Exhibit 10.12
CREDIT AGREEMENT
DATED AS OF MAY 15, 1998,
among
BIO-RAD LABORATORIES, INC.
THE LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO, AS AGENT.
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS 1
ARTICLE II - THE CREDITS 10
2.1 Commitment 10
2.2 Required Payments; Termination 10
2.3 Ratable Loans 10
2.4 Types of Advances 10
2.5 Commitment Fee; Reductions in Aggregate Commitment 10
2.6 Minimum Amount of Each Advance 11
2.7 Optional Principal Payments 11
2.8 Method of Selecting Types and Interest Periods for New Advances 11
2.9 Conversion and Continuation of Outstanding Advances 12
2.10 Interest Rates 12
2.11 Rates Applicable After Default 12
2.12 Method of Payment 13
2.13 Notes; Telephonic Notices 13
2.14 Interest Payment Dates; Interest and Fee Basis 13
2.15 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions 14
2.16 Lending Installations 14
2.17 Non-Receipt of Funds by the Agent 14
2.18 Withholding Tax Exemption 14
ARTICLE III - CHANGE IN CIRCUMSTANCES 15
3.1 Yield Protection 15
3.2 Changes in Capital Adequacy Regulations 15
3.3.Availability of Types of Advances 16
3.4 Funding Indemnification 16
3.5 Lender Statements; Survival of Indemnity 16
3.6 Election to Terminate 17
ARTICLE IV - CONDITIONS PRECEDENT 17
4.1 Initial Advance 17
4.2 Each Advance Which Increases Outstanding Advances 18
4.3 Each Advance Which Does Not Increase Outstanding Advances 18
ARTICLE V - REPRESENTATIONS AND WARRANTIES 19
5.1 Corporate Existence and Standing 19
5.2 Authorization and Validity 19
5.3 No Conflict; Government Consent 19
5.4 Financial Statements 19
5.5 Material Adverse Change 20
5.6 Taxes 20
5.7 Litigation and Contingent Obligations 20
5.8 Subsidiaries 20
5.9 ERISA 20
5.l0 Accuracy of Information 20
5.11 Regulation U 21
5.12 Material Agreements 21
5.13 Compliance With Laws 21
5.14 Compliance with Environmental Laws 21
5.15 Ownership of Properties 21
5.16 Patents and Trademarks 21
5.17 Investment Company Act 22
5.18 Public Utility Holding Company Act 22
ARTICLE VI - COVENANTS 22
6.1 Financial Reporting 22
6.2 Use of Proceeds 23
6.3 Notice of Default 24
6.4 Conduct of Business 24
6.5 Taxes 24
6.6 Insurance 24
6.7 Compliance with Laws 24
6.8 Maintenance of Properties 24
6.9 Inspection 25
6.10 Dividends 25
6.11 Merger 25
6.12 Sale of Assets 25
6.13 Sale of Accounts 26
6.14 Sale and Leaseback 26
6.15 Contingent Obligations 26
6.16 Liens 26
6.17 Unfunded Liabilities 27
6.18 Consolidated Tangible Net Worth 28
6.19 Total Indebtedness / Adjusted EBITDA Ratio 28
6.20 Fixed Charge Coverage Ratio 28
ARTICLE VII - DEFAULTS 28
ARTICLE VIII - ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 29
8.1 Acceleration 29
8.2 Amendments 30
8.3 Preservation of Rights 30
ARTICLE IX - GENERAL PROVISIONS 31
9.1 Survival of Representations 31
9.2 Governmental Regulation 31
9.3 Taxes 31
9.4 Headings 31
9.5 Entire Agreement 31
9.6 Several Obligations; Benefits of this Agreement 31
9.7 Expenses; Indemnification 31
9.8 Numbers of Documents 32
9.9 Accounting 32
9.10 Severability of Provisions 32
9.11 Nonliability of Lenders 32
9.12 CHOICE OF LAW 32
9.13 CONSENT TO JURISDICTION 32
9.14 WAIVER OF JURY TRIAL 33
ARTICLE X - THE ADMINISTRATIVE AGENT 33
10.1 Appointment; Nature of Relationship 33
10.2 Powers 33
10.3 General Immunity 33
10.4 No Responsibility for Loans, Recitals, etc. 34
10.5 Action on Instructions of Lenders 34
10.6 Employment of Agents and Counsel 34
10.7 Reliance on Documents; Counsel 34
10.8 Agent's Reimbursement and Indemnification 34
10.9 Rights as a Lender 35
10.l0 Lender Credit Decision 35
10.11 Successor Agent 36
10.12 Agent's Fee 36
10.13 Notice of Default 36
ARTICLE XI - SETOFF; RATABLE PAYMENTS 36
11.1 Setoff 36
11.2 Ratable Payments 36
ARTICLE XII - BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 37
12.1 Successors and Assigns 37
12.2 Participations 37
12.2.1 Permitted Participants; Effect 37
12.2.2 Voting Rights 37
12.2.3 Benefit of Setoff 38
12.3 Assignments 38
12.3.1 Permitted Assignments 38
12.3.2 Effect; Effective Date 38
12.4 Dissemination of Information 39
12.5 Tax Treatment 39
ARTICLE XIII - NOTICES 39
13.1 Giving Notice 39
13.2 Change of Address 39
ARTICLE XIV - COUNTERPARTS 39
EXHIBIT "A" - NOTE 42
EXHIBIT "B" - FORM OF OPINION 44
EXHIBIT "C" - COMPLIANCE CERTIFICATE 46
EXHIBIT "D" - ASSIGNMENT AGREEMENT 49
EXHIBIT "E" - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION 60
EXHIBIT "F" - CONFIDENTIALITY AGREEMENT 61
SCHEDULE "1" - SUBSIDIARIES
SCHEDULE "2" - INDEBTEDNESS AND LIENS
SCHEDULE "3" - LITIGATION
SCHEDULE "4" - LETTERS OF CREDIT
SCHEDULE "5" - PRICING SCHEDULE
SCHEDULE "6" - INITIAL COMMITMENT SCHEDULE
CREDIT AGREEMENT
This Credit Agreement (this "Agreement"), dated as of
May 15, 1998, is among BIO-RAD LABORATORIES, INC., a
Delaware corporation (the "Borrower"), THE FIRST NATIONAL
BANK OF CHICAGO, a national banking association ("First
Chicago"), those other lenders from time to time party
hereto (First Chicago and such other lenders being referred
to herein individually as a "Lender" and collectively as the
"Lenders"), and First Chicago, as agent for the Lenders (in
such capacity, the "Agent").
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of
related transactions, consummated on or after the date of
this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, partnership
corporation or limited liability company, or division
thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of
the securities of a corporation which have ordinary voting
power for the election of directors (other than securities
having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power)
of the outstanding ownership interests of a partnership or
limited liability company.
"Adjusted EBITDA" means, calculated for the four full
consecutive fiscal quarters ending on the date of
determination, the sum of: (i) the EBITDA of the Borrower
and its Subsidiaries on a consolidated basis during such
period, plus (ii) in the event the Borrower or any
Subsidiary consummates any Acquisition during such period,
the EBITDA of any such acquired Person for the time during
such period prior to such Acquisition.
"Advance" means a borrowing hereunder (or conversion or
continuation hereof) consisting of the aggregate amount of
the several Loans made on the same Borrowing Date (or date
of conversion or continuation) by the Lenders to the
Borrower of the same Type and, in the case of Fixed Rate
Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by or under
common control with such Person. A Person shall be deemed
to control another Person if the controlling Person owns 10%
or more of any class of voting securities (or other
ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or
otherwise.
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"Agent" means First Chicago in its capacity as agent
for the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent
appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be
amended or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of
interest per annum equal to the higher of (i) the Corporate
Base Rate for such day and (ii) the sum of Federal Funds
Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" in connection with the commitment
fee payable pursuant to Section 2.5 below means at any date
the percentage per annum set forth on the Pricing Schedule
in the applicable category column and corresponding to the
range of Total Indebtedness /Adjusted EBITDA Ratio under
which the Borrower's Total Indebtedness /Adjusted EBITDA
Ratio (as determined based on the financial statements
delivered by the Borrower pursuant to Section 6.1 (i) and
(ii) below) falls for the fiscal quarter ended immediately
prior to such date. Any adjustment in the Applicable Fee
Rate shall be effective beginning on the fifth Business Day
after the delivery of the applicable financial statements.
"Applicable Margin" in connection with the Eurodollar
Rate means at any date the percentage per annum set forth on
the Pricing Schedule in the applicable category column and
corresponding to the range of Total Indebtedness /Adjusted
EBITDA Ratio under which the Borrower's Total Indebtedness
/Adjusted EBITDA Ratio (as determined based on the financial
statements delivered by the Borrower pursuant to Section 6.1
(i) and (ii) below) falls for the fiscal quarter ended
immediately prior to such date. Any adjustment in the
Applicable Margin shall be effective beginning on the fifth
Business Day after the delivery of the applicable financial
statements.
"Arranger" means First Chicago Capital Markets, Inc.
"Article" means an article of this Agreement unless
another document is specifically referenced.
"Authorized Officer" means any of the Chairman,
President, Vice-President, Chief Financial Officer,
Treasurer or any Assistant Treasurer of the Borrower, acting
singly.
"Borrower" means Bio-Rad Laboratories, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is
made hereunder.
"Borrowing Notice" is defined in Section 2.8.
2
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day
(other than a Saturday or Sunday) on which banks generally
are open in Chicago, New York and Los Angeles for the
conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars
are carried on in the London interbank market and (ii) for
all other purposes, a day (other than a Saturday or Sunday)
on which banks generally are open in Chicago for the conduct
of substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of
Property by such Person as lessee which would be capitalized
on a balance sheet of such Person prepared in accordance
with GAAP.
"Capitalized Lease Obligations" of a Person means the
amount of the obligations of such Person under Capitalized
Leases which would be shown as a liability on a balance
sheet of such Person prepared in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as
amended, reformed or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of
such Lender to make Loans not exceeding the amount for such
Lender set forth in the most current commitment schedule
provided to the Borrower and the Lenders by the Agent (as
such schedule may be modified from time to time pursuant to
the terms hereof), with the initial commitment schedule
being attached hereto as Schedule "6".
"Condemnation" is defined in Section 7.8.
"Consolidated Tangible Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Subsidiaries determined in accordance with GAAP, less
Intangible Assets.
"Contingent Obligation" of a Person means any
agreement, undertaking or arrangement by which such Person
assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise
becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net
worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor of such
other Person against loss, including, without limitation,
any comfort letter, operating agreement, take-or-pay
contract or application for a Letter of Credit.
"Conversion/Continuation Notice" is defined in Section
2.9.
"Controlled Group" means 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 of its Subsidiaries, are treated as
a single employer under Section 414 of the Code.
3
"Corporate Base Rate" means a rate per annum equal to
the corporate base rate of interest announced by the Agent
from time to time, changing when and as said corporate base
rate changes.
"Default" means an event described in Article VII.
"EBITDA" means, with respect to any Person and all such
Person's Subsidiaries on a consolidated basis, calculated
for the four full consecutive fiscal quarters ending on the
date of determination, (i) net earnings (or loss) after
taxes for such period taken as a single accounting period,
plus (ii) depreciation, depletion and amortization expense
for such period, plus (iii) federal, state and local income
(or equivalent) taxes paid or accrued for such period, and
plus (iv) total interest expense for such period (including
amortization of capitalized Indebtedness issuance costs),
whether paid or accrued (including the interest component of
Capitalized Leases), including all commissions, discounts
and other fees and charges owed with respect to letters of
credit, in each case determined in accordance with GAAP and,
in the case of clauses (ii) through (iv), to the extent
included in the determination of net earnings (or loss) for
such period.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any rule or
regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears
interest at a Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a
Eurodollar Advance for the relevant Eurodollar Interest
Period, the rate determined by the Agent to be the rate at
which the Agent offers to place deposits in U.S. dollars
with first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior
to the first day of such Eurodollar Interest Period, in the
approximate amount of First Chicago's (in its capacity as a
Lender) relevant Eurodollar Loan and having a maturity
approximately equal to such Eurodollar Interest Period.
