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EXHIBIT 10.33
$5,250,000
DEVELOPMENT AUTHORITY OF DEKALB COUNTY
Variable Rate Demand
Industrial Development Revenue Bonds
(Radiation Sterilizers, Incorporated Project)
Series 0000
XXXX XXXXXXXX AGREEMENT
March 12, 1985
On the basis of the representations, warranties and covenants contained
in this Bond Purchase Agreement and upon the terms and conditions contained in
this Bond Purchase Agreement, the undersigned, Prudential-Bache Securities Inc.
(the "Underwriter"), hereby offers to purchase from Development Authority of
DeKalb County (the "Issuer") up to $5,250,000 aggregate principal amount its
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project), Series 1985 (the "Bonds"), to be issued
under and pursuant to a trust indenture dated as of March 1, 1985 (the
"Indenture") between the Issuer and Bank One Trust Company, N.A., as trustee
(the "Trustee").
SECTION 1. ISSUER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
By the Issuer's execution, delivery and acceptance hereof the Issuer
hereby represents and warrants to, and agrees with, the Underwriter that:
(a) The Issuer is a body corporate and politic of the
State of Georgia. By virtue of the authority of the Constitution and
laws of the State of Georgia (the "State"), and particularly the
Development Authorities Law, Ga. Laws 1969, p. 137 et seq. (O.C.G.A.
36-62-1 et seg.), as amended the "Act"), the Issuer is authorized to
issue the Bonds to finance the Facilities, as defined in a loan
agreement dated as of March 1, 1985 (the "Agreement") between the
Issuer and Radiation
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Sterilizers, Incorporated, a California corporation (the "Company"),
and to pledge the payments to be received pursuant to the Agreement as
security for the payment of the principal of and premium, if any, and
interest on the Bonds.
(b) The Issuer has complied with all provisions of the
Constitution and laws of the State, including the Act, and has full
power and authority to consummate all transactions contemplated by this
Bond Purchase Agreement, the Indenture or the Agreement.
(c) The information describing the Issuer in the Offering
Statement of even date herewith (the "Offering Statement") to be used
in connection with the offering and sale of the Bonds by the
Underwriter under the caption "THE ISSUER" as of the Closing Date, as
hereinafter defined, is true and does not contain any untrue statement
of a material fact.
(d) The Issuer has duly authorized all necessary action for:
(1) the issuance and sale of the Bonds upon the terms set forth herein;
(2) the execution and delivery of the Indenture providing for the
issuance of and security for the Bonds (including the pledge by the
Issuer of the payments to be received pursuant to the Agreement
sufficient to pay the principal of and premium, if any, and interest on
the Bonds); (3) appointing the Trustee as Trustee, Paying Agent and
Bond Registrar under the Indenture; (4) the use of the Offering
Statement by the Underwriter in connection with the offer and sale of
the Bonds (provided, however, that the Issuer neither has nor will
assume any responsibility for the accuracy or completeness of the
information contained in the Offering Statement or in the Appendices
attached thereto, except such information as relates to the Issuer
under the caption "THE ISSUER"); (5) the financing of the Facilities;
(6) the execution, delivery, receipt and due performance of this Bond
Purchase Agreement, the Bonds, the Indenture, the Agreement and any and
all such other agreements and documents as may be required to be
executed, delivered and received by the Issuer in order to carry out,
give effect to and consummate the transactions contemplated hereby or
by the Indenture or the Agreement; and (7) the carrying out, giving
effect to and consummation of the transactions contemplated hereby or
by the Indenture or the Agreement.
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(e) There is no action, suit, proceeding, inquiry or
investigation at law or in equity or before or by any court, public
board or body pending or, to the knowledge of the Issuer; threatened
against or affecting the Issuer, or any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely
affect the transactions contemplated hereby or by the Indenture or the
Agreement or the validity of the Bonds, the Indenture, the Agreement,
this Bond Purchase Agreement or any agreement or instrument to which
the Issuer is a party and which is used or contemplated for use in the
consummation of the transactions contemplated hereby or by the
Indenture or the Agreement.
(f) The Issuer's authorization of the use of the Offering
Statement, and the execution and delivery of this Bond Purchase
Agreement, the Bonds, the Indenture, the Agreement and the other
agreements contemplated hereby or by the Indenture or the Agreement
will not contravene any law governing the Issuer and will not conflict
with any provision of the Act.
(g) The Issuer has not been notified of any listing or
proposed listing by the Internal Revenue Service to the effect that the
Issuer is a bond issuer whose arbitrage certifications may not be
relied upon.
SECTION 2. COMPANY'S REPRESENTATIONS, WARRANTIES, AND AGREEMENTS.
To induce the Issuer and the Underwriter to enter into this Bond
Purchase Agreement, and in consideration of the foregoing and the execution and
delivery of this Bond Purchase Agreement, the Company represents, warrants and
covenants to and with the Issuer and the Underwriter as follows:
(a) The financial statements provided to the Underwriter in
connection with the offer and sale of the Bonds by the Underwriter
present fairly its financial position as of the dates indicated therein
and the results of operation for the periods specified therein, and
such financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied in all
material respects with respect to the periods involved, except as may
otherwise be disclosed to the Underwriter or in the Offering Statement.
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(b) The descriptions and information to be contained in the
Offering Statement at the Closing Date, as defined herein, are true and
do not contain any untrue statement of material fact or omit to state a
material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that none of the representations and
warranties in this Bond Purchase Agreement shall apply to the
information contained under the caption "THE ISSUER" or in Appendix B
thereto (relating to Xxxxx Fargo Bank, N.A. (the "Bank")).
(c) It will not take or omit to take any action which will in
any way result in the proceeds from the sale of the Bonds being applied
in a manner inconsistent with the provisions of the Agreement and the
Indenture, including the provisions with respect to "arbitrage"
therein.
(d) There is no action, suit, proceeding, inquiry or
investigation at law or in equity or before or by any public board or
body pending or threatened against or affecting it or any basis
therefor, wherein an unfavorable decision, ruling or finding would have
a material adverse effect on the transactions contemplated by this Bond
Purchase Agreement, the Indenture or the Agreement or would adversely
affect the validity or enforceability of the Bonds, the Indenture, the
Agreement or the Letter of Credit Agreement dated as of March 1, 1985
(the "Credit Agreement") between the Company and the Bank pursuant to
which an irrevocable letter of credit (the "Letter of Credit") will be
issued by the Bank.
(e) The Agreement, this Bond Purchase Agreement and the Credit
Agreement, when executed and delivered by the Company, will constitute
the legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally.
(f) The execution and delivery of the Agreement, the Credit
Agreement and this Bond Purchase Agreement, and the performance by the
Company of its obligations under the foregoing, (i) have been duly
authorized by all necessary corporate action of the Company and no
approval or other action by any governmental authority or agency
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is required in connection therewith; (ii) do not and will not violate
the Articles of Incorporation or Bylaws of the Company, or any existing
court order by which the Company is bound, and such actions do not and
will not constitute a default under any existing agreement, indenture,
mortgage, lease, note or other obligation or instrument to which the
Company is a party; and (iii) will not be subject to the lien, pledge
or encumbrance of any existing agreement or document to which the
Company is a party (excluding any lien, pledge or encumbrance arising
under the Agreement and the Credit Agreement).
SECTION 3. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless the Issuer and the
Underwriter, and any member, officer, official or employee of the Issuer or the
Underwriter, and each person, if any, who controls the Underwriter, within the
meaning of Section 15 of the Securities Act of 1933, as amended (collectively
the "Indemnified Parties"), against any and all losses, claims, damages,
liabilities or expenses whatsoever caused by any untrue statement or misleading
statement or allegedly misleading statement of a material fact contained in the
Offering Statement or caused by any omission or alleged omission from the
Offering Statement of any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading, except insofar as such losses claims, damages, liabilities
or expenses are caused by any such untrue or misleading statement or omission or
allegedly untrue or misleading statement or omission in the information
contained under the caption "The Issuer" or in Appendix B thereto.
