EXECUTION COPY
LETTER OF CREDIT AGREEMENT
BETWEEN
HOSOKAWA MICRON INTERNATIONAL INC.
AS ACCOUNT PARTY
AND
THE MITSUBISHI BANK, LIMITED, NEW YORK BRANCH
AS ISSUING BANK
DATED AS OF DECEMBER 16, 1991
U.S. $75,000,000
RELATING TO HOSOKAWA MICRON INTERNATIONAL INC.
Commercial Paper Program
ARTICLE 1 DEFINITIONS ..................................................... 1
ARTICLE 2 COMMERCIAL PAPER AND LETTER OF CREDIT OPERATIONS ................. 5
Section 2.1 Commercial Paper Notes .................................... 5
Section 2.2 Procedure for Issuance of Commercial Paper Notes .......... 5
Section 2.3 Accounts and Payment of Commercial Paper Notes ............ 6
Section 2.4 Issuance of Letter of Credit .............................. 7
Section 2.5 Expiration of Letter of Credit ............................ 8
Section 2.6 Method of Payment ......................................... 8
Section 2.7 Commercial Paper Support Fee .............................. 8
Section 2.8 Increased Costs ........................................... 9
Section 2.9 Company's Obligations Unconditional ....................... 10
Section 2.10 Waivers .................................................. 10
ARTICLE 3 EXPIRATION, TERMINATION OR SUSPENSION ............................ 10
Section 3.1 Expiration Date ........................................... 10
Section 3.2 Suspension of the Issuance of Commercial Paper
Notes ..................................................... 11
ARTICLE 4 REPRESENTATIONS AND WARRANTIES ................................... 12
Section 4.1 Organization, Corporate Powers ............................ 12
Section 4.2 Corporate Authority, Violation of Laws, Breach of
Agreements ................................................ 12
Section 4.3 Government Approvals ...................................... 13
Section 4.4 Valid and Binding Obligations ............................. 13
Section 4.5 Litigation . . . .......................................... 13
Section 4.6 Accuracy of Information ................................... 13
Section 4.7 Accuracy of Representations and Warranties ................ 14
Section 4.8 Investment Company . . .................................... 14
Section 4.9 Compliance with Laws . .................................... 14
Section 4.10 ERISA ..................................................... 14
Section 4.11 Taxes ..................................................... 14
Section 4.12 Financial Statements ...................................... 14
Section 4.13 No Materially Adverse Facts, Events, Conditions ........... 15
Section 4.14 Pari Passu ................................................ 15
ARTICLE 5 CONDITIONS PRECEDENT . ........................................... 15
Section 5.1 No Default ................................................ 15
Section 5.2 Certificate ............................................... 15
Section 5.3 Company's Supporting Documents ............................ 15
Section 5.4 Bank's Supporting Documents ............................... 16
Section 5.5 Dealer's Documents ........................................ 17
ARTICLE 6 AFFIRMATIVE COVENANTS ........................................... 17
Section 6.1 Payment of Taxes .......................................... 17
Section 6.2 Preservation of Corporate Existence ....................... 17
section 6.3 Compliance with Laws ...................................... 17
Section 6.4 Inspection Rights ......................................... 18
Section 6.5 Keeping of Records and Books of Account ................... 18
Section 6.6 Maintenance of Approvals, Filings and
Registrations .......................................... 18
Section 6.7 Reporting Requirements .................................... 18
Section 6.8 Indemnification ........................................... 19
Section 6.9 Securities Act ............................................ 21
Section 6.10 Compliance with Agreements ................................ 21
Section 6.11 Dealer .................................................... 21
Section 6.12 Further Assurances ........................................ 21
ARTICLE 7 NEGATIVE COVENANTS ............................................... 21
Section 7.1 Use of Proceeds ........................................... 21
Section 7.2 Amendment of Depositary Agreement ......................... 21
Section 7.3 Sales, Mergers, Etc ....................................... 21
Section 7.4 Offering Memorandum ....................................... 21
Section 7.5 Investment Company Act .................................... 22
Section 7.6 Margin Stock .............................................. 22
ARTICLE 8 DEFAULTS ......................................................... 22
ARTICLE 9 MISCELLANEOUS .................................................... 24
Section 9.1 Notices ................................................... 24
Section 9.2 Survival and Termination of Agreement ..................... 25
Section 9.3 Fees and Expenses of the Bank ............................. 25
Section 9.4 Applicable Law ............................................ 25
Section 9.5 Modification of Agreement ................................. 25
Section 9.6 Non-Waiver of Rights by the Bank .......................... 26
Section 9.7 Set-off ................................................... 26
Section 9.8 Counterparts .............................................. 26
Section 9.9 Severability .............................................. 26
LETTER OF CREDIT AGREEMENT
LETTER OF CREDIT AGREEMENT dated as of December 16, 1991 between
Hosokawa Micron International Inc., a Delaware corporation, having an office at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and The Mitsubishi
Bank, Limited, New York Branch, a bank licensed under the laws of the State of
New York, having an office at 000 Xxxxxxx Xxxxxx, Two World Financial Center,
New York, New York 10281 (the "Bank").
RECITALS
The Company desires to sell its Commercial Paper Notes in the United
States Commercial Paper market in an aggregate Face Amount not in excess of
$75,000,000 at any time Outstanding. The Bank, subject to the terms and
conditions hereinafter set forth, is willing to issue its Letter of Credit to
provide for the repayment of Commercial Paper Notes outstanding from time to
time. The proceeds from the sale of the Commercial Paper Notes will be used to
reimburse the Bank for drawings made under its Letter of Credit and for the
general corporate purposes (including but not limited to acquisition financing)
of the Company.
Accordingly, the Company and the Bank hereby agree as follows:
ARTICLE 1
DEFINITIONS
The following terms as used in this Agreement shall have the following
meanings, unless the context otherwise requires (where applicable, such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"AGREEMENT" shall mean this Letter of Credit Agreement between the
Company and the Bank, as the same from time to time may be extended, amended,
supplemented, waived or modified.
"BANK" shall have the meaning set forth in the heading of this
Agreement.
"BANK'S ACCOUNT" shall mean the Bank's account maintained with the
Depositary and described in Section 3(c) of the Depositary Agreement.
"BOOK-ENTRY NOTE" shall have the meaning set forth in Section 1(a) of
the Depositary Agreement.
"BUSINESS DAY" shall mean a day other than a Saturday or a Sunday or
other day on which commercial banks are authorized or required to close in New
York City.
"CERTIFICATED NOTE" shall have the meaning set forth in Section 1(a) of
the Depositary Agreement.
"CHARGE" shall have the meaning set forth in Section 2(a) of the
Depositary Agreement.
"COMMERCIAL PAPER NOTES" shall mean the short-term promissory notes of
the Company issued pursuant to the terms and conditions of this Agreement and
the Depositary Agreement defined in the Section 1 of the Depositary Agreement.
"COMMERCIAL PAPER SUPPORT FEE" shall have the meaning set forth in
Section 2.7 of this Agreement.
"COMMITMENT" shall mean Seventy-Five Million Dollars ($75,000,000).
"COMPANY" shall have the meaning set forth in the heading of this
Agreement.
"COMPANY OFFICIAL" shall mean the President or any Vice President of
the Company or any other officer or director of the Company designated in
writing to the Bank by the President of the Company.
"COMPANY'S ORDINARY DEPOSIT ACCOUNT" shall mean the Company's ordinary
deposit account maintained with the Bank and referred to in Section 3(a) of the
Depositary Agreement.
"CREDIT EVENT" shall have the meaning set forth in Article 5 of this
Agreement.
"DEALER" shall mean Xxxxxxx Xxxxx Money Markets Inc. or any other
nationally recognized commercial paper dealer or dealers designated by the
Company from time to time to act as such in connection with the issuance of the
Commercial Paper Notes.
"DEALER AGREEMENT" shall mean the agreement between the Company and the
Dealer pursuant to which the Company has authorized the Dealer to act as such in
connection with the issuance of the Commercial Paper Notes.
"DEPOSITARY" shall mean The Bank of Tokyo Trust company, a trust
company organized under the laws of New York, and its successors and assigns as
permitted under the Depositary Agreement.
"DEPOSITARY AGREEMENT" shall mean the Depositary Agreement dated the
date hereof among the Depositary, the Company and the Bank substantially in the
form of EXHIBIT B to this Agreement, as
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the same from time to time may be extended, amended, supplemented, waived or
modified.
"DISCOUNT" shall mean, with respect to a Commercial Paper Note, the
difference between the Face Amount of such Commercial Paper Note and the amount
of the proceeds from the sale of such Commercial Paper Note received by the
Company (after deduction of the Dealer's commission).
"DOLLARS" AND "$" shall mean lawful money of the United States of
America.
"DTC" shall mean The Depository Trust Company, a national clearinghouse
for the settlement of securities transactions, incorporated under the laws of
the State of New York.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation, trade or business that is
(i) a member of the same controlled group of corporations (within Section 414(c)
of the Internal Revenue Code) as the the Company or (ii) under common control
(within the meaning of Section 414(c) of the Internal Revenue Code) with the
Company.
"EVENT OF DEFAULT" shall mean any of the Events of Default described in
Article 8 of this Agreement.
"EXPIRATION DATE" shall have the meaning set forth in Section 3.1 of
this Agreement.
"FACE AMOUNT" shall mean, when used with reference to Commercial Paper
Notes outstanding, the face amount stated therein.
"FEDERAL BANKRUPTCY CODE" shall mean the United States Bankruptcy Code
codified at 11 U.S.C. Section 101 ET SEQ. as enacted by the Bankruptcy Reform
Act of 1978, as the same may be amended from time to time.
"FINANCING DOCUMENTS" shall mean this Agreement, the Depositary
Agreement, the Commercial Paper Notes, the Master Note, the Dealer Agreement,
and each other document, agreement, instrument or certificate delivered by or on
behalf of the Company in connection with the transactions contemplated by this
Agreement and the other Financing Documents.
"FIRST CREDIT EVENT" shall have the meaning set forth in Article 5 of
this Agreement.
"GENERAL ACCOUNT" shall have the meaning set forth in Section 5.3(a) of
this Agreement.
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"GUARANTOR" shall mean Hosokawa Micron Corporation, a Japanese
corporation.
"GUARANTY" shall mean the irrevocable and unconditional guaranty of the
Guarantor in favor of the Bank guaranteeing the payment when due of all amounts
payable by the Company under this Agreement.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
"LETTER OF CREDIT" shall mean the irrevocable letter of credit of the
Bank substantially in the form of EXHIBIT A to this Agreement, as such letter of
credit may be amended from time to time.
"LIABILITIES" shall have the meaning set forth in Section 6.8 of this
Agreement.
"MASTER NOTE" shall mean the global security in substantially the form
of Exhibit A attached to the Depositary Agreement to be delivered to the
Depositary as custodian and agent for DTC and recorded in the book-entry system
maintained by DTC.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"OUTSTANDING" shall mean, with respect to Commercial Paper Notes, all
Certificated Notes issued and authenticated and all Book-Entry Notes for which
issuance instructions have been entered in DTC's book-entry system pursuant to
the Depositary Agreement, other than those Commercial Paper Notes which have
been paid in full or for the payment of which funds equal to the Face Amount
thereof have been deposited in the Special Account or which are no longer
entitled to the benefit of the Letter of Credit and, with to respect to
Unreimbursed Drawings, all Unreimbursed Drawings less the principal amount of
such Unreimbursed Drawings which have been paid by the Company.
"PARTICIPANT" shall mean any Person which has acquired an interest in
the Bank's rights and obligations hereunder and under the Letter of Credit.
"PERSON" shall mean an individual, corporation, partnership, joint
venture, trust or unincorporated organization, or a government or any agency or
political subdivision thereof.
"PGBC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
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"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and which is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"PRIME RATE" shall mean the rate publicly announced by the Bank at its
New York Branch from time to time as its prime commercial lending rate, each
change in such rate to be effective as of the opening of business on the day
such change occurs, which rate may not be the lowest rate of interest charged by
the Bank to its most creditworthy customers.
"SEC" shall mean the Securities and Exchange Commission of the United
States of America or any successor thereto.
"SECURITIES ACT" shall have the meaning set forth in Section 5.4(d) of
this Agreement.
"SPECIAL ACCOUNT" shall have the meaning set forth in Section 2.3(b) of
this Agreement.
"UNREIMBURSED DRAWING" shall have the meaning set forth in Section
2.3(c) of this Agreement.
ARTICLE 2
COMMERCIAL PAPER AND LETTER OF CREDIT OPERATIONS
Section 2.1 COMMERCIAL PAPER NOTES. The Company proposes to sell
Commercial Paper Notes in the United States commercial paper market. In support
of the Commercial Paper Notes, the Bank hereby agrees, subject to the terms and
conditions hereof, to issue the Letter of Credit to the Depositary as fiduciary
on behalf of the owners of Commercial Paper Notes to provide funds for the
payment of Commercial Paper Notes at their maturity.
SECTION 2.2 PROCEDURE FOR ISSUANCE OF COMMERCIAL PAPER NOTES
(a) The Company shall from time to time, in its discretion,
execute Certificated Notes and deliver them to the Depositary for for
completion, authentication and delivery in accordance with the terms of the
Depositary Agreement and, when the DTC, book-entry system is used for Commercial
Paper Notes, the Company shall have delivered to the Depositary as the custodian
and agent for DTC the Master Note. In no event shall Commercial Paper Notes be
issued after the date fifteen days before the Expiration Date or if the
Depositary would be prohibited from authenticating and delivering or entering
issuance instructions in DTC's book-entry system with respect to such Commercial
Paper Notes pursuant to Section 1 of the Depositary Agreement, or if the
effective rate of interest thereon would be in excess of the maximum permitted
by applicable law.
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(b) Upon notice from the Bank pursuant to Section 3.2, the Company
shall immediately cease issuing Commercial Paper Notes.
Section 2.3 ACCOUNTS AND PAYMENT OF COMMERCIAL PAPER NOTES
(a) GENERAL ACCOUNT. As provided in Section 3(a) of the Depositary
Agreement, a segregated special purpose account shall be maintained with the
Depositary designated the "Mitsubishi Bank General Account" (hereinafter called
the "GENERAL ACCOUNT") and from time to time the Company shall cause funds to be
deposited therein which shall be held by the Depositary as fiduciary for the
benefit of the Bank to the extent set forth in Section 3(a) of the Depositary
Agreement, such that immediately after any payment by the Bank under the Letter
of Credit and receipt of proceeds of any sale of Commercial Paper Notes issued
on the date of such payment there will be sufficient funds to reimburse the Bank
in full for such payment. Each issuance of Commercial Paper Notes shall be
deemed an irrevocable assignment by the Company to the Bank of the proceeds of
the sale of such Commercial Paper Notes to the extent needed to reimburse the
Bank for payments made under the Letter of Credit on the date of such issuance
and for Outstanding Unreimbursed Drawings and accrued and unpaid interest owing
thereon, and such proceeds shall be deposited in the Bank's Account in
accordance with the terms of the Depositary Agreement. As provided in the
Depositary Agreement, funds shall be transferred from the General Account to the
Bank's Account to the extent needed to reimburse the Bank for drawings made in
respect of the Letter of Credit. The right of withdrawal from the General
Account shall be vested solely in the Depositary and shall be exercised by the
Depositary only as provided in Section 3 of the Depositary Agreement.
(b) SPECIAL ACCOUNT. As provided in Section 3(b) of the Depositary
Agreement, the Depositary shall open a segregated special purpose trust account
designated the "Hosokawa Micron International Commercial Paper Owners/Mitsubishi
Bank Special Account" (hereinafter called the "SPECIAL ACCOUNT"). The sole
purpose of the Special Account shall be to hold moneys deposited therein by the
Depositary as provided in Section 3 of the Depositary Agreement, such moneys to
be held by the Depositary as fiduciary for the benefit of the owners of
Commercial Paper Notes for the purpose of paying Commercial Paper Notes. The
right of withdrawal from the Special Account shall be vested solely in the
Depositary and shall be exercised by the Depositary only to pay matured
Commercial Paper Notes in accordance with the terms of the Depositary Agreement
until all Commercial Paper Notes have been paid in full. The Company shall not
have any legal, equitable or beneficial interest in the Special Account or any
funds on deposit therein.
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(c) REIMBURSEMENT OF DRAWINGS. The Company shall reimburse the
Bank (or cause the Bank to be reimbursed) forthwith whenever a drawing is
honored under the Letter of Credit by deposit of immediately available funds to
the General Account and the transfer thereof to the Bank's Account in the manner
provided in Section 2.3(c) of this Agreement on the day of such drawing, free of
any deductions whatsoever. If such reimbursement is not so made on the date of
such drawing, the drawing shall constitute an "Unreimbursed Drawing," and
interest shall accrue thereon as provided in Section 2.3(d) of this Agreement.
At the time of each payment by the Bank under the Letter of
Credit, the amount of the Letter of Credit shall be reduced by the amount of
such payment. Upon (i) reimbursement to the Bank of such payment on the date of
such payment, (ii) the repayment of any unreimbursed Drawing arising from such
payment, or (iii) the issuance of Commercial Paper Notes on the date of such
payment, which issuance shall be deemed to be an assignment to the Bank of
proceeds from the sale of such Commercial Paper Notes on the day of such payment
pursuant to Section 2.3(a) of this Agreement, in each case in the manner
contemplated by this Agreement and the Depositary Agreement, the amount by which
the Letter of Credit was so reduced shall be automatically reinstated (subject
to Section 3.2 and Articles 5 and 8 hereof), in the case of (i) or (ii) above,
by the amount of such reimbursement or repayment (except that the aggregate
amount of such increases shall not exceed the amount of such payment under the
Letter of Credit) and, in the case of (iii) above, by the Face Amount of the
Commercial Paper Notes the proceeds of which have been assigned to the Bank;
provided, however, that in the case of an automatic reinstatement in the amount
of the Letter of Credit following an assignment of the proceeds from the sale of
Commercial Paper Notes as described in (iii) above, any repayment or
reimbursement to the Bank in respect of the Discount on such Commercial Paper
Notes shall not increase the amount of the Letter of Credit. In no event shall
the amount of the Letter of Credit at any time exceed the Commitment.
(d) LATE PAYMENTS. For each day that any sum due and payable to
the Bank hereunder remains unpaid as of 4:00 P.M. New York time such sum shall
bear interest from and including the due date to but excluding the date of
payment at a rate per annum equal to the Prime Rate as in effect on each such
day plus two percent (2%) computed on the basis of a 360-day year and actual
days elapsed. Notwithstanding the foregoing, to the extent that a drawing under
the Letter of Credit is repaid on the same day after 4:00 P.M. New York time but
by the close of business on such day in New York by the application of proceeds
of newly issued Commercial Paper Notes as contemplated by Section 2(a) of the
Depositary Agreement, no such interest shall accrue.
Section 2.4 ISSUANCE OF LETTER OF CREDIT. Subject to Article 5 hereof,
the Bank shall issue and deliver the Letter of
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Credit to the Depositary concurrently with the execution and delivery of this
Agreement and the Depositary Agreement by the parties hereto and thereto. The
Letter of Credit shall be issued in an amount equal to the Commitment, subject
to reductions and increases as provided by Section 2.3(c) of this Agreement;
provided, however, that no such reduction shall have the effect of terminating
or altering in any respect the terms of the Letter of Credit or reducing the
amount payable with respect to Commercial Paper Notes Outstanding at the time of
such reduction.
The Bank agrees that all payments made by the Bank under the Letter of
Credit shall be paid out of the general funds of the Bank, including funds that
represent the proceeds of a Charge, and that no payments under the Letter of
Credit shall in any way be contingent upon or drawn from amounts on deposit in
any account maintained by the Company with the Depositary or paid out of
proceeds of Commercial Paper Notes.
Section 2.5 EXPIRATION OF LETTER OF CREDIT. The Letter of Credit shall
expire with respect to any Commercial Paper Note at the earlier of (i) payment
of such Commercial Paper Note, or (ii) 5:00 P.M. New York time on the fifteenth
day after the maturity date of such Commercial Paper Note, or if such day is not
a Business Day, 5:00 P.M. New York time on the first Business Day thereafter. In
no event shall the Letter of Credit remain in effect after 5:00 P.M. New York
time on the Expiration Date, or if such day is not a Business Day, 5:00 P.M. New
York time on the first Business Day thereafter.
Section 2.6 METHOD OF PAYMENT. All payments and other transfers of
funds under this Agreement shall be made in Dollars in funds immediately
available at the place of payment, unless otherwise provided in the Depositary
Agreement or unless the recipient thereof shall otherwise agree.
Section 2.7 COMMERCIAL PAPER SUPPORT FEE. As consideration to the Bank
for issuing its Letter of Credit, the Company shall pay the Bank a fee (the
"Commercial Paper Support Fee") of three-eighths of one percent (0.375%) per
annum (based on a 360-day year and actual days elapsed) of the average Face
Amount of Commercial Paper Notes Outstanding during the calendar quarter
immediately preceding the date such fee is to be paid pursuant to the next
sentence. The Company shall pay the Commercial Paper Support Fee to the Bank
quarterly in arrears on the fifth Business Day of March, June, September and
December commencing on the fifth Business Day of March 1992 (each such payment
to cover the quarterly period ending on the last day of the immediately
preceding calendar month), with a final payment five Business Days after the
Expiration Date. On the later of the Expiration Date or the date when there are
no longer any Outstanding Commercial Paper Notes, the Company shall pay the
Commercial Paper Support Fee to
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the Bank prorated for the period since the last quarterly payment pursuant to
the preceding sentence.
Section 2.8 INCREASED COSTS. If on or after the date hereof any change
in any law or regulation, domestic or foreign, or in any decree or order,
domestic or foreign, or in the interpretation or administration thereof by any
court or administrative or governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law), or in any regulatory accounting principles, shall (i) impose, modify,
render or deem applicable any capital adequacy, reserve, deposit or special
deposit requirement, deposit insurance assessment or similar requirement against
the Letter of Credit issued or participated in by, or assets held by, or
deposits in or for the account of the Bank or any Participant, (ii) impose on
the Bank or any participant any other condition or requirement regarding this
Agreement or the Letter of Credit or any participation therein, or (iii) subject
the Bank or any Participant to any tax, charge, fee, deduction or any
withholding of any kind whatsoever other than with respect to federal, state and
municipal income taxes or taxes in lieu thereof imposed by the jurisdiction (or
political subdivision thereof) of incorporation of the Bank or such Participant
or of the issuing office or participating office thereof, and the result of any
event referred to in clause (i), (ii) or (iii) above shall be to increase the
cost to the Bank or such Participant of issuing, maintaining or participating in
the Letter of Credit or reduce the amount of any fee or any other amount
receivable by the Bank or such Participant with respect to the Letter of Credit
or this Agreement or any participation therein (which increase in cost or
reduction in fee or other receipt, as the case may be, shall be determined by
the Bank's or Participant's reasonable allocation of the aggregate of such cost
increases or fee reductions resulting from such events), then, upon written
demand by the Bank, which demand shall be accompanied by a certificate from the
Bank or such Participant as described in the next sentence, the Company shall
pay to the Bank such additional amounts as are necessary to compensate the Bank
and/or such Participant for such increased costs incurred or reduced receipts
suffered thereby. A certificate of the Bank or such Participant as to such
increased costs incurred or reduced receipts suffered by such parties as a
result of any event mentioned in clause (i), (ii) or (iii) above specifying the
event causing such increased cost or reduced receipt and setting forth in
reasonable detail the calculation made to determine the amount of such increased
cost or reduced receipt shall be prima facie evidence of the amount thereof. The
Bank and each Participant shall exercise reasonable efforts to minimize such
increased cost or reduced receipts, provided that neither the Bank nor any
Participant shall be required to take any action which is otherwise inconsistent
with its internal policies or regulatory requirements or which is otherwise
disadvantageous to the Bank or such Participant. Neither the Bank nor any
Participant shall be entitled to any additional payment pursuant to this Section
2.8 to
9
the extent that any increased cost or reduced receipt results solely from a
change by such entity of the branch or office at which the Letter of Credit or
such entity's participation therein is issued or maintained.
