EXHIBIT 10.3
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Revolving Credit Agreement
(Multi-Year Facility)
Dated as of December 5, 1997
among
Xxxxxx Network Systems, Inc.
to be renamed
Xxxxxx Electronics Corporation
The Banks named herein
and
Bank Of America National Trust
and Savings Association
as Administrative Agent
Xxxxxx Guaranty Trust Company of New York
as Syndication Agent
Citicorp USA, Inc. and
The Chase Manhattan Bank
as Documentation Agents
Arranged by
BancAmerica Xxxxxxxxx Xxxxxxxx
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS......................................................................................... 1
1.1 DEFINITIONS........................................................................................... 1
SECTION 2 THE CREDIT.......................................................................................... 8
2.1 THE COMMITMENTS....................................................................................... 8
2.2 THE LOANS............................................................................................. 9
2.3 REQUESTS FOR BASE RATE AND EURODOLLAR LOANS........................................................... 9
2.4 REQUESTS FOR BID RATE LOANS........................................................................... 9
2.5 INTEREST AND PRINCIPAL ON BASE RATE LOANS............................................................. 10
2.6 INTEREST AND PRINCIPAL ON EURODOLLAR LOANS............................................................ 11
2.7 INTEREST AND PRINCIPAL ON BID RATE LOANS.............................................................. 11
2.8 LOAN ACCOUNTS......................................................................................... 11
2.9 MASTER BID RATE NOTES................................................................................. 11
2.10 CONVERSION OF LOANS BETWEEN EURODOLLAR LOANS AND BASE RATE LOANS AND CONVERSION OF
INTEREST PERIODS OF EURODOLLAR LOANS.................................................................. 12
2.11 DISBURSEMENTS AND PAYMENTS............................................................................ 12
2.12 FACILITY FEE.......................................................................................... 13
SECTION 3 PAYMENT OF COSTS AND REDUCTION OF THE COMMITMENT.................................................... 14
3.1 INDEMNIFICATION UPON FAILURE TO PAY EURODOLLAR LOAN OR BID RATE LOAN.................................. 14
3.2 INCREASED COSTS....................................................................................... 14
3.3 TAXES................................................................................................. 15
3.4 PREPAYMENT............................................................................................ 16
3.5 PRO RATA REDUCTION OF COMMITMENTS BY BORROWER......................................................... 16
3.6 REDUCTION OF ONE BANK'S COMMITMENT BY BORROWER........................................................ 16
3.7 NOTICE OF REDUCTIONS.................................................................................. 17
3.8 DESIGNATION OF REPLACEMENT BANK....................................................................... 17
3.9 EFFECT OF REDUCTION OF COMMITMENT..................................................................... 17
3.10 ACCRUED FEES.......................................................................................... 17
3.12 SURVIVAL.............................................................................................. 17
SECTION 4 CHANGE IN CIRCUMSTANCES AFFECTING LOANS............................................................. 17
4.1 INABILITY TO DETERMINE EURODOLLAR RATE................................................................ 18
4.2 ILLEGALITY............................................................................................ 18
SECTION 5 CONDITIONS PRECEDENT................................................................................ 19
5.1 INITIAL CONDITIONS PRECEDENT.......................................................................... 19
5.2 CONDITIONS PRECEDENT TO LOANS......................................................................... 19
5.2 CONDITIONS PRECEDENT TO LOANS......................................................................... 20
SECTION 6 REPRESENTATIONS AND WARRANTIES...................................................................... 20
6.1 AUTHORITY OF BORROWER................................................................................. 20
6.2 BINDING OBLIGATIONS................................................................................... 20
6.3 INCORPORATION OF RESTRICTED SUBSIDIARIES.............................................................. 21
6.4 NO CONTRAVENTION...................................................................................... 21
6.5 NOTICES............................................................................................... 21
6.6 FINANCIAL STATEMENTS.................................................................................. 21
6.7 ERISA................................................................................................. 21
6.8 REGULATION U.......................................................................................... 21
6.9 TAXES................................................................................................. 22
6.10 INSURANCE............................................................................................. 22
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6.11 LIENS................................................................................................. 22
SECTION 7 AFFIRMATIVE COVENANTS OF BORROWER................................................................... 22
7.1 USE OF PROCEEDS OF LOANS.............................................................................. 22
7.2 MANAGEMENT OF BUSINESS................................................................................ 22
7.3 NOTICE OF CERTAIN EVENTS.............................................................................. 22
7.4 RECORDS............................................................................................... 23
7.5 INFORMATION FURNISHED................................................................................. 23
7.6 EXECUTION OF OTHER DOCUMENTS.......................................................................... 24
7.7 ERISA................................................................................................. 24
7.8 ADMINISTRATIVE AGENT'S FEES........................................................................... 24
7.9 COMPLIANCE WITH LAW................................................................................... 24
SECTION 8 NEGATIVE COVENANTS OF BORROWER...................................................................... 24
8.1 LIENS................................................................................................. 24
8.2 MERGERS, LIQUIDATIONS AND SALES OF ASSETS............................................................. 26
8.3 DEFAULTS.............................................................................................. 26
8.4 COMPLIANCE WITH REGULATIONS........................................................................... 27
SECTION 9 EVENTS OF DEFAULT................................................................................... 27
9.1 EVENTS OF DEFAULT..................................................................................... 27
9.3 RECOVERY OF AMOUNTS DUE............................................................................... 30
9.4 RIGHTS CUMULATIVE..................................................................................... 30
SECTION 10 THE BANKS.......................................................................................... 30
10.1 ADMINISTRATION OF LOAN................................................................................ 30
10.2 REPRESENTATIONS BY BANKS.............................................................................. 31
SECTION 11 MISCELLANEOUS PROVISIONS........................................................................... 31
11.1 AMENDMENTS AND WAIVERS................................................................................ 31
11.2 NOTICES............................................................................................... 31
11.3 WAIVER................................................................................................ 32
11.4 CALIFORNIA LAW........................................................................................ 32
11.5 HEADINGS.............................................................................................. 32
11.6 ACCOUNTING TERMS...................................................................................... 32
11.7 COUNTERPARTS.......................................................................................... 32
11.8 WRITTEN DISCLOSURE.................................................................................... 32
11.9 SINGULAR; PLURAL...................................................................................... 32
11.10 ILLEGALITY............................................................................................ 33
11.11 ASSIGNMENTS........................................................................................... 33
11.12 OBLIGATIONS SEVERAL................................................................................... 33
11.13 PARTICIPATIONS........................................................................................ 33
11.14 FEES AND EXPENSES..................................................................................... 34
11.15 INDEMNITY............................................................................................. 35
11.16 CONFIDENTIALITY....................................................................................... 35
EXHIBITS
A-1 Form of Loan Request
A-2 Form of Loan Request - Bid Rate Loans
B Master Bid Rate Loan Note
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C Relations Among the Banks and Agents
D Addresses and Lending Offices of Banks
E Existing Liens
F Form of Opinion of General Counsel
SCHEDULE
1 Name of Banks and Commitments
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REVOLVING CREDIT AGREEMENT
(MULTI-YEAR FACILITY)
THIS REVOLVING CREDIT AGREEMENT (MULTI-YEAR FACILITY) ("Agreement") is
entered into as of December 5, 1997 (the "Signing Date") among XXXXXX NETWORK
SYSTEMS, INC. (to be renamed XXXXXX ELECTRONICS CORPORATION upon completion of
the Reorganization), a corporation organized and existing under the laws of
Delaware ("Borrower"), the banks named herein (collectively, together with any
other lenders that become parties hereto pursuant to Section 3.8 or 11.11, the
"Banks" and individually a "Bank"), Bank of America National Trust and Savings
Association, as administrative agent for the Banks (in such capacity
"Administrative Agent"), Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent (in such capacity "Syndication Agent"), and Citicorp USA, Inc.
and The Chase Manhattan Bank as Documentation Agents (in such capacity
"Documentation Agents").
SECTION 1
DEFINITIONS
1.1 Definitions.
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"Applicable Amount" means, for the facility fee and Eurodollar Loans, the
amount (expressed in basis points per annum) set forth in the chart below
opposite the Applicable Level then in effect:
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Applicable Amount
(in basis points per annum)
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Applicable Debt Ratings
Level Eurodollar Rate Facility Fee
+
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1 more than or 12.5 6.0
equal to A+/A1
2 A/A2 13.5 6.5
3 A-/A3 15.5 7.0
4 BBB+/Baa1 19.0 8.5
5 BBB/Baa2 21.5 11.0
6 BBB-/Baa3 30.0 15.0
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"Applicable Level" means the level set forth opposite the Debt Ratings then
in effect. Any change in the Applicable Level shall become effective upon any
public announcement of any change in any Debt Rating that requires a change in
the Level in accordance with the above chart.
"Approved Bank Affiliate" means a Person that is a subsidiary of a Bank or
of a Person of which a Bank is a subsidiary, and which is either engaged
primarily in the business of commercial banking or, if not so engaged, which has
been approved by the Borrower and Administrative Agent (provided that Borrower's
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consent shall not be unreasonably withheld).
"Arranger" means BancAmerica Xxxxxxxxx Xxxxxxxx.
"Authorized Designee" means the chief executive officer, the vice chairman,
the chief financial officer, treasurer or the assistant treasurer of Borrower,
or any other officer of Borrower specified as being an Authorized Designee in
the certificate delivered pursuant to Section 5.2(c).
"Availability Period" means the period commencing on the Effective Date and
ending on the Termination Date.
"Bank of America" means Bank of America National Trust and Savings
Association in its capacity as a Bank.
"Base Rate" means the higher of: (a) the rate of interest publicly
announced from time to time by Bank of America in San Francisco, California, as
its "reference rate," which is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate; and (b) one-
half percent per annum above the Federal Funds Rate. Any change in the
reference rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan bearing interest based on the Base Rate
calculated pursuant to Section 2.5.
"Bid Rate" means an interest rate offered by a Bank in its sole discretion
and in response to the Borrower's Loan Request for a Bid Rate Loan pursuant to
Section 2.4, which interest rate shall include all applicable reserve and other
adjustments when being advised by such Bank to Administrative Agent.
"Bid Rate Loan" means a Loan bearing interest at a Bid Rate.
"Borrowing Date" means a date on which funds are advanced to Borrower by
one or more Banks pursuant to a Loan Request.
"Business Day" means a day other than a Saturday or Sunday on which banks
are open for business in both San Francisco, California and New York, New York.
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"Commercial Paper" means short term commercial paper (with a maturity date
not in excess of 270 days from the date of its issuance) issued by Borrower (a)
pursuant to the exemption from registration contained in Section 4(2) of the
Securities Act of 1933, as amended or modified from time to time, or (b)
pursuant to the exemption from registration contained in Section 3(a)(3) of the
Securities Act of 1933, as amended or modified from time to time, with respect
to which a recognized rating agency has taken this Agreement into account in the
rating of such short term commercial paper.
"Commitment" of each Bank means the dollar amount set forth opposite such
Bank's name on Schedule 1 hereto, as such amount may be reduced or changed
pursuant to Sections 3.5 and 3.6. "Total Commitment" means the aggregate amount
of the Commitments.
"Consolidated Adjusted Net Worth" means, as of the date of determination
thereof, the consolidated stockholders equity of Borrower and its Subsidiaries
in accordance with GAAP adjusted by adding back the amount by which such
consolidated stockholders equity has been reduced (or by subtracting the amount
by which stockholders equity has been increased) on account of (a) changes
subsequent to December 31, 1992 in the long term liability of Borrower and its
Subsidiaries for post-retirement benefits other than pensions and (b) specified
material non-cash adjustments resulting from the adoptions of future
pronouncements of the Financial Accounting Standards Board.
"Consolidated Tangible Net Worth" means, at any date of determination,
Consolidated Adjusted Net Worth less the consolidated intangible assets of
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Borrower and its Subsidiaries, determined in accordance with GAAP.
"Debt Rating" means, as of any date of determination, the rating as
determined by either Standard & Poor's Ratings Group or Xxxxx'x Investors
Service, Inc. (collectively, the "Debt Ratings"); of (a) the Borrower's senior
unsecured long-term debt or (b) if the foregoing debt is not outstanding, then
the rating of this bank credit facility or the implied rating of senior
unsecured debt securities, provided that if both ratings in this clause (b) have
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been issued then both shall apply; or (c) if neither (a) nor (b) apply, then the
rating of long-term debt issued by equipment trust guaranteed by Borrower;
provided that if a Debt Rating is issued by both of such rating agencies, then
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the more credit worthy of such credit ratings shall apply unless the split in
credit ratings is more than one level, in which case the level one level higher
than the lower rating shall apply. Initially, the Debt Ratings shall be
determined from the certificate delivered pursuant to Section 5.2(d).
Thereafter the credit ratings shall be determined from the most recent public
announcement of any changes in such credit ratings.
"Effective Date" means the date the conditions set forth in Section 5.2 are
satisfied or waived by the Banks.
"Eligible Assignee" means a Person which can lawfully fulfill all of the
obligations of a Bank hereunder and is (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least
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$100,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; or (c) any Person engaged primarily in the business of
commercial banking and that is a subsidiary of a Bank or of a Person of which a
Bank is a subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with Borrower or any Subsidiary of Borrower within the
meaning of Section 414(b), 414(c) or 414(m) of Internal Revenue Code of 1986, as
amended.
"Eurodollar Banking Day" means a day on which banks are open for business
in San Francisco, California, New York, New York and the applicable offshore
dollar interbank market and dealing in U. S. Dollar deposits.
"Eurodollar Loan" means a Loan at the rate of interest calculated pursuant
to Section 2.6.
"Eurodollar Rate" means for each Interest Period of a Eurodollar Loan the
arithmetic mean of the rates of interest rounded to the nearest 1/100 of one
percent as notified to the Administrative Agent by the Reference Banks at which
U.S. Dollar deposits for such Interest Period and in an amount comparable to the
Principal Amount of such Eurodollar Loan would be offered by such Reference
Banks to major banks in the London offshore dollar interbank market upon request
of such banks at approximately 11:00 a.m. London time two Eurodollar Banking
Days prior to the first day of such Interest Period.
"Event of Default" means any event specified in Section 9.1.
"Existing Agreements" means (a) the Revolving Credit Agreement dated as of
January 4, 1995, as amended, among Borrower, the banks party thereto and Bank of
America National Trust and Savings Association, as agent for such banks; (b) the
Revolving Promissory Note dated June 16, 1997 in favor of Bank of America
National Trust and Savings Association; (c) the Note dated June 30, 1997 in
favor of Xxxxxx Guaranty Trust Company of New York, and (d) the Promissory Note
dated July 1, 1997 in favor of Citicorp USA, Inc..
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds (Effective)". If
on any relevant day such rate is not yet published in H.15(519), the rate for
such day will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for such day
under the caption "Federal Funds Effective Rate". If on any relevant day the
appropriate rate for such day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by Administrative Agent.
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"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
"Interest Payment Date" means, with respect to each Bid Rate Loan and each
Eurodollar Loan, the last day of each Interest Period; provided, however, that
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if any Interest Period (a) in the case of a Bid Rate Loan exceeds 90 days and
(b) in the case of a Eurodollar Loan exceeds three months, "Interest Payment
Date" shall mean the 90th day and the last day of the third month of such
Interest Period, respectively, as well as the last day of the relevant Interest
Period; and, with respect to each Base Rate Loan, means the 10th day of each
January, April, July, and October and the Termination Date. If any day
specified herein is not a Business Day or, in the case of a Eurodollar Loan, a
Eurodollar Banking Day, then the relevant Interest Payment Date shall be the
next succeeding Business Day or Eurodollar Banking Day, as applicable, except as
otherwise provided in the definition of Interest Period.
