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EXHIBIT 10.9(c)
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REIMBURSEMENT AGREEMENT
BETWEEN
ABN AMRO BANK N.V.
AND
▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC.
DATED AS OF NOVEMBER 1, 1995
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REIMBURSEMENT AGREEMENT
(This Table of Contents is not a part of
this Reimbursement Agreement
and is only for
convenience of reference)
SECTION DESCRIPTION PAGE
ARTICLE ONE DEFINITIONS............................................................... 1
Section 1.1 Definitions............................................................... 1
ARTICLE TWO LETTER OF CREDIT.......................................................... 10
Section 2.1. Issuance of Letter of Credit.............................................. 10
Section 2.2. Letter of Credit Drawings................................................. 10
Section 2.3. Reimbursement of Certain Liquidity Drawings under
the Letter of Credit...................................................... 10
Section 2.4. Reimbursement of Drawings Other Than Liquidity
Drawings Creating Liquidity Advances under the Letter
of Credit................................................................. 11
Section 2.5 Fees...................................................................... 11
Section 2.6. Method of Payment....................................................... 11
Section 2.7. Substitute Letter of Credit............................................... 12
Section 2.8. Computation of Interest and Fees.......................................... 12
Section 2.9. Payment Due on Non-Business Day to Be Made on
Next Business Day......................................................... 12
Section 2.10. Late Payments............................................................. 12
Section 2.11. Source of Funds........................................................... 12
Section 2.12. Extension of Stated Expiration Date....................................... 12
Section 2.13. Amendments upon Extension................................................. 12
ARTICLE THREE CONDITIONS PRECEDENT...................................................... 13
Section 3.1. Conditions Precedent to Issuance of Letter of Credit...................... 13
Section 3.2. Conditions Precedent to Liquidity Advances................................ 14
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES............................................ 15
Section 4.1. Organization and Qualification............................................ 15
Section 4.2 Margin Stock.............................................................. 15
Section 4.3. Financial Reports......................................................... 15
Section 4.4. Litigation................................................................ 16
Section 4.5. Taxes..................................................................... 16
Section 4.6. Approvals................................................................. 16
Section 4.7. ERISA..................................................................... 16
Section 4.8. Investment Company........................................................ 16
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Section 4.9. Public Utility Holding Company......................................... 17
Section 4.10. Incorporation of Representations and Warranties
by Reference........................................................... 17
ARTICLE FIVE COVENANTS.............................................................. 17
Section 5.1. Corporate Existence, Etc............................................... 17
Section 5.2. Maintenance of Properties.............................................. 17
Section 5.3. Compliance with Laws; Taxes and Assessments............................ 17
Section 5.4. Insurance.............................................................. 18
Section 5.5. Reports................................................................ 18
Section 5.6. Inspection............................................................. 18
Section 5.7. Related Documents...................................................... 19
Section 5.8. Optional Redemption of Bonds........................................... 19
Section 5.9. Nature of Business..................................................... 19
Section 5.10. Limitation on Liens.................................................... 19
Section 5.11. Mergers, Consolidations and Sales of Assets............................ 21
Section 5.12. Guaranties............................................................. 21
ARTICLE SIX DEFAULTS............................................................... 21
Section 6.1. Events of Default and Remedies......................................... 21
Section 6.2. Remedies............................................................... 24
ARTICLE SEVEN MISCELLANEOUS.......................................................... 24
Section 7.1. No Deductions.......................................................... 24
Section 7.2. Right of Setoff........................................................ 26
Section 7.3. Indemnity.............................................................. 27
Section 7.4. Obligations Absolute................................................... 27
Section 7.5. Liability of the Bank.................................................. 27
Section 7.6. Participants........................................................... 28
Section 7.7. Survival of this Agreement............................................. 28
Section 7.8 Modification of this Agreement....................................... 28
Section 7.9. Waiver of Rights by the Bank........................................... 28
Section 7.10. Severability........................................................... 29
Section 7.11. Governing Law.......................................................... 29
Section 7.12. Notices................................................................ 29
Section 7.13. Successors and Assigns................................................. 30
Section 7.14. Taxes and Expenses..................................................... 30
Section 7.15. Headings............................................................... 30
Section 7.16. Counterparts........................................................... 31
Section 7.17. Entire Agreement....................................................... 31
Signature........................................................................................... 31
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REIMBURSEMENT AGREEMENT
Dated as of November 1, 1995
▇▇▇▇▇▇▇▇ Micro Science, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The Applicant (such term and each other capitalized term used herein
having the meaning set forth in Article One hereof) desires to secure a source
of funds to be devoted exclusively to the payment by the Trustee, when and as
due, of the principal of and interest on the Bonds, and has applied to the Bank
for issuance by the Bank of the Letter of Credit in an Original Stated Amount
of $4,555,480. Further, the Bank has been requested by the Applicant to
provide a reimbursement facility for drawings under the Letter of Credit and to
provide such facility in the following manner and subject to the following
terms and conditions. Accordingly, the Applicant and the Bank hereby agree as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.1. Definitions. (a) As used in this Agreement:
"Acceleration Drawing" means a drawing under the Letter of Credit
resulting from the presentation of a certificate in the form of Exhibit F to
the Letter of Credit.
"Acquired Foreign Restricted Subsidiary" shall mean any Acquired
Restricted Subsidiary which is organized under the laws of any jurisdiction
outside of the United States of America.
"Acquired Restricted Subsidiary" shall mean any Person which (a) either
(i) becomes, after the date hereof, a Subsidiary through the purchase by
▇▇▇▇▇▇▇▇ Labs or another Restricted Subsidiary of all or a portion of the
voting stock of such Person or (ii) is organized by ▇▇▇▇▇▇▇▇ Labs or any
Restricted Subsidiary to acquire all or part of the property or operations of a
Person which is not on the date hereof a Restricted Subsidiary and (b) is
designated by ▇▇▇▇▇▇▇▇ Labs as a Restricted Subsidiary.
"Adjusted Consolidated Current Liabilities" shall mean as of the date of
any determination thereof, Consolidated Current Liabilities minus the Excess
Current Debt outstanding; so long as on each day that such Excess Current Debt
is outstanding the ▇▇▇▇▇▇▇▇ Labs could incur Funded Debt without creating an
Event of Default under Section 6.1(o) hereof in an amount equal to such Excess
Current Debt on each determination date hereunder.
"Adjusted Consolidated Tangible Net Worth" shall mean as of the date of
any determination thereof (a) the sum of preferred stock, common stock,
additional paid-in capital,
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retained earnings and Minority Interests (other than Restricted Minority
Interests), if any, less treasury stock, all determined in accordance with GAAP,
minus (b) Excess Intangible Assets. For purposes of calculations pursuant to
this Agreement any increase or decrease in stockholders' equity attributable to
a foreign currency translation adjustment shall be excluded.
"Affiliate" means, with respect to any Person (other than a Restricted
Subsidiary), any Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. A Person shall be deemed to control another Person for the
purposes of this definition if such first Person possesses, directly or
indirectly, the power to direct, or cause the direction of, the management and
policies of the second Person, whether through the ownership of voting
securities, common directors, trustees or officers, by contract or otherwise.
"Agreement" means this Reimbursement Agreement, as amended and
supplemented.
"Applicant" means ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware corporation and
its successors and assigns.
"Available Amount" shall have the meaning set forth in the Letter of
Credit.
"Bank" - means ABN AMRO Bank N.V., as issuer of the Letter of Credit, and
its successors and assigns.
"Bond Documents" means the Indenture, the Loan Agreement, the Bond
Purchase Agreement, the Remarketing Agreement, the Official Statement and the
Bonds.
"Bond Purchase Agreement" means the Bond Purchase Agreement dated as of
November 1, 1995 among First Chicago Capital Markets, Inc., the Applicant and
the Issuer.
"Bonds" means the $4,500,000 aggregate principal amount of the Issuer's
Industrial Development Revenue Bonds, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc.
Project) pertaining to the Project.
"Business Day" shall have the meaning set forth in the Letter of Credit.
"Cap Interest Rate" shall have the meaning set forth in the Letter of
Credit.
"Capital Lease" means any lease of Property which in accordance with GAAP
would be required to be capitalized on the balance sheet of the lessee.
"Capitalized Lease Obligation" means the amount of the liability shown on
the balance sheet of any Person in respect of a Capital Lease as determined in
accordance with GAAP.
"Change of Control" means each and every issue, sale or other disposition
of shares of any class or classes of capital stock of ▇▇▇▇▇▇▇▇ Labs or ▇▇▇▇▇▇▇▇
Laboratories, Inc., whether by means of an initial public offering or
otherwise, which results in any Acquirer, other than the ▇▇▇▇▇▇▇▇ Family Group,
beneficially owning or controlling, directly or indirectly, more than 50%
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(by number of votes) of the voting stock of ▇▇▇▇▇▇▇▇ Labs or ▇▇▇▇▇▇▇▇
Laboratories, Inc. As used herein, the term "Acquirer" shall mean one or more
Persons acting as a partnership, limited partnership, company, syndicate or
other group for the purpose of acquiring, holding or disposing of voting stock,
together with all affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended) of such Persons. As used herein,
the term "▇▇▇▇▇▇▇▇ Family Group" shall mean (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; (ii) the
spouses, lineal descendants and spouses of the lineal descendants of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇; (iii) trusts created in whole or in substantial part for the benefit
of any or all of the Persons named in clauses (i) and (ii); and (iv) the estates
or legal representatives of the Persons named in clauses (i) and (ii).
"Closing Date"-means the date on which the Letter of Credit is issued.
"Code"-means the Internal Revenue Code of 1986, and any successor statute
thereto.
"Consolidated Current Assets" and "Consolidated Current Liabilities" shall
mean as of the date of any determination thereof such assets and liabilities of
▇▇▇▇▇▇▇▇ Labs and its Restricted Subsidiaries on a consolidated basis as shall
be determined in accordance with GAAP to constitute current assets and current
liabilities, respectively.
"Consolidated Funded Debt" shall mean all Funded Debt of ▇▇▇▇▇▇▇▇ Labs and
its Restricted Subsidiaries, determined on a consolidated basis eliminating
intercompany items.
"Consolidated Total Assets" shall mean as of the date of any determination
thereof the total assets of ▇▇▇▇▇▇▇▇ Labs and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Capitalization" shall mean as of the date of any
determination thereof the sum of Adjusted Consolidated Tangible Net Worth plus
Consolidated Funded Debt.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Applicant or any Subsidiary, are treated as a single
employer under Section 414 of the Code.
"Current Debt" of any Person shall mean as of the date of any
determination thereof (a) all Indebtedness for borrowed money of any Person
other than Funded Debt of such Person and (b) Guarantees by such Person of
Current Debt of others.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" is defined in Section 6.1 hereof.
"Excess Current Debt" shall mean as of the date of any determination
thereof that portion of Current Debt outstanding which (a) does not constitute
a current maturity of Funded Debt in accordance with GAAP, (b) does not
constitute Current Debt of ▇▇▇▇▇▇▇▇ Labs to any Subsidiary or of any Restricted
Subsidiary to ▇▇▇▇▇▇▇▇ Labs or to a wholly owned Restricted
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Subsidiary thereof and (c) is in excess of $13,000,000 in aggregate principal
amount. Any Excess Current Debt which is included as Consolidated Funded Debt
under Section 6.1(o) shall continue to be deemed to be Consolidated Funded Debt
until such Excess Current Debt shall have been paid in full.
"Excess Intangible Assets" shall mean as of the date of determination, the
amount, if any, by which the book value of all assets that are properly
classified as "intangible assets" in accordance with GAAP acquired by ▇▇▇▇▇▇▇▇
Labs and its Restricted Subsidiaries after the date hereof exceeds 5% of
Consolidated Total Assets as reflected on the most recent consolidated balance
sheet of ▇▇▇▇▇▇▇▇ Labs.
"Excess Transferred Property" shall mean as of the date of each incurrence
of Unsupported Debt by any Acquired Foreign Restricted Subsidiary, the amount,
if any, by which the aggregate fair market value of investments or other
transfers of Property of ▇▇▇▇▇▇▇▇ Labs or any Restricted Subsidiary at any time
to such Acquired Foreign Restricted Subsidiary exceeds the greater of (a)
$5,000,000 and (b) 5% of Adjusted Consolidated Tangible Net Worth as reflected
on the most recent consolidated balance sheet of ▇▇▇▇▇▇▇▇ Labs. Excess
Transferred Property shall be valued as of the date of investment or other
transfer thereof to an Acquired Foreign Restricted Subsidiary.
"Funded Debt" of any Person shall mean (i) all Indebtedness for borrowed
money of such Person for or which has been incurred in connection with the
acquisition of assets in each case having a final maturity of one or more than
one year from the date of origin thereof (or which is renewable or extendible
at the option of the obligor for a period or periods more than one year from
the date of origin), but excluding all payments in respect thereof that are
required to be made within one year from the date of any determination of
Funded Debt, provided the obligation to make such payments shall constitute a
current liability of the obligor under GAAP, (ii) all Capitalized Lease
Obligations of such Person, (iii) all Guarantees by such Person of Funded Debt
of others and (iv) all Restricted Minority Interests.
"GAAP" means generally accepted accounting principles in the United States
as in effect from time to time, applied by the Applicant and its Subsidiaries
on a basis consistent with the Applicant's most recent financial statements
furnished to the Bank pursuant to Section 5.5 hereof.
