1
[CONFORMED COPY]
$100,000,000
CREDIT AGREEMENT
dated as of
May 22, 1995
among
Cisco Systems, Inc.,
The Banks Listed Herein,
Bank of America National Trust and Savings Association, as Administrative
Agent,
Xxxxxx Guaranty Trust Company of New York,
as Documentation Agent
and
Bank of America National Trust and Savings Association, as Issuing Bank
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.3. Types of Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2
THE CREDITS
2.1. Commitments to Lend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2. Notice of Committed Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3. Money Market Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.4. Notice to Banks; Funding of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.5. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.6. Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.7. Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.8. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.9. Optional Termination or Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.10. Mandatory Termination of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.11. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.12. General Provisions as to Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.13. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.14. Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.15. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 3
CONDITIONS
3.1. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2. Credit Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1. Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.2. Corporate and Governmental Authorization; No Contravention . . . . . . . . . . . . . . . . . . . . . . . 33
4.3. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.4. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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4.5. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.6. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.7. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.8. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.9. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.10. Regulatory Restrictions on Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.11. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 5
COVENANTS
5.1. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.2. Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.3. Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.4. Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.5. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.6. Inspection of Property, Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.7. Mergers and Sales of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.8. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.9. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.10. Debt to Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.11. Quick Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.12. Minimum Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.13. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.14. Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 6
DEFAULTS
6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.2. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
6.3. Cash Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 7
THE AGENTS
7.1. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.2. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.3. Liability of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.4. Reliance by Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.5. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.6. Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.7. Indemnification of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.8. Agents in Individual Capacities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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7.9. Successor Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 8
CHANGE IN CIRCUMSTANCES
8.1. Basis for Determining Interest Rate Unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
8.2. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.3. Increased Cost and Reduced Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.4. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.5. Base Rate Loans Substituted for Affected Fixed Rate Loans . . . . . . . . . . . . . . . . . . . . . . . 55
8.6. Substitution of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 9
MISCELLANEOUS
9.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.2. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.3. Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.4. Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
9.6. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
9.7. Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.8. Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.9. Counterparts; Integration; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
EXHIBIT A - Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT B - Money Market Quote Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT C - Invitation for Money Market Quotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT D - Money Market Quote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT E - Opinion of Counsel for the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT F - Opinion of Special Counsel for the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBIT G - Assignment and Assumption Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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AGREEMENT dated as of May 22, 1995 among CISCO SYSTEMS, INC., the
BANKS listed on the signature pages hereof, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent, XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Documentation Agent and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section
2.7(b).
"Administrative Agent" means Bank of America National Trust and
Savings Association, in its capacity as Administrative Agent for the Banks
hereunder, and its successors in such capacity.
"Administrative Questionnaire" means, with respect to each Bank,
an administrative questionnaire in the form prepared by the Administrative
Agent and submitted to the Administrative Agent (with a copy to the Borrower)
duly completed by such Bank.
"Affiliate" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such
Person (a "Controlling Person") or (ii) any Person (other than such Person or
any of its Subsidiaries) which is controlled by or is under common control with
a Controlling Person. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
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"Agent" means the Administrative Agent or the Documentation Agent,
and "Agents" both of them.
"Agent-Related Persons" means either Agent and any successor agent
arising under Section 7.9, together with their respective Affiliates (including
the Arrangers), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and affiliates.
"Applicable Lending Office" means, with respect to any Bank, (i)
in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the
case of its Money Market Loans, its Money Market Lending Office.
"Arrangers" means BA Securities, Inc. and X.X. Xxxxxx Securities
Inc.
"Assignee" has the meaning set forth in Section 9.6(c).
"Attorney Costs" means and includes all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors and shall include, as the context may require, the Issuing Bank in
such capacity.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Reference Rate for such day and (ii) the sum of 1/2 of 1%
plus the Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing
or pursuant to Article 8.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BofA" means Bank of America National Trust and Savings
Association.
"Borrower" means Cisco Systems, Inc., a California corporation,
and its successors.
"Borrower's 1994 Form 10-K" means the Borrower's annual report on
Form 10-K for July 31, 1994, as filed with the
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Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Borrower's Latest Form 10-Q" means the Borrower's quarterly
report on Form 10-Q for the quarter ended January 29, 1995, as filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934.
"Borrowing" has the meaning set forth in Section 1.3.
"Closing Date" means the date (which must occur prior to June 30,
1995) on or after the Effective Date on which the Documentation Agent shall
have received the documents specified in or pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Section 2.9.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.1.
"Consolidated Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis for such period.
"Consolidated Net Income" means, for any fiscal period, the net
income of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis for such period.
"Consolidated Operating Income" means, for any fiscal period,
Consolidated Net Income for such period plus, to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of
Consolidated Interest Expense and income tax expense and minus, to the extent
included in determining Consolidated Net Income for such period, interest and
other income.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
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"Consolidated Tangible Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries less their consolidated Intangible Assets, all determined as of
such date. For purposes of this definition, "Intangible Assets" means the
amount (to the extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent to
January 29, 1995 in the book value of any asset owned by the Borrower or a
Consolidated Subsidiary, (ii) all investments in unconsolidated Subsidiaries
and all equity investments in Persons which are not Subsidiaries and (iii) all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, anticipated future benefit of
tax loss carry-forwards, copyrights, organization or developmental expenses and
other intangible assets.
"Credit Event" means the making of a Loan or the issuance of a
Letter of Credit.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable or accrued liabilities in
respect of accrued expenses arising in the ordinary course of business, (iv)
all obligations of such Person as lessee which are capitalized in accordance
with generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.9 and the definitions of Material
Debt and Material Financial Obligations, all contingent obligations) of such
Person to reimburse any bank or other Person in respect of amounts paid under a
letter of credit or similar instrument, (vi) any of the foregoing secured by a
Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person and (vii) any of the foregoing of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or
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equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
"Documentation Agent" means Xxxxxx Guaranty Trust Company of New
York in its capacity as documentation agent for the Banks hereunder, and its
successors in such capacity.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in San Francisco, California are authorized
by law to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes effective
in accordance with Section 9.9.
"Eligible Assignee" means (i) 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; (ii) 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
$100,000,000, provided that such bank is acting through a branch or agency
located and licensed in the United States; and (iii) a Person that is primarily
engaged in the business of commercial banking and that is (A) a Subsidiary of a
Bank, (B) a Subsidiary of a Person of which a Bank is a Subsidiary, or (C) a
Person of which a Bank is a Subsidiary.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating
to the environment, the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
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transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London, England.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as
a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the
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Federal Funds Rate for such day shall be the average rate quoted to Bank of
America National Trust and Savings Association on such day on such transactions
as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.1) or any combination of the foregoing.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the holder of
such Debt of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnified Liabilities" has the meaning set forth in Section
9.3(b).
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or
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(b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar arrangement in respect
of its creditors generally or any substantial portion of its creditors,
undertaken under U.S. Federal, state or foreign law, including the Federal
Bankruptcy Reform Act of 1978 (11 U.S.C. Sec 101, et seq.).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 90 days thereafter;
provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending one, two, three or six
months thereafter as the Borrower may elect in accordance with Section 2.3;
provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall, subject to
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clause (b) below, be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing,
the period commencing on the date of such Borrowing and ending such number of
days thereafter (but not less than 14 days or more than 366 days) as the
Borrower may elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall, subject to clause (b) below, be
extended to the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, or any successor statute.
"Issuing Bank" means Bank of America National Trust and Savings
Association, as issuer of a Letter of Credit.
"Letter of Credit" means a standby letter of credit to be issued
hereunder by the Issuing Bank.
"Letter of Credit Liabilities" means, for any Bank and at any
time, the sum of (x) the amounts then owing to such Bank (including in its
capacity as the Issuing Bank) under Section 2.15 to reimburse it in respect of
amounts drawn under Letters of Credit and (y) such Bank's ratable participation
in the aggregate amount then available for drawing under all Letters of Credit,
calculated in accordance with Section 2.15.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.3.
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"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Base Rate Loans, Euro-Dollar Loans or Money
Market Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.7(b).
"Material Adverse Effect" means (i) any material adverse effect
upon the business, financial position or results of operations of the Borrower
and its Consolidated Subsidiaries, taken as a whole; (ii) a material adverse
effect on the ability of the Borrower to remain at all times in compliance with
the requirements of this Agreement or (iii) a material adverse effect on the
rights and remedies of the Agent and the Banks under this Agreement.
"Material Debt" means Debt (other than the Notes) of the Borrower
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$20,000,000.
"Material Financial Obligations" means a principal or face amount
of Debt and/or payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $20,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $20,000,000.
"Material Subsidiary" means at any time any Subsidiary which at
such time is a "significant subsidiary" as such term is defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange Commission.
"Money Market Absolute Rate" has the meaning set forth in Section
2.3(d)(ii)(D).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
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"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Bank may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 8.1).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.3(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.3.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing or a
Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in
Section 2.2.
"Notice of Issuance" has the meaning set forth in Section 2.15.
"Notice of Money Market Borrowing" has the meaning set forth in
Section 2.3(f)).
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"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code
and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any time
within the preceding five years been maintained, or contributed to, by any
Person which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pricing Schedule" means the Schedule attached hereto identified
as such.
"Quick Ratio" means, at any date, the ratio of (i) Unrestricted
Cash and Cash Equivalents and accounts receivable of the Borrower and its
Consolidated Subsidiaries to (ii) the current liabilities of the Borrower and
its Consolidated Subsidiaries, each determined on a consolidated basis as of
such date.
"Reference Banks" means the principal London offices of ABN AMRO
Bank N.V., Bank of America National Trust and Savings Association and Xxxxxx
Guaranty Trust Company of New York or replacements thereof selected by the
Administrative Agent and reasonably acceptable to the Borrower.
"Reference Rate" means the rate of interest publicly announced by
BofA in San Francisco, California from time to time as its "reference rate".
Any change in the reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public announcement of such
change. (The "reference rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions and
other factors, and is used as a reference point
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for pricing some loans, which may be priced at, above, or below such announced
rate.)
