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EXHIBIT 5.02
INTER-COMPANY LOAN AGREEMENT
This Inter-Company Loan Agreement (this "AGREEMENT") is made and entered
into effective as of March 1, 1999 (the "EFFECTIVE DATE") by and between
Ocular Sciences, Inc., a Delaware corporation ("OSI"), and Precision Lens
Manufacturing & Technology, Inc., a Barbados corporation ("PLMT").
RECITALS
WHEREAS, PLMT wishes to borrow sums from OSI, its parent corporation, from
time to time, on and subject to the terms and conditions contained in this
Agreement;
WHEREAS, OSI is willing to provide loans of money to PLMT from time to
time, on and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, OSI and PLMT
hereby agree as follows:
1. CERTAIN DEFINITIONS. As used herein:
1.1 BUSINESS DAY. The term "BUSINESS DAY" means any day other than a
Saturday, Sunday, or other day on which commercial banks in San Mateo County,
California are authorized or required by law to close.
1.2 LOAN DOCUMENTS. The term "LOAN DOCUMENTS" means, collectively,
this Agreement, the Note (as defined below) executed and delivered pursuant
hereto and any other documents executed or delivered by OSI or PLMT pursuant to
this Agreement or in connection with any Loan (as defined below).
1.3 LOAN PERIOD. The term "LOAN PERIOD" means that period of time
beginning on the Effective Date and ending on the Maturity Date.
1.4 MATURITY DATE. The term "MATURITY DATE" means that date which is
the earlier to occur of: (a) March 1, 2004; (b) the sale of all or
substantially all the assets of PLMT; (c) the merger or consolidation of PLMT
with or into another company or other reorganization of PLMT following which
the shareholders of PLMT immediately prior to such transaction do not own at
least 51% of the company emerging as the survivor or parent company in such
transaction; (d) the date the OSI Loan Facility (as defined in Section 2.1) is
terminated pursuant to Section 5.2(a); (e) the date on which OSI declares the
entire unpaid principal amount and all accrued interest on an outstanding Note
immediately due and payable in full pursuant to the terms of such Note or under
Section 5.2(b), or such amount otherwise becomes immediately due and payable in
full; or (f) the date on which OSI and PLMT mutually agree to terminate this
Agreement.
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2. AMOUNT AND TERMS OF LOAN.
2.1 OSI LOAN FACILITY. Subject to all the terms and conditions of
this Agreement, and in reliance on the representations, warranties and
covenants of PLMT set forth in this Agreement, OSI agrees to make loans of
funds to PLMT, in each case subject to the sole discretion of OSI, during the
Loan Period on a revolving basis (such loans being collectively hereinafter
referred to as "LOANS" and each individually as a "LOAN"), in an aggregate
cumulative total principal amount outstanding at any one time not to exceed
Twenty Million Dollars (US$20,000,000). Loans may be requested and drawn down
by PLMT as and when PLMT needs such sums for general corporate purposes upon
two (2) business days written notice to OSI. OSI in its sole discretion, for
any reason or no reason and without liability to PLMT, may refuse to provide
one or more loans requested by PLMT. OSI's obligation to consider requests for
Loans to PLMT under this Agreement is referred to as the "OSI LOAN FACILITY."
PLMT's indebtedness to OSI for Loans advanced by OSI under this Agreement will
be evidenced by a Promissory Note of PLMT in the form attached hereto as
"Exhibit A" (the "NOTE").
2.3 MATURITY. Unless payment thereof is accelerated or otherwise
becomes due earlier under the terms of this Agreement (including but not
limited to the provisions of Section 5.2), the unpaid principal amount of all
Loans and all unpaid interest accrued thereon, together with any other fees,
expenses or costs incurred in connection therewith, will be immediately due and
payable to OSI in full on the earlier of the Maturity Date or the Payment Date
set forth in the applicable Note.