"Governmental Approval" means an authorization, consent, approval,
license, or exemption of, registration or filing with, or report to any
Governmental Authority.
"Governmental Authority" means any nation or government, any state,
department, agency or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government, and any corporation or other
entity owned or controlled (through stock or capital ownership or otherwise) by
any of the foregoing.
"▇▇▇▇▇▇▇▇ Labs Guaranty" means the Guaranty issued by ▇▇▇▇▇▇▇▇
Laboratories Worldwide, Inc. ("▇▇▇▇▇▇▇▇ Labs") in favor of the Bank dated on or
about the date hereof.
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"Guarantees" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent
or otherwise, by such Person: (i) to purchase such Indebtedness or obligation
or any property or assets constituting security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of such Indebtedness or
obligation, (y) to maintain working capital or other balance sheet conditions
or otherwise to advance or make available funds for the purchase or payment of
such Indebtedness or obligation, (iii) to lease property or to purchase
securities or other property or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation of the ability of the primary
obligor to make payment of the Indebtedness or obligation, or (iv) otherwise to
assure the owner of the Indebtedness or obligation of the primary obligor
against loss in respect thereof. For the purposes of all computations made
under this Agreement: (i) a Guaranty in respect of any Indebtedness for
borrowed money shall be deemed to be Indebtedness equal to the principal amount
of such Indebtedness for borrowed money which has been guaranteed, and a
Guaranty in respect of any other obligation or liability or any dividend shall
be deemed to be Indebtedness equal to the maximum aggregate amount of such
obligation, liability or dividend, (ii) the amount of any Guaranty and the
amount of Indebtedness guaranteed shall be counted only once in any such
computation and (iii) any Restricted Upstream Guaranty shall be counted as a
Guaranty.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all (i) obligations of such Person for borrowed money or which have
been incurred in connection with the acquisition of Property, (ii) obligations
secured by any Lien upon Property owned by such Person, even though such Person
has not assumed or become liable for the payment of such obligations, (iii)
obligations created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person,
notwithstanding the fact that the rights and remedies of the seller, lender or
lessor under such agreement in the event of default are limited to repossession
or sale of Property, (iv) Capitalized Lease Obligations and (v) Guaranties of
obligations of others of the character referred to in this definition; provided
that "Indebtedness" shall in any event exclude (x) any unfunded obligations of
the Company with respect to its retirement benefit plans and (y) any Guaranty
of an obligation which is itself included in "Indebtedness" for purposes of any
computation, test or covenant herein unless such Guaranty constitutes a
Restricted Upstream Guaranty, in which case the primary obligation to which
such Restricted Upstream Guaranty relates shall be excluded from
"Indebtedness".
"Indenture" means the Indenture of Trust dated as of the date hereof
between the Issuer and the Trustee, relating to the Bonds, as amended and
supplemented from time to time.
"Issuer" means the Mecklenburg County Industrial Facilities and Pollution
Control Financing Authority and its successors and assigns.
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"Letter of Credit" means the irrevocable transferable direct pay letter of
credit issued by the Bank for the account of the Applicant in favor of the
Trustee in the form of Appendix I hereto with appropriate insertions, as
amended.
"Lien" means (i) any interest in Property which secures an obligation owed
to a Person other than the owner of such Property, including, without
limitation, any such interest arising from a mortgage, charge, pledge, security
agreement, conditional sale or trust receipt, or arising from a lease,
consignment or bailment given for security purposes, (ii) any encumbrance or
charge upon such Property which does not secure such an obligation, and (iii)
any exception to or defect in the title to or ownership interest in such
Property.
"Liquidity Advance" is defined in Section 2.3(a) hereof.
"Liquidity Drawing" means a drawing under the Letter of Credit resulting
from the presentation of a certificate in the form of Exhibit E to the Letter
of Credit.
"Loan Agreement" means the Loan Agreement dated as of the date hereof
between the Issuer and the Applicant, relating to the Bonds, as amended and
supplemented from time to time.
"Minority Interests" shall mean any shares of stock of any class of a
Restricted Subsidiary (other than directors' or other qualifying shares as
required by law) that are not owned by ▇▇▇▇▇▇▇▇ Labs and/or one or more of its
Restricted Subsidiaries. Minority Interests shall be valued in accordance with
GAAP.
"Moody's" means ▇▇▇▇▇'▇ Investors Service.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of
August 30, 1994 re: $45,000,000 8.30% Senior Notes, Series A, Due August 31,
2009 among ▇▇▇▇▇▇▇▇ Laboratories, Inc., Nationwide Life Insurance Company,
Employers Life Insurance Company of Wausau, Phoenix Home Life Mutual Insurance
Company, Principal Mutual Life Insurance Company and Pan American Life
Insurance Company.
"Obligations" means the fees relating to the Letter of Credit, any and all
obligations of the Applicant to reimburse the Bank for any drawings under the
Letter of Credit, and all other obligations of the Applicant to the Bank
arising under or in relation to this Agreement.
"Official Statement" means the Official Statement dated November 14, 1995,
relating to the Bonds and the Project.
"Original Stated Amount" is defined in Section 2.1 hereof.
"Outstanding" or "Bonds Outstanding" shall have the same meaning herein as
in the Indenture.
"PBGC" means the Pension Benefit Guaranty Corporation, and its successors
and assigns.
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"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or any agency or instrumentality thereof.
"Plan" means, with respect to the Applicant and each Subsidiary at any
time, an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group of which the Applicant or such Subsidiary is a
part, (ii) is maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group of which the Applicant or such
Subsidiary is a part is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
or (iii) under which a member of the Controlled Group of which the Applicant or
such Subsidiary is a part has any liability, including any liability by reason
of having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years or by reason of being deemed
a contributing sponsor under Section 4069 of ERISA.
"Potential Default" means an event or condition which, but for the lapse
of time or the giving of notice, or both, would constitute an Event of Default.
"Prime Rate" means for any day the greater of :
(i) the rate per annum equal to the corporate base rate of interest
for U.S. dollar loans announced by the Bank from time to time, as in
effect on such day, with any change in the Prime Rate resulting from a
change in said corporate base rate to be effective as of the date of the
relevant change in said corporate base rate; or
(ii) the sum of (x) the rate determined by the Bank to be the
average (rounded upwards, if necessary, to the next higher 1/100 of 1%)
of the rates per annum quoted to the Bank at approximately 10:00 a.m.
(Chicago time) (or as soon thereafter as is practicable) on such day (or,
if such day is not a Business Day, on the immediately preceding Business
Day) by two or more Federal funds brokers selected by the Bank for the
sale to the Bank at face value of Federal funds in an amount equal or
comparable to the principal amount owed to the Bank for which such rate
is being determined, plus (y) 1/2 of 1% (0.50%).
"Project" means the industrial development facilities located in the
unincorporated area of Mecklenburg County, North Carolina being financed by the
Bonds.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"Related Documents" means this Agreement, the Letter of Credit, the Bond
Documents and the ▇▇▇▇▇▇▇▇ Labs Guaranty but shall not include the Official
Statement.
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"Remarketing Agent" means First Chicago Capital Markets, Inc., as
Remarketing Agent under the Indenture and the Remarketing Agreement, and its
successors and assigns pursuant thereto.
"Remarketing Agreement" means the Remarketing Agreement dated as of the
date hereof, between the Remarketing Agent and the Applicant, as amended and
supplemented, and any successor agreement thereto entered into by the
Applicant, and a successor Remarketing Agent.
"Restricted Minority Interests" shall mean all Minority Interests created
as a result of the issuance, sale, transfer or other disposition of stock of
Restricted Subsidiaries other than Unrestricted Minority Interests. Restricted
Minority Interests shall be valued as of the date of creation of such
Restricted Minority Interest.
"Restricted Subsidiary" shall mean any Subsidiary of ▇▇▇▇▇▇▇▇ Labs which
is designated as a Restricted Subsidiary in accordance with the provisions of
Section 5.17 of the Note Purchase Agreement and as listed in Annex A hereto
from time to time as Restricted Subsidiaries. Should the Note Purchase
Agreement be terminated, the Applicant and ▇▇▇▇▇▇▇▇ Labs shall continue to
follow the designation provisions of Section 5.17 which shall be deemed to
continue in effect for the purposes of this Agreement.
"Restricted Upstream Guaranty" shall mean any Guaranty by an Acquired
Foreign Restricted Subsidiary of Indebtedness of ▇▇▇▇▇▇▇▇ Labs or any
Subsidiary (other than such Acquired Foreign Restricted Subsidiary or a
subsidiary of such Acquired Foreign Restricted Subsidiary) given after the date
hereof to a Person which is not a Holder (an "Other Lender"); provided that a
Restricted Upstream Guaranty shall not include any Guaranty if concurrently
with the giving of such Guaranty to the Other Lender, such Acquired Foreign
Restricted Subsidiary shall either (a) cause the Other Lender to enter into an
intercreditor agreement with the Bank, satisfactory to the Bank in form and
substance, providing for the equal and ratable sharing between the Bank and the
Other Lender of all recoveries under such Guaranty (including any collateral
security for such Indebtedness granted to the Other Lender) or (b) give to the
Bank (i) a substantially identical Guaranty of the Obligations hereunder and
(ii) an unqualified opinion of counsel admitted to practice law in the
jurisdiction in which such Acquired Foreign Restricted Subsidiary is organized
to the effect that the enforceability of the Guaranty of the Obligations will
not be impaired to any greater extent than the Guaranty given to the Other
Lender under the laws of such jurisdiction in the event enforcement of such
Guaranties is sought.
"Significant Restricted Subsidiary" shall mean as of any date of
determination thereof any Restricted Subsidiary having total assets equal to at
least 5% of Consolidated Total Assets or whose operating income for the fiscal
year of ▇▇▇▇▇▇▇▇ Labs immediately preceding the date of any determination
thereof was equal to at least 10% of the operating income of ▇▇▇▇▇▇▇▇ Labs and
its consolidated Subsidiaries, as shown on the most recent consolidated
statement of earnings of ▇▇▇▇▇▇▇▇ Labs.
"S&P" means Standard & Poor's Ratings Group.
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"Stated Expiration Date" shall have the meaning set forth in the Letter of
Credit.
"Subsidiary" means, as to the Applicant or ▇▇▇▇▇▇▇▇ Labs, as the case may
be, any corporation or other entity of which more than 50% of the outstanding
stock or comparable equity interests entitled to vote in the election of the
board of directors or similar governing body of such entity is directly or
indirectly owned by the Applicant or ▇▇▇▇▇▇▇▇ Labs, as the case may be, by one
or more Subsidiaries or by the Applicant or ▇▇▇▇▇▇▇▇ Labs and one or more
Subsidiaries.
"Termination Date" shall have the meaning set forth in the Letter of
Credit.
"Trustee" means ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee under the
Indenture, and any successor trustee thereunder.
"Underwriter" means First Chicago Capital Markets, Inc.
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the
PBGC or such Plan under Title IV of ERISA.
"Unrestricted Minority Interests" shall mean Minority Interests created as
a result of the issuance, sale, transfer or other disposition of stock of
Restricted Subsidiaries so long as the aggregate fair market value of such
stock together with all other stock of Restricted Subsidiaries issued,
transferred or otherwise disposed of from and after the date of this Agreement
does not exceed the greater of (i) $5,000,000, or (ii) 5% of Adjusted
Consolidated Tangible Net Worth. Unrestricted Minority Interests shall be
valued as of the date of creation of such Minority Interest.
"Unrestricted Subsidiary" shall mean any Subsidiary which is not a
Restricted Subsidiary.
"Unsupported Debt" shall mean Funded Debt of an Acquired Foreign
Restricted Subsidiary which (a) constitutes the obligation (whether as obligor
or guarantor) only of such Acquired Foreign Restricted Subsidiary and its
subsidiaries and (b) which, if secured, is secured by no Property of the
Company or any Restricted Subsidiary except such Acquired Foreign Restricted
Subsidiary and its subsidiaries.
"Welfare Plan" means a "welfare plan," as such term is defined in Section
3(1) of ERISA.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms. Any capitalized terms used herein which
are not specifically defined herein shall have the same meanings herein as in
the Indenture. All references in this Agreement to
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times of day shall be references to Chicago time unless otherwise expressly
provided herein. Unless otherwise inconsistent with the terms of this
Agreement, all accounting terms shall be interpreted, all accounting
determinations hereunder shall be made and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP.
ARTICLE TWO
LETTER OF CREDIT
Section 2.1. Issuance of Letter of Credit. Upon the terms, subject to the
conditions and relying upon the representations and warranties set forth in
this Agreement or incorporated herein by reference, the Bank agrees to issue
the Letter of Credit. The Letter of Credit shall be in the original stated
amount of $4,555,480 (the "Original Stated Amount"), which is the sum of (i)
the highest principal amount of Bonds which may from time to time be
outstanding, plus (ii) interest thereon at the Cap Interest Rate for a period
of forty five (45) days.
Section 2.2. Letter of Credit Drawings. The Trustee is authorized to make
drawings under the Letter of Credit in accordance with the terms thereof. The
Applicant hereby directs the Bank to make payments under the Letter of Credit
in the manner therein provided. The Applicant hereby irrevocable approves
reductions and reinstatements of the Available Amount as provided therein.
