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EXHIBIT 4.17
EXECUTION COPY
STANDBY LETTER OF CREDIT APPLICATION
AND REIMBURSEMENT AGREEMENT
(Hamilton, Indiana Bonds)
THIS STANDBY LETTER OF CREDIT APPLICATION AND REIMBURSEMENT AGREEMENT
(this "Agreement"), dated as of March 24, 1997, between KEY PLASTICS, INC., a
Michigan corporation (the "Company"), and NBD BANK, a Michigan banking
corporation with its principal office in Detroit, Michigan (the "Bank").
RECITALS
A. The Town of Xxxxxxxx, Indiana (the "Issuer"), pursuant to the
provisions of Title 36, Article 7, Chapter 12 of the Indiana Code, as amended
(the "Act"), issued $7,500,000 in aggregate principal amount of its Limited
Obligation Industrial Development Revenue Bonds (Key Plastics, Inc. Project)
dated Xxxxxx 0, 0000 (xxx "Xxxxx"), pursuant to a Trust Indenture dated as of
August 1, 1989 (as amended, the "Indenture"), between the Issuer and Norwest
Bank Indiana, National Association, as trustee (as successor trustee to Lincoln
National Bank and Trust Company of Fort Xxxxx) (the "Trustee"), to finance the
acquisition, construction and equipping of a manufacturing facility located in
the Town of Xxxxxxxx, Indiana (the "Project"), pursuant to a Credit Agreement,
dated as of August 1, 1989 (as amended, the "Bond Credit Agreement"), between
the Issuer and the Company.
B. The Bank has agreed, at the request of the Company, to issue an
irrevocable transferable direct-pay letter of credit (as defined herein, the
"Letter of Credit") for the account of the Company in favor of the Trustee to
provide credit and liquidity support with respect to the Bonds in substitution
for the Comerica Bank irrevocable letter of credit which currently secures the
Bonds.
C. This Agreement will constitute a "Letter of Credit application" and a
"Letter of Credit Document" as referred to in that certain Credit Agreement
dated as of March 24, 1997, by and among the Company, the lenders who are
parties thereto (collectively, the "Lenders" and individually, a "Lender"), and
NBD Bank, as agent for the Lenders, as the same may be amended or restated from
time to time (the "Credit Agreement"), and the Letter of Credit when issued
will constitute a "Bond L/C", a "Letter of Credit" and a "S/L/C" issued under
and as defined in the Credit Agreement.
D. The Bank and the Company desire to enter into this Agreement pursuant
to Section 2.6(d) of the Credit Agreement to provide specific terms and
conditions relating to the issuance of the Letter of Credit which will
supplement the terms of the Credit Agreement.
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AGREEMENT
The Company and the Bank agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) Unless the context otherwise requires
or such terms are defined in this Agreement, terms defined in the Credit
Agreement are used with the same meanings in this Agreement.
(b) The following terms are used in this Agreement with the following
respective meanings:
"Bond Documents" means the Indenture, the Bond Loan Agreement, the Bonds,
and the Mortgage, and any amendments thereto, and any other documents executed
by the Company in connection with the Bonds.
"Credit Documents" means this Agreement, the Letter of Credit and the
Credit Agreement.
"Date of Issuance" means the date on which all conditions precedent under
Article III hereof have been met or waived by the Bank, and on which the Letter
of Credit is issued.
"Drawing" shall mean a draft or other demand for payment presented by the
Trustee under the Letter of Credit.
"Drawing Date" means each date on which the Bank honors a Drawing.
"Governmental Action" means any authorization, approval, consent, waiver,
exception, license, filing, registration, permit, notarization, special lease
or other requirement of any Governmental Person.
"Governmental Person" means any foreign or domestic national, federal,
state or local government, any political subdivision thereof, any governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
body or entity, or any other regulatory bureau, authority, body or entity,
including the Federal Deposit Insurance Corporation, the Comptroller of the
Currency, the Board of Governors of the Federal Reserve System, any central
bank and any comparable authority.
"Lenders" means the "Lenders" as defined in the Credit Agreement.
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"Letter of Credit" means the irrevocable, transferable direct pay letter
of credit issued by the Bank in favor of the Trustee substantially in the form
of Exhibit A hereto, as the same may be extended or amended, or any letter of
credit issued in replacement thereof in accordance with the terms hereof.
"Letter of Credit Fees" means the fees to be paid by the Company in
connection with the Letter of Credit as set forth in Section 2.3(b) of the
Credit Agreement.
"Mortgage" means the Mortgage and Security Agreement dated November 1,
1992 made by the Company in favor of Comerica Bank (as successor by merger to
Manufacturers National Bank of Detroit) and the Issuer, which interests of the
Issuer were assigned therein to the Trustee. The Mortgage is recorded at
Mortgage Record 144, Page 375, Steuben County, Indiana Records.
"Mortgage Assignment" means the Assignment of Mortgage and Security
Agreement dated even date herewith made by Comerica Bank in favor of the Bank.
"Mortgage Amendment" means the First Amendment to Mortgage dated even date
herewith among the Trustee, the Company and the Bank whereby the parties
acknowledge that the Bank has replaced Comerica Bank as a mortgagee and secured
party under the Mortgage.
"Obligations" means Letter of Credit Fees, and any and all obligations of
the Company to reimburse the Bank for any Drawings under the Letter of Credit,
and all other obligations of the Company to the Bank arising under or in
relation to this Agreement or the other Credit Documents.
"Person" means an individual, a corporation, a partnership, an
association, a trust, a government, a political subdivision, a governmental
agency or instrumentality, or any other entity or organization.
"Related Documents" means the Bond Documents, the Credit Documents, and
any other agreement or instrument related hereto or thereto.
"Stated Amount" has the meaning set forth in the Letter of Credit.
"Stated Expiration Date" means the date on which the Letter of Credit
expires in accordance with its terms, which initially shall be August 15, 1999.
"Trustee" means Norwest Bank Indiana, National Association, acting in its
capacity as trustee under the Indenture, and any successor trustee thereunder.
Section 1.02. Interpretation. In this Agreement, the singular
includes the plural and the plural the singular; words importing any gender
include the other genders; references to statutes are to be construed as
including all statutory provisions consolidating, amending or replacing all
statutory provisions consolidating, amending or replacing the statute referred
to; references in "writing" include printing, typing, lithography and other
means of reproducing words in a
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tangible, visible form; the words "including," "includes" and "include" shall
be deemed to be followed by the words "without limitation"; references to
articles, sections (or subdivisions of sections), recitals, exhibits, annexes
or schedules are to those of this Agreement unless otherwise indicated;
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications to such instruments,
but only to the extent such amendments and other modifications are not
prohibited by the terms of this Agreement; and references to the parties and to
Persons include their respective permitted successors and assigns and, in the
case of Governmental Persons, Persons succeeding to their respective functions
and capacities. References to the "Bonds" shall mean and include references to
beneficial interests in the Bonds, as appropriate.
ARTICLE II
THE LETTER OF CREDIT
Section 2.01. Amount and Term of Letter of Credit. The Bank agrees to
issue on the Date of Issuance, upon the terms, subject to satisfaction of the
conditions and relying upon the representations and warranties set forth in
this Agreement, the Letter of Credit in the amount of $2,567,364, effective on
the Date of Issuance and expiring on the Stated Expiration Date. The Letter of
Credit shall secure the payment of the principal of, and 210 days' interest on,
the Bonds.
Section 2.02. Letter of Credit Drawings. The Trustee is authorized to
make drawings under the Letter of Credit in accordance with the terms thereof.
The Company hereby directs the Bank to make payments under the Letter of Credit
in the manner therein provided. The Company hereby irrevocably approves
reductions and reinstatements of the Stated Amount as provided in the Letter of
Credit.
Section 2.03. Reimbursement; Interest; Fees. The Company shall reimburse
the Bank for drawings under the Letter of Credit in accordance with the terms
of the Credit Agreement. Interest and Letter of Credit Fees payable in
connection with the Letter of Credit shall also be payable in accordance with
the Credit Agreement.
Section 2.04. 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 2.05. Letter of Credit Transfer Fee. The Company hereby agrees
to pay or cause to be paid to the Bank on the date of any transfer of the
Letter of Credit in accordance with its terms to a successor to the Trustee a
transfer fee in the amount of $500 or, at the option of the Bank, such other
amount as shall at the time of transfer be the charge that the Bank is making
for transfers of similar letters of credit. The Bank agrees to notify the
Company of any change in such charge.
Section 2.06. Drawing Fees. The Company hereby agrees to pay to the
Bank, not later than the one Business Day following each Drawing by the Trustee
under the Letter of Credit, the
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sum of $100 or, at the option of the Bank, such other amount as shall at the
time of such Drawing be the charge that the Bank is making for drawings on
similar letters of credit, or such other amount agreed upon by the Bank and the
Company. The Bank agrees to notify the Company of any change in such charge.
Section 2.07. Conditions Precedent. The obligation of the Bank to
issue the Letter of Credit is subject to the conditions precedent described in
Section 2.6 of the Credit Agreement and the following additional conditions
precedent:
(a) Documents. On or before the Date of Issuance, the Bank shall have
received the following documents in form and substance satisfactory to the
Bank.
(i) Mortgage Assignment and Mortgage Amendment. The Mortgage Assignment
and Mortgage Amendment duly executed by the parties thereto, together with any
UCC financing statements required to assign the security interests of Comerica
Bank to the Bank.
(ii) Bond Documents. Executed copies of the Bond Documents.
(iii) Opinions. The favorable written opinion of Counsel to the Company
as to such matters as the Bank may reasonably request.
(b) Commitment Fee. The Bank shall have received the Letter of Credit
Fees described in Section 2.3(b) of the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Company's Representations. In order to induce the Bank
to enter into this Agreement, the Company represents and warrants as of the
Date of Issuance that:
(a) Incorporation of Representations and Warranties from the Credit
Agreement. The representation and warranties made by the Company in Article IV
of the Credit Agreement are true and correct in all material respects on and as
of the Date of Issuance with the same force and effect as if made on and as of
the Date of Issuance.