"Eurodollar Interest Period" means, with respect to a
Eurodollar Advance, a period of one, two, three or six
months, or such longer period agreed to by the Borrower and
all the Lenders, commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Eurodollar
Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six
months thereafter, provided, however, that if there is no
such numerically corresponding day in such next, second,
third or sixth succeeding month, such Eurodollar Interest
Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on
the next succeeding Business Day, provided, however, that if
said next succeeding Business Day falls in a new calendar
month, such Eurodollar Interest Period shall end on the
immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at
a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period, the sum
of (i) the quotient of (a) the Eurodollar Base Rate
4
applicable to such Eurodollar Interest Period, divided by
(b) one minus the Reserve Requirement (expressed as a
decimal) applicable to such Eurodollar Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the
rate is not such a multiple.
"Existing Credit Agreement" means that certain Credit
Agreement dated as of February 18, 1994 among the Borrower,
the Agent and the lenders party thereto, as amended to date.
"Facility Termination Date" means May 15, 2003, as such
date may be extended by written agreement of the Borrower,
the Agent and the Lenders in their sole discretion, or any
earlier date on which the Aggregate Commitment is reduced to
zero or otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum 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 for such day (or, if such
day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately
10 a.m. (Chicago time) on such day on such transactions
received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent in its sole
discretion.
"First Chicago" means The First National Bank of
Chicago, a national banking association, in its individual
capacity, and its successors.
"Fixed Charges" means, all interest and all
amortization of debt discount and expense on all
Indebtedness of the Borrower and its Subsidiaries determined
on a consolidated basis for the four quarters ending on the
date of determination (the amount stated as "Interest
Expense" on the Borrower's consolidated statement of income)
plus all Rentals under operating leases determined on a
consolidated basis for such four fiscal quarters.
"Fixed Charge Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries on a consolidated basis,
calculated for the four full consecutive fiscal quarters
ending on the date of determination, the ratio of (a) (i)
Adjusted EBITDA for such period, plus (ii) Rentals for such
period, to (b) Fixed Charges for such period.
"Fixed Rate" means the Eurodollar Rate.
"Fixed Rate Advance" means an Advance which bears
interest at a Fixed Rate.
"Fixed Rate Loan" means a Loan which bears interest at
a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum
equal to the Alternate Base Rate for such day, changing
when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears
interest at the Floating Rate.
5
"Floating Rate Loan" means a Loan which bears interest
at the Floating Rate.
"GAAP" means generally accepted accounting principles
in effect from time to time.
"Hazardous Substance" shall mean any hazardous and/or
toxic material, substance, and/or waste pollutant and/or
contaminant which is regulated as such under any statute,
law, ordinance, rule, and/or regulation of any Federal,
state, local, and/or regional authority having jurisdiction
over Property of the Borrower and/or any of its Subsidiaries
and/or its use, including any material, substance, and/or
waste which is: (a) defined as a hazardous substance under
Section 311 of the Federal Water Pollution Control Act (33
U.S.C. Section 1317), as amended; (b) regulated as a
hazardous waste under Section 1004 of the Federal Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), as amended; (c) defined as a hazardous substance
under Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section
9601 et seq.), as amended; and/or (d) defined and/or
regulated as a hazardous substance and/or hazardous waste
under any rules and/or regulations promulgated under any of
the foregoing statutes.
"Indebtedness" of a Person means, on a consolidated
basis and without duplication, such Person's (i) obligations
for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade),
(iii) obligations, whether or not assumed, secured by Liens
or payable out of the proceeds or production from property
now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or
other instruments, (v) Capitalized Lease Obligations, and
(vi) Contingent Obligations.
"Intangible Assets" means the amount of (i) all write-
ups (other than write-ups resulting from foreign currency
translations and write-up of assets of a going concern
business made within twelve months after the acquisition of
such business) subsequent to December 31, 1992 in the book
value of any asset owned by the Borrower or a Subsidiary,
and (ii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, organization or
developmental expenses and other intangible items.
"Interest Period" means a Eurodollar Interest Period.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective
successors and assigns.
"Lending Installation" means, with respect to a Lender
or the Agent, any office, branch, subsidiary or affiliate of
such Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit
or similar instrument which is issued upon the application
of such Person or upon which such Person is an account party
or for which such Person is in any way liable but shall not
include Letters of Credit upon which the Borrower or a
Subsidiary is in any way liable and which are (a) currently
6
existing and described in Schedule 4 hereto, (b) issued in
the ordinary course of business in connection with bid bonds
and performance bonds or (c) trade Letters of Credit in the
ordinary course of business.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized
Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's
loan made pursuant to Article II (or any conversion or
continuation thereof).
"Loan Documents" means this Agreement, the Notes, and
the other documents and agreements contemplated hereby and
executed by the Borrower in favor of the Agent or any
Lender.
"Major Indebtedness" is defined in Section 7.5.
"Material Adverse Effect" means a material adverse
effect on (i) the business, Property, financial condition,
results of operations, or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform its obligations under the Loan
Documents, or (iii) the validity or enforceability of any of
the Loan Documents or the rights or remedies of the Agent or
the Lenders thereunder.
"Multiemployer Plan" means a Plan maintained pursuant
to a collective bargaining agreement or any other
arrangement to which the Borrower or any member of the
Controlled Group is a party to which more than one employer
is obligated to make contributions.
"Note" means a promissory note, in substantially the
form of Exhibit "A" hereto, duly executed by the Borrower
and payable to the order of a Lender in the amount of its
Commitment, including any amendment, modification, renewal
or replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued
and unpaid interest on the Notes, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender,
the Agent or any indemnified party hereunder arising under
the Loan Documents.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June,
September, and December.
"PBGC" means the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Permitted Acquisition" means an Acquisition (i) of the
stock or assets of a Person in the same or a related line of
business as the Borrower, or of the stock or assets of a
7
Person in an unrelated line of business as the Borrower
provided that the aggregate consideration for all such
Acquisitions of Persons in unrelated lines of business
during the term of this Agreement does not exceed
$10,000,000, (ii) approved by the board of directors and
shareholders of the Person whose stock or assets are being
acquired, and (iii) as to which the Borrower has provided to
the Agent and each of the Lenders a certified pro forma
covenant compliance certificate, in form and detail
satisfactory to the Agent and each of the Lenders and
demonstrating to their satisfaction that following the
consummation of such Acquisition the Borrower will be in
compliance with the financial covenants set forth in
Sections 6.18, 6.19 and 6.20 below and that after giving
effect to such Acquisition there shall not otherwise exist a
Default or Unmatured Default hereunder.
"Person" means any natural person, corporation, firm,
joint venture, partnership, association, enterprise, trust
or other entity or organization, or any government or
political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code as to which
the Borrower or any member of the Controlled Group may have
any liability.
"Pricing Schedule" means Schedule "5" hereto.
"Property" of a Person means any and all property,
whether real, personal, tangible, intangible, or mixed, of
such Person, or other assets owned, leased or operated by
such Person.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System as from time to time
in effect and any successor thereto or other regulation or
official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System as from time to time
in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Rentals" shall mean for any period all fixed payments
(including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease
and/or surrender of the property, payable by the Borrower or
any Subsidiary of the Borrower, as lessee or sublessee under
a lease of real and/or personal property), but excluding any
amounts required to be paid by the Borrower or any
Subsidiary of the Borrower (whether designated as rents or
additional rents) on account of maintenance, repairs,
insurance, taxes, and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely
on the basis of the minimum rents, if any, required to be
paid by the lessee regardless of sales volume and/or gross
revenues.
8
"Reportable Event" means a reportable event as defined
in Section 4043 of ERISA and the regulations issued under
such section, with respect to a Plan, excluding, however,
such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided,
however, that a failure to meet the minimum funding standard
of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate
having at least 60% of the Aggregate Commitment or, if
the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least 60% of the aggregate unpaid
principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a
Eurodollar Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Section" means a numbered section of this Agreement,
unless another document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more
than 50% of the outstanding securities having ordinary
voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, limited
liability company, association, joint venture or similar
business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the
time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean
a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the
Property of the Borrower and its Subsidiaries, Property
which represents more than 10% of the consolidated
assets of the Borrower and its Subsidiaries as would be
shown in the consolidated financial statements of the
Borrower and its Subsidiaries as at the beginning of the
twelve-month period ending with the month in which such
determination is made.
"Total Indebtedness" means, as of any date of
determination, the amount (determined in conformity with
GAAP) of all Indebtedness of the Borrower and all its
Subsidiaries, determined on a consolidated basis, created or
assumed by any of such Persons.
"Total Indebtedness / Adjusted EBITDA Ratio" means, as
of any date of determination, the quotient of the Total
Indebtedness of the Borrower and its Subsidiaries
(determined on a consolidated basis) as of such date divided
by the Adjusted EBITDA of the Borrower and its Subsidiaries
(determined on a consolidated basis) as of such date.
9
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature
as a Floating Rate Advance or Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by
which the present value of all vested nonforfeitable
benefits under all Single Employer Plans exceeds the fair
market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent
valuation date for such Plans.
"Unmatured Default" means an event which but for the
lapse of time or the giving of notice, or both, would
constitute a Default.
The foregoing definitions shall be equally applicable
to both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this
Agreement and prior to the Facility Termination Date, each
Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make Loans to the Borrower from
time to time in amounts not to exceed in the aggregate at
any one time outstanding the amount of its Commitment;
provided, however, that the aggregate amount of Loans made
by all Lenders at any one time outstanding shall not exceed
the Aggregate Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at
any time prior to the Facility Termination Date. The
Commitments to lend hereunder shall expire on the Facility
Termination Date.
2.2. Required Payments; Termination. Any outstanding
Advances and all other unpaid Obligations shall be paid in
full by the Borrower on the Facility Termination Date.
2.3. Ratable Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.4. Types of Advances. The Advances may be Floating
Rate Advances or Eurodollar Advances, or a combination
thereof, selected by the Borrower in accordance with
Sections 2.8 and 2.9.
2.5. Commitment Fee; Reductions in Aggregate
Commitment. The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee equal to the
Applicable Fee Rate multiplied by the amount, calculated
daily, equal to such Lender's Commitment minus such Lender's
pro rata share of all outstanding Loans, from the date
hereof to and including the Facility Termination Date,
payable quarterly, in arrears, on the last day of each
calendar quarter and on the Facility Termination Date. The
Borrower may permanently reduce the Aggregate Commitment in
10
whole, or in part ratably among the Lenders in the minimum
amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, upon at least ten Business
Days' written notice to the Agent, which notice shall
specify the amount of any such reduction, provided, however,
that the amount of the Aggregate Commitment may not be
reduced below the aggregate principal amount of the
outstanding Advances. All accrued commitment fees shall be
payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Fixed Rate
Advance shall be in the minimum amount of $4,000,000 (and
in multiples of $500,000 if in excess thereof), and each
Floating Rate Advance shall be in the minimum amount of
$200,000 (and in multiples of $100,000 if in excess
thereof), provided, however, that any Floating Rate Advance
may be in the amount of the unused Aggregate Commitment.
