THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 20,
1996, between MERIDIAN MEDICAL TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation,
previously known as INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as
agent (the "Agent") for the Lenders (as defined below):
W I T N E S S E T H:
A. Pursuant to a Credit Agreement, dated as of April 15, 1996, as amended
by that certain First Amendment to Credit Agreement, dated as of October 25,
1996, (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Brunswick Biomedical Corporation, a
Massachusetts corporation ("Brunswick"), the various lenders (the "Lenders") as
are, or may become, parties thereto and the Agent, the Lenders made the Bridge
Loan to Brunswick;
B. On the date hereof, Brunswick is being merged with and into the Company,
with the Company as the surviving corporation (the "Merger");
C. Under the terms of the Credit Agreement, upon consummation of the
Merger, the Company is required to execute and deliver this Agreement; and
D. The Company has duly authorized the execution, delivery, and performance
of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by the Company, and in order to induce the Lenders to
make Loans to the Company pursuant to the Credit Agreement, the Company agrees
with the Agent for the benefit of all Lenders as follows:
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"Agreement" is defined in the preamble.
"Brunswick" is defined in Recital A.
"Company" is defined in the preamble.
"Merger" is defined in Recital B.
"Purchaser" is defined in the preamble.
"Warrant Purchase Agreement" is defined in Recital A.
Section 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement are used in this Agreement, and its preamble and
recitals, with such meanings.
Section 2.1. Assumption. The Company hereby confirms, acknowledges,
represents, warrants, covenants and agrees, for the benefit of the Lenders and
the Agent, that immediately upon the effectiveness of the Merger, and without
any further action by any Person:
(a) The Company assumes (by operation of law and pursuant to this
Agreement) each and every covenant, agreement, term, condition,
obligation, appointment, duty and liability of Brunswick and, by virtue of
the foregoing, accepts and assumes all liability of Brunswick related to
any representation and warranty made by Brunswick or the Company under or
in connection with the Credit Agreement or any such Loan Document and all
such representations and warranties shall be deemed to have been confirmed
and restated as of the effective time of the Merger; and
(b) The Company shall be the "Borrower" referred to in the Credit
Agreement and shall perform and observe all the covenants, agreements,
terms, conditions, obligations, appointments, duties and liabilities of
the "Borrower" under the Credit Agreement and each other Loan Document
executed by Brunswick, all as if the Company was the direct, actual and
original signatory thereto.
Section 3.1. Warrant Document. This Agreement is a Warrant Document
executed pursuant to the Warrant Purchase Agreement and shall be construed,
administered and applied in accordance with the terms and provisions of the
Warrant Purchase Agreement.
Section 3.2. Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of,
and be enforceable by, the Purchaser and its successors and assigns.
Section 3.3 GOVERNING LAW.
(1) THIS AGREEMENT SHALL BE GOVERNED BY THOSE PROVISIONS OF THE
CORPORATE CODE OF THE JURISDICTION IN WHICH THE COMPANY IS INCORPORATED
AND ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE OF THE JURISDICTION IN WHICH
THE COMPANY IS INCORPORATED WHICH ARE NECESSARILY APPLICABLE TO SECURITIES
ISSUED BY A CORPORATION INCORPORATED IN SUCH JURISDICTION AND OTHERWISE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF SAID STATE.
(2) THE COMPANY HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST IT WITH RESPECT TO THIS AGREEMENT, THE WARRANTS OR ANY OF THE
OTHER WARRANT DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK AS ANY HOLDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, IT
ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND AGREES
THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY THE REQUIRED
HOLDERS IN WRITING, WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY IT
AGAINST SUCH HOLDERS. THE COMPANY AGREES THAT SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS
AGREEMENT AND EACH OF THE OTHER WARRANT DOCUMENTS
AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT
BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS.
(3) The Company hereby irrevocably designates, appoints and empowers CT
Corporation System whose present address is 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its authorized agent to receive, for and on its behalf and its
property, service of process in the state of New York when and as legal actions
or proceedings may be brought in the courts of the State of New York or of the
United States of America sitting in New York, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent, or upon the
earliest of any other date permitted by applicable law. The Company shall agrees
to furnish the consent of CT Corporation System so to act to the Purchaser on or
prior to the Merger Consummation Date. It is understood that a copy of said
process served on such agent will be forwarded to the Company as soon as
practicable, at its address set forth herein, but its failure to receive such
copy shall not affect in any way the service of said process on said agent as
the agent of the Company. The Company irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of the copies thereof by certified mail, return receipt
requested, postage prepaid, to it at its address set forth herein, such service
to become effective upon the earlier of (i) the date 10 calendar days after such
mailing and (ii) any earlier date permitted by applicable law. The Company
agrees that it will at all times continuously maintain an agent to receive
service of process in the state of New York on behalf of itself and its
properties and in the event that, for any reason, the agent named above or its
successor shall no longer serve as its agent to receive service of process in
the State of New York on its behalf, it shall promptly appoint a successor so to
serve and shall advise the Purchaser thereof (and shall furnish to the Purchaser
the consent of any successor agent so to act). Nothing in this Section 3.3 shall
affect the right of the Purchaser to bring proceedings against the Company in
the courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its duly authorized officers on the day and year
first above written.
MERIDIAN MEDICAL TECHNOLOGIES,
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
ACKNOWLEDGED AND AGREED TO:
ING (U.S.) CAPTIAL CORPORATION, as Purchaser
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx