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AGREEMENT
THIS AGREEMENT, dated as of May 30, 1997, between XXXXX PROPERTIES
LIMITED PARTNERSHIP, Owner Participant, having its principal place of business
at 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxxxx, XX 00000 ("Xxxxx"), and UNITED STATES
SURGICAL CORPORATION, a Delaware corporation, having its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 ("USSC").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into a Participation Agreement (the
"PA") on January 14, 1993; and
WHEREAS, pursuant to said PA, Xxxxx is the holder of the Beneficial
Interest in the Trust Estate; and
WHEREAS, USSC is the Lessee under the Lease, covering USSC's
manufacturing facility in North Haven, Connecticut; and
WHEREAS, the parties are desirous of setting time frames and other
parameters for the exercise of certain option rights under said PA and Lease in
order to better accommodate their mutual business interests.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxx and USSC do hereby agree as
follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
For the purposes hereof, terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Amendment (defined
hereinbelow).
SECTION 2. XXXXX EXERCISE OF OPTION UNDER SECTION
13.04 OF THE PARTICIPATION AGREEMENT.
Xxxxx hereby agrees that it will not, prior to April 10, 2000, exercise
its option under Section 13.04 of the Participation Agreement to require USSC to
make an offer to purchase the Beneficial Interest.
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SECTION 3. XXXXX CPI RENT.
Xxxxx hereby agrees that it shall not cause or permit the Owner Trustee
to exercise its option to elect a one-time calculation of Contingent CPI Rent
pursuant to the second paragraph of Section 4(b) of the Lease prior to January
1, 2000.
SECTION 4. XXXXX CPI RENT PAYMENTS.
X. Xxxxx hereby authorizes and directs the Owner Trustee to enter into
the Amendment to Lease Agreement (the "Amendment") with USSC in the form
attached hereto as Exhibit A. Said Amendment provides for the delay by one year
of each of the Contingent CPI Rent payments otherwise due pursuant to the first
paragraph of Section 4(b) of the Lease.
B. USSC agrees that it shall, on January 14, 1999 and January 14, 2000,
make secured interest-free loans to Xxxxx (or to Xxxxx'x designee, Xxxxx
Capital, Ltd.; Xxxxx and Xxxxx'x designee hereinafter designated as "Borrower")
in amounts equal to (or if requested by Xxxxx, a lesser amount) the payments of
Contingent CPI Rent that would have been due under the Lease on each such date
had the Lease not been amended by the Amendment. The principal amount of such
loans shall be repaid by Borrower subject to the conditions of the Notes
evidencing the loans.
C. The principal amount of the loans provided for in Section 4B shall
be advanced to Borrower against delivery of Notes in the forms attached hereto
as Exhibits B and C and delivery of security to USSC in any of three forms as
described below. Xxxxx may, at its option, select among each of the three forms
of security or a combination thereof and may during the term of such loans make
substitutions of one form of security for another. The forms of security shall
include:
(i) Pledges of Cash, Cash Equivalents, and/or Marketable Securities, to
be held in escrow by Xxxxxx Guaranty Trust Company of New York ("Xxxxxx") as
escrow agent, in value at least equal to the principal amount of the loans and
pursuant to an Escrow Agreement approved by Xxxxxx and the parties hereto. Said
Escrow Agreement shall provide that the Marketable Securities be held in escrow
until February 1, 2001 (or the earlier payment of such Notes in full), and will
permit USSC to cause the transfer of portions of such Marketable Securities from
the Escrow Agent to USSC upon USSC's certification to the Escrow Agent that (1)
payment due under any Note has not been paid; and (2)(A) Contingent CPI Rent in
an amount at least equal to the amount to be transferred has either been
actually received by the Owner
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Participant or was paid by USSC but was not actually received by the Owner
Participant solely due to the occurrence of an Indenture Event of Default caused
by a breach in the obligations, representations and warranties of the Owner
Participant under the Operative Documents, or (B) a Note has become payable or a
mandatory prepayment of any Note in an amount at least equal to the amount to be
