1
EXHIBIT 10.8(d)
================================================================================
REIMBURSEMENT AGREEMENT
BETWEEN
THE FIRST NATIONAL BANK OF CHICAGO
AND
XXXXXXXX MICRO SCIENCE, INC.
DATED AS OF DECEMBER 1, 1994
================================================================================
2
REIMBURSEMENT AGREEMENT
Dated as of December 1, 1994
Xxxxxxxx Micro Science, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
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
$5,369,699. 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 Xxxxxxxx Labs or another Restricted Subsidiary of all or a
portion of the voting stock of such Person or (ii) is organized by
Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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.
3
"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, 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 Xxxxxxxx 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 The First National Bank of Chicago, as issuer
of the Letter of Credit, and its successors and assigns.
"Bond Documents" means the Indenture, the Lease Agreement, the
Guaranty, the Offering Agreement, the Remarketing Agreement, the
Offering Memorandum and the Bonds.
"Bonds" means the $5,300,000 aggregate principal amount of the
Issuer's Industrial Development Revenue Bonds, Series 1994 (Xxxxxxxx
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.
2
4
"Change of Control" means each and every issue, sale or other
disposition of shares of any class or classes of capital stock of
Xxxxxxxx Labs or Xxxxxxxx Laboratories, Inc., whether by means of an
initial public offering or otherwise, which results in any Acquirer,
other than the Xxxxxxxx Family Group, beneficially owning or
controlling, directly or indirectly, more than 50% (by number of votes)
of the voting stock of Xxxxxxxx Labs or Xxxxxxxx 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 "Xxxxxxxx Family Group" shall mean
(i) Xxxx X. Xxxxxxxx; (ii) the spouses, lineal descendants and spouses
of the lineal descendants of Xxxx X. Xxxxxxxx; (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 Xxxxxxxx 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
Xxxxxxxx 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 Xxxxxxxx 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.
3
5
"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 Xxxxxxxx Labs to any
Subsidiary or of any Restricted Subsidiary to Xxxxxxxx Labs or to a
wholly owned Restricted 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 ss. 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 Xxxxxxxx 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
Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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.
4
6
"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.
"Xxxxxxxx Labs Guaranty" means the Guaranty issued by Xxxxxxxx
Laboratories Worldwide, Inc. ("Xxxxxxxx Labs") in favor of the Bank
dated on or about the date hereof.
"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)
5
7
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 Counties of Xxxxxx and Washington
Industrial Development Agency and its successors and assigns.
"Lease Agreement" means the Lease 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.
"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.
"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 Xxxxxxxx
Labs and/or one or more of its Restricted Subsidiaries. Minority
Interests shall be valued in accordance with GAAP.
"Moody's" means Xxxxx'x 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 Xxxxxxxx Laboratories, Inc., Nationwide
Life Insurance Company, Employers Life
6
8
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.
"Offering Agent" means The First National Bank of Chicago.
"Offering Agreement" means the Offering Agreement dated as of
December 28, 1994 among The First National Bank of Chicago, the
Applicant and the Issuer.
"Offering Memorandum" means the Offering Memorandum dated
December 29, 1994, 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.
"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.
7
9
"Prime Rate" means for any day the greater of:
(i) the rate per annum equal to the corporate base
rate of interest 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 Town of Xxxxxxxxx, Washington County, New York 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 Xxxxxxxx Labs Guaranty but shall not
include the Offering Memorandum.
"Remarketing Agent" means The First National Bank of Chicago,
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 Xxxxxxxx
Labs which is designated as a Restricted Subsidiary in accordance with
the provisions SS.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 Xxxxxxxx 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.
8
10
"Restricted Upstream Guaranty" shall mean any Guaranty by an
Acquired Foreign Restricted Subsidiary of Indebtedness of Xxxxxxxx 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) and 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 Xxxxxxxx Labs immediately preceding the
date of any determination thereof was equal to at least 10% of the
operating income of Xxxxxxxx Labs and its consolidated Subsidiaries, as
shown on the most recent consolidated statement of earnings of Xxxxxxxx
Labs.
"S&P" means Standard & Poor's Ratings Group.
"Stated Expiration Date" shall have the meaning set forth in
the Letter of Credit.
"Subsidiary" means, as to the Applicant or Xxxxxxxx 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
Xxxxxxxx Labs, as the case may be, by one or more Subsidiaries or by
the Applicant or Xxxxxxxx Labs and one or more Subsidiaries.
"Termination Date" shall have the meaning set forth in the
Letter of Credit.
"Trustee" means Xxxxxx Trust and Savings Bank, as Trustee
under the Indenture, and any successor trustee thereunder.