(b) Validity and Binding Nature. The Company has the power to execute,
deliver and perform this Agreement and the other Related Documents to which it
is a party, and to request the issuance of, and act as account party under, the
Letter of Credit; and when executed and delivered, this Agreement and such
other Related Documents will be valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms; provided,
however, that this representation with respect to enforceability is limited by
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bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights.
(c) Due Authorization. The execution, delivery and performance by the
Company of this Agreement, the Credit Documents and the Related Documents to
which the Company is a party, and the requesting of the Letter of Credit
hereunder, have been duly authorized by all required corporate action on the
part of the Company and will not, and the form and purpose of the Letter of
Credit will not, violate any provisions of law, any order of any court or
arbitrator, or any other Governmental Person, applicable to the Company or the
organizational documents or by-laws of the Company.
(d) Conflicting Instruments; No Default. The execution, delivery and
performance of this Agreement, the Credit Documents and the Related Documents
to which the Company is a party, and the requesting of the Letter of Credit
hereunder, will not violate any provisions of any indenture, agreement or other
instrument to which the Company or any of its properties or assets are bound or
subject, and will not be in conflict with, result in a breach of, or constitute
(with due notice and/or the lapse of time) a default under any such indenture,
agreement or other instrument, or result in the creation or impositions of any
lien upon any of the properties or assets of the Company, and no Unmatured
Event or Event of Default hereunder has occurred and is continuing.
(e) Authorization and Consents. No authorization, consent, approval,
license or exemption of, and no registration, qualification, designation,
declaration or filing with any court or Governmental Person is necessary for
the valid execution and delivery of this Agreement, the Credit Documents or the
Related Documents to which the Company is a party.
ARTICLE IV
DEFAULTS AND REMEDIES
Section 4.01. Event of Default and Remedies. If any of the following
event shall occur, each such event shall be an "Event of Default":
(a) any material representation or warranty made by the
Company 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 Agreement or with any of the other Related Documents, shall
prove to have been incorrect, incomplete or misleading in any
material respect;
(b) any "event of default" shall have occurred (after any applicable
grace periods) under any of the Related Documents (as defined
respectively therein); or
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(c) default in the due observance or performance by the Company of
any other term, covenant or agreement set forth in this Agreement and the
continuance of such default for 30 days after the occurrence thereof.
Section 4.02. Remedies. In addition to the remedies otherwise described
in the Credit Agreement or in any other Related Document, upon the occurrence
of an Event of Default hereunder, the Bank may, at the direction of the
Required Lenders, exercise one or more of the following rights and remedies:
(a) give notice of the occurrence of an Event of Default hereunder to the
Trustee directing an acceleration of the Bonds pursuant to Section 701(f) of
the Indenture, or (b) pursue any rights and remedies provided to the Bank under
the Restated Documents.
ARTICLE V
LETTER OF CREDIT AN ADVANCE
UNDER LOAN AGREEMENT
Section 5.01. Letter of Credit an Advance under Credit Agreement. The
Company and the Bank acknowledge and agree that (a) the Bank is serving as an
"Agent" on behalf of the Lenders under the Credit Agreement in connection with
the issuance of the Letter of Credit, (b) the Letter of Credit will be issued
pursuant to Section 2.4 of the Credit Agreement and participated in by the
Lenders pursuant to the terms of the Credit Agreement, (c) the issuance of the
Letter of Credit constitutes a "Letter of Credit Advance" as such term is
defined in the Credit Agreement, and (d) the Letter of Credit constitutes a
"Bond L/C" and a "Letter of Credit" as those terms are defined in the Credit
Agreement. This Agreement is intended to supplement the Credit Agreement and
the Bank and the Company agree that the covenants and agreements contained
herein are in addition to and not in substitution for the covenants and
agreements contained in the Credit Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Waivers. No failure to exercise and no delay on the part
of the Bank in exercising any power or right in connection herewith or under
any of the other Related Documents shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. No
course of dealing between the Company and the Bank shall operate as a waiver of
any right of the Bank. No modification or waiver of any provision of this
Agreement or any other Related Document nor any consent to any departure
therefrom shall in any event be effective unless the same shall be in writing
and signed by the person or entity against whom enforcement thereof is to be
sought, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
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Section 6.02. Waiver of Jury Trial. The Bank and the Company, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of this Agreement or
any related instrument or agreement or any of the transactions contemplated by
this Agreement or any course of conduct, dealing, statements (whether oral or
written) or actions of either of them. Neither the Bank nor the Company shall
seek to consolidate, by counterclaim or otherwise, any such actin in which a
jury trial has been waived with any other action in which a jury trial cannot
be or has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by either the Bank or the Company
except by a written instrument executed by both of them.
Section 6.03. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF MICHIGAN (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW); AND THE LETTER OF CREDIT SHALL BE
ISSUED SUBJECT TO, AND BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION) ICC
PUBLICATION NO. 500, EXCEPT FOR ARTICLES 48(f) AND 48(g), AND, TO THE EXTENT
NOT INCONSISTENT WITH SAID UNIFORM CUSTOMS AND PRACTICE, SHALL BE GOVERNED BY
THE LAW OF THE STATE OF MICHIGAN, INCLUDING ARTICLE 5 OF THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN THE STATE OF MICHIGAN.
Section 6.04. Notices. All notices, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered in compliance with the provisions of Section 8.2 of the
Credit Agreement.
Section 6.05. Benefits of Agreement. This Agreement is a continuing
obligation and binds, and the benefits hereof shall inure to, the Company and
the Bank and their respective successors and assigns, provided that the Company
may not transfer or assign any or all of its rights or obligations hereunder
without the written consent of the Bank.
Section 6.06. Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 6.07. Parties; No Third-Party Beneficiaries. This Agreement,
the other and the Related Documents shall be binding upon, and inure to the
benefit of, the successors of the Bank, the permitted successors of the
Company, the assigns, transferees and endorsees of the Bank, the Agent, and the
Lenders. No other person or entity shall be deemed to be a third-party
beneficiary of any of the provisions of this Agreement or such other documents
or otherwise have any rights by reason of any provision of this Agreement, or
such other documents.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
KEY PLASTICS, INC.
By: _______________________________
Its:___________________________
NBD BANK
By:________________________________
Xxxxxx X. Xxxxx
Its: Vice President
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EXECUTION COPY
STANDBY LETTER OF CREDIT APPLICATION
AND REIMBURSEMENT AGREEMENT
(Plymouth Township, Michigan Bonds)
THIS STANDBY LETTER OF CREDIT APPLICATION AND REIMBURSEMENT AGREEMENT
(this "Agreement"), dated as of March 24, 1997, between KEY PLASTICS, INC., a
Michigan corporation (the "Company"), and NBD BANK, a Michigan banking
corporation with its principal office in Detroit, Michigan (the "Bank").
RECITALS
A. The Economic Development Corporation of the Charter Township of
Plymouth (the "Issuer"), pursuant to the provisions of Act Xx. 000, Xxxxxx
Xxxx xx Xxxxxxxx, 0000, as amended (the "Act"), issued $4,500,000 in aggregate
principal amount of its Floating Rate Monthly Demand Economic Development
Revenue Bonds (Key International Manufacturing, Inc. Project), Series 1984 (the
"Bonds"), pursuant to a Trust Indenture dated as of June 1, 1984 (as amended,
the "Indenture"), between the Issuer and First Trust National Association, as
trustee (as successor trustee to Comerica Bank-Detroit) (the "Trustee"), to
finance the acquisition, construction and equipping of a manufacturing facility
located in Plymouth Township, Michigan (the "Project"), pursuant to a Credit
Agreement, dated as of June 1, 1984 (as amended, the "Bond Credit Agreement"),
between the Issuer and the Company.
B. The Bank has agreed, at the request of the Company, to issue an
irrevocable transferable direct-pay letter of credit (as defined herein, the
"Letter of Credit") for the account of the Company in favor of the Trustee to
provide credit and liquidity support with respect to the Bonds in substitution
for the Comerica Bank irrevocable letter of credit which currently secures the
Bonds.
C. This Agreement will constitute a "Letter of Credit application" and a
"Letter of Credit Document" as referred to in that certain Credit Agreement
dated as of March 24, 1997, by and among the Company, the lenders who are
parties thereto (collectively, the "Lenders" and individually, a "Lender"), and
NBD Bank, as agent for the Lenders, as the same may be amended or restated from
time to time (the "Credit Agreement"), and the Letter of Credit when issued
will constitute a "Bond L/C", a "Term Facility A Letter of Credit" and a
"S/L/C" issued under and as defined in the Credit Agreement.
D. The Bank and the Company desire to enter into this Agreement pursuant
to Section 2.6(d) of the Credit Agreement to provide specific terms and
conditions relating to the issuance of the Letter of Credit which will
supplement the terms of the Credit Agreement.
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AGREEMENT
The Company and the Bank agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. (a) Unless the context otherwise requires
or such terms are defined in this Agreement, terms defined in the Credit
Agreement are used with the same meanings in this Agreement.
(b) The following terms are used in this Agreement with the following
respective meanings:
"Bond Documents" means the Indenture, the Bond Loan Agreement, the Bonds,
the Security Agreement, and the Mortgage, and any amendments thereto, and any
other documents executed by the Company in connection with the Bonds.
"Credit Documents" means this Agreement, the Letter of Credit, the Pledge
Agreement, and the Credit Agreement.
"Date of Issuance" means the date on which all conditions precedent under
Article III hereof have been met or waived by the Bank, and on which the Letter
of Credit is issued.
"Drawing" shall mean a draft or other demand for payment presented by the
Trustee under the Letter of Credit.
"Drawing Date" means each date on which the Bank honors a Drawing.
"Governmental Action" means any authorization, approval, consent, waiver,
exception, license, filing, registration, permit, notarization, special lease
or other requirement of any Governmental Person.
