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EXHIBIT 10.2
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EXECUTION COPY
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CREDIT AGREEMENT
AMONG
NOVELLUS SYSTEMS, INC.
AND
THE LENDERS NAMED HEREIN
AND
ABN AMRO BANK N.V.,
AS AGENT FOR THE LENDERS
JUNE 9, 1997
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CREDIT AGREEMENT
Table of Contents
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SECTION I. INTERPRETATION
1.01. Definitions.................................................... 1
1.02. GAAP........................................................... 21
1.03. Headings....................................................... 21
1.04. Plural Terms................................................... 21
1.05. Time........................................................... 21
1.06. Governing Law.................................................. 21
1.07. Construction................................................... 22
1.08. Entire Agreement............................................... 22
1.09. Calculation of Interest and Fees............................... 22
1.10. Other Interpretive Provisions.................................. 22
SECTION II. CREDIT FACILITY
2.01. Revolving Loans................................................ 23
2.02. Notice of Borrowing............................................ 23
2.03. Interest Rates................................................. 24
2.04. LIBOR Loan Interest Periods.................................... 24
2.05. Scheduled Loan Payments........................................ 25
2.06. Purpose........................................................ 25
2.07. Commitment Reductions, Etc..................................... 25
2.08. Fees........................................................... 26
2.09. Prepayments.................................................... 26
2.10. Other Payment Terms............................................ 27
2.11. Notes and Interest Account..................................... 28
2.12. Loan Funding................................................... 28
2.13. Pro Rata Treatment............................................. 29
2.14. Change of Circumstances........................................ 31
2.15. Taxes on Payments.............................................. 33
2.16. Funding Loss Indemnification................................... 35
2.17. Replacement of Lenders......................................... 36
SECTION III. CONDITIONS PRECEDENT
3.01. Initial Conditions Precedent................................... 36
3.02. Conditions Precedent to Each Credit Event...................... 36
3.03. Covenant to Deliver............................................ 37
SECTION IV. REPRESENTATIONS AND WARRANTIES
4.01. Borrower's Representations and Warranties...................... 37
4.02. Reaffirmation.................................................. 42
SECTION V. COVENANTS
5.01. Affirmative Covenants.......................................... 42
5.02. Negative Covenants............................................. 46
5.03. Financial Covenants............................................ 54
SECTION VI. DEFAULT
6.01. Events of Default.............................................. 55
6.02. Remedies....................................................... 58
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SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS
7.01. Appointment, Powers and Immunities............................. 58
7.02. Reliance by Agent.............................................. 59
7.03. Defaults....................................................... 59
7.04. Indemnification................................................ 60
7.05. Non-Reliance................................................... 60
7.06. Resignation or Removal of Agent................................ 61
7.07. Authorization.................................................. 61
7.08. Agent in its Individual Capacity............................... 61
SECTION VIII. MISCELLANEOUS
8.01. Notices........................................................ 61
8.02. Expenses....................................................... 62
8.03. Indemnification................................................ 63
8.04. Waivers; Amendments............................................ 63
8.05. Successors and Assigns......................................... 64
8.06. Setoff......................................................... 68
8.07. No Third Party Rights.......................................... 68
8.08. Partial Invalidity............................................. 68
8.09. Jury Trial..................................................... 68
8.10 Counterparts................................................... 69
8.11. Confidentiality................................................ 69
SCHEDULES
I Lenders
1.01 Pricing Grid
3.01 Initial Conditions Precedent
4.01(g) Litigation
4.01(g) Subsidiaries
5.02(a) Existing Indebtedness
5.02(b) Existing Liens
5.02(e) Existing Investments
EXHIBITS
A Notice of Borrowing (2.02))
B Notice of Interest Period Selection (2.04(b))
C Note (2.11(a))
D Assignment Agreement (8.05(c))
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 9, 1997, is entered into by
and among:
(1) NOVELLUS SYSTEMS, INC., a California corporation
("Borrower");
(2) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as the
"Lenders"); and
(3) ABN AMRO BANK N.V., acting through its San Francisco
International Branch, as agent for the Lenders (in such capacity,
"Agent").
RECITALS
A. Borrower has requested the Lenders to provide a revolving loan
facility to Borrower.
B. The Lenders are willing to provide such a facility upon the terms
and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other document, instrument or
agreement referenced below.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Acquired Varian Assets" shall mean the "Assets" as defined in
the Varian Purchase Agreement.
"Adjusted Net Income, shall mean, with respect to Borrower
for any period, the sum, determined on a consolidated basis in
accordance with GAAP, of the following:
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(a) The net income or net loss of Borrower and its
Subsidiaries for such period before provision for income taxes;
plus
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of (i) all Interest Expenses of Borrower
and its Subsidiaries accruing during such period, (ii) all depreciation
and amortization expenses of Borrower and its Subsidiaries accruing
during such period, and (iii) all rental expenses of Borrower and its
Subsidiaries accruing during such period;
minus
(c) Fifty percent (50%) of all Capital Expenditures of
Borrower and its Subsidiaries accruing during such period;
plus
(d) In calculating the Adjusted Net Income of Borrower for any
period that includes the fiscal quarter ending June 30, 1997, the
lesser of (i) the sum (to the extent deducted in calculating net income
or loss in clause (a) above) of all charges taken by Borrower during
the fiscal quarter ending June 30, 1997 in connection with the
settlement by Borrower of its patent litigation with Applied Materials,
Inc. relating to Applied's Patent No. 5,362,526, and (ii) $84,000,000;
plus
(e) In calculating the Adjusted Net Income of Borrower for any
period that includes the fiscal quarter ending June 30, 1997, the
lesser of (i) the sum (to the extent deducted in calculating net income
or loss in clause (a) above) of all charges taken by Borrower during
the fiscal quarter ending June 30, 1997 in connection with the
write-off of in-process research and development charges relating to
Borrower's purchase of the Acquired Varian Assets, and (ii)
$115,000,000;
plus
(f) In calculating the Adjusted Net Income of Borrower for any
period that includes the fiscal quarter ending June 30, 1997, September
30, 1997 or December 31, 1997, the lesser of (i) the sum (to the extent
deducted in calculating net income or loss in clause (a) above) of all
other non-recurring, non-cash
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charges taken by Borrower during the period between the date of this
Agreement and December 31, 1997, and (ii) $40,000,000.