Section 2.9 COMPANY'S OBLIGATIONS UNCONDITIONAL. The obligations of the
Company under this Agreement and each of the other Financing Documents
(including its reimbursement obligations hereunder) shall be absolute,
unconditional, irrevocable, and performed strictly in accordance with the terms
of each of the Financing Documents irrespective of any right of setoff,
counterclaim or defense to payment which the Company may have against the Bank,
the beneficiary of the Letter of Credit (or any other person for whom such
beneficiary may be acting), or any other person, including any defense based on
(i) any failure of any drawing on the Letter of Credit by the Depositary to
conform to the terms of the Letter of Credit or the invalidity, inaccuracy,
falsity, or lack of genuineness, whether by forgery, fraud or otherwise, of any
document, demand, or statement presented under the Letter of Credit, or (ii) any
failure of the Company to receive all or any part of the proceeds of the sale of
any Commercial Paper Notes with respect to which such drawing on the Letter of
Credit was made by the Depositary, or (iii) any non-application or
misapplication by the Depositary of the proceeds of such drawing, or (iv) the
illegality, invalidity, irregularity or unenforceability of all or any of the
Financing Documents, or (v) any amendment or waiver of any of the Financing
Documents or (vi) the expiration of the Letter of Credit; provided, however,
that the Company shall not be obligated to reimburse the Bank for any wrongful
payment or disbursement made under the Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Bank.
Section 2.10 WAIVERS. To the fullest extent permitted by law, the
Company hereby waives (a) presentment, demand, notice of demand, protest, notice
of protest, notice of dishonor and notice of non-payment; and (b) all statutes
of limitation.
ARTICLE 3
EXPIRATION, TERMINATION OR SUSPENSION
Section 3.1 EXPIRATION DATE. As used herein, "Expiration Date" shall
mean December 16, 1992, which date may be extended by the written agreement of
the parties hereto as set forth below or accelerated pursuant to Article 8. If
the Company wishes to extend the Expiration Date, it shall so notify the Bank
and the Depositary not later than 90 days prior to the Expiration Date as then
in effect. The Bank shall consider in good faith such request for an extension
of the Expiration Date, but may, in its sole discretion, for any reason or for
no reason, decline to agree to such
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extension. The Bank shall notify the Company and the Depositary not later than
70 days prior to an Expiration Date whether the Bank agrees to an extension of
such Extension Date duly requested by the Company, provided that any failure by
the Bank to respond timely to any such request shall be deemed to be a rejection
by the Bank of such request.
Section 3.2 SUSPENSION OF THE ISSUANCE OF COMMERCIAL PAPER NOTES. Upon
the occurrence of any one of the following events, the Bank may give notice
(which may be telephonic notice confirmed in writing) to the Company and the
Depositary instructing the Company to cease issuing Commercial Paper Notes and
instructing the Depositary to cease authenticating or delivering Certificated
Notes and entering issuance instructions in DTC's book-entry system with respect
to Commercial Paper Notes, whereupon no further Commercial Paper Notes shall be
issued by the Company and the Depositary shall cease to (i) authenticate and
deliver Certificated Notes and (ii) enter issuance instructions in DTC's
book-entry system with respect to Book-Entry Notes, and the amount of the Letter
of Credit shall thereafter not be reinstated pursuant to Section 2.3(c), unless
such notice is thereafter rescinded by the Bank as provided below:
(i) If performance by the Bank of its obligations under this
Agreement, the Letter of Credit or the Depositary Agreement would
subject the Bank to regulation by any governmental body other than the
State of New York and the federal banking authorities of the United
States, the Government of Japan and such other governmental bodies as
presently directly regulate the Bank, its activities and properties,
or would restrict the ability of the Bank to conduct a general banking
business or materially increase the present level of such regulation
of the Bank; or if any restriction is imposed or threatened to be
imposed on the Bank which would make it unlawful for the Letter of
Credit to be issued or to remain in effect or for demands for payment
thereunder to be honored or otherwise prevent the Bank from issuing
the Letter of Credit or honoring drawings thereunder; or
(ii) If any governmental approval or clearance required or
advisable (including any necessary clearance from the Ministry of
Finance of the Government of Japan) for the Bank to issue and perform
its obligations under the Letter of Credit is modified, suspended, or
terminated for any reason and the effect of such modification,
suspension, or termination would make it impermissible or inadvisable
under the terms of such approval or clearance for the Letter of Credit
to be issued or to remain in effect or for demands for payment
thereunder to be honored; or
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(iii) If an Event of Default or an event that with the giving
of notice or the passing of time or both would constitute an Event of
Default shall occur; or
(iv) If the issuance or proposed issuance of Commercial Paper
Notes is not in accordance with this Agreement or the Depositary
Agreement; or
(v) If the Depositary fails to comply with the terms of the
Depositary Agreement; or
(vi) If any of the conditions precedent specified in Article 5
hereof shall not be satisfied;
provided, however, that no such notice shall be effective with respect to
Commercial Paper Notes issued on the same date as such notice but prior to the
receipt of such notice by the Depositary; and provided, further, that no such
notice shall have the effect of terminating or altering in any respect the terms
of the Letter of Credit or reducing the amount payable with respect to
Commercial Paper Notes Outstanding at the time such notice is given. The Bank
shall not give notice under this Section unless one of the conditions set forth
above exists. The Bank may at any time in its discretion rescind any notice
given pursuant to this Section 3.2.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 ORGANIZATION CORPORATE POWERS. The Company has been duly
incorporated and is validly existing and in good standing under the laws of the
State of Delaware and is qualified and in good standing as a foreign corporation
in New York and each other jurisdiction where the failure to so qualify would
have a materially adverse effect on its financial condition or its ability to
perform its obligations under the Financing Documents. The Company has all
requisite corporate power and authority to conduct its business in each
jurisdiction in which its business is conducted, to own its properties and to
execute and deliver and perform all of its obligations under the Financing
Documents.
Section 4.2 CORPORATE AUTHORITY, VIOLATION OF LAWS, BREACH OF
AGREEMENTS. The execution, delivery and performance by the Company of the
Financing Documents have been duly authorized by all necessary corporate action
and do not and will not (i) violate any provision of any law, rule, regulation
(including, without limitation, the rules and regulations of the SEC), order,
writ, judgment, injunction, decree, determination, award or the charter or
by-laws of the Company, (ii) result in a breach of or consti-
12
tute a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which the Company is a party or by which the
Company or any of its properties may be bound or affected, or (iii) result in or
require the creation or imposition of a mortgage, deed of trust, assignment,
pledge, lien, security interest or other charge or encumbrance of any nature
upon or with respect to any of the properties of the Company. The Company is not
in violation of or in default under any such law, regulation, order, writ,
judgment, injunction, decree, determination or award, or any such indenture,
agreement, lease or instrument, which violation or default would have a
materially adverse effect on its financial condition or its ability to perform
its obligations under the Financing Documents.
Section 4.3 GOVERNMENT APPROVALS. No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, is or will be necessary for the valid execution, delivery or
performance by the Company of any of the Financing Documents or for the issuance
or sale of Commercial Paper Notes by the Company.
Section 4.4 VALID AND BINDING OBLIGATIONS. This Agreement and the
Depositary Agreement constitute, and the Book-Entry Notes when identified on the
records of DTC's book-entry system and the Certificated Notes when executed and
delivered under and as contemplated by this Agreement and the Depositary
Agreement will constitute, legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other similar laws and by the application of general
principles of equity.
Section 4.5 LITIGATION. There are no actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against the Company or
any of its properties before any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign
(including the SEC or any other regulatory commission), which, if determined
adversely to the Company, would singly or in the aggregate materially adversely
affect its financial condition or its ability to perform its obligations under
the Financing Documents.
Section 4.6 ACCURACY OF INFORMATION. All information supplied by the
Company to the Bank in connection with the transactions contemplated by the
Financing Documents is true, complete and accurate in all material respects and
does not omit to state any material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
13
Section 4.7 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Company in each of the Financing
Documents were true, complete and accurate in all material respects when made
and do not and will not contain any material misstatements or omit to state any
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.
Section 4.8 INVESTMENT COMPANY. The Company is not, and upon receipt by
the Company of the proceeds from the sale of Commercial Paper Notes the Company
will not thereby become, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 4.9 COMPLIANCE WITH LAWS. The Company has not failed to comply
with the requirements of any applicable laws, regulations and orders of any
governmental authority, the non-compliance with which would, singly or in the
aggregate, materially adversely affect its financial condition or its ability to
perform its obligations under the Financing Documents.
Section 4.10 ERISA. The Company and the ERISA Affiliates have fulfilled
their respective obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan, are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code and have not incurred any liability to the PBGC, any Plan
or any Multiemployer Plan (other than to make contributions in the ordinary
course of business).
Section 4.11 TAXES. The Company has filed all tax returns, statements,
reports and forms required to be filed by it and has paid and discharged all
taxes, assessments, and governmental charges and levies imposed upon it or upon
its income or profits and upon any properties belonging to it prior to the date
on which penalties would have attached thereto, other than any such tax,
assessment, charge or levy which is being contested by the Company in good faith
and by appropriate proceedings, adequate reserves having been provided for the
payment thereof in accordance with United States generally accepted accounting
principles, which contest operates to stay any materially adverse effect of any
such non-payment.
Section 4.12 FINANCIAL STATEMENTS. The financial statements of the
Company for the year ended September 30, 1990, which have been delivered to the
Bank present fairly and accurately, in accordance with generally accepted
accounting principles consistently applied, the financial condition of the
Company as of the dates thereof and the results of operations and cash flow for
the periods then ended. As of the date hereof, there has been no change in the
financial condition of the Company which materially adversely affects the
financial condition of the Company or the
14
ability of the Company to perform its obligations under the Financing Documents.
Section 4.13 NO MATERIALLY ADVERSE FACTS, EVENTS, CONDITIONS. There is
no fact, event or condition which materially adversely affects the financial
condition of the Company or the ability of the Company to perform its
obligations under the Financing Documents which has not been set forth in this
Agreement or in the other documents, certificates and statements furnished to
the Bank by or on behalf of the Company prior to the date hereof.
Section 4.14 PARI PASSU. The reimbursement obligations of the Company
to the Bank hereunder rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Company for borrowed money.
ARTICLE 5
CONDITIONS PRECEDENT
The issuance of the Letter of Credit and each issuance of Commercial
Paper Notes (each such issuance being herein called a "Credit Event" and the
issuance of the Letter of Credit being herein called the "First Credit Event")
may be made only if the following conditions precedent are met:
Section 5.1 NO DEFAULT. On the date of each Credit Event, the Company
shall be in compliance with all the terms and provisions set forth herein on its
part to be observed or performed; the representations and warranties set forth
in Article 4 hereof shall be true and correct as if made on and as of such date;
and no Event of Default or event which, but for the lapse of time or giving of
notice or both, would constitute an Event of Default hereunder sha11 have
occurred and be continuing on such date. On the date of each Credit Event, the
Company shall be deemed to have certified to the Bank that the conditions set
forth in this Section 5.2 have been satisfied and, if requested by the Bank with
respect to any Credit Event, the Company will deliver to the Bank a certificate
of a Company Official containing such a certification on and as of the date of
such Credit Event.
Section 5.2 CERTIFICATE. On the date of the First Credit Event, the
Company shall have delivered to the Bank a certificate of the Company, signed by
a Company Official, substantially in the form of EXHIBIT C hereto.
Section 5.3 COMPANY'S SUPPORTING DOCUMENTS. On the date of the First
Credit Event, the Company shall have delivered or caused to be delivered to the
Bank, in form and substance satisfactory to the Bank:
15
(a) Executed counterparts of the Depositary Agreement and the
Dealer Agreement, along with copies of the offering memorandum to be used in the
offering and sale of the Commercial Paper Notes;
(b) Certificates of the Secretary of the Company dated such date
certifying (i) as to the truth and accuracy of the copies of the Certificate of
Incorporation and By-laws of the Company and the resolutions of the Board of
Directors of the Company approving the transactions contemplated by the
Financing Documents, and (ii) as to the incumbency of officers of the Company
executing the Financing Documents or otherwise acting on behalf of the Company
in respect of the transactions contemplated thereunder, together with specimen
signatures of such officers attached thereto;
(c) A good standing certificate for the Company from the Secretary
of State of the State of Delaware dated as of a recent date;
(d) On the date of the First Credit Event, the Bank shall have
received the favorable written opinion of Xxxxxx, Xxxxxxx & Xxxx, counsel to the
Company, dated such date and addressed to and satisfactory to the Bank, with
regard to Sections 4.1, 4.2, 4.3, 4.4, 4.5, and 4.8 of this Agreement and such
other matters as the Bank may request;
(e) A favorable written opinion of Xxxxxx, Xxxxxxx & Xxxx, counsel
to the Company, as to the status of drawings under the Letter of Credit and
payments of the Commercial Paper Notes under the Federal Bankruptcy Code;
(f) Evidence that the Commercial Paper Notes shall have received
the highest ratings from Standard & Poor's Corporation and Xxxxx'x Investors
Service, Inc.;
(g) The Guaranty, duly executed by the Guarantor, together with
such evidence as to due authorization and execution thereof as shall be
reasonably requested by the Bank; and
(h) Such other documents as the Bank or counsel for the Bank may
reasonably request.
Section 5.4 BANK'S SUPPORTING DOCUMENTS. On the date of the First
Credit Event, the Bank shall have delivered or caused to be delivered to the
Company:
(a) Executed counterparts of the Depositary Agreement and a copy
of the executed Letter of Credit;
(b) A certificate of an officer of the Bank dated such date
certifying as to the incumbency and signatures of the officers of the Bank
executing this Agreement, the Depositary Agreement and
16
the Letter of Credit or otherwise acting on behalf of the Bank hereunder and
thereunder;
(c) A favorable written opinion of Xxxxxx & Xxxxx, United States
counsel to the Bank, as to (i) the enforceability of the Letter of Credit
against the Bank and (ii) the applicability of the Securities Act of 1933, as
amended (the "Securities Act") to the Letter of Credit and the Commercial Paper
Notes;
(d) A favorable written opinion of Japanese counsel to the Bank as
to the enforceability of the Letter of Credit against the Bank; and
(e) A certificate of an authorized officer of the Bank consenting
to the use of certain financial information concerning the Bank contained in the
offering memorandum used in the offering and sale of Commercial Paper Notes.
Section 5.5 DEALER'S DOCUMENTS. The Company either has delivered or
will promptly deliver to the Dealer original or certified copies of all of the
documents described in this Article 5, other than those described in Section
5.3(g) and (h).
ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.1 PAYMENT OF TAXES. The Company shall file all tax returns,
statements, reports and forms required to be filed by it and shall pay and
discharge all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits and upon any properties belonging to it prior
to the date on which penalties attach thereto, other than any such tax,
assessment, charge or levy which is being contested by the Company in good faith
and by appropriate proceedings, adequate reserves having been provided for the
payment thereof in accordance with United States generally accepted accounting
principles, which contest shall operate to stay any materially adverse effect of
any such non-payment.
Section 6.2 PRESERVATION OF CORPORATE EXISTENCE. The Company shall
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which its failure to maintain such
qualification would have a material adverse effect on its business or financial
condition or its ability to perform its obligations under the Financing
Documents.
Section 6.3 COMPLIANCE WITH LAWS. The Company shall comply with all
applicable laws, regulations and orders of any governmental authority, the
failure to comply with which would singly or in the aggregate materially
adversely affect its business or
17
financial condition or its ability to perform its obligations under the
Financing Documents.
Section 6.4 INSPECTION RIGHTS. The Company shall at any time and from
time to time upon reasonable advance notice permit the Bank or any agents of the
Bank to examine and make copies of the records and books of account of, and
visit the properties of, the Company and discuss the affairs and finances of the
Company with any of its officers.
Section 6.5 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall
keep records and books of account in accordance with United States generally
accepted accounting principles consistently applied reflecting all financial
transactions of the Company.
Section 6.6 MAINTENANCE OF APPROVALS, FILINGS AND REGISTRATIONS. The
Company shall at all times maintain all consents, licenses, approvals and
authorizations as may be necessary under any applicable law or regulation for
the conduct of its business and for the execution, delivery and performance of
this Agreement and each of the other Financing Documents and to make this
Agreement and such other documents legal, valid, binding and enforceable
obligations of the Company.
Section 6.7 REPORTING REQUIREMENTS. The Company shall furnish to the
Bank:
(a) As soon as possible but in no event more than five (5)
Business Days after becoming aware (i) of the occurrence of any Event of Default
or any event which with the giving of notice or passing of time or both would
constitute an Event of Default, or (ii) that any of the representations and
warranties contained in Article 4 of this Agreement has ceased to be true and
correct in any material respect at any time since the last Credit Event
hereunder (or, if no Credit Event has taken place, since the execution and
delivery of this Agreement), telephonic advice of the same (confirmed in writing
within three (3) Business Days by a Company Official) setting forth the details
thereof and the action which the Company proposes to take with respect thereto;
(b) As soon as available and in any event within 60 days after the
end of each fiscal year of the Company in the case of unaudited reports and
within 120 days after the end of each fiscal year of the Company in the case of
audited reports, a copy of the annual unaudited and audited reports, as the case
may be, for such year for the Company and its consolidated subsidiaries,
including the balance sheet of the Company and its consolidated subsidiaries as
at the end of such year and the related statements of operations and cash flow
of the Company and its consolidated subsidiaries for such year, in the case of
unaudited statements certified by the Senior Vice President for Administration
of the Company as fairly representing the financial condition of the Company and
its
18
consolidated subsidiaries to the date stated, and in the case of audited
statements, certified by independent certified public accountants reasonably
acceptable to the Bank;
(c) As soon as available and in any event within 60 days after the
end of each quarter of each fiscal year of the Company, unaudited consolidated
reports for such quarter for the Company, including the balance sheet of the
Company and its consolidated subsidiaries as at the end of such quarter and the
related statements of operations and cash flow of the Company and its
consolidated subsidiaries for such quarter, certified by the Senior Vice
President for Administration of the Company as fairly representing the financial
condition of the Company and its consolidated subsidiaries to the date stated,
subject to normal year-end adjustments;
(d) Promptly after the commencement thereof, notice of any action,
suit or proceeding before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, against the
Company an adverse decision in which would materially adversely affect its
financial condition or its ability to perform its obligations under the
Financing Documents; and
(e) Such other information respecting the business, properties,
condition or operations of the Company, financial or otherwise, as the Bank may
from time to time reasonably request.
Section 6.8 INDEMNIFICATION.
(a) The Company shall pay, and will protect, indemnify and save
harmless the Bank and, in their capacity as such, its respective officers,
directors, shareholders, controlling persons, employees, agents and servants,
from and against all liabilities, losses, claims, damages, penalties, stamp or
other similar taxes, causes of action, suits, costs and expenses (including
reasonable attorneys' fees and expenses) or judgments of any nature arising from
(i) the offering and sale of the Commercial Paper Notes, or (ii) the default of
the Company in the performance of its respective agreements, rights or
obligations contained in any of the Financing Documents, or (iii) the execution
and delivery or transfer of, or the payment or failure to pay under the Letter
of Credit (collectively, the "Liabilities"); provided, however, that the Company
shall not be liable for any Liabilities arising from any untrue statement of a
material fact in the material fact relating to the Bank in the offering
memorandum used in the sale of the Commercial Paper Notes or any omission to
state therein a material fact relating to the Bank necessary in order to make
the statements therein relating to the Bank, in light of the circumstances under
which they were made, not misleading, provided that such material was approved
in writing by the Bank prior to its inclusion in such offering memorandum, nor
shall the Company be liable for any
19
Liabilities arising out of the gross negligence or willful misconduct of the
Bank or of its officers, employees, agents or servants. If any action, suit or
proceeding arising from any of the foregoing (other than an action, suit or
proceeding regarding which the Company has no obligation to indemnify the Bank)
is brought against the Bank or any other person indemnified pursuant to this
Section, the Company shall, if requested by the Bank, at its own expense, cause
such action, suit or proceeding to be defended by counsel designated by the
Company, which counsel shall be approved by the Bank. The Company shall keep the
Bank fully informed of the defense of such action, suit or proceeding. The
obligations of the Company under this Section shall survive termination of this
Agreement.
(b) Without limiting the foregoing, the Company agrees that the
Bank does not assume any of the risks of the acts or omissions of the
Depositary. The Bank shall not be liable or responsible to the Company for: (i)
any use which may be made of the Letter of Credit or for any acts or omissions
of the Depositary in connection therewith; (ii) the validity, sufficiency, or
genuineness of any documents presented to the Bank in connection with a drawing
made on the Bank under the Letter of Credit, even if such documents should in
fact prove to be in any or all respects invalid, insufficient, fraudulent, or
forged; (iii) payment by the Bank which does not comply with the terms of the
Letter of Credit, including failure to bear any reference or adequate reference
to the Letter of Credit, except to the extent that payment by the Bank under the
Letter of Credit constitutes gross negligence or willful misconduct by the Bank;
(iv) any delay or failure by the Bank or any other party to give notice, demand,
or protest of the errors, omissions, or delays in or non-delivery of any demand,
notice or message however given; or (v) any other circumstances whatsoever,
other than the gross negligence or willful misconduct of the Bank, in making or
failing to make payment under the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank will examine documents in connection with
a drawing with care so as to ascertain that on their face they appear to comply
with the terms of the Letter of Credit, without responsibility for further
investigation. The determination of whether a request for a drawing has been
made under the Letter of Credit prior to the Expiration Date or whether a
request for a drawing made under the Letter of Credit is in proper and
sufficient form shall be made by the Bank. The Company hereby waives any right
to object to any payment made under the Letter of Credit with regard to a
drawing that is in the form provided in the Letter of Credit but which varies
with respect to punctuation, capitalization, spelling or similar matters of
form.
20
Section 6.9 SECURITIES ACT. The Company shall sell or offer to sell
Commercial Paper Notes pursuant to an exemption under the Securities Act and in
compliance with other federal securities laws and with the securities laws of
any State having jurisdiction, including any applicable registration or
qualification provisions.
Section 6.10 COMPLIANCE WITH AGREEMENTS. The Company will observe and
perform each term, covenant, condition and agreement on its part to be performed
or observed under the Financing Documents.
Section 6.11 DEALER. The Company will give the Bank prompt written
notice of the resignation of the Dealer.
Section 6.12 FURTHER ASSURANCES. The Company shall from time to time,
at the cost and expense of the Company, execute and deliver to the Bank all such
documents and instruments and do all such other acts and things as may be
reasonably required to enable the Bank to exercise and enforce its rights under
this Agreement.
ARTICLE 7
NEGATIVE COVENANTS
Section 7.1 USE OF PROCEEDS. The Company will not use the proceeds from
the sale of Commercial Paper Notes for any purpose other than those described in
the Recitals hereto and the payment of principal, interest, fees, expenses and
other obligations described in this Agreement, the Depositary Agreement and the
Dealer Agreement.
Section 7.2 AMENDMENT OF DEPOSITARY AGREEMENT. The Company will not
amend the Depositary Agreement, or waive any of its rights thereunder, or fail
to perform or require the performance of any obligations thereunder without the
prior written consent of the Bank.
Section 7.3 SALES, MERGERS, ETC. The Company will not, without the
prior written consent of the Bank, liquidate or dissolve, issue or redeem any of
its capital stock or otherwise effect any change in its stock or capitalization,
or merge or consolidate with or into, or sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
any material portion of its assets (whether now owned or hereafter acquired) to,
any Person; provided, that the foregoing shall not apply to the issuance or
redemption of the Company's capital stock to or from any entity which owns more
than 50% of the Company's issued and outstanding capital stock immediately prior
to such issuance or redemption.
Section 7.4 OFFERING MEMORANDUM. The Company will not include nor
permit the inclusion by any Dealer of any material relating to the Bank in any
offering memorandum used in the
21
offering or sale of Commercial Paper Notes unless such material is approved in
writing by the Bank in advance.