"Governmental Person" means any foreign or domestic national, federal,
state or local government, any political subdivision thereof, any governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
body or entity, or any other regulatory bureau, authority, body or entity,
including the Federal Deposit Insurance Corporation, the Comptroller of the
Currency, the Board of Governors of the Federal Reserve System, any central
bank and any comparable authority.
"Lenders" means the "Lenders" as defined in the Credit Agreement.
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"Letter of Credit" means the irrevocable, transferable direct pay letter
of credit issued by the Bank in favor of the Trustee substantially in the form
of Exhibit A hereto, as the same may be extended or amended, or any letter of
credit issued in replacement thereof in accordance with the terms hereof.
"Letter of Credit Fees" means the fees to be paid by the Company in
connection with the Letter of Credit as set forth in Section 2.3(b) of the
Credit Agreement.
"Mortgage" means the Mortgage and Security Agreement dated as of December
1, 1987 made by the Company in favor of Comerica Bank (as successor by merger
to Manufacturers National Bank of Detroit) and the Issuer, which interests of
the Issuer were assigned therein to the Trustee. The Mortgage was recorded on
December 23, 1987 at Liber 23562, Page 754, Xxxxx County, Michigan Records.
"Mortgage and Security Agreement Assignment" means the Assignment of
Mortgage and Security Agreement dated even date herewith made by Comerica Bank
in favor of the Bank.
"Mortgage Amendment" means the First Amendment to Mortgage dated even date
herewith among the Trustee, the Company and the Bank whereby the parties
acknowledge that the Bank has replaced Comerica Bank as a mortgagee and secured
party under the Mortgage.
"Obligations" means Letter of Credit Fees, and any and all obligations of
the Company to reimburse the Bank for any Drawings under the Letter of Credit,
and all other obligations of the Company to the Bank arising under or in
relation to this Agreement or the other Credit Documents.
"Person" means an individual, a corporation, a partnership, an
association, a trust, a government, a political subdivision, a governmental
agency or instrumentality, or any other entity or organization.
"Pledge Agreement" means the Pledge and Security Agreement dated as of
even date herewith among the Company, the Trustee and the Bank, as it may be
amended or restated.
"Related Documents" means the Bond Documents, the Credit Documents, and
any other agreement or instrument related hereto or thereto.
"Security Agreement" means the Security Agreement dated as of December 1,
1987 made by the Company in favor of Comerica Bank (as successor by merger to
Manufacturers National Bank of Detroit) and the Trustee.
"Security Agreement Amendment" means the First Amendment to Security
Agreement dated even date herewith among the Trustee, the Company and the Bank
whereby the parties acknowledge that the Bank has replaced Comerica Bank as a
secured party under the Security Agreement.
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"Stated Amount" has the meaning set forth in the Letter of Credit.
"Stated Expiration Date" means the date on which the Letter of Credit
expires in accordance with its terms, which initially shall be July 15, 1998.
"Trustee" means First Trust National Association (as successor trustee to
Comerica Bank-Detroit), acting in its capacity as trustee under the Indenture,
and any successor trustee thereunder.
Section 1.02. Interpretation. In this Agreement, the singular
includes the plural and the plural the singular; words importing any gender
include the other genders; references to statutes are to be construed as
including all statutory provisions consolidating, amending or replacing all
statutory provisions consolidating, amending or replacing the statute referred
to; references in "writing" include printing, typing, lithography and other
means of reproducing words in a tangible, visible form; the words "including,"
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; references to articles, sections (or subdivisions of sections),
recitals, exhibits, annexes or schedules are to those of this Agreement unless
otherwise indicated; references to agreements and other contractual instruments
shall be deemed to include all subsequent amendments and other modifications to
such instruments, but only to the extent such amendments and other
modifications are not prohibited by the terms of this Agreement; and references
to the parties and to Persons include their respective permitted successors and
assigns and, in the case of Governmental Persons, Persons succeeding to their
respective functions and capacities. References to the "Bonds" shall mean and
include references to beneficial interests in the Bonds, as appropriate.
ARTICLE II
THE LETTER OF CREDIT
Section 2.01. Amount and Term of Letter of Credit. The Bank agrees to
issue on the Date of Issuance, upon the terms, subject to satisfaction of the
conditions and relying upon the representations and warranties set forth in
this Agreement, the Letter of Credit in the amount of $3,696,165, effective on
the Date of Issuance and expiring on the Stated Expiration Date. The Letter of
Credit shall secure the payment of the principal of, and 65 days' interest on,
the Bonds at a maximum interest rate of 15% per annum.
Section 2.02. Letter of Credit Drawings. The Trustee is authorized to
make drawings under the Letter of Credit in accordance with the terms thereof.
The Company hereby directs the Bank to make payments under the Letter of Credit
in the manner therein provided. The Company hereby irrevocably approves
reductions and reinstatements of the Stated Amount as provided in the Letter of
Credit.
Section 2.03. Reimbursement; Interest; Fees. The Company shall reimburse
the Bank for drawings under the Letter of Credit in accordance with the terms
of the Credit Agreement.
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Interest and Letter of Credit Fees payable in connection with the Letter of
Credit shall also be payable in accordance with the Credit Agreement.
Section 2.04. 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 2.05. Letter of Credit Transfer Fee. The Company hereby agrees
to pay or cause to be paid to the Bank on the date of any transfer of the
Letter of Credit in accordance with its terms to a successor to the Trustee a
transfer fee in the amount of $500 or, at the option of the Bank, such other
amount as shall at the time of transfer be the charge that the Bank is making
for transfers of similar letters of credit. The Bank agrees to notify the
Company of any change in such charge.
Section 2.06. Drawing Fees. The Company hereby agrees to pay to the
Bank, not later than the one Business Day following each Drawing by the Trustee
under the Letter of Credit, the sum of $100 or, at the option of the Bank, such
other amount as shall at the time of such Drawing be the charge that the Bank
is making for drawings on similar letters of credit, or such other amount
agreed upon by the Bank and the Company. The Bank agrees to notify the Company
of any change in such charge.
Section 2.07. Conditions Precedent. The obligation of the Bank to
issue the Letter of Credit is subject to the conditions precedent described in
Section 2.6 of the Credit Agreement and the following additional conditions
precedent:
(a) Documents. On or before the Date of Issuance, the Bank shall have
received the following documents in form and substance satisfactory to the
Bank.
(i) Mortgage and Security Agreement Assignment and Amendment. The
Mortgage and Security Agreement Assignment, the Mortgage Amendment, and the
Security Agreement Amendment duly executed by the parties thereto, together with
any UCC financing statements required to assign the security interests of
Comerica Bank to the Bank.
(ii) Pledge Agreement. The Pledge Agreement duly executed by the
parties thereto and evidence of the discharge of the related Comerica Bank
pledge agreement and reimbursement agreement.
(iii) Bond Documents. Executed copies of the Bond Documents.
(iv) Opinions. The favorable written opinion of Counsel to the
Company as to such matters as the Bank may reasonably request.
(b) Commitment Fee. The Bank shall have received the Letter of Credit
Fees described in Section 2.3(b) of the Credit Agreement.
5
15
Section 2.08. Extension of the Letter of Credit. Subject to the terms
and conditions of the Credit Agreement, the Stated Expiration Date of the
Letter of Credit may be extended from time to time and each time for a period
of one year. Pursuant to the terms of the Letter of Credit, the Letter of
Credit will be automatically extended for an additional one year period on each
July 15, commencing July 15, 1998 through and including July 15, 2002 (each an
"Extension Date"), unless the Bank, at its sole discretion notifies the Trustee
in writing at least 60 days prior to the then applicable Extension Date that
the Bank will not renew the Letter of Credit beyond its then current stated
Expiration Date. The Company may direct the Bank not to renew the Letter of
Credit at any time, so long as such direction is received by the Bank in a
timely manner. Notwithstanding the foregoing, the Stated Expiration Date shall
not be extended beyond July 15, 2003. No extension of the Letter of Credit
shall in any way limit or otherwise affect the remedies of the Bank upon an
Event of Default as set forth in Section 5.01 hereof or available to the Bank
under the Credit Agreement or any of the other Related Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Company's Representations. In order to induce the Bank
to enter into this Agreement, the Company represents and warrants as of the
Date of Issuance that:
(a) Incorporation of Representations and Warranties from the Credit
Agreement. The representation and warranties made by the Company in Article IV
of the Credit Agreement are true and correct in all material respects on and as
of the Date of Issuance with the same force and effect as if made on and as of
the Date of Issuance.
(b) Validity and Binding Nature. The Company has the power to execute,
deliver and perform this Agreement and the other Related Documents to which it
is a party, and to request the issuance of, and act as account party under, the
Letter of Credit; and when executed and delivered, this Agreement and such
other Related Documents will be valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms; provided,
however, that this representation with respect to enforceability is limited by
bankruptcy, insolvency or other similar laws of general application relating to
or affecting the enforcement of creditors' rights.
(c) Due Authorization. The execution, delivery and performance by the
Company of this Agreement, the Credit Documents and the Related Documents to
which the Company is a party, and the requesting of the Letter of Credit
hereunder, have been duly authorized by all required corporate action on the
part of the Company and will not, and the form and purpose of the Letter of
Credit will not, violate any provisions of law, any order of any court or
arbitrator, or any other Governmental Person, applicable to the Company or the
organizational documents or by-laws of the Company.
6
16
(d) Conflicting Instruments; No Default. The execution, delivery and
performance of this Agreement, the Credit Documents and the Related Documents
to which the Company is a party, and the requesting of the Letter of Credit
hereunder, will not violate any provisions of any indenture, agreement or other
instrument to which the Company or any of its properties or assets are bound or
subject, and will not be in conflict with, result in a breach of, or constitute
(with due notice and/or the lapse of time) a default under any such indenture,
agreement or other instrument, or result in the creation or impositions of any
lien upon any of the properties or assets of the Company, and no Unmatured
Event or Event of Default hereunder has occurred and is continuing.