"Interest Period" means: (a) with respect to each Bid Rate Loan, a period
of 7 to 180 days as selected by Borrower by a Loan Request delivered to
Administrative Agent in accordance with Section 2.4, and (b) with respect to
each Eurodollar Loan, a period of one, two, three or six months as selected by
Borrower by a Loan Request delivered to Administrative Agent in accordance with
Section 2.3, subject to the following:
(i) If the term of an Interest Period is not designated, a period of
30 days shall be deemed selected for the relevant Bid Rate Loan and a
period of one month shall be deemed selected for the relevant Eurodollar
Loan;
(ii) The first Interest Period for each Loan shall commence on the
date such Loan is disbursed and each succeeding Interest Period for such
Loan shall commence on the last day of the preceding Interest Period for
such Loan;
(iii) In the case of a Bid Rate Loan, if the last day of an Interest
Period falls on a day that is not a Business Day, the Interest Period
involved shall be extended to the next succeeding Business Day, and the
next succeeding Interest Period shall be measured from the last day of the
Interest Period as so adjusted;
(iv) In the case of a Eurodollar Loan, if the last day of an Interest
Period falls on a day that is not a Eurodollar Banking Day, the Interest
Period involved shall be extended to the next following Eurodollar Banking
Day unless as a result thereof it would fall into the next calendar month,
in which case the end of the Eurodollar Interest Period shall be the
preceding Eurodollar Banking Day, and in either case the next succeeding
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Eurodollar Interest Period shall be measured from the last day of the
Interest Period as so adjusted;
(v) If an Interest Period for a Eurodollar Loan commences on the last
Eurodollar Banking Day of a calendar month, it shall end on the last
Eurodollar Banking Day of a calendar month; and
(vi) No Interest Period shall end on a day later than the Termination
Date.
"Investment Grade" means a Debt Rating by S&P of BBB- or better and Debt
Rating of Moody's of Baa3 or better.
"Lending Office" means with respect to any Bank as the context shall
require, the branch office of such Bank designated as the Lending Office of such
Bank in Exhibit D attached hereto and incorporated herein by reference; or any
other branch office or affiliate of such Bank hereafter selected and notified to
Borrower and Administrative Agent from time to time by such Bank; provided that
any Bank may from time to time by notice to Borrower and Administrative Agent
designate separate Lending Offices for its Bid Rate Loans, its Eurodollar Loans
and/or its Base Rate Loans, in which case any reference to the Lending Office of
such Bank shall be deemed to refer to any or all of such offices, branches or
affiliates as the context may require.
"Letter Agreement" means that letter agreement among Arranger,
Administrative Agent and Borrower dated October 23, 1997 specifying Arranger's
and Administrative Agent's compensation for services hereunder as such letter
agreement may from time to time be amended, restated, reissued or otherwise
modified.
"Lien" means any trust deed, mortgage, pledge, hypothecation, assignment,
security interest, lien, charge or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the lien of an attachment, judgment or
execution, or any conditional sale or other title retention agreement, any
capitalized lease, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction, but excluding financing statements filed to give notice of leases
in the ordinary course of business).
"Loan" or "Loans" means the loans described in Section 2, any of which may
be at any time Base Rate Loans, Eurodollar Loans or Bid Rate Loans.
"Loan Request" means a notice given by Borrower pursuant to Section 2.3 or
2.4.
"Majority Banks" means those Banks whose Commitments constitute at least
60% of the Total Commitment as such Total Commitment may be adjusted from time
to time pursuant to the terms of this Agreement.
"Master Bid Rate Note" means a promissory note of Borrower payable to order
of a Bank in substantially the form of Exhibit B hereto in favor of such Bank
evidencing the indebtedness of the Borrower to such Bank resulting from a Bid
Rate Loan made by such Bank.
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"Material Change" means any adverse change which could reasonably be
expected to materially impair Borrower's ability to timely and fully perform its
obligations under this Agreement, provided that the Reorganization shall not be
deemed a Material Change..
"Moody's" means Xxxxx'x Investors Service, Inc.
"Normal Percentage" means, with respect to each Bank, the percentage under
the heading "Normal Percentage" set forth opposite such Bank's name on Schedule
1 hereto, as such amount may be reduced or changed pursuant to Section 3.6 or
Section 11.11.
"Note" means any promissory note delivered pursuant to Section 2.8 or any
Master Bid Rate Note (collectively, the "Notes").
"Person" means any individual, firm, company, corporation, joint venture,
joint-stock company, trust, unincorporated organization, governmental or state
entity, or any association or partnership (whether or not having separate legal
personality) of two or more of the foregoing.
"Plan" means any employee benefit pension plan which is subject to the
provisions of Title IV of ERISA and which is maintained for employees of
Borrower or any Subsidiary.
"Principal Amount" means, when used with reference to any Loan, the amount
requested in the Loan Request relating thereto and made available to Borrower by
the Banks hereunder.
"Principal Repayment Date" means, with respect to each Base Rate Loan, the
Termination Date, and with respect to each Bid Rate Loan and each Eurodollar
Loan, the last day of the Interest Period for such Loan.
"Reference Banks" means Bank of America, Xxxxxx Guaranty Trust Company of
New York and The Chase Manhattan Bank
"Reorganization" means the transactions contemplated by that certain
Agreement and Plan of Merger dated as of January 16, 1997 by and between HE
Holdings and Raytheon Company including, without limitation the "GM
Transactions" defined therein.
"Reportable Event" means any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder excluding those events for which the 30-day
notice requirement is waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
"Restricted Subsidiaries" means each Subsidiary (i) having assets exceeding
10% of the Consolidated Tangible Net Worth of Borrower and its Subsidiaries on a
consolidated basis or (ii) having operating revenues exceeding 10% of the
operating revenues of Borrower and its Subsidiaries on a consolidated basis, in
each case as shown on the pro forma financial statements dated as of June 30,
1997 and, thereafter, as shown on the audited consolidated financial statements
of Borrower and its Subsidiaries as of the end of the fiscal year immediately
preceding the date of determination; provided, however, that "Restricted
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Subsidiary" shall not include any Subsidiary which is a corporation created
solely to purchase receivables from Borrower or any of its Subsidiaries, and
which would not, in accordance with GAAP, be included in the consolidated
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financial statements of Borrower.
"S&P" means Standard & Poor's Ratings Group.
"Signing Date" means the date of this Agreement.
"Subsidiaries" (individually a "Subsidiary") means those corporations or
entities of which Borrower owns more than 50% of the voting securities. If
Borrower, subject to the terms hereof, permits its ownership to fall to 50% or
below of outstanding voting shares of any Subsidiary, such Subsidiary shall
thereupon cease to be a Subsidiary for all purposes hereof.
"Tax" and "Taxes" mean all taxes, levies, imposts, duties, fees or other
charges of whatsoever nature however imposed by any country or any subdivision
or authority of or in that country in any way connected with this Agreement or
any instrument or agreement required hereunder, and all interest, penalties or
similar liabilities with respect thereto, except such taxes as are imposed on or
measured by any Bank's net income or capital and franchise taxes, by the country
or any subdivision or authority of or in that country in which such Bank's
principal office or actual Lending Office is located.
"Termination Date" means December 5, 2002 or if such day is not a Business
Day, the next preceding Business Day.
"Unmatured Event of Default" means an event which with the passage of time
or the giving of notice, or both, would become an Event of Default.
"Voting Stock" means capital stock of Borrower having voting power under
ordinary circumstances to elect directors of Borrower.
"Withdrawal Liability" means, as of any determination date, the aggregate
amount of the liabilities, if any, pursuant to Section 4201 of ERISA if the
Borrower or any ERISA Affiliate made a complete withdrawal from all Plans and
any increase in contributions pursuant to Section 4243 or ERISA.
SECTION 2
THE CREDIT
2.1 The Commitments. (a) From time to time, during the Availability
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Period, each Bank severally agrees to lend to Borrower in U. S. Dollars the
amount set forth opposite such Bank's name on Schedule 1 hereto, subject to
reduction of such amount at Borrower's option, pursuant to Sections 3.5 and 3.6
or otherwise pursuant to Section 2.1(c).
(b) Except as provided in subsection 2.1(d), each Bank shall make
available to Borrower Base Rate Loans and Eurodollar Loans up to the amount of
such Bank's Commitment. In addition, each Bank may, but shall not be required
under any circumstances whatsoever to, make available to Borrower Bid Rate
Loans. Except as provided in subsection 2.1(c), the
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Commitment of any Bank making a Bid Rate Loan shall not be reduced by the amount
of any such Loan or Loans made by such Bank or by any other Bank.
(c) The Principal Amount of Bid Rate Loans made by any Bank may exceed
such Bank's Commitment; provided, however, that the aggregate Principal Amount
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of all Bid Rate Loans outstanding under this Agreement shall not exceed the
Total Commitment. The Total Commitment shall be reduced by the Principal Amount
of Bid Rate Loans outstanding so long as such Bid Rate Loans remain outstanding;
and the Commitment of each Bank shall be reduced pro rata.
(d) During any period of time when Bid Rate Loans are outstanding,
additional Eurodollar Loans and Base Rate Loans requested by Borrower shall be
allocated among the Banks in accordance with their Normal Percentage as set
forth in Schedule 1 and without regard to any Bid Rate Loans such Bank may have
outstanding to Borrower. In no event shall Eurodollar Loans, Base Rate Loans
and Bid Rate Loans outstanding hereunder exceed the Total Commitment as adjusted
from time to time pursuant to this Section 2.1.
2.2 The Loans. Each Loan shall be a Base Rate Loan, a Eurodollar Loan or
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a Bid Rate Loan and shall be in U. S. Dollars. Each Loan shall be in the
minimum amount of $5,000,000 with any additional amounts in integral multiples
of $1,000,000. This is a revolving credit, and Borrower may, during the
Availability Period, reborrow amounts repaid or prepaid. No Loan nor any part
of any Loan shall be repaid except at the times and in the manner expressly
provided herein.
2.3 Requests for Base Rate and Eurodollar Loans. Each Base Rate Loan and
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Eurodollar Loan shall be made upon irrevocable written or telephonic notice,
confirmed promptly in writing, substantially in the form of Exhibit A-1 hereto,
by Borrower to Administrative Agent received by Administrative Agent not later
than 9:00 a.m. California time not less than three (3) Eurodollar Banking Days
prior to the Borrowing Date (which must be a Eurodollar Banking Day) of a
Eurodollar Loan and not later than 9:00 a.m. California time on the proposed
Borrowing Date (which must be a Business Day) of a Base Rate Loan. Upon receipt
of a request for a Base Rate Loan and Eurodollar Loan, Administrative Agent
shall promptly notify the Banks of the amount, the Interest Period(s), if
applicable, and the Borrowing Date requested by Borrower. After giving effect to
any borrowing of Eurodollar Loans or any conversion or continuation of
Eurodollar Loans, there shall not be more than 10 different Interest Periods for
Eurodollar Loans and Bid Rate Loans in the aggregate at any time.
2.4 Requests for Bid Rate Loans. (a) Each Bid Rate Loan shall be made
---------------------------
upon irrevocable written or telephonic notice, confirmed promptly in writing,
substantially in the form of Exhibit A-2 hereto, by Borrower and must be
received by Administrative Agent not later than 9:00 a.m. California time one
Business Day prior to the Borrowing Date for such Loan, specifying the Borrowing
Date (which must be a Business Day), the amount, and the Interest Period. In
requesting a Bid Rate Loan, Borrower may specify up to a maximum of three
alternative Interest Periods for the Bid Rate Loan. After giving effect to any
borrowing of Bid Rate Loans, there shall not be more than 10 different Interest
Periods for Bid Rate Loans and Eurodollar Loans in the aggregate at any one
time.
-9-
(b) Upon receipt of a request for a Bid Rate Loan pursuant to paragraph
(a) above, Administrative Agent shall promptly notify the Banks of the amount,
the Interest Period(s) and the Borrowing Date requested by Borrower. If Bank of
America elects to advance a Bid Rate Loan it shall notify Borrower and
Administrative Agent of the amount, the Interest Period(s) and the Bid Rate
(with any fraction of a percentage expressed as a decimal to the nearest
1/10,000 of one percent) upon which Bank of America desires to advance such a
Bid Rate Loan by 7:00 a.m. California time on such Borrowing Date. By 7:15 a.m.
California time on the Borrowing Date, each other Bank shall notify
Administrative Agent whether or not it will submit an offer in response to
Borrower's request for a Bid Rate Loan and each Bank submitting an offer shall
notify Administrative Agent of the amount, the Interest Period(s) and the Bid
Rate (with any fraction of a percentage expressed as a decimal to the nearest
1/10,000 of one percent) upon which such Bank desires to advance a Bid Rate
Loan. By 7:30 a.m. California time on the Borrowing Date Administrative Agent
shall give notice to Borrower, of the amount, the Interest Period and the Bid
Rate upon which each Bank desires to advance a Bid Rate Loan. Borrower shall,
before 7:45 a.m. California time on such Borrowing Date, elect which of the
offered Bid Rate Loans it desires to accept and notify Administrative Agent of
each offer that is being accepted by Borrower. Such acceptance by Borrower shall
be irrevocable. If Borrower accepts any of the offers for Bid Rate Loans,
Borrower must accept offers strictly based upon pricing and no other criteria.
If two or more Banks submit offers at identical pricing and Borrower accepts any
of such offers but does not wish to borrow the total amount offered by such
Banks, Borrower shall accept offers from all of such Banks on amounts allocated
among them pro rata (in multiples of $1,000,000) according to the amounts
offered by such Banks.
(c) If Borrower accepts one or more of the offers made by any Bank or
Banks pursuant to subsection (b) above, Administrative Agent shall, by 8:15 a.m.
California time on such Borrowing Date, notify each Bank as to the identity of
each Bank which is to make a Bid Rate Loan, the amount of the Loan to be made by
each Bank, the Interest Period, and the Bid Rate applicable to each such Loan.
Administrative Agent shall also notify each Bank by 8:15 a.m. California time on
such Borrowing Date if Administrative Agent has either received no offers in
response to Borrower's Loan Request for a Bid Rate Loan or if Borrower has
elected not to accept any of the offers received.
(d) Each Bank whose offer for a Bid Rate Loan has been accepted pursuant
to Section 2.4(b) shall determine for itself whether the conditions precedent in
Section 5.2 have been or will be satisfied on the Borrowing Date. On or before
11:00 a.m. California time on the Borrowing Date, each such Bank's Lending
Office will make available to Administrative Agent the principal amount of the
Bid Rate Loan in immediately available funds and Administrative Agent shall
promptly credit Borrower's account at Administrative Agent in immediately
available funds.
2.5 Interest and Principal on Base Rate Loans. The outstanding Principal
-----------------------------------------
Amount of each Base Rate Loan shall bear interest until payment is due in full
(computed daily on the basis of a 365 or 366, as the case may be, day year and
actual days elapsed) at the rate per annum equal to the Base Rate. Borrower
shall pay interest on each Base Rate Loan on each Interest Payment Date for the
interest accruing since the previous Interest Payment Date on such Base Rate
Loan. Borrower shall repay in full the Principal Amount of each Base Rate Loan
on the Termination Date or as provided in Section 2.10(c).
-10-
2.6 Interest and Principal on Eurodollar Loans. (a) The outstanding
------------------------------------------
Principal Amount of each Eurodollar Loan shall bear interest until payment is
due in full (computed daily on the basis of a three hundred sixty (360) day year
and actual days elapsed) at a rate per annum equal to the Eurodollar Rate plus
the Applicable Amount therefor. Borrower shall pay interest on each Eurodollar
Loan on each Interest Payment Date for such Eurodollar Loan. Borrower shall
repay in full the Principal Amount of each Eurodollar Loan on the last day of
the Interest Period for such Eurodollar Loan or as provided in Section 2.10(c).
(b) If any Reference Bank's Commitment shall terminate (otherwise than on
termination of all the Commitments), or for any reason whatsoever the Reference
Bank shall cease to be a Bank hereunder, that Reference Bank shall thereupon
cease to be a Reference Bank, and the Eurodollar Rate shall be determined on the
basis of the rates as notified by the remaining Reference Banks. Each Reference
Bank shall use its best efforts to furnish quotations of rates to the
Administrative Agent as contemplated hereby. If any of the Reference Banks
shall be unable or otherwise fails to supply such rates to the Administrative
Agent upon its request, the rate of interest shall be determined on the basis of
the quotations of the remaining Reference Banks or Reference Bank.
2.7 Interest and Principal on Bid Rate Loans. The outstanding principal
----------------------------------------
amount of each Bid Rate Loan shall bear interest until payment is due in full
(computed daily on the basis of a 360-day year and actual days elapsed) at a
rate per annum equal to the Bid Rate. Borrower shall pay interest on each Bid
Rate Loan on each Interest Payment Date for such Bid Rate Loan. Borrower shall
repay in full the Principal Amount of each Bid Rate Loan on the last day of the
Interest Period of such Bid Rate Loan.
