SENIOR SECURED CREDIT AGREEMENT
among
INFORMIX SOFTWARE , INC.,
THE BANKS LISTED HEREIN
BANKBOSTON, N.A.
as Administrative Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE
as Syndication Agent
December 31, 1997
$75,000,000 Revolving Facility
TABLE OF CONTENTS
PAGE
----
ARTICLE 1. DEFINITIONS AND RELATED MATTERS. . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Related Matters . . . . . . . . . . . . . . . . . . . . .18
ARTICLE 2. AMOUNTS AND TERMS OF THE CREDIT FACILITY . . . . . . . . . . . .19
Section 2.1. Revolving Loans.. . . . . . . . . . . . . . . . . . . . .19
Section 2.2. Letters of Credit.. . . . . . . . . . . . . . . . . . . .21
Section 2.3. Use of Proceeds.. . . . . . . . . . . . . . . . . . . . .24
Section 2.4. Interest; Interest Periods; Conversion/Continuation.. . .25
Section 2.5. Notes, Etc. . . . . . . . . . . . . . . . . . . . . . . .27
Section 2.6. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . .28
Section 2.7. Termination and Reduction of Revolving Commitments. . . .29
Section 2.8. Repayments and Prepayments. . . . . . . . . . . . . . . .29
Section 2.9. Manner of Payment.. . . . . . . . . . . . . . . . . . . .31
Section 2.10. Pro Rata Treatment.. . . . . . . . . . . . . . . . . . .32
Section 2.11. Mandatory Suspension and Conversion of LIBOR Rate
Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Section 2.12. Regulatory Changes.. . . . . . . . . . . . . . . . . . .33
Section 2.13. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . .34
Section 2.14. Compensation for Funding Losses. . . . . . . . . . . . .35
Section 2.15. Certificates Regarding Yield Protection, Etc.. . . . . .36
Section 2.16. Applicable Lending Office; Discretion of Lenders as to
Manner of Funding. . . . . . . . . . . . . . . . . . . . . .36
ARTICLE 3. CONDITIONS TO LOANS. . . . . . . . . . . . . . . . . . . . . . .37
Section 3.1. Closing Conditions. . . . . . . . . . . . . . . . . . . .37
Section 3.2. Conditions Precedent to Revolving Loans and Letters of
Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . .40
ARTICLE 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . .41
Section 4.1. Organization, Powers and Good Standing. . . . . . . . . .41
Section 4.2. Authorization, Binding Effect, No Conflict, Etc.. . . . .41
Section 4.3. Subsidiaries; Investments . . . . . . . . . . . . . . . .42
Section 4.4. Financial Information.. . . . . . . . . . . . . . . . . .43
Section 4.5. No Material Adverse Changes; Solvency.. . . . . . . . . .44
Section 4.6. Litigation. . . . . . . . . . . . . . . . . . . . . . . .44
Section 4.7. Agreements; Applicable Law. . . . . . . . . . . . . . . .44
Section 4.8. Governmental Regulation.. . . . . . . . . . . . . . . . .44
Section 4.9. Margin Regulations. . . . . . . . . . . . . . . . . . . .44
Section 4.10. Employee Benefit Plans.. . . . . . . . . . . . . . . . .45
Section 4.11. Title to Property. . . . . . . . . . . . . . . . . . . .45
i
Section 4.12. Intellectual Property, Etc.. . . . . . . . . . . . . . .45
Section 4.13. Environmental Condition. . . . . . . . . . . . . . . . .46
Section 4.14. Absence of Certain Restrictions. . . . . . . . . . . . .46
Section 4.15. Labor Matters. . . . . . . . . . . . . . . . . . . . . .46
Section 4.16. Tax Returns. . . . . . . . . . . . . . . . . . . . . . .47
Section 4.17. Disclosure.. . . . . . . . . . . . . . . . . . . . . . .47
ARTICLE 5. AFFIRMATIVE COVENANTS OF THE BORROWER. . . . . . . . . . . . . .47
Section 5.1. Financial Statements and Other Reports. . . . . . . . . .47
Section 5.2. Records and Inspection. . . . . . . . . . . . . . . . . .50
Section 0.1. Audits of the Collateral. . . . . . . . . . . . . . . . .51
Section 5.4. Corporate Existence, Etc. . . . . . . . . . . . . . . . .51
Section 5.5. Payment of Taxes. . . . . . . . . . . . . . . . . . . . .51
Section 5.6. Maintenance of Properties.. . . . . . . . . . . . . . . .51
Section 5.7. Maintenance of Insurance. . . . . . . . . . . . . . . . .51
Section 5.8. Conduct of Business.. . . . . . . . . . . . . . . . . . .53
Section 5.9. Future Information. . . . . . . . . . . . . . . . . . . .53
Section 5.10. Additional Collateral. . . . . . . . . . . . . . . . . .53
Section 5.11. Subordination of Intercompany Debt.. . . . . . . . . . .53
Section 0.2. Environmental Compliance. . . . . . . . . . . . . . . . .54
ARTICLE 6. NEGATIVE COVENANTS OF THE BORROWER . . . . . . . . . . . . . . .54
Section 6.1. Liens.. . . . . . . . . . . . . . . . . . . . . . . . . .54
Section 6.2. Debt. . . . . . . . . . . . . . . . . . . . . . . . . . .55
Section 6.3. Restricted Affiliate Payments; Restricted Payments. . . .56
Section 6.4. Investments.. . . . . . . . . . . . . . . . . . . . . . .57
Section 6.5. Financial Covenants.. . . . . . . . . . . . . . . . . . .58
Section 6.6. Restriction on Fundamental Changes. . . . . . . . . . . .58
Section 6.7. Asset Dispositions; Sales of Receivables. . . . . . . . .59
Section 6.8. Transactions with Affiliates. . . . . . . . . . . . . . .59
Section 6.9. Prepayment of Debt. . . . . . . . . . . . . . . . . . . .60
Section 6.10. Employee Benefit Plans.. . . . . . . . . . . . . . . . .60
Section 6.11. Amendments of Charter Documents. . . . . . . . . . . . .61
Section 6.12. Restrictive Agreements.. . . . . . . . . . . . . . . . .61
Section 0.4. Negative Pledges, Etc.. . . . . . . . . . . . . . . . . .61
Section 0.5. Sale/Lease Backs. . . . . . . . . . . . . . . . . . . . .61
Section 0.6. Acquisitions. . . . . . . . . . . . . . . . . . . . . . .62
ARTICLE 7. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . .62
Section 7.1. Events of Default.. . . . . . . . . . . . . . . . . . . .62
Section 7.2. Remedies. . . . . . . . . . . . . . . . . . . . . . . . .64
ARTICLE 8. THE AGENT AND THE LENDERS. . . . . . . . . . . . . . . . . . . .65
ii
Section 8.1. Authorization and Action. . . . . . . . . . . . . . . . .65
Section 8.2. Exculpation; Reliance; Etc. . . . . . . . . . . . . . . .66
Section 8.3. Agent and Affiliates. . . . . . . . . . . . . . . . . . .67
Section 8.4. Lender Credit Decision. . . . . . . . . . . . . . . . . .67
Section 8.5. Indemnification.. . . . . . . . . . . . . . . . . . . . .68
Section 8.6. Successor Agent.. . . . . . . . . . . . . . . . . . . . .68
Section 8.7. Excess Payments.. . . . . . . . . . . . . . . . . . . . .69
Section 8.8. Lender Parties. . . . . . . . . . . . . . . . . . . . . .69
Section 8.9. Collateral and Guaranty Matters.. . . . . . . . . . . . .69
Section 8.10. Payments; Availability of Funds; Certain Notices.. . . .70
Section 8.11. Obligations of Lender Parties Several; Enforcement by
the Agent. . . . . . . . . . . . . . . . . . . . . . . . . .71
ARTICLE 9. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . .72
Section 9.1. Expenses. . . . . . . . . . . . . . . . . . . . . . . . .72
Section 9.2. Indemnity.. . . . . . . . . . . . . . . . . . . . . . . .72
Section 9.3. Waivers; Amendments in Writing. . . . . . . . . . . . . .74
Section 9.4. Cumulative Remedies; Failure or Delay.. . . . . . . . . .75
Section 9.5. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . .75
Section 9.6. Successors and Assigns. . . . . . . . . . . . . . . . . .75
Section 9.7. Confidentiality.. . . . . . . . . . . . . . . . . . . . .77
Section 9.8. Governing Law.. . . . . . . . . . . . . . . . . . . . . .78
Section 9.9. Service of Process and Choice of Forum. . . . . . . . . .78
Section 9.10. Set Off. . . . . . . . . . . . . . . . . . . . . . . . .78
Section 9.11. Changes in Accounting Principles.. . . . . . . . . . . .79
Section 9.12. Headings.. . . . . . . . . . . . . . . . . . . . . . . .79
Section 9.13. Severability.. . . . . . . . . . . . . . . . . . . . . .79
Section 9.14. Survival of Agreements, Representations and Warranties. 79
Section 9.15. Execution in Counterparts. . . . . . . . . . . . . . . .79
Section 9.16. Complete Agreement.. . . . . . . . . . . . . . . . . . .79
Section 9.17. Limitation of Liability. . . . . . . . . . . . . . . . .80
Section 9.18. WAIVER OF TRIAL BY JURY. . . . . . . . . . . . . . . . .80
EXHIBITS
Exhibit A-1 Form of Revolving Loan Note
Exhibit B-1 Form of Guaranty
Exhibit C-1 Form of Pledge and Security Agreement
Exhibit C-2 Form of Pledge Agreement
Exhibit E-1 Form of Notice of Borrowing
Exhibit E-3 Form of Notice of Conversion/Continuation
Exhibit E-7 Form of Notice of Responsible Officers
Exhibit F-1 Form of Secretary's Certificate
Exhibit F-3 Form of Officers' Closing Certificate
iii
Exhibit F-5 Form of Borrowing Base Certificate
Exhibit F-6 Form of Compliance Certificate
Exhibit G-1 Form of Borrower's Counsel Opinion
Exhibit H Form of Assignment and Acceptance
SCHEDULES
Schedule 1.1A Revolving Commitments
Schedule 1.1B Lender Information
Schedule 1.1C Existing Debt
Schedule 1.1D Existing Liens
Schedule 1.1E Applicable Margin
Schedule 3.1.2. Closing Documents
Schedule 4.1. Organization of Borrower and Subsidiaries
Schedule 4.3. Subsidiaries and Other Investments
Schedule 4.6. Material Litigation
Schedule 4.13. Environmental Condition
Schedule 4.14. Certain Restrictions
Schedule 4.15. Labor Matters
Schedule 2.11. Existing Contractual Obligations
Schedule 2.11. Borrower Information
iv
SENIOR SECURED CREDIT AGREEMENT
SENIOR SECURED CREDIT AGREEMENT, dated as of December 31, 1997 (as amended
from time to time, the "AGREEMENT"), by and among Informix Software, Inc., a
Delaware corporation (the "BORROWER"), and the banks and other financial
institutions that either now or in the future are parties hereto as lenders
(collectively the "LENDERS" and each individually a "LENDER"), BankBoston, N.A.
in its capacity as the L/C Issuer (in such capacity, together with any
successors thereto in such capacity, the "L/C ISSUER"), Canadian Imperial Bank
of Commerce, as syndication agent (in such capacity, the "Syndication Agent"),
and BankBoston N.A., as administrative agent and representative for the Lenders
(in such capacity BankBoston N.A. or any successor in such capacity is referred
to herein as the "AGENT"). The Lenders, the L/C Issuer, the Syndication Agent
and the Agent are collectively referred to herein as the "LENDER PARTIES" and
each individually as a "LENDER PARTY".
ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
SECTION 1.1. DEFINITIONS. The following terms with initial capital
letters have the following meanings:
"ACCOUNTS RECEIVABLE" means, as of any measurement date, all "accounts," as
such term is defined in Section 9106 of the UCC, then owned by the Borrower or
any of its Subsidiaries, including, without limitation, all accounts receivable,
book debts and other forms of obligations (other than forms of obligations
evidenced by chattel paper, documents or instruments) now owned by or belonging
or owing to the Borrower or any of its Subsidiaries (including, without
limitation, under any trade name, style or division thereof) arising out of
goods sold, software and other intellectual property licensed, or services
rendered by the Borrower or any of its Subsidiaries, whether billed or unbilled,
and all monies due or to become due to the Borrower or any of its Subsidiaries
under all purchase orders and contracts for the sale of goods, software or other
intellectual property licensing, or the performance of services by the Borrower
or any of its Subsidiaries (whether or not yet earned by performance on the part
of the Borrower or any of its Subsidiaries or in connection with any other
transaction).
"ACQUISITION" shall mean any transaction or series of transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of all
or substantially all of the assets of a Person, or of any business or division
of a Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interest, membership or equity of any Person, or otherwise causing
any Person to become a Subsidiary, (c) the power to elect, appoint, or cause the
election or appointment of at least a majority of the members of the board of
directors or similar governing body of such Person, or (d) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Borrower or Subsidiary is the surviving
entity.
1.
"ADJUSTED LIBOR RATE" means, with respect to any day during any Interest
Period, a rate per annum (rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to (i) the applicable London Interbank Offered Rate for such
Interest Period, DIVIDED BY (ii) 1.00 MINUS the LIBOR Reserve Requirement for
such day (expressed as a decimal).
"AFFILIATE" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person. The term
"CONTROL" means the possession, directly or indirectly, of the power, whether or
not exercised, (i) to vote ten percent (10%) or more of the securities having
voting power for the election of directors (or Persons performing similar
functions) of such Person or (ii) to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms "CONTROLLED" and "COMMON
CONTROL" have correlative meanings. Unless otherwise indicated, "AFFILIATE"
refers to an Affiliate of the Borrower. Notwithstanding the foregoing, in no
event shall any Lender Party or any Affiliate of any Lender Party be deemed to
be an Affiliate of the Borrower.
"AGENT" is defined in the Preamble and, where the context so requires,
includes BankBoston, N.A. in its individual capacity.
"AGENT'S ACCOUNT" means the account of the Agent identified as such on
Schedule 1.1.B, or such other account as the Agent may hereafter designate by
notice to the Borrower and each Lender Party.
"AGENT'S OFFICE" means the office of the Agent identified as such on
Schedule 1.1.B, or such other office as the Agent may hereafter designate by
notice to the Borrower and each Lender Party.
"AGREEMENT" is defined in the Preamble and includes all Schedules and
Exhibits.
"APPLICABLE BASE RATE MARGIN" is defined on Schedule 1.1.E.
"APPLICABLE LAW" means all applicable provisions of all (i) constitutions,
treaties, statutes, laws, rules, regulations and ordinances of any Governmental
Authority, (ii) Governmental Approvals, and (iii) orders, decisions, judgments,
awards and decrees of any Governmental Authority.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in the
case of any payment with respect to LIBOR Rate Loans, the Lender's LIBOR Lending
Office, and (ii) in the case of any payment with respect to Base Rate Loans or
any other payment under the Loan Documents, the Lender's Domestic Lending
Office.
"APPLICABLE LIBOR MARGIN" is defined on Schedule 1.1.E.
"ARRANGERS" means BancBoston Securities Inc. and Canadian Imperial Bank of
Commerce.
2.
"ASSET DISPOSITION" means any sale or other disposition of any assets with
an aggregate value in excess of $1,000,000 by the Borrower or any Subsidiary
(including sales of any receivables but excluding sales of inventory and
dispositions of obsolete or worn-out equipment in the ordinary course of
business).
"ASSIGNMENT" and "ASSIGNMENT AND ACCEPTANCE" are defined in Section 9.6.2.
"BANKRUPTCY CODE" means Title 11 of the United States Code (11 U.S.C.
Section 101 ET SEQ.), as amended from time to time.
"BASE RATE" means the greater of (i) the rate of interest announced from
time to time by BankBoston, N.A. at its head office as its "Base Rate," and (ii)
the Federal Funds Effective Rate plus 1/2 of 1% per annum (rounded upwards, if
necessary, to the next 1/8 of 1%).
"BASE RATE LOAN" means a Loan, or portion thereof, that bears interest by
reference to the Base Rate.
"BORROWER" means Informix Software, Inc., a Delaware corporation, and any
successor thereof.
"BORROWER ACCOUNT" means the account of the Borrower identified as such on
Schedule 9.5., or such other account as the Borrower may hereafter designate by
notice to the Agent.
"BORROWING" means a contemporaneous borrowing of Loans of the same Type or
the issuance of a Letter of Credit, as applicable.
"BORROWING BASE" means, at any time, an amount equal to the sum of (a)
eighty percent (80%) times the aggregate amount of Eligible Domestic Receivables
and (b) fifty percent (50%) times the aggregate amount of Eligible Foreign
Receivables.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on
which banks in Boston, Massachusetts or San Francisco, California are authorized
or obligated to close.
"CAPITAL EXPENDITURES" means, for any period, the expenditures (whether
paid in cash or committed to be made in such period and including payments made
with respect to Capitalized Leases during such period) of the Borrower during
such period with respect to property, plant and equipment and improvements
thereto (other than repairs) that are required to be capitalized on the
consolidated balance sheet of Informix and its consolidated Subsidiaries.
"CAPITAL STOCK" means, with respect to any Person, all (i) shares,
interests, participations or other equivalents (howsoever designated) of capital
stock and other equity interests of such Person and (ii) rights (other than debt
securities convertible into capital stock or other equity interests), warrants
or options to acquire any such capital stock or other equity interests.
3.
"CAPITALIZED LEASES" means all leases of the Borrower of real, personal or
mixed property that are required to be capitalized on the consolidated balance
sheet of Informix and its Subsidiaries. The amount of any Capitalized Lease
shall be the capitalized amount thereof.
"CASH" means cash and cash equivalents.
"CASH COLLATERAL COVER" is defined in Section 7.2.3.
"CAPITALIZED SOFTWARE COSTS" means, for any period, the expenditures for
software (whether paid in cash or committed to be made in such period) of the
Borrower and the Subsidiaries thereof during such period with respect to
computer software that are required in accordance with GAAP to be capitalized on
the consolidated balance sheet of Informix.
"CARRY FORWARD AMOUNT" means, the unused portion of Permitted Capital
Expenditures for the immediately preceding Fiscal Year, PROVIDED that in no
event shall the Carry Forward Amount exceed $5,000,000.
"CHANGE OF CONTROL" means the acquisition, directly or indirectly, by any
person (as defined in Section 13(d)(3) of the Exchange Act), of 50% or more of
the total voting power in the aggregate of all classes of common stock or other
equity securities of the Borrower, then outstanding or the power, directly or
indirectly, to direct or cause the direction of the management and policies of
the Borrower, whether through the ownership of voting securities, by contract,
or otherwise.
"CLOSING DATE" means the later of the date of this Agreement or such date
on which all conditions set forth in Section 3.1. have been satisfied or waived.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL" means the collateral under the Collateral Documents, however
defined.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, financing
statements and all other documents executed or delivered from time to time in
connection therewith or otherwise to secure the Borrower's obligations under the
Loan Documents, in each case as amended from time to time.
"COMPLIANCE CERTIFICATE" is defined in Section 5.1.3.
"CONTINGENT OBLIGATION" means, as to any Person, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) with respect to any Debt
or other obligation of another Person, including any direct or indirect
guarantee of such Debt (other than any endorsement for collection in the
ordinary course of business) or any other direct or indirect obligation, by
agreement or otherwise, to purchase or repurchase any such Debt or obligation or
any security therefor, or to provide funds for the payment or discharge of any
such Debt or obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), (ii) to provide funds to
maintain the financial condition of any other Person,
4.
(iii) otherwise to assure or hold harmless the holders of Debt or other
obligations of another Person against loss in respect thereof, or (iv) with
respect to "off balance sheet" or "synthetic" leases (i.e. leases where for tax
purposes the lessee is treated as the owner of the leased property but for GAAP
purposes the lease is treated as an operating lease and the lessor is treated as
the owner of the leased property). The amount of any Contingent Obligation
under clause (i) or (ii) shall be the lesser of (a) the amount of the Debt or
obligation guarantied or otherwise supported thereby, and (b) the maximum amount
guarantied or supported by the Contingent Obligation.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision of
any security issued by that Person or of any agreement or other instrument to
which that Person is a party or by which it or any of the properties owned or
leased by it is bound or otherwise subject.
"DEBT" means, with respect to any Person, without duplication: (i) all
obligations for borrowed money; (ii) all obligations evidenced by bonds,
debentures, notes or other similar instruments; (iii) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business; (iv) all Capitalized Leases; (v) all
obligations of others secured by a Lien on any asset owned by such Person or
Persons whether or not such obligation or liability is assumed; (vi) all
obligations of such Person or Persons, contingent or otherwise, in respect of
any letters of credit or bankers' acceptances; (vii) all Contingent Obligations;
and (viii) all obligations under facilities for the discount or sale of
receivables.
"DEFAULT" means any condition or event that, with the giving of notice or
lapse of time or both, would, unless cured or waived, become an Event of
Default.
"DEFINED BENEFIT PLAN" means any plan subject to Title IV of ERISA that is
not a Multiemployer Plan.
"DOLLARS" AND "$" means lawful money of the United States of America.
"DOMESTIC LENDING OFFICE" means the office, branch or Affiliate of any
Lender identified on Schedule 1.1.B as its Domestic Lending Office or such other
office, branch or Affiliate as the Lender may hereafter designate as its
Domestic Lending Office for one or more Types of Loans by notice to the Borrower
and the Agent.
"EARLY TERMINATION FEE" is defined in Section 2.6.3.
"ELIGIBLE DOMESTIC RECEIVABLES" means at any time, the aggregate of the
Borrower's and its Subsidiaries' Accounts Receivable due from account debtors
whose principal place of business is in the United States of America, excluding,
however, (a) all Accounts Receivable in respect of which full payment has not
been received within sixty (60) days of the due date; (b) all Accounts
Receivable against which the account debtor or any other person obligated to
make payment thereon asserts any defense, offset, counterclaim or other right to
avoid or reduce the liability represented by such Accounts Receivable, but only
to the extent there exists a colorable claim for such in the reasonable
determination of Required Lenders and then only to the extent of such defense,
offset, counterclaim or other right; (c) all Accounts Receivable as to which the
5.
account debtor or other person obligated to make payment thereon is insolvent,
subject to bankruptcy or receivership proceedings or has made an assignment for
the benefit of creditors or whose credit standing is unacceptable to Agent and
Agent has so notified Borrower; (d) all Accounts Receivable in which Borrower or
an affiliate of Borrower is the account debtor; (e) in the event thirty percent
(30%) or more of the Accounts Receivable of any account debtor shall be deemed
ineligible under clause (a) above, all accounts of such account debtor; and (f)
any Account Receivable not previously included as an Eligible Domestic
Receivable which Agent in its reasonable discretion shall deem not to qualify as
an Eligible Domestic Receivable and for which Agent has provided an explanation,
in reasonable detail, for such failure to qualify. For purposes of calculating
the Borrowing Base, otherwise Eligible Foreign Receivables that are backed by a
letter of credit issued or confirmed by a financial institution or a branch or
agency of such a financial institution that is rated "A" or higher by Standard &
Poor's Rating Group or such analogous rating by Xxxxx'x Investors Service, Inc.
or has been approved in writing by the Required Lenders shall be deemed to be
Eligible Domestic Receivables.
"ELIGIBLE FOREIGN RECEIVABLES" means at any time, the aggregate of the
Borrower's and its Subsidiaries' Accounts Receivable due from account debtors
whose principal place of business is located in the Hong Kong special political
district of the People's Republic of China or any of the following countries:
Argentina, Brazil, Canada, France, Germany, Italy, Mexico, Singapore, or the
United Kingdom, PROVIDED that none of the Lenders is prohibited from doing
business in any such country, excluding, however (a) all Accounts Receivable in
respect of which full payment has not been received within sixty (60) days of
the due date; (b) all Accounts Receivable against which the account debtor or
any other person obligated to make payment thereon asserts any defense, offset,
counterclaim or other right to avoid or reduce the liability represented by such
Accounts Receivable, but only to the extent there exists a colorable claim in
the reasonable determination of Required Lenders and then only to the extent of
such defense, offset, counterclaim or other right; (c) all Accounts Receivable
as to which the account debtor or other person obligated to make payment thereon
is insolvent, subject to bankruptcy or receivership proceedings or has made an
assignment for the benefit of creditors or whose credit standing is unacceptable
to Agent and Agent has so notified Borrower; (d) all Accounts Receivable in
which Borrower or an affiliate of Borrower is the account debtor; (e) in the
event thirty percent (30%) or more of the Accounts Receivable of any account
debtor shall be deemed ineligible under clause (a) above, all accounts of such
account debtor; and (f) any Account Receivable not previously included as an
Eligible Foreign Receivable which Agent in its reasonable discretion shall deem
not to qualify as an Eligible Foreign Receivable and for which Agent has
provided an explanation, in reasonable detail, for such failure to qualify.
"ENVIRONMENTAL DAMAGES" means all claims, judgments, damages, losses,
penalties, liabilities (including strict liability), costs and expenses,
including costs of investigation, remediation, defense, settlement and
reasonable attorneys' fees and consultants' fees, that are incurred at any time
as a result of the existence of Hazardous Material upon, about or beneath any
Real Property or migrating or threatening to migrate to or from any Real
Property, or arising in any manner whatsoever out of any violation of
Environmental Requirements.
6.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental Authority
for Environmental Damages.
"ENVIRONMENTAL REQUIREMENTS" means all Applicable Laws relating to
Hazardous Materials or the protection of human health or the environment,
including all requirements pertaining to reporting, permitting, investigation
and remediation of releases or threatened releases of Hazardous Materials into
the environment, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any Person (including for this purpose any trade or
business) that is or was a member of the controlled group of corporations or
trades or businesses (as defined in Subsection (b), (c), (m) or (o) of
Section 414 of the Code) of which the Borrower or any Subsidiary is or was a
member at any time within the last six years.
"EVENT OF DEFAULT" is defined in Section 7.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"EXCLUDED TAXES" is defined in Section 2.13.1.
"EXISTING DEBT" means the Debt described on Schedule 1.1.C.
"EXISTING LIENS" means the Liens described on Schedule 1.1.D.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a fluctuating 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, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day), by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
Agent from three Federal funds brokers of recognized standing selected by the
Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"FEE LETTER" means that certain letter dated November 15, 1997 among the
Borrower, the Syndication Agent, the Arrangers and the Agent.
"FEES" means, collectively, the fees described or referenced in Section
2.6.
"FISCAL YEAR" means the fiscal year of Informix, which shall be the
12-month period ending on December 31 in each year or such other period as
Informix may designate and the
7.
Agent may approve in writing. "FISCAL QUARTER" or "FISCAL QUARTER" means any
quarter of a Fiscal Year. "FISCAL MONTH" or "FISCAL MONTH" means any month of a
Fiscal Year.
"FUNDING DATE" means any date on which a Loan is (or is requested to be)
made or a Letter of Credit is (or is requested to be) issued.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America from time to time.
"GOVERNMENTAL APPROVAL" means an authorization, consent, approval, permit
or license issued by, or a registration or filing with, any Governmental
Authority.
"GOVERNMENTAL AUTHORITY" means any nation and any state or political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
tribunal or arbitrator of competent jurisdiction.
"GUARANTEES" means a guaranty of the Borrower's Obligations hereunder
issued by the Guarantor, in form and substance satisfactory to the Agent.
"GUARANTOR" means Informix.
"HAZARDOUS MATERIALS" means any substance (i) the presence of which
requires investigation or remediation under any Applicable Law; (ii) that is or
becomes defined as a "hazardous waste" or "hazardous substance" under any
Applicable Law, including the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. Section 9601 ET SEQ.) or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 ET SEQ.); (iii) that is toxic,
explosive, corrosive, inflammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous and is or becomes regulated by any
Governmental Authority; (iv) the presence of which on any Real Property causes
or threatens to cause a nuisance upon the Real Property or to adjacent
properties or poses or threatens to pose a hazard to any Real Property or to the
health or safety of Persons on or about any Real Property; or (v) without
limitation, that contains gasoline or other petroleum hydrocarbons,
polychlorinated biphenyls or asbestos.
"HONOR DATE" is defined in Section 2.2.4.1.
"INDEMNIFIED LIABILITIES" is defined in Section 9.2.1.
"INDEMNITEE" is defined in Section 9.2.1.
"INFORMIX" means Informix Corporation, a Delaware corporation.
"INTELLECTUAL PROPERTY RIGHT" means (i) any patent, copyright, trademark,
service xxxx, trade name, trade secret or other intellectual property right,
(ii) all registrations and applications to register any such patent, copyright,
trademark, service xxxx, trade name or other intellectual property right with
any Governmental Authority and all renewals and extensions thereof, and (iii)
8.
the goodwill of the business associated with or relating to any such trademark,
service xxxx, trade name or other intellectual property right.
"INTERCOMPANY DEBT" means any Debt of the Borrower that is owed to any
Affiliate or any Debt of any Affiliate owed to the Borrower or other Affiliate
"INTEREST COVERAGE RATIO" means, at the end of any Fiscal Quarter, the
ratio of (i) Operating Cash Flow for the Fiscal Quarter then ended to
(ii) (a) Interest Expense for such period, PLUS (b) scheduled amortization of
Debt of the Borrower or any Subsidiary for such period.
"INTEREST EXPENSE" means, for any period, total consolidated interest
expense of the Borrower, including Fees, charges in respect of Letters of Credit
and the portion of any Capitalized Lease obligations allocable to interest
expense, but excluding amortization or write-off of debt discount and expense
"INTEREST PAYMENT DATE" means (i) as to any Base Rate Loan, the day
immediately following the last day of March, June, September and December in
each year (or, if such day is not a Business Day, the next succeeding Business
Day), and (ii) as to any LIBOR Rate Loan (A) last day of the Interest Period in
respect of such LIBOR Rate Loan, and (B) if the interest period with respect to
such LIBOR Rate Loan exceeds three months the day which is three months after
the making of such LIBOR Rate Loan.
"INTEREST PERIOD" means, subject to the next sentence, with respect to each
LIBOR Rate Loan, the period commencing on the date specified in the related
Notice of Borrowing or Notice of Conversion/Continuation (or telephonic notice
in lieu thereof) and ending one, two, three, or six months thereafter, as the
Borrower may elect pursuant to Section 2.1.