(e) Authorization and Consents. No authorization, consent, approval,
license or exemption of, and no registration, qualification, designation,
declaration or filing with any court or Governmental Person is necessary for
the valid execution and delivery of this Agreement, the Credit Documents or the
Related Documents to which the Company is a party.
ARTICLE IV
DEFAULTS AND REMEDIES
Section 4.01. Event of Default and Remedies. If any of the following
event shall occur, each such event shall be an "Event of Default":
(a) any material representation or warranty made by the
Company 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 Agreement or with any of the other Related Documents, shall
prove to have been incorrect, incomplete or misleading in any
material respect;
(b) any "event of default" shall have occurred (after any applicable
grace periods) under any of the Related Documents (as defined
respectively therein); or
(c) default in the due observance or performance by the Company of
any other term, covenant or agreement set forth in this Agreement and the
continuance of such default for 30 days after the occurrence thereof.
Section 4.02. Remedies. In addition to the remedies otherwise described
in the Credit Agreement or in any other Related Document, upon the occurrence
of an Event of Default hereunder, the Bank may, at the direction of the
Required Lenders, exercise one or more of the following rights and remedies:
(a) give notice of the occurrence of an Event of Default hereunder to the
Trustee directing an acceleration of the Bonds pursuant to Section 9.01(e) of
the Indenture, or (b) pursue any rights and remedies provided to the Bank under
the Restated Documents.
7
17
ARTICLE V
LETTER OF CREDIT AN ADVANCE
UNDER LOAN AGREEMENT
Section 5.01. Letter of Credit an Advance under Credit Agreement. The
Company and the Bank acknowledge and agree that (a) the Bank is serving as an
"Agent" on behalf of the Lenders under the Credit Agreement in connection with
the issuance of the Letter of Credit, (b) the Letter of Credit will be issued
pursuant to Section 2.4 of the Credit Agreement and participated in by the
Lenders pursuant to the terms of the Credit Agreement, (c) the issuance of the
Letter of Credit constitutes a "Letter of Credit Advance" as such term is
defined in the Credit Agreement, and (d) the Letter of Credit constitutes a
"Bond L/C" and a "Letter of Credit" as those terms are defined in the Credit
Agreement. This Agreement is intended to supplement the Credit Agreement and
the Bank and the Company agree that the covenants and agreements contained
herein are in addition to and not in substitution for the covenants and
agreements contained in the Credit Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Waivers. No failure to exercise and no delay on the part
of the Bank in exercising any power or right in connection herewith or under
any of the other Related Documents shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. No
course of dealing between the Company and the Bank shall operate as a waiver of
any right of the Bank. No modification or waiver of any provision of this
Agreement or any other Related Document nor any consent to any departure
therefrom shall in any event be effective unless the same shall be in writing
and signed by the person or entity against whom enforcement thereof is to be
sought, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
Section 6.02. Waiver of Jury Trial. The Bank and the Company, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of this Agreement or
any related instrument or agreement or any of the transactions contemplated by
this Agreement or any course of conduct, dealing, statements (whether oral or
written) or actions of either of them. Neither the Bank nor the Company shall
seek to consolidate, by counterclaim or otherwise, any such actin in which a
jury trial has been waived with any other action in which a jury trial cannot
be or has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by either the Bank or the Company
except by a written instrument executed by both of them.
8
18
Section 6.03. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF MICHIGAN (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW); AND THE LETTER OF CREDIT SHALL BE
ISSUED SUBJECT TO, AND BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION) ICC
PUBLICATION NO. 500, EXCEPT FOR ARTICLES 48(f) AND 48(g), AND, TO THE EXTENT
NOT INCONSISTENT WITH SAID UNIFORM CUSTOMS AND PRACTICE, SHALL BE GOVERNED BY
THE LAW OF THE STATE OF MICHIGAN, INCLUDING ARTICLE 5 OF THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN THE STATE OF MICHIGAN.
Section 6.04. Notices. All notices, consents and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered in compliance with the provisions of Section 8.2 of the
Credit Agreement.
Section 6.05. Benefits of Agreement. This Agreement is a continuing
obligation and binds, and the benefits hereof shall inure to, the Company and
the Bank and their respective successors and assigns, provided that the Company
may not transfer or assign any or all of its rights or obligations hereunder
without the written consent of the Bank.
Section 6.06. Counterparts. This Agreement may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 6.07. Parties; No Third-Party Beneficiaries. This Agreement,
the other and the Related Documents shall be binding upon, and inure to the
benefit of, the successors of the Bank, the permitted successors of the
Company, the assigns, transferees and endorsees of the Bank, the Agent, and the
Lenders. No other person or entity shall be deemed to be a third-party
beneficiary of any of the provisions of this Agreement or such other documents
or otherwise have any rights by reason of any provision of this Agreement, or
such other documents.
9
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
KEY PLASTICS, INC.
By:_______________________________
Its:_________________________
NBD BANK
By:_______________________________
Xxxxxx X. Xxxxx
Its: Vice President
10
20
EXHIBIT A
NBD BANK
000 XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
IRREVOCABLE LETTER OF CREDIT
NO. 512
MARCH 24, 1997
First Trust National Association
000 Xxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Ladies and Gentlemen:
We hereby establish, at the request and for the account of Key
Plastics, Inc., a Michigan corporation (the "Company"), in your favor, as
Trustee under the Trust Indenture, dated as of June 1, 1984 (the "Indenture"),
between the Economic Development Corporation of the Charter Township of Plymouth
(the "Issuer") and you, pursuant to which $4,500,000 in aggregate principal
amount of the Floating Rate Monthly Demand Economic Development Revenue Bonds
(Key International Manufacturing, Inc. Project), Series 1984 (the "Bonds"), are
being issued, our Irrevocable Letter of Credit No. 512, in the amount not to
exceed $3,696,165 (representing the principal amount of the Bonds ($3,600,000)
plus 65 days' interest thereon at a maximum rate of 15% per annum as more fully
described below) effective immediately and expiring on July 15, 1998, or such
later date to which the Stated Expiration Date has been extended in accordance
with the terms hereof (the "Stated Expiration Date").
We hereby irrevocably authorize you to draw on us, in accordance with
your draft payable one Business Day (as hereinafter defined) after sight, drawn
on us, and accompanied by your written and completed certificate signed by you
in substantially the form of Annex A attached hereto (such draft being your
"Interest Draft"), an amount not to exceed $96,165 (representing 65 days'
interest on the Bonds at a maximum rate of 15% per annum), subject to reduction
or reinstatement, if applicable, as hereinafter provided, (2) in one or more
drawings by your draft or drafts payable one Business Day after sight, drawn on
us, and, for each such drawing, accompanied by your written and completed
certificate signed by you in substantially the form of Annex B attached hereto
(any such draft being your "Principal Draft"), an aggregate amount not to exceed
$3,600,000, subject to reduction as hereinafter provided, (3) in one or more
drawings by your draft or drafts payable one Business Day (or in certain
circumstances as described herein
21
on the same Business Day) after sight, drawn on us, and, for each such drawing,
accompanied by your written and completed certificate signed by you in
substantially the form of Annex C attached hereto (any such draft being your
"Bond Purchase Draft"), an aggregate amount not to exceed $3,696,165
(representing the principal amount of the Bonds plus 65 days' interest coverage
at a maximum rate of 15% per annum), subject to reduction or reinstatement, if
applicable, as hereinafter provided, and (4) in a single drawing by your draft
payable one Business Day after sight, drawn on us, and accompanied by your
written and completed certificate signed by you in substantially the form of
Annex D attached hereto (such draft being your "Final Draft"), an amount not to
exceed $3,696,165 (representing the principal amount of the Bonds plus 65 days'
interest coverage at a maximum rate of 15% per annum), as hereinafter provided.
Any such draft, with the accompanying certificate, drawn in strict conformity
with the terms and conditions of this Letter of Credit and presented at our
office as hereinafter set forth prior to 12:00 noon (Detroit, Michigan time) on
any Business Day shall be honored by us before 12:00 noon (Detroit, Michigan
time) on the next (or in the case of presentation after 12:00 noon, Detroit,
Michigan time, the second next) Business Day thereafter in accordance with your
payment instructions; provided, however, that any Bond Purchase Draft, with the
accompanying certificate, drawn in strict conformity with the terms and
conditions of this Letter of Credit and presented at our office as hereinafter
set forth prior to 11:00 a.m. (Detroit, Michigan time) on any Business Day shall
be honored by us before 2:00 p.m. (Detroit, Michigan time) on the same (or in
the case of a presentation after 11:00 a.m., Detroit, Michigan time, on the
next) Business Day if specified in your payment instructions. Notwithstanding
any other provision of this Letter of Credit, you are not authorized to draw on
us hereunder with respect to any payment of principal of or interest on any
Pledged Bonds (as defined in the Indenture).
If you shall draw on us by your Interest Draft and shall have received
from us within 15 calendar days from the date of our honoring such Interest
Draft a written direction under Section 601(f) of the Indenture to declare the
Bonds immediately due and payable because of the occurrence of an Event of
Default as defined in the Credit Agreement dated as of March 24, 1997, among the
Company, the party lenders thereto, and NBD Bank, as agent for the lenders (as
it may be amdned or restated from time to time, the "Credit Agreement"), your
right to draw on us in multiple drawings by your Bond Purchase Draft(s) or in a
single drawing by your Final Draft shall be reduced by the amount of such
Interest Draft. Your right to draw on us by your Interest Draft(s) shall also
be reduced by the amount of any drawing or drawings theretofore made on us by
your Bond Purchase Draft(s) and attributable to interest on the Bonds, unless
reinstated. Your right to draw on us by your Principal Draft(s), your Bond
Purchase Draft(s) and your Final Draft shall also be reduced by the amount of
any drawing or drawings theretofore made on us by your Principal Draft(s) and,
unless reinstated, your Bond Purchase Draft(s).