2.7. Optional Principal Payments. The Borrower may
from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances, or, in a minimum
aggregate amount of $100,000 or any integral multiple of
$100,000 in excess thereof, any portion of the
outstanding Floating Rate Advances upon notice not later
than noon (Chicago time) on the date of prepayment to the
Agent. Any Fixed Rate Advance may be paid prior to the last
day of the applicable Interest Period upon payment of all
amounts due under Section 3.4. The Borrower shall give the
Agent notice not later than noon (Chicago time) on the date
of any prepayment of a Floating Rate Advance, and not later
than noon (Chicago time) two Business Days prior to any
prepayment of any Fixed Rate Advance. The Agent will
promptly notify each Lender of its receipt of any such
notice.
2.8. Method of Selecting Types and Interest Periods for
New Advances. The Borrower shall select the Type of Advance
and, in the case of each Fixed Rate Advance, the Interest
Period applicable to each Advance from time to time. The
Borrower shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than noon (Chicago time) on
the proposed Borrowing Date of each Floating Rate Advance
and not later than noon (Chicago time) at least three
Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Fixed Rate Advance, the
Interest Period applicable thereto.
Not later than 2:00 p.m. (Chicago time) on each Borrowing
Date, each Lender shall make available its Loan or Loans, in
funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIII. The Agent will
make the funds so received from the Lenders available to the
Borrower at the Agent's aforesaid address.
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2.9. Conversion and Continuation of Outstanding
Advances. Floating Rate Advances shall continue as Floating
Rate Advances unless and until such Floating Rate Advances
are converted into Fixed Rate Advances. Each Fixed Rate
Advance shall continue as a Fixed Rate Advance until the end
of the then applicable Interest Period therefor, at which
time such Fixed Rate Advance shall be automatically
converted into a Floating Rate Advance unless the Borrower
shall have given the Agent a Conversion/Continuation Notice
requesting that, at the end of such Interest Period, such
Fixed Rate Advance either continue as a Fixed Rate Advance
for the same or another Interest Period or be converted into
an Advance of another Type. Subject to the terms of Section
2.6, the Borrower may elect from time to time to convert all
or any part of an Advance of any Type into any other Type or
Types of Advances; provided that any conversion of any Fixed
Rate Advance shall be made on, and only on, the last day of
the Interest Period applicable thereto. The Borrower shall
give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Fixed Rate Advance not later
than 10:00 a.m. (Chicago time) on the day of a conversion
into a Floating Rate Advance, or three Business Days, in the
case of a conversion into or continuation of a Eurodollar
Advance, prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business
Day, of such conversion or continuation;
(ii) the aggregate amount and Type of the Advance
which is to be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into
which such Advance is to be converted or
continued and, in the case of a conversion
into or continuation of a Fixed Rate Advance,
the duration of the Interest Period
applicable thereto.
2.10. Interest Rates. Each Floating Rate Advance
shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such
Advance is made or is converted from a Fixed Rate Advance
into a Floating Rate Advance pursuant to Section 2.9 to but
excluding the date it becomes due or is converted into a
Fixed Rate Advance pursuant to Section 2.9 hereof, at a rate
per annum equal to the Floating Rate for such day. Changes
in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate.
Each Fixed Rate Advance shall bear interest on the
outstanding principal amount thereof from and including the
first day of the Interest Period applicable thereto to (but
not including) the last day of such Interest Period at the
interest rate determined as applicable to such Fixed Rate
Advance. No Interest Period may end after the Facility
Termination Date.
2.11. Rates Applicable After Default.
Notwithstanding anything to the contrary contained in
Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default no Advance may be made as, converted into
or rolled over as a Fixed Rate Advance without the prior
written consent of the Required Lenders. During the
continuance of a Default the Required Lenders may, at their
option, by written notice to the Borrower (which notice may
be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring
12
unanimous consent of the Lenders to changes in interest
rates), declare that all outstanding Loans shall bear
interest at a rate per annum equal to the Floating Rate plus
2 1/2% per annum.
2.12. Method of Payment. All payments of the
Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the
Agent specified in writing by the Agent to the Borrower, by
noon (local time) on the date when due and shall be applied
ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall
be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent
from such Lender. The Agent is hereby authorized to charge
the account of the Borrower maintained with First Chicago
for each payment of principal, interest and fees as it
becomes due hereunder.
2.13. Notes; Telephonic Notices. Each Lender is
hereby authorized to record the principal amount of each of
its Loans and each repayment on the schedule attached to its
Note, provided, however, that the failure to so record shall
not affect the Borrower's obligations under such Note. The
Borrower hereby authorizes the Lenders and the Agent to
extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Agent or any
Lender in good faith believes to be acting on behalf of the
Borrower. The Borrower agrees to deliver promptly to the
Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic
notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action
taken by the Agent and the Lenders, the records of the Agent
and the Lenders shall govern absent manifest error.
2.14. Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be
payable on the last day of each month, commencing with the
first such date to occur after the date hereof, on any date
on which the Floating Rate Advance is prepaid, whether due
to acceleration or otherwise, and at maturity. Interest
accrued on that portion of the outstanding principal amount
of any Floating Rate Advance converted into a Fixed Rate
Advance on a day other than a Payment Date shall be payable
on the date of conversion. Interest accrued on each Fixed
Rate Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Fixed
Rate Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Fixed
Rate Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-
month interval during such Interest Period. Interest on
Fixed Rate Advances and commitment fees shall be calculated
for actual days elapsed on the basis of a 360-day year and
interest on Floating Rate Advances shall be calculated to
actual days elapsed on the basis of a year of 365, or 366
when appropriate, days. Interest shall be payable for the
day an Advance is made but not for the day of any payment on
the amount paid if payment is received prior to noon (local
time) at the place of payment. If any payment of principal
of or interest on an Advance shall become due on a day which
is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in
computing interest in connection with such payment.
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2.15. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions. Promptly after
receipt thereof, the Agent will notify each Lender of the
contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate applicable to each
Fixed Rate Advance and Floating Rate Advance promptly upon
determination of such interest rate and will give each
Lender and the Borrower prompt notice of each change in the
Alternate Base Rate.
2.16. Lending Installations. Each Lender may book
its Loans at any Lending Installation selected by such
Lender and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such
Lending Installation and the Notes shall be deemed held by
each Lender for the benefit of such Lending Installation.
Each Lender may, by written or telex notice to the Agent and
the Borrower, designate a Lending Installation through which
Loans will be made by it and for whose account Loan payments
are to be made.
2.17. Non-Receipt of Funds by the Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Agent
prior to the date on which it is scheduled to make payment
to the Agent of (i) in the case of a Lender, the proceeds of
a Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of
the Lenders, that it does not intend to make such payment,
the Agent may assume that such payment has been made. The
Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance
upon such assumption. If such Lender or the Borrower, as
the case may be, has not in fact made such payment to the
Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available
together with interest thereon in respect of each day during
the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for
such day or (ii) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.
2.18. Withholding Tax Exemption. At least five
Business Days prior to the first date on which interest or
fees are payable hereunder for the account of any Lender,
each Lender that is not incorporated under the laws of the
United States of America, or a state thereof, agrees that it
will deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, certifying in either case that such
Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United
States federal income taxes. Each Lender which so delivers
a Form 1001 or 4224 further undertakes to deliver to each of
the Borrower and the Agent two additional copies of such
form (or a successor form) on or before the date that such
form expires (currently, three successive calendar years for
Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may
be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive
payments under this Agreement and the Notes without
deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which
14
would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of
receiving payments without any deduction or withholding of
United States federal income tax.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental
or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any
interpretation thereof, or the compliance of any Lender
therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or
withholding on or from payments due from the
Borrower (excluding federal taxation of the
overall net income of any Lender or
applicable Lending Installation), or changes
the basis of taxation of payments to any
Lender in respect of its Loans or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge,
special deposit or similar requirement
against assets of, deposits with or for the
account of, or credit extended by, any Lender
or any applicable Lending Installation (other
than reserves and assessments taken into
account in determining the interest rate
applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender
or any applicable Lending Installation of
making, funding or maintaining loans or
reduces any amount receivable by any Lender
or any applicable Lending Installation in
connection with loans, or requires any Lender
or any applicable Lending Installation to
make any payment calculated by reference to
the amount of loans held or interest received
by it, by an amount deemed material by such
Lender,
then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such
Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment.
3.2. Changes in Capital Adequacy Regulations. If a
Lender determines the amount of capital required or expected
to be maintained by such Lender, any Lending Installation of
such Lender or any corporation controlling such Lender is
increased as a result of a Change, then, within 15 days of
demand by such Lender, the Borrower shall pay such Lender
the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital
which such Lender determines is attributable to this
Agreement, its Loans or its obligation to make Loans
hereunder (after taking into account such Lender's policies
15
as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this
Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending
Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the
date of this Agreement, including transition rules, and (ii)
the corresponding capital regulations promulgated by
regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of
this Agreement.
3.3. Availability of Types of Advances. If any Lender
determines that maintenance of any of its Fixed Rate Loans
at a suitable Lending Installation would violate any
applicable law, rule, regulation or directive, whether or
not having the force of law, the Agent shall suspend the
availability of the affected Type of Advance and require any
Fixed Rate Advances of the affected Type to be repaid; or if
the Required Lenders determine that (i) deposits of a type
or maturity appropriate to match fund Fixed Rate Advances
are not available, the Agent shall suspend the availability
of the affected Type of Advance with respect to any Fixed
Rate Advances made after the date of any such determination,
or (ii) an interest rate applicable to a Type of Advance
does not accurately reflect the cost of making a Fixed Rate
Advance of such Type, then, if for any reason whatsoever the
provisions of Section 3.1 are inapplicable, the Agent shall
suspend the availability of the affected Type of Advance
with respect to any Fixed Rate Advances made after the date
of any such determination. Subject to the provisions of
Article II, the Borrower may select any unaffected rate
option to apply to such affected Advances. If the Borrower
fails to select a new rate option, the affected Advances
shall be Floating Rate Advances.
3.4. Funding Indemnification. If any payment of a
Fixed Rate Advance occurs on a date which is not the last
day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Fixed Rate
Advance is not made on the date specified by the Borrower
for any reason other than default by the Lenders, the
Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate
Advance.
3.5. Lender Statements; Survival of Indemnity. To the
extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Fixed
Rate Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under Section 3.3, so
long as such designation is not disadvantageous to such
Lender. Each Lender shall deliver a written statement of
such Lender as to the amount due, if any, under Sections
3.1, 3.2 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as
though each Lender funded its Fixed Rate Loan through the
purchase of a deposit of the type and maturity corresponding
16
to the deposit used as a reference in determining the Fixed
Rate applicable to such Loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount
specified in the written statement shall be payable on
demand after receipt by the Borrower of the written
statement. The obligations of the Borrower under Sections
3.1, 3.2 and 3.4 shall survive payment of the Obligations
and termination of this Agreement.
3.6. Election to Terminate. If any Lender determines
that a Fixed Rate Loan would violate any applicable law,
rule, regulation or directive pursuant to Section 3.3 or any
Lender (but not all the Lenders) has requested compensation
pursuant to Sections 3.1 or 3.2, the Borrower may elect to
replace such Lender ("Replaced Lender") with a substitute
Lender ("Substitute Lender") with the prior written consent
of the Agent, which consent shall not be unreasonably
withheld. If the Borrower elects to find a Substitute
Lender, the Borrower shall give the Agent at least five
Business Days' notice of the identity of such Substitute
Lender. On the sixth Business Day following receipt by the
Agent of such notice, the Replaced Lender, upon receipt of
payment in full of all of its outstanding Obligations, shall
execute an assignment in the form of Exhibit "D" hereto of
all of its rights and obligations under this Agreement to
the Substitute Lender, except its right to indemnifications
set forth in Section 9.7 hereof.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be
required to make the initial Advance hereunder unless (1)
the Borrower has paid all fees pursuant to that certain fee
letter dated April 7, 1998 between the Borrower and the
Arranger, (2) the Borrower has paid all closing fees to the
Agent to be ratably distributed to the Lenders pursuant to
the term sheet dated April 7, 1998 for the transactions
represented hereby, and (3) has furnished to the Agent with
sufficient copies for the Lenders:
(i) Duly executed originals of this Agreement.
