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EXHIBIT 10.36
LETTER OF CREDIT
----------------
AGREEMENT
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Between
RADIATION STERILIZERS, INCORPORATED
and
XXXXX FARGO BANK, N.A.
Dated as of March 1, 1985
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TABLE OF CONTENTS
Page
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1. Definitions and Accounting Terms 1
1.1 Defined Terms 1
1.2 Use of Defined Terms 5
1.3 Accounting Terms 5
1.4 Exhibits 5
2. Bonds 5
3. Letter of Credit 5
4. Loan Documents 6
4.1 Guaranty 6
4.2 Security Documents 6
4.3 Pledge Agreement 6
4.4 Other Documents and Actions 7
4.5 Additional Security 7
5. Conditions to Issuance and Disbursements 7
5.1 Conditions to Issuance 7
5.2 Conditions to Disbursements 9
6. Reimbursement and Other Payments; Extension 10
6.1 Reimbursement 10
6.2 Fees 11
6.3 Increased Costs Due to Change in Law 11
6.4 Obligations Absolute 12
6.5 Extension of Letter of Credit 13
7. Representations and Warranties by Company 13
7.1 Formation of Company 13
7.2 Execution, Delivery and Performance of
Loan Documents and Bond Documents 13
7.3 Financial Statements 15
7.4 No Material Adverse Change 15
7.5 Tax Liability 15
7.6 Compliance with Laws 15
7.7 Litigation 16
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7.8 Official Statement 16
7.9 Conditions to Disbursement 16
8. Representations and Warranties by Bank 16
8.1 Formation of Bank 16
8.2 Authorization 16
8.3 No Conflict 17
8.4 Actions and Proceedings 17
9. Affirmative Covenants 17
9.1 Governmental Approvals 17
9.2 Continued Existence 17
9.3 Books and Records 17
9.4 Annual Operating Statements 18
9.5 Notice of Certain Events 18
9.6 Opinions 19
9.7 Defaults of Others 19
9.8 Tax Appeals 19
9.9 Surplus Construction Funds, 19
9.10 Notice Re Disbursement Conditions 19
10. Negative Covenants 19
10.1 Transfers of Project or Obligations 19
10.2 Liens on Project 20
10.3 Liens on Personal Property 20
11. Events of Default and Remedies Upon Default 20
11.1 Events of Default 20
11.2 Remedies Upon Default 22
11.3 Cumulative Remedies; No Waiver 23
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Page
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12. Miscellaneous 24
12.1 Actions 24
12.2 Nonliability of Bank 24
12.3 No Representations by Bank 25
12.4 No Third Parties Benefited 26
12.5 Indemnity by Company 26
12.6 Commissions 27
12.7 Binding Effect 27
12.8 Execution in Counterparts 27
12.9 Prior Agreements; Amendments; Consents 27
12.10 Survival of Representations and
Warranties 28
12.11 Notices 28
12.12 Further Assurances 29
12.13 Governing Law 29
12.14 Severability of Provisions 29
12.15 Inconsistency With Security Documents 29
12.16 Headings 30
12.17 Time of the Essence 30
12.18 No FDIC Insurance 30
13. Interest and Payment Terms 30
13.1 Manner of Payment 30
13.2 Interest 30
13.3 Waivers 31
EXHIBITS
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"A" Letter of Credit 33
"B" Conditions to Disbursement,, 34
"C" Legal Descriptions of the Properties 35
"D" Permitted Title Exceptions 36
"E" Project Description 37
"F" Permitted Project Liens 38
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LETTER OF CREDIT AGREEMENT
This Letter of Credit Agreement is entered into as of March 1, 1985,
by and between RADIATION STERILIZERS, INCORPORATED, a California corporation
("Company"), and XXXXX FARGO BANK, N.A., a national banking association
("Bank").
1. Definitions And Accounting Terms.
1.1 Defined Terms. As used in this Letter of Credit Agreement, the
following terms shall have the meanings set forth respectively after each:
(a) "Agreement" means this Letter of Credit Agreement, either
as originally executed or as it may from time to time be supplemented,
modified or amended.
(b) "ALTA Policies" means the policies of title insurance
covering the Properties required pursuant to Section 5.1.3 of this
Agreement.
(c) "Bond Documents" means all of the instruments, documents
and agreements which may be executed from time to time by Issuer, Trustee,
the Original Purchaser and/or Company in connection with the Bonds,
including without limitation the following, each of which were executed as
of even date herewith unless otherwise indicated and in each case either
as originally executed or as the same may from time to time be
supplemented, modified or amended:
(1) Loan Agreement between Issuer and Company (the "Loan
Agreement");
(2) Trust Indenture between Issuer and Trustee (the
"Trust Indenture");
(3) Bond Purchase Agreement between Company, Issuer and
the Original Purchaser (the "Bond Purchase Agreement").
(d) "Bond Proceeds" means the proceeds of the Bonds, including
without limitation any insurance or condemnation proceeds or other assets
held by the Trustee in special funds established pursuant to the Bond
Documents or otherwise.
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(e) "Bond Resolution" means the resolution adopted by the
Issuer authorizing the issuance of the Bonds.
(f) "Bonds" means the Development Authority of DeKalb County
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project), Series 1985, to be issued pursuant to
the Trust Indenture.
(g) "Business Day" means any day of the year, other than a
Saturday or a Sunday, (a) on which banks located (i) in the cities in
which the principal corporate trust office of the Trustee and the
principal office of the Bank are located, and (ii) in New York, New York,
are not required or authorized by law to remain closed, and (b) on which
the New York Stock Exchange, Inc. is not closed.
(h) "Code" means the Internal Revenue Code of 1954, as
amended, and references to the Code and Sections of the Code shall include
relevant regulations and proposed regulations thereunder and any successor
provisions to such Sections, regulations or proposed regulations.
(i) "Company Bonds" means Bonds (a) purchased by Trustee or
the Remarketing Agent (as defined in the Trust Indenture) with moneys
furnished by Company pursuant to Section 4.11 of the Loan Agreement and
(b) delivered to Bank or its nominee pursuant to Section 401(j) or 401(k)
of the Trust Indenture as a result of the occurrence of an Event of
Default.
(j) "Conditions to Disbursement" means the conditions set
forth in Exhibit "B" hereto, either as now existing or as it may from time
to time be supplemented, modified or amended.
(k) "Deeds of Trust" means the deeds of trust covering the
Properties required pursuant to Section 4.2(a) of this Agreement, either
as originally executed or as any of them may from time to time be
supplemented, modified or amended.
(l) "Designated Representative" means either the "Authorized
Company Representative" under the Loan Agreement or, if Bank so requests,
a different Person, authorized by Company, with the approval of Bank, to
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deliver certificates, requests for disbursements and other documents and
material to Bank pursuant to this Agreement.
(m) "Disbursement" means each of the disbursements by Trustee
of Bond Proceeds pursuant to this Agreement and the Bond Documents.
(n) "Documents" means, collectively, the Bond Documents and
the Loan Documents.
(o) "Drawing Bonds" means Bonds delivered or deemed delivered
to Bank or its nominee pursuant to the Trust Indenture as the result of a
"C Drawing," or a "C Drawing" and a "D Drawing," under the Letter of
Credit.
(p) "Event of Default" means each of those events so
designated in Article 11 of this Agreement.
(q) "Financing Statements" means the UCC-1 financing
statements required pursuant to Section 4.2(c) of this Agreement, either
as originally executed or as they may from time to time be supplemented,
modified or amended.
(r) "Fiscal Year" means Company's fiscal year, ending on March
31 of each calendar year.
(s) "Guarantor" means Xxxxxxx Xxxx & Associates, a California
limited partnership.
(t) "Guaranty" means the guaranty required pursuant to Section
4.1 of this Agreement, either as originally executed or as it may from
time to time be supplemented, modified or amended.
(u) "Issuer" means the Development Authority of DeKalb County.
(v) "Letter of Credit" means the letter of credit to be issued
by Bank pursuant to this Agreement, either as originally executed or as it
may from time to time be supplemented, modified or amended.
(w) "Loan Documents" means, collectively, this Agreement and
the Security Documents, in each case either as originally executed or as
the same may from time to time be supplemented, modified or amended.
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(x) "Original Purchaser" means Prudential-Bache Securities
Inc., a Delaware corporation.
(y) "Person" means any person or entity, whether an
individual, trustee, corporation, partnership, trust, unincorporated
organization or otherwise.
(z) "Personal Property" means all of Guarantor's right, title,
interest in and to all furniture, furnishings, fixtures, machinery,
equipment, inventory and personal property of every kind and nature,
whether tangible or intangible, now or hereafter located at, upon or about
any of the Properties, or used or to be used in connection with or
relating to or arising with respect to any Property.
(aa) "Pledge Agreement" means the pledge and security
agreement required pursuant to Section 4.3 of this Agreement, either as
originally executed or as it may from time to time be supplemented,
modified or amended.
(bb) "Project" means the construction and operation of the
industrial facility described in Exhibit "E" hereto for the sterilization
of packaged products using ionizing radiation, as provided in the Loan
Agreement.
(cc) "Project Costs" means all costs of any nature whatsoever
incurred by or on behalf of Company in connection with the Project.
(dd) "Properties" means, collectively, the parcels of real
property described in Exhibit "C" attached hereto.
(ee) "Remarketing Agent" means the Remarketing Agent appointed
in accordance with Section 403 of the Trust Indenture.
(ff) "Security Agreement" means the security agreement
covering the Personal Property required pursuant to Section 4.2(b) of this
Agreement, either as originally executed or as it may from time to time be
supplemented, modified or amended.
(gg) "Security Documents" means, collectively, the Deeds of
Trust, the Security Agreement, the Financing Statements, the Guaranty, the
Pledge Agreement, and any
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other mortgage, deed of trust, security agreement, financing statement,
assignment or guaranty now, heretofore or hereafter executed to secure the
obligations of Company to Bank under this Agreement, the obligations of
Guarantor to Bank under the Guaranty or the obligations of Company to
Trustee under the Loan Agreement and other Documents, in each case either
as originally executed or as the same may from time to time be
supplemented, modified or amended.
(hh) "Trustee" means Bank One Trust Company, N.A., a national
banking association, or its successors as trustee under the Trust
Indenture.
1.2 Use of Defined Terms. Any defined term used in the plural shall
refer to all members of the relevant class, and any defined term used in the
singular shall refer to any number of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined
in this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
generally accepted accounting principles applied on a consistent basis.
1.4 Exhibits. All Exhibits to this Agreement, either as now existing
or as the same may from time to time be supplemented, modified or amended, are
incorporated herein by this reference.
2. Bonds. Company contemplates entry into the Bond Documents in order to
cause the issuance of the Bonds, so that the Bond Proceeds may be used to
finance the Project.
3. Letter of Credit. In order to enhance the marketability of the Bonds,
Company has requested Bank to issue an irrevocable letter of credit in the form
attached hereto as Exhibit "A" (such letter of credit and any successor or
substitute letter of credit issued pursuant to this Agreement being herein
individually and collectively referred to as the "Letter of Credit") in an
aggregate amount not exceeding $5,408,220.00, of which an amount not exceeding
$5,250,000.00 shall be available to pay the principal amount or purchase price
of the Bonds, and an amount not exceeding $158,220.00 shall be available to pay
for interest accrued on the Bonds, all as more particularly provided in the
Letter of Credit. Bank is willing to issue the Letter of Credit on the terms
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and conditions contained in this Agreement and the other Loan Documents.
4. Loan Documents.
4.1 Guaranty. In consideration of Bank's entry into this Agreement
and the other Loan Documents, and in order to guarantee the prompt payment when
due of all sums of principal and interest advanced by Bank pursuant to the
Letter of Credit as well as the prompt payment when due of any other sums owing
pursuant to this Agreement or any of the other Loan Documents, Company shall, at
its sole expense, deliver or cause to be delivered to Bank a guaranty (the
"Guaranty") executed by Guarantor, in such form and content as Bank shall in its
sole discretion require.
4.2 Security Documents. In consideration of Bank's entry into this
Agreement and the other Loan Documents, and as security for (1) each and every
obligation of Guarantor under the Guaranty, and (2) each and every obligation of
Company to Trustee under the Loan Agreement and the other Documents, Company
shall, at its sole expense, deliver or cause to be delivered by Guarantor to
Bank, and record or cause to be recorded, if appropriate, the following
documents, each of which shall be in such form and content, and executed by such
persons and/or entities, as Bank shall in its sole discretion require, and all
of which, along with the Guaranty and the Pledge Agreement, are collectively
referred to in this Agreement as the "Security Documents":
(a) A deed of trust covering each of the Properties
(collectively, the "Deeds of Trust").
(b) A security agreement granting to Bank and Trustee a
security interest in the Personal Property (the "Security Agreement").
(c) Two financing statements covering the Personal Property,
the Drawing Bonds and the Company Bonds (the "Financing Statements").
4.3 Pledge Agreement. In consideration of Bank's entry into this
Agreement and the other Loan Documents, and as security for the prompt payment
when due of all sums of principal and interest advanced by Bank pursuant to the
Letter of Credit as well as for payment of any other sums owing pursuant to this
Agreement or any of the other Loan Documents, Company shall, at its sole
expense, deliver or cause to be delivered to Bank a pledge and security agree-
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ment (the "Pledge Agreement") executed by Company, in such form and content as
Bank shall in its sole discretion require, assigning to Bank Company's right,
title and interest to the Drawing Bonds and the Company Bonds.
4.4 Other Documents and Actions. Company agrees to execute,
acknowledge and/or deliver or cause to be executed, acknowledged and/or
delivered to Bank such other instruments, agreements and other documents
(including without limitation such amendments to the Security Documents as may
be required by Bank in order to reflect amendments or supplements to this
Agreement), and to take such actions, upon request by Bank, as Bank may
reasonably request in order to carry out the purposes of this Agreement and the
other Loan Documents and the transactions contemplated thereby and to protect
and/or further the validity, priority and/or enforceability of the Security
Documents or subject to the Security Documents any property, together with any
renewals, additions, substitutions, replacements or betterments thereto,
intended by the terms of this Agreement or the other Loan Documents to be
covered by the Security Documents.
4.5 Additional Security. Bank shall not acquire any security for the
obligations of Company, Guarantor or Xxxxxxx X. Xxxx, Xx. under this Agreement
or the other Loan Documents, other than the Pledge Agreement and the Guaranty,
unless Company shall have afforded to Trustee, for the benefit of the holders of
the Bonds, prior to or simultaneously with the taking by Bank of such security,
rights which shall, at the option of Bank, be either senior to the rights of
Bank or of equal priority with the rights of Bank in connection with such
security.