If you shall draw on us by your Interest Draft and shall not have
received from us within 15 calendar days from the date of our honoring such
Interest Draft a written direction under Section 9.01(e) of the Indenture to
declare the Bonds immediately due and payable because of the occurrence of an
Event of Default as defined in the Reimbursement Agreement, your right to draw
on us in a single drawing by your Interest Draft under clause (1) above shall be
automatically and irrevocably reinstated and, effective the 16th calendar day
from the date of
NBD LETTER OF CREDIT NO. 512
-2-
22
our honoring such Interest Draft, you shall again be irrevocably authorized to
draw on us in accordance with clause (1) and the other terms and conditions
referred to or set forth above, in a drawing by your Interest Draft; and this
automatic reinstatement of your right to draw on us by your Interest Draft
under clause (1) above shall be applicable to successive drawings by your
Interest Drafts under clause (1) so long as this Letter of Credit shall not
have terminated as set forth below.
If you shall draw on us by your Bond Purchase Draft and thereafter you
shall receive and confirm to us by telephone that you hold in trust for our
account collected and immediately available funds constituting the proceeds of
the remarketing of all or a portion of the Bonds tendered to you for purchase in
accordance with the terms of the Indenture, such confirmation shall
automatically reinstate your right to draw on us (i) by your Interest Draft
under clause (1) above in the amount of the drawing made on us by such Bond
Purchase Draft and attributable to interest on the Bonds that have been
remarketed and for which you are holding proceeds, (ii) by your Principal
Draft(s) under clause (2) above, in the amount of the drawing made on us by such
Bond Purchase Draft and attributable to principal on the Bonds that have been
remarketed and for which you are holding proceeds and (iii) by your Bond
Purchase Draft(s) under clause (3) above and your Final Draft under clause (4)
above, in the amount of the drawing made on us by such Bond Purchase Draft and
attributable to the Bonds that have been remarketed and for which you are
holding proceeds. Upon the resale and delivery of the Bonds in such amount
under the Indenture and your telephonic confirmation to us, you shall again be
irrevocably authorized to draw on us in accordance with clauses (1) through (4)
in the second paragraph hereof, and the other terms and conditions referred to
or set forth above, in a single or multiple drawing as set forth above; and this
automatic reinstatement of your right to draw on us shall be applicable to
successive drawings hereunder so long as this Letter of Credit shall not have
been terminated as set forth below. We shall thereafter promptly confirm such
reinstatement in writing, but such written confirmation to you by us shall not
be required to effect such reinstatement.
Subject to the provisions set forth above for reinstatement of amounts
drawn under the Letter of Credit by your Interest Draft(s) and Bond Purchase
Draft(s), drawings under the Letter of Credit honored by us shall not, in the
aggregate, exceed the face amount of this Letter of Credit as reduced from time
to time as hereinabove provided.
Funds under this Letter of Credit are available to you against (1)
your Interest Draft accompanied by your written and completed certificate signed
by you in substantially the form of Annex A attached hereto, (2) your Principal
Draft accompanied by your written and completed certificate signed by you in
substantially the form of Annex B attached hereto, (3) your Bond Purchase Draft
accompanied by your written and completed certificate signed by you in
substantially the form of Annex C attached hereto, and (4) your Final Draft
accompanied by your written and completed certificate signed by you in
substantially the form of Annex D attached hereto. To the extent that amounts
are available to be drawn by your Interest Draft, such Interest Draft may be
presented together with your Principal Draft (but not your Final Draft). Each
such draft shall include thereon a reference to the number of this Letter of
Credit and each such draft and certificate shall be dated the date of its
presentation and shall be presented at our
NBD LETTER OF CREDIT NO. 512
-3-
23
office located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000 or if delivered
via tested telex, to telex number 4320060, Answerback: NationBank DET, or if
delivered via facsimile, to facsimile number (000) 000-0000, in each case to
the attention of Capital Markets Division -- Revenue Bond Group, or at any
other office in Detroit, Michigan which may be designated by us by written
notice delivered to you three Business Days preceding the date on which such
change of address shall be effective; provided, that any draft and certificate
presented by telex or facsimile shall be simultaneously confirmed with our
office by telephone at (000) 000-0000 (or such other phone number as we may
designate) and an original executed copy of such draft and certificate shall be
forwarded to us promptly by first class mail or overnight mail. If requested by
you, payment under this Letter of Credit may be made by wire transfer or by
deposit of immediately available funds into a designated account that you
maintain with us. We agree that all payments made by us hereunder will be made
with our own funds.
This Letter of Credit shall automatically terminate upon the earliest
to occur of (i) our honoring your Final Draft hereunder, or (ii) your
surrendering this Letter of Credit to us for cancellation as a result of (A) the
payment in full of the Bonds pursuant to the provisions of the Indenture, or (B)
the acceptance by you of an Alternate Letter of Credit (as defined in the
Indenture), as certified by you to us, or (iii) the Stated Expiration Date, or
(iv) the Business Day following the date on which the interest rate on the Bonds
has been converted to a Fixed Interest Rate (as defined in the Indenture) unless
waived in writing by us prior to such date, or (v) the fifteenth calendar day
following delivery to you of a direction by us under Section 9.01(e) of the
Indenture to declare the Bonds immediately due and payable which has not been
rescinded.
If a demand for payment made by you hereunder does not, in any
instance, conform to the terms and conditions of this Letter of Credit, we shall
give you prompt written notice that the demand was not effected in accordance
with the terms and conditions of this Letter of Credit, stating the reasons
therefore and that we are holding any documents at your disposal or are
returning the same to you, as we may elect. Upon being notified that the demand
was not effected in conformity with this Letter of Credit, you may attempt to
correct any such non-conforming demand for payment if, and to the extent that,
you are able to do so in accordance with terms of this Letter of Credit and
within the expiration date of the Letter of Credit.
Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to us at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
Attention: Capital Markets Division -- Revenue Bond Group, or, if sent to us by
tested telex to No. 4320060; Answerback: NationBank DET, and specifically
referring to the number of this Letter of Credit. The term "Business Day" as
used herein shall mean any day other than (i) a Saturday, (ii) a Sunday, (iii) a
day on which banking institutions in the city in which the principal corporate
trust office of the Trustee (or its bond registrar, paying agent or tender agent
offices) is located or the principal office of the Remarketing Agent (as defined
in the Indenture) is located or the office of NBD Bank at which action is to be
taken to realize moneys under this Letter of Credit are required or authorized
by law or executive order to be closed, or (iv) a day on which the New York
Stock Exchange is closed.
NBD LETTER OF CREDIT NO. 512
-4-
24
This Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs") with the exceptions of Articles
48(f) and 48(g) thereof. This Letter of Credit shall be deemed to be a contract
made under the laws of the State of Michigan and shall, as to matters not
governed by the Uniform Customs, be governed by and constructed in accordance
with the laws of the State of Michigan, including the Uniform Commercial Code as
in effect in the State of Michigan.
This Letter of Credit is transferable to any transferee who has
succeeded you as Trustee under the Indenture. Each letter of credit issued upon
any such transfer may be successively transferred. Transfer of the available
drawing(s) under this Letter of Credit to such transferee shall be effected by
the presentation to us of this Letter of Credit accompanied by a written and
completed certificate signed by you substantially in the form of Annex E
attached hereto. Upon such presentation we shall forthwith transfer the same to
your transferee or, if so requested by your transferee, issue an irrevocable
letter of credit to your transferee in the form of this Letter of Credit.
On each July 15, commencing July 15, 1998 through and including July
15, 2002 (each an "Extension Date"), this Letter of Credit will be extended for
an additional period of one year beyond the original or any extended Stated
Expiration Date (so that on each Extension Date this Letter of Credit will
always have a remaining term of one year), unless we notify you at least 60 days
prior to the then applicable Extension Date by a certificate in the form of the
attached Annex F that this Letter of Credit will not be extended beyond its then
applicable Stated Expiration Date. Such notice may be given in our sole
discretion. Notwithstanding the foregoing, the Stated Expiration Date shall not
be extended beyond July 15, 2003.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds), other than the certificates and the
drafts referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except for
such certificates and such drafts.
Very truly yours,
NBD BANK
By:_____________________________
Xxxxxx X. Xxxxx
Its: Vice President
NBD LETTER OF CREDIT NO. 512
-5-
25
ANNEX A
CERTIFICATE FOR DRAWING IN CONNECTION
WITH THE PAYMENT OF INTEREST ON THE
ECONOMIC DEVELOPMENT CORPORATION OF
THE CHARTER TOWNSHIP OF PLYMOUTH FLOATING
RATE MONTHLY DEMAND ECONOMIC DEVELOPMENT
REVENUE BONDS (KEY INTERNATIONAL MANUFACTURING
INC. PROJECT), SERIES 1984
The undersigned, a duly authorized officer of First Trust National
Association, a national banking association (acting in its capacity as trustee
under the Indenture, the "Trustee"), hereby certifies to NBD Bank, a Michigan
banking corporation (the "Bank"), with reference to Irrevocable Letter of Credit
No. 512 (the "Letter of Credit") issued by the Bank in favor of the Trustee,
that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to a payment, pursuant to the terms of the Indenture, of interest
on the Bonds.
(3) The amount of the Interest Draft accompanying this
Certificate is $__________, being drawn in respect of such interest, and does
not include any amount of interest on the Bonds included in any Interest Draft
or Bond Purchase Draft (that has not been reinstated) presented to you and not
dishonored by you on or prior to the date of presentation hereof.
(4) [The Interest Draft accompanying this Certificate is the
first Interest Draft presented by the Trustee under the Letter of Credit.](1)
[The Interest Draft last presented by the Trustee under the Letter of Credit was
honored by you on ________________, 19__, and the Trustee did not within 15
calendar days after such date receive a written direction from you under Section
9.01(e) of the Indenture to accelerate and declare the Bonds immediately due and
payable because of the occurrence and continuance of an Event of Default as
defined in the Credit Agreement.](2)
(5) The amount of the Interest Draft accompanying this
Certificate was computed in accordance with the terms and conditions of the
Bonds and the Indenture. Such amount does not include any amount in respect of
Pledged Bonds and does not exceed the amount available to be drawn by an
Interest Draft under the Letter of Credit.