(ii) Duly executed originals of the Notes.
(iii) Copies of the certificate of incorporation
of the Borrower, together with all
amendments, and a certificate of good
standing, both certified by the Secretary of
State of the State of Delaware.
(iv) Copies, certified by the Secretary or
Assistant Secretary of the Borrower, of its
by-laws and of its Board of Directors'
resolutions authorizing the execution of the
Loan Documents.
(v) An incumbency certificate, executed by the
Secretary or Assistant Secretary of the
Borrower, which shall identify by name and
title and bear the signature of the officers
of the Borrower authorized to sign the Loan
Documents and to borrow hereunder, upon which
certificate the Agent and the Lenders shall
17
be entitled to rely until informed of any
change in writing by the Borrower.
(vi) A certificate, signed by the chief financial
officer of the Borrower, stating that on the
initial Borrowing Date no Default or
Unmatured Default has occurred and is
continuing.
(vii) A written opinion of the Borrower's
counsel, addressed to the Lenders in
substantially the form of Exhibit "B" hereto.
(viii) Written money transfer instructions, in
substantially the form of Exhibit "E" hereto,
addressed to the Agent and signed by an
Authorized Officer, together with such other
related money transfer authorizations as the
Agent may have reasonably requested.
(ix) Such other documents as any Lender or its
counsel may have reasonably requested.
(x) Evidence reasonably satisfactory to the Agent
that all outstanding obligations under the
Existing Credit Agreement will be satisfied
in full upon funding of the initial Advance
hereunder.
4.2. Each Advance Which Increases Outstanding Advances.
The Lenders shall not be required to make any Advance (other
than an Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the
aggregate amount of outstanding Advances), unless on the
applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained
in Article V are true and correct as of such
Borrowing Date except to the extent any such
representation or warranty is stated to
relate solely to an earlier date, in which
case such representation or warranty shall be
true and correct on and as of such earlier
date.
(iii) All legal matters incident to the making
of such Advance shall be satisfactory to the
Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance
shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i)
and (ii) have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form
of Exhibit "C" hereto as a condition to making an Advance.
4.3. Each Advance Which Does Not Increase Outstanding
Advances. When the Borrower requests an Advance which,
after giving effect thereto and to the application of the
proceeds thereof, does not increase the aggregate amount of
outstanding Advances, the Borrower shall represent to the
Banks whether or not a Default exists. A Borrowing Notice
18
delivered with respect to such an Advance shall constitute a
representation that no Default exists. If a Default exists,
the requested Advance shall be made as a Floating Rate
Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders
that:
5.1. Corporate Existence and Standing. Each of the
Borrower and its Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each
jurisdiction in which its business is conducted except where
the failure to have such authority would not have a Material
Adverse Effect.
5.2. Authorization and Validity. The Borrower has the
corporate power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by the Borrower of
the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents constitute legal, valid
and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally.
5.3. No Conflict; Government Consent. Neither the
execution and delivery by the Borrower of the Loan
Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the
Borrower or any of its Subsidiaries, other than violations
which would not have a Material Adverse Effect, or the
Borrower's or any Subsidiary's articles or certificate of
incorporation or by-laws or the provisions of any indenture,
instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a
default thereunder, or result in the creation or imposition
of any Lien in, of or on the Property of the Borrower or a
Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in
connection with the execution, delivery and performance of,
or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4. Financial Statements. The September 30, 1997,
consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with generally accepted accounting
principles in effect on the date such statements were
prepared and fairly present the consolidated financial
condition and operations of the Borrower and its
19
Subsidiaries at such date and the consolidated results of
their operations for the period then ended.
5.5. Material Adverse Change. Since September 30, 1997
there has been no change in the Borrower and its
Subsidiaries which had a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have
filed all United States federal tax returns and all other
tax returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being
contested in good faith and as to which adequate reserves
have been provided in accordance with GAAP. The United
States income tax returns of the Borrower and its
Subsidiaries have been audited by the Internal Revenue
Service through the fiscal year ended December 31, 1990. No
tax liens have been filed and no claims are being asserted
with respect to any such taxes except as permitted under
Section 6.16(i) below. The Borrower does not know of any
proposed additional tax assessment against it for which
adequate provisions has not been made on its accounts. The
charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except as
set forth on Schedule "3" hereto, there is no litigation,
arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their
officers, threatened against or affecting the Borrower or
any of its Subsidiaries which, if adversely determined,
could reasonably be expected to have a Material Adverse
Effect. Other than any liability incident to such
litigation, arbitration or proceedings, the Borrower has no
material contingent obligations not provided for or
disclosed in the financial statements referred to in Section
5.4.
5.8. Subsidiaries. Schedule "1" hereto contains an
accurate list of all of the presently existing Subsidiaries
of the Borrower, setting forth their respective
jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of
capital stock of such Subsidiaries have been duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. There are no Unfunded Liabilities under
any Single Employer Plan. Each Plan complies in all
material respects with all applicable requirements of law
and regulations and no Reportable Event has occurred and is
ongoing with respect to any Plan. Since September 30, 1997,
neither the Borrower nor any other members of the Controlled
Group has withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to reorganize or terminate
any Plan.
5.10. Accuracy of Information. No information,
exhibit or report furnished by the Borrower or any of its
Subsidiaries to the Agent or to any Lender in connection
with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to
make the statements contained therein not misleading.
20
5.11. Regulation U. Margin stock (as defined in
Regulation U) constitutes less than 25% of those assets
of the Borrower and its Subsidiaries which are subject to
any limitation on sale, pledge, or other restriction
hereunder.
5.12. Material Agreements. Neither the Borrower nor
any Subsidiary is a party to any agreement or instrument or
subject to any charter or other corporate restriction which
would have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to
which it is a party, which default would have a Material
Adverse Effect or (ii) any agreement or instrument
evidencing or governing any Major Indebtedness.
5.13. Compliance With Laws. Neither the Borrower nor
any Subsidiary (a) is in violation of any law, ordinance,
franchise, governmental rule and/or regulation to which it
is subject; (b) is in default with respect to any order of
any court or governmental authority or arbitration board or
tribunal; and/or (c) has failed to obtain any license,
permit, franchise and/or other governmental authorization
necessary to the ownership of its Property and/or to the
conduct of its business, which violation, default and/or
failure to obtain would have a Material Adverse Effect.
5.14. Compliance with Environmental Law. Except
where any such violation would not have a Material Adverse
Effect, the Borrower and its Subsidiaries are not in
violation of any applicable Federal, state and/or local
laws, statutes, rules, regulations and/or ordinances
relating to public health, safety and/or the environment
including, without limitation, those relating (a) to
releases, discharges, emissions and/or disposal into air,
water, land and/or groundwater, (b) to the withdrawal and/or
use of groundwater, (c) to the uses, of handling and/or
disposal of polychlorinated biphenyls and/or asbestos, (d)
to the disposal, treatment, storage and/or management of
hazardous or solid waste, and/or Hazardous Substances and/or
crude oil, fractious petroleum derivatives and/or by-
products thereof, (e) to exposure to toxic and/or hazardous
materials, (f) to the handling, transportation, discharge
and/or release of gaseous and/or liquid Hazardous Substances
("Environmental Laws"), and any order, notice and/or demand
issued pursuant to such Environmental Laws, in each case
applicable to the Property of the Borrower and its
Subsidiaries and/or the operation and/or modification
thereof.
5.15. Ownership of Properties. Except as set forth
on Schedule "2" hereto, on the date of this Agreement, the
Borrower and its Subsidiaries have good title (except for
immaterial defects of title), free of all Liens other than
those permitted by Section 6.16, to all of the Property and
assets reflected in the financial statements referred to in
Section 5.4 as owned by it, except as sold and/or otherwise
disposed of in the ordinary course of business.
5.16. Patents and Trademarks. The Borrower and each
Subsidiary (i) owns and/or possesses all the patents,
trademarks, trade names, service marks, copyrights, licenses
and rights with respect to the foregoing necessary for the
present conduct of its business without any known conflict
with the rights of others, and (ii) owns and/or possesses
and/or has applied for all the patents, trademarks, trade
names, service marks, copyrights, licenses and rights with
respect to the foregoing necessary for the planned conduct
of its business for the next six months, without any known
21
conflict with the rights of others, except, with respect to
clauses (i) and (ii), where the failure to own and/or
possess any patents, trademarks, trade names, service marks,
copyrights, licenses and/or rights would not have a Material
Adverse Effect on the Borrower and its Subsidiaries, taken
as a whole, and/or subject the Borrower to any material
liability in connection with any infringement and/or similar
cause of action related to any of the foregoing.
5.17. Investment Company Act. Neither the Borrower
nor any Subsidiary thereof is an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither
the Borrower nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain,
for itself and each Subsidiary, a system of accounting
established and administered in accordance with generally
accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its
fiscal years, an unqualified (except for
qualifications relating to changes in
accounting principles or practices reflecting
changes in generally accepted principles of
accounting and required or approved by the
Borrower's independent certified public
accountants) audit report certified by
independent certified public accountants,
acceptable to the Lenders, prepared in
accordance with GAAP on a consolidated basis
for itself and the Subsidiaries, including
balance sheets as of the end of such period,
related profit and loss and reconciliation of
surplus statements, and a statement of cash
flows.
(ii) Within 60 days after the close of the first
three quarterly periods of each of its fiscal
years, for itself and the Subsidiaries, (i)
consolidated unaudited balance sheets as at
the close of each such period setting forth
in comparative form the consolidated figures
for the fiscal year then most recently ended
(ii) consolidated profit and loss and
reconciliation of surplus statements and a
statement of cash flows for such period and
for the period from the beginning of such
fiscal year to the end of such quarter, in
each case setting forth in comparative form
the consolidated figures for the
corresponding period of the preceding fiscal
22
year, all certified by its chief financial
officer as presenting fairly, in all material
respects, the financial condition of the
Borrower and its Subsidiaries, subject to
normal end of period adjustments.
(iii) Together with the financial statements
required hereunder, a compliance certificate
in substantially the form of Exhibit "C"
hereto signed by its chief financial officer
or treasurer showing the calculations
necessary to determine compliance with this
Agreement and stating that no Default or
Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the
nature and status thereof.
(iv) Within 270 days after the close of each
fiscal year, a statement of the Unfunded
Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled
under ERISA.
(v) As soon as possible and in any event within
20 days after the Borrower knows that any
Reportable Event has occurred with respect to
any Plan, a statement, signed by the chief
financial officer of the Borrower, describing
said Reportable Event and the action which
the Borrower proposes to take with respect
thereto.
(vi) As soon as possible and in any event within
20 days after receipt by the Borrower, a copy
of (a) any notice or claim to the effect that
the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of
the release by the Borrower, any of its
Subsidiaries, or any other Person of any
Hazardous Substance into the environment, and
(b) any notice alleging any violation of any
federal, state or local environmental, health
or safety law or regulation by the Borrower
or any of its Subsidiaries, which, in either
case, could have a Material Adverse Effect.
(vii) Promptly upon the furnishing thereof to
the shareholders of the Borrower, copies of
all financial statements, reports and proxy
statements so furnished.
(viii) Promptly upon the filing thereof, copies
of all registration statements and annual,
quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries
files with the Securities and Exchange
Commission.
(ix) Such other information (including non-
financial information) as the Agent or any
Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will
cause each Subsidiary to, use the proceeds of the Advances
to repay loans under the Existing Credit Agreement, for
working capital and general corporate purposes and to repay
outstanding Advances. The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the
23
Advances to purchase or carry any "margin stock" (as defined
in Regulation U) or to make any Acquisition, other than
Permitted Acquisitions.
