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EXHIBIT 10.9
$4,600,000
TRINITY RIVER INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS
(RADIATION STERILIZERS, INCORPORATED PROJECT)
SERIES 1985-A AND SERIES ▇▇▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ AGREEMENT
November 13, 1985
On the basis of the representations, warranties and covenants contained in
this Bond Purchase Agreement and upon the terms and conditions contained in this
Bond Purchase Agreement, the undersigned, Prudential-Bache Securities, Inc. (the
"Underwriter"), hereby offers to purchase from Trinity River Industrial
Development Authority (the "Issuer") up to $4,600,000 aggregate principal amount
its Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project), Series 1985-A and Series 1985-B (the "Series
1985-A Bonds" and the "Series 1985-B Bonds," collectively, the "Bonds"), each
series to be issued under and pursuant to a trust indenture dated as of November
1, 1985 (the Series 1985-A Indenture and the Series 1985-B Indenture,
collectively, the "Indentures") between the Issuer and Bank One Trust Company,
N.A., as trustee (the "Trustee").
SECTION 1. ISSUER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
By the Issuer's execution, delivery and acceptance hereof the Issuer
hereby represents and warrants to, and agrees with, the Underwriter that:
(a) The Issuer is an industrial development corporation and constituted
authority and instrumentality (within the meaning of those terms in the
Regulations and the rulings of the Internal Revenue Service prescribed and
promulgated pursuant to Section 103 of the Internal Revenue Code of 1954,
as amended). By virtue of the authority of the Constitution and laws of
the State of Texas (the "State"), and particularly the Development
Corporation Act of 1979, Article 5190.6, Vernon's Texas Civil Statutes, as
amended (the "Act"), the Issuer is authorized to issue the Bonds to
finance the Facilities, as defined in the loan agreements dated as of
November 1, 1985 (the Series 1985-A Agreement and the Series 1985-B
Agreement, collectively, the "Agreements") between the Issuer and
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Sterilizers, Incorporated, a California corporation (the "Company"), and
to pledge the payments to be received pursuant to the Agreements as
security for the payment of the principal of and premium, if any, and
interest on the Bonds.
(b) The Issuer has complied with all provisions of the Constitution and
laws of the State, including the Act, and has full power and authority to
consummate all transactions contemplated by this Bond Purchase Agreement,
the Indentures and the Agreements.
(c) The information describing the Issuer in the Offering Statement of
even date herewith (the "Offering Statement") to be used in connection
with the offering and sale of the Bonds by the Underwriter under the
caption "THE ISSUER" as of the Closing Date, as hereinafter defined, is
true and does not contain any untrue statement of a material fact.
(d) The Issuer has duly authorized all necessary action for: (1) the
issuance and sale of the Bonds upon the terms set forth herein; (2) the
execution and delivery of the Indentures providing for the issuance of and
security for the Bonds (including the pledge by the Issuer of the payments
to be received pursuant to the Agreements sufficient to pay the principal
of and premium, if any, and interest on the Bonds); (3) appointing the
Trustee as Trustee, Paying Agent and Bond Registrar under the Indentures;
(4) the financing of the Facilities; (5) the execution, delivery, receipt
and due performance of this Bond Purchase Agreement, the Bonds, the
Indentures, the Agreements and any and all such other agreements and
documents as may be required to be executed, delivered and received by the
Issuer in order to carry out, give effect to and consummate the
transactions contemplated hereby or by the Indentures or the Agreements;
and (6) the carrying out, giving effect to and consummation of the
transactions contemplated hereby or by the Indentures or the Agreements.
(e) There is no action, suit, proceeding, inquiry or investigation at law
or in equity or before or by any court, public board or body pending or,
to the knowledge of the Issuer, threatened against or affecting the
Issuer, or any basis therefor, wherein an unfavorable decision, ruling or
finding would materially adversely affect the transactions contemplated
hereby or by the Indentures or the Agreements or the validity of the
Bonds, the Indentures, the Agreements, this Bond
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Purchase Agreement or any agreement or instrument to which the Issuer is a
party and which is used or contemplated for use in the consummation of the
transactions contemplated hereby or by the Indentures or the Agreements.
(f) The Issuer's execution and delivery of this Bond Purchase Agreement,
the Bonds, the Indentures, the Agreements and the other agreements
contemplated hereby or by the Indentures or the Agreements will not
contravene any law governing the Issuer and will not conflict with any
provisions of the Act.
(g) The Issuer has not been notified of any listing or proposed listing by
the Internal Revenue Service to the effect that the Issuer is a bond
issuer whose arbitrage certifications may not be relied upon.