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 60% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 60% of the aggregate unpaid
principal amount of the Loans or, if the Commitments shall have been terminated
and the Notes shall have been repaid in full, having at least 60% of the
aggregate outstanding Letter of Credit Liabilities.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person;
unless otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Termination Date" means May 19, 1998, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Unrestricted Cash and Cash Equivalents " means (i) cash, (ii)
cash equivalents and (iii) marketable securities to be
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disposed within one year of the date of acquisition thereof (other than any
such cash, cash equivalents and marketable securities subject to a Lien
permitted by Section 5.9(a), (b) or (j).)
SECTION 1.2 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, no change in generally
accepted accounting principles shall affect the operation of any covenant if
the Borrower notifies the Administrative Agent that the Borrower wishes to
amend such covenant in Article 5 to eliminate such effect (or if the
Administrative Agent notifies the Borrower that the Required Banks wish to
amend Article 5 for such purpose) until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Banks. Until such notice is given or withdrawal is made, as the case may be,
the Borrower's compliance with such covenant shall be determined on the basis
of generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks to be made to the Borrower
pursuant to Article 2 on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (e.g., a "Fixed Rate Borrowing"
is a Euro-Dollar Borrowing or a Money Market Borrowing (excluding any such
Borrowing consisting of Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.1), and a "Euro-Dollar Borrowing" is a Borrowing
comprised of Euro-Dollar Loans) or by reference to the provisions of Article 2
under which participation therein is determined (i.e., a "Committed Borrowing"
is a Borrowing under Section 2.1 in which all Banks participate in proportion
to their Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.3 in which the Bank participants are determined on the basis of their
bids in accordance therewith).
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ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section from time to time from the Closing Date to
but excluding the Termination Date in amounts such that the sum of (i) the
aggregate principal amount of Committed Loans by such Bank at any one time
outstanding and (ii) the Letter of Credit Liabilities of such Bank at any one
time outstanding shall not exceed the amount of its Commitment. Each Borrowing
under this Section shall be in an aggregate principal amount of $5,000,000 or
any larger multiple of $1,000,000 (except that any such Borrowing may be in the
aggregate amount available in accordance with Section 3.2) and shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this Section, repay,
or to the extent permitted by Section 2.11, prepay Loans and reborrow at any
time under this Section.
SECTION 2.2. Notice of Committed Borrowing. The Borrower shall
give the Administrative Agent notice (a "Notice of Committed Borrowing") (x)
not later than 9:00 A.M. (San Francisco, California time) on the date of each
Base Rate Borrowing and (y) not later than 10:30 A.M. (San Francisco,
California time) on the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Notwithstanding the foregoing, no more than 10 Euro-Dollar Borrowings shall be
outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
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SECTION 2.3. Money Market Borrowings. (a) The Money Market
Option. In addition to Committed Borrowings pursuant to Section 2.1, the
Borrower may, at any time while Level I, II or III Status (each as defined in
the Pricing Schedule) exists, request the Banks to make offers to make Money
Market Loans to the Borrower in accordance with this Section. The Banks may,
but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Administrative Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of Exhibit B hereto so as to be
received not later than 10:30 A.M. (San Francisco, California time) on (x) the
fourth Euro-Dollar Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be $5,000,000
or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for up to three
different Interest Periods in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Euro-Dollar Business Days (or
such other number of days as the Borrower and the Administrative Agent may
agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of
a Money Market Quote Request, the Administrative Agent
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shall send to the Banks by telex or facsimile transmission an Invitation for
Money Market Quotes substantially in the form of Exhibit C hereto, which shall
constitute an invitation by the Borrower to each Bank to submit Money Market
Quotes offering to make the Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d) and
must be submitted to the Administrative Agent by telex or facsimile
transmission at its offices specified in or pursuant to Section 9.1 not later
than (x) 1:00 P.M. (San Francisco, California time) on the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:30 A.M. (San Francisco, California time) on the proposed date
of Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later than
(x) one hour prior to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the other Banks, in the
case of an Absolute Rate Auction. Subject to Articles 3 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $5,000,000 or a
larger multiple of $1,000,000, (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of Money Market Loans
for which offers being made by such quoting Bank may be accepted,
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(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the
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aggregate principal amount of Money Market Loans for which offers in any single
Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(San Francisco, California time) on (x) the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR Auction or (y)
the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to subsection (e). The Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this Section. In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing must
be $5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers for any requested Interest Period may only
be made on the basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Banks with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent among such
Banks as nearly as possible (in multiples of $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amounts of
such offers.
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Determinations by the Administrative Agent of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(h) Notice by Administrative Agent. Promptly following each Money
Market Borrowing, the Administrative Agent shall notify each Bank of (i) the
ranges of bids submitted, (ii) the highest and lowest bids accepted for such
Borrowing and (iii) the aggregate principal amount of the Loans included in
such Borrowing.
SECTION 2.4. Notice to Banks; Funding of Loans. (a) Upon
receipt of a Notice of Borrowing, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(b) Not later than 12:00 Noon (San Francisco, California time) on
the date of each Borrowing, each Bank participating therein shall (except as
provided in subsection (c) of this Section) make available its share of such
Borrowing, in federal or other funds immediately available in San Francisco,
California, to the Administrative Agent at its address referred to in Section
9.1. Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Banks available to the Borrower at the
Administrative Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to
the Administrative Agent as provided in subsection (b) of this Section, or
remitted by the Borrower to the Administrative Agent as provided in Section
2.12, as the case may be.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank and the
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Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and
the interest rate applicable thereto pursuant to Section 2.7 and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.5. Notes. (a) The Loans of each Bank shall be
evidenced by a single Note payable to the order of such Bank for the account of
its Applicable Lending Office in an amount equal to the aggregate unpaid
principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the
Administrative Agent, request that its Loans of a particular type be evidenced
by a separate Note in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to the
"Note" of such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a),
the Documentation Agent shall forward such Note to such Bank. Each Bank shall
record the date, amount, type and maturity of each Loan made by it and the date
and amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that the failure of any Bank to make
any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
SECTION 2.6. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
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SECTION 2.7. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable in arrears for each
Interest Period on the last day thereof. Any overdue principal of or interest
on any Base Rate Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable in arrears for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/100 of 1%) of the respective rates per annum at which deposits in United
States dollars are offered to each of the Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Dollar Loan of such
Euro- Dollar Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in San Francisco, California with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or
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other assets which includes loans by a non-United States office of any Bank to
United States residents). The Adjusted London Interbank Offered Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to the
Interest Period for such Loan or (ii) the sum of 2% plus the rate applicable to
Base Rate Loans for such day.
(d) Subject to Section 8.1, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.7(b) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.3. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.3. Such interest shall be payable in arrears for
each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base Rate for such day.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.1
shall apply.
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SECTION 2.8. Fees.
(a) Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably a facility fee as set
forth in this paragraph at the Facility Fee Rate (determined daily in
accordance with the Pricing Schedule). Such facility fee shall accrue (i) from
and including May 1, 1995 to but excluding the date of termination of the
Commitments in their entirety, on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including such date of termination
to but excluding the date the Loans and the Letter of Credit Liabilities shall
be repaid in their entirety, on the sum of (x) the daily aggregate outstanding
principal amount of the Loans and (y) the daily aggregate amount of the Letter
of Credit Liabilities. Accrued fees under this subsection (a) shall be payable
quarterly in arrears on each March 31, June 30, September 30 and December 31
and on the date of termination of the Commitments in their entirety (and, if
later, the date the Loans and the Letter of Credit Liabilities shall be repaid
in their entirety).
(b) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably with respect to each
Letter of Credit issued hereunder a letter of credit fee at the LC Fee Rate
(determined daily in accordance with the Pricing Schedule) on the aggregate
amount available for drawing under such Letter of Credit. Such letter of
credit fee shall accrue from and including the date such Letter of Credit is
issued to but excluding the date of termination thereof. The Borrower shall
pay to the Issuing Bank with respect to each Letter of Credit issued hereunder
a fronting fee in the amount agreed upon between the Borrower and the Issuing
Bank. Accrued fees under this subsection (b) shall be payable in arrears on
each March 31, June 30, September 30 and December 31 and, with respect to each
Letter or Credit, on the date of termination of such Letter of Credit. The
Borrower shall also pay to the Issuing Bank issuance, drawing, amendment and
extension charges in the amounts and at the times as agreed between the
Borrower and the Issuing Bank.
SECTION 2.9. Optional Termination or Reduction of Commitments.
The Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments at any time, if no Loans
and no Letters of Credit are outstanding at such time or (ii) ratably reduce
from time to time by an aggregate amount of $10,000,000 or a larger multiple of
$1,000,000, the aggregate amount of the Commitments in excess of the sum of (i)
the aggregate outstanding principal amount of the Loans and (ii) the aggregate
amount of Letter of Credit Liabilities.
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SECTION 2.10. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable
on such date.
SECTION 2.11. Optional Prepayments. (a) Subject in the case of
any Euro-Dollar Borrowing to Section 2.13, the Borrower may, upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Base
Rate Borrowing (or any Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.1) or upon at least three Euro-Dollar Business Days'
notice to the Administrative Agent, prepay any Euro-Dollar Borrowing, in each
case in whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Loans of
the several Banks included in such Borrowing.
(b) Except (i) as provided in subsection (a) above or (ii) with
respect to any particular Money Market Loan, as agreed upon between the Bank
making such Loan and the Borrower, the Borrower may not prepay all or any
portion of the principal amount of any Money Market Loan prior to the maturity
thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans,
and facility fees and letter of credit fees not later than 12:00 Noon (San
Francisco, California time) on the date when due, in Federal or other funds
immediately available in San Francisco, California, to the Administrative Agent
at its address referred to in Section 9.1. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment
received by the Administrative Agent for the account of the Banks. Whenever
any payment of principal of, or interest on, the Base Rate Loans or of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar
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month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day. If the date for any payment of principal
is extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrower shall not have so made such payment, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment
of principal with respect to any Fixed Rate Loan (pursuant to Article 2, 6 or 8
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section
2.7(c), or if the Borrower fails to borrow or prepay any Fixed Rate Loans after
notice has been given to any Bank in accordance with Section 2.4(a), the
Borrower shall reimburse each Bank within 15 days after demand for any
resulting loss or expense incurred by it including (without limitation) any
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow or prepay, provided that such Bank shall have delivered to
the Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error; and provided
further that the Borrower shall not be required to make any payment to any Bank
pursuant to this Section 2.13 as a result of any prepayment of any Euro-Dollar
Loan of such Bank made by the Borrower pursuant to Section 8.2 if such Bank
shall not have complied with the provisions of the second sentence of Section
8.2.