5. Conditions to Issuance and Disbursements.
5.1 Conditions to Issuance. The obligation of Bank to issue the
Letter of Credit is subject to the following conditions precedent:
5.1.1 Bank shall have received all of the following, each of
which shall be in form and substance satisfactory to Bank:
(a) the original Guaranty;
(b) the original Deeds of Trust;
(c) the original Security Agreement;
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(d) the original Financing Statements;
(e) the original Pledge Agreement;
(f) copies of the articles and by-laws of Company and any and
all supplements and amendments thereto, all certified to be true and
correct by the Secretary of Company;
(g) an original of each of the opinions, certificates, letters
and other documents specified in, Section 5(b) of the Bond Purchase
Agreement, in each case addressed to Bank;
(h) a written opinion of Company's counsel, in form and
substance satisfactory to Bank, covering such matters relating to Company
and the Loan Documents as may be required by Bank;
(i) a copy of the partnership agreement of Guarantor, a copy
of the certificate of limited partnership of Guarantor as recorded in San
Mateo County, California, a copy of the Form LP-1 filed for Borrower with
the California Secretary of State, and copies of any and all amendments to
such documents, all certified as true, complete and correct by Xxxxxxx X.
Xxxx, Xx.;
(j) a written opinion of Guarantor's counsel, in form and
substance satisfactory to Bank, covering such matters relating to
Guarantor and the Loan Documents as may be required by Bank;
(k) the certificate required pursuant to Section 7.2.1, below;
(l) a copy of the Bond Resolution, certified by the Secretary
or an Assistant Secretary of Issuer (which certificate shall state that
the Bond Resolution is in full force and effect on the date of initial
authentication and delivery of the Bonds to the Original Purchaser);
(m) an executed copy (or a duplicate thereof) of the Trust
Indenture and the Loan Agreement;
(n) the financial statements of Company and Guarantor required
to be furnished hereunder and under
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the Guaranty, and the insurance policies required to be furnished by the
Guarantor under the Guaranty; and
(o) such other instruments, certificates, opinions, consents
and other documents as Bank may reasonably require.
5.1.2 The Deeds of Trust shall have been duly recorded.
5.1.3 Company shall, at its sole expense, have delivered or
caused to be delivered to Bank original ALTA form extended coverage lender's
policies of title insurance, or evidence of commitments therefor satisfactory to
Bank, in form and substance and issued by an insurer or insurers satisfactory to
Bank, together with such indorsements (including without limitation CLTA Form
100 and 116 endorsements) and binders thereto as may from time to time be
required by Bank, naming Bank and Trustee, as their interests appear, as
insured, in an aggregate policy amount of not less than $5,410,000.00, insuring
the Deeds of Trust to be valid liens upon the Properties, subordinate to no
prior mortgages, deeds of trust or like encumbrances other than the matters
listed in Exhibit "D" attached hereto (the "Permitted Encumbrances"), and
showing the Properties to be owned by Guarantor in fee simple.
5.1.4 The Financing Statements shall have been filed with the
California Secretary of State, and Bank shall have received a certificate of the
California Secretary of State, in form and substance satisfactory to Bank,
showing the Financing Statements to be subject to no prior filings other than
filings perfecting rights of other lenders with respect to security interests
("Permitted Liens") granted by Company in conjunction with any Permitted
Encumbrance.
5.1.5 The Bonds shall have been simultaneously duly executed
and delivered, all of the Bonds shall have been sold, and the full authorized
face amount of the Bonds (less such fees to the Original Purchaser as are paid
therefrom at the time of sale, as provided in the Bond Documents) shall have
been received by Trustee, as required pursuant to the Bond Documents.
5.2 Conditions to Disbursements. The conditions described in
"Exhibit B" attached hereto shall be conditions precedent to each Disbursement.
Following the initial purchase of the Bonds by the Original Purchaser, Bank
shall provide Trustee with a standing written approval of all Disbursements
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thereafter requested by the Authorized Company Representative (as defined in the
Loan Agreement); provided, however, that such standing approval shall
automatically be revoked as of the date on which any Event of Default (or event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default) occurs or on which any Condition to Disbursement
fails to be fulfilled. Following any such revocation, Bank's approval shall be
required at the time of each Disbursement unless and until Bank, in its sole
discretion, chooses to provide Trustee with another revocable standing approval.
6. Reimbursement and Other Payments; Extension.
6.1 Reimbursement. Company hereby agrees to pay to Bank at the times
indicated, in cash or by such other means as may be satisfactory to Bank in its
sole discretion, the following:
(a) on the date of any disbursement of funds by Bank under the
Letter of Credit, the entire amount of any and all funds disbursed by Bank
under the Letter of Credit;
(b) upon demand, all reasonable amounts expended, advanced or
incurred by Bank (i) in connection with the negotiation, preparation,
execution, delivery, issuance, administration and performance of the
Letter of Credit, this Agreement or any other Loan Document, or any matter
related thereto; (ii) to satisfy any obligation of Company or Guarantor
under this Agreement or any of the Loan Documents; and (iii) to collect
the Notes and to enforce the rights of the Bank under this Agreement or
any other Loan Document (including without limitation any costs incurred
by Bank in connection with any insolvency or bankruptcy proceeding
affecting Company or Guarantor or any other Person involved in the
Project), which amounts will include all court costs, appraisal fees,
reasonable attorneys' fees, fees of auditors and accountants and
investigation expenses reasonably incurred by Bank in connection with any
such matters;
(c) upon demand, all other amounts owing to Bank by Company
under this Agreement or any of the other Loan Documents.
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All sums owing pursuant to this Agreement and the other Loan Documents shall be
payable with interest as provided in Article 13.
6.2 Fees. Company hereby agrees to pay to Bank, in cash or by such
other means as may be satisfactory to Bank in its sole discretion (i) on or
before the date on which the Bonds are sold to the Original Purchaser pursuant
to the Bond Purchase Agreement, as a loan administration fee for the first year
of the term of the Letter of Credit, in advance, an amount equal to one percent
(1%) of the undrawn amount initially available to be drawn under the Letter of
Credit; and (ii) for each subsequent year that the Letter of Credit remains in
effect until the expiration of its three (3) year term, Company will pay to
Bank, in advance, on or before the anniversary of issuance of the Letter of
Credit, a loan administration fee in an amount equal to one percent (1%) of the
undrawn amount available to be drawn under the Letter of Credit as of the last
day of the preceding year of the term of the Letter of Credit (which amount will
take into account principal reductions of the Bonds). In no event shall Bank
have any obligation to make reimbursement or to otherwise account to Company in
respect of fees paid by Company as a result of any reduction in the undrawn
amount under the Letter of Credit.
6.3 Increased Costs Due to Change in Law. If any change in any law
or regulation or in the interpretation thereof by any court or administrative
agency shall either (i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against letters of credit issued by Bank, or (ii)
impose on Bank any other condition regarding this Agreement or the Letter of
Credit (other than changes in the rates of income taxation generally applicable
to Bank), and the result of any such event shall be to increase the cost to Bank
of issuing or maintaining the Letter of Credit (which increase in cost shall be
determined by Bank's reasonable allocation of the aggregate of such cost
increases resulting from such events), and such requirement or cost shall remain
in effect for more than one hundred eighty (180) days after notice thereof from
Bank to Company, then (a) Bank shall so notify Company, and (b) upon receipt of
such notice from Bank, Company shall promptly pay to Bank, from time to time as
specified by Bank, additional amounts which shall be sufficient to compensate
Bank for such increased costs as accrue after the expiration of such one hundred
eighty (180) day period, together with interest on each such amount from the
date of such notice until payment in full thereof at the rate set forth in
Article 13. A certificate
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as to such increased cost incurred by Bank as a result of any such event,
submitted by Bank to Company, shall be conclusive as to the amount thereof.
6.4 Obligations Absolute. The obligations of Company under the Loan
Documents shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, under all circumstances
whatsoever, including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of the Letter of
Credit, or any of the Loan Documents or the Bond Documents or any other
agreement or instrument related thereto;
(b) any amendment or waiver of or any consent to departure
from the terms of the Letter of Credit or any of the Loan Documents or the
Bond Documents or any other agreement or instrument related thereto;
(c) the existence of any claim, set-off, defense or other
right which the Company, Guarantor or Issuer may have at any time against
Trustee, any beneficiary or any transferee of the Letter of Credit (or any
Person for whom Trustee, any such beneficiary or any such transferee may
be acting), Bank or any other Person, whether in connection with this
Agreement, the Letter of Credit, any of the other Loan Documents, the
Bonds or any other agreement or instrument related thereto, or in
connection with the Project or any unrelated transaction;
(d) any statement, draft or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect, or any statement therein being untrue or
inaccurate in any respect whatsoever;
(e) the surrender or impairment of any security for the
performance or observance of the terms of this Agreement, any of the other
Loan Documents or any other agreement related thereto; or
(f) any-other circumstance, happening or omission whatsoever,
whether or not similar to any of the foregoing.
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6.5 Extension of Letter of Credit. The term of the Letter of Credit
may be extended if, following Company's request, Bank and Company reach
agreement on the terms of such extension. Bank shall not be obligated to enter
into any such extension or to otherwise extend, modify or supplement the Letter
of Credit or any of the other Loan Documents.
7. Representations and Warranties by Company. As a material inducement to
Bank's entry into this Agreement and the transactions contemplated hereby,
Company represents and warrants to Bank that:
7.1 Formation of Company. Company (a) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, (b) has all requisite power and authority to conduct its business
and to own and lease its properties, and (c) is duly qualified to do business
in, and is in good standing in, every jurisdiction in which the nature of
business conducted by it makes such qualification necessary or where failure to
so qualify would have a material adverse effect on its business or financial
condition or its performance of its obligations under the Loan Documents or the
Bond Documents.
7.2 Execution, Delivery and Performance of Loan Documents and Bond
Documents.
7.2.1 Company and Guarantor have all requisite power and
authority to execute and deliver, and to perform all of their obligations under,
the Loan Documents and the Bond Documents, and shall execute and deliver to
Bank, prior to the issuance of the Letter of Credit and as a condition thereto,
a certificate evidencing the due authorization and consent of the board of
directors of Company and the partners in Guarantor to the execution of the Loan
Documents and Bond Documents and the entry by Company and Guarantor into the
transaction contemplated thereby.
7.2.2 The execution and delivery by Company and Guarantor of,
and the performance by Company and Guarantor of all of their obligations under,
each Loan Document and Bond Document have been duly authorized by all necessary
action and do not and will not:
(a) require any consent or approval not heretofore obtained of
any Person having any interest in Company or Guarantor;
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(b) violate any provision of, or require any consent under the
articles or by-laws of Company or the partnership agreement or certificate
of partnership of Guarantor;
(c) result in or require the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest, claim, charge,
right of others, or other encumbrance of any nature (other than as
contemplated under the Loan Documents and the Bond Documents) upon or with
respect to any property now owned or leased or hereafter acquired by
Company or Guarantor;
(d) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in
effect having applicability to Company or Guarantor; or
(e) result in a breach of or constitute a default under, or
cause or permit the acceleration of any material obligation owed under,
any indenture or loan or credit agreement or any other agreement, lease,
or instrument to which Company or Guarantor is a party or by which Company
or Guarantor or any of their property is bound or affected.
7.2.3 At the time of execution of this Agreement, neither
Company nor Guarantor is in default in any respect that is materially adverse to
the interests of the holders of the Loan Documents or the Bond Documents or that
would have any material adverse effect on the financial condition of Company or
Guarantor or the conduct of their business under any law, rule, regulation,
order, writ, judgment, injunction, decree, determination, award, indenture,
agreement, lease or instrument described in Section 7.2.2(d) or Section
7.2.2(e), above.
7.2.4 No authorization, consent, approval, order, license,
exemption from, or filing or registration or qualification with, any court or
governmental department, public body, authority, commission, board, bureau,
agency, or instrumentality, is or will be required to authorize, or is otherwise
required (except for such authorizations, consents, approvals, orders, licenses,
exemptions or filings as may be required under the state securities or "Blue
Sky" laws in connection with the sale of the Bonds by the Original Purchaser
under the Bond Purchase Agreement, which shall be obtained to the extent
necessary by the Original Purchaser) in connection with the following:
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(a) the execution and delivery by Company and Guarantor of,
and the performance by Company and Guarantor of all of their respective
obligations under, the Loan Documents and the Bond Documents, or
(b) the creation of the liens, security interests, or other
charges or encumbrances described in the Loan Documents and the Bond
Documents.
7.2.5 Each of the Loan Documents and the Bond Documents, when
executed and delivered, will constitute the legal, valid, and binding
obligations of Company and Guarantor (to the extent each is a party thereto or
obligated thereunder), enforceable against Company and Guarantor in accordance
with its terms.
7.3 Financial Statements. Company and Guarantor have each furnished
to Bank their respective financial statements, and such statements and any other
financial statements or reports submitted by Company or Guarantor to Bank or to
the Original Purchaser accurately reflect the financial position of Company and
Guarantor as of the date thereof.
7.4 No Material Adverse Change. There has been no material adverse
change in the condition, financial or otherwise, of Company or Guarantor since
the dates of the financial statements described in Section 7.3 above.
7.5 Tax Liability. Company and Guarantor have each filed all tax
returns (federal, state and local) required to be filed and has paid all taxes
shown thereon to be due and all property taxes due, including interest and
penalties, if any; provided, however, that Company and Guarantor shall not be
required to pay and discharge any such tax so long as the legality thereof shall
be promptly and actively contested in good faith and by appropriate proceedings.
Company and Guarantor have each established and are maintaining adequate
reserves for tax liabilities, if any (including any tax liabilities contested
pursuant to this Section 7.5).
7.6 Compliance with Laws. Company and Guarantor are and shall remain
in compliance in all material respects with all laws, regulations and
requirements applicable to their respective businesses and have each obtained
all authorizations, consents, approvals, orders, licenses, exemptions from, and
have each accomplished all filings or registrations or qualifications with, any
court or governmental department.
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public body, authority, commission, board, bureau, agency or instrumentality,
failure to obtain or comply with which would have a material and adverse effect
upon their respective businesses.
7.7 Litigation. There are no actions, suits or proceedings pending
or threatened against or affecting Company or Guarantor or the property of
Company or Guarantor before any court or governmental department, public body,
authority, commission, board, bureau, agency or instrumentality, except as
expressly disclosed to Bank in writing by Company or Guarantor prior to the
execution of this Agreement.
7.8 Official Statement. To the best of Company's knowledge, neither
the Official Statement nor the Preliminary Official Statement provided in
connection with the Bonds, nor any certificate or statement or any data
furnished by Company to Bank or to Trustee or any other person or entity in
connection with the negotiation of this Agreement or any of the other Loan
Documents or the Bond Documents or the transactions contemplated thereby (other
than statements contained in the Preliminary Official Statement which were
revised or corrected in the Official Statement) contains any untrue statement of
a material fact or omits a material fact necessary to make the statements
contained herein or therein, in the light of the circumstances under which they
were made, not misleading.