Section 7.5 INVESTMENT COMPANY ACT. The Company will not take any
action so as to subject itself to regulation as an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
Section 7.6 MARGIN STOCK. The Company will not use any part of the
proceeds of any of the Commercial Paper Notes to purchase or carry, or to reduce
or retire or refinance any credit incurred to purchase or carry, any margin
stock (within the meaning of Regulations U and X of the Board of Governors of
the Federal Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
ARTICLE 8
DEFAULTS
In case of the happening of any of the following events (herein
sometimes called "Events of Default"):
(a) Any amount payable in respect of any Commercial Paper Note
shall not be paid when due and payable (unless such Commercial Paper Note is not
paid because of the wrongful failure of the Bank to honor a demand for payment
under the Letter of Credit); or
(b) Any amount due and payable by the Company to the Bank under
this Agreement shall not be paid within five (5) Business Days after such amount
is due and payable; or
(c) Any representation or warranty made by the Company herein or
in any certificate, agreement, instrument or statement contemplated by or made
or delivered pursuant to or in connection with any of the Financing Documents,
or any representation or warranty made by the Guarantor in the Guaranty, shall
prove to have been incorrect or misleading in any material respect when made or
when deemed made; or
(d) The Company shall fail to perform or observe any term,
covenant or agreement contained in Article 7 or Section 6.7(a) hereof; or
(e) The Company shall fail to perform or observe any other term,
covenant or agreement contained herein or in the Depositary Agreement, or the
Guarantor shall fail to perform or observe any term, covenant or agreement
contained in the Guaranty, and any such failure remains unremedied for thirty
(30) days after written notice thereof shall have been given to the Company or
when the Guarantor, as relevant, by the Bank; or
22
(f) Any of this Agreement, the Depositary Agreement or the
Guaranty shall at any time after its execution and delivery for any reason cease
to be in full force and effect or shall be declared to be null and void, or the
validity or enforceability thereof shall be contested by the Company or the
Guarantor, or the Company or the Guarantor shall deny that it has any or further
liability or obligation hereunder or thereunder; or
(g) Any judgment, writ, warrant of attachment or execution or
similar process shall be issued or levied in respect of the General Account,
Bank Account, or Special Account (other than a judgment, writ, warrant of
attachment or execution or similar process issued solely in connection with an
obligation owed or allegedly owed by the Bank); or
(h) The Company or the Guarantor (i) shall be adjudicated a
bankrupt or insolvent, or admit in writing its inability to pay its debts as
they mature, or make an assignment for the benefit of creditors; or (ii) shall
fail generally to pay its debts as such debts become due; or (iii) shall apply
for or consent to the appointment of any receiver, trustee, custodian or similar
officer for it or for all or any substantial part of its property, or such
receiver, trustee, custodian or similar officer shall be appointed without the
application or consent of the Company or the Guarantor and such appointment
shall continue undischarged for a period of 60 days; or (iv) shall institute (by
petition, application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any jurisdiction, or any
such proceeding shall be instituted (by petition, application or otherwise)
against the Company or the Guarantor and shall remain undismissed for a period
of 60 days; or
(i) Any judgment, writ, warrant of attachment or execution or
similar process shall be issued or levied against the Company or any property of
the Company involving a liability in excess of $5,000,000, or any judgment,
writ, warrant of attachment or execution or similar process shall be issued or
levied against the Guarantor or any property of the Guarantor involving a
liability in excess of $25,000,000, and the same shall not be released, vacated,
stayed or fully bonded or paid within 60 days after its issue or levy; or
(j) The Company shall fail to pay when due (after any applicable
period of grace) any amount due with respect to any other indebtedness for
borrowed money in an aggregate amount equal to not less than $1,000,000, or the
Guarantor shall fail to pay when due (after any applicable period of grace) any
amount due with respect to any indebtedness for borrowed money in an aggregate
amount equal to not less than $5,000,000, or any other event shall occur or any
condition shall exist in respect of any such
23
indebtedness the effect of which is to cause (or permit any holder thereof or a
trustee to cause) such indebtedness to become due prior to its stated maturity;
then, and in every such event and at any time during the continuation thereof,
the Bank may, at the same or different times, take one or more of the following
actions: (i) give notice (which may be telephonic notice confirmed in writing)
to the Company and the Depositary instructing the Company to cease issuing
Commercial Paper Notes and instructing the Depositary to cease authenticating or
delivering Certificated Notes and entering issuance instructions in DTC's
book-entry system with respect to Commercial Paper Notes, whereupon no further
Commercial Paper Notes shall be issued and the amount of the Letter of Credit
shall not be increased, (ii) declare by written notice all amounts payable by
the Company to the Bank hereunder to be forthwith due and payable, whereupon
such amounts shall become forthwith due and payable, both as to principal and
interest, (iii) direct the Depositary to make a drawing under the Letter of
Credit for deposit in the Special Account in an amount required to pay in full
all Outstanding Commercial Paper Notes entitled to the benefit of the Letter of
Credit upon maturity (and the date of the honoring of such drawing shall become
the Expiration Date) and require from the Company immediate reimbursement for
such drawing, and (iv) exercise any other rights or remedies available to the
Bank under this Agreement, the Depositary Agreement, applicable law or
otherwise; provided, however, that if any event specified in (h) above occurs,
the acceleration specified in (ii) above shall be deemed to have been made upon
the occurrence of such event without notice from the Bank. No action taken or
omitted to be taken by the Bank shall have the effect of terminating or altering
in any respect the terms of the Letter of Credit or reducing the amount payable
with respect to Commercial Paper Notes Outstanding at the time.
ARTICLE 9
MISCELLANEOUS
Section 9.1 NOTICES. Except where instructions or notices are
authorized herein to be given by telephone, all instructions, notices and other
communications to be given to either party hereto in connection herewith shall
be in writing and shall be personally delivered, or sent by certified,
registered or express mail, postage prepaid, or by telecopier, and shall be
deemed to be given for purposes of this Agreement on the day when sent or
transmitted (except if sent by certified or registered mail, they shall be
deemed given on the seventh day after the day on which mailed) to the intended
party at its address or telecopier number as set forth below its signature
hereto (or as such party may have otherwise specified to the other party in
writing). Whenever the giving of notice by telephone is permitted by this
Agreement and unless
24
otherwise provided herein, such notice shall be confirmed in writing within two
(2) Business Days.
Section 9.2 SURVIVAL AND TERMINATION OF AGREEMENT. All covenants,
agreements, representations and warranties made herein and in the certificates
and other documents delivered pursuant hereto shall survive (i) the issuance of
the Letter of Credit, (ii) the issuance of Commercial Paper Notes by the
Company, and (iii) the making of any investigation by the Bank, and shall
continue in full force and effect until all amounts payable to the Bank in
connection with this Agreement are paid or until the Bank no longer has any
liability under the Letter of Credit, whichever is latest, at which time this
Agreement shall terminate, it being expressly understood that the obligations of
the Company under Section 2.8, Section 6.8 and Section 9.3 of this Agreement
shall survive any termination of this Agreement. Whenever in this Agreement any
party is referred to, such reference shall be deemed to include the successors
and assigns of such party, but no assignment or transfer (whether by operation
of law or otherwise) of this Agreement by the Company or of any of its rights or
duties hereunder may be made without the prior written consent of the Bank, and
any such attempted assignment or transfer made without such consent shall be
null and void. All covenants by or on behalf of the Company which are contained
in this Agreement shall inure to the benefit of the successors and assigns of
the Bank.
Section 9.3 FEES AND EXPENSES OF THE BANK. Whether or not any
Commercial Paper Notes are issued, the Company will pay the reasonable
out-of-pocket costs and expenses incurred by the Bank (including the reasonable
fees and expenses of counsel to the Bank) in connection with the preparation,
execution, extension, amendment, termination or enforcement of this Agreement,
the Letter of Credit and the Depositary Agreement, or the protection of the
rights of the Bank thereunder.
Section 9.4 APPLICABLE LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York without regard
to principles of conflicts of law.
Section 9.5 MODIFICATION OF AGREEMENT. No amendment, modification or
waiver of any provision of this Agreement, or consent to any departure by the
Company therefrom, shall be effective unless the same shall be in writing and
signed by the Company and the Bank, and then such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on the Company in any case shall
entitle the Company to any other or further notice or demand in the same,
similar or other circumstances. No amendment, modification or waiver of any
provision of this Agreement shall have the effect of terminating, limiting or
altering in any respect the obligation of the Bank under its Letter
25
of Credit to honor demands for payment thereunder made in conformity with the
terms thereof.
Section 9.6 NON-WAIVER OF RIGHTS BY THE BANK. Neither any failure nor
any delay on the part of the Bank in exercising any right, power or privilege
hereunder or under the Depositary Agreement shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege.
Section 9.7 SET-OFF. Upon the occurrence of an Event of Default, the
Bank may, at any time and from time to time without notice to the Company,
set-off or exercise any banker's lien or any other right of attachment or
garnishment and apply any and all balances, credits, deposits, accounts or
moneys at any time held and other indebtedness at any time owing by the Bank to
or for the account of the Company against any and all of the obligations of the
Company to the Bank, absolute or contingent, due or to become due, whether or
not the Bank shall have made any demand under or with respect to any of such
obligations.
Section 9.8 COUNTERPARTS. This Agreement may be executed in
counterparts which, taken together, shall constitute a single document.
Section 9.9 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
26
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
HOSOKAWA MICRON INTERNATIONAL INC.
By: /s/ XXXX XXXX
-------------------------------
Name:
Title: President
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name:
Title: Vice President
Address for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Manager of Finance
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ HIROSHI JINZA
-------------------------------
Name: Hiroshi Jinza
Title: Vice President and Manager
Address for Notices:
000 Xxxxxxx Xxxxxx
Two World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Business Development Department/
Letter of Credit No. HK0750
27
EXHIBIT A TO LETTER OF CREDIT AGREEMENT
DIRECT DRAW LETTER OF CREDIT
December 16, 1991
Irrevocable Letter of Credit No. [___________]
The Bank of Tokyo Trust Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [__________________]
Gentlemen:
At the request and for the account of Hosokawa Micron International
Inc., a Delaware corporation (the "COMPANY"), we hereby establish in your favor,
as fiduciary on behalf of the owners from time to time of certain promissory
notes of the Company referred to below (the "COMMERCIAL PAPER NOTES"), this
irrevocable Letter of Credit in an aggregate amount equal to Seventy-Five
Million United States Dollars (U.S.$75,000,000) available from time to time in
amounts equal to the face amount of maturing Commercial Paper Notes identified
on the records of the book-entry system maintained by The Depository Trust
Company ("DTC") or authenticated and delivered by you to purchasers pursuant to
a certain Depositary Agreement (the "DEPOSITARY AGREEMENT") dated as of December
16, 1991 among the Company, The Mitsubishi Bank, Limited, New York Branch (the
"Bank"), and you (the "Depositary").
Demand for a drawing hereunder (i) may be made by you on or after the
maturity date of any Commercial Paper Note and prior to the expiration of this
Letter of Credit with respect to such Commercial Paper Note as herein provided
and (ii) shall be made by you prior to the maturity date of such Commercial
Paper Note upon notice from the Bank stating that an "Event of Default" has
occurred under the Letter of Credit Agreement referred to in the Depositary
Agreement (the "CREDIT AGREEMENT"), and directing you to make a drawing in
respect of all Commercial Paper Notes not yet matured. Such drawings shall be
made by delivering or transmitting by tested telex or telecopier to the Bank, at
000 Xxxxxxx Xxxxxx, Two World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Business Development Department/Letter of Credit No. _____, Telex
No.: 232328, Telecopier: (000) 000-0000, a demand executed by you in the form of
Annex 1 hereto, with the blanks appropriately completed. In the event of a
drawing made by tested telex or
telecopier, you shall immediately confirm receipt of the telex or telecopy by
telephone.
We hereby agree to honor each such demand drawn under and in full
compliance with this Letter of Credit, provided that such demand is delivered to
us not later than 5:00 P.M. New York time on the fifteenth day after the
maturity date of any such Commercial Paper Note (or if such day is not a
Business Day, on the first Business Day thereafter) (the date of delivery of
such demand being the "DRAWING DATE") by, unless other arrangements satisfactory
to you have been made for making Bank funds available to honor such drawing,
transferring in immediately available Bank funds the amount demanded to the
Special Account maintained by you pursuant to the Depositary Agreement not later
than 2:00 P.M. New York time on the maturity date of any such Commercial Paper
Note (or if such day is not a Business Day, on the first Business Day
thereafter) if such demand is received by us by 11:00 A.M. New York time on the
maturity date, or, if such demand is received by us after 11:00 A.M. New York
time on the maturity date, then not later than 2:00 P.M. New York time on the
next Business Day after the Drawing Date. Upon any payment under this Letter of
Credit, the amount of this Letter of Credit shall be reduced in an amount equal
to such payment. Upon (i) reimbursement to the Bank of such payment on the date
of such payment, (ii) the repayment of any "Unreimbursed Drawing" referred to in
the Credit Agreement arising from such payment, or (iii) the assignment to the
Bank of the proceeds from the sale of such newly issued Commercial Paper Notes
on the date of such payment, the amount by which this Letter of Credit was so
reduced shall, unless the Bank therefore notifies you to the contrary, be
automatically reinstated, in the case of (i) or (ii) above, by the amount of
such reimbursement or repayment (except that the aggregate amount of such
increases shall not exceed the amount of such payment under this Letter of
Credit) and, in the case of (iii) above, by the face amount of the Commercial
Paper Notes the proceeds of which have been assigned to the Bank; provided,
however, that, in the case of an automatic reinstatement in the amount of this
Letter of Credit following an assignment of the proceeds from the sale of
Commercial Paper Notes as described in (iii) above, any repayment or
reimbursement to the Bank in respect of a "Discount" as referred to in the
Credit Agreement on such Commercial Paper Notes shall not increase the amount of
this Letter of Credit. No amendment of this Letter of Credit shall be necessary
to effect any such reduction or increase.
All payments made by us under this Letter of Credit shall be paid out
of our general funds, and no payments under this Letter of Credit shall in any
way be contingent upon or drawn from amounts on deposit in any account
maintained by the Company with you or paid out of proceeds of Commercial Paper
Notes.
It is understood and agreed that the provisions of this Letter of
Credit are intended to provide for payment of the Commercial Paper Notes at
their maturity. Accordingly, in actions taken by
2
you as beneficiary of the Letter of Credit you shall not be acting as an agent
of the Company but exclusively as fiduciary on behalf of the holders of
Commercial Paper Notes.
This Letter of Credit shall expire with respect to each Commercial
Paper Note authenticated and delivered or identified on the records of DTC's
book-entry system pursuant to the Depositary Agreement at the earlier of (i)
payment of such Commercial Paper Note, or (ii) 5:00 P.M. New York time on the
fifteenth day after the maturity date of such Commercial Paper Note (or, if such
day is not a Business Day, the first Business Day thereafter). In no event shall
this Letter of Credit remain in effect after 5:00 P.M. New York time on December
16, 1992.
This Letter of Credit sets forth in full the terms of our undertaking
and this undertaking shall not in any way be modified, amended or amplified by
reference to any document, instrument or agreement referred to herein or to
which this Letter of Credit relates, and any such reference shall not be deemed
to incorporate by reference any such document, instrument or agreement.
As used herein, "Business Day" means a day other than a Saturday, a
Sunday or other day on which commercial banks are authorized or required to
close in New York City.
Except as otherwise expressly stated herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1983
Revision), International Chamber of Commerce, Publication No. 400 (the "UCP"),
as the same may be amended or supplemented from time to time. This Letter of
Credit shall be deemed a contract made under the laws of the State of New York
and shall, to the extent not inconsistent with the UCP, be governed and
construed in accordance with such laws without regard to principles of conflicts
of law.
This Letter of Credit may not be transferred.
Very truly yours,
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By:
------------------------
Name:
Title:
3
ANNEX 1 TO LETTER OF CREDIT
DRAWING UNDER LETTER OF CREDIT NO. [_______]
FROM
THE MITSUBISHI BANK, LIMITED, NEW YORK BRANCH
[______________, 19___]
TO: The Mitsubishi Bank, Limited
New York Branch
000 Xxxxxxx Xxxxxx
Two World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
RE: HOSOKAWA MICRON INTERNATIONAL INC. COMMERCIAL PAPER PROGRAM
FOR THE URGENT ATTENTION OF: [Business Development Department]
Gentlemen:
1. The undersigned, acting on behalf of the holder or holders of
the below-mentioned Commercial Paper Note or Commercial Paper Notes, is making
demand for payment of the amount stated in paragraph 4 hereof under the
captioned letter of credit (the "Letter of Credit") to pay the face amount of
such Commercial Paper Note or Commercial Paper Notes.
2. The face amounts and maturity dates of all such Commercial
Paper Notes are as follows:
Aggregate
Commercial Paper Face Maturity
Note No. Date Amount Date
---------------- --------- --------
3. Each such Commercial Paper Note was authenticated and delivered
by us or recorded pursuant to our issuance instructions to DTC in DTC's
book-entry system pursuant to the Depositary Agreement and has not been the
subject of any previous drawing by us under the Letter of Credit.
4. The aggregate amount required to be drawn under the Letter of
Credit to pay in full the face amount of each such Commercial Paper Note
specified in paragraph 2 hereof is [______] U.S. dollars (US$____________).
5. Upon receipt of the amount demanded in paragraph 4 hereof, we
will (i) deposit the same in the Special Account maintained by us pursuant to
the Depositary Agreement and apply the same to the payment of matured Commercial
Paper Notes, (ii) not deposit any portion of said amount in any other account
maintained by us by or for the account of the Company or use any portion of said
amount for any purpose other than payment of Commercial Paper Notes, and (iii)
when Certificated Notes (as defined in the Depositary Agreement) are presented
for payment and paid by us, transmit such matured Commercial Paper Notes to the
Company with a copy to you.
All terms used herein which are defined in the Letter of Credit have
the same meanings when used herein.
Very truly yours,
THE BANK OF TOKYO TRUST COMPANY
By:
-------------------------
Name:
Title:
2
EXHIBIT B TO LETTER OF CREDIT AGREEMENT
DEPOSITARY AGREEMENT
As of December 16, 1991
The Bank of Tokyo Trust Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Issuance of Commercial Paper Notes
for Hosokawa Micron International Inc.
Gentlemen:
We hereby request that you (the "Depositary") act as issuing and
paying agent and depositary on behalf of Hosokawa Micron International Inc. (the
"Company") in connection with the sale from time to time of the Company's
Commercial Paper Notes and as depositary of and drawing agent under the Letter
of Credit issued by The Mitsubishi Bank, Limited, New York Branch (the "Bank")
pursuant to the Letter of Credit Agreement dated as of December 16, 1991 (the
"Credit Agreement") between the Company and the Bank. In such capacities, you
shall be governed by the terms and conditions of this Depositary Agreement
(hereinafter referred to as "this Agreement") and, when The Depository Trust
Company ("DTC") book-entry system is used for the Commercial Paper Notes, by the
Letter of Representations dated November 13, 1991 from the Company to you and
DTC, the Commercial Paper Certificate Agreement between you and DTC dated June
26, 1991 (the "Certificate Agreement") and your obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System. Except as otherwise
provided in this Agreement, all capitalized terms used herein which are defined
in the Credit Agreement, as in effect on the date hereof, shall have the same
meanings when used herein.
1. ISSUANCE OF THE COMMERCIAL PAPER NOTES
The Commercial Paper Notes may be issued as bearer or registered
securities and may be represented by either (i) a global security in
substantially the form of Exhibit A attached hereto (the "Master Note")
delivered to you as custodian and agent for DTC and recorded in the book-entry
system maintained by DTC (a "Book-Entry Note") or (ii) a promissory note
substantially in the form of Exhibit B attached hereto issued in physical form
(a "Certificated Note") delivered to the purchaser thereof. Book-Entry Notes and
1
Certificated Notes are collectively referred to herein as "Commercial Paper
Notes."
At such time as the Company shall use the DTC book-entry system for the
Commercial Paper Notes, the Company will deliver to you the manually or
facsimile executed Master Note, evidencing the aggregate Face Amount of
Book-Entry Notes to be sold via DTC's book-entry system, registered in the name
of DTC's nominee and to be held by you as custodian and agent on DTC's behalf.
From time to time there will also be delivered to you executed
Certificated Notes of the Company, to be held in safekeeping by you for the
account of the Company. The Certificated Notes will be signed manually or by
facsimile on behalf of the Company by an Authorized Agent (as defined below) of
the Company. You will be furnished with incumbency certificates from the
Secretary or an Assistant Secretary of the Company with respect to any officer
of the Company whose signature is authorized to appear on the Certificated Notes
and the Master Note or otherwise is authorized to act for the Company hereunder
(the "Authorized Agents"), together with the specimen signature of each such
officer. The Master Note or any Certificated Note bearing the signature of an
Authorized Agent authorized to execute the same on the date such signature is
affixed thereto shall bind the Company after the completion thereof by you
notwithstanding that such person shall have died or shall have otherwise ceased
to hold his office or be so authorized on the date such Certificated Note is
countersigned or delivered by you.
The Certificated Notes delivered to you will be incomplete as to face
amount, date of issue and maturity. They will be numbered consecutively and may
bear other appropriate identification. When any Certificated Note is delivered
to you as the Depositary, an Authenticating Representative will acknowledge
receipt by signing and returning a receipt to the Company.
By appropriate certificates of designation, you shall specify the names
of your officers and employees who are authorized (i) to receipt for, complete,
authenticate and deliver the Certificated Notes, and to enter issuance
instructions in DTC's book-entry system with respect to the Book-Entry Notes
(the "Authenticating Representatives"), and (ii) to receive instructions or
notices from an Authorized Agent of the Company, an authorized officer of the
Bank (an "Authorized Bank Officer") or DTC (with respect to the Book-Entry
Notes) and to act for you hereunder and who are authorized to make a drawing
under the Letter of Credit "Designated Persons").
In the case of Book-Entry Notes, in accordance with instructions given
to you by any Authorized Agent of the Company (in writing or by telephone,
promptly confirmed in writing, or by other electronic transmission), from time
to time, but in no event later than 12:30 P.M. New York time on the proposed
date of
2
issuance of Commercial Paper Notes, you will enter an issuance instruction in
DTC's Book-Entry System in accordance with the procedures set forth in the
Certificate Agreement which instructions shall identify the Face Amount of
Book-Entry Notes to be sold, the date of issue and the maturity date. The
issuance instruction shall include a delivery order to debit the Dealer's
account with DTC against credit to your account with DTC. Upon confirmation of
receipt of funds, you shall transfer the amount so received to the General
Account as provided in Section 3(a) of this Agreement. You shall record on the
schedule attached to the Master Note each change in the Face Amount of
Outstanding Book-Entry Notes and the maturity dates thereof.
In the case of Certificated Notes, in accordance with instructions
given to you by any Authorized Agent of the Company (in writing or by telephone
or by other electronic transmission), from time to time, but in no event later
than 12:30 P.M. New York time on the proposed date of issuance of Commercial
Paper Notes, an Authenticating Representative shall withdraw the necessary
number of Certificated Notes from safekeeping and shall:
(i) complete each such Certificated Note as to the date of issue,
maturity date, Face Amount and, if so directed, the name of the payee thereof
and the federal taxpayer identification number of such payee;
(ii) authenticate each such Certificated Note by countersigning
the form of authentication inscribed thereon; and
(iii) deliver each such Certificated Note to or for the account of
the purchaser of such Certificated Note designated in such instructions against
payment in accordance with the provisions of this Agreement.
Instructions from the Company for authentication and de1ivery by you of
Certificated Notes shall include the following information with respect to each
Certificated Note: its date of issue, maturity date, Face Amount, discount rate
and amount of Discount from Face Amount and the party to whom delivery of such
Commercial Paper Note or for whom is to be made together with its address. If
you are instructed to register a Certificated Note other than to "bearer," the
Company shall provide to you the name, address and federal taxpayer
identification number of the registered owner of such Commercial Paper Note.
All oral instructions and approvals given to you for the completion and
delivery of Certificated Notes or the entering of issuing instructions in DTC's
book-entry system with respect to Book-Entry Notes will be confirmed by the
Company in writing or by telex or telecopier by an Authorized Agent of the
Company by the next Business Day. You shall incur no liability in acting upon
telephone instructions and approvals which a Designated Person or
3
an Authenticating Representative believes in good faith to have been given by an
Authorized Agent or an Authorized Bank Officer.
You shall not authenticate or deliver any Certificated Note or enter
issuance instructions in DTC's book-entry system with respect to any Book-Entry
Note on any day on which a Commercial Paper Note matures until after you have
provided for the deposit of funds into the Special Account in the Face Amount of
such maturing Commercial Paper Note.
No Commercial Paper Note shall mature (i) more than 270 days after the
date of issuance thereof, or (ii) less than 15 days prior to the Expiration Date
in effect at the time of issuance of such Commercial Paper Note, whichever is
earlier, or mature on a day other than a Business Day.
Each Commercial Paper Note shall be issued only on a discount basis,
shall have a face amount of not less than $100,000 and may be issued in larger
amounts in integral multiples of $1,000.