SECTION 2.14. Computation of Interest and Fees. Interest based
on the Reference Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year)
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and paid for the actual number of days elapsed (including the first day but
excluding the last day). All other interest and fees shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION 2.15. Letters of Credit. (a) Subject to the terms and
conditions hereof, the Issuing Bank agrees to issue letters of credit hereunder
from time to time before the tenth day before the Termination Date upon the
request of the Borrower (the "Letters of Credit"); provided that (i) each
Letter of Credit shall be in an amount in excess of $10,000,000 and (ii)
immediately after each Letter of Credit is issued, the aggregate amount of the
Letter of Credit Liabilities plus the aggregate principal amount of all Loans
outstanding at such time does not exceed the aggregate amount of the
Commitments. The Issuing Bank shall be under no obligation to issue any Letter
of Credit if: (x) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank
from issuing such Letter of Credit, or any requirement of law applicable to the
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall
impose upon the Issuing Bank any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the Issuing Bank in good xxxxx
xxxxx material to it; or (y) the issuance of a Letter of Credit shall violate
any applicable general policies of the Issuing Bank. Upon the date of issuance
by the Issuing Bank of a Letter of Credit, the Issuing Bank shall be deemed,
without further action by any party hereto, to have sold to each Bank, and each
Bank shall be deemed, without further action by any party hereto, to have
purchased from the Issuing Bank, a participation in such Letter of Credit and
the related Letter of Credit Liabilities in the proportion their respective
Commitments bear to the aggregate Commitments.
(b) The Borrower shall give the Issuing Bank notice (which, at
the option of the Issuing Bank, may be in the form of a completed application
for issuance or amendment, in form and substance acceptable to the Issuing
Bank; provided that no term of such application shall be effective with respect
to any Letter of Credit to the extent it is inconsistent with the terms of this
Agreement or sets forth terms in addition to those set forth in this Agreement
with respect to fees) at least five Domestic
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Business Days prior to the requested issuance of a Letter of Credit specifying
the date such Letter of Credit is to be issued, and describing the terms of
such Letter of Credit and the nature of the transactions to be supported
thereby (such notice, including any such notice given in connection with the
extension or amendment of a Letter of Credit, a "Notice of Issuance"). Upon
receipt of a Notice of Issuance, the Issuing Bank shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Bank of the amount of the Letter of Credit, its expiry date, and its issuance
date. The issuance by the Issuing Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article 3, be subject to the
conditions precedent that such Letter of Credit shall be in such form and
contain such terms as shall be satisfactory to the Issuing Bank and that the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the Issuing Bank shall have
reasonably requested. The extension or amendment (including a renewal) of any
Letter of Credit shall be deemed to be an issuance of such Letter of Credit,
and if any Letter of Credit contains a provision pursuant to which it is deemed
to be extended unless notice of termination is given by the Issuing Bank, the
Issuing Bank shall timely give such notice of termination unless it has
theretofore timely received a Notice of Issuance and the other conditions to
issuance of a Letter of Credit have also theretofore been met with respect to
such extension. No Letter of Credit shall have a term of more than one year;
provided that a Letter of Credit may contain a provision pursuant to which it
is deemed to be extended on an annual basis unless notice of termination is
given by the Issuing Bank; provided further that no Letter of Credit shall have
a term extending or be so extendible beyond the tenth day before the
Termination Date.
(c) Upon receipt from the beneficiary of any Letter of Credit of
any notice of drawing or of any drawing under such Letter of Credit, the
Issuing Bank shall notify the Administrative Agent and the Administrative Agent
shall promptly notify the Borrower and each other Bank as to the amount to be
paid as a result of such demand or drawing and the payment date. The Borrower
shall be irrevocably and unconditionally obligated within three Domestic
Business Days thereafter to reimburse the Issuing Bank for any amounts paid by
the Issuing Bank upon any drawing under any Letter of Credit. All such amounts
paid by the Issuing Bank and remaining unpaid by the Borrower within one
Business Day thereafter shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the rate applicable
to Base Rate Loans for such day. In addition, each Bank will pay to the
Administrative Agent, for the account of the Issuing Bank, immediately upon the
Issuing Bank's demand at any time during the period commencing after such
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drawing until reimbursement therefor in full by the Borrower, an amount equal
to such Bank's ratable share of such drawing (in proportion to its
participation therein), together with interest on such amount for each day from
the date of the Issuing Bank's demand for such payment (or, if such demand is
made after 9:00 A.M. (San Francisco, California time) on such date, from the
next succeeding Domestic Business Day to the date of payment) by such Bank of
such amount at a rate of interest per annum equal to the rate applicable to
Base Rate Loans for such period. The Issuing Bank will pay to each Bank
ratably all amounts received from the Borrower for application in payment of
its reimbursement obligations in respect of any Letter of Credit (including
interest thereon, for each day from the date of the Issuing Bank's demand for
such payment or, if such demand is made after 9:00 A.M. (San Francisco,
California time) on such date, from the next succeeding Domestic Business Day)
to the date of payment, but only to the extent such Bank has made payment to
the Issuing Bank in respect of such Letter of Credit pursuant hereto. If the
Administrative Agent or the Issuing Bank is required at any time to return to
the Borrower, or to a trustee, receiver, liquidator, custodian, or any official
in any Insolvency Proceeding, any portion of the payments made by the Borrower
to the Administrative Agent for the account of the Issuing Bank in
reimbursement of a payment made under the Letter of Credit or interest or fee
thereon, each Bank shall, on demand of the Agent, forthwith return to the Agent
or the Issuing Bank the amount of its pro rata share of any amounts so returned
by the Administrative Agent or the Issuing Bank plus interest thereon from the
date such demand is made to the date such amounts are returned by such Bank to
the Agent or the Issuing Bank, at a rate per annum equal to the Federal Funds
Rate in effect from time to time.
(d) The obligations of the Borrower and each Bank under
subsection (c) above shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including without limitation the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit or any document related hereto
or thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of this Agreement or any Letter
of Credit or any document related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or
any acts or omission of, a beneficiary of a
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Letter of Credit (or any Person for whom the beneficiary may be
acting);
(iv) the existence of any claim, set-off, defense or other
rights that the Borrower may have at any time against a
beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), the Banks (including the Issuing Bank)
or any other Person, whether in connection with this Agreement or
the Letter of Credit or any document related hereto or thereto or
any unrelated transaction;
(v) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in
any respect whatsoever;
(vi) payment under a Letter of Credit against presentation to
the Issuing Bank of a draft or certificate that does not comply
with the terms of the Letter of Credit, provided that the Issuing
Bank's determination that documents presented under the Letter of
Credit comply with the terms thereof shall not have constituted
gross negligence or willful misconduct of the Issuing Bank;
(vii) any other act or omission to act or delay of any kind by
any Bank (including the Issuing Bank), the Agent or any other
Person or any other event or circumstance whatsoever that might,
but for the provisions of this subsection (vii), constitute a
legal or equitable discharge of the Borrower's or the Bank's
obligations hereunder; or
(vii) the occurrence or continuance of a Default or any event
or condition which has had a Material Adverse Effect.
(e) The Borrower hereby indemnifies and holds harmless each Bank
(including the Issuing Bank) and the Administrative Agent from and against any
and all claims, damages, losses, liabilities, costs or expenses which such Bank
or the Agent may incur (including, without limitation, any claims, damages,
losses, liabilities, costs or expenses which the Issuing Bank may incur by
reason of or in connection with the failure of any other Bank to fulfill or
comply with its obligations to such Issuing Bank hereunder (but nothing herein
contained shall affect any rights the Borrower may have against such defaulting
Bank)), and none of the Banks (including the Issuing Bank) nor the
Administrative Agent, their respective affiliates nor any of
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their respective officers or directors or employees or agents shall be liable
or responsible, by reason of or in connection with the execution and delivery
or transfer of or payment or failure to pay under any Letter of Credit,
including without limitation any of the circumstances enumerated in subsection
(d) above, as well as (i) any error, omission, interruption or delay in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, (ii) any error in interpretation of technical terms, (iii) any loss
or delay in the transmission of any document required in order to make a
drawing under a Letter of Credit, (iv) any consequences arising from causes
beyond the control of the Issuing Bank, including without limitation any
government acts, or any other circumstances whatsoever in making or failing to
make payment under such Letter of Credit; provided that the Borrower shall not
be required to indemnify the Issuing Bank for any claims, damages, losses,
liabilities, costs or expenses, and the Borrower shall have a claim for direct
(but not consequential) damage suffered by it, to the extent found by a court
of competent jurisdiction to have been caused by (x) the willful misconduct or
gross negligence of the Issuing Bank in determining whether a request presented
under any Letter of Credit complied with the terms of such Letter of Credit or
(y) the Issuing Bank's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and
conditions of the Letter of Credit. Nothing in this subsection (e) is intended
to limit the obligations of the Borrower under any other provision of this
Agreement.
(f) The Uniform Customs and Practice for Documentary Credits as
published by the International Chamber of Commerce ("UCP") most recently at the
time of issuance of any Letter of Credit shall (unless otherwise expressly
provided in the Letters of Credit) apply to such Letter of Credit.
(g) Each Bank and the Borrower agree that, in paying any drawing
under a Letter of Credit, the Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft and certificates expressly
required by the Letter of Credit) or to ascertain or inquire as to the
validity or accuracy of any such document or the authority of the Person
executing or delivering any such document.
