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EXHIBIT 10.15
SERIES B INTERCREDITOR AGREEMENT
This Series B Intercreditor Agreement ("Agreement") is
executed as of November 1, 1985, by and between XXXXX FARGO BANK, N.A., a
national banking association ("Bank"), and BANK ONE TRUST COMPANY, N.A., a
national banking association ("Trustee").
1. Recitals.
1.1 The Series B Bonds. The Trinity River Industrial Development
Authority, a nonprofit industrial development corporation ("Issuer"), pursuant
to that certain Trust Indenture executed as of even date herewith between
Trustee and Issuer (the "Trust Indenture"), has agreed to issue its Trinity
River Industrial Development Authority Variable Rate Demand Industrial
Development Revenue Bonds (Radiation Sterilizers, Incorporated Project), Series
1985B (the "Series B Bonds"). The proceeds of the Series B Bonds are to be
loaned to Radiation Sterilizers, Incorporated, a California corporation
("Company"). Trustee is the trustee for the Series B Bonds.
1.2 The Series B Reimbursement Agreement and the Series B Letter of
Credit. Pursuant to the terms of that certain Series B Reimbursement Agreement
executed between Company and Bank as of even date herewith (the "Series B
Reimbursement Agreement"), Bank has agreed to issue an irrevocable standby
letter of credit in the face amount of $2,505,377.00 (the "Series B Letter of
Credit"). Trustee is empowered to draw upon the Series B Letter of Credit for
the benefit of the purchasers of the Series B Bonds as provided in the Series B
Letter of Credit. The obligations of Company to Bank under the Series B
Reimbursement Agreement and other documents executed in connection therewith
have been guaranteed by Xxxxxxx Xxxx & Associates, a California limited
partnership ("Guarantor") pursuant to that certain General Continuing Guaranty,
executed by Guarantor in favor of Bank as of even date herewith (the
"Guaranty").
1.3 Agreement. In consideration of, and as a condition to, the issuance
of the Series B Letter of Credit, Bank and Trustee hereby agrees as hereinafter
provided.
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2. Disbursement Procedure.
Trustee hereby agrees that it will not make any disbursement to Company
or to any other person or entity of all or any portion of the proceeds of the
Series B Bonds or any other funds held from time to time by Trustee under the
Trust Indenture in connection therewith without the approval of Bank (subject to
certain pre-approvals of disbursements by Bank).
3. Notice of Bond Document Default to Bank.
Trustee shall give to Bank a copy of any notice (and subsequent
communications relating thereto) given to Company of or with respect to a
default under Section 1101 of the Trust Indenture or with respect to an event
which, with notice and/or lapse of time, would constitute a default under
Section 1101 of the Trust Indenture. Such copy shall be given to Bank in the
same manner and at the same time as the corresponding notice or communication is
given to Company under the applicable Bond Document(s), and before Trustee
exercises any remedy granted to it or Issuer under any of the Bond Documents. If
such a default occurs of which Trustee has knowledge for which no notice is
required to be given to Company, Trustee shall deliver a notice of such default
to Bank immediately upon learning of its occurrence.
4. Bank Rights on Bank Document Default.
Trustee hereby acknowledges and agrees that Bank shall have the
following rights in the event of the occurrence of an Event of Default under the
Series B Reimbursement Agreement, the Guaranty or any of the other Loan
Documents:
(a) The right to implement any or all of its rights under the Series
B Reimbursement Agreement and the other Loan Documents, including without
limitation commencement of actions against Company to recover sums owing
under the Loan Documents and/or to obtain injunctive relief and making
demand upon Guarantor for the performance of its obligations under the
Guaranty, without giving notice to Trustee of Bank's intention to cause a
default to be declared under the Trust Indenture; in such event, there
shall be no declaration by Trustee of a default under the Trust Indenture
notwithstanding any such action by Bank unless there are grounds for such
default other than by reason of the
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occurrence of an Event of Default under the Series B Reimbursement
Agreement; or
(b) The right, with or without implementation of any or all of its
rights under the Series B Reimbursement Agreement and the other Loan
Documents, to give notice to Trustee of Bank's intention to cause a
default to be declared under the Trust Indenture; in such event, Trustee
shall immediately declare such a default and make an A Drawing under the
Series B Letter of Credit.
5. Events of Default.
Bank hereby acknowledges and agrees that nothing contained in Section
4, above, shall limit the rights of Trustee in the event of the occurrence of an
event of default under the Bond Documents other than an event of default which
occurs by reason of the occurrence of an Event of Default under the Series B
Reimbursement Agreement. Trustee hereby acknowledges and agrees that the
occurrence of an Event of Default under the Series B Reimbursement Agreement
shall not constitute an Event of Default under the Bond Documents unless Bank
has given the notice described in Section 4(b), above.
6. Bank Right to Cure Bond Document Defaults.
If Company fails to cure a default under any Bond Document within the
applicable cure period, Trustee shall notify Bank in writing of such failure and
shall refrain from exercising any remedy under the Bond Documents or at law in
the event that Bank either (a) cures such default within fifteen (15) days
following receipt of such notice, or (b) if such default is not capable of being
cured by the payment of money, commences cure within thirty (30) days and
thereafter diligently proceeds with such cure. Nothing in this Section 6 shall
be construed to either (1) obligate Bank to cure any default by Company or (2)
obligate Trustee to refrain from exercising any remedy in the event that such
non-exercise would, in the opinion of bond counsel (XxXxxx, Xxxxxxxxx & Xxxxxx),
adversely affect the tax-exempt status of interest on the Series B Bonds.