6.3. Notice of Default. The Borrower will, and will
cause each Subsidiary to, give prompt notice in writing to
the Agent of the occurrence of any Default or Unmatured
Default and of any other development, financial or
otherwise, which could reasonably be expected to have a
Material Adverse Effect. The Agent will promptly notify
each Lender of its receipt of any such notice.
6.4. Conduct of Business. The Borrower will, and will
cause each Subsidiary to, carry on and conduct its business
in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and
to do all things necessary to remain duly incorporated,
validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted.
6.5. Taxes. The Borrower will, and will cause each
Subsidiary to, timely file complete and correct United
States federal and applicable foreign, state and local tax
returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or
its income, profits, business or Property, all trade
accounts payable in accordance with usual and customary
business terms, and all claims for work, labor, and/or
materials, which if unpaid might become a Lien upon any
Property of the Borrower or such Subsidiary; provided the
Borrower or such Subsidiary shall not be required to pay any
such tax, assessment, charge, levy, account payable and/or
claim (i) the validity, applicability and/or amount of which
is being contested in good faith by appropriate actions
and/or proceedings, the pendency of which actions and/or
proceedings will, and which actions and/or proceedings, if
determined favorably to the Borrower or such Subsidiary
will, prevent the forfeiture and/or sale of any material
Property of the Borrower or such Subsidiary and/or any
material interference with the use thereof by the Borrower
or such Subsidiary, and the Borrower and such Subsidiary
sets aside on its books, reserves deemed by it to be
adequate with respect thereto, and/or (ii) if such tax,
assessment, charge, levy, account payable, and/or claim
would not have a Material Adverse Effect.
6.6. Insurance. The Borrower will, and will cause each
Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any
Lender upon request full information as to the insurance
carried.
6.7. Compliance with Laws. The Borrower will, and will
cause each Subsidiary to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees
or awards to which it may be subject, the violation of which
would have a Material Adverse Effect and/or result in the
creation of any Lien not permitted by Section 6.17.
6.8. Maintenance of Properties. The Borrower will, and
will cause each Subsidiary to, do all things necessary to
maintain, preserve, protect and keep its Property in good
repair, working order and condition, and make all necessary
24
and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly
conducted at all times.
6.9. Inspection. The Borrower will, and will cause
each Subsidiary to, permit the Agent and the Lenders, by
their respective representatives and agents, to inspect any
of the Property, corporate books and financial records of
the Borrower and each Subsidiary, to examine and make copies
of the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Agent
or the Lenders may designate.
6.10. Dividends. The Borrower will not, nor will it
permit any Subsidiary to, declare or pay any dividends or
make any distributions on its capital stock (other than (i)
dividends payable in its own capital stock and (ii)
excluding share repurchases used solely to fund employee
stock purchase plans, provided such share repurchases do not
exceed $1,000,000 in any fiscal quarter) or redeem,
repurchase or otherwise acquire or retire any of its capital
stock at any time outstanding ("Restricted Payments"),
except that any Subsidiary may declare and pay dividends to
the Borrower or to a wholly-owned Subsidiary and the
Borrower may make Restricted Payments in any one fiscal
quarter up to an amount not in excess of 50% of the sum
of consolidated net income during the four fiscal quarters
ending on the date of determination less any Restricted
Payments paid during such period, provided that during the
term of this Agreement the total amount of Restricted
Payments made shall not exceed $25,000,000 and further,
provided no Restricted Payment may be made if prior to, and
after giving effect thereto, any Default or Unmatured
Default exists.
6.11. Merger. The Borrower will not, nor will it
permit any Subsidiary to, merge or consolidate with or into
any other Person, except that (i) any Subsidiary of the
Borrower may merge and/or consolidate with and/or into the
Borrower or any wholly-owned Subsidiary or any other
corporation so long as in any merger or consolidation
involving the Borrower, the Borrower shall be the surviving
and/or continuing corporation and in any merger and/or
consolidation involving any other corporation, upon
completion of such merger and/or consolidation the surviving
corporation is a wholly-owned Subsidiary of the Borrower;
and (ii) the Borrower may consolidate and/or merge with any
other corporation if (a) the Borrower is the surviving
and/or continuing corporation and remains a corporation
organized and existing under the laws of the United States,
any state thereof or the District of Columbia, and (b) at
the time of such consolidation and/or merger, and after
giving effect thereto, no Default or Unmatured Default shall
have occurred and be continuing or would result therefrom.
6.12. Sale of Assets. Without the prior written
consent of the Agent and the Lenders, which consent shall
not be unreasonably withheld, the Borrower will not, nor
will it permit any Subsidiary to, lease, sell or otherwise
dispose of its Property, to any other Person except for (a)
any sale of inventory in the ordinary course of business,
(b) any sale by foreign Subsidiaries of accounts receivable
and notes receivable, (c) any lease, sale or other
disposition in arms-length transactions where the Borrower
or such Subsidiary receives consideration at fair market
value, which consideration in the aggregate for all such
transactions during the term of this Agreement shall not
exceed $20,000,000, (d) any lease of land to a lessor as
25
part of a synthetic lease transaction for new real property,
and (e) any sale or disposition of the Semiconductor Systems
Division of the Borrower in an arms-length transaction;
provided that if such sale or disposition is for cash, such
cash proceeds shall be used to repay Loans hereunder
6.13. Sale of Accounts. The Borrower will not, nor
will it permit any Subsidiary (except foreign Subsidiaries)
to, sell or otherwise dispose of any notes receivable or
accounts receivable, with or without recourse.
6.14. Sale and Leaseback. The Borrower will not, nor
will it permit any Subsidiary to, sell or transfer any of
its Property in order to concurrently or subsequently lease
as lessee such or similar Property other than such
sale/leaseback transactions which shall involve a sale of
such Property by the Borrower or a Subsidiary occurring not
later than one year after either (a) the date of the
acquisition of such Property by the Borrower or a
Subsidiary, or (b) if such Property is real estate, the date
such Property is first occupied for use by the Borrower or a
Subsidiary, provided that the net proceeds to the Borrower
or Subsidiary of such sale are at least equal to the fair
market value of such Property.
6.15. Contingent Obligations. The Borrower will not,
nor will it permit any Subsidiary to make or suffer to exist
any Contingent Obligation, except (i) by endorsement of
instruments for deposit or collection, or the discounting of
receivables of foreign Subsidiaries, in the ordinary course
of business, (ii) Contingent Obligations of the Borrower
with respect to obligations of Subsidiaries incurred in the
ordinary course of a Subsidiary's business as presently
conducted and (iii) other Contingent Obligations provided
that the aggregate amount thereof at any one time does not
exceed $10,000,000.
6.16. Liens. The Borrower will not, nor will it
permit any Subsidiary to, create, incur, or suffer to exist
any Lien in, of or on the Property of the Borrower or any of
its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same
shall not at the time be delinquent or
thereafter can be paid without penalty, or
are being contested in good faith and by
appropriate proceedings.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other
similar liens arising in the ordinary course
of business which secure payment of
obligations not more than 60 days past due.
(iii) Liens arising out of pledges or deposits
under worker's compensation laws,
unemployment insurance, old age pensions, or
other social security or retirement benefits,
or similar legislation.
(iv) Utility easements, building restrictions and
such other encumbrances or charges against
real property as are of a nature generally
existing with respect to properties of a
similar character and which do not in any
26
material way affect the marketability of the
same or interfere with the use thereof in the
business of the Borrower or the Subsidiaries.
(v) Real property security interests in
connection with obligations or borrowed
money of the Borrower, directly related to
the acquisition, development and improvement
of the facilities of the Borrower on land
owned by the Borrower in Hercules,
California, provided, however, that the ratio
of (1) the original principal amount of
obligations for borrowed money secured by
such security interests, to (2) the fair
market value of the assets subject thereto,
shall not be greater than or equal to 1.00 to
1.00 for any synthetic lease of real property
and 0.70 to 1.00 for any other type of
transaction.
(vi) Liens in connection with banker's acceptances
with maturities not in excess of 180 days.
(vii) Liens on accounts receivable of foreign
Subsidiaries securing loans and advances to
foreign Subsidiaries in principal amounts not
exceeding $10,000,000 at any one time.
(viii) Liens against equipment, property, or
plant leased by the Borrower or any
Subsidiary in favor of the lessor thereof.
(ix) Purchase money mortgages with respect to
purchases of personal property permitted
hereunder, and extensions, renewals and
refinancing thereof so long as the principal
amounts thereof are not increased.
(x) Liens on documents and related property
arising in connection with trade letters of
credit issued in the ordinary course of
business.
(xi) Liens to secure the performance of tenders,
statutory obligations, bids, leased,
government contracts, performance and surety
bonds and other similar obligations.
(xii) Liens (excluding liens permitted under
sections (i) through (xi) above) existing on
the date hereof, the aggregate amount of
liabilities secured by which does not exceed
$5,000,000. All Liens securing
liabilities in excess of $250,000 are
listed on Schedule 2 hereto.
(xiii) Liens excluding liens permitted under
sections (i) through (xii) above to secure
obligations of the Borrower or any
Subsidiary, the principal amount of which
does not exceed $15,000,000 at any one
time.
6.17. Unfunded Liabilities. The Borrower will not
permit to exist any Unfunded Liabilities under any Plan.
27
6.18. Consolidated Tangible Net Worth. The Borrower
will maintain Consolidated Tangible Net Worth as of the end
of each fiscal quarter of not less than the sum of (a)
$155,000,000 plus (a) 50% of the amount, if positive, of
the cumulative consolidated net income of the Borrower and
its Subsidiaries after September 30, 1997, plus (c) 50%
of the aggregate positive equity contributions received by
the Borrower and its Subsidiaries in connection with the
issuance of capital stock of the Borrower and /or its
Subsidiaries subsequent to September 30, 1997.
6.19. Total Indebtedness / Adjusted EBITDA Ratio.
The Borrower will not permit the Total Indebtedness /
Adjusted EBITDA Ratio to be equal or exceed 4.00 to 1.00 at
any time.
6.20. Fixed Charge Coverage Ratio. The Borrower will
not permit the Fixed Charge Coverage Ratio to be less than
2.50 to 1.0 at the end of any fiscal quarter.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following
events shall constitute a Default:
7.1. Any representation or warranty made or deemed made
by or on behalf of the Borrower or any of its Subsidiaries
to the Lenders or the Agent under or in connection with this
Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other
Loan Document shall be materially false on the date as of
which made.
7.2. Nonpayment of principal of any Note when due, or
nonpayment of interest upon any Note or of any commitment
fee or other obligations under any of the Loan Documents
within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or
provisions of Sections 6.2, 6.3 6.10, 6.11, 6.12, 6.13,
6.14, 6.15, 6.16, or 6.17; or the breach by the Borrower of
any of the terms or provisions of Sections 6.18, 6.19 or
6.20, which is not remedied within 10 days.
7.4. The breach by the Borrower (other than a breach
which constitutes a Default under Section 7.1, 7.2 or 7.3)
of any of the terms or provisions of this Agreement which is
not remedied within thirty days after written notice from
the Agent or any Lender.
7.5. Failure of the Borrower or any of its Subsidiaries
to pay when due any Indebtedness with a then outstanding
principal amount in excess of $5,000,000 ("Major
Indebtedness") or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any Major
Indebtedness was created or is governed, or any other event
shall occur or condition exist, the effect of which is to
permit the holder or holders of such Major Indebtedness to
cause such Major Indebtedness to become due prior to its
stated maturity; or any Indebtedness of the Borrower or any
of its Subsidiaries of a then outstanding principal amount
of $500,000 shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled
28
payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit
in writing its inability to pay, its debts generally as they
become due.
