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EXHIBIT 10.26
$4,900,000
COUNTY OF DELAWARE, OHIO
Variable Rate Demand
Industrial Development Revenue Bonds
(Radiation Sterilizers, Incorporated Project)
BOND PURCHASE AGREEMENT
December 24, 1984
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 County of
Delaware, Ohio (the "Issuer") up to $4,900,000 aggregate principal amount its
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project) (the "Bonds"), to be issued under and
pursuant to a trust agreement dated as of December 1, 1984 (the "Indenture")
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 a county and a political subdivision in
and of the State of Ohio. By, virtue of the authority of the
Constitution and laws of the State of Ohio (the "State"), and
particularly Article VIII, Section 13 of the Constitution and Chapter
165 of the Ohio Revised Code (the "Act"), the Issuer is authorized to
issue the Bonds to finance the project (the "Project") defined in a
loan agreement dated as of December 1, 1984 (the "Agreement") between
the Issuer and Radiation Sterilizers, Incorporated, a California
corporation (the "Company"), and to pledge the payments to be received
pursuant to the Agreement as security for the payment of the principal
of and premium, if any, and interest on the Bonds.
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(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 Indenture or the Agreement.
(c) The information describing the Issuer in the Official
Statement of even date herewith (the "Official 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 Indenture 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 Agreement
sufficient to pay the principal of and premium, if any, and interest
on the Bonds); (3) appointing the Trustee as Trustee, Paying Agent and
Registrar under the Indenture; (4) the use of the Official Statement
in connection with the offer and sale of the Bonds (provided, however,
that the Issuer neither has nor will assume any responsibility for the
accuracy or completeness of the information contained in the Official
Statement or in the Appendices attached thereto, except such
information as relates to the Issuer under the caption "THE ISSUER");
(5) the financing of the Project; (6) the execution, delivery, receipt
and due performance of this Bond Purchase Agreement, the Bonds, the
Indenture, the Agreement 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 Indenture or the Agreement;
and (7) the carrying out, giving effect to and consummation of the
transactions contemplated hereby or by the Indenture or the Agreement.
(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
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decision, ruling or finding would materially adversely affect the
transactions contemplated hereby or by the Indenture or the Agreement
or the validity of the Bonds, the Indenture, the Agreement, this Bond
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
Indenture or the Agreement.
(f) The Issuer's authorization of the use of the Official
Statement, and the execution and delivery of this Bond Purchase
Agreement, the Bonds, the Indenture, the Agreement and the other
agreements contemplated hereby or by the Indenture or the Agreement
will not contravene any law governing the Issuer and will not conflict
with any provision 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 to be incorporated by
reference or contained in Appendix A to the Official Statement, or
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 the financial
statements therein 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 in the Official Statement.
(b) The descriptions and information to be contained in
the Official Statement at the Closing Date, as defined herein, are
true and do not contain any untrue
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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
Xxxxx Fargo Bank, N.A. (the "Bank")
(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
Agreement and the Indenture, 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 Indenture or the Agreement or would
adversely affect the validity or enforceability of the Bonds, the
Indenture, the Agreement or the Letter of Credit Agreement dated as of
December 1, 1984 (the "Credit Agreement") between the Company and the
Bank pursuant to which an irrevocable letter of credit (the "Letter of
Credit") will be issued by the Bank.
(e) The Agreement, this Bond Purchase Agreement and the
Credit Agreement, 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 Agreement, the
Credit Agreement 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
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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 Agreement and the Credit Agreement)
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
Official Statement or caused by any omission or alleged omission from the
Official 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 Official 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
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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 98.5% of the aggregate principal amount thereof.
The Bonds shall be issued under and secured as provided in the
Indenture. The 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 Agreement
(including moneys paid under the Letter of Credit). The Bonds shall be further
secured by the Letter of Credit. The Bonds shall mature on December 1, 2004,
shall bear interest at a variable interest rate (subject to conversion to a
fixed interest rate), provide a tender option to the owners thereof and be
subject to redemption as set forth in the Indenture.
Payment for the Bonds shall be made in immediately available funds by
federal wire transfer or certified or official bank check or draft payable to
the order of the Trustee for the account of the Issuer, 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 (of $100,000 or any
multiple thereof) 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 a reasonable time prior to the Closing Time.
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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 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 Indenture, the Agreement, the Credit
Agreement and the Letter 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)
Xxxxxxx & Xxxxxx, Bond Counsel, relating to the valid
authorization and issuance of the Bonds, the due
authorization, execution and delivery of the Indenture and the
Agreement, the tax-exempt status of the Bonds and certain
other matters; (ii) Xxxxxx Xxxxxx, Esq., counsel to the
Company, relating to the due organization and existence of the
Company, the due authorization, execution and delivery of the
Agreement, the Credit Agreement and this Bond Purchase
Agreement and certain other matters; (iii) Sheppard, Mullin,
Xxxxxxx & Xxxxxxx as counsel to the Bank, relating to the
valid authorization and issuance of the Letter of Credit and
certain other matters; and (iv) Xxxxx Xxxx & Xxxxxxxx, counsel
to the Underwriter relating to certain matters of federal
bankruptcy law and federal securities law;
(2) A certificate, satisfactory to the
Underwriter, of one of the Issuer's County Commissioners,
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 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
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execution, delivery, receipt and due performance of the Bonds,
the Indenture, the Agreement 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 Commissioner'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 Indenture, the Agreement, 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
Project; and (iv) the execution, delivery, receipt and due
performance of the Bonds, the Indenture, the Agreement and the
other agreements contemplated hereby under the circumstances
contemplated hereby or by the Indenture or the Agreement 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, or such other officers acceptable to
the Underwriter, dated as of the Closing Date, to the effect
that (i) since the date as of which information is given in
Appendix A to the Official 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 adversely affect the transactions contemplated hereby or
by the Indenture or the Agreement or the validity or
enforceability of the Bonds, the Indenture, the Agreement, the
Credit Agreement, the Pledge and Security Agreement or this
Bond Purchase
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Agreement; (iii) the information contained in the Official
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 Agreement, the Credit Agreement and this
Bond Purchase Agreement; and
(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.
(c) The Bank shall have delivered its Letter of Credit to
the Trustee.
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 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 or taxing power. 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
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with the Project, 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 thereof 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 Official Statement or (2) is not reflected in the Official Statement should
be reflected therein or in an attachment thereto in order to make any material
statements or information 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,
the effect of such outbreak, 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
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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, Ohio, 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 of Ohio or a
decision by any court of competent jurisdiction within the State of Ohio 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.
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
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and sale of the Bonds (including, without limitation, the fees and
disbursements of Bond Counsel, Bank counsel, counsel to the Issuer, and the
expenses and costs for the preparation, printing, photocopying, execution and
delivery of the Bonds, the Indenture, the Agreement, the Credit Agreement, 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 Official Statement and Official 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 or delivering the same in
writing to Xxxxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx, Xxxx 00000, Attention: Clerk;
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., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Public Finance Department, IDB/Pollution Control Group.
SECTION 11. APPLICABLE LAW NONASSIGNABILITY.
This Bond Purchase Agreement shall be governed by the laws of the
State of Ohio. 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 the same document. This Bond Purchase Agreement may not be
amended, except in writing signed by all parties hereto.
COUNTY OF DELAWARE, OHIO
By /s/ Signature Unreadable
-------------------------------------
County Commissioner
PRUDENTIAL-BACHE SECURITIES INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Authorized Officer
RADIATION STERILIZERS, INCORPORATED
By /s/ Xxxxxxx X. Xxxx Xx.
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Chairman and Secretary
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