Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 11 51K
2: EX-1 Underwriting Agreement 7 29K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 7 28K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 7 30K
5: EX-4 Instrument Defining the Rights of Security Holders 138 521K
6: EX-5 Opinion re: Legality 30 97K
7: EX-6 Opinion re: Discount on Capital Shares 5 21K
8: EX-7 Opinion re: Liquidation Preference 4 18K
9: EX-23.A Consent of Experts or Counsel 1 8K
10: EX-23.B Consent of Experts or Counsel 1 8K
11: EX-99 Miscellaneous Exhibit 42 213K
EX-7 — Opinion re: Liquidation Preference
| EX-7 | 1st Page of 4 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 5(d)
MASTER LETTER OF CREDIT DEMAND NOTE
$5,000,000 October 25, 1995
For value received, the undersigned, INSITUFORM TECHNOLOGIES,
INC., a Delaware corporation (the "Borrower") promises to pay on
demand of Lender (or otherwise on the Maturity Date, as set forth
below, whichever is earlier), to the order of SUNTRUST BANK,
NASHVILLE, NATIONAL ASSOCIATION, a national banking association
(the "Lender") at its principal office in Nashville, Tennessee, or
at such other place as Lender may designate in writing, the
principal sum of up to Five Million Dollars ($5,000,000) in lawful
money of the United States of America, or, if less, so much thereof
as may be from time to time deemed advanced by Lender to the
Borrower hereunder by reason of any draws under any Letters of
Credit issued by Lender for the account of Borrower and/or a
Subsidiary of Borrower, together with interest from the date hereof
on the unpaid principal balance outstanding from time to time
hereon computed from the date of any draw(s) under any such
Letter(s) of Credit at a varying rate of interest equal to the base
rate of interest from time to time charged by SunTrust Bank,
Nashville, National Association. Interest for each year shall be
computed based upon a 360-day year of actual days elapsed. The
"base rate of interest" is defined as that rate of interest
established from time to time and announced by SunTrust Bank,
Nashville, National Association as its "base rate," such rate being
an interest rate used as an index for establishing interest rates
on loans. The rate of interest provided herein shall be determined
daily to reflect changes in the base rate of interest charged by
SunTrust Bank, Nashville, National Association as such base rate of
interest may change from time to time.
This Note is issued pursuant to, and is the Master Letter of
Credit Demand Note referred to in, that certain Credit Agreement of
even date herewith by and between Borrower, Lender, the other
lenders set forth on the signature pages thereof and SunTrust Bank,
Nashville, National Association, as Agent (as it may be amended,
restated and/or modified from time to time, the "Credit
Agreement"). Any term not otherwise defined in this Note shall have
the same meaning as in the Credit Agreement. Reference is made to
the Credit Agreement, which, among other things, provides for the
automatic maturity hereof upon the occurrence of certain events in
certain circumstances and upon certain terms and conditions.
Borrower's failure to pay this Note prior to the Maturity Date (as
hereinafter defined) shall not be considered a default hereunder if
full payment of this Note is made by Borrower on the Maturity Date.
This Note shall be repaid as follows: On the date that is the
earliest of (a) the date any draw is made under a Letter of Credit,
if the Revolving Credit Loan Commitments are still in effect and
have not been terminated, or (b) three Business Days after demand
by Lender for repayment under this Note, or (c) the date Borrower
files any petition in bankruptcy, or (d) three Business Days after
Borrower has had filed against it any petition in bankruptcy, or
(e) three Business Days after any other date on which Lender is for
any reason precluded under law from making demand on Borrower under
this Note, or (f) the Revolving Credit Termination Date (the
earliest of such dates being referred to herein as the "Maturity
Date"), the entire principal amount outstanding hereunder, together
with all accrued interest and any fees or other charges hereunder,
shall be immediately due and payable. Borrower acknowledges that
payment by Lender of any amount(s) under any Letter of Credit shall
constitute an advance to Borrower under this Note. This Note shall
be repaid by an advance under the Revolving Credit Loan Commitments
made on the date of any draw under any Letter of Credit so long as
such Revolving Credit Loans have not been terminated.
This Note evidences amounts due to Lender in connection with
draws under Letters of Credit issued from time to time by Lender
for the account of Borrower or any Subsidiary of Borrower. Borrower
is personally and jointly and severally liable with any such
Subsidiary for any such Letter of Credit issued by Lender. There
may be times when no indebtedness is owing hereunder.