7.9 Conditions to Disbursement. All of the Conditions to
Disbursement have been fulfilled, except as expressly disclosed to Bank in
writing by Company prior to the execution of this Agreement.
8. Representations and Warranties by Bank. As a material inducement
to Company's entry into this Agreement and the transactions contemplated hereby,
Bank represents and warrants to Company that:
8.1 Formation of Bank. Bank is a national banking association, duly
organized, validly existing and in good standing; Bank has all requisite
corporate power to carry on its business as now being conducted, and has all
requisite corporate power and authority to enter into this Agreement, issue the
Letter of Credit, and perform its obligations hereunder and thereunder.
8.2 Authorization. The execution, delivery and performance of this
Agreement and the issuance of the Letter
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of Credit by the Bank have been duly authorized by all necessary corporate
action on the part of Bank.
8.3 No Conflict. The execution, delivery and performance of this
Agreement and the issuance of the Letter of Credit by Bank do not conflict with
or violate any provision of the articles of incorporation or by-laws of Bank and
do not, to the best of Bank's knowledge, conflict with, violate, result in a
breach of, or cause a default under (i) any provision of federal, state or local
law or regulation relating to the business or assets of Bank, (ii) any provision
of any consent, arbitration award, judgment or decree by which Bank is bound, or
(iii) any provision of any agreement or instrument to which Bank is a party or
by which Bank or its assets are bound or restricted.
8.4 Actions and Proceedings. There is no pending action or
proceeding before any court, governmental agency or arbitrator against Bank and,
to the best of Bank's knowledge, there is no threatened action or proceeding
against Bank before any court, governmental agency or arbitrator which would
materially and adversely affect the ability of the Bank to perform its
obligations under this Agreement or the Letter of Credit, subject to applicable
laws, principles and judicial decisions.
9. Affirmative Covenants. For so long as any obligation of Company
in connection with this Agreement or any of the other Loan Documents remains
outstanding, Company shall, unless Bank otherwise consents in writing:
9.1 Governmental Approvals. Deliver to Bank, from time to time at
Bank's request, evidence in form and substance satisfactory to Bank that Company
has complied with all applicable laws, ordinances, regulations and other
requirements relating thereto.
9.2 Continued Existence. Maintain its existence, and continue to be
a corporation in good standing in the State of California. In connection with
the covenants given pursuant to this Section 9.2, Company agrees that it will
not dissolve or otherwise dispose of all or substantially all of its assets.
9.3 Books and Records. Maintain full and complete books of account
and other records reflecting the results of its operations (in conjunction with
any other ventures as well as specifically with respect to the Project),
including without limitation all contributions of equity
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investment capital, and provide to Bank, promptly after request by Bank
therefor, such financial statements and other information pertaining to Company,
and the assets and operations of Company, as Bank may from time to time request.
9.4 Annual Operating Statements. Deliver to Bank the following: (a)
Promptly and in any event within ninety (90) days after the end of each Fiscal
Year, balance sheets and statements of income for Company's operations for such
Fiscal Year, accompanied with all supporting schedules and certificates of
Company's chief financial officer that the statements are true and correct.
(b) Upon request, copies of all such regular or periodic
financial statements or financial reports as Company shall send to its
shareholder(s).
(c) Upon request, copies of all such regular or periodic
reports which are available for public inspection which Company may be
required to file with any federal or state department, bureau, commission
or agency, including without limitation tax returns.
(d) Promptly and in any event within one hundred twenty (120)
days after the end of each Fiscal Year, a certification of a Designated
Representative that no Event of Default has occurred and Company is in
compliance with all covenants and agreements made by Company and contained
in this Agreement or any of the Loan Documents.
9.5 Notice of Certain Events. Promptly notify Bank if (a) Company
learns of the occurrence of any event which constitutes, or will, with the
passage of time or the giving of notice or both, constitute an Event of Default
or a default under this Agreement or any of the other Loan Documents or any of
the Bond Documents, together with a detailed statement by a responsible officer
of Company specifying the nature thereof and what action Company is taking or
proposes to take with respect thereto, or (b) Company receives any notice from,
or the taking of any other action by, the holder of any promissory note,
debenture or other evidence of indebtedness of Company or of any security (as
defined in the Securities Act of 1933, as amended) of Company with respect to a
claimed default, together with a detailed statement by a responsible officer of
Company specifying the
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notice given or other action taken by such holder and the nature of the claimed
default and what action Company is taking or proposes to take with respect
thereto, or (c) Company learns of the existence of any legal, judicial or
regulatory proceedings affecting Company or any property of Company in which the
amount involved is material and is not covered by insurance or which, if
adversely determined, would cause a material adverse change in the financial
condition of Company, or (d) there shall occur or exist any other event or
condition causing a material adverse change in the financial condition of
Company.
9.6 Opinions. Deliver to Bank, concurrently with the delivery
thereof to Trustee, a copy of each opinion of counsel required pursuant to the
Bond Documents, in each case addressed to Bank.
9.7 Defaults of Others. Use its best efforts to cure or cause to be
cured all defaults of Trustee or Issuer under the Bond Documents, if
economically practical and/or required in order to avoid an event of default
under the Bonds.
9.8 Tax Appeals. Bring, maintain and diligently prosecute any and
all actions, appeals and proceedings which are available to Company in order to
challenge, reverse or set aside a "Determination of Taxability," as that term is
defined in the Bond Documents.
9.9 Surplus Construction Funds. Subsections 3.3(h)(i) and (iv) of
the Loan Agreement notwithstanding, use moneys in the Construction Fund (as
defined in the Loan Agreement) remaining after the Project is complete and fully
paid for solely for the purposes described in Subsections 3.3(h)(ii) and (iii)
of the Loan Agreement.
9.10 Notice re Disbursement Conditions. Promptly notify Bank if
Company learns that any Condition to Disbursement was not on the date of this
Agreement, or has since ceased to be, fulfilled.
10. Negative Covenants. For so long as any obligation of Company in
connection with this Agreement or any of the other Loan Documents remains
outstanding, Company shall not, unless Bank otherwise consents in writing:
10.1 Transfers of Project or Obligations. Assign or delegate any
obligations under the Bonds, the Letter of Credit, this Agreement or any of the
other Loan Documents or
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Bond Documents, or sell, assign, convey, lease as a whole or otherwise transfer
the Project or any interest therein, without the express prior written consent
of Bank, which consent may be granted or withheld by Bank in its sole
discretion. In connection with the restrictions contained in this Section 10.1,
Company acknowledges that Bank has entered into the transaction contemplated by
this Agreement in reliance upon the financial strength, creditworthiness,
reputation and management expertise of Company and would not have entered into
such transaction but for such reliance.
10.2 Liens on Project. Create or cause or suffer to become effective
any mortgage, deed of trust or like lien or encumbrance affecting the Project or
any portion of the same, except for the lien of non-delinquent real property
taxes and those matters listed in Exhibit "F" hereto. In connection with the
restrictions contained in this Section 10.2 and in Section 10.3, below, Company
acknowledges that liens and encumbrances of the Project other than Permitted
Encumbrances will, in Bank's view, materially impair Company's financial
strength and creditworthiness.
10.3 Liens on Personal Property. Install in, or otherwise use in
connection with, the Project any personal property under any security agreements
or similar agreements however denominated whereby the right is reserved or
accrues to anyone to remove or repossess any such items or whereby any Person
other than Bank or Trustee reserves or acquires a lien upon such items.
11. Events of Default and Remedies Upon Default.
11.1 Events of Default. The occurrence of any one or more of the
following, whatever the reason therefor, shall constitute an Event of Default
hereunder:
(a) Company shall fail to pay any amount of principal or
interest owing under this Agreement or any of the Loan Documents, together
with interest thereon from the due date until payment at the rate provided
in Article 13, within ten (10) days after the date on which payment is
due; or
(b) Either Company or Guarantor shall fail to perform or
observe any term, covenant or agreement contained in any of the Loan
Documents on its part to be performed or observed the breach of which can
be cured by the payment of money, within ten (10) days after notice; or
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(c) Either Company or Guarantor shall fail to perform or
observe any term, covenant or agreement contained in any of the Loan
Documents on its part to be performed or observed, other than terms,
covenants or agreements the breach of which can be cured by the payment of
money, within thirty (30) days after notice (provided, however, that if
cure cannot reasonably be effected within such thirty (30) day period
there shall be no Event of Default under this Section 11.1(c) so long as
Company or Guarantor commences cure within such thirty (30) day period and
thereafter diligently prosecutes such cure to completion); or
(d) Trustee declares any default in connection with the Bonds
or the Bond Documents or there is a Determination of Taxability (as
defined in the Trust Indenture); or
(e) Company shall fail to perform or observe any term,
covenant or agreement contained in any of the Bond Documents on its part
to be performed or observed; or
(f) Any representation or warranty in any of the Loan
Documents or Bond Documents or in any certificate, agreement, instrument
or other document made or delivered pursuant to or in connection with any
of the Loan Documents or Bond Documents proves to have been incorrect in
any material respect when made; or
(g) All or a substantial portion of any Property is condemned,
seized or appropriated by a governmental authority; or
(h) The dissolution or liquidation of Company or Guarantor or
failure by Company or Guarantor promptly to lift any execution,
garnishment or attachment of such consequence as will materially impair
its ability to make any payments under the Loan Documents, or the entry of
an order for relief by a court of competent jurisdiction in any proceeding
for the liquidation or reorganization of Company or Guarantor, or the
filing of a petition by or against Company or Guarantor under the
provisions of any bankruptcy act or under any similar act which may be
hereafter enacted, or an assignment by Company or Guarantor for the
benefit of its creditors, or the entry by Company or Guarantor into an
agreement of composition with its creditors or the appointment of
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a receiver, trustee, custodian, liquidator or similar officer for Company
or Guarantor; or
(i) Cessation of ownership or operation by Guarantor of any
Property (except as a result of damage, destruction or condemnation of the
Property, if Guarantor thereafter complies with the provisions of the Loan
Documents pertaining thereto) without the prior approval of Bank required
under Section 11.3 of the Guaranty.
11.2 Remedies Upon Default. Upon the occurrence of any Event of
Default, Bank may, at its option, do any or all of the following:
(a) Declare the principal of all amounts owing under this
Agreement and the other Loan Documents (including all obligations secured
by the Security Documents) and all other indebtedness of Company to Bank,
together with interest thereon, to be forthwith due and payable,
regardless of any other specified maturity or due date, without notice of
default, presentment or demand for payment, protest or notice of
nonpayment or dishonor, or other notices or demands of any kind or
character, and without the necessity of prior recourse to any security;
(b) Implement any remedies available to Bank under or in
connection with the Bond Documents;
(c) Terminate its consent to the disbursement or release of
the Bond Proceeds;
(d) If the Event of Default may be cured by Bank by taking
actions or making payments of money, Bank shall have the right (but not
the obligation) to take such actions (including without limitation the
retention of attorneys and the commencement or prosecution of actions on
its own behalf or on behalf of Company), or make such payments and pay for
the costs of such actions (including without limitation attorneys' fees
and court costs) from its own funds; provided, that the taking of such
actions at Bank's expense or the making of such payments by Bank out of
Bank's own funds shall not be deemed to cure such Event of Default, and
the same shall not be so cured unless and until Company shall have
reimbursed Bank for any costs incurred in taking such actions and for any
such payments, together with interest at the rate provided for in Article
13.
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from the date of incurring such costs or making such payments until the
date of reimbursement. If Bank advances its own funds for such purposes,
such funds shall be secured by the Security Documents, notwithstanding
that such advances may cause the total amount advanced hereunder to exceed
the amount committed to be advanced pursuant to this Agreement, and
Company shall immediately upon demand reimburse Bank therefor with
interest at the rate provided for in Article 13, from the date of such
advance until the date of reimbursement; and
(e) Exercise any and all of its rights under the Loan
Documents or the Bond Documents or as provided by law including, without
limitation, making demand upon Guarantor and collecting upon the Guaranty
and foreclosing on any security, and exercise any other rights with
respect to any security for Company's obligations hereunder or for
Guarantor's obligations under the Guaranty, whether under the Security
Documents or any other agreement or as provided by law, all in such order
and in such manner as Bank in its sole discretion may determine.
11.3 Cumulative Remedies; No Waiver. All remedies of Bank provided
for herein are cumulative and shall be in addition to any and all other rights
and remedies provided in the Letter of Credit, the Security Documents, the Bond
Documents or any of the Loan Documents, or provided by law from time to time;
provided, however, that Bank hereby agrees to waive, during the pendency of any
proceeding by or against Company, Guarantor or Xxxxxxx X. Xxxx, Xx. in
bankruptcy or reorganization, its right to set off any and all deposits (general
or special) at any time held and other indebtedness at any time owing by Bank to
or for the credit or the account of Company, Guarantor or Xxxxxxx X. Xxxx, Xx.,
as applicable, against any and all of the obligations of Company, Guarantor or
Xxxxxxx W, Xxxx, Jr., as applicable, now or hereafter existing under this
Agreement or in any of the other Loan Documents. The exercise of any right or
remedy by Bank hereunder shall not in any way constitute a cure or waiver of
default hereunder or under the Letter of Credit, the Security Documents, the
Bond Documents or any of the Loan Documents, nor invalidate any notice of
default or any act done pursuant to any such notice, nor prejudice Bank in the
exercise of any rights hereunder or under the Letter of Credit, the Security
Documents, the Bond Documents or the Loan Documents, unless in the exercise of
said rights, Bank and Trustee realize all amounts owed to either under the
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Letter of Credit, this Agreement, the Security Documents, the Bond Documents and
the Loan Documents and all Events of Default are cured. No waiver by Bank of any
default or breach by Company or Guarantor hereunder shall be implied from any
omission by Bank to take action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default expressly made the subject of the waiver. Any such express
waiver shall be operative only for the time and to the extent therein stated.
Any waiver of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by Bank to or of any act by Company or
Guarantor requiring further consent or approval shall not be deemed to waive or
render unnecessary consent or approval to or of any subsequent act.
12. Miscellaneous.
12.1 Actions. Bank shall have the right to commence, appear in and
defend any action or proceeding purporting to affect the rights or duties of
Bank, Company or Guarantor hereunder or under the Guaranty or the payment of any
funds hereunder or under the Guaranty, and in connection therewith Bank may pay
necessary expenses, employ counsel and pay reasonable attorneys' fees. Company
agrees to pay to Bank, on demand, all costs and expenses incurred by Bank in
connection therewith, including without limitation reasonable attorneys' fees,
together with interest from the date of expenditure at the rate provided in
Article 13. In the event that either Bank or Company shall bring an action
against the other to interpret or enforce the terms or provisions of the Letter
of Credit, this Agreement or any of the other Loan Documents, the prevailing
party in such action shall be entitled to recover its attorneys' fees and costs
(whether or not taxable) as awarded by a court of competent jurisdiction,
whether or not such action is prosecuted to final judgment.