"Affiliate" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as a
trustee, guardian or other fiduciary, five percent (5%) or more of any class of
Equity Securities of such Person, (b) each Person that controls, is controlled
by or is under common control with such Person or any Affiliate of such Person
or (c) each of such Person's officers, directors, joint venturers and partners;
provided, however, that in no case shall Agent or any Lender be deemed to be an
Affiliate of Borrower or any of its Subsidiaries for purposes of this Agreement.
For the purpose of this definition, "control" of a Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall have the meaning given to that term in clause (3) of the
introductory paragraph hereof.
"Agent's Fee Letter" shall mean the letter agreement dated as of May 9,
1997 between Borrower and Agent.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean, with respect to any Lender, (a)
in the case of its Base Rate Loans, its Domestic Lending Office, and (b) in the
case of its LIBOR Loans, its Euro-Dollar Lending Office.
"Applicable Margin" shall mean, with respect to any Loan at any time,
the per annum margin which is determined pursuant to the Pricing Grid and added
to the Base Rate or LIBO Rate, as the case may be, for such Loan; provided,
however, that each Applicable Margin determined pursuant to the Pricing Grid
shall be increased by two percent (2.00%) on the date an Event of Default occurs
and shall continue at such increased rate unless and until such Event of Default
is waived in accordance with this Agreement. The Applicable Margins shall be
determined as provided in the Pricing Grid and may change for each Pricing
Period.
"Assignee Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in Subparagraph
8.05(c).
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 8.05(c).
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"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate
in effect on such date and (b) the Federal Funds Rate for such day plus one-half
percent (0.50%).
"Base Rate Loan" shall mean, at any time, a Loan which then bears
interest as provided in Subparagraph 2.03(a).
"Borrower" shall have the meaning given to that term in clause (1) of
the introductory paragraph hereof.
"Borrowing" shall mean a borrowing by Borrower consisting of the Loans
made by each of the Lenders on the same date and of the same Type pursuant to a
single Notice of Borrowing.
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California or New York, New
York and (b) if such Business Day is related to a LIBOR Loan, dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that
term in Subparagraph 2.14(d).
"Capital Asset shall mean, with respect to any Person, any tangible
fixed or capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"Capital Expenditures" shall mean, with respect to any Person and any
period, all expenses accrued by such Person during such period for the
acquisition of Capital Assets (including all indebtedness incurred or assumed in
connection with Capital Leases).
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a lessee.
"Cash Equivalents" shall mean:
(a) Direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United States
of America or
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obligations of any agency of the United States of America to the extent
such obligations are backed by the full faith and credit of the United
States of America, in each case maturing within one year from the date
of acquisition thereof;
(b) Certificates of deposit maturing within one year from the
date of acquisition thereof issued by a commercial bank or trust
company organized under the laws of the United States of America or a
state thereof or that is a Lender, provided that (A) such deposits are
denominated in Dollars, (B) such bank or trust company has capital,
surplus and undivided profits of not less than $100,000,000 and (C)
such bank or trust company has certificates of deposit or other debt
obligations rated at least A-1 (or its equivalent) by Standard and
Poor's Ratings Group or P-1 (or its equivalent) by Xxxxx'x Investors
Service, Inc.;
(c) Open market commercial paper maturing within 270 days from
the date of acquisition thereof issued by a corporation organized under
the laws of the United states of America or a state thereof, provided
such commercial paper is rated at least A-1 (or its equivalent) by
Standard and Poor's Ratings Group or P-1 (or its equivalent) by Xxxxx'x
Investors Service, Inc.; and
(d) Any repurchase agreement entered into with a commercial
bank or trust company organized under the laws of the United States of
America or a state thereof or that is a Lender, provided that (A) such
bank or trust company has capital, surplus and undivided profits of not
less than $100,000,000, (B) such bank or trust company has certificates
of deposit or other debt obligations rated at least A-1 (or its
equivalent) by Standard and Poor's Ratings Group or P-1 (or its
equivalent) by Xxxxx'x Investors Service, Inc., (C) the repurchase
obligations of such bank or trust company under such repurchase
agreement are fully secured by a perfected security interest in a
security or instrument of the type described in clause (a), (b) or (c)
above and (D) such security or instrument so securing the repurchase
obligations has a fair market value at the time such repurchase
agreement is entered into of not less than 100% of such repurchase
obligations.
"Change of Control" shall mean, with respect to Borrower, (a) the
acquisition by any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934 (as amended, the "Exchange Act"))
of (i) beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Exchange Act) of twenty-five
percent
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(25%) or more of the outstanding Equity Securities of Borrower entitled to vote
for members of the board of directors, or (ii) all or substantially all of the
assets of Borrower and its Subsidiaries taken as a whole; or (b) during any
period of twelve (12) consecutive calendar months, individuals who are directors
of Borrower on the first day of such period ("Initial Directors") and any
directors of Borrower who are specifically approved by two-thirds of the Initial
Directors and previously-approved Directors shall cease to constitute a majority
of the Board of Directors of Borrower before the end of such period.
"Change of Law" shall have the meaning given to that term in
Subparapraph 2.14(b).
"Closing Date" shall mean the date, not later than July 15, 1997
designated by Borrower in the initial Notice of Borrowing as the date for the
initial Borrowing.
"Commitment" shall mean, with respect to any Lender at any time, such
Lender's Proportionate Share at such time of the Total Commitment at such time.
"Commitment Fee Percentage" shall mean, with respect to the Unused
Commitment at any time, the per annum rate which is determined pursuant to the
Pricing Grid and used to calculate the Commitment Fees.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.08(b).
"Compliance Certificate" shall have the meaning given to that term in
Subparagraph 5.01(a).
"Contingent Obligation" shall mean, with respect to any Person, (a) any
Guaranty Obligation of that Person; and (b) any direct or indirect obligation or
liability, contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or
joint venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (iv) in respect to any Rate Contract that is not
entered into in connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent Obligation
shall (subject, in the case of Guaranty Obligations, to the last sentence of
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the definition of "Guaranty Obligation") be deemed equal to the maximum
reasonably anticipated liability in respect thereof, and shall, with respect to
item (b)(iv) of this definition be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture, note,
lease, loan agreement, security, deed of trust, mortgage, security agreement,
guaranty, instrument, contract, agreement or other form of contractual
obligation or undertaking to which such Person is a party or by which such
Person or any of its property is bound.