SECTION 2. COMPANY'S REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
To induce the Issuer and the Underwriter to enter into this Bond Purchase
Agreement, and in consideration of the foregoing and the execution and delivery
of this Bond Purchase Agreement, the Company represents, warrants and covenants
to and with the Issuer and the Underwriter as follows:
(a) The financial statements provided to the Underwriter in connection
with the offer and sale of the Bonds by the Underwriter present fairly its
financial position as of the dates indicated therein and the results of
operation for the periods specified therein, and such financial statements
have been prepared in conformity with generally accepted accounting
principles consistently applied in all material respects with respect to
the periods involved, except as may otherwise be disclosed to the
Underwriter or in the Offering Statement.
(b) The descriptions and information to be contained in the Offering
Statement at the Closing Date, as defined herein, are true and do not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made,, not misleading;
provided, however, that none of the representations and warranties in this
Bond Purchase Agreement shall apply to the information contained under the
caption "THE ISSUER" or in Appendix B thereto (relating to ▇▇▇▇▇ Fargo
Bank, N.A. (the "Bank").
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(c) It will not take or omit to take any action which will in any way
result in the proceeds from the sale of the Bonds being applied in a
manner inconsistent with the provisions of the Agreements and the
Indentures, including the provisions with respect to "arbitrage" therein.
(d) There is no action, suit, proceeding, inquiry or investigation at law
or in equity or before or by any public board or body pending or
threatened against or affecting it or any basis therefor, wherein an
unfavorable decision, ruling or finding would have a material adverse
effect on the transactions contemplated by this Bond Purchase Agreement,
the Indentures or the Agreements or would adversely affect the validity or
enforceability of the Bonds, the Indentures, the Agreements or the Letter
of Credit Agreements dated as of November 1, 1985 (the "Credit
Agreements") between the Company and the Bank pursuant to which
irrevocable letters of credit (the "Letters of Credit") will be issued by
the Bank.
(e) The Agreements, this Bond Purchase Agreement and the Credit
Agreements, when executed and delivered by the Company, will constitute
the legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally,
(f) The execution and delivery of the Agreements, the Credit Agreements
and this Bond Purchase Agreement, and the performance by the Company of
its obligations under the foregoing, (i) have been duly authorized by all
necessary corporate action of the Company and no approval or other action
by any governmental authority or agency is required in connection
therewith; (ii) do not and will not violate the Articles of Incorporation
or Bylaws of the Company, or any existing court order by which the Company
is bound, and such actions do not and will not constitute a default under
any existing agreement, indenture, mortgage, lease, note or other
obligation or instrument to which the Company is a party; and (iii) will
not be subject to the lien, pledge or encumbrance of any existing
agreement or document to which the Company is a party (excluding any lien,
pledge or encumbrance arising under the Agreements and the Credit
Agreements).
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SECTION 3. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless the Issuer and the
Underwriter, and any member, officer, official or employee of the Issuer or the
Underwriter, and each person, if any, who controls the Underwriter, within the
meaning of Section 15 of the Securities Act of 1933, as amended (collectively
the "Indemnified Parties"), against any and all losses, claims, damages,
liabilities or expenses whatsoever caused by any untrue statement or misleading
statement or allegedly misleading statement of a material fact contained in the
Offering Statement (or caused by any omission or alleged omission from the
Offering Statement of any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue or misleading statement or
omission or allegedly untrue or misleading statement or omission in the
information contained under the caption "THE ISSUER" or in Appendix B thereto.
If any action shall be brought against one or more of the Indemnified
Parties based upon the Offering Statement and in respect of which indemnity may
be sought against it, the Indemnified Parties shall promptly notify the Company
in writing, and the Company shall promptly assume the defense thereof, including
the employment of counsel, the payment of all expenses and the right to
negotiate and consent to settlement. Any one or more of the Indemnified Parties
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Indemnified Parties unless
employment of such counsel has been specifically authorized by the Company. The
Company shall not be liable for any settlement of any such action effected
without its consent by any of the Indemnified Parties, but if settled with the
consent of the Company or if there be a final judgment for the plaintiff in any
such action against the Company or any of the Indemnified Parties, with or
without the consent of the Company, the Company agrees to indemnify and hold
harmless the Indemnified Parties to the extent provided in this Bond Purchase
Agreement.
SECTION 4. PURCHASE, SALE AND DELIVERY OF THE BONDS.
On the basis of the representations, warranties and covenants of the
Issuer and the Company contained herein, and subject to the terms and conditions
herein set forth, at the Closing Time, as defined herein, the Underwriter agrees
to purchase from the Issuer and the Issuer agrees to sell to the Underwriter the
Bonds at 98.50% of the aggregate principal amount thereof.