If any action shall be brought against one or more of the Indemnified
Parties based upon the Offering Statement and in respect of which indemnity may
be sought against it, the Indemnified Parties shall promptly notify the Company
in writing, and the Company shall promptly assume the defense thereof, including
the employment of counsel, the payment of all expenses and the right to
negotiate and consent to settlement. Any one or more of the Indemnified Parties
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Indemnified Parties unless
employment of such counsel has been specifically authorized by the Company. The
Company shall not be liable for any settlement of any such action effected
without its consent by any of the
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Indemnified Parties, but if settled with the consent of the Company or if there
be a final judgment for the plaintiff in any such action against the Company or
any of the Indemnified Parties, with or without the consent of the Company, the
Company agrees to indemnify and hold harmless the Indemnified Parties to the
extent provided in this Bond Purchase Agreement.
SECTION 4. PURCHASE, SALE AND DELIVERY OF THE BONDS.
On the basis of the representations, warranties and covenants of the
Issuer and the Company contained herein, and subject to the terms and conditions
herein set forth, at the Closing Time, as defined herein, the Underwriter agrees
to purchase from the Issuer and the Issuer agrees to sell to the Underwriter the
Bonds at 98.5% of the aggregate principal amount thereof.
The Bonds shall be issued under and secured as provided in the
Indenture. The Bonds will be payable (except to the extent payable from proceeds
of the sale of the Bonds and the earnings from the temporary investment thereof)
solely out of the payments received under the Agreement (including moneys paid
under the Letter of Credit). The Bonds shall be further secured by the Letter of
Credit. The Bonds shall mature on March 1, 2005, shall bear interest at a
variable interest rate (subject to conversion to a fixed interest rate), provide
a put option to the owners thereof and be subject to redemption, all as set
forth in the Indenture.
Payment for the Bonds shall be made in immediately available funds by
federal wire transfer or by certified or official bank check or draft payable to
the order of the Trustee for the account of the Issuer, at such place, time and
date as shall be mutually agreed upon by the Issuer and the Underwriter. The
date of such delivery and payment is herein called the "Closing Date," and the
hour and date of such delivery and payment is herein called the "Closing Time."
The delivery of the Bonds shall be made in definitive form and issued to and
registered in the name of the Underwriter, except to the extent that the
Underwriter may request the delivery of certain of the Bonds registered as to
other persons, and in such denominations as authorized by the Indenture as the
Underwriter shall specify in writing at least 24 hours prior to the Closing
Time. The Bonds shall be available for examination and packaging by the
Underwriter at least 24 hours prior to the Closing Time.
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SECTION 5. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS.
The Underwriter's obligations under this Bond Purchase Agreement shall
be subject to the due performance by the Issuer and the Company of their
respective obligations and agreements to be performed hereunder at or prior to
the Closing Time and to the accuracy of and compliance with the Issuer's and the
Company's representations and warranties contained herein, as of the date hereof
and as of the Closing Time, and are also subject to the following conditions:
(a) The Bonds, the Indenture, the Agreement, the Credit
Agreement and the Letter of Credit shall each have been duly
authorized, executed and delivered in the form mutually agreed upon by
the Issuer, the Underwriter, the Bank and the Company.