(1)To be used in the Certificate relating to the first Interest Draft only.
(2)To be used in each Certificate relating to each Interest Draft other than the
first Interest Draft.
26
(6) This Certificate and the Interest Draft it accompanies are
dated, and are being presented to the Bank on, the date that is one Business Day
prior to the date on which interest on the Bonds with respect to which this
drawing is being made is due and payable under the terms of the Bonds and the
Indenture.
All capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed this Certificate as of
the _____ day of _______________, ____.
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By:_______________________________
Its: Authorized Officer
INTEREST CERTIFICATE
-2 -
27
ANNEX B
CERTIFICATE FOR DRAWING IN CONNECTION WITH
THE PAYMENT OF UNPAID PRINCIPAL OF THE
ECONOMIC DEVELOPMENT CORPORATION OF
THE CHARTER TOWNSHIP OF PLYMOUTH FLOATING
RATE MONTHLY DEMAND ECONOMIC DEVELOPMENT
REVENUE BONDS (KEY INTERNATIONAL MANUFACTURING
INC. PROJECT), SERIES 1984
The undersigned, a duly authorized officer of First Trust National
Association, a national banking association (acting in its capacity as trustee
under the Indenture, the "Trustee"), hereby certifies to NBD Bank, a Michigan
banking corporation (the "Bank"), with reference to Irrevocable Letter of Credit
No. 512 (the "Letter of Credit") issued by the Bank in favor of the Trustee,
that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment, pursuant to the terms of the Indenture, of less
than all of the unpaid principal of the Bonds which are outstanding under the
Indenture.
(3) The amount of the Principal Draft accompanying this
Certificate is $__________, being drawn in respect of the payment of such
principal, and does not include any amount of principal on the Bonds included in
any Principal Draft, Bond Purchase Draft that has not been reinstated or Final
Draft presented to you and not dishonored by you on or prior to the date of
presentation hereof.
(4) The amount of the Principal Draft accompanying this
Certificate was computed in accordance with the terms and conditions of the
Bonds and the Indenture. Such amount does not include any amount in respect of
Pledged Bonds and does not exceed the amount available to be drawn with respect
to principal of the Bonds under the Letter of Credit.
(5) This Certificate and the Principal Draft it accompanies are
dated, and are being presented to the Bank on, the date that is one Business Day
prior to the date on which unpaid principal of the Bonds with respect to which
this drawing is being made is due and payable under the terms of the Bonds and
the Indenture.
The Trustee acknowledges that, pursuant to the terms of the Letter of
Credit, upon your honoring the Principal Draft accompanying this Certificate,
the total amount available under the Letter of Credit and the amounts available
to be drawn by the Trustee thereunder by any subsequent Principal Draft and
Final Draft are automatically decreased by an amount equal to the
28
amount specified in paragraph (3) above as being drawn in respect of the payment
of unpaid principal of the Bonds.
All capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Letter of Credit.
PRINCIPAL CERTIFICATE
- 2 -
29
IN WITNESS WHEREOF, the Trustee has executed this Certificate as of
the ______ day of _________, ___.
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By:______________________________
Its: Authorized Officer
PRINCIPAL CERTIFICATE
- 3 -
30
ANNEX C
CERTIFICATE FOR DRAWING IN CONNECTION WITH
THE PAYMENT OF THE PURCHASE PRICE OF THE
ECONOMIC DEVELOPMENT CORPORATION OF
THE CHARTER TOWNSHIP OF PLYMOUTH FLOATING
RATE MONTHLY DEMAND ECONOMIC DEVELOPMENT
REVENUE BONDS (KEY INTERNATIONAL MANUFACTURING
INC. PROJECT), SERIES 1984
The undersigned, a duly authorized officer of First Trust National
Association, a national banking association (acting in its capacity as trustee
under the Indenture, the "Trustee"), hereby certifies to NBD Bank, a Michigan
banking corporation (the "Bank"), with reference to Irrevocable Letter of Credit
No. 512 (the "Letter of Credit") issued by the Bank in favor of the Trustee,
that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment of the aggregate purchase price of the Bonds
tendered to the Trustee for purchase pursuant to the terms of the Bonds and of
Section 3.01 or 3.10 of the Indenture. Sufficient funds are not available in
accordance with the terms of Section 6.05 of the Indenture to make such payment,
and the amount of such drawing represents, but does not exceed, the amount of
funds required to make such payment.
(3) The amount of the Bond Purchase Draft accompanying this
Certificate is $__________ (representing $_________ of principal and $_________
of interest), being drawn in respect of the payment of the purchase price of
Bonds properly tendered or deemed tendered for purchase, and does not include
any amount of principal on the Bonds included in any other Bond Purchase Draft
(except to the extent of your reinstatement of the amount which may be drawn
thereby under the terms of the Letter of Credit), or in any Principal Draft or
Final Draft presented to you, and not dishonored by you, on or prior to the date
of presentation hereof.
(4) The amount of the Bond Purchase Draft accompanying this
Certificate was computed in accordance with the terms and conditions of the
Bonds and the Indenture. Such amount does not include any amount in respect of
Pledged Bonds and does not exceed the amount available to be drawn under the
Letter of Credit with respect to the purchase price of the Bonds.
(5) This Certificate and the Bond Purchase Draft it accompanies
are dated, and are being presented to the Bank on, the date that is not more
than one Business Day
31
prior to the date on which the purchase price of the Bonds with respect to
which this drawing is being made is due and payable under the terms of the
Bonds and the Indenture.
The Trustee acknowledges that, pursuant to the terms of the Letter of
Credit, upon your honoring the Bond Purchase Draft accompanying this
Certificate, the total amount of the Letter of Credit and the amounts available
to be drawn by the Trustee thereunder by (i) any subsequent Bond Purchase Draft,
Principal Draft, and Final Draft are automatically decreased by an amount equal
to the amount specified in paragraph (3) above as being drawn in respect of the
payment of unpaid principal of the Bonds, unless such amount is reinstated in
the manner provided in the Letter of Credit, and (ii) any subsequent Interest
Draft, Bond Purchase Draft and Final Draft is automatically decreased by an
amount equal to the amount specified in paragraph (3) above as being drawn in
respect of the payment of unpaid interest on the Bonds, unless such amount is
reinstated in the manner provided in the Letter of Credit.
All capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed this Certificate as of
the _____ day of ______________, 19__.
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By:____________________________
Its: Authorized Officer
BOND PURCHASE DRAFT CERTIFICATE
- 2 -
32
ANNEX D
CERTIFICATE FOR DRAWING IN CONNECTION WITH
THE PAYMENT OF ENTIRE OUTSTANDING
PRINCIPAL OF AND INTEREST ON THE
ECONOMIC DEVELOPMENT CORPORATION OF
THE CHARTER TOWNSHIP OF PLYMOUTH FLOATING
RATE MONTHLY DEMAND ECONOMIC DEVELOPMENT
REVENUE BONDS (KEY INTERNATIONAL MANUFACTURING
INC. PROJECT), SERIES 1984
The undersigned, a duly authorized officer of First Trust National
Association, a national banking association (acting in its capacity as trustee
under the Indenture, the "Trustee"), hereby certifies to NBD Bank, a Michigan
banking corporation (the "Bank"), with reference to Irrevocable Letter of Credit
No. 512 (the "Letter of Credit") issued by the Bank in favor of the Trustee,
that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment of the unpaid principal amount of, and up to 65
days' interest on, all of the Bonds which are outstanding under the Indenture.
(3) The amount of the Final Draft accompanying this Certificate
is equal to the sum of (i) $___________ being drawn in respect of unpaid
principal of the Bonds and (ii) $____________ being drawn in respect of unpaid
interest on the Bonds, and does not include any amount of principal of or
interest on the Bonds included in any Interest Draft or Bond Purchase Draft that
has not been reinstated, or Principal Draft presented and not dishonored by you
on or prior to the date of this Certificate.
(4) The amount of the Final Draft accompanying this Certificate
was computed in accordance with the terms and conditions of the Bonds and the
Indenture. Such amount does not include any amount in respect of Pledged Bonds
and does not exceed the amount available to be drawn by a Final Draft under the
Letter of Credit.
(5) This Certificate and the Final Draft it accompanies are
dated, and are being presented to the Bank on, the date that is one Business Day
prior to the date on which the unpaid principal of, and interest on, all of the
Bonds which are outstanding under the Indenture is due and payable under the
terms of the Bonds and the Indenture.
The Trustee acknowledges that, pursuant to the terms of the Letter of
Credit, upon your honoring the Final Draft accompanying this Certificate, the
entire amount available to be
33
drawn by the Trustee under the Letter of Credit shall have been drawn and the
Letter of Credit shall automatically terminate.
All capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Letter of Credit.
REDUCTION CERTIFICATE
- 2 -
34
IN WITNESS WHEREOF, the Trustee has executed this Certificate as of
this _______ day of __________________, 19__.
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By:_______________________________
Its: Authorized Officer
REDUCTION CERTIFICATE
- 3 -
35
ANNEX E
INSTRUCTIONS TO TRANSFER
_________________, 19__
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:Capital Market Division -- Revenue Bond Group
Re:NBD Bank Irrevocable Letter of Credit No. ___
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
__________________________________________
(Name of Transferee)
__________________________________________
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit. Such transferee has succeeded the undersigned beneficiary as Trustee
under the Indenture.
By this transfer, all rights of the undersigned beneficiary in such
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however, that
no rights shall be deemed to have been transferred to the transferee until such
transfer complies with the requirements of such Letter of Credit pertaining to
transfers.
