1
EXHIBIT 10.37
PLEDGE AND SECURITY AGREEMENT
by
RADIATION STERILIZES, INCORPORATED
in favor of
▇▇▇▇▇ FARGO BANK, N.A.
Dated as of March 1, 1985
2
TABLE OF CONTENTS
Page
----
Section 1 Defined Terms 1
Section 2 Pledge 2
Section 3 Interest on Bonds 2
Section 4 Collateral 2
Section 5 Release of Drawing Bonds 2
Section 6 Rights of Bank 3
Section 7 Remedies 3
Section 8 Representations, Warranties, and
Covenants of Pledgor 4
Section 9 No Disposition, Etc. 5
Section 10 Sale of Collateral 6
Section 11 Limitation on Disposition 7
Section 12 Further Assurances 7
Section 13 Severability 7
Section 14 No Waiver; Cumulative Remedies 7
Section 15 Waivers; Amendments; Applicable Law 7
3
PLEDGE AND SECURITY AGREEMENT
This Pledge and Security Agreement, dated as of March 1, 1985, is
made by RADIATION STERILIZES, INCORPORATED, a California corporation
("Pledgor"), to ▇▇▇▇▇ FARGO BANK, N.A., a national banking association ("Bank")
pursuant to a Letter of Credit Agreement, dated as of even date herewith,
between Pledgor and Bank (such Letter of Credit Agreement hereafter, as the same
may from time to time be amended or supplemented, called the "Agreement").
WHEREAS, the Development Authority of DeKalb County ("Issuer") has
agreed with Pledgor to issue its Development Authority of DeKalb County Variable
Rate Demand Industrial Development Revenue Bonds (Radiation Sterilizers,
Incorporated Project), Series 1985, (the "Bonds") pursuant to that certain Trust
Indenture, dated as of even date herewith (the "Trust Indenture") between Issuer
and Bank One Trust Company, N.A., a national banking association (the
"Trustee"); and
WHEREAS, the Trust Indenture provides for the purchase of certain
Bonds and for their delivery to Bank, or its nominee, in accordance with
Sections 401(j) and 401(k) of the Trust Indenture (defined in the Agreement, and
herein, as the "Drawing Bonds" and the "Company Bonds"); and
WHEREAS, in connection with the issuance of the Bonds, Pledgor has
agreed to enter into the Agreement in order to cause Bank to issue the Letter of
Credit thereunder which may be used, inter alia, to pay the purchase price of
the Drawing Bonds; and
WHEREAS, it is a condition precedent to the obligations of Bank to
enter into the Agreement that Pledgor shall have executed and delivered this
Pledge and Security Agreement to Bank;
NOW, THEREFORE, in consideration of the promises and in order to
induce Bank to enter into the Agreement and issue the Letter of Credit
thereunder and for other good and valuable consideration, receipt of which is
hereby acknowledged, Pledgor hereby agrees with Bank as follows:
1. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have the same meanings as set forth in the Agreement.
-1-
4
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers
and delivers to Bank all its right, title and interest to the Drawing Bonds and
the Company Bonds (collectively, the "Pledged Bonds") as the same may from time
to time be delivered to the Remarketing Agent or the Paying Agent by the owners
thereof, and hereby grants to Bank a first lien on, and security interest in,
its right, title and interest in and to the Pledged Bonds, including without
limitation all interest thereon and other proceeds thereof, and any related due
bills, as security for the prompt and complete payment and performance by
Pledgor of all obligations and indebtedness to Bank under the Agreement and the
other Loan Documents, whether such obligations and indebtedness (i) are now
existing or owing or are hereafter incurred or (ii) are absolute or contingent
(collectively, the "Obligations").
3. Interest on Bonds. If, while this Pledge and Security Agreement
is in effect, Pledgor shall become entitled to receive or shall receive any
interest payment in respect of the Pledged Bonds, Pledgor agrees to accept the
same as Bank's agent and to hold the same in trust on behalf of Bank and to
deliver the same forthwith to Bank. All interest payments in respect of the
Drawing Bonds which are received by Bank shall be credited against the
obligation of Pledgor to pay interest to Bank set forth in Article 13 of the
Agreement.
4. Collateral. All property at any time pledged with Bank hereunder
(whether described herein or not) and all income therefrom and proceeds thereof,
are herein collectively sometimes called the "Collateral." Bank shall not
acquire a security interest hereunder in any property other than the Drawing
Bonds and the Company Bonds 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. Release of Drawing Bonds. If Pledgor fulfills its reimbursement
obligation with respect to the principal and interest paid by Bank under the
Letter of Credit (and interest thereon under the Agreement) in connection with
the repurchase of any Bond pursuant to Section 401(g) or 401(h) of the Trust
Indenture, or if Bank transfers any Drawing Bond held by Bank to any Person
other than Pledgor in consideration for payment of the principal
-2-
5
amount of the Drawing Bond so purchased, then in either case Bank agrees to
release any such Drawing Bond from the lien of this Pledge and Security
Agreement. All Bonds so released shall be delivered, without recourse,
representation or warranty, express or implied, to Pledgor or the purchaser, as
applicable.