Notwithstanding the foregoing: (a) if a LIBOR Rate Loan is continued, the
Interest Period applicable to the continued or converted Loan shall commence on
the day on which the Interest Period applicable to such LIBOR Rate Loan ends;
(b) any Interest Period applicable to a LIBOR Rate Loan (x) that would otherwise
end on a day that is not a LIBOR Business Day shall be extended to the next
succeeding LIBOR Business Day, unless such succeeding LIBOR Business Day falls
in another calendar month, in which case such Interest Period shall end on the
next preceding LIBOR Business Day, or (y) that begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last LIBOR Business Day of the calendar month; and (d) no
Interest Period shall end after the Stated Termination Date.
"INVESTMENT" means, with respect to any Person, (i) any direct or indirect
purchase or other acquisition by that Person of stock or securities, or any
beneficial interest in stock or other securities, of any other Person, any
partnership (whether general or limited) or limited liability company interest
in any other Person, or all or any substantial part of the business or assets of
any other Person, or (ii) any direct or indirect loan, advance or capital
contribution by that Person to any other Person, including all indebtedness from
that other Person that are not current assets or did not arise from sales to
that other Person in the ordinary course of business. The amount of
9.
any Investment shall be the original cost of such Investment plus the cost of
all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.
"LENDER" is defined in the Preamble. For purposes of the Sections referred
to in (and subject to) the last sentence of Section 9.6.4., "LENDER" includes a
holder of a Participation.
"LENDER PARTY" is defined in the Preamble. For purposes of the
Sections referred to in (and subject to) the last sentence of Section 9.6.4.,
"LENDER PARTY" includes a holder of a Participation.
"L/C ISSUER" is defined in the Preamble.
"LETTER OF CREDIT" is defined in Section 2.2.1.
"LETTER OF CREDIT APPLICATION" is defined in Section 2.2.2.
"LETTER OF CREDIT FEE" is defined in Section 2.6.2.
"LETTER OF CREDIT LIABILITY" means, at any time, all liabilities of the
Borrower to the Lenders and the L/C Issuer in respect of Letters of Credit at
such time, whether or not such liability is contingent, and shall consist of the
sum of (i) the aggregate Stated Amount of all Letters of Credit then
outstanding, and (ii) all amounts that then have been paid by the L/C Issuer if
and to the extent reimbursement has not been received therefor.
"LIBOR BUSINESS DAY" means any Business Day on which commercial banks are
open for international business (including dealings in interbank Dollar
deposits) in London, England.
"LIBOR LENDING OFFICE" means the office, branch or Affiliate of any Lender
identified on Schedule 1.1.B as its LIBOR Lending Office or such other office,
branch or Affiliate as the Lender may hereafter designate as its LIBOR Lending
Office by notice to the Borrower and the Agent.
"LIBOR RATE LOAN" means a Loan, or portion thereof, that bears interest at
a rate determined by reference to an Adjusted LIBOR Rate (and as to which a
single Interest Period is applicable).
"LIBOR RESERVE REQUIREMENT" means, with respect to any LIBOR Rate Loan and
for any day, the maximum rate at which reserves (including any marginal,
supplemental, special or emergency reserve) are required to be maintained on
such day under Regulation D by member banks of the Federal Reserve System in New
York City with deposits exceeding $5 billion against "Euro-Currency
Liabilities," as that term is used in Regulation D (or in respect of any other
category of liabilities that includes deposits by reference to which the
interest rate on LIBOR Rate Loans is determined or any category of extensions of
credit or other assets that includes loans by a non-United States office of any
bank to United States residents).
10.
"LIEN" means any lien, mortgage, pledge, security interest, charge, or
encumbrance of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof) and any agreement to give or
refrain from giving any lien, mortgage, pledge, security interest, charge, or
other encumbrance of any kind.
"LOAN" means a Revolving Loan made or to be made pursuant to Article 2.
"LOAN ACCOUNT" is defined in Section 2.5.3.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Revolving Loan
Notes, the Letters of Credit, the Pledge Agreement, the Collateral Documents,
the Guarantee and any other agreement, instrument or other writing executed or
delivered by the Borrower or any Affiliate in connection herewith, and all
amendments, exhibits and schedules to any of the foregoing.
"LONDON INTERBANK OFFERED RATE" means, with respect to any Interest Period,
a rate of interest per annum, determined by the Agent acting in good faith, to
be the prevailing rate per annum at which deposits in dollars are offered to the
Agent in the London interbank market at approximately 11:00 A.M. (London time)
two LIBOR Business Days before the first day of such Interest Period in an
amount approximately equal to the principal amount of the LIBOR Rate Loan to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"MANAGEMENT PLAN AND PROJECTIONS" means the management plan and projections
of the Borrower, in form and substance satisfactory to the Agent and the
Syndication Agent, meeting the requirements contained in Section 5.1.11.
"MANDATORY PREPAYMENTS" means any amounts required to be paid by the
Borrower pursuant to Section 2.8.2.
"MARGIN REGULATIONS" means Regulations G, T, U and X of the Federal Reserve
Board, as amended from time to time.
"MARGIN STOCK" means "margin stock" as defined in the Margin Regulations.
"MATERIAL," "MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" means a
condition or event material to, a material adverse effect on or a material
adverse change in, as the case may be, any one or more of the following: (i) the
operations, business, properties, or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole; (ii) the Borrower's ability to
perform its obligations under any Loan Document and avoid any Event of Default;
or (iii) the legality, validity, binding effect or enforceability of any Loan
Document. "MATERIALLY" has a correlative meaning.
"MINIMUM QUARTERLY REVENUE" means, (i) with respect to Informix's fiscal
quarters ending on the last fiscal day of December 1997, March 1998 and June
1998, an amount equal to or greater than $150,000,000, and (ii) with respect to
each of Informix's fiscal quarters ending on
11.
the last fiscal day of September 1998 or thereafter, an amount equal to or
greater than $160,000,000.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 3(37) and Section 4001(a)(3)(A) of ERISA to which the Borrower or any of
the ERISA Affiliates is making or accruing an obligation to make contributions
or to which any such Person has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a "single employer plan," as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one person other than the Borrower
and the ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA if such plan has been or were to be terminated.
"NET INCOME" means, for any period, consolidated net income (or loss) after
taxes, determined in accordance with GAAP, of Informix and its consolidated
Subsidiaries for such period taken as a single accounting period.
"NOTICE OF BORROWING" is defined in Section 2.1.3.
"NOTICE OF CONTINUATION/CONVERSION" is defined in Section 2.4.3.2.
"NOTICE OF ISSUANCE" is defined in Section 2.2.2.
"NOTICE OF RESPONSIBLE OFFICER" is defined in Section 2.1.3.3.
"OBLIGATIONS" means all present and future obligations and liabilities of
the Borrower and its Affiliates of every type and description arising under or
in connection with the Loan Documents due or to become due to the Lender Parties
or any Person entitled to indemnification, or any of their respective
successors, transferees or assigns, whether for principal, interest, letter of
credit or other reimbursement obligations, cash collateral cover, Fees,
expenses, indemnities or other amounts (including attorneys' fees and expenses)
and whether due or not due, direct or indirect, joint and/or several, absolute
or contingent, voluntary or involuntary, liquidated or unliquidated, determined
or undetermined, and whether now or hereafter existing, renewed or restructured.
"OPERATING CASH FLOW" means, for any period, operating income MINUS (a)
the sum of (i) Restated Revenue (to the extent the related cash was collected in
prior periods), (ii) Capitalized Software Costs, (iii) Capital Expenditures, and
(iv) cash outlays in respect of accrued expenses arising from restructuring
charges taken in prior periods, PLUS (b) the sum of (i) depreciation, and
(ii) amortization.
"OPERATING LEASE" means, as applied to any Person, any lease of any
property (whether real, personal, or mixed) under which such Person is the
lessee and that is not capitalized on the balance sheet of such Person.
12.
"OPERATING PROFIT" means, for any period, (i) Net Income, PLUS
(ii) Interest Expense deducted in the determination of Net Income, PLUS
(iii) the amount of Taxes, based on or measured by income, deducted in the
determination of Net Income, PLUS (iv) the amount of any extraordinary losses
included in the determination of Net Income, MINUS (v) the amount of any
extraordinary gains included in the determination of Net Income If the
foregoing calculation produces a negative number, such number shall be the
"Operating Loss".
"PARTICIPATION" is defined in Section 9.6.4.
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in
Title IV of ERISA, or any successor.
"PERMITTED CAPITAL EXPENDITURES" is defined in Section 6.5.5.
"PERMITTED DEBT" means all Debt which is permitted under Section 6.2.
hereof.
"PERMITTED LIENS" means, with respect to any asset, the Liens (if any)
permitted to exist on such asset under Section 6.1.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or any other entity
or organization, including a government or any agency or political subdivision
thereof.
"PLAN" means any pension, retirement, disability, defined benefit, defined
contribution, profit sharing, deferred compensation, employee stock ownership,
employee stock purchase, health, life insurance, or other employee benefit plan
or arrangement, other than a Multiemployer Plan, irrespective of whether any of
the foregoing is funded, in which any personnel of the Borrower or ERISA
Affiliate participates or from which any such personnel may derive a benefit.
"PLEDGE AGREEMENT" means the Pledge Agreement between Informix and the
Agent in substantially the form of Exhibit C-2, as amended from time to time.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
between the Borrower and the Agent in substantially the form of Exhibit C-1, as
amended from time to time.
"POST-DEFAULT RATE" means, at any time after the occurrence of an Event of
Default, including but not limited to the failure to pay any amount when due
after giving effect to any grace period, and during the continuance of such
Event of Default, with respect to any amount due hereunder (whether principal,
interest, reimbursement obligation or otherwise), the Base Rate in effect at
such time PLUS 3%.
"PROHIBITED TRANSACTION" means a transaction that is prohibited under
Section 4975 of the Code or Section 406 or 407 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
13.
"QUARTERLY REVENUE" means with respect to any fiscal quarter, the total
revenue earned by Informix and its consolidated Subsidiaries during such fiscal
quarter minus the Restated Revenue.
"QUICK RATIO" means, at any time of determination thereof, (i) the sum of
(x) the aggregate of all of Borrower's Cash plus (y) the aggregate of all of
Borrower's Accounts Receivable (net of any reserves required pursuant to GAAP),
divided by (ii) the difference of (a) the aggregate of all of Borrower's current
liabilities (including Borrowings hereunder) minus (b) deferred and unearned
revenues.
"REAL PROPERTY" means each of those parcels (or portions thereof) of real
property, improvements and fixtures thereon and appurtenances thereto now or
hereafter owned or leased by the Borrower.
"REGULATION D" means Regulation D of the Federal Reserve Board, as amended
from time to time.
"REGULATORY CHANGE" means (i) the adoption or becoming effective after the
date hereof of any treaty, law, rule or regulation, (ii) any change in any such
treaty, law, rule or regulation (including Regulation D), or any change in the
administration or enforcement thereof, by any Governmental Authority, central
bank or other monetary authority charged with the interpretation or
administration thereof, in each case after the date hereof, or (iii) compliance
after the date hereof by any Lender Party (or its Applicable Lending Office or,
in the case of capital adequacy requirements, any holding company of any Lender
Party) with, any interpretation, directive, request, order or decree (whether or
not having the force of law) of any such Governmental Authority, central bank or
other monetary authority.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder, except any such event (other than the
failure to meet minimum funding standards of Section 412 of the Code or
Section 302 of ERISA) as to which the provision for 30 days' notice to the PBGC
is waived under applicable regulations.
"REQUIRED LENDERS" means (i) with respect to any vote or action taken with
respect to any default or waiver of any of the Borrower's covenants or other
obligations contained in Sections 6.2. through 6.7. (but not including Section
6.4.1), 6.11., 6.15., 7.1.2., 7.1.9. through 7.1.12. during any period in which
the Level I Pricing contained in Schedule 1.1.E shall be in effect, Lenders
having 100% of the aggregate amount of the Commitments or (ii) with respect to
Section 7.2.2. or any other matter, any three or more Lenders having at least
66-2/3% of the aggregate amount of the Commitments or, if the Revolving
Commitments have terminated, any three or more Lenders holding at least 66-2/3%
of the sum of (a) the aggregate unpaid principal amount of the Revolving Loans
PLUS (b) the aggregate amount of all Letter of Credit Liability.
"RESPONSIBLE OFFICER" is defined in Section 2.1.3.3.
14.
"RESTATED REVENUE" means, for any period, the portion of Informix's revenue
for such period that was attributable to recognition of "unearned license
revenue" which recognition arises from the restatement of Informix's financial
statements completed in November 1997.
"RESTRICTED PAYMENT" means any payment in excess of insurance by Informix,
the Borrower or any of Borrower's Subsidiaries in connection with any
settlement, judgment or other disposition of any litigation, dispute, or other
regulatory investigation or proceeding to which Informix, the Borrower or any
Subsidiary of the Borrower is a party.
"RESTRICTED AFFILIATE PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any Capital Stock of the
Borrower or any Subsidiary now or hereafter outstanding, except (a) a dividend
or other distribution payable solely in shares or equivalents of the same class
of Capital Stock and (b) the issuance of equity interests upon the exercise of
outstanding warrants, options or other rights, or (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any Capital Stock of the Borrower or any
Subsidiary now or hereafter outstanding.
"REVOLVING COMMITMENT" means, with respect to each Lender, the amount set
forth for such Lender as its "Revolving Commitment" on Schedule 1.1.A as the
amount of such Lender's commitment to make Revolving Loans, as reduced or
terminated from time to time pursuant to the terms hereof.
"REVOLVING COMMITMENT USAGE" means, at any time, (i) with respect to any
Lender, the sum of (A) the aggregate unpaid principal amount of all Revolving
Loans made by such Lender, and (B) the Lender's PRO RATA share of all Letter of
Credit Liability, and (ii) with respect to all Lenders, the sum of (A) the
aggregate unpaid principal amount of all Revolving Loans, and (B) all Letter of
Credit Liability, in each case giving effect to Borrowings then requested.
"REVOLVING LOAN NOTE" means a Revolving Loan Note made by the Borrower
payable to the order of any Lender, in the amount of the lesser of (i) such
Lender's Revolving Commitment and (ii) the aggregate principal amount of
Revolving Loans made by such Lender, which note is in substantially the form of
Exhibit A-1, as amended from time to time.
"REVOLVING LOANS" is defined in Section 2.1.1.
"SANTA XXXXX REAL PROPERTY" means, a 27.14 acre parcel of improved and
unimproved land located along Freedom Circle in the City of Santa Clara,
California that has been subdivided into two parcels, one to be sold to Tishman
Speyer, and the other to be sold to the Intel Corporation.
"SEC" means the United States Securities and Exchange Commission, and any
successor.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
15.
"SENIOR OFFICER" means the President, the Chief Executive Officer, the
Chief Financial Officer, or the Treasurer of the Borrower.
"SHAREHOLDER LITIGATION" means (i) the federal and state class action
lawsuits (including shareholder derivative actions) filed against Informix
and/or the Borrower by certain shareholders, and (ii) any investigation of or
other governmental action or proceeding against the Borrower or Informix by the
SEC.
"SINGLE EMPLOYER PLAN" means a Plan other than a Multiemployer Plan.
"SOLVENT" means, with respect to any Person, that: (i) the total present
fair salable value of such Person's business on a going concern basis is in
excess of the total amount of such Person's liabilities, including contingent
liabilities; (ii) such Person is able to pay its liabilities and contingent
liabilities as they become due; and (iii) such Person does not have unreasonably
small capital to carry on such Person's business as theretofore operated and as
proposed to be operated.
"STATED AMOUNT" means, with respect to a Letter of Credit, the maximum
amount available to be drawn thereunder, without regard to whether any
conditions to drawing could be met.
"STATED TERMINATION DATE" is defined in Section 2.7.
"SUBSIDIARY" means, with respect to any Person, any other Person of which
more than 50% of the total voting power of the Capital Stock entitled to vote in
the election of the board of directors (or other Persons performing similar
functions) are at the time directly or indirectly owned by such first Person.
Unless otherwise indicated, "SUBSIDIARY" refers to a Subsidiary of the Borrower.
"SYNDICATION AGENT" is defined in the Preamble.
"TAXES" means any present or future income, stamp and other taxes, charges,
fees, levies, duties, imposts, withholdings or other assessments, together with
any interest and penalties, additions to tax and additional amounts imposed by
any federal, state, local or foreign taxing authority upon any Person.
"TERMINATION DATE" is defined in Section 2.7.1.
"TERMINATION EVENT" means: (i) a Reportable Event or an event described in
Section 4068(f) of ERISA; (ii) the withdrawal of the Borrower or any of its
ERISA Affiliates from a Multiple Employer Plan during a plan year in which it
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations at a facility in the circumstances described in
Section 4068(f) of ERISA; (iii) the filing of a notice of intent to terminate a
Defined Benefit Plan (including any such notice with respect to a Defined
Benefit Plan amendment referred to in Section 4041(e) of ERISA) or the
termination of a Defined Benefit Plan excluding, for purposes of this
clause (iii), any standard termination under
16.
Section 4041(b) of ERISA; (iv) the institution of proceedings to terminate a
Defined Benefit Plan by the PBGC; or (v) the appointment of a trustee to
administer any Defined Benefit Plan under Section 4042 of ERISA; or (vi) any
other event or condition that might reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Defined Benefit Plan.
"TOTAL LIQUIDITY" means, at any time with respect to the Borrower, the sum
of the Borrower's Cash at such time PLUS the difference between (i) the lesser
of (a) the aggregate Revolving Commitments of all Lenders, and (b) the Borrowing
Base then in effect MINUS (ii) the Revolving Commitment Usage of all Lenders at
such time.
"UCC" means the Uniform Commercial Code (as amended from time to time) of
the State of California.
"WHOLLY-OWNED" means, with respect to any Subsidiary, that all the Capital
Stock (except for directors' qualifying shares) of such Subsidiary is directly
or indirectly owned by the Borrower.
17.
SECTION 1.2. RELATED MATTERS.
1.2.1. CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, "including" is not limiting,
and "or" has the inclusive meaning represented by the phrase "and/or." The
words "hereof," "herein," "hereby," "hereunder" and similar terms in this
Agreement refer to this Agreement as a whole (including the Preamble, the
Recitals, the Schedules and the Exhibits) and not to any particular provision of
this Agreement. Article, section, subsection, exhibit, schedule, recital and
preamble references in this Agreement are to this Agreement unless otherwise
specified. References in this Agreement to any agreement, other document or law
"as amended" or "as amended from time to time," or to amendments of any document
or law, shall include any amendments, supplements, replacements, renewals,
waivers or other modifications not prohibited by the Loan Documents. References
in this Agreement to any law (or any part thereof) include any rules and
regulations promulgated thereunder (or with respect to such part) by the
relevant Governmental Authority, as amended from time to time.
1.2.2. DETERMINATIONS. Any determination or calculation contemplated
by this Agreement that is made by any Lender Party shall be final and conclusive
and binding upon the Borrower, and, in the case of determinations by the Agent,
also the other Lender Parties, in the absence of manifest error. References in
this Agreement to any "determination" by any Lender Party include good faith
estimates by such Lender Party (in the case of quantitative determinations), and
good faith beliefs by such Lender Party (in the case of qualitative
determinations). All references herein to "discretion" of any Lender Party (or
terms of similar import) shall mean "absolute and sole discretion." All
consents and other actions of any Lender Party contemplated by this Agreement
may be given, taken, withheld or not taken in such Lender Party's discretion
(whether or not so expressed), except as otherwise expressly provided herein.
1.2.3. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent with the audited financial statements referred to
in Section 4.4.
1.2.4. INDEPENDENCE OF COVENANTS. All covenants under this Agreement
shall each be given independent effect so that if a particular action or
condition is not permitted by any such covenant, the fact that it would be
permitted by another covenant, by an exception thereto, or be otherwise within
the limitations thereof, shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
18.
ARTICLE 2.
AMOUNTS AND TERMS OF THE CREDIT FACILITY
SECTION 2.1. REVOLVING LOANS.
2.1.1. REVOLVING COMMITMENT. 2.1.1.1. Each Lender severally agrees,
upon the terms and subject to the conditions set forth in this Agreement,
at any time from and after the Closing Date until the Business Day next
preceding the Termination Date, to make revolving loans (each, a "REVOLVING
LOAN") to the Borrower, PROVIDED THAT (a) the Revolving Commitment Usage of
any Lender shall not exceed, at any time, the Revolving Commitment of such
Lender, and (b) the Revolving Commitment Usage of all Lenders at any time,
in the aggregate, shall not exceed the lesser of (i) the aggregate
Revolving Commitments of all Lenders, and (ii) the Borrowing Base then in
effect.
2.1.1.2. Revolving Loans may be voluntarily prepaid pursuant to
Section 2.8.3. and, subject to the provisions of this Agreement, any
amounts so prepaid may be re-borrowed, up to the amount available under
this Section 2.1. at the time of such re-borrowing.
2.1.2. TYPE OF LOANS AND MINIMUM AMOUNTS.
2.1.2.1. Revolving Loans made under this Section 2.1. may be Base
Rate Loans, or LIBOR Rate Loans (each a "TYPE" of Loan), subject, however,
to Section 2.4.2 and 2.11.
2.1.2.2. Each Borrowing of Revolving Loans shall be in a minimum
aggregate amount of $500,000 and integral multiples of $100,000, in the
case of a Borrowing of Base Rate Loans, or a minimum aggregate amount of
$1,000,000, and integral multiples of $1,000,000, in the case of a
Borrowing of LIBOR Rate Loans.
2.1.3. NOTICE OF BORROWING.
2.1.3.1. When the Borrower desires to borrow Revolving Loans pursuant
to Section 2.1., it shall deliver to the Agent a Notice of Borrowing
substantially in the form of Exhibit E-1, duly completed and executed by a
Responsible Officer (a "NOTICE OF BORROWING"), no later than 11:00 a.m.
(California time) (a) at least one Business Day before the proposed Funding
Date, in the case of a Borrowing of Base Rate Loans, or (b) at least three
LIBOR Business Days before the proposed Funding Date, in the case of a
Borrowing of LIBOR Rate Loans.
2.1.3.2. In lieu of delivering a Notice of Borrowing, the Borrower,
through a Responsible Officer, may give the Agent telephonic notice of any
proposed Borrowing by the time a Notice of Borrowing would be required to
be delivered and containing all information required for a Notice of
Borrowing; PROVIDED, HOWEVER, that such notice shall be confirmed in
writing by delivery of a Notice of Borrowing to the Agent on or before
19.
the proposed Funding Date (or, in case of a Base Rate Borrowing, one
Business Day after the Funding Date). The Lender Parties shall incur no
liability to the Borrower or the other Lender Parties in acting upon any
telephonic notice that the Agent believes to have been given by a
Responsible Officer or for otherwise acting in good faith under this
Section 2.1. and in making any Loan in accordance with this Agreement
pursuant to any telephonic notice.
2.1.3.3. The Borrower shall notify the Agent of the names of its
officers and employees authorized to request and take other actions with
respect to Loans on behalf of the Borrower (each a "RESPONSIBLE OFFICER")
by providing the Agent with a Notice of Responsible Officers substantially
in the form of Exhibit E-7, duly completed and executed by a Senior Officer
(a "NOTICE OF RESPONSIBLE OFFICER"). The Agent shall be entitled to rely
conclusively on a Responsible Officer's authority to request and take other
actions with respect to Loans or Letters of Credit on behalf of the
Borrower until the Agent receives a new Notice of Responsible Officer that
no longer designates such Person as a Responsible Officer. The Agent shall
have no duty to verify the authenticity of the signature appearing on any
Notice of Borrowing, Notice of Responsible Officer or any other notice
given under the Loan Documents.
2.1.3.4. Any Notice of Borrowing (or telephone notice in lieu
thereof) delivered pursuant to this Section 2.1.3. shall be irrevocable and
the Borrower shall be bound to make a Borrowing in accordance therewith.
2.1.3.5. The Agent shall promptly notify each Lender of the contents
of any Notice of Borrowing (or telephonic notice in lieu thereof) received
by it and such Lender's pro rata portion of the Borrowing requested. Not
later than 11:30 a.m. (California time) on the date specified in such
notice as the Funding Date (or, in the case of Base Rate Loans, 10:30 a.m.
(California time) on such date), each Lender, subject to the terms and
conditions hereof, shall make its pro rata portion of the Borrowing
available, in immediately available funds, to the Agent at the Agent's
Account.
2.1.4. FUNDING. Not later than 11:00 a.m. (California time) or such
later time as may be agreed to by the Borrower and the Agent, and subject to and
upon satisfaction of the applicable conditions set forth in Article 3. as
determined by the Agent, the Agent shall arrange for a wire transfer of
immediately available funds in the amount of the requested Loans to the account
designated by the Borrower pursuant to wire instructions set forth in the Notice
of Borrowing.
SECTION 2.2. LETTERS OF CREDIT. 2.2.1. IN GENERAL. The L/C Issuer
hereby agrees, upon the terms and subject to the conditions set forth in this
Agreement, at any time from and after the Closing Date until the Business Day
preceding the Termination Date, to issue for the account of the Borrower one or
more letters of credit (each a "LETTER OF CREDIT"), PROVIDED that (a) the
aggregate Stated Amount of all outstanding Letters of Credit shall not exceed
$15,000,000, (b) the Revolving Commitment Usage of all Lenders, in the
aggregate, shall not exceed at any time the lesser of (i) the aggregate
Revolving Commitments of all Lenders, and (ii) the
20.
Borrowing Base then in effect and (c) no order, judgment or decree of, or any
request or directive (whether or not having the force of law) from, any
Governmental Authority, or any other Applicable Law, shall purport by its terms
to enjoin, restrain, prohibit or otherwise prevent the L/C Issuer from issuing
letters of credit generally or the Letter of Credit or shall impose upon the L/C
Issuer with respect to that Letter of Credit any restriction, unreimbursed
reserve requirement or unreimbursed cost or expense that was not applicable, in
effect or known to the L/C Issuer on the Closing Date and that the L/C Issuer in
good xxxxx xxxxx materially adverse to it. Letters of Credit shall (i) have
expiry dates not later than twelve (12) months from the date of issuance and in
any event not later than 10 Business Days prior to the Stated Termination Date
and (ii) either (A) constitute a payment mechanism for the purchase of inventory
by the Borrower or any Subsidiary or (B) support performance, payment, deposit
or surety obligations of the Borrower or any Subsidiary, in each case under
circumstances where provision of a letter of credit is required by Applicable
Law, in accordance with the custom or practice in the industry of the Borrower
and its Subsidiaries or requested by a customer or client of or vendor to the
Borrower or any Subsidiary in the ordinary course of business. The provisions
of this Section 2.2. and Section 3.2. shall apply to any extension, renewal or
increase of a Letter of Credit as if it were a new Letter of Credit.
2.2.2. NOTICES OF ISSUANCE, ETC. When the Borrower desires the
issuance of a Letter of Credit, the Borrower shall deliver to the L/C Issuer and
the Agent at least three Business Days before the Funding Date, (a) a Notice of
Issuance substantially in the form of Exhibit E-2, duly completed and executed
by a Responsible Officer (the "NOTICE OF ISSUANCE"), and (b) a letter of credit
application, a letter of credit reimbursement agreement and such other documents
and materials as may be required by the L/C Issuer, each in form and substance
satisfactory to the L/C Issuer (collectively, a "LETTER OF CREDIT APPLICATION").
In the event of a conflict between the terms of any Letter of Credit Application
and this Agreement, the terms of this Agreement shall govern. Upon receipt by
the Agent of a Notice of Issuance, the Agent shall promptly notify each Lender
of the contents thereof and such Lender's pro rata share of such Letter of
Credit.
2.2.3. PARTICIPATIONS IN LETTERS OF CREDIT. Immediately upon the
issuance of a Letter of Credit, each Lender shall be deemed to have irrevocably
purchased from the L/C Issuer a participation in such Letter of Credit and any
drawing thereunder in an amount equal to such Lender's pro rata share of the
Stated Amount of such Letter of Credit. An amount equal to the Letter of Credit
Liability for each Letter of Credit shall be reserved under the Revolving
Commitment and shall not be available for borrowing for any purpose other than
reimbursement of amounts drawn under the Letters of Credit pursuant to the terms
of this Section 2.2.
2.2.4. REIMBURSEMENT FOR DRAWINGS, ETC. Notwithstanding any
provisions to the contrary in any Letter of Credit Application:
2.2.4.1. In case of a drawing under any Letter of Credit, the L/C
Issuer will notify the Borrower and the Agent (which notification may be
verbal). The Borrower shall reimburse the L/C Issuer for any and all
amounts that the L/C Issuer pays under any
21.
Letter of Credit no later than the date of payment by the L/C Issuer (the
"HONOR DATE"), whether or not the notice referred to in the preceding
sentence is given.
2.2.4.2. If the L/C Issuer shall not be reimbursed for any drawing
under any Letter of Credit issued by it as provided in Section 2.2.4.1.,
the L/C Issuer shall promptly notify the Agent, the Borrower shall be
automatically deemed to have requested a Base Rate Borrowing in an amount
equal to such unreimbursed drawing, and the Agent shall promptly notify
each Lender of the unreimbursed amount of such drawing and of such Lender's
respective participation therein. Each Lender shall make available to the
L/C Issuer an amount equal to its respective participation in immediately
available funds, at the office of such L/C Issuer specified in such notice,
not later than the Business Day after the date on which the Agent gives
such notice. Each Lender's obligations under this Section 2.2.4.2.
(a) shall not be subject to any set-off, counterclaim or defense to payment
that the Lender may have against the Borrower or against the L/C Issuer and
(b) shall be absolute, unconditional and irrevocable, and as a primary
obligor, not as a surety, notwithstanding any circumstance or event
whatsoever, including (i) the occurrence of an Event of Default or Default,
(ii) the failure of any other Lender to fund its participation as required
hereby, (iii) the financial condition of the Borrower or any Lender Party
or any set-off, counterclaim or defense to payment that the Borrower may
have, or (iv) the termination or cancellation of the Revolving Commitments.
If any Lender fails to make available to the L/C Issuer the amount of such
Lender's participation in the Letter of Credit as provided in this
Section 2.2.4.2., such amount shall bear interest at the Federal Funds
Effective Rate (or, commencing with the third day, the Base Rate) from the
day on which the Agent's notice to such Lender referred to above is given
until paid. The L/C Issuer shall pay to the Agent, and the Agent shall
distribute to each Lender that has paid all amounts payable by it under
this Section 2.2.4.2., such Lender's pro rata share of all payments
received by the L/C Issuer from the Borrower in reimbursement of drawings
honored by the L/C Issuer under a Letter of Credit, as and when such
payments are received.