Section 2.3. Reimbursement of Certain Liquidity Drawings under the Letter
of Credit; Prepayment; Interest. (a) If the conditions precedent contained in
Section 3.2 hereof are satisfied at the time of payment by the Bank of any
Liquidity Drawing, each Liquidity Drawing made under the Letter of Credit shall
constitute an advance ("Liquidity Advance") to the Applicant. The Applicant
promises to pay to the Bank each Liquidity Advance on the earliest of (i) the
date on which any bonds purchased with funds disbursed under the Letter of
Credit in connection with such Liquidity Drawing and held by the Applicant or
by the Trustee, or its agent, for the account of the Applicant, are redeemed or
canceled pursuant to the Indenture, (ii) the date on which any Bonds purchased
by the Applicant or the Trustee, or its agent, for the account of the
Applicant, with funds disbursed under the Letter of Credit are remarketed
pursuant to the Indenture, (iii) the date on which the Letter of Credit is
replaced by a substitute letter of credit pursuant to the terms of the
Indenture, (iv) the Termination Date and (v) the Stated Expiration Date.
Subject to Section 2.10 hereof, the Applicant also promises to pay to the Bank
interest on the unpaid principal amount of each Liquidity Advance from the date
such Liquidity Advance is made until it is paid in full as provided herein, at
a rate per annum equal to the Prime Rate from time to time in effect, payable
quarterly in arrears and on the date the Liquidity Advances is payable as
herein provided. Any Liquidity Advance not paid when due shall bear interest
at the rate per annum specified in Section 2.10 hereof,
(b) Any Liquidity Advance created pursuant to paragraph (a) above may be
prepaid in whole or in part at any time without premium or penalty on any
Business Day on not less than one Business Day's prior written notice.
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(c) Upon the Bank's receipt of any payment or prepayment of any Liquidity
Advance, the amount of such Liquidity Advance shall be reduced by the
amount of such payment or prepayment.
Section 2.4. Reimbursement of Drawings Other Than Liquidity Drawings
Creating Liquidity Advances under the Letter of Credit. The Applicant agrees
to reimburse the Bank for the full amount of any drawing other than a Liquidity
Drawing immediately upon payment by the Bank of such drawing. The Applicant
agrees to reimburse the Bank for the full amount of any Liquidity Drawing if
the conditions precedent contained in Section 3.2 hereof are not satisfied
immediately upon payment by the Bank of each such drawing and on the date of
each such payment. If the Applicant does not make such reimbursement on such
date, such reimbursement obligation shall bear interest at the rate per annum
specified in Section 2.10 hereof. The Bank will provide prompt notice to the
Applicant of the amount of each drawing made under the Letter of Credit
provided that the failure to give such notice or any error contained in such
notice shall not prejudice the Bank's rights hereunder.
Section 2.5. Fees. The Applicant hereby agrees to pay, or cause to be
paid, to the Bank:
(a) on the Closing Date for the period ending on December 31, 1995
and in advance on the first day of each January, April, July and October
occurring thereafter to the Termination Date, a non-refundable fee on the
Available Amount on each such payment date at a rate per annum equal to
three-quarters of one percent (3/4 of 1%); and
(b) on the date of each drawing under the Letter of Credit, a drawing
fee of $150.
Section 2.6. Method of Payment; etc. All payments to be made by the
Applicant under this Agreement shall be made at the Chicago office of the Bank
not later than 2:00 p.m. on the date when due and shall be made in lawful money
of the United States of America in freely transferable and immediately
available funds. All payments under this Agreement shall be made without
counterclaim, setoff, condition or qualification, and free and clear of and
without deduction or withholding for or by reason of any present or future
taxes, levies, imposts, deductions or charges of any nature whatsoever; in the
event that the Applicant is compelled by law to make any such deduction or
withholding, the Applicant shall nevertheless pay to the Bank such amounts as
will result in the receipt by the Bank of the sum it would have received had no
such deduction or withholding been required to be made.
Section 2.7. Substitute Letter of Credit. The Letter of Credit may be
replaced at any time so long as (i) the Bank shall have received payment of an
amount equal to the principal amount of all Pledged Bonds previously purchased
in accordance with Section 3.09(b) of the Indenture, (ii) all outstanding
Obligations are paid in full, and (iii) the Letter of Credit is surrendered and
cancelled by the Trustee.
Section 2.8. Computation of Interest and Fees. All computations of
interest and fees payable by the Applicant under this Agreement shall be made
on the basis of a 360-day year and
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actual days elapsed. Interest shall accrue during each period during which
interest is computed from and including the first day thereof to but excluding
the last day thereof.
Section 2.9. Payment Due on Non-Business Day to Be Made on Next Business
Day. If any sum becomes payable pursuant to this Agreement on a day which is
not a Business Day, the date for payment thereof shall be extended, without
penalty, to the next succeeding Business Day, and such extended time shall be
included in the computation of interest and fees.
Section 2.10. Late Payments. If the principal amount of any Obligation is
not paid when due, such Obligation shall bear interest until paid in full at a
rate per annum equal to the Prime Rate from time to time in effect plus two
percent (2%), payable on demand.
Section 2.11. Source of Funds. All payments made by the Bank pursuant to
the Letter of Credit shall be made from funds of the Bank, and not from the
funds of any other Person.
Section 2.12. Extension of Stated Expiration Date. The Applicant may
request that the Letter of Credit be extended for a period of one year not less
than sixty (60) days before each anniversary of the issuance of the Letter of
Credit. If the Bank, in its sole discretion, elects to extend the Stated
Expiration Date then in effect, it shall deliver to the Trustee a Notice of
Extension in the form of Exhibit K to the Letter of Credit (herein referred to
as a "Notice of Extension") designating the date to which the Stated Expiration
Date is being extended. Such extension of the Stated Expiration Date shall be
effective, after receipt of such notice, on the Business Day following the date
of delivery of such Notice of Extension, and thereafter all references in this
Agreement to the Stated Expiration Date shall be deemed to be references to the
date designated as such in the most recent Notice of Extension delivered to the
Trustee. Any date to which the Stated Expiration Date has been extended in
accordance with this Section 2.12 may be extended in like manner.
Section 2.13. Amendments upon Extension. Upon any extension of the Stated
Expiration Date pursuant to Section 2.12 of this Agreement, the Bank and the
Applicant each reserves the right to renegotiate any provision hereof.
ARTICLE THREE
CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to Issuance of Letter of Credit. As
conditions precedent to the obligation of the Bank to issue the Letter of
Credit, (a) the Applicant shall provide to the Bank on the Closing Date, in
form and substance satisfactory to the Bank and its counsel, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
(hereinafter "Bank's counsel"):
(i) a written opinion or opinions of counsel to the Applicant dated
the Closing Date and addressed to the Bank;
(ii) the written opinion or a reliance letter of The ▇▇▇▇▇▇▇ Law
Firm, bond counsel, dated the Closing Date and addressed to the Bank;
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(iii) the written opinion of counsel to the Issuer, dated the Closing
Date and addressed to the Bank;
(iv) a certificate signed by a duly authorized officer of the
Applicant, dated the Closing Date and stating that:
(A) the representations and warranties contained in Article
Four of this Agreement are true and correct on and as of the Closing
Date as though made on such date; and
(B) no Event of Default or Potential Default has occurred and
is continuing, or would result from the issuance of the Letter of
Credit or the execution, delivery or performance of this Agreement or
any Related Document to which the Applicant is a party;
(v) evidence of the due authorization, execution and delivery by the
parties thereto of the Related Documents;
(vi) a copy of the resolutions of the Board of Directors of the
Applicant and all other necessary corporate approvals, if any, certified as
of the Closing Date by the Secretary or Assistant Secretary of the
Applicant, authorizing, among other things, the execution, delivery and
performance by the Applicant of the Related Documents to which it is a
party and the issuance of the Letter of Credit;
(vii) true and correct copies of all material Governmental Approvals,
if any, necessary for the Applicant to execute, deliver and perform the
Related Documents to which it is a party and to authorize the Applicant to
obtain the issuance of the Letter of Credit;
(viii) confirmation that the Applicant does not need any consents and
other approvals from creditors necessary for the Applicant to execute,
deliver and perform the Related Documents to which it is a party and to
authorize the Applicant to obtain the issuance of the Letter of Credit;
(ix) a certificate of the Secretary or Assistant Secretary of the
Applicant certifying the names and true signatures of the officers of the
Applicant authorized to sign the Related Documents to which the Applicant
is a party;
(x) certified copies of documents evidencing all necessary action
taken by the Issuer to authorize the execution and delivery of the Related
Documents to which it is a party;
(xi) evidence that the Issuer shall have duly executed, issued and
delivered the Bonds to the Trustee and the Bond registrar shall have duly
authenticated the Bonds and delivered the Bonds against payment;
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(xii) evidence of insurance showing that the Project is being insured
in such amounts and against such risks as are customary for companies in
the same or similar business;
(xiii) such other documents, certificates and opinions as the Bank or
Bank's counsel may reasonably request;
(b) no law, regulation, ruling or other action of the United States or the
State of Illinois or any political subdivision or authority therein or thereof
shall be in effect or shall have occurred, the effect of which would be to
prevent the Bank from fulfilling its obligations under this Agreement or the
Letter of Credit; and
(c) all legal requirements provided herein incident to the execution,
delivery and performance of the Related Documents and the transactions
contemplated thereby, shall be reasonably satisfactory to the Bank and the
Bank's counsel.
Section 3.2. Conditions Precedent to Liquidity Advances. Following any
payment by the Bank under the Letter of Credit, a Liquidity Advance shall be
made available to the Applicant only if on the date of payment of such drawing
by the Bank the following statements shall be true:
(a) the representations and warranties of the Applicant contained in
Article Four of this Agreement and in the other Related Documents are
correct in all material respects on and as of the date of such payment as
though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from
such payment, which constitutes a Potential Default or Event of Default.
Unless the Applicant shall have previously advised the Bank in writing
that one or both of the above statements is no longer true, the Applicant shall
be deemed to have represented and warranted, to the best of their knowledge, on
the date of such payment that both of the above statements are true and
correct.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into this Agreement, the Applicant
represents and warrants to the Bank as follows:
Section 4.1. Organization and Qualification. The Applicant is duly
organized, validly existing and in good standing as a corporation under the
laws of the State of Delaware, has full and adequate corporate power to own the
Project and conduct its business as now conducted, and is duly licensed or
qualified and in good standing in each jurisdiction in which the nature of the
business conducted by it or the nature of the Project owned or leased by it
requires such licensing or qualifying. The Applicant has full right and
authority to enter into the Related Documents to
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which it is a party, to perform each and all of the matters and things therein
provided for; and the Related Documents to which the Applicant is a party do
not, nor does the performance or observance by the Applicant of any of the
matters or things therein provided for, contravene any provision of law or any
charter or by-law provision of the Applicant or any covenant, indenture or
agreement of or affecting the Applicant or the Project.
Section 4.2. Margin Stock. Neither the Applicant nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any drawing under the Letter of Credit will be used to purchase or carry any
such margin stock or extend credit to others for the purpose of purchasing or
carrying any such margin stock.
Section 4.3. Financial Reports. The consolidated and consolidating
financial statements of ▇▇▇▇▇▇▇▇ Laboratories, Inc., an Illinois Corporation
and its Subsidiaries as at September 24, 1995 and the related consolidated and
consolidating balance sheet and statements of income and retained earnings of
▇▇▇▇▇▇▇▇ Laboratories, Inc., and its Subsidiaries for the fiscal year then
ended and accompanying notes thereto, which financial statements are
accompanied by the audit report of KPMG Peat Marwick, LLP, independent public
accountants, and the unaudited interim consolidated and consolidating financial
statements of ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries as at June 24, 1995 and the
related consolidated and consolidating balance sheet and statements of income
of ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries for the nine (9) months then ended and
accompanying notes thereto, heretofore furnished to the Bank, fairly present
the consolidated financial condition of ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries as
at said dates and the consolidated and consolidating results of their
operations for the periods then ended in conformity with GAAP. As of the date
hereof, neither ▇▇▇▇▇▇▇▇ Labs nor any Subsidiary thereof have contingent
liabilities which, taken as a whole, are material to it other than as indicated
on such financial statements. Since the date of such audited financial
statements, there have been no material adverse changes in the condition
(financial or otherwise) of ▇▇▇▇▇▇▇▇ Labs or any Subsidiary thereof taken as a
whole.
Section 4.4. Litigation. There is no litigation or governmental
proceeding pending, nor to the knowledge of the Applicant threatened, against
▇▇▇▇▇▇▇▇ Labs or any Subsidiary thereof or any of their respective Property
which (i) if adversely determined would result in any material adverse change
in the financial condition, Property, business or operations of ▇▇▇▇▇▇▇▇ Labs
or any Significant Restricted Subsidiary thereof, (ii) in any manner draws into
question the validity or enforceability of any Related Document or any security
interest created thereby, or (iii) in any way contests the existence,
organization or powers of the Applicant or the titles of their officers to
their respective offices except the litigation set forth on Schedule I attached
hereto.