2.8 Loan Accounts. Each Bank shall open and maintain on its books and one
-------------
or more loan accounts in Borrower's name. Each loan account shall show (without
duplication) as debits thereto each Bank's portion of each Base Rate Loan and/or
Eurodollar Loan and as credits thereto all Base Rate Loan and/or Eurodollar Loan
payments received by such Bank for the account of such Bank and applied to
principal so that the balance of the loan account(s) at all times reflect the
principal amount due each Bank from Borrower as Base Rate Loans and Eurodollar
Loans. All entries in said books shall be presumptive evidence of the making of
each Base Rate Loan and Eurodollar Loan, the obligation of Borrower to repay
each Base Rate Loan and Eurodollar Loan, and all payments received and disbursed
by such Bank. Borrower agrees that if, in the opinion of any Bank, a promissory
note or other evidence of debt is required or appropriate to reflect or enforce
any Loans outstanding to or to be made by such Bank, then Borrower shall
promptly execute and deliver to such Bank one or more promissory notes payable
to such Bank to evidence the Loans outstanding to such Bank under this Agreement
from time to time, together with such documents as such Bank may reasonably
request to evidence the due authorization, execution, delivery and
enforceability of such notes. If any notes are issued hereunder, Administrative
Agent and Borrower may treat the payee of that note as the owner of such note
for all purposes.
2.9 Master Bid Rate Notes. Borrower shall execute a Master Bid Rate Note
---------------------
in the form of Exhibit B hereto in favor of each Bank. The Master Bid Rate Note
of each Bank shall evidence the outstanding principal amount of Bid Rate Loans
made by such Bank, and shall be dated the first day of the Availability Period.
Each Bank is authorized to indicate upon the grid
-11-
attached to its Master Bid Rate Note the principal amount, interest rate and
Interest Period of each Bid Rate Loan and all payments of principal and interest
thereon. Such notations shall be presumptively correct as to the aggregate
unpaid principal amount of the Bid Rate Loan made by such Bank, and interest due
thereon, but the failure by such Bank to make such notations shall not affect
the obligations of Borrower hereunder or under the Master Bid Rate Notes.
2.10 Conversion of Loans Between Eurodollar Loans and Base Rate Loans and
--------------------------------------------------------------------
Conversion of Interest Periods of Eurodollar Loans. (a) On any Eurodollar
--------------------------------------------------
Banking Day Borrower may convert on a pro rata basis among the Banks any
outstanding Base Rate Loans or Eurodollar Loans (but not Bid Rate Loans) into
any other type of Loan available to Borrower hereunder (but not to a Bid Rate
Loan), or Borrower may change the Interest Period of any Eurodollar Loan to
another Interest Period available under this Agreement, subject to the following
limitations:
(i) No conversion of any Eurodollar Loan into any other Loan and no
conversion of the Interest Period of any Eurodollar Loan may be made except
on the last day of an Interest Period with respect thereto; and
(ii) Any conversion shall be preceded by an irrevocable written or
telephonic notice from Borrower that it elects such conversion, which
notice shall be received by Administrative Agent at least three (3)
Eurodollar Banking Days prior to the date requested for such conversion
from or into a Eurodollar Loan or conversion of the Interest Period of a
Eurodollar Loan.
(b) Banks shall not be obligated to make or continue any Eurodollar Loan
when any Event of Default has occurred and is continuing, but any outstanding
Eurodollar Loan shall be automatically converted to a Base Rate Loan on the last
day of the Interest Period for which a Eurodollar Rate was determined by
Administrative Agent following occurrence of such Event of Default, and, unless
Section 2.11(f) is applicable, Borrower shall be obligated to pay interest at
the Base Rate from the date any Loan is so converted until such Loan is repaid
in full regardless of the date when Administrative Agent obtains knowledge of
such Event of Default.
(c) Each conversion of a Loan into a Base Rate Loan or a Eurodollar Loan,
as the case may be, shall be effected by each Bank, on behalf of Borrower, as
applicable, by making a simultaneous payment of the relevant Eurodollar Loan, or
Base Rate Loan, as the case may be, from the proceeds of the new Loans,
procedures with respect thereto to be governed by the provisions of Section 2.3,
except that disbursement shall be made by means of such payment rather than
directly to Borrower to the extent applicable with respect to each Bank.
(d) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, Borrower has failed to select a new Interest Period to be
applicable thereto, or if any Event of Default or Unmatured Event of Default
shall then exist, Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
2.11 Disbursements and Payments. (a) Each Base Rate Loan and Eurodollar
--------------------------
Loan shall be made on a pro rata basis by Banks, and each Bank's portion of each
Loan shall be determined
-12-
by application of its Normal Percentage. Each Bid Rate Loan shall be made
entirely by the Bank whose offer was accepted by Borrower pursuant to Section
2.4. Each Bank's interest in each Loan and each payment to such Bank under this
Agreement shall be for the account of such Bank's Lending Office.
(b) Each Loan and each payment of principal, interest and other sums
under this Agreement shall be made in immediately available funds (or such other
funds as Administrative Agent may require) at Bank of America's Agency
Administrative Services #5596, 0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000,
Acct No. 12337-15346, Ref: Xxxxxx Electronics Corporation or such other office
designated by Administrative Agent from time to time.
(c) Each Bank agrees it will make the funds which it is to advance
hereunder available to Bank of America's Agency Administrative Services #5596,
0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, Acct No. 12337-15346, Ref: Xxxxxx
Electronics Corporation or such other office designated by Administrative Agent
from time to time not later than 11:00 a.m. California time on the Borrowing
Date, and Administrative Agent will thereupon promptly advance to Borrower the
amount so received from Banks.
(d) Payment of all sums under this Agreement shall be made by Borrower to
Administrative Agent, and the latter shall promptly distribute to each Bank its
share of such payments. Each payment by Borrower shall be made without setoff
or counterclaim and not later than 11:00 a.m. California time on the day such
payment is due. All sums received after such time shall be deemed received on
the next Business Day.
(e) If Administrative Agent makes available to Borrower an amount due
from any Bank which such Bank fails to make available to Administrative Agent,
or if Administrative Agent makes available to any Bank an amount due from
Borrower which Borrower fails to make available to Administrative Agent,
Borrower or such Bank, as the case may be, shall, on demand, refund such amount
to Administrative Agent, together with interest thereon for the period during
which such amount was available to Borrower or such Bank, as the case may be, at
the Federal Funds Rate.
(f) Any sum of principal or interest payable by Borrower hereunder if not
paid when due shall bear interest (payable on demand) from its due date until
payment in full (computed daily on the basis of a 365 or 366, as the case may
be, day year and actual days elapsed) at a rate per annum equal to the Base Rate
plus one percentage point.
2.12 Facility Fee. Borrower shall pay Administrative Agent for the
------------
account of the Banks, a facility fee at the rate per annum equal to the
Applicable Amount therefor on the Total Commitment (without regard to the amount
of Loans outstanding at any time hereunder and without giving effect to any
reduction pursuant to Section 2.1(c)) during the Availability Period; provided,
however, following any reduction in the Total Commitment pursuant to Section 3.5
or 3.6 (but not a reduction pursuant to Section 2.1(c)) the computation of the
facility fee shall be based upon such reduced Total Commitment as of the
effective date of such reduction. The facility fee shall be computed on a
calendar quarter basis. The facility fee shall be calculated on the basis of a
360-day year and actual days elapsed, which results in a higher fee than if a
365/366-day year were used, and shall be payable on the 10th day of each
January, April, July
-13-
and October (for the facility fee accrued during the previous calendar quarter)
and on the Termination Date.
SECTION 3
PAYMENT OF COSTS AND REDUCTION
OF THE COMMITMENT
3.1 Indemnification Upon Failure to Pay Eurodollar Loan or Bid Rate Loan.
--------------------------------------------------------------------
If Borrower makes any payment of principal with respect to any Eurodollar Loan
or Bid Rate Loan on a day other than the last day of the then current Interest
Period applicable to such Loan (including without limitation any payment upon
reduction of the Commitments) or fails to borrow, continue, convert, pay or
prepay its Eurodollar Loan or Bid Rate Loan on a date designated to
Administrative Agent in a notice pursuant to this Agreement (if such failure
does not result from the application of Sections 4.1 or 4.2), Borrower shall
reimburse each Bank within 15 days after receipt of written demand for any loss
incurred by it as a result of the timing of such payment or non-borrowing not
reflected in the Eurodollar Rate or the Bid Rate, including without limitation
any loss incurred in liquidating or employing deposits from third parties and
loss of profit for the period after such payment or non-borrowing. A certificate
of such Bank setting forth the amounts reasonably necessary so to reimburse it
in respect of any loss shall be conclusive and binding absent manifest error.
3.2 Increased Costs. (a) If after the date hereof, any applicable law,
---------------
rule or regulation or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank (or its Lending Office) with any request or directive of any such
authority, central bank or comparable agency, whether or not having the force of
law, shall impose, modify or deem applicable:
(i) any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, compulsory loan or
similar requirements against assets, commitments or deposits or other
liabilities with, of or for the account of, or credit extended by, or any
acquisition of funds by or for the account of any Bank or its Lending Office or
the London interbank market or any other condition affecting its obligations to
make the Loans to Borrower hereunder;
(ii) any capital or similar requirements against (or against any class of
or change in or the amount of) assets or liabilities of, or commitments or
extensions of credit by, such Bank;
each Bank which is so affected shall give prompt notice to Borrower describing
such reserves or requirements at least four Business Days prior to the date such
Bank will begin to implement such additional charges with respect to Borrower.
If the result of any of the foregoing is to increase the cost or reduce the
profit to such Bank (or its Lending Office) under this Agreement by an amount
deemed by such Bank to be material, then, within 15 days after written demand by
such Bank, Borrower will pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost incurred or reduction in
profit suffered by such Bank. Such Bank will designate a different Lending
Office if such designation will avoid the
-14-
need for, or reduce the amount of, such compensation and will not be otherwise
disadvantageous to such Bank in the sole discretion of such Bank. A certificate
of such Bank setting forth the basis for determining such additional amount or
amounts necessary to compensate the Bank shall be conclusive in the absence of
manifest error.
(b) Without limiting the effect of the foregoing (but without
duplication), upon any Bank's prior written request, Borrower shall pay to such
Bank on the last day of each Interest Period, so long as such Bank may be
required to maintain reserves against "eurocurrency liabilities" under
Regulation D (as at any time amended) of the Board of Governors of the Federal
Reserve System, as additional interest on the unpaid principal amount of each
Eurodollar Loan by such Bank outstanding during such Interest Period, an
additional amount (determined by such Bank and notified to Borrower in writing)
up to but not exceeding such amount as would, together with payments of interest
on such Eurodollar Loan for such Interest Period, result in the receipt by such
Bank of total interest on such Eurodollar Loan, for such Interest Period at a
rate determined by such Bank to be equal to the sum of:
(i) the Eurodollar Rate divided by a sum equal to (a) 1 minus (b) the rate
(expressed as a decimal) of such reserves required by Regulation D, plus
(ii) the Applicable Amount for Eurodollar Loans.
In determining the additional amount payable for an Interest Period
pursuant to this Section, such Bank shall take into account any transitional
adjustment or phase-in provisions of such reserve requirements applicable during
such Interest Period, which would reduce the reserve requirement otherwise
applicable to eurocurrency liabilities during such Interest Period; provided,
however, each Bank in its sole discretion may determine the allocation of
reserve requirements to its Eurodollar Loans. Each such determination made by
such Bank, and each such notification by such Bank to Borrower under this
Section, shall be conclusive as to the matters set forth therein in the absence
of manifest error.
3.3 Taxes. All payments or reimbursements under this Agreement and any
-----
instrument or agreement required hereunder shall be made without setoff or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes. Borrower agrees to cause all such Taxes to be paid on behalf
of any Bank or Administrative Agent directly to the appropriate governmental
authority. If Borrower is legally prohibited from complying with this
subsection, payments due to such Bank or Administrative Agent under this
Agreement and any instrument or agreement required hereunder shall be increased
so that, after provisions for Taxes and all Taxes on such increase, the amounts
received by such Bank or Administrative Agent will be equal to the amounts
required under this Agreement and any instrument or agreement required hereunder
as if no Taxes were due on such payments. Borrower shall indemnify each Bank
and Administrative Agent for the full amount of Taxes payable by such Bank or
Administrative Agent and any liabilities (including penalties, interest and
expenses) arising from such Taxes within 30 days from any written demand by such
Bank. Borrower shall provide evidence that all applicable Taxes have been paid
to the appropriate taxing authorities by delivering to Administrative Agent
official tax receipts or notarized copies or other evidence thereof satisfactory
to Administrative Agent, within 90 days after the due date for such Tax payment.
Such Bank will designate a different Lending Office if such designation will
avoid the
-15-
need for, or reduce the amount of, such payment or reimbursement and will not be
otherwise disadvantageous to such Bank in the sole discretion of such Bank.
3.4 Prepayment. Upon the irrevocable written notice of Borrower received
----------
by Administrative Agent by 11:00 a.m. California time at least one Business Day
prior to the prepayment of a Base Rate Loan and at least five Eurodollar Banking
Days prior to the prepayment of a Eurodollar Loan, Borrower may prepay any
Eurodollar Loan or Base Rate Loan; but such prepayment shall be in an amount of
at least $5,000,000 or multiple integrals of $1,000,000 in excess thereof. The
notice of prepayment shall specify the date of the prepayment, the amount of the
prepayment and the Loan to be prepaid. Each such prepayment shall be made on
the date specified and, in the case of a prepayment of any Eurodollar Loan shall
be accompanied by the payment of accrued interest on the amount prepaid.
Subject to compliance with the foregoing procedures, Base Rate Loans may be
prepaid at any time without cost or penalty of any kind. If Borrower elects to
prepay a Eurodollar Loan, Borrower shall, on demand by each Bank, pay such Bank
the amount (if any) by which (a) the additional interest which would have been
payable on the amount prepaid on such Bank's portion of such Loan had it not
been paid until the last day of the Interest Period of such Loan exceeds (b) the
interest which would have been recoverable by such Bank by placing such prepaid
amount on deposit in the offshore Dollar interbank markets for a period starting
on the date on which it was prepaid and ending on the last day of the Interest
Period for such Loan. Bid Rate Loans may not be prepaid.
3.5 Pro Rata Reduction of Commitments by Borrower. Borrower may, upon 30
---------------------------------------------
days' prior written notice (which notice shall be irrevocable) to Banks through
Administrative Agent, reduce the Total Commitment on a pro rata basis among the
Banks. Such a reduction shall be in an integral multiple of $5,000,000. Borrower
shall, on the effective date of each such reduction, repay to each Bank through
Administrative Agent that portion of each Loan which exceeds the amount of each
Bank's Commitment as reduced, together with accrued interest on the amount paid
and accrued facility fees subject to such reduction. After the effective date of
each reduction, the Banks' obligations under this Agreement shall be based on
the reduced Commitments.
3.6 Reduction of One Bank's Commitment by Borrower. If the amount of any
----------------------------------------------
payment to be made to or for the account of any Bank is increased under Section
3.3 or any Bank makes a claim under Section 3.2, then:
(a) Borrower may, within 60 days after the notice thereof and by not less
than five Business Days' written notice to Administrative Agent, cancel such
Bank's Commitment, whereupon such Bank shall cease to be obligated to
participate in further Loans hereunder and its Commitment shall be reduced to
the amount of its outstanding Loans until such Loans are repaid by Borrower
either on the Principal Repayment Date for such Loans or pursuant to Section
3.6(b), at which time such Bank's Commitment shall be reduced to zero;
(b) if Borrower cancels such Bank's Commitment pursuant to clause (a)
above and if Borrower so elects by written notice to Administrative Agent given
at the same time as the notice referred to in clause (a) above, Borrower shall
prepay such Bank's portion of each outstanding Loan together with any accrued
interest thereon plus all costs and expenses (including break and funding costs
in connection with the relending, reborrowing, funding or other employing of
-16-
funds) incurred by such Bank as a result of such cancellation or prepayment on a
date other than the Principal Repayment Date for such Loan; and
(c) Borrower shall repay all Bid Rate Loans from such Bank on the
Principal Repayment Date for such Loans and shall not request any additional Bid
Rate Loans from such Bank.
3.7 Notice of Reductions. Each notice of reduction or prepayment given
--------------------
pursuant to Section 3.4,.3.5 or 3.6 shall be irrevocable, shall specify the date
upon which such reduction or prepayment is to be made and, in the case of a
notice of prepayment, shall obligate Borrower to make such prepayment on such
date. Borrower may not give a notice of reduction of a part of the Commitment
pursuant to Section 3.6 at any time prior to the date so specified in any
previous such notice.