Notwithstanding such occurrence, this Note shall remain valid and
in full force and effect as to each advance deemed made hereunder
due to draws under any Letters of Credit.
All parties now or hereafter liable with respect to this Note,
whether the Borrower or any guarantor, endorser or any other person
or entity, hereby waive presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest. No delay or
omission on the part of the Lender, or any holder hereof, in
exercising its rights under this Note shall operate as a waiver of
such rights or any other right of the Lender or of any holder
hereof of any such right or rights on any occasion be deemed a bar
to, or waiver of, the same right or rights on any future occasion.
Lender may, but shall not be required to, apply to the payment
of any advance hereunder, on or after the maturity of such advance,
any funds or credit held by Lender on deposit for the account of
Borrower or any other party liable hereon.
Following the earliest of (a) the date of any draw under any
Letter of Credit if the Revolving Credit Loan Commitments are still
in effect and have not been prepaid in whole and terminated, or (b)
three Business Days after demand by Lender for repayment hereunder,
or (c) the occurrence of any Event of Default under the Loan
Agreement (any such event being a default hereunder), then at the
option of Lender or automatically in the case of Events of Default
under Section 8.01(h) or (i) of the Credit Agreement, all unpaid
amounts advanced hereunder and interest thereon may be accelerated
and become due in accordance with the Credit Agreement regardless
of the due date of any advance made hereunder. Lender may waive any
default before or after the same has been declared and restore this
Note to full force and effect without impairing any of Lender's
rights hereunder, such right of waiver being a continuing one.
Borrower shall have no right to assign any rights or
obligations under this Note without the written consent of Lender.
Following the earlier to occur of (a) three Business Days
after demand is made hereunder, or (b) the occurrence of an Event
of Default, principal and unpaid interest bear interest at the rate
that is the lesser of (a) the maximum lawful rate of interest
permitted by law, or (b) four percentage points (4%) above the Base
Rate, until paid. The undersigned will pay all costs and expenses
in connection with the collection, enforcement, protection and/or
litigation with regard to this Note and/or any of Lender's rights
hereunder, including without limitation reasonable attorneys' fees.
The makers, endorsers, guarantors and all parties to this Note
and all who may become liable for same, jointly and severally waive
presentment for payment, protest, notice of protest, notice of
nonpayment of this Note, demand and all legal diligence in
enforcing collection, and hereby expressly agree that the lawful
owner or holder of this Note may defer or postpone collection of
the whole or any part thereof, either principal and/or interest, or
may extend or renew the whole or any part thereof, either principal
and/or interest, or may accept additional collateral or security
for the payment of this Note, or may release the whole or any part
of any collateral security and/or liens given to secure the payment
of this Note, or may release from liability on account of this Note
any one or more of the makers, endorsers, guarantors and/or other
parties thereto, all without notice to them or any of them; and
such deferment, postponement, renewal, extension, acceptance of
additional collateral or security and/or release shall not in any
way affect or change the obligation of any such maker, endorser,
guarantor or other party to this Note, or of any who may become
liable for the payment thereof.
Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid after the due
date thereof (provided that in no event shall said "late charge"
result in the payment of interest in excess of the maximum lawful
rate of interest permitted by applicable law), to cover the extra
expenses involved in handling delinquent payments.
The term "maximum lawful rate of interest" as used herein
shall mean a rate of interest equal to the higher or greater of the
following: (a) the "applicable formula rate" defined in Tennessee
Code Annotated Section 47-14-102(2), or (b) such other rate of
interest as may be charged under other applicable laws or
regulations.
This Note has been executed and delivered in, and shall be
governed by and construed according to the laws of the State of
Tennessee except to the extent pre-empted by applicable laws of the
United States of America.
This Note may not be changed or terminated without the prior
written approval of Lender and Borrower. No waiver of any term or
provision hereof shall be valid unless in writing signed by the
holder.
IN WITNESS WHEREOF, the duly authorized officer of the
Borrower, being an authorized signatory, has executed this Note as
of the day and date first set forth above.
INSITUFORM TECHNOLOGIES, INC.
By: s/William A. Martin
--------------------------------
Title: Senior Vice President
-----------------------------
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 11/1/95 |
| For Period End: | | 10/25/95 | | 1 | | | | | 10-C |
| List all Filings |
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