2.2.4.3. The obligation of the Borrower to reimburse the L/C Issuer
for drawings honored under a Letter of Credit in accordance with the terms
of this Agreement shall be absolute, unconditional and irrevocable,
notwithstanding any circumstance or event whatsoever, including the
following:
(a) any lack of validity or enforceability of such Letter of
Credit, any instrument transferring or assigning such Letter of Credit
or of any other Loan Document or the rights or benefits thereunder;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations or any other
amendments of or relating to such Letter of Credit or any other Loan
Document;
(c) the existence of any claim, setoff, defense or other right
that the Borrower or any of its Affiliates may have at any time
against any Lender Party or
22.
any transferee of such Letter of Credit (or any persons or entities
for whom such Lender Party or transferee may be acting), the L/C
Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between the Borrower or one of
its Subsidiaries and the L/C Issuer);
(d) any draft, demand, certificate or any other document
presented under any such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(e) honor under any Letter of Credit upon presentation of a
demand, draft or certificate or other document that does not comply on
its face with the terms of such Letter of Credit;
(f) any exchange, release or non-perfection of any Collateral
for the Letter of Credit Liability;
(g) any loss or delay in the transmission or otherwise of any
documents required in order to make a drawing under such Letter of
Credit or of the proceeds thereof;
(h) any misapplication of the proceeds of such Letter of Credit;
(i) the fact that a Default or and Event of Default shall have
occurred and be continuing; or
(j) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
As between the Borrower and the Lender Parties, the Borrower assumes all
risks of the acts and omissions of, or misuse of Letters of Credit by, the
respective beneficiaries and the Lender Parties in respect of the Letters of
Credit and all risks of any loss, errors, omissions or delays in the
transmission of any document required in order to make a drawing under any
Letter of Credit. Nothing in this Section 2.2.4.3. shall impair any claim the
Borrower or any Lender may otherwise have against the L/C Issuer for any direct,
but not consequential, damages suffered by the Borrower or such Lender that the
Borrower or such Lender proves were caused by (i) the L/C Issuer's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the term of the Letter of Credit, or (ii) the
L/C Issuer's willful failure to make lawful payment under a Letter of Credit
after the presentation of documents strictly complying with the terms and
conditions of the Letter of Credit.
SECTION 2.3. USE OF PROCEEDS. The proceeds of the Loans shall be used by
the Borrower only for working capital and other general corporate purposes. No
part of the proceeds of the Loans or Letters of Credit shall be used directly or
indirectly for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock or maintaining or extending
23.
credit to others for such purpose or for any other purpose that otherwise
violates the Margin Regulations.
SECTION 2.4. INTEREST; INTEREST PERIODS; CONVERSION/CONTINUATION.
2.4.1. INTEREST RATE AND PAYMENT.
2.4.1.1. Each Loan shall bear interest on the unpaid principal amount
thereof, from and including the date of the making of such Loan to and
excluding the due date or the date of any repayment thereof, at the
following rates per annum: (a) for so long as and to the extent that such
Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time)
PLUS the Applicable Base Rate Margin; (b) for so long as and to the extent
that such Loan is a LIBOR Rate Loan, at the Adjusted LIBOR Rate for each
day during each Interest Period applicable thereto PLUS the Applicable
LIBOR Margin;
2.4.1.2. Notwithstanding the foregoing provisions of this
Section 2.4.1., any principal, interest or other amount payable under this
Agreement and the other Loan Documents shall, upon the occurrence of an
Event of Default and during the continuance of any such Event of Default,
bear interest at a rate per annum equal to the Post-Default Rate, without
notice or demand of any kind.
2.4.1.3. Accrued interest shall be payable in arrears (a) in the case
of a Base Rate Loan, on each Interest Payment Date; (b) in the case of a
LIBOR Rate Loan, on each Interest Payment Date, ; (c) in the case of any
interest accrued at the Post-Default Rate, on demand, and (d) in the case
of any Loan, when the Loan shall become due (whether at maturity, by reason
of prepayment, acceleration or otherwise).
2.4.2. INTEREST PERIODS AND MINIMUM AMOUNTS. Notwithstanding
anything herein to the contrary, (a) all Interest Periods applicable to LIBOR
Rate Loans shall comply with the definition of "Interest Period," (b) there may
be no more than five different Interest Periods for all LIBOR Rate Loans
outstanding at the same time, and (c) LIBOR Rate Loans of each Type and with the
same Interest Period outstanding at any time shall be in an aggregate amount at
least equal to $1,000,000 and in an integral multiple of $1,000,000. For
purposes of the foregoing clause (b), Interest Periods applicable to Loans of
different Types shall constitute different Interest Periods even if they are
coterminous.
2.4.3. CONVERSION OR CONTINUATION.
2.4.3.1. Subject to this Section 2.4.3. and Sections 2.4.2.
and 2.11., the Borrower shall have the option (a) at any time, to convert
all or any part of its outstanding Base Rate Loans to LIBOR Rate Loans,
(b) on the last day of the Interest Period applicable thereto, to (i)
convert all or any part of its outstanding LIBOR Rate Loans to Base Rate
Loans, (ii) to continue all or any part of its LIBOR Rate Loans as Loans of
the same Type, or (iii) to convert all or any part of its outstanding LIBOR
Rate Loans to LIBOR Rate Loans of another Type; PROVIDED that, in the case
of clause (a), (b) (ii) or (b)(iii), there does not exist a Default or an
Event of Default at such time. If a Default or an
24.
Event of Default shall exist upon the expiration of the Interest Period
applicable to any LIBOR Rate Loan, such Loan automatically shall be
converted into a Base Rate Loan.
2.4.3.2. If the Borrower elects to convert or continue a Loan under
this Section 2.4.3., it shall deliver to the Agent a Notice of
Continuation/Conversion substantially in the form of Exhibit E-3, duly
completed and executed by a Responsible Officer (a "NOTICE OF
CONTINUATION/CONVERSION"), (a) not later than 11:00 a.m. (California time)
at least three LIBOR Business Days before the proposed conversion or
continuation date, if the Borrower proposes to convert into, or to
continue, a LIBOR Rate Loan, and (b) otherwise not later than 11:00 a.m.
(California time) on the Business Day next preceding the proposed
conversion or continuation date.
2.4.3.3. In lieu of delivering a Notice of Continuation/Conversion,
the Borrower, through a Responsible Officer, may give the Agent telephonic
notice of any proposed continuation or conversion by the time a Notice of
Continuation/Conversion would be required to be delivered and containing
all information required therefor; PROVIDED, HOWEVER, that such notice
shall be confirmed in writing by delivery of a Notice of
Continuation/Conversion to the Agent on or before the proposed continuation
or conversion date. The Lender Parties shall incur no liability to the
Borrower or the other Lender Parties in acting upon any telephonic notice
that the Agent believes to have been given by a Responsible Officer or for
otherwise acting in good faith under this Section 2.4.3. and in converting
or continuing any Loan (or a part thereof) pursuant to any telephonic
notice.
2.4.3.4. Any Notice of Conversion/Continuation (or telephonic notice
in lieu thereof) shall be irrevocable and the Borrower shall be bound to
convert or continue in accordance therewith. If any request for the
conversion or continuation of a Loan is not made in accordance with this
Section 2.4.3., or if no notice is so given with respect to a LIBOR Rate
Loan as to which the Interest Period expires, then such Loan automatically
shall be converted into a Base Rate Loan.
2.4.4. COMPUTATIONS. Interest on each Base Rate Loan, each LIBOR
Rate Loan and all Fees and other amounts payable hereunder or the other Loan
Documents shall be computed on the basis of a 360-day year and the actual number
of days elapsed (including the first and excluding the last day of the period).
Any change in the interest rate on any Loan or other amount resulting from a
change in the rate applicable thereto (or any component thereof) pursuant to the
terms hereof shall become effective as of the opening of business on the day on
which such change in the applicable rate (or component) shall become effective.
2.4.5. MAXIMUM LAWFUL RATE OF INTEREST. The rate of interest payable
on any Loan or other amount shall in no event exceed the maximum rate
permissible under Applicable Law. If the rate of interest payable on any Loan
or other amount is ever reduced as a result of this Section and at any time
thereafter the maximum rate permitted by Applicable Law shall exceed the rate of
interest provided for in this Agreement, then the rate provided for in this
Agreement shall be increased to the maximum rate provided by Applicable Law for
such period
25.
as is required so that the total amount of interest received by the Lenders is
that which would have been received by the Lenders but for the operation of the
first sentence of this Section.
SECTION 2.5. NOTES, ETC.
2.5.1. LOANS EVIDENCED BY NOTES. The Revolving Loans made by each
Lender to the Borrower shall be evidenced by one or more Revolving Loan Notes
executed by the Borrower, PROVIDED that all of such Revolving Loan Notes shall
comprise an obligation in an amount not exceeding the aggregate amount of the
Lenders' Revolving Commitments.
2.5.2. NOTATION OF AMOUNTS AND MATURITIES, ETC. Each Lender is
hereby irrevocably authorized to record on the schedule attached to its
Revolving Loan Note (or a continuation thereof) the information contemplated by
such schedule. The failure to record, or any error in recording, any such
information shall not, however, affect the obligations of the Borrower hereunder
or under any Revolving Loan Note to repay the principal amount of the Loans
evidenced thereby, together with all interest accrued thereon. All such
notations shall constitute conclusive evidence of the accuracy of the
information so recorded, in the absence of manifest error.
2.5.3. LOAN ACCOUNT. The Agent shall maintain a loan account (the
"LOAN ACCOUNT") on its books in which shall be recorded (a) all Loans made by
the Lenders to the Borrower pursuant to this Agreement, (b) all other
appropriate debits and credits as and when due in accordance with this
Agreement, including all Fees, charges, expenses and interest, and (c) all
payments made by the Borrower on the Obligations. All entries in the Loan
Account shall be made in accordance with the customary accounting practices of
the Agent as in effect from time to time. The balance in the Loan Account shall
be rebuttable presumptive evidence of the amounts due and owing the Lenders by
the Borrower.
SECTION 2.6. FEES.
2.6.1. FACILITY FEE. The Borrower shall pay to the Agent, for the
pro rata benefit of the Lenders, a facility fee for each day from and after the
Closing Date until the Stated Termination Date, upon the aggregate Revolving
Commitments of the Lenders for such day. Such Fee shall be payable in advance
on each Interest Payment Date with respect to Base Rate Loans. The facility fee
shall accrue at a rate of (i) at any time when the Applicable Base Rate Margin
is 1.25%, 1.25% per annum; (ii) at any time when the Applicable Base Rate Margin
is 0.50%, 0.75% per annum; (iii) at any time when the Applicable Base Rate
Margin is 0.25%, 0.625% per annum, and (iv) at any time when the Applicable Base
Rate Margin is 0.00%, 0.50% per annum.
2.6.2. LETTER OF CREDIT FEES. The Borrower shall pay to the Agent,
for the pro rata benefit of the Lenders, a letter of credit fee for each Letter
of Credit issued in an amount equal to (i) the Applicable LIBOR Margin
multiplied by (ii) the average Stated Amount of the Letter of Credit for the
period from the date of issuance of such Letter of Credit until its expiry.
Such Fee shall be payable in arrears on each Interest Payment Date with respect
to Base Rate Loans and the Termination Date. In addition, the Borrower shall
pay to the L/C Issuer (a) on the
26.
date of issuance of such letter of credit, a letter of credit fronting fee equal
to 1/8% per annum of the Stated Amount of such Letter of Credit, and (b) the L/C
Issuer's standard administration (including drawing, cancellation, and
transfer), amendment and handling charges, which charges shall be payable at
such times and in such amounts as may be set forth in the standard schedule of
the L/C Issuer for such charges.
2.6.3. EARLY TERMINATION FEE. If, on or before December 31, 1998,
the Borrower shall permanently terminate or reduce all or any portion of the
aggregate amount of the Lender's Revolving Commitments, the Borrower shall pay
to the Agent, for the pro rata benefit of the Lenders, a fee equal to 1.00% of
the Dollar amount of such reduction (the "Early Termination Fee"), PLUS any
amounts due under Section 2.14.
2.6.4. OTHER FEES. On the Closing Date and from time to time
thereafter as specified in the Fee Letter, the Borrower shall pay to the Agent
the fees specified in the Fee Letter.
2.6.5. FEES NON-REFUNDABLE. All Fees shall be fully earned when
payable hereunder and shall be non-refundable.
SECTION 2.7. TERMINATION AND REDUCTION OF REVOLVING COMMITMENTS.
2.7.1. Each Lender's Revolving Commitment shall terminate without
further action on the part of such Lender on the earlier to occur of
(a) December 31, 1999 (or if that date is not a LIBOR Business Day, the next
preceding LIBOR Business Day) (the "STATED TERMINATION DATE"), and (b) the date
of termination of the Revolving Commitment pursuant to Section 2.7.2. or 7.2.
(such earlier date being referred to herein as the "TERMINATION DATE").
2.7.2. The Borrower shall have the right, at any time or from time to
time after the Closing Date, to terminate in whole or permanently reduce in
part, subject to payment of the Early Termination Fee, if any, the Revolving
Commitments of the Lenders on a pro rata basis to an amount not less than the
Revolving Commitment Usage of all Lenders and all Letter of Credit Liability, by
giving the Agent not less than seven Business Days' prior written notice of such
termination or reduction and the amount of any partial reduction. Any such
termination or partial reduction shall be effective on the date specified in the
Borrower's notice and shall be in a minimum amount of $10,000,000 and integral
multiples of $5,000,000.
SECTION 2.8. REPAYMENTS AND PREPAYMENTS.
2.8.1. REPAYMENT. The unpaid principal amount of all Revolving Loans
shall be paid in full on the Termination Date.
2.8.2. MANDATORY PREPAYMENT.
2.8.2.1. EXCESS REVOLVING LOANS. If at any time the aggregate
Revolving Commitment Usage of all Lenders exceeds the aggregate amount
of the Revolving Commitments or the Borrowing Base then in effect, such
excess shall be immediately due
27.
and payable and the Borrower shall, on the Business Day on which the
Borrower learns or is notified of the excess, notify the Agent that on the
next Business Day the Borrower will make mandatory prepayments of the
Revolving Loans (and thereafter in respect of any Letters of Credit as
provided in Section 2.8.2.3.) as may be necessary so that, after such
prepayment and provision, such excess is eliminated.
2.8.2.2. PROCEEDS OF COLLATERAL. All amounts received by the Agent
pursuant to the provisions of the Pledge and Security Agreement, including
proceeds of Collateral, shall be credited to Borrower's Loan Account and
applied to the repayment of the Obligations one Business Day after the
Agent's receipt thereof (conditional upon the Agent's receipt of
immediately available funds at the end of such one-Business Day period).
2.8.2.3. NOTICE AND APPLICATION OF MANDATORY PREPAYMENTS;
INTEREST. The Borrower shall give the Agent not less than one Business
Day's prior written notice of the date on which a Mandatory Prepayment will
be made. Each Mandatory Prepayment shall be applied to the unpaid
principal amount of the Loans; PROVIDED that each Mandatory Prepayment
shall be applied first to reduce the Base Rate Loan constituting a portion
of the respective Loan and then to the LIBOR Rate Loans constituting a
portion thereof, in the inverse order of termination of Interest Periods
applicable thereto. Each Mandatory Prepayment shall be made together with
accrued interest on the amount prepaid to the date of prepayment. If no
Loans are outstanding when all or any portion of a Mandatory Prepayment is
required to be made, the balance of the Mandatory Prepayment shall be
applied to reduce any outstanding Letter of Credit Liability, first to pay
any amounts then due and payable and then to provide Cash Collateral Cover
for any outstanding Letters of Credit.
2.8.3. OPTIONAL PREPAYMENTS
2.8.3.1. Subject to this Section 2.8.3. and Section 2.14, the
Borrower may, at its option, at any time or from time to time, prepay the
Loans in whole or in part, without premium or penalty.
2.8.3.2. If the Borrower elects to prepay a Loan under this
Section 2.8.3., it shall deliver to the Agent a notice of optional
prepayment (i) not later than 11:00 a.m. (California time) at least three
LIBOR Business Days before the proposed prepayment, if the Borrower
proposes to prepay a LIBOR Rate Loan, and (ii) otherwise not later than
12:00 noon (California time) on the proposed prepayment date (which shall
be a Business Day). Any notice of optional prepayment shall be
irrevocable, and the payment amount specified in such notice shall be due
and payable on the date specified in such notice, together with interest
accrued thereon to such date.
2.8.4. PAYMENTS SET ASIDE. To the extent the Agent or any Lender
receives payment of any amount under the Loan Documents, whether by way of
payment by the Borrower, set-off, as proceeds of Collateral or otherwise, which
payment is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a
28.
trustee, receiver or any other party under any bankruptcy law, other law or
equitable cause, in whole or in part, then, to the extent of such payment
received, the Obligations or part thereof intended to be satisfied thereby shall
be revived and continue in full force and effect, together with all Collateral
security therefor, as if such payment had not been received by the Agent or
Lender. If prior to any such invalidation, declaration, setting aside or
requirement, this Agreement shall have been canceled or surrendered, this
Agreement shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, discharge or otherwise affect the
obligations of the Borrower in respect of the amount of the affected payment.
SECTION 2.9. MANNER OF PAYMENT.
2.9.1. Except as otherwise expressly provided, the Borrower shall
make each payment under the Loan Documents to the Agent in Dollars and in
immediately available funds, without any deduction whatsoever, including any
deduction for any set-off, recoupment, counterclaim or Taxes (other than
Excluded Taxes), at the Agent's Office, for the account of the Applicable
Lending Offices of the Lender Party entitled to such payment, by depositing such
payment in the Agent's Account not later than 11:00 a.m. (California time) on
the due date thereof. Any payments received after 11:00 a.m. (California time)
on any Business Day shall be deemed received on the next succeeding Business
Day. Not later than 1:00 p.m. (California time) on the day such payment is
made, the Agent shall deliver to each Lender, for the account of the Lender's
Applicable Lending Office, in Dollars and in immediately available funds, such
Lender's share of the payment so made, determined pursuant to Section 2.15.
Delivery shall be made in accordance with the written instructions satisfactory
to the Agent from time to time given to the Agent by each Lender. Without
limiting the rights of the Lender Parties under Section 9.10., each Lender Party
shall have the right, at any time after giving notice to the Borrower, to charge
any account of the Borrower maintained with the Lender Party for the amount of
any payment due by the Borrower under the Loan Documents or to deduct the amount
of any such payment from any remittance due to the Borrower hereunder.
2.9.2. Whenever any payment to be made hereunder shall be due on a
day that is not a Business Day (or, in the case of any payment with respect to
any LIBOR Rate Loan, not a LIBOR Business Day), such payment shall instead be
made on the next succeeding Business Day (or, in the case of any such payment
with respect to any LIBOR Rate Loan, the next succeeding LIBOR Business Day,
subject to clause (b) of the definition of "Interest Period"), together with
interest accrued during the period of such extension.
SECTION 2.10. PRO RATA TREATMENT. Except to the extent otherwise
expressly provided herein,
2.10.1. Revolving Loans shall be requested from the Lenders pro rata
according to their respective Revolving Commitments.
2.10.2. Each reduction of the Revolving Commitments of the Lenders
shall be applied to the respective Revolving Commitments of the Lenders pro rata
according to their respective Revolving Commitments before such reduction.
29.
2.10.3. Each payment or prepayment by the Borrower of principal of
the Revolving Loans shall be made for the account of the Lenders pro rata
according to the respective unpaid principal amount of the Revolving Loans, owed
to the Lenders, and each payment by the Borrower of interest on the Revolving
Loans shall be made for the account of the Lenders pro rata according to the
respective accrued but unpaid interest on the Revolving Loans owed to such
Lenders. Each payment by the Borrower of Fees payable to the Lenders pursuant
to Section 2.6.1. through Section 2.6.4. shall be made for the account of the
Lenders pro rata according to the respective amounts of their Revolving
Commitments.
SECTION 2.11. MANDATORY SUSPENSION AND CONVERSION OF LIBOR RATE LOANS.
With respect to clause 2.11.1. below, each Lender's obligation and with respect
to clause 2.11.2. below, the affected Lender's obligation, to make, continue or
convert Loans into LIBOR Rate Loans shall be suspended, all outstanding LIBOR
Rate Loans shall be automatically converted into Base Rate Loans on the last day
of the respective Interest Periods applicable thereto (or, if earlier, in the
case of clause 2.11.2. below, on the last day that such Lender can lawfully
continue to maintain LIBOR Rate Loans) and all pending requests for the making
or continuation of, or conversion into, LIBOR Rate Loans shall be disregarded,
if:
2.11.1. on or prior to the determination of the interest rate for a
LIBOR Rate Loan for any Interest Period, the Agent determines that for any
reason appropriate quotations are not available to the Agent in the relevant
interbank market for purposes of determining the Adjusted LIBOR Rate or that
such rate would not accurately reflect the cost to the Lenders of making,
continuing, or converting a Loan into, a LIBOR Rate Loan for such Interest
Period; or
2.11.2. after the date hereof a Lender notifies the Agent (which
shall thereupon notify the Borrower and the other Lenders) of its determination
that any Regulatory Change makes it unlawful or impossible for such Lender or
its LIBOR Lending Office to make or maintain any LIBOR Rate Loan, to obtain in
the interbank eurodollar market through its LIBOR Lending Office the funds with
which to make any LIBOR Rate Loan or to comply with its obligations hereunder in
respect thereof.
SECTION 2.12. REGULATORY CHANGES. 2.12.1. INCREASED COSTS. Without
duplication of amounts referred to in clause 2.12.2. below if, on or after the
date hereof, any Regulatory Change shall impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance or similar requirement
(other than any such requirement with respect to any LIBOR Rate Loan to the
extent included in the LIBOR Reserve Requirement), against, or any fees or
charges in respect of, assets held by, deposits with or other liabilities for
the account of, commitments of, advances or Loans by, Letters of Credit (or
participations therein) or other credit extended by, any Lender Party (or its
Applicable Lending Office) or shall impose on any Lender Party (or its
Applicable Lending Office) or on the relevant interbank market any other
condition affecting any LIBOR Rate Loan, or any Letter of Credit (or
participations therein) or any obligation to make LIBOR Rate Loans, or in
respect of Letter of Credit participations and the effect of the foregoing is
(i) to increase the cost to such Lender Party (or its Applicable Lending Office)
of making, issuing, renewing or maintaining any LIBOR Rate Loan or its Revolving
Commitment or Revolving Commitments in respect thereof or any Letter of Credit
(or participations therein) or
30.
(ii) to reduce the amount of any sum received or receivable by such Lender Party
(or its Applicable Lending Office) hereunder or under any other Loan Document
with respect thereto, then, subject to Section 2.15.1., and so long as the
Borrower is being treated the same as similarly situated borrowers of such
Lender Party, the Borrower shall from time to time pay to such Lender Party,
within 15 days after request by such Lender Party, such additional amounts as
may be specified by such Lender Party as sufficient to compensate such Lender
Party for such increased cost or reduction.
2.12.2. CAPITAL COSTS. Without duplication of amounts referred to in
clause 2.12.1. above if a Regulatory Change regarding capital adequacy
(including the adoption or becoming effective of any treaty, law, rule,
regulation or guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and Capital
Standards") has or would have the effect of reducing the rate of return on the
capital of or maintained by any Lender Party or any company controlling such
Lender Party as a consequence of such Lender Party's Loans, Letters of Credit,
Revolving Commitments or obligations hereunder and other commitments of this
type to a level below that which such Lender Party or company could have
achieved but for such Regulatory Change (taking into account such Lender Party's
or company's policies with respect to capital adequacy), then, subject to
Section 2.15.1., and so long as the Borrower is being treated the same as
similarly situated borrowers of such Lender Party, the Borrower shall from time
to time pay to such Lender Party, within 15 days after request by such Lender
Party, such additional amounts as may be specified by such Lender Party as
sufficient to compensate such Lender Party or company for such reduction in
return, to the extent such Lender Party or such company determines such
reduction to be attributable to the existence, issuance or maintenance of such
Loans, Letters of Credit or obligations for the account of the Borrower.
SECTION 2.13. TAXES. 2.13.1. If the Borrower is required by Applicable
Law to make any deduction or withholding in respect of any Taxes (other than
Excluded Taxes) from any amount payable under any Loan Document to or for the
account of any Lender Party, the Borrower shall pay to or for the account of
such Lender Party, on the date such amount is payable, such additional amounts
as such Lender Party reasonably determines may be necessary so that the net
amounts received by it or for its account, in the aggregate, after all
applicable deductions or withholdings, shall equal the amount that such Lender
Party would have been entitled to receive if no deductions or withholdings were
made. "EXCLUDED TAXES" means, with respect to any payment to any Lender Party,
(a) any taxes imposed on or measured by the overall net income (including a
franchise tax based on net income) of such Lender Party or its Agent's Office or
Applicable Lending Office by the jurisdiction in which it is incorporated,
maintains its principal executive office or in which such Agent's Office or
Applicable Lending Office is located, and (b) "Excluded Taxes" arising under
Section 2.13.3. If the Borrower shall deduct or withhold any Taxes from any
payments under the Loan Documents, it shall provide to the relevant Lender Party
(i) a statement setting forth the amount and type of Taxes so deducted or
withheld, the applicable rate and any other information or documentation that
such Lender Party may reasonably request and (ii) as promptly as possible after
payment is made to the relevant
31.
Governmental Authority, a certified copy of any original official receipt
received by the Borrower showing payment.
2.13.2. If any Lender Party is required by law to make any payment on
account of Taxes (other than Excluded Taxes) on or in relation to any sum
received or receivable by it under any Loan Document, or any liability for Taxes
(other than Excluded Taxes) in respect of any such payment is imposed, levied or
assessed against such Lender Party, then the Borrower shall pay when due such
additional amounts as such Lender Party reasonably determines to be necessary so
that the amount received by it, less any such Taxes paid, imposed, levied or
assessed, including any Taxes (other than Excluded Taxes) imposed on such
additional amounts, shall equal the amount that such Lender Party would have
been entitled to retain in the absence of the payment, imposition, levy or
assessment of such Taxes.
2.13.3. If any Lender Party is not organized and existing under
the laws of the United States of America or any political subdivision thereof
or therein (a "FOREIGN LENDER PARTY"), to the extent entitled to do so under
Applicable Law, such Lender Party shall furnish to the Borrower, on the
Closing Date (or on the date on which such Foreign Lender Party first becomes
a Lender Party pursuant to Section 9.3.) a duly executed certificate to the
effect that such Foreign Lender Party is entitled to receive all amounts
payable under the Loan Documents without deduction or withholding (or at a
reduced rate of deduction or withholding) on account of Taxes imposed by the
United States (A) pursuant to the terms of an applicable tax treaty in effect
with the United States of America (in which case such certificate shall be
accompanied by two executed copies of IRS Form 1001), or (B) under Code
Section 1441(c) (in which case such certificate shall be accompanied by two
executed copies of IRS Form 4224) (such forms being the "PRESCRIBED FORMS").
If requested by the Borrower from time to time after the Closing Date (upon
the obsolescence of any previously delivered form or otherwise), a Foreign
Lender Party shall, to the extent entitled thereto under Applicable Law,
provide to the Borrower new Prescribed Forms, in each case duly executed and
completed by such Foreign Lender Party. If a Foreign Lender Party does not
furnish Prescribed Forms establishing a complete exemption from deduction and
withholding on account of Taxes imposed by the United States of America, any
deductions or withholdings required to be made by the Borrower under
Applicable Law on account of Taxes imposed by the United States of America
(including deductions or withholdings on account of such Taxes at the rate
shown in such Prescribed Forms), and any payments required to be made by, and
any liability imposed, levied or assessed against, such Lender Party on
account of such Taxes, shall constitute "EXCLUDED TAXES," PROVIDED that any
such deductions, withholdings, payments or liabilities shall not constitute
"Excluded Taxes" to the extent they are attributable to a Regulatory Change
occurring after the date hereof (or, in the case of any Person who becomes a
Lender Party after the date hereof pursuant to Section 9.3., the date on
which such Person becomes a Lender Party) if such Lender Party has furnished
to the Borrower all Prescribed Forms required to be furnished by this Section
2.13.3.
SECTION 2.14. COMPENSATION FOR FUNDING LOSSES. The Borrower shall pay to
any Lender, within 15 days after demand by such Lender, such amount or amounts
as such Lender determines is or are necessary to compensate it for any loss,
cost, expense or liabilities actually incurred (including any loss, cost,
expense or liability incurred by reason of the liquidation or
32.
redeployment of deposits but excluding loss of future margin) by it as a
result of (a) any payment, prepayment or conversion of any LIBOR Rate Loan
for any reason (including by reason of a Mandatory Prepayment, an
acceleration pursuant to Section 7.2. or by operation of Section 2.11.) on a
date other than the last day of an Interest Period applicable to such LIBOR
Rate Loan, or (b) any LIBOR Rate Loan for any reason not being made (other
than a wrongful failure to fund by such Lender), converted or continued, or
any payment of principal of or interest thereon not being made, on the date
therefor determined in accordance with the applicable provisions of this
Agreement.
SECTION 2.15. CERTIFICATES REGARDING YIELD PROTECTION, ETC. 2.15.1. Any
request by any Lender for payment of additional amounts pursuant to Sections
2.12., 2.13. and 2.14. shall be submitted through the Agent and shall be
accompanied by a certificate of such Lender Party setting forth the basis and
amount of such request, including a description or explanation in reasonable
detail of how such amount was determined. In determining the amount of such
payment, such Lender Party may use such reasonable attribution or averaging
methods as it deems appropriate and practical.
2.15.2. Before any Lender Party requests compensation under Section
2.12. or 2.13., such Lender Party shall designate a different Applicable Lending
Office if such designation (a) will avoid the need for such request or reduce
the amount payable under such Section and (b) will not cause the imposition on
such Lender Party of any additional costs or legal, regulatory or administrative
burdens deemed by such Lender Party to be material or otherwise be deemed by
such Lender Party in its discretion to be disadvantageous to it.