3.8 Designation of Replacement Bank. If the Commitment of any Bank is
-------------------------------
cancelled by Borrower pursuant to Section 3.6 or if any Bank terminates its
Commitment with respect to Eurodollar Loans pursuant to Section 4.2, Borrower,
with the consent of Administrative Agent, may designate an Eligible Assignee
(or, if it deems appropriate, more than one Eligible Assignee) acceptable to
Administrative Agent to act as a Bank hereunder and upon execution of a written
agreement in form satisfactory to Administrative Agent by such Eligible Assignee
in which it agrees to abide by all of the terms, conditions and obligations
applicable to a Bank herein and to have a Commitment as specified in such
agreement, such Eligible Assignee shall be deemed a Bank hereunder to the same
extent as if it were a signatory hereto and, thereafter, such Eligible Assignee
shall for all purposes be considered a "Bank" hereunder.
3.9 Effect of Reduction of Commitment. If, at any time:
---------------------------------
(a) the Commitment of any Bank is reduced to zero in accordance with the
terms of this Agreement;
(b) all indebtedness and other amounts owed to such Bank by Borrower
hereunder or in connection herewith have been satisfied in full; and
(c) such Bank is under no further actual or contingent obligation
hereunder,
then such Bank shall cease to be a party hereto and a Bank for the purposes
hereof; provided, however, that the obligations of Borrower under Sections 3.1,
-------- -------
3.2, 3.3, 11.14, 11.15 and 11.16 shall survive the cancellation of the
Commitment and the termination of this Agreement.
3.10 Accrued Fees. On the date of the cancellation of any portion of the
------------
Total Commitment in accordance with Section 3.5 or of any Bank's Commitment
under Section 3.6, all accrued facility fees for such portion of the Total
Commitment or of such Bank's Commitment shall be paid in full by Borrower.
3.11 Survival. The agreements and obligations of Borrower in this Section
--------
3 shall survive the termination of this Agreement.
SECTION 4
-17-
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Inability to Determine Eurodollar Rate. If any Reference Bank
--------------------------------------
determines (which determination shall be made in good faith and shall be
conclusive and binding upon Borrower) that (a) by reason of circumstances then
affecting the Eurodollar interbank market, adequate and reasonable means do not
or will not exist for ascertaining the interest rate applicable to any
Eurodollar Loans, or (b) Dollar deposits in the relevant amounts and for the
relevant Interest Period are not available to the Banks in the Eurodollar
interbank market, then it shall notify the Administrative Agent who shall
forthwith give written notice of such determination to Borrower and each Bank at
least one Business Day prior to the first day of any Interest Period so
affected; whereupon, until Administrative Agent shall notify Borrower that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Eurodollar Loans shall be suspended and (ii)
Borrower shall repay in full, without premium or penalty, the then outstanding
principal amount of the Eurodollar Loans, together with accrued interest
thereon, on the last day of the then current Interest Period pursuant to the
next sentence. Unless Borrower notifies Administrative Agent to the contrary
within one Business Day after receiving a notice from Administrative Agent
pursuant to this Section, Borrower shall, concurrently with prepaying the
Eurodollar Loans pursuant to this Section, be deemed automatically without any
further notice to Administrative Agent or the Banks to have requested and
received Base Rate Loans in an equal principal amount from the Banks, the
proceeds of which are deemed to have been used to repay the other Loans.
4.2 Illegality. If, after the Effective Date, the introduction of or any
----------
change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority shall make it unlawful or impossible for such Bank (or its Lending
Office) to make, maintain or fund its Eurodollar Loans, such Bank shall
forthwith give written notice thereof to Administrative Agent and to Borrower.
Before giving any notice pursuant to this Section, such Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not be otherwise disadvantageous to such Bank in the sole
judgment of such Bank. Upon receipt of such notice (a) if such Bank has received
a request with respect to Eurodollar Loans and has not yet made such Loan, a
Base Rate Loan shall be deemed to have been designated without any further
notice; (b) all Loans which would otherwise be made by such Bank as Eurodollar
Loans shall be made instead as Base Rate Loans; and (c) Borrower shall prepay in
full, without premium or penalty, the then outstanding principal amount of such
Bank's Eurodollar Loans, together with accrued interest, on either (i) the last
day of the then-current Interest Period if such Bank may lawfully continue to
fund and maintain such Eurodollar Loans, to such day or (ii) immediately if such
Bank may not lawfully continue to fund and maintain such Eurodollar Loans to
such day together with an amount, if any, calculated as set forth in the last
sentence of Section 3.4. Concurrently with prepaying each such Eurodollar Loan
Borrower shall borrow a Base Rate Loan from such Bank in an amount equal to the
principal amount of such Bank's Eurodollar Loans, the proceeds of which are
deemed to have been used to repay such Bank's Eurodollar Loans. If circumstances
subsequently change so that such Bank is not further affected, and no Eligible
Assignee has been appointed pursuant to Section 3.8, such Bank shall so notify
Borrower and Administrative Agent and such Bank's obligation to make and
continue Eurodollar Loans shall be reinstated upon written request of Borrower.
-18-
SECTION 5
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Signing Date. The occurrence of the Signing
------------------------------------
Date is subject to the condition that on the Signing Date this Agreement, duly
executed and delivered by the parties hereto, shall have been delivered to
Administrative Agent with counterparts for each Bank and in form and substance
satisfactory to Banks.
5.2 Conditions Precedent to Effective Date. The obligation of Banks to
--------------------------------------
make the initial Loans hereunder is subject to the condition that on the
Effective Date there shall have been delivered to the Administrative Agent with
counterparts for each Bank:
(a) The Notes, duly executed and delivered by the Borrower.
(b) The favorable written opinions, dated the Effective Date, of the
General Counsel or Assistant General Counsel of Borrower in the form set out in
Exhibit F.
(c) Certificate of the Secretary or an Assistant Secretary of Borrower
dated the Effective Date as to (i) the Certificate of Incorporation and the By-
laws of Borrower, (ii) the resolution of the Board of Directors of Borrower or
its Executive Committee in connection with this Agreement, and (iii) the
incumbency and signatures of the person authorized to execute and deliver this
Agreement and any other instrument, document or other agreement required
hereunder on the Effective Date.
(d) A certificate, signed by a vice president of Borrower dated the
Effective Date certifying: (i) that since December 31, 1996, there has been no
change in the financial condition, business, operations or properties of
Borrower and its Subsidiaries taken as a whole which constitutes a Material
Change; (ii) the unaudited pro forma condensed combined financial statements for
the nine months ended September 30, 1997 contained in the General Motors
Corporation. Registration Statement on form S-4 dated November 19, 1997, as
amended (the "GMC S-4") give effect to the Reorganization as set forth in the
GMC S-4; (iii) that no event has occurred and is continuing or would result from
the making of a Loan which constitutes or would constitute an Event of Default
or an Unmatured Event of Default; and (iv) the Debt Ratings as of the Effective
Date.
(e) Certificate of Good Standing in relation to Borrower issued by the
Secretary of the State of Delaware, dated not more than one month prior to the
Effective Date.
(f) Evidence satisfactory to Administrative Agent that all obligations of
Borrower outstanding under the Existing Agreements have been repaid in full and
all commitments thereunder have been terminated.
(g) Evidence of Borrower's Debt Ratings from both S&P and Xxxxx'x.
(h) Evidence satisfactory to Administrative Agent that the Reorganization
has been completed in accordance with the GMC S-4.
-19-
(i) The Master Bid Rate Notes, as referred to in Section 2.9, duly
executed by Borrower, shall have been delivered by Borrower to Administrative
Agent.
(j) The Administrative Agent shall have received all fees payable to it on
the Effective Date under the Letter Agreement.
5.3 Conditions Precedent to Loans. The obligation of Banks to disburse
-----------------------------
each Loan (including the first Loan) is subject to the following conditions and
by communicating a Loan Request Borrower is deemed to certify that: (a) to the
best knowledge of the Authorized Designee making such Loan Request, the
representations and warranties (excluding Section 6.6) contained in this
Agreement and any other documents delivered pursuant hereto are true and correct
in all material respects on the date of such Loan Request; (b) the financial
statements delivered to Administrative Agent by Borrower pursuant to Section 7.5
on the date most nearly preceding the Loan Request present fairly the financial
position and results of operation and changes in financial position of Borrower
and its consolidated Subsidiaries as at the end of, and for the fiscal period to
which such statements relate, (subject, in the case of unaudited financial
statements to year end adjustments); and (c) to the best knowledge of the
Authorized Designee making such Loan Request, no Event of Default or Unmatured
Event of Default has occurred and is continuing except such Events of Default or
Unmatured Events of Default as have been expressly waived by or on behalf of the
Banks.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6. Borrower represents and warrants that as of the Effective Date:
6.1 Authority of Borrower. Borrower (a) is a corporation duly organized
---------------------
and existing under the laws of the State of Delaware, with its principal place
of business in Los Angeles, California, (b) has the corporate power to own its
property and carry on its business as now being conducted, (c) is duly qualified
and authorized to do business, and is in good standing in every state, country
or other jurisdiction where the failure to be so qualified, authorized and in
good standing would have a material adverse effect on Borrower, (d) has full
power and authority to borrow the sums provided for in this Agreement, to
execute, deliver and perform this Agreement and any instrument or agreement
required hereunder, and to perform and observe the terms and provisions hereof
and thereof, (e) has taken all corporate action on the part of Borrower, its
directors or stockholders, necessary for the authorization, execution, delivery
and performance of this Agreement, and any instrument or agreement required
hereunder on the date hereof, (f) requires no consent or approval of any trustee
or holder of any indebtedness or obligation of Borrower to enter into, deliver
or perform its obligations under this Agreement and the Notes, and (g) requires
no consent, permission, authorization, order or license of any governmental
authority in connection with the execution and delivery and performance of this
Agreement and any instrument or agreement required hereunder, or any transaction
contemplated hereby, except as may have been obtained and certified copies of
which have been delivered to Banks through Administrative Agent.
6.2 Binding Obligations. This Agreement is the legal, valid and
-------------------
binding obligation of Borrower, enforceable against it in accordance with its
terms, and any instrument or agreement
-20-
required hereunder, when executed and delivered, will be similarly valid,
binding and enforceable.
6.3 Incorporation of Restricted Subsidiaries. Each Restricted
----------------------------------------
Subsidiary of Borrower is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and, to
the best of Borrower's knowledge, is duly licensed or qualified as a foreign
corporation in all jurisdictions where the failure to be so qualified,
authorized and in good standing would have a material adverse effect on Borrower
and its Restricted Subsidiaries taken as a whole.
6.4 No Contravention. There is no charter, by-law, or capital stock
----------------
provision of Borrower and no provision of any indenture or material agreement,
written or oral, to which Borrower is a party or under which Borrower is
obligated, nor is there any statute, rule or regulation, or any judgment, decree
or order of any court or agency binding on Borrower which would be contravened
by the execution, delivery and performance of this Agreement, or any instrument
or agreement required hereunder, or by the performance of any provision,
condition, covenant or other term hereof or thereof.
6.5 Notices. Except as previously disclosed in writing to
-------
Administrative Agent, no event has occurred which, to the best of its knowledge,
would require Borrower to notify Administrative Agent and the Banks pursuant to
Section 7.3 hereof.
6.6 Financial Statements. The financial statements dated December 31,
--------------------
1996 furnished by Xxxxxx Electronics Corporation (as in effect prior to the
Reorganization) to the Administrative Agent and Banks, present fairly the
financial position and results of operation and changes in financial position of
Xxxxxx Electronics Corporation and its consolidated Subsidiaries as at the end
of, and for the fiscal periods to which such statements relate, and such
financial statements were prepared in accordance with GAAP. The unaudited pro
forma condensed combined financial statements for the nine months ended
September 30, 1997 contained in the GMC S-4 give effect to the Reorganization as
set forth therein. Since the date of the unaudited pro forma condensed combined
statements, there has been no Material Change. Neither Borrower nor any
Subsidiary had any contingent obligations, liabilities for taxes or other
outstanding financial obligations at September 30, 1997 on a pro forma basis
which are material in the aggregate, except as disclosed in such unaudited pro
forma condensed combined statements.
6.7 ERISA. Based upon ERISA and the regulations and published
-----
interpretations thereunder, the Plans of Borrower and its Subsidiaries and, to
the knowledge of Borrower, the Plans of any other ERISA Affiliates, are in
material and substantial compliance in all material respects with the applicable
provisions of ERISA and Borrower and its Subsidiaries are in compliance with
such Plans in all material respects. No Reportable Event which has or could be
reasonably be expected to result in termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan has occurred and is
continuing with respect to any Plan.
6.8 Regulation U. Borrower is not engaged principally, or as one of its
------------
important activities, in the business of extending credit for the purposes of
purchasing or carrying any
-21-
"margin stock" within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System; and neither Borrower nor any of its Subsidiaries is
an "investment company" within the meaning of the Investment Company Act of
1940.
6.9 Taxes. Borrower has filed all federal and state tax returns which
-----
to the knowledge of the financial officers of Borrower are required to have been
filed, and has paid prior to delinquency all taxes that have become due pursuant
to said returns or pursuant to any assessment, except as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been provided on the books of Borrower in accordance with GAAP.
6.10 Insurance. Borrower and its Restricted Subsidiaries maintain
---------
insurance with responsible insurance companies, in such amounts and against such
risks as is customarily carried by owners of similar businesses and property,
including protection against loss of use and occupancy, to the extent such
insurance is reasonably available at commercially reasonable rates, and it will
furnish Administrative Agent, upon written request, with full information as to
the insurance carrier; provided, however, that Borrower and its Restricted
-------- -------
Subsidiaries may self insure to the extent they deem prudent.
6.11 Liens. The properties and assets of Borrower and its Restricted
-----
Subsidiaries, real, personal and mixed, are not subject to any Liens, except for
Liens permitted by this Agreement.
SECTION 7
AFFIRMATIVE COVENANTS OF BORROWER
7. Borrower covenants and agrees that so long as the credit hereby
granted shall remain available in whole or in part or until the full and final
payment of all indebtedness incurred hereunder, unless Majority Banks waive
compliance in writing:
7.1 Use of Proceeds of Loans. It will use the proceeds of the Loans
------------------------
made by Banks to Borrower hereunder for the repayment of Commercial Paper and
for its general working capital requirements, including acquisition and
improvement of plant, property and equipment and acquisitions.
7.2 Management of Business. It will manage its business and conduct its
----------------------
affairs such that the representations and warranties contained in Sections 6.1
through 6.3 and 6.7 through 6.9 remain true and correct at all times during the
Availability Period.
7.3 Notice of Certain Events. It will, and it will cause each of its
------------------------
Restricted Subsidiaries to, give prompt written notice to Administrative Agent
(who shall promptly notify the Banks) of:
(a) all Events of Default or Unmatured Events of Default under any of the
terms or provisions of this Agreement;
(b) any event of default under any other agreement, contract, indenture,
document or instrument entered, or which may be entered, into by it that could,
if settled unfavorably, result in a Material Change;
-22-
(c) all material changes in senior management otherwise publicly
announced;
(d) all litigation, arbitration or administrative proceedings involving
Borrower or any of its Subsidiaries which could in the reasonable opinion of
Borrower be expected to result in a Material Change;
(e) any other matter which has resulted in, or might in the reasonable
opinion of Borrower result in, a Material Change;
(f) concurrently with the public announcement thereof, any proposed Merger
or Disposition affecting any Restricted Subsidiary; and
(g) any change in any Debt Rating by S&P or Xxxxx'x.
7.4 Records. It will, and it will cause each of its Restricted
-------
Subsidiaries to, keep and maintain full and accurate accounts and records of its
operations according to GAAP and will permit Administrative Agent, and its
designated officers, employees, agents, and representatives, to have access
thereto and to make examination thereof at all reasonable times, to make audits,
and to inspect and otherwise check its properties, real, personal and mixed;
provided, however, that such examination and access shall be in compliance with
-------- -------
security and confidentiality requirements of all governmental authorities and,
subject to Section 11.16, Borrower's corporate policies.
7.5 Information Furnished. It will furnish to Banks and Administrative
---------------------
Agent:
(a) Within 60 days after the close of each quarter, except for the last
quarter of each fiscal year, its consolidated balance sheet as of the close of
such quarter and its consolidated profit and loss statement and cash flow
statement for that quarter and for that portion of the fiscal year ending with
such quarter, all prepared in accordance with GAAP, and all certified by its
Treasurer or an Assistant Treasurer as presenting fairly the financial position
and results of operation and changes in financial position of Borrower and its
consolidated Subsidiaries as at the end of, and for the fiscal period to which
such statements relate, subject to normal year-end adjustments.