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The Series 1985-A Bonds shall be issued under and secured as provided in
the Series 1985-A Indenture. The Series 1985-A Bonds will be payable (except to
the extent payable from proceeds (of the sale of the Bonds and the earnings from
the temporary investment thereof) solely out of the payments received under the
Series 1985-A Agreement (including moneys paid under the Series 1985-A Letter of
Credit), The Series 1985-A Bonds shall be further secured by the Series 1985-A
Letter of Credit. The Series 1985-A Bonds shall mature on November 1, 2005,
shall bear interest at a variable interest rate (subject to conversion to a
fixed interest rate), provide a put option to the owners thereof and be subject
to redemption, all as set forth in the Series 1985-A Indenture.
The Series 1985-B Bonds shall be issued under and secured as provided in
the Series 1985-B Indenture. The Series 1985-B Bonds will be payable (except to
the extent payable from proceeds of the sale of the Bonds and the earnings from
the temporary investment thereof) solely out of the payments received under the
Series 1985-B Agreement (including moneys paid under the Series 1985-B Letter of
Credit). The Series 1985-B Bonds shall be further secured by the Series 1985-B
Letter of Credit. The Series 1985-B Bonds shall mature on November 1, 2005,
shall bear interest at a variable interest rate (subject to conversion to a
fixed interest rate), provide a put option to the owners thereof and be subject
to redemption, all as set forth in the Series 1985-B Indenture.
Payment for the Bonds shall be made in immediately available funds by
federal wire transfer at such place, time and date as shall be mutually agreed
upon by the Issuer and the Underwriter. The date of such delivery and payment is
herein called the "Closing Date," and the hour and date of such delivery and
payment is herein called the "Closing Time." The delivery of the Bonds shall be
made in definitive form and issued to and registered in the name of the
Underwriter, except to the extent that the Underwriter may request the delivery
of certain of the Bonds registered as to other persons, and in such
denominations as authorized by the Indenture as the Underwriter shall specify in
writing at least 24 hours prior to the Closing Time. The Bonds shall be
available for examination and packaging by the Underwriter at least 24 hours
prior to the Closing Time.
SECTION 5. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS.
The Underwriter's obligations under this Bond Purchase Agreement shall be
subject to the due performance by the Issuer and the Company of their respective
obligations and agreements to be performed hereunder at or prior to the Closing
Time and
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to the accuracy of and compliance with the Issuer's and the Company's
representations and warranties contained herein, as of the date hereof and as of
the Closing Time, and are also subject to the following conditions:
(a) The Bonds, the Indentures, the Agreements, the Credit Agreements and
the Letters of Credit shall each have been duly authorized, executed and
delivered in the form mutually agreed upon by the Issuer, the Underwriter,
the Bank and the Company.
(b) At the Closing Time, the Underwriter shall
receive:
(1) The opinions dated the Closing Date of (i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Bond Counsel, relating to the valid authorization and
issuance of the Bonds, the due authorization, execution and delivery
of the Indentures and the Agreements, the tax-exempt status of the
Bonds and certain other matters, in substantially the form of
Exhibit A hereto; (ii) ▇▇▇▇▇▇ A, ▇▇▇▇▇▇, Esq., counsel to the
Company, relating to the due organization and existence of the
Company, the due authorization, execution and delivery of the
Agreements, the Credit Agreements and this Bond Purchase Agreement
and certain other matters, in substantially the form of Exhibit B
hereto; (iii) Sheppard, Mullin,, ▇▇▇▇▇▇▇ & Hampton, counsel to the
Bank, relating to the valid authorization and issuance of the
Letters of Credit and certain other matters, in substantially the
form of Exhibit C hereto; (iv) counsel to the Trustee, relating to
certain matters with regard to the Trustee, in substantially the
form of Exhibit D hereto; (v) counsel to the Issuer, relating to
certain matters with regard to the Issuer, in substantially the form
of Exhibit E hereto; and (vi) Dumas, Huguenin, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel to the Underwriter, relating to certain matters of federal
bankruptcy law and federal securities law, in substantially the form
of Exhibit F hereto;
(2) A certificate, satisfactory to the Underwriter, of the President
of the Board of Directors of the Issuer, dated as of the Closing
Date, to the effect that: (i) the Issuer has duly performed all
obligations to be performed by it at or prior to the Closing Time
and that each
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of the representations and warranties given by the Issuer and
contained herein is true as of the Closing Date; (ii) the Issuer has
authorized, by all necessary action, the execution, delivery,
receipt and due performance of the Bonds, the Indentures, the