SECTION 2.16. APPLICABLE LENDING OFFICE; DISCRETION OF LENDERS AS TO
MANNER OF FUNDING. Each Lender may make, carry or transfer LIBOR Rate Loans at,
to, or for the account of an Affiliate of the Lender, PROVIDED that such Lender
shall not be entitled to receive any greater amount under Section 2.12. or 2.13.
as a result of the transfer of any such Loan than such Lender would be entitled
to immediately prior thereto unless (a) such transfer occurred at a time when
circumstances giving rise to the claim for such greater amount did not exist or
(b) such claim would have arisen even if such transfer had not occurred.
Notwithstanding any other provision of this Agreement, each Lender Party shall
be entitled to fund and maintain its funding of all or any part of its LIBOR
Rate Loans in any manner it sees fit, it being understood, HOWEVER, that for
purposes of this Agreement all determinations hereunder shall be made as if each
Lender Party had actually funded and maintained each LIBOR Rate Loan through the
purchase of deposits in the relevant interbank market having a maturity
corresponding to such Loan's Interest Period and bearing interest at the
applicable rate.
ARTICLE 3.
CONDITIONS TO LOANS
Section 3.1. CLOSING CONDITIONS. The occurrence of the Closing Date shall
be subject to satisfaction of the following conditions:
33.
3.1.1. CLOSING DATE. The Closing Date shall occur on or before
December 31, 1997, but in no event later than January 15, 1998.
3.1.2. CERTAIN DOCUMENTS. The Agent shall have received the
documents listed on Schedule 3.1.2., all of which shall be duly executed and in
form and substance satisfactory to the Agent.
3.1.3. FEES AND EXPENSES PAID. The Borrower shall have paid (a) all
Fees due on or before the Closing Date and (b) all expenses for which the
Borrower shall have been billed at least one Business Day before the Closing
Date.
3.1.4. SATISFACTION OF CERTAIN CONDITIONS. The conditions set forth
in Sections 3.2.3., 3.2.4. and 3.2.5. shall be satisfied on and as of the
Closing Date as if such date were a Funding Date.
3.1.5. ABSENCE OF LITIGATION EVENTS. There shall not have been
issued any injunction, order or decree that prohibits or limits any of the
transactions contemplated by the Loan Documents and there shall not be any
action, suit, proceeding or investigation pending or, to the best knowledge of
the Borrower, currently threatened against the Borrower, any of its Affiliates
or any Lender Party that (i) draws into question the validity, legality or
enforceability of any Loan Document or to consummate the transactions
contemplated thereby or (ii) could reasonably be expected to result, either
individually or in the aggregate, in any Material Adverse Change, except as set
forth in Schedule 4.6.
3.1.6. SATISFACTORY INSURANCE. Borrower shall have delivered to the
Agent and the Syndication Agent evidence of all insurance coverage on Borrower's
property, in form and substance and amounts, covering risks and issued by
companies rated A- or better by A.M. Best Co., and where required by Agent or
this Agreement, with loss payable endorsements in favor of Agent, as agent for
the Lender Parties.
3.1.7. SATISFACTORY MANAGEMENT PLAN AND PROJECTIONS. Borrower shall
have delivered to the Agent and the Syndication Agent its Management Plan and
Projections in form and substance satisfactory to the Agent and the Syndication
Agent.
3.1.8. SATISFACTORY AUDITOR'S LETTERS. Borrower shall have delivered
to the Agent and the Syndication Agent copies of all final letters and other
written communications received from Ernst & Young during the preceding twelve
months.
3.1.9. INDEBTEDNESS. As of the Closing Date, Borrower shall have no
Debt that is not Permitted Debt.
3.1.10. SEC FILINGS. Borrower shall have delivered to the Agent and
the Syndication Agent copies of all currently filed documents relating to
Informix with the SEC (including restated Forms 10-K/A and 10-Q), and the
provisional information previously provided to the Agent, the Syndication Agent
and the Arrangers shall not be Materially different from such restated Forms
10-K and 10-Q.
34.
3.1.11. DUE DILIGENCE. The Agent and the Syndication Agent shall
have completed due diligence to their satisfaction, including but not limited to
examination of the Collateral by the commercial finance examiners of the Agent
or a qualified examination firm satisfactory to the Agent and the Syndication
Agent.
3.1.12. SALE OF SANTA XXXXX REAL PROPERTY. Borrower shall have
delivered to the Agent and the Syndication Agent, evidence of the sale of the
Santa Xxxxx Real Property and receipt by Informix of a minimum of $50,000,000
net proceeds from such sale.
3.1.13. EQUITY INVESTMENT. Informix shall have issued $50,000,000 of
convertible preferred equity securities to CS First Boston and other investors
and Informix shall have received minimum net proceeds of $48,000,000 in
connection therewith.
3.1.14. ABSENCE OF MARKET DISRUPTION OR CHANGES IN GOVERNMENTAL
REGULATIONS. There shall not have occurred any disruption or material adverse
change in the financial or capital markets in general that would have a material
adverse effect on the market for loan syndications, or in the technology sector
in particular, or in the markets for equity securities in particular adversely
affecting the syndication, nor shall any material changes have occurred in
regulations or policies of any Governmental Authority affecting the Borrower,
the Agent, the Syndication Agent, Arrangers or Lenders involved in this
transaction occur prior to the Closing Date.
3.1.15. GENERAL. All other documents and legal matters in connection
with the transactions contemplated by this Agreement shall have been delivered
or executed or recorded in form and substance satisfactory to the Agent and the
Agent shall have received all such counterpart originals or certified copies
thereof as Agent may request. Without limiting the generality of the foregoing,
the Agent shall have received UCC-1 financing statements reflecting the Agent's
security interest in the collateral described in the Security and Pledge
Agreement duly executed and in proper form for filing in the office of the
California Secretary of State and all other filing offices deemed necessary or
appropriate by the Agent, reflecting that the Agent's security interest holds
first priority, subject only to exceptions consented to by all Lenders.
3.1.16. COMPLIANCE WITH MANAGEMENT PLAN AND PROJECTIONS. No Material
Adverse Change in the ability of the Company and its Subsidiaries or other
Affiliates to (i) operate in accordance with the Management Plan and Projections
furnished pursuant to Section 3.1.7. or any other financial projections
furnished to the Agent and the Syndication Agent, or (ii) comply with the
covenants contained in Section 6.5.
3.1.17. NO MATERIAL ADVERSE CHANGE. No Material Adverse Change shall
have occurred since September 28, 1997 other than conditions and events
previously disclosed to and consented to by the Agent, the Syndication Agent and
the Arrangers, PROVIDED that for purposes of determining whether a Material
Adverse Change has occurred, any changes, modifications or developments relating
to any such previously disclosed conditions and events that occur subsequent to
September 28, 1997 shall be deemed to not have been a part of any such prior
disclosure.
35.
3.1.18. NO MISSTATEMENTS. No information or materials furnished to
the Lender Parties by or on behalf of the Borrower or any Subsidiary, at the
time of delivery thereof, was untrue or omitted any material fact or information
necessary in order to make any statements made not misleading in light of the
circumstances under which they were made.
SECTION 3.2. CONDITIONS PRECEDENT TO REVOLVING LOANS AND LETTERS OF
CREDIT. The obligation of the Lenders to make any Loan or the L/C Issuer to
issue any Letter of Credit on any Funding Date shall be subject to the following
conditions precedent:
3.2.1. OCCURRENCE OF CLOSING DATE. The conditions precedent set
forth in Section 3.1. shall have been satisfied or waived in writing by the
Agent.
3.2.2. NOTICE OF BORROWING OR ISSUANCE. The Borrower shall have
delivered to the Agent after the time the conditions set forth in Section 3.1.
shall have been satisfied or waived and otherwise in accordance with the
applicable provisions of this Agreement, a Notice of Borrowing (or telephonic
notice in lieu thereof), in the case of a Loan, or a Notice of Issuance and
Letter of Credit Application, in the case of a Letter of Credit.
3.2.3. REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of the Borrower contained in the Loan Documents shall be true and
correct in all material respects on and as of the Funding Date as though made on
and as of that date (except to the extent that such representations and
warranties expressly were made only as of a specific date).
3.2.4. NO DEFAULT. No Default or Event of Default shall exist or
result from the making of the Loan or the issuance of the Letter of Credit.
3.2.5. NO MATERIAL ADVERSE CHANGE. No Material Adverse Change shall
have occurred since the date of the financial statements referred to in
Section 4.4.1., PROVIDED that for purposes of determining whether a Material
Adverse Change has occurred, any changes, modifications or developments relating
to any previously disclosed conditions and events that occur subsequent to such
date shall be deemed to not have been a part of any such prior disclosure.
3.2.6. QUICK RATIO.
As of the last date of the fiscal month ending not fewer than 15 days
prior to the date of the requested Borrowing, the Quick Ratio shall not have
been less than 1.25 to 1.00 and there shall have been no material adverse
changes to the Borrower's finances since the date upon which such calculation is
based.
3.2.7. SATISFACTION OF CONDITIONS. Each borrowing of a Loan and
Letter of Credit issuance shall constitute a representation and warranty by the
Borrower as of the Funding Date that the conditions contained in Sections 3.2.3.
through 3.2.6. have been satisfied.
36.
3.2.8. NO VIOLATION OF APPLICABLE LAW. No Lender shall be prohibited
by any Applicable Law from extending the credit requested in such Notice of
Borrowing pr Notice of Issuance.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender Parties as follows:
SECTION 4.1. ORGANIZATION, POWERS AND GOOD STANDING. Each of Informix,
the Borrower and each of its Material Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, as shown as of the date hereof on Schedule 4.1.,
and has all requisite corporate power and authority and the legal right to own
and operate its properties, to carry on its business as heretofore conducted and
as proposed to be conducted, to enter into the Loan Documents to which it is a
party and to carry out the transactions contemplated thereby. Each of Informix,
the Borrower and each of its Material Subsidiaries possesses all Governmental
Approvals, in full force and effect, free from unduly burdensome restrictions,
that are necessary for the ownership, maintenance and operation of its
properties and conduct of its business as now conducted and proposed to be
conducted, and is not in Material violation thereof. Each of Informix, the
Borrower and each of its Material Subsidiaries is duly qualified to do business
and in good standing in each jurisdiction where any failure to be so qualified,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
SECTION 4.2. AUTHORIZATION, BINDING EFFECT, NO CONFLICT, ETC.
4.2.1. AUTHORIZATION, BINDING EFFECT, ETC. The execution, delivery
and performance by the Borrower of each Loan Document and each other Transaction
Document have been duly authorized by all necessary corporate or other action on
the part of the Borrower. Each such Loan Document has been duly executed and
delivered by the Borrower and is the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms, except as
enforcement may be limited by equitable principles and by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors'
rights generally.
4.2.2. NO CONFLICT. The execution, delivery and performance by the
Borrower of each Loan Document and the consummation of the transactions
contemplated thereby, do not and will not (a) violate any provision of the
charter or other organizational documents of the Borrower, (b) except for
consents that have been obtained and are in full force and effect, conflict
with, result in a breach of, or constitute (or, with the giving of notice or
lapse of time or both, would constitute) a default under, or require the
approval or consent of the Person pursuant to, any material Contractual
Obligation of the Borrower, or violate any Applicable Law binding on the
Borrower, except where such violation, conflict, breach, or default would not,
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect and would not reasonably be expected to subject any Lender Party
to any liability, or (c) result in the creation or
37.
imposition of any Lien upon any asset of the Borrower, except for Liens in favor
of the Agent under the Collateral Documents.
4.2.3. GOVERNMENTAL APPROVALS. Except for filings and recordings in
connection with the perfection of Liens created by the Collateral Documents
listed on Schedule 3.1.2., no Governmental Approval is or will be required in
connection with the execution, delivery and performance by the Borrower of any
Loan Document to which it is party or the transactions contemplated thereby or
to ensure the legality, validity or enforceability thereof, except where the
failure to obtain such Governmental Approval would not reasonably be expected
to, individually and in the aggregate, have a Material Adverse Effect and would
not reasonably be expected to subject any Lender Party to any liability.
SECTION 4.3. SUBSIDIARIES; INVESTMENTS .
4.3.1. SUBSIDIARIES. Each Subsidiary of the Borrower, the authorized
and issued Capital Stock of each such Subsidiary and the record and beneficial
owner of such Capital Stock are identified in Schedule 4.3., as amended from
time to time. All of the outstanding shares of Capital Stock of each of the
Subsidiaries of the Borrower have been duly authorized and validly issued and
are fully paid and nonassessable. Except as disclosed on Schedule 4.3., as
amended from time to time, there are not outstanding any securities convertible
into or exchangeable for shares of Capital Stock of any of the Subsidiaries of
the Borrower, or any options, warrants or other rights to purchase any such
Capital Stock, or any commitments of any kind for the issuance of additional
shares of such Capital Stock or any such convertible or exchangeable securities
or options, warrants or rights to purchase such Capital Stock. Except for
directors qualifying shares or similar arrangements or as disclosed on
Schedule 4.3., neither the Borrower nor any Subsidiary thereof is a party to any
agreement with respect to the issuance, voting or sale of issued or unissued
shares of Capital Stock of any Subsidiary of the Borrower.
4.3.2. BORROWER CAPITAL STOCK. The authorized and outstanding
Capital Stock of the Borrower is as set forth on Schedule 4.3. All outstanding
shares of such Capital Stock are duly authorized and validly issued and are
fully paid and nonassessable, and Borrower's ownership interest in its
Subsidiaries is free and clear of all Liens except for Liens in favor of the
Agent.
SECTION 4.4. FINANCIAL INFORMATION.
4.4.1. The consolidated balance sheets of Informix and its
consolidated subsidiaries (including the Borrower) as of December 31, 1996 and
the consolidated statements of income, stockholders' equity and cash flow of
Informix and its consolidated subsidiaries (including the Borrower) for the
Fiscal Years then ended, certified by Informix's independent certified public
accountants, copies of which have been filed as part of the restated Form 10-K/A
and restated Form 10-Q filed with the SEC and delivered to the Lender Parties,
were prepared in accordance with GAAP consistently applied and fairly present
the consolidated financial position of Informix and its consolidated
subsidiaries (including the Borrower), as of the respective dates thereof and
the results of operations and cash flow of Informix and its consolidated
subsidiaries (including the Borrower) for the periods then ended. None of
Informix, the Borrower or any
38.
Subsidiary on such dates had any material Contingent Obligations, liabilities
for Taxes or long-term leases, forward or long-term commitments or unrealized
losses from any unfavorable commitments that are not reflected in the foregoing
statements or in the notes thereto and that, individually or in the aggregate,
are Material.
4.4.2. The unaudited consolidated balance of Informix and its
consolidated subsidiaries (including the Borrower) as of September 28, 1997 and
the related consolidated statements of income, stockholders' equity and cash
flow for the periods then ended, certified by the Chief Financial Officer of the
Borrower, copies of which have been delivered to the Lender Parties, were
prepared in accordance with GAAP consistently applied (except to the extent
noted therein) and fairly present the consolidated financial position of
Informix and its consolidated subsidiaries (including the Borrower) as of such
date and the results of operations and cash flow for the periods covered
thereby, subject to the absence of footnotes and normal year-end audit
adjustments. None of Informix, the Borrower or any Subsidiary on such dates had
any material Contingent Obligations, liabilities for Taxes or long-term leases,
forward or long-term commitments or unrealized losses from any unfavorable
commitments that are not reflected in the foregoing statements or in the notes
thereto and that, individually or in the aggregate, are Material.
4.4.3. The projected consolidated statements of income and cash flow
of Informix and its consolidated subsidiaries (including the Borrower) for the
period from October 1, 1997 to and including December 31, 1998 and for the
period from January 1, 1999 to and including December 31, 1999, and the
projected annual consolidated balance of Informix and its consolidated
subsidiaries (including the Borrower) as of the end of each Fiscal Year through
December 31, 1999, copies of which have been furnished to the Lender Parties,
were prepared by or under the supervision of the Chief Financial Officer of the
Borrower, are complete and have been prepared on the basis of reasonable
assumptions and in good faith utilizing historical financial information that
was prepared in accordance with GAAP. Nothing herein shall be deemed to be a
representation that any projections will, in fact, be attained.
SECTION 4.5. NO MATERIAL ADVERSE CHANGES; SOLVENCY. Since the date of the
Financial Statements referred to in Section 4.4.1., there has been no Material
Adverse Change. Each of Informix, the Borrower and its Subsidiaries is and will
be Solvent after giving effect to any Loans then being requested.
SECTION 4.6. LITIGATION. Except as disclosed in Schedule 4.6., there are
no actions, suits or proceedings pending or, to the best knowledge of the
Borrower, threatened against or affecting Informix, the Borrower, any of its
Subsidiaries or any of its or their properties before any Governmental Authority
(a) in which there is a reasonable possibility of an adverse determination that
could result in a Material liability or could have a Material Adverse Effect or
(b) that in any manner draws into question the validity, legality or
enforceability of any Loan Document or any transaction contemplated thereby.
SECTION 4.7. AGREEMENTS; APPLICABLE LAW. None of Informix, the Borrower
or its Subsidiaries is in violation of any Applicable Law, or in default under
its charter or bylaws or
39.
any of its Contractual Obligations, except where such violation or default could
not individually or in the aggregate reasonably be expected to have a Material
Adverse Effect. None of Informix, the Borrower or its Subsidiaries a party to
or bound by any unduly burdensome material Contractual Obligation that,
individually or in the aggregate, has a Material Adverse Effect.
SECTION 4.8. GOVERNMENTAL REGULATION. None of Informix, the Borrower or
its Subsidiaries is (a) an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or a company
controlled by such a company, or (b) subject to regulation under any Federal or
state, statute or regulation limiting its ability to incur Debt for money
borrowed (other than the Margin Regulations).
SECTION 4.9. MARGIN REGULATIONS. None of Informix, the Borrower or its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purposes of purchasing or carrying
Margin Stock. The aggregate value of all Margin Stock held by the Borrower
constitutes less than 25% of the value, as determined in accordance with the
Margin Regulations, of all aggregate assets of the Borrower and its
Subsidiaries.
SECTION 4.10. EMPLOYEE BENEFIT PLANS.
0.0.11. None of the Borrower or its ERISA Affiliates sponsors,
maintains or contributes to, or has an obligation to contribute to, or, within
the five years prior to the Closing Date, maintained, contributed to or was
required to contribute to, any "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA.
4.10.2. There exists no Multiemployer Plan. The Borrower and each of
the ERISA Affiliates is in compliance in all Material respects with all
Applicable Laws, including any applicable provisions of ERISA and the Code, with
respect to all Plans. There have been no Prohibited Transactions with respect
to any Plan that are reasonably likely to result in any Material liability of
the Borrower or any ERISA Affiliate. The Borrower and the ERISA Affiliates have
not had asserted and do not expect to have asserted against them any Material
penalty, interest or excise tax under Sections 4971, 4972, 4975, 4976, 4977,
4979, 4980 or 4980B of the Code or Sections 502(c)(1) or 502(i) of ERISA. Each
Plan covering employees of any of the Borrower or any of the ERISA Affiliates is
able to pay benefits thereunder when due. There is no claim pending or, to the
best knowledge of the Borrower, threatened, against or involving any Plan by any
Governmental Authority or other Plan, other than ordinary claims for benefits
pursuant to terms of any Plan and other claims that are not Material.
SECTION 4.11. TITLE TO PROPERTY. The Borrower has good title to or valid
and subsisting leasehold interests in all of its property reflected in its books
and records as being owned or leased by it. No such property is subject to any
Lien, other than Permitted Liens.
SECTION 4.12. INTELLECTUAL PROPERTY, ETC. Each of Informix, the Borrower
and its Subsidiaries owns, or holds valid licenses in and to, all Intellectual
Property Rights that are material to the conduct of its business as heretofore
operated and as proposed to be conducted. None of Informix, the Borrower or its
Subsidiaries has infringed, or been charged or, to the best knowledge of the
Borrower, threatened to be charged with any infringement of, any unexpired
40.
Intellectual Property Right of any Person, except where the effect thereof would
not, individually or in the aggregate, have a Material Adverse Effect. None of
Informix, the Borrower or its Subsidiaries is bound by or a party to any
options, licenses or agreements of any kind with respect to the Intellectual
Property Rights of any other Person except for arrangements that, if terminated,
would not be reasonably likely to result in a Material Adverse Effect. None of
Informix, the Borrower or its Subsidiaries is aware that any of its employees is
obligated under any Contractual Obligation (including licenses, covenants or
commitments of any nature), or subject to any judgment, decree (except as
imposed by laws of general application) or order (except as imposed by laws of
general application) of any Governmental Authority, that would interfere with
the use of his or her best efforts to promote the interests of the Borrower or
that would conflict with its business as proposed to be and as currently
conducted. To the best knowledge of the Borrower, there is no material
violation by any Person of any right of Informix, the Borrower and its
Subsidiaries with respect to any Intellectual Property Rights owned or used by
it.
SECTION 4.13. ENVIRONMENTAL CONDITION. Except as set forth on
Schedule 4.13.:
4.13.1. There exists no order, judgment or decree, and to the best
knowledge of the Borrower, there is not pending or threatened, any action, suit,
proceeding or investigation relating to any actual or alleged liability arising
out of the presence or suspected presence of Hazardous Material, any actual or
alleged violation of Environmental Requirements or any actual or alleged
liability for Environmental Damages in connection with any Real Property or the
business or operations of Informix, the Borrower or its Subsidiaries that has
had, or as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, a Material Adverse
Effect nor, to the best knowledge of the Borrower, does there exist any basis
for such action, suit, proceeding or investigation being instituted or filed.
SECTION 4.14. ABSENCE OF CERTAIN RESTRICTIONS. Except as set forth in
Schedule 4.14., none of Informix, the Borrower or its Subsidiaries is subject to
any Contractual Obligation that restricts or limits the ability of Informix or
any such Subsidiary to (a) make Restricted Affiliate Payments to the Borrower,
(b) pay Debt owed to the Borrower or any Subsidiary thereof, (c) make any loans
or advances to the Borrower (except as provided in Section 5.11.) or (d) except
as provided in Contractual Obligations respecting the specific assets subject to
Permitted Liens, transfer any of its property to the Borrower.
SECTION 4.15. LABOR MATTERS. There are no material strikes or other labor
disputes or grievances pending or, to the best knowledge of the Borrower,
threatened against Informix, the Borrower or its Subsidiaries. Except as set
forth in Schedule 4.15., there are no collective bargaining agreements to which
Informix, the Borrower or its Subsidiaries is a party. Each of Informix, the
Borrower and its Subsidiaries has complied in all material respects with the
requirements of the Worker Adjustment and Retraining Notification Act, 29 U.S.C.
Section 2101 ET SEQ. (the "WARN ACT"). No claim under the WARN Act is pending
or, to the best knowledge of the Borrower, threatened against Informix, the
Borrower or any Subsidiary thereof nor is there any reasonable basis to
anticipate any such claim, except where the effect thereof, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
41.
SECTION 4.16. TAX RETURNS. All tax returns required to be filed by
Informix, the Borrower and each of its Subsidiaries have been timely filed with
the appropriate tax authorities, and all taxes, assessments, fees and other
governmental charges payable pursuant to such returns or otherwise have been
paid or adequate reserves have been provided for payment thereof. Borrower has
no knowledge of any pending assessments or adjustments of its income tax payable
with respect to any year, except for amounts which are contested in good faith
and for which the Borrower has reserved under GAAP.
SECTION 4.17. DISCLOSURE. The information in each document, certificate
or written statement (other than information referred to in Section 4.4.)
furnished to the Lender Parties by or on behalf of Informix, the Borrower or any
Subsidiary with respect to the business, assets, prospects, results of operation
or financial condition of Informix, the Borrower or any Subsidiary for use in
connection with the transactions contemplated by this Agreement at the time of
delivery thereof, was true and correct in all Material respects and did not
omit, when considered as a whole, any material fact necessary in order to make
the statements made not misleading, in light of the circumstances under which
they were made, PROVIDED that to the extent any such information was based upon
information provided by third parties, or constitutes a forecast or projection,
the Borrower represents only that it acted in good faith and utilized reasonable
assumptions in its preparation or review of, or reliance upon, such information.
There is no fact known to the Borrower (other than matters of a general economic
nature) that has had or could reasonably be expected to have a Material Adverse
Effect and that has not been disclosed herein or in such other documents,
certificates or statements.
ARTICLE 5.
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments is in effect or any
Obligations remain unpaid or have not been performed in full:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER REPORTS. The Borrower shall
deliver to the Lender Parties:
5.1.1. as soon as practicable and in any event within 90 days after
the end of each Fiscal Year, the consolidated (and consolidating) balance sheet
of Informix and its consolidated subsidiaries (including the Borrower) as of the
end of such year and the related consolidated (and consolidating) statements of
income, stockholders' equity and cash flow of Informix and its consolidated
subsidiaries (including the Borrower) for such Fiscal Year, setting forth in
each case in comparative form the consolidated (and consolidating) figures for
the previous Fiscal Year, all in reasonable detail and (i) in the case of such
consolidated (and consolidating) financial statements, accompanied by an
unqualified report thereon of Ernst & Young or other independent certified
public accountants of recognized national standing selected by Informix and
reasonably satisfactory to the Required Lenders, which report shall state that
such consolidated financial statements fairly present the consolidated financial
position of Informix and its consolidated subsidiaries (including the Borrower)
as of the date indicated and their
42.
results of operations and cash flows for the periods indicated are in conformity
with GAAP (except as otherwise stated therein) and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards and (ii) in the
case of such consolidating financial statements, certified by the chief
financial officer of the Borrower as being fairly stated in all material
respects when considered in relation to the audited consolidated financial
statements of Informix and its consolidated subsidiaries (including the
Borrower);
5.1.2. as soon as practicable and in any event within 45 days after
the end of each Fiscal Quarter a consolidated (and consolidating) balance sheet
of Informix and its consolidated subsidiaries (including the Borrower) as of the
end of such fiscal quarter and the related consolidated (and consolidating)
statements of income, stockholders' equity and cash flow for such fiscal quarter
and the portion of the Fiscal Year ended at the end of such fiscal quarter,
setting forth in each case in comparative form the consolidated figures for the
corresponding periods of the prior Fiscal Year, all in reasonable detail and
certified by the Borrower's chief financial officer as fairly presenting the
consolidated financial condition of Informix and its consolidated subsidiaries
(including the Borrower) as of the dates indicated, and their consolidated
results of operations and cash flows for the periods indicated, in conformity
with GAAP, subject to normal year-end adjustments and the absence of footnotes;
5.1.3. together with each delivery of financial statements pursuant
to Sections 5.1.1. and 5.1.2. above, a certificate of the chief financial
officer of the Borrower substantially in the form of Exhibit F-6 (a "COMPLIANCE
CERTIFICATE"), duly completed and setting forth the calculations required to
establish compliance with Section 6.5. on the date of such financial statements;
5.1.4. as soon as practicable and in any event within fifteen days
after the end of each fiscal month, a Borrowing Base Certificate, in
substantially the form of EXHIBIT F-5 (a "BORROWING BASE CERTIFICATE", setting
forth Borrower's calculation of the Borrowing Base as of the end of such fiscal
month;
5.1.5. as soon as practicable and in any event within fifteen days
after the end of each fiscal month, a consolidated (and consolidating) balance
sheet of Informix and its consolidated subsidiaries (including the Borrower) as
of the end of such month and the related consolidated (and consolidating)
statements of income, stockholders' equity and cash flow for such month and the
portion of the Fiscal Year ended at the end of such month, setting forth in each
case in comparative form the consolidated figures for the corresponding periods
of the prior Fiscal Year, all in reasonable detail and certified by the
Borrower's chief financial officer as fairly presenting the consolidated
financial condition of Informix and its consolidated subsidiaries (including the
Borrower) as of the dates indicated, and their consolidated results of
operations and cash flows for the periods indicated, in conformity with GAAP,
subject to normal year-end adjustments and the absence of footnotes.
5.1.6. within three Business Days after any Senior Officer of the
Borrower becomes aware of the occurrence of any Default or Event of Default,
written or telephonic notice
43.
of the nature of such Default or Event of Default, and within seven days
thereafter, a certificate of a Senior Officer of the Borrower setting forth the
details thereof and the action that the Borrower is taking or proposes to take
with respect thereto;
5.1.7. promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available by the Borrower to its security holders, all registration statements
(other than the exhibits thereto) and annual, quarterly or monthly reports, if
any, filed by Informix or the Borrower with the SEC and all press releases by
Informix, the Borrower or any Subsidiary thereof concerning material
developments in the business of Informix, the Borrower or any such Subsidiary;
5.1.8. within three days after the Borrower becomes aware of the
occurrence of (a) any Reportable Event in connection with any Plan, or (b) any
Prohibited Transaction in connection with any Plan (or any trust created
thereunder), notice providing reasonable details about such Reportable Event or
Prohibited Transaction;
5.1.9. within three days after the Borrower obtains knowledge of the
threat or commencement of litigation or proceedings affecting Informix, the
Borrower or any Subsidiary, or of any material development in any pending or
future litigation, (a) that involves alleged liability in excess of $5,000,000
(in the aggregate), (b) in which injunctive or similar relief is sought that, if
obtained, could have a Material Adverse Effect or (c) that questions the
validity or enforceability of any Loan Document, notice providing reasonable
details about the threat or commencement of such litigation or about such
material development;
5.1.10. within three days after receipt thereof, copies of all final
reports or letters submitted to Informix or the Borrower by their independent
certified public accountants in connection with each audit of the financial
statements of Informix, the Borrower or its consolidated subsidiaries made by
such accountants, including any management report, which reports Informix or the
Borrower agrees to obtain in connection with each of its annual audits;
5.1.11. within 30 days after the end of each Fiscal Year of the
Borrower, a budget for the next succeeding Fiscal Year of the consolidated
balance sheet and the consolidated results of operations and cash flow of
Informix and its consolidated subsidiaries (including the Borrower), together
with (a) an outline of the major assumptions in reasonable detail upon which the
budget is based, and (b) a calculation in reasonable detail evidencing
compliance with all covenants set forth herein on the basis of, and after giving
effect to, such forecast;
5.1.12. within three days after the receipt thereof by any Senior
Officer of the Borrower, a copy of any notice, summons, citation or written
communication concerning any actual, alleged, suspected or threatened violation
of Environmental Requirements, or liability of Informix, the Borrower or any of
its Subsidiaries for Environmental Damages;
5.1.13. within five days after the availability thereof, copies of
all amendments to the charter, bylaws or other organizational documents of
Informix, the Borrower or any of its Subsidiaries;
44.