"Credit Documents" shall mean and include this Agreement, the Notes and
the Agent's Fee Letter; all other documents, instruments and agreements
delivered to Agent or any Lender pursuant to Paragraph 3.01; and all other
documents, instruments and agreements required to be delivered by Borrower or
any of its Subsidiaries to Agent or any Lender in connection with this Agreement
on or after the date of this Agreement.
"Credit Event" shall mean the making of any Loan; or the selection of
a new Interest Period for any LIBOR Loan.
"Debt Service Coverage Ratio" shall mean, with respect to Borrower for
any period, the ratio, determined on a consolidated basis in accordance with
GAAP, of:
(a) The Adjusted Net Income of Borrower for such period;
to
(b) The sum of (i) all Interest Expenses of Borrower and its
Subsidiaries accruing during such period, (ii) all rental expenses of
Borrower and its Subsidiaries accruing during such period, and (iii)
all payments of principal (or, in the case of Capital Leases, amounts
attributable to principal) of Funded Indebtedness paid or scheduled to
be paid by Borrower and its Subsidiaries during such period.
"Default" shall mean an Event of Default or any event or circumstance
not yet constituting an Event of Default which, with the giving of any notice or
the lapse of any period of time or both, would become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to fund its
portion of any Borrowing which it is required to fund under this Agreement
and has continued in such failure for three (3) Business Days after written
notice from Agent.
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"Dollars" and "$" shall mean the lawful currency of the United States
of America and, in relation to any payment under this Agreement, same day or
immediately available funds.
"Domestic Lending Office" shall mean, with respect to any Lender, (a)
initially, its office designated as such in Schedule I (or, in the case of any
Lender which becomes a Lender by an assignment pursuant to Subparagraph 8.05(c),
its office designated as such in the applicable Assignment Agreement) and (b)
subsequently such other office or offices as such Lender may designate to Agent
as the office at which such Lender's Base Rate Loans will thereafter be
maintained and for the account of which all payments of principal of, and
interest on such Lender's Base Rate Loans will thereafter be made.
"EBITDA" shall mean, with respect to Borrower for any period, the sum,
determined on a consolidated basis in accordance with GAAP, of the following:
(a) The net income or net loss of Borrower and its
Subsidiaries for such period before provision for income taxes;
plus
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of (i) all Interest Expenses of Borrower
and its Subsidiaries accruing during such period and (ii) all
depreciation and amortization expenses of Borrower and its Subsidiaries
accruing during such period;
plus
(c) In calculating EBITDA of Borrower for any period that
includes the fiscal quarter ending June 30, 1997, the lesser of (i) the
sum (to the extent deducted in calculating net income or loss in clause
(a) above) of all charges taken by Borrower during the fiscal quarter
ending June 30, 1997 in connection with the settlement by Borrower of
its patent litigation with Applied Materials, Inc. relating to
Applied's Patent No. 5,362,526, and (ii) $84,000,000;
Plus
(d) In calculating EBITDA of Borrower for any period that
includes the fiscal quarter ending June 30, 1997, the lesser of (i) the
sum (to the extent deducted in calculating net income or loss in clause
(a) above) of all charges taken by Borrower during the fiscal quarter
ending June 30, 1997 in connection with the
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write-off of in-process research and development charges relating to
Borrower's purchase of the Acquired Varian Assets, and (ii)
$115,000,000;
plus
(e) In calculating EBITDA of Borrower for any period that
includes the fiscal quarter ending June 30, 1997, September 30, 1997 or
December 31, 1997, the lesser of (i) the sum to the extent deducted in
calculating net income or loss in clause (a) above) of all other
non-recurring, non-cash charges taken by Borrower during the period
between the date of this Agreement and December 31, 1997, and (ii)
$40,000,000.
"Eligible Assignee" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the United States; or (c) a Person that is primarily engaged in the
business of commercial banking and that is (i) a Subsidiary of a Lender, (ii) a
Subsidiary of a Person of which a Lender is a Subsidiary, or (iii) a Person of
which a Lender is a Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C. Section
7401 et seq; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq; the Comprehensive Environment Response, Compensation and Liability Act
of 1980 (including the Superfund Amendments and Reauthorization Act of 1986,
"CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C.
Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C.
Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq.; and all other Governmental Rules relating to the protection of human
health and the environment, including all Governmental Rules pertaining to
reporting, licensing, permitting, transportation, storage, disposal,
investigation, and
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remediation of emissions, discharges, releases, or threatened releases of
Hazardous Materials into the air, surface water, groundwater, or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of such Person (regardless of how designated and whether or not
voting or non-voting) and (b) all warrants, options and other rights to acquire
any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended or supplemented, including any
rules or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Borrower under Section 414 of the IRC.
"Euro-Dollar Lending Office" shall mean, with respect to any Lender,
(a) initially, its office designated as such in Schedule I (or, in the case of
any Lender which becomes a Lender by an assignment pursuant to Subparagraph
8.05(c), its office designated as such in the applicable Assignment Agreement)
and (b) subsequently, such other office or offices as such Lender may designate
to Agent as the office at which such Lender's LIBOR Loans will thereafter be
maintained and for the account of which all payments of principal of, and
interest on, such Lender's LIBOR Loans will thereafter be made.
"Event of Default" shall have the meaning given to that term in
Paragraph 6.01.
"Federal Funds Rate" shall mean, for any day, the rate per annum set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor publication, "H.15 (519)") for such day opposite the caption
"Federal Funds (Effective)". If on any relevant day, such rate is not yet
published in H.15 (519), the rate for such day shall be the rate set forth in
the daily statistical release designated as the Composite 3:30 p.m. Quotations
for U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor publication, the
"Composite 3:30 p.m. Quotations") for such day under the caption "Federal Funds
Effective Rate". If on any relevant day, such rate is not yet published in
either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
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shall be the arithmetic means, as determined by Agent, of the rates quoted to
Agent for such day by three (3) Federal funds brokers of recognized standing
selected by Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and cash flows
of such Person for such period, and a balance sheet of such Person as at the end
of such period, setting forth in each case-in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and in
accordance with GAAP.
"Funded Indebtedness" shall mean of any Person shall mean, without
duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations of
such Person for borrowed money (including obligations to repurchase
receivables and other assets sold with recourse);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under letters of
credit and other credit facilities which secure or finance such
purchase price and obligations under synthetic leases), other than
trade payables incurred by such Person in the ordinary course of its
business on ordinary terms and not overdue;
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property acquired by
such Person (to the extent of the value of such property if the rights
and remedies of the seller or lender under such agreement in the event
of default are limited solely to repossession or sale of such
property); and
(d) All obligations of such Person as lessee under or with
respect to Capital Leases.