Such Letter of Credit is returned herewith and in accordance therewith
we ask you to transfer the same to the transferee or, if so requested by the
transferee, to issue a new irrevocable letter of credit in favor of the
transferee with provisions consistent with such Letter of Credit.
All capitalized terms used but not defined herein shall have the
meaning assigned thereto in such Letter of Credit.
36
FIRST TRUST NATIONAL ASSOCIATION
as Trustee
By:________________________________
Authorized Officer
INSTRUCTIONS TO TRANSFER
- 2 -
37
ANNEX F
EXPIRATION CERTIFICATE
_______________, 19__
First Trust National Association
000 X. Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Re: NBD Bank Irrevocable Letter of Credit No. 512 Securing the
Economic Development Corporation of the Charter Township of
Plymouth Floating Rate Monthly Demand Economic Development
Revenue Bonds (Key International Manufacturing Inc. Project),
Series 1984
Ladies and Gentlemen:
Reference is made to that certain Irrevocable Letter of Credit No. 512
dated March 24, 1997 (the "Letter of Credit") issued by NBD Bank in your favor
as beneficiary. We hereby notify you that the Stated Expiration Date (as
defined in the Letter of Credit) will not be extended beyond its scheduled
expiration date of July 15, ____, and therefore the Letter of Credit will
terminate on July 15, ________.
NBD BANK
By: ______________________________
Its:__________________________
38
EXHIBIT A
NBD BANK
000 XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
IRREVOCABLE LETTER OF CREDIT
NO. 511
MARCH 24, 1997
Norwest Bank Indiana, National Association
as Trustee
P. X. Xxx 000
Xxxx Xxxxx, XX 00000-0000
Attention: Corporate Trust Department
Ladies and Gentlemen:
At the request of and for the account of Key Plastics, Inc., a Michigan
corporation (the "Company"), we (the "Bank") hereby establish this irrevocable,
transferable, Letter of Credit in favor of you as Trustee under the Trust
Indenture dated as of August 1, 1989 (the "Indenture") between you (as
successor trustee to Lincoln National Bank and Trust Company of Fort Xxxxx) and
the Town of Xxxxxxxx, Indiana (the "Issuer"), pursuant to which Limited
Obligation Industrial Development Revenue Bonds (Key Plastics, Inc. Project) in
the aggregate principal amount of $7,500,000 (the "Bonds") were issued by the
Issuer.
We hereby irrevocably authorize you to draw on us, from and after the date
hereof, to and including the Expiration Date (hereinafter defined), in
accordance with the terms and conditions hereinafter set forth, available by
your sight draft in an amount not exceeding $2,567,364 (the "Original Stated
Amount"), of which an amount not exceeding $2,465,000 may be drawn upon with
respect to the unpaid principal of the Bonds, and of which an amount not
exceeding the lesser of $102,364 or two hundred ten (210) days accrued interest
on the Bonds at any one time outstanding may be drawn based upon the annual
interest rates then in effect.
Subject to the foregoing and the further provisions of this Letter of
Credit, a demand for payment may be made by you by presentation to us at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Capital Markets Division -
Revenue Bond Group, of your sight draft in the form of Annex 1 and of payment
documents in the forms attached hereto as Annex 2 or Annex 3 appropriately
completed and signed on your behalf by you. The sight draft drawn under this
39
Letter of Credit must bear on its face the clause "Drawn under NBD Bank Letter
of Credit No. 511." In addition when a draft is submitted in the form of Annex
No. 2, requesting a payment of principal of the Bonds, your draft must also be
accompanied by your completed and signed certificate relating to the reduction
of the Stated Amount of this Letter of Credit in the form of Annex 4 attached
hereto. Each draft and certificate shall be dated as of the date of
presentation.
Any demand for payment hereunder shall not exceed the Stated Amount. The
Stated Amount shall be reduced from time to time by payment of principal made
on the Bonds from drawings made hereunder and from surplus bond proceeds, plus
the amount of the corresponding interest portion thereof allocable to such
principal, but only if Annex 4 with respect to such principal payment shall
have been delivered to us.
On the tenth (10th) calendar day following each drawing hereunder to pay
interest on the Bonds, the amount so drawn shall be restored to the amount
available to be drawn hereunder in respect of payment of interest on the Bonds
accrued on or prior to the maturity thereof unless you shall have received
notice from us substantially in the form of Annex No. 6 hereto, stating that an
Event of Default under the Credit Agreement dated as of March 24, 1997 (as it
may be amended or restated from time to time, the "Credit Agreement"), among
the Company, the lenders party thereto (the "Lenders") and NBD Bank, as agent
for the Lenders, has occurred and is then continuing and which contains a
statement that this Letter of Credit shall terminate fifteen (15) calendar days
after the date of your receipt of such notice and that you are required to draw
on the Letter of Credit within that period and directing you to accelerate and
declare immediately due and payable all unpaid principal of and interest on the
Bonds.
This Letter of Credit shall terminate fifteen (15) calendar days after the
date of your receipt of such notice (or if such 15th day is not a business day,
on the next succeeding business day). Subject to the preceding sentence,
drawings in respect of payments hereunder honored by us shall not, in the
aggregate, exceed the Stated Amount.
The drawing made pursuant to such certificate shall be made by tested
telegraphic communication, Federal Express (or similar overnight
instrumentality of delivery) or hand delivery without further need of document
presentation, including the original of this Letter of Credit, it being
understood that such certificate submitted via tested telegraphic
communication, Federal Express or similar overnight instrumentation of
delivery) or hand delivery is to be the sole operative instrument of drawing.
Demand for payment may be made by you under this Letter of Credit at our
address set forth above (or at such other office as may be designated by us by
written notice delivered to you) at any time during our business hours on a
Business Day prior to the Expiration Date. As used herein, the term "Business
Day" means a day on which banks located in the city in which the principal
corporate trust office of the Trustee is located or Detroit, Michigan, are not
required or authorized to remain closed, and on which the New York Stock
Exchange is not closed.
If a drawing for payment for any purpose is made by you hereunder prior to
3:00 p.m. Detroit, Michigan time, on a Business Day, and provided that such
drawing for payment and the
2
40
documents presented in connection therewith conform to the terms and conditions
hereof, payment shall be made to you of the amount specified, in immediately
available funds before 12:00 noon Detroit, Michigan time, on the next Business
Day.
If the drawing is made by you after 3:00 p.m., Detroit, Michigan time on a
Business Day, payment shall be made to you of the amount specified, in
immediately available funds by 12:00 noon Detroit, Michigan time on the second
next Business Day thereafter.
We agree to honor and pay the amount of drawing if presented in compliance
with the terms and conditions hereof using our general funds and not any funds
received from the Company. If requested by you, payment under this Letter of
Credit may be made by deposit of immediately available funds (including without
limitation by wire transfer of funds) into a designated account that you
maintain with us.
If a drawing made by you hereunder does not, in any instance, conform to
the terms and conditions of this Letter of Credit, we will give you prompt
notice that the purported presentment was not effected in accordance with the
terms and conditions of this Letter of Credit, stating the reasons therefor,
and that we are holding any documents at your disposal or are returning the
same to you, as we may elect. Upon being notified that the drawing was not
effected in conformity with this Letter of Credit, you may attempt to correct
any such non-conforming demand for payment if, and to the extent that, you are
entitled (without regard to the provisions of this sentence) and able to do so.
Drawings in respect of payments hereunder honored by us shall not, in the
aggregate, exceed the Stated Amount. Subject to the preceding sentence and to
the provisions herein for the reinstatement of amounts drawn hereunder in
respect to interest, each drawing honored by the Bank hereunder shall pro tanto
reduce the Stated Amount available under this Letter of Credit.
The demand for payment hereunder shall not exceed the Stated Amount. The
Stated Amount of this Letter of Credit shall be the Original Stated Amount, as
reduced in accordance with the provisions hereof. The Stated Amount, and the
portion thereof that may be drawn upon with respect to principal of the Bonds,
shall be permanently reduced automatically upon notice by you to us, without
amendment of this Letter of Credit, to the amount set forth in your certificate
(as set forth in Annex 4 hereto duly signed by your authorized officer) by the
amount of any reduction in the amount of any Bonds outstanding.
This Letter of Credit applies only to the payment of principal of the
Bonds and up to two hundred ten (210) days, accrued interest at any one time
outstanding in respect of interest accruing on the Bonds on or prior to August
15, 1999 and does not apply to any interest that may accrue thereon after such
date.
The Letter of Credit shall be effective immediately and shall
automatically expire and be delivered to us for cancellation at our close of
business at our aforesaid address on the earlier to occur (the "Expiration
Date") of the following:
3
41
(i) the date on which we honor the last drawing available to be made
hereunder,
(ii) the date on which the principal amount and premium, if any, and
interest on the Bonds shall have been paid in full pursuant to the terms
of the Indenture from the proceeds of a drawing under this Letter of
Credit,
(iii) fifteen (15) calendar days (or, if the 15th day is not a
business day, then on the next succeeding business day) after we have
provided you with written notice (in substantially the form of Annex No.
6 hereto) of an Event of Default under the Credit Agreement which
contains a statement that the Letter of Credit shall terminate fifteen
(15) calendar days after the date of your receipt of such notice and that
you are required to draw on this Letter of Credit within that period and
have directed you to accelerate and declare immediately due and payable
all unpaid principal of the Bonds,
(iv) August 15, 1999 -- the Stated Expiration Date.
This Letter of Credit shall be promptly surrendered to us by you upon any such
expiration.
By acceptance of this Letter of Credit, you agree that upon payment of any
draft(s) which reduce the Stated Amount of this Letter of Credit to zero, you
shall deliver forthwith an assignment to us of all of your interest in the
Mortgage (as defined in the Indenture) in proper form for recording and filing.
This Letter of Credit and the Annexes 1 through 6 appended hereto sets
forth in full the terms of our undertaking, and this undertaking shall not in
any way be modified, amended or expanded by reference to any document,
instrument or agreement referred to herein (except the Uniform Customs
hereinafter mentioned) or to which this Letter of Credit relates, and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement.