ARTICLE 3
CONDITIONS
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SECTION 3.1. Closing. The closing hereunder shall occur upon
receipt by the Documentation Agent of the following documents, each dated the
Closing Date unless otherwise indicated:
(a) a duly executed Note for the account of each Bank dated on or
before the Closing Date complying with the provisions of Section 2.5;
(b) an opinion of Fenwick & West, special counsel for the
Borrower, substantially in the form of Exhibit E hereto;
(c) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Agents, substantially in the form of Exhibit F hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) evidence satisfactory to the Documentation Agent that all
fees payable by the Borrower to the Documentation Agent and the
Administrative Agent, in the amounts previously agreed upon between the
Borrower and each such Agent, shall have been paid in full; and
(e) all documents the Documentation Agent may reasonably request
relating to the existence of the Borrower, the corporate authority for and
the validity of this Agreement and the Notes and the transactions
contemplated hereby, all in form and substance satisfactory to the
Documentation Agent.
The Documentation Agent shall promptly notify the Borrower, the Banks and the
Administrative Agent of the Closing Date, and such notice shall be conclusive
and binding on all parties hereto. The Documentation Agent will forward to the
Administrative Agent copies of all documents referred to in Section 3.1
promptly after the Closing Date.
SECTION 3.2. Credit Events. The obligation of any Bank to make a
Loan on the occasion of any Borrowing and the obligation of the Issuing Bank to
issue a Letter of Credit on the occasion of any request therefor are each
subject to the satisfaction of the following conditions:
(a) the fact that the Closing Date shall have occurred;
(b) solely with respect to any Borrowing, receipt by the
Administrative Agent of a Notice of Borrowing as required by Section 2.2 or
2.3, as the case may be;
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(c) solely with respect to any issuance of a Letter of Credit,
receipt by the Issuing Bank, with a copy to the Administrative Agent, of a
Notice of Issuance as required by Section 2.15;
(d) the fact that, immediately after such Credit Event, the
aggregate outstanding principal amount of the Loans plus the aggregate
Letters of Credit Liabilities will not exceed the aggregate amount of the
Commitments;
(e) the fact that, immediately before and after such Credit
Event, no Default shall have occurred and be continuing; and
(f) the fact that the representations and warranties of the
Borrower contained in this Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set forth in Sections 4.4(c)
and 4.5 as to any matter which has theretofore been disclosed in writing by
the Borrower to the Banks) shall be true on and as of the date of such
Credit Event.
Each Credit Event hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Credit Event as to the facts specified in
clauses (d), (e) and (f) of this Section.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the corporate powers of the Borrower, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of
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incorporation or by-laws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or any
of its Subsidiaries or result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
SECTION 4.3. Binding Effect. This Agreement constitutes a valid
and binding agreement of the Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance with
its terms except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
SECTION 4.4. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of July 31,
1994 and the related consolidated statements of operations and cash flows for
the fiscal year then ended, reported on by Coopers & Xxxxxxx and set forth in
the Borrower's 1994 Form 10-K, a copy of which has been delivered to each of
the Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of January 29, 1995 and the related unaudited
consolidated statements of operations and cash flows for the six months then
ended, set forth in the Borrower's Latest Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
six-month period (subject to normal year-end adjustments).
(c) Since July 31, 1994 there has been no material adverse change
in the business, financial position or results of operations of the Borrower
and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.5. Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental
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39
body, agency or official in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity of this Agreement or the Notes.
SECTION 4.6. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.7. Environmental Matters. The Borrower has reasonably
concluded that the liabilities and costs associated with the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by law or
as a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses) could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.8. Taxes. The Borrower and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower
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40
and its Subsidiaries in respect of taxes or other governmental charges are, in
the opinion of the Borrower, adequate.
SECTION 4.9. Subsidiaries. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.10. Regulatory Restrictions on Borrowing. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended, a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or otherwise subject to any
regulatory scheme which restricts its ability to incur debt.
SECTION 4.11. Full Disclosure. All information heretofore
furnished by the Borrower to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby,
taken as a whole is, and all such information hereafter furnished by the
Borrower to the Administrative Agent or any Bank, taken as a whole, will be,
true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the business,
operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or the ability of the Borrower to perform its
obligations under this Agreement.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder, any amount payable under any Note remains unpaid or any Letter of
Credit Liability is outstanding:
SECTION 5.1. Information. The Borrower will deliver to the
Administrative Agent for distribution to each of the Banks:
(a) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of operations and cash
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41
flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by Coopers & Xxxxxxx
or other independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of operations and cash flows for such quarter and for the
portion of the Borrower's fiscal year ended at the end of such quarter,
setting forth in the case of such statements of operations and cash flows,
in comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.10 to 5.12, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists and is continuing on the date of such
certificate and, if any Default then exists and is continuing, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) within five Domestic Business Days after any officer of the
Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and
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42
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which the
Borrower shall have filed with the Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;
(h) promptly upon the Borrower's obtaining knowledge thereof,
notice of each change in or withdrawal of the ratings of the Borrower's
senior unsecured long-term debt securities by either Xxxxx'x Investors
Service, Inc. and its successors or Standard & Poor's Ratings Group and its
successors and all information relating to such change or withdrawal; and
(i) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and
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43
discharge, at or before maturity, all their respective obligations and
liabilities in excess of $5,000,000 in any one case and in the aggregate in
excess of $30,000,000 (including, without limitation, tax liabilities and
claims of materialmen, warehousemen and the like which if unpaid might by law
give rise to a Lien), except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each Subsidiary to
maintain, in accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance. (a) The
Borrower will keep, and will cause each Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary
wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries
to, maintain (either in the name of the Borrower or in such Subsidiary's own
name) with financially sound and responsible insurance companies, insurance on
all their respective properties in at least such amounts, against at least such
risks and with such risk retention as are usually maintained, insured against
or retained, as the case may be, in the same general area by companies of
established repute engaged in the same or a similar business; and will furnish
to the Banks, upon request from the Administrative Agent, information presented
in reasonable detail as to the insurance so carried.
SECTION 5.4. Conduct of Business and Maintenance of Existence.
The Borrower will continue, and will cause each Subsidiary to continue, to
engage in business in the same industry as the industry which the business now
conducted by the Borrower and its Subsidiaries is in, and will preserve, renew
and keep in full force and effect, and will cause each Subsidiary to preserve,
renew and keep in full force and effect their respective corporate existence
and their respective rights, privileges and franchises necessary or desirable
in the normal conduct of business; provided that nothing in this Section 5.4
shall prohibit (i) the merger of a Subsidiary into the Borrower or the merger
or consolidation of a Subsidiary with or into another Person if the corporation
surviving such consolidation or merger is a Subsidiary and if, in each case,
after giving effect thereto, no Default shall have occurred and be continuing
or (ii) the termination of the corporate existence of any Subsidiary if the
Borrower in good faith determines that such termination is in the best interest
of the Borrower and is not materially disadvantageous to the Banks.
SECTION 5.5. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, with all applicable
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laws, ordinances, rules, regulations, and requirements of Governmental
Authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder) except where (i) the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
(ii) noncompliance could not reasonably be expected to have a Material Adverse
Effect.
SECTION 5.6. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank
at such Bank's expense to visit and inspect any of their respective properties,
to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants, all at such
reasonable times during normal business hours and as often as may reasonably be
desired, subject to the provisions of Section 9.11.
SECTION 5.7. Mergers and Sales of Assets. The Borrower will not
(i) consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, all or any substantial part of the
assets of the Borrower and its Subsidiaries, taken as a whole, to any other
Person; provided that the Borrower may merge with another Person if (x) the
Borrower is the corporation surviving such merger and (y) after giving effect
to such merger, no Default shall have occurred and be continuing.
SECTION 5.8. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrower for working capital and
general corporate purposes. None of such proceeds will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any "margin stock" within the meaning of Regulation U.
SECTION 5.9. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $170,000,000;
(b) any Lien on any asset of or relating to the North Carolina and
San Xxxx campuses (including without limitation
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cash and marketable securities) securing Debt in an aggregate principal or
face amount not exceeding $135,000,000 incurred by the Borrower for the
purpose of acquiring, developing and financing or constructing the North
Carolina and San Xxxx campuses;
(c) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(d) any Lien (other than any Lien described in clause (b) above)
on any asset securing Debt incurred or assumed for the purpose of financing
all or any part of the cost of acquiring or leasing such asset, provided
that such Lien attaches to such asset concurrently with or within 90 days
after the acquisition or lease thereof;
(e) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(f) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary and not created in contemplation of
such acquisition;
(g) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that the principal or face
amount of such Debt is not increased and such Debt is not then secured by
any additional assets;
(h) Liens arising in the ordinary course of its business which
(i) do not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $75,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(i) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $50,000,000; and
(j) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal or face amount at any
date not to exceed 5% of Consolidated Tangible Net Worth.
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SECTION 5.10. Debt to Consolidated Tangible Net Worth.
Consolidated Debt will at no time exceed 100% of Consolidated Tangible Net
Worth.
SECTION 5.11. Quick Ratio. The Quick Ratio will at no time be
less than 1.0 to 1.0.
SECTION 5.12. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth will at no time be less than an amount equal to
the sum of (i) $814,000,000 plus (ii) an amount equal to 50% of Consolidated
Net Income for each fiscal quarter of the Borrower ending after January 29,
1995 but prior to the date of determination, in each case, for which
Consolidated Net Income is positive (but with no deduction on account of
negative Consolidated Net Income for any fiscal quarter of the Borrower) plus
(iii) 100% of the aggregate net proceeds, including the fair market value of
property other than cash (as determined in good faith by the Board of Directors
of the Borrower), received by the Borrower from the issuance and sale after the
date hereof of any capital stock of the Borrower (other than the proceeds of
any issuance and sale of any capital stock (x) to a Subsidiary of the Borrower
or (y) which is required to be redeemed, or is redeemable at the option of the
holder, if certain events or conditions occur or exist or otherwise) or in
connection with the conversion or exchange of any Debt of the Borrower into
capital stock of the Borrower after January 29, 1995 minus (iv) an amount equal
to the lesser of (x) $250,000,000 and (y) the aggregate amount paid by the
Borrower for the repurchase of shares of its capital stock subsequent to
January 29, 1995.