Notwithstanding any instructions from an Authorized Agent of the
Company, you shall not authenticate and deliver any Certificated Note or enter
issuance instructions in DTC's book-entry system with respect to any Book-Entry
Note if, immediately after the authentication and delivery of such Certificated
Note or giving effect to such instructions with respect to such Book-Entry Note
and the provision for the deposit of the proceeds (or a portion thereof) of such
issuance on the date of computation and any other funds as provided in Section
2(c) of this Agreement to the Bank's Account for the purpose of reimbursing the
Bank for payments made in respect of a drawing under the Letter of Credit (1)
the aggregate Face Amount of Outstanding Commercial Paper Notes would exceed the
amount of the Letter of Credit in effect after the adjustments thereto pursuant
to Section 2.3(c) of the Credit Agreement arising from any reimbursement,
repayment or assignment to the Bank of the proceeds from the sale of Commercial
Paper Notes or (2) the aggregate Face Amount of Outstanding Commercial Paper
Notes plus the amount of Outstanding Unreimbursed Drawings would Exceed the
Commitment. In the event instructions from an Authorized Agent of the Company
would or do result in the occurrence of an event described above, the Depositary
shall immediately so inform the Bank, the Company and the Dealer. In making the
above calculations, you may rely on the information last delivered to you by the
Bank and you shall have no obligation to make any further determination other
than with respect to the Face Amount of Outstanding Commercial Paper Notes and
the amount of the Letter of Credit as then in effect. Until you are notified to
the contrary in writing by the Bank, you shall be entitled to assume that the
Expiration Date is December 16, 1992.
Each issuance of Commercial Paper Notes pursuant to the provisions of
this Agreement shall be deemed (1) an irrevocable
4
assignment by the Company to the Bank of the proceeds of the sale of such
Commercial Paper Notes in an amount not to exceed the amount required to
reimburse the Bank for any payment made on the same day in respect of a drawing
under the Letter of Credit and otherwise not reimbursed by the Company, (2) an
irrevocable assignment by the Company to the Bank of any remaining proceeds of
the sale of such Commercial Paper Notes in an amount not to exceed the amount of
unpaid interest and principal with respect to Unreimbursed Drawings, and (3) in
the event that you receive notice from an Authorized Bank Officer pursuant to
this Agreement which also states that an Event of Default has occurred, an
irrevocable assignment to the Bank of the entire remaining proceeds of the sale
of such Commercial Paper Notes on the date of such notice. Proceeds of the sale
of Commercial Paper Notes shall be distributed pursuant to Sections 2 and 3 of
this Agreement; provided, however, that in the event you receive notice from an
Authorized Bank Officer pursuant to this Agreement which also states that an
Event of Default has occurred, you shall hold for the benefit of the Bank all
proceeds from the sale of Commercial Paper Notes on such date and transfer such
funds to the Bank's Account on the date of and after any payment by the Bank
under the Letter of Credit; provided, further, that the Bank shall apply such
funds from time to time to reimburse itself for any drawings under the Letter of
Credit and any Unreimbursed Drawings and interest thereon, and after all
Outstanding Commercial Paper Notes have been paid in full, any remaining balance
of such funds shall be paid by the Bank to the Company.
If you receive instructions from an Authorized Bank Officer to cease
authenticating or delivering Certificated Notes or entering issuance
instructions in DTC's book-entry system with respect to Commercial Paper Notes,
you shall immediately notify the Dealer thereof and comply with such
instructions, notwithstanding any contrary instructions received by you from any
Authorized Agent of the Company. You shall use reasonable efforts to retrieve or
recover any Certificated Notes which have left your offices prior to your having
received instructions from an Authorized Bank Officer to cease authenticating or
delivering or entering issuance instructions in DTC's book-entry system with
respect to Commercial Paper Notes but you shall have no liability for your
failure to retrieve or recover such Certificated Notes. If instructions to cease
authenticating or delivering or entering issuance instructions in DTC's
book-entry system with respect to Commercial Paper Notes are given by telephone,
they shall be confirmed within 24 hours in writing or by telex or telecopier. In
all cases hereunder, you shall incur no liability to the Company in acting upon
telephone instructions which a Designated Person or Authenticating
Representative believes in good faith to have been given by an Authorized Bank
Officer, absent gross negligence or willful misconduct. Following receipt of
such instructions, no further authentication or delivery or entering issuance
instructions in DTC's book-entry system with respect to Commercial Paper Notes
shall be made until such time as an Authorized Bank
5
Officer shall have rescinded such instructions and shall consent to the issuance
of Commercial Paper Notes by a notice in writing to you. Notwithstanding the
provisions of this paragraph, the giving of instructions pursuant to this
paragraph shall not have the effect of terminating, reducing, or altering in any
respect the terms of the Letter of Credit with respect to Commercial Paper Notes
Outstanding at the time.
Each delivery or issuance of a Certificated Note shall be subject to
the rules of the New York Clearing House Association in effect at the time of
the delivery or issuance.
In the event you are instructed by an Authorized Agent of the Company
to deliver a Certificated Note against payment, the delivery and receipt of
payment may not necessarily be completed simultaneously and you are hereby
authorized to follow the prevailing custom, which is: to deliver a Certificated
Note to or for the account of the purchaser, to receive the purchaser's receipt
for the delivery, and at a later time, but on the same day, after the purchaser
has verified the delivery against the purchase agreement, to receive payment
from the purchaser in immediately available funds by 5:00 P.M. New York time.
Should you be instructed by an Authorized Agent of the Company to
deliver any Certificated Note against payment and the delivery thereof and the
receipt of payment are not completed simultaneously, you shall have no
responsibility or liability for the credit risks involved in your delivery of
such Certificated Note to those designated in writing by an Authorized Agent of
the Company.
You shall send to the Bank and to the Company quarterly statements
specifying (i) the average Face Amount of Commercial Paper Notes Outstanding
during each quarter then ending (calculated on a daily basis) and (ii) the
aggregate Face Amount of Commercial Paper Notes Outstanding at the end of each
such quarter, such statements to cover quarterly periods corresponding to the
quarterly periods for the calculation of the Commercial Paper Support Fee set
forth in Section 2.7 of the Letter of Credit Agreement. A statement containing
the issue date, Face Amount, maturity date, discount amount, net proceeds
amount, payee (if, in the case of a Certificated Note, it is not payable to
"bearer") and discount rate of each Commercial Paper Note shall be sent by
facsimile by you to the Bank on the date of the issuance of such Commercial
Paper Note.
2. Payment of the Commercial Paper Notes.
(a) You shall make a drawing request under the Letter of Credit (i) the
maturity date of each Commercial Paper Note, not later than 11:00 A.M. New York
time, in an amount equal to the aggregate Face Amount of the Commercial Paper
Note or Commercial
6
Paper Notes maturing on such maturity date, or (ii) as soon as practicable upon
receipt of a notice from the Bank (but in no event later than one Business Day
after receipt of such notice) stating that an Event of Default has occurred and
directing you to make a drawing for deposit in the Special Account in an amount
equal to the aggregate Face Amount of all of the Outstanding Commercial Paper
Notes. You shall in each case send to the Bank a certificate drawn under and in
compliance with the Letter of Credit, and after you have sent such certificate
and provided such certificate conforms to the requirements of the Letter of
Credit, you may charge the amount of such drawing to the Bank's Account (a
"Charge") notwithstanding that the Charge may result in an overdraft pending
transfer or deposit of funds as provided in the immediately succeeding sentence
hereof. Unless other arrangements satisfactory to you have been made for making
funds available to cover a Charge (any such arrangements not to be inconsistent
with the third sentence of Section 2(b) hereof), the Bank agrees to transfer or
deposit into the Bank's Account immediately available funds in the amount of the
Charge on the date of the Charge. If no such other arrangements have been made
and you do not receive such funds on such date, you shall notify the Bank
promptly thereafter. The Bank shall be liable to you for the amount of each
Charge, which shall be deemed to be an extension of credit by you to the Bank,
and the Company shall have no liability to you therefor.
(b) You shall immediately deposit the proceeds of any drawing
(including but not limited to the proceeds of a Charge) made pursuant to Section
2(a) of this Agreement in the Special Account, and you shall pay each matured
Commercial Paper Note in immediately available funds and solely from such funds.
In the case of Book-Entry Notes, you shall pay each matured Book-Entry Note out
of funds held in the Special Account by transferring such funds to your account
with DTC. In the case of Certificated Notes, you shall pay each such matured
Certificated Note upon presentation and, should any Certificated Note not be
presented, maintain proceeds therefor in the Special Account. In no event shall
funds deposited in or credited to the Special Account be contingent upon or
drawn from amounts on deposit in any account maintained by the Company with the
Depositary or paid out of proceeds of Notes.
(c) After, but only after, you have received the proceeds a drawing
(including but not limited to the proceeds of a Charge) on a maturity date or on
a date on which the Bank requests a drawing under the Letter of Credit as
provided in Section 2(a) of this Agreement and deposited such proceeds in the
Special Account pursuant to Section 3(b) of this Agreement, you shall (1)
transfer to the Bank's Account the amount of any immediately available funds
received by you from the Company with instructions from an Authorized Agent of
the Company to make such transfer, and (2) transfer from the General Account to
the Bank's Account the proceeds of Commercial Paper Notes issued on such date to
the extent required to reimburse the Bank for drawings under the Letter of
Credit (including but not limited to any Charge) and for
7
Unreimbursed Drawings and any interest owing thereon, and (3) transfer any
remaining balance of the General Account to the Bank's Account to the extent
required to reimburse the Bank for drawings under the Letter of Credit
(including but not limited to any Charge) and for Unreimbursed Drawings and any
interest owing thereon.
(d) Each Certificated Note shall be delivered to you prior to or at the
time of payment therefor. You shall cancel any Certificated Note paid by you and
send it to the Company, with a copy thereof to the Bank.
(e) You shall hold all funds received by you from purchasers in payment
for Commercial Paper Notes as a fiduciary for the benefit of the Bank, as
contemplated by Section 3(a), until such time as all drawings under the Letter
of Credit otherwise not reimbursed by the Company and any Unreimbursed Drawings
and any interest owing thereon have been received by the Bank. You shall pay all
such funds received by you in accordance with Section 2(c) and Section 3(a)
hereof.
(f) Nothing herein shall affect the obligation of the Company to
reimburse the Bank under the Credit Agreement.
3. General Account. Special Account and Bank's Account.
(a) GENERAL ACCOUNT. You will establish and maintain a segregated
special purpose account for the benefit of the Bank designated "Mitsubishi Bank
General Account" (the "General Account"). You shall deposit in the General
Account all proceeds received from the sale of Commercial Paper Notes, and all
funds paid to you by the Company for deposit therein, and you shall apply such
funds as set forth in Section 2(c). All funds in the General Account shall be
held by you as fiduciary for the benefit of the Bank to the extent such funds
are required to reimburse the Bank as provided in Section 2(c) of this
Agreement. You shall have control of and the sole right of withdrawal from the
General Account.
On each day that any Commercial Paper Note matures, moneys in the
General Account shall be transferred to the Bank's Account in the manner and to
the extent provided in Section 2(c) of this Agreement. To the extent that any
moneys remain in the General Account on (i) any such day after the above
application or (ii) any other day on which proceeds from the sale of Commercial
Paper Notes are deposited in the General Account, then, except as contemplated
by the next sentence, such moneys shall be withdrawn and credited to the
Company's Ordinary Deposit Account with the Bank.
Upon receipt by you from an Authorized Bank Officer (which may be
telephone notice and, if so, shall be promptly confirmed by the Bank in writing)
of notice that an Event of Default, or an event that with the giving of notice
or the passing of time or both would become an Event of Default, has occurred
(including the failure of
8
the Company to reimburse the Bank for a drawing under the Letter of Credit), the
Depositary shall not draw on the General Account without the prior consent of
the Bank.
(b) SPECIAL ACCOUNT. You will establish and maintain as fiduciary on
behalf of the owners of the Commercial Paper Notes a segregated special purpose
trust account designated "Hosokawa Micron International Commercial Paper
Owners/Mitsubishi Bank special Account" (the "Special Account"). You shall
deposit in the Special Account only the proceeds of drawings under the Letter of
Credit (including proceeds of any Charge) as provided in Section 2 of this
Agreement. All funds from time to time on deposit in the special Account shall
at all times be under your exclusive control and shall be held uninvested by you
as fiduciary for the benefit of the owners of the Commercial Paper Notes. Except
as provided in Section 4, the funds in the Special Account shall be subject to
withdrawal solely by you for the purpose of effecting payment of the Commercial
Paper Notes as provided in this Agreement until the Commercial Paper Notes have
been paid in full. The Company shall not have any legal, equitable or beneficial
interest in the Special Account. Funds will not be deposited to the Special
Account except as provided herein, and funds deposited therein will not be
commingled with any other funds.
(c) BANK'S ACCOUNT. You will establish and maintain for the benefit of
the Bank a segregated special purpose account designated "Mitsubishi Bank Letter
of Credit Account" (the "Bank's Account"), the funds in which shall be subject
to withdrawal solely by the Bank except as provided in Section 2(a) of this
Agreement. Funds will not be deposited to the Bank's Account except as provided
herein, and funds deposited therein will not be commingled with any other funds.
Before the close of business on each Business Day, the Depositary shall transfer
any funds in the Bank's Account to any other account of the Bank as designated
by the Bank. The Bank agrees to keep designated an account pursuant to the
preceding sentence at all times.
4. THE LETTER OF CREDIT.
Concurrently with the execution of this Agreement, subject to the terms
and conditions of the Credit Agreement, the Bank shall deliver to you the Letter
of Credit. The Letter of Credit shall identify you, acting as fiduciary on
behalf of the owners of Commercial Paper Notes, as the beneficiary thereof and
shall be issued for the account of the Company to assure payment of the
Commercial Paper Notes. Such Letter of Credit shall be irrevocable and shall be
issued in an amount equal to the Commitment under the Credit Agreement. You
shall hold the Letter of Credit in safekeeping for the benefit of the owners of
Commercial Paper Notes and from time to time shall make drawings under the
Letter of Credit on behalf of such owners pursuant to Section 2 of this
Agreement. Such drawings shall be made in accordance with the terms of the
Letter of Credit and this Agreement.
9
The amount of the Letter of Credit shall be reduced by an amount equal
to the proceeds of any drawings thereunder (but the amount by which the Letter
of Credit is reduced by such proceeds shall be automatically reinstated as
provided in Section 2.3(C) of the Credit Agreement).
It is understood and agreed by the parties hereto that the provisions
of this Agreement relating to the Letter of Credit are intended to provide for
payment of the Commercial Paper Notes at their maturity. Accordingly, the
parties hereto specifically acknowledge that in actions taken by you as
beneficiary of the Letter of Credit you shall not be acting as an agent of the
Company but shall be acting as fiduciary on behalf of the owners of Commercial
Paper Notes.
If any Certificated Note shall not be presented to you for payment on
the maturity date thereof and sufficient collected funds are then on deposit in
the Special Account for payment thereof, you shall hold such funds until
presentation as fiduciary for the benefit of the owner of such Certificated
Note; provided, however, that if any Certificated Note shall not be presented
for payment on or before the fifteenth day after its maturity date (or, if such
day is not a Business Day, on the next succeeding Business Day), such
Certificated Note shall not be entitled to payment from funds on deposit in the
Special Account, and any funds on deposit in the Special Account which were
drawn under the Letter of Credit with respect to such Certificated Note shall be
paid to the Bank. Notwithstanding the foregoing, the Company shall remain liable
to the owners of Commercial Paper Notes on account of all Commercial Paper Notes
in accordance with their terms. The Bank shall remit its own funds to the
Company in an amount equal to the amount received from the Special Account, less
the amount of any Unreimbursed Drawings under the Letter of Credit, any interest
thereon and any other amounts then due and owing to the Bank under the Credit
Agreement.
Promptly after the Expiration Date, you shall cancel and return the
Letter of Credit to the Bank.
If, two years after the termination of this Agreement, there remain any
funds in any of the accounts specified in Section 3 hereof, you may transfer any
such remaining funds to any other account of the Bank as designated by the Bank,
whereupon the Bank shall remit such funds to the Company except to the extent
there remains any Unreimbursed Drawing or interest thereon or other amounts
owing to the Bank under the Financing Documents.
5. EXPENSES; INDEMNIFICATION; LIMITATION OF LIABILITY.
The Company shall, on demand, pay or reimburse the Depositary for (a)
all fees payable in connection with, arising out
10
of, or in any way related to performance of this Agreement (such fees to be as
mutually agreed upon between the Company and you in a separate written
agreement), and (b) all of the Depositary's reasonable out-of-pocket costs and
expenses incurred (including reasonable fees and expenses of counsel), and all
payments made, and indemnify and hold the Depositary harmless from and against
all losses suffered, by the Depositary in connection with, arising out of, or in
any way related to (i) the negotiation, preparation, execution and delivery of
(A) this Agreement and the Commercial Paper Notes and (B) whether or not
executed, any waiver, amendment or consent under or to this Agreement and the
Commercial Paper Notes, (ii) protecting, preserving, exercising or enforcing any
of the rights of the Depositary under or related to this Agreement or the
Commercial Paper Notes, (iii) any governmental investigation arising out of,
related to, or in any way connected with, this Agreement, the Commercial Paper
Notes or the relationship established hereunder, or (iv) any action taken or
omitted in good faith within the scope of this Agreement upon telephone
instructions, if authorized herein, received from or believed by you in good
faith to have been given by an Authorized Agent of the Company, or an Authorized
Bank Officer, except that the foregoing indemnity shall not be applicable to any
loss suffered by the Depositary to the extent such loss is the result of acts or
omissions on the part of the Depositary constituting (x) gross negligence, (y)
willful misconduct, or (z) knowing violations of law. The Bank shall have no
responsibility or liability for the payment of any such fees, costs or expenses.
The obligations of the Company hereunder shall survive your resignation or
removal or the termination of this Agreement and the payment in full of all
Commercial Paper Notes.
6. NOTICES.
Except where instructions or notices are authorized herein to be given
by telephone, all instructions, notices and other communications to be given to
any party hereto or to DTC in connection herewith shall be in writing and shall
be personally delivered, or sent by certified, registered or express mail,
postage prepaid, or by telecopier, and shall be deemed to be given for purposes
of this Agreement on the day when sent or transmitted (except, if given by
certified or registered mail, they shall be deemed given on the seventh day
after the day on which mailed) to the intended party at its address or telex or
telecopier number set forth below its signature hereto (or as such party may
have otherwise specified to the other parties in writing) and, in the case of
DTC, to DTC at its address or telex or telecopier number that is specified in
the Certificate Agreement. Whenever the giving of notice by telephone is
permitted by this Agreement and unless otherwise provided herein, such notice
shall be confirmed in writing within two (2) Business Days.
11
7. MISCELLANEOUS PROVISIONS.
The Company hereby warrants and represents to you, which shall be a
continuing warranty and representation, that this Agreement is, and all
Commercial Paper Notes delivered to you as Depositary pursuant to this Agreement
will be, duly authorized, executed and delivered by the Company, and your
appointment as Depositary and issuing and paying agent for the Commercial Paper
Notes and as drawing agent and depositary for the Letter of Credit under this
Agreement is duly authorized in accordance with and by a resolution duly adopted
by the Board of Directors of the Company and in full force and effect.
It is understood that you may resign or the Company may terminate this
Agreement and the authority granted herein at any time upon at least sixty (60)
days' written notice of resignation or termination, as the case may be, such
notice to be given to the Bank, the Dealer and DTC and to you or the Company (as
relevant). In such event, (i) you shall return to the Company all undelivered
Certificated Notes held by you at the time of such notice; (ii) prior to the
termination of or effectiveness of your resignation from your obligations
hereunder, the Company shall have appointed a successor Depositary after
obtaining the written approval of the Bank, and such successor, upon accepting
such appointment hereunder, shall establish a new General Account, Special
Account and Bank's Account for purposes of this Agreement and the Credit
Agreement; and (iii) you shall transfer to the successor Depositary for deposit
in the new General Account, the Special Account and the Bank's Account
established by the successor Depositary all funds, if any, on deposit in, or
otherwise to the credit of, the General Account, the Special Account and the
Bank's Account maintained by you, in excess of that amount necessary to pay in
full the Face Amount of Commercial Paper Notes Outstanding. Any successor
Depositary shall have a participant relationship with DTC at the time that the
successor Depositary is appointed if Commercial Paper Notes are then being
issued through the DTC Book-Entry System. All Commercial Paper Notes validly
authenticated and delivered by you as Depositary pursuant hereto prior to the
termination of this Agreement, and the authority granted to and obligations
assumed by you hereunder with respect to the payment of such Commercial Paper
Notes, shall be valid obligations notwithstanding such termination, and this
Agreement shall remain in full force and effect with respect to such Commercial
Paper Notes until the same have been paid in full.
This Agreement may be supplemented, modified or amended if such
supplement, modification or amendment is in writing and signed by each of the
parties hereto. No supplement, modification or amendment shall adversely affect
the rights of owners of Commercial Paper Notes outstanding at that time.
In acting with respect to the Letter of Credit, and generally in acting
under this Agreement, you will be required by
12
the Company and the Bank to perform only such duties as are specifically set
forth in (i) this Agreement, (ii) the Letter of Credit itself, and (iii)
applicable law as in effect from time to time. You shall not be liable to the
Company or the Bank except for gross negligence or willful misconduct in the
performance of said duties and obligations. You undertake to perform such duties
and only such duties as are specifically set forth in this Agreement and you
shall have no fiduciary duties to the owners of Commercial Paper Notes other
than as specifically set forth in this Agreement. No implied covenants or
obligations shall be read into this Agreement against you.
Except as otherwise provided in Sections 3 and 4 of this Agreement, you
may execute any of the powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, provided that your liabilities or
obligations hereunder shall not be reduced by reason thereof.
You, in your individual or any other capacity, may become the owner or
pledgee of Commercial Paper Notes or a participant in the credit provided under
the Credit Agreement with the same rights you would have if you were not acting
hereunder.
Until used or applied as herein provided, all monies received by you
hereunder shall be held for the purposes for which they were received, but need
not be segregated from other funds except to the extent provided herein or
required by law. You shall be under no liability for interest on any monies
received by you hereunder except such as you may agree with the Company to pay
thereon.
Except as otherwise expressly provided herein, whenever, in the
administration of this Agreement, you shall deem it necessary that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate of an Authorized Agent of the Company or an Authorized Bank
Officer, and such certificate shall be full warranty to you for any action
reasonably taken, suffered or omitted under the provisions of this Agreement
upon the faith thereof. You may consult with and rely upon the advice of legal
counsel.
Any corporation into which you may be merged or with which you may be
consolidated, or any corporation resulting from any merger or consolidation to
which you shall be a party, or any corporation succeeding to your business,
shall succeed to all your rights, obligations and immunities hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
13
This Agreement shall in all respects be governed by and construed in
accordance with the laws of New York without regard to principles of conflicts
of law.
You hereby covenant and agree that prior to the date which is
ninety-one (91) days after the payment in full of the latest maturing Commercial
Paper Note, you will not, in your capacity as Depositary hereunder, institute
against, or join any person in instituting against, the Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law.
Subject to the next succeeding sentence, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No party hereto may assign any of its rights or
obligations hereunder except with the prior written consent of all parties
hereto (including the Bank).
Any provision of this Agreement which is prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions of this
Agreement or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
This Agreement may be executed in any number of counterparts and by
different parties hereto and separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
14
If the foregoing correctly and fully sets forth our agreement with
respect to the matters to which it pertains, please sign and return to us the
enclosed copies of this letter.
Very truly yours,
HOSOKAWA MICRON INTERNATIONAL INC.
By:
---------------------------------------
Name: President
Title:
By:
---------------------------------------
Name:
Title: Vice President
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
-----------------------------
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
15
Accepted and approved as of
December 16, 1991
THE BANK OF TOKYO TRUST COMPANY
By:
---------------------------------------
Name:
Title:
Address:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
---------------------------------
Telephone: 000-000-0000
Telecopier: 000-000-0000
The foregoing Agreement is hereby accepted by the undersigned.
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By:
---------------------------------------
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx
Two World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:_____________________
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
16
EXHIBIT A TO THE DEPOSITARY AGREEMENT
COMMERCIAL PAPER MASTER NOTE
HOSOKAWA MICRON INTERNATIONAL INC.
December 16, 1991
HOSOKAWA MICRON INTERNATIONAL INC. (the "Company"), a corporation organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to Cede & Co. or registered assigns on the maturity date of each
obligation identified on the records of the Company, which records are reflected
on a schedule attached hereto and made a part hereof and are maintained by The
Bank of Tokyo Trust Company (the "Depositary"), the principal amount for each
such obligation. Payment shall be made by wire transfer to the registered owner
from the Depositary without the necessity of presentation and surrender of this
Master Note.