12.2 Nonliability of Bank. Company acknowledges and agrees that:
(a) the relationship between Company and Bank is, and shall at
all times remain, solely that of borrower and lender, and Bank neither
undertakes nor assumes any responsibility or duty to Company to select,
review, inspect, supervise, pass judgment upon or inform Company of any
matter in connection with the Project, including without limitation
matters relating to the
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adequacy or legal sufficiency of any of the documents, agreements or
arrangements pertaining to the Bonds, the Bond Documents or the rights or
obligations of any Person in connection therewith; and Company shall rely
entirely upon its own judgment with respect to such matters, and any
review, inspection, supervision, exercise of judgment or information
supplied to Company by Bank in connection with such matters is for the
protection of Bank only and neither Company nor any other Person is
entitled to rely thereon;
(b) Bank owes no duty of care to protect Company against
negligent, faulty, inadequate or defective building or construction;
(c) Bank shall not be responsible or liable to Company for any
loss, damage, liability or claim of any kind relating to injury or death
to persons or damage to property or negligent, faulty, inadequate or
defective building or construction and Company hereby indemnities and
holds Bank harmless from any such loss, damage, liability or claim.
(d) Bank shall not be responsible or liable to Company for use
which may be made of the Letter of Credit or for any acts or omissions of
Trustee and any beneficiary or transferee in connection therewith;
(e) Bank shall not be responsible or liable to Company for the
validity, sufficiency or genuineness of documents (except as to Bank's
signatures thereon), or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged (except to the extent Bank
is grossly negligent in accepting or relying upon such documents);
(f) Bank shall not be responsible or liable to Company as a
result of any circumstances in any way related to the making or failure to
make payment under the Letter of Credit, other than as a result of the
gross negligence or willful misconduct of Bank.
12.3 No Representations by Bank. By accepting or approving anything
required to be observed, performed or fulfilled, or to be given to Bank pursuant
to this Agreement or any of the other Loan Documents or Bond Documents,
including any certificate, statement of profit and loss or other financial
statement, survey, appraisal or insurance policy, Bank shall
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not be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation to anyone with respect thereto by
Bank. Bank may accept documents in connection with the Letter of Credit or any
of the other Loan Documents or Bond Documents which appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary.
12.4 No Third Parties Benefited. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Company and Bank in connection with the Letter of Credit. It shall be deemed a
supplement to the Security Documents. It is made for the sole protection of
Company, Bank, and Bank's successors and assigns. No other Person shall have any
rights of any nature hereunder or by reason hereof, except to the extent that
Trustee is expressly granted rights hereunder.
12.5 Indemnity by Company. Company hereby indemnifies and holds
harmless Bank and its directors, officers, agents and employees (collectively
the "indemnitees") from and against:
(a) any and all claims, demands, actions or causes of action
that are asserted against any indemnitee by any Person if the claim,
demand, action or cause of action directly or indirectly relates to a
claim, demand, action or cause of action that the Person has or asserts
against Company in connection with the issuance of the Letter of Credit,
the Bonds, any of the Bond Documents, or the transaction to which such
documents pertain;
(b) any and all claims, demands, actions or causes of action
that are asserted against any indemnitee by any Person and arise from or
in connection with (i) any statement or omission, actual or alleged, in
the Bond Documents, or (ii) any breach or default, actual or alleged, of
the representations, warranties, covenants, conditions or agreements
contained in this Agreement or any of the other Loan Documents or in any
of the Bond Documents; and
(c) any and all liabilities, losses, costs or expenses
(including court costs and attorneys' fees) that any indemnitee suffers or
incurs as a result of
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the assertion of any claim, demand, action or cause of action specified in
Section 12.5(a) or Section 12.5(b), above.
The indemnity contained in this Section 12.5 shall not extend to any claims,
demands, actions, causes of action, liabilities, losses, costs or expenses which
result solely from the gross negligence or willful misconduct of Bank.
12.6 Commissions. Company hereby indemnities and holds Bank harmless
from any responsibility, cost and/or liability, including any attorneys' fees
incurred, in connection with any claim by any Person for the payment of any
commission, charge or brokerage fee in connection with the Bonds or any of the
other transactions contemplated in connection with this Agreement.
12.7 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Company, Bank and their respective successors and assigns,
subject to the provisions of Section 10.1, above.
12.8 Execution in Counterparts. This Agreement and any other Loan
Document may be executed in any number of counterparts and any party hereto or
thereto may execute any counterpart, each of which when executed and delivered
will be deemed to be an original and all of which counterparts of this Agreement
or any other Loan Document, as the case may be, taken together will be deemed to
be but one and the same instrument. The execution of this Agreement or any other
Loan Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
12.9 Prior Agreements; Amendments; Consents. This Agreement,
together with the other Documents, contains the entire agreement between Bank
and Company with respect to the Letter of Credit, and all prior negotiations,
understandings and agreements with respect to the Letter of Credit are
superseded by this Agreement and the other Documents. No amendment,
modification, supplement, termination or waiver of any provision of this
Agreement or any of the other Loan Documents, and no consent to any departure by
Company therefrom, may in any event be effective unless in writing signed by
Bank, and then only in the specific instance and for the specific purpose given.
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12.10 Survival of Representations and Warranties. All
representations and warranties of Company contained herein or in any other Loan
Document (qualified in each case by the facts and circumstances surrounding each
such document at the time such document was executed) will survive the delivery
of the Letter of Credit and are material and have been and will be relied upon
by Bank, notwithstanding any investigation made by Bank or on behalf of Bank.
For the purpose of the foregoing, all statements contained in any certificate,
agreement or other writing delivered by or on behalf of Company or Guarantor
pursuant hereto or pursuant to any other Loan Document or in connection with the
transactions contemplated hereby or thereby shall be deemed to be
representations and warranties of Company contained herein or in the other Loan
Documents, as the case may be.
12.11 Notices. All notices, requests, demands, directions and other
communications provided for in this Agreement and under any of the other Loan
Documents must be in writing and must be mailed, telegraphed, delivered or sent
by Telex or cable to the appropriate party at its address as follows:
If to Company:
Radiation Sterilizers, Incorporated
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Xx.
with a copy to:
Xxxxxx Xxxxxx, Esq.
General Counsel
Radiation Sterilizers, Incorporated
0000 Xxxx Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 00X
Xxxxx Xxxx, Xxxxxxxxxx 00000
If to Bank:
Xxxxx Fargo Bank, N.A.
Real Estate Industries Group
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Vice President
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with a copy to:
Sheppard, Mullin, Xxxxxxx & Xxxxxxx
000 Xxxxx Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Addresses for purposes of notice may be changed from time to time by written
notice sent to the other parties in accordance with this Section 12.11. Any
notice, request, demand, direction or other communication given by telegram,
Telex or cable must be confirmed within 48 hours by letter mailed or delivered
to the appropriate party at its respective address. If any notice, request,
demand, direction or other communication is given by mail it will be effective
upon the earlier of (a) 96 hours after deposit in the U.S. Mail, certified or
registered mail, return receipt requested postage prepaid or (b) actual receipt,
as indicated by the return receipt; if given by telegraph or cable, when
delivered to the telegraph company with charges prepaid; if given by Telex, when
sent; or if given by personal delivery, when delivered.
12.12 Further Assurances. Company shall, at its expense and without
expense to Bank, do, execute and deliver such further acts and documents as Bank
from time to time requires for the purpose of assuring and confirming unto Bank
the rights hereby created or intended now or hereafter so to be, or for carrying
out the intention or facilitating the performance of the terms of any Loan
Document, or for assuring the validity of any security interest or lien under
any Security Document.
12.13 Governing Law. All of the Loan Documents shall be governed by,
and construed and enforced in accordance with, the laws of the State of
California.
12.14 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid shall be inoperative,
unenforceable or invalid without affecting the remaining provisions, and to this
end the provisions of all Loan Documents are declared to be severable.
12.15 Inconsistency With Security Documents. In the event that any
of the provisions of the Security Documents are inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall prevail.
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12.16 Headings. Article and section headings in this Agreement are
included for convenience of reference only and are not part of this Agreement
for any other purpose.
12.17 Time of the Essence. Time is of the essence.
12.18 No FDIC Insurance. Company and Bank hereby agree that the
transaction contemplated in this Agreement is not intended to and shall not
constitute a "deposit" within the meaning of 12 U.S.C. Sec 1813(l)(1). Neither
Company nor Bank nor any successor or assign of either shall make any claim
against the Federal Deposit Insurance Corporation in the event of any failure by
Bank, in whole or in part, to fulfill its obligations with respect to any draw
or draws under the Letter of Credit.
13. Interest and Payment Terms.
13.1 Manner of Payment. All amounts to be paid to Bank under this
Agreement and the other Loan Documents shall be paid to Bank at its banking
offices at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, in coin or
currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts. All such payments shall be
in immediately available funds, and shall be timely only if received by Bank
before 1:00 p.m., San Francisco, California, time, on the date that such payment
is required to be made. Any payment received by Bank after such time shall be
considered for all purposes (including the calculation of interest, to the
extent permitted by law) as having been made on Bank's next following business
day. As used in this Article 13, the term "business day" shall mean a day other
than a Saturday, Sunday or a day upon which banking institutions in the State of
California are authorized or required by law to close. If the date for any
payment to Bank falls on a day that is not a business day, then for all purposes
of such payment the same shall be deemed to have fallen on the next following
business day, and such extension of time shall in such case be included in the
computation of payments of interest.
13.2 Interest. Interest shall accrue on all amounts owing to Bank
under this Agreement and the other Loan Documents and remaining from time to
time unpaid, from the date so paid by Bank or otherwise becoming owing under the
Loan Documents until payment thereof, at a varying rate per annum (based on an
actual day basis using a 360 day year) which is two percent (2%) above the
floating commercial loan rate announced by Bank from time to time as its
-30-
35
prime rate. Adjustments in the varying interest rate shall be made on the same
day as each change in the announced prime rate.
13.3 Waivers. Company and any and each co-maker, guarantor,
accommodation party, endorser or other person liable for the payment or
collection of any and all amounts owed to Bank under the Loan Documents
expressly waive demand and presentment for payment, notice of nonpayment,
protest, notice of protest, notice of dishonor, bringing of suit and diligence
in taking any action to collect such amounts and in the handling of any
collateral at any time existing as security in connection therewith, and shall
be directly and primarily liable for the payment of all sums owing and to be
owing, regardless of and without any notice, diligence, act or omission as or
with respect to the collection of any such amount or in connection with any lien
or security interest at any time had or existing as security for any such
amount.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
"Company":
RADIATION STERILIZERS, INCORPORATED
a California corporation
By Xxxx Xxxx
---------------------------------
Its President
-----------------------------
By Xxxxxxx X. Xxxx Xx.
---------------------------------
Its Secretary
-----------------------------
-31-
36
"Bank":
XXXXX FARGO BANK, N.A.
a national banking association
By /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx V.P.
-----------------------------
Printed Name And title
-32-
37
LETTER OF CREDIT
Irrevocable Letter of
Credit No. _______________
Dated as of __________, 19__
Bank one Trust Company, N.A.
as Trustee and Paying Agent
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Xxxxx Fargo Bank, N.A. ("Bank") hereby establishes in your favor for
the account of Radiation Sterilizers, Incorporated, a California corporation
("Company"), its Irrevocable Letter of Credit No. _____________ ("Letter of
Credit") in a maximum amount of up to $5,408,220.00 (as more fully described
below) effective immediately and expiring at Bank's counters by 4:00 P.M., San
Francisco time, on April 15, 1988, unless extended by Bank (the "Expiration
Date").
This Letter of Credit is being issued in connection with that
certain Trust Indenture (the "Trust Indenture") dated as of March 1, 1985,
between you, as Trustee, and the Development Authority of DeKalb County (the
"Issuer"), pursuant to which the Issuer has agreed to authorize and issue and
sell certain Development Authority of DeKalb County Variable Rate Demand
Industrial Development Revenue Bonds (Radiation Sterilizers, Incorporated
Project), Series 1985, (the "Bonds") in the aggregate principal amount of
$5,250,000.00, the payment of which Bonds is secured by, among other things,
this Letter of Credit.
As used in this Letter of Credit, he term "business day" shall mean
a day other than (i) a Saturday, (ii) a Sunday, (iii) a day upon which banking
institutions in the State of California or the City of New York are authorized
or required by law to close, or (iv) a day on which the New York Stock Exchange,
Inc, is closed.
You, as Trustee and Paying Agent, pursuant to the Trust Indenture,
are hereby irrevocably authorized to draw on Bank, for the account of Company,
in accordance with the terms and conditions hereof and subject to reductions in
amounts as hereinafter set forth, an aggregate amount not exceeding
$5,408,220.00 (Five Million Four Hundred Eight
-1-
EXHIBIT "A"
38
Thousand Two Hundred Twenty Dollars) (the "Stated Amount"), of which (A) an
aggregate amount not exceeding $5,250,000.00 may be drawn upon with respect to
"A Drawings" and "C Drawings", as defined below, to cover principal of the
Bonds, and (B) an aggregate amount not exceeding $158,220.00 may be drawn upon
with respect to "B Drawings," "D Drawings" and E Drawings", as defined below, to
cover 55 days of interest on the Bonds.
Funds under this Letter of Credit are only available to you against
your draft(s) drawn on Xxxxx Fargo Bank, N.A., stating on their face: "Drawn
under Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit No. ____________" and
upon your presenting to Xxxxx Fargo Bank, N.A. one or more of the following
written certificates:
(A) Your written certificate signed by you in the form of Exhibit A
attached hereto appropriately completed (an "A Drawing");
(B) Your written certificate signed by you in the form of Exhibit B
attached hereto appropriately completed (a "B Drawing");
(C) Your written certificate signed by you in the form of Exhibit C
attached hereto appropriately completed (a "C Drawing");
(D) Your written certificate signed by you in the form of Exhibit D
attached hereto appropriately completed (a "D Drawing");
(E) Your written certificate signed by you in the form of Exhibit E
attached hereto appropriately completed (an E Drawing").
All documents presented to Bank in connection with any demand for
payment hereunder, as well as all notices and other communications to Bank with
respect to this Letter of Credit, shall be in writing and addressed and
presented to Bank at its offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Letter of Credit Operations AU 1175, or any other
place in the United States which may be designated by Bank by written notice
delivered to you. Such documents, notices and other communications shall be
personally delivered to Bank, or may be sent to Bank by tested Telex in which
case draft requirements are waived.
-2-
39
If Bank receives any of your drafts drawn hereunder at such office,
all in strict conformity with the terms and conditions of this Letter of Credit,
on or prior to the Expiration Date, Bank will honor the same and make payment
hereunder. Payments to you under this Letter of Credit shall be made by wire
transfer of immediately available funds to Bank One, Columbus, N.A., Columbus,
Ohio, for your Account No. 00-0000-0, Attn: Corporate Trust Administration, or
into such other account as you designate to Bank in writing from time to time.