6. Rights of Bank. Bank shall not be liable for failure to collect
or realize upon the Obligations or any collateral security (including, but not
limited to the Pledged Bonds) or guaranty therefor, or any part thereof, or for
any delay in so doing, nor shall Bank be under any obligation to take any action
whatsoever with regard thereto. If an Event of Default has occurred and is
continuing, Bank may thereafter, without notice (except the notice specified in
Section 7 below of time and place of public or private sale), exercise all
rights, privileges or options pertaining to any Pledged Bonds as if it were the
absolute owner thereof, upon such terms and conditions as it may determine, all
without liability except to account for property actually received by it, but
Bank shall have no duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or delay in so
doing.
7. Remedies. In the event that any portion of the Obligations has
been declared due and payable, Bank, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon Pledgor or any other
person (all and each of which demands, advertisements and/or notices are hereby
expressly waived), may forthwith collect, receive, appropriate and realize upon
the Collateral, or any part thereof, and/or may forthwith sell, assign, give
option or options to purchase, contract to sell or otherwise dispose of and
deliver said Collateral, or any part thereof, in one or more parcels at public
or private sale or sales, at any exchange, broker's board or at any of Bank's
offices or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption or any credit risk, with the right to Bank upon any such sale
or sales, public or private, to purchase the whole or any part of said
Collateral so sold, free of any right or equity of redemption in Pledgor, which
right or equity is hereby expressly waived or released. Bank shall pay over the
net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred
-3-
6
therein or incidental to the care, safekeeping or otherwise of any and all of
the Collateral or in any way relating to the rights of Bank hereunder, including
reasonable attorney's fees and legal expenses, and the payment in whole or in
part of the Obligations in such order as Bank may elect, Pledgor remaining
liable for any deficiency remaining unpaid after such application, and only
after so paying over such net proceeds and after the payment by Bank of any
other amount required by any provision of the law, including, without
limitation, Section 9-504(l)(c) of the Uniform Commercial Code, need Bank
account for the surplus, if any, to Pledgor. Pledgor agrees that Bank need not
give more than 10 days' notice of the time and place of any public sale or of
the time after which a private sale or other intended disposition is to take
place and that such notice is reasonable notification of such matters. No
notification need be given to Pledgor if it has signed after default a statement
renouncing or modifying any right to notification of sale or other intended
disposition. In addition to the rights and remedies granted to it in this Pledge
and Security Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the Obligations, Bank shall have all the rights
and remedies of a secured party under the Uniform Commercial Code of the State
of California. Pledgor further agrees to waive and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the Uniform
Commercial Code and Pledgor shall be liable for the deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay all
amounts to which Bank is entitled, and the fees of any attorneys employed by
Bank to collect such deficiency.
8. Representations, Warranties and Covenants of Pledgor. Pledgor
represents and warrants that: (a) on the date of delivery to Bank (or the
Trustee on Bank's behalf) of any Pledged Bonds described herein, neither Issuer,
the Remarketing Agent nor the Paying Agent will have any right, title or
interest in or to the Pledged Bonds; (b) it has, and on the date of delivery to
Bank (or the Trustee on Bank's behalf) of any Pledged Bonds will have, full
power, authority and legal right to pledge all of its right, title and interest
in and to the Pledged Bonds pursuant to this Pledge and Security Agreement; (c)
this Pledge and Security Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor enforceable in accordance with its terms; (d) no consent of any other
party (including, without limitation, stockholders or creditors of Pledgor) and
no consent, license, permit, approval or authorization of,
-4-
7
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority, domestic or foreign, is required to be obtained by
Pledgor in connection with the execution, delivery and performance of this
Pledge and Security Agreement; (e) the execution, delivery and performance of
this Pledge and Security Agreement will not violate any provision of any
applicable law or regulation or of any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority, domestic or foreign, or of the
certificate of incorporation or bylaws of Pledgor or of any securities issued by
Pledgor or any company under common ownership with Pledgor, or of any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which Pledgor or any company under common ownership with Pledgor is a party or
which purports to be binding upon Pledgor or any company under common ownership
with Pledgor or upon any of their respective assets and will not result in the
creation or imposition of any lien, charge or encumbrance on or security
interest in any of the assets of Pledgor or any company under common ownership
with Pledgor except as contemplated by this Pledge and Security Agreement; and
(f) the pledge, assignment and delivery of such Pledged Bonds pursuant to this
Pledge and Security Agreement will create a valid first lien on and a first
perfected security interest in, all right, title or interest of Pledgor in or to
such Pledged Bonds, and the proceeds thereof, subject to no prior pledge, lien,
mortgage, hypothecation, security interest, charge, option or encumbrance or to
any agreement purporting to grant to any third party a security interest in the
property or assets of Pledgor which would include the Pledged Bonds. Pledgor
covenants and agrees that it will defend Bank's right, title and security
interest in and to the Pledged Bonds and the proceeds thereof against the claims
and demands of all persons whomsoever; and covenants and agrees that it will
have like title to and right to pledge any other property at any time hereafter
pledged to Bank as Collateral hereunder and will likewise defend Bank's right
thereto and security interest therein.
