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EXHIBIT 10.18
AMENDED AND RESTATED INTER-COMPANY LOAN AGREEMENT
This Amended and Restated Inter-Company Loan Agreement (this "AGREEMENT")
is made and entered into effective as of June 1, 1999 (the "EFFECTIVE DATE") by
and between Ocular Sciences, Inc., a Delaware corporation ("OSI"), and Precision
Lens Manufacturing & Technology, Inc., a Barbados corporation ("PLMT"), and
replaces and supersedes in its entirety that certain Inter-Company Loan
Agreement dated as of March 1, 1999 (the "ORIGINAL DATE") by and between OSI and
PLMT.
RECITALS
WHEREAS, on March 1, 1999 PLMT entered into an Inter-Company Loan Agreement
providing for the loan of up to $20,000,000 from OSI to PLMT and PLMT executed
and delivered to OSI a Revolving Promissory Note in the principal sum of
$20,000,000 (the "ORIGINAL NOTE");
WHEREAS, PLMT now wishes to borrow up to an additional $70,000,000 from
OSI, its parent corporation, from time to time, on and subject to the terms and
conditions contained in this Agreement;
WHEREAS, OSI is willing to provide loans of up to an aggregate of
$90,000,000 to PLMT from time to time, on and subject to the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, OSI and PLMT
hereby agree as follows:
1. CERTAIN DEFINITIONS. As used herein:
1.1 BUSINESS DAY. The term "BUSINESS DAY" means any day other than a
Saturday, Sunday, or other day on which commercial banks in San Mateo County,
California are authorized or required by law to close.
1.2 LOAN DOCUMENTS. The term "LOAN DOCUMENTS" means, collectively,
this Agreement, the Replacement Note (as defined below) executed and delivered
pursuant hereto and any other documents executed or delivered by OSI or PLMT
pursuant to this Agreement or in connection with any Loan (as defined below).
1.3 LOAN PERIOD. The term "LOAN PERIOD" means that period of time
beginning on the Original Date and ending on the Maturity Date.
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1.4 MATURITY DATE. The term "MATURITY DATE" means that date which is
the earlier to occur of: (a) March 1, 2004; (b) the sale of all or substantially
all the assets of PLMT; (c) the merger or consolidation of PLMT with or into
another company or other reorganization of 1.5 PLMT following which the
shareholders of PLMT immediately prior to such transaction do not own at least
51% of the company emerging as the survivor or parent company in such
transaction; (d) the date the OSI Loan Facility (as defined in Section 2.1) is
terminated pursuant to Section 5.2(a); (e) the date on which OSI declares the
entire unpaid principal amount and all accrued interest on an outstanding Note
immediately due and payable in full pursuant to the terms of such Note or under
Section 5.2(b), or such amount otherwise becomes immediately due and payable in
full; or (f) the date on which OSI and PLMT mutually agree to terminate this
Agreement.
2. AMOUNT AND TERMS OF LOAN.
2.1 OSI LOAN FACILITY. Subject to all the terms and conditions of this
Agreement, and in reliance on the representations, warranties and covenants of
PLMT set forth in this Agreement, OSI agrees to make loans of funds to PLMT, in
each case subject to the sole discretion of OSI, during the Loan Period on a
revolving basis (such loans being collectively hereinafter referred to as
"LOANS" and each individually as a "LOAN"), in an aggregate cumulative total
principal amount outstanding at any one time not to exceed Ninety Million
Dollars (US$90,000,000). Loans may be requested and drawn down by PLMT as and
when PLMT needs such sums for general corporate purposes upon two (2) Business
Days written notice to OSI. OSI in its sole discretion, for any reason or no
reason and without liability to PLMT, may refuse to provide one or more Loans
requested by PLMT. OSI's obligation to consider requests for Loans to PLMT under
this Agreement is referred to as the "OSI LOAN FACILITY". PLMT's indebtedness to
OSI for Loans advanced by OSI under this Agreement will be evidenced by a
Promissory Note of PLMT in the form attached hereto as Exhibit "A" (the
"REPLACEMENT NOTE").
2.3 MATURITY. Unless payment thereof is accelerated or otherwise
becomes due earlier under the terms of this Agreement (including but not limited
to the provisions of Section 5.2), the unpaid principal amount of all Loans and
all unpaid interest accrued thereon, together with any other fees, expenses or
costs incurred in connection therewith, will be immediately due and payable to
OSI in full on the earlier of the Maturity Date or the Payment Date set forth in
the Replacement Note.