(b) Within 120 days after the close of each fiscal year, a complete copy
of its annual financial statements, which statements shall include at least its
consolidated balance sheet as of the close of such fiscal year and its
consolidated profit and loss statement and cash flow statement for such fiscal
year, prepared by Deloitte & Touche (or such other independent certified public
accountants of recognized international standing selected by Borrower) in
accordance with GAAP applied on a basis consistent with that of the previous
year, and which statements shall include the opinion of such accountants, such
opinion not to be qualified or limited because of any restricted or limited
nature of examination made by such accountants or because of a "going concern"
qualification.
(c) Within 60 days after the close of each quarter except for the last
quarter of each fiscal year, (and within 120 days after the close of each fiscal
year) its certificate executed by Borrower's Treasurer or an Assistant Treasurer
that (i) the representations and warranties set forth in Section 6 (with the
exception of Section 6.6) are true and correct in all material respects;
-23-
and (ii) no Event of Default or Unmatured Event of Default has occurred and is
continuing except such Events of Default or Unmatured Events of Default as have
been expressly waived by or on behalf of the Banks.
(d) Such other information concerning its affairs as Administrative Agent
or the Majority Banks may reasonably request.
7.6 Execution of Other Documents. It will promptly, upon demand by
----------------------------
Administrative Agent, execute all such additional agreements, documents and
instruments in connection with this Agreement as Administrative Agent or
Majority Banks may deem necessary.
7.7 ERISA. It will, and it will cause each of its Subsidiaries to:
-----
(a) At all times, make prompt payment of contributions required to meet
the minimum funding standard set forth in ERISA with respect to its Plans,
except to the extent that waivers are granted by the appropriate governmental
agencies;
(b) Notify Administrative Agent immediately of (i) any Reportable Event
which could reasonably be expected to result in aggregate liability to Borrower
and its Subsidiaries in excess of $75,000,000 and (ii) any other fact arising in
connection with any of its Plans or a Plan of any ERISA Affiliate which has
resulted, or could reasonably be expected to result, in termination thereof by
the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer such Plan,
in each case together with a statement, if requested by Administrative Agent, as
to the reasons therefor and the action, if any, which Borrower or such ERISA
Affiliate proposes to take with respect thereto; and
(c) Furnish to Administrative Agent, upon its written request, such
information concerning any of its Plans as may be reasonably requested.
7.8 Administrative Agent's Fees. It will compensate Administrative Agent
---------------------------
as set forth in the Letter Agreement.
7.9 Compliance with Law. It will, and will cause each of its
-------------------
Subsidiaries to, comply with the requirements of all applicable laws, rules,
regulations, and orders of any governmental or regulatory authority, a breach of
which would result in a Material Change, except where contested in good faith by
appropriate proceedings diligently pursued.
SECTION 8
NEGATIVE COVENANTS OF BORROWER
8. Borrower covenants and agrees that so long as the credit hereby
granted shall remain available in whole or in part or until the full and final
payment of all indebtedness incurred hereunder, unless Majority Banks waive
compliance in writing:
8.1 Liens.
-----
-24-
(a) Borrower will not, nor will it permit any Restricted Subsidiary to,
issue, incur, guaranty or assume any indebtedness for money borrowed secured by
a Lien upon any property or assets of Borrower or any Restricted Subsidiary or
upon any shares of stock or indebtedness of any Restricted Subsidiary (whether
such property, assets, shares of stock or indebtedness are now owned or
hereafter acquired) without in any such case effectively providing concurrently
with the issuance, incurrence, guarantee or assumption of any such indebtedness
that the Commitments and Loans and any other obligations of Borrower to the
Banks (together with, if Borrower shall so determine, any other indebtedness of
Borrower or such Restricted Subsidiary ranking equally with the Commitments and
Loans and such other obligations and then existing or thereafter created) shall
be secured equally and ratably with or prior to such indebtedness by a Lien upon
such property, assets, shares of stock or indebtedness, unless the aggregate
amount of such indebtedness for money borrowed secured by such Liens, together
with all other indebtedness for money borrowed of Borrower and its Subsidiaries
which (if originally issued, incurred, guaranteed or assumed at such time) would
otherwise be subject to the foregoing restrictions (but not including
indebtedness for money borrowed permitted to be secured under sub-clauses (1)
through (7) of Section 8.1(b)), does not at the time exceed 5% of Consolidated
Adjusted Net Worth.
(b) The above restrictions shall not apply to indebtedness of Borrower or
any of its Restricted Subsidiaries secured by:
(1) Liens existing as of the date hereof and listed in Exhibit E;
(2) Liens on property, assets, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(3) Liens on property existing at the time of acquisition of such
property by Borrower or a Restricted Subsidiary, or Liens to secure the
payment of all or any part of the purchase price of property upon the
acquisition of such property by Borrower or a Restricted Subsidiary or to
secure any indebtedness incurred or guaranteed prior to, at the time of, or
within 180 days after, the later of the date of acquisition of such
property and the date such property is placed in service, for the purpose
of financing all or any part of the purchase price thereof, or Liens to
secure any indebtedness incurred or guaranteed for the purpose of financing
the cost to Borrower or a Restricted Subsidiary of improvements to such
acquired property; provided, however, that for purposes of this clause 3,
-------- -------
(i) a satellite will be treated as a newly-acquired asset as of the date it
is placed in service and (ii) any satellite transponder acquired through
the exercise of an early buy-out option shall be treated as a newly-
acquired asset as of the date such option is exercised;
(4) Liens securing indebtedness of a Restricted Subsidiary owing to
Borrower or to another Restricted Subsidiary;
(5) Liens on property of a corporation existing at the time such
corporation is merged or consolidated with Borrower or a Restricted
Subsidiary (in accordance with Section 8.2) or at the time of a sale, lease
or other disposition of the properties of a corporation as an entirety or
substantially as an entirety to Borrower or a Restricted Subsidiary;
-25-
(6) Liens on property of Borrower or a Restricted Subsidiary in favor
of the United States of America or any state thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any state thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
Liens; or
(7) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Liens referred to in
the foregoing sub-clauses (1) to (6), inclusively; provided, however, that
-------- -------
the principal amount of indebtedness secured thereby shall not exceed the
principal amount of indebtedness so secured at the time of the incurrence
or guarantee thereof and that such extension, renewal or replacement shall
be limited to all or a part of the property which secured the Lien so
extended, renewed or replaced (plus improvements on such property).
8.2 Mergers, Liquidations and Sales of Assets. It will not, nor will it
-----------------------------------------
permit any of its Restricted Subsidiaries to liquidate or dissolve or enter into
any consolidation, merger, partnership, joint venture, syndicate, pool or other
combination which results in a Material Change in the nature of Borrower's
business taken as a whole (collectively, the "Mergers") or convey, sell or lease
all or substantially all of its assets or business (collectively,
"Dispositions"), except for:
(a) mergers between Subsidiaries, or between Subsidiary and Borrower where
Borrower is the surviving corporation;
(b) mergers where Borrower is the surviving corporation;
(c) transfers of assets from one Restricted Subsidiary to another
Restricted Subsidiary or from any Restricted Subsidiary to Borrower;
(d) sales, leases, transfers or assignments of operating rights, licenses
or franchises in transactions which do not result in a Material Change different
from changes heretofore publicly disclosed;
(e) Dispositions of any Restricted Subsidiary provided both Debt Ratings
remain Investment Grade on the effective date of any such dispositions; and
(f) the Reorganization;
provided, however, no Disposition or Merger otherwise permitted by clauses (a)
-------- -------
through (e) above shall take place if before, or after giving effect to any such
Disposition or Merger, an Event of Default or Unmatured Event of Default exists
is or would exist.
8.3 Defaults. It will not, nor will it permit any of its Restricted
--------
Subsidiaries to, commit or do any act or thing which would constitute an event
of default under any of the material terms or provisions of any other material
agreement, contract, indenture, document or
-26-
instrument executed, or to be executed by any of them, except those that may be
contested in good faith and would not, if settled unfavorably, result in a
Material Change.
8.4 Compliance with Regulations. Borrower will not engage principally,
---------------------------
or as one of its important activities, in the business of extending credit for
the purposes of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System; and it
will not use the proceeds of any Loan for the purpose, directly or indirectly,
whether immediate, incidental or ultimate, (a) to purchase or carry, within the
meaning of such Regulation U, any such margin stock or to extend credit to
others for the purpose of purchasing or carrying any such margin stock, unless
done in strict compliance with such Regulation U and other applicable law and
Borrower shall have executed and delivered to each Bank prior to such use a Form
U-1 statement evidencing compliance with such Regulation U and such other
documents relating thereto as Administrative Agent or any Bank shall request, or
(b) in a manner which would violate, or result in a violation of, Regulation G,
T, U, or X of the Board of Governors of the Federal Reserve System.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default. If one or more of the following described
-----------------
Events of Default shall occur:
(a) Borrower shall default in the due and punctual payment of (i) the
principal of or the interest on any Loan within two Business Days of its due
date, (ii) any fee due hereunder within 10 Business Days of its due date; or,
(iii) any other amount due from it hereunder within 30 Business Days of its due
date; or
(b) Borrower or any of its Restricted Subsidiaries shall fail to perform
or observe any of the terms, provisions, covenants, conditions, agreements or
obligations contained herein (other than Section 7.3, and Sections 8.1 through
8.4,) and such failure shall continue for more than 20 days after written notice
from Administrative Agent to Borrower of the existence and character of such
failure to perform or observe; or
(c) Borrower or any of its Restricted Subsidiaries shall fail to perform
or observe any of the terms, provisions, covenants, conditions agreements or
obligations contained in Section 7.3 and Sections 8.1 through 8.4; or
(d) (i) Borrower, or any of its Restricted Subsidiaries shall become
insolvent, or be unable, or admit in writing its inability, to pay its debts as
they become due; or (ii) Borrower or any Restricted Subsidiary shall make an
assignment for the benefit of creditors or to an agent authorized to liquidate
any substantial amount of its properties or assets; or (iii) Borrower or any
Restricted Subsidiary shall file or have filed against it a petition in
bankruptcy or seeking reorganization or to effect a plan or other arrangement
with creditors or winding up or dissolution and such filing against it shall not
be dismissed within 60 days after the date of such filing; or (iv) Borrower or
any Restricted Subsidiary shall apply for or consent to the appointment of or
consent that an order be made appointing any receiver or trustee for any of its
or their properties, assets or business, or if a receiver or a trustee shall be
appointed for all or a substantial part of its or their properties, assets or
business; or (v) an order for relief shall be
-27-
entered against Borrower or any Restricted Subsidiary under the United States
federal bankruptcy laws as now or hereafter in effect; or (vi) Borrower or any
Restricted Subsidiary shall take any action indicating its consent to, approval
of or acquiescence in, any of the foregoing; or
(e) Any representation or warranty made by Borrower herein or in any
certificate or financial or other statement heretofore or hereafter furnished by
Borrower or any of its officers to Administrative Agent or the Banks proves to
be in any material respect false or misleading as of the date when made, deemed
made or reaffirmed; or
(f) Any final judgment, decrees, writs of execution, attachments or
garnishments or any Liens, or any other legal processes shall be issued or
levied against any of the assets or property of Borrower or any of its
Restricted Subsidiaries (and shall not have been vacated, discharged or stayed)
in amounts which in the aggregate would result in a Material Change (without
limiting the generality of the foregoing, a judgment in excess of $75,000,000 in
the aggregate shall, for purposes only of this Section 9.1(f), be deemed to
result in a Material Change); provided, however, that such aggregate amount
-------- -------
shall include only amounts in excess of (i) insurance coverage therefor and (ii)
reserves on the books of Borrower or any of its Restricted Subsidiaries
therefore; provided, further, that such aggregate amount shall not include any
-------- -------
amounts with respect to matters subject to appeal conducted in good faith and
diligently pursued or other further legal process by Borrower or any of its
Restricted Subsidiaries or any amounts with respect to any such legal process
which Borrower or any of its Restricted Subsidiaries has detached from such
property by posting of a bond or equivalent process; or
(g) All, or substantially all, of the assets and property of Borrower or
any of its Restricted Subsidiaries shall be condemned, seized or otherwise
appropriated; or
(h) Any fact or circumstance (including without limitation a Reportable
Event), which results in, or which Majority Banks determine in good faith could
reasonably be expected to result in, the termination of any Plan of Borrower,
any of its Subsidiaries or any ERISA Affiliate by the Pension Benefit Guaranty
Corporation or the appointment by an appropriate United States District Court of
a trustee to administer any such Plan, shall occur and shall continue for 30
days after written notice of such determination shall have been given to
Borrower or any of its Subsidiaries by Administrative Agent, or a trustee shall
be appointed by the appropriate United States District Court to administer any
Plan of Borrower or any of its Subsidiaries, or the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan of Borrower or any
of its Subsidiaries or to appoint a trustee to administer any such Plan and,
upon the occurrence of any of the foregoing, the aggregate amount of the
unfunded vested liability for the benefits guaranteed by the Pension Benefit
Guaranty Corporation under all such Plans and the present value of any
Withdrawal Liability which remains unpaid is reasonably estimated to be in
excess of $75,000,000 and such liability is not covered by insurance; or
(i) Borrower or any of its Restricted Subsidiaries (i) fails to make any
payment (or otherwise satisfy) in respect of any indebtedness for money borrowed
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on the date of
such failure; or (ii) an event of default shall occur which permits the
-28-
acceleration of indebtedness for money borrowed under any other agreement,
contract, indenture, document or instrument executed, or which may be executed,
by Borrower or any of its Restricted Subsidiaries, which failure or event of
default has not been waived or cured; provided, however, that no Event of
-------- -------
Default shall exist hereunder if the amount of the indebtedness which is not
paid or may be accelerated with respect to the defaulted obligations shall not
exceed in the aggregate $75,000,000; or
(j) Either Debt Rating is less than Investment Grade;
(k) Any disposition of any Restricted Subsidiary shall have occurred, and:
(i) prior to such disposition, either S&P or Xxxxx'x shall have
publicly announced that Borrower's Debt Rating will be below Investment
Grade after giving effect to such disposition; or
(ii) as soon as reasonably practicable after its public announcement
of such disposition, Borrower shall not have requested S&P and Xxxxx'x to
publicly announce, prior to or no later than concurrently with the
consummation of such disposition, that Borrower's Debt Rating will remain
at least Investment Grade after giving effect to such disposition; or
(iii) notwithstanding clause (ii), either S&P or Xxxxx'x shall not
have publicly announced within 10 days after the consummation of such
disposition that Borrower's Debt Ratings will remain at least Investment
Grade after giving effect to such disposition; or
(l) Any sale, spin-off, disposition or other transaction whereby General
Motors Corporation will no longer beneficially own directly or indirectly at
least 51 percent of the issued and outstanding capital stock of Borrower having
voting power under ordinary circumstances to elect directors of Borrower (a
"transaction") shall have occurred and:
(i) prior to such transaction, either S&P or Xxxxx'x shall have
publicly announced that its Debt Rating will be below Investment Grade
after giving effect to such transaction; or
(ii) as soon as reasonably practicable after its public announcement
of such transaction, Borrower shall not have requested S&P and Xxxxx'x to
publicly announce, prior to or no later than concurrently with the
consummation of such transaction, that Borrower's Debt Rating will remain
at least Investment Grade after giving effect to such transaction; or
(iii) notwithstanding clause (ii), either S&P or Xxxxx'x shall not
have publicly announced within 10 days after the consummation of such
transaction that its Debt Ratings will remain at least Investment Grade
after giving effect to such transaction.
Then (a) automatically upon the occurrence of an Event of Default under Section
9.1(d), the Commitments shall immediately terminate, and all Loans and other
liabilities and obligations outstanding under this Agreement shall, without
presentment, demand, protest, or notice of any
-29-
kind, all of which are hereby expressly waived, be forthwith due and payable, if
not herein otherwise then due and payable, together with all costs and expenses
(including break and funding costs and other costs in connection with the
relending, reborrowing, funding or other employing of funds) incurred by the
Banks as a result thereof, anything herein or in any agreement, contract,
indenture, document or instrument contained to the contrary notwithstanding; and
(b) at any time after the occurrence of an Event of Default other than under
Section 9.1(d), and in each and every such case, unless such Event of Default
shall have been remedied by Borrower to the satisfaction of Majority Banks or
waived in writing by Majority Banks (except in the case of an Event of Default
under Section 9.1(a), the waiver of which shall require the consent of all the
Banks), Administrative Agent may, with the consent of the Majority Banks, or
shall, upon the direction of Majority Banks, immediately terminate the
Commitments, whereupon the same shall be cancelled and reduced to zero and any
Loan Request given in respect of a Borrowing Date occurring on or after the date
of such notice of cancellation shall cease to have effect and all Loans and all
accrued interest thereon and all other liabilities and obligations outstanding
under this Agreement shall, thereupon, without presentment, demand, protest, or
notice of any kind, all of which are hereby expressly waived, be forthwith due
and payable, if not otherwise then due and payable, together with all reasonable
costs and expenses (including break and funding costs and other costs in
connection with the relending, reborrowing, funding or other employing of funds)
incurred by the Banks as a result thereof, anything herein or in any other
agreement, contract, indenture, document or instrument contained to the contrary
notwithstanding. Thereafter any Bank or the Banks may immediately, and without
expiration of any period of grace, enforce payment of all liabilities and
obligations of Borrower under this Agreement and under any other agreements,
contracts, indentures, documents and instruments between Borrower and the Banks.