7.6. The Borrower or any of its Subsidiaries shall (i)
have an order for relief entered with respect to it under
the Federal bankruptcy laws as now or hereafter in effect,
(ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy
laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying
the material allegations of any such proceeding filed
against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this
Section 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of
the Borrower or any of its Subsidiaries, a receiver,
trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding
described in Section 7.6 (iv) shall be instituted against
the Borrower or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues
undismissed or unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or
control of (each a "Condemnation"), all or any portion of
the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or
taken custody or control of, during the twelve-month period
ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion.
7.9. The Borrower or any of its Subsidiaries shall fail
within 30 days to pay, bond or otherwise discharge any
judgment or order for the payment of money in excess of
$500,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
7.10. Any Unfunded Liabilities in excess of
$500,000 shall exist or any material Reportable Event shall
occur in connection with any Plan.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration If any Default described in
Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder shall
automatically terminate and the Obligations shall
immediately become due and payable without any election or
action on the part of the Agent or any Lender. If any other
Default occurs, the Required Lenders may terminate or
29
suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately
due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby
expressly waives. The Agent shall give the Borrower prompt
written notice of any acceleration hereunder.
If, within 30 days after acceleration of the maturity
of the Obligations or termination of the obligations of the
Lenders to make Loans hereunder as a result of any Default
(other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have
been obtained or entered, the Required Lenders (in their
sole discretion) shall so direct, the Agent shall, by notice
to the Borrower, rescind and annul such acceleration and/or
termination.
8.2. Amendments. Subject to the provisions of this
Article VIII, the Required Lenders (or the Agent with the
consent in writing of the Required Lenders) and the Borrower
may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected
thereby:
(i) Extend the maturity of any Loan or Note or
forgive all or any portion of the principal
amount thereof, or reduce the rate or extend
the time of payment of interest or fees
thereon.
(ii) Reduce the percentage specified in the
definition of Required Lenders.
(iii) Increase the amount of the Commitment of
any Lender hereunder, or permit the Borrower
to assign its rights under this Agreement.
(iv) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to
the Agent shall be effective without the written consent of
the Agent. The Agent may waive payment of the fee required
under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission
of the Lenders or the Agent to exercise any right under the
Loan Documents shall impair such right or be construed to be
a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default
or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such
right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment
or other variation of the terms, conditions or provisions of
the Loan Documents whatsoever shall be valid unless in
writing signed by the Lenders required pursuant to Section
8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the
Obligations have been paid in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations
and warranties of the Borrower contained in this Agreement
shall survive delivery of the Notes and the making of the
Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in
this Agreement to the contrary notwithstanding, no Lender
shall be obligated to extend credit to the Borrower in
violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Taxes. Any taxes (excluding federal income taxes
on the overall net income of any Lender) or other similar
assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by
the Borrower, together with interest and penalties, if any.
9.4. Headings. Section headings in the Loan Documents
are for convenience of reference only, and shall not govern
the interpretation of any of the provisions of the Loan
Documents.
9.5. Entire Agreement. The Loan Documents embody the
entire agreement and understanding among the Borrower, the
Agent and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent and the Lenders
relating to the subject matter thereof other than the fee
letter described in Section 10.13.
9.6. Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are
several and not joint and no Lender shall be the partner or
agent of any other (except to the extent to which the Agent
is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve
any other Lender from any of its obligations hereunder.
This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
9.7. Expenses; Indemnification. The Borrower shall
reimburse the Agent for any costs, internal charges and out-
of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Agent, which attorneys may be
employees of the Agent) paid or incurred by the Agent in
connection with the preparation, negotiation, execution,
delivery, review, amendment, modification, and
administration of the Loan Documents. The Borrower also
agrees to reimburse the Agent and the Lenders for any costs,
internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent
and the Lenders, which attorneys may be employees of the
Agent or the Lenders) paid or incurred by the Agent or any
Lender in connection with the collection and enforcement of
the Loan Documents. The Borrower further agrees to indemnify
the Agent and each Lender, its directors, officers and
employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation
31
therefor whether or not the Agent or any Lender is a party
thereto) which any of them may pay or incur arising out of
or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any
Loan hereunder (other than these resulting from the bad
faith, gross negligence or willful misconduct of any Lender
or the Agent.) The obligations of the Borrower under this
Section shall survive the termination of this Agreement.
9.8. Numbers of Documents. All statements, notices,
closing documents, and requests hereunder shall be furnished
to the Agent with sufficient counterparts so that the Agent
may furnish one to each of the Lenders.
9.9. Accounting. Except as provided to the contrary
herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder
shall be made in accordance with GAAP.
9.10. Severability of Provisions. Any provision in
any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to
that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity
of that provision in any other jurisdiction, and to this end
the provisions of all Loan Documents are declared to be
severable.
9.11. Nonliability of Lenders. The relationship
between the Borrower and the Lenders and the Agent shall be
solely that of borrower and lender. Neither the Agent nor
any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the
Borrower's business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN
THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION)
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT
AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY
32
LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. The First
National Bank of Chicago is hereby appointed by the Lenders
as Agent hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act
as the contractual representative of such Lender with the
rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the
defined term "Agent," it is expressly understood and agreed
that the Agent shall not have any fiduciary responsibilities
to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the
representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties
of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders
hereby agrees to assert no claim against the Agent on any
agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby
waives.
10.2. Powers. The Agent shall have and may exercise
such powers under the Loan Documents as are specifically
delegated to the Agent by the terms of each thereof,
together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action
thereunder except any action specifically provided by the
Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable
to the Borrower, the Lenders or any Lender for any action
taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or
willful misconduct.
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10.4. No Responsibility for Loans, Recitals, etc.
Neither the Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any
obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction
of any condition specified in Article IV, except receipt of
items required to be delivered to the Agent; or (iv) the
validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Agent shall
have no duty to disclose to the Lenders information that is
not required to be furnished by the Borrower to the Agent at
such time, but is voluntarily furnished by the Borrower to
the Agent in its individual capacity. No Lender shall have
any duty to disclose to the Agent or the other Lenders
information voluntarily furnished by the Borrower to such
Lender in its individual capacity.
10.5. Action on Instructions of Lenders. The Agent
shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on
all of the Lenders and on all holders of Notes. The Lenders
hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other
Loan Document unless it shall be requested in writing to do
so by the Required Lenders. The Agent shall be fully
justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro
rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such
action.
10.6. Employment of Agents and Counsel. The Agent
may execute any of its duties as Agent hereunder and under
any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with
reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent
shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper
or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be
employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Agent ratably
in proportion to their respective Commitments (or, if the
Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for
any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the
Loan Documents, (ii) for any other expenses incurred by the
34
Agent on behalf of the Lenders and not reimbursed by the
Borrower, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan
Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature
whatsoever which are not reimbursed by the Borrower and
which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If the Agent
later receives any such amount from the Borrower it will
reimburse the Lenders for any applicable amounts paid under
this Section 10.8. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations
and termination of this Agreement.
10.9. Rights as a Lender. In the event the Agent is
a Lender, the Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender
and may exercise the same as though it were not the Agent,
and the term "Lender" or "Lenders" shall, at any time when
the Agent is a Lender, unless the context otherwise
indicates, include the Agent in its individual capacity.
The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any
other Person. The Agent, in its individual capacity, is not
obligated to remain a Lender.
10.10. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance
upon the Agent or any other Lender and based on the
financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the
other Loan Documents.
10.11. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the
appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent
gives notice of its intention to resign. The Agent may be
removed at any time with or without cause by written notice
received by the Agent from the Required Lenders, such
removal to be effective on the date specified by the
Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf
of the Borrower and the Lenders, a successor Agent. If no
successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's
giving notice of its intention to resign, then the resigning
Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Agent. If the Agent has resigned or
been removed and no successor Agent has been appointed, the
Lenders may perform all the duties of the Agent hereunder
and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other
35
purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital
and retained earnings of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Agent.
Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged
from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article X shall
continue in effect for the benefit of such Agent in respect
of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan
Documents.
10.12. Agent's Fees. The Borrower agrees to pay to
the Agent, for its own account, the fees pursuant to that
certain fee letter dated April 7, 1998 between the Borrower
and the Arranger, or as otherwise agreed from time to time.
10.13. Notice of Default. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any
Default or Unmatured Default hereunder unless the Agent has
received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or
unmatured Default and stating that such notice is a "notice
of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the
Lenders and the Borrower.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation
of, any rights of the Lenders under applicable law, if the
Borrower becomes insolvent, however evidenced, or any
Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any
time held or owing by any Lender to or for the credit or
account of the Borrower may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by
setoff or otherwise, has payment made to it upon its Loans
(other than payments received pursuant to Sections 3.1, 3.2
or 3.4) in a greater proportion than that received by any
other Lender, such benefitted Lender agrees, promptly upon
demand, to purchase a portion of the Loans held by the other
Lenders so that after such purchase each Lender will hold
its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection
for its Obligations or such amounts which may be subject to
setoff, such benefitted Lender agrees, promptly upon demand,
to take such action necessary such that all Lenders share in
the benefits of such collateral ratably in proportion to
their Loans. If all or any portion of such excess payment
or benefits is thereafter recovered from such benefitted
36
Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery
but without interest.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and
provisions of the Loan Documents shall be binding upon and
inure to the benefit of the Borrower and the Lenders and
their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment
by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the
Agent, assign all or any portion of its rights under this
Agreement and its Notes to a Federal Reserve Bank; provided,
however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent
may treat the payee of any Note as the owner thereof for all
purposes hereof unless and until such payee complies with
Section 12.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer
is filed with the Agent. Any assignee or transferee of a
Note agrees by acceptance thereof to be bound by all the
terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of
making such request or giving such authority or consent is
the holder of any Note, shall be conclusive and binding on
any subsequent holder, transferee or assignee of such Note
or of any Note or Notes issued in exchange therefor.
12.2. Participations.
12.2.1.Permitted Participants; Effect. Any
Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under
the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender
had not sold such participating interests, and the Borrower
and the Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
00.0.0.Xxxxxx Rights. Each Lender shall retain
the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest
rate or fees payable with respect to any such Loan or
Commitment, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or
37
fees on, any such Loan or Commitment, releases any guarantor
of any such Loan or releases any substantial portion of
collateral, if any, securing any such Loan.
12.2.3.Benefit of Setoff. The Borrower agrees
that each Participant shall be deemed to have the right of
setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 with
respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right
of setoff provided in Section 11.1, agrees to share with
each Lender, any amount received pursuant to the exercise of
its right of setoff, such amounts to be shared in accordance
with Section 11.2 as if each Participant were a Lender.
12.3. Assignments.
12.3.1.Permitted Assignments. Any Lender may, in
the ordinary course of its business and in accordance with
applicable law, at any time assign to one or more banks or
other entities ("Purchasers") all or any part of its rights
and obligations under the Loan Documents, provided that any
such assignment shall be in a minimum amount of
$5,000,000. Such assignment shall be substantially in the
form of Exhibit "D" hereto or in such other form as may be
agreed to by the parties thereto. The consent of the
Borrower and the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; provided,
however, that if a Default has occurred and is continuing,
the consent of the Borrower shall not be required. Such
consent shall not be unreasonably withheld.
12.3.2.Effect; Effective Date. Upon (i) delivery
to the Agent of a notice of assignment, substantially in the
form attached as Exhibit "I" to Exhibit "D" hereto (a
"Notice of Assignment"), together with any consents required
by Section 12.3.1, and (ii) payment of a $3,500 fee by
the assignor or the assignee to the Agent for processing
such assignment, such assignment shall become effective on
the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by
the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Loans under
the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or
the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment
and Loans assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower
shall make appropriate arrangements so that replacement
Notes are issued to such transferor Lender and new Notes or,
as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting
their Commitment, as adjusted pursuant to such assignment.
