Exhibit 10.16
CREDITANSTALT-BANKVEREIN
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June 3, 1997
Physio-Control International Corporation
Physio-Control Corporation
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RELEASE AGREEMENT
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Gentlemen:
Physio-Control International Corporation, a Delaware corporation
("Parent"), and Physio-Control corporation, a Delaware corporation
("Borrower"), have entered into financing arrangements with
Creditanstalt-Bankverein, a bank organized under the laws of the Republic of
Austria ("Creditanstalt"), as set forth in the Amended and Restated Credit
Agreement dated as of December 15, 1995 (as the same has been amended and
supplemented, the "Loan Agreement"), between the borrower and Creditanstalt,
and the other Loan Documents (as defined in the Loan Agreement) (all of the
foregoing, together with the Loan Agreement, collectively, the "Existing
Agreements") pursuant to which Creditanstalt has made loans and advances to
Borrower (the "Loans") and Creditanstalt has issued the letters of credit
listed on EXHIBIT A hereto for the account of borrower (collectively, the
"Creditanstalt Letters of Credit").
1. RELEASES.
(a) Subject to the terms and conditions contained herein
(including but not limited to Section 5), Creditanstalt hereby releases,
discharges and acquits each of Parent and Borrower from any and all
liabilities and obligations they may have to Creditanstalt arising out of the
Existing Agreements. Anything to the contrary in this Agreement
notwithstanding, any provision of any Existing Agreement that by the terms of
the Existing Agreements survives the termination thereof shall not be
affected by this Agreement.
(b) Creditanstalt hereby terminates and releases any and all
security interests in, liens and mortgages upon, and pledges of, all
properties and assets of Borrower, its subsidiaries and Parent (whether
personal, real or mixed, tangible or intangible) heretofore granted, pledged,
assigned to,
or otherwise claimed by, Creditanstalt, pursuant to the Loan
Agreement and the other Existing Agreements.
(c) Subject to the terms and conditions contained herein,
each of Borrower and Parent, for and in consideration of the release above,
hereby releases, discharges and acquits Creditanstalt and its successors and
assigns from all liabilities and obligations to Borrower and Parent and their
respective successors and assigns arising out of the Existing Agreements.
2. INDEMNIFICATION FOR RETURNED ITEMS.
Notwithstanding anything to the contrary contained in Section
1 above, Borrower agrees to indemnify Creditanstalt from and hold
Creditanstalt harmless against all loss, cost, damage or expense which
Creditanstalt may suffer or incur as a result of any non-payment, claim,
refund or dishonor of any checks or other items which have been credited by
Creditanstalt to the account of Borrower in calculating the amount payable to
Creditanstalt on the date hereof pursuant to Section 5(c) of this Agreement,
together with any reasonable expenses or other reasonable and customary
charges incident thereto.
3. DELIVERIES BY CREDITANSTALT.
Creditanstalt agrees to deliver to Borrower, at the expense of
Borrower, following the effectiveness hereof, the originals of:
(a) the promissory note or notes, if any, previously executed
and delivered to Creditanstalt by Borrower duly marked "paid in full";
(b) Uniform Commercial Code releases and/or terminations in
form acceptable for recording covering financing statements which have been
filed by Creditanstalt against Borrower or Parent;
(c) trademark and patent releases or reassignments,
reassigning, without representations and warranties, to Borrower and/or
releasing the security interest of Creditanstalt in all trademarks, patents
and related assets heretofore assigned by Borrower to Creditanstalt pursuant
to the Existing Agreements;
(d) discharges or satisfactions of any mortgages or deeds of
trust or similar real property instruments previously executed and delivered
by Borrower or Parent in favor of Creditanstalt in form acceptable for
recording; and
(e) any stock certificates and executed stock powers related
thereto previously delivered to Creditanstalt by Borrower or Parent.
4. TERMINATION OF LOCKBOXES. Creditanstalt agrees to send
written notification, upon request and at the expense of Borrower, to any
bank or institution with which Creditanstalt has blocked accounts, lockbox
accounts or other arrangements for the receipt or transfer to Creditanstalt
of remittances or proceeds from customers of Borrower, to the effect that all
such arrangements with Creditanstalt are terminated, and to the extent any
such arrangements are in effect with Creditanstalt, such arrangements are
hereby terminated.
5. CONDITIONS PRECEDENT. The effectiveness of this Agreement,
and of any termination statements or other similar release instruments
delivered by Creditanstalt hereunder, are subject to and conditioned upon the
receipt by Creditanstalt of:
(a) an original of this Agreement, duly executed by the
parties hereto;
(b) the original of each Letter of Credit, marked 'CANCELED';
and
(c) payment, in immediately available funds, of
$22,414,500.16 not later than 2:00 p.m. New York City time on June 4, 1997
plus $4,385.00 per day for each additional day thereafter that such payment
has not been made prior to such time.
6. FURTHER ASSURANCES. Creditanstalt further agrees to furnish,
at Borrower's expense, additional releases and/or termination statements and
such other and further documents, instruments and agreements as may be
reasonably requested by Borrower, in order to effect and evidence more fully
the matters covered hereby.
7. COSTS AND EXPENSES. Borrower and Parent agree to pay all
costs and expenses, including without limitation, reasonable attorneys fees,
in connection with the preparation, execution, delivery, filing, recording
and administration of this Release Agreement and the performance of any other
acts required to effect the release of any security granted to the
undersigned under the Existing Agreements. In addition, Parent and Borrower
agree to pay any and all stamp and other taxes and fees payable or determined
to be payable in connection with the execution and delivery, filing or
recording of this Release Agreement and the other instruments and documents
to be delivered hereunder, and agree to save the undersigned harmless from
and against any and all liabilities with respect to or resulting from any
delay in paying or omitting to pay such taxes or fees.
8. GOVERNING LAW. This Agreement shall be construed in
accordance with and be governed by the laws of the State of
New York (without giving effect to the conflict of law principles thereof).
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original hereof and
submissible into evidence and all of which together shall be deemed to be a
single instrument.
Very truly yours,
CREDITANSTALT-BANKVEREIN
By: _________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: _________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Asst. V. President
ACKNOWLEDGED AND AGREED:
PHYSIO-CONTROL INTERNATIONAL CORPORATION
By: _________________________ By: __________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Title: Executive Vice
Executive Officer President/Chief
Financial Officer
EXHIBIT A
CREDITANSTALT LETTERS OF CREDIT
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Irrevocable Standby Letter of Credit No. 10099
Face Amount: $500,000.00