"Funded Indebtedness/Capital Ratio" shall mean, with respect to
Borrower at any time, the ratio, determined on a consolidated basis in
accordance with GAAP, of:
(a) The Funded Indebtedness of Borrower and its Subsidiaries
at such time;
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to
(b) The sum of (i) the Funded Indebtedness of Borrower and its
Subsidiaries at such time, plus (ii) the Tangible Net Worth of Borrower
and its Subsidiaries at such time.
"Funded Indebtedness/EBITDA Ratio" shall mean, with respect to Borrower
for any consecutive four-fiscal quarter period, the ratio, determined on a
consolidated basis in accordance with GAAP, of:
(a) The Funded Indebtedness of Borrower and its Subsidiaries
on the last day of such period; to
(b) The EBITDA of Borrower and its Subsidiaries for such
period.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time,
consistently applied.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, the
Federal Deposit Insurance Corporation, the Federal Reserve Board, the
Comptroller of the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean, with respect to any Person, all
levies, assessments, fees, claims or other charges imposed by any Governmental
Authority upon such Person or any of its property or otherwise payable by such
Person.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Guaranty Obligation" shall mean, with respect to any Person, any
direct or indirect liability of that Person with respect to any indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any Property
constituting direct or indirect security therefor, or (b) to advance or provide
funds
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(i) for the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (d) otherwise to assure or hold harmless the holder
of any such primary obligation against loss in respect thereof. The amount of
any Guaranty Obligation shall be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty Obligation is
made or, if not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof.
"Hazardous Materials" shall mean all materials, substances and wastes
which are classified or regulated as "hazardous," "toxic" or similar
descriptions under any Environmental Law or which are hazardous, toxic, harmful
or dangerous to human health.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments and all other obligations
of-such Person for borrowed money (including obligations to repurchase
receivables and other assets sold with recourse);
(b) All obligations of such Person for the deferred purchase
price of property or services (including obligations under letters of
credit and other credit facilities which secure or finance such
purchase price and obligations under "synthetic" leases);
(c) All obligations of such Person under conditional sale or
other title retention agreements with respect to property acquired by
such Person (to the extent of the value of such property if the rights
and remedies of the seller or lender under such agreement in the event
of default are limited solely to repossession or sale of such
property);
(d) All obligations of such Person as lessee under or with
respect to Capital Leases;
(e) All non-contingent payment or reimbursement obligations of
such Person under or with respect to Surety Instruments;
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(f) All net obligations of such Person, contingent or
otherwise, under or with respect to Rate Contracts;
(g) All Guaranty Obligations of such Person With respect to
the obligations of other Persons of the types described in clauses (a)
- (f) above and all other Contingent Obligations of such Person; and
(h) All obligations of other Persons of the types described in
clauses (a) - (f) above to the extent secured by (or for which any
holder of such obligations has an existing right, contingent or
otherwise, to be secured by) any Lien in any property (including
accounts and contract rights) of such Person, even though such Person
has not assumed or become liable for the payment of such obligations.
"Interest Account" shall have the meaning given to that term in
Subparagraph 2.11(b).
"Interest Expenses" shall mean, with respect to any Person for any
period, the sum, determined on a consolidated basis in accordance with GAAP, of
(a) all interest accruing on the Indebtedness of such Person during such period
(including, without limitation, interest attributable to Capital Leases) plus
(b) all fees in respect of outstanding letters of credit payable by such Person
and accruing during such period.
"Interest Period" shall mean, with respect to any LIBOR Loan, the time
period selected by Borrower pursuant to Paragraph 2.02 which commences on the
first day of such Loan or the effective date of any conversion and ends on the
last day of such time period, and thereafter, each subsequent time period
selected by Borrower pursuant to Paragraph 2.04 which commences on the last day
of the immediately preceding time period and ends on the last day of that time
period.
"Investment" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such Person
for moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person (including
any Guaranty Obligations of such Person and any indebtedness of such Person of
the type described in clause (h) of the definition of "Indebtedness" on behalf
of any other Person); provided, however, that Investments shall not include (a)
accounts receivable or other indebtedness owed by customers of such Person which
are current assets, not overdue and arose from sales of inventory in the
ordinary
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course of such Person's business or (b) prepaid expenses of such Person incurred
and prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Lenders" shall have the meaning given to that term in clause (2) of
the introductory paragraph hereof.
"LIBO Rate" shall mean with respect to any Interest Period for the
LIBOR Loans in any Borrowing consisting of LIBOR Loans, a rate per annum equal
to the quotient of (a) the arithmetic mean (rounded upward if necessary to the
nearest 1/16 of one percent) of the rates per annum appearing on the Telerate
Page 3750 (or any successor publication) on the second Business Day prior to the
first day of such Interest Period at or about 11:00 A.M. (London time) (for
delivery on the first day of such Interest Period) for a term comparable to such
Interest Period, divided by (b) one minus the Reserve Requirement for such Loans
in effect from time to time. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used in
clause (a) shall be the arithmetic mean (rounded upward if necessary to the
nearest 1/16 of one percent) of the rates per annum at which Dollar deposits are
offered by each of the Reference Banks to prime banks in the London interbank
market on the second Business Day prior to the first day of such Interest Period
at or about 11:00 A.M. (London time) (for delivery on the first day of such
Interest Period) in an amount substantially equal to such Reference Bank's LIBOR
Loan in such Borrowing and for a term comparable to such Interest Period. The
LIBO Rate shall be adjusted automatically as to all LIBOR Loans then outstanding
as of the effective date of any change in the Reserve Requirement.
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, charge or other encumbrance in, of, or on such property
or the income therefrom, including, without limitation, the interest of a vendor
or lessor under a conditional sale agreement, Capital Lease or other title
retention agreement, or any agreement to provide any of the foregoing, and the
filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction.
"LIBOR Loan" shall mean, at any time, a Loan which then bears interest
as provided in Subparagraph 2.03(b).
"Loan" shall have the meaning given to that term in Paragraph 2.01.
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"Margin Stock" shall have the meaning given to that term in Regulation
issued by the federal Reserve Board, as amended from time to time, and any
Successor regulation thereto.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations, prospects or financial or other condition of
Borrower and its Subsidiaries, taken as a whole; (b) the ability of Borrower to
pay or perform the obligations in accordance with the terms of this Agreement
and the other Credit Documents; or (c) the ability of Agent or any Lender to
exercise any of its rights or remedies under this Agreement, the other Credit
Documents or any related document, instrument or agreement.