(b) At the Closing Time, the Underwriter shall receive:
(1) The opinions dated the Closing Date of (i) King &
Spalding, Bond Counsel, relating to the valid authorization
and issuance of the Bonds, the due authorization, execution
and delivery of the Indenture and the Agreement, the
tax-exempt status of the Bonds and certain other matters; (ii)
Xxxxxx Xxxxxx, Esq., counsel to the Company, relating to the
due organization and existence of the Company, the due
authorization, execution and delivery of the Agreement, the
Credit Agreement and this Bond Purchase Agreement and certain
other matters; (iii) Sheppard, Mullin, Xxxxxxx & Hampton,
counsel to the Bank, relating to the valid authorization and
issuance of the Letter of Credit and certain other matters;
(iv) Gingher & Xxxxxxxxxxx, counsel to the Trustee, relating
to certain matters with regard to the Trustee; (v) Chestnut &
Xxxxxxxxxx, P.C., counsel to the Issuer, relating to certain
matters with regard to the Issuer; and (vi) Xxxxx Xxxx &
Xxxxxxxx, counsel to the Underwriter, relating to certain
matters of federal bankruptcy law and federal securities law;
(2) A certificate, satisfactory to the Underwriter,
of the Chairman of the Issuer, dated as of the Closing Date,
to the effect that: (i) the Issuer has duly performed all
obligations to be performed by it at or prior to the Closing
Time and that each of the representations and warranties given
by the Issuer and contained herein is true as
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of the Closing Date; (ii) the Issuer has authorized, by all necessary
action, the execution, delivery, receipt and due performance of the
Bonds, the Indenture, the Agreement and any and all such other
agreements and documents as may be required to be executed, delivered
and received by the Issuer to carry out, give effect to and consummate
the transactions contemplated hereby; (iii) no litigation is pending,
or to such Chairman's knowledge threatened, to restrain or enjoin the
issuance or sale of the Bonds or in any way affecting any authority for
or the validity of the Bonds, the Indenture, the Agreement, this Bond
Purchase Agreement or the Issuer's existence or powers or the Issuer's
right to use the proceeds of the Bonds to finance the Facilities; and
(iv) the execution, delivery, receipt and due performance of the Bonds,
the Indenture, the Agreement and the other agreements contemplated
hereby under the circumstances contemplated hereby or by the Indenture
or the Agreement and the Issuer's compliance with the provisions
thereof comply with the Act;
(3) Certificates, satisfactory in form and substance
to the Underwriter, of the President and the Secretary of the Company,
or such other officers acceptable to the Underwriter, dated as of the
Closing Date, to the effect that (i) since the date as of which
information is given in Appendix A to the Offering Statement (including
the documents to be incorporated by reference therein), if any, or any
financial information described in Section 2(a) of this Bond Purchase
Agreement, there has not been any material adverse change in the
business, properties, financial position or results of operations of
the Company, whether or not arising from transactions in the ordinary
course of business, and since such date, except in respect of the Bonds
and in the ordinary course of business, the Company has not incurred
any undisclosed material liability; (ii) there is no action, suit,
proceeding or any investigation or inquiry at law or in equity or
before or by any public board or body pending or threatened against or
affecting the Company or its property or any basis therefor, wherein an
unfavorable decision, ruling or finding would adversely affect the
transactions contemplated hereby or by the Indenture or the Agreement
or the validity or enforceability of the Bonds, the
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Indenture, the Agreement, the Credit Agreement, the Pledge and Security
Agreement or this Bond Purchase Agreement; (iii) the information
contained in the Offering Statement (excluding information contained
under the caption "THE ISSUER" and in Appendix B thereto) is true in
all material respects and does not contain any untrue statement of a
material fact and does not omit to state a material fact necessary in
order to make the statements made, in light of the circumstances under
which they were made, not misleading; and (iv) the Company has duly
authorized, by all necessary corporate action, the execution, delivery
and due performance by the Company of the Agreement, the Credit
Agreement and this Bond Purchase Agreement; and
(4) Such additional certificates, opinions and other
documents as the Underwriter or the Bank may reasonably request shall
have been delivered, including any certificates or opinions to evidence
performance of or compliance with the provisions hereof and the
transactions contemplated hereby, all such certificates and other
documents to be satisfactory in form and substance to the Underwriter
or the Bank.