Agreements and any and all such other agreements and documents as
may be required to be executed, delivered and received by the Issuer
to carry out, give effect to and consummate the transactions
contemplated hereby; (iii) no litigation is pending, or to such
President's knowledge threatened, to restrain or enjoin the issuance
or sale of the Bonds or in any way affecting any authority for or
the validity of the Bonds, the Indentures, the Agreements, this Bond
Purchase Agreement or the Issuer's existence or powers or the
Issuer's right to use the proceeds of the Bonds to finance the
Facilities; and (iv) the execution, delivery, receipt and due
performance of the Bonds, the Indentures, the Agreements and the
other agreements contemplated hereby under the circumstances
contemplated hereby or by the Indentures or the Agreements and the
Issuer's compliance with the provisions thereof comply with the Act;
(3) Certificates, satisfactory in form and substance to the
Underwriter, of the President and the Secretary of the Company, of
such other officers acceptable to the Underwriter, dated as of the
Closing Dates to the effect that (i) since the date as of which
information is given in Appendix A to the Offering Statement
(including the documents to be incorporated by reference therein),
if any, or any financial information described in Section 2(a) of
this Bond Purchase Agreement, there has not been any material
adverse change in the business, properties, financial position or
results of operations of the Company, whether or not arising from
transactions in the ordinary course of business, and since such
date, except in respect of the Bonds and in the ordinary course of
business, the Company has not incurred any undisclosed material
liability; (ii) there is no action, suit, proceeding or any
investigation or inquiry at law or in equity or before or by any
public board or body pending or threatened against or affecting the
Company or its property or any basis therefor, wherein an
unfavorable decision, ruling or finding would
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adversely affect the transactions contemplated hereby or by the
Indenture or the Agreement or the validity or enforceability of the
Bonds, the Indentures, the Agreements, the Credit Agreements, the
Pledge and Security Agreement or this Bond Purchase Agreement; (iii)
the information contained in the Offering Statement (excluding
information contained under the caption "THE ISSUER" and in Appendix
B thereto) is true in all material respects and does not contain any
untrue statement of a material fact and does not omit to state a
material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not
misleading; and (iv) the Company has duly authorized, by all
necessary corporate action, the execution, delivery and due
performance by the Company of the Agreements, the Credit Agreements
and this Bond Purchase Agreement;
(4) Such additional certificates, opinions and other documents as
the Underwriter or the Bank may reasonably request shall have been
delivered, including any certificates or opinions to evidence
performance of or compliance with the provisions hereof and the
transactions contemplated hereby, all such certificates and other
documents to be satisfactory in form and substance to the
Underwriter or the Bank; and
(5) A letter from ▇▇▇▇▇'▇ Investors Service, Inc. indicating a
rating for the Bonds which is not lower than "Aaa" or a letter from
Standard & Poor's Corporation indicating a rating for the Bonds
which is not lower than "AAA."
(c) The Bank shall have delivered the Letters of credit to the Trustee for
the benefit of the Bondholders.
SECTION 6. CONDITIONS OF ISSUER'S OBLIGATIONS.
The Issuer's obligations under this Bond Purchase Agreement are subject to
the Underwriter's performance of its obligations hereunder and to the due
completion of all proceedings, and the due satisfaction of all conditions
required by the Act for the issuance of the Bonds.
No provision, covenant or agreement contained in this Bond Purchase
Agreement shall be deemed to be the covenant or agreement of any member,
officer, attorney, agent or employee
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of the Issuer in an individual capacity; and no such provision, covenant or
agreement, and no obligation herein imposed upon the Issuer, or the breach
thereof, shall constitute an indebtedness of the Issuer within the meaning of
any provision of the constitution or law of the State or constitute or give rise
to any pecuniary liability of the Issuer or a charge against its general credit.
No recourse shall be had for the payment of the principal of or premium, if any,
or interest on the Bonds, or for any claim based hereon or on any instruments
and documents executed and delivered by the Issuer in connection with the
Facilities, against any member, officer, agent, attorney or employee, past,
present or future, of the Issuer or of any successor body, or their respective
heirs, personal representatives, successors as such, either directly or through
the Issuer or any such successor body, whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty, or otherwise, all of such liability being hereby released as a
condition of and as a consideration for the execution and delivery of this Bond
Purchase Agreement.
SECTION 7. TERMINATION.