This Master Note has been issued in accordance with a Letter of Credit Agreement
dated as of December 16, 1991, as from time to time amended, between the Company
and The Mitsubishi Bank, Limited, New York Branch (the "Bank"), and is entitled
to the benefit of an Irrevocable Letter of Credit (the "Letter of Credit")
issued by the Bank pursuant to said Letter of Credit Agreement, provided that
payment is requested from the Depositary not later than 5:00 p.m., New York
time, on the fifteenth day after the maturity date of each obligation (or, if
such fifteenth day is not a Business day, on the next succeeding Business Day).
As used herein, the term "Business Day" means any day other than a Saturday or
Sunday or a day on which banks are authorized or required by law to close in New
York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS
OF THIS MASTER NOTE SET FORTH ON THE NEXT PAGE HEREOF.
This Master Note is a valid and binding obligation of the Company.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
--------------------------------------
(Authorized Officer's Signature)
At the request of the registered owner, the Company shall promptly
issue and deliver one or more separate note certificates evidencing each
obligation evidenced by this Master Note. As of the date any such note
certificate or certificates are issued, the obligations which are evidenced
thereby shall no longer be evidenced by this Master Note.
1
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(Name, Address and Taxpayer Identification Number of Assignee)
the Master Note and all rights hereunder, hereby irrevocably constituting and
appointing _____________________ Attorney to transfer said Master Note on the
books of the Company with full power of substitution in the premises.
Dated: ----------------------------------------
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature of this assignment
must correspond with the names as
written upon the face of this Master
Note, in every particular, without
alteration or enlargement or any change
whatsoever.
--------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
2
Schedule to
Commercial Paper Master Note
dated December 16, 1991 of Hosokawa Micron International Inc.
Date of Face Amount of CUSIP Maturity Date Amount Notation
Issue Discount Note Number Date Paid Paid Made By
----- ------------- ------ ---- ---- ---- -------
3
EXHIBIT B TO THE DEPOSITARY AGREEMENT
PROMISSORY NOTE
HOSOKAWA MICRON INTERNATIONAL INC.
_____________, 00__ Xxx Xxxx, Xxx Xxxx
Xx ________________, 19__, for value received, HOSOKAWA MICRON
INTERNATIONAL INC. (the "Company") promises to pay to the order of BEARER
the sum of
dollars
payable at the office of The Bank of Tokyo Trust Company, Corporate Trust
Department, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Depositary"). Payment
in respect of this Note shall be made by 5:00 P.M. New York time on any Business
Day, provided that this Note is presented for payment not later than 2:00 P.M.
New York time on such Business Day. If this Note is presented for payment later
than 2:00 P.M. New York time on any Business Day, payment in respect of this
Note shall be made on the next succeeding Business Day.
This Note is entitled to the benefit of an irrevocable letter of credit
(the "Letter of Credit") issued to the Depositary for the benefit of the owner
hereof by The Mitsubishi Bank, Limited, New York Branch (the "Bank"), pursuant
to a certain Letter of Credit Agreement dated as of December 16, 1991 (the
"Credit Agreement") between the Company and the Bank, provided that the
Depositary makes a demand for payment under the Letter of Credit, and that this
Note is presented to the Depositary for payment, not later than 5:00 P.M. New
York time on the fifteenth day after the above-stated maturity date (or, if such
day is not a Business Day, not later than 5:00 P.M. New York time on the next
succeeding Business Day). As used herein, "Business Day" means a day other than
a Saturday or a Sunday or other day on which commercial banks are authorized or
required to close in New York City.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York.
Reference is made to the Credit Agreement and related documents which, as
from time to time amended, are on file with the Depositary at its aforesaid
office for a statement of the terms upon which the Letter of Credit has been
issued and the procedure
1
and conditions governing drawings and the liability of the Bank thereunder.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
-------------------------------
Name:
Title:
COUNTERSIGNED FOR AUTHENTICATION ONLY BY
THE BANK OF TOKYO TRUST COMPANY, AS DEPOSITARY
By:
-------------------------------------
Name:
Title:
THIS NOTE IS NOT VALID FOR ANY PURPOSE UNLESS COUNTERSIGNED BY THE BANK OF TOKYO
TRUST COMPANY, AS DEPOSITARY.
2
EXHIBIT C TO LETTER OF CREDIT AGREEMENT
CERTIFICATE OF
HOSOKAWA MICRON INTERNATIONAL INC.
The Mitsubishi Bank, Limited
New York Branch
000 Xxxxxxx Xxxxxx
Two World Financial Center
Xxx Xxxx, XX 00000
Dear Sir or Madam:
Hosokawa Micron International Inc. (the "Company") does hereby certify
that:
1. as of the date hereof no event has occurred which constitutes, or which
with the giving of notice or the passing of time, or both, would
constitute an Event of Default under Article 8 of the Letter of Credit
Agreement (the "Letter of Credit Agreement") dated as of December __,
1991 between the Company and The Mitsubishi Bank, Limited, New York
Branch (the "Bank");
2. all the representations and warranties of the Company contained in
Article 4 of the Letter of Credit Agreement and any other document
executed and delivered on or before the date hereof in connection
therewith were true and correct on the date that they were made and
remain true and correct as of the date hereof; and
3. all of the covenants of the Company set forth in the Letter of Credit
Agreement have been fully met and performed as of the date hereof.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
-------------------------------
Name:
Title: Senior Vice President
for Administration
Execution Copy
GUARANTY
of
HOSOKAWA MICRON CORPORATION
THIS GUARANTY is made as of the 16th day of December, 1991 by HOSOKAWA
MICRON CORPORATION (the "Guarantor"), a corporation organized and existing under
the laws of Japan for the benefit of THE MITSUBISHI BANK, LIMITED, NEW YORK
BRANCH (the "Bank").
WHEREAS, pursuant to the Letter of Credit Agreement (the "Letter of
Credit Agreement") of even date herewith between the Bank and Hosokawa Micron
International Inc. (the "Company"), a subsidiary of the Guarantor, the Bank has
agreed to issue in favor of The Bank of Tokyo Trust Company, as fiduciary on
behalf of the owners of certain promissory notes to be issued by the Company, a
Letter of Credit (the "Letter of Credit") in an aggregate principal amount equal
to Seventy-Five Million United States Dollars (US$75,000,000); and
WHEREAS, it is a condition precedent to the Bank's commitment to issue
the Letter of Credit that the Bank shall have received from the Guarantor an
irrevocable and continuing guaranty (the "Guaranty") in favor of the Bank
securing the due and punctual payment to the Bank of all amounts which may now
or hereafter from time to time be owing by the Company to the Bank under the
Letter of Credit Agreement.
NOW THEREFORE, the Guarantor hereby agrees as follows:
1. GUARANTY.
To secure the due payment to the Bank of all amounts which may now or
hereafter from time to time be owing by the Company to the Bank and to induce
the Bank from time to time, in its discretion, to extend or continue credit to
the Company under the Letter of Credit Agreement, the Guarantor hereby
irrevocably guarantees absolutely and unconditionally, as direct obligor and not
merely as a surety, the full and timely payment when due (whether at stated
maturity, by acceleration or otherwise) of any and all liabilities of the
Company to the Bank arising under the Letter of Credit Agreement and the Letter
of Credit (all such liabilities and obligations hereinafter referred to as the
"Obligations"). The Guarantor agrees that, with or without notice or demand, the
Guarantor shall reimburse the Bank, to the extent that such reimbursement is not
made by the Company, for all expenses (including legal fees) incurred by the
Bank in connection
with any of the Obligations of the Company or the collection thereof.
2. SCOPE OF GUARANTY.
This Guaranty is a guaranty of payment and not merely of collection. It
is an irrevocable and continuing obligation of the Guarantor and is in addition
to and not in substitution for any other guaranties or other security now or
hereafter held by the Bank. No invalidity, irregularity or unenforceability of
all or any part of the Obligations hereby guaranteed shall affect, impair or be
a defense to this Guaranty. The Guarantor hereby consents that from time to
time, before or after any default by the Company or any notice of termination
hereof, with or without further notice to or assent from the Guarantor, any
security at any time held by or available to the Bank for any Obligation of the
Company, or any security at any time held by or available to the Bank for any
obligation of any person secondarily or otherwise liable for any of the
Obligations of the Company, may be exchanged, surrendered or released and any
Obligation of the Company, or any of such other person, may be changed, altered,
renewed, extended, continued, surrendered, compromised, waived or released in
whole or in part, or any default with respect thereto waived, and the Bank may
fail to set off and may release, in whole or in part, any balance of any deposit
account or credit on its books in favor of the Company, or of any such other
person, and may extend further credit in any manner whatsoever to the Company,
and generally deal with the Company or any such security or other person as the
Bank may see fit; and the Guarantor shall remain bound under this Guaranty
notwithstanding any such exchange, surrender, release, change, alteration,
renewal, extension, continuance, compromise, waiver, inaction, extension of
further credit or dealing.
3. PAYMENT.
Upon notice by the Bank to the Guarantor stating that a sum is due to
the Bank under this Guaranty, the Guarantor shall immediately pay such sum to
the account of the Bank at its office designated above or such other location or
account as the Bank may by notice specify. Such notice as between the Bank and
the Guarantor shall, except for manifest errors, constitute conclusive evidence
of the liability of the Guarantor hereunder. All sums owing to the Bank
hereunder shall be paid in United States dollars in immediately available funds
free and clear of and without deduction for any and all present and future
taxes, levies, imposts, deductions, charges, withholdinqs, and all liabilities
with respect thereto.
2
4. SUBORDINATION.
The Guarantor hereby waives all rights of subrogation and reimbursement
and all rights to enforce any remedy and to participate in any security which
the Bank may now or hereafter have against the Company. The Guarantor hereby
subordinates its right to receive payment of any amounts which the Company now
or hereafter owes the Guarantor to the Bank's right to receive payment in full
of all Obligations of the Company.
5. WAIVER.
(a) The Guarantor hereby specifically waives (i) notice of acceptance
of this Guaranty, and also presentment, demand, protest and notice of dishonor
of any and all of the Obligations, and promptness in commencing suit against any
party thereto or liable thereon, and in giving any notice to or of making any
claim or demand hereunder upon the Guarantor; (ii) any rights, whether granted
by statute or otherwise, to require the Bank to institute suit against the
Company or to exhaust the Bank's rights and remedies against the Company prior
to asserting its rights against the Guarantor hereunder, the Guarantor being
bound to the full and complete payment and performance of all of the
Obligations, whether now existing or hereafter accruing, as fully and completely
as if the Obligations were directly owing to the Bank by the Guarantor; and
(iii) any defense arising by reason of any lack of validity of the Obligations
or any agreement or instrument relating thereto, by reason of any disability of
the Company or any other defense of the Company, by reason of the cessation from
any cause whatsoever of the liability of the Company and by reason of any
defense that the Bank was to obtain other or further indemnity, guaranty or
security for the Obligations.
(b) The failure or delay of the Bank to require performance by the
Guarantor of any provision of this Guaranty or any document, instrument or
agreement executed with this Guaranty, or the failure of the Bank to exercise
any right, power or privilege shall not affect its right to require performance
of such provision unless and until such performance has been waived by the Bank
in writing. Each and every right granted to the Bank hereunder or any other
document, instrument or agreement delivered hereunder or in connection herewith,
or allowed at law or in equity, shall be cumulative and may be exercised from
time to time.
6. REPRESENTATIONS AND WARRANTIES.
The Guarantor represents and warrants to the Bank that:
(a) The Guarantor has been duly incorporated and is validly existing
and in good standing under the laws of Japan, and the Guarantor has all
requisite power and authority to conduct its business, to own its properties and
to execute, deliver and perform its obligations under this Guaranty.
3
(b) The execution, delivery and performance by the Guarantor of this
Guaranty have been duly authorized by all necessary corporate action, and does
not and will not violate any provision of any law or regulation, or contractual
or corporate restriction binding on the Guarantor.
(c) This Guaranty constitutes the legal valid and binding obligation of
the Guarantor, enforceable in accordance with its terms.
(d) Since the date of the financial statements of the Guarantor most
recently delivered to the Bank there has been no material adverse change in the
financial condition of the Guarantor which would materially adversely affect the
ability of the Guarantor to perform its obligations under this Guaranty.
7. COVENANTS.
In addition to the other undertakings herein, the Guarantor covenants
to the Bank that from the date of this Guaranty until payment in full of all
sums guaranteed by the Guarantor hereunder:
(a) The Guarantor shall maintain its corporate existence in good
standing in compliance with all applicable laws, shall maintain the present
character of its business and shall conduct its business and operations in
accordance with all applicable laws and other governmental directives,
guidelines and policies applicable to it, and shall pay all of its indebtedness
and perform all of its contractual obligations promptly.
(b) The Guarantor shall within 120 days after the end of its fiscal
year deliver to the Bank a copy of the Guarantor's annual financial statements
(including, at least, its audited balance sheet and statement of income)
certified by independent public accountants acceptable to the Bank, and shall
furnish the Bank within 60 days after the close of each fiscal quarter
comparable quarterly financial statements certified by its principal financial
officer, and such other information concerning the condition and operations of
the Guarantor, financial or otherwise, as the Bank may from time to time
reasonably request.
8. SET-OFF.
In addition to any rights now or hereafter granted under applicable
law, during the continuance of any event of default of any of the Obligations,
the Bank is hereby authorized at any time and form time to time, without notice
to the Company, or to any other person or entity (any such notice being hereby
expressly waived) to set off and to appropriate and apply any and all deposits
(general or special, time or demand, matured or unmatured, in whatever currency)
and any other indebtedness at any time held by or owing to the Bank against and
on account of the Obligations
4
irrespective of whether or not the Bank shall have made any demand hereunder.
9. AMENDMENTS.
This Guaranty may be amended only by an instrument in writing which is
signed by the Bank and the Guarantor.
10. GOVERNING LAW.
This Guaranty shall be governed by and interpreted in accordance with
the laws of the State of New York.
11. SUBMISSION TO JURISDICTION.
(a) The Guarantor hereby irrevocably consents that any legal action or
proceedings against the Guarantor or any of its property arising out of or in
any way connected with this Guaranty may be brought in any court of the State of
New York or any Federal Court of the United States of America located in the
City and State of New York, United States of America, or both, as the Bank may
elect, and by execution and delivery of this Guaranty, the Guarantor hereby
submits to and accepts with regard to any such action or proceeding, for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of such courts. The Guarantor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to the Guarantor at its address set forth in the first paragraph of
this Guaranty. The foregoing, however, shall not limit the right of the Bank to
serve process in any other manner permitted by law or to bringing any legal
action or proceeding or to obtain execution of judgment in any jurisdiction.
(b) The Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Guaranty in the City and State of
New York and hereby further irrevocably waives any right it may now or hereafter
have to a trial by jury and hereby further irrevocably waives any claim that the
City and State of New York is not a convenient forum for any such suit, action
or proceeding.
12. NOTICES.
Any notice hereunder shall be in writing and shall be personally
delivered or transmitted by postage prepaid registered or certified mail, return
receipt requested, addressed to the party receiving such notice at its address
set forth on the first page hereof or such other address as a party may by
notice specify to the other party. Notices shall be deemed effective on the date
of
5
delivery if personally delivered or on the fifth day after mailing if delivered
by mail.
13. SEVERABILITY.
If any term contained in this Guaranty is invalid, illegal or
unenforceable in any respect under any applicable law, the remaining terms
hereof shall not in any way be affected or impaired.
14. BINDING OBLIGATION; ASSIGNMENT.
This Guaranty shall be binding upon the Guarantor, and the Guarantor's
successors and assigns; provided, that the Guarantor shall not assign or
transfer any of its obligations hereunder without the prior written consent of
the Bank. The Bank may at any time assign or transfer its interest herein and
the transferee shall thereupon become vested with all of the rights and powers
given to the Bank herein.
Executed on the date first written above.
HOSOKAWA MICRON CORPORATION
By: /s/ [Illegible]
---------------------------
Name:
Title:
6
November 1, 1996
The Bank of Tokyo-Mitsubishi, Ltd.
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: HOSOKAWA MICRON INTERNATIONAL INC. COMMERCIAL PAPER PROGRAM
Gentlemen:
We refer to our guaranty, dated December 16, 1991, in your favor (the
"Guaranty") which guarantees the payment when due of all amounts payable by
Hosokawa Micron International Inc., a Delaware corporation (the "Company"), to
you under the Letter of Credit Agreement, dated as of December 16, 1991, between
the Company and you (as amended, the "Credit Agreement").
We hereby acknowledge that the Letter of Credit issued by you pursuant
to the Credit Agreement has been extended and may be further extended from time
to time. We hereby agree that the Guaranty will remain in full force and effect,
enforceable against us as a guaranty of the payment of all amounts payable by
the Company to you under the Credit Agreement, as the same may be amended from
time to time (with or without our consent).
Very truly yours,
HOSOKAWA MICRON CORPORATION,
a Japanese corporation
By: /s/ X. Xxxxxxx
---------------------------
Name: X. Xxxxxxx
Title: Managing Director
================================================================================
ELEVENTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
between
HOSOKAWA MICRON INTERNATIONAL INC.
as Account Party
and
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH
as Issuing Bank
Dated as of November 14, 1997
================================================================================
Relating to Hosokawa Micron International Inc.
US$ 75,000,000 Commercial Paper Program
================================================================================
ELEVENTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
ELEVENTH AMENDMENT TO LETTER OF CREDIT AGREEMENT (this "AMENDMENT"),
dated as of November 14, 1997, between Hosokawa Micron International Inc., a
Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "COMPANY"), and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch,
a bank licensed under the laws of the State of New York, having an office at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "BANK").
The Company and the Bank entered into a certain Letter of Credit
Agreement, dated as of December 16, 1991 (the "CREDIT AGREEMENT"), pursuant to
which the Bank issued its Irrevocable Letter of Credit No. HK0750 (the "LETTER
OF CREDIT"), a direct-draw letter of credit which provides for the repayment of
the Company's Commercial Paper Notes (as such term and all other capitalized
terms used but not defined herein are defined in the Credit Agreement).
Subsequently, the Company and the Bank entered into a certain First Amendment to
Letter of Credit Agreement, dated as of November 25, 1992, a certain Second
Amendment to Letter of Credit Agreement, dated as of December 16, 1992, a
certain Third Amendment to Letter of Credit Agreement, dated as of November 17,
1993, a certain Fourth Amendment to Letter of Credit Agreement, dated as of
December 16, 1993, a certain Fifth Amendment to letter of Credit Agreement,
dated as of November 1, 1994, a certain Sixth Amendment to Letter of Credit
Agreement dated as of December 16, 1994, a certain Seventh Amendment to Letter
of Credit Agreement dated as of November 1, 1995, a certain Eighth Amendment to
Letter of Credit Agreement dated as of December 15, 1995, a certain Ninth
Amendment to Letter of Credit Agreement, dated as of November 1, 1996 and a
certain Tenth Amendment to Letter of Credit Agreement, dated as of December 16,
1996 (the "TENTH AMENDMENT"; all of the foregoing amendments are hereinafter
referred to each as a "PRIOR AMENDMENT" and collectively as the "PRIOR
AMENDMENTS"), pursuant to which the Expiration Date provided for in the Credit
Agreement was changed to December 16, 1997. (The Credit Agreement, as amended by
the Prior Amendments, is hereinafter referred to as the "AMENDED CREDIT
AGREEMENT"). In accordance with the terms of the Amended Credit Agreement,
unless the Expiration Date provided therein is changed, the Letter of Credit
will expire on December 16, 1997.
The Company has requested that the Bank extend the Letter of Credit and
the Bank has agreed to do so by issuing an eleventh amendment to the Letter of
Credit (the "ELEVENTH LETTER OF CREDIT AMENDMENT") which extends the Expiration
Date until December 16, 1998.
Accordingly, the Company and the Bank, intending to be legally bound
hereby, hereby agree as follows:
1. EXPIRATION DATE RE-DEFINED. The first sentence of Section 3.1 of the
Amended Credit Agreement is hereby amended and restated in its entirety to read
as follows:
As used herein, "Expiration Date" shall mean December
16, 1998, which date may be extended by the written
agreement of the parties hereto as set forth below or
accelerated pursuant to Article 8.
2. REPRESENTATIONS AND WARRANTIES. As of the date of this Amendment,
the Company hereby represents and warrants to the Bank as follows:
2.1 CORPORATE AUTHORITY VIOLATION OF LAWS, BREACH
OF AGREEMENTS. The execution, delivery and performance
by the Company of this Amendment have been duly
authorized by all necessary corporate action and do not
and will not (i) violate any provision of any law, rule,
regulation (including, without limitation, the rules and
regulations of the SEC), order, writ, judgment,
injunction, decree, determination, award or the charter
or by-laws of the Company, (ii) result in a breach of or
constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or
instrument to which the Company is a party or by which
the Company or any of its properties may be bound or
affected, or (iii) result in or require the creation or
imposition of a mortgage, deed of trust, assignment,
pledge, lien, security interest or other charge or
encumbrance of any nature upon or with respect to any of
the properties of the Company. The Company is not in
violation of or in default under any such law,
regulation, order, writ, judgment, injunction, decree,
determination or award, or any such indenture,
agreement, lease or instrument, which violation or
default would have a materially adverse effect on its
financial condition or its ability to perform its
obligations under the Financing Documents.
2.2 GOVERNMENT APPROVALS. No authorization,
consent, approval, license, exemption of or filing or
registration with any court or governmental department,
commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary for the
valid execution, delivery or performance by the Company
of this Amendment or for the issuance or sale of
Commercial Paper Notes by the Company subsequent to the
date hereof.
2
2.3 ACCURACY OF INFORMATION. All information
supplied by the Company to the Bank in connection with
the transactions contemplated by this Amendment is true,
complete and accurate in all material respects and does
not omit to state any material fact necessary in order
to make the statements contained therein, in light of
the circumstances under which they were made, not
misleading.
2.4 FINANCIAL STATEMENTS. The financial statements
of the Company for the year ended September 30, 1997,
which have been delivered to the Bank present fairly and
accurately, in accordance with generally accepted
accounting principles consistently applied, the
financial condition of the Company as of the dates
thereof and the results of operations and cash flow for
the periods then ended. As of the date hereof, there
has been no change in the financial condition of the
Company which materially adversely affects the financial
condition of the Company or the ability of the Company
to perform its obligations under the Financing
Documents.
2.5 ORIGINAL REPRESENTATIONS AND WARRANTIES. After
giving effect to the provisions of this Amendment, the
representations and warranties of the Company set forth
in Article 4 of the Credit Agreement and in each of the
Prior Amendments remain true and correct as of the date
hereof as if such representations and warranties had
been made by the Company as of the date hereof.
2.6 PERFORMANCE OF COVENANTS; NO EVENT OF DEFAULT.
As of the date hereof, all of the covenants of the
Company set forth in the Amended Credit Agreement have
been fully met and performed, and no Event of Default
has occurred.
3. ISSUANCE OF COMMERCIAL PAPER. The Company may issue Commercial Paper
Notes in accordance with the terms of the Financial Documents.
4. ADDITIONAL DOCUMENTS. Simultaneously with the execution of this
Amendment, the Company shall deliver to the Bank the following certificates and
supporting documents:
4.1 a fully executed letter to the Depositary
substantially in the form of EXHIBIT A attached
hereto;
3
4.2 a good standing certificate for the Company from
the Secretary of State of the State of Delaware
dated as of a recent date;
4.3 evidence that the "Prime 1" rating received from
Xxxxx'x Investors Service, Inc. and the "A-l+"
rating received from Standard & Poor's Ratings
Group with respect to the Commercial Paper Notes
will continue; and
4.4 such other documents as the Bank or counsel for the
Bank may reasonably request.
5. MISCELLANEOUS.
5.1 BANK'S COSTS. The Company shall reimburse the Bank for all
reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by the Bank in connection with the preparation of this
Amendment and the documents related hereto and the closing of the transactions
contemplated hereby.
5.2 APPLICABLE LAW. This Amendment shall be construed in accordance
with and governed by the laws of the State of New York without regard to
principles of conflicts of law.
5.3 COUNTERPARTS. This Amendment may be executed in counterparts which,
taken together, shall constitute a single document.
5.4 SEVERABILITY. In case any one or more of the provisions contained
in this Amendment should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
5.5 NO ADDITIONAL AMENDMENTS. Except as amended by Section 1 of this
Amendment, the Amended Credit Agreement remains unmodified and in full force and
effect.