7. Assignment of Rights.
Trustee hereby agrees that, immediately upon receipt by Trustee of
funds from all sources (including without limitation any payments under the
Series B Letter of
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Credit) which are sufficient to retire in full the obligations of Bank under the
Series B Letter of Credit, Trustee shall do the following:
7.1 Subject to Section 1105 of the Trust Indenture, use all funds in
its possession pursuant to the Trust Indenture and all funds paid under the
Series B Letter of Credit as may be necessary to promptly redeem and retire all
outstanding Series B Bonds at their face amount plus any accrued interest.
7.2 At the option of Bank, either reconvey, release and cancel, or
assign to Bank, all of its right, title and interest with respect to any
security ever held by Bank and Trustee to secure any or all of Company's
obligations to Bank and Trustee, and execute, acknowledge and deliver to Bank
such instruments and documents as may be reasonably necessary in connection with
such reconveyance, release, cancellation or assignment.
7.3 Assign to Bank all of the cash collateral to be deposited in the
Reserve Accounts and execute and deliver to Bank such instruments and documents
as may be reasonably necessary in connection with such assignment.
7.4 Deliver to Bank, in good funds and to such account as Bank shall
designate, the entire balance of undisbursed proceeds of the Series B Bonds and
any other funds then held by Trustee under the Trust Indenture, together with
any interest and other sums accrued on all such sums, as of the date of payment
by Bank on the Series B Letter of Credit, subject to (i) Section 1105 of the
Trust Indenture and (ii) prior payment of any unpaid fees and expenses (not to
include any fees or expenses of outside legal counsel) of Trustee described in
Section 1202 of the Trust Indenture.
7.5 Assign to Bank all of its right, title and interest under or in
connection with the Series B Loan Agreement and the Trust Indenture, including
without limitation all sums in which Trustee has an interest pursuant to the
provisions of the Trust Indenture and all causes of action and other rights
which have accrued or may accrue thereafter; provided, however, that Bank shall
not be subject to any of the trust obligations of Trustee with regard to such
sums, causes of action and other rights.
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8. Limits on Disposition of Pledged Bonds.
Bank shall not release from the lien of the Series B Pledge Agreement
any Pledged Bonds (as defined in the Series B Pledge Agreement) (other than by
delivery to the Trustee for cancellation) unless, at the time of or before such
release, the aggregate amount available under the Series B Letter of Credit
shall be reinstated in an amount equal to the full principal amount of the
Pledged Bonds released together with the portion of any drawing made under the
Series B Letter of Credit with respect to the interest portion of the purchase
price of the Pledged Bonds so being released. Also, notwithstanding rights and
remedies given to Bank in the Series B Pledge Agreement to dispose of Pledged
Bonds, at any time the Series B Letter of Credit remains in effect, Bank shall
not dispose of any Pledged Bonds other than by delivery to the Trustee for
cancellation.
9. Reserve Accounts.
Trustee hereby agrees to release its interest in the cash collateral to
be deposited by Company in the Reserve Accounts (pursuant to Section 6.6 of
Series B Reimbursement Agreement) in exchange for any substitute collateral
reasonably satisfactory to Bank.
10. Notices.
10.1 Trustee shall immediately give Bank notice of (a) its resignation
or removal or any other actual or planned change in the identity of Trustee,
whether pursuant to the Trust Indenture or otherwise, and (b) any actual or
planned amendment of the Trust Indenture or any supplement thereto, or any
request by any person or entity for the same.
10.2 Trustee shall deliver to Bank copies of any reports to be
delivered by Trustee pursuant to the Trust Indenture, as it may be amended from
time to time, such delivery to be reasonably concurrent with Trustee's delivery
of such reports pursuant to the Trust Indenture.
10.3 All notices, requests, demands, directions or other communications
which may be given pursuant to this Agreement must be in writing and must be
mailed or personally delivered to the appropriate party at its address as
follows:
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If to Trustee: Bank One Trust Company, N.A.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Corporate Trust
If to Bank: Xxxxx Fargo Bank, N.A.
Real Estate Industries Group
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Vice President
Addresses for purposes of notice may be changed from time to time by written
notice pursuant to this Section 10.3. 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 personal delivery, when delivered.
11. Attorneys' Fees.
In the event that either Bank or Trustee brings an action to interpret
or enforce their rights under this Agreement, the prevailing party in such
action shall be entitled to recover its costs and attorneys' fees as awarded by
the court in such action.
12. Amendments; Governing Law.
This Agreement may be amended only by a written agreement signed by
both Bank and Trustee. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Texas.
13. Miscellaneous.
All capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth for them in the Series B Reimbursement
Agreement. In the
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event of any conflict between the provisions of this Agreement and the
provisions of any Bond Document, this Agreement shall control.
IN WITNESS WHEREOF, Bank and Trustee have caused this Agreement to be
duly executed as of the date first written above.
"Bank":
XXXXX FARGO BANK, N.A.
By /s/ Xxxxx Tone
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Its /s/ Assistant Vice President
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"Trustee":
BANK ONE TRUST COMPANY, N.A.
By /s/ Signature Unreadable
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Its /s/ AUTHORIZED SIGNER
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