Notwithstanding any other provision of this Bond Purchase Agreement to the
contrary, the Underwriter may terminate this Bond Purchase Agreement by
notification to the Issuer and the Company if at any time prior to the Closing
Date (A) legislation shall be introduced or enacted by the United States
Congress or adopted by either house therefor or a decision by a court of the
United States shall be rendered or a ruling, regulation or official statement by
or on behalf of the Treasury Department of the United States, the Internal
Revenue Service or other government agency shall be made with respect to federal
taxation upon interest received on bonds of the general character of the Bonds,
which would have the effect of changing directly or indirectly the federal
income tax consequences of interest on bonds of the general character of the
Bonds in the hands of the owners thereof; or (B) legislation shall be enacted or
any action shall be taken by the Securities and Exchange Commission which, in
the reasonable judgment of the Underwriter has the effect of requiring the
contemplated distribution of the Bonds to be registered under the Securities Act
of 1933, as amended, or the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended; or (C) there shall exist any event which, in the
reasonable judgment of the Underwriter, either (1) makes untrue or incorrect in
any material respect any statement or information contained in the Offering
Statement or (2) is not reflected in the Offering Statement should be reflected
therein or in an attachment thereto in order to make any material statements or
information
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contained therein not misleading in any material respect; or (D) there shall
have occurred any outbreak of hostilities engaging the United States in any
local, national or international calamity or crisis on the financial markets of
the United States being such as, in the reasonable judgment of the Underwriter,
would materially affect the marketability of the Bonds; or (E) there shall be in
force a general suspension of trading on the New York Stock Exchange or minimum
or maximum prices for trading shall have been fixed and be in force, or maximum
ranges for prices for securities shall have been required and be in force on the
New York Stock Exchange, whether by virtue of a determination by that Exchange
or by order of the Securities and Exchange Commission or any other governmental
authority having jurisdiction; or (F) a general banking moratorium shall have
been declared by either federal, Texas, California or New York authorities
having jurisdiction and be in force; or (G) there shall have occurred any
change, or any development involving a prospective change, in or affecting the
operations of the Issuer, the Company or the Bank, which, in the reasonable
judgment of the Underwriter, materially impairs the investment quality of the
Bonds; or (H) any legislation, ordinance, rule or regulation shall be introduced
in or be enacted by any governmental body, department or agency in the State or
a decision by any court of competent jurisdiction within the State shall be
rendered, which materially adversely affects the market price of the Bonds; or
(I) additional material restrictions not in force as of the date hereof shall
have been imposed upon trading in securities generally by any governmental
authority or by any national securities exchange.
If the Issuer or the Company does not, in the exercise of good faith,
satisfy the conditions to the obligations of the Underwriter contained in this
Bond Purchase Agreement, or if the obligations of the Underwriter shall be
terminated for any reason permitted by this Bond Purchase Agreement, this Bond
Purchase Agreement shall terminate and the Underwriter shall not have any
further obligations hereunder. The Underwriter, however, may in its sole
discretion waive one or more of the conditions imposed by this Bond Purchase
Agreement and proceed herewith.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All of the Issuer's and the Company's representations, warranties and
agreements shall remain operative and in full force and effect, regardless of
any investigations made by the Underwriter on its behalf, and shall survive
delivery of the Bonds to the Underwriter.
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SECTION 9. PAYMENT OF EXPENSES.
Whether or not the Bonds are sold by the Issuer to the Underwriter, the
Underwriter shall be under no obligation to pay any expenses incident to the
performance of the obligations of the Issuer hereunder. All expenses and costs
to effect the authorization, preparation, issuance, delivery and sale of the
Bonds (including, without limitation, the fees and disbursements of Bond
Counsel, counsel to the Bank, counsel to the Issuer, and the expenses and costs
for the preparation, printing, photocopying, execution and delivery of the
Bonds, (and the rating thereof by Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investors Service, Inc.), the Indentures, the Agreements, the Credit Agreements,
this Bond Purchase Agreement and all other agreements and documents contemplated
hereby) shall be paid out of the proceeds of the sale of the Bonds, or by the
Company. The Company and the Underwriter have agreed that certain expenses in
connection with the offer and sale of the Bonds by the Underwriter will be paid
by the Underwriter, including the fees and disbursements of the Underwriter and
its counsel, expenses and costs for the preparation, printing and delivery of
the Preliminary Offering Statement and Offering Statement, advertising and
certain miscellaneous fees and expenses, and neither the Company nor the Issuer
shall be liable for the payment thereof.
SECTION 10. NOTICES.
Any notice or other communication to be given to the Issuer under this
Bond Purchase Agreement may be given by mailing (certified or registered) or
delivering the same in writing to Trinity River Industrial Development
Authority, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Chairman; and
any notice or other communication to be given to the Underwriter under this Bond
Purchase Agreement may be given by delivering the same in writing to
Prudential-Bache Securities, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Public Finance Department, IDB/Pollution Control Group; and any
notice or other communication to be given to the Company may be given by
delivering the same in writing to Radiation Sterilizers, Incorporated, ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
SECTION 11. APPLICABLE LAW; NONASSIGNABILITY
This Bond Purchase Agreement shall be governed by the laws of the State.