9.2 Recovery of Amounts Due. If any amount payable hereunder is not
-----------------------
paid as and when due, Borrower hereby authorizes Administrative Agent, each Bank
and their respective affiliates to proceed, to the fullest extent permitted by
applicable law, without prior notice, by right of set-off, banker's lien or
counterclaim, against any moneys or other assets of Borrower in any currency
that may at any time be in the possession of Administrative Agent or any of its
affiliates or such Bank or any of its affiliates, at any branch or office
thereof, to the full extent of all amounts payable to Administrative Agent and
the Banks hereunder. Any Bank that so proceeds or that has an affiliate that so
proceeds shall forthwith give notice to Administrative Agent of any action taken
by such Bank or affiliate pursuant to this Section 9.2.
9.3 Rights Cumulative. The rights of Administrative Agent and the
-----------------
Banks provided for herein are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity.
SECTION 10
THE BANKS
10.1 Administration of Loan. The general administration of the Loans
----------------------
shall be by Administrative Agent and shall be governed by the provisions set
forth in Exhibit C attached hereto and incorporated herein by reference.
-30-
10.2 Representations By Banks. Each Bank hereby represents that it will
------------------------
make each Loan hereunder in the ordinary course of its business and not with a
view to engage in any distribution of any evidence of indebtedness to the public
and any participation or disposition of the Master Bid Rate Note shall not,
without the consent of Borrower, require Borrower to file a registration
statement with the Securities and Exchange Commission or apply to qualify any
Master Bid Rate Note under the blue sky law of any state; provided, however,
disposition of any evidence of indebtedness held by such Bank shall at all times
be within its exclusive control subject only to the provisions of Section 11.11
and Section 10 of Exhibit C.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
----------------------
this Agreement, and no consent with respect to any departure by the Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
the Majority Banks (or by the Administrative Agent at the written request of the
Majority Banks) and the Borrower and acknowledged by the Administrative Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
-------- -------
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Borrower and acknowledged by the Administrative Agent, do any
of the following: (a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 9.1); (b) postpone or
delay any date fixed by this Agreement for any payment of principal, interest,
fees or other amounts due to the Banks (or any of them) hereunder; (c) reduce
the principal of, or the rate of interest specified herein on any Loan, or any
fees or other amounts payable hereunder; (d) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans which is
required for the Banks or any of them to take any action hereunder; or (e) amend
this Section or any provision herein providing for consent or other action by
all Banks; provided, further, that no amendment, waiver or consent shall, unless
-------- -------
in writing and signed by the Administrative Agent in addition to the Majority
Banks or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or rights or privileges thereunder.
11.2 Notices. All notices, payments, requests, reports, information,
-------
demands and other communications which any party hereto may desire, or may be
required, to give or make to any other party hereto, shall (unless otherwise
permitted as a telephonic notice or request hereunder) be given by mailing the
same, postage prepaid, or by telex, or rapifax transmission, or by hand delivery
or courier, to each party at its address set forth in Exhibit D attached hereto
and incorporated herein by reference, or to such other address as may, from time
to time, be specified in writing by Borrower or any Bank. Such communications
shall be deemed to have been duly given and received in the case of a telex,
when the telex is sent and the appropriate answer-back is received, in the case
of mail when sent by pre-paid certified or registered mail correctly addressed
to the addressee, in the case of rapifax transmission, when transmission has
been sent, in the case of hand delivery or courier, when received.
Administrative Agent may rely and act upon any Loan Request made by telex or
other telexed, telephonic or facsimile instructions to Administrative Agent by
any Person purporting to be an authorized Person of Borrower, and Borrower shall
be unconditionally and absolutely estopped from denying the authenticity and
validity of any transaction or act made by Administrative Agent or any Bank in
reliance thereon.
-31-
Each party hereto shall promptly confirm by telex or rapifax any telephone
communication made by it to another pursuant to this Agreement but the absence
of such confirmation shall not affect the validity of such communication, which
shall be effective upon receipt. If there is any conflict between any telephonic
communication and a written confirmation, the written communication shall
govern; provided, however, that the recipient of such communication shall be
-------- -------
held harmless by all parties hereto with respect to any action taken in reliance
on the telephonic communication prior to the time such recipient receives and
has had reasonable time to review the subsequent written confirmation and
initiate such corrective action as the recipient deems reasonable under the
circumstances.
11.3 Waiver. Neither the failure of, nor any delay on the part of, any
------
party hereto in exercising any right, power or privilege hereunder, or under any
agreement, contract, indenture, document or instrument mentioned herein, shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder, or under any agreement, contract,
indenture, document or instrument mentioned herein, preclude other or further
exercise thereof or the exercise of any other right, power or privilege; nor
shall any waiver of any right, power, privilege or default hereunder, or under
any agreement, contract, indenture, document or instrument mentioned herein,
constitute a waiver of any other right, power, privilege or default or
constitute a waiver of any other default of the same or of any other term or
provision. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law.
11.4 California Law. The interpretation, enforcement and effect of this
--------------
Agreement, the Loans and any agreements, contracts, indentures, documents or
instruments delivered in accordance herewith, shall be governed and controlled
in all respects by and construed according to the substantive laws of the State
of California, to the jurisdiction of whose courts the parties hereto hereby
agree to submit.
11.5 Headings. The headings set forth herein are solely for the purpose
--------
of identification and shall not be construed as a part of the sections or
subsections which they head.
11.6 Accounting Terms. All accounting terms not otherwise defined herein
----------------
have the meaning assigned to them in accordance with GAAP, provided, however,
any act or condition in accordance herewith and permitted hereunder when taken,
created or occurring, shall not become a violation of any section of this
Agreement as a result of a subsequent change in GAAP.
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, and
all of said counterparts taken together shall constitute one and the same
instrument.
11.8 Written Disclosure. Wherever written disclosure by Borrower to Banks
------------------
is required or permitted by this Agreement, written disclosure to
Administrative Agent by Borrower shall constitute such disclosure.
11.9 Singular; Plural. Whenever used herein, the singular number shall
----------------
include the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
-32-
11.10 Illegality. The illegality or unenforceability of any provision of
----------
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.11 Assignments. This Agreement shall bind and inure to the benefit of
-----------
the parties hereto and their respective successors and assigns. No party hereto
may assign or transfer all or any part of its rights and obligations hereunder,
except that:
(a) Any Bank may, with the prior written consent of Borrower at all times
other than during the existence of an Event of Default, and the Administrative
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
Borrower or the Administrative Agent shall be required in connection with any
assignment and delegation by Bank to an Approved Bank Affiliate of such Bank or
another Bank) (each an "Assignee"), all, or any ratable part of all, of the
Loans, the Commitments and the other rights and obligations of such Bank
hereunder; provided, however, that any assignment to an Eligible Assignee which
is not a Bank or an Approved Bank Affiliate shall be of all, but not less than
all, of the Loans, the Commitment and the other rights and obligations of such
Bank hereunder; provided, further, that upon any such assignment hereunder, such
Bank shall concurrently assign to the same Assignee a ratable portion of its
loans, commitments and other rights and obligations under the Revolving Credit
Agreement (364-Day Facility) dated as of even date herewith, among Borrower,
the banks parties thereto, Bank of America National Trust and Savings
Association, as administrative agent, Xxxxxx Guaranty Trust Company of New York,
as syndication agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
documentation agents. Upon execution of a written agreement in form
satisfactory to Administrative Agent by such Eligible Assignee in which it
agrees to abide by all of the terms, conditions and obligations applicable to a
Bank herein and to have a Commitment as specified in such agreement, such
Eligible Assignee shall be deemed a Bank hereunder to the same extent as if it
were a signatory hereto and, thereafter, such Eligible Assignee shall for all
purposes be considered a "Bank" hereunder. Administrative Agent shall be
entitled to a $2,500 processing fee, payable by the assignor, with respect to
any such assignment by a Bank.
(b) Subject to Section 11.16, Borrower authorizes each Bank and the
Arranger to disclose to any prospective assignee and assignee any and all
information in such Bank's or the Arranger's possession concerning Borrower,
this Agreement and any collateral.
11.12 Obligations Several. The obligations of each Bank under this
-------------------
Agreement are several. Neither Administrative Agent nor any Bank shall be
liable for the failure of any other Bank to perform its obligations under this
Agreement.
11.13 Participations. Any Bank may at any time sell, or grant
--------------
participations in all or part of its Commitment or any Loan or Loans made to
Borrower under this Agreement to any other Person, other than an individual, (a
"Participant"); provided, however, no Bank may be relieved of its obligations
under this Agreement except with the consent of Borrower and Administrative
Agent. Any such sale or grant of a participation is subject to the following
conditions:
-33-
(a) Administrative Agent and Borrower may, for all purposes of this
Agreement, deem and treat a Bank party to this Agreement as the owner of such
Bank's Loans hereunder for all purposes hereof until a written notice of the
sale or participation shall have been received by Administrative Agent, together
with Borrower's consent to treat such Participant as owner of such Loan.
(b) Subject to Section 11.16, Borrower authorizes each Bank and the
Administrative Agent to disclose to any prospective Participant and to any
Participant any and all information in such Bank's or the Administrative Agent's
possession concerning Borrower, this Agreement and any collateral.
(c) Any agreement pursuant to which a Bank grants a participation in its
rights with respect to any Loan or Loans shall provide that, with respect to any
such Loan or Loans, such Bank shall retain the sole right and responsibility to
exercise the rights of a Bank under this Agreement including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement and the right to take action to declare any amount
due and payable pursuant to Section 9; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement without the consent of the Participant if
such modification, amendment or waiver would (i) increase the amount of the
Total Commitment or change the Commitment of such Bank, (ii) reduce interest,
principal or fees owing to such Bank hereunder, (iii) extend the fixed date on
which any sum is due hereunder, or (iv) release or subordinate any collateral.
(d) Except as provided in this Section 11.13, no recipient of a
participation in a Loan or Loans of any Bank shall have any rights under this
Agreement other than to receive payment of principal of, and interest on the
Loans and of such other amounts as Banks are entitled to receive pursuant to
Sections 3.1, 3.2, 3.3, and 3.4 of this Agreement; provided, however such
recipients shall be entitled to receive pursuant to Sections 3.1, 3.2 and 3.3
only the lesser of (i) the amount that the Bank from which the recipient
received its participation would have received had such Bank not transferred an
interest in its Loans to such recipient and (ii) the additional costs actually
incurred by such recipient; and any demand by a Participant for payment
hereunder shall certify that the amount demanded does not exceed the amount
Participant is entitled to receive under this subsection (d).
(e) Notwithstanding any other provision set forth in this Agreement, any
Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Loans owing to
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
11.14 Fees and Expenses. Borrower agrees to pay on demand (a) to
-----------------
Administrative Agent all reasonable costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by
Administrative Agent in connection with the preparation and administration of
this Agreement and any documents including any amendments, waivers, or other
modifications and (b) all reasonable costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by
Administrative Agent and Banks in connection with the enforcement of this
Agreement and any instrument or agreement required hereunder and in connection
with any refinancing or restructuring of the Loans in the nature of a "work-
out";
-34-
provided, however that, in addition to costs of Administrative Agent's in-house
counsel, Borrower shall be obligated to pay for the costs of no more than one
counsel for Administrative Agent and all Banks (without prejudice to any Bank's
right to engage additional counsel at its own cost and expense) unless any Bank
shall in good faith reasonably determine that there is a conflict of interest
that causes it to be reasonably necessary for such Bank to be represented by
separate counsel.
11.15 Indemnity. Borrower agrees to indemnify the Administrative Agent,
---------
the Arranger the Syndication Agent, the Documentation Agents, each Bank and
their respective directors, officers, agents and employees (collectively, the
"Indemnitees") from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses reasonably incurred by any of them
arising out of or by reason of any investigation by governmental or judicial
authorities or being made a party to any litigation or other similar proceeding
related to any use made or proposed to be made by Borrower of the proceeds of
any Loan for the acquisition of any other Person including, without limitation,
the reasonable fees and disbursements of counsel (including allocated costs for
in-house legal services) incurred in connection with any such investigation,
litigation or other proceeding; provided, however, that Borrower shall have no
-------- -------
obligation to indemnify or pay for the costs and expenses of more than one
counsel for the Indemnitees, unless any Indemnitee shall in good faith
reasonably determine that there is a conflict of interest that causes it to be
reasonably necessary for any Indemnitees to be represented by other counsel.
Counsel chosen to represent the any Indemnitee pursuant to the previous sentence
shall be reasonably satisfactory to Borrower. The obligations of Borrower under
this Section shall survive the termination of this Agreement.
11.16 Confidentiality. In consideration of Borrower furnishing
---------------
Confidential Information(as defined below) to the Banks, the Arranger, the
Administrative Agent, the Syndication Agent and the Documentation Agents,
(collectively, the "Recipients") and their respective directors, officers and
employees (collectively, the "Representatives"), each Recipient agrees for
itself that:
(a) Such Recipient shall keep the Confidential Information confidential
and shall not, without Borrower's prior written consent, disclose it in any
manner whatsoever, in whole or in part, and shall not use the Confidential
Information other than in connection with this Agreement. Each Recipient agrees
to reveal the Confidential Information only to its Representatives, bank
affiliates, auditors, counsel and other advisors, representatives or agents who
need to know the Confidential Information for the purpose of this Agreement, who
are informed by such Recipient of the confidential nature of the Confidential
Information and who shall agree to act in accordance with the terms and
conditions of this section. Each Recipient shall be responsible for any breach
of this Section by its Representatives.
(b) Without Borrower's prior written consent, no Recipient shall
disclose to any Person the fact that the Confidential Information has been made
available, that such Recipient is entering into this Agreement, or any other
facts with respect to this Agreement.
(c) All copies of the Confidential Information shall be returned to
Borrower immediately upon its request, except for that portion of the
information which consists of analyses, compilations, forecasts, studies or
other documents prepared by a Recipient or its
-35-
Representatives based on Confidential Information, which portion shall, upon
Borrower's election, be destroyed (as evidenced by a certificate of destruction
signed by a duly authorized offer of such Recipient) or held by such Recipient
and kept confidential and subject to the terms of this section. Any oral
Confidential Information shall continue to be subject to the terms of this
Section.
(d) Confidential Information shall not include such portions of the
information furnished to a Recipient which (i) are or become generally available
to the public other than as a result of a disclosure by such Recipient or its
Representatives in violation of this Agreement, (ii) become available to such
Recipient on a non-confidential basis from a source (other than Borrower or its
Representatives) which is not known by such Recipient to be prohibited from
disclosing such information to such Recipient, or (iii) were in such Recipient's
possession prior to being furnished to such Recipient or its Representatives
provided that the source of such information was not known by such Recipient to
be prohibited from disclosing the information to such Recipient.
(e) Except as otherwise expressly set forth in this Agreement, each
Recipient acknowledges that neither Borrower nor any of its Representatives
makes any express or implied representation or warranty as to the accuracy or
completeness of the information furnished to such Recipient, and that neither
Borrower nor any of its Representatives shall have any liability resulting from
the use of the information furnished to any Recipient, errors therein or
omissions therefrom.
(f) In the event any Recipient or any person to whom it transmits the
Confidential Information pursuant to this Agreement becomes legally compelled to
disclose any of the information, such Recipient shall, to the extent permitted
by law, provide Borrower with prompt written notice thereof so that the Borrower
may seek a protective order or other appropriate remedy and/or waiver such
Recipient's compliance with the provisions of this section. In the event that
such protective order or other remedy is not obtained, or that Borrower waives
any Recipient's compliance with the provisions of this section, such Recipient
may furnish only that portion of the Confidential Information which it is
advised by written opinion of counsel that the disclosure thereof is legally
required, and shall exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information so
disclosed.