"Material Subsidiary" shall mean, as of any date, each Subsidiary of
Borrower whose assets on the last day of the immediately preceding fiscal year
equalled or exceeded five percent (5%) of the consolidated total assets of
Borrower and all of its Subsidiaries on such day. As used herein, "assets" shall
mean the net book value of assets calculated in accordance with GAAP.
"Maturity" shall mean, with respect to any Loan, interest, fee or other
amount payable by Borrower under this Agreement or the other Credit Documents,
the date such Loan, interest, fee or other amount becomes due, whether upon the
stated maturity or due date, upon acceleration or otherwise.
"Maturity Date" shall mean June 28, 2002.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of section 3(37) of ERISA maintained or contributed to by Borrower or
any ERISA Affiliate.
"Net Proceeds" shall mean, with respect to any sale or issuance of any
Equity Security or any other security by any Person, the aggregate consideration
received by such Person from such sale or issuance less the sum of the actual
amount of the customary fees and commissions payable to Persons other than such
Person or any Affiliate of such Person, the reasonable legal expenses and the
other customary costs and expenses directly related to such sale or issuance
that are to be paid by such Person.
"Note" shall have the meaning given to that term in Subparagraph
2.11(a).
"Notice of Borrowing" shall have the meaning given to that term in
Paragraph 2.02.
"Notice of Interest Period Selection" shall have the meaning given to
that term in Subparagraph 2.04 (b).
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"Obligations" shall mean and include, with respect to Borrower, all
loans, advances, debts, liabilities, and obligations, howsoever arising, owed by
Borrower to Agent or any Lender of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment of
money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of this Agreement or any of
the other Credit Documents, including without limitation all interest, fees,
charges, expenses, attorneys' fees and accountants' fees chargeable to Borrower
or payable by Borrower hereunder or thereunder.
"Participant" shall have the meaning given to that term in Subparagraph
8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Indebtedness" shall have the meaning given to that term in
Subparagraph 5.02(a).
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b).
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint venture, a
trust or other entity or a Governmental Authority.
"Pricing Grid" shall mean Schedule 1.01.
"Pricing Period" shall mean (a) the period commencing on the date of
this Agreement and ending on Xxxxx 00, 0000, (x) the two-calendar month period
commencing April 1, 1998 and ending May 31, 1998, (c) the three-calendar month
period commencing June 1, 1998 and ending August 31, 1998 and (c) each
consecutive three-calendar month period thereafter which commences on the day
following the last day of the immediately preceding three-calendar month period
and ends on the last day of that time period.
"Prime Rate" shall mean the per annum rate publicly announced by ABN
AMRO from time to time at its Chicago Office. The Prime Rate is determined by
ABN AMRO from time to time as a means of pricing credit extensions to some
customers and is neither directly tied to any external rate of interest or index
nor necessarily the lowest rate of interest charged by ABN AMRO at any given
time for any particular class of customers or credit extensions. Any change in
the Base Rate resulting from a change in the Prime Rate shall become effective
on the Business Day on which each change in the Prime Rate occurs.
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"Proportionate Shares" shall mean, with respect to each Lender, the
percentage set forth under the caption "Proportionate Share" opposite such
Lender's name on Schedule I, or, if changed, such percentage as may be set forth
for such Lender in the Register.
"Quick Ratio" shall mean, with respect to Borrower at any time, the
ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) The remainder of (i) the sum (without duplication) of all
cash, Cash Equivalents and net accounts receivable of Borrower and its
subsidiaries at such time, minus (ii) the sum (without duplication) of
all such cash, Cash Equivalents and net accounts receivable that are
subject to a Lien or are otherwise restricted;
to
(b) The current liabilities of Borrower and its Subsidiaries
at such time (including current liabilities of Borrower and its
Subsidiaries in connection with synthetic leases and other off-balance
sheet Funded Indebtedness).
"Rate Contracts" shall mean swap agreements (as that term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Reference Banks" shall mean ABN AMRO or, at any time other banks are
Lenders, ABN AMRO and an additional Lender or additional Lenders (but not more
than two additional Lenders) acceptable to Borrower and Agent.
"Related Lease" shall mean the Lease Agreement dated as of June 9, 1997
between Borrower, as lessee, and Lease Plan North America, Inc., as lessor.
"Related Lease Documents" shall mean the Related Lease, the Related
Lease Participation Agreement and the other "Operative Documents," as such term
is defined in the Related Lease Participation Agreement.
"Related Lease Obligations" shall mean the "Lessee Obligations," as
such term is defined in the Related Lease Participation Agreement.
"Related Lease Participation Agreement" shall mean the Participation
Agreement dated as of June 9, 1997 among Borrower, Lease Plan North America,
Inc., the financial
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institutions from time to time parties thereto, and ABN AMRO as agent for such
financial institutions.
"Register" shall have the meaning given to that term in Subparagraph
8.05 (d).
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Required Lenders" shall mean (a) at any time Loans are outstanding,
Lenders holding sixty-six and two-thirds percent (66 2/3%) or more of the
aggregate principal amount of such Loans and (b) at any time no Loans are
outstanding, Lenders whose Proportionate Shares equal or exceed sixty-six and
two-thirds percent (66 2/3%).
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership Agreement or
other organizational or governing documents of such Person, (b) any Governmental
Rule applicable to such Person, (c) any license, permit, approval or other
authorization granted by any Governmental Authority to or for the benefit of
such Person or (d) any judgment, decision or determination of any Governmental
Authority or arbitrator, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean, with respect to any day in an
Interest Period for a LIBOR Loan, the aggregate of the reserve requirement rates
(expressed as a decimal) in effect on such day for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Federal Reserve Board) maintained by a member bank of the Federal Reserve
System. As used herein, the term "reserve requirement" shall include, without
limitation, any basic, supplemental or emergency reserve requirements imposed on
Lender by any Governmental Authority.
"Senior Officer" shall mean, with respect to Borrower, the Chief
Executive Officer, the Chief Financial Officer, the Executive Vice President of
Operations, the Executive Vice President of Sales or the Treasurer of Borrower.
"Solvent" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property of such Person is greater than the
fair value of the liabilities (including, without limitation, contingent,
liabilities) of such Person, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such
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Person's ability to pay as such debts and liabilities mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would constitute an
unreasonably small capital.