Section 4.5. Taxes. ▇▇▇▇▇▇▇▇ Labs has filed or caused to be filed all
material tax returns required by law to be filed and has paid or caused to be
paid all taxes, assessments and other governmental charges levied upon or in
respect of any of its properties, assets or franchises, other than taxes (i) as
to which, the failure to pay, could not have a material adverse impact on the
business of ▇▇▇▇▇▇▇▇ Labs or any Subsidiary thereof and (ii) the validity or
amount of which are
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being contested in good faith by appropriate proceedings and for which there
shall have set aside on its books adequate reserves in accordance with GAAP.
The charges, accruals and reserves on the books of ▇▇▇▇▇▇▇▇ Labs and its
Subsidiaries in respect of taxes for all fiscal periods are adequate, and there
is no unpaid assessment for additional taxes for any fiscal period or any basis
therefor.
Section 4.6. Approvals. No material authorization, consent, license,
exemption or filing or registration with any court or Governmental Authority or
any approval or consent of the stockholders of the Applicant or any other
Person that has not been obtained, is or will be necessary to the valid
execution, delivery or performance by the Applicant of any of the Related
Documents to which it is a party.
Section 4.7. ERISA. ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries are in compliance
in all material respects with ERISA to the extent applicable to them and have
received no notice to the contrary from the PBGC or any other Governmental
Authority. ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries have no Unfunded Vested
Liabilities. No condition exists or event or transaction has occurred with
respect to any Plan which could reasonably be expected to result in the
incurrence by ▇▇▇▇▇▇▇▇ Labs or any Subsidiary of any material liability, fine
or penalty. Neither ▇▇▇▇▇▇▇▇ Labs nor any Subsidiary thereof has any
contingent liability with respect to any post-retirement benefits under a
Welfare Plan, other than liability for continuation of coverage described in
Part 6 of Title I of ERISA, which, is not reflected in the financial statements
of ▇▇▇▇▇▇▇▇ Labs and its Subsidiaries.
Section 4.8. Investment Company. Neither ▇▇▇▇▇▇▇▇ Labs nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
Section 4.9. Public Utility Holding Company. Neither ▇▇▇▇▇▇▇▇ Labs nor
any Subsidiary thereof is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 4.10. Incorporation of Representations and Warranties by
Reference. The Applicant hereby makes to the Bank the same representations and
warranties as are set forth by it in each Related Document to which it is a
party, which representations and warranties, as well as the related defined
terms contained therein, are hereby incorporated herein by reference for the
benefit of the Bank with the same effect as if each and every such
representation and warranty and defined term were set forth herein in its
entirety and were made as of the date hereof. No amendment to such
representations and warranties or defined terms made pursuant to any Related
Document shall be effective to amend such representations and warranties and
defined terms as incorporated by reference herein without the prior written
consent of the Bank.
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ARTICLE FIVE
COVENANTS
The Applicant will do the following so long as any amounts may be drawn
under the Letter of Credit or any Obligations remain outstanding under this
Agreement, unless the Bank shall otherwise consent in writing:
Section 5.1. Corporate Existence, Etc. The Applicant will, and will cause
each Subsidiary to, maintain its corporate existence. The Applicant will
preserve and keep in force and effect, and cause each Subsidiary to maintain
all material licenses, permits, franchises and qualifications necessary to the
proper conduct of its business. The Applicant will continue, and will cause
each Subsidiary to continue, to engage in a business of the same general type
as now conducted by it.
Section 5.2. Maintenance of Properties. The Applicant will maintain,
preserve and keep its Property required for the conduct of its business in good
repair, working order and condition (ordinary wear and tear excepted).
Section 5.3. Compliance with Laws; Taxes and Assessments. The Applicant
will comply, and will cause each Subsidiary to comply, with all applicable
laws, rules, regulations and orders applicable to it and its Property, such
compliance to include, without limitation, paying all taxes, assessments and
governmental charges imposed upon it or its Property before the same become
delinquent, unless and to the extent that the same are being contested in good
faith and by appropriate proceedings and reserves are provided therefor that in
the opinion of the Applicant or such Subsidiary are adequate.
Section 5.4. Insurance. The Applicant will maintain, and will cause each
Subsidiary to maintain or be covered by, insurance with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as are customary for companies engaged in the same or a similar business
and similarly situated; provided that the Applicant and its Subsidiaries may
self-insure risks (a) in the manner in which the Applicant and its Subsidiaries
self-insure such risks on the Closing Date or (b) otherwise in a manner
consistent with prudent industry practice in the jurisdictions in which the
Applicant or such Subsidiaries conduct their respective operations. The
Applicant will upon request of the Bank furnish a certificate setting forth in
summary form the nature and extent of the insurance maintained pursuant to
this Section.
Section 5.5. Reports. The Applicant will, and will cause each Subsidiary
to:
(a) maintain a standard system of accounting in accordance with GAAP
and will furnish to the Bank such information respecting the business and
financial condition of the Applicant and its Subsidiaries as the Bank may
reasonably request; and without any request, will furnish to the Bank
internal unaudited financial statements prepared by Applicant's management
on a quarterly or annual basis, provided that the Applicant and its
Subsidiaries shall not be obligated by the foregoing to prepare any such
internal financial statements.
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(b) promptly after knowledge thereof shall have come to the attention
of any responsible officer (which, for purposes of this Section, shall mean
any officer of the Applicant holding a position of executive vice president
or higher), written notice (i) of any threatened or pending litigation or
governmental proceeding against the Applicant or any Subsidiary thereof
which, if adversely determined, would materially adversely affect the
financial condition, Property, business or operations of the Applicant or
any Subsidiary or (ii) of the occurrence of any Potential Default or Event
of Default hereunder.
Section 5.6. Inspection. The Applicant will, and will cause each
Subsidiary to, prior to an Event of Default semi-annually and after an Event of
Default from time to time as the Bank may request, permit the Bank and its duly
authorized representatives and agents to make reasonable visits and reasonable
inspections of any of the Properties, corporate books and financial records of
the Applicant and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Applicant and each Subsidiary, and
to discuss the affairs, finances and accounts of the Applicant and each
Subsidiary with, and to be advised as to the same by, its officers and
independent public accountants (and by this provision the Applicant authorizes
such accountants to discuss with the Bank the finances and affairs of the
Applicant and each Subsidiary) at such reasonable times and reasonable
intervals as the Bank may designate.
Section 5.7. Related Documents. The Applicant will not amend or consent
to any amendment of any Related Document without the written consent of the
Bank which shall not be unreasonably withheld.
Section 5.8. Optional Redemption of Bonds. The Applicant will not permit
an optional redemption or purchase of Bonds under Section 3.01 of the Indenture
without the consent of the Bank; provided however, that if the Applicant has
deposited with the Bank or the Trustee an amount equal to the principal amount
of Bonds to be redeemed pursuant to Section 3.01 of the Indenture, the Bank
shall consent to such optional redemption to the extent of such amounts.
Section 5.9. Nature of Business. The Applicant will not engage in any
business if, as a result, the general nature of the business would be
substantially changed from the general nature of the business engaged in by it
on the date of this Agreement.
Section 5.10. Limitation on Liens. The Applicant will not create or
incur, or suffer to be incurred or to exist, any Lien on its property or
assets, whether now owned or hereafter acquired, or upon any income or profits
therefrom, or transfer any property for the purpose of subjecting the same to
the payment of obligations in priority to the payment of its general creditors,
or acquire or agree to acquire any property or assets upon conditional sales
agreements or other title retention devices, unless the Obligations shall be
validly secured, equally and ratably, with any obligation of the Applicant so
secured, except:
(a) Liens for taxes and assessments or governmental charges or levies
and Liens securing claims or demands of mechanics and materialmen, provided
payment thereof is not at the time required by Section 5.3 of the Note
Purchase Agreement;
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(b) Liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or
in respect of the Applicant shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in respect of which
a stay of execution pending such appeal or proceeding for review shall
have been secured;
(c) Liens incidental to the conduct of business or the ownership of
properties and assets (including without limitation, Liens in connection
with workers' compensation, unemployment insurance and other like laws,
warehousemen's and attorneys' Liens and statutory landlords' Liens) and
Liens to secure the performance of bids, tenders or trade contracts, or
to secure statutory obligations, surety or appeal bonds or other Liens of
like general nature incurred in the ordinary course of business and not
in connection with the borrowing of money; provided in each case, the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Applicant or which customarily exist on properties of corporations
engaged in similar activities and similarly situated and which do not in
any event materially impair their use in the operation of the business of
the Applicant;
(e) Liens securing Indebtedness of the Applicant to ▇▇▇▇▇▇▇▇ Labs or
a Restricted Subsidiary;
(f) Liens existing on July 31, 1995 and any extension, renewal or
replacement (or successive extensions, renewals or replacements) of such
Liens; provided that no additional assets are encumbered by such Liens
and the principal amount of Indebtedness secured thereby shall not exceed
the maximum amount permitted to be outstanding under the agreement
pursuant to which such Indebtedness was issued, as such agreement exists
on the date hereof;
(g) Purchase Money Liens (as defined in the Note Purchase Agreement)
incurred after the date hereof, provided that (i) the Purchase Money Lien
shall attach solely to the capital stock or fixed assets acquired,
purchased or constructed, (ii) at the time of purchase of such capital
stock or acquisition or construction of such fixed assets, the aggregate
amount remaining unpaid on all Indebtedness secured by Purchase Money
Liens thereon, whether or not assumed by the Applicant shall not exceed
an amount equal to 100% of the fair market value at the time of purchase,
acquisition or construction of such capital stock or fixed assets (as
determined in good faith by the Board of Directors of the Applicant),
(iii) such Purchase Money Lien is created contemporaneously with, or
within 120 days after, such purchase, acquisition or the completion of
such construction; and (iv) all such Indebtedness shall have been
incurred within the applicable limitations provided in Section 5.8 of the
Note Purchase Agreement;
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(h) Liens incurred after the date hereof given to secure Indebtedness
incurred to finance the payment of the purchase price or cost incurred in
connection with the acquisition, construction, equipping or improving of
any Designated Project (as defined in the Note Purchase Agreement),
including Liens existing on such Designated Project at the time of
acquisition thereof or at the time of acquisition by the Applicant of any
business entity then owning such Designated Project, whether or not such
existing Liens were given to secure the payment of the purchase price of
the Designated Project to which they attach so long as they were not
incurred, extended or renewed in contemplation of such acquisition,
provided that (i) the Lien shall attach solely to the Designated Project,
including without limitation any stock or other equity interest of a Person
which owns the Designated Project, in whole or in part, (ii) at the time of
acquisition or construction of such Designated Project, the aggregate
amount remaining unpaid on all Indebtedness secured by Liens on such
Designated Project whether or not assumed by the Applicant shall not exceed
an amount equal to 100% of the fair market value at the time of acquisition
or construction of such Designated Project (as determined in good faith by
the Board of Directors of the Applicant), (iii) such Lien is created
contemporaneously with, or within 180 days after, the later to occur of
such acquisition or the completion of such construction, equipping or
improvement; and (iv) all such Indebtedness shall have been incurred within
the applicable limitations provided in Section 5.8 of the Note Purchase
Agreement; and
(i) Liens incurred after the date hereof by the Applicant on fixed
assets used or intended to be used in carrying on the business of the
Applicant securing Funded Debt incurred within the limitations of Section
5.8 of the Note Purchase Agreement.
Section 5.11. Mergers, Consolidations and Sales of Assets. The Applicant
may consolidate or merge with any other corporation provided (a) no Potential
Default or Event of Default shall have occurred and be continuing or would
result from such transaction and (b)(i) the Applicant is the surviving or
continuing corporation or (ii) the surviving or continuing corporation assumes
all of the Applicant's obligations hereunder and ▇▇▇▇▇▇▇▇ Labs provides written
confirmation that the ▇▇▇▇▇▇▇▇ Labs Guaranty remains in full force and effect
(such assumption and confirmation to be in form and substance satisfactory to
the Bank).
Section 5.12. Guaranties. The Applicant will not become or be liable in
respect of Guarantees except Guarantees which are limited in amount to a stated
maximum dollar exposure or which constitute Guarantees of obligations incurred
by the Applicant in compliance with the provisions of the Note Purchase
Agreement.