If a proper draft and certificate are presented by 11:30 A.M., New York time,
payment will be made that same business day; otherwise payment will be made the
next business day:
Upon a Drawing hereunder, the total amount of this Letter of Credit
shall be reduced as follows:
(A) With respect to any A or B Drawing, the total amount of this
Letter of Credit shall be reduced by the amount of such Drawing;
(B) With respect to any C or D Drawing, the total amount of this
Letter of Credit shall be reduced by the amount of such Drawing, provided
that Bank shall reinstate the amount of such drawing if such amount is
paid to Bank by Company prior to default under that certain Letter of
Credit Agreement, dated as of March 1, 1985 (the "Reimbursement
Agreement"), by and between Company and Bank. In addition, in the event
Bank transfers any Drawing Bonds (as defined in the Reimbursement
Agreement) in its possession following any C Drawing to any person or
entity (other than to you, as Trustee, for cancellation), an amount equal
to the amount of such C Drawing (and any corresponding D Drawing) which
was applied to pay principal and interest on the Bonds being so
transferred shall automatically be reinstated hereunder. Bank will send
notice of any such reinstatement to you, as Trustee, in the form attached
hereto as Exhibit F; and
(C) With respect to any E Drawing, the total amount of this Letter
of Credit shall be reduced by the amount of such Drawing and such amount
shall then be immediately and automatically reinstated, and Bank will send
notice of such reinstatement to you, as Trustee, in the form attached
hereto as Exhibit F.
Only you, as Trustee and Paying Agent, may make a drawing under this
Letter of Credit. Upon the payment to you, as Trustee and Paying Agent, of the
amount specified in
-3-
40
a draft drawn hereunder, Bank will be fully discharged on its obligation under
this Letter of Credit with respect to such draft and shall not thereafter be
obligated to make any further payments under this Letter of Credit in respect to
such draft to you or any other person who may have made to you or makes to you a
demand for payment of principal of, purchase price of or interest on any Bond.
By paying to you an amount demanded in such draft(s) we make no representation
as to the correctness of the amount demanded in such draft(s).
Upon the earliest of (i) 15 days after the making by you of an A
Drawing (and any associated B Drawing) hereunder (other than an A Drawing for
partial redemption); (ii) Bank's receipt of a certificate signed by your officer
and an officer of Company stating (a) that no Bonds are Outstanding within the
meaning of the Trust Indenture and (b) that such officers are duly authorized to
sign such certificate on behalf of you and Company; (iii) Bank's receipt of a
certificate signed by your officer and an officer of Company stating (a) that an
Alternate Letter of Credit (as defined in the Trust Indenture) has been accepted
by you as Trustee under the Trust Indenture and (b) that such officers are duly
authorized to sign such certificate on behalf of you and on behalf of Company;
(iv) Bank's receipt of a certificate signed by your officer and an officer of
Company stating (a) that no less than 15 days prior to the date of such
certificate, the interest rate on the Bonds was converted to a Fixed Interest
Rate (as defined in the Trust Indenture), (b) that you have not received written
notification from both Company and Bank stating that this Letter of Credit is
not to be cancelled, and (c) that such officers are duly authorized to sign such
certificate on behalf of you and on behalf of Company; or (v) the Expiration
Date, this Letter of Credit shall automatically terminate and be delivered to
Bank for cancellation.
This Letter of Credit shall be governed by (i) the Uniform Customs
and Practice for Documentary Credit as fixed by the Congress of the
International Chamber of Commerce from time to time (the "Uniform Customs") and
(ii) the laws of the State of California, including the Uniform Commercial Code
as in effect in the State of California. In the event of a conflict between the
Uniform Customs and the laws of the State of California, the Uniform Customs
shall prevail. Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to Bank at its offices at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Letter of Credit Operations - AU 1175,
specifically referring to the number of this Letter of Credit.
-4-
41
This Letter of Credit is transferable in its entirety to any
transferee who has succeeded you as Trustee under the Trust Indenture. Each
letter of credit issued upon any such transfer may be successively transferred.
Transfer of the available balance under this Letter of Credit to such transferee
shall be effected by the presentation to Bank of this Letter of Credit
accompanied by a certificate substantially in the form of Exhibit G attached
hereto. Following such presentation, and as soon as this original Letter of
Credit is returned to the Bank and the Bank has been paid its customary transfer
fee, Bank shall forthwith transfer the same to your transferee or, if so
requested by your transferee, issue an irrevocable letter of credit to your
transferee with provisions therein consistent with those of this Letter of
Credit.
This Letter of Credit sets forth in full Bank's undertaking, and
such undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds and the Trust Indenture), except only
the certificate(s) and the draft(s) referred to herein; and any such reference
shall not be deemed to incorporate herein by reference any document, instrument
or agreement except for such certificate(s) and such draft(s).
In the event of any failure by Bank, in whole or in part, to fulfill
its obligations with respect to any draw or draws under this Letter of Credit,
no person or entity shall have the right to make any claim against the Federal
Deposit Insurance Corporation in connection with such failure. By its signature
below, Bank One Trust Company, N.A., as Trustee and Paying Agent, acknowledges
receipt of this Letter of Credit and agrees that the terms of this paragraph
shall bind itself and its successors and assigns.
Very truly yours,
XXXXX FARGO BANK, N.A.
By _______________________________
Its ______________________________
-5-
42
ACCEPTED AND AGREED TO
THIS ____ DAY OF MARCH, 1985:
BANK ONE TRUST COMPANY, N.A.
By _________________________
Its ________________________
-6-
43
EXHIBIT A
CERTIFICATE FOR "A DRAWING"
(PRINCIPAL UPON ACCELERATION, PARTIAL REDEMPTION,
FULL REDEMPTION, OR MATURITY)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to Xxxxx Fargo Bank, N.A.
("Bank"), with reference to Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit
No. __________ (the "Letter of Credit," the capitalized terms defined therein
and not defined herein being used as therein defined) issued by Bank in favor of
Trustee and paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the Trust
Indenture for the holders of the Bonds.
(2) The undersigned is making a drawing under the Letter of Credit
with respect to the payment of principal upon acceleration, partial redemption,
full redemption or maturity of the Bonds.
(3) The undersigned presently holds $_____________ in the Bond Fund.
The undersigned presently holds no other amounts in the Bond Fund, holds no
amounts in the Construction Fund, and holds no other funds in its capacity as
Trustee or Paying Agent under the Trust Indenture.
(4) Of the total funds presently held in the Bond Fund,
$_________________is the total of all funds (the "Available Funds"") that have
not been delivered to the undersigned by Company within the past 123 days. Of
the Available Funds, $___________ is needed by the undersigned to pay current
interest on the Outstanding Bonds.
(5) The amount of principal of the Bonds which is due and payable
for which the undersigned does not have Available Funds is $ ______________, and
the amount of the draft accompanying this certificate does not exceed such
amount.
(6) The amount of the draft accompanying this certificate, together
with the aggregate of all prior payments made pursuant to A Drawings, and C
Drawings under the Letter of Credit (other than reinstated amounts) for the
A-1
44
payment of the principal amount or purchase price of the Bonds, does not exceed
$5,250,000.00.
(7) The amount of the draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the Trust
Indenture.
(8) Upon receipt by the undersigned of the amount demanded hereby,
(a) the undersigned will apply it directly to the payment when due of the
appropriate amount of principal owing on account of the Bonds pursuant to the
Trust Indenture, (b) no portion of it shall be applied by the undersigned for
any other purpose, and (c) no portion of it shall be commingled with other funds
held by the undersigned. This drawing is made in accordance with the provisions
of the Trust Indenture.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the _____ day of ________________, 19____.
BANK ONE TRUST COMPANY, N.A.
a national banking association,
as Trustee and Paying Agent
By _______________________________
Title__________________________
A-2
45
EXHIBIT B
CERTIFICATE FOR "B DRAWING"
(ACCRUED INTEREST UPON ACCELERATION, PARTIAL REDEMPTION,
FULL REDEMPTION, OR MATURITY)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to Xxxxx Fargo Bank, N.A.
("Bank"), with reference to Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit
No. ___________ (the "Letter of Credit," the capitalized terms defined therein
and not defined herein being used as therein defined) issued by Bank in favor of
Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the Trust
Indenture for the holders of the Bonds.
(2) The undersigned is making a drawing under the Letter of Credit
with respect to the payment of accrued and unpaid interest upon acceleration,
partial redemption, full redemption, or maturity of the Bonds.
(3) Interest on the Bonds is due and payable and the amount of the
draft accompanying this certificate does not exceed the amount available on the
date hereof to be drawn under the Letter of Credit in respect of payment of
interest accrued on the Bonds on or prior to their stated maturity date.
(4) The total of all funds presently held by the undersigned in the
Bond Fund that have not been delivered to the undersigned by Company within the
past 123 days is $___________. This amount, together with the amount of the
accompanying draft, equals the accrued interest which is due and payable on the
Bonds.
(5) The amount of the draft accompanying this certificate, together
with the aggregate of all prior B, D and E Drawings under the Letter of Credit
(other than reinstated amounts), does not exceed $158,220.00.
(6) The amount of the draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the Trust
Indenture.
B-1
46
(7) Upon receipt by the undersigned of the amount demanded hereby,
(a) the undersigned will apply it directly to the payment when due of the
appropriate amount of interest owing on account of the Bonds pursuant to the
Trust Indenture, (b) no portion of it shall be applied by the undersigned for
any other purpose, and (c) no portion of it shall be commingled with other funds
held by the undersigned. This drawing is made in accordance with the provisions
of the Trust Indenture.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the ___ day of ________________, 19____.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Trustee and Paying Agent
By _____________________________
Title _______________________
B-2
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EXHIBIT C
CERTIFICATE FOR "C DRAWING"
(PRINCIPAL OF BONDS DELIVERED
TO REMARKETING AGENT OR PAYING AGENT)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee"), and as
Paying Agent ("Paying Agent") hereby certifies to Xxxxx Fargo Bank, N.A.
("Bank"), with reference to Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit
No. _____________ (the "Letter of Credit," the capitalized terms defined therein
and not defined herein being used as therein defined) issued by Bank in favor of
Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the Trust
Indenture for the holders of the Bonds.
(2) Paying Agent is making a drawing under the Letter of Credit (a)
at the written request (or oral request to be immediately followed in writing)
of the Remarketing Agent (as defined in the Reimbursement Agreement) to pay,
pursuant to Section 401(g) of the Trust Indenture, the principal amount of the
purchase price of those repurchased Bonds which the Remarketing Agent has been
unable to remarket, the principal amount of which is equal to the amount of the
draft accompanying this certificate, and which Bonds (i) are now held by either
the Remarketing Agent pursuant to its representation to Paying Agent, which
representation Paying Agent has not independently verified, or are held by
Paying Agent and (ii) shall be re-registered in the name of Bank, or its agent,
as pledgee, and delivered to Bank, or such agent, within 5 business days
following receipt by Paying Agent of the amount demanded hereby; or (b) to pay,
pursuant to Section 401(h) of the Trust Indenture, the portion of the purchase
price of the Bonds delivered to Paying Agent for purchase equal to the principal
amount of such Bonds, and Paying Agent shall deliver to Bank, or its agent, as
pledgee, within 5 business days following receipt by Paying Agent of the amount
demanded hereby, a principal amount of Bonds equal to the amount of the draft
accompanying this certificate.
(3) The amount of the draft accompanying this certificate, together
with the aggregate of all prior payments made pursuant to A Drawings and C
Drawings under the Letter
C-1
48
of Credit (other than reinstated amounts) does not exceed $5,250,000.00.
(4) Upon receipt of the amount demanded hereby, (a) Paying Agent
will either (i) deliver it to the Remarketing Agent or use the same only for the
purpose of purchase of the Bonds referenced in Paragraph 2(a) hereof, or (ii)
use it for the purpose of purchase of the Bonds referred to in Paragraph 2(b)
hereof; (b) no portion of it shall be applied by Paying Agent for any other
purpose; and (c) no portion of it shall be commingled with other funds held by
Paying Agent. This drawing is made in accordance with the provisions of the
Trust Indenture.
IN WITNESS WHEREOF, Paying Agent has executed and delivered this
certificate as of the _____ day of ___________, 19____.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Trustee and Paying Agent
By _____________________________
Title _______________________
C-2
49
EXHIBIT D
CERTIFICATE FOR "D DRAWING"
(ACCRUED INTEREST ON BONDS DELIVERED
TO REMARKETING AGENT OR PAYING AGENT)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to Xxxxx Fargo Bank, N.A.
("Bank"), with reference to Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit
No.______________ (the "Letter of Credit," the capitalized terms defined therein
and not defined herein being used as therein defined) issued by Bank in favor of
Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the Trust
Indenture for the holders of the Bonds.
(2) Paying Agent is making a drawing under the Letter of Credit (a)
at the written request (or oral request to be immediately followed in writing)
of the Remarketing Agent (as defined in the Reimbursement Agreement), to pay,
pursuant to Section 401(g) of the Trust Indenture, the amount of accrued
interest on those Bonds that the Remarketing Agent has been unable to remarket,
which amount of accrued interest is equal to the amount of the draft
accompanying this certificate; or (b) to pay, pursuant to Section 401(h) of the
Trust Indenture, the portion of the purchase price of the Bonds delivered to
Paying Agent for purchase equal to the amount of accrued and unpaid interest on
such Bonds to the date of purchase thereof, which amount of accrued interest is
equal to the amount of the draft accompanying this certificate.
(3) The amount of the draft accompanying this certificate, together
with the aggregate of all prior B, D and E Drawings under the Letter of Credit
(other than reinstated amounts), does not exceed $158,220.00.
(4) The amount of the draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the Trust
Indenture.
(5) Upon receipt by Paying Agent of the amount demanded hereby, (a)
Paying Agent will either (i) deliver it to the Remarketing Agent or use the same
only for the purpose of reimbursement or payment of accrued interest referenced
D-1
50
in Paragraph 2(a) hereof, or (ii) use it for the purpose of reimbursement or
payment of accrued interest referenced in Paragraph 2(b) hereof; (b) no portion
of it shall be applied by Paying Agent for any other purpose; and (c) no portion
of it shall be commingled with other funds held by Paying Agent. This drawing is
made in accordance with the provisions of the Trust Indenture.
(6) To the extent that the payment demanded hereby is to be made in
accordance with the Letter of Credit on a date between a Record Date and the
corresponding Interest Payment Date (as those terms are defined in the Trust
Indenture), Paying Agent now holds and shall, within 5 business days following
receipt by Paying Agent of the payment demanded hereby, deliver to Bank,
due-xxxx checks that, in the aggregate, are in the amount and in the form
required by the Trust Indenture.
IN WITNESS WHEREOF, Paying Agent has executed and delivered this
certificate as of the ______ day of ___________________, 19___.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Paying Agent
By_____________________________
Title_______________________
D-2
51
EXHIBIT E
CERTIFICATE FOR A DRAWING"
(ACCRUED INTEREST UPON INTEREST PAYMENT DATE)
The undersigned, a duly authorized officer of Bank One Trust
Company, N.A., a national banking association, as Trustee ("Trustee") and as
Paying Agent ("Paying Agent") hereby certifies to Xxxxx Fargo Bank, N.A.
("Bank"), with reference to Xxxxx Fargo Bank, N.A. Irrevocable Letter of Credit
No. __________ (the "Letter of Credit," the capitalized terms defined therein
and not defined herein being used as therein defined) issued by Bank in favor of
Trustee and Paying Agent, that:
(1) The undersigned is Trustee and Paying Agent under the Trust
Indenture for the holders of the Bonds.
(2) The undersigned is making a drawing under the Letter of Credit
with respect to the payment of accrued and unpaid interest upon an Interest
Payment Date during the continuance of an Event of Default under the
Reimbursement Agreement for which Bank has not yet exercised its right to demand
that the undersigned accelerate the Bonds.
(3) Interest on the Bonds is due and payable and the amount of the
draft accompanying this certificate does not exceed the amount available on the
date hereof to be drawn under the Letter of Credit in respect of payment of
interest accrued on the Bonds on or prior to their stated maturity date.
(4) The total of all funds presently held by the undersigned in the
Bond Fund that have not been delivered to the undersigned by Company within the
past 123 days is $____________. This amount, together with the amount of the
accompanying draft, equals the accrued interest which is due and payable on the
Bonds (exclusive of Drawing Bonds).
(5) The amount of the draft accompanying this certificate, together
with the aggregate of all prior B, D and E Drawings under the Letter of Credit
(other than reinstated amounts), does not exceed $158,220.00.
(6) The amount of the draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the Trust
Indenture.
E-1
52
(7) Upon receipt by the undersigned of the amount demanded hereby,
(a) the undersigned will apply it directly to the payment when due of the
appropriate amount of interest owing on account of the Bonds pursuant to the
Trust Indenture, (b) no portion of it shall be applied by the undersigned for
any other purpose, and (c) no portion of it shall be commingled with other funds
held by the undersigned. This drawing is made in accordance with the provisions
of the Trust Indenture.
IN WITNESS WHEREOF, Trustee and Paying Agent has executed and
delivered this certificate as of the _____ day of __________________, 19___.
BANK ONE TRUST COMPANY, N.A.
a national banking association
as Trustee and Paying Agent
By____________________________
Title______________________
X-0
00
XXXXXXX X
NOTICE OF AUTOMATIC REINSTATEMENT OF AMOUNTS AVAILABLE
UNDER IRREVOCABLE LETTER OF CREDIT NO. __________
DATED AS OF _______________, 19___
The undersigned, a duly authorized officer of Xxxxx Fargo Bank, N.A.
("Bank"), hereby certifies to the Trustee under the Trust Indenture dated as of
March 1, 1985, between the Development Authority of DeKalb County and Bank One
Trust Company, N.A., a national banking association ("Trustee"), with reference
to Irrevocable Letter of Credit No. _______ (the "Letter of Credit") issued by
Bank in favor of Trustee, that the amount drawn by Trustee pursuant to its
_________ Drawing dated as of _______________, has been reinstated as of
________________ and is available for draw subject to the terms of the Letter of
Credit.
In witness whereof, Bank has executed and delivered this Certificate
this _____ day of ______________, 19___.
XXXXX FARGO BANK, N.A.
By:_________________________
Its______________________
F-1
54
EXHIBIT G
Xxxxx Fargo Bank, N.A.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Letter of Credit Operations
AU 1175
Re: Xxxxx Fargo Bank, N.A..
Irrevocable Letter of Credit No.
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in and
to such Letter of Credit are transferred to the transferee and the transferee
shall have sole rights as beneficiary thereof, including sole rights relating to
any amendments, whether increases or extensions or other amendments and whether
now existing or hereafter made. All amendments are to be advised direct to the
transferee without necessity of any consent of or notice to the undersigned
beneficiary.
The advice of such Letter of Credit is returned herewith, along with
your customary transfer fee, and we ask
G-1
55
you to endorse the transfer on the reverse thereof and forward it direct to the
transferee with your customary notice of transfer.
Very truly yours,
----------------------------------
Signature of Beneficiary
SIGNATURE AUTHENTICATED
---------------------------
(Bank)
---------------------------
(Authorized Signature)
G-2
56
EXHIBIT "B"
CONDITIONS TO DISBURSEMENT
1. Conditions to All Disbursements. Bank shall not be obligated to approve
any disbursement of Bond proceeds under Section 3.3 of the Loan Agreement unless
each of the following conditions are fulfilled:
1.1 Completion of Project. The acquisition and construction of the
Project shall have been completed in accordance with the plans and
specifications therefor.
1.2 Permits, Etc. All required governmental inspections, reports and
certifications shall have been made, and all occupancy, use and other permits
required by all applicable governmental regulatory authorities and public
utility companies shall have been issued, for the full operation of the Project.
EXHIBIT "B"
Page 1 of 1
57
EXHIBIT "C"
(14300-14390 Catalina Street)
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
San Leandro, County of Alameda, State of California, and described as follows:
PARCEL ONE:
PARCEL A, PARCEL MAP NO. 2181, FILED JULY 29, 1977, BOOK 97 OF PARCEL MAPS, PAGE
72, ALAMEDA COUNTY RECORDS, AND BEING THE NORTHWESTERLY 415 FEET, RIGHT ANGLE
MEASUREMENTS AS MEASURED ALONG CATALINA STREET, OF PARCEL 2, OF PARCEL MAP NO.
2044, FILED DECEMBER 16, 1976, BOOK 94 OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY
RECORDS
RESERVING FROM PARCEL ONE:
A. NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE NORTHWESTERN LINE THEREOF BEING THE
NORTHWESTERLY LINE OF SAID PARCEL TWO OF PARCEL MAP NO. 2044.
B. A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE SOUTHEASTERN LINE THEREOF LYING SOUTHEASTERLY
415 FEET, RIGHT ANGLE MEASUREMENTS, AS MEASURED ALONG CATALINA STREET, FROM THE
NORTHWESTERLY LINE OF SAID PARCEL TWO, OF PARCEL NO, 2044.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE SOUTHERLY LINE THEREOF BEING THE NORTHWESTERN
LINE OF PARCEL TWO, PARCEL MAP NO. 2044 FILED DECEMBER l6, 1976, BOOK 94 OF
PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
A NON-EXCLUSIVE EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS PURPOSES OVER A
STRIP OF LAND 30 FEET WIDE, THE NORTHWESTERLY LINE THEREOF LYING SOUTHEASTERLY
415 FEET, RIGHT ANGLE MEASUREMENTS AS MEASURED ALONG CATALINA STREET, FROM THE
NORTHWESTERLY LINE OF PARCEL TWO, PARCEL MAP NO. 2044, FILED DECEMBER 16, 1976,
BOOK 94 OF PARCEL MAPS, PAGE 21, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO, 080G-0932-030
EXHIBIT "C"
Page 1 of 5
58
EXHIBIT "C"
(0000 Xxxxx Xxxxxx)
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
Hayward, County of Alameda, State of California, and described as follows:
PARCEL 1:
XXX 0, XX XXXXX XX XXX XXX XX XXXXX 0000, FILED JUNE 10, 1969 IN BOOK 62 OF
MAPS, PAGE 14, ALAMEDA COUNTY RECORDS.
PARCEL 2:
AN EASEMENT FOR RAILWAY PURPOSES IN, ON, OVER, UNDER AND ALONG A PORTION OF XXX
0, XX XXXXX XX XXX XXX XX XXXXX 0000, FILED JUNE 10, 1969 IN BOOK 62 OF MAPS,
PAGE 14, ALAMEDA COUNTY RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERN LINE OF SAID LOT 6, DISTANT THEREON NORTH 0
degrees 38' 41" WEST 40 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE FROM SAID
POINT OF BEGINNING EASTERLY ALONG A LINE PARALLEL WITH AND PERPENDICULARLY
DISTANT NORTHERLY 40 FEET FROM THE SOUTHERN LINE OF SAID LOT 6, NORTH 89 degrees
21' 19" EAST 90 FEET TO A POINT THEREON; THENCE LEAVING SAID PARALLEL LINE NORTH
81 degrees 10' 57" WEST 91.241 FEET TO A POINT ON THE SAID WESTERN LINE OF LOT
6; THENCE SOUTHERLY ALONG LAST SAID LINE SOUTH 0 degrees 38' 41" EAST 15 FEET TO
THE POINT OF BEGINNING.
ASSESSOR'S PARCEL NOS. 439-0058-015-02
439-0058-015-01
EXHIBIT "C"
Page 2 Of 5
59
EXHIBIT "C"
(0000 Xxxxx Xxxxxx)
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
Hayward, County of Alameda, State of California, and described as follows:
XXX 0, XX XXXXX XX XXX XXX XX "XXXXX 0000, C. C. & X. XXXXXXX INDUSTRIAL CENTER,
CITY OF HAYWARD, ALAMEDA COUNTY, CALIFORNIA" FILED JUNE 10, 1969, IN MAP BOOK
62, PAGES 14 AND 15 ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NO. 439-0058-016-02
EXHIBIT "C"
Page 3 of 5
60
EXHIBIT "C"
(00000 Xxxxxxx Xxxxxxxxx)
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
Hayward, County of Alameda, State of California, and described as follows:
LOTS 3 AND 4, AS SAID LOTS ARE SHOWN ON THE MAP OF "TRACT 3046, C. C. & F.
INDUSTRIAL CENTER, HAYWARD AIR TERMINAL, UNIT NO. 3, CITY OF HAYWARD, ALAMEDA
COUNTY, CALIFORNIA," FILED AUGUST 14, 1969, IN BOOK 63 OF MAPS, PAGES 8 THROUGH
l4, INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY.
ASSESSOR'S PARCEL NO. 000-0000-000
EXHIBIT "C"
Page 4 of 5
61
EXHIBIT "C"
(21118 Cabot Boulevard)
All that certain real property, together with all appurtenances thereto
and all improvements now or hereafter located thereon, situated in the City of
Hayward, County of Alameda, State of California, and described as follows:
PARCEL l, PARCEL MAP NO. 2360, FILED JANUARY 17, 1978, BOOK 101, OF PARCEL MAPS,
PAGE 13, ALAMEDA COUNTY RECORDS.
ASSESSOR'S PARCEL NOS. 439-0035-027-01
439-0035-027-02
EXHIBIT "C"
Page 5 of 5
62
ORDER NO. 16088
14300-14390 CATALINA STREET
l. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $6,297.04 OPEN
2ND INSTALLMENT: $6,297,04 OPEN
LAND $151,000.00
IMPROVEMENTS $999,737.00
A.P. NO. 080G-0932-030
CODE AREA 10-057
3. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED PURSUANT TO
CHAPTER 498, 0000 XXXXXXXX XX XXX XXXXX XX XXXXXXXXXX, WHICH CHAPTER
BECAME LAW ON JULY 29TH, 1983.
4. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED
IN THAT CERTAIN INSTRUMENT
RECORDED : SEPTEMBER 25, 1959, BOOK 9162, PAGE 181, OFFICIAL
RECORDS
GRANTED TO : PACIFIC GAS & ELECTRIC COMPANY
PURPOSE : PUBLIC UTILITIES
EFFECTS : NORTHEASTERLY 90.22 FEET
THE RIGHT TO THIN AND REMOVE TREES AS RESERVED IN THE ABOVE MENTIONED
INSTRUMENT.
SAID EASEMENT WAS ALSO RECORDED IN BOOK 2053 OF DEEDS, PAGE 245.
5. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN THE
DECLARATION
BY : WINDSOR LAND COMPANY, A PARTNERSHIP
RECORDED : JUNE 20, 1966, REEL 1790, IMAGE 422, OFFICIAL RECORDS
CONTAINS NO REVERSIONARY CLAUSE.
CONTAINS NO MORTGAGEE PROTECTION CLAUSE.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED NOVEMBER 14, 1966, REEL
1872, IMAGE 60, OFFICIAL RECORDS, BUT DELETING RESTRICTIONS, IF ANY, BASED
ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
MODIFICATION AND/OR AMENDMENT THEREOF, RECORDED AUGUST 7, 1974, REEL 3747,
IMAGE 4899 OFFICIAL RECORDS, BUT DELETING RESTRICTIONS, IF ANY, BASED ON
RACE, COLOR, RELIGION OR NATIONAL ORIGIN.
EXHIBIT "D"
Page 1 of 16
63
ORDER NO. 16088
6. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN THE
DECLARATION
BY : WINDSOR LAND COMPANY
RECORDED : NOVEMBER 29, 1968, REEL 2301, IMAGE 419, OFFICIAL
RECORDS
7. DECLARATION OF COVENANT TO PROVIDE RECIPROCAL EASEMENTS MADE BY XXXXXXX
XXXX AND ASSOCIATES, A LIMITED PARTNERSHIPS RECORDED MAY 6, 1976, REEL
4356, IMAGE 513, OFFICIAL RECORDS.
8. EASEMENT FOR OPEN SPACE AND ACCESS, AS SHOWN UPON THE FILED MAP.
AFFECTS: NORTHWESTERLY 30' AND THE SOUTHEASTERLY 30' OF SAID LAND
9. UNRECORDED LEASE UPON THE TERMS, COVENANTS, AND CONDITIONS PROVIDED
THEREIN
LESSOR : XXXXXXX XXXX AND ASSOCIATES, A LIMITED PARTNERSHIP
LESSEE : PRUDENTIAL INSURANCE COMPANY OF ALAMEDA, A NEW JERSEY
CORPORATION
DISCLOSED BY : ASSIGNMENT OF LEASE OF AGREEMENT
RECORDED : DECEMBER 2, 1977, REEL 5163, IMAGE 18, OFFICIAL
RECORDS, SERIES NO. 77-23874
10. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF $l,050,000.00.
DATED : NOVEMBER 28, 1977
TRUSTOR : XXXXXXX XXXX & ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : 000 XXXXXXXXXX XX., 00XX XX., XXX XXXXXXXXX, XXXXX.
00000
LOAN NO. : 2 169 512
RECORDED : DECEMBER 2, 1977, REEL 5163, IMAGE 12, OFFICIAL
RECORDS, SERIES NO. 77-238373
AS ADDITIONAL SECURITY FOR SUCH DEED OF TRUST THE LESSOR'S INTEREST UNDER
THE LEASE REFERRED TO IN ITEM NO. 9 ABOVE WERE ASSIGNED TO THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA BY INSTRUMENT RECORDED DECEMBER 2, 1977, REEL
5163, IMAGE 18, ALAMEDA COUNTY RECORDS.