2.4 CANCELING OR REDUCING LOAN FACILITY. Upon ten (10) calendar days
written notice to PLMT, OSI may cancel the OSI Loan Facility or reduce the
amount of the OSI Loan Facility. Upon OSI providing a notice electing to cancel
the amount of the OSI Loan Facility made available to PLMT hereunder, the Note
shall be deemed automatically converted, without further action required on the
part of either party hereto, into a non-revolving fixed promissory note, due on
the Payment Date set forth in such Note, in a principal amount equal to then
aggregate principal amount of all Loans outstanding under such Note plus accrued
interest thereon, and will bear interest from such date forward at the rate
specified in such Note, and no further Loans will be made by OSI to PLMT under
such Note or this Agreement. Upon OSI providing a notice electing to reduce the
amount of the OSI Loan Facility made available to PLMT hereunder, the Note
shall be deemed automatically converted, without further action required on the
part of either party hereto, into a promissory note, due on the Payment Date
set forth in such Note, in a principal amount equal to the amount to which the
OSI Loan Facility is so reduced and all other terms of the Note shall remain
unchanged.
2.5 PAYMENT OF AMOUNTS OWING; OFFSET. Upon the earliest to occur of
the Payment Date set forth in the applicable Note or the Maturity Date
specified in this Agreement, OSI shall provide PLMT written notice of the
aggregate amount of principal and accrued interest owing to OSI by PLMT as of
such date under the Note and this Agreement and such amounts shall be offset
against any amounts then owing by OSI to PLMT, if any, and the net amount owing
to OSI shall be immediately due and payable by PLMT.
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3. REPRESENTATIONS AND WARRANTIES OF PLMT. PLMT hereby represents and
warrants to OSI that:
3.1 ORGANIZATION AND STANDING. PLMT is a corporation duly
organized, validly existing and in good standing under the laws of Barbados,
and has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as such is presently conducted and
as proposed to be conducted.
3.2 AUTHORIZATION. All corporate action on the part of PLMT and its
officers, directors and shareholders that is necessary for the authorization,
execution, delivery and performance of each of the Loan Documents by PLMT has
been taken; and each of the Loan Documents constitutes valid and legally binding
obligations of PLMT, enforceable in accordance with their terms.
4. REPRESENTATIONS AND WARRANTIES OF OSI. OSI hereby represents and
warrants to PLMT that:
4.1 ORGANIZATION AND STANDING. OSI is a corporation duly organized
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as such is presently conducted and as
proposed to be conducted.
4.2 AUTHORIZATION. All corporate action on the part of OSI and its
officers, directors and shareholders that is necessary for the authorization,
execution, delivery and performance of each of the Loan Documents by OSI has
been taken; and each of the Loan Documents constitutes valid and legally
binding obligations of OSI, enforceable in accordance with their terms.
5. EVENTS OF DEFAULT OF BORROWER.
5.1 EVENTS OF DEFAULT. The occurrence of any of the following
events will constitute an "EVENT OF DEFAULT" under this Agreement and the
applicable Note:
(a) PLMT fails to pay any principal or any accrued interest
under any Note or any Loan when the same is due and payable, or fails to pay
any amount of principal or accrued interest due under any Note or any Loan on
the Payment Date or Maturity Date therefor, and such failure to pay is not
cured by PLMT within two (2) Business Days after OSI gives written notice of
such failure to pay to PLMT; or
(b) PLMT is in default under any other agreement, note or
instrument pursuant to which PLMT has borrowed money from OSI; or
(c) PLMT is in default with respect to any agreement or other
evidence of indebtedness or liability for borrowed money if the effect of such
default is to (i) to accelerate the maturity of such indebtedness or liability
or to require the prepayment thereof, or (ii) to permit the holder thereof to
cause such indebtedness to become due prior to the stated maturity thereof;
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(d) PLMT becomes insolvent, or admits in writing its inability
to pay its debts as they mature, or makes an assignment for the benefit of
creditors, or applies for or consents to the appointment of a receiver,
liquidator, custodian or trustee for it or for a substantial part of its
property or business, or such a receiver, liquidator, custodian or trustee
otherwise is appointed and is not discharged within thirty (30) calendar days
after such appointment;
(e) bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors are instituted by or against PLMT, or any order,
judgment or decree is entered against PLMT decreeing its dissolution or
liquidation; provided, however, with respect to an involuntary petition in
bankruptcy, such petition is not dismissed within thirty (30) days after the
filing of such petition;
(f) a court order or judgment for the payment of money in
excess of US$500,000 is entered against PLMT; or
(g) the assets of PLMT are seized by or surrendered to any
governmental entity.