transferred has become due under the provisions of the second or fifth
paragraphs thereof. Sufficient Marketable Securities shall be transferred to
USSC in the event of such certification to equal in value the amount due but
unpaid under any such Note. For purposes of this section, "Cash Equivalents"
shall include investments in mutual funds which are restricted to investments in
taxable or tax-exempt money market instruments and which can be liquidated by
the holder of such fund(s) upon not more than 24 hours notice. For purposes of
this section, "Marketable Securities" shall mean i) equity securities listed on
the New York Stock Exchange, the American Stock Exchange, or traded on the
NASDAQ, of companies with a minimum market capitalization in each case of $1.0
billion, and/or ii) debt securities rated at least single "A" or better by
Standard & Poor's. For purposes of the calculations under this Section, common
stocks shall be valued, at any time, at 75% of their market value at the time of
such valuation. If the value of such pledged Cash, Cash Equivalents or
Marketable Securities (as so calculated) shall at any time be less than the
principal balance of such Notes outstanding, USSC shall have the right to
require Xxxxx, and Xxxxx shall have the obligation, to pledge, within ten
calendar days of Xxxxx'x receipt of notice by USSC of its exercise of such
right, additional Cash, Cash Equivalents or Marketable Securities hereunder to
the extent required to bring the total of pledged Marketable Securities to a
value at least equal to the amount of said principal balance. Failure of Xxxxx
to pledge such additional Marketable Securities within said ten calendar days
shall entitle USSC to require the Escrow Agent to transfer to USSC all of the
Marketable Securities already so pledged, and shall constitute a default under
the Notes. If the value of such pledged Cash, Cash Equivalents or Marketable
Securities (as so calculated) shall at any time exceed the principal balance of
such Notes outstanding, Xxxxx shall have the right to remove from the Escrow
Account Cash, Cash Equivalents or Marketable Securities having a value (as so
calculated) up to the amount of such excess.
(ii) Letters of credit (LCs) issued by Mellon Bank, Pittsburgh or such
other bank as USSC may approve in its reasonable discretion in amounts equal to
the principal amount of the loans. Such LCs shall not expire before February 1,
2001 (or shall be renewable through such date) or the earlier payment of such
Notes in full, and will permit USSC to draw against them upon its certification
to the issuing bank that (1) payment due under any Note has not been
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paid; and (2)(A) Contingent CPI Rent in an amount at least equal to the amount
to be drawn against the LC has either been actually received by the Owner
Participant or was paid by USSC but was not actually received by the Owner
Participant solely due to the occurrence of an Indenture Event of Default caused
by a breach in the obligations, representations and warranties of the Owner
Participant under the Operative Documents, (B) a Note has become payable or a
mandatory prepayment of any Note in an amount drawn has become due under the
provisions of the second or fifth paragraphs thereof, or (C) the bank issuing
the LC(s) gives notice of non-renewal of such LC(s) to be effective on any date
prior to February 1, 2001.
(iii) Certificates of deposit (CD's) to be held in the name of Mellon
Bank, Pittsburgh as escrow agent in amounts equal to the principal amount of the
loans and pursuant to an Escrow Agreement approved by USSC. Said Escrow
Agreement shall provide that the CDs be held in escrow until February 1, 2001
(or the earlier payment of such Notes in full), and will permit USSC to withdraw
funds from such CDs upon its certification to the escrow agent that (1) payment
due under any Note has not been paid; and (2)(A) Contingent CPI Rent in an
amount at least equal to the amount to be withdrawn has either been actually
received by the Owner Participant or was paid by USSC but was not actually
received by the Owner Participant solely due to the occurrence of an Indenture
Event of Default caused by a breach in the obligations, representations and
warranties of the Owner Participant under the Operative Documents, or (B) a Note
has become payable or a mandatory prepayment of any Note in an amount at least
equal to the amount drawn has become due under the provisions of the second or
fifth paragraphs thereof.