(c) The Bank shall have delivered the Letter of Credit to
the Trustee for the benefit of the Bondholders.
SECTION 6. CONDITIONS OF ISSUER'S OBLIGATIONS.
The Issuer's obligations under this Bond Purchase Agreement are subject
to the Underwriter's performance of its obligations hereunder and to the due
completion of all proceedings, and the due satisfaction of all conditions
required by the Act for the issuance of the Bonds.
No provision, covenant or agreement contained in this Bond Purchase
Agreement shall be deemed to be the covenant or agreement of any member,
officer, attorney, agent or employee of the Issuer in an individual capacity;
and no such provision, covenant or agreement, and no obligation herein imposed
upon the Issuer, or the breach thereof, shall constitute an indebtedness of the
Issuer within the meaning of any provision of the constitution or law of the
State or constitute or give rise to any pecuniary liability of the Issuer or a
charge against its general credit or taxing power. No recourse shall be had for
the payment of the principal of or premium, if any, or interest on the Bonds, or
for any claim based hereon or on any instruments and documents executed and
delivered by the Issuer in connection
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with the Facilities, against any member, officer, agent, attorney or employee,
past, present or future, of the Issuer or of any successor body, or their
respective heirs, personal representatives, successors as such, either directly
or through the Issuer or any such successor body, whether by virtue of any
constitutional provision, statute or rule of law, or by the enforcement of any
assessment or penalty, or otherwise, all of such liability being hereby released
as a condition of and as a consideration for the execution and delivery of this
Bond Purchase Agreement.
SECTION 7. TERMINATION.
Notwithstanding any other provision of this Bond Purchase Agreement to
the contrary, the Underwriter may terminate this Bond Purchase Agreement by
notification to the Issuer and the Company if at any time prior to the Closing
Date (A) legislation shall be introduced or enacted by the United States
Congress or adopted by either house thereof or a decision by a court of the
United States shall be rendered or a ruling, regulation or official statement by
or on behalf of the Treasury Department of the United States, the Internal
Revenue Service or other government agency shall be made with respect to federal
taxation upon interest received on bonds of the general character of the Bonds,
which would have the effect of changing directly or indirectly the federal
income tax consequences of interest on bonds of the general character of the
Bonds in the hands of the owners thereof; or (B) legislation shall be enacted or
any action shall be taken by the Securities and Exchange Commission which, in
the reasonable judgment of the Underwriter, has the effect of requiring the
contemplated distribution of the Bonds to be registered under the Securities Act
of 1933, as amended, or the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended; or (C) there shall exist any event which, in the
reasonable judgment of the Underwriter, either (1) makes untrue or incorrect in
any material respect any statement or information contained in the Offering
Statement or (2) is not reflected in the Offering Statement should be reflected
therein or in an attachment thereto in order to make any material statements or
information contained therein not misleading in any material respect; or (D)
there shall have occurred any outbreak of hostilities engaging the United States
in any local, national or international calamity or crisis, the effect of such
outbreak, calamity or crisis on the financial markets of the United States being
such as, in the reasonable judgment of the Underwriter, would materially affect
the marketability of the Bonds; or (E) there shall be in force a general
suspension of trading on the New York Stock Exchange or minimum or maximum
prices for trading shall
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have been fixed and be in force, or maximum ranges for prices for securities
shall have been required and be in force on the New York Stock Exchange, whether
by virtue of a determination by that Exchange or by order of the Securities and
Exchange Commission or any other governmental authority having jurisdiction; or
(F) a general banking moratorium shall have been declared by either federal,
Georgia, California or New York authorities having jurisdiction and be in force;
or (G) there shall have occurred any change, or any development involving a
prospective change, in or affecting the operations of the Issuer, the Company or
the Bank, which, in the reasonable judgment of the Underwriter, materially
impairs the investment quality of the Bonds; or (H) any legislation, ordinance,
rule or regulation shall be introduced in or be enacted by any governmental
body, department or agency in the State of Georgia or a decision by any court of
competent jurisdiction within the State of Georgia shall be rendered, which
materially adversely affects the market price of the Bonds; or (I) additional
material restrictions not in force as of the date hereof shall have been imposed
upon trading in securities generally by any governmental authority or by any
national securities exchange.