"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
9
11
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 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 $5,369,699 (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 eight (48) 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 irrevocably approves reductions and reinstatements of
the Available Amounts as provided therein.
10
12
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.
(c) Upon the Bank's receipt of any payment of 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, 1994 and in advance on the first day of each
January, April, July and October occurring thereafter
to
11
13
the Termination Date, a non-refundable fee on the
Available Amount on each such payment date at a rate
per annum equal to seven-eighths of one percent (7/8
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 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
12
14
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, Xxxxxxx and Xxxxxx (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 Xxxxxxx
and Xxxxxx, bond counsel, dated the Closing Date and addressed to
the Bank;
(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 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
13
15
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) 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;
(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 form 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 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
14
16
(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 which the Applicant is a party to
perform each and all of the matters and things therein provided for;
and the Related Documents to which 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 Xxxxxxxx Laboratories, Inc., an
Illinois corporation and its Subsidiaries as at September 25, 1993 and
the related consolidated and consolidating balance sheet and statements
of income and retained earnings of Xxxxxxxx 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 Xxxxxxxx Labs and its Subsidiaries as at June 25, 1994 and the
related consolidated and consolidating balance sheet and statements of
income of Xxxxxxxx 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 Xxxxxxxx
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 Xxxxxxxx Labs nor
any Subsidiary thereof have contingent liabilities
15
17
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 Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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. Xxxxxxxx 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 Xxxxxxxx Labs or
any Subsidiary thereof and (ii) the validity or amount of which are
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 Xxxxxxxx
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. Xxxxxxxx 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. Xxxxxxxx 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 Xxxxxxxx Labs or
any Subsidiary of any material liability, fine or penalty. Neither
Xxxxxxxx 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 or ERISA, which, is not reflected in the financial
statements of Xxxxxxxx Labs and its Subsidiaries.
Section 4.8. Investment Company. Neither Xxxxxxxx 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.
16
18
Section 4.9. Public Utility Holding Company. Neither Xxxxxxxx
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.
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 Significant Restricted 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
17
19
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, 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 Xxxxxxxx Labs and its Subsidiaries
as the Bank may reasonably request; and without any request, will
furnish to the Bank:
(a) Quarterly Statements. As soon as available and in any
event within 60 days after the end of each quarterly fiscal period
(except the last) of each fiscal year, copies of:
(1) consolidated balance sheets of Xxxxxxxx Labs and
its Restricted Subsidiaries as of the close of such quarterly
fiscal period, setting forth in comparative form the
consolidated figures for the fiscal year then most recently
ended,
(2) consolidated statements of earnings and changes
in stockholders' equity of Xxxxxxxx Labs and its Restricted
Subsidiaries for such quarterly fiscal period and for the
portion of the fiscal year ending with such quarterly fiscal
period, in each case setting forth, commencing with the
quarterly fiscal period of Xxxxxxxx Labs ended December, 1995,
in comparative form the consolidated figures for the
corresponding periods of the preceding fiscal year, and
(3) consolidated statements of cash flow of Xxxxxxxx
Labs and its Restricted Subsidiaries for the portion of the
fiscal year ending with such quarterly fiscal period, setting
forth, commencing with the quarterly fiscal period of Xxxxxxxx
Labs ended December, 1995, in comparative form the
consolidated figures for the corresponding period of the
preceding fiscal year.
all in reasonable detail and certified as complete and correct by an
authorized financial officer of Xxxxxxxx Labs;
(b) Annual Statements of Xxxxxxxx Labs and its Subsidiaries.
As soon as available and in any event within 120 days after the close
of each fiscal year of Xxxxxxxx Labs, copies of:
(1) consolidated and consolidating balance sheets of
Xxxxxxxx Labs and its Subsidiaries as of the close of such
fiscal year, and
(2) consolidated and consolidating statements of
earnings and changes in stockholders' equity and the
consolidated statement of cash flow of Xxxxxxxx Labs and its
Subsidiaries for such fiscal year,
18
20
in each case setting forth, commencing with the financial statements
for the fiscal year of Xxxxxxxx Labs ended September 30, 1995, in
comparative form the consolidated figures for the preceding fiscal
year, all in reasonable detail and accompanied by a report thereon of a
firm of independent public accountants of recognized national standing
selected by Xxxxxxxx Labs to the effect that the consolidated financial
statements present fairly, in all material respects, the consolidated
financial position of Xxxxxxxx Labs and its Subsidiaries as of the end
of the fiscal year being reported on and the consolidated results of
the operations and cash flow for said year in conformity with GAAP and
that the examination of such accountants in connection with such
financial statements has been conducted in accordance with generally
accepted auditing standards and included such tests of the accounting
records and such other auditing procedures as said accountants deemed
necessary in the circumstances, provided that such consolidating
statements may be furnished covering each Subsidiary or groups of
Subsidiaries in accordance with the practice of Xxxxxxxx Labs at the
time of preparation of such consolidating statements for any such
fiscal year;
(c) Annual Statements of Xxxxxxxx Labs and its Restricted
Subsidiaries. For any fiscal year or portion thereof during which any
Subsidiary is not also a Restricted Subsidiary, as soon as available
and in any event within 120 days after the close of such fiscal year,
copies of:
(1) consolidated balance sheets of Xxxxxxxx Labs and its
Restricted Subsidiaries as of the close of such fiscal year,
and
(2) consolidated statements of earnings, changes in
stockholders' equity and cash flow of Xxxxxxxx Labs and its
Restricted Subsidiaries for such fiscal year.