ARTICLE SIX
DEFAULTS
Section 6.1. Events of Default and Remedies. If any of the following
events shall occur, each such event shall be an "Event of Default":
(a) any material representation or warranty made by the Applicant in
this Agreement (or incorporated herein by reference) or in any of the other
Related
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Documents or in any certificate, document, instrument, opinion or financial
or other statement contemplated by or made or delivered pursuant to or in
connection with this Agreement or with any of the other Related Documents,
shall prove to have been incorrect, incomplete or misleading in any
material respect;
(b) any "event of default" shall have occurred under any of the
Related Documents or that certain Note Purchase Agreement Dated as of
August 30, 1994 regarding the $45,000,000 8.30% Senior Notes, Series A of
▇▇▇▇▇▇▇▇ Labs (as defined respectively therein);
(c) failure to pay to the Bank any Obligations when and as due
hereunder and such failure shall continue for five days after the
occurrence thereof;
(d) default in the due observance or performance by the Applicant of
any covenant set forth in Article Five hereof and such default shall
continue for fifteen days after the earlier of (i) the day on which the
President, the Chief Financial Officer or the Treasurer of the Applicant
first obtains knowledge of such default or (ii) the day on which written
notice thereof is given to the Applicant by the Bank;
(e) default in the due observance or performance by the Applicant of
any other term, covenant or agreement set forth in this Agreement which
is not remedied within 30 days after the earlier of (i) the day on which
the President, the Chief Financial Officer or the Treasurer of the
Applicant first obtains knowledge of such default, or (ii) the day on
which written notice thereof is given to the Applicant by the Bank;
provided that if any such default (other than one curable by the payment
of money) may be cured, but not within such 30 day period, it shall not
constitute an Event of Default hereunder if the Applicant promptly
commences to cure such default, diligently pursues such cure to
completion and such defaults is in fact cured within 90 days thereafter;
(f) any material provision of this Agreement or any of the Related
Documents shall cease to be valid and binding, or the Applicant shall
contest any such provision, or the Applicant or any agent or trustee on
behalf of an Applicant shall deny that it has any or further liability
under this Agreement or any of the Related Documents;
(g) ▇▇▇▇▇▇▇▇ Labs, the Applicant or any Significant Restricted
Subsidiary of ▇▇▇▇▇▇▇▇ Labs shall (i) have entered voluntarily against it
an order for relief under the Bankruptcy Code of 1978, as amended, (ii)
not pay, or admit in writing its inability to pay, its debts generally as
they become due or suspend payment of its obligations, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment or a receiver, custodian, trustee,
conservator, liquidator or similar official for it or any substantial
part of its property, (v) institute any proceeding seeking to have
entered against it an order for relief under the Bankruptcy Code of 1978,
as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, marshaling of assets,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to
file an answer or other pleading denying the material allegations of any
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such proceeding filed against it, (vi) fail to contest in good faith any
appointment or proceeding described in Section 6.1(h) hereof, or (vii)
take any action in furtherance of any of the foregoing purposes;
(h) a custodian receiver, trustee, conservator, liquidator or
similar official shall be appointed for ▇▇▇▇▇▇▇▇ Labs, the Applicant or
any Significant Restricted Subsidiary of ▇▇▇▇▇▇▇▇ Labs or any substantial
part of its property, or a proceeding described in Section 6.1(g)(v)
shall be instituted against ▇▇▇▇▇▇▇▇ Labs, the Applicant or any
Significant Restricted Subsidiary of ▇▇▇▇▇▇▇▇ Labs and such appointment
continues undischarged or any such proceeding continues undismissed or
unstayed for a period of 60 or more days;
(i) default shall occur and remain uncured for five days under any
evidence of Indebtedness in an amount not less than $5,000,000 issued,
assumed, or guaranteed by ▇▇▇▇▇▇▇▇ Labs, the Applicant or any Restricted
Subsidiary or under any indenture, agreement or other instrument under
which the same may be issued, and such default shall continue for a
period of time sufficient to permit the acceleration of the maturity of
any such Indebtedness (whether or not such maturity is in fact
accelerated) or any such Indebtedness shall not be paid when and as due
(whether by lapse of time, acceleration or otherwise);
(j) Final judgment or judgments for the payment of money aggregating
in excess of $2,500,000 is or are outstanding against ▇▇▇▇▇▇▇▇ Labs, the
Applicant or any Restricted Subsidiary or against any Property of
▇▇▇▇▇▇▇▇ Labs, the Applicant or any Restricted Subsidiary and any one or
more of such judgments aggregating at least $1,000,000 have remained
unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a
period equal to the longer of (i) 30 days from the date of its entry or
(ii) the expiration of the period during which no judgment creditor of
▇▇▇▇▇▇▇▇ Labs, the Applicant or such Restricted Subsidiary may execute
such judgment against any such Property;
(k) either ▇▇▇▇▇▇▇▇ Labs, the Applicant or any member of its
Controlled Group shall fail to pay when due an amount or amounts
aggregating in excess of $4,000,000 which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent
to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities
in excess of $4,000,000 (collectively, a "Material Plan") shall be filed
under Title IV of ERISA by ▇▇▇▇▇▇▇▇ Labs, the Applicant or any other
member of its Controlled Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to administer
any Material Plan or a proceeding shall be instituted by a fiduciary of
any Material Plan against ▇▇▇▇▇▇▇▇ Labs, the Applicant or any member of
its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and
such proceeding shall not have been dismissed within thirty (30) days
thereafter; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must
be terminated; or
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(l) a default shall occur and be continuing under any agreement
between either ▇▇▇▇▇▇▇▇ Labs, the Applicant and the Bank or under any
obligation owed by the Applicant to the Bank; or
(m) ▇▇▇▇▇▇▇▇ Labs shall, at any time, fail to maintain and keep the
ratio of Consolidated Current Assets to Adjusted Consolidated Current
Liabilities of not less than 1.1 to 1.0; or
(n) ▇▇▇▇▇▇▇▇ Labs shall, at any time, fail to maintain and keep
Adjusted Consolidated Tangible Net Worth at an amount of not less than
$70,000,000; or
(o) the sum of (x) Consolidated Funded Debt of ▇▇▇▇▇▇▇▇ Labs and its
Restricted Subsidiaries plus (y) Excess Current Debt treated as Funded
Debt plus (z) all Excess Transferred Property shall exceed 55% of
Consolidated Total Capitalization; or
(p) ▇▇▇▇▇▇▇▇ Labs shall default in the performance of any of its
obligations under the ▇▇▇▇▇▇▇▇ Labs Guaranty or disavow any obligation it
may have thereunder; or
(q) the occurrence of a Change in Control.
Section 6.2. Remedies. Upon the occurrence of any Event of Default the
Bank may exercise any one or more of the following rights and remedies in
addition to any other remedies herein or by law provided:
(a) by written notice to the Applicant require that the Applicant
immediately prepay to the Bank in immediately available funds an amount
equal to the Available Amount (such amounts to be held by the Bank as
collateral security for the Obligations), provided, however, that in the
case of an Event of Default described in Section 6.1(g) or (h) hereof,
such prepayment Obligations shall automatically become immediately due
and payable without any notice (unless the coming due of such Obligations
is waived by the Bank in writing);
(b) by notice to the Applicant, declare all Obligations to be, and
such amounts shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Applicant, provided that upon the occurrence of
an Event of Default under Section 6.1(g) or (h) hereof such acceleration
shall automatically occur (unless such automatic acceleration is waived
by the Bank in writing);
(c) give notice of the occurrence of an Event of Default to the
Trustee, directing the Trustee to accelerate the Bonds, thereby causing
the Letter of Credit to expire 15 days thereafter;
(d) pursue any rights and remedies it may have under the Related
Documents;
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(e) pursue any rights and remedies it may have under the ▇▇▇▇▇▇▇▇
Labs Guaranty; or
(f) pursue any other action available at law or in equity.
ARTICLE SEVEN
MISCELLANEOUS
Section 7.1. No Deductions; Increased Costs. (a) Except as otherwise
required by law, each payment by the Applicant to the Bank under this Agreement
or any other Related Document shall be made without setoff or counterclaim and
without withholding for or on account of any present or future taxes (other
than overall net income taxes on the recipient imposed by any jurisdiction
having control of such recipient) imposed by or within the jurisdiction in
which the Applicant is domiciled, any jurisdiction from which the Applicant
makes any payment hereunder, or (in each case) any political subdivision or
taxing authority thereof or therein. If any such withholding is so required,
the Applicant shall make the withholding, pay the amount withheld to the
appropriate Governmental Authority before penalties attach thereto or interest
accrues thereon and forthwith pay such additional amount as may be necessary to
ensure that the net amount actually received by the Bank free and clear of such
taxes (including such taxes on such additional amount) is equal to the amount
which the Bank would have received had such withholding not been made. If the
Bank pays any amount in respect of any such taxes, penalties or interest, the
Applicant shall reimburse the Bank for that payment on demand in the currency
in which such payment was made. If the Applicant pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Bank on or before the thirtieth day
after payment.
(b) If the Code or any newly adopted law, treaty, regulation, guideline or
directive, or any change in any, law, treaty, regulation, guideline or
directive or any new or modified interpretation of any of the foregoing by any
authority or agency charged with the administration or interpretation thereof
or any central bank or other fiscal, monetary or other authority having
jurisdiction over the Bank or the transactions contemplated by this Agreement
(whether or not having the force of law) shall:
(i) limit the deductibility of interest on funds obtained by the Bank
to pay any of its liabilities or subject the Bank to any tax, duty, charge,
deduction or withholding on or with respect to payments relating to the
Bonds, the Letter of Credit or this Agreement, or any amount paid or to be
paid by the Bank as the issuer of the Letter of Credit (other than any tax
measured by or based upon the overall net income of the Bank imposed by any
jurisdiction having control over the Bank);
(ii) impose, modify, require, make or deem applicable to the Bank any
reserve requirement, capital requirement, special deposit requirement,
insurance assessment or similar requirement against any assets held by,
deposits with or for the account of, or loans, letters of credit or
commitments by, an office of the Bank;
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(iii) change the basis of taxation of payments due the Bank under
this Agreement or the Bonds (other than by a change in taxation of the
overall net income of the Bank);
(iv) cause or deem letters of credit to be assets held by the Bank
and/or as deposits on its books; or
(v) impose upon the Bank any other condition with respect to any
amount paid or payable to or by the Bank or with respect to this Agreement
or any of the other Related Documents;
and the result of any of the foregoing is to increase the cost to the Bank of
making any payment or maintaining the Letter of Credit, or to reduce the amount
of any payment (whether of principal, interest or otherwise) receivable by the
Bank, or to reduce the rate of return on the capital of the Bank or to require
the Bank to make any payment on or calculated by reference to the gross amount
of any sum received by it, in each case by an amount which the Bank in its
reasonable judgment deems material, then:
(1) the Bank shall promptly notify the Applicant in writing of such
event;
(2) the Bank shall promptly deliver to the Applicant a certificate
stating the change which has occurred or the reserve requirements or other
costs or conditions which have been imposed on the Bank or the request,
direction or requirement with which it has complied, together with the date
thereof, the amount of such increased cost, reduction or payment and a
reasonably detailed description of the way in which such amount has been
calculated, and the Bank's determination of such amounts, absent fraud or
manifest error, shall be conclusive; and
(3) the Applicant shall pay to the Bank, from time to time as
specified by the Bank, such an amount or amounts as will compensate the
Bank for such additional cost, reduction or payment.
The protection of this Section 7.1(b) shall be available to the Bank
regardless of any possible contention of invalidity or inapplicability of the
law, regulation or condition which has been imposed; provided, however, that if
it shall be later determined by the Bank that any amount so paid by the
Applicant pursuant to this Section 7.1(b) is in excess of the amount payable
under the provisions hereof, the Bank shall refund such excess amount to the
Applicant.
Section 7.2. Right of Setoff; Other Collateral. (a) Upon the occurrence
and during the continuance of an Event of Default, the Bank is hereby
authorized at any time and from time to time without notice to the Applicant
(any such notice being expressly waived by the Applicant), and to the fullest
extent permitted by law, to setoff, to exercise any banker's lien or any right
of attachment and apply any and all balances, credits, deposits (general or
special, time or demand, provisional or final), accounts or monies at any time
held and other indebtedness at any time owing by the Bank to or for the account
of the Applicant (irrespective of the currency in which such accounts, monies
or indebtedness may be denominated and the Bank is authorized to
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convert such accounts, monies and indebtedness into United States dollars)
against any and all of the Obligations of the Applicant, whether or not the Bank
shall have made any demand for any amount owing to the Bank by the Applicant.
(b) The rights of the Bank under this Section 7.2 are in addition to, in
augmentation of, and, except as specifically provided in this Section 7.2, do
not derogate from or impair other rights and remedies (including, without
limitation, other rights of setoff) which the Bank may have.
Section 7.3. Indemnity. The Applicant agrees to indemnify and hold the
Bank and its directors, officers and employees harmless from and against, and
to pay on demand, any and all claims, damages, losses, liabilities, costs and
expenses whatsoever which the Bank or its directors, officers or employees may
incur or suffer by reason of or in connection with the execution and delivery
of this Agreement or the Letter of Credit, or any other documents which may be
delivered in connection with this Agreement or the Letter of Credit, or in
connection with any payment under the Letter of Credit, including, without
limitation, the fees and expenses of counsel for the Bank with respect thereto
and with respect to advising the Bank as to its rights and responsibilities
under this Agreement and the Letter of Credit and all fees and expenses, if
any, in connection with the enforcement or defense of the rights of the Bank in
connection with this Agreement, the Letter of Credit or any of the Related
Documents, or the collection of any monies due under this Agreement or such
other documents which may be delivered in connection with this Agreement, the
Letter of Credit or any of the Related Documents; except, only if, and to the
extent that any such claim, damage, loss, liability, cost or expense shall be
caused by the Bank's failure to act in good faith or to observe general banking
usage in connection with the Letter of Credit or failure to examine documents
presented under the Letter of Credit with care to determine whether they comply
with the terms of the Letter of Credit (it being understood that the Bank
assumes no liability or responsibility for the genuineness, falsification or
effect of any document which appears on such examination to be regular on its
face). Promptly after receipt by the Bank of notice of the commencement, or
threatened commencement, of any action subject to the indemnities contained in
this Section, the Bank shall promptly notify the Applicant thereof, provided
that failure to give such notice shall not relieve the Applicant from any
liability to the Bank hereunder. The obligations of the Applicant under this
Section 7.3 shall survive payment of all Obligations owed under this Agreement
and the expiration of the Letter of Credit.