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12.4. Dissemination of Information. The Borrower
authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the
Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the
Borrower and its Subsidiaries provided such Transferee has
executed a confidentiality agreement in the form of Exhibit
"F" hereto.
12.5. Tax Treatment. If any interest in any Loan
Document is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness
of such transfer, to comply with the provisions of Section
2.18.
ARTICLE XIII
NOTICES
13.1. Giving Notice. Except as otherwise permitted
by Section 2.13 with respect to borrowing notices, all
notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall
be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its
signature hereto or at such other address as may be
designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if
transmitted by telex or facsimile, shall be deemed given
when transmitted (answerback confirmed in the case of
telexes).
13.2. Change of Address. The Borrower, the Agent and
any Lender may each change the address for service of notice
upon it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute
one agreement, and any of the parties hereto may execute
this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by
the Borrower, the Agent and the Lenders and each party has
notified the Agent by telex or telephone, that it has taken
such action.
39
IN WITNESS WHEREOF, the Borrower, the Lenders and the
Agent have executed this Agreement as of the date first
above written.
BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
Title: Treasurer
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as the Agent and as a Lender
By: /s/ Xxxxx Xxxxxxx-Xxxxxxxx
Print Name: Xxxxx Xxxxxxx-Xxxxxxxx
Title: Custom Service Officer
000 Xxxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Managing Director
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ Xxxxx Xxxxxx
Print Name: Xxxxx Xxxxxx
Title: Assistant Vice President
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Assistant Vice President
40
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxx X. Xxxxxxxxx
Print Name: Xxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Print Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxxxxxx
Vice President & Director
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Xxxxxxxxx Xxxxx /s/ Xxxxx Xxxxxx
Print Name: Xxxxxxxxx Xxxxx Xxxxx Xxxxxx
Title: Vice President Vice President
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxx
Vice President, Corporate Banking
41
EXHIBIT "A"
NOTE
Hercules, California
______________, 19__
FOR VALUE RECEIVED, BIO-RAD LABORATORIES, INC., a
Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of
(the "Lender") at the office of The First National Bank of
Chicago, a national banking association (the "Administrative
Agent"), located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, in lawful money of the United States and in
immediately available funds, on the dates required under
that certain Credit Agreement dated as of May 15,1998 among
the Borrower, the lenders from time to time party thereto,
including the Lender, and the Agent (as the same may be
amended or modified and in effect from time to time, the
"Agreement"), the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Article
II of the Agreement.
The Borrower further agrees to pay interest in like money
and funds at the office of the Agent referred to above, on
the unpaid principal balance hereof from the date advanced
until paid in full at the applicable rates and on the dates
set forth in the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Loans in
full on or before the Facility Termination Date. The Lender
shall, and is hereby authorized to record the date and
amount of each Loan and the date and amount of each payment
of principal and interest, and applicable interest rates and
other information with respect thereto, on the schedules
annexed to and constituting a part of this Note (or by any
analogous method the holder hereof may elect consistent with
its customary practices); provided, however, that the
failure to make a notation or the inaccuracy of any notation
shall not limit or otherwise affect the obligations of the
Borrower under the Agreement and this Note.
This Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Agreement, to which
reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and
conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and
not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
BIO-RAD LABORATORIES INC.
By:
Print Name:
Title:
42
SCHEDULE OF LOANS AND PAYMENTS
TO
NOTE OF BIO-RAD LABORATORIES, INC.,
DATED _________, ____
Principal Maturity Principal Interest
Amount of of Interest Interest Amount Unpaid Amount
Date Loan Period Rate Paid Balance Paid
43
EXHIBIT "B"
FORM OF OPINION
_______________, 19__
[Names of Lenders]
c/o The First National Bank of Chicago,
as Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Gentlemen/Ladies:
I am the General counsel for Bio-Rad Laboratories,
Inc., a Delaware corporation (the "Borrower"). I understand
that you and the Borrower have entered into a Credit
Agreement dated as of May 15, 1998 (the "Agreement").
Although I have not participated in the preparation or
negotiation of the Agreement, I have reviewed the Agreement
and am familiar with its terms and conditions. The Borrower
has requested that I furnish this opinion to you pursuant to
section 4.1 (vii) of the Agreement. Capitalized terms used
herein and not otherwise defined shall have the meanings
ascribed to them in the Agreement.
I have been furnished and have examined originals, or
copies certified or otherwise identified to our satisfaction
as being true copies of the originals, of such records of
the Borrower, agreements and other instruments, certificates
of officers, agents and representatives of the Borrower,
certificates of public officials and other documents as I
have deemed necessary as a basis for the opinions
hereinafter expressed. In addition, I assume that none of
the Lenders has waived or released any of its rights or
remedies under the Agreement or is estopped from asserting
or maintaining any of the same and that no breach of or
default under the Agreement has occurred or is continuing.
Based on the foregoing, I am of the opinion that:
1. The Borrower is duly incorporated, validly existing and in
good standing as a corporation under the laws of the State of
Delaware. The Borrower is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character
or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in
good standing which will not in the aggregate have a material
adverse effect on the Borrower and its Subsidiaries taken as a
whole. The Borrower has all requisite corporate authority to
own, lease and license its properties and conduct its business as
now being conducted.
2. The execution and delivery of the Loan Documents by the
Borrower and the performance by the Borrower of the Obligations
have been duly authorized by all necessary corporate actions and
proceedings on the part of the Borrower and will not:
(a) require any consent of the Borrower's stockholders,
44
(b) violate any order, writ, judgment, injunction, decree or
award known to me after reasonable inquiry and binding on the
Borrower, or any law, rule or regulation binding on the Borrower,
or the Borrower's Certificate of Incorporation or By-laws, or any
material indenture, instrument or agreement know to me after
reasonable inquiry and binding on the Borrower; or
(c) result in, or require, the creation or imposition of any
Lien pursuant to any material indenture, instrument or agreement
known to me after reasonable inquiry and binding on the Borrower.
3. The Loan Documents have been duly executed and delivered by
the Borrower and constitute legally, valid and binding
obligations of the Borrower enforceable in accordance with their
respective terms, except (a) as may be limited by bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting
creditors rights generally, and (b) that the remedies of specific
performance and injunction and other forms of equitable relief,
and the enforceability of sections 9.12 and 9.13 of the Agreement
(relating to choice of law and choice of forum), are subject to
equitable and other defenses and to the discretion of the court
before which any proceedings therefor may be brought.
4. To the best of my knowledge after reasonable inquiry, there
is no litigation or proceeding against the Borrower which, if
adversely determined, would materially and adversely affect the
business or condition of the Borrower and its Subsidiaries taken
as a whole.
5. No approval, authorization, consent, adjudication or order
of any governmental authority which has not been obtained by the
Borrower is required to be obtained by the Borrower in connection
with the execution and delivery of the Loan Documents, the
borrowings under the Agreement or the payment by the Borrower of
the Obligations.
Please be advised that I am licensed and qualified to
practice law only in the State of New York and am familiar
only with the laws of that State, and the General
Corporation Law of the State of Delaware. Accordingly, I am
not called upon to express and do not express herein any
opinion with regard to the effect, application,
interpretation or construction of any law, rule or
regulation other than the laws, rules and regulations of the
State of New York and the General Corporation Law of the
State of Delaware.
This letter is solely for the use of the Lenders,
Purchasers, and Participants in connection with their
execution and delivery of the Agreement and is not to be
used, circulated, quoted or otherwise referred to for any
other purpose, nor is this letter to be filed with or
referred to as a whole or in part in any document, and no
person other than the Lenders, Purchasers and Participants
is authorized to review or receive this letter or a copy of
this letter or any excerpt or portion hereof, or to rely on
this letter, for any purpose.
Yours very truly,
45
EXHIBIT "C"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to
that certain Credit Agreement dated as of May 15, 1998 (as
amended, modified, renewed or extended from time to time,
the "Agreement") among the Borrower, the lenders party
thereto and The First National Bank of Chicago, as Agent for
the Lenders. Unless otherwise defined herein, capitalized
terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of
the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or
event which constitutes a Default or Unmatured Default during or
at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate,
except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Agreement, all of which data and computations
are true, complete and correct [and Schedule II attached hereto
sets forth the determination of the interest rate to be paid for
Advances commencing five Business Days following the delivery
hereof.]
Described below are the exceptions, if any, to
paragraph 3 by listing, in detail, the nature of the
condition or event, the period during which it has existed
and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or
event:
46
The foregoing certifications, together with the
computations set forth in Schedule I [and Schedule II]
hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this
____ day of ______________, 19__.
47
[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE I TO COMPLIANCE
CERTIFICATE
Schedule of Compliance as of with
Provisions of _____ and ______ of
the Agreement
48
EXHIBIT "D"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between __________________ (the "Assignor") and ___________
(the "Assignee") is dated as of _________________, 19__.
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, an interest in and to the Assignor's
rights (excluding any right of Assignor to indemnification under
Section 9.7 of the Credit Agreement) and obligations under the
Credit Agreement such that after giving effect to such assignment
the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule
1 of all outstanding rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule
1 and the other Loan Documents. The aggregate Commitment (or
Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date
specified in Item 5 of Schedule 1 or two Business Days (or such
shorter period agreed to by the Agent) after a Notice of
Assignment substantially in the form of Exhibit "I" attached
hereto has been delivered to the Agent. Such Notice of
Assignment must include any consents required to be delivered to
the Agent by Section [12.3.1] of the Credit Agreement. In no
event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date
under Sections 4 and 5 hereof are not made on the proposed
Effective Date. The Assignor will notify the Assignee of the
proposed Effective Date no later than the Business Day prior to
the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under
the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding
obligations under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments
of principal, interest and fees with respect to the interest
assigned hereby. The Assignee shall advance funds directly to
the Agent with respect to all Loans and reimbursement payments
made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment
49
of Loans hereunder, (i) the Assignee shall pay the Assignor, on
the Effective Date, an amount equal to the principal amount of
the portion of all Floating Rate Loans assigned to the Assignee
hereunder and (ii) with respect to each Fixed Rate Loan made by
the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by
the Assignor and the Assignee or (c) on the date on which any
such Fixed Rate Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the
"Payment Date"), the Assignee shall pay the Assignor an amount
equal to the principal amount of the portion of such Fixed Rate
Loan assigned to the Assignee which is outstanding on the Payment
Date. If the Assignor and the Assignee agree that the Payment
Date for such Fixed Rate Loan shall be the Effective Date, they
shall agree to the interest rate applicable to the portion of
such Loan assigned hereunder for the period from the Effective
Date to the end of the existing Interest Period applicable to
such Fixed Rate Loan (the "Agreed Interest Rate") and any
interest received by the Assignee in excess of the Agreed
Interest Rate shall be remitted to the Assignor. In the event
interest for the period from the Effective Date to but not
including the Payment Date is not paid by the Borrower with
respect to any Fixed Rate Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor
interest for such period on the portion of such Fixed Rate Loan
sold by the Assignor to the Assignee hereunder at the applicable
rate provided by the Credit Agreement. In the event a prepayment
of any Fixed Rate Loan which is existing on the Payment Date and
assigned by the Assignor to the Assignee hereunder occurs after
the Payment Date but before the end of the Interest Period
applicable to such Fixed Rate Loan, the Assignee shall remit to
the Assignor the excess of the prepayment penalty paid with
respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if
such prepayment penalty was calculated based on the Agreed
Interest Rate. The Assignee will also promptly remit to the
Assignor (i) any principal payments received from the Agent with
respect to Fixed Rate Loans prior to the Payment Date and (ii)
any amounts of interest on Loans and fees received from the Agent
which relate to the portion of the Loans assigned to the Assignee
hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans, or the Payment Date, in the case of Fixed
Rate Loans, and not previously paid by the Assignee to the
Assignor.]* In the event that either party hereto receives any
payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
1Each Assignor may insert its standard payment provisions in
lieu of the payment terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or
[commitment] fees is made under the Credit Agreement with respect
to the amounts assigned to the Assignee hereunder (other than a
payment of interest or commitment fees for the period prior to
the Effective Date or, in the case of Fixed Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the
Assignor pursuant to Section 4 hereof). The amount of such fee
shall be the difference between (i) the interest or fee, as
applicable, paid with respect to the amounts assigned to the
_____________________________
1 to be inserted if required by the Credit Agreement.