5.1.14. from time to time, such additional information regarding
Informix, the Borrower or its Subsidiaries or its business, assets, liabilities,
prospects, results of operation or financial condition as any Lender Party may
reasonably request.
SECTION 5.2. RECORDS AND INSPECTION. The Borrower shall, and shall cause
each of its Subsidiaries to, maintain adequate books, records and accounts as
may be required or necessary to permit the preparation of consolidated financial
statements in accordance with sound business practices and GAAP. The Borrower
shall, and shall cause each of its Subsidiaries to, permit the Agent, the
Lenders and such Persons as the Agent may designate, at reasonable times upon
reasonable notice and as often as may be reasonably requested, under reasonable
circumstances, to (a) visit and inspect any of its properties, (b) inspect and
copy its books and records, and (c) discuss with its officers and employees, its
investment bankers and its independent accountants, its business, assets,
liabilities, prospects, results of operation or financial condition.
SECTION 0.1. AUDITS OF THE COLLATERAL. The Borrower shall, upon the
request of the Agent, cause auditors selected and engaged by the Agent to
perform an annual audit (or, if an Event of Default then exists, additional
audits) in form and substance reasonably satisfactory to the Agent, of the
Collateral.
5.3.1. The Borrower shall permit, and shall cause each of its
Subsidiaries to permit, the Agent or its designee to perform such additional
audits of the Collateral as the Agent may reasonably request.
SECTION 5.4. CORPORATE EXISTENCE, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its corporate existence and all Material rights and franchises,
PROVIDED, HOWEVER, that the corporate existence of any Subsidiary of the
Borrower may be terminated (a) as contemplated and permitted by Section 6.6. or
(b) if such termination is determined by the Board of Directors of the Borrower
to be in the best interest of the Borrower and is not disadvantageous in any
Material respect to the Lender Parties.
SECTION 5.5. PAYMENT OF TAXES. The Borrower shall, and shall cause each
of its Subsidiaries to, pay and discharge all Taxes imposed upon it or any of
its properties or in respect of any of its franchises, business, income or
property before any penalty shall be incurred with respect to such Taxes,
PROVIDED, HOWEVER, that, unless and until foreclosure, distraint, levy, sale or
similar proceedings shall have commenced, the Borrower and the Subsidiaries need
not pay or discharge any such Tax so long as the validity or amount thereof is
being contested in good faith and by appropriate proceedings and so long as any
reserves or other appropriate provisions as may be required by GAAP shall have
been made therefor.
SECTION 5.6. MAINTENANCE OF PROPERTIES. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain or cause to be maintained in good
repair, working order and condition (ordinary wear and tear excepted), all
properties and other assets useful or necessary to its business, and from time
to time the Borrower shall make or cause to be made all appropriate repairs,
renewals and replacements thereto.
45.
SECTION 5.7. MAINTENANCE OF INSURANCE.
5.7.1. The Borrower shall, and shall cause each of its Subsidiaries
to, maintain with insurance companies rated A- or better by A.M. BEST Co.
insurance in at least such amounts, of such character and against at least such
risks as is usually maintained by companies of established repute engaged in the
same or a similar business in the same general area. All liability insurance
policies of the Borrower and each domestic Subsidiary shall name the Agent as an
additional insured. Each insurance policy covering Collateral shall include
endorsements or stipulations providing that coverages will not be canceled or
diminished without at least 10 days' prior written notice to the Agent and
further providing, if available on commercially reasonable terms, that coverage
in favor of the Agent will not be impaired in any way by any act, omission or
default of the Borrower or any other Person. In connection with all policies of
insurance covering Collateral, the Borrower will cause the Agent to be named
loss payee and shall provide the Agent with such loss payable or other
endorsements as the Agent may reasonably require.
0.1.1. In addition to any requirements under the Collateral
Documents, (a) all property loss or damage insurance policies with respect to
any assets of the Borrower shall contain lender's loss payable endorsements in
favor of the Agent in form and substance satisfactory to it, which shall provide
that all insurance proceeds (i) in excess of $500,000 or (ii) payable after the
insurer has received written notice from the Agent that an Event of Default then
exists (until a contrary notice is received), shall be payable directly to the
Agent, (b) all insurance policies shall (i) provide that no cancellation,
reduction in amount or material adverse change in coverage thereof shall be
effective until at least 30 days after receipt by the Agent of written notice
thereof, (ii) insure the interests of the Lender Parties regardless of any
breach of or violation by the Borrower or any other Person of any warranties,
declarations or conditions contained therein, (iii) provide that the Lender
Parties shall have no obligation or liability for premiums, commissions,
assessments or calls in connection with such insurance or in connection with any
representation or warranty made by the Borrower or any Subsidiary thereof in
connection with obtaining of such insurance, and (c) all applicable insurance
policies shall contain such other provisions as are required under the relevant
Collateral Documents.
5.7.3. Thirty days prior to the expiration date of each insurance
policy maintained hereunder, the Borrower shall either (a) deliver to the Agent
either (i) if available, a certificate of insurance or (ii) a copy of the binder
for such renewal or (b) notify the Agent that such policy has not been renewed.
If a copy of a binder is delivered pursuant to clause (a)(i) hereof, then as
soon as it is available, but in any event not more than sixty (60) days after
the effective date of renewal of the policy, the Borrower shall deliver to the
Agent a certificate of insurance, certified to be true and correct by the
insurer named therein. If at any time after the Closing Date the Borrower or
any Subsidiary thereof obtains any new property loss or damage insurance policy
providing coverage in excess of $500,000, the Borrower shall, within 30 days
after such new policy is obtained, give notice to the Agent describing the new
insurance and provide to the Agent a copy of such policy, including endorsements
as required hereby, certified to be true and correct by the insurer named
therein.
46.
SECTION 5.8. CONDUCT OF BUSINESS. The Borrower shall, and shall cause
each of its Subsidiaries to, engage only in the businesses in which the Borrower
or such Subsidiary is engaged on the date hereof, except for other businesses
that are ancillary, incidental or necessary to its ongoing business as presently
conducted. The Borrower shall, and shall cause each of its Subsidiaries to,
conduct its business in compliance in all material respects with all Applicable
Law and all its Contractual Obligations.
SECTION 5.9. FUTURE INFORMATION. All data, certificates, reports,
statements, documents and other information required to be furnished to the
Lender Parties in connection with the Loan Documents shall, at the time the
information is furnished, not contain any untrue statement of a material
fact, shall be complete and correct in all material respects to the extent
necessary to give the Lender Parties sufficient and accurate knowledge of the
subject matter thereof, and shall not omit to state a material fact necessary
in order to make the statements contained therein not misleading in light of
the circumstances under which such information is furnished.
SECTION 5.10. ADDITIONAL COLLATERAL. Within 10 calendar days of the
creation or acquisition after the date hereof of any Subsidiary located in,
doing business in, or organized under the laws of, any jurisdiction other
than the United States of America or any political subdivision thereof, the
Borrower shall grant, or cause to be granted, a first priority Lien on the
maximum amount of issued and outstanding Capital Stock of such Subsidiary
that can be pledged without creating a deemed dividend (up to 65% of such
Capital Stock), pursuant to the Pledge and Security Agreement, in form and
substance satisfactory to the Agent. Upon the acquisition or lease by the
Borrower of any Material personal property asset that is not then subject to
a first priority Lien in favor of the Agent, the Borrower shall execute and
deliver, to the Agent a Collateral Document creating such a first priority
Lien, in form and substance satisfactory to the Agent. The Borrower at its
own expense, shall execute and deliver, or cause to be executed and
delivered, and thereafter cause to be registered, filed or recorded with the
appropriate Governmental Authority, any and all documents and instruments
deemed by the Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens and shall pay all Taxes and fees related to
such registration, filing or recording.
SECTION 5.11. SUBORDINATION OF INTERCOMPANY DEBT. The Borrower shall
cause all Intercompany Debt to be subordinated to the prior payment in full
in cash of the Obligations on terms of subordination satisfactory to the
Required Lenders; PROVIDED, HOWEVER, that as long as no Event of Default then
exists, the Borrower and its Subsidiaries may pay such Intercompany Debt in
the ordinary course of business.
SECTION 0.2. ENVIRONMENTAL COMPLIANCE. The Borrower shall comply, and
shall cause its Subsidiaries to comply, in all material respects with all
Environmental Requirements and shall not cause or permit to exist on any Real
Property any Hazardous Materials.
47.
ARTICLE 6.
NEGATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments is in effect or any
Obligations remain unpaid or have not been performed in full:
SECTION 6.1. LIENS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any asset of the Borrower or any Subsidiary
of the Borrower (including any indirect Subsidiary of the Borrower), whether now
owned or hereafter acquired, except, without duplication:
6.1.1. Liens securing the Obligations;
6.1.2. Existing Liens;
6.1.3. (a) Liens for taxes, assessments or charges of any
Governmental Authority for claims that are not Material and are not yet due or
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained in
accordance with of GAAP; (b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, bankers and other Liens imposed by law and
created in the ordinary course of business for amounts that are not Material and
are not yet due or are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP; (c) Liens incurred and deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security benefits or to secure
the performance (including by way of surety bonds or appeal bonds) of tenders,
bids, leases, contracts, statutory obligations or similar obligations or arising
as a result of progress payments under contracts, in each case in the ordinary
course of business and not relating to the repayment of Debt; (d) easements,
rights-of-way, covenants, consents, reservations, encroachments, variations and
other restrictions, charges or encumbrances (whether or not recorded) that do
not Materially interfere with the ordinary conduct of business, Materially
detract from the value of the asset to which they attach or Materially impair
the use thereof; (e) building restrictions, zoning laws and other statutes,
laws, rules, regulations, ordinances and restrictions; and (f) leases or
subleases granted in the ordinary course of business to others not Materially
interfering with the business of the Borrower, PROVIDED that clauses (a), (b)
and (c) shall not apply to Environmental Liens, Liens that, under Applicable
Law, would have priority over the Lien of the Collateral Documents or Liens
imposed under ERISA;
6.1.4. any attachment or judgment Lien not constituting an Event of
Default;
6.1.5. Liens on assets securing Debt permitted to be incurred or
assumed on a secured basis pursuant to Section 6.2.5., including any interest or
title of a lessor under any Capitalized Lease, PROVIDED that any such Lien does
not encumber any property other than assets acquired, constructed or improved
with the proceeds of such Debt;
48.
6.1.6. Liens existing on assets of any Person at the time such Person
becomes a Subsidiary, PROVIDED (a) such Lien was not created in contemplation of
such Person becoming a Subsidiary, and (b) such Lien does not encumber any
assets other than the assets subject to such Lien at the time such Person
becomes a Subsidiary;
6.1.7. Liens relating to Capital Leases permitted by Section 6.2.6.;
and
6.1.8. any Lien constituting a renewal, extension or replacement of
any Existing Lien or any Lien permitted by Section 6.1.5. or 6.1.6., PROVIDED
(a) the principal amount of Debt or other obligation secured by such renewal,
extension or replacement Lien does not exceed the principal amount of the Debt
or other obligation renewed, extended or replaced unless such excess is
otherwise permitted hereby at the time of the extension, renewal or replacement,
(b) the average weighted maturity of such Debt or other obligation is not
shortened and (c) such Lien is limited to all or a part of the property subject
to the Lien extended, renewed or replaced.
SECTION 6.2. DEBT. The Borrower shall not, and shall not permit any of
its Subsidiaries (including any indirect Subsidiaries) to, directly or
indirectly, create, incur, assume, guarantee, or otherwise become or remain
liable with respect to, any Debt, except:
6.2.1. the Obligations;
6.2.2. Existing Debt;
6.2.3. Intercompany Debt between the Borrower and any Subsidiary of
the Borrower, to the extent in compliance with Section 5.11.;
6.2.4. Debt incurred to refinance Debt described in Section 6.2.2.;
PROVIDED that (a) the unpaid principal balance is not increased (except to the
extent the increase is then otherwise permitted hereunder), and (b) if such
refinanced Debt is repaid prior to its scheduled maturity, such refinancing Debt
shall comply with the provisions of Section 6.9.2.;
6.2.5. Debt incurred in the ordinary course of business for
purchase-money obligations, in an amount not exceeding $2,000,000 at any time;
and
6.2.6. Capital Leases in an amount not exceeding $2,000,000 at any
time.
SECTION 6.3. RESTRICTED AFFILIATE PAYMENTS; RESTRICTED
PAYMENTS. 6.3.1. The Borrower shall not nor shall the Borrower permit any
Subsidiary to, directly or indirectly, declare, pay or make, or agree to
declare, pay or make, any Restricted Affiliate Payment, PROVIDED that the
Borrower can make Restricted Affiliate Payments, not to exceed $1,000,000 in the
aggregate, in order to recapitalize any foreign Subsidiary to the extent
necessary to comply with local governmental regulations.
6.3.2. The Borrower shall not nor shall the Borrower permit any
Subsidiary to, directly or indirectly, pay or make, or agree to pay or make, any
Restricted Payment if upon the making of such a Restricted Payment or at any
time during the ninety days following the making
49.
of any such Restricted Payment, the Borrower's Total Liquidity shall fail to be
in excess of $185,000,000.
SECTION 6.4. INVESTMENTS. No Borrower shall, nor shall the Borrower
permit any Subsidiary to, directly or indirectly, make or own any Investment,
except:
6.4.1. (a) marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case maturing
within one year from the date of acquisition thereof, (b) marketable direct
obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and having, at the time of
acquisition, the highest rating obtainable from either Standard & Poor's Rating
Group or Xxxxx'x Investors Service, Inc., (c) commercial paper having, at the
time of acquisition, the highest rating obtainable from either Standard & Poor's
Rating Group or Xxxxx'x Investors Service, Inc., (d) demand deposits,
certificates of deposit, other time deposits, and bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
operating under the laws of the United States or any state thereof or the
District of Columbia that has combined capital and surplus of not less than
$500,000,000, PROVIDED that with respect to foreign Subsidiaries making deposits
in the ordinary course of business such bank need not be operating under the
laws of the United States or any state thereof or the District of Columbia, or
(e) institutional money market funds organized under the laws of the United
States of America or any state thereof that are approved in writing by the Agent
or, if not so described or approved, substantially all of whose assets are
securities of the types described in the foregoing clauses (a), (b), (c), and
(d);
6.4.2. (a) trade credit extended on usual and customary terms in the
ordinary course of business, and (b) advances to employees for moving,
relocation and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business;
6.4.3. any Investment identified on Schedule 4.3., limited to the
amount of such Investment on the date hereof;
6.4.4. Investments in non-cash proceeds of permitted Asset
Dispositions;
6.4.5. Investments to form new Subsidiaries and to establish joint
ventures and other similar investments not exceeding $2,000,000 in the aggregate
per year.
SECTION 6.5. FINANCIAL COVENANTS.
6.5.1. QUICK RATIO. The Quick Ratio as of the last day of any Fiscal
Quarter shall not be less than 1.25 to 1.00.
6.5.2. QUARTERLY REVENUE. The Quarterly Revenue as of the last day
of each Fiscal Quarter shall equal or exceed the Minimum Quarterly Revenue.
50.
6.5.3. OPERATING PROFITABILITY. As of the last fiscal day of each
Fiscal Quarter ending in December 1997 and March 1998, Informix's Operating Loss
(on a consolidated basis) for such Fiscal Quarter shall not be greater than
$10,000,000. As of the last fiscal day of the Fiscal Quarter ending on the last
Business Day of June 1998, Informix's Operating Profit (on a consolidated basis)
for such Fiscal Quarter shall be at least $10,000,000. As of the last fiscal
day of each Fiscal Quarter ending in September 1998 and each Fiscal Quarter
thereafter, Informix's Operating Profit (on a consolidated basis) for such
Fiscal Quarter shall at least $15,000,000.
6.5.4. MINIMUM CASH FLOW. As of the last day of each fiscal quarter,
beginning with the fiscal quarter ending in June 1998, Informix's Operating Cash
Flow for such fiscal quarter shall be in excess of $1.00 and the Interest
Coverage Ratio for such fiscal quarter shall exceed 1.25 to 1.00.
0.2.1. CAPITAL EXPENDITURES. The Borrower shall not make any
additional investment in fixed or capital assets, including with respect to
Capitalized Leases (but excluding Capitalized Software Costs), in any Fiscal
Year, in the aggregate, in excess of $15,000,000 PLUS any Carry Forward Amount
(the capital expenditures permitted under this Section 6.5.5. shall be referred
to as "PERMITTED CAPITAL EXPENDITURES").
SECTION 6.6. RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower shall not,
and the Borrower shall not permit any Subsidiary to, directly or indirectly,
enter into any merger, consolidation, reorganization or recapitalization,
reclassify its Capital Stock, liquidate, wind up or dissolve or sell, lease,
transfer or otherwise dispose of, in one transaction or a series of
transactions, a significant portion of its or their business or assets, whether
now owned or hereafter acquired, PROVIDED that as long as no Default or Event of
Default shall exist after giving effect to such merger, consolidation or sale,
any Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower or any Wholly-Owned Subsidiary of the Borrower or be liquidated, wound
up or dissolved, or all or substantially all of its business or assets may be
sold, leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to the Borrower or any Wholly-Owned Subsidiary of the
Borrower.
SECTION 6.7. ASSET DISPOSITIONS; SALES OF RECEIVABLES.
6.7.1. The Borrower shall not and the Borrower shall not permit any
Subsidiary to, directly or indirectly, make or agree to make, any Asset
Disposition unless
6.7.1.1. the Board of Directors of the Borrower has reasonably
determined in good faith that the terms of such transaction are fair and
reasonable to the Borrower or such Subsidiary, as the case may be, if the
transaction involves assets having a Material fair market value; and
6.7.1.2. the Asset Disposition is otherwise permissible under the
Collateral Documents and under Sections 6.6. and 6.8. and if the transaction
involves assets having a Material fair market value, the terms of such
transaction shall have been approved in advance by the Required Lenders.
51.
6.7.2. As promptly as practicable but in no event later than 10 days
prior to any Asset Disposition, the Borrower shall deliver to the Agent a
certificate, duly executed by a Senior Officer of the Borrower, setting forth in
detail a description of such Asset Disposition, copies of any related
agreements, the date or scheduled date of such Asset Disposition, the
determination of the net cash proceeds of such Asset Disposition, the
description of any non-cash proceeds and the collateral arrangements with
respect thereto and such other documents and information as is necessary to
demonstrate compliance with this Section 6.7.
6.7.3. The Borrower shall not nor shall the Borrower permit any
Subsidiary to, directly or indirectly, sell with or without recourse, discount
(except in the ordinary course of business to compromise disputes with
customers) or otherwise sell for less than the face value thereof or for
consideration other than cash, Accounts Receivable and other receivables with an
aggregate face value in excess of $20,000,000 during any twelve month period.
SECTION 6.8. TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and
the Borrower shall not permit any Subsidiary to, directly or indirectly, enter
into any transaction (including the transfer or lease of any property or the
rendering of any service) with any Affiliate of the Borrower, unless (a) such
transaction is in the ordinary course of business of the Borrower, and (b) such
transaction is on fair and reasonable terms no less favorable to the Borrower or
its Subsidiary, as the case may be, than those terms that might be obtained at
the time in a comparable arm's length transaction with a Person who is not an
Affiliate of the Borrower or, if such transaction is not one that by its nature
could be obtained from such other Person, is on fair and reasonable terms and
was negotiated in good faith, (c) if such transaction is Material, the Borrower
shall have delivered to the Agent a certified resolution of its Board of
Directors determining that the standards set forth in clause (b) above are
satisfied with respect to such transaction and (d) if such transaction is
Material, the Borrower shall deliver to the Agent an opinion of a recognized
appraisal or valuation firm that the transaction is fair to the Borrower from a
financial point of view, PROVIDED that this Section 6.8. shall not restrict
(i) dividends, distributions and other payments and transfers on account of the
Capital Stock of the Borrower or any Subsidiary of the Borrower, (ii) payments
pursuant to the terms of any Contractual Obligations in effect on the date
hereof listed on Schedule 6.8., or (iii) any transaction in the ordinary course
of business between the Borrower and any Subsidiary of the Borrower.
SECTION 6.9. PREPAYMENT OF DEBT. The Borrower shall not, nor shall the
Borrower permit any Subsidiary to, directly or indirectly, make any payment or
distribution on account of, or voluntarily purchase, acquire, redeem or retire,
any Debt, prior to 30 days before its originally stated maturity (or its stated
maturity on the date hereof, in the case of Debt outstanding on the date
hereof), or in the case of interest, its stated due date, or directly or
indirectly become obligated to do any of the foregoing by amending the terms
thereof or otherwise, except for:
6.9.1. Prepayments of the Loans or of other amounts pursuant to the
Loan Documents;
6.9.2. Prepayments made with the proceeds of new Debt incurred for
the purpose of refinancing the Debt being prepaid, PROVIDED that (a) no portion
of such new Debt matures or
52.
is required to be prepaid, purchased or otherwise retired earlier than the
corresponding portion of the Debt being prepaid, (b) such new Debt has the same
priority vis-a-vis other Debt, and the same provision for recourse, as the Debt
being paid, (c) no Default or Event of Default then exists or would result from
such prepayment or refinancing; and
6.9.3. Payments of Intercompany Debt.
SECTION 6.10. Employee Benefit Plans. Except to the extent that the
Borrower gives thirty (30) days' prior written notice to the Agent, the Borrower
will not sponsor or contribute to any new Plan, make any change to any existing
Plan, or incur any obligations in respect of any Multiemployer Plan that would
in any Material way increase the obligations of the Borrower in any Material
respect.
SECTION 6.11. AMENDMENTS OF CHARTER DOCUMENTS. The Borrower shall not,
nor permit any Subsidiary to, amend its charter, bylaws or other charter
documents in any respect that affects the voting rights of Capital Stock
included in the Collateral or holders thereof, increases payment obligations of
the Borrower, affects the validity or enforceability of any Loan Document or
Lien thereunder or that otherwise could have a Material Adverse Effect, without
in each case obtaining the prior written consent of the Required Lenders.
SECTION 6.12. RESTRICTIVE AGREEMENTS. The Borrower shall not, nor shall
the Borrower permit any Subsidiary to, enter into any Contractual Obligation
that, directly or indirectly, restricts or limits the ability of such Subsidiary
to (a) pay dividends or make distributions on its Capital Stock, (b) pay Debt
owed to the Borrower or any Subsidiary, (c) make any loans or advances to the
Borrower (except as provided in Section 5.11.), or (d) except as provided in
Contractual Obligations respecting the specific assets subject to Permitted
Liens, transfer any of its property to the Borrower.
SECTION 0.4. NEGATIVE PLEDGES, ETC. The Borrower shall not, or nor shall
the Borrower permit any Subsidiary to, enter into or otherwise become subject
to, directly or indirectly, any agreement
0.4.1. prohibiting or restricting the Borrower or any Subsidiary of
the Borrower in any manner (including by way of covenant, representation or
default), from (a) incurring, creating or assuming any Debt or Lien upon any of
its assets, (b) selling or otherwise disposing of any of its assets, (c) making
any Investments or Capital Expenditures, (d) suffering any change of control, or
(e) amending any Loan Document, except that clauses (a) and (b) shall not apply
to any Debt otherwise permissible under Section 6.2; or
0.4.2. providing that any default by the Borrower if the Borrower is
not a party to such agreement with respect to any obligation not arising under
such agreement is a default under such agreement.
SECTION 0.5. SALE/LEASE BACKS. The Borrower shall not enter into any sale
and leaseback agreement covering any of its fixed or capital assets.
53.
SECTION 0.6. ACQUISITIONS. Without the prior written consent of the
Required Lenders, the Borrower shall not make or become contractually obligated
to make one or more Acquisitions which requires the payment of aggregate
consideration in excess of $5,000,000 per year.
ARTICLE 7.
EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events, acts or occurrences shall constitute an event of default (each
an "EVENT OF DEFAULT"):
7.1.1. FAILURE TO MAKE PAYMENTS. The Borrower (a) shall fail to pay
as and when due (whether at stated maturity, upon acceleration, upon required
prepayment or otherwise) any principal of any Loan or any reimbursement for a
drawing under any Letter of Credit, or (b) shall fail to pay any interest, Fees
or other amounts payable under the Loan Documents within three Business Days of
the date when due under the Loan Documents; or
7.1.2. DEFAULT IN OTHER DEBT. (a) The Borrower or any Subsidiary of
the Borrower shall default in the payment (whether at stated maturity, upon
acceleration, upon required prepayment or otherwise), beyond any period of grace
provided therefor, of any principal of or interest on any other Debt with a
principal amount in excess of $2,000,000 or (b) any other breach or default (or
other event or condition) shall occur under any agreement, indenture or
instrument relating to any such other Debt, if the effect of such breach or
default (or such other event or condition) is to cause, or to permit the holder
or holders of the other Debt (or a Person on behalf of such holder or holders)
to cause (upon the giving of notice, the lapse of time or both, or otherwise),
such other Debt to become or be declared due and payable, or required to be
prepaid, redeemed, purchased or defeased (or an offer of prepayment, redemption,
purchase or defeasance be made), prior to its stated maturity (other than by a
scheduled mandatory prepayment); or
7.1.3. BREACH OF CERTAIN COVENANTS. The Borrower shall fail to
perform, comply with or observe any agreement, covenant or obligation under
Section 2.3., Section 5.1.6., Section 5.4. (insofar as it requires the
preservation of the corporate existence of the Borrower), or any Section of
Article 6. not covered by 7.1.4 hereof; or
7.1.4. CERTAIN DEFAULTS UNDER ARTICLE 6. The Borrower shall fail to
perform, comply with or observe any agreement, covenant or obligation under any
provision of Sections 6.1. through 6.4., 6.7., 6.8., 6.12. though 6.13.
(inclusive of subsections thereof) and such failure shall not have been remedied
within ten (10) days after a Senior Officer of Borrower has knowledge of such
failure; PROVIDED, HOWEVER, that no such ten (10) day cure period shall be
available with respect to any failure by the Borrower that by its nature is
incapable of being remedied; or
54.
7.1.5. OTHER DEFAULTS UNDER LOAN DOCUMENTS. The Borrower shall fail
to perform, comply with or observe any agreement, covenant or obligation under
any provision of any Loan Document (other than those provisions referred to in
Sections 7.1.1. and 7.1.3.) and such failure shall not have been remedied within
20 days after a Senior Officer of the Borrower becomes aware of such failure; or
7.1.6. BREACH OF WARRANTY. Any representation or warranty or
certification made or furnished by the Borrower under any Loan Document shall
have been false or incorrect in any material respect when made (or deemed made);
or
7.1.7. INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. There
shall be commenced against the Borrower, or any Subsidiary, an involuntary case
seeking the liquidation or reorganization of the Borrower or such Subsidiary
under Chapter 7 or Chapter 11, respectively, of the Bankruptcy Code or any
similar proceeding under any other Applicable Law or an involuntary case or
proceeding seeking the appointment of a receiver, liquidator, sequestrator,
custodian, trustee or other officer having similar powers of the Borrower or
such Subsidiary or to take possession of all or a substantial portion of its
property or to operate all or a substantial portion of its business, and any of
the following events occur: (a) the Borrower or such Subsidiary consents to the
institution of the involuntary case or proceeding; (b) such petition commencing
the involuntary case or proceeding is not timely controverted; (c) the petition
commencing the involuntary case or proceeding remains undismissed and unstayed
for a period of 60 days; or (d) an order for relief shall have been issued or
entered therein; or
7.1.8. VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The
Borrower or any Subsidiary shall institute a voluntary case seeking liquidation
or reorganization under Chapter 7 or Chapter 11, respectively, of the Bankruptcy
Code or any similar proceeding under any other Applicable Law, or shall consent
thereto; or shall consent to the conversion of an involuntary case to a
voluntary case; or shall file a petition, answer a complaint or otherwise
institute any proceeding seeking, or shall consent to or acquiesce in the
appointment of, a receiver, liquidator, sequestrator, custodian, trustee or
other officer with similar powers of it or to take possession of all or a
substantial portion of its property or to operate all or a substantial portion
of its business; or shall make a general assignment for the benefit of
creditors; or shall generally not pay its debts as they become due; or the Board
of Directors of the Borrower or Subsidiary (or any committee thereof) adopts any
resolution or otherwise authorizes action to approve any of the foregoing; or
7.1.9. CHANGE OF CONTROL. A Change of Control shall occur at any
time; or
7.1.10. TERMINATION OF LOAN DOCUMENTS, ETC. Any Loan Document, or
any material provision thereof, shall cease to be in full force and effect for
any reason, or any Lien in favor of the Agent thereunder shall fail to have the
priority required thereunder with respect to any Collateral, except upon a
release or termination of such Loan Document or Lien pursuant to the terms
thereof; or the Borrower shall contest or purport to repudiate or disavow any of
its obligations under or the validity of enforceability of any Loan Document or
any Material provision thereof; or
55.
7.1.11. MATERIAL ADVERSE CHANGE. A Material Adverse Change shall
have occurred since the Closing Date, PROVIDED that for purposes of determining
whether a Material Adverse Change has occurred, any changes, modifications or
developments relating to any such previously disclosed conditions and events
that occur subsequent to the Closing Date shall be deemed to not have been a
part of any such prior disclosure; or
7.1.12. JUDGMENTS AND ATTACHMENTS. (a) Other than the Shareholder
Litigation, the Borrower or any Subsidiary shall suffer any money judgments,
fines, writs or warrants of attachment or similar processes that, individually
or in the aggregate, involve an amount or value in excess of $2,000,000
(excluding therefrom money judgments to the extent covered by insurance as to
which the carrier has accepted liability) and such judgments, writs, warrants or
other orders shall continue unsatisfied and unstayed for a period of 30 days or,
in any event, within 10 days of the date of any proposed sale thereunder; or
(b) a judgment creditor shall obtain possession of any Material portion of the
assets of the Borrower or any Subsidiary by any means, including levy,
distraint, replevin or self-help.
SECTION 7.2. REMEDIES. Upon the occurrence of an Event of Default:
7.2.1. If an Event of Default occurs under Section 7.1.7. or 7.1.8.,
then the Revolving Commitments shall automatically and immediately terminate,
and the obligation of the Lender Parties to make any Loan or issue any Letter of
Credit hereunder shall cease, and the unpaid principal amount of the Loans and
all other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest, notice or other requirements of any kind,
all of which are hereby expressly waived by the Borrower.