SECTION 5. TRANSFER OF OWNER PARTICIPANT'S INTEREST.
Xxxxx hereby agrees that it may not transfer any of its right, title or
interest in the Trust Estate, the Operative Documents, this Agreement or the
Notes unless such transfer is in compliance with and satisfies the terms and
conditions of Section 13.02 of the PA and the transferee enters into an
agreement of the type referred to in Section 13.02(d) of the PA with respect to
this Agreement and the Notes.
SECTION 6. USSC OPTION TO PURCHASE.
In consideration of Xxxxx'x agreement to the foregoing Sections of this
Agreement, USSC agrees to enter into the Amendment of even date herewith.
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SECTION 7. AMENDMENT.
This Agreement is contingent on the approval of the Amendment by a
majority in interest of the current Note Holders under the PA no later than
August 1, 1997. If such approval has not been obtained by such date, this
Agreement shall be terminated and shall be of no further force or effect.
SECTION 8. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first set forth above.
XXXXX PROPERTIES LIMITED PARTNERSHIP
By: Xxxxx Companies, Inc.
its general partner
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________
UNITED STATES SURGICAL CORPORATION
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________
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Exhibit B
PROMISSORY NOTE
January 14, 1999
FOR VALUE RECEIVED, [XXXXX PROPERTIES LIMITED PARTNERSHIP] [XXXXX
CAPITAL, LTD.], of , NY 10016 ("Maker") hereby promises to pay to the
order of UNITED STATES SURGICAL CORPORATION, of 000 Xxxxxx Xxxxxx, Xxxxxxx, XX
00000 ("USSC"), in lawful money of the United States of America, in immediately
available funds, the principal amount of ($ .00) Dollars, without
interest, on January 1, 2001. Maker also agrees to pay any expenses and costs
incurred by holder, including reasonable attorneys' fees and disbursements, in
collecting the amounts due hereunder or enforcing the provisions hereof.
The entire principal balance of this Note will be immediately due and
payable without notice or demand upon the occurrence of Maker's insolvency,
filing in bankruptcy, or failure of Xxxxx Properties Limited Partnership to
comply with the requirements of the seventh sentence of Section 4(C)(i) of the
Agreement between Maker and USSC dated June , 1997.
In the event of a default for a period of more than 15 days in the
payment provided for hereinabove, Maker shall pay to the holder hereof interest
on the unpaid principal amount hereof from time to time at a rate which is 3%
over the prime rate announced from time to time by Mellon Bank of Pittsburgh,
PA.
Maker hereby waives all notices and demands whatsoever in connection
with this Note.
Maker shall make mandatory prepayments of this Note in the amount, and
on the date, of any Designated Payment (as defined below) actually received by
the Owner Participant pursuant to that certain Participation Agreement entered
into by Maker, USSC and certain other parties on January 14, 1993, as amended
from time to time, and/or any of the other Operative Documents (as defined in
said Participation Agreement), or that was made by USSC but was not actually
received by the Owner Participant solely due to the occurrence of an Indenture
Event of Default caused by a breach in the obligations, representations and
warranties of the Owner Participant under the Operative Documents. For purposes
of this Note, "Designated Payment" shall mean (i) any payment of Contingent CPI
Rent or Deferred Contingent CPI Rent, or (ii) any payment received by the Owner
Participant in lieu of Contingent CPI Rent or Deferred Contingent CPI Rent and
paid in respect of Adjusted Termination Amount or the purchase price for the
Beneficial Interest pursuant to Section 13.04 of the Participation Agreement or
the Premises pursuant to Section 7(a) of the Lease.
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Maker may at any time prepay this Note, in whole or in part, without
penalty, provided, however, that such prepayments, and any other payments made
by Maker hereunder, shall be applied first to holder's expenses which are
payable by Maker hereunder, and the remainder to principal.