If the Issuer or the Company does not, in the exercise of good faith,
satisfy the conditions to the obligations of the Underwriter contained in this
Bond Purchase Agreement, or if the obligations of the Underwriter shall be
terminated for any reason permitted by this Bond Purchase Agreement, this Bond
Purchase Agreement shall terminate and the Underwriter, shall not have any
further obligations hereunder. The Underwriter, however, may in its sole
discretion waive one or more of the conditions imposed by this Bond Purchase
Agreement and proceed herewith.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All of the Issuer's and the Company's representations, warranties and
agreements shall remain operative and in full force and effect, regardless of
any investigations made by the Underwriter on its behalf, and shall survive
delivery of the Bonds to the Underwriter.
SECTION 9. PAYMENT OF EXPENSES.
Whether or not the Bonds are sold by the Issuer to the Underwriter, the
Underwriter shall be under no obligation to pay any expenses incident to the
performance of the obligations of the Issuer hereunder. All expenses and costs
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to effect the authorization, preparation, issuance, delivery and sale of the
Bonds (including, without limitation, the fees and disbursements of Bond
Counsel, counsel to the Bank, counsel to the Issuer, and the expenses and costs
for the preparation, printing, photocopying, execution and delivery of the
Bonds, (and the rating thereof by Standard & Poor's Corporation), the Indenture,
the Agreement, the Credit Agreement, this Bond Purchase Agreement and all other
agreements and documents contemplated hereby) shall be paid out of the proceeds
of the sale of the Bonds, or by the Company. The Company and the Underwriter
have agreed that certain expenses in connection with the offer and sale of the
Bonds by the Underwriter will be paid by the Underwriter, including the fees and
disbursements of the Underwriter and its counsel, expenses and costs for the
preparation, printing and delivery of the Preliminary Offering Statement and
Offering Statement, advertising and certain miscellaneous fees and expenses, and
neither the Company nor the Issuer shall be liable for the payment thereof.
SECTION 10. NOTICES.
Any notice or other communication to be given to the Issuer under this
Bond Purchase Agreement may be given by mailing (certified or registered) or
delivering the same in writing to Development Authority of DeKalb County, 0000
Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: Chairman;
and any notice or other communication to be given to the Underwriter under this
Bond Purchase Agreement may be given by delivering the same in writing to
Prudential-Bache Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Public Finance Department, IDB/Pollution Control Group; and any
notice or other communication to be given to the Company may be given by
delivering the same in writing to Radiation Sterilizers, Incorporated, 0000 Xxxx
Xxxx Xxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000.
SECTION 11. APPLICABLE LAW; NONASSIGNABILITY.
This Bond Purchase Agreement shall be governed by the laws of the
State. This Bond Purchase Agreement shall not be assigned by the Issuer or the
Underwriter.
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SECTION 12. AMENDMENTS; EXECUTION OF COUNTERPARTS.
This Bond Purchase Agreement may be executed in several counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document. This Bond Purchase Agreement may not be amended,
except in writing signed by all parties hereto.
DEVELOPMENT AUTHORITY OF
DEKALB COUNTY
Attest By /s/ Signature Unreadable
/s/ Signature Unrreadble --------------------------------
----------------------------- Chairman
(Assistant) Secretary
PRUDENTIAL-BACHE SECURITIES INC.
By /s/ Signature Unreadable
--------------------------------
Authorized Officer
RADIATION STERILIZERS,
INCORPORATED
By /s/ Xxxxxxx X. Xxxx Xx.
--------------------------------
Secretary
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