7.2.2. If an Event of Default occurs, other than under Section 7.1.7.
or 7.1.8., the Agent may, or upon written request of the Required Lenders shall,
by written notice to the Borrower, declare the Revolving Commitments terminated,
whereupon the obligation of the Lender Parties to make any Loan or issue any
Letter of Credit hereunder shall cease, and/or declare the unpaid principal
amount of the Loans and all other Obligations to be, and the same shall
thereupon become, due and payable, without presentment, demand, protest, any
additional notice or other requirements of any kind, all of which are hereby
expressly waived by the Borrower.
7.2.3. If an Event of Default occurs under Section 7.1.7. or 7.1.8.
or if any other Event of Default occurs and the Agent declares the Loans due and
payable, the Borrower shall be immediately obligated, without presentment,
demand, protest, notice or other requirements of any kind, all of which are
hereby expressly waived by the Borrower, to pay immediately to the Agent, an
amount of cash equal to the Letter of Credit Liability. Any amounts so received
shall be deposited in an interest bearing account maintained by the Agent as
collateral (the "CASH COLLATERAL COVER") for all Obligations of the Borrower.
At any time after any such Obligations shall become due and payable (whether by
drawing on a Letter of Credit or otherwise) the Cash Collateral Cover may be
applied in whole or in part by the Agent against or on account of all or any
part of the Obligations that have become so due and payable. Interest earned on
this account,
56.
to the extent such interest is not required for, or applied to, the payment or
repayment of the Obligations, shall be paid to the Borrower.
ARTICLE 8.
THE AGENT AND THE LENDERS
SECTION 8.1. AUTHORIZATION AND ACTION.
8.1.1. Each Lender and the L/C Issuer hereby irrevocably appoints and
authorizes the Agent to act as its agent hereunder and under the other Loan
Documents (including as its collateral agent under the Collateral Documents), to
execute and deliver or accept, on its behalf, the other Loan Documents and any
other documents, instruments and agreements related thereto or hereto to take
such action on its behalf under the provisions hereof and thereof and to
exercise such rights, remedies, powers and privileges hereunder and thereunder
as are delegated to the Agent by the terms hereof and thereof, together with
such rights, remedies, powers and privileges as are reasonably incidental
thereto.
8.1.2. Except for any matters expressly subject to the consent or
approval of the Agent under the Loan Documents, the Agent shall not, without the
prior approval of the Required Lenders (or, as provided in Section 9.3., all of
the Lenders), consent to any departure by the Borrower from the terms of, waive
any default or otherwise amend this Agreement or any other Loan Documents. The
Agent will, to the extent practicable under the circumstances, consult with the
other Lender Parties prior to taking action on their behalf under the Loan
Documents and in acting as their Agent thereunder. The Agent will not take any
action contrary to the written direction of Required Lenders, will take any
lawful action not contrary to the provisions of the Loan Documents prescribed in
written instructions of the Required Lenders (or, as provided in Section 9.3.,
all the Lenders) and, as to any matters not expressly provided for by the Loan
Documents (including enforcement or collection), may decline to take any action,
except upon the written instructions of the Required Lenders (or, as provided in
Section 9.3., all the Lenders). If such instructions are requested reasonably
promptly, the Agent shall be absolutely entitled to refrain from taking any
action and shall not have any liability to the Borrower or any Lender for
refraining from taking any action until it shall have received such
instructions; PROVIDED, HOWEVER, that the Agent shall in no event be required to
take or refrain from taking any action that would, in the Agent's opinion, be
inconsistent with the Agent's practice in similar situations when acting solely
for its own account or be contrary to the provisions of any Loan Document or
Applicable Law.
8.1.3. The Agent shall not have any duties or responsibilities except
those expressly set forth in the Loan Documents. No duty to act, or refrain
from acting, and no other obligation whatsoever, shall be implied on the basis
of any right, power or authority granted to the Agent or shall become effective
in the event of any temporary or partial exercise of such rights, power or
authority. The Agent shall not be required to exercise any right, power, remedy
or privilege granted to it in any Loan Document, to ascertain or inquire whether
any Default or Event of Default has occurred and is continuing, or to inspect
the property (including the books
57.
and records) of the Borrower or to take any other affirmative action, except as
provided in Section 7.2., or unless requested or directed to do so in accordance
with the provisions of Section 8.1.2.
8.1.4. The duties of the Agent shall be mechanical and administrative
in nature. The Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any other Lender Party. Except for notices, reports
and other documents and information expressly required to be furnished to the
Lender Parties by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender Party with any credit or other information
concerning the affairs, financial condition or business of the Borrower that may
come into the possession of the Agent or any of its Affiliates.
SECTION 8.2. EXCULPATION; RELIANCE; ETC. None of the Agent, the
Syndication Agent, or any of their respective directors, officers, agents,
attorneys or employees shall be liable to the Borrower or any other Lender Party
for any action taken or omitted to be taken by it or them under or in connection
with any Loan Document (a) with the consent or at the request of the Required
Lenders (or, as provided in Section 9.3., all the Lenders), or (b) in any other
circumstances, except for its or their own gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction. Neither the Agent nor the Syndication Agent makes any warranty or
representation to any other Lender Party and neither shall be responsible to any
other Lender Party for any recitals, statements, warranties or representations
made in, or in connection with, any Loan Document or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility, or
sufficiency of any Loan Document or any financial information, opinions of
counsel or other documents executed and delivered pursuant thereto, or for the
financial condition of the Borrower. Neither the Agent nor the Syndication
Agent shall be responsible to any Lender for the satisfaction of any condition
specified in Article 3., except receipt of items required to be delivered to the
Agent or the Syndication Agent, or for the value, effectiveness, priority,
genuineness, validity, of any Collateral or any Lien thereon. The Agent may
treat the payee of any Revolving Loan Note as the holder thereof until the Agent
receives the related Assignment and Acceptance signed by such holder and the
assignee and in form satisfactory to the Agent. The Agent shall be entitled to
rely upon any notice, certificate or other writing believed by the Agent to be
genuine and correct and to have been signed or sent by the proper Person or
Persons. The Agent shall be entitled to consult with legal counsel, independent
public accountants and other experts selected by the Agent and to act in
reliance upon the advice of such counsel and other experts concerning its
actions and duties hereunder.
SECTION 8.3. AGENT AND AFFILIATES. The Agent and each other Lender that
is a party hereto as a Lender and in some other capacity, shall in its capacity
as a Lender, have the same rights, powers and obligations under this Agreement
and the other Loan Documents as any other Lender and may exercise or refrain
from exercising the same as though it were not the Agent or such other Lender
Party, including the right to give or deny consent to any action requiring
consent or direction of the Required Lenders or all the Lenders. The Agent,
each such other Lender Party and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any Subsidiary
58.
and any Affiliate of the Borrower, all as if the Agent or such other Lender
Party were not the Agent or such other Lender Party and without any duty to
account therefor to the Lenders. The Agent or such other Lender Party shall be
entitled to receive from the Borrower its fees or portions thereof in connection
with this transaction without any liability to account therefor to any other
Lender, except as the Agent or such other Lender Party may have expressly
agreed.
SECTION 8.4. LENDER CREDIT DECISION. Each Lender Party acknowledges that
it has, independently and without reliance upon the Agent, the Syndication Agent
or any other Lender Party and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Agent, the Syndication Agent or any other Lender Party
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 the Loan Documents.
SECTION 8.5. INDEMNIFICATION. The Agent shall in no event be required to
take any action under the Loan Documents or in relation thereto unless it shall
first be indemnified to its satisfaction by the other Lender Parties against any
and all liability and expense that it may incur by reason of taking any such
action. Each Lender agrees to indemnify and hold the Agent harmless (to the
extent not promptly paid or reimbursed by the Borrower), ratably according to
their respective Revolving Commitments, from and against any and all (a) costs,
expenses and other amounts incurred by the Agent otherwise payable by the
Borrower pursuant to Section 9.1. and (b) Indemnified Liabilities that may be
imposed on, incurred by, or asserted against the Agent, except to the extent
they are finally adjudged by a court of competent jurisdiction to have directly
resulted from the gross negligence or willful misconduct of the Agent. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, the Loan Documents, to
the extent that the Agent is not promptly reimbursed for such expenses by the
Borrower.
SECTION 8.6. SUCCESSOR AGENT. The Agent may resign at any time as Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower and the Agent may be removed at any time with or without cause by
written action of all Lenders (other than the Agent) delivered to the Agent.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent with the written consent of Borrower. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's notice
of resignation or the removal of the Agent, then the retiring or removed Agent
may, on behalf of the other Lender Parties, appoint a successor Agent, which
shall be a financial institution having a combined capital and surplus of at
least $100,000,000, or a branch or agency of such a financial institution,
organized or licensed to do business under the laws of the United States of
America or any State thereof. Upon the acceptance of any appointment as the
Agent by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
59.
duties of the retiring Agent, and the retiring Agent shall be discharged of its
duties and obligations under the Loan Documents. Upon any retiring Agent's
resignation or removal, the provisions of this Article 8. (as well as other
expense reimbursement, indemnification and exculpatory provisions in the other
Loan Documents) shall continue in effect for its benefit as to any actions taken
or omitted by it while it was Agent.
SECTION 8.7. EXCESS PAYMENTS. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Obligations in excess of its pro rata share of
payments and other recoveries on account of such Obligations obtained by all
Lenders, such Lender shall purchase from the other Lenders such participations
in such Obligations held by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of the
other Lenders; PROVIDED, HOWEVER, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and the purchase price restored to such Lender
to the extent of such recovery, but without interest. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section 8.7. may, to the fullest extent permitted by Applicable Law and by
Section 9.10., exercise all of its rights of payment (including setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 8.8. LENDER PARTIES. The provisions of this Article 8. are solely
for the benefit of the Agent and the other Lender Parties and the Borrower shall
not have any right to rely on or enforce any of the provisions hereof (except
that (i) the provisions of Sections 8.6. and 8.9.5. are also for the benefit of
the Borrower and (ii) the Borrower is entitled to rely on any release executed
by the Agent as authorized by Section 8.9.). In performing its functions and
duties under the Loan Documents, the Agent shall act solely as agent of the
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for the Borrower.
SECTION 8.9. COLLATERAL AND GUARANTY MATTERS.
8.9.1. Except as specifically otherwise provided in any of the
Collateral Documents, the Agent is hereby authorized on behalf of all of the
Lenders, without assumption of any duty or obligation in respect of and without
the necessity of any notice to or further consent from any other Lender Party,
to take any action with respect to any Collateral or Collateral Documents that
may be necessary to perfect and maintain perfected the Agent's Liens upon the
Collateral.
8.9.2. The Lenders hereby irrevocably authorize the Agent, in its
discretion, to release any Lien held by the Agent upon any Collateral (a) from
and after the day of termination of any Collateral Document pursuant to the
terms thereof; (b) constituting property being sold or disposed of if the
Borrower certifies to the Agent that the sale or disposition is permitted under
the relevant Collateral Document (and the Agent may rely conclusively on any
such certificate, without further inquiry, unless notified to the contrary by
the Required Lenders); or (c) approved, authorized or ratified in writing by all
Lender Parties in accordance with Section 9.3.; PROVIDED,
60.
HOWEVER, that (i) the Agent shall not be required to execute any such documents
on terms that create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall
not in any manner discharge, affect or impair the Obligations or any Liens upon
(or obligations of the Borrower in respect of) all assets retained by the
Borrower, including the proceeds of any Asset Disposition, all of which shall
continue to constitute part of the Collateral. Upon request by the Agent at any
time, the other Lender Parties will confirm in writing the Agent's authority to
release particular types or items of Collateral pursuant to this Section 8.9.2.
8.9.3. The Agent shall have no obligation whatsoever to any other
Lender Party or other Person to assure that the Collateral exists or is owned by
the Borrower or (except as otherwise expressly required by the Collateral
Documents) is cared for, protected or insured, or that the Liens of the Agent
thereunder have been properly created, perfected, protected or enforced or are
entitled to any particular priority.
8.9.4. Except as otherwise provided in the Loan Documents, the Agent
may act in any manner it may deem appropriate in respect of the Collateral, in
its discretion, given the Agent's own interest in the Collateral as a Lender,
and the Agent shall have no duty or liability whatsoever with respect thereto to
any other Lender Party.
8.9.5. Each Lender Party hereby approves the form of the other Loan
Documents attached as exhibits to this Agreement and hereby authorizes the Agent
on its behalf to accept from the Borrower and execute and deliver as Agent, the
other Loan Documents in substantially the form of such exhibits, with such
changes, additions or deletions as the Agent, in its discretion, may approve as
necessary or appropriate, such approval to be conclusively evidenced by the
Agent's acceptance or execution thereof. Each Lender Party also authorizes the
Agent to accept, or execute and deliver, such additional documents (including
financing statements, opinions, certificates and other documents in form and
substance satisfactory to the Agent, in its discretion) in connection with the
closing pursuant to Section 3.1. or any subsequent closing for the pledge of any
other Collateral or any additional guaranties as the Agent, in its discretion,
may approve, such approval to be conclusively evidenced by the Agent's
acceptance or execution thereof.
SECTION 8.10. PAYMENTS; AVAILABILITY OF FUNDS; CERTAIN NOTICES.
8.10.1. If the Agent shall fail to deliver to any other Lender Party
its share of any payment received from the Borrower as and when required by
Section 2.9., the Agent shall pay to such Lender its share of such payment
together with interest on such amount at the Federal Funds Effective Rate, for
each day from the date such amount was required to be paid to such Lender until
the date the Agent pays such amount to such Lender, calculated as set forth in
Section 2.4.4.
8.10.2. Unless (a) the Agent shall have been notified by a Lender
prior to the date upon which a Loan is to be made or (b) the Agent shall have
been notified by the Borrower prior to the date on which the Borrower is
required to make any payment hereunder that such Lender or the Borrower, as the
case may be (the "OBLIGATED PARTY"), does not intend to make available to
61.
the Agent the Obligated Party's portion of such Loan or such payment, the Agent
may assume that the Obligated Party will make such amount available to the Agent
on such date and the Agent may, in reliance upon such assumption (but shall not
be required to), make available to the Borrower (in the case of a Loan) or the
Lenders (in the case of a payment by the Borrower) a corresponding amount. If
such corresponding amount is not in fact made available to the Agent by the
Obligated Party, the Agent shall be entitled to recover such amount on demand
from the Obligated Party (or, in the case of a Loan, if the Lender that is the
Obligated Party fails to pay such amount forthwith upon such demand, from the
Borrower). Such amount shall be payable together with interest thereon from the
day on which such corresponding amount was made available by the Agent to the
Lender or the Borrower, as applicable, to the date of payment by the Obligated
Party (or the Borrower, as applicable), at a rate of interest equal to (i) in
the case of any payment by any other Lender Party, the Federal Funds Effective
Rate, and (ii) in the case of any payment by the Borrower, the interest rate
applicable to the Loan.
8.10.3. The Agent shall promptly notify the Lenders by telecopy of
each Interest Period chosen by the Borrower, the Adjusted LIBOR Rate for each
Interest Period (and the relevant interest rate), the date of any expected
payment and all other material notices transmitted by the Borrower.
SECTION 8.11. OBLIGATIONS OF LENDER PARTIES SEVERAL; ENFORCEMENT BY THE
AGENT.
8.11.1. Each Lender Party's obligations hereunder are several, and
not joint or joint and several. The failure of any Lender Party to make any
Loan or otherwise to perform its obligations hereunder will not increase the
obligations of any other Lender Party. Notwithstanding the foregoing, any
Lender may assume, but shall have no obligation to any Person to assume, any
non-performing Lender's obligation to make a Loan. Nothing contained in this
Agreement and no action taken by the Agent or any other Lender Party pursuant to
this Agreement shall be deemed to constitute the Agent and any other Lender
Party to be a partnership, an association, a joint venture or any other kind of
entity.
8.11.2. Each Lender agrees that, except with the prior written
consent of the Agent or as provided in Section 9.10., no Lender Party shall have
any right individually to realize upon the Collateral or otherwise enforce any
Loan Document or any provision thereof, or make demand thereunder, it being
agreed that such rights and remedies may only be exercised by the Agent for the
ratable benefit of the Lenders upon the terms of this Agreement.
ARTICLE 9.
MISCELLANEOUS
SECTION 9.1. EXPENSES. The Borrower shall pay within 10 days (or, in the
case of costs and expenses incurred prior to the Closing Date, within two
Business Days after receipt of invoices) after demand:
62.
9.1.1. any and all reasonable attorneys' fees and disbursements and
all reasonable (including allocated costs of in-house counsel) and out-of-pocket
costs, fees and expenses incurred by the Agent or the Syndication Agent in
connection with (a) the development, drafting and negotiation of the Loan
Documents and the syndication and closing of the transactions contemplated
thereby including, without limitation, costs, fees and expenses relating to
collateral examination and audits, filing fees, appraisals, independent
financial consultant reports and environmental surveys, and (b) any amendments
to or the administration of the Loan Documents (including reasonable costs and
expenses incurred in connection with any appraisal or environmental assessment);
and
9.1.2. any and all reasonable costs and expenses (including fees and
disbursements of in-house and other attorneys, appraisers and consultants)
incurred by the Lender Parties in any workout, restructuring or similar
arrangements or, after a Default, in connection with the protection,
preservation, exercise or enforcement of any of the terms of the Loan Documents
or in connection with any foreclosure, collection or bankruptcy proceedings.
SECTION 9.2. INDEMNITY.
9.2.1. The Borrower shall indemnify, defend and hold harmless each
Lender Party and the officers, directors, employees, agents, attorneys,
affiliates, successors and assigns of each Lender Party (collectively, the
"INDEMNITEES") from and against (a) any and all transfer taxes, documentary
taxes, assessments or charges made by any Governmental Authority by reason of
the execution and delivery of the Loan Documents or the making of the Loans or
the issuance of Letters of Credit, and (b) any and all liabilities, losses,
damages, penalties, judgments, claims, costs and expenses of any kind or nature
whatsoever (including reasonable attorneys' fees, including allocated costs of
in-house counsel, and disbursements in connection with any actual or threatened
investigative, administrative or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto) that may be imposed on, incurred
by or asserted against such Indemnitee, in any manner relating to or arising out
of the Loan Documents, Letters of Credit, the use or intended use of the
proceeds of the Loans or Letters of Credit (including the failure of the L/C
Issuer to honor a drawing as a result of any act or omission, whether rightful
or wrongful, of any Governmental Authority) (the "INDEMNIFIED LIABILITIES");
PROVIDED that (i) no Indemnitee shall have the right to be indemnified or held
harmless hereunder for its own gross negligence or willful misconduct, as
determined by a final judgment of a court of competent jurisdiction, and
(ii) Indemnified Liabilities shall include amounts attributable to the passive
or active negligence of any Lender Party, and (iii) the Borrower shall not have
any obligation hereunder in respect of (A) legal proceedings between the Lender
Parties or between any Lender Party and any participant or (B) Indemnified
Liabilities arising from a breach of any Loan Document by the Indemnitee making
a claim hereunder.
9.2.2. Each Indemnitee will promptly notify the Borrower of each
event of which it has knowledge that may give rise to a claim under clause (b)
of Section 9.2.1., PROVIDED that the failure to so notify the Borrower shall in
no way impair the Borrower's obligations under this Section 9.2.2 (except to the
extent that such failure to so notify arises from the gross negligence or
willful misconduct of such Indemnitee and has a Material Adverse Effect on the
Borrower). If
63.
any investigative, judicial or administrative proceeding is brought against any
Indemnitee indemnified or intended to be indemnified pursuant to this
Section 9.2.2, the Borrower, to the extent and in the manner directed by the
Indemnitee, will resist and defend such proceeding with counsel designated by
the Borrower (which counsel shall be reasonably satisfactory to the Indemnitee).
Each Indemnitee will use its best efforts to cooperate in the defense of any
such action, writ, or proceeding. The Borrower shall keep such Indemnitee
advised of the status of such defense and consult with such Indemnitee prior to
taking any material position with respect thereto. Such Indemnitee shall,
however, be entitled to employ counsel separate from counsel for the Borrower
and from any other party in such proceeding if such Indemnitee shall reasonably
determine that a conflict of interest or other circumstance exists that makes
representation by counsel chosen by the Borrower not advisable. The reasonable
fees and disbursements of such separate counsel shall be paid by the Borrower.
Such Indemnitee shall not agree to the settlement of any such claim without the
consent of the Borrower, unless the Borrower shall have been given notice of the
commencement of an action and shall have failed to provide the defense thereof
as herein provided or an Event of Default shall have occurred.
9.2.3. To the extent that the undertaking to indemnify and hold
harmless set forth in Section 9.2.1. may be unenforceable as violative of any
Applicable Law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities that is permissible under Applicable Law. All Indemnified
Liabilities shall be payable on demand.
SECTION 9.3. WAIVERS; AMENDMENTS IN WRITING.
9.3.1. No amendment of any provision of this Agreement or any other
Loan Document (including a waiver thereof or consent relating thereto) shall be
effective unless the same shall be in writing and signed by the Agent in its
capacity as Agent and the Required Lenders. Notwithstanding the foregoing,
9.3.1.1. no amendment that has the effect of (a) reducing the rate or
amount, or extending the stated maturity or due date, of any amount payable
by the Borrower to any Lender Party under the Loan Documents, (b)
increasing the amount, or extending the stated termination or reduction
date, of any Lender's Revolving Commitment hereunder or subjecting any
Lender Party to any additional obligation to extend credit, (c) altering
the rights and obligations of the Borrower to prepay the Loans,
(d) permitting the creation of any Lien ranking prior to or on a parity
with the Lien of any Collateral Document, releasing any part of the
Collateral (except as permitted under the Loan Documents) or otherwise
depriving any Lender Party of the security afforded by the Lien of any
Collateral Document, (e) releasing the Guarantor under any guaranty (except
as permitted under the Loan Documents), or (f) changing this Section 9.3.
or the definition of the term "Required Lenders," shall be effective unless
the same shall be signed by or on behalf of all of the Lenders;
9.3.1.2. no amendment that has the effect of (a) increasing the
duties or obligations of the Agent, (b) increasing the standard of care or
performance required on
64.
the part of the Agent, or (c) reducing or eliminating the indemnities or
immunities to which the Agent is entitled (including any amendment of this
Section 9.3.1.2.), shall be effective unless the same shall be signed by or
on behalf of the Agent; and
9.3.1.3. no amendment that has the effect of (a) increasing the
duties or obligations of the L/C Issuer, (b) increasing the standard of
care or performance required on the part of the L/C Issuer, or (c) reducing
or eliminating the indemnities or immunities to which the L/C Issuer is
entitled (including any amendment of this Section 9.3.1.2.), shall be
effective unless the same shall be signed by or on behalf of the L/C
Issuer; and
9.3.1.4. Notwithstanding anything to the contrary, Schedule 4.3. may
be amended by written notice by the Borrower to the Agent, to the extent
necessary to reflect transactions occurring after the date hereof that are
otherwise permissible hereunder.
9.3.1.5. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No notice
to or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances. Any
amendment effected in accordance with this Section 9.3. shall be binding
upon each present and future Lender Party and the Borrower.
SECTION 9.4. CUMULATIVE REMEDIES; FAILURE OR DELAY. The rights and
remedies provided for under this Agreement are cumulative and are not exclusive
of any rights and remedies that may be available to the Lender Parties under
Applicable Law or otherwise. No failure or delay on the part of any Lender
Party in the exercise of any power, right or remedy under the Loan Documents
shall impair such power, right or remedy or operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
other or further exercise thereof or of any other power, right or remedy.
SECTION 9.5. NOTICES, ETC. All notices and other communications under
this Agreement shall be in writing and (except for financial statements,
other related informational documents and routine communications, which may
be sent by first-class mail, postage prepaid) shall be personally delivered
or sent by prepaid courier, by overnight, registered or certified mail
(postage prepaid), or by prepaid telecopy, and shall be deemed given when
received by the intended recipient thereof. Unless otherwise specified in a
notice sent or delivered in accordance with this Section 9.5., all notices
and other communications shall be given to the parties hereto at their
respective addresses (or to their respective telecopier numbers) indicated on
Schedule 1.1.B (in the case of the Lender Parties) or 9.5. (in the case of
the Borrower).
SECTION 9.6. SUCCESSORS AND ASSIGNS. 9.6.1. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The Borrower may not assign or transfer any
interest hereunder without the prior written consent of each Lender Party.
9.6.2. Each Lender shall have the right at any time to assign (an
"ASSIGNMENT") all or any portion of such Lender's Revolving Commitment,
participation in Letters of Credit and outstanding Loans to one or more banks or
other institutions; PROVIDED, HOWEVER, that (a) each
65.
Assignment shall be of a portion of the Revolving Commitment of at least equal
to $5,000,000 (or a lesser amount equal to such Lender's entire Revolving
Commitment), (b) unless otherwise agreed by the Agent, each Assignment shall be
of a constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement and the other Loan Documents;
(c) unless a Default or Event of Default then exists, no Assignment (other than
an Assignment to a Person that is then a Lender or an Affiliate of a Lender)
shall be effective without the consent of the Borrower and the Agent, which
consents shall not be unreasonably withheld or delayed; (d) the parties to the
Assignment shall execute and deliver to the Agent an Assignment and Acceptance
substantially in the form of Exhibit H (an "ASSIGNMENT AND ACCEPTANCE"); (e) the
assigning Lender shall pay to the Agent a processing and recording fee of
$3,500; and no Assignment shall be effective for any purpose unless and until
the Agent accepts such Assignment and makes an appropriate entry thereof in the
Register (as defined below). Upon satisfaction of the conditions in clauses (a)
through (e) of the proviso to the immediately preceding sentence with respect to
any proposed Assignment, the Agent shall accept the Assignment, make appropriate
entries thereof in the Register and send notice thereof to the Borrower and all
other Lender Parties. From and after the date on which the conditions in the
foregoing clauses and the Assignment and Acceptance have been satisfied, the
assignee shall be a "Lender" hereunder and, to the extent that rights and
obligations hereunder have been assigned to it, shall have the rights and
obligations (including the obligation to participate in Letters of Credit) of
the assigning Lender hereunder, and the assigning Lender shall, to the extent
that rights and obligations hereunder have been assigned by it, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment covering all or the remaining portion of the assigning
Lender's rights and obligations under this Agreement, cease to be a party
hereto).
9.6.3. The Agent shall maintain at the Agent's Office a copy of each
Assignment and Acceptance delivered to it and a register (the "REGISTER") for
the recordation of the names of the Lender Parties and their respective
Revolving Commitments. The entries in the Register shall be conclusive as
against the Borrower and each Lender Party, in the absence of manifest error,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice.
9.6.4. Each Lender shall have the right at any time to grant or sell
participations (each a "PARTICIPATION") in all or any portion of such Lender's
Revolving Commitment, participation in Letters of Credit and outstanding Loans
to one or more banks or other institutions, subject to the terms and conditions
set forth in this Section 9.6.4. If any Lender sells or grants a Participation,
(a) such Lender shall make and receive all payments for the account of its
participant, (b) such Lender's obligations under this Agreement shall remain
unchanged, (c) such Lender shall continue to be the sole holder of its Revolving
Loan Notes and other Loan Documents subject to the Participation and shall have
the sole right to enforce its rights and remedies under the Loan Documents,
(d) the Borrower and the other Lender Parties shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, and (e) the Participation agreement shall
not restrict such Lender's ability to agree to any amendment of the terms of the
Loan Documents, or to exercise or refrain from exercising any powers or rights
that such Lender may have under or in respect of the
66.
Loan Documents or any Collateral, except that the participant may be granted the
right to consent to any (a) reduction of the rate or amount, or any extension of
the stated maturity or due date, of any principal, interest or Fees payable by
the Borrower and subject to the Participation, (b) increase in the amount or
extension of the stated termination or any reduction date of the affected
Revolving Commitment or (c) release of all or substantially all of the
Collateral or any Guarantor under its Guaranty, except to the extent otherwise
provided in the Loan Documents. A participant shall have the rights of the
Lenders under Sections 2.11., 2.13. and 9.10., subject to the obligations
imposed by such Sections; PROVIDED that amounts payable to any participant shall
not exceed the amounts that would have been payable under such Sections to the
Lender granting the Participation, had such Participation not been granted,
unless the Participation is made with the prior written consent of the Borrower.
9.6.5. Each Lender may at any time assign or pledge any portion of
its rights under the Loan Documents to a Federal Reserve Bank. No such
assignment or pledge shall be subject to the provisions of Sections 9.6.2. or
9.6.4.
9.6.6. Subject to the provisions of Section 9.7., each Lender Party
shall have the right at any time to furnish one or more potential assignees or
participants with any information concerning the Borrower and the Subsidiaries
that has been supplied by the Borrower to any Lender Party, so long as such
potential assignee or participant executes a confidentiality agreement including
the matters set forth in Section 9.7. The Borrower shall supply all reasonably
requested information and execute and deliver all such instruments and take all
such further action (including, in the case of an Assignment, the execution and
delivery of replacement Revolving Loan Notes) as the Agent may reasonably
request in connection with any Assignment or Participation arrangement.
SECTION 9.7. CONFIDENTIALITY. Each Lender will maintain any confidential
information that it may receive from the Borrower or any Subsidiary pursuant to
this Agreement confidential and shall not disclose such information to third
parties without the prior consent of the Borrower, except for disclosure:
(a) to legal counsel, accountants and other professional advisors to the Lender
Party; (b) to regulatory officials having jurisdiction over the Lender Party;
(c) required by Applicable Law or in connection with any legal proceeding;
(d) to any other Lender Party;(e) to another Person in connection with a
potential Assignment or Participation, PROVIDED such Person shall have agreed in
writing to be subject to this Section 9.7.; (f) to prospective purchasers of
Collateral after an Event of Default; and (g) of information that has been
previously disclosed publicly without breach of this provision.
SECTION 9.8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (OTHER THAN
CHOICE OF LAW RULES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION). THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, AS MOST
RECENTLY PUBLISHED BY THE INTERNATIONAL CHAMBER OF COMMERCE, SHALL IN ALL
RESPECTS BE INCORPORATED INTO SECTION 2.2. AND SHALL APPLY TO ALL LETTERS OF
CREDIT.
67.
SECTION 9.9. SERVICE OF PROCESS AND CHOICE OF FORUM.