2.4 CANCELING OR REDUCING LOAN FACILITY. Upon ten (10) calendar days
written notice to PLMT, OSI may cancel the OSI Loan Facility or reduce the
amount of the OSI Loan Facility. Upon OSI providing a notice electing to cancel
the amount of the OSI Loan Facility made available to PLMT hereunder, the
Replacement Note shall be deemed automatically converted, without further action
required on the part of either party hereto, into a non-revolving fixed
promissory note, due on the Payment Date set forth in such Replacement Note, in
a principal amount equal to then aggregate principal amount of all Loans
outstanding
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under such Replacement Note plus accrued interest thereon, and will bear
interest from such date forward at the rate specified in such Replacement Note,
and no further Loans will be made by OSI to PLMT under such Replacement Note or
this Agreement. Upon OSI providing a notice electing to reduce the amount of the
OSI Loan Facility made available to PLMT hereunder, the Replacement Note shall
be deemed automatically converted, without further action required on the part
of either party hereto, into a promissory note, due on the Payment Date set
forth in such Replacement Note, in a principal amount equal to the amount to
which the OSI Loan Facility is so reduced and all other terms of the Replacement
Note shall remain unchanged.
2.5 PAYMENT OF AMOUNTS OWING; OFFSET. Upon the earliest to occur of
the Payment Date set forth in the Replacement Note or the Maturity Date
specified in this Agreement, OSI shall provide PLMT written notice of the
aggregate amount of principal and accrued interest owing to OSI by PLMT as of
such date under the Replacement Note and this Agreement and such amounts shall
be offset against any amounts then owing by OSI to PLMT, if any, and the net
amount owing to OSI shall be immediately due and payable by PLMT.
3. REPRESENTATIONS AND WARRANTIES OF PLMT. PLMT hereby represents and
warrants to OSI that:
3.1 ORGANIZATION AND STANDING. PLMT is a corporation duly organized,
validly existing and in good standing under the laws of Barbados, and has all
requisite corporate power and authority to own, lease and operate its properties
and to conduct its business as such is presently conducted and as proposed to be
conducted.
3.2 AUTHORIZATION. All corporate action on the part of PLMT and its
officers, directors and shareholders that is necessary for the authorization,
execution, delivery and performance of each of the Loan Documents by PLMT has
been taken; and each of the Loan Documents constitutes valid and legally binding
obligations of PLMT, enforceable in accordance with their terms.
4. REPRESENTATIONS AND WARRANTIES OF OSI. OSI hereby represents and
warrants to PLMT that:
4.1 ORGANIZATION AND STANDING. OSI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as such is presently conducted and as
proposed to be conducted.
4.2 AUTHORIZATION. All corporate action on the part of OSI and its
officers, directors and shareholders that is necessary for the authorization,
execution, delivery and performance of each of the Loan Documents by OSI has
been taken; and each of the Loan Documents constitutes valid and legally binding
obligations of OSI, enforceable in accordance with their terms.
5. EVENTS OF DEFAULT OF BORROWER.
5.1 EVENTS OF DEFAULT. The occurrence of any of the following events
will constitute an "EVENT OF DEFAULT" under this Agreement and the applicable
Replacement Note:
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(a) PLMT fails to pay any principal or any accrued interest under
any Replacement Note or any Loan when the same is due and payable, or fails to
pay any amount of principal or accrued interest due under the Replacement Note
or any Loan on the Payment Date or Maturity Date therefor, and such failure to
pay is not cured by PLMT within two (2) Business Days after OSI gives written
notice of such failure to pay to PLMT; or
(b) PLMT is in default under any other agreement, note or
instrument pursuant to which PLMT has borrowed money from OSI; or
(c) PLMT is in default with respect to any agreement or other
evidence of indebtedness or liability for borrowed money if the effect of such
default is to (i) to accelerate the maturity of such indebtedness or liability
or to require the prepayment thereof, or (ii) to permit the holder thereof to
cause such indebtedness to become due prior to the stated maturity thereof;
(d) PLMT becomes insolvent, or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the benefit of
creditors, or applies for or consents to the appointment of a receiver,
liquidator, custodian or trustee for it or for a substantial part of its
property or business, or such a receiver, liquidator, custodian or trustee
otherwise is appointed and is not discharged within thirty (30) calendar days
after such appointment;
(e) bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors are instituted by or against PLMT, or any order,
judgment or decree is entered against PLMT decreeing its dissolution or
liquidation; provided, however, with respect to an involuntary petition in
bankruptcy, such petition is not dismissed within thirty (30) days after the
filing of such petition;
(f) a court order or judgment for the payment of money in excess
of US$500,000 is entered against PLMT; or
(g) the assets of PLMT are seized by or surrendered to any
governmental entity.