This Note is secured by a [Pledge of Marketable Securities held by
Xxxxxx Guaranty Trust Company of New York] [Letter of Credit issued by Mellon
Bank] [a Certificate of Deposit] in an amount at least equal to the principal
amount hereof.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in said Participation Agreement.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
[XXXXX PROPERTIES LIMITED PARTNERSHIP]
By: Xxxxx Companies, Inc.
its general partner
___________________________________
By:
Name: _____________________________
Title: ____________________________
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Exhibit C
PROMISSORY NOTE
January 14, 2000
FOR VALUE RECEIVED, [XXXXX PROPERTIES LIMITED PARTNERSHIP] [XXXXX
CAPITAL, LTD.], of , NY 10016 ("Maker") hereby promises to pay to
the order of UNITED STATES SURGICAL CORPORATION, of 000 Xxxxxx Xxxxxx, Xxxxxxx,
XX 00000 ("USSC"), in lawful money of the United States of America, in
immediately available funds, the principal amount of ($ .00) Dollars,
without interest, on January 1, 2001. Maker also agrees to pay any expenses and
costs incurred by holder, including reasonable attorneys' fees and
disbursements, in collecting the amounts due hereunder or enforcing the
provisions hereof.
The entire principal balance of this Note will be immediately due and
payable without notice or demand upon the occurrence of Maker's insolvency,
filing in bankruptcy, or failure of Xxxxx Properties Limited Partnership to
comply with the requirements of the seventh sentence of Section 4(C)(i) of the
Agreement between Maker and USSC dated June , 1997.
In the event of a default for a period of more than 15 days in the
payment provided for hereinabove, Maker shall pay to the holder hereof interest
on the unpaid principal amount hereof from time to time at a rate which is 3%
over the prime rate announced from time to time by Mellon Bank of Pittsburgh,
PA.
Maker hereby waives all notices and demands whatsoever in connection
with this Note.
Maker shall make mandatory prepayments of this Note in the amount, and
on the date, of any Designated Payment (as defined below) actually received by
the Owner Participant pursuant to that certain Participation Agreement entered
into by Maker, USSC and certain other parties on January 14, 1993, as amended
from time to time, and/or any of the other Operative Documents (as defined in
said Participation Agreement), or that was made by USSC but was not actually
received by the Owner Participant solely due to the occurrence of an Indenture
Event of Default caused by a breach in the obligations, representations and
warranties of the Owner Participant under the Operative Documents. For purposes
of this Note, "Designated Payment" shall mean (i) any payment of Contingent CPI
Rent or Deferred Contingent CPI Rent, or (ii) any payment received by the Owner
Participant in lieu of Contingent CPI Rent or Deferred Contingent CPI Rent and
paid in respect of Adjusted Termination Amount or the purchase price for the
Beneficial Interest pursuant to Section 13.04 of the Participation Agreement or
the Premises pursuant to Section 7(a) of the Lease. Notwithstanding the
foregoing, if the Note dated January 14, 1999 from the Maker to USSC shall be
outstanding, the amount of any Designated Payment hereunder shall be reduced by
the amounts thereof paid in respect of such Note.
Maker may at any time prepay this Note, in whole or in part, without
penalty, provided, however, that such
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prepayments, and any other payments made by Maker hereunder, shall be applied
first to holder's expenses which are payable by Maker hereunder, and the
remainder to principal.
This Note is secured by a [Pledge of Marketable Securities held by
Xxxxxx Guaranty Trust Company of New York] [Letter of Credit issued by Mellon
Bank] [a Certificate of Deposit] in an amount at least equal to the principal
amount hereof.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in said Participation Agreement.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
[XXXXX PROPERTIES LIMITED PARTNERSHIP]
By: Xxxxx Companies, Inc.
its general partner
___________________________________
By:
Name: _____________________________
Title: ____________________________
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