Section 7.4. Obligations Absolute. The obligations of the Applicant under
this Agreement shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances.
Section 7.5. Liability of the Bank. (a) The Applicant assumes all risks
of the acts or omissions of the Trustee, or any agent of the Trustee, and any
transferee beneficiary of the Letter of Credit with respect to its use of the
Letter of Credit. Neither the Bank nor any of its officers or directors shall
be liable or responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Trustee and any transferee
beneficiary in connection therewith; (ii) the validity or genuineness of
documents, or of any endorsement(s) thereon, even if such documents should in
fact prove to be in any or all respects invalid, fraudulent or forged;
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30
or (iii) any other circumstances whatsoever in making or failing to make payment
under the Letter of Credit; provided, however, that the Applicant shall have a
claim against the Bank, and the Bank shall be liable to the Applicant, to the
extent of any direct compensatory, as opposed to consequential, damages suffered
by the Applicant which the Applicant proves were caused by the Bank's failure to
act in good faith or to observe general banking usage in connection with the
Letter of Credit or failure to examine documents presented under the Letter of
Credit with care to determine whether they comply with the terms of the Letter
of Credit (it being understood that the Bank assumes no liability or
responsibility for the genuineness, falsification or effect of any document
which appears on such examination to be regular on its face). The Bank is
hereby expressly authorized and directed to honor any demand for payment which
is made under the Letter of Credit without regard to, and without any duty on
its part to inquire into the existence of, any disputes or controversies between
or among the Applicant, the Trustee, any transferee beneficiary of the Letter of
Credit or any other Person or the respective rights, duties or liabilities of
any of them, or whether any facts or occurrences represented in any of the
documents presented under the Letter of Credit are true and correct.
(b) The Bank represents and warrants to the Applicant that it has all
necessary authority to enter into this Agreement and to issue the Letter of
Credit.
Section 7.6. Participants. The Bank shall, with the Applicant's consent
(which consent shall not be unreasonably withheld), have the right to grant
participations in the Letter of Credit to one or more other banking
institutions, and such participants shall be entitled to the benefits of this
Agreement, including, without limitation, Sections 7.1, 7.3 and 7.14 hereof, to
the same extent as if they were a direct party hereto; provided, however, that
no such participation by any such participant shall in any way affect the
obligation of the Bank under the Letter of Credit; and provided further that no
such participant shall be entitled to receive payment hereunder of any amount
greater than the amount which would have been payable had the Bank not granted
a participation to such participant.
Section 7.7. Survival of this Agreement. All covenants, agreements,
representations and warranties made in this Agreement shall survive the
issuance by the Bank of the Letter of Credit and shall continue in full force
and effect so long as the Letter of Credit shall be unexpired or any
Obligations shall be outstanding and unpaid. The obligation of the Applicant
to reimburse the Bank pursuant to Sections 7.1, 7.3 and 7.14 hereof, and the
obligation of the Bank to provide notice to the Applicant under Section 7.3
hereof, shall survive the payment of the Bonds and termination of this
Agreement.
Section 7.8 Modification of this Agreement. No amendment, modification or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by the Bank and no amendment, modification or
waiver of any provision of the Letter of Credit, and no consent to any
departure by the Applicant therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Bank. Any such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. No notice to or demand on the Applicant in any case shall
entitle the Applicant to any other or further notice or demand in the same,
similar or other circumstances.
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Section 7.9. Waiver of Rights by the Bank. No course of dealing or
failure or delay on the part of the Bank in exercising any right, power or
privilege hereunder or under the Letter of Credit or this Agreement shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right or
privilege. The rights of the Bank under the Letter of Credit and the rights of
the Bank under this Agreement are cumulative and not exclusive of any rights or
remedies which the Bank would otherwise have.
Section 7.10. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 7.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois,
without giving effect to conflict of law principles.
Section 7.12. Notices. All notices hereunder shall be given by United
States certified or registered mail or by telecommunication device capable of
creating written record of such notice and its receipt. Notices hereunder shall
be effective when received and shall be addressed:
If to the Bank, to ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Assistant Vice President
If to the Applicant, to ▇▇▇▇▇▇▇▇ Micro Science, Inc.
c/▇ ▇▇▇▇▇▇▇▇ Laboratories Worldwide, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
▇▇▇▇▇ ▇. ▇▇▇▇, Corporate Counsel
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and ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Blew, Esq.
If to the Trustee, to ▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Section 7.13. Successors and Assigns. Whenever in this Agreement the Bank
is referred to, such reference shall be deemed to include the successors and
assigns of the Bank and all covenants, promises and agreements by or on behalf
of the Applicant which are contained in this Agreement shall inure to the
benefit of such successors and assigns. The rights and duties of the Applicant
hereunder, however, may not be assigned or transferred, except as specifically
provided in this Agreement or with the prior written consent of the Bank, and
all obligations of the Applicant hereunder shall continue in full force and
effect notwithstanding any assignment by the Applicant of any of its rights or
obligations under any of the Related Documents or any entering into, or consent
by the Applicant to, any supplement or amendment to any of the Related
Documents.
Section 7.14. Taxes and Expenses. Any taxes (other than any tax measured
by or based upon the overall net income of the Bank imposed by any jurisdiction
having control over the Bank) payable or ruled payable by any Governmental
Authority in respect of this Agreement, the Letter of Credit or the Bonds shall
be paid by the Applicant, together with interest and penalties, if any;
provided, however, that the Applicant, may conduct a reasonable contest of any
such taxes which have been paid under protest and the amounts payable by the
Applicant hereunder shall not be duplicative of amounts payable to the Bank
under Section 7.1 hereof. The Applicant shall reimburse the Bank for any and
all out of pocket expenses and charges paid or incurred by the Bank in
connection with the preparation, execution, delivery, administration and
enforcement of this Agreement and any amendment to this Agreement or the Letter
of Credit, including reasonable fees and disbursements of counsel to the Bank.
Section 7.15. Headings. The captions in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 7.16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all taken together
to constitute one instrument.
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Section 7.17. Entire Agreement. This Agreement and the Related Documents
constitute the entire understanding of the parties with respect to the subject
matter thereof and any prior agreements, whether written or oral, with respect
thereto are superseded hereby.
Please signify your agreement and acceptance of the foregoing by executing
this Agreement in the space provided below.
Very truly yours,
ABN AMRO BANK N.V.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its
--------------------------
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its
--------------------------
Accepted and agreed to:
▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its Treasurer
-----------------------------
30
34
ANNEX A
RESTRICTED SUBSIDIARIES
JURISDICTION OF
NAME OF RESTRICTED SUBSIDIARY INCORPORATION
GLF Holdings Pty, Ltd.* Australia
GLF Holdings Ltd. Australia
Micro-Biotrol Pty, Ltd.* Australia
N.V. ▇▇▇▇▇▇▇▇ Laboratories S.A. Belgium
▇▇▇▇▇▇▇▇ Micro Science, N.V. Belgium
▇▇▇▇▇▇▇▇ Laboratories, Limited Canada
▇▇▇▇▇▇▇▇ Micro Science, Ltd. Canada
▇▇▇▇▇▇▇▇ Laboratories Zhuhai Company Ltd. China
▇▇▇▇▇▇▇▇ Colombia S.A. Colombia
Laboratories ▇▇▇▇▇▇▇▇ Centro America, ▇.▇. ▇▇▇▇▇ Rica
GMS S.A.S. France
▇▇▇▇▇▇▇▇ Micro Science S.A. France
▇▇▇▇▇▇▇▇ Laboratories GmbH Germany
▇▇▇▇▇▇▇▇ Micro Science GmbH Germany
▇▇▇▇▇▇▇▇ Laboratories, Ltd. Hong Kong
▇▇▇▇▇▇▇▇ Laboratories, Ltd. Ireland
▇▇▇▇▇▇▇▇ Laboratories S.r.L. Italy
▇▇▇▇▇▇▇▇ Laboratories K.K. Japan
Laboratories ▇▇▇▇▇▇▇▇ de Mexico, S.A. de C.V. Mexico
▇▇▇▇▇▇▇▇ Micro Science, S.A. de C.V. Mexico
Bienes Raices ▇▇▇▇▇▇▇▇, ▇.▇. de C.V. Mexico
▇▇▇▇▇▇▇▇ Laboratories, B.V. Netherlands
▇▇▇▇▇▇▇▇ Micro Science B.V. Netherlands
GLF Holdings Ltd.* New Zealand
▇▇▇▇▇▇▇▇ Panama, S.A. Panama
▇▇▇▇▇▇▇▇ Laboratories Pte. Ltd. Singapore
▇▇▇▇▇▇▇▇ Laboratories S.A. Spain
▇▇▇▇▇▇▇▇ Laboratories, Ltd. United Kingdom
▇▇▇▇▇▇▇▇ Micro Science, Ltd. United Kingdom
▇▇▇▇▇▇▇▇ Micro Science, Inc. USA - Delaware
▇▇▇▇▇▇▇▇ Micro Science International, Inc. USA - Delaware
Synergistic Computer Services, Inc. USA - Delaware
Protein & Seasoning Services, Inc. USA - Delaware
▇▇▇▇▇▇▇▇ Laboratories U.S.A., Inc. USA - Delaware
Custom Food Products, Inc. USA - Illinois
▇▇▇▇▇▇▇▇ International, Inc. (DISC) USA - Illinois
---------------------------------
* Currently in process of being dissolved.
35
SCHEDULE I
APPLICANT LITIGATION
None
36
APPENDIX I
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
November 15, 1995
**U.S. $4,555,480
No S550123
▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the "Trustee")
under the Indenture of Trust dated as of November l,
1995 (the "Indenture"), between Mecklenburg County
Industrial Facilities and Pollution Control Financing
Authority North Carolina (the "Issuer" ), and the
Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Division
Ladies and Gentlemen:
We hereby establish in your favor as Trustee for the benefit of the
holders of the Bonds (as hereinafter defined), our irrevocable transferable
Letter of Credit No. S550123 for the account of ▇▇▇▇▇▇▇▇ Micro Science, Inc.
(the "Applicant"), whereby we hereby irrevocably authorize you to draw on us
from time to time, from and after the date hereof to and including the earliest
to occur of our close of business on: (i) November 15, 1998 (as extended from
time to time, the "Stated Expiration Date"), (ii) the earlier of (A) the date
which is the Business Day following an Adjustable Rate Conversion Date or a CP
Rate Conversion Date (as such terms are defined in the Indenture) with respect
to all of the Bonds as such date is specified in a certificate in the form of
Exhibit A hereto (the "Conversion Date") or (B) the date on which the Bank
honors drawings under the Letter of Credit on or after the Conversion Date,
(iii) the date which is the Business Day following receipt from you of a
certificate in the form set forth as Exhibit B hereto, (iv) the date on which
an Acceleration Drawing is honored by us, and (v) the date which is fifteen
(15) days following receipt by you of a written notice from us specifying the
occurrence of an Event of Default under the Reimbursement Agreement dated as of
November 1, 1995, between the Applicant and us (the "Reimbursement Agreement")
and directing you to accelerate the Bonds (the earliest of such dates being
referred to herein as the "Termination Date"), a maximum aggregate amount not
exceeding Four Million Five Hundred Fifty Five Thousand Four Hundred Eighty
Dollars (U.S. $4,555,480 - the "Original Stated Amount") to pay principal of
and accrued interest on, or the purchase price of, the $4,500,000 Mecklenburg
County Industrial Facilities and Pollution Control Financing Authority North
Carolina Industrial Development
Page 1 of 22 Pages
37
Agency Industrial Development Revenue Bonds Series 1995 (▇▇▇▇▇▇▇▇ Micro Science,
Inc. Project) issued by the Issuer (the "Bonds"), in accordance with the terms
hereof (said $4,555,480 having been calculated to be equal to $4,500,000, the
original principal amount of the Bonds, plus $55,480 which is at least
forty-five (45) days' accrued interest on said principal amount of the Bonds at
the rate of ten percent (10%) per annum (the "Cap Interest Rate")). This credit
is available to you against presentation of the following documents (the
"Payment Documents") presented to ABN AMRO BANK N.V. (the "Bank") as described
below:
A certificate (with all blanks appropriately
completed) (i) in the form attached as Exhibit C
hereto to pay accrued interest on the Bonds as
provided for under Section 5.04 of the Indenture (an
"Interest Drawing"), (ii) in the form attached as
Exhibit D hereto to pay the principal amount of and
accrued interest on the Bonds in respect of any
redemption of the Bonds as provided for in Section
5.04 of the Indenture (a "Redemption Drawing"),
provided that in the event the date of redemption or
purchase coincides with an Interest Payment Date (as
defined in the Indenture) the Redemption Drawing shall
not include any accrued interest on the Bonds (which
interest is payable pursuant to an Interest Drawing),
(iii) in the form attached as Exhibit E hereto, to pay
the purchase price of Bonds tendered or deemed
tendered for purchase as provided for in Section 3.08
of the Indenture which have not been successfully
remarketed or for which the purchase price has not
been received by the Tender Agent or the Remarketing
Agent (as such terms are defined in the Indenture) by
10:00 A.M., Chicago time, on the purchase date (a
"Liquidity Drawing"), provided that in the event the
purchase date coincides with an Interest Payment Date,
the Liquidity Drawing shall not include any accrued
interest on the Bonds (which interest is payable
pursuant to an Interest Drawing), (iv) in the form
attached as Exhibit F hereto, to pay the principal of
and accrued interest in respect of Bonds the payment
of which has been accelerated pursuant to Section 5.04
of the Indenture (an "Acceleration Drawing"), or (v)
in the form attached as Exhibit G hereto to pay the
principal amount of Bonds maturing on November 1, 2007
(a "Stated Maturity Drawing"), each certificate to
state therein that it is given by your duly authorized
officer and dated the date such certificate is
presented hereunder. No drawings shall be made under
this Letter of Credit for Pledged Bonds or Company
Bonds (as defined in the Indenture).