4
IN WITNESS WHEREOF, the Company and the Bank have caused this Amendment
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
HOSOKAWA MICRON INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Exec. V.P. & CFO
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
5
IN WITNESS WHEREOF, the Company and the Bank have caused this Amendment
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Nobuyuki Nirano
Title: Deputy General Manager
5
EXHIBIT A TO ELEVENTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
As of November 14, 1997
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Issuance of Commercial Paper Notes
For Hosokawa Micron International Inc.
--------------------------------------
Gentlemen:
We refer to the Depositary Agreement dated as of December 16, 1991 (the
"Depositary Agreement") between you and Hosokawa Micron International Inc., a
Delaware corporation (the "Company"), pursuant to which you are acting (i) on
the Company's behalf as the issuing and paying agent and the depositary in
connection with the sale from time to time of the Company's commercial paper
notes and (ii) as the depositary of and the drawing agent under a letter of
credit (as amended from time to time, the "Letter of Credit") issued by us
pursuant to the Letter of Credit Agreement dated as of December 16, 1991 (as
amended, the "Letter of Credit Agreement") between the Company and us.
Please note that, as of the date hereof, pursuant to the terms of the
Eleventh Amendment to Letter of Credit Agreement between the Company and the
undersigned, the "Expiration Date" referred to in the Letter of Credit Agreement
and in the Depositary Agreement is December 16, 1998, and the undersigned has
amended the Letter of Credit to reflect the same.
Please confirm by signing and returning to us a copy of this letter
that you acknowledge the extension of the Letter of Credit and that the
Depositary Agreement shall remain in full force and effect.
Sincerely yours,
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
6
ACKNOWLEDGED:
HOSOKAWA MICRON INTERNATIONAL INC.
By: ---------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: ---------------------------------
Name:
Title:
7
[LETTERHEAD OF BANK OF TOKYO-MITSUBISHI]
ELEVENTH AMENDMENT TO LETTER OF CREDIT NO. HK0750
November 14, 1997
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Hosokawa Micron International Inc.
Commercial Paper Program
----------------------------------
Gentlemen:
We refer to our Irrevocable Letter of Credit No. HK0750, dated December
16, 1991, as amended by the Amendment to Letter of Credit No. HK0750 dated
November 25, 1992, the Second Amendment to Letter of Credit No. HK0750 dated
December 16, 1992, the Third Amendment to Letter of Credit No. HK0750 dated
November 17, 1993, the Fourth Amendment to Letter of Credit No. HK0750 dated
December 16, 1993, the Fifth Amendment to Letter of Credit No. HK0750 dated
November 1, 1994, the Sixth Amendment to Letter of Credit No. HK0750 dated
December 16, 1994, the Seventh Amendment to Letter of Credit No. HK0750 dated
November 1, 1995, the Eighth Amendment to Letter of Credit No. HK0750 dated
December 15, 1995, the Ninth Amendment to Letter of Credit No. HK0750 dated
November 1, 1996 and the Tenth Amendment to Letter of Credit No. HK0750 dated
December 16, 1996 (the "LETTER OF CREDIT"), in your favor as fiduciary on behalf
of the owners from time to time of certain promissory notes of Hosokawa Micron
International Inc., a Delaware corporation (the "COMPANY"), in an aggregate
amount equal to Seventy-Five Million United States Dollars (U.S.$ 75,000,000).
All capitalized terms used but not defined in this Amendment shall have
the respective meanings set forth in the Letter of Credit.
We hereby amend the Letter of Credit by substituting for the last
sentence of the first full paragraph on page 3 thereof the following:
In no event shall this Letter of Credit
remain in effect after 5:00 P.M. New York
time on December 16, 1998.
This Eleventh Amendment to 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"), and shall, as
to matters not governed by the Uniform Customs, be governed and construed in
accordance with the laws of the State of New York.
Except as amended above, the Letter of Credit remains in full force and
effect and is not otherwise modified or amended.
Very truly yours,
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Deputy General Manager
As of November 14, 1997
Bank of Tokyo-Mitsubishi Trust Company
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Issuance of Commercial Paper Notes
for Hosokawa Micron International Inc.
--------------------------------------
Gentlemen:
We refer to the Depositary Agreement dated as of December 16, 1991 (the
"DEPOSITARY AGREEMENT") between you and Hosokawa Micron International Inc., a
Delaware corporation (the "COMPANY"), pursuant to which you are acting (i) on
the Company's behalf as the issuing and paying agent and the depositary in
connection with the sale from time to time of the Company's commercial paper
notes and (ii) as the depositary of and the drawing agent under a letter of
credit (as amended from time to time, the "LETTER OF CREDIT") issued by us
pursuant to the Letter of Credit Agreement dated as of December 16, 1991 (as
amended, the "LETTER OF CREDIT AGREEMENT") between the Company and us.
Please note that, as of the date hereof, pursuant to the terms of the
Eleventh Amendment to Letter of Credit Agreement between the Company and the
undersigned, the "Expiration Date" referred to in the Letter of Credit Agreement
and in the Depositary Agreement is December 16, 1998, and the undersigned has
amended the Letter of Credit to reflect the same.
Please confirm by signing and returning to us a copy of this letter
that you acknowledge the extension of the Letter of Credit and that the
Depositary Agreement shall remain in full force and effect.
Sincerely yours,
BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Deputy General Manager
ACKNOWLEDGED:
HOSOKAWA MICRON INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Exec. V.P. & CFO
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxx Xxxxx Xxxxx
-------------------------------
Name: X. XXXXX
Title: TRUST OFFICER
2
DEPOSITARY'S ACKNOWLEDGEMENT
OF RECEIPT OF ELEVENTH AMENDMENT TO LETTER OF CREDIT
Bank of Tokyo-Mitsubishi Trust Company ("BTMTC") hereby acknowledges
that BTMTC, the Depositary under the Depositary Agreement, dated as of December
16, 1991, between BTMTC and Hosokawa Micron International Inc., a Delaware
corporation, has received the Eleventh Amendment to Letter of Credit No. HK0750
(the "Amendment") of The Bank of Tokyo-Mitsubishi, Ltd., New York Branch (the
"Bank"), a copy of which is attached hereto. BTMTC further acknowledges that it
will attach the Amendment to, and treat the Amendment as a part of, the original
Letter of Credit No. HK0750 of the Bank.
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: /s/ Xxxxx Xxxxx Xxxxx
---------------------------------
Name: X. XXXXX
Title: TRUST OFFICER
Dated: November 14, 1997
ANNEX A
COMMERCIAL PAPER
CERTIFICATE AGREEMENT
Agreement made this 26th day of JUNE, 1991 between The Depository Trust Company
("DTC") and THE BANK OF TOKYO TRUST COMPANY (the "Custodian");
Whereas, the Custodian perform as, as agent of the issuers, certain paying
agency functions with respect to one or more issues of commercial paper notes
issued under the commercial paper programs listed on EXHIBIT A, as it may be
amended in writing from time to time by the parties (the "Notes") and;
Whereas, in order to enhance the efficiency of the processes for issuing and
redeeming such Notes the Custodian has agreed to act as custodian of Master Note
Certificates registered in the name of DTC's nominee, Cede & Co., evidencing the
Notes (the "Note Certificates") and has established procedures to perform the
services hereinafter set forth.
WITNESSETH:
In consideration of the covenants herein contained the parties agree:
1. Custodian will assure that each Note Certificate held pursuant to this
agreement shall be in registered form registered in the name of Cede & Co.
and shall bear the following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
Custodian agrees that the foregoing provisions of this paragraph constitute
as to the Custodian, a timely written notice of an adverse claim by DTC as
to each such Note Certificate regardless of whether the legend actually
appears thereon.
2. Subsequent to the issuance of Note Certificates, Custodian shall hold
the Note Certificates awaiting DTC's instructions. On receipt of
instructions from DTC and except as hereinafter provided, the Custodian
will deliver to DTC any or all Notes or Note Certificates held for DTC in
accordance with such instructions.
19
ANNEX A (cont'd)
3. Custodian shall confirm to DTC the amount of Notes evidenced by each
Note Certificate on a daily basis.
4. As between DTC and Custodian, including, without limitation, its
creditors, lien holders and pledgees, the Notes evidenced by a Note
Certificate and such Note Certificate shall be deemed to be the sole
property of DTC. Custodian shall not by reason of any provision of this
Agreement or the delivery to it of Notes in connection with their issuances
obtain any legal or equitable right, title or interest in or to Notes
evidenced by such Note Certificate.
5. Custodian shall itself at all times hold all Note Certificates in one of
its secured areas.
6(a) Notwithstanding any event whatsoever, other than an event described in
subparagraph (b) of this paragraph or in the proviso to paragraph 8 hereof,
Custodian shall, upon the request of DTC, deliver to or make available for
pick-up by DTC any or all Notes or Note Certificates within 24 hours after
receipt of such request, except that Custodian shall not be required hereby
to deliver or make available Notes or Note Certificates for pick-up by DTC
on a day that Custodian is not open for business.
(b) Custodian shall notify DTC immediately after it determines that any
Note Certificate received by it from the issuer, deliverable by it to DTC,
or held by it pursuant to the provisions of this Agreement has been lost,
apparently destroyed or wrongfully taken or is unaccounted for by Custodian
("Missing Security"). After such notification DTC and Custodian shall seek
to obtain the replacement thereof in accordance with the custom and usage
of the financial industry, and the course of dealing between the Custodian
and DTC, in accordance with applicable law.
7. Custodian represents and warrants that it is insured under an insurance
policy in the form of Financial Institution Bond Standard Form 24, or
similar coverage, in the maximum amount of $35 MILLION which insurance
covers any Notes held by Custodian on behalf of DTC under this Agreement.
Custodian has delivered to DTC a writing signed by its insurance broker or
agent which evidences the existence of such insurance coverage in such
amount, and Custodian covenants and agrees to maintain at its expense such
insurance (or a comparable plan of insurance) in no less amount and with
like coverage during the term of this Agreement, subject to its right to
cancel, decrease or limit the same. Custodian will notify DTC promptly of
any material changes in such insurance coverage. Custodian shall prior to
the first anniversary of the date of this Agreement and prior to each
succeeding anniversary of this Agreement during its term deliver to DTC a
writing signed by its insurance broker or agent which shall evidence the
amount and coverage of Custodian's insurance and shall state whether or not
such insurance is equivalent to Financial Institution Bond Standard Form
24. Custodian agrees that whenever Custodian ships Notes or Note
Certificates to DTC, Custodian will either provide adequate insurance
coverage or require such coverage from the carrier of the Notes or Note
Certificates, such coverage to cover losses of Notes or Note Certificates
while in transit and until received. Custodian shall, at DTC's request,
furnish DTC with documentation evidencing the amount and coverage of the
insurance provided by Custodian for any such shipment of Notes or Note
Certificates.
ANNEX A (cont'd)
8. Custodian agrees that it shall not for any reason, including the
assertion of any claim, right or lien of any kind, refuse or refrain from
delivering any Notes or Note Certificates to or as directed by DTC in
accordance with the terms of this Agreement: provided, however, that if
Custodian shall be served with a notice of levy, seizure or similar notice,
or order or judgment, issued or directed by a governmental agency or court,
or an officer thereof, having jurisdiction over Custodian, which on its
face affects Notes evidenced by Note Certificates in the possession of
Custodian pursuant to the provisions hereof, Custodian may, pending further
direction of such governmental agency or court, refuse or refrain from
delivery or making available to DTC in contravention of such notice or
levy, seizure or similar notice or order of judgment, Notes not greater in
amount than the Notes which are affected by such notice of levy, seizure or
similar notice, or order or judgment on the face thereof.
9. Custodian may act relative to this Agreement in reliance upon advice of
counsel in reference to any matters connected with its duties under this
Agreement, and shall not be liable for any mistake of fact or error of
judgment, or for any acts or omissions to act of any kind, unless caused by
its own negligence.
10. Custodian may at any time, without any resulting liability to itself,
act under this Agreement in reliance upon the signature of any person which
it reasonably believes has authority to act for DTC with respect to this
Agreement, but Custodian shall not be required so to act, and may in its
discretion at any time require such evidence of the authenticity of such
signature and of the authority of the person acting for DTC as may be
satisfactory to Custodian.
11. So long as this Agreement remains in effect as to any issue of Notes,
Custodian will furnish to DTC as soon as available a copy of any report on
the adequacy of Custodian's internal accounting control procedures relating
to the safeguarding of securities in its custody prepared for any
regulatory agency by Custodian's independent outside auditor.
12. This Agreement may be terminated by either party upon ten business
days' written notice to the other party. In the event of the termination of
this Agreement or the termination hereunder of this Agreement as to issues
of Notes evidenced by specific Note Certificates, it shall be deemed that
Custodian has received as of the time of such termination a request by DTC
within the meaning of paragraph 6(a) with regard to (i) all Notes or Note
Certificates subject hereto if this Agreement is terminated or (ii) the
specific Notes or Notes Certificates in respect of which this Agreement
shall terminate.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
14. All notices, instructions, requests and other communications required
or contemplated by this Agreement shall be in writing, shall be delivered
by hand or sent, postage prepaid, by certified or registered mail, return
receipt requested, and shall be addressed to Custodian at 000 XXXXXXXX, XX,
XX 00000 Attn: XXX XXXXX, and to DTC at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: General Counsel. Notice given as aforesaid shall be
deemed given upon the receipt thereof. Either of the parties may change the
address to which notices shall be sent upon notice to the other in the
manner hereinabove provided.
21
ANNEX A (cont'd)
15.(a) Custodian agrees to indemnify and hold harmless DTC from and against
any and all losses, liabilities, claims, penalties, charges and expenses
(including reasonable counsel fees and expenses) suffered or incurred by or
asserted or assessed against DTC by reason of Custodian's negligent action
or negligent failure to act: provided, however, that should Custodian be
held to be negligent hereunder and should DTC be held to have been
contributorily negligent in connection therewith, then the aforementioned
liability shall be shared between Custodian and DTC in such proportion as
may be set forth in any decision of a court or other tribunal having
jurisdiction, unless Custodian and DTC shall agree in writing to share such
liability in a different proportion.
(b) DTC agrees to indemnify and hold harmless Custodian from and against
any and all losses, liabilities, claims, taxes, assessments, penalties,
charges and expenses (including reasonable counsel fees and expenses)
suffered or incurred by or asserted or assessed against Custodian as a
result of any action pursuant to this Agreement or following the
instructions of DTC in connection with the performance of its duties under
this Agreement where Custodian has acted in good faith without negligence.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE BANK OF TOKYO TRUST COMPANY THE DEPOSITORY TRUST COMPANY
By: /s/ [Illegible] By: /s/ [Illegible]
------------------------------ -------------------------------
VICE PRESIDENT
------------------------------ -------------------------------
TITLE TITLE
JUNE 26, 1991 JULY 10, 1991
------------------------------ -------------------------------
DATE DATE
/s/ [Illegible] /s/ [Illegible]
------------------------------ -------------------------------
VICE PRESIDENT ATTEST
22
EXECUTION COPY
DIRECT DRAW LETTER OF CREDIT
December 16, 1991
Irrevocable Letter of Credit No. HKO750
The Bank of Tokyo Trust Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
At the request and for the account of Hosokawa Micron International Inc., a
Delaware corporation (the "Company"), we hereby establish in your favor, as
fiduciary on behalf of the owners from time to time of certain promissory notes
of the Company referred to below (the "COMMERCIAL PAPER NOTES"), this
irrevocable Letter of Credit in an aggregate amount equal to Seventy-Five
Million United States Dollars (U.S.$75,000,O00) available from time to time in
amounts equal to the face amount of maturing Commercial Paper Notes identified
on the records of the book-entry system maintained by The Depository Trust
Company ("DTC") or authenticated for delivered by you to purchasers pursuant to
a certain Depositary Agreement (the "DEPOSITARY AGREEMENT") dated as of December
16, 1991 among the Company, The Mitsubishi Bank, Limited, New York Branch (the
"Bank"), and you (the "Depositary").
Demand for a drawing hereunder (i) may be made by you on or after the
maturity date of any Commercial Paper Note and prior to the expiration of this
Letter of Credit with respect to such Commercial Paper Note as herein provided
and (ii) shall be made by you prior to the maturity date of such Commercial
Paper Note upon notice from the Bank stating that an "Event of Default" has
occurred under the Letter of Credit Agreement referred to in the Depositary
Agreement (the "CREDIT AGREEMENT"), and directing you to make a drawing in
respect of all Commercial Paper Notes not yet matured. Such drawings shall be
made by delivering or transmitting interested telex or telecopier to the Bank,
at 000 Xxxxxxx Xxxxxx, Two World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Business Development Department/Letter of Credit No. HK0750, Telex on
the form of Annex 1 hereto, with the blanks appropriately completed. In the
event of a drawing made by tested telex or telecopier, you shall immediately
confirm receipt of the telex or telecopy by telephone.
We hereby agree to honor each such demand drawn under and in full compliance
with this Letter of Credit, provided that such demand is delivered to us not
later than 5:00 P.M. New York time on the fifteenth day after the maturity date
of any such Commercial paper Note (or if such day is not a Business Day, on the
first Business Day thereafter) (the date of delivery of such demand being the
"DRAWING DATE") by, unless other arrangements satisfactory to you have been made
for making Bank funds available to honor such drawing, transferring in
immediately available Bank funds the amount demanded to the Special Account
maintained by you pursuant to the Depositary Agreement not later than 2:00 P.M.
New York time on the maturity date of any such Commercial Paper Note (or if such
day is not a Business Day, on the first Business Day thereafter) if such demand
is received by us by 11:00 A.M. New York time on the Maturity date, or, if such
demand is received by us after 11:00 A.M. New York time on the maturity date,
then not later than 2:00 P.M. New York time on the next Business Day after the
Drawing Date. Upon any payment under this Letter of Credit, the amount of this
Letter of Credit shall be reduced in an amount equal to such payment. Upon (i)
reimbursement to the Bank of such payment on the date of such payment, (ii) the
repayment of any "Unreimbursed Drawing" referred to in the Credit Agreement
arising from such payment, or (iii) the assignment to the Bank of the proceeds
from the sale of such newly issued Commercial Paper Notes on the date of such
payment, the amount by which this Letter of Credit was so reduced shall, unless
the Bank theretofore notifies you to the contrary, be automatically reinstated,
in the case of (i) or (ii) above, by the amount of such reimbursement or
repayment (except that the aggregate amount of such increases shall not exceed
the amount of such payment under this Letter of Credit) and, in the case of
(iii) above, by the face amount of the Commercial Paper Notes the proceeds of
which have been assigned to the Bank; PROVIDED, HOWEVER, that, in the case of an
automatic reinstatement the amount of this Letter of Credit following an
assignment of the proceeds from the sale of Commercial Paper Notes as described
in (iii) above, any repayment or reimbursement to the Bank in respect of a
"Discount" as referred to in the Credit Agreement on Commercial Paper Notes
shall not increase the amount of this Letter of Credit. No amendment of this
Letter of Credit shall be necessary to effect any such reduction or increase.
All payments made by us under this Letter of Credit shall be paid out of
our general funds, and no payments under this Letter of edit shall in any way be
contingent upon or drawn from amounts on deposit in any account maintained by
the Company with you or paid out of proceeds of Commercial Paper Notes.
It is understood and agreed that the provisions of this Letter of Credit
are intended to provide for payment of the Commercial Paper Notes at their
maturity. Accordingly, in actions taken by you as beneficiary of the Letter of
Credit you shall not be acting as an agent of the Company but exclusively as
fiduciary on behalf of the holders of Commercial Paper Notes.
2
This Letter of Credit shall expire with respect to each commercial Paper
Note authenticated and delivered or identified on the records of DTC's
book-entry system pursuant to the Depositary Agreement at the earlier of (i)
payment of such Commercial Paper Note, or (ii) 5:00 P.M. New York time on the
fifteenth day after the maturity date of such Commercial Paper Note (or, if such
day is not a Business Day, the first Business Day thereafter). In no event shall
this Letter of Credit remain in effect after 5:00 P.M. New York time on December
16, 1992.
This Letter of Credit sets forth in full the terms of our undertaking and
this undertaking shall not in any way be modified, amended or amplified by
reference to any document, instrument or agreement referred to herein or to
which this Letter of Credit relates, and any such reference shall not be deemed
to incorporate by reference any such document, instrument or agreement.
As used herein, "Business Day" means a day other than a Saturday, a Sunday
or other day on which commercial banks are authorized or required to close in
New York City.
Except as otherwise expressly stated herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1983
Revision), International Chamber of Commerce, Publication No. 400 (the "UCP"),
as the same may be amended or supplemented from time to time. This Letter of
Credit shall be deemed a contract made under the laws of the State of New York
and shall, to the extent not inconsistent with the UCP, be governed and
construed in accordance with such laws without regard to principles of conflicts
of law.
This Letter of Credit may not be transferred.
Very truly yours,
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ Hirichi Jinza
--------------------------------
Name: Xxxxxxx Jinza
Title: Vice President & Manager
3
ANNEX 1 TO LETTER OF CREDIT
DRAWING UNDER LETTER OF CREDIT NO. [________]
FROM
THE MITSUBISHI BANK, LIMITED, NEW YORK BRANCH
[________________, 19__]
To: The Mitsubishi Bank, Limited
New York Branch
000 Xxxxxxx Xxxxxx
Two World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Re: HOSOKAWA MICRON INTERNATIONAL INC. COMMERCIAL PAPER PROGRAM
FOR THE URGENT ATTENTION OF: [Business Development Department]
Gentlemen:
1. The undersigned, acting on behalf of the holder or holders of the
below-mentioned Commercial Paper Note or Commercial Paper Notes, is making
demand for payment of the amount stated in paragraph 4 hereof under the
captioned letter of credit (the "Letter of Credit") to pay the face amount of
such Commercial Paper or Commercial Paper Notes.
2. The face amounts and maturity dates of all such Commercial Paper
Notes are as follows:
Aggregate
Commercial Paper Face Maturity
Note No. Amount Date
-------- ------ ----
3. Each such Commercial Paper Note was authenticated and delivered by
us or recorded pursuant to our issuance instructions to DTC in DTC's book-entry
system pursuant to the Depositary Agreement and has not been the subject of any
previous drawing by us under the Letter of Credit.
4. The aggregate amount required to be drawn under the Letter of Credit
to pay in full the face amount of each such Commercial Paper Note specified in
paragraph 2 hereof is [_______] U.S. dollars (US$____________).
5. Upon receipt of the amount demanded in paragraph 4 hereof, we will
(i) deposit the same in the Special Account maintained by us pursuant to the
Depositary Agreement and apply the same to the payment of matured Commercial
Paper Notes, (ii) not deposit any portion of said amount in any other account
maintained by us by or for the account of the Company or use any portion of said
amount for any purpose other than payment of Commercial Paper Notes, and (iii)
when Certificated Notes (as defined in the Depositary Agreement) are presented
for payment and paid by us, transmit such matured Commercial Paper Notes to the
Company with a copy to you.
All terms used herein which are defined in the Letter of Credit have
the same meanings when used herein.
Very truly yours,
THE BANK OF TOKYO TRUST COMPANY
By:
-------------------------------------
Name:
Title:
2
Execution Copy
COMMERCIAL PAPER MASTER NOTE
HOSOKAWA MICRON INTERNATIONAL INC.
December 16, 1991
HOSOKAWA MICRON INTERNATIONAL INC. (the "Company"), a corporation organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to Cede & Co. or registered assigns on the maturity date of each
obligation identified on the records of the Company, which records are reflected
on a schedule attached hereto and made a part hereof and are maintained by The
Bank of Tokyo Trust Company (the "Depositary"), the principal amount for each
such obligation. Payment shall be made by wire transfer to the registered owner
from the Depositary without the necessity of presentation and surrender of this
Master Note.
This Master Note has been issued in accordance with a Letter of Credit Agreement
dated as of December 16, 1991, as from time to time amended, between the Company
and The Mitsubishi Bank, Limited, New York Branch (the "Bank"), and is entitled
to the benefit of an Irrevocable Letter of Credit (the "Letter of Credit")
issued by the Bank pursuant to said Letter of Credit Agreement, provided that
payment is requested from the Depositary not later than 5:00 p.m., New York
time, on the fifteenth day after the maturity date of each obligation (or, if
such fifteenth day is not a Business day, on the next succeeding Business Day).
As used herein, the term "Business Day" means any day other than a Saturday or
Sunday or a day on which banks are authorized or required by law to close in New
York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS
OF THIS MASTER NOTE SET FORTH ON THE NEXT PAGE HEREOF.
This Master Note is a valid and binding obligation of the Company.