SECTION 5.13. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, pay any
funds to or for the account of, make any investment (whether by acquisition of
stock or indebtedness, by loan, advance, transfer of property, guarantee or
other agreement to pay, purchase or service, directly or indirectly, any Debt,
or otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate of the Borrower or such Subsidiary except on an arms-length basis
on terms at least as favorable to the Borrower or such Subsidiary or Affiliate
than could have been obtained from a third party who was not an Affiliate;
provided that the foregoing provisions of this Section shall not prohibit (i)
any such Person from declaring or paying any lawful dividend or other payment
ratably in respect of all of its capital stock of the relevant class so long
as, after giving effect thereto, no Default shall have occurred and be
continuing or (ii) the Borrower from repurchasing shares of its capital stock
from officers, directors, employees
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or consultants of the Borrower who received such shares as compensation.
SECTION 5.14. Ratings. The Borrower has instructed S&P to
disclose to any Bank or the Agent, upon request, any Private Rating assigned by
S&P to the Borrower's senior unsecured long term debt securities. The Borrower
will take all actions necessary or that the Agent or any Bank may request to
ensure that such Rating will at all times be available to any Bank or the
Agent, upon request.
ARTICLE 6
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or any reimbursement obligation with respect to any drawing under any
Letter of Credit or shall fail to pay within five days of the due date
thereof any interest, any fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.7 and 5.8, 5.10 through 5.14, or any covenant
contained in Section 5.9, solely with respect to Liens securing Debt or
Derivative Obligations;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Borrower by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or deemed
made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or
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both, would enable) the holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Material Subsidiary shall commence a
voluntary Insolvency Proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary Insolvency Proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000;
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(j) judgments or orders for the payment of money, which
individually or in the aggregate (net of applicable insurance for which the
insurer has acknowledged coverage) shall exceed $25,000,000 shall be
rendered against the Borrower or any Material Subsidiary and such judgments
or orders shall continue unsatisfied and unstayed for a period of 45 days;
or
(k) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of 35% or more of
the outstanding shares of common stock of the Borrower; or, during any
period of 12 consecutive calendar months, individuals who were directors of
the Borrower on the first day of such period shall cease to constitute a
majority of the board of directors of the Borrower (other than as a result
of death or disability);
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by Banks holding more
than 60% of the aggregate principal amount of the Loans, by notice to the
Borrower declare the Loans (together with accrued interest thereon) to be, and
the Loans shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that in the case of any of the Events
of Default specified in clause 6.1(g) (other than a failure generally to pay
debts as they become due, or the taking of any corporate action to authorize
the same) or 6.1(h) above with respect to the Borrower, without any notice to
the Borrower or any other act by the Administrative Agent or the Banks, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
SECTION 6.2. Notice of Default. The Administrative Agent shall
give written notice to the Borrower under Section 6.1(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
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SECTION 6.3. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.1 hereof, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the
Administrative Agent upon the instruction of the Banks having more than 60% in
aggregate amount of the Commitments (or, if the Commitments shall have been
terminated, holding at least 60% of the Letter of Credit Liabilities), upon
five days' notice, pay to the Administrative Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to
arrangements reasonably satisfactory to the Administrative Agent) equal to the
aggregate amount available for drawing under all Letters of Credit then
outstanding at such time, provided that, upon the occurrence of any Event of
Default specified in clause (g) or (h) of Section 6.1 with respect to the
Borrower, the Borrower shall pay such amount forthwith without any notice or
demand or any other act by the Administrative Agent or the Banks.
ARTICLE 7
THE AGENTS
SECTION 7.1. Appointment and Authorization. (a) Each Bank hereby
irrevocably (subject to Section 7.9) appoints, designates and authorizes each
Agent to take such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are expressly delegated
to such Agent by the terms of this Agreement, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement, neither Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall either
Agent have or be deemed to have any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against
either Agent.
(b) The Issuing Bank shall act on behalf of the Banks with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Banks to act for such Issuing Bank with respect
thereto; provided, however, that the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this
Article with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit issued by it or proposed to be issued
by it and the application and agreements for letters of credit pertaining to
the Letters of
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Credit as fully as if the term "Administrative Agent", as used in this Article,
included the Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Issuing Bank.
SECTION 7.2. Delegation of Duties. Each Agent may execute any of
its duties under this Agreement by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Agent shall be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
SECTION 7.3. Liability of Agents. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Banks for any
recital, statement, representation or warranty made by the Borrower or any
Subsidiary or Affiliate, or any officer thereof, contained in this Agreement,
or in any certificate, report, statement or other document referred to or
provided for in, or received by either Agent under or in connection with, this
Agreement, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or for any failure of the Borrower to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrower or any of its Subsidiaries or Affiliates.
SECTION 7.4. Reliance by Agents. Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by
such Agent. Each Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting,
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under this Agreement in accordance with a request or consent of the Required
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
SECTION 7.5. Notice of Default. Each Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to such Agent for the account of the Banks, unless such Agent shall
have received written notice from a Bank or the Borrower referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default". Each Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default as
may be requested by the Required Banks in accordance with Article 6; provided,
however, that unless and until the Administrative Agent has received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable or in the best interest of the Banks.
SECTION 7.6. Credit Decision. Each Bank acknowledges that none
of the Agent-Related Persons has made any representation or warranty to it, and
that no act by either Agent hereinafter taken, including any review of the
affairs of the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to each Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent- Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports
and other documents expressly herein required to be furnished to the Banks by
either Agent, such Agent shall not have any duty or responsibility to provide
any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and
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other condition or creditworthiness of the Borrower which may come into the
possession of any of the Agent-Related Persons.
SECTION 7.7. Indemnification of Agents. Whether or not the
transactions contemplated hereby are consummated, the Banks shall indemnify
upon demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to
do so), pro rata, from and against any and all Indemnified Liabilities;
provided, however, that no Bank shall be liable for the payment to the
Agent-Related Persons of any portion of such Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse each Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by such Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, or any
document contemplated by or referred to herein, to the extent that such Agent
is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive the payment of all obligations
hereunder and the resignation or replacement of one or both Agents.
SECTION 7.8. Agents in Individual Capacities. Each Agent and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Borrower and its Subsidiaries and Affiliates as though BofA and Xxxxxx
Guaranty Trust Company of New York ("Xxxxxx") were not Agents hereunder and
BofA were not the Issuing Bank and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, each Agent or its
Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or such Subsidiary) and acknowledge that neither Agent
shall be under any obligation to provide such information to them. With
respect to its Loans, each of Xxxxxx and BofA shall have the same rights and
powers under this Agreement as any other Bank and may exercise the same as
though it were not an Agent or the Issuing Bank, and the terms "Bank" and
"Banks" include Xxxxxx and BofA in their individual capacities.
SECTION 7.9. Successor Agents. Each Agent may resign as Agent
upon 30 days' notice to the Banks. If either Agent resigns under this
Agreement, the Required Banks shall appoint from among
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the Banks a successor agent for the Banks. If no successor agent is appointed
prior to the effective date of the resignation of either Agent, such Agent may
appoint, after consulting with the Banks and the Borrower, a successor agent
from among the Banks. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall include such
successor agent and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article 7 and Section 9.3 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent
by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties of such Agent
hereunder until such time, if any, as the Required Banks appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Administrative Agent at the request of the Required Banks
unless BofA shall also simultaneously be replaced as "Issuing Bank" hereunder
pursuant to documentation in form and substance reasonably satisfactory to
BofA.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Unfair. If on
or prior to the first day of any Interest Period for any Euro-Dollar Borrowing
or Money Market LIBOR Borrowing:
(a) the Administrative Agent is advised in good faith by the
Reference Banks that deposits in dollars (in the applicable amounts) are
not being offered to the Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 60% or
more of the aggregate amount of the Commitments in good faith advise the
Administrative Agent that the Adjusted London Interbank Offered Rate as
determined by the Administrative Agent will not fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to
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such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Fixed Rate Borrowing is
a Euro-Dollar Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day.
SECTION 8.2. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change 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 Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until the circumstances giving rise to
such suspension no longer exist (at which time such Bank shall so notify the
Borrower and the Administrative Agent), the obligation of such Bank to make
Euro-Dollar Loans shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return. (a) If on or
after (x) the date hereof, in the case of any Euro- Dollar
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Loan or Letter of Credit or any obligation to make Euro-Dollar Loans or issue
Letters of Credit or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change 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 Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify
or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on
the London interbank market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans, its Letters of Credit or
its obligation to issue or participate in any Letters or Credit and the result
of any of the foregoing is to increase the cost to such Bank (or its Applicable
Lending Office) of making or maintaining any Fixed Rate Loan, or issuing or
participating in any Letters of Credit, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after written demand by such
Bank (with a copy to the Administrative Agent), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be
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material, then from time to time, within 15 days after demand by such Bank
(with a copy to the Administrative Agent), the Borrower shall pay to such Bank
such additional amount or amounts as will compensate such Bank (or its Parent)
for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. Any Bank
claiming compensation under this Section shall provide the Borrower with a
certificate setting forth the additional amount or amounts to be paid to it
hereunder and in reasonable detail the event or events entitling such Bank to
compensation and the method of calculation of such compensation, which shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods. If any Bank
shall have successfully contested the change in law, rule, regulation,
interpretation, administration, request or directive, as the case may be, for
which the Borrower has paid any amount under this Section 8.3 and as result of
such contest such Bank shall have received a refund of such amount (or any
portion thereof), such Bank shall refund to the Borrower such amount or portion
thereof, net of any costs incurred by such Bank with respect to such contest.
Nothing in the immediately preceding sentence shall be construed to require any
Bank to contest any such change. If any Bank claiming any increased cost or
reduction has changed its Applicable Lending Office as provided in this
subsection or the Borrower has elected that the provisions of Section 8.5 shall
apply to such Bank, the calculation of such increased costs or reduction
payable by the Borrower to such Bank pursuant to this Section for any date
after the date such change in Applicable Lending Office or such election has
been made shall take into account the effect of such change or election.