This Letter of Credit is transferable in its entirety (but not in part) to
any transferee who has succeeded you as Trustee under the Indenture and may be
successively transferred. Transfer of this Letter of Credit to such transferee
shall be effected by and upon the presentation to us of this Letter of Credit
accompanied by a certificate substantially in the form of Annex 5 attached
hereto. Notwithstanding any contrary provision of the Uniform Commercial
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce, Publication No. 500 (the "Uniform Customs") payments of
any charges in respect of transfer of this Letter of Credit shall not be a
condition precedent to such transfer.
This Letter of Credit is subject to the Uniform Customs or by subsequent
Uniform Customs fixed by subsequent Congresses of the International Chamber of
Commerce. This Letter of Credit shall be deemed to be made under the laws of
the State of Michigan, including Article 5 of the Uniform Commercial Code as in
effect in the State of Michigan, and shall be governed by and construed in
accordance with the laws of the State of Michigan. As to any
4
42
matter of conflict between the provisions of the Uniform Customs and the laws
of the State of Michigan, the laws of the State of Michigan shall govern this
Letter of Credit.
Only you (or a transferee as permitted by the terms of this Letter of
Credit) may make a drawing under this Letter of Credit.
Upon the payments to you or your account of the amount specified in a
sight draft drawn hereunder, we shall be fully discharged of our obligation
under this Letter of Credit with respect to such sight draft, and we shall not
thereafter be obligated to make any further payment under this Letter of Credit
in respect of such sight draft to you or any other person who may have made to
you or who makes to you a demand for payment of principal or, premium, if any,
or interest on the Bonds.
Very truly yours,
NBD BANK
By:___________________________
Xxxxxx X. Xxxxx
Title: Vice President
5
43
ANNEX 1
SIGHT DRAFT
_________________________
(Place)
___________________, 19__
(Date)
For value received, pay to Norwest Bank Indiana, National Association as
incumbent Trustee under the Trust Indenture dated as of August 1, 1989 between
the Town of Xxxxxxxx, Indiana (the "Issuer") and Norwest Bank Indiana, National
Association, as Trustee, pursuant to which the Trustee issued $7,500,000 in
aggregate principal amount of its Limited Obligation Industrial Development
Revenue Bonds (Key Plastics, Inc. Project) (the "Bonds"), for the Bonds,
$_________ (Dollars).
Drawn under NBD Bank Transferable Irrevocable Letter of Credit No. 511.
To: NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Capital Markets Division - Revenue Bond Group
NORWEST BANK INDIANA, NATIONAL
ASSOCIATION, as Trustee
By:_________________________
Its:____________________
44
ANNEX 2
CERTIFICATE FOR DRAWING
WITH RESPECT TO PRINCIPAL OF
THE LIMITED OBLIGATION
INDUSTRIAL DEVELOPMENT REVENUE BONDS
Town of Xxxxxxxx, Indiana
(Key Plastics, Inc. Project)
The undersigned, a duly authorized officer of Norwest Bank Indiana,
National Association (the "Trustee"), hereby certifies to NBD Bank (the
"Bank"), with reference to Irrevocable Letter of Credit No. 511 (the "Letter of
Credit") issued by the Bank in favor of the Trustee, that:
1. The Trustee is the Trustee under the Indenture for the holders of the
Bonds.
2. The Trustee is making a drawing under the Letter of Credit with respect
to the payment of principal on the Bonds.
3. The Trustee is directed to draw $__________ under the Letter of Credit
with respect to payment of principal on the Bonds pursuant to Section 501 of
the Indenture.
4. The amount of the sight draft accompanying this certificate does not
exceed the amount available to be drawn under the Letter of Credit.
5. The amount of the sight draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the
Indenture.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate this ____ day of _________, 19__.
NORWEST BANK INDIANA, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________
Title:
Authorized Signatory
45
ANNEX 3
CERTIFICATE FOR DRAWING
WITH RESPECT TO INTEREST ON
THE LIMITED OBLIGATION
INDUSTRIAL DEVELOPMENT REVENUE BONDS
Town of Xxxxxxxx, Indiana
(Key Plastics, Inc. Project)
The undersigned, a duly authorized officer of Norwest Bank Indiana,
National Association (the "Trustee"), hereby certifies to NBD Bank (the
"Bank"), with reference to Irrevocable Letter of Credit No. 511 (the "Letter of
Credit") issued by the Bank in favor of the Trustee, that:
1. The Trustee is the Trustee under the Indenture for the holders of the
Bonds.
2. The Trustee is making a drawing under the Letter of Credit with respect
to the payment of principal on the Bonds.
3. The Trustee is directed to draw $__________ under the Letter of Credit
with respect to payment of interest on the Bonds pursuant to Section 501 of the
Indenture.
4. The amount of the sight draft accompanying this certificate does not
exceed the amount available to be drawn under the Letter of Credit.
5. The amount of the sight draft accompanying this certificate was
computed in accordance with the terms and conditions of the Bonds and the
Indenture.
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate this ____ day of _________, 19__.
NORWEST BANK INDIANA, NATIONAL
ASSOCIATION,
as Trustee
By:_______________________
Title:
Authorized Signatory
46
ANNEX 4
CERTIFICATE FOR REDUCTION OF
AMOUNTS AVAILABLE UNDER LETTER OF CREDIT
ISSUED IN CONNECTION WITH
THE LIMITED OBLIGATION
INDUSTRIAL DEVELOPMENT REVENUE BONDS
Town of Xxxxxxxx, Indiana
(Key Plastics, Inc. Project)
The undersigned, a duly authorized officer of Norwest Bank Indiana,
National Association (the "Trustee"), hereby certifies to Comerica Bank (the
"Bank"), with reference to Irrevocable Letter of Credit No. 511 (the "Letter of
Credit") issued by the Bank in favor of the Trustee, that:
1. The Trustee is the Trustee under the Indenture for the holders of the
Bonds.
2. The initial amount available under the Letter of Credit with respect to
the principal of the Bonds was $__________.
3. The Trustee hereby notifies you that after March 24, 1997 and prior to
the date hereof $__________ principal amount of the Bonds has been paid (or
provision for payment thereof has been made) pursuant to the Indenture.
[SELECT APPLICABLE PARAGRAPH 4 below]
4. The Trustee hereby notifies you that following payment of the Draft
which this Reduction Certificate accompanies $__________ principal amount of
the Bonds will have been paid (or provision for payment thereof made) pursuant
to the Indenture.
4. The Trustee hereby notifies you that $__________ of surplus bond
proceeds has been applied to payment of the Bonds in accordance with the
Indenture; and, after the application of such surplus bond proceeds,
$__________ principal amount of the Bonds will have been paid (or provision for
payment thereof made) pursuant to the Indenture.
5. Following the principal payment(s) referred to in paragraphs (3) and
(4) above, the aggregate principal amount of all of the Bonds "outstanding" (as
defined in the Indenture) is $__________.
47
6. The amount available to be drawn by the Trustee under the Letter of
Credit with respect to principal of the Bonds is hereby reduced to $__________
(such amount being the amount specified in paragraph 5 above).
Any capitalized term used herein and not defined shall have its respective
meaning as set forth in the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of __________, 19__.
NORWEST BANK INDIANA, NATIONAL
ASSOCIATION,
as Trustee
By:________________________
Title:
Authorized Signatory
2
48
ANNEX 5
INSTRUCTION TO TRANSFER
_______________, 19___
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
In re: NBD Bank, Irrevocable Letter of Credit Xx. 000
Xxxxxxxxx:
For value received, the undersigned beneficiary hereby irrevocably
instructs you to transfer to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeding the
undersigned as Trustee under the Trust Indenture, dated as of August 1, 1989,
between the Town of Xxxxxxxx, Indiana and Norwest Bank Indiana, National
Association.
By this transfer, all rights of the undersigned beneficiary in the Letter
of Credit are transferred to the transferee and the transferee shall hereafter
have the sole rights as beneficiary thereof; provided, however, that no rights
shall be deemed to have been transferred to the transferee until such transfer
complies with the requirements of the Letter of Credit pertaining to transfers.
The Letter of Credit is returned herewith and in accordance therewith we
ask that this transfer be effected.
SIGNATURE AND LEGAL
CAPACITY GUARANTEED Very truly yours,
________________________ _____________________________
(Bank) Trustee
By:_________________________
________________________ Title:
Authorized Signature Authorized Signatory
49
ANNEX 6
Notice of Direction to Trustee
to Make a Drawing Under Letter of Credit
Date: _______________
Lincoln National Bank and Trust
Company of Fort Xxxxx, as Trustee
Post Xxxxxx Xxx 000
Xxxx Xxxxx, XX 00000-0000
Re: Irrevocable Transferable Letter of Credit No. 511 Issued by
NBD Bank
Gentlemen:
Reference is made to the Credit Agreement dated as of March 24, 1997,
among Key Plastics, Inc., the lenders party thereto, and NBD Bank, as agent for
the lenders (as it may be amended or restated from time to time, the "Credit
Agreement") pursuant to which there exists an Event of Default (as defined in
the Credit Agreement) under [insert Section reference and a specific
description of the Event of Default].
Please be advised (i) that in accordance with the Trust Indenture dated as
of August 1, 1989, between Town of Xxxxxxxx, Indiana, and you as Trustee (the
"Indenture"), we are directing you, as the beneficiary of the Letter of Credit,
to make a drawing under the Letter of Credit for the principal amount of all
outstanding bonds, together with interest accrued thereon and (ii) that as a
consequence of such direction, you may make a drawing under the Letter of
Credit no later than fifteen (15) days (or if such 15th day is not a business
day, on the next succeeding business day) after your receipt of this notice,
after which day the Letter of Credit will expire.
Very truly yours,
NBD BANK
By:________________________
Its:__________________