EXHIBIT "D"
Page 2 of 16
64
ORDER NO, 16088
11. EASEMENT FOR OPEN SPACE AND VEHICULAR ACCESS AND THE INCIDENTS THERETO,
WHICH ENCUMBERS THE LAND DESCRIBED HEREIN, AS CREATED IN THAT CERTAIN DEED
OF TRUST
EXECUTED BY : XXXXXXX XXXX AND ASSOCIATES, A LIMITED PARTNERSHIP
RECORDED : DECEMBER 2, 1977, REEL 5163, IMAGE 12, OFFICIAL
RECORDS
AFFECTS : NORTHWESTERLY AND SOUTHEASTERLY 30 FEET
UPON RECONVEYANCE OF SAID DEED OF TRUST THIS EASEMENT WILL BE EXTINGUISHED
OF RECORD.
INQUIRY OF THE VESTEE SHOULD BE HAD AS TO ITS DESIRE TO PERMANENTLY CREATE
THIS SERVITUDE.
EXHIBIT "D"
Page 3 of 16
65
0000 XXXXX XXXXXX
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : $10,209.56 OPEN
2ND INSTALLMENT : $10,209.56 OPEN
LAND : $290,887.00
IMPROVEMENTS : $l,347,896.00
PERSONAL PPTY. : $13,381.00
A.P. NO. : 439-0058-015-02
CODE AREA : 25-005
2. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : NO TAXES DUE
2ND INSTALLMENT : NO TAXES DUE
LAND : NONE
IMPROVEMENTS : NONE
PERSONAL PPTY. : NONE
A.P. NO. : 439-0058-015-01
CODE AREA : 25-005
4. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED PURSUANT TO
CHAPTER 498, 0000 XXXXXXXX XX XXX XXXXX XX XXXXXXXXXX, WHICH CHAPTER
BECAME LAW ON JULY 29TH, 1983.
5. COVENANTS, CONDITIONS AND RESTRICTIONS OF THE XXXXXXX CITY REDEVELOPMENT
PROJECT, APPROVED ON FEBRUARY 5, 1956, AND ADOPTED BY ORDINANCE NO. 775 ON
APRIL 9, 1963, BY THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY. THE
STATEMENT OF INSTITUTION OF PROCEEDINGS THEREFORE WAS RECORDED APRIL 24,
1963, REEL 864, IMAGE 68, OFFICIAL RECORDS, INSTRUMENT NO. AU-69404. SAID
COVENANTS, CONDITION AND RESTRICTIONS WERE CONTAINED IN AN INSTRUMENT
JANUARY 23, 1967, REEL 1905, IMAGE 425, OFFICIAL RECORDS.
6. COVENANTS, CONDITIONS AND RESTRICTIONS AS SET FORTH IN A DECLARATION OF
RESTRICTIONS, BY DELETING THEREFROM ANY RESTRICTIONS WHICH ARE BASED UPON
RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN, RECORDED JANUARY 21, 1969,
REEL 2331, IMAGE 228, OFFICIAL RECORDS.
SAID RESTRICTIONS WERE IMPOSED UPON PREMISES BY INSTRUMENT RECORDED APRIL
25, 1969, REEL 2390, IMAGE 183, SERIES NO. 69-45885, ALAMEDA COUNTY
RECORDS.
EXHIBIT "D"
Page 4 of 16
66
ORDER NO. 16082
7. EASEMENT FOR PUBLIC UTILITY PURPOSE, AS SHOWN UPON THE FILED MAP.
AFFECTS : THE SOUTHERN 10 FEET AND THE NORTHERN 5 FEET OF
PARCEL 1 OF PREMISES.
8. EASEMENT FOR RAILROAD PURPOSES, AS SHOWN UPON THE FILED MAP.
AFFECTS : THE NORTHERN 30 FEET OF THE SOUTHERN 40 FEET OF
PARCEL 1 OF PREMISES.
9. EASEMENT FOR STORM DRAINAGE PURPOSES, AS SHOWN UPON THE FILED MAP.
AFFECTS : THE EASTERN 10 FEET OF PARCEL 1 OF PREMISES.
10. EASEMENT FOR STORM DRAINAGE PURPOSES AND INCIDENTAL PURPOSES, AS CONVEYED
TO CITY OF HAYWARD, BY INSTRUMENT RECORDED MARCH 11, 1970, REEL 2580,
IMAGE 105, INSTRUMENT NO. 25482, OF OFFICIAL RECORDS.
AFFECTS : THE WESTERN 5 FEET OF THE EASTERN 15 FEET OF PARCEL 1
OF PREMISES
1l. EASEMENT FOR STORM DRAINAGE PURPOSES AND INCIDENTAL PURPOSES, AS RESERVED
IN THE DEED FROM CABOT, CABOT & XXXXXX XXXXXXX PROPERTIES, INC., RECORDED
MARCH 16, 1970, REEL 2582, IMAGE 576 INSTRUMENT NO. 27209 OF OFFICIAL
RECORDS.
AFFECTS : THE WESTERN 5 FEET OF THE EASTERN 15 FEET OF PARCEL 1
OF PREMISES.
12. EASEMENT FOR RAILROAD PURPOSES AND INCIDENTAL PURPOSES, AS RESERVED IN THE
DEED FROM CABOT, CABOT & XXXXXX XXXXXXX PROPERTIES, INC., RECORDED MARCH
16, 1970 REEL 2582, IMAGE 576 INSTRUMENT NO. 27209, OF OFFICIAL RECORDS.
AFFECTS : THE NORTHERN 30 FEET OF THE SOUTHERN 40 FEET OF
PARCEL 1 OF PREMISES.
13. UNRECORDED LEASE UPON THE TERMS, COVENANTS, AND CONDITIONS PROVIDED
THEREIN,
LESSOR : XXXXXXX XXXX & ASSOCIATES, A GENERAL PARTNERSHIP
LESSEE : ANCHOR HOCKING CORPORATION, A DELAWARE CORPORATION
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : SEPTEMBER 27, 1971, REEL 2958, IMAGE 248, OFFICIAL
RECORDS.
EXHIBIT "D"
Page 5 of 16
67
ORDER NO. 16082
15. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF $1275,000.00.
DATED : SEPTEMBER 2, 1971
TRUSTOR : XXXXXXX XXXX AND ASSOCIATES, A GENERAL PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : 000 XXXXXXXXXX XX., 00XX XX., XXX XXXXXXXXX,
XXXXXXXXXX 00000
LOAN NO. : NOT SHOWN
RECORDED : SEPTEMBER 27, 1971, REEL 2958, IMAGE 242, OFFICIAL
RECORDS.
SAID DEED OF TRUST HAS BEEN SUBORDINATED TO THE LEASE IN EXCEPTION NO. 17,
HEREIN BY INSTRUMENT RECORDED AUGUST 17, 1973, REEL 3491, IMAGE 31,
OFFICIAL RECORDS.
AS ADDITIONAL SECURITY FOR SUCH DEED OF TRUST, THE LESSOR'S INTEREST UNDER
THE LEASES REFERRED TO IN ITEMS NO. 13 AND 14 ABOVE WERE ASSIGNED TO THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA BY INSTRUMENTS RECORDED SEPTEMBER
27, 1971, IN REEL 2958, IMAGE 248 AND REEL 2958, IMAGE 252, OFFICIAL
RECORDS.
16. EASEMENT FOR RAILROAD, TRANSPORTATION AND COMMUNICATION PURPOSES AND
INCIDENTAL PURPOSES, AS CONVEYED TO SOUTHERN PACIFIC TRANSPORTATION
COMPANY, A CORPORATION, BY INSTRUMENT RECORDED JULY 3, 1973, REEL 3455,
IMAGE 337, OF OFFICIAL RECORDS.
AFFECTS : THE SOUTHERLY PORTION OF PREMISES..
17. LEASE FOR THE TERM AND UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
DATED : AUGUST 4, 1973
LESSOR : XXXXXXX XXXX AND ASSOCIATES, A CALIFORNIA GENERAL
PARTNERSHIP
LESSEE : UNITED GROCERS, LTD., A CALIFORNIA CORPORATION
TERM : 5 YEARS
AS DISCLOSED BY THAT CERTAIN SHORT FORM LEASE, MADE BY AND BETWEEN SAID
PARTIES, RECORDED AUGUST 17, 1973, REEL 3491, IMAGE 26, OFFICIAL RECORDS.
SAID LEASE CONTAINS PROVISIONS FOR RENEWALS.
EXHIBIT "D"
Page 6 of 16
68
ORDER NO. 16085
0000 XXXXX XXXXXX
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : $8,688,06 OPEN
2ND INSTALLMENT : $8,688.06 OPEN
LAND : $234,195.00
IMPROVEMENTS : $1,160,915.00
PERSONAL PPTY. : $13,38l.00
A.P. NO. : 439-0058-016-02
CODE AREA : 25-005
2. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : NO TAXES DUE
2ND INSTALLMENT : NO TAXES DUE
LAND : NONE
IMPROVEMENTS : NONE
PERSONAL PPTY. : NONE
A.P. NO. : 439-0058-016-0l
CODE AREA : 25-005
4. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED PURSUANT TO
CHAPTER 498, 0000 XXXXXXXX XX XXX XXXXX XX XXXXXXXXXX, WHICH CHAPTER
BECAME LAW ON JULY 29TH, 1983.
5. COVENANTS, CONDITIONS AND RESTRICTIONS OF THE XXXXXXX CITY REDEVELOPMENT
PROJECT, APPROVED ON FEBRUARY 5, 1956, AND ADOPTED BY ORDINANCE NO. 775 ON
APRIL 9, 1963, BY THE BOARD OF SUPERVISORS OF ALAMEDA COUNTY. THE
STATEMENT OF INSTITUTION OF PROCEEDINGS THEREFORE WAS RECORDED APRIL 24,
1963, REEL 864, IMAGE 68, OFFICIAL RECORDS, INSTRUMENT NO. AU/69404. SAID
COVENANTS, CONDITION AND RESTRICTIONS WERE CONTAINED IN AN INSTRUMENT
JANUARY 23, 1967, REEL 1905, IMAGE 425, OFFICIAL RECORDS.
6. COVENANTS, CONDITIONS AND RESTRICTIONS AS SET FORTH IN A DECLARATION OF
RESTRICTIONS, BUT DELETING THEREFROM ANY RESTRICTIONS WHICH ARE BASED UPON
RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN, RECORDED JANUARY 21, 1969,
REEL 2331, IMAGE 2289, OF OFFICIAL RECORDS.
SAID RESTRICTIONS WERE IMPOSED UPON PREMISES BY INSTRUMENT RECORDED APRIL
25, 1969, ON REEL 2390, IMAGE 183, INSTRUMENT NO. 45885 ALAMEDA COUNTY
RECORDS.
EXHIBIT "D"
Page 7 of 16
69
ORDER NO. 16085
7. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : PUBLIC UTILITIES
AFFECTS : THE SOUTHERN 10 FEET, THE WESTERN 5 FEET AND THE
NORTHERN 5 FEET OF PREMISES
8. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : RAILROAD PURPOSES
AFFECTS : THE NORTHERN 30 FEET OF THE SOUTHERN 40 FEET OF
PREMISES
9. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN THE
DECLARATION
BY : CABOT, CABOT AND XXXXXX, XXXXXXX PROPERTIES, INC., A
DELAWARE CORPORATION
RECORDED : MARCH 31, 1971, REEL 2819, IMAGE 88, OFFICIAL
RECORDS
10. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $1,225,000.00
DATED : XXXXX 0, 0000
XXXXXXX : XXXXXXX XXXX & ASSOCIATES, A GENERAL PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : 000 XXXXXXXXXX XX., 00XX XXXXX, XXX XXXXXXXXX, XXXXX.
00000
LOAN NO. : 2 166 405
RECORDED : MARCH 21, 1972, REEL 3086, IMAGE 605, SERIES NO.
72-36003, OFFICIAL RECORDS
AS ADDITIONAL SECURITY FOR THE OBLIGATION SECURED BY SAID INSTRUMENT, THE
LESSOR'S INTEREST IN THE LEASE REFERRED TO IN EXCEPTION NO. 11 HEREIN WAS
ASSIGNED TO SAID BENEFICIARY BY INSTRUMENT RECORDED MARCH 21, 1972, REEL
3086, IMAGE 610, SERIES NO. 72-36004, OFFICIAL RECORDS.
SAID DEED OF TRUST WAS MODIFIED BY INSTRUMENT RECORDED MARCH 16, 1973,
REEL 3365, IMAGE 515, OFFICIAL RECORDS.
ll. UNRECORDED LEASE UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
LESSOR : XXXXXXX XXXX & ASSOCIATES, A GENERAL PARTNERSHIP
LESSEE : XXXXXXX X. XXXX, XX. AND XXXXX XXXX XXXX, HIS WIFE
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : MARCH 21, 1972, REEL 3086, IMAGE 610, OFFICIAL
RECORDS.
EXHIBIT "D"
Page 8 of 16
70
ORDER NO. 16085
12. EASEMENT FOR RAILROAD, TRANSPORTATION AND COMMUNICATION PURPOSES AND
INCIDENTAL PURPOSES, AS CONVEYED TO SOUTHERN PACIFIC TRANSPORTATION
COMPANY, A CORPORATION, BY INSTRUMENT RECORDED JULY 3, 1973, REEL 3455,
IMAGE 337, OF OFFICIAL RECORDS.
AFFECTS : THE SOUTHERLY PORTION OF PREMISES..