HOSOKAWA MICRON INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxx
--------------------------------- --------------------------------
(Authorized Officer's Signature) (Authorized Officer's Signature)
At the request of the registered owner, the Company shall promptly issue and
deliver one or more separate note certificates evidencing each obligation
evidenced by this Master Note. As of the date any such note certificate or
certificates are issued, the obligations are evidenced thereby shall no longer
be evidenced by this Master Note.
1
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(Name, Address and Taxpayer Identification Number of Assignee)
the Master Note and all rights hereunder, hereby irrevocably constituting and
appointing _____________________ Attorney to transfer said Master Note on the
books of the Company with full power of substitution in the premises.
Dated: ------------------------------------
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature of this
assignment must correspond with the
names as written upon the face of
this Master Note, in every
particular, without alteration or
enlargement or any change
whatsoever.
--------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
2
Schedule to
Commercial Paper Master Note
dated December 16, 1991 of Hosokawa Micron International Inc.
Date of Face Amount of CUSIP Maturity Date Amount Notation
Issue Discount Note Number Date Paid Paid Made by
----- ------------- ------ ---- ---- ---- -------
3
Execution Version
COMMERCIAL PAPER DEALER AGREEMENT
December 16, 1991
Xxxxxxx Xxxxx Money Markets Inc.
Xxxxxxx Xxxxx World Headquarters
World Financial Center - Xxxxx Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Gentlemen:
This letter agreement (the "Agreement") sets forth our understanding of
the basis on which Xxxxxxx Xxxxx Money Markets Inc. ("MLMMI") proposes to work
with Hosokawa Micron International Inc. (the "Company") in connection with the
issuance and sale by the Company of its short-term promissory notes (the
"Notes") in the United States commercial paper market. While (i) the Company
shall have no obligation to issue or sell the Notes to, or arrange sales of
Notes through, MLMMI and (ii) MLMMI shall have no obligation to purchase the
Notes from, or arrange sales of Notes for, the Company, the Company has
requested MLMMI to act as commercial paper dealer therefor and MLMMI has
indicated its willingness to do so on the terms and conditions contained herein.
1. The Notes will be supported by an irrevocable letter of credit (the
"Letter of Credit") issued by The Mitsubishi Bank, Limited, New York Branch (the
"Bank") pursuant to a Credit Agreement dated as of December 16, 1991 on the
Company, the Participants thereto and the Bank (as from time to time amended,
the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Company hereby repeats and reaffirms for the benefit of MLMMI the Company's
representations, warranties and covenants contained in the Credit Agreement. The
Company agrees to notify MLMMI of any event or events which might result in the
suspension of the Letter of Credit or in termination or reduction of the
commitment of the Bank to maintain the Letter of Credit under the Credit
Agreement.
Prior to the initial purchase or placement by MLMMI of Notes hereunder, MLMMI
shall have received such opinion(s) of counsel as it may reasonably request.
2. The Notes will be issued in such face or principal amounts (but not
less than $100,000 each), will have such maturities (not in excess of 270 days
from the date of issuance exclusive of days of grace), will bear such interest
rates (if interest-bearing), or will be sold at such discounts, if any, from
their face amounts, as shall be mutually agreed to by the Company and MLMMI at
the time of each proposed purchase or placement.
3. (a) On the date of a proposed issuance of Notes, MLMMI shall confer
with the Company as to the face or principal amounts, maturities and
denominations thereof, the applicable interest rates or the discounts from the
face amounts, at which the Notes are to be issued.
(b) When agreement is reached on the foregoing, the Company will
instruct The Bank of Tokyo Trust Company (the "Depositary") or another issuing
agent designated by the Company in a written notice to MLMMI, to deliver
executed and countersigned Notes issued in the form attached to the Depositary
Agreement as Annex I, to Xxxxxxx Xxxxx Money Markets Operations, One Liberty
Plaza, 000 Xxxxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, prior to 2:15 p.m.,
New York City time, on the date of issuance. Following MLMMI's receipt of duly
and properly completed Notes, MLMMI or its agent will transfer by the close of
business on such day immediately available funds to the Depositary in an amount
equal to the net proceeds of the Notes.
(c) If the Notes are issued in the form attached to the Depositary
Agreement as Annex II, payment for, and delivery of, the Notes will be made in
accordance with (i) a letter agreement among the Company, The Depository Trust
Company ("DTC") and those certain DTC participants acting as the Company's
issuing and paying agents, in such form that is reasonably acceptable to MLMMI,
(ii) the related certificate agreement between DTC and that certain DTC and
participant who is the Company's paying agent.
4. If MLMMI and the Company, in accordance with Section 3 above, agree
upon the sale of Notes to or through M1MI shall be entitled to compensation in
the form
2
of a discount to be applied to the face or principal amount of the Notes sold at
such rate per annum as the Company and MLMMI shall from time to time agree.
5. The Company understands that, in connection with the sale of the
Notes, one or more of the following relating to the Company, its affiliates and
the Bank may be prepared: (a) annual information reports, (b) interim
information reports, (c) summary reports for inclusion in MLMMI's Commercial
Paper Digests, and (d) other reports or offering materials (all of the foregoing
being hereinafter called the "Offering Materials"), which are distributed to
MLMMI account executives and/or to purchasers and prospective purchasers of the
Notes. The Offering Materials will state, and MLMMI hereby agrees, that the
Company has not authorized any party including MLMMI to give any information or
to make any representation other than those contained in the Offering Materials.
To provide a basis for the preparation of the Offering Materials and to assist
MLMMI's normal credit review procedures, the Company shall provide MLMMI with
copies of its and its affiliates' publicly available recent reports, including
any filings or reports provided to their respective shareholders, any national
securities exchanges or any rating agency and any information generally supplied
in writing to security analysts. In addition, the Company will request the Bank
to provide MLMMI with copies of the following documents: the Bank's fiscal year
end financial statements for its last three years and any interim financial
reports prepared subsequent to its most recent fiscal year end, all reports
hereafter filed by the Bank with the Board of Governors of the Federal Reserve
System and any filings or reports provided by the Bank to its shareholders, any
national Securities exchange or any rating agency, together with a Summary of
the material differences, if any, in accounting practices applicable to the Bank
and generally accepted accounting principles applicable to United States banks.
In addition, the Company will provide MLMMI and will request the Bank to provide
to MLMMI any other information that MLMMI reasonably requests for the purpose of
the on-going credit review of the Company and the Bank.
6. MLMMI agrees to furnish all Offering Materials the Company and the
Bank for their written approval prior the use thereof in offering the Notes. No
other written information, circulars or statements will be distributed by MLMMI.
If, at any time during the term of this Agreement, Company becomes aware of any
event that occurs or
3
circumstances that exist as a result of which any then current Offering Material
would include an untrue statement or omission, the Company will promptly notify
MLMMI and provide to MLMMI or request the Bank to provide to MLMMI revised
information that corrects such untrue statement or omission provided, however
that the obligation of the Company to notify MLMMI of any event or circumstance
of which the Company becomes aware relating to the Bank shall not create any
affirmative duty or obligation on the Company to monitor the activities or
performance of the Bank. The Company agrees that MLMMI's acting as a dealer for
the Notes is conditioned upon its being able to provide such Offering Materials
to purchasers or potential purchasers as MLMMI deems appropriate.
7. The Company represents that (a) the issue and sale of the Notes is
duly authorized, (b) upon issuance, the Notes will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
pursuant to Section 3(a)(2) thereof, (c) upon issuance and payment therefor in
accordance with this Agreement, the Notes will be the legal, valid, binding and
enforceable obligations of the Company, and (d) the Company is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
8. Each sale of Notes by the Company hereunder shall be deemed to be a
representation by it that:
(a) the representations, warranties and covenants of the
Company contained or incorporated in this Agreement pursuant to
Section 1, Section 6 and Section 7 of this Agreement, are true
and correct on and as of the date of such sale; and
(b) no event has occurred and is continuing, would result
from such sale, which constitutes or would constitute an event of
default, or which would constitute an event of default but for
the requirement that notice be given or time elapse or both,
under any of the Company's indebtedness for money borrowed,
obligations as lessee under capital leases or under any
guarantees by the Company of such indebtedness or capital lease
obligations.
9. (a) The Company will indemnify and hold harmless MLMMI and any
affiliate, director, officer,
4
employee or agent of MLMMI or any individual, corporation, partnership, trust,
association or other entity controlling MLMMI or any affiliate, director,
officer, employee or agent of MLMMI against any and all liabilities, losses,
damages, claims, costs and expenses (including without limitation reasonable
fees and disbursements of counsel) (i) arising out of or based upon any
allegation that any Offering Material or any information provided by the Company
regarding the Company to MLMMI hereunder includes an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) arising out of the breach by the Company of any
agreement or representation made or deemed made pursuant to this Agreement, or
(iii) arising out of or related in any way to any obligation, representation or
covenant of the Company under the Credit Agreement, the Depositary Agreement or
the Letter of Credit or the transactions contemplated thereby. The above
indemnification shall not apply to the extent that the liability arises from the
inclusion by any indemnified party in any Offering Material that has not been
approved by the Company pursuant to Section 6 of this Agreement of an untrue
statement of a material fact or omission to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) MLMMI agrees to indemnify and hold harmless the Company and each
person who controls the Company within the meaning of either the Act or the
Exchange Act of 1934, as amended (the "Exchange Act") against any and all
losses, liabilities, claims, damages, penalties, causes Of action, suits, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) to which the Company may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, insofar as such
losses, liabilities, claims, damages, penalties, causes of action, suits, costs
or expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Offering Materials related
to the issuance of the Notes, arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in any event
only with reference to written information relating to MLMMI in its capacity as
agent for the sale of the Notes or MLMMI's activities
5
pursuant to this Agreement furnished to the Company by or on behalf of MLMMI
specifically for use in the preparation of the Offering Materials.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnifications provided for in this Section 9 are
for any reason held unenforceable, although applicable in accordance with the
terms of this paragraph, the Company, on the one hand, and MLMMI, on the other
hand, shall contribute to the aggregate costs of any such claim in the
proportion of their respective economic interests. The respective economic
interests shall be calculated by reference to the aggregate proceeds to the
Company of the Notes sold hereunder and the aggregate commissions and fees
earned by MLMMI hereunder.
10. The Company shall reimburse MLMMI for all of its out-of-pocket
expenses related to this Agreement and the transactions contemplated hereby
(including but not limited to the printing and distribution of any Offering
Material and any advertising expenses) and shall reimburse MLMMI for, or pay
directly, the reasonable fees and out-of-pocket expenses of Xxxxxx & Xxxxxx,
counsel to MLMMI.
11. All notices required or permitted under the terms and provisions
hereof shall be in writing (which shall include electronic transmission) and
shall, unless otherwise provided herein, be effective when received at the
address specified below or at such other address as shall be specified in a
notice furnished hereunder.
If to the Company:
Hosokawa Micron International Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MANAGER OF FINANCE
Tel. No. (2l2) 000-0000
Facsimile No. (000) 000-0000
6
If to MLMMI:
Xxxxxxx Xxxxx Money Markets Inc.
Xxxxxxx Xxxxx World Headquarters
World Financial Center - Xxxxx Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Product Management - CP
Tel. No. (000) 000-0000
Telex No. 6716341 (ANSWERBACK: MLBSCTR)
Facsimile No. (000) 000-0000
12. This Agreement is to be delivered and performed, and shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of New York.
13. The Company agrees that any suit, action or proceeding brought by
the Company against MLMMI in connection with or arising out of this Agreement or
the offer and sale of the Notes shall be brought solely in the United States
Federal courts or the New York courts, which are located in the Borough of
Manhattan.
14. This Agreement may be terminated, at any time, by the Company, upon
notice to such effect to MLMMI, or by MLMMI, upon notice to such effect to the
Company. Any such termination, however, shall not affect the obligations of the
Company or MLMMI under Section 9 hereof or the obligations of the Company under
Sections 10 or 13 hereof or the rights or responsibilities of the parties
arising prior to the termination of this Agreement.
7
If the foregoing is in accordance with your understanding of this
Agreement, please sign and return to us a counterpart hereof, whereupon this
letter agreement along with all counterparts will become a binding agreement
between us in accordance with its terms.
Very truly yours,
HOSOKAWA MICRON
INTERNATIONAL INC.
By: /s/ Xxxx Xxxx
------------------------------------
Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Authorized Signatory
Accepted and agreed to as of the date first above written.
XXXXXXX XXXXX MONEY MARKETS INC.
By: /s/ [Illegible]
-----------------------------
Authorized Signatory
8
Execution Copy
================================================================================
DEPOSITARY AGREEMENT
between
THE BANK OF TOKYO TRUST COMPANY
as Depositary
and
HOSOKAWA MICRON INTERNATIONAL INC.
as Issuer
Dated as of December 16, 1991
================================================================================
Relating to Hosokawa Micron International Inc.
Commercial Paper Program
================================================================================
DEPOSITARY AGREEMENT
As of December 16, 1991
The Bank of Tokyo Trust Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Issuance of Commercial Paper Notes
for Hosokawa Micron International Inc.
--------------------------------------
Gentlemen:
We hereby request that you (the "Depositary") act as issuing and
paying agent and depositary on behalf of Hosokawa Micron International Inc. (the
"Company") in connection with the sale from time to time of the Company's
Commercial Paper Notes and as depositary of and drawing agent under the Letter
of Credit issued by The Mitsubishi Bank, Limited, New York Branch (the "Bank")
pursuant to the Letter of Credit Agreement dated as of December 16, 1991 (the
"Credit Agreement") between the Company and the Bank. In such capacities, you
shall be governed by the terms and conditions of this Depositary Agreement
(hereinafter referred to as "this Agreement") and, when The Depository Trust
Company ("DTC") book-entry system is used for the Commercial Paper Notes, by the
Letter of Representations dated November 13, 1991 from the Company to you and
DTC, the Commercial Paper Certificate Agreement between you and DTC dated June
26, 1991 (the "Certificate Agreement") and your obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System. Except as otherwise
provided in this Agreement, al1 capitalized terms used herein which are defined
in the Credit Agreement, as in effect on the date hereof, shall have the same
meanings when used herein.
1. ISSUANCE OF THE COMMERCIAL PAPER NOTES.
The Commercial Paper Notes may be issued as bearer or registered
securities and may be represented by either (i) a global security in
substantially the form of Exhibit A attached hereto (the "Master Note")
delivered to you as custodian and agent for DTC and recorded in the book-entry
system maintained by DTC (a "Book-Entry Note") or (ii) a promissory note
substantially in the form of Exhibit B attached hereto issued in physical form
(a "Certificated Note") delivered to the purchaser thereof. Book-Entry Notes and
Certificated Notes are collectively referred to herein as "Commercial Paper
Notes."
1
At such time as the Company shall use the DTC book-entry system for the
Commercial Paper Notes, the Company will deliver to you the manually or
facsimile executed Master Note, evidencing the aggregate Face Amount of
Book-Entry Notes to be sold via DTC's book-entry system, registered in the name
of DTC's nominee and to be held by you as custodian and agent on DTC's behalf.
From time to time there will also be delivered to you executed
Certificated Notes of the Company, to be held in safekeeping by you for the
account of the Company. The certificated Notes will be signed manually or by
facsimile on behalf of the Company by an Authorized Agent (as defined below) of
the Company. You will be furnished with incumbency certificates from the
Secretary or an Assistant Secretary of the Company with respect to any officer
of the Company whose signature is authorized to appear on the Certificated Notes
and the Master Note or otherwise is authorized to act for the Company hereunder
(the "Authorized Agents"), together with the specimen signature of each such
officer. The Master Note or any Certificated Note bearing the signature of an
Authorized Agent authorized to execute the same on the date such signature is
affixed thereto shall bind the Company after the completion thereof by you
notwithstanding that such person shall have died or shall have otherwise ceased
to hold his office or be so authorized on the date such Certificated Note is
countersigned or delivered by you.
The Certificated Notes delivered to you will be incomplete as to face
amount, date of issue and maturity. They will be numbered consecutively and may
bear other appropriate identification. When any Certificated Note is delivered
to you as the Depositary, an Authenticating Representative will acknowledge
receipt by signing and returning a receipt to the Company.
By appropriate certificates of designation, you shall specify the names
of your officers and employees who are authorized (i) to receipt for, complete,
authenticate and deliver the Certificated Notes, and to enter issuance
instructions in DTC's book-entry system with respect to the Book-Entry Notes
(the "Authenticating Representatives"), and (ii) to receive instructions or
notices from an Authorized Agent of the Company, an authorized officer of the
Bank (an "Authorized Bank Officer") or DTC (with respect to the Book-Entry
Notes) and to act for you hereunder and who are authorized to make a drawing
under the Letter of Credit (the "Designated Persons").
In the case of Book-Entry Notes, in accordance with instructions given
to you by any Authorized Agent of the Company (in writing or by telephone,
promptly confirmed in writing, or by other electronic transmission), from time
to time, but in no event later than 12:30 P.M. New York time on the proposed
date of issuance Commercial Paper Notes, you will enter an issuance instruction
in DTC's Book-Entry System in accordance with the procedures set forth in the
Certificate Agreement which
2
instructions shall identify the Face Amount of Book-Entry Notes to be sold, the
date of issue and the maturity date. The issuance instruction shall include a
delivery order to debit the Dealer's account with DTC against credit to your
account with DTC. Upon confirmation of receipt of funds, you shall transfer the
amount so received to the General Account as provided in Section 3(a) of this
Agreement. You shall record on the schedule attached to the Master Note each
change in the Face Amount of Outstanding Book-Entry Notes and the maturity dates
thereof.
In the case of Certificated Notes, in accordance with instructions
given to you by any Authorized Agent of the Company (in writing or by telephone
or by other electronic transmission), from time to time, but in no event later
than 12:30 P.M. New York time on the proposed date of issuance of Commercial
Paper Notes, an Authenticating Representative shall withdraw the necessary
number of Certificated Notes from safekeeping and shall:
(i) complete each such Certificated Note as to the date of issue,
maturity date, Face Amount and, if so directed, the name of the payee thereof
and the federal taxpayer identification number of such payee;
(ii) authenticate each such Certificated Note by countersigning
the form of authentication inscribed thereon; and
(iii) deliver each such Certificated Note to or for the account of
the purchaser of such Certificated Note designated in such instructions against
payment in accordance with the provisions of this Agreement.
Instructions from the Company for authentication and delivery by
you of Certificated Notes shall include the following information with respect
to each Certificated Note: its date of issue, maturity date, Face Amount,
discount rate and amount of Discount from Face Amount and the party to whom
delivery of such Commercial Paper Note or for whom is to be made together with
its address. If you are instructed to register a Certificated Note other than to
"bearer," the Company shall provide to you the name, address and federal
taxpayer identification number of the registered owner of such Commercial Paper
Note.
All oral instructions and approvals given to you for the completion and
delivery of Certificated Notes or the entering of issuing instructions in DTC's
book-entry system with respect to Book-Entry Notes will be confirmed by the
Company in writing or by telex or telecopier by an Authorized Agent of the
Company by the next Business Day. You shall incur no liability in acting upon
telephone instructions and approvals which a Designated Person or an
Authenticating Representative believes in good faith to have been given by an
Authorized Agent or an Authorized Bank Officer.
3
You shall not authenticate or deliver any Certificated Note or enter
issuance instructions in DTC's book-entry system with respect to any Book-Entry
Note on any day on which a Commercial Paper Note matures until after you have
provided for the deposit of funds into the Special Account in the Face Amount of
such maturing Commercial Paper Note.
No Commercial Paper Note shall mature (i) more than 270 days after the
date of issuance thereof, or (ii) less than 15 days prior to the Expiration Date
in effect at the time of issuance of such Commercial Paper Note, whichever is
earlier, or mature on a day other than a Business Day.
Each Commercial Paper Note shall be issued only on a discount basis,
shall have a face amount of not less than $100,000 and may be issued in larger
amounts in integral multiples of $1,000.
Notwithstanding any instructions from an Authorized Agent of the
Company, you shall not authenticate and deliver any Certificated Note or enter
issuance instructions in DTC's book-entry system with respect to any Book-Entry
Note if, immediately after the authentication and delivery of such Certificated
Note or giving effect to such instructions with respect to such Book-Entry Note
and the provision for the deposit of the proceeds (or a portion thereof) of such
issuance on the date of computation and any other funds as provided in Section
2(c) of this Agreement to the Bank's Account for the purpose of reimbursing the
Bank for payments made in respect of a drawing under the Letter of Credit (1)
the aggregate Face Amount of Outstanding Commercial Paper Notes would exceed the
amount of the Letter of Credit in effect after the adjustments thereto pursuant
to Section 2.3(c) of the Credit Agreement arising from any reimbursement,
repayment or assignment to the Bank of the proceeds from the sale of Commercial
Paper Notes or (2) the aggregate Face Amount of Outstanding Commercial Paper
Notes plus the amount of Outstanding Unreimbursed Drawings would exceed the
Commitment. In the event instructions from an Authorized Agent of the Company
would or do result in the occurrence of an event described above, the Depositary
shall immediately so inform the Bank, the Company and the Dealer. In making the
above calculations, you may rely on the information last delivered to you by the
Bank and you shall have no obligation to make any further determination other
than with respect to the Face Amount of Outstanding Commercial Paper Notes and
the amount of the Letter of Credit as then in effect. Until you are notified to
the contrary in writing by the Bank, you shall be entitled to assume that the
Expiration Date is [December ___, 1992].
Each issuance of Commercial Paper Notes pursuant to the provisions of
this Agreement shall be deemed (1) an irrevocable assignment by the Company to
the Bank of the proceeds of the sale of such Commercial Paper Notes in an amount
not to exceed the amount required to reimburse the Bank for any payment made on
the
4
same day in respect of a drawing under the Letter of Credit and otherwise not
reimbursed by the Company, (2) an irrevocable assignment by the Company to the
Bank of any remaining proceeds of the sale of such Commercial Paper Notes in an
amount not to exceed the amount of unpaid interest and principal with respect to
Unreimbursed Drawings, and (3) in the event that you receive notice from an
Authorized Bank Officer pursuant to this Agreement which also states that an
Event of Default has occurred, an irrevocable assignment to the Bank of the
entire remaining proceeds of the sale of such Commercial Paper Notes on the date
of such notice. Proceeds of the sale of Commercial Paper Notes shall be
distributed pursuant to Sections 2 and 3 of this Agreement; PROVIDED, HOWEVER,
that in the event you receive notice from an Authorized Bank Officer pursuant to
this Agreement which also states that an Event of Default has occurred, you
shall hold for the benefit of the Bank all proceeds from the sale of Commercial
Paper Notes on such date and transfer such funds to the Bank's Account on the
date of and after any payment by the Bank under the Letter of Credit; PROVIDED,
FURTHER, that the Bank shall apply such funds from time to time to reimburse
itself for any drawings under the Letter of Credit and any Unreimbursed Drawings
and interest thereon, and after all outstanding Commercial Paper Notes have been
paid in full, any remaining balance of such funds shall be paid by the Bank to
the Company.
If you receive instructions from an Authorized Bank Officer to cease
authenticating or delivering Certificated Notes or entering issuance
instructions in DTC's book-entry system with respect to Commercial Paper Notes,
you shall immediately notify the Dealer thereof and comply with such
instructions, notwithstanding any contrary instructions received by you from any
Authorized Agent of the Company. You shall use reasonable efforts to retrieve or
recover any Certificated Notes which have left your offices prior to your having
received instructions from an Authorized Bank Officer to cease authenticating or
delivering or entering issuance instructions in DTC's book-entry system with
respect to Commercial Paper Notes but you shall have no liability for your
failure to retrieve or recover such Certificated Notes. If instructions to cease
authenticating or delivering or entering issuance instructions in DTC's
book-entry system with respect to Commercial Paper Notes are given by telephone,
they shall be confirmed within 24 hours in writing or by telex or telecopier. In
all cases hereunder, you shall incur no liability to the Company in acting upon
telephone instructions which a Designated Person or Authenticating
Representative believes in good faith to have been given by an Authorized Bank
Officer, absent gross negligence or wilful misconduct. Following receipt of such
instructions, no further authentication or delivery or entering issuance
instructions in DTC's book-entry system with respect to Commercial Notes shall
be made until such time as an Authorized Bank Officer shall have rescinded such
instructions and shall consent to the issuance of Commercial Paper Notes by a
notice in writing to you. Notwithstanding the provisions of this paragraph, the
giving
5
of instructions pursuant to this paragraph shall not have the effect of
terminating, reducing, or altering in any respect the terms of the Letter of
Credit with respect to Commercial Paper Notes Outstanding at the time.