SECTION 8.4. Taxes. (a) For the purposes of this Section 8.4(a),
the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note or under any Letter of
Credit or any Letter of Credit Liability, and all liabilities with respect
thereto, excluding (i) in the case of each Bank and the Administrative Agent,
taxes imposed on its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which such Bank or the Administrative Agent (as
the case may be) is
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organized or in which its principal executive office is located or, in the case
of each Bank, in which its Applicable Lending Office is located and (ii) in the
case of each Bank, any United States withholding tax imposed on such payments
but only to the extent that such Bank is subject to United States withholding
tax at the time such Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Note
or under any Letter of Credit or any Letter of Credit Liability or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note or under any Letter of Credit or any Letter of Credit Liability.
(b) Any and all payments by the Borrower to or for the account of
any Bank or the Administrative Agent hereunder or under any Note or under any
Letter of Credit or any Letter of Credit Liability shall be made without
deduction for any Taxes or Other Taxes; provided that, if the Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) such Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, (iv) the Borrower shall
also pay to each Bank or the Administrative Agent for the account of such Bank,
at the time interest is paid, all additional amounts which such Bank specifies
as necessary to preserve the after-tax yield the Bank would have received if
such Taxes or Other Taxes had not been imposed and (v) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.1,
the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Bank or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Bank or the
Administrative Agent (as the case may be) makes demand therefor.
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(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each
other Bank, and from time to time thereafter if requested in writing by the
Borrower or the Administrative Agent (but only so long as such Bank remains
lawfully able to do so), shall provide the Borrower and the Administrative
Agent with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.4(b) or (c) with respect to Taxes imposed by the United States solely as a
result of such failure; provided that if a Bank, which is otherwise exempt from
or subject to a reduced rate of withholding tax, becomes subject to Taxes or
additional Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes or additional Taxes.
(f) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the sole
judgment of such Bank, such change (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not disadvantageous
to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.2 or (ii) any Bank has demanded compensation
under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrower
shall, by at least five Euro-Dollar Business Days' prior notice to such Bank
through the Administrative Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless
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and until the circumstances giving rise to such suspension or demand for
compensation no longer exist (at which time such Bank shall so notify the
Borrower and the Administrative Agent):
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Fixed Rate Loans of the other Banks); and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.6. Substitution of Bank. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.2 or
(ii) any Bank has demanded compensation under Section 8.3 or 8.4, the Borrower
shall have the right, with the assistance of the Administrative Agent, to seek
a mutually satisfactory substitute bank or banks (which may be one or more of
the Banks) to purchase the Note and assume the Commitment and Letter of Credit
Liabilities of such Bank. Each such substitute bank must be acceptable to the
Issuing Bank.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (a) in the case of the Borrower or the Agents, at the applicable
address, facsimile number or telex number set forth on the signature pages
hereof, (b) in the case of any Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or (c) in the case of any
party, such other address, facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrower. Each such notice, request or other communication shall be effective
(i) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (ii) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received, (iii) if
given by mail, 72 hours after such communication is deposited in the
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mails with first class postage prepaid, addressed as aforesaid or (iv) if given
by any other means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article 2 or Article 8
and notices to the Issuing Bank under Article 2 shall not be effective until
actually received by the Administrative Agent and the Issuing Bank at the
addresses specified for the Administrative Agent and the Issuing Bank,
respectively, pursuant to this Section.
SECTION 9.2. No Waivers. No failure or delay by either Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses of the Agents and the Issuing
Bank, including (without duplication) the fees and disbursements of special
counsel for the Agents or the Issuing Bank and the allocated cost of inside
counsel for the Administrative Agent and the Issuing Bank, in connection with
the preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
each Agent and each Bank, including (without duplication) the fees and
disbursements of outside counsel and the allocated cost of inside counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency
and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement, any of the Letters of
Credit, or any of the Letter of Credit Liabilities or any actual or proposed
use of proceeds of Loans hereunder (collectively, "Indemnified Liabilities");
provided that no Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee's own gross
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negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 9.4. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note held by it or of the Letter of Credit Liabilities held
by it,as the case may be, which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Bank or of the Letter of Credit
Liabilities held by such other Bank, as the case may be, the Bank receiving
such proportionately greater payment shall purchase such participations in the
Notes held by the other Banks or in the Letter of Credit Liabilities held by
the other Banks, as the case may be, and such other adjustments shall be made,
as may be required so that all such payments of principal and interest with
respect to the Notes held by the Banks or of the Letter of Credit Liabilities
held by the Banks shall be shared by the Banks pro rata; provided that nothing
in this Section shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note or in a Letter or Credit Liability, as the case may be, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of either Agent or the Issuing Bank are affected
thereby, by such Agent or the Issuing Bank, as the case may be); provided that
no such amendment or waiver shall, unless signed by all the Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any obligation in addition to
the obligations to which such Bank is subject hereunder on the Effective Date,
(ii) reduce the principal of or rate of interest on any Loan, the amount of any
Letter of Credit Liability or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest on any Loan, of any Letter of
Credit Liability or any interest thereon or any fees hereunder or for any
scheduled termination of any Commitment or (iv) change the percentage of
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the Commitments or of the aggregate unpaid principal amount of the Notes or of
the Letter of Credit Liabilities, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement.
SECTION 9.6. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Loans or Letter of Credit Liabilities. In the event of
any such grant by a Bank of a participating interest to a Participant, whether
or not upon notice to the Borrower, the Agents and the Issuing Bank, such Bank
shall remain responsible for the performance of its obligations hereunder, and
the Borrower, the Agents and the Issuing Bank shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. Any agreement pursuant to which any Bank may grant such
a participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), or (iii)
of Section 9.5 without the consent of the Participant. The Borrower agrees
that each Bank shall be entitled to the benefits of Section 2.13 and Article 8
without regard to whether it has granted any participating interests, and that
all amounts payable to a Bank for the account of a Participant under Section
2.13 and Article 8 shall be determined as if such Bank had not granted a
participating interest to such Participant. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more Eligible
Assignees all, or a proportionate part (equivalent to an initial Commitment of
not less than $5,000,000) of all, of its rights and obligations under this
Agreement (including its Letter of Credit Liabilities) and the Notes, and each
such Eligible Assignee shall assume such rights and obligations, pursuant to an
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64
Assignment and Assumption Agreement in substantially the form of Exhibit G
hereto executed by such Eligible Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Borrower, the Administrative Agent
and the Issuing Bank; provided that if an Eligible Assignee is an Affiliate of
such transferor Bank or was a Bank immediately prior to such assignment, no
such consent shall be required; and provided further that such assignment may,
but need not, include rights of the transferor Bank in respect of outstanding
Money Market Loans. Upon execution and delivery of such instrument and payment
by such Eligible Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Eligible Assignee,
such Eligible Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a
new Note is issued to the Eligible Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $2,500. If
the Eligible Assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Eligible Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Section
8.3 or 8.4 than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.2, 8.3 or 8.4
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent a copy of each Assignment
and Assumption Agreement delivered to it and a
60
65
record of the names and addresses of the Banks and the Commitments of and
principal amounts of the Loans owing to, each Bank from time to time. Such
record shall be conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Banks shall treat each Person whose name is
recorded as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement, notwithstanding any notice to the
contrary or anything to the contrary in this Agreement. Any assignment of any
Loan or other right or obligation hereunder shall be effective, in the absence
of manifest error, only upon appropriate records with respect thereto being
made by the Administrative Agent, notwithstanding anything to the contrary in
this Agreement. Such records shall be available for inspection by the Borrower
or any Bank at any reasonable time and from time to time upon reasonable prior
notice.
SECTION 9.7. Collateral. Each of the Banks represents to each
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York, without reference to its conflicts of law
principles. Each Letter of Credit and the application(s) and agreement(s)
relating thereto shall be governed by the laws of the State of California. The
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State
court sitting in New York City for purposes of all legal proceedings arising
out of or relating to this Agreement or the transactions contemplated hereby.
The Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
SECTION 9.9. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the
Documentation Agent of counterparts hereof signed by each of the parties hereto
(or, in the case of any
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66
party as to which an executed counterpart shall not have been received, receipt
by the Documentation Agent in form satisfactory to it of telegraphic, telex,
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 9.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11 Confidentiality. Each of the Agents and the Banks
shall keep confidential any information provided by Borrower or any Subsidiary
or Affiliate of the Borrower and clearly identified as confidential (including
without limitation any credit rating (other than a "public rating") obtained
from S&P or Xxxxx'x); provided that nothing herein shall prevent any Agent or
any Bank from disclosing such information (i) to its officers, directors,
employees, agents, attorneys and accountants who have a need to know such
information in accordance with customary banking practices and who receive such
information having been made subject to the restrictions set forth in this
Section, (ii) upon the order of a court or administrative agency, (iii) upon
demand of any regulatory agency or authority having jurisdiction over such
party and authority to compel disclosure of such information, (iv) which has
become publicly available without breach of any agreement between the parties
hereto, including this Agreement, (v) as necessary for the exercise of any
remedy under this Agreement, (vi) subject to provisions similar to those
contained in this Section, to any prospective Participant or Assignee, (vii)
when required to do so in accordance with the provisions of any applicable law,
(viii) to the extent reasonably required in connection with any litigation or
proceeding between the Borrower and any Agent, any Bank or their respective
Affiliates or (ix) as to any Bank or any of its Affiliates, as expressly
permitted under the terms of any document or agreement regarding
confidentiality to which the Borrower or any Subsidiary is party or is deemed
party with such Bank or such Affiliate.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
CISCO SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary/CFO
Address: Cisco Systems, Inc.
000 Xxxx Xxxxxx
Xxxxx
Xxx Xxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chief Financial
Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: Agency Management Services
#0000
Xxxx xx Xxxxxxx National
Trust and Savings
Association
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xxxxx
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as
Documentation Agent
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Associate
Address: X.X. Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex: 177615 MGT UT
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxx
Commitments:
$22,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Associate
$22,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
$14,000,000 ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxx
------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Group Vice President
$14,000,0000 DEUTSCHE BANK AG
LOS ANGELES AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Xxxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
By: /s/ J. Xxxxx Xxxxxx
------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
$14,000,000 THE MITSUBISHI BANK, LTD.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Manager
$14,000,000 THE SUMITOMO BANK, LIMITED
SAN XXXXXXXXX XXXXXX
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: General Manager
By: /s/ Xxxxxx Xxxxx Xx.