This Bond Purchase Agreement shall not be assigned by the Issuer or the
Underwriter.
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SECTION 12. AMENDMENTS; EXECUTION OF COUNTERPARTS.
This Bond Purchase Agreement may be executed in several counterparts, each
of which shall be regarded as an original and all of which shall constitute one
and same document. This Bond Purchase Agreement may not be amended, except in
writing signed by all parties hereto.
TRINITY RIVER INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ Signature Unreadable
--------------------- ----------------------------------------
(Assistant) Secretary President
PRUDENTIAL-BACHE SECURITIES INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Authorized Officer
RADIATION STERILIZERS
INCORPORATED
By /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
President
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EXHIBIT A
TO
BOND PURCHASE AGREEMENT
I. Pursuant to Section 5(b)(i), the Underwriter shall have received an
opinion of Bond Counsel to the following effect:
(TO BE FURNISHED BY BOND COUNSEL)
II. Pursuant to Section 5(b)(i), the Underwriter and its counsel shall
also have received a supplemental opinion of Bond Counsel to the following
effect:
A. The information contained in the Official Statement under the
captions "The Series 1985-A Bonds," "The Series 1985-B Bonds," "Purchase of the
Series 1985-A Bonds," "Purchase of the Series 1985-B Bonds," "Fixed Interest
Rate," "The Series 1985-A Agreement," "The Series 1985-B Agreement," "The Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇," "The Series 1985-B Indenture,, and "Tax Exemption" are
accurate statements or summaries of the matters therein set forth and fairly
present the information purported to be shown and do not contain any untrue
statements of a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
B. The Bonds are exempted securities within the meaning of Section
3(a)(2) of the Securities Act of 1933, as amended, and it is not necessary in
connection with the offer and sale of the Bonds to the public to register the
Bonds under the Securities Act of 1933, as amended, or to qualify the Bonds, the
Order or any other instrument or document under the Trust Indenture Act of 1939,
as amended.
C. In addition to the foregoing, such opinion shall also state that,
in the performance of their duties as Bond Counsel, without having undertaken to
determine independently the accuracy and completeness of the statements
contained in the Official Statement, nothing has come to the attention of such
counsel which would lead them to believe that the Official Statement (excluding
the financial and statistical data and forecasts included therein, and excluding
therefrom the Appendixes thereto, all as to which no view need to
15
expressed) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Bond Counsel shall provide to the Underwriter a consent to the reference
to such counsel and their opinion in the Official Statement.
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16
EXHIBIT B
TO
BOND PURCHASE AGREEMENT
I. Pursuant to Section 5(b)(l)(ii) of the Bond Purchase Agreement the
Underwriter shall have received an opinion of counsel to the Company to the
following effect:
A. Company is a corporation (i) duly organized, validly existing and
in good standing under the laws of the State of California, and (ii) duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions that require such qualification, except where the failure to so
qualify would not have a material and adverse effect on the Company Company has
all requisite and necessary power and authority to own its properties, to
conduct its present business, to execute, deliver and perform all of its
obligations under the Loan Agreements, this Purchase Agreement, the
Reimbursement Agreements, and the Company Financing Statement (collectively, the
"Company Documents.")
B. Guarantor is a limited partnership (i) duly organized, validly
existing and in good standing under the laws of the State of California, and
(ii) duly qualified to do business as a foreign partnership in good standing in
all other jurisdictions that require such qualification, except where the
failure to so qualify would not have a material and adverse effect on Guarantor.
Guarantor has all requisite and necessary partnership power and authority to own
its properties, to conduct its present business and to execute and perform all
of its obligations under the Guarantees, the Deeds of Trust, the Security
Agreements and the Guaranty Financing Statement (collectively, the "Guaranty
Documents.")
C. The execution, delivery and performance by Company of the Company
Documents has been duly authorized by all necessary corporate action and does
not and will not (i) require any further consent or approval of any person or
entity having any interest in Company; (ii) require any governmental approvals,
exemptions, orders, licenses, filings, registrations or qualifications with any
governmental authority not obtained; (iii) violate any provision of any law,
rule, regulation, writ, judgment, injunction, decree, order, determination or
award presently in effect having any applicability to the Company or any of
Company's property; (iv) violate any provision of, or require any consent under,
the articles or bylaws of Company; or (v) result in the breach of or constitute
a default under, cause or permit the acceleration of any obligation owed under,
or result in or require the creation or imposition of any lien,
17
security interest, claim, charge, right of others or other encumbrance of any
nature upon any property of Company (other than the liens created under the
Company Documents) under, any indenture loan or credit agreement or any other
agreement, lease or instrument to or by which Company or any property of Company
is or may be bound or affected.