EXHIBIT "D"
Page 9 of 16
71
ORDER No. 16089
20389 XXXXXXX XXXXXXXXX
0X. XXXXXX XXX XXXX TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $7,375.98 OPEN
2ND INSTALLMENT: $7,375.98 OPEN
LAND : $166,451.00
IMPROVEMENTS : $804,279,00
A.P. No. : 000-0000-000
CODE AREA : 25-060
1B. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $4,623.24 OPEN
2ND INSTALLMENT: $4,623.24 OPEN
LAND : -$41.00
IMPROVEMENTS : $788,520.00
A.P. NO. : 000-0000-000
CODE AREA : 25-060
REASON : ESCAPED ASSESSMENT
ACTION : ESCAPED ASSESSMENT 1983
lC. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $4,615.80 OPEN
2ND INSTALLMENT: $4,615.80 OPEN
LAND : -$28.00
IMPROVEMENTS : $780,716.00
A.P. NO. : 000-0000-000
CODE AREA : 25-060
REASON : ESCAPED ASSESSMENT
ACTION : ESCAPED ASSESSMENT 1982
1D. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $4,509.59 OPEN
2ND INSTALLMENT: $4,509.59 OPEN
LAND : -$31.00
IMPROVEMENTS : $765,408.00
A.P. NO. : 000-0000-000
CODE AREA : 23-060
REASON : ESCAPED ASSESSMENT
ACTION : ESCAPED ASSESSMENT 1981
1E. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT: $4,814.93 OPEN
2ND INSTALLMENT: $4,814.93 OPEN
IMPROVEMENTS : $750,400.00
A.P. NO. : 000-0000-000
CODE AREA : 25-060
REASON : ESCAPED ASSESSMENT
ACTION : ESCAPED ASSESSMENT 1980
EXHIBIT "D"
Page 10 of 16
72
ORDER NO. 16089
3. ASSESSMENT FOR XXXXXXX XXX XXXXXXXX XXXXX XXX 0000
ASSESSMENT NO. 62, SERIES J
ISSUED JANUARY 1, 1970 FOR (NOT SHOWN) PAYABLE IN 50 INSTALLMENTS WITH
COUNTY TAXES. ALL AMOUNTS PAID TO AND INCLUDING 2ND INSTALLMENT OF 1983 -
1984 TAXES. AMOUNT TO PAY IN FULL (NOT INCLUDING AMOUNTS PAYABLE WITH 1984
- 1985 TAX INSTALLMENTS) (SEE ASST.#61) WHICH INCLUDES (NOT SHOWN)
PRINCIPAL AND (NOT SHOWN) INTEREST IF PAID PRIOR TO AUGUST 1, 1985. SAID
BOND PAYABLE TO CITY OF HAYWARD.
4. ASSESSMENT FOR XXXXXXX XXX XXXXXXXX XXXXX XXX 0000
ASSESSMENT NO. 6l (SEE NOTE), SERIES J
ISSUED JANUARY 1, 1970 FOR $46,150.52 PAYABLE IN 50 INSTALLMENTS WITH
COUNTY TAXES. ALL AMOUNTS PAID TO AND INCLUDING 2ND INSTALLMENT OF 1983 -
1984 TAXES. AMOUNT TO PAY IN FULL (NOT INCLUDING AMOUNTS PAYABLE WITH 1984
- 1985 TAX INSTALLMENTS) $23,517,84 WHICH INCLUDES $18,674.46 PRINCIPAL
AND $4,843.38 INTEREST IF PAID PRIOR TO AUGUST 1, 1985. SAID BOND PAYABLE
TO CITY OF HAYWARD.
NOTE: ASST. #61 AND 62 ARE COMBINED.
5. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED PURSUANT TO
CHAPTER 498, 0000 XXXXXXXX XX XXX XXXXX XX XXXXXXXXXX, WHICH CHAPTER
BECAME LAW ON JULY 29TH, 1983.
6. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN, CONTAINED IN THE
DEED
EXECUTED BY : CITY OF HAYWARD, A MUNICIPAL CORPORATION
RECORDED : JANUARY 16, 1967, REEL 1902, IMAGE 397, SERIES NO.
AZ-4478, OFFICIAL RECORDS
7. EASEMENT AS CONTAINED IN THE DECLARATION ABOVE REFERRED TO AS FOLLOWS:
FOR : RIGHT OF FLIGHT FOR PASSAGE OF AIRCRAFT
AFFECTS : PORTION OF AIRSPACE
EXHIBIT "D"
Page 11 of 16
73
ORDER NO. 16089
8. COVENANTS, CONDITIONS AND RESTRICTIONS IN THE DECLARATION OF RESTRICTIONS
EXECUTED BY : CABOT, CABOT & XXXXXX XXXXXXX, PROPERTIES, INC.
RECORDED : JUNE 6, 1967, REEL 1975, IMAGE 605, SERIES NO.
AZ-52801, OFFICIAL RECORDS
RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION OR NATIONAL ORIGIN
ARE DELETED.
AND RE-RECORDED: JUNE 14, 1967, REEL 1980, IMAGE 934, SERIES NO. AZ-56218,
OFFICIAL RECORDS
SAID COVENANTS, CONDITIONS AND RESTRICTIONS WERE IMPOSED UPON PREMISES BY
INSTRUMENT RECORDED MAY 15, 1969, ON REEL 2402, IMAGE 690, SERIES NO.
54120, ALAMEDA COUNTY RECORDS.
SAID COVENANTS, CONDITIONS AND RESTRICTIONS HAVE BEEN INCORPORATED BY
REFERENCE THERETO IN A DEED
EXECUTED BY : CABOT, CABOT & XXXXXX XXXXXXX PROPERTIES, INC., A
DELAWARE CORPORATION
RECORDED : DECEMBER 26, 1969, REEL 2539, IMAGE 25, SERIES NO.
69-15699, OFFICIAL RECORDS
9. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : PUBLIC UTILITIES
AFFECTS : NORTHEASTERLY, EASTERLY AND SOUTHEASTERLY 5 FEET OF
PREMISES
10. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $805,000.00
DATED : AUGUST 2, 1978
TRUSTOR : XXXXXXX XXXX & ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : 000 XXXXXXXXXX XX., 00XX XX., XXX XXXXXXXXX, XXXXX.
00000
LOAN NO. : 2 169 653
RECORDED : AUGUST 9, 1978, REEL 5524, IMAGE 433, SERIES NO.
78-152841, OFFICIAL RECORDS
EXHIBIT "D"
Page 12 of 16
74
ORDER NO. 16089
AS ADDITIONAL SECURITY FOR THE OBLIGATION SECURED BY SAID INSTRUMENT, THE
LESSORS INTEREST IN THE LEASE(S) REFERRED TO IN EXCEPTION NO. 11 HEREIN
WAS ASSIGNED TO SAID BENEFICIARY BY INSTRUMENT RECORDED AUGUST 9, 1978,
REEL 5524, IMAGE 438, OFFICIAL RECORDS.
11. UNRECORDED LEASE UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
LESSOR : XXXXXXX XXXX & ASSOCIATES, A LIMITED PARTNERSHIP
LESSEE : SHAKLEE CORPORATION, A CALIFORNIA CORPORATION
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : AUGUST 9, 1978, REEL 5524, IMAGE 438, SERIES NO.
78-152842, OFFICIAL RECORDS
EXHIBIT "D"
Page 13 of 16
75
ORDER NO. 16090
21118 CABOT BOULEVARD
1. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : $13,432.13 OPEN
2ND INSTALLMENT : $13,432.13 OPEN
LAND : $243,127.00
IMPROVEMENTS : S1,442,280.00
PERSONAL PPTY. : $30,739.00
A.P. NO. : 439-0035-027-02
CODE AREA : 25-028
2. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1984 - 1985
1ST INSTALLMENT : NO TAXES DUE
2ND INSTALLMENT : NO TAXES DUE
A.P. NO. : 439-0035-027-01
CODE AREA : 25-028
4. THE LIEN OF SUPPLEMENTAL REAL PROPERTY TAXES, IF ANY, ASSESSED PURSUANT TO
CHAPTER 498, 0000 XXXXXXXX XX XXX XXXXX XX XXXXXXXXXX, WHICH CHAPTER
BECAME LAW ON JULY 29TH, 1983.
5. ASSESSMENT FOR LOC. IMP. DIST. #9 UNDER ACT OF 1915 ASSESSMENT NO. 4
(RE-SEGREGATED) SERIES CC PH.I ISSUED JULY 25, 1977 FOR $49,926.90 PAYABLE
IN 40 INSTALLMENTS WITH COUNTY TAXES. SAID BOND PAYABLE TO CITY OF
HAYWARD. PAID THROUGH 1978 - 1979 TAXES AMOUNT TO PAY IN FULL S46,126.15
WHICH INCLUDES $45,776.91 PRINCIPAL AND 20.39 INTEREST IF PAID PRIOR TO
AUGUST 1, 1982. PREPAYMENT PENALTY $228.85 BOND CALL CHARGE $100.00
(UPDATED BOND INFORMATION TO FOLLOW)
6. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : PUBLIC UTILITIES
AFFECTS : WESTERLY 10 FEET OF PREMISES
7. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED
IN THAT CERTAIN INSTRUMENT
RECORDED : OCTOBER 19, 1977, REEL 5098, IMAGE 746, OFFICIAL
RECORDS
GRANTED TO : THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY
PURPOSE : UNDERGROUND CONDUITS, PIPES
AFFECTS : WESTERLY 10 FEET OF PREMISES
EXHIBIT "D"
Page 14 of 16
76
ORDER NO. 16090
8. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : RAILROAD
AFFECTS : SOUTHEAST 15 FEET OF PREMISES
9. EASEMENT AS FOLLOWS AS SHOWN ON THE FILED MAP
FOR : BUILDING SETBACK
AFFECTS : THE SOUTHEAST 30 FEET OF PREMISES
10. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED
IN THAT CERTAIN INSTRUMENT
RECORDED : MAY 2, 1978, REEL 5373, IMAGE 294, OFFICIAL
RECORDS
GRANTED TO : SOUTHERN PACIFIC TRANSPORTATION COMPANY, A
DELAWARE CORPORATION
PURPOSE : RAILROAD, TRANSPORTATION AND COMMUNICATION
PURPOSES
AFFECTS : EASTERN PORTION OF PREMISES
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE REFERRED TO
11. COVENANTS, CONDITIONS AND RESTRICTIONS, BUT DELETING RESTRICTIONS, IF ANY,
BASED ON RACE, COLOR, RELIGION OR NATIONAL ORIGIN, CONTAINED IN THE
DECLARATION
BY : XXXXXXX LAND COMPANY, A CALIFORNIA CORPORATION
RECORDED : JULY 7, 1978, SERIES NO. 78-129034, OFFICIAL RECORDS
CONTAINS NO REVERSIONARY CLAUSE.
CONTAINS A MORTGAGEE PROTECTION CLAUSE.
12. EASEMENT FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED
IN THAT CERTAIN INSTRUMENT
RECORDED : JULY 7, 1978, SERIES NO. 78-129035, OFFICIAL RECORDS
RESERVED BY : XXXXXXX LAND COMPANY, A CORPORATION
PURPOSE : A STORM DRAINAGE PIPE LINE
AFFECTS : SOUTHERLY PORTION OF PREMISES
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE REFERRED TO.
13. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $1,300,000.00
DATED : JULY 5, 1978
TRUSTOR : XXXXXXX XXXX AND ASSOCIATES, A LIMITED PARTNERSHIP
TRUSTEE : TITLE INSURANCE AND TRUST COMPANY, A CALIFORNIA
CORPORATION
BENEFICIARY : THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
CORPORATION
ADDRESS : 000 XXXXX XXXXXX, XXXXXX, XXX XXXXXX
LOAN NO. : 2 169 643
RECORDED : JULY 7, 1978, REEL 5475, IMAGE 120, SERIES NO.
78-129036, OFFICIAL RECORDS
EXHIBIT "D"
Page 15 of 16
77
ORDER NO. 16090
AS ADDITIONAL SECURITY FOR THE OBLIGATION SECURED BY SAID INSTRUMENT, THE
LESSORS INTEREST IN THE LEASE REFERRED TO IN EXCEPTION NO. 14 HEREIN WAS
ASSIGNED TO SAID BENEFICIARY BY INSTRUMENT RECORDED JULY 7, 1978, REEL
5475, IMAGE 125, OFFICIAL RECORDS
14. UNRECORDED LEASE UPON THE TERMS AND CONDITIONS CONTAINED THEREIN
LESSOR : XXXXXXX XXXX AND ASSOCIATES, A LIMITED PARTNERSHIP
LESSEE : CLASS CONTAINERS CORPORATION
DISCLOSED BY : ASSIGNMENT OF LEASE AND AGREEMENT
RECORDED : JULY 79 1978, REEL 3475, IMAGE 125, SERIES NO.
78-129037, OFFICIAL RECORDS
EXHIBIT "D"
Page 16 of 16
78
EXHIBIT "E"
DESCRIPTION OF FACILITIES
The Facilities consist of a 21,185 square foot building located on a
1.445 acre site. The building is of reinforced masonry and steel frame
construction with a brick exterior. It includes 1,500 square feet of
air-conditioned office area and a radiation cell comprising 3,000 square
feet. The radiation cell is a monolithically poured, reinforced concrete
structure, with walls and roof being six feet thick, covering a 23-foot
deep, stainless steel lined, water pool. The balance of the building is
used for storage, loading and shipping materials.
The building site includes ample on-site parking and a loading dock
to the rear of the building. There are 9,000 feet of contoured landscaping
in front of the building, and four to twenty feet of landscaping along the
sides of the site.
The principal installed equipment consists of a computer-controlled
conveyor system and a quantity of Cobalt-60. The business of the Company
is to utilize the Cobalt-60 to sterilize materials--primarily medical
supplies--manufactured by other companies. The process also has potential
applications for sterilizing foodstuffs.
EXHIBIT "E"
Page 1 of 1
79
EXHIBIT "F"
a. All taxes for years subsequent to 1983.
b. Protective Covenants for Snapfinger Xxxxx Industrial Park as contained in
instrument dated December 13, 1973, recorded in Deed Book 3147, Page 235,
DeKalb County, Georgia, records.
c. 75 foot front building line restriction as shown on plat of survey by
Tri-County Land Surveying and Xxxxxx & Associates, Engineers, dated
October 7, 1983, and last revised October 31, 1983.
d. All zoning ordinances affecting the property.
e. General utility, sewer and drainage easements affecting the property.
EXHIBIT "F"
Page 1 of 1
80
[XXXXX FARGO BANK LETTERHEAD]
REVOCABLE STANDING APPROVAL
OF BOND PROCEED DISBURSEMENTS
March 20, 1985
Bank One Trust Company, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Trust Administration
Re: $5,250,000 Development Authority of DeKalb County Variable Rate
Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project), Series 1985
Ladies and Gentlemen:
Pursuant to Section 3.3 of that certain Loan Agreement, dated March 1,
1985 (the "Loan Agreement"), between the Development Authority of DeKalb County
("Issuer") and Radiation Sterilizers, Incorporated ("Borrower"), relating to the
disbursement (collectively, "Disbursements") of the sale proceeds of the
above-referenced bonds, our approval is required for each Disbursement. Pursuant
to that certain Letter of Credit Agreement dated March 1, 1985 (the
"Reimbursement Agreement"), between Borrower and us, Borrower has represented
and warranted that each of the conditions to disbursement set forth in Exhibit
"B" to the Reimbursement Agreement (the "Conditions to Disbursement" has been
fulfilled.
This letter shall constitute our standing approval to all Disbursements
requested by Borrower, as required pursuant to Section 5.2 of the Reimbursement
Agreement, This approval shall be revoked (a) automatically, without notice, in
the event that you learn, or (b) upon written or telephonic notice to you that
we have learned, that any Condition to Disbursement was not on the date of this
Agreement, or has since ceased to be, fulfilled.
Very truly yours,
XXXXX FARGO BANK, N.A.
/s/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx
Vice President