Each delivery or issuance of a Certificated Note shall be subject to
the rules of the New York Clearing House Association in effect at the time of
the delivery or issuance.
In the event you are instructed by an Authorized Agent of the Company
to deliver a Certificated Note against payment, the delivery and receipt of
payment may not necessarily be completed simultaneously and you are hereby
authorized to follow the prevailing custom, which is: to deliver a Certificated
Note to or for the account of the purchaser, to receive the purchaser's receipt
for the delivery, and at a later time, but on the same day, after the purchaser
has verified the delivery against the purchase agreement, to receive payment
from the purchaser in immediately available funds by 5:00 P.M. New York time.
Should you be instructed by an Authorized Agent of the Company to
deliver any Certificated Note against payment and the delivery thereof and the
receipt of payment are not completed simultaneously, you shall have no
responsibility or liability for the credit risks involved in your delivery of
such Certificated Note to those designated in writing by an Authorized Agent of
the Company.
You shall send to the Bank and to the Company quarterly statements
specifying (i) the average Face Amount of Commercial Paper Notes outstanding
during each quarter then ending (calculated on a daily basis) and (ii) the
aggregate Face Amount of Commercial Paper Notes Outstanding at the end of each
such quarter, such statements to cover quarterly periods corresponding to the
quarterly periods for the calculation of the Commercial Paper Support Fee set
forth in Section 2.7 of the Letter of Credit Agreement. A statement containing
the issue date, Face Amount, maturity date, discount amount, net proceeds
amount, payee (if, in the case of a Certificated Note, it is not payable to
"bearer") and discount rate of each Commercial Paper Note shall be sent by
facsimile by you to the Bank on the date of the issuance of such Commercial
Paper Note.
2. PAYMENT OF THE COMMERCIAL PAPER NOTES
(a) You shall make a drawing request under the Letter of Credit (i) on
the maturity date of each Commercial Paper Note, not later than 11:00 A.M. New
York time, in an amount equal to the aggregate Face Amount of the Commercial
Paper Note or Commercial Paper Notes maturing on such maturity date, or (ii) as
soon as practicable upon receipt of a notice from the Bank (but in no event
later than one Business Day after receipt of such notice) stating
6
that an Event of Default has occurred and directing you to make a drawing for
deposit in the Special Account in an amount equal to the aggregate Face Amount
of all of the Outstanding Commercial Paper Notes. You shall in each case send to
the Bank a certificate drawn under and in compliance with the Letter of Credit,
and after you have sent such certificate and provided such certificate conforms
to the requirements of the Letter of Credit, you may charge the amount of such
drawing to the Bank's Account (a "Charge") notwithstanding that the Charge may
result in an overdraft pending transfer or deposit of funds as provided in the
immediately succeeding sentence hereof. Unless other arrangements satisfactory
to you have been made for making funds available to cover a Charge (any such
arrangements not to be inconsistent with the third sentence of Section 2(b)
hereof), the Bank agrees to transfer or deposit into the Bank's Account
immediately available funds in the amount of the Charge on the date of the
Charge. If no such other arrangements have been made and you do not receive such
funds on such date, you shall notify the Bank promptly thereafter. The Bank
shall be liable to you for the amount of each Charge, which shall be deemed to
be an extension of credit by you to the Bank, and the Company shall have no
liability to you therefor.
(b) You shall immediately deposit the proceeds of any drawing
(including but not limited to the proceeds of a Charge) made pursuant to Section
2(a) of this Agreement in the Special Account, and you shall pay each matured
Commercial Paper Note in immediately available funds and solely from such funds.
In the case of Book-Entry Notes, you shall pay each matured Book-Entry Note out
of funds held in the Special Account by transferring such funds to your account
with DTC. In the case of Certificated Notes, you shall pay each such matured
Certificated Note upon presentation and, should any Certificated Note not be
presented, maintain proceeds therefor in the Special Account. In no event shall
funds deposited in or credited to the Special Account be contingent upon or
drawn from amounts on deposit in any account maintained by the Company with the
Depositary or paid out of proceeds of Notes.
(c) After, but only after, you have received the proceeds of a drawing
(including but not limited to the proceeds of a Charge) on a maturity date or on
a date on which the Bank requests a drawing under the Letter of Credit as
provided in Section 2(a) of this Agreement and deposited such proceeds in the
Special Account pursuant to Section 3(b) of this Agreement, you shall (1)
transfer to the Bank's Account the amount of any immediately available funds
received by you from the Company with instructions from an Authorized Agent of
the Company to make such transfer, and (2) transfer from the General Account to
the Bank's Account the proceeds of Commercial Paper Notes issued on such date to
the extent required to reimburse the Bank for drawings under the Letter of
Credit (including but not limited to any Charge) and for Unreimbursed Drawings
and any interest owing thereon, and (3) transfer any remaining balance of the
General Account to the Bank's Account to the extent required to reimburse the
Bank for drawings
7
under the Letter of Credit (including but not limited to any Charge) and for
Unreimbursed Drawings and any interest owing thereon.
(d) Each Certificated Note shall be delivered to you prior to or at the
time of payment therefor. You shall cancel any Certificated Note paid by you and
send it to the Company, with a copy thereof to the Bank.
(e) You shall hold all funds received by you from purchasers in payment
for Commercial Paper Notes as a fiduciary for the benefit of the Bank, as
contemplated by Section 3(a), until such time as all drawings under the Letter
of Credit otherwise not reimbursed by the Company and any Unreimbursed Drawings
and any interest owing thereon have been received by the Bank. You shall pay all
such funds received by you in accordance with Section 2(c) and Section 3(a)
hereof.
(f) Nothing herein shall affect the obligation of the Company to
reimburse the Bank under the Credit Agreement.
3. GENERAL ACCOUNT, SPECIAL ACCOUNT AND BANK'S ACCOUNT.
(a) GENERAL ACCOUNT. You will establish and maintain a segregated
special purpose account for the benefit of the Bank designated "Mitsubishi Bank
General Account" (the "General Account"). You shall deposit in the General
Account all proceeds received from the sale of Commercial Paper Notes, and all
funds paid to you by the Company for deposit therein, and you shall apply such
funds as set forth in Section 2(c). All funds in the General Account shall be
held by you as fiduciary for the benefit of the Bank to the extent such funds
are required to reimburse the Bank as provided in Section 2(c) of this
Agreement. You shall have control of and the sole right of withdrawal from the
General Account.
On each day that any Commercial Paper Note matures, moneys in the
General Account shall be transferred to the Bank's Account in the manner and to
the extent provided in Section 2(c) of this Agreement. To the extent that any
moneys remain in the General Account on (i) any such day after the above
application or (ii) any other day on which proceeds from the sale of Commercial
Paper Notes are deposited in the General Account, then, except as contemplated
by the next sentence, such moneys shall be withdrawn and credited to the
Company's Ordinary Deposit Account with the Bank.
Upon receipt by you from an Authorized Bank Officer (which may be
telephone notice and, if so, shall be promptly confirmed by the Bank in writing)
of notice that an Event of Default, or an event that with the giving of notice
or the passing of time or both would become an Event of Default, has occurred
(including the failure of the Company to reimburse the Bank for a drawing under
the Letter of Credit), the Depositary shall not draw on the General Account
without the prior consent of the Bank.
8
(b) SPECIAL ACCOUNT. You will establish and maintain as fiduciary on
behalf of the owners of the Commercial Paper Notes a segregated special purpose
trust account designated "Hosokawa Micron International Commercial Paper
Owners/Mitsubishi Bank Special Account" (the "Special Account"). You shall
deposit in the Special Account only the proceeds of drawings under the Letter of
Credit (including proceeds of any Charge) as provided in Section 2 of this
Agreement. All funds from time to time on deposit in the Special Account shall
at all times be under your exclusive control and shall be held uninvested by you
as fiduciary for the benefit of the owners of the Commercial Paper Notes. Except
as provided in Section 4, the funds in the Special Account shall be subject to
withdrawal solely by you for the purpose of effecting payment of the Commercial
Paper Notes as provided in this Agreement until the Commercial Paper Notes have
been paid in full. The Company shall not have any legal, equitable or beneficial
interest in the Special Account. Funds will not be deposited to the Special
Account except as provided herein, and funds deposited therein will not be
commingled with any other funds.
(c) BANK'S ACCOUNT. You will establish and maintain for the benefit of
the Bank a segregated special purpose account designated "Mitsubishi Bank Letter
of Credit Account" (the "Bank's Account"), the funds in which shall be subject
to withdrawal solely by the Bank except as provided in Section 2(a) of this
Agreement. Funds will not be deposited to the Bank's Account except as provided
herein, and funds deposited therein will not be commingled with any other funds.
Before the close of business on each Business Day, the Depositary shall transfer
any funds in the Bank's Account to any other account of the Bank as designated
by the Bank. The Bank agrees to keep designated an account pursuant to the
preceding sentence at all times.
4. THE LETTER OF CREDIT.
Concurrently with the execution of this Agreement, subject to the terms
and conditions of the Credit Agreement, the Bank shall deliver to you the Letter
of Credit. The Letter of Credit shall identify you, acting as fiduciary on
behalf of the owners of Commercial Paper Notes, as the beneficiary thereof and
shall be issued for the account of the Company to assure payment of the
Commercial Paper Notes. Such Letter of Credit shall be irrevocable and shall be
issued in an amount equal to the Commitment under the Credit Agreement. You
shall hold the Letter of Credit in safekeeping for the benefit of the owners of
Commercial Paper Notes and from time to time shall make drawings under the
Letter of Credit on behalf of such owners pursuant to Section 2 of this
Agreement. Such drawings shall be made in accordance with the terms of the
Letter of Credit and this Agreement.
The amount of the Letter of Credit shall be reduced by an amount equal
to the proceeds of any drawings thereunder (but the amount by which the Letter
of Credit is reduced by such proceeds
9
shall be automatically reinstated as provided in Section 2.3(c) of the Credit
Agreement).
It is understood and agreed by the parties hereto that the provisions
of this Agreement relating to the Letter of Credit are intended to provide for
payment of the Commercial Paper Notes at their maturity. Accordingly, the
parties hereto specifically acknowledge that in actions taken by you as
beneficiary of the Letter of Credit you shall not be acting as an agent of the
Company but shall be acting as fiduciary on behalf of the owners of Commercial
Paper Notes.
If any Certificated Note shall not be presented to you for payment on
the maturity date thereof and sufficient collected funds are then on deposit in
the Special Account for payment thereof, you shall hold such funds until
presentation as fiduciary for the benefit of the owner of such Certificated
Note; PROVIDED, HOWEVER, that if any Certificated Note shall not be presented
for payment on or before the fifteenth day after its maturity date (or, if such
day is not a Business Day, on the next succeeding Business Day), such
Certificated Note shall not be entitled to payment from funds on deposit in the
Special Account, and any funds on deposit in the Special Account which were
drawn under the Letter of Credit with respect to such Certificated Note shall be
paid to the Bank. Notwithstanding the foregoing, the Company shall remain liable
to the owners of Commercial Paper Notes on account of all Commercial Paper Notes
in accordance with their terms. The Bank shall remit its own funds to the
Company in an amount equal to the amount received from the Special Account, less
the amount of any Unreimbursed Drawings under the Letter of Credit, any interest
thereon and any other amounts then due and owing to the Bank under the Credit
Agreement.
Promptly after the Expiration Date, you shall cancel and return the
Letter of Credit to the Bank.
If, two years after the termination of this Agreement, there remain any
funds in any of the accounts specified in Section 3 hereof, you may transfer any
such remaining funds to any other account of the Bank as designated by the Bank,
whereupon the Bank shall remit such funds to the Company except to the extent
there remains any Unreimbursed Drawing or interest thereon or other amounts
owing to the Bank under the Financing Documents.
5. EXPENSES; INDEMNIFICATION; LIMITATION OF LIABILITY.
The Company shall, on demand, pay or reimburse the Depositary for (a)
all fees payable in connection with, arising out of, or in any way related to
performance of this Agreement (such fees to be as mutually agreed upon between
the Company and you in a separate written agreement), and (b) all of the
Depositary's
10
reasonable out-of-pocket costs and expenses incurred (including reasonable fees
and expenses of counsel), and all payments made, and indemnify and hold the
Depositary harmless from and against all losses suffered, by the Depositary in
connection with, arising out of, or in any way related to (i) the negotiation,
preparation, execution and delivery of (A) this Agreement and the Commercial
Paper Notes and (B) whether or not executed, any waiver, amendment or consent
under or to this Agreement and the Commercial Paper Notes, (ii) protecting,
preserving, exercising or enforcing any of the rights of the Depositary under or
related to this Agreement or the Commercial Paper Notes, (iii) any governmental
investigation arising out of, related to, or in any way connected with, this
Agreement, the Commercial Paper Notes or the relationship established hereunder,
or (iv) any action taken or omitted in good faith within the scope of this
Agreement upon telephone instructions, if authorized herein, received from or
believed by you in good faith to have been given by an Authorized Agent of the
Company, or an Authorized Bank Officer, except that the foregoing indemnity
shall not be applicable to any loss suffered by the Depositary to the extent
such loss is the result of acts or omissions on the part of the Depositary
constituting (x) gross negligence, (y) willful misconduct, or (z) knowing
violations of law. The Bank shall have no responsibility or liability for the
payment of any such fees, costs or expenses. The obligations of the Company
hereunder shall survive your resignation or removal or the termination of this
Agreement and the payment in full of all Commercial Paper Notes.
6. NOTICES.
Except where instructions or notices are authorized herein to be given
by telephone, all instructions, notices and other communications to be given to
any party hereto or to DTC in connection herewith shall be in writing and shall
be personally delivered, or sent by certified, registered or express mail,
postage prepaid, or by telecopier, and shall be deemed to be given for purposes
of this Agreement on the day when sent or transmitted (except, if given by
certified or registered mail, they shall be deemed given on the seventh day
after the day on which mailed) to the intended party at its address or telex or
telecopier number set forth below its signature hereto (or as such party may
have otherwise specified to the other parties in writing) and, in the case of
DTC, to DTC at its address or telex or telecopier number that is specified in
the Certificate Agreement. Whenever the giving of notice by telephone is
permitted by this Agreement and unless otherwise provided herein, such notice
shall be confirmed in writing within two (2) Business Days.
7. MISCELLANEOUS PROVISIONS.
The Company hereby warrants and represents to you, which shall be a
continuing warranty and representation, that this Agreement is, and all
Commercial Paper Notes delivered to you as
11
Depositary pursuant to this Agreement will be, duly authorized, executed and
delivered by the Company, and your appointment as Depositary and issuing and
paying agent for the Commercial Paper Notes and as drawing agent and depositary
for the Letter of Credit under this Agreement is duly authorized in accordance
with and by a resolution duly adopted by the Board of Directors of the Company
and in full force and effect.
It is understood that you may resign or the Company may terminate this
Agreement and the authority granted herein at any time upon at least sixty (60)
days' written notice of resignation or termination, as the case may be, such
notice to be given to the Bank, the Dealer and DTC and to you or the Company (as
relevant). In such event, (i) you shall return to the Company all undelivered
Certificated Notes held by you at the time of such notice; (ii) prior to the
termination of or effectiveness of your resignation from your obligations
hereunder, the Company shall have appointed a successor Depositary after
obtaining the written approval of the Bank, and such successor, upon accepting
such appointment hereunder, shall establish a new General Account, Special
Account and Bank's Account for purposes of this Agreement and the Credit
Agreement; and (iii) you shall transfer to the successor Depositary for deposit
in the new General Account, the Special Account and the Bank's Account
established by the successor Depositary all funds, if any, on deposit in, or
otherwise to the credit of, the General Account, the Special Account and the
Bank's Account maintained by you, in excess of that amount necessary to pay in
full the Face Amount of Commercial Paper Notes Outstanding. Any successor
Depositary shall have a participant relationship with DTC at the time that the
successor Depositary is appointed if Commercial Paper Notes are then being
issued through the DTC Book-Entry System. All Commercial Paper Notes validly
authenticated and delivered by you as Depositary pursuant hereto prior to the
termination of this Agreement, and the authority granted to and obligations
assumed by you hereunder with respect to the payment of such Commercial Paper
Notes, shall be valid obligations notwithstanding such termination, and this
Agreement shall remain in full force and effect with respect to such Commercial
Paper Notes until the same have been paid in full.
This Agreement may be supplemented, modified or amended if such
supplement, modification or amendment is in writing and signed by each of the
parties hereto. No supplement, modification or amendment shall adversely affect
the rights of owners of Commercial Paper Notes outstanding at that time.
In acting with respect to the Letter of Credit, and generally in acting
under this Agreement, you will be required by the Company and the Bank to
perform only such duties as are specifically set forth in (i) this Agreement,
(ii) the Letter of Credit itself, and (iii) applicable law as in effect from
time to time. You shall not be liable to the Company or the Bank except for
gross negligence or willful misconduct in the performance of
12
said duties and obligations. You undertake to perform such duties and only such
duties as are specifically set forth in this Agreement and you shall have no
fiduciary duties to the owners of Commercial Paper Notes other than as
specifically set forth in this Agreement. No implied covenants or obligations
shall be read into this Agreement against you.
Except as otherwise provided in Sections 3 and 4 of this Agreement, you
may execute any of the powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, provided that your liabilities or
obligations hereunder shall not be reduced by reason thereof.
You, in your individual or any other capacity, may become the owner or
pledgee of Commercial Paper Notes or a participant in the credit provided under
the Credit Agreement with the same rights you would have if you were not acting
hereunder.
Until used or applied as herein provided, all monies received by you
hereunder shall be held for the purposes for which they were received, but need
not be segregated from other funds except to the extent provided herein or
required by law. You shall be under no liability for interest on any monies
received by you hereunder except such as you may agree with the Company to pay
thereon.
Except as otherwise expressly provided herein, whenever, in the
administration of this Agreement, you shall deem it necessary that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate of an Authorized Agent of the Company or an Authorized Bank
Officer, and such certificate shall be full warranty to you for any action
reasonably taken, suffered or omitted under the provisions of this Agreement
upon the faith thereof. You may consult with and rely upon the advice of legal
counsel.
Any corporation into which you may be merged or with which you may be
consolidated, or any corporation resulting from any merger or consolidation to
which you shall be a party, or any corporation succeeding to your business,
shall succeed to all your rights, obligations and immunities hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
This Agreement shall in all respects be governed by and construed in
accordance with the laws of New York without regard to principles of conflicts
of law.
You hereby covenant and agree that prior to the date which is
ninety-one (91) days after the payment in full of the latest
13
maturing Commercial Paper Note, you will not, in your capacity as Depositary
hereunder, institute against, or join any person in instituting against, the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
Subject to the next succeeding sentence, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. No party hereto may assign any of its rights or
obligations hereunder except with the prior written consent of all parties
hereto (including the Bank).
Any provision of this Agreement which is prohibited, unenforceable or
not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions of this
Agreement or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
This Agreement may be executed in any number of counterparts and by
different parties hereto and separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
14
If the foregoing correctly and fully sets forth our agreement with
respect to the matters to which it pertains, please sign and return to us the
enclosed copies of this letter.
Very truly yours,
HOSOKAWA MICRON INTERNATIONAL INC.
By: /s/ Xxxx Xxxx
--------------------------------------
Name: Xxxx Xxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _____________________
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Accepted and approved as of
December 16, 1991
THE BANK OF TOKYO TRUST COMPANY
By: /s/
-------------------------------
Name:
Title:
Address:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
15
The foregoing Agreement is hereby accepted by the undersigned.
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By: /s/
--------------------------------------
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx
Two World Financial Center
New York, New York 10281
Attention: Business Development
Department Letter of
Credit No. HK0750
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
16
EXHIBIT A TO THE DEPOSITARY AGREEMENT
COMMERCIAL PAPER MASTER NOTE
HOSOKAWA MICRON INTERNATIONAL INC.
December 16, 1991
HOSOKAWA MICRON INTERNATIONAL INC. (the "Company"), a corporation organized and
existing under the laws of the State of Delaware, for value received, hereby
promises to pay to Cede & Co. or registered assigns on the maturity date of each
obligation identified on the records of the Company, which records are reflected
on a schedule attached hereto and made a part hereof and are maintained by The
Bank of Tokyo Trust Company (the "Depositary"), the principal amount for each
such obligation. Payment shall be made by wire transfer to the registered owner
from the Depositary without the necessity of presentation and surrender of this
Master Note.
This Master Note has been issued in accordance with a Letter of Credit Agreement
dated as of December 16, 1991, as from time to time amended, between the Company
and The Mitsubishi Bank, Limited, New York Branch (the "Bank"), and is entitled
to the benefit of an Irrevocable Letter of Credit (the "Letter of Credit")
issued by the Bank pursuant to said Letter of Credit Agreement, provided that
payment is requested from the Depositary not later than 5:00 p.m., New York
time, on the fifteenth day after the maturity date of each obligation (or, if
such fifteenth day is not a Business day, on the next succeeding Business Day).
As used herein, the term "Business Day" means any day other than a Saturday or
Sunday or a day on which banks are authorized or required by law to close in New
York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS
OF THIS MASTER NOTE SET FORTH ON THE NEXT PAGE HEREOF.
This Master Note is a valid and binding obligation of the Company.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
--------------------------------
(Authorized Officer's Signature)
At the request of the registered owner, the Company shall promptly issue and
deliver one or more separate note certificates evidencing each obligation
evidenced by this Master Note. As of the date any such note certificate or
certificates are issued, the obligations are evidenced thereby shall no longer
be evidenced by this Master Note.
1
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(Name, Address and Taxpayer Identification Number of Assignee)
the Master Note and all rights hereunder, hereby irrevocably constituting and
appointing ______________________ Attorney to transfer said Master Note on the
books of the Company with full power of substitution in the premises.
Dated: --------------------------------------
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature of this
assignment must correspond with the
names as written upon the face of this
Master Note, in every particular,
without alteration or enlargement or
any change whatsoever.
--------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
2
Schedule to
Commercial Paper Master Note
dated December 16, 1991 of Hosokawa Micron International Inc.
Date of Face Amount of CUSIP Maturity Date Amount Notation
Issue Discount Note Number Date Paid Paid Made by
----- ------------- ----------- ---- ---- -------
3
EXHIBIT B TO THE DEPOSITARY AGREEMENT
PROMISSORY NOTE
HOSOKAWA MICRON INTERNATIONAL INC.
_____________, 00__ XXX XXXX, XXX XXXX
Xx ________________, 19__, for value received, HOSOKAWA MICRON
INTERNATIONAL INC. (the "Company") promises to pay to the order of BEARER
the sum of
dollars
payable at the office of The Bank of Tokyo Trust Company, Corporate Trust
Department, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Depositary"). Payment
in respect of this Note shall be made by 5:00 P.M. New York time on any Business
Day, provided that this Note is presented for payment not later than 2:00 P.M.
New York time on such Business Day. If this Note is presented for payment later
than 2:00 P.M. New York time on any Business Day, payment in respect of this
Note shall be made on the next succeeding Business Day.
This Note is entitled to the benefit of an irrevocable letter of credit
(the "Letter of Credit") issued to the Depositary for the benefit of the owner
hereof by The Mitsubishi Bank, Limited, New York Branch (the "Bank"), pursuant
to a certain Letter of Credit Agreement dated as of December [___], 1991 (the
"Credit Agreement") between the Company and the Bank, provided that the
Depositary makes a demand for payment under the Letter of Credit, and that this
Note is presented to the Depositary for payment, not later than 5:00 P.M. New
York time on the fifteenth day after the above-stated maturity date (or, if such
day is not a Business Day, not later than 5:00 P.M. New York time on the next
succeeding Business Day). As used herein, "Business Day" means a day other than
a Saturday or a Sunday or other day on which commercial banks are authorized or
required to close in New York City.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York.
Reference is made to the Credit Agreement and related documents which,
as from time to time amended, are on file with the Depositary at its aforesaid
office for a statement of the terms upon which the Letter of Credit has been
issued and the procedure
1
and conditions governing drawings and the liability of the Bank thereunder.
HOSOKAWA MICRON INTERNATIONAL INC.
By:
-------------------------------
Name:
Title:
COUNTERSIGNED FOR AUTHENTICATION ONLY BY
THE BANK OF TOKYO TRUST COMPANY AS DEPOSITARY
By:
------------------------------------
Name:
Title:
THIS NOTE IS NOT VALID FOR ANY PURPOSE UNLESS COUNTERSIGNED BY THE BANK OF TOKYO
TRUST COMPANY, AS DEPOSITARY.
2