D. The execution, delivery and performance by Guarantor under the
Guaranty Documents does Not: and will not: (i) require any further consent or
approval of Guarantor's general or limited partners; (ii) require any
governmental approvals, exemptions, orders, licenses or any filings,
registrations or qualifications with any governmental authority not obtained;
(iii) violate any provisions of any law, rule, regulation, writ, judgment,
injunction, decree, order, determination or award presently in effect having any
applicability to Guarantor or any of Guarantor's property; (iv) violate any
provision of, or require any consent under, Guarantor's partnership agreement or
other similar governing documents; or (v) result in the breach of or constitute
a default under, cause or permit the acceleration of any obligation owed under,
or result in or require the creation or imposition of any lien, security
interest, claim, charge, right of others or other encumbrance of any nature upon
any property of Guarantor under, any indenture, loan or credit agreement or
other agreement, lease or instrument to or by which Guarantor or any property of
Guarantor is or may be bound or affected.
E. The Company Documents have been duly and validly executed and
delivered by Company and constitute legal, valid and binding obligations of
Company, enforceable against Company in accordance with their respective terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally.
F. The Guaranty Documents have been duly and validly executed and
delivered by Guarantor and constitute legal, valid and binding obligations of
Guarantor, enforceable against Guarantor in accordance with their respective
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights generally.
G. There are no actions, suits or proceedings of any kind pending
or, to the best of such counsel's knowledge, threatened against or affecting
Company, Guarantor or any general partner of Guarantor, by or before any court
or governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, except as previously disclosed in writing
to Issuer, Bank and the Underwriter.
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18
II. Pursuant to Section 5(b)(ii), the Underwriter and its counsel shall
have received a supplemental opinion of counsel to the Company to the following
effect:
A. The information contained in the Official Statement under the
captions "The Facilities," "Use of Proceeds," "The Series 1985-A Guaranty," "The
Series 1985-B Guaranty" and "Appendix A" are accurate statements or summaries of
the matters therein set forth and fairly present the information purported to be
shown and do not contain any untrue statements of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
B. In addition to the foregoing, such opinion shall also state that,
in the performance of their duties, without having undertaken to determine
independently the accuracy and completeness of the statements contained in the
Official Statement, nothing has come to the attention of such counsel which
would lead them to believe that the Official Statement contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
-3-
19
EXHIBIT C
TO
BOND PURCHASE AGREEMENT
I. Pursuant to Section 5(b)(1)(iii) of the Bond Purchase Agreement the
Underwriter shall have received an opinion of counsel to the Bank to the
following effect:
A. The Bank is a national banking association, duly organized and
validly existing under the laws of the United States, and has full corporate
right, power and authority to perform all obligations on its part to be
performed, and to take all actions required or permitted on its part to be
taken, under the Letters of Credit.
B. The Letters of Credit have been duly authorized, executed and
delivered by the Bank, and constitute valid, legal and binding obligations of
the Bank, enforceable in accordance with their terms.
C. Payments made under the Letters of Credit to the Trustee, and in
turn to the Bond Holders, in respect of principal and interest owing in
connection with the Bonds, would not constitute a transfer of property by or of
the Company avoidable under Section 547 of the Federal Bankruptcy Code by a
trustee or debtor in possession if a petition under the Federal Bankruptcy Code
was subsequently filed by or against the Company, and would Not constitute a
transfer of property by or of the Issuer avoidable under Section 547 of the
Federal Bankruptcy Code by a trustee or debtor in possession if -a petition
under the Federal Bankruptcy Code was subsequently filed by or against the
Issuer.