All drawings shall be made by presentation of each Payment Document at our
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Trade Services, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ as aforesaid, by tested telex (at telex number (312)
673-2700 Answerback: ABNAMROCGO) or by telecopier (at telecopier number (312)
606-8435), without further need of documentation, including the original of
this Letter of Credit, it being understood that each Payment Document
Page 2 of 22 Pages
38
so submitted is to be the sole operative instrument of drawing. You shall use
your best efforts to give telephonic notice of a drawing to the Bank at its
Letter of Credit Department, ((▇▇▇) ▇▇▇-▇▇▇▇) on the Business Day preceding the
day of such drawing (but such notice shall not be a condition to drawing
hereunder and you shall have no liability for not doing so).
We agree to honor and pay the amount of any Interest, Redemption,
Liquidity, Acceleration or Stated Maturity Drawing if presented in compliance
with all of the terms of this Letter of Credit. If such drawing, other than a
Liquidity Drawing or an Interest Drawing, is presented prior to 11:00 A.M.,
Chicago time, on a Business Day, payment shall be made to the account number or
address designated by you of the amount specified, in immediately available
funds, by 10:00 A.M., Chicago time, on the following Business Day. If any such
drawing, other than a Liquidity Drawing or an Interest Drawing, is presented at
or after 11:00 A.M., Chicago time, on a Business Day, payment shall be made to
the account number or address designated by you of the amount specified, in
immediately available funds, by 1:30 P.M., Chicago time, on the following
Business Day. If a Liquidity Drawing or an Interest Drawing is presented prior
to 10:30 A.M., Chicago time, on a Business Day, payment shall be made to the
account number or address designated by you of the amount specified, in
immediately available funds, by 1:30 P.M., Chicago time, on the same Business
Day. If a Liquidity Drawing or an Interest Drawing is presented at or after
10:30 A.M., Chicago time, payment shall be made to the account number or
address designated by you of the amount specified, in immediately available
funds, by 10:00 A.M., Chicago time, on the following Business Day. Payments
made hereunder shall be made by wire transfer to you or your designee or by
deposit into your account with us in accordance with the instructions specified
by the Trustee in the drawing certificate relating to a particular drawing
hereunder. "Business Day" means any day other than (i) a Saturday or Sunday or
(ii) a day on which banking institutions in the city in which the principal
corporate trust office of the Trustee is located, or in the City of Chicago,
Illinois, are required or authorized by law or executive order to remain
closed, or (iii) a day on which the New York Stock Exchange is closed.
The Available Amount (as hereinafter defined) will be reduced
automatically by the amount of any drawing hereunder; provided, however, that
the amount of any Interest Drawing hereunder, less the amount of the reduction
in the Available Amount attributable to interest as specified in a certificate
in the form of Exhibit D or H hereto, shall be automatically reinstated
effective the eleventh (11th) calendar day from the date of such drawing unless
you shall have received notice to the contrary by telecopy (or other facsimile
telecommunications) within ten (10) calendar days of the date of any Interest
Drawing. After payment by us of a Liquidity Drawing, the obligation of the
Bank to honor drawings under this Letter of Credit will be automatically
reduced by an amount equal to the Original Purchase Price (as defined below) of
any Bonds (or portions thereof) purchased pursuant to said drawing. In
addition, prior to the Conversion Date, in the event of the remarketing of the
Bonds (or portions thereof) previously purchased with the proceeds of a
Liquidity Drawing, or in the event we are otherwise reimbursed for amounts
owing with respect to such drawing, our obligation to honor drawings hereunder
will be automatically reinstated concurrently upon receipt by us, or the
Trustee or the Tender Agent on our behalf, of an amount equal to the Original
Purchase Price of such Bonds (or portion thereof); the amount of such
reinstatement shall be equal to the Original Purchase Price of such Bonds (or
portions thereof). "Original Purchase Price" shall mean the principal amount
of any
Page 3 of 22 Pages
39
Bond purchased with the proceeds of a Liquidity Drawing plus the amount of
accrued interest on such Bond paid with the proceeds of a Liquidity Drawing (and
not pursuant to an Interest Drawing) upon such purchase.
Upon receipt by us of a certificate of the Trustee in the form of Exhibit
D or H hereto, the Letter of Credit will automatically and permanently reduce
the amount available to be drawn hereunder by the amount specified in such
certificate. Such reduction shall be effective as of the next Business Day
following the date of delivery of such certificate.
Upon any permanent reduction of the amounts available to be drawn under
this Letter of Credit, as provided herein, we may deliver to you a substitute
Letter of Credit in exchange for this Letter of Credit or an amendment to this
Letter of Credit substantially in the form of Exhibit I hereto to reflect any
such reduction. If we deliver to you such a substitute Letter of Credit you
shall simultaneously surrender to us for cancellation the Letter of Credit then
in your possession.
The "Available Amount" shall mean the Original Stated Amount (i) less the
amount of all prior reductions pursuant to Interest, Redemption, Liquidity,
Acceleration or Stated Maturity Drawings, (ii) less the amount of any reduction
thereof pursuant to a reduction certificate in the form of Exhibit D or H
hereto to the extent such reduction is not already accounted for by a reduction
in the Available Amount pursuant to (i) above, (iii) plus the amount of all
reinstatements as above provided.
Prior to the Termination Date, we may extend the Stated Expiration Date
from time to time at the request of the Applicant by delivering to you an
amendment to this Letter of Credit in the form of Exhibit K hereto designating
the date to which the Stated Expiration Date is being extended. Each such
extension of the Stated Expiration Date shall become effective on the Business
Day following delivery of such notice to you and thereafter all references in
this Letter of Credit to the Stated Expiration Date shall be deemed to be
references to the date designated as such in such notice. Any date to which
the Stated Expiration Date has been extended as herein provided may be extended
in a like manner.
Upon the Termination Date this Letter of Credit shall automatically
terminate and be delivered to the Bank for cancellation.
This Letter of Credit is transferable in whole only to your successor as
Trustee. Any such transfer (including any successive transfer) shall be
effective upon receipt by us (which receipt shall be subsequently confirmed in
writing to the transferor and the transferee by the Bank) of a signed copy of
the instrument effecting each such transfer signed by the transferor and by the
transferee in the form of Exhibit J hereto (which shall be conclusive evidence
of such transfer) and, in such case, the transferee instead of the transferor
shall, without the necessity of further action, be entitled to all the benefits
of and rights under this Letter of Credit in the transferor's place; provided
that, in such case, any certificates of the Trustee to be provided hereunder
shall be signed by one who states therein that he is a duly authorized officer
or agent of the transferee.
Page 4 of 22 Pages
40
Communications with respect to this Letter of Credit shall be addressed to
us at ABN AMRO BANK N.V., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Trade Services, specifically referring to the number of
this Letter of Credit.
To the extent not inconsistent with the express terms hereof, this Letter
of Credit shall be governed by, and construed in accordance with, the terms of
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 (the "Uniform Customs"),
except for Article 41 and the first sentence of Article 48(g) thereof. As to
matters not governed by the Uniform Customs, this Letter of Credit shall be
governed by and construed in accordance with the laws of the State of Illinois,
including without limitation the Uniform Commercial Code as in effect in the
State of Illinois.
All payments made by us hereunder shall be made from our funds and not
with the funds of any other person.
This Letter of Credit sets forth in full the terms of our undertaking, and
such undertaking shall not in any way be modified or amended by reference to
any other document whatsoever.
ABN AMRO BANK N.V.
By
-------------------------------------
Its
----------------------------------
By
-------------------------------------
Its
----------------------------------
Page 5 of 22 Pages
41
EXHIBIT A
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
NOTICE OF CONVERSION DATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
Ladies and Gentlemen:
Reference is hereby made to that certain Irrevocable Transferable Letter
of Credit No. S550123 dated November 15, 1995 (the "Letter of Credit"), which
has been established by you for the account of [Name of Applicant], in favor of
the Trustee.
The undersigned hereby certifies and confirms that an Adjustable Rate
Conversion Date [or a CP Rate Conversion Date] with respect to all of the Bonds
has occurred on [insert date], and, accordingly, said Letter of Credit shall
terminate on the Business Day after such Conversion Date in accordance with its
terms.
All defined terms used herein which are not otherwise defined herein shall
have the same meaning as in the Letter of Credit.
---------------------------------------
as Trustee
By
-------------------------------------
[Title of Authorized Representative]
Page 6 of 22 Pages
42
EXHIBIT B
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
NOTICE OF TERMINATION
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
Ladies and Gentlemen:
Reference is hereby made to that certain Irrevocable Transferable Letter
of Credit No. S550123 dated November 15, 1995 (the "Letter of Credit"), which
has been established by you for the account of [Name of Applicant] in favor of
the Trustee.
The undersigned hereby certifies and confirms that [(i) no Bonds (as
defined in the Letter of Credit) remain Outstanding within the meaning of the
Indenture, (ii) all drawings required to be made under the Indenture and
available under the Letter of Credit have been made and honored, (iii) a
substitute letter of credit has been issued to replace the Letter of Credit
pursuant to the Indenture, or (iv) the Trustee is required to terminate the
Letter of Credit in accordance with the terms of the Indenture and,
accordingly, the Letter of Credit shall be terminated in accordance with its
terms.
All defined terms used herein which are not otherwise defined shall have
the same meaning as in the Letter of Credit.
--------------------------------------
as Trustee
By
------------------------------------
[Title of Authorized Representative]
Page 7 of 22 Pages
43
By Telecopy or Tested Telex
EXHIBIT C
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
INTEREST DRAWING CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned individual, a duly authorized representative of (the
"Beneficiary"), hereby CERTIFIES on behalf of the Beneficiary as follows with
respect to (i) that certain Irrevocable Transferable Letter of Credit No.
S550123 dated November 15, 1995 (the "Letter of Credit"), issued by ABN AMRO
BANK N.V. (the "Bank") in favor of the Beneficiary; (ii) those certain Bonds
(as defined in the Letter of Credit); and (iii) that certain Indenture (as
defined in the Letter of Credit):
1. The Beneficiary is the Trustee (as defined in the Letter of Credit)
under the Indenture.
2. The Beneficiary is entitled to make this drawing in the amount of $
under the Letter of Credit pursuant to the Indenture with respect to the
payment of interest due on all Bonds outstanding on the Interest Payment Date
(as defined in the Indenture) occurring on [insert applicable date][, other
than Company Bonds or Pledged Bonds (as defined in the Indenture)].
3. The amount of the drawing is equal to the amount required to be drawn
by the Trustee pursuant to Section 5.04 of the Indenture.
4. The amount of the drawing made by this Certificate was computed in
compliance with the terms of the Indenture and, when added to the amount of any
other drawing under the Letter of Credit made simultaneously herewith, does not
exceed the Available Amount (as defined in the Letter of Credit).
5. Payment by the Bank pursuant to this drawing shall be made to
__________________, ABA Number _________________, Account Number ____________,
Attention: ___________________, Re: ___________________.
Page 8 of 22 Pages
44
IN WITNESS WHEREOF, this Certificate has been executed this ___________
day of ______________, 19___.
----------------------------------------
as Trustee
By
--------------------------------------
[Title of Authorized Representative]
Page 9 of 22 Pages
45
By Telecopy or Tested Telex
EXHIBIT D
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
REDEMPTION DRAWING AND REDUCTION CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned individual, a duly authorized representative of
_______________________ (the "Beneficiary"), hereby CERTIFIES on behalf of the
Beneficiary as follows with respect to (i) that certain Irrevocable Transferable
Letter of Credit No. S550123 dated November 15, 1995 (the "Letter of Credit"),
issued by ABN AMRO BANK N.V. (the "Bank") in favor of the Beneficiary; (ii)
those certain Bonds (as defined in the Letter of Credit); and (iii) that certain
Indenture (as defined in the Letter of Credit):
1. The Beneficiary is the Trustee (as defined in the Letter of Credit)
under the Indenture.
2. The Beneficiary is entitled to make this drawing in the amount of
$_________ under the Letter of Credit pursuant to Section 5.04 of the
Indenture.
3. (a) The amount of this drawing is equal to (i) the principal amount
of Bonds to be redeemed by the Issuer (as defined in the Letter of Credit)
pursuant to Section 5.04 of the Indenture on [insert applicable date] (the
"Redemption Date") [other than Company Bonds or Pledged Bonds (as defined in the
Indenture)], plus (ii) interest on such Bonds accrued from the immediately
preceding Interest Payment Date (as defined in the Indenture) to the Redemption
Date, provided that in the event the Redemption Date coincides with an Interest
Payment Date this drawing does not include any accrued interest on such Bonds.
