or located or the
records pertaining to the Collateral may be kept and to inspect the
Collateral and/or examine or cause to be examined such records and to
make abstracts therefrom or copies thereof; in addition, Debtor shall
furnish Secured Party with periodic reports as to the Collateral, in
such form and detail and at such times as Secured Party may require.
(e) Monies received because of any court or arbitration
award or settlement or insurance payment, for any loss or damage to
the Collateral, and proceeds from any condemnation award or settlement
relating to the Collateral shall be treated as provided in the Deed of
Trust with regard to the related Property.
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4. Notice to Secured Party.
(a) Debtor covenants that, as soon as practicable, and in
any event within 10 days, it shall notify Secured Party of:
(i) The occurrence or non-occurrence of any event
which constitutes, or which with the passage of time would
constitute, an Event of Default under this Security Agreement;
(ii) Any attachment or other legal process levied
against any of the Collateral; and
(iii) Any information received by Debtor relevant to
the Collateral which may in any manner materially and
adversely affect the value of the Collateral or the rights and
remedies of Secured Party in respect thereto.
Any notice delivered pursuant to this Section 4(a) shall set
forth the nature of such event or non-event and the action which
Debtor proposes to take with respect thereto.
(b) Debtor covenants that it shall immediately notify
Secured Party of the removal of any of the Collateral to a new
location and of each office of Debtor at which records of Debtor
relating to the Collateral are kept.
5. Events of Default. The term Event of Default whenused in this
Security Agreement shall mean any one or more of the following events:
(a) Any statement, representation or warranty made by
Debtor hereunder or in the Guaranty shall prove to be false,
inaccurate or incorrect in any material respect when made.
(b) Debtor shall fail to pay any amount owing under the
Guaranty, this Security Agreement or any Deed of Trust, within ten
(10) days after notice.
(c) Debtor shall fail to perform or observe any term,
covenant or agreement contained in the Guaranty, this Security
Agreement or any Deed of Trust the breach of which can be cured by the
payment of money, within ten (10) days after notice.
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(d) Debtor shall fail to perform or observe any term,
covenant or agreement contained in the Guaranty, this Security
Agreement or any Deed of Trust (other than terms, covenants or
agreements the breach of which can be cured by the payment of money)
within thirty (30) days after notice; provided, however, that if cure
cannot reasonably be effected within such thirty (30) day period there
shall be no Event of Default under this Section 5(d) so long as Debtor
promptly (in any event, within such thirty (30) day period) commences
cure and thereafter diligently prosecutes such cure to completion.
(e) Any statement, representation or warranty made by RSI
for the benefit of Trustee in the Loan Agreement or any related
document shall prove to be false, inaccurate or incorrect in any
material respect when made.
(f) RSI shall fail to pay any amount owing to Trustee
under the Loan Agreement or any related document within ten (10) days
after notice.
(g) RSI shall fail to perform or observe any term,
covenant or agreement contained in the Loan Agreement or any related
document the breach of which can be cured by the payment of money,
within ten (10) days after notice.
(h) RSI shall fail to perform or observe any term,
covenant or agreement contained in the Loan Agreement or any related
document (other than terms, covenants or agreements the breach of
which can be cured by the payment of money) within thirty (30) days
after notice; provided, however, that if cure cannot reasonably be
effected within such thirty (30) day period there shall be no Event of
Default under this Section 5(h) so long as RSI promptly (in any event,
within such thirty (30) day period) commences cure and thereafter
diligently prosecutes cure to completion.
6. Remedies on Default. Secured Party shall have the following
remedies if an Event of Default shall have occurred:
(a) Secured Party shall have the right to exercise all
remedies and powers provided to Secured Party in the Deeds of Trust.
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87
(b) Secured Party shall have the right to take whatever
legal action may appear necessary or desirable to collect the payments
declared due under this Security Agreement or the Guaranty.
(c) Secured Party shall have the right to exercise any
remedies granted to a secured party under the Commercial Code of the
State of California and the general laws of the State of California
with respect to the enforcement of the security interests granted or
reserved hereunder.