------------------------------
Name: Xxxxxx Xxxxx Xx.
Title: Vice President
_____________
Total:
$100,000,000
68
EXHIBIT A - Note
NOTE
New York, New York
___________ __, 199_
For value received, CISCO SYSTEMS, INC., a California corporation
(the "Borrower"), promises to pay to the order of ______________________ (the
"Bank"), for the account of its Applicable Lending Office, the unpaid principal
amount of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below on the last day of the Interest Period relating to
such Loan. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Agency Management Services #5596, Bank of
America National Trust and Savings Association, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of May 22, 1995 among Cisco Systems, Inc., the banks listed on the
signature pages thereof, Bank of America National Trust and Savings
Association, as Administrative Agent, Xxxxxx Guaranty Trust Company of New
York, as Documentation Agent
2
69
and Bank of America National Trust and Savings Association, as Issuing Bank (as
the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
CISCO SYSTEMS, INC.
By____________________
Name:
Title:
3
70
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________________
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
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71
EXHIBIT B - Money Market Quote Request
Form of Money Market Quote Request
[Date]
To: Bank of America National Trust and Savings
Association (the "Administrative Agent")
From: Cisco Systems, Inc.
Re: Credit Agreement (the "Credit Agreement") dated as of May 22,
1995 among Cisco Systems, Inc., the Banks listed on the
signature pages thereof, the Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Documentation Agent and
Bank of America National Trust and Savings Association, as
Issuing Bank
We hereby give notice pursuant to Section 2.3 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
---------------- ---------------
$
____________________
(1) Amount must be $5,000,000 or a larger multiple of $1,000,000.
(2) Not less than one month (LIBOR Auction) or not less than 14 days or
more than 366 days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period. No more than three different Interest Periods.
72
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the
Credit Agreement.
CISCO SYSTEMS, INC.
By_______________________________
Name:
Title:
2
73
EXHIBIT C - Invitation for Money Market Quotes
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.3 of the Credit Agreement dated as of
May 22, 1995 among Cisco Systems, Inc., the Banks parties thereto, the
undersigned, as Administrative Agent, Xxxxxx Guaranty Trust Company of New
York, as Documentation Agent and Bank of America National Trust and Savings
Association, as Issuing Bank, we are pleased on behalf of the Borrower to
invite you to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [1:00 P.M.]
[9:30 A.M.] (San Francisco, California time) on [date].
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By______________________
Authorized Officer
74
EXHIBIT D - Money Market Quote
Form of Money Market Quote
To: Bank of America National Trust and Savings Association, as
Administrative Agent
Re: Money Market Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
-------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
__________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the
(notes continued on following page)
75
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement dated as of May 22, 1995 among Cisco Systems, Inc., the Banks listed
on the signature pages thereof, yourselves, as Administrative Agent, Xxxxxx
Guaranty Trust Company of New York, as Documentation Agent and Bank of America
National Trust and Savings Association, as Issuing Bank irrevocably obligates us
to make the Money Market Loan(s) for which any offer(s) are accepted, in whole
or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
__________
amount the Bank is willing to lend. Bids must be made for $5,000,000 or a
larger multiple of $1,000,000.
*** Not less than one month or not less than 14 days or more than 365 days, as
specified in the related Invitation. No more than five bids are permitted for
each Interest Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
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EXHIBIT E - Opinion of Counsel for the Borrower
OPINION OF
COUNSEL FOR THE BORROWER
________________, 199_
To the Banks and the Agents Referred
to Below
c/x Xxxxxx Guaranty Trust Company of New York,
as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Pursuant to Section 3.1(b) of the Credit Agreement (the
"Credit Agreement") dated as of May 22, 1995 among Cisco Systems, Inc., a
California corporation (the "Borrower"), the Banks listed on the signature
pages thereof and Bank of America National Trust and Savings Association, as
Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent and Bank of America National Trust and Savings Association,
as Issuing Bank, we are giving our opinion as counsel for the Borrower on
certain matters set forth below. Capitalized terms used in this opinion that
are not defined herein have the same meanings given to such terms in the Credit
Agreement.
In order to render this opinion we have examined the following:
(1) The Credit Agreement and the Notes.
(2) A copy of the Borrower's Articles of Incorporation, as
certified by the office of the California Secretary of State
on May __, 1995 (the "Articles").
(3) A copy of the Borrower's Bylaws, as amended through
______________, as certified by the Secretary of the Borrower
(the "Bylaws").
77
(4) A copy of the minutes of the organizational meeting of the
Borrower's Board of Directors dated March 10, 1985.
(5) A copy of the minutes of the meeting of the Board of Directors
of the Borrower dated as of January 31, 1995 approving the
execution and delivery by the Borrower of the Credit Agreement
and the Notes and the performance by the Borrower of its
obligations thereunder.
(6) A Management Certificate addressed to us and dated of even
date herewith executed by the Borrower (the "Management
Certificate").
(7) A Certificate of Status regarding the Borrower issued by the
California Secretary of State dated May __, 1995 and a letter
from the California Franchise Tax Board dated May __, 1995 to
the effect that the Borrower is in good standing with respect
to its California franchise tax filings and has no known
unpaid franchise tax liability to the California Franchise Tax
Board.
(8) The following documents which the Borrower has informed us are
all of the documents governing Material Financial Obligations
(the "Reviewed Agreements"):
(A) Pledge Agreement between the Borrower, The Hongkong
and Shanghai Banking Corporation Limited ("Hongkong")
and the Sumitomo Bank, Limited ("Sumitomo") dated May
20, 1993, as amended May 20, 1993 and May 19, 1994;
(B) Lease by and between the Borrower, as tenant, and
Sumitomo Bank Leasing and Finance, Inc. ("SBLF"), as
landlord dated May 20, 1993 and amended May 19, 1994;
(C) Lease by and between the Borrower, as tenant, and SGA
Development Partnership, Ltd ("SGA"), as landlord
dated February 25, 1993, as amended May 20, 1993 and
May 19, 1994;
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78
(D) Security Agreement by and between SGA and the
Borrower for the benefit of SBLF dated May 20, 1993
and amended May 19, 1994;
(E) Security Agreement by and between SGA, SBLF and the
Borrower for the benefit of Sumitomo and Hongkong
dated May 20, 1993 and amended May 19, 1994;
(F) The Credit Agreement and the Notes;
(G) Agreement between Cisco and Sumitomo Bank Leasing and
Finance, Inc. ("Sumitomo") dated June 14, 1994;
(H) Ground Lease between Cisco and Sumitomo dated July
11, 1994, as amended August 12, 1994;
(I) Lease [Building] between Cisco and Sumitomo dated
August 12, 1994;
(J) Third Party Pledge Agreement dated July 11, 1994 by
Cisco in favor of Union Bank of Switzerland;
(K) Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing between Cisco,
Chicago Title Company and Sumitomo dated August 12,
1994;
(9) A certificate executed by the Borrower's Secretary dated May
__, 1995 (the "Secretary's Certificate").
(10) An Incumbency Certificate executed by the Borrower's Executive
Vice-President and the Borrower's Secretary (the "Incumbency
Certificate").
In connection with this opinion we have not examined any
documents other than those expressly referred to above and have not made any
factual investigation except for our review of the documents and notices
expressly referred to above and, with respect to the opinion expressed in
paragraph 4 below, our discussions with management of the Borrower regarding
the subject matter of such opinion, and we have assumed, based solely upon the
Borrower's representations to us and the Secretary's Certificate, that neither
the Borrower nor its assets is a party to, bound by
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79
or subject to any agreement or instrument which, if known by us, would change
any conclusion stated in this opinion. By way of illustration and not
limitation, we have not examined, and we express no opinion with respect to,
any documents other than the Reviewed Agreements, exclusive of any documents
ancillary to the Reviewed Agreements, including without limitation any letter
of credit, security agreement, extension of credit, promissory note or guaranty
that has been or may be executed in connection with the Credit Agreement (other
than the Notes) or any of the other Reviewed Agreements.
In our examination of documents for purposes of this opinion,
we have assumed, based solely upon the Borrower's representations to us and the
Secretary's Certificate and Incumbency Certificate, and express no opinion as
to, the genuineness of all signatures on original documents, the authenticity
of all documents submitted to us as originals, the conformity to originals of
all documents submitted to us as copies, the lack of any undisclosed
terminations, modifications, waivers or amendments to any agreements or other
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness
thereof. We did not witness the execution or delivery by the Borrower of the
Credit Agreement and the Notes and are not familiar with the handwriting of the
officer executing the Credit Agreement and the Notes. We have reviewed copies
of the signature pages of the Credit Agreement and the Notes delivered to us,
and we have been advised by the President or Chief Financial Officer of the
Borrower or his designated agent that he has duly executed and delivered the
Credit Agreement and the Notes for and on behalf of the Borrower and have
assumed the due execution and delivery of the Credit Agreement by the Borrower
for purposes of rendering the opinions herein.
As used in this opinion, the phrases "to our knowledge" or
"known to us" refer only to the actual knowledge of the attorneys currently in
this firm who have rendered legal services to the Borrower and mean that, while
such attorneys have not been informed by the Borrower that the matters stated
are factually incorrect and have no actual knowledge that the matters stated
are factually incorrect, we have made no independent investigation of such
matters other than our examination of the documents expressly referred to in
the second paragraph of this letter and, with respect to the opinion expressed
in paragraph 4
4
80
below, discussions with management of the Borrower regarding the subject matter
of such opinion. However, nothing has been brought to our attention by
Borrower to make us believe such a statement was incorrect.