in each case setting forth, commencing with the financial statements
for the second consecutive fiscal year of Xxxxxxxx Labs for which it is
required to furnish annual statements pursuant to this paragraph (c),
in comparative form the consolidated figures for the preceding fiscal
year, all prepared on a basis consistent with and in the same degree of
detail as the quarterly financial statements of Xxxxxxxx Labs and its
Restricted Subsidiaries furnished pursuant to Section 4.3 and certified
as complete and correct by an authorized financial officer of Xxxxxxxx
Labs.
(d) Audit Reports. Promptly upon receipt thereof, one copy of
each interim or special audit made by independent accountants of the
books of Xxxxxxxx Labs and any management letter pertaining to Xxxxxxxx
Labs from such accountants;
(e) 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) of the Applicant, written notice
(i) of any threatened or pending litigation or governmental proceeding
against the Applicant, Xxxxxxxx Labs or any Significant Restricted
Subsidiary thereof which, if materially adversely determined, would
adversely effect the financial condition,
19
21
Property, business or operations of the Applicant or any
Subsidiary or (ii) of the occurrence of any Potential Default
or Event of Default hereunder.
Each of the financial statements furnished to the Bank
pursuant to this Section shall be accompanies by a written certificate
signed by the chief financial officer of Xxxxxxxx Labs to the effect
that to the best of such officer's knowledge and belief no Potential
Default or Event of Default has occurred during the period covered by
such statements or, if any such Potential Default or Event of Default
has occurred during such period, setting forth a description of such
Potential Default or Event of Default and specifying the action, if
any, taken to remedy the same. Such certificate shall also set forth
the calculations supporting such statements in respect of Sections
6.1(m), (n) and (o) of this Agreement.
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.
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 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;
20
22
(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 Xxxxxxxx Labs (as
defined respectively therein);
(c) failure to pay 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) Xxxxxxxx Labs, the Applicant or any Significant
Restricted Subsidiary of Xxxxxxxx Labs shall (i) have entered
involuntarily 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 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;
21
23
(h) a custodian receiver, trustee, conservator,
liquidator or similar official shall be appointed for
Xxxxxxxx Labs, the Applicant or any Significant Restricted
Subsidiary of Xxxxxxxx Labs or any substantial part of its
property, or a proceeding described in Section 6.1(g)(v)
shall be instituted against Xxxxxxxx Labs, the Applicant or
any Significant Restricted Subsidiary of Xxxxxxxx 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 Xxxxxxxx
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 Xxxxxxxx Labs, the Applicant or any
Restricted Subsidiary or against any Property of Xxxxxxxx
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 Xxxxxxxx
Labs, the Applicant or such Restricted Subsidiary may execute
such judgment against any such Property;
(k) either Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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
(l) a default shall occur and be continuing under any
agreement between either Xxxxxxxx Labs, the Applicant and the
Bank or under any obligation owed by the Applicant to the
Bank; or
22
24
(m) Xxxxxxxx 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) Xxxxxxxx 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
Xxxxxxxx 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) Xxxxxxxx Labs shall default in the performance of
any of its obligations under the Xxxxxxxx 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;
(e) pursue any rights and remedies it may have under
the Xxxxxxxx Labs Guaranty; or
(f) pursue any other action available at law or in
equity.
23
25
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;
(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
24
26
(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 to 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
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.
25
27
(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; 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
26
28
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 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.
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
27
29
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 The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx X. Xxxx,
Assistant Vice President
If to the Applicant, to Xxxxxxxx Micro Science, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Treasurer
Xxxxx X. Xxxx,
Corporate Counsel
and Xxxx, Xxxx & Xxxxx
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Blew, Esq.
28
30
If to the Trustee, to Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
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.
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.