(g) Notwithstanding the foregoing, a Recipient may (i) disclose any
Confidential Information to bank examiners; (ii) use any Confidential
Information in connection with the management, supervision and enforcement of
this Agreement, including the enforcement of such Recipient's rights under any
agreement executed in connection therewith; (iii) disclose any Confidential
Information in connection with any litigation or dispute involving any such
Person or the Borrower and related to this Agreement or to any use of proceeds
of the Loans; (iv) disclose any Confidential Information to other Recipients;
and (v) disclose Confidential Information to prospective assignees and
Participants and assignees and Participants pursuant to Sections 3.8, 11.11(b)
and 11.13(b); provided, further, that in each of the foregoing cases, such
Person shall use its best efforts to ensure that any such disclosure will be
made under procedures reasonably calculated to maintain the confidentiality of
such Confidential Information.
-36-
For purposes of this Section, "Confidential Information" means information
relating to the business, operation or technology of Borrower or its affiliates
which Borrower has furnished to the Banks, the Arranger, the Administrative
Agent, the Syndication Agent, the Documentation Agents or their Representatives
which is either non-public, confidential or proprietary in nature, together with
copies and other reproductions thereof, and analyses, compilations, forecasts,
studies or other documents prepared by any Banks or its Representatives which
contain or otherwise reflect such information.
This section shall survive termination of the Agreement.
11.17 Termination of Existing Agreements. The parties hereto agree that,
----------------------------------
effective as of the Effective Date, the Existing Agreements, and the commitments
thereunder, are terminated and no party has any outstanding obligations
thereunder.
-37-
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
in Los Angeles, California as of the date first hereinabove written.
XXXXXX NETWORK SYSTEMS, INC.
(to be renamed XXXXXX
ELECTRONICS CORPORATION)
By:___________________________
Title:________________________
S-1
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
By:___________________________
Xxxxxx Xxxxxxx
Vice President
S-2
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Syndication Agent and a Bank
By: ___________________________
Name: _________________________
Title: ________________________
S-3
CITICORP USA, INC., as Documentation
Agent and a Bank
By: ___________________________
Name: _________________________
Title: ________________________
S-4
THE CHASE MANHATTAN BANK, as
Documentation Agent and a Bank
By: ___________________________
Name: _________________________
Title: ________________________
S-5
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as a Bank
By:___________________________
Xxxxxx Xxxxx
Vice President
S-6
BANKERS TRUST COMPANY
By: __________________________
Name: ________________________
Title: _______________________
S-7
CREDIT SUISSE FIRST BOSTON
By: __________________________
Name: ________________________
Title: _______________________
By: __________________________
Name: ________________________
Title: _______________________
S-8
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By: ___________________________
Name: _________________________
Title: ________________________
S-9
THE MITSUBISHI TRUST & BANKING
CORPORATION, NEW YORK BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXXXXXXXXXX XX XXXXX, N.A.
By: ____________________________
Name: __________________________
Title: _________________________
X-00
XXXXXXX-XXXXXXXX (TEXAS), INC.
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXXXX XX XXXX - XXX XXXXXXXXX
XXXXXX
By: ___________________________
Name: _________________________
Title: ________________________
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXX XXXX XX XXX XXXX
By: ___________________________
Name: _________________________
Title: ________________________
S-14
CIBC INC.
By: ___________________________
Name: _________________________
Title: ________________________
S-15
CREDIT LYONNAIS NEW YORK
BRANCH
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXXXXXXX XXXX XX XXX XXXX
XXX/XX XXXXXX XXXXXXX
BRANCHES
By: ___________________________
Name: _________________________
Title: ________________________
By: ___________________________
Name: _________________________
Title: ________________________
S-17
THE FIRST NATIONAL BANK OF
CHICAGO
By: ___________________________
Name: _________________________
Title: ________________________
S-18
FIRST NATIONAL BANK OF
MARYLAND
By: ___________________________
Name: _________________________
Title: ________________________
S-19
THE FUJI BANK, LIMITED
LOS ANGELES AGENCY
By: ___________________________
Name: _________________________
Title: ________________________
S-20
THE INDUSTRIAL BANK OF JAPAN,
LIMITED LOS ANGELES AGENCY
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXXXXXXX XXXXXXXX XXX XXXXX XX
XXXXXX XxX
By: ___________________________
Name: _________________________
Title: ________________________
By: ___________________________
Name: _________________________
Title: ________________________
X-00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: ___________________________
Name: _________________________
Title: ________________________
S-23
SCHEDULE 1
BANKS AND COMMITMENTS
Bank Commitment Normal Percentage
---- ---------- -----------------
Bank of America National 59,062,500 7.8750%
Trust and Savings Association
The Chase Manhattan Bank 59,062,500 7.8750%
Citicorp USA 59,062,500 7.8750%
Xxxxxx Guaranty Trust Company 59,062,500 7.8750%
of New York
Bankers Trust Company 37,500,000 5.0000%
Credit Suisse First Boston 37,500,000 5.0000%
The Long-Term Credit Bank of 37,500,000 5.0000%
Japan, Ltd., Los Angeles
Agency
The Mitsubishi Trust and 37,500,000 5.0000%
Banking Corporation, New
York Branch
NationsBank of Texas, N.A. 37,500,000 5.0000%
The Toronto-Dominion Bank 37,500,000 5.0000%
Banca di Roma - San Francisco 26,250,000 3.5000%
Branch
The Bank of New York 26,250,000 3.5000%
CIBC Inc. 26,250,000 3.5000%
Credit Lyonnais New York 26,250,000 3.5000%
Branch
Deutsche Bank AG New York 26,250,000 3.5000%
and/or Cayman Island Branches
-1-
The First National Bank of 26,250,000 3.5000%
Chicago
First National Bank of 26,250,000 3.5000%
Maryland
The Fuji Bank, Limited, Los 26,250,000 3.5000%
Angeles Agency
The Industrial Bank of Japan, 26,250,000 3.5000%
Limited, Los Angeles Agency
Istituto Bancario San Paolo 26,250,000 3.5000%
di Torino SpA
Union Bank of California 26,250,000 3.5000%
Total $750,000,000 100.0000%
-2-
EXHIBIT A-1
LOAN REQUEST
TO: Bank of America National Trust and
Savings Association, as Administrative
Agent for Banks
FROM: Xxxxxx Electronics Corporation
DATE:
RE: Xxxxxx Electronics Corporation -
Revolving Credit Agreement (Multi-Year Facility)
Gentlemen:
1. We refer to the Revolving Credit Agreement (Multi-Year Facility)
dated as of December 5, 1997 and made among Xxxxxx Electronics Corporation, the
banks parties thereto ("Banks"), Bank of America National Trust and Savings
Association, as administrative agent for the Banks (in such capacity
"Administrative Agent"), Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
Documentation Agents (the "Agreement"). Terms defined in the Agreement shall
have the same meaning herein.
2. We hereby request that a [Base Rate Loan] [Eurodollar Loan] is made
to us as follows:
(i) Principal Amount:
(ii) Borrowing Date:
(iii) Interest Period (if a Eurodollar Loan):
3. For the purposes of inducing the Banks to make the Loan requested
herein, we confirm that, pursuant to Section 5.2 of the Agreement, as of the
date hereof:
(i) to the best of the knowledge of the undersigned, the
representations and warranties set out in Section 6 of the
Agreement (with the exception of Section 6.6) are true and
correct in all material respects;
(ii) the most current financial statements delivered pursuant to
Section 7.5 of the Agreement present fairly the financial
position and results of operation
A-1-1
and changes in financial position of Borrower and its
consolidated Subsidiaries as at the end of, and for the fiscal
period to which such statements relate as of the date thereof
(subject, in the case of unaudited financial statements, to
year end adjustments); and
(iii) to the best of the knowledge of the undersigned, no Event of
Default or Unmatured Event of Default has occurred and is
continuing.
XXXXXX ELECTRONICS CORPORATION
By:__________________________
Title:_______________________
X-0-0
XXXXXXX X-0
LOAN REQUEST - BID RATE LOANS
TO: Bank of America National Trust and
Savings Association, as Administrative
Agent for Banks
FROM: Xxxxxx Electronics Corporation
DATE:
RE: Xxxxxx Electronics Corporation -
Revolving Credit Agreement (Multi-Year Facility)
Gentlemen:
1. We refer to the Revolving Credit Agreement (Multi-Year Facility)
dated as of December 5, 1997 and made among Xxxxxx Electronics Corporation, the
banks parties thereto ("Banks"), Bank of America National Trust and Savings
Association, as administrative agent for the Banks (in such capacity
"Administrative Agent"), Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
Documentation Agents (the "Agreement"). Terms defined in the Agreement shall
have the same meaning herein.
2. We hereby give you notice pursuant to Section 2.4 of the Revolving
Credit Agreement that we request offers for the following proposed Bid Rate
Loans:
(i) Borrowing Date:
(ii) Principal Amount:
(iii) Interest Period(s):
Each Bid Rate Loan offer should specify an amount, the Interest Period and
the Bid Rate upon which each Bank desires to advance a Bid Rate Loan.
3. For the purposes of inducing the Banks to make the Loan requested
herein, we confirm that, pursuant to Section 5.2 of the Agreement, as of the
date hereof:
(i) to the best of the knowledge of the undersigned, the
representations and warranties set out in Section 6 of the
Agreement (with the exception of Section 6.6) are true and
correct in all material respects;
(ii) the most current financial statements delivered pursuant to
Section 7.5 of the Agreement present fairly the financial
position and results of operation and changes in financial
position of Borrower and its consolidated Subsidiaries as at
the end of, and for the fiscal period to which such statements
relate as of the date thereof (subject, in the case of
unaudited financial statements, to year end adjustments); and
(iii) to the best of the knowledge of the undersigned, no Event of
Default or Unmatured Event of Default has occurred and is
continuing.
XXXXXX ELECTRONICS CORPORATION
By: _________________________
Title: ______________________
A-2-2
EXHIBIT B
MASTER BID RATE NOTE
Los Angeles, California December 5, 1997
XXXXXX ELECTRONICS CORPORATION, a Delaware corporation (formerly named
Xxxxxx Network Systems, Inc.) (the "Borrower"), for value received, hereby
promises to pay to the order of _____________________ (the "Bank"), at Agency
Administrative Services #5693 of Bank of America National Trust and Savings
Association, as Administrative Agent, for the account of Bank, 0000 Xxxxxxx
Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, on the dates specified in the Credit Agreement
(as herein defined), in lawful money of the United States, the total unpaid
principal amount of all Bid Rate Loans made by Bank to Borrower from the date of
this Note through the Termination Date pursuant to the Credit Agreement. This
Note shall bear interest as set forth in the Credit Agreement for Bid Rate
Loans. Interest payable under this Note shall be payable at the times specified
in the Credit Agreement. No Loan shall be made under this Note if, as a result
of such Loan, the total aggregate principal amount of Loans outstanding under
the Credit Agreement exceeds the Total Commitment.
This Note is one of the Master Bid Rate Notes referred to in the Revolving
Credit Agreement (Multi-Year Facility) dated as of December 5, 1997 (as in
effect from time to time, the "Credit Agreement"), among Borrower, the banks
parties thereto ("Banks"), Bank of America National Trust and Savings
Association, as administrative agent for the Banks (in such capacity
"Administrative Agent"), Xxxxxx Guaranty Trust Company of New York, as
Syndication Agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
Documentation Agents, and is subject to prepayment in whole or in part and its
maturity is subject to acceleration upon the terms provided in the Credit
Agreement.
This Note shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California.
B-1
All Bid Rate Loans made by Bank to Borrower pursuant to the Credit
Agreement and all payments of principal thereof may be indicated by Bank upon
the grid attached hereto which is a part of this Note. Such notations shall be
presumptively correct as to the aggregate unpaid principal amount of all Bid
Rate Loans made by Bank pursuant to the Credit Agreement.
XXXXXX ELECTRONICS CORPORATION
By: _________________________
Title: ______________________
B-2
Bid Rate Loans and Payments of Principal
_______________________________________________________________________________________________________
Unpaid
Amount of Interest Interest Amount of Principal Name of Person
Date Loan Period Rate Principal Paid Balance Marking Notation
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
B-3
EXHIBIT C
RELATIONS AMONG THE BANKS AND AGENTS
1. Administration of the Credit. Payment of interest and principal on the
----------------------------
Loans and the facility fee and all other amounts payable by Borrower hereunder
shall be made by Borrower in immediately available funds, directly to each Bank
in the case of amounts payable under Sections 3.1, 3.2 and 3.3 and, in all other
cases, to Administrative Agent, and Administrative Agent shall promptly
distribute to the other Banks in immediately available funds their shares of
principal, interest and fees and to each Bank as provided herein such other
amounts as paid by Borrower.
2. Pro Rata Distribution. All facility fees will be divided among the
---------------------
Banks in accordance with their Normal Percentage, and interest and principal
payments on each Loan will be divided pro rata among Banks in accordance with
their percentage interest in the Loan.
3. Right of Setoff. Any Bank which shall receive payment of or on account
---------------
of all or part of its share of the Loans through the exercise of any right of
setoff, counterclaim, or banker's lien, or otherwise in a greater proportion
than the proportionate amount of principal and interest due it under this
Agreement immediately prior to such payment shall purchase a ratable proportion
of the portions of the Loan held by the other Banks so that all recoveries of
principal and interest shall be shared by the Banks in accordance with their pro
rata interests in the Loans outstanding hereunder. If all or any portion of such
excess payment is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest. Any sum received by Bank through exercise of the right of
setoff, counterclaim, or banker's lien shall be deemed to be first applied to
such Bank's portion of the indebtedness under this Agreement, second as herein
above provided and any balance remaining thereafter shall be deemed applied to
any other indebtedness of Borrower to such Bank.
4. Notice of Event of Default. Upon receipt by Administrative Agent from
--------------------------
Borrower of any communication calling for an action on the part of Banks, or
upon notice to Administrative Agent of an Unmatured Event of Default or an Event
of Default, it will in turn promptly inform the other Banks in writing of the
nature of such communication or of the Unmatured Event of Default or Event of
Default, as the case may be.
5. Actions by Administrative Agent. Upon any occasion requiring or
-------------------------------
permitting an approval, consent, election or other action on the part of Banks,
action shall be taken by Administrative Agent for and on behalf or for the
benefit of all Banks upon the direction of the required number of Banks and the
Administrative Agent, if applicable, as set forth in Section 11.1 of the
Agreement.
6. Several Liability of Banks. The obligation of each Bank hereunder is
--------------------------
several, and the failure of one Bank to perform hereunder shall in no way
relieve the other Banks from performance.
7. Liability of Administrative Agent. Administrative Agent shall not be
---------------------------------
liable or answerable for anything whatsoever in connection with this Agreement
except for its willful
C-1
misconduct or gross negligence, and Administrative Agent shall have no duties or
obligations other than as provided herein. Administrative Agent shall be
entitled to rely on any opinion of counsel (including counsel for Borrower) in
relation to this Agreement, and upon statements and communications received from
Borrower, or from any other person, believed by it to be authentic, and shall
not be liable for any action taken or omitted in good faith on such reliance.
8. Indemnification of Administrative Agent. Each Bank agrees to indemnify
---------------------------------------
Administrative Agent (to the extent not reimbursed by Borrower and without
limiting the obligation of Borrower to do so), ratably according to its Normal
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Administrative Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by Administrative Agent under this
Agreement except for Administrative Agent's gross negligence or willful
misconduct. The obligations of the Banks under this Section 8 shall survive
termination of the Agreement.
9. Rights of Administrative Agent as Bank. With respect to its obligation
--------------------------------------
to lend under this Agreement and the Loans made by it, Bank of America shall
have the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not Administrative Agent; and the term "Banks" shall
include Bank of America in its individual capacity. Bank of America may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with Borrower as if it were not Administrative Agent.
10. Assignment by Bank of its Obligations. Administrative Agent may deem
--------------------------------------
and treat a Bank party to this Agreement as the owner of such Bank's portion of
the Loans for all purposes hereof unless and until a written notice of the
assignment or transfer of such Bank's obligations otherwise permitted under the
Agreement executed by such Bank shall have been received by Administrative
Agent, together with Borrower's consent to such assignment or transfer and such
other documentation from such Bank and its assignee or transferee as
Administrative Agent may reasonably request.
11. Representations by Banks. Neither Administrative Agent nor any Bank
------------------------
has made or makes to any other Bank any representation, and neither
Administrative Agent nor any Bank assumes any responsibility, in respect to the
execution, construction or enforcement of this Agreement or any other instrument
or agreement executed by Borrower or by any other person or entity.