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint venture, or
other association of which more than 50% of the equity interest having the power
to vote, direct or control the management of such partnership, joint venture or
other association is at the time owned and controlled by such Person, by such
Person and one or more of the other Subsidiaries or by one or more of such
Person's other Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis.
"Surety Instruments" shall mean all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Tangible Net Worth" shall mean, with respect to Borrower at any time,
the remainder at such time, determined on a consolidated basis in accordance
with GAAP, of (a) the total assets of Borrower and its Subsidiaries, minus (b)
the sum (without limitation and without duplication of deductions) of (i) the
total liabilities of Borrower and its Subsidiaries, (ii) all reserves
established by Borrower and its Subsidiaries for anticipated losses and expenses
(to the extent not deducted in calculating total assets in Clause (a) above) and
(iii) all intangible assets of Borrower and its Subsidiaries (to the extent
included in calculating total assets in clause (a) above), including, without
limitation, goodwill (including any amounts, however designated on the balance
sheet, representing the cost of acquisition of businesses and investments in
excess of underlying tangible assets), trademarks, trademark rights, trade name
rights, copyrights, patents, patent rights, licenses, Unamortized debt discount,
marketing expenses, organizational expenses, non-compete agreements and deferred
research and development.
"Taxes" shall have the meaning given to such term in Subparagraph
2.15(a).
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"Total Commitment" shall mean, at any time, One Hundred
Twenty-Five Million Dollars ($125,000,000) or, if such amount is
reduced pursuant to Subparagraph 2.07(a), the amount to which so
reduced and in effect at such time.
"Type" shall mean, with respect to any Loan or Borrowing at
any time, the classification of such Loan or Borrowing by the type of
interest rate it then bears, whether an interest rate based upon the
Base Rate or the LIBOR Rate.
"Unused Commitment" shall mean, at any time, the remainder of
(a) the Total Commitment at such time minus (b) the aggregate principal
amount of all Loans outstanding at such time.
"Varian Purchase Agreement" shall mean the Asset Purchase
Agreement dated as of May 7, 1997 between Varian Associates, Inc. and
Borrower.
1.02. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If Borrower
changes its accounting practices during the term of this Agreement such that any
covenants contained herein would then be calculated in a different manner or
with different components, Borrower, the Lenders and Agent agree to negotiate in
good faith to amend this Agreement in such respects as are necessary to conform
those covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
provided, however, that, until Borrower, the Lenders and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with Borrower's
accounting practices as in effect on the date of this Agreement.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Agreement or any other
Credit Document in the singular form shall have comparable meanings when used in
the plural form and vice versa.
1.05. Time. All references in this Agreement and each of the other
Credit Documents to a time of day shall mean San Francisco, California time,
unless otherwise indicated.
1.06. Governing Law. This Agreement and each of the other Credit
Documents (unless otherwise provided in such other Credit Documents) shall be
governed by and construed in
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accordance with the laws of the State of California without reference to
conflicts of law rules.
1.07. Construction. This Agreement is the result of negotiations among,
and has been reviewed by, Borrower, each Lender, Agent and their respective
counsel. Accordingly, this Agreement shall be deemed to be the product of all
parties hereto, and no ambiguity shall be construed in favor of or against
Borrower, any Lender or Agent.
1.08. Entire Agreement. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrower, the Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof
(including the commitment letter dated as of May 9, 1997 between Borrower and
ABN AMRO).
1.09. Calculation of Interest and Fees. All calculations of interest
and fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Prime Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. Other Interpretive Provisions. References in this Agreement to
"Recitals," "Sections," "Paragraphs," "Subparagraphs," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs, exhibits and
schedules herein and hereto unless otherwise indicated. References in this
Agreement and each of the other Credit Documents to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time. References in
this Agreement and each of the other Credit Documents to any statute or other
law (i) shall include any successor statute or law, (ii) shall include all rules
and regulations promulgated under such statute or law (or any successor statute
or law), and (iii) shall mean such statute or law (or successor statute or law)
and such rules and regulations, as amended, modified, codified or reenacted from
time to time and in effect at any given time. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any other
Credit Document shall refer to this Agreement or such other Credit Document, as
the case may be, as a whole and not to any particular provision of this
Agreement or such other Credit Document, as the case may be. The words
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"include" and "including" and words of similar import when used in this
Agreement or any other Credit Document shall not be construed to be limiting or
exclusive. In the event of any inconsistency between the terms of this Agreement
and the terms of any other Credit Document, the terms of this Agreement shall
govern.
SECTION II. CREDIT FACILITY.
2.01. Revolving Loans. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to advance to Borrower from time to time
during the period beginning on the Closing Date and ending on the Maturity Date
such loans as Borrower may request under this Section II (individually, a
"Loan"); provided, however, that,(a) the aggregate principal amount of all Loans
made by such Lender at any time outstanding shall not exceed such Lender's
Commitment at such time and (b) the aggregate principal amount of all Loans made
by all Lenders at any time outstanding shall not exceed the Total Commitment at
such time. All Loans shall be made on a pro rata basis by the Lenders in
accordance with their respective Proportionate Shares, with each Borrowing to be
comprised of a Loan by each Lender equal to such Lender's Proportionate Share of
such Borrowing. Except as otherwise provided herein, Borrower may borrow, repay
and reborrow Loans until the Maturity Date.
2.02. Notice of Borrowing. Borrower shall request each Borrowing by
delivering to Agent an irrevocable written notice in the form of Exhibit A,
appropriately completed (a "Notice of Borrowing"), which specifies, among other
things:
(a) Amount. The principal amount of the requested Borrowing,
which shall be in the amount of (A) $1,000,000 or an integral multiple
of $100,000 in excess thereof in the case of a Borrowing consisting of
Base Rate Loans; or (B) $2,500,000 or an integral multiple of $500,000
in excess thereof in the case of a Borrowing consisting of LIBOR Loans;
(b) Type. Whether the requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(c) Interest Period. If the requested Borrowing is to consist
of LIBOR Loans, the initial Interest Periods selected by Borrower for
such Loans in accordance with Subparagraph 2.04; and
(d) Date. The date of the requested Borrowing, which shall be
a Business Day;
Provided, however, that all Borrowings made during the period commencing on the
date of this Agreement and ending three (3) Business Days thereafter shall
consist solely of Base Rate Loans.