(d) Secured Party may require Debtor to assemble all or
any part of the Collateral and make it available to Secured Party at
any reasonably convenient location.
(e) Secured Party shall have the right to exercise any
and all other rights and remedies which may be available at law or in
equity.
Secured Party shall have the right to enforce one or more remedies
provided by this Section 6 successively or concurrently, and such action shall
not stop or prevent Secured Party from pursuing any further remedy which it may
have under this Section 6 or which is described under said laws. Debtor shall
reimburse Secured Party for any and all legal costs, including reasonable
attorneys' fees, and other expenses incurred in collecting any sums payable by
Debtor pursuant to any Obligation secured hereunder, enforcing any term or
provision of this Security Agreement, checking, handling, preparing for sale,
collecting or selling the Collateral or in preparing or enforcing any agreement
relating thereto. If a sufficient sum is not realized from the disposition of
the Collateral to pay all of the Obligations, Debtor hereby promises and agrees
to pay Secured Party any deficiency.
7. Obligation of Debtor Unconditional. Debtor's requirements to
perform and observe the agreements and covenants on its part contained herein
shall be absolute and unconditional. Until such time as all payments under the
Deeds of Trust, this Security Agreement, the Guaranty and the Loan Agreement
shall have been made, Debtor (i) shall perform and observe all of its
agreements and covenants contained in this Security Agreement; and (ii) shall
not terminate this Security Agreement for any cause, including without
limitation any acts or circumstances that may constitute failure of
consideration, destruction of, or damage to, the Collateral, commer-
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88
cial frustration of purpose, any change in the laws of the United States of
America or of the State of California or any political subdivision of either,
or any failure of Secured Party to perform or observe any agreement, whether
express or implied, or any duty, liability or obligation, arising out of or
connected with this Security Agreement.
8. Entire Agreement; Waiver. This Security Agreement,
togetherwith those provisions of the Guaranty and the Deeds of Trust alluded to
herein, constitutes the entire agreement between Debtor and Secured Party
pertaining to the subject matter contained herein. This Security Agreement may
not be amended, changed, modified, altered or terminated except by a written
instrument signed by Secured Party and Debtor.
9. Notices. All notices or communications herein required or
permitted to be given shall be in writing and shall be governed in all respects
pursuant to Section 16 of the Guaranty, except that notices to Trustee shall be
governed by the Loan Agreement.
10. Severability. In the event any provision of this Security
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
11. Section Headings. The subject headings and the sections and
subsections of this Security Agreement are included for purposes of convenience
only and shall not affect the construction or interpretation of any such
provisions.
12. Governing Law. This Security Agreement shall be construed in
accordance with and governed by the laws of the State of California.
13. Definitions. Unless otherwise defined, words used herein have
the meanings given them in the Commercial Code of California.
14. Execution of Counterparts. This Security Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original, and all of which shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, Debtor has caused this Security Agreement
to be duly executed as of the date and year first above written.
"Debtor":
▇▇▇▇▇▇▇ ▇▇▇▇ & ASSOCIATES
a California limited partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇., Jr.,
its sole general partner
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EXHIBIT "A"
(14054-14072 Catalina Street)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located
thereon, situated in the City of San Leandro, County of Alameda, State
of California, and described as follows:
PARCEL ONE:
PARCEL A, PARCEL MAP NO. 1871, PILED MAY 6, 1976 BOOK 89 OF PARCEL MAPS, PAGE
85, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE SOUTHEASTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF SAID PARCEL A OF PARCEL MAP NO. 1871.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF PARCEL A. PARCEL MAP NO. 1071, FILED MAY 69, 1976, BOOK
89, OF PARCEL MAPS, PAGE 85, ALAMEDA COUNTY RECORDS.