9.9.1. IN ANY ACTION AGAINST THE BORROWER, SERVICE OF PROCESS MAY BE
MADE UPON THE BORROWER BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO ITS ADDRESS INDICATED IN SCHEDULE 9.5., WHICH SERVICE SHALL BE
DEEMED SUFFICIENT FOR PERSONAL JURISDICTION AND SHALL BE DEEMED EFFECTIVE 10
DAYS AFTER MAILING.
9.9.2. Nothing contained in this Section shall preclude the Lender
Parties from bringing any action or proceeding arising out of or relating to
this Agreement in the courts of any place where the Borrower or any of its
assets may be found or located. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS
OF ANY SUCH JURISDICTION, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING, THE JURISDICTION OF ANY OTHER COURT OR COURTS THAT NOW OR
HEREAFTER, BY REASON OF SUCH PARTY'S PRESENT OR FUTURE DOMICILE, OR OTHERWISE,
MAY BE AVAILABLE TO IT.
SECTION 9.10. SET OFF. In addition to any rights now or hereafter granted
under Applicable Law, during the existence of any Event of Default, each Lender
Party is hereby irrevocably authorized by the Borrower, at any time or from time
to time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
indebtedness, in each case whether direct or indirect or contingent or matured
or unmatured at any time held or owing by such Lender Party to or for the credit
or the account of the Borrower, against and on account of the obligations of the
Borrower to such Lender Party under the Loan Documents to which the Borrower is
a party, irrespective of whether or not such Lender Party shall have made any
demand for payment and although such obligations may be contingent and
unmatured.
SECTION 9.11. CHANGES IN ACCOUNTING PRINCIPLES. If any changes in
generally accepted accounting principles after the date of this Agreement result
from the promulgation of rules, regulations, pronouncements, or opinions of, or
the imposition of requirements by, the Financial Accounting Standards Board or
the American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions), or there shall occur any change in the
Borrower's fiscal or tax years and, as a result of any such changes, there shall
result a change in the method of calculating any of the negative covenants,
standards or other terms or conditions found in this Agreement, then the parties
hereto agree to enter into negotiations in order to amend such provisions so as
to equitably reflect such changes with the desired result that the criteria for
evaluating the Borrower's financial condition shall be the same after such
changes as if such changes had not been made.
SECTION 9.12. HEADINGS. The Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction hereof.
68.
SECTION 9.13. SEVERABILITY. If any provision of this Agreement shall
be held to be invalid, illegal or unenforceable under Applicable Law in any
jurisdiction, such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability, which shall not affect any other
provisions hereof or the validity, legality or enforceability of such
provision in any other jurisdiction.
SECTION 9.14. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES.
All agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement, the closing and the extensions of
credit hereunder and shall continue until payment and performance of any and
all Obligations. Any investigation at any time made by or on behalf of the
Lender Parties shall not diminish the Lender Parties' right to rely thereon.
Without limitation, the agreements and obligations of the Borrower contained
in Sections 2.11., 2.12., 2.13., 2.1.3., 9.1. and 9.2., and the obligations
of the Lenders under Section 8.5. and 9.7 shall survive the payment in full
of all other Obligations.
SECTION 9.15. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
Agreement. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto. Faxed signatures to this
Agreement shall be binding for all purposes.
SECTION 9.16. COMPLETE AGREEMENT. This Agreement, together with the
other Loan Documents, is intended by the parties as the final expression of
their agreement regarding the subject matter hereof and as a complete and
exclusive statement of the terms and conditions of such agreement.
SECTION 9.17. LIMITATION OF LIABILITY.
No claim shall be made by the Borrower or any Subsidiary of the Borrower
against any Lender Party or the Affiliates, directors, officers, employees or
agents of any Lender Party for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or under any
other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and the Borrower waives, releases and agrees not to xxx
upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
SECTION 9.18. WAIVER OF TRIAL BY JURY. THE BORROWER AND THE LENDER
PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS AGREEMENT
OR ANY ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS
OF WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
[Space intentionally left blank.]
69.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first set forth above.
AGENT:
------
BANKBOSTON, N.A.,
A NATIONAL BANKING ASSOCIATION,
as Agent, L/C Issuer and a Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------------
Title: Vice President
---------------------------------
SYNDICATION AGENT:
------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
as Syndication Agent
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
----------------------------------
Title: Managing Director
---------------------------------
LENDERS:
--------
CIBC INC.,
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
----------------------------------
Title: Managing Director
---------------------------------
1.
BANQUE PARIBAS
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
----------------------------------
Title: Vice President
---------------------------------
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
----------------------------------
Title: Managing Director
---------------------------------
2.
BORROWER:
INFORMIX SOFTWARE, INC.,
A DELAWARE CORPORATION
By: /s/ Jean Yves Dexmier
------------------------------------
Name: Jean Yves Dexmier
----------------------------------
Title: Executive Vice President
---------------------------------
and Chief Financial Officer
---------------------------------
3.
EXHIBITS B-1, C-1 and C-2 to the Credit Agreement have been filed
separately with the Commission as Exhibits 10.50, 10.49 and 10.48,
respectively, to the Registration Statement.
Schedules to the Credit Agreement have not been filed herewith.
Registrant agrees to file said schedules supplementally with the Commission
if so requested.
EXHIBIT A-1
FORM OF
REVOLVING LOAN NOTE
$_________ Menlo Park, California
December ___, 1997
FOR VALUE RECEIVED, the undersigned, Informix Software, Inc., a
Delaware corporation (the "BORROWER") hereby promises to pay to the order of
__________, a __________ (the "LENDER"), for the account of its Lending Office,
the lesser of (i) the principal sum of __________ and (ii) the aggregate unpaid
principal amount of the Revolving Loans (the "LOANS") made by the Lender to the
Borrower PLUS all Letter of Credit Liability to Lender under the Credit
Agreement referred to below, on the dates and in the amounts set forth in the
Credit Agreement. The Borrower further promises to pay interest on the unpaid
principal amount of each such Loan from time to time outstanding on the dates
and at the rates specified in the Credit Agreement.
This Revolving Loan Note (the "NOTE") is one of the Revolving Loan
Notes referred to in, and is entitled to the benefits of, the Senior Secured
Credit Agreement, dated as of December ___, 1997, as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time (as so
modified, the "CREDIT AGREEMENT"), by and among the Borrower, each of the banks
and other financial institutions that either now or in the future are parties
thereto as lenders (including the Lender, the "LENDERS"), BankBoston, N.A., a
national banking association, in its capacity as the L/C Issuer (in such
capacity, together with any successors thereto in such capacity, the "L/C
ISSUER") and BankBoston, N.A., a national banking association, in its capacity
as administrative agent on behalf of the Lenders (in such capacity the "AGENT"),
to which reference is hereby made for a more complete statement of the terms and
conditions on which the Loans evidenced hereby are made and are to be repaid.
The Credit Agreement provides for, among other things, the acceleration of the
maturity hereof upon the occurrence of certain events and for voluntary and
mandatory prepayments under certain circumstances and upon certain terms and
conditions. This Note is entitled to the benefits of the other Loan Documents
described in the Credit Agreement.
Terms with initial capital letters used but not defined herein have
the meanings assigned to them in the Credit Agreement. All payments due
hereunder shall be made to the Agent at the time and place, in the type of
funds, and in the manner set forth in the Credit Agreement, without any
deduction whatsoever, including, without limitation, any deduction for any
set-off, recoupment, counterclaim or Taxes. The Borrower hereby waives
diligence, presentment, demand, protest, notice of dishonor and all other
demands and notices in connection with the execution, delivery, performance or
enforcement of this Note, except as otherwise set forth in the Credit Agreement.
1
The Lender is authorized (but not obligated) to endorse on the
Schedule hereto, or on a continuation thereof, each Loan made by the Lender and
any of the Lender's participation in and under Letter of Credit and each payment
or prepayment with respect thereto. The Borrower promises to pay all costs and
expenses, including attorneys' fees and disbursements, incurred in the
collection or enforcement hereof.
Except as permitted by Section 9.6 of the Credit Agreement, this Note
may not be assigned to any Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF CALIFORNIA. THE BORROWER AND, BY ACCEPTANCE HEREOF, THE LENDER WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS NOTE OR ANY ACTION ARISING
OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES
SUCH ACTION OR ACTIONS.
Informix Software, Inc., a Delaware
corporation.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
2
SCHEDULE
REVOLVING LOAN NOTE
--------------------------------------------------------------------------------
Amount of Unpaid
Type and Principal Principal
Funding Amount of Interest Paid or Amount of Notation
Date Loan Period Interest Rate Prepaid Note Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3
EXHIBIT E-1
FORM OF
NOTICE OF BORROWING
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement, dated
as of December ___, 1997, as the same may be amended, supplemented, replaced,
renewed or otherwise modified from time to time (as so modified, the "CREDIT
AGREEMENT"), by and among Informix Software, Inc., a Delaware corporation (the
"BORROWER"), each of the banks and other financial institutions that either now
or in the future are parties thereto as lenders (the "LENDERS"), BankBoston,
N.A., a national banking association, in its capacity as the L/C Issuer (in such
capacity, together with any successors thereto in such capacity, the "L/C
ISSUER") and BankBoston, N.A., a national banking association, in its capacity
as administrative agent on behalf of the Lenders (in such capacity, the
"AGENT"). Terms with initial capital letters used but not defined herein have
the meanings assigned to them in the Credit Agreement.
Pursuant to Article 2 of the Credit Agreement:
1. The Borrower hereby requests to borrow Revolving Loans in the
aggregate amount of $ ______________ on ____________, 199__(1)in the form of
__________(2)Loans [for an Interest Period, in the case of LIBOR Rate Loans, of
_____(3)](the "REVOLVING LOANS"); and
2. The Borrower hereby represents and warrants as follows:
(a) All of the representations and warranties contained in Article 4
of the Credit Agreement and in the other Loan Documents are true and correct in
all material respects on and as of the date hereof as though made on and as of
this date (except to the extent that such representations and warranties
expressly were made only as of a specific date);
---------------------
(1) Must be a Business Day or a LIBOR Business Day, as applicable.
(2) Insert form of Loans (Base Rate or LIBOR Rate)
(3) Must be one, two, three or six months.
1
(b) No Default or Event of Default exists or would result from the
making of the Loans; and
(c) All other conditions to borrowing set forth in Section 3.2 of the
Credit Agreement are satisfied.
Date: _____________, 199___.
Informix Software, Inc., a Delaware
corporation
By: (4)
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
------------------------
(4) Must be a Responsible Officer.
2
EXHIBIT E-2
FORM OF
NOTICE OF ISSUANCE
TO: BANKBOSTON, N.A, as Agent and L/C Issuer
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent and L/C Issuer
000 Xxxxxxx Xxxxxx XX 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Letter of Credit Department
Reference is hereby made to the Senior Secured Credit Agreement, dated
as of December ___, 1997, as the same may be amended, supplemented, replaced,
renewed or otherwise modified from time to time (as so modified, the "CREDIT
AGREEMENT"), by and among Informix Software, Inc., a Delaware corporation (the
"BORROWER"), each of the banks and other financial institutions that either now
or in the future are parties thereto as lenders (the "LENDERS"), BankBoston,
N.A., a national banking association, in its capacity as the L/C Issuer (in such
capacity, together with any successors thereto in such capacity, the "L/C ISSUER
") and BankBoston, N.A., a national banking association, in its capacity as
administrative agent on behalf of the Lenders (in such capacity, the "AGENT").
Terms with initial capital letters used but not defined herein have the meanings
assigned to them in the Credit Agreement.
Pursuant to Article 2 of the Credit Agreement:
1. The Borrower hereby requests the L/C Issuer to issue a Letter of
Credit (the "LETTER OF CREDIT") as follows:
a. Date of issuance: _________, 199___;
b. Face amount: $___________;
c. Purpose and circumstances of the Letter of Credit:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
; and
d. Expiry date: __________________________.
1
2. The Borrower hereby represents and warrants as follows:
(a) All of the representations and warranties contained in
Article 4 of the Credit Agreement and in the other Loan Documents are true and
correct in all material respects on and as of the date hereof as though made on
and as of this date (except to the extent that such representations and
warranties expressly were made only as of a specific date);
(b) No Default or Event of Default exists or would result from
the issuance of the Letter of Credit; and
(c) All other conditions to the issuance of the Letter of Credit
set forth in Sections 2.2 and 3.2 of the Credit Agreement are satisfied.
Date: _____________, 199___.
Informix Software, Inc., a Delaware
corporation
By: (1)
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
--------------------------
(1) Must be a Responsible Officer.
2
EXHIBIT E-3
FORM OF
NOTICE OF CONTINUATION/CONVERSION
TO: BANKBOSTON, N.A, as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement, dated
as of December ___, 1997, as the same may be amended, supplemented, replaced,
renewed or otherwise modified from time to time (as so modified, the "CREDIT
AGREEMENT"), by and among Informix Software, Inc., a Delaware corporation (the
"BORROWER"), each of the banks and other financial institutions that either now
or in the future are parties thereto as lenders (the "LENDERS"), BankBoston,
N.A., a national banking association, in its capacity as the L/C Issuer (in such
capacity, together with any successors thereto in such capacity, the "L/C
ISSUER") and BankBoston, N.A., a national banking association, in its capacity
as administrative agent on behalf of the Lenders (in such capacity, the
"AGENT"). Terms with initial capital letters used but not defined herein have
the meanings assigned to them in the Credit Agreement.
Pursuant to Article 2 of the Credit Agreement:
[FOR CONVERSION OF BASE RATE INTO LIBOR RATE]
The Borrower hereby requests to convert $__________ of presently
outstanding Base Rate Loans on ________, 199__ into LIBOR Rate Loans with an
Interest Period of __________ expiring on ___________________, ___________.
[FOR CONVERSION OF LIBOR RATE INTO BASE RATE]
The Borrower hereby requests to convert $____________ of presently
outstanding LIBOR Rate Loans with an Interest Period of ________ expiring on
_________, 199___ into Base Rate Loans.
1
[FOR CONTINUATION OF LIBOR RATE]
The Borrower hereby requests to continue $__________________ of presently
outstanding LIBOR Rate Loans with an Interest Period of ______________ expiring
on _________, 199___ as LIBOR Rate Loans with an Interest Period of ________
expiring on _______, _______.
Date: ____________, 199___.
Informix Software, Inc., a Delaware
corporation
By: (1)
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
--------------------------
(1) Must be a Responsible Officer.
2
EXHIBIT E-7
FORM OF
NOTICE OF RESPONSIBLE OFFICERS
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement,
dated as of December ___,1997, as the same may be amended, supplemented,
replaced, renewed or otherwise modified from time to time (as so modified,
the "CREDIT AGREEMENT"), by and among Informix Software, Inc., a Delaware
corporation (the "BORROWER"), each of the banks and other financial
institutions that either now or in the future are parties thereto as lenders
(the "LENDERS"), BankBoston, N.A., a national banking association, in its
capacity as the L/C Issuer (in such capacity, together with any successors
thereto in such capacity, the "L/C ISSUER") and BankBoston, N.A., a national
banking association, in its capacity as administrative agent on behalf of the
Lenders (in such capacity, the "AGENT"). Terms with initial capital letters
used but not defined herein have the meanings assigned to them in the Credit
Agreement.
The Borrower hereby designates the following individuals as
Responsible Officers, authorized to request and take other actions with respect
to Loans and Letters of Credit on behalf of the Borrower and certifies that the
signatures and telephone numbers of those individuals are as follows:
-------------------------------------------------------------------------------
Name Office Signature Phone No.
-------------------------------------------------------------------------------
Chairman,
Xxxxxx Xxxxxxxxx President & CEO
-------------------------------------------------------------------------------
Xxxx-Xxxx Dexmier Executive Vice
President & CFO
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Each Lender Party is hereby authorized to rely on this Notice of
Responsible Officers unless and until a new Notice of Responsible Officers is
received by it, irrespective of whether any of the information set forth herein
shall have become inaccurate or false. Additional persons may be designated as
Responsible Officers, or the designation of any person may be revoked, at any
time,
1
by subsequent Notices of Responsible Officers signed by any person who purports
to be a Senior Officer of the Borrower.
The foregoing supersedes any Notice of Responsible Officers presently
in effect under the Credit Agreement.
Date:_________________, 199__.
Informix Software, Inc., a Delaware
corporation
By: (1)
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-----------------------
(1) Must be a Senior Officer
2
EXHIBIT F-1
FORM OF
SECRETARY'S CERTIFICATE
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
CLN Loan Dept. 01-08-04
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement,
dated as of December ____, 1997, as the same may be amended, supplemented,
replaced, renewed or otherwise modified from time to time (as so modified,
the "CREDIT AGREEMENT"), by and among Informix Software, Inc., a Delaware
corporation (the "COMPANY"), each of the banks and other financial
institutions that either now or in the future are parties thereto as lenders
(the "LENDERS"), BankBoston, N.A., a national banking association, in its
capacity as the L/C Issuer (in such capacity, together with any successors
thereto in such capacity, the "L/C ISSUER") and BankBoston, N.A., a national
banking association, in its capacity as administrative agent on behalf of the
Lenders (in such capacity, the "AGENT"). Terms with initial capital letters
used but not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Schedule 3.1.2 to the Credit Agreement, the undersigned
hereby certifies that he or she is the duly appointed, qualified and acting
Secretary of the Company and hereby further certifies as follows:
1. Attached as Appendix A is a true, correct and complete copy of
the Bylaws of the Company, including all amendments, as in effect on the date
hereof.
2. Attached as Appendix B are true, correct and complete copies of
resolutions duly adopted by the Board of Directors of the Company with respect
to the Loan Documents to which the Company is or will be a party. Such
resolutions have not been modified or rescinded and remain in full force and
effect as of the date hereof.
3. The following are the names of, the offices held by, and the
genuine signatures of, certain officers of the Company authorized to sign the
Loan Documents to which the Company is a party for and on behalf of the Company:
Name Office Signature
---- ------ ---------
___________________ ______________________ ____________________
1
___________________ ______________________ ____________________
4. There have been no changes in the charter of the Company since
the date of the certification thereof by the Secretary of State of its
jurisdiction of incorporation, as it is being delivered to the Agent on the date
hereof.
Date: December ____, 1997.
---------------------------------------
Name:
----------------------------------
The undersigned certifies that he or she is the duly appointed, qualified
and acting Chief Executive Officer of the Company and further certifies that
______________________is the duly appointed, qualified and acting Secretary of
the Company and that the signature set forth above is his or her genuine
signature.
Date: December ___, 1997.
----------------------------------------
Name:
-----------------------------------
2
EXHIBIT F-3
FORM OF
OFFICERS' CLOSING CERTIFICATE
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
000 Xxxxxxx Xxxxxx
CLN Loan Xxxx. 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement,
dated as of December ___, 1997, as the same may be amended, supplemented,
replaced, renewed or otherwise modified from time to time (as so modified,
the "CREDIT AGREEMENT"), by and among Informix Software, Inc., a Delaware
corporation (the "COMPANY"), each of the banks and other financial
institutions that either now or in the future are parties thereto as lenders
(the "LENDERS"), BankBoston, N.A., a national banking association, in its
capacity as the L/C Issuer (in such capacity, together with any successors
thereto in such capacity, the "L/C ISSUER") and BankBoston, N.A., a national
banking association, in its capacity as administrative agent on behalf of the
Lenders (in such capacity, the "AGENT"). Terms with initial capital letters
used but not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Schedule 3.1.2. to the Credit Agreement, the undersigned
hereby certify that they are the Chief Executive Officer and Chief Financial
Officer, respectively, of the Company and hereby further certify as follows:
1. We have carefully reviewed the terms of the Loan Documents to
which the Company is a party and have made, or caused to be made, such review of
the Company and its business affairs as we have considered necessary for the
purposes of preparing this Certificate.
2. We have carefully prepared and reviewed the contents of this
Certificate and have conferred with counsel for the Company for the purpose of
discussing the meaning of any provisions hereof that we desired to have
clarified.
3. All representations and warranties of the Company contained in
the Loan Documents to which the Company is a party are true and correct in all
material respects as of the date hereof as if made on such date (except for
representations that are being made only as of a specific date, which are true
and correct as of such date).
1
4. No Default or Event of Default exists on and as of the date
hereof or would result from the making of the Loans or the issuance of any
Letters of Credit being issued on the Closing Date.
5. All of the conditions precedent set forth in Sections 3.1 and 3.2
of the Credit Agreement have been satisfied, including without in any way
limiting the foregoing, the Company hereby certifies that it has received all
funds required to be received by it pursuant to Sections 3.1.12 and 3.1.13 of
the Credit Agreement.
6. The undersigned understand that the Agent and the Lenders are
relying materially on the truth and accuracy of the foregoing in connection with
the extension of credit to the Company under the Credit Agreement.
Date:____________________, 199__.
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
EXHIBIT F-5
FORM OF
BORROWING BASE CERTIFICATE
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
CLN Loan Dept. 01-08-04
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit Agreement,
dated as of December ___, 1997, as the same may be amended, supplemented,
replaced, renewed or otherwise modified from time to time (as so modified,
the "CREDIT AGREEMENT"), by and among Informix Software, Inc., a Delaware
corporation (the "COMPANY"), each of the banks and other financial
institutions that either now or in the future are parties thereto as lenders
(the "LENDERS"), BankBoston, N.A., a national banking association, in its
capacity as the L/C Issuer (in such capacity, together with any successors
thereto in such capacity, the "L/C ISSUER") and BankBoston, N.A., a national
banking association, in its capacity as administrative agent on behalf of the
Lenders (in such capacity, the "AGENT"). Terms with initial capital letters
used but not defined herein have the meanings assigned to them in the Credit
Agreement.
This Borrowing Base Certificate is being delivered pursuant to
Section 5.1.4 of the Credit Agreement. The undersigned is the Chief Financial
Officer, of the Company and hereby further certifies as of the date hereof, in
his capacity as an officer of the Company, as follows:
1
ELIGIBLE DOMESTIC ACCOUNTS
A. Aggregate amount of Domestic Accounts.
1. Previous Accounts Receivable Balance $___________
as of _________ (date)
2. Plus: Gross Sales for Current Month $___________
3. Plus: Other Debits to Accounts Receivable $___________
4. Less: Collections for Current Month $___________
5. Less: Credit Memos $___________
6. Less: Returns and Other Credits $___________
7. Current Accounts Receivable Balance
as of _________ (date). (Total of
lines A.1-A.6) $___________
B. Ineligible Domestic Accounts - list each such ___________
Account only once, in the first category in
which it appears.
1. Accounts Receivable as to which full $___________
payment has not been received within
sixty (60) days of the due date.
2. Accounts Receivable as to which goods, $___________
merchandise or other personal property
or services have not been fully
delivered or performed.
3. Accounts Receivable subject to defense, $___________
offset, counterclaim or other right to
avoid or reduce the liability by the
account debtor or any other person
obligated to make payment, to the
2
extent there exists a colorable claim for
such defense, offset, counterclaim or
other right.
4. Accounts Receivable as to which the $___________
account debtor or any other person
obligated to make payment is insolvent,
subject to bankruptcy or receivership
proceedings, or has made an assignment
for benefit of creditors.
5. Accounts Receivable as to which an $___________
affiliate of the Borrower or the
Borrower is the account debtor.
6. Accounts Receivable of any account $___________
debtor as to which thirty percent (30%)
are more than sixty (60) days past due.
7. Other Accounts Receivable deemed $___________
ineligible by Agent.
8. Total ineligible Accounts Receivable $___________
(An amount equal to the sum of
line B.1-B.7)
C. The aggregate amount of Eligible Domestic $___________
Accounts (An amount equal to Line A.7 minus
Line B.8).
D. Eligible Domestic Accounts Borrowing Base $___________
(An amount equal to 80% of Eligible Domestic
Accounts).
ELIGIBLE FOREIGN ACCOUNTS
E. Aggregate amount of Foreign Accounts.
3
1. Previous Accounts Receivable Balance $___________
as of _________ (date).
2. Plus: Gross Sales for Current Month $___________
3. Plus: Other Debits to Accounts $___________
Receivables
4. Less: Collections for Current Month $___________
5. Less: Credit Memos $___________
6. Less: Returns and Other Credits $___________
7. Current Accounts Receivable Balance $___________
as of ________ (date). (Total of ___________
lines E.1-E.6)
F. Ineligible Foreign Accounts - list each such
Account only once, in the first category in
which it appears.
1. Accounts Receivable as to which full $___________
payment has not been received within
sixty (60) days of the due date.
2. Accounts Receivable as to which goods, $___________
merchandise or other personal property
or services have not been fully
delivered or performed.
3. Accounts Receivable subject to defense, $___________
offset, counterclaim or other right to
avoid or reduce the liability by the
account debtor or any other person
obligated to make payment, to the
extent there exists a colorable claim
for such defense, offset, counterclaim
or other right.
4
4. Accounts Receivable as to which the $___________
account debtor or any other person
obligated to make payment is insolvent,
subject to bankruptcy or receivership
proceedings, or has made an assignment
for benefit of creditors.
5. Accounts Receivable as to which an $___________
affiliate of the Borrower or the
Borrower is the account debtor.
6. Accounts Receivable of any account $___________
debtor as to which thirty percent (30%)
are more than sixty (60) days past due.
7. Other Accounts Receivable deemed $___________
ineligible by Agent.
8. Total ineligible Accounts Receivable $___________
(An amount equal to the sum of
Lines F.1-F.7).
G. The aggregate amount of Borrower's Eligible $___________
Foreign Accounts (An amount equal to
Line E.7 minus Line F.8).
H. Eligible Foreign Accounts Borrowing Base $___________
(An amount equal to 50% of Eligible Foreign
Accounts).
I. Total Eligible Borrowing Base (An amount $___________
equal to the sum of Line D plus Line H).
(i) Total Eligible Domestic Receivables as of ________ [end of previous
calendar month]: ___ x .80 = ___.
5
(ii) Total Eligible Foreign Receivables as of ________ [end of previous
calendar month]: ___ x .50 = ___
TOTAL BORROWING BASE:__________
[KATIE: IS I(i) AND (ii) NECESSARY--ISN'T "I" THE TOTAL BORROWING BASE?]
Said claims, accounts, money, merchandise and security are assigned as
collateral security for indebtedness and liabilities of the undersigned to
Lenders as more fully provided in the Credit Agreement and with and subject to
all the covenants, terms, and provisions thereof.
INFORMIX SOFTWARE, INC.
By:
-------------------------------------
Printed Name:
--------------------------
Title:
----------------------------------
6
EXHIBIT F-6
FORM OF
COMPLIANCE CERTIFICATE
TO: BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
BANKBOSTON, N.A, as Agent
CLN Loan Dept. 01-08-04
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Reference is hereby made to the Senior Secured Credit
Agreement, dated as of December __ , 1997, as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time (as
so modified, the "CREDIT AGREEMENT") by and among Informix Software, Inc., a
Delaware corporation (the "COMPANY"), each of the banks and other financial
institutions that either now or in the future are parties thereto as lenders
(the "LENDERS"), BankBoston, N.A., a national banking association, in its
capacity as the L/C Issuer (in such capacity, together with any successors
thereto in such capacity, the "L/C ISSUER") and BankBoston, N.A., a national
banking association, in its capacity as administrative agent on behalf of the
Lenders (in such capacity, the "AGENT"). Terms with initial capital letters
used but not defined herein have the meanings assigned to them in the Credit
Agreement.
This Compliance Certificate is being delivered pursuant to
Section 5.1.3 of the Credit Agreement and relates to certain financial
statements of the Company (the "FINANCIAL STATEMENTS") as of and for periods
ended ________________ (the "FINANCIAL STATEMENT DATE"). The undersigned is the
Chief Financial Officer (the "CFO") of the Company and hereby further certifies
as of the date hereof, in his capacity as an officer of the Company, as follows:
1. I have reviewed the terms of the Loan Documents and have made, or
have caused to be made under my supervision, a review in reasonable detail of
the transactions and condition of the Company and the Consolidated Subsidiaries
for the accounting period covered by the Financial Statements.
2. The figure set forth in Schedule A hereto for determining
compliance by the Company with the financial covenants contained in the Credit
Agreement hereto are true and complete as of the date hereof and, after due
inquiry of the Company's environmental consultants and the appropriate Company
personnel, the Company and its Subsidiaries remain in full compliance with the
provisions of Section 5.1.3 of the Credit Agreement.
1
3. The activities of the Company and its Subsidiaries during the
period covered by the Financial Statements have been reviewed by the CFO or by
employees or agents under the CFO's immediate supervision. Based on such
review, to the best knowledge and belief of the undersigned CFO, and as of the
date of this Report, no Default has occurred.
WITNESS my hand this ______ day of ____________, 19__.
Informix Software, Inc.
By:
-------------------------------------------
Printed Name:
---------------------------------
Title:
----------------------------------------
2
SCHEDULE A
TO COMPLIANCE CERTIFICATE
---------------------------
QUICK RATIO (SECTION 6.5.1)
---------------------------
REQUIRED: RATIO NOT TO BE LESS THAN 1.25:1.00 FOR EACH QUARTER ENDED
DECEMBER 31, 1997 AND THEREAFTER
ACTUAL:
(i) AGGREGATE OF CASH $_________
(ii) AGGREGATE OF ACCOUNTS RECEIVABLE $_________
(net of any reserves required pursuant to GAAP)
(iii) Line (i) plus Line (ii) $_________
(iv) AGGREGATE OF CURRENT LIABILITIES $_________
(including all Borrowings under the Credit Agreement)
(v) AGGREGATE OF DEFERRED AND UNEARNED REVENUES $_________
(vi) Line (iv) minus Line (v) $_________
(vii) QUICK RATIO: Line (iii) divided by Line (vi) $_________
3
MINIMUM QUARTERLY REVENUE (SECTION 6.5.2)
REQUIRED:
(i) FISCAL QUARTER ENDING ON DECEMBER 31, 1997 $150,000,000
(ii) FISCAL QUARTER ENDING ON MARCH 31, 1998 $150,000,000
(iii) FISCAL QUARTER ENDING ON JUNE 30, 1998 $150,000,000
(iv) FISCAL QUARTER ENDING ON SEPTEMBER 30, 1998 $160,000,000
AND EACH FISCAL QUARTER THEREAFTER
ACTUAL:
(i) AGGREGATE REVENUE FOR SUCH $_________
FISCAL QUARTER
(ii) AGGREGATE RESTATED REVENUE $_________
FOR SUCH FISCAL QUARTER
(iii) Line (ii) minus Line (ii) $_________
4
OPERATING PROFITABILITY (LOSS) (SECTION 6.5.3)
REQUIRED:
(i) FISCAL QUARTER ENDING ON DECEMBER 31, 1997 ($10,000,000)
(ii) FISCAL QUARTER ENDING ON MARCH 31, 1998 ($10,000,000)
(iii) FISCAL QUARTER ENDING ON JUNE 30, 1998 $10,000,000
(iv) FISCAL QUARTER ENDING ON SEPTEMBER 30, 1998 $15,000,000
AND EACH FISCAL QUARTER THEREAFTER
ACTUAL:
(i) NET INCOME FOR SUCH FISCAL QUARTER $_________
(ii) INTEREST EXPENSE FOR SUCH FISCAL QUARTER $_________
(iii) TAXES MEASURED BY INCOME FOR SUCH $_________
FISCAL QUARTER
(iv) EXTRAORDINARY LOSSES FOR SUCH FISCAL QUARTER $_________
(v) EXTRAORDINARY GAINS FOR SUCH FISCAL QUARTER $_________
(vi) DEPRECIATION AND AMORTIZATION EXPENSE $_________
FOR SUCH FISCAL QUARTER
(vii) Line (i) plus Line (ii) plus Line (iii) plus Line
(iv) plus Line (vi) minus Line (v) $_________
5
MINIMUM OPERATING CASH FLOW (SECTION 6.5.4)
REQUIRED: IN EXCESS OF $1.00 BEGINNING WITH THE FISCAL QUARTER ENDING ON
JUNE 30, 1998.