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Borrower shall give each Notice of Borrowing to Agent at least three (3)
Business Days before the date of the requested Borrowing in the case of a
Borrowing consisting of LIBOR Loans and at least one (1) Business Day before the
date of the requested Borrowing in the case of a Borrowing consisting of Base
Rate Loans. Each Notice of Borrowing shall be delivered by first-class mail or
facsimile to Agent at the office or facsimile number and during the hours
specified in Paragraph 8.01; provided, however, that Borrower shall promptly
deliver to Agent the original of any Notice of Borrowing initially delivered by
facsimile. Agent shall promptly notify each Lender of the contents of each
Notice of Borrowing and of the amount and Type of (and, if applicable, the
Interest Period for) each Loan to be made by such Lender as part of
the requested Borrowing.
2.03. Interest Rates. Borrower shall pay interest on the unpaid
principal amount of each Loan from the date of such Loan until the maturity
thereof, at one of the following rates per annum:
(a) Base Rate Loans. During such periods as such Loan is a
Base Rate Loan, at a rate per annum equal to the Base Rate plus the
Applicable margin therefor, such rate to change from time to time as
the Base Rate or Applicable Margin shall change; and
(b) LIBOR Loans. During such periods as such Loan is a LIBOR
Loan, at a rate per annum equal at all times during each Interest
Period for such LIBOR Loan to the LIBO Rate for such Interest Period
plus the Applicable Margin therefor, such rate to change from time to
time during such Interest Period as the Applicable Margin shall change.
All Loans in each Borrowing shall, at any given time prior to maturity, bear
interest at one, and only one, of the above rates. The number of Borrowings
consisting of LIBOR Loans shall not exceed five (5) at any time.
2.04. LIBOR Loan Interest Periods.
(a) Terms. The initial and each subsequent Interest Period
selected by Borrower for a LIBOR Loan shall be one (1), two (2), three
(3) or six (6) months; provided, however, that (i) any Interest Period
which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless such next Business
Day falls in another calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day; (ii) any Interest
Period which begins on the last 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 Business Day of a calendar month; (iii) no Interest Period shall
end after the Maturity Date; and (iv) no
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Interest Period that commences during the first three (3) months after
the date of this Agreement shall exceed one (1) month.
(b) Notice of Interest Period Selection. Borrower shall notify
Agent by an irrevocable written notice in the form of Exhibit B,
appropriately completed (a "Notice of Interest Period Selection"), at
least three (3) Business Days prior to the last day of each Interest
Period for LIBOR Loans of the Interest Period selected by Borrower for
the next succeeding Interest Period for such Loans. Each Notice of
Interest Period Selection shall be given by first-class mail or
facsimile to the office or the facsimile number and during the hours
specified in Paragraph 8.01; provided, however, that Borrower shall
promptly deliver to Agent the original of any Notice of Interest Period
Selection initially delivered by facsimile. If Borrower fails to notify
Agent of the next Interest Period for LIBOR Loans in accordance with
this Subparagraph 2.04, such Loans shall automatically convert to Base
Rate Loans on the last day of the current Interest Period therefor.
2.05. Scheduled Loan Payments. Borrower shall repay the principal
amount of the Loans on the Maturity Date. Borrower shall pay accrued interest on
the unpaid principal amount of each Loan in arrears (a) in the case of a Base
Rate Loan, on the last day in each March, June, September and December, (b) in
the case of a LIBOR Loan, on the last day of each Interest Period therefor (and,
if any such Interest Period is longer than three (3) months, every three (3)
months); and (c) in the case of all Loans, upon prepayment (to the extent
thereof) and at maturity.
2.06. Purpose. Borrower shall use the proceeds of the Loans to pay all
or a portion of the purchase price for the Acquired Varian Assets and for
Borrower's general corporate needs.
2.07. Commitment Reductions. Etc,
(a) Reduction or Cancellation of Commitments. Borrower may,
upon five (5) Business Days written notice to Agent, permanently reduce
the Total Commitment by the amount of Five Million Dollars ($5,000,000)
or an integral multiple thereof or cancel the Total Commitment in its
entirety; provided, however, that:
(i) Borrower may not reduce the Total Commitment
prior to the Maturity Date, if, after giving effect to such
reduction, the aggregate principal amount of Loans then
outstanding would exceed the Total Commitment; and
(ii) Borrower may not cancel the Total Commitment
prior to the Maturity Date, if, after giving effect to
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such cancellation, any Loan would then remain outstanding.
(b) Effect Of Commitment Reductions. From the effective date
of any reduction of the Total Commitment, the Commitment Fees payable
pursuant to Subparagraph 2.08(b) shall be computed on the basis of the
Total Commitment as so reduced. Once reduced or cancelled, the Total
Commitment may not be increased or reinstated without the prior written
consent of all Lenders. Any reduction of the Total Commitment pursuant
to Subparagraph 2.07(a) shall be applied ratably to reduce each
Lender's Commitment in accordance with clause (i) of Subparagraph
2.13(a).
2.08. Fees.
(a) Agent's Fee. Borrower shall pay to Agent, for its own
account, agent's fees and other compensation in the amounts and at the
times set forth in the Agent's Fee Letter.
(b) Commitment Fees. Borrower shall pay to Agent, for the
ratable benefit of the Lenders as provided in clause (iv) of
Subparagraph 2.13(a), nonrefundable commitment fees (the "Commitment
Fees") equal to the Commitment Fee Percentage on the daily average
Unused Commitment for the period beginning on the earlier of June 16,
1997 and the Closing Date and ending on the Maturity Date. The
Commitment Fee Percentage shall be determined as provided in the
Pricing Grid and, as provided in the Pricing Grid, may change for each
Pricing Period. Borrower shall pay the Commitment Fees in arrears on
the last day in each March, June, September and December and on the
Maturity Date (or if the Total Commitment is cancelled on a date prior
to the Maturity Date, on such prior date).
2.09. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any Loan
(whether such prepayment is an optional prepayment under Subparagraph
2.09(b), a mandatory prepayment required by Subparagraph 2,09(c) or a
mandatory prepayment required by any other provision of this Agreement
or the other Credit Documents, including, without limitation, a
prepayment upon acceleration), Borrower shall pay to the Lender which
made such Loan (i) all accrued interest to the date of such prepayment
on the amount prepaid and (ii) if such prepayment is the prepayment of
a LIBOR Loan on a day other than the last day of an Interest Period for
such LIBOR Loan, all amounts payable to such Lender pursuant to
Paragraph 2.16.