9. No Dispositions, Etc. Without the prior written consent of Bank,
Pledgor agrees that it will not sell, assign, transfer, exchange or otherwise
dispose of, or grant any option with respect to, the Collateral, nor will it
create, incur or permit to exist any pledge, lien, mortgage, hypothecation,
security interest, charge, option or any other encumbrance with respect to any
of the Collateral, or any interest therein, or any proceeds thereof, except for
the lien and security interest provided for by this Pledge and Security
Agreement.
-5-
8
10. Sale of Collateral. (a) Pledgor recognizes that Bank may be
unable to effect a public sale of any or all of the Pledged Bonds by reason of
certain prohibitions contained in the Securities Act of 1933, as amended, and
applicable state securities laws, but may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers who may be obliged to
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Pledgor
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable to the seller than if such sale were a public sale
and, notwithstanding such circumstances, agrees that such private sale shall be
deemed to have been made in a commercially reasonable manner. Bank shall be
under no obligation to delay a sale of any of the Pledged Bonds for the period
of time necessary to permit the issuer of such securities to register such
securities for public sale under applicable Federal securities laws, or under
applicable state securities laws, even if the issuer would agree to do so.
(b) Pledgor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales of any portion or
all of the Pledged Bonds valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at Pledgor's
expense. Pledgor further agrees that a breach of any of the covenants contained
in this Section 10 will cause irreparable injury to Bank, that -- Bank has no
adequate remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this Section shall be specifically
enforceable against Pledgor and Pledgor hereby waives and agrees not to assert
any defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Agreement. Pledgor
further acknowledges the impossibility of ascertaining the amount of damages
which would be suffered by Bank by reason of a breach of any of such covenants
and, consequently, agrees that, if Bank shall ▇▇▇ for damages for breach, it
shall pay, as liquidated damages and not as a penalty, an amount equal to the
par value plus accrued interest on the Pledged Bonds on the date Bank shall
demand compliance with this Section. Upon such payment, Bank will release its
interest in such Pledged Bonds.
-6-
9
11. Limitation on Disposition. Notwithstanding the rights and
remedies given to Bank in Section 7 and otherwise herein to dispose of Pledged
Bonds, Pledgor consents that upon an Event of Default under the Agreement, Bank
may tender any Pledged Bonds to the Trustee for cancellation, and Pledgor agrees
that such tender shall not constitute a disposition of collateral for purposes
of UCC Section 9-504, but shall constitute a simple reduction in the contingent
obligations of Pledgor to Bank.
12. Further Assurances. Pledgor agrees that at any time and from
time to time upon the written request of Bank, Pledgor will execute and deliver
such further documents and do such further acts and things as Bank may
reasonably request in order to effect the purposes of this Pledge and Security
Agreement.
13. Severability. Any provision of this Pledge and Security
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14. No Waiver; Cumulative Remedies. Bank shall not, by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by
Bank, and then only to the extent therein set forth. A waiver by Bank of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Bank would otherwise have on any future occasion. No
failure to exercise nor any delay in exercising on the part of Bank, any right,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
15. Waivers; Amendments; Applicable Law. None of the terms or
provisions of this Pledge and Security Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by Bank.
This Pledge and Security Agreement and all obligations of Pledgor
-7-
10
hereunder shall be binding upon the successors and assigns of Pledgor, and
shall, together with the rights and remedies of Bank hereunder, inure to the
benefit of Bank and its respective successors and assigns. This Pledge and
Security Agreement shall be governed by, and be construed and interpreted in
accordance with, the laws of the State of California.
IN WITNESS WHEREOF, Pledgor has caused this Pledge and Security
Agreement to be duly executed as of the date first written above.
RADIATION STERILIZERS, INCORPORATED
a California corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Its PRESIDENT
-----------------------------
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
---------------------------------
Its SECRETARY
-----------------------------
-8-