A.P. NO. 080G-0931-018
Exhibit "A"
Page 1 of 5
91
EXHIBIT "A"
(14226 - 14266 Catalina Street)
All that certain real property together with all appurtenances
thereto and all improvements now or hereafter located thereon,
situated in the City of San Leandro, County of Alameda, State of
California, and described as follows:
PARCEL ONE:
PARCEL 1, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976 BOOK 94 OF PARCEL MAPS,
PACE 21, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A) A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES
FOR THE BENEFIT OF PARCEL AT PARCEL MAP NO. 1871, FILED MAY 6, 1976,
BOOK 89 OF PARCEL MAPS, PAGE 85, OFFICIAL RECORDS, OVER A STRIP OF
LAND 30 FEET WIDE, THE NORTHWESTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF SAID PARCEL As OF PARCEL MAP NO. 2044.
B) A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES
FOR THE BENEFIT OF PARCEL 2, PARCEL MAP 2044, FILED DECEMBER 16, 1976,
BOOK 94, PAGE 21, OFFICIAL RECORDS, OVER A STRIP OF LAND 30 FEET WIDE,
THE SOUTHEASTERLY LINE THEREOF BEING THE SOUTHEASTERLY LINE OF SAID
PARCEL 1 OF PARCEL MAP NO. 2044.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE SOUTHEASTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF PARCEL 1, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976,
BOOK 94, OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE NORTHWESTERLY LINE THEREOF BEING THE
SOUTHEASTERLY LINE OF PARCEL 1, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976,
BOOK 94, OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 080G-0932-027
Exhibit "A"
Page 2 of 5
92
EXHIBIT "A"
(14400 Catalina Street)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located
thereon, situated in the City of San Leandro, County of Alameda, State
of California, and described as follows:
PARCEL ONE:
PARCEL IS PARCEL MAP NO. 2379, FILED DECEMBER 27, 1977, BOOK 98, OF PARCEL
MAPS, PAGE 92, ALAMEDA COUNTY RECORDS.
RESERVING FROM PARCEL ONE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY LINE THEREOF BEING THE
NORTHWESTERLY LINE OF SAID PARCEL 1 OF PARCEL MAP NO. 2379.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO PARCEL 1 ABOVE, FOR OPEN SPACE AND
VEHICLE ACCESS PURPOSES OVER A STRIP OF LAND 30 FEET WIDE THE SOUTHERLY LINE
THEREOF BEING THE NORTHWESTERN LINE OF PARCEL R, PARCEL MAP NO. 2181, FILED
JULY 29, 1977, BOOK 97, OF PARCEL MAPS PAGE 72, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO PARCEL ONE ABOVE, FOR OPEN SPACE AND
VEHICULAR ACCESS PURPOSES OVER A STRIP OF LAND 30 FEET WIDE THE NORTHWESTERLY
LINE OF WHICH IS THE NORTHERLY LINE OF PARCEL 2 OF PARCEL MAP NO. 2379, FILED
DECEMBER 27, 1977, BOOK 98, OF PARCEL MAPS, PAGE 92, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 080G-0932-031
Exhibit "A"
Page 3 of 5
93
EXHIBIT "A"
(▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
All that certain real property, together with all appurtenances
thereto and all improvements now or hereafter located thereon, situated in the
City of Hayward, County of Alameda, State of California, and described as
follows:
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, FILED AUGUST
14, 1969, IN BOOK 63 OF MAPS, PAGES 8 TO 14, INCLUSIVE, ALAMEDA
COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 432-0114-012-01
EXHIBIT "A"
Page 4 of 5
94
EXHIBIT "A"
(20464-20472 Corsair Boulevard)
All that certain real property, together with all
appurtenances thereto and all improvements now or hereafter located thereon,
situated in the City of Hayward, County of Alameda, State of California, and
described as follows:
PARCEL 1 AS SHOWN ON PARCEL MAP NO. 417, FILED JANUARY 10, 1969, IN BOOK 58 OF
MAPS, PAGE 76, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY
ASSESSOR'S PARCEL NO. ▇▇▇-▇▇▇▇-▇▇▇
EXHIBIT "A"
Page 5 of 5