ACTUAL:
(i) OPERATING INCOME FOR SUCH FISCAL QUARTER $_________
(ii) RESTATED REVENUE $_________
(to the extent related cash was collected in
prior Fiscal Quarters)
(iii) CAPITALIZED SOFTWARE COSTS FOR SUCH $_________
FISCAL QUARTER
(iv) CAPITAL EXPENDITURES FOR SUCH FISCAL QUARTER $_________
(v) CASH OUTLAYS ARISING FROM RESTRUCTURING $_________
CHARGES TAKEN IN PRIOR FISCAL QUARTERS
(vi) DEPRECIATION AND AMORTIZATION EXPENSE $_________
FOR SUCH FISCAL QUARTER
(vii) Line (i) plus Line (vi) minus (the sum of
Line (iii) plus Line (iv) plus Line (v)) $_________
6
INTEREST COVERAGE RATIO (SECTION 6.5.4)
REQUIRED: RATIO NOT TO BE LESS THAN 1.25:1.00 FOR EACH QUARTER ENDED
JUNE 30, 1998 AND THEREAFTER
ACTUAL:
(i) OPERATING CASH FLOW FOR SUCH FISCAL $_________
QUARTER
(ii) INTEREST EXPENSE FOR SUCH FISCAL QUARTER $_________
(iii) AMORTIZATION EXPENSE (INCLUDING CAPITAL $_________
LEASES) FOR SUCH FISCAL QUARTER
(vii) Line (i) divided by (the sum of Line (ii) plus
LINE (iii)) $_________
CAPITAL EXPENDITURES (SECTION 6.5.5)
REQUIRED: NOT GREATER THAN $15,000,000 PLUS ANY CARRY FORWARD AMOUNT
ACTUAL:
(A) CARRY FORWARD AMOUNT $_________
(B)(i) INVESTMENTS IN FIXED AND CAPITAL ASSETS
(EXCLUDING CAPITALIZED SOFTWARE COSTS) $_________
(B)(ii) CAPITALIZED LEASES $_________
(B)(iii) TOTAL CAPITAL EXPENDITURES [(B)(i) +(B)(ii) $_________
7
EXHIBIT G-1
December 31, 1997
BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Re: Informix Software, Inc. -- Senior Secured Credit Agreement dated as of
December 31, 1997
Ladies and Gentlemen:
We have acted as counsel to Informix Software, Inc., a Delaware corporation
(the "Borrower") and Informix Corporation, a Delaware corporation ("Informix")
that owns 100% of the issued and outstanding capital stock of the Borrower, in
connection with:
(i) the Senior Secured Credit Agreement dated as of December 31,
1997 (the "Credit Agreement") by and among the Borrower, BankBoston, N.A.,
a national banking association ("BankBoston"), as agent (in such capacity,
the "Agent") for the banks and other institutions that either now or in the
future are parties to the Credit Agreement (the "Lenders"), BankBoston in
its capacity as L/C Issuer (in such capacity, the "L/C Issuer"), Canadian
Imperial Bank of Commerce in its capacity as syndication agent (the
"Syndication Agent"), and the Lenders;
(ii) the Revolving Loan Notes dated December 31, 1997 made by the
Borrower payable to the order of the respective Lenders named therein
(collectively, the "Revolving Notes");
(iii) the Pledge and Security Agreement dated as of December 31
1997 (the "Pledge and Security Agreement") by and between the Borrower and
the Agent;
(iv) the Pledge Agreement dated as of December 31, 1997 (the
"Informix Pledge Agreement") by and between Informix and the Agent;
(v) the Continuing Guaranty dated as of December 31, 1997 (the
"Guaranty") executed by Informix;
(vi) the financing statement dated December 31, 1997 on Form UCC-1
in the form attached as Exhibit A hereto (the "'Financing Statement"); and
Page 2
(vii) the Notice of Security Interest in Patents and Trademarks
dated December 31, 1997 (the "Patent and Trademark Notice") and the Notice
of Security Interest in Copyrights dated December 31, 1997 (the "Copyright
Notice").
Each initially capitalized term used and not defined herein shall have the
meaning assigned to that term in the Credit Agreement or, if no meaning is
assigned therein, in the Pledge and Security Agreement. The Collateral (as
defined in the Pledge and Security Agreement) is collectively referred to herein
as the "Personal Property Collateral." The "Intellectual Property Collateral"
shall mean any portion of the Collateral (as defined in the Pledge and Security
Agreement) that consists of Trademarks, patents or copyrights. The Pledged
Stock (as defined in the Pledge and Security Agreement and the Informix Pledge
Agreement) is herein referred to collectively as the "Shares." The Credit
Agreement, the Revolving Notes, the Pledge and Security Agreement, the Informix
Pledge Agreement, the Guaranty, the Patent and Trademark Notice and the
Copyright Notice are collectively referred to as the "Loan Documents." The
Uniform Commercial Code -- Secured Transactions and the Uniform Commercial Code
-- Investment Securities as enacted and in effect in the State of California are
collectively referred to herein as the "California Code."
In addition to examining executed originals or copies of the Loan Documents
and the Financing Statement, we have examined executed originals, conformed
copies or copies of the following:
(1) Records of proceedings of the Board of Directors of the Borrower and
Informix by which resolutions were adopted relating to matters
covered by this opinion.
(2) A certificate of the Secretary of State of the State of Delaware
dated December 24, 1997, with respect to the good standing of
Informix in the State of Delaware; a certificate of the Secretary of
State of the State of Delaware dated December 24, 1997, with respect
to the good standing of Illustra Information Technologies, Inc. in
the State of Delaware; a certificate of the Secretary of State of
the State of Delaware dated December 24, 1997, with respect to the
good standing of Informix Credit Company in the State of Delaware; a
certificate of the Secretary of State of the State of Delaware dated
December 24, 1997, with respect to the good standing of Informix
International, Inc. in the State of Delaware; a certificate of the
Secretary of State of the State of Delaware dated December 24, 1997,
with respect to the good standing of Informix Software, Inc. in the
State of Delaware; and a certificate of the Secretary of State of
the State of Delaware dated December 24, 1997, with respect to the
good standing of Picasso Systems, Inc. in the State of Delaware.
Page 3
(3) A certificate of the Secretary of State of the State of California,
dated December 24, 1997, as to the good standing of the Borrower as
a foreign corporation in the State of California; and a tax status
certificate from the Franchise Tax Board of the State of California,
dated December 24, 1997, as to the tax standing of the Borrower in
the State of California. A certificate of the Secretary of State of
the State of California dated December 24, 1997, with respect to the
good standing of Stanford Technology Group, Inc.; and a tax status
certificate from the Franchise Tax Board of the State of California,
dated December 24, 1997, as to the tax standing of Stanford
Technology Group, Inc. in the State of California. A certificate of
the Secretary of State of the State of California dated December 24,
1997, with respect to the good standing of Centerview Software,
Inc.; and a tax status certificate from the Franchise Tax Board of
the State of California, dated December 24, 1997, as to the tax
standing of Centerview Software, Inc. in to State of California.
(4) Certificates of officers of the Borrower and Informix as to certain
factual matters establishing a predicate for the opinions rendered
herein.
(5) Each of the "Reviewed Agreements" referenced on Exhibit B hereto.
In addition, we have examined and relied upon such corporate records of the
Borrower and Informix as we have deemed necessary or appropriate for the
purposes of the opinions expressed below. We have also relied upon and obtained
from public officials and officers and representatives of the Borrower and
Informix such other certificates and assurances as we consider necessary for the
purpose of rendering this opinion.
We have assumed with your permission that:
(a) The genuineness of all signatures, the legal capacity of all
natural persons to execute and deliver documents, the authenticity and
completeness of documents submitted to us as originals and the completeness
and conformity with authentic original documents of all documents submitted
to us as copies, and that all documents, books and records made available
to us by the Borrower and Informix are accurate and complete.
(b) Except as disclosed to us, that there are no agreements or
understandings between or among the Borrower, Informix, the Lenders, the
Agent or third parties that would expand, modify or otherwise affect the
terms of the Loan Documents or the respective rights or obligations of the
parties thereunder and that the Loan Documents correctly and completely set
forth the intent of all parties thereto.
Page 4
(c) That all parties to the Loan Documents (other than the
Borrower and Informix) have filed all required franchise tax returns, if
any, and paid all required taxes, if any, under the California Revenue &
Taxation Code.
(d) That the Loan Documents to which the Agent and each Lender is
contemplated to be a party have been duly authorized, executed and
delivered by such person and that each such person has full power,
authority and legal right to enter into and perform the terms and
conditions of the Loan Documents to be performed by each such Person and
that each Loan Document to which such Person is a party constitutes a
legal, valid and binding obligation of such person, enforceable against it
in accordance with its terms.
(e) Each Lender is a (i) national bank (ii) California bank, (iii)
foreign (other state) bank, or (iv) foreign (other nation) bank that has
assets at least equal to $100 million, is licensed to maintain an office in
California, is licensed or otherwise authorized by another state to
maintain an agency or branch office in that state, or maintains a federal
agency or federal branch in any state.
(f) With respect to certain matters of fact, that the
representations and warranties of the Borrower and Informix set forth in
the Loan Documents to which each is a party, the certificates of certain
officers of the Borrower and Informix delivered to you in connection with
the transactions contemplated by the Credit Agreement and the certificates
of certain officers of the Borrower and Informix referred to in
paragraph (4) above are true and correct.
As used in this opinion, the expression "to our knowledge," "known to us"
or similar wording with respect to matters of fact means that during the course
of our representation of the Borrower and Informix no information has come to
the attention of the attorneys of our firm involved in representation of the
Borrower and Informix which would give them reason to believe that the facts are
inaccurate; HOWEVER, except to the extent expressly set forth herein, we have
made no independent investigation to determine the existence or absence of such
facts, and any limited inquiry undertaken by us during the preparation of this
opinion should not be regarded as such an investigation. No inference as to our
knowledge of the existence or absence of any facts underlying any opinion given
"to our knowledge" should be drawn from the fact of our representation of the
Borrower or Informix. Specifically, in rendering the opinion set forth in
paragraph 14 below, we have not made any independent investigation of court
records to determine whether any actions have been filed.
Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth herein, we are
of the opinion that:
Page 5
1. The Borrower has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, is duly qualified as a foreign corporation under the laws of the
State of California and has all requisite power and authority to execute,
deliver and perform its obligations under the Credit Agreement, the
Revolving Notes and the Pledge and Security Agreement, and to own its
properties, including, without limitation, the Personal Property
Collateral, the Intellectual Property Collateral and the shares owned by
it.
2. Each of Informix, Illustra Information Technologies, Inc.,
Informix Credit Company, Informix International, Inc., Informix Software,
Inc., and Picasso Systems, Inc. have been duly incorporated and each is a
validly existing corporation in good standing under the laws of the State
of Delaware. Informix has all requisite power and authority to execute,
deliver and perform its respective obligations under the Informix Pledge
Agreement and the Guaranty and to own its properties. Each of Centerview
Software, Inc. and Stanford Technology Group, Inc. have been duly
incorporated and each is a validly existing corporation in good standing
under the laws of the State of California.
3. The execution and delivery of the Credit Agreement, the
Revolving Notes, and the Pledge and Security Agreement by the Borrower and
the performance of its obligations thereunder have been duly authorized by
all necessary corporate action of the Borrower.
4. The execution and delivery of the Informix Pledge Agreement
and the Guaranty by Informix and the performance of its respective
obligations thereunder have been duly authorized by all necessary corporate
action of Informix.
5. The Credit Agreement, the Revolving Notes, and the Pledge and
Security Agreement have each been duly executed and delivered by the
Borrower.
6. The Informix Pledge Agreement and the Guaranty have been duly
executed and delivered by Informix.
7. Each of the Credit Agreement, the Revolving Notes, and the
Pledge and Security Agreement constitutes a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with its terms.
8. Each of the Informix Pledge Agreement and the Guaranty
constitutes a legal, valid and binding obligation of Informix, enforceable
against Informix in accordance with its terms.
Page 6
9. A valid security interest in favor of the Agent has been
granted by the Borrower in the Collateral, to the extent a security
interest can be created therein under the California Code. Upon the filing
of the Financing Statement with the California Secretary of State, the
security interest in the interests of the Borrower in the Personal Property
described in both the Pledge and Security Agreement and the Financing
Statement will be perfected to the extent security interests therein can be
perfected by filing in California of UCC-1 Financing Statements under the
California Code. A valid and perfected security interest has been created
in favor of the Agent by the Borrower and Informix, respectively, in the
Shares (which are in existence on the date of the Pledge Agreement)
described in the Pledge and Security Agreement and the Informix Pledge
Agreement, respectively, to the extent the certificates representing such
Shares endorsed in blank have been delivered to the Agent in the State of
California in accordance with the provisions of the Pledge and Security
Agreement and the Informix Pledge Agreement, respectively.
10. The execution and delivery of the Credit Agreement, the
Revolving Notes, and the Pledge and Security Agreement by the Borrower and
the performance of its obligations thereunder do not result in a breach, or
violation of or Regulations G, U, T and X of the Board of Governors of the
Federal Reserve System. The Borrower is not engaged principally, or as one
of its principal activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulations U and X of the Board of Governors of the Federal Reserve
System).
11. The Borrower is not an "investment company" or a company
"controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended.
12. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Revolving Notes, and the Pledge and Security
Agreement do not and will not (a) violate or conflict with the charter or
bylaws of the Borrower, or, to our knowledge, any order, judgment or decree
of any court or other agency of government binding on the Borrower; (b)
conflict in any material respect with, result in a material breach of or
constitute a material default under any Reviewed Agreements; or (c) result
in or require the creation or imposition of any Lien upon any of the
Borrower's assets under any Reviewed Borrower Agreement, other than
Permitted Liens. The execution and delivery by the Borrower of the Credit
Agreement, the Revolving Notes, and the Pledge and Security Agreement, the
creation of the security interests on the Closing Date, and the incurrence
and repayment of Debt by the Borrower pursuant to the Loan Documents and
the consummation of the transactions which are contemplated by the Credit
Agreement to be consummated by the Borrower on the
Page 7
Closing Date do not violate any state or federal law or regulation
applicable to the Borrower, or require any authorization, consent, waiver
or approval of any federal, state governmental authority or regulatory
body, except for filings and recordings required for the perfection of
Liens and filings and authorizations as may be required under any
securities or Blue Sky laws and such authorizations, consents, waivers or
approvals, the failure to make or obtain which would not have a Material
Adverse Effect on the Borrower and its subsidiaries, taken as a whole or on
its ability to perform its obligations under the Loan Documents, taken as a
whole.
13. The execution, delivery and performance by Informix of the
Informix Pledge Agreement and the Guaranty do not and will not (a) violate
or conflict with the charter or bylaws of Informix, or to our knowledge any
order, judgment or decree of any court or other agency of government
binding on Informix; (b) conflict with, result in a material breach of or
constitute a material default under any Reviewed Agreements; or (c) result
in or require the creation or imposition of any Lien upon any of Informix's
assets under any Reviewed Guarantor Agreement, other than Permitted Liens.
The execution and delivery by Informix of the Guaranty and the Informix
Pledge Agreement do not violate any state and federal law or regulation
applicable to Informix, or require any authorization, consent, waiver or
approval of any federal or state governmental authority or regulatory body,
except for filings and filings and recordings required for the perfection
of Liens and such authorizations, consents, waivers or approvals the
failure to make or obtain which would not have a Material Adverse Effect on
the Borrower and its subsidiaries taken as a whole, or on Informix's
ability to perform its obligations under the Loan Documents, taken as a
whole.
14. To our knowledge, except as disclosed in Schedule 4.6 of the
Credit Agreement, there is no action, suit or proceeding pending or
threatened against the Borrower or Informix of the nature described in
Section 4.6 of the Credit Agreement or in which an injunction or order has
been entered preventing or adversely affecting the making of the Loans, the
granting of the Liens under the Collateral Documents.
The opinions set forth above are subject to the following exceptions,
qualifications, limitations, comments and additional assumptions:
(A) We express no opinion as to any matter relating to laws of any
jurisdiction other than the laws of the State of California, the General
Corporation Law of the State of Delaware and the federal laws of the United
States, as such are in effect on the date hereof, and we have made no inquiry
into, and we express no opinion as to, the statutes, regulations, treaties,
common laws or other laws of any other nation, state or jurisdiction. As you
know, we are not licensed to practice law
Page 8
in the State of Delaware and, accordingly, our opinions as to Delaware General
Corporation Law are based solely on a review of the official statutes of the
State of Delaware.
(B) We express no opinion as to (i) the effect of any bankruptcy,
insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or
other similar laws relating to or affecting the rights of creditors generally,
or (ii) the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable relief, whether considered in a proceeding in equity
or at law.
(C) We express no opinion regarding any of (i) the rights or remedies
available to any party for violations or breaches of any provisions which are
immaterial or the enforcement of which would be unreasonable under the then
existing circumstances, (ii) the rights or remedies available to any party for
material violations or breaches which are the proximate result of actions taken
by any party to the Loan Documents other than the party against whom enforcement
is sought, which actions such other party is not entitled to take pursuant to
the Loan Documents or which otherwise violate applicable laws, (iii) the rights
or remedies available to any party which takes discretionary action which is
arbitrary, unreasonable or capricious, or is not taken in good faith or in a
commercially reasonable manner, whether or not the Loan Documents permit such
action, (iv) the effect of the exercise of judicial discretion, whether in a
proceeding in equity or at law, and (v) the enforceability of any provision
authorizing the exercise of any self help, summary or unilateral remedy without
reasonable notice and opportunity to cure.
(D) We express no opinion as to the legality, validity, binding nature
or enforceability of (i) any provisions in the Loan Documents providing for the
payment or reimbursement of costs or expenses or indemnifying a party, to the
extent such provisions may be held unenforceable as contrary to public policy,
(ii) any provision of any Loan Documents insofar as it provides for the payment
or reimbursement of costs and expenses or indemnification for claims, losses or
liabilities in excess of a reasonable amount determined by any court or other
tribunal, (iii) any provisions regarding any party's ability to collect
attorneys' fees and costs in an action involving the Loan Documents, if the
party is not the prevailing party in such action (we call your attention to the
effect of Section 1717 of the California Civil Code, which provides that, where
a contract permits one party thereto to recover attorney's fees, the prevailing
party in any action to enforce any provision of the contract shall be entitled
to recover its reasonable attorneys' fees), or (iv) any provisions of any Loan
Documents imposing penalties or forfeitures, late payment charges or any
increase in interest rate, upon delinquency in payment or the occurrence of a
default to the extent they constitute a penalty or forfeiture or are otherwise
contrary to public policy.
Page 9
(E) We express no opinion with respect to the legality, validity,
binding nature or enforceability of (i) any vaguely or broadly stated waiver,
including without limitation, the waivers of diligence, presentment, demand,
protest or notice, (ii) any waivers or consents (whether or not characterized as
a waiver or consent in the Loan Documents) relating to the rights of the
Borrower and Informix or duties owing to them existing as a matter of law,
including, without limitation, waivers of the benefits of statutory or
constitutional provisions, to the extent such waivers or consents are found by
courts to be against public policy or which are ineffective pursuant to
California statutes and judicial decisions, or (iii) any waivers of any statute
of limitations to the extent such waivers are in excess of four years beyond the
statutory period.
(F) We express no opinion as to any provision of the Loan Documents
requiring written amendments or waivers of such documents insofar as it suggests
that oral or other modifications, amendments or waivers could not be effectively
agreed upon by the parties or that the doctrine of promissory estoppel might not
apply.
(G) We express no opinion as to the applicability or effect of
compliance or noncompliance by the Agent or any Lender with any state, federal
or other laws applicable to the Agent or any Lender or to the transactions
contemplated by the Loan Documents because of the nature of its business,
including its legal or regulatory status.
(H) We express no opinion regarding compliance or non-compliance (or the
effect thereof) with applicable anti-fraud provisions of federal or state
securities laws, or with respect to the "Blue Sky" laws of any state other than
the State of California.
(I) Our opinions set forth in paragraphs 1 and 2 as to valid existence
and good standing of the Borrower, Informix and the other entities listed
therein are based solely on the certificates referenced in paragraphs (2) and
(3) above (copies of which have been furnished to you).
(J) Our opinions in second sentence of each of paragraphs 12 and 13
above are intended to express our opinion that the execution, delivery and
performance by the Borrower and Informix, respectively, of the Loan Documents
are neither prohibited by, not do they subject the Borrower or Informix to a
fine, penalty or similar sanction that would be materially adverse to the
Borrower and Informix under the Delaware General Corporation Law or any law,
rule, regulation of the State of California or United States federal law or any
order, writ, judgment, decree, determination or award of any United States
federal or California state governmental authority that a lawyer practicing
commercial law in the State of California exercising customary professional
diligence would reasonably recognize to be applicable to the Borrower or
Informix, as applicable, and the
Page 10
transactions contemplated by the Loan Documents; accordingly, our opinions set
forth above in the second sentence of each of Paragraphs 12 and 13 are limited
by the foregoing.
(K) Our opinions in paragraphs 10 and 11 above are based solely on the
certificates referenced in paragraph (4) above.
(L) We express no opinion with respect to the legality, validity,
binding nature or enforceability of any provision of any Loan Documents to the
effect that rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to any other right or remedy, that
the election of some particular remedy or remedies does not preclude recourse to
one or more other remedies or that failure to exercise or delay in exercising
rights or remedies will not operate as a waiver of any such right or remedy.
(M) We express no opinion as to the effect of California Code
Sections 9501 through 9508, which, INTER ALIA, impose procedural limitations on
the exercise of remedies by a secured creditor.
(N) Except as expressly stated in paragraph 9 above, we express no
opinion as to the creation, attachment, validity, enforceability, perfection or
priority of a security interest in any item of collateral or the necessity of
making any filings or taking any other action in connection therewith.
(O) We express no opinion as to the effect on a secured creditor's
ability to realize on collateral of marshaling, substitution of collateral, or
similar doctrines or laws.
(P) We express no opinion as to the enforceability or perfection of any
security interest in collateral consisting of after-acquired property, except to
the extent such property is properly classified in a category specifically
referred to in the grant clause of the applicable security agreement and on the
relevant financing statements.
(Q) We express no opinion as to any matter concerning perfection or
continuation of a security interest in, or the ability of the Agent or any
Lender to realize upon, (i) collateral located, or deemed located, in any
jurisdiction other than the State of California and (ii) collateral moved
outside the State of California at any time.
(R) We express no opinion as to the effect of any provision of any Loan
Document purporting to relieve a secured party of any duty it may have to
preserve the value of collateral in its possession (SEE California Code
Section 9207; SEE, ALSO, CITIBANK, N.A. V. DATA LEASE FINANCIAL CORPORATION, 828
F.2d 686 (11th Cir. 1987)).
Page 11
(S) We express no opinion as to the effect of laws and judicial
decisions (i) which exonerate a surety, if the Agent or a Lender exercises
remedies for default that impair the subrogation rights of the surety against
the principal, or otherwise take an action which materially prejudices the
surety, without obtaining consent of the surety, (ii) relating to waivers or
subordination by a surety of its subrogation rights against the principal, its
contribution rights or other common law and statutory protection of a surety, or
(iii) which limit the liability of the surety to an amount no greater than the
liability of the principal.
(T) We express no opinion as to the enforceability or legal effect of any
provision of any Loan Document purporting to reinstate, as against any obligor
or guarantor, obligations or liabilities of such obligor which have been avoided
or which have arisen from transactions which have been rescinded or the payment
of which has been required to be returned by any court of competent
jurisdiction.
(U) This opinion speaks only at and as of its date and is based solely
on the facts and circumstances known to us at and as of such date. We express
no opinion as to the effect on any Lender's rights under the Loan Documents of
any statute, rule, regulation or other law which is enacted or becomes effective
after, or of any court decision which changes the law relevant to such rights
which is rendered after, the date of this opinion or the conduct of the parties
following the closing of the contemplated transaction. In addition, in
rendering this opinion, we assume no obligation to revise or supplement this
opinion should the present laws of the jurisdictions mentioned herein be changed
by legislative action, judicial decision or otherwise.
This opinion is rendered to the Agent, the L/C Issuer, the Syndication
Agent and the Lenders in connection with the Loan Documents and may not be
relied upon by any person other than the Agent, the L/C Issuer, the Syndication
Agent, the Lenders and their respective counsel, provided however, that the
Agent, the L/C Issuer, the Syndication Agent and the Lenders may provide this
opinion (a) to bank examiners and other regulatory authorities should they so
request or in connection with their normal examinations, (b) to the independent
auditors of the Agent, the L/C Issuer, the Syndication Agent and the Lenders,
(c) pursuant to order or legal process of any court or governmental agency, (d)
in connection with any legal action to which the Agent, the L/C Issuer, the
Syndication Agent or any Lender is a party arising out of the transactions
contemplated by the Loan Documents, or (e) the proposed assignee of or
participant in the interest of the Agent, the L/C Issuer, the Syndication Agent
or any Lender under the Loan Documents.
Very truly yours,
XXXXXX XXXXXXX XXXXXXXX & XXXXXX
Professional Corporation
EXHIBIT H
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _______________, 199___
Reference is hereby made to the Senior Secured Credit Agreement, dated
as of December ___, 1997, as the same may be amended, supplemented, replaced,
renewed or otherwise modified from time to time (as so modified, the "CREDIT
AGREEMENT"), by and among Informix Software, Inc., a Delaware corporation (the
"COMPANY"), each of the banks and other financial institutions that either now
or in the future are parties thereto as lenders (the "LENDERS"), BankBoston,
N.A., a national banking association, in its capacity as the L/C Issuer (in such
capacity, together with any successors thereto in such capacity, the "L/C ISSUER
") and BankBoston, N.A., a national banking association, in its capacity as
administrative agent on behalf of the Lenders (in such capacity, the "AGENT").
Terms with initial capital letters used but not defined herein have the meanings
assigned to them in the Credit Agreement.
____________________ (the "ASSIGNOR") and
_____________________________ (the "ASSIGNEE") agree as follows:
1. Subject to Section 3 below, the Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, WITHOUT RECOURSE, a ______% interest in and to all of the Assignor's
rights and obligations under the Credit Agreement and the other Loan Documents
as of the Effective Date (as defined below), including, without limitation, such
percentage interest in the Assignor's Revolving Commitment as is in effect on
the Effective Date and the Revolving Loans owing to the Assignor on the
Effective Date and the Revolving Loan Notes held by the Assignor and the
Assignor's participation in Letter of Credit Liability on the Effective Date.
2. The Assignor (a) represents and warrants that, as of the date
hereof, its Revolving Commitment (without giving effect to assignments thereof
which have not yet become effective) is $_________; (b) 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; (c)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or any of the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant thereto; (d) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto and (e) attaches the Revolving
Loan Notes referred to in paragraph 1 above and requests that the Agent exchange
such notes for new Revolving Loan Notes as follows: [a Revolving Loan Note,
dated ______________, 199__ in the principal amounts of $___________, payable
to the Assignor
1
or its registered assigns, and] a Revolving Loan Note, dated ______________,
199__ in the principal amount of $_____________ payable to the Assignee or its
registered assigns.
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement and the other Loan Documents, together with copies of the
financial statements referred to in Section 4.1 of the Credit Agreement or
delivered pursuant to Section 5.1 thereof prior to the date hereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (b)
agrees that it will, independently and without reliance upon the Agent or any
other Lender Party, 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 the Credit Agreement or the other Loan Documents; (c)
appoints and authorizes the Agent to take such actions 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; (d) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement or the other Loan
Documents are required to be performed by it as a Lender; and (e) specifies as
its address for notices the office set forth beneath its name on the signature
pages hereof.
4. The effective date of this Assignment and Acceptance shall be
_____________ or the date on which the Agent accepts this Assignment and
Acceptance in its discretion, whichever is later (the "EFFECTIVE DATE").(1)
Following the execution of this Assignment and Acceptance it will be delivered
to the Agent for acceptance and recording by the Agent, if the Agent accepts
such Assignment and Acceptance in its discretion. If the Agent shall fail to
accept this Assignment and Acceptance prior to the expiration of days after the
date hereof, this Assignment and Acceptance shall be without force and effect
for any purpose, and the Assignor shall remain the owner of the interest in the
Assignor's rights and obligations under the Loan Documents otherwise sold
hereby.
5. Upon acceptance and recording by the Agent, if any, as of the
Effective Date, (a) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan Documents and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Loan Documents.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments under the Credit Agreement and the other
Loan Documents in respect of the interest assigned hereby (including all
payments of principal, interest and Fees) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
-------------------
(1) Such date shall be at least 5 Business Days after the execution of this
Assignment and Acceptance.
2
Credit Agreement and the other Loan Documents for periods prior to the Effective
Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF CALIFORNIA.
[NAME OF ASSIGNOR]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
After the Effective Date:
Commitment: $
[NAME OF ASSIGNEE]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Notice Address:
After the Effective Date:
Commitment: $
Accepted this _____ day of
_______________, 199___
BANKBOSTON, N.A., a national
banking association, as Agent
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
3