(b) Of the amount stated in paragraph 2 above:
(i) $ is demanded in respect of the principal amount of the Bonds
referred to in subparagraph (a) above; and
(ii) $ is demanded in respect of accrued interest on such Bonds.
Page 10 of 22 Pages
46
4. Payment by the Bank pursuant to this drawing shall be made to , ABA
Number , Account Number , Attention: , Re: .
5. The amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Indenture and, when added to
the amount of any other drawing under the Letter of Credit made simultaneously
herewith, does not exceed the Available Amount (as defined in the Letter of
Credit).
6. Upon payment of the amount drawn hereunder, the Bank is hereby directed
to permanently reduce the Available Amount by $[insert amount of reduction] and
the Available Amount shall thereupon equal $[insert new Available Amount]. The
Available Amount has been reduced by an amount equal to the principal of Bonds
paid with this drawing and an amount equal to forty five (45) days' interest
thereon at the Cap Interest Rate (as defined in the Letter of Credit).
7. Of the amount of the reduction stated in paragraph 6 above:
(i) $ is attributable to the principal amount of Bonds redeemed;
and
(ii) $ is attributable to interest on such Bonds (i.e., 45 days'
interest thereon at the Cap Interest Rate).
8. The amount of the reduction in the Available Amount has been computed
in accordance with the provisions of the Letter of Credit.
9. Following the reduction, the Available Amount shall be at least equal
to the aggregate principal amount of the Bonds outstanding (to the extent such
Bonds are not Pledged Bonds or Company Bonds (as defined in the Indenture))
plus forty five (45) days' interest thereon at the Cap Interest Rate.
10. In the case of a redemption pursuant to Section 3.01 of the Indenture,
the Trustee, prior to giving notice of redemption to the owners of the Bonds,
received written evidence from the Bank that the Bank has consented to such
redemption.
IN WITNESS WHEREOF, this Certificate has been executed this day of ,
19___.
-----------------------------------------
as Trustee
By
---------------------------------------
[Title of Authorized Representative]
Page 11 of 22 Pages
47
By Telecopy or Tested Telex
EXHIBIT E
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
LIQUIDITY DRAWING CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned individual, a duly authorized representative of
_________________________ (the "Beneficiary") hereby CERTIFIES as follows with
respect to (i) that certain Irrevocable Transferable Letter of Credit No.
S550123 dated November 15, 1995 (the "Letter of Credit") issued by ABN AMRO BANK
N.V. (the "Bank") in favor of the Beneficiary; (ii) those certain Bonds (as
defined in the Letter of Credit); and (iii) that certain Indenture (as defined
in the Letter of Credit):
1. The Beneficiary is the Trustee under the Indenture.
2. The Beneficiary is entitled to make this drawing under the Letter of
Credit in the amount of $____________ with respect to the payment of the
purchase price of Bonds tendered or deemed tendered for purchase in accordance
with Section 3.08 of the Indenture and to be purchased on [insert applicable
date] (the "Purchase Date") which Bonds have not been remarketed as provided in
the Indenture or the purchase price of which has not been received by the Tender
Agent or the Remarketing Agent (as such terms are defined in the Indenture) by
10:00 A.M., Chicago time, on said Purchase Date.
3. (a) The amount of the drawing is equal to (i) the principal amount of
Bonds to be purchased pursuant to the Indenture on the Purchase Date [other
than Pledged Bonds and Company Bonds (as such terms are defined in the
Indenture)], plus (ii) interest on such Bonds accrued from the immediately
preceding Interest Payment Date (as defined in the Indenture) (or if none, the
date of issuance of the Bonds) to the Purchase Date, provided that in the event
the Purchase Date coincides with an Interest Payment Date this drawing does not
include any accrued interest on such Bonds.
(b) Of the amount stated in paragraph (2) above:
Page 12 of 22 Pages
48
(i) $__________ is demanded in respect of the principal portion of
the purchase price of the Bonds referred to in subparagraph (2) above;
and
(ii) $__________ is demanded in respect of payment of the interest
portion of the purchase price of such Bonds.
4. The amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Indenture and, when added to
the amount of any other drawing under the Letter of Credit made simultaneously
herewith, does not exceed the Available Amount (as defined in the Letter of
Credit).
5. If the Bonds are not then in a Book-Entry System (as defined in the
Indenture), the Beneficiary will register or cause to be registered in the name
of the Applicant, upon payment of the amount drawn hereunder, Bonds in the
principal amount of the Bonds being purchased with the amounts drawn hereunder
and will deliver such Bonds to the Trustee in accordance with the Indenture.
If the Bonds are then in a Book-Entry System, the records of the Securities
Depository (as defined in the Indenture) will reflect the Bonds being held for
the account of the Trustee and the Trustee will maintain such beneficial
interest for the benefit of the Bank as provided in the Indenture.
6. Payment by the Bank pursuant to this drawing shall be made to _________,
ABA Number __________,Account Number __________,Attention:____________,
Re:___________.
IN WITNESS WHEREOF, this Certificate has been executed this _______ day of
___________, 19___.
----------------------------------------
as Trustee
By
--------------------------------------
[Title of Authorized Representative]
Page 13 of 22 Pages
49
By Telecopy or Tested Telex
EXHIBIT F
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
ACCELERATION DRAWING CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned individual, a duly authorized representative of (the
"Beneficiary"), hereby CERTIFIES on behalf of the Beneficiary as follows with
respect to (i) that certain Irrevocable Transferable Letter of Credit No.
S550123 dated November 15, 1995 (the "Letter of Credit"), issued by ABN AMRO
BANK N.V. (the "Bank") in favor of the Beneficiary; (ii) those certain Bonds
(as defined in the Letter of Credit); and (iii) that certain Indenture (as
defined in the Letter of Credit):
1. The Beneficiary is the Trustee under the Indenture.
2. An Event of Default has occurred under subsection [insert subsection]
of Section 6.01 of the Indenture and the Trustee has declared the principal of
and accrued interest on all Bonds then outstanding immediately due and payable.
The Beneficiary is entitled to make this drawing in the amount of $ under the
Letter of Credit pursuant to Section 5.04 of the Indenture in order to pay the
principal of and interest accrued on the Bonds due to an acceleration thereof
in accordance with Section 6.02 of the Indenture.
3. (a) The amount of this drawing is equal to (i) the principal amount of
Bonds outstanding on [insert date of acceleration] (the "Acceleration Date")
[other than Pledged Bonds or Company Bonds (as such terms are defined in the
Indenture)], plus (ii) interest on such Bonds accrued from the immediately
preceding Interest Payment Date (as defined in the Indenture) (or if none, the
date of issuance of the Bonds) to the Acceleration Date.
(b) Of the amount stated in paragraph 2 above:
(i) $___________ is demanded in respect of the principal portion of
the Bonds referred to in subparagraph (a) above; and
(ii) $___________ is demanded in respect of accrued interest on such
Bonds.
Page 14 of 22 Pages
50
4. The amount of this drawing made by this Certificate was computed in
compliance with the terms and conditions of the Indenture and, when added to
the amount of any drawing under the Letter of Credit made simultaneously
herewith, does not exceed the Available Amount (as defined in the Letter of
Credit).
5. Payment by the Bank pursuant to this drawing shall be made to
______________________, ABA Number __________________,
Account Number __________________, Attention: ___________________,
Re: _________________.
IN WITNESS WHEREOF, this Certificate has been executed this ______ day of
__________, 19___.
----------------------------------------
as Trustee
By
--------------------------------------
[Title of Authorized Representative]
Page 15 of 22 Pages
51
By Telecopy or Tested Telex
EXHIBIT G
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
STATED MATURITY DRAWING CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned individual, a duly authorized representative of
___________________________ (the "Beneficiary"), hereby CERTIFIES on behalf of
the Beneficiary as follows with respect to (i) that certain Irrevocable
Transferable Letter of Credit No. S550123 dated November 15, 1995 (the "Letter
of Credit"), issued by ABN AMRO BANK N.V. (the "Bank") in favor of the
Beneficiary; (ii) those certain Bonds (as defined in the Letter of Credit);
and (iii) that certain Indenture (as defined in the Letter of Credit):
1. The Beneficiary is the Trustee under the Indenture.
2. The Beneficiary is entitled to make this drawing in the amount of
$________ under the Letter of Credit pursuant to Section 5.04 of the Indenture.
3. The amount of this drawing is equal to the principal amount of Bonds
outstanding on __________, ____________, the maturity date thereof as specified
in Section 5.04 of the Indenture[,other than Pledged Bonds or Company Bonds
(as such terms are defined in the Indenture)].
4. The amount of this drawing made by this Certificate was computed in
compliance with the terms and conditions of the Indenture and, when added to
the amount of any other drawing under the Letter of Credit made simultaneously
herewith, does not exceed the Available Amount (as defined in the Letter of
Credit) .
5. Payment by the Bank pursuant to this drawing shall be made to __________
_________, ABA Number ________________, Account Number _________________,
Attention:____________________ , Re:_________________ .
Page 16 of 22 Pages
52
IN WITNESS WHEREOF, this Certificate has been executed this _______ day
of ______________ , ______.
-----------------------------------------
as Trustee
By
---------------------------------------
[Title of Authorized Representative]
Page 17 of 22 Pages
53
EXHIBIT H
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
REDUCTION CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
The undersigned hereby CERTIFIES with respect to (i) that certain
Irrevocable Transferable Letter of Credit No. S550123 dated November 15, 1995
(the "Letter of Credit"), issued by ABN AMRO BANK N.V. (the "Bank") in favor of
the Beneficiary; (ii) those certain Bonds (as defined in the Letter of Credit);
and (iii) that certain Indenture (as defined in the Letter of Credit):
1. The Beneficiary is the Trustee under the Indenture.
2. Upon receipt by the Bank of this Certificate, the Available Amount (as
defined in the Letter of Credit) shall be reduced by $ and the Available Amount
shall thereupon equal $ _______ .$ _______ of the new Available Amount is
attributable to interest.
3. The amount of the reduction in the Available Amount has been computed
in accordance with the provisions of the Letter of Credit.
4. Following the reduction, the Available Amount shall be at least equal
to the aggregate principal amount of the Bonds outstanding (other than Pledged
Bonds or Company Bonds (as such terms are defined in the Indenture)) plus
forty-five (45) days' interest thereon at the Cap Interest Rate (as defined in
the Letter of Credit).
IN WITNESS WHEREOF, this Certificate has been executed this _____ day of __
_____________ , 19____.
-----------------------------------------
as Trustee
By
---------------------------------------
[Title of Authorized Representative]
Page 18 of 22 Pages
54
EXHIBIT I
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
NOTICE OF AMENDMENT
[TRUSTEE]
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is hereby made to that certain Irrevocable Transferable Letter
of Credit No. S550123 dated November 15, 1995 (the "Letter of Credit"),
established by us in your favor as Beneficiary. We hereby notify you that, in
accordance with the terms of the Letter of Credit and that certain
Reimbursement Agreement dated as of November 1, 1995, among ▇▇▇▇▇▇▇▇ Micro
Science, Inc. and us, the Available Amount (as defined in the Letter of Credit)
has been reduced to $ __________ .
This letter should be attached to the Letter of Credit and made a part
thereof.
ABN AMRO BANK N.V.
By
-------------------------------------
Its
----------------------------------
By
--------------------------------------
Its
-----------------------------------
Page 19 of 22 Pages
55
EXHIBIT J
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
TRANSFER CERTIFICATE
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trade Services
Ladies and Gentlemen:
Reference is made to that certain Irrevocable Transferable Letter of
Credit No. S550123 dated November 15,1995 (the "Letter of Credit") which has
been established by the Bank in favor of ____________.
The undersigned, a duly authorized officer or agent of [Name of
Transferor], has transferred and assigned (and hereby confirms to you said
transfer and assignment) all of its rights in and under said Letter of Credit
to [Name of Transferee] and confirms that [Name of Transferor] no longer has
any rights under or interest in said Letter of Credit.
Transferor and Transferee have indicated on the face of said Letter of
Credit that it has been transferred and assigned to Transferee.
The undersigned, a duly authorized officer or agent of the Transferee,
hereby certifies that the Transferee is a duly authorized Transferee under the
terms of said Letter of
56
Credit and is accordingly entitled, upon presentation of the documents called
for therein, to receive payment thereunder.
-----------------------------------------
Name of Transferor
By
---------------------------------------
[Title of Authorized Officer
of Transferor]
-----------------------------------------
Name of Transferee
By
---------------------------------------
[Title of Authorized Officer
of Transferor]
Page 21 of 22 Pages
57
EXHIBIT K
TO
ABN AMRO BANK N.V.
LETTER OF CREDIT
NO. S550123
NOTICE OF EXTENSION
[TRUSTEE]
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is hereby made to that certain Irrevocable Transferable Letter
of Credit No. S550123 dated November 15, 1995 (the "Letter of Credit"),
established by us in your favor as Beneficiary. We hereby notify you that, in
accordance with the terms of the Letter of Credit and that certain
Reimbursement Agreement dated as of November 1, 1995, between [Name of
Applicant] and us, the Stated Expiration Date (as defined in the Letter of
Credit) has been extended to _____________, ____.
This letter should be attached to the Letter of Credit and made a part
thereof.
ABN AMRO BANK N.V.
By
-------------------------------------
Its
----------------------------------
By
-------------------------------------
Its
----------------------------------
Page 22 of 22 Pages