5.2 REMEDIES OF OSI. Upon and after the occurrence of any Event of
Default, OSI will have no further obligation to make any Loan or Loans to PLMT,
and in addition, at OSI's sole option by written notice to PLMT, OSI may take
any one or more of the following actions:
(a) OSI may immediately terminate the Loan Facility it provides
hereunder and all other liabilities and obligations of OSI under this Agreement,
without affecting OSI's rights under this Agreement and the Replacement Note;
and
(b) OSI may declare the entire principal amount of and all
accrued interest on the Replacement Note and all Loans immediately due and
payable in full, whereupon such amounts will immediately be due and payable in
full, provided that in the case of an Event of Default listed in paragraph (d),
(e) or (g) of Section 5.1, the principal and interest will
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immediately become due and payable without the requirement of any notice or
other action by OSI; and
(c) Exercise all rights and remedies granted under the Loan
Documents or otherwise available to OSI at law or in equity.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT. This Agreement and the Replacement Note and
schedules attached thereto constitute the entire agreement and understanding
among the parties with respect to the subject matter thereof and supersede any
prior understandings or agreements of the parties with respect to such subject
matter. The Replacement Note replaces and supersedes in its entirety the
Original Note, which is deemed canceled.
6.2 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of California as applied to
agreements entered into solely between residents of, and to be performed
entirely in, such state, without reference to that body of law relating to
conflicts of law or choice of law.
6.3 MODIFICATION; WAIVER. This Agreement may be modified or amended
only by a writing signed by both parties hereto. No waiver or consent with
respect to this Agreement will be binding unless it is set forth in writing and
signed by the party against whom such waiver is asserted. No course of dealing
between OSI and PLMT will operate as a waiver or modification of any party's
rights under this Agreement or any other Loan Document. No delay or failure on
the part of either party in exercising any right or remedy under this Agreement
or any other Loan Document will operate as a waiver of such right or any other
right. A waiver given on one occasion will not be construed as a bar to, or as a
waiver of, any right or remedy on any future occasion.
6.4 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies of OSI
herein provided will be cumulative and not exclusive of any other rights or
remedies provided by law or otherwise.
6.5 NOTICES. Any notice required or permitted under this Agreement
will be given in writing and will be deemed effectively given upon personal
delivery, upon confirmed transmission by telecopy or email, or three (3) days
following deposit with the United States Post Office, postage prepaid,
addressed:
To OSI:
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000 Xxxxxx Xxxxxx
Xx. Xxx Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
To PLMT:
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c/o KPMG
Chartered Accountants
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Hastings Xxxxxx Church
Barbados
Attention: General Manager
or at such other address as such party may specify by written notice given in
accordance with this Section.
6.6 SEVERABILITY. Any invalidity, illegality or unenforceability of
any provision of this Agreement in any jurisdiction will not invalidate or
render illegal or unenforceable the remaining provisions hereof in such
jurisdiction and will not invalidate or render illegal or unenforceable such
provision in any other jurisdiction.
6.7 ATTORNEYS' FEES. If any party hereto commences or maintains any
action at law or in equity (including counterclaims or cross-complaints) against
the other party hereto by reason of the breach or claimed breach of any term or
provision of this Agreement, any Note or any other Loan Document, then the
prevailing party in said action will be entitled to recover its reasonable
attorneys' fees and court costs incurred therein.
6.8 SUCCESSORS AND ASSIGNS. This Agreement, and its rights and
obligations hereunder, may be transferred and assigned by OSI to any entity
which is controlled by, which controls, or is under common control with OSI. The
terms and conditions of this Agreement will inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties;
provided, however, that this Agreement may not be transferred, assigned or
delegated by PLMT, whether by voluntary assignment or operation of law, without
the prior written consent of OSI.
6.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
OCULAR SCIENCES, INC. PRECISION LENS MANUFACTURING & TECHNOLOGY, INC.
Name: XXXXXXX XXXXXXXXXX Name: XXXXXXXX XXXXXXX
By: /s/ XXXXXXX XXXXXXXXXX By: /s/ XXXXXXXX XXXXXXX
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Title: Vice President, Finance Title: Director
Executed at: South San Francisco Executed at: Xxx Halcyon Cove, Antigua, Barbados
ATTACHMENTS:
Exhibit A - PLMT Revolving Promissory Note - $90,000,000
[SIGNATURE PAGE TO
AMENDED AND RESTATED INTER-COMPANY LOAN AGREEMENT]