As to matters of fact relevant to this opinion, we have relied
solely upon: (i) our examination of the documents referred to in the second
paragraph of this letter, and we have assumed the current accuracy and
completeness of the information obtained from public officials and records and
reports of professional filing service companies (if any) including in the
documents referred to above, (ii) representations and warranties made by
representatives of the Borrower to us, including without limitation those set
forth in the Management Certificate and the representations and warranties made
by the Borrower in the Credit Agreement. We have made no independent
investigations or other attempts to verify the accuracy of any of such
information, representations, warranties or other facts as represented by the
Borrower or to verify the existence or non-existence of any other factual
matters; however, we are not aware of any facts that would lead us to believe
that any of the opinions expressed herein are not accurate.
For the purposes of this opinion, we have also assumed: (a)
that the Banks and the Agents have all requisite power and authority, and have
taken any and all action, necessary for the due authorization by them of the
execution, delivery and performance by them of the Credit Agreement and all
agreements, other documents and transactions to be entered into pursuant to the
Credit Agreement and the performance by them of all their obligations under the
Credit Agreement and such other agreements; (b) that the Credit Agreement is
the legal, valid and binding obligation of each of the Banks and the Agents
enforceable against it in accordance with its terms; and (c) the current
accuracy and completeness of all representations and warranties made by the
Banks and the Agents in the Credit Agreement and in all agreements to be
entered into in connection therewith.
The opinion expressed in paragraph 3 below is qualified by and
is subject to, and we render no opinion with respect to, the limitations and
exceptions to the enforceability of contracts and obligations generally,
including, without limitation: (a) the effect of
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81
bankruptcy, insolvency, reorganization, arrangement, moratorium, bulk sales,
fraudulent conveyance and other similar laws relating to or affecting the
rights of creditors generally; (b) the effect of general principles of equity
and similar principles, including, without limitation, concepts of materiality,
reasonableness, unconscionability, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or other equitable
remedies, regardless of whether considered in a proceeding in equity or at law,
and the effect of public policy; (c) the enforceability of any waivers or
releases of rights by the Borrower in the Credit Agreement or the documents
ancillary thereto, to the extent any of such waivers or releases is not
enforceable under applicable law; (d) the effect of Section 1670.5 of the
California Civil Code and 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 other party and it cannot
be demonstrated that the enforcement of such restrictions or burdens is
reasonably necessary for the protection of the party seeking to enforce such
provisions or (ii) the enforcement of such covenants or provisions under the
circumstances would violate the implied covenant of good faith and fair
dealing; and (e) any implied duty or covenant of good faith and fair dealing
which the Bank may have or be subject to.
We also advise you that a California court may limit the right
of a lender to exercise remedies or impose penalties for late payment or other
default if it is determined that the default is not material, the remedies or
penalties bear no reasonable relation to the damage suffered by the lender as a
result of the default or it cannot be demonstrated that the enforcement of the
remedies or penalties is reasonably necessary for the protection of the lender.
We assume that the Credit Agreement and any Loans made thereunder are not and
will not be secured by any security interest in any property of Borrower or its
Subsidiaries.
In rendering the opinion expressed in paragraph 3 below, we
have assumed with your consent and without independent investigation: (a) that
each Bank is a bank organized or licensed under and pursuant to the laws of the
United States or a State thereof and is exempt from the
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usury laws of the State of California; and (b) that the Borrower is not
insolvent and by executing and delivering the Credit Agreement and the Notes
will not become insolvent.
In rendering the opinions expressed in paragraphs 2 and 4
below, we have relied solely on representations made to us by the Borrower, and
we have not caused the search of any docket of any court, tribunal, agency or
similar authority or any other search. To date, we have represented the
Borrower only on discrete and specific matters involving international tax, and
certain transactional and corporate issues and have not acted as general
corporate counsel to the Borrower, nor have we been engaged to represent the
Borrower in connection with any litigation, administrative hearing, arbitration
or other proceeding.
We are admitted to practice law in the State of California,
and we express no opinion herein with respect to the application or effect of
the laws of any jurisdiction other than the existing laws of the State of
California and the existing federal laws of the United States of America.
Although pursuant to their terms the Credit Agreement and the Notes are
governed by the laws of the State of New York, we have, with your consent,
opined herein regarding the Credit Agreement and the Notes are as if they were
to be governed under the internal laws of the State of California applicable to
contracts entered into between California residents and entirely performed in
California. Accordingly we render no opinion regarding the Credit Agreement
and the Notes are to the extent that they may be evaluated by a court or other
tribunal applying the laws of any jurisdiction other than such laws of the
State of California.
We also call your attention to the fact that under various
reports published by committees of the State Bar of California, certain
assumptions, qualifications and exceptions are implicit in opinions of lawyers.
Although we have expressly set forth certain assumptions, qualifications and
exceptions herein, we are not limiting or omitting any others set forth in the
various reports or otherwise deemed standard by practice for lawyers in
California such as the 1990 California Opinion Reports published by the State
Bar of California.
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In rendering the opinions below, we are opining only as to the
specific legal issues expressly set forth herein, and no opinion shall be
inferred as to any other matters.
Based upon the foregoing, and subject to all the assumptions,
limitations and qualifications referred to herein, it is our opinion that:
1. The Borrower has been duly incorporated and is validly existing in
good standing, under the laws of the State of California.
2. The execution, delivery, and performance by the Borrower of the Credit
Agreement and the Notes have been duly authorized by all necessary
corporate action on the part of the Borrower, and do not and will not
(assuming no change in the Articles or Bylaws, in the Credit Agreement
and the Notes or in the Reviewed Agreements) conflict with or result
in a violation of the Articles or Bylaws, the Reviewed Agreements, or,
to our knowledge, any law to which the Borrower is subject.
3. The Credit Agreement and each Note is a legal, valid, and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
4. To our knowledge, there is no litigation, administrative or other
governmental proceeding, or arbitration proceeding pending, or
threatened in writing, against or affecting the Borrower, the adverse
determination of which would result in a Material Adverse Effect.
This opinion is intended solely for the use of the Banks and
the Agents (and for the use of Participants and Assignees) for the purpose of
the above transaction, and is not to be used or relied upon by any Bank or
Agent (or any Participants or Assignees) for any other purpose or made
available to or used or relied upon by any other persons or entities, without
our prior written consent. We assume no obligation to advise you of any facts,
circumstances, events or changes in the law that may hereafter be brought to
our attention, whether or not they would affect or modify any of the opinions
expressed herein.
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Very truly yours,
[COUNSEL FOR THE BORROWER]
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EXHIBIT F - Opinion of Special Counsel for the Agent
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENTS
________________, 199_
To the Banks and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of May 22, 1995 among Cisco
Systems, Inc., a Delaware corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks"), Bank of America National Trust and
Savings Association, as Administrative Agent, Xxxxxx Guaranty Trust Company of
New York, as Documentation Agent (the "Agent") and Bank of America National
Trust and Savings Association, as Issuing Bank , and have acted as special
counsel for the Agent for the purpose of rendering this opinion pursuant to
Section 3.1(c) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
We have assumed that the execution, delivery and performance
by the Borrower of the Credit Agreement and the Notes are within its corporate
powers and have been duly authorized by all necessary action.
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Upon the basis of the foregoing, we are of the opinion that
the Credit Agreement constitutes a valid and binding agreement of the Borrower
and each Note constitutes a valid and binding obligation of the Borrower, in
each case enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and by general principles of equity.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
federal laws of the United States of America. In giving the foregoing opinion,
we express no opinion as to the effect (if any) of any law of any jurisdiction
(except the State of New York) in which any Bank is located which limits the
rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by any other person without our prior written consent.
Very truly yours,
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EXHIBIT G - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ____, 1995 among [NAME OF ASSIGNOR] (the
"Assignor"), [NAME OF ASSIGNEE] (the "Assignee"), CISCO SYSTEMS, INC. (the
"Borrower"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Issuing Bank (the "Issuing Bank").
WHEREAS, this Assignment and Assumption Agreement (the
"Agreement") relates to the Credit Agreement dated as of May 22, 1995 among the
Borrower, the Assignor and the other Banks party thereto, as Banks, the
Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent and the Issuing Bank (as amended from time to time, the
"Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has
a Commitment to make Loans to the Borrower and to participate in Letters of
Credit issued for the account of the Borrower such that the aggregate principal
amount of such Loans outstanding at any time plus the Letter of Credit
Liabilities of the Assignor outstanding at any time shall not exceed
$__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof;
WHEREAS, Letter of Credit Liabilities of the Assignor in the
amount of $__________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of
the rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans and Letter of Credit
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Liabilities, and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and
sells to the Assignee all of the rights of the Assignor under the Credit
Agreement to the extent of the Assigned Amount, and the Assignee hereby accepts
such assignment from the Assignor and assumes all of the obligations of the
Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor outstanding at the
date hereof and of the Letter of Credit Liabilities of the Assignor outstanding
on the date hereof. Upon the execution and delivery hereof by the Assignor,
the Assignee, [the Borrower, the Agents and the Issuing Bank] and the payment
of the amounts specified in Section 3 required to be paid on the date hereof
(i) the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Credit Agreement with
a Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment
of the Assignor shall, as of the date hereof, be reduced by a like amount and
the Assignor released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment
and sale contemplated in Section 2 hereof, the Assignee shall pay to the
Assignor on the date hereof in Federal funds the amount heretofore agreed
between them.(1) It
(1) Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It may
be preferable in an appropriate
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is understood that commitment and/or facility fees accrued to the date hereof
are for the account of the Assignor and such fees accruing from and including
the date hereof are for the account of the Assignee. Each of the Assignor and
the Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Borrower, the Administrative Agent
and the Issuing Bank. This Agreement is conditioned upon the consent of the
Borrower, the Administrative Agent and the Issuing Bank pursuant to Section
9.6(c) of the Credit Agreement. The execution of this Agreement by the
Borrower, the Administrative Agent and the Issuing Bank is evidence of this
consent. Pursuant to Section 9.6(c), the Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be
____________________
case to specify these amounts generically or by formula rather than as a fixed
sum.
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an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By_________________________
Name:
Title:
[NAME OF ASSIGNEE]
By__________________________
Name:
Title:
[CISCO SYSTEMS, INC.
By__________________________
Name:
Title:]
[BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By__________________________
Name:
Title:]
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[BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By__________________________
Name:
Title:]
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