50
Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned
to the Assignee hereunder if each interest rate was of 1%
less than the interest rate paid by the Borrower or if the
commitment fee was of 1% less than the commitment fee
paid by the Borrower, as applicable. In addition, the Assignee
agrees to pay % of the recordation fee required to be paid
to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim created by the Assignor. It is understood and agreed that
the assignment and assumption hereunder are made without recourse
to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither
the Assignor nor any of its officers, directors, employees,
agents or attorneys shall be responsible for (i) the due
execution, legality, validity, enforceability, genuineness,
sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any
guarantor, (ii) any representation, warranty or statement made in
or in connection with any of the Loan Documents, (iii) the
financial condition or creditworthiness of the Borrower or any
guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting
any of the Property, books or records of the Borrower, (vi) the
validity, enforceability, perfection, priority, condition, value
or sufficiency of any collateral securing or purporting to secure
the Loans or (vii) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the
Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms
that it has received a copy of the Credit Agreement, together
with copies of the financial statements requested by the Assignee
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor
or any other Lender and based on such documents and information
at it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably
incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as
a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1,
(vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents
will not be "plan assets" under ERISA, [(vii) confirms that it is
an Eligible Assignee,]* [and (viii) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying
51
that the Assignee is entitled to receive payments under the Loan
Documents without deduction or withholding of any United States
federal income taxes].2
8. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses
(including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee's non-performance of the
obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the
Assignee shall have the right pursuant to Section [12.3.1] of the
Credit Agreement to assign the rights which are assigned to the
Assignee hereunder to any entity or person, provided that (i) any
such subsequent assignment does not violate any of the terms and
conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent
required under the terms of the Loan Documents has been obtained
and (ii) unless the prior written consent of the Assignor is
obtained, the Assignee is not thereby released from its
obligations to the Assignor hereunder, if any remain unsatisfied,
including, without limitation, its obligations under [Sections 4,
5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in
the Aggregate Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest
specified in Item 3 of Schedule 1 shall remain the same, but the
dollar amount purchased shall be recalculated based on the
reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the
attached Notice of Assignment embody the entire agreement and
understanding between the parties hereto and supersede all prior
agreements and understandings between the parties hereto relating
to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed
by the internal law, and not the law of conflicts, of the State
of Illinois.
13. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For
the purpose hereof, the addresses of the parties hereto (until
notice of a change is delivered) shall be the address set forth
in the attachment to Schedule 1.
_____________________________
2 to be inserted if the Assignee is not incorporated under the
laws of the United States, or a state thereof.
52
IN WITNESS WHEREOF, the parties hereto have executed
this Assignment Agreement by their duly authorized officers
as of the date first above written.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
53
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
__________________, 19__
To: [NAME OF BORROWER]3
[NAME OF AGENT]
From:[NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to them in the Credit
Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to ****[the Borrower and]**** the Agent pursuant to
Section [12.3.2] of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , 19 (the "Assignment"),
pursuant to which, among other things, the Assignor has sold,
assigned, delegated and transferred to the Assignee, and the
Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement
relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date
specified in Item 5 of Schedule 1 or two Business Days (or such
shorter period as agreed to by the Agent) after this Notice of
Assignment and any consents and fees required by Sections [12.3.1
and 12.3.2] of the Credit Agreement have been delivered to the
Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee
has not been satisfied.
_____________________________
3 To be included only if consent must be obtained from the
Borrower pursuant to Section 12.3.1 of the Credit Agreement.
54
4. The Assignor and the Assignee hereby give to the Borrower and
the Agent notice of the assignment and delegation referred to
herein. The Assignor will confer with the Agent before the date
specified in Item 5 of Schedule 1 to determine if the Assignment
Agreement will become effective on such date pursuant to Section
3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the
Assignment Agreement does not become effective on any proposed
Effective Date as a result of the failure to satisfy the
conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent
written confirmation of the satisfaction of the conditions
precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,500
required by Section 12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and
cause the Borrower to execute and deliver new Notes or, as
appropriate, replacements notes, to the Assignor and the
Assignee. The Assignor and, if applicable, the Assignee each
agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make
the purchase pursuant to the Assignment are "plan assets" as
defined under ERISA and that its rights, benefits, and interests
in and under the Loan Documents will not be "plan assets" under
ERISA.
9. The Assignee authorizes the Agent to act as its agent under
the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Agent has no duty to supply
information with respect to the Borrower or the Loan Documents to
the Assignee until the Assignee becomes a party to the Credit
Agreement.4
____________________________
4 May be eliminated if Assignee is a party to the Credit
Agreement prior to the Effective Date.
55
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
Title: Title:
ACKNOWLEDGED [AND CONSENTED TO ACKNOWLEDGED [AND
BY [NAME OF AGENT] CONSENTED TO] BY [NAME OF
BORROWER]
By: By:
Title: Title:
[Attach photocopy of Schedule 1 to Assignment]
56
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ___________, 19__.
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility Facility
1* 2* *3 *4 *5
$ _______ $ _____ $ _____ $ ______ $ ______
a. Total of
Commitments
(Loans)** under
Credit Agreement
b. Assignees Per- ______% _______% _______% ______% _____%
centage of each
Facility
purchased under
the Assignment
Agreement ***
c. Amount of $ _______ $ _____ $ _____ $ ______ $ ______
Assigned Share in
each Facility
purchased under
the Assign-ment
Agreement
1. Assignee's Aggregate
(Loan Amount)** Commitment Amount
Purchased Hereunder: $________
2. Proposed Effective Date:
Accepted and Agreed:________
[NAME OF ASSIGNOR] [NAME OF ASSIGNOR]
By: By:
Title: Title:
57
* Insert specific facility names per Credit Agreement
** If a Commitment has been terminated, insert outstanding
Loans in place of Commitment
*** Percentage taken to 10 decimal places
58
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet,
which must
include notice address for the Assignor and the Assignee
59
EXHIBIT "E"
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To The First National Bank of Chicago,
as Agent (the "Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated May 15, 1998 (as the same may
be amended or modified, the "Credit Agreement"), among
Bio-Rad Laboratories, Inc. (the "Borrower"), the Agent,
and the Lenders named therein Terms used herein and
not otherwise defined shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to
act upon the following standing money transfer instructions
with respect to the proceeds of Advances or other extensions
of credit from time to time until receipt by the Agent of a
specific written revocation of such instructions by the
Borrower, provided, however, that the Agent may otherwise
transfer funds as hereafter directed in writing by the
Borrower in accordance with Section 13.1 of the Credit
Agreement or based on any telephonic notice made in
accordance with Section 2.13 of the Credit Agreement.
Facility Identification Number(s)
Customer/Account Name
Transfer Funds To
For Account No.
Reference/Attention To
Authorized Officer (Customer Representative) Date
______________________________ ___________________________
(Please Print) Signature Signature
Bank Officer Name Date _______________________
______________________________ ___________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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EXHIBIT "F"
CONFIDENTIALITY AGREEMENT BETWEEN (BANK), AND COMPANY
____________________________________________________________
[BANK LETTERHEAD]
Attn:
Dear :
__________________ (the "Bank") is interested in
receiving information with respect to the Company which is
non-public, confidential or proprietary in nature
("Information") in order to evaluate ____________ (the
"Financing"). Accordingly, the Company and the Bank agree
as follows:
1. Non-Disclosure. The Bank agrees that it will not
disclose without the prior consent of the Company any
Information which is furnished by Company to the Bank and
which is designated by the Company to the Bank in writing as
confidential, provided, however, that the Bank may disclose
any Information:
(a) to its directors, employees, auditors or
counsel or any other party necessary in the
credit approval process (collectively
"representatives") to whom it is necessary to
show the Information, [each of which shall be
informed by the Bank of the confidential
nature of the Information]; and
(b) in any statement or testimony pursuant to a
subpoena or order by any court, governmental
body or other agency asserting jurisdiction
over the Bank, or as may otherwise be
required by law (provided that the Bank shall
give the Company prior notice of the
disclosure permitted by this Section (b)
unless such notice is prohibited by the
subpoena, order or law);
(c) upon the request or demand of any regulatory
agency or prospective authority having
jurisdiction over the Bank; and
(d) to prospective lenders in the primary and
secondary syndication, provided that all such
prospective lenders execute an agreement with
the Bank containing provisions substantially
the same as those contained in this
Agreement.
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2. Public Information. The restrictions contained in
the Agreement shall not apply to Information which (a) is or
becomes generally available to the public other than as a
result of a disclosure by the Bank or the Bank's
representatives; or (b) becomes available to the Bank on a
non-confidential basis from a source other than the Company
or one of its agents or (c) was known to the Bank on a non-
confidential basis prior to its disclosure to the Bank by
the Company or one of its agents.
3. General Provisions. This Agreement constitutes the
entire agreement of the parties hereto and supersedes all
prior agreements of the parties relating to the subject
matter hereof. The parties acknowledge however that, upon
the execution of definitive loan documents, some or all of
the confidentiality obligations of the Bank with respect to
the Information hereunder may be superseded by the
confidentiality provisions of the loan documents upon the
terms set forth therein. This agreement is only for the
benefit of the parties hereto. This Agreement shall be
governed by, and construed in accordance with, the laws of
the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed.
("Bank")
By:
Its:
Date:
Accepted and Agreed:
[Borrower]
By:
Its:
Date:
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SCHEDULE "1"
SUBSIDIARIES
(See Section 5.8)
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SCHEDULE "2"
INDEBTEDNESS AND LIENS
(See Section 6.16)
Indebtedness Indebtedness Property Maturity and Amount
Incurred By Owed To Encumbered of Indebtedness
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SCHEDULE "3"
LITIGATION AND CONTINGENT OBLIGATIONS
(See Section 5.7)
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SCHEDULE "4"
LETTERS OF CREDIT
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SCHEDULE "5"
PRICING SCHEDULE
Total Indebtedness/
Adjusted EBITDA Ratio Applicable Margin Applicable Fee Rate
Less than or equal to 0.450% 0.150%
0.75 : 1.00
Greater than 0.75 : 1.00 0.550% 0.200%
but less than or equal to
1.50 : 1.00
Greater than 1.50 : 1.00 0.650% 0.200%
but less than or equal to
2.00 : 1.00
Greater than 2.00 : 1.00 0.750% 0.250%
but less than or equal to
2.50 : 1.00
Greater than 2.50 : 1.00 0.875% 0.250%
but less than or equal to
3.00 : 1.00
Greater than 3.00 : 1.00 1.000% 0.250%
but less than or equal to
3.50 : 1.00
Greater than 3.50 1.250% 0.300%
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SCHEDULE "6"
INITIAL COMMITMENT SCHEDULE
(as of May 15, 1998)
LENDER COMMITMENT PERCENTAGE
The First National Bank of Chicago $29,000,000 29.0000%
Union Bank of California, N.A. $28,000,000 28.0000%
ABN AMRO Bank N.V. $28,000,000 28.0000%
Banque Nationale de Paris $15,000,000 15.0000%
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