29
31
Please signify your agreement and acceptance of the foregoing by
executing this Agreement in the space provided below.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Vice President
----------------------------------
Accepted and agreed to:
XXXXXXXX MICRO SCIENCE, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------
Its Treasurer
---------------------------
30
32
ANNEX A
of the Reimbursement Agreement
dated as of December 1, 1994
RESTRICTED SUBSIDIARIES
JURISDICTION OF
NAME OF RESTRICTED SUBSIDIARY INCORPORATION
----------------------------- -------------
GLF Holdings Pty. Ltd. Australia
Micro-Biotrol Pty. Ltd. Australia
N.V. Xxxxxxxx Laboratories S.A Belgium
Xxxxxxxx Micro Science, N.V. Belgium
Xxxxxxxx Laboratories, Limited Canada
Xxxxxxxx Micro Science, Ltd. Canada
Xxxxxxxx Laboratories Zhuhai Company Ltd. China
Xxxxxxxx Colombia S.A. Colombia
Laboratorios Xxxxxxxx de Centro America, X.X. Xxxxx Rica
GMS S.A.S. France
Xxxxxxxx Micro Science S.A. France
Xxxxxxxx Laboratories GmbH Germany
Xxxxxxxx Micro Science GmbH Germany
Xxxxxxxx Laboratories, Ltd. Hong Kong
Xxxxxxxx Laboratories, Ltd. Ireland
Xxxxxxxx Laboratories S.r.L. Italy
Xxxxxxxx Laboratories K.K. Japan
Laboratorios Xxxxxxxx de Mexico, S.A. de C.V. Mexico
Xxxxxxxx Micro Science, S.A. de C.V. Mexico
Bienes Raices Xxxxxxxx, X.X. de C.V. Mexico
Xxxxxxxx Laboratories, B.V. Netherlands
Xxxxxxxx Micro Science B.V. Netherlands
GLF Holdings Ltd. New Zealand
Xxxxxxxx Panama, S.A. Panama
Xxxxxxxx Laboratories Pte. Ltd. Singapore
Xxxxxxxx Laboratories S.A. Spain
Xxxxxxxx Laboratories, Ltd. United Kingdom
Xxxxxxxx Micro Science, Ltd. United Kingdom
Xxxxxxxx Micro Science, Inc. USA - Delaware
Xxxxxxxx Micro Science International, Inc. USA - Delaware
Synergistic Computer Services, Inc. USA - Delaware
Protein & Seasoning Services, Inc. USA - Delaware
A-1
33
JURISDICTION OF
NAME OF RESTRICTED SUBSIDIARY INCORPORATION
----------------------------- --------------
Xxxxxxxx Laboratories U.S.A., Inc. USA - Delaware
Custom Food Products, Inc. USA - Illinois
Xxxxxxxx Design & Equipment Co. USA - Illinois
Xxxxxxxx International, Inc. (DISC) USA - Illinois
A-2
34
Schedule I
LITIGATION
None
35
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.................................................11
Section 2.3. Reimbursement of Certain Liquidity Drawings under the
Letter of Credit..........................................................11
Section 2.4. Reimbursement of Drawings Other Than Liquidity Drawings
Creating Liquidity Advances under the Letter of Credit....................11
Section 2.5. Fees......................................................................12
Section 2.6. Method of Payment.........................................................12
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
Section 2.10. Late Payments.............................................................12
Section 2.11. Source of Funds...........................................................13
Section 2.12. Amendments upon Extension.................................................13
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................................15
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES.................................................15
Section 4.1. Organization and Qualification............................................15
Section 4.2. Margin Stock..............................................................15
Section 4.3 Financial Reports.........................................................16
Section 4.4 Litigation................................................................16
Section 4.5. Taxes.....................................................................16
Section 4.6. Approvals.................................................................16
Section 4.7. ERISA.....................................................................17
Section 4.8. Investment Company........................................................17
-i-
36
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.................................................18
Section 5.3. Compliance with Laws; Taxes and Assessments...............................18
Section 5.4. Insurance.................................................................18
Section 5.5. Reports...................................................................18
Section 5.6. Inspection................................................................20
Section 5.7. Related Documents.........................................................21
Section 5.8. Optional Redemption of Bonds..............................................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.................................................................26
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..............................................................28
Section 7.11. Governing Law.............................................................29
Section 7.12. Notices...................................................................29
Section 7.13. Successors and Assigns....................................................29
Section 7.14. Taxes and Expenses........................................................30
Section 7.15. Headings..................................................................30
Section 7.16 Counterparts..............................................................30
Section 7.17. Entire Agreement..........................................................30
Signature.....................................................................................................31
-ii-