12. Independent Investigation by Banks. Each Bank has made and shall
----------------------------------
continue to make its own independent investigation of the financial condition
and affairs of Borrower in connection with the making and the continuance of the
Loans and has made and covenants that it shall continue to make its own
appraisal of the creditworthiness of Borrower. Each Bank agrees Administrative
Agent has no duty or responsibility, either initially or on a continuing basis,
to provide any Bank with any credit or other information with respect to
Borrower, whether coming into its possession before the making of the Loans or
at any time or times thereafter except as expressly provided in this Agreement.
C-2
13. Successor Administrative Agent. Administrative Agent shall have the
------------------------------
right, at any time, to resign as Administrative Agent for the Banks hereunder.
Such resignation shall not be effective until a successor Administrative Agent
chosen by Majority Banks, and accepted by Borrower, shall accept appointment as
Administrative Agent for the Banks hereunder. If no successor Administrative
Agent shall have been so appointed by the Majority Banks and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent has
given notice of resignation, the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent reasonably acceptable to
Borrower, which successor Administrative Agent shall be a commercial bank
organized under the laws of the United States of America or a State thereof
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance by the successor Administrative Agent of its appointment hereunder,
the successor Administrative Agent shall succeed to and become vested with all
the rights and obligations of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its obligations under
this Agreement. The provisions of this Article shall inure to the benefit of the
retiring Administrative Agent as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Exhibit C and Section 11.14 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
14. Syndication Agent; Documentation Agents. None of the Banks identified
---------------------------------------
on the facing page or signature pages of this Agreement as Syndication Agent or
Documentation Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Banks as such. Without limiting the foregoing, none of the Banks so identified
shall have or be deemed to have any fiduciary relationship with any Bank. Each
Bank acknowledges that it has not relied, and will not rely, on any of the Banks
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
C-3
EXHIBIT D
LENDING OFFICES OF BANKS AND ADDRESSES FOR NOTICES
BORROWER
0000 Xxxxxx Xxxxxxx, Mail Xxxxxxx X-000, Xxxxxxxx X-0
X.X. Xxx 00000
Los Angeles, Ca. 90045-0066
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS ADMINISTRATIVE AGENT
Bank of America National Trust
and Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Vice President
Agency Management-Los Angeles #20529
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Administrative Agent's Payment Office:
--------------------------------------
Bank of America National Trust
and Savings Association
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Xx. Agency Administrative Officer
Agency Administrative Services #5596
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X-0
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
Domestic and Offshore Lending Office:
-------------------------------------
Bank of America National Trust
and Savings Association
GPO-Domestic Account Administration #5693
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Xx. Account Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Bank of America National Trust
and Savings Association
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Vice President
Credit Products #5618
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
Domestic and Offshore Lending Office:
-------------------------------------
Xxxxxx Guaranty Trust Company
of New York
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Associate
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-2
Notices for all Libor, CD, Base Rate Borrowings and or Repayments:
------------------------------------------------------------------
Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation):
----------------------------------------------------------------
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE CHASE MANHATTAN BANK
Domestic and Offshore Lending Office:
-------------------------------------
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-3
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
-------------------------------------
The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Long-Term Credit Bank of Japan, Ltd.,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Tamotsju Ukai
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE MITSUBISHI TRUST AND BANKING
CORPORATION, NEW YORK BRANCH
Domestic and Offshore Lending Office:
-------------------------------------
The Mitsubishi Trust and Banking
Corporation, New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ming Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Mitsubishi Trust and Banking
Corporation, New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Special Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-4
THE TORONTO-DOMINION BANK
Domestic and Eurodollar Lending Office:
---------------------------------------
The Toronto-Dominion Bank
000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Manager - Credit Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Full Money Market Lending Office:
---------------------------------
The Toronto-Dominion Bank
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Senior Dealer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Toronto-Dominion Bank
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Bandziere
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT LYONNAIS NEW YORK BRANCH
Domestic and Offshore Lending Office:
-------------------------------------
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Campellare
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X-0
XXXXXXXX XXXX XX
XXX XXXX XXX/XX XXXXXX XXXXXXX BRANCH
Domestic and Offshore Lending Office:
-------------------------------------
Deutsche Bank AG
New York and/or Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx/Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Deutsche Bank AG
New York and/or Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Xx.
Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
Domestic and Offshore Lending Office:
-------------------------------------
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The First National Bank of Chicago
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-6
with a copy to:
--------------
The First National Bank of Chicago
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
First Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST NATIONAL BANK OF MARYLAND
Domestic and Offshore Lending Office:
-------------------------------------
First National Bank of Maryland
25 X. Xxxxxxx Street, MC101-745
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
First National Bank of Maryland
25 X. Xxxxxxx Street, MC101-745
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE FUJI BANK LIMITED, LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
-------------------------------------
The Fuji Bank Limited, Los Angeles Agency
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-7
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Fuji Bank Limited, Los Angeles Agency
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED
LOS ANGELES AGENCY
Domestic and Offshore Lending Office:
-------------------------------------
The Industrial Bank of Japan, Limited
Los Angeles Agency
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx/Xxxx Xxxxxx
Telephone: (000) 000-0000/(000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Industrial Bank of Japan, Limited
Los Angeles Agency
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CITICORP USA
Domestic and Offshore Lending Office:
-------------------------------------
Citibank, N.A.
x/x 0 Xxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-8
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Citibank, N.A.
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANCA DI ROMA - SAN XXXXXXXXX XXXXXX
Domestic and Offshore Lending Office:
-------------------------------------
Banca Di Roma - San Xxxxxxxxx Xxxxxx
One Market Street, Xxxxxxx Tower, Suite 1000
San Francisco, California 94105
Attention: Francesco Barolo
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Banca Di Roma - San Xxxxxxxxx Xxxxxx
One Market Street, Xxxxxxx Tower, Suite 1000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
First Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
-------------------------------------
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx/Xxxx Xxxxxxxx
Telephone: (000) 000-0000 or 6742
Facsimile: (000) 000-0000 or 6899
D-9
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
The Bank of New York
00000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ISTITUTO BANCARIO SAN PAOLIO DI TORINO SpA
Domestic and Offshore Lending Office:
-------------------------------------
San Paolo Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx-Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
San Paolo Bank
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A.
Domestic and Offshore Lending Office:
-------------------------------------
Union Bank of California, N.A.
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxx
Credit Associate
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-10
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Union Bank of California, N.A.
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Fairbanks
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONSBANK OF TEXAS, N.A.
Domestic and Offshore Lending Office:
-------------------------------------
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx North
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CIBC, INC.
Domestic and Offshore Lending Office:
-------------------------------------
CIBC, Inc.
0000 Xxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
CIBC, Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-11
BANKERS TRUST COMPANY
Domestic and Offshore Lending Office:
-------------------------------------
Bankers Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Bankers Trust Company
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT SUISSE FIRST BOSTON
Domestic and Offshore Lending Office:
-------------------------------------
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
Continuation) :
----------------------------------------------------------------
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
D-12
EXHIBIT E
EXISTING LIENS
Xxxxxx Software Systems Ltd.
Revolving Credit Facility $1,670,000.00
Term Loan 800,000.00
Letter of Credit Line 1,670,000.00
Galaxy Latin America
Capital Lease of AT&T Telephone Switch $300,000.00
-------------
Total $4,440,000.00
E-1
EXISTING LIENS
EXHIBIT F
OPINION OF COUNSEL
December 5, 1997
To: The Banks listed on Schedule A hereto; Bank
of America National Trust and Savings
Association, as Administrative Agent; Xxxxxx
Guaranty Trust Company of New York, as
Syndication Agent; and Citicorp USA, Inc.
and The Chase Manhattan Bank as
Documentation Agents
Re: Xxxxxx Electronics Corporation
Revolving Credit Agreement
--------------------------
Gentlemen:
I am the Assistant General Counsel of Xxxxxx Electronics Corporation, a
Delaware corporation (the "Borrower"), in connection with the extension to
Borrower of a revolving line of credit extended under and subject to the terms
and provisions of a Revolving Credit Agreement (Multi-Year Facility) dated as of
December 5, 1997 (the "Credit Agreement") by and among Borrower, the banks named
therein (the "Banks"), Bank of America National Trust and Savings Association,
as administrative agent for the Banks (in such capacity "Administrative Agent"),
Xxxxxx Guaranty Trust Company of New York, as Syndication Agent and Citicorp
USA, Inc. and The Chase Manhattan Bank as Documentation Agents. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Credit Agreement. This opinion is rendered to you pursuant to Section 5.1(a) of
the Credit Agreement.
As Assistant General Counsel to Borrower, I have caused to be made such
legal and factual examinations and inquiries, including an examination of
originals or copies, certified or otherwise identified to my satisfaction as
authentic, of such corporate records, agreements, instruments and other
documents as I have deemed necessary or appropriate for the purposes of this
opinion. I have caused to be obtained such certificates and other assurances
(copies of which have been delivered to you) from public officials and officers
and other employees of Borrower as I considered necessary or appropriate for the
purpose of rendering this opinion. I have assumed the genuineness of all
signatures (except that of Borrower), the authenticity of all documents
submitted to me as originals, and the conformity with the originals of all
documents submitted to me as copies.
F-1
Subject to the limitations herein set forth, I am opining herein as to the
effect on the subject transaction only of United States federal law, the laws of
the State of California and the General Corporation Law of the State of
Delaware. I am licensed to practice law in the State of California. I assume
no responsibility as to the applicability to the subject transaction or the
effect thereon of the laws of any other jurisdiction.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, limitations and assumptions set forth herein, I am of the
opinion that, as of the date hereof:
1. Borrower is a corporation duly incorporated and validity existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own and lease its properties and conduct its
business as presently owned and conducted.
2. Borrower is duly qualified to do business as a foreign corporation in
good standing in the State of California.
3. Borrower has full corporate power and authority to borrow the sums
provided for in the Credit Agreement, to execute and deliver the Credit
Agreement and to perform its obligations thereunder.
4. All corporate action required to be taken by Borrower for the
authorization, execution and delivery of the Credit Agreement by Borrower and
the performance by Borrower of its obligations thereunder has been duly taken.
5. The officer of Borrower executing the Credit Agreement is duly and
properly in office and duly authorized to execute the same.
6. The Credit Agreement is a valid and binding agreement of Borrower,
subject to the limitations, qualifications, exceptions and assumptions set forth
below.
7. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, no
consent, permission, authorization, order or license of any United States
federal or California governmental authority is necessary in connection with the
execution and delivery of the Credit Agreement by Borrower and Borrower's
performance of its obligations under the Credit Agreement.
8. There is no provision of the Certificate of Incorporation or the By-
laws of Borrower which would be contravened by the execution and delivery of the
Credit Agreement by Borrower or by the performance by Borrower of its
obligations under the Credit Agreement.
9. Borrower is not an "investment company" as defined in the Investment
Company Act of 1940, as amended.
10. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such
F-2
certificates or other confirmations from officers and other employees of
Borrower as I considered appropriate in the circumstances, no consent or
approval of any trustee or holder of any material indebtedness of Borrower is
necessary in connection with the execution and delivery of the Credit Agreement
by Borrower and Borrower's performance of its obligations under the Credit
Agreement.
11. There is no provision of any indenture or material agreement for
borrowed money to which Borrower is a party or under which Borrower is
obligated, and of which I am aware, after causing to be conducted such legal and
factual examinations and inquiries and causing to be conducted such discussion
with and obtaining such certificates or other confirmations from officers and
other employees of Borrower as I considered appropriate in the circumstances,
which would be contravened by the execution and delivery of the Credit Agreement
and the Notes by Borrower or by the performance by Borrower of its obligations
under the Credit Agreement.
12. To my knowledge, after causing to be conducted such legal and factual
examinations and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, there is
no judgment, decree or order of any court or governmental agency binding on
Borrower which would be contravened by the execution and delivery of the Credit
Agreement by Borrower and Borrower's performance of its obligations under the
Credit Agreement and the Notes.
13. To my knowledge, after causing to be conducted such legal and factual
examinations and inquiries and obtaining certificates or other confirmations
from officers and employees of Borrower as I considered appropriate in the
circumstances, except as set forth in Attachment 1 hereto, there is no claim,
suit, action or proceeding pending or threatened against Borrower before any
court or governmental agency in which there is a specific claim, including
environmental matters, in excess of $75,000,000.
The opinion expressed in paragraph 6 is subject to the following
limitations, qualifications, exceptions and assumptions:
(a) the enforcement of the Credit Agreement and the Notes may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws or
by equitable principles relating to or limiting the rights of creditors
generally;
(b) the use of the term enforceable shall not imply any opinion as to the
availability of equitable remedies;
(c) I advise you that a California court may not strictly enforce certain
covenants contained in the Credit Agreement or allow acceleration of the
maturity of the indebtedness thereunder if it concludes that such enforcement or
acceleration would be unreasonable under the then existing circumstances. I do
believe, however, that subject to the limitations expressed elsewhere in this
opinion, enforcement or acceleration would be available if an Event of Default
occurs as a result of a material breach of a material covenant contained in the
Credit Agreement.
F-3
Further, certain rights, remedies and waivers contained in the Credit Agreement
may be limited or rendered ineffective by applicable California laws or judicial
decisions governing such provisions, but such laws or judicial decisions do not
render the Credit Agreement invalid as a whole;
(d) The effect of California court decisions, invoking statutes or
principles of equity, which have held that certain covenants and provisions of
agreements are unenforceable where (i) the breach of such covenants or
provisions imposes restrictions or burdens upon the debtor, including the
acceleration of indebtedness due under debt instruments, and it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the protection of the creditor, or (ii) the creditor's enforcement
of such covenants or provisions under the circumstances would violate the
creditor's implied covenant of good faith and fair dealing;
(e) The unenforceability under certain circumstances, under California or
federal law or court decisions, of provisions expressly or by implication
waiving broadly or vaguely stated rights, unknown future rights, defenses to
obligations or rights granted by law, where such waivers are against public
policy or prohibited by law;
(f) The unenforceability under certain circumstances of provisions to the
effect that rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or
remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such right or
remedy;
(g) The effect of Section 1717 of the California Civil Code, which
provides that, where a contract permits one party to the contract to recover
attorneys' fees, the prevailing party in any action to enforce any provision of
the contract shall be entitled to recover its reasonable attorneys' fees;
(h) The unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
where such indemnification is contrary to public policy or prohibited by law;
and
(i) The enforceability under certain circumstances of provisions imposing
penalties, forfeitures, late payment charges or an increase in interest rate
upon delinquency in payment or the occurrence of a default.
To the extent that the obligations of Borrower may be dependent upon such
matters, I assume for purposes of this opinion that each of the Banks is duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization; that each of the Banks is
duly qualified to engage in the transaction covered by this opinion; that the
Credit Agreement has been duly authorized, executed and delivered by each of the
Banks and that the Credit Agreement constitutes the valid and binding obligation
of each of the Banks, enforceable in accordance with its terms; and that each of
the Banks has the requisite corporate or organizational and legal power and
authority to own its properties, to carry on its business as now being conducted
and to perform its obligations under the Credit Agreement,
F-4
including without limitation, to make the loans under the Credit Agreement. I am
not expressing any opinion as to the effect of or the compliance by any Bank
with any state or federal laws or regulations applicable to the transactions
because of the nature of its respective business.
This opinion is rendered to the Banks and Administrative Agent and is
solely for their benefit in connection with the above transaction. This opinion
may not be relied upon by the Banks or Administrative Agent for any other
purpose, or furnished to, quoted to or relied upon by any other person, firm or
corporation for any purpose without my prior written consent.
Very truly yours,
F-5
SCHEDULE A TO OPINION OF COUNSEL
Bankers Trust Company
Credit Suisse First Boston
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency
The Mitsubishi Trust & Banking Corporation, New York Branch
NationsBank of Texas, N.A.
The Toronto-Dominion Bank
Banca di Roma - San Xxxxxxxxx Xxxxxx
The Bank of New York
CIBC Inc.
Credit Lyonnais New York Branch
Deutsche Bank AG New York and/or Cayman Islands Branches
The First National Bank of Chicago
First National Bank of Maryland
The Fuji Bank, Limited, Los Angeles Agency
The Industrial Bank of Japan, Limited, Los Angeles Agency
Istituto Bancario San Paolo di Torino SpA
Union Bank of California
F-6
ATTACHMENT A TO OPINION OF COUNSEL
LITIGATION
None.
F-7