5.2 REMEDIES OF OSI. Upon and after the occurrence of any Event of
Default, OSI will have no further obligation to make any Loan or Loans to PLMT,
and in addition, at OSI's sole option by written notice to PLMT, OSI may take
any one or more of the following actions:
(a) OSI may immediately terminate the Loan Facility it provides
hereunder and all other liabilities and obligations of OSI under this
Agreement, without affecting OSIs rights under this Agreement and the
applicable Note; and
(b) OSI may declare the entire principal amount of and all
accrued interest on the Note and all Loans immediately due and payable in full,
whereupon such amounts will immediately be due and payable in full, provided
that in the case of an Event of Default listed in paragraph (d), (e) or (g) of
Section 5.1, the principal and interest will immediately become due and payable
without the requirement of any notice or other action by OSI; and
(c) Exercise all rights and remedies granted under the Loan
Documents or otherwise available to OSI at law or in equity.
6. SECURITY INTEREST.
6.1 GRANT OF SECURITY INTEREST. PLMT hereby grants OSI a present and
continuing security interest in all of PLMT's right, title and interest in and
to and arising under that certain contract with Xxxxxx X. Xxxxxx, Inc. dated
August 17, 1995, as amended, regarding the contact lens automation project.
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6.2 FURTHER ASSURANCES. PLMT hereby covenants and agrees to take all
steps and execute and file all documents requested by OSI to document, evidence
and perfect such security interest in favor of OSI.
7. MISCELLANEOUS.
7.1 ENTIRE AGREEMENT. This Agreement and the Notes and schedules
attached thereto constitute the entire agreement and understanding among the
parties with respect to the subject matter thereof and supersede any prior
understandings or agreements of the parties with respect to such subject matter.
7.2 GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of California as applied to
agreements entered into solely between residents of, and to be performed
entirely in, such state, without reference to that body of law relating to
conflicts of law or choice of law.
7.3 MODIFICATION; WAIVER. This Agreement may be modified or amended
only by a writing signed by both parties hereto. No waiver or consent with
respect to this Agreement will be binding unless it is set forth in writing and
signed by the party against whom such waiver is asserted. No course of dealing
between OSI and PLMT will operate as a waiver or modification of any party's
rights under this Agreement or any other Loan Document. No delay or failure on
the part of either party in exercising any right or remedy under this Agreement
or any other Loan Document will operate as a waiver of such right or any other
right. A waiver given on one occasion will not be construed as a bar to, or as
a waiver of, any right or remedy on any future occasion.
7.4 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies of OSI
herein provided will be cumulative and not exclusive of any other rights or
remedies provided by law or otherwise.
7.5 NOTICES. Any notice required or permitted under this Agreement
will be given in writing and will be deemed effectively given upon personal
delivery, upon confirmed transmission by telecopy or email, or three (3) days
following deposit with the United States Post Office, postage prepaid,
addressed:
To OSI:
000 Xxxxxx Xxxxxx
Xx. Xxx Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
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To PLMT:
c/o KPMG
Chartered Accountants
Hastings Xxxxxx Church
Barbados
Attention: General Manager
or at such other address as such party may specify by written notice given in
accordance with this Section.
7.7 SEVERABILITY. Any invalidity, illegality or unenforceability of any
provision of this Agreement in any jurisdiction will not invalidate or render
illegal or unenforceable the remaining provisions hereof in such jurisdiction
and will not invalidate or render illegal or unenforceable such provision in any
other jurisdiction.
7.7 ATTORNEYS' FEES. If any party hereto commences or maintains any
action at law or in equity (including counterclaims or cross-complaints) against
the other party hereto by reason of the breach or claimed breach of any term or
provision of this Agreement, any Note or any other Loan Document, then the
prevailing party in said action will be entitled to recover its reasonable
attorneys' fees and court costs incurred therein.
7.8 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
will inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties; provided, however, that neither OSI nor PLMT
may assign its rights or obligations under this Agreement to anyone other than
an entity which such party controls, is controlled by or is under common control
with, without the prior written consent of the other party.
7.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
OCULAR SCIENCES, INC. PRECISION LENS MANUFACTURING
& TECHNOLOGY, INC.
Name: XXXXXXX XXXXXXXXXX Name: XXXXXXXX XXXXXXX
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By: /s/ XXXXXXX XXXXXXXXXX By: /s/ XXXXXXXX XXXXXXX
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Title: Vice President, Finance Title: Director
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Executed at: South San Francisco Executed at: Xxx Halcyon Cove, Antigua
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ATTACHMENTS:
Exhibit A - PLMT Revolving Secured Promissory Note
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