II. Pursuant to Section 5(b)(iii), the Underwriter and its counsel shall
also have received a supplemental opinion of counsel to the Bank to the
following effect:
The information contained in the Official Statement under the captions
"The Series 1985-A Letter of Credit," "The Series 1985-B Letter of Credit," and
"Appendix B" are accurate statements or summaries of the matters therein set
forth and fairly present the information purported to be shown and do not
contain any untrue statements of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
20
EXHIBIT D
TO
BOND PURCHASE AGREEMENT
Pursuant to Section 5(b) (1)(iv) of the Bond Purchase Agreement the
Underwriter shall have received an opinion of counsel to the Trustee to the
following effect:
(a) The Trustee is a duly created and lawfully existing banking
association under the laws of the United States of America;
(b) The Trustee has taken all corporate action necessary to assume the
duties and obligations of the Trustee under the Indentures and the Agreements
and has duly authenticated and delivered the Bonds;
(c) The Trustee has duly authorized the execution and delivery of the
Indentures and the Agreements, and the Indentures and the Agreements, when
executed on behalf of the Trustee (assuming the due execution and delivery
thereof by the other parties thereto, respectively), will be the legal, valid,
binding and enforceable obligations of the Trustee in its capacity as Trustee;
(d) The Trustee has all necessary powers required to carry out the trusts
intended under the Indentures;
(e) All approvals, consents and orders of any governmental authority or
agency having jurisdiction in the matter which would constitute a condition
precedent to the performance by the Trustee of its duties and obligations under
the Indenture as Trustee have been obtained and are in full force and effect;
and
(f) No litigation is pending or, to the best of such counsel's knowledge,
threatened in any way contesting or affecting the Trustee's existence or powers
(including trust powers) or the Trustee's ability to fulfill its duties and
obligations under the Indentures.
21
EXHIBIT E
TO
BOND PURCHASE AGREEMENT
Pursuant to Section 5(b)(1)(v) of the Bond Purchase Agreement the
Underwriter shall have received an opinion of counsel to the Issuer to the
following effect:
(1) The Issuer is a public body corporate and politic duly created and
validly existing under the Constitution and laws of the State of Texas with the
corporate power to enter into and perform the Agreements and the Indentures and
issue the Bonds.
(2) The Agreements and the Indentures have been duly authorized, executed
and delivered by the Issuer and are valid and binding obligations of the Issuer
enforceable against the Issuer. The Indentures create a valid lien on the "Trust
Estate" (defined in the Indentures).
(3) The Bonds have been duly authorized, executed and delivered by the
Issuer and are valid and binding limited obligations of the Issuer enforceable
against the Issuer, payable solely from the sources specified in the Indentures.
22
EXHIBIT F
TO
BOND PURCHASE AGREEMENT
Pursuant to Section 5(b)(l)(vi) of the Bond Purchase Contract the
Underwriter shall have received an opinion of counsel to the Underwriter to the
following effect:
1. The Bonds are exempt from registration under the Securities Act of
1933, as amended, and it is not necessary in connection with the offer and sale
of the Bonds to register any other security issued in connection with the
issuance of the Bonds under such act, and no indenture in respect to the Bonds
is required to be qualified pursuant to the Trust Indenture Act of 1939, as
amended;
2. The statements contained in the Offering Statement under the captions
"Introductory Statement," "The Series 1985-A Bonds," "The Series 1985-B Bonds,"
"Purchase of the Series 1985 A Bonds," "Purchase of the Series 1985-B Bonds,"
"Fixed Interest Rate," "The Series 1985-A Agreement," "The Series 1985-B
Agreement," "The Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇," and "The Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇,"
insofar as the statements contained under such captions purport to describe or
summarize certain provisions of the Bonds, the Agreements, and the Indentures,
present a fair description or summary of such provisions;
3. Nothing has come to such counsel's attention which would lead such
counsel to believe that the Offering Statement (excluding the Appendices thereto
and other financial and statistical data therein and in the Offering Statement)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not materially misleading;
In addition, the Underwriter shall have received a reasoned opinion from
counsel to the Underwriter to the effect that:
1. If funds are held in trust for the 123 day period provided in Section
4.01A and 14.02 of the Indentures, and for the 130 day period provided in
Section 8.02 of the Indentures, and payments of principal or interest are made
from those funds to the holders of the Bonds, the payments will not constitute
23
preferences voidable under Section 547 under the Bankruptcy Code in connection
with a bankruptcy court case commenced by or against the Issuer, the User as
long as payment occurs after the expiration of the stated time period;
2. Payments by the Bank to the Trustee or to the holders of the Bonds
under the Letter of Credit will not constitute preferences voidable under
Section 547 of the Bankruptcy Code in connection with a bankruptcy court case
commenced by or against the Issuer, the User or any general partner of the User;
and
3. If the Tender Agent and the Trustee carry out their respective
responsibilities as provided in Article Six of the Indenture and hold the Bonds
and the proceeds of the sale of the Bonds solely for the benefit of the selling
Bondholders and the persons purchasing the same, payment from the Purchase Fund
by the Tender Agent to the Holders of the Bonds other than the Liquidity Bank,
the Issuer, the User or any general partner of the User, will not constitute
preferences voidable under Section 547 of the Bankruptcy Code.
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