(b) Optional Prepayments. At its option, Borrower may, upon
one (1) Business Day notice to Agent in the case of Base Rate Loans and
three (3) Business Days notice to
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Agent in the case of LIBOR Loans, prepay the Loans in any Borrowing in
part, in an aggregate principal amount of $1,000,000 or an integral
multiple thereof, or in whole.
(c) Mandatory Prepayments. If, at any time, the aggregate
principal amount of all Loans then outstanding exceeds the Total
Commitment at such time, Borrower shall immediately prepay Loans in an
aggregate principal amount equal to such excess.
2.10. Other Payment Terms.
(a) Place and Manner. Borrower shall make all payments due to
each Lender or Agent hereunder by payments to Agent at Agent's office
located at the address specified in Paragraph 8.01, with each payment
due to a Lender to be for the account of such Lender and such Lender's
Applicable Lending Office. Borrower shall make all payments hereunder
in lawful money of the United States and in same day or immediately
available funds not later than 11:00 a.m. on the date due. Agent shall
promptly disburse to each Lender each payment received by Agent for the
account of such Lender.
(b) Date. Whenever any payment due hereunder shall fall due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included
in the computation of interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by
Borrower under this Agreement or the other Credit Documents (including,
without limitation, principal or interest payable on any Loan, any fees
or other amounts) remain unpaid after such amounts are due, Borrower
shall pay interest on the aggregate, outstanding balance of such
amounts from the date due until those amounts are paid in full at a per
annum rate equal to the Base Rate plus two percent (2.0%), such rate to
change from time to time as the Base Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement or the other Credit Documents, second to accrued
interest then due and payable under this Agreement or the other Credit
Documents and finally to reduce the principal amount of outstanding
Loans.
(e) Failure to Pay Agent. Unless Agent shall have received
notice from Borrower at least one (1) Business Day prior to the date on
which any payment is due to the Lenders hereunder that Borrower will
not make such payment in full, Agent shall be entitled to assume that
Borrower has made or
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will make such payment in full to Agent on such date and Agent may, in
reliance upon such assumption, cause to be paid to the Lenders on such
due date an amount equal to the amount then due such Lenders. If and to
the extent Borrower shall not have so made such payment in full to
Agent, each such Lender shall repay to Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to Agent, at (i) the Federal
Funds Rate for the first three (3) days and (ii) the per annum rate
applicable to Base Rate Loans thereafter. A certificate of Agent
submitted to any Lender with respect to any amounts owing by such
Lender under this Subparagraph 2.10(e) shall be conclusive absent
manifest error.
2.11. Notes and Interest Account.
(a) Notes. The obligation of Borrower to repay the Loans made
by each Lender and to pay interest thereon at the rates provided herein
shall be evidenced by a promissory note in the form of Exhibit C
(individually, a "Note") which note shall be (i) payable to the order
of such Lender, (ii) in the amount of such Lender's Commitment, (iii)
dated the Closing Date and (iv) otherwise appropriately completed.
Borrower authorizes each Lender to record on the schedule annexed to
such Lender's Note the date and amount of each Loan made by such Lender
and of each payment or prepayment of principal thereon made by
Borrower, and agrees that all such notations shall constitute prima
facie evidence of the matters noted; provided, however, that any
failure by a Lender to make any such notation shall not affect the
Obligations. Borrower further authorizes each Lender to attach to and
make a part of such Lender's Note continuations of the schedule
attached thereto as necessary.
(b) Interest Account. Borrower authorizes Agent to record in
an account or accounts maintained by Agent on its books (the "Interest
Account") (i) the interest rates applicable to all Loans and the
effective dates of all changes thereto, (ii) the Interest Period for
each LIBOR Loan, (iii) the date and amount of each principal and
interest payment on each Loan and (iv) such other information as Agent
may determine is necessary for the computation of interest payable by
Borrower hereunder.
2.12. Loan Funding.
(a) Lender Funding and Disbursement to Borrower. Each Lender
shall, before 11:00 a.m. on the date of each Borrowing, make available
to Agent at Agent's office specified in Paragraph 8.01, in same day or
immediately available funds, such Lender's Proportionate Share of such
Borrowing. After Agent's receipt of such funds and upon
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satisfaction of the applicable conditions set forth in Section III,
Agent shall promptly disburse such funds to Borrower in same day or
immediately available funds. Unless otherwise directed by Borrower,
Agent shall disburse the proceeds of each Borrowing by disbursement to
the account or accounts specified in the applicable Notice of
Borrowing.
(b) Lender Failure to Fund. Unless Agent shall have received
notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to Agent such Lender's Proportionate
Share of such Borrowing, Agent shall be entitled to assume that such
Lender has made or will make such portion available to Agent on the
date of such Borrowing in accordance with Subparagraph 2.12(a), and
Agent may on such date, in reliance upon such assumption, disburse or
otherwise credit to Borrower a corresponding amount. If any Lender does
not make the amount of its Proportionate Share of any Borrowing
available to Agent on or prior to the date of such Borrowing, such
Lender shall pay to Agent, on demand, interest which shall accrue on
such amount from the date of such Borrowing until such amount is paid
to Agent at rates equal to (i) the daily Federal Funds Rate during the
period from the date of such Borrowing through the third Business Day
thereafter and (ii) the rate applicable to Base Rate Loans thereafter.
A certificate of Agent submitted to any Lender with respect to any
amounts owing under this Subparagraph 2.12(b) shall be conclusive
absent manifest error. If the amount of any Lender's Proportionate
Share of any Borrowing is not paid to Agent by such Lender within three
(3) Business Days after the date of such Borrowing, Borrower shall
repay such amount to Agent, on demand, together with interest thereon,
for each day from the date such amount was disbursed to Borrower until
the date such amount is repaid to Agent, at the interest rate
applicable at the time to the Loans comprising such Borrowing.
(c) Lenders' Obligations Several. The failure of any Lender to
make the Loan to be made by it as part of any Borrowing shall not
relieve any other Lender of its obligation hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be obligated in any
way to make any Loan which another Lender has failed or refused to make
or otherwise be in any way responsible for the failure or refusal of
any other Lender to make any Loan required to be made by such other
Lender on the date of any Borrowing.
2.13. Pro Rata Treatment.
(a) Borrowings, commitment Reductions, Etc. Except as
otherwise provided herein:
(i) Each Borrowing and each reduction of the Total
Commitment shall be made or shared among the
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Lenders pro rata according to their respective Proportionate
Shares;
(ii) Each payment of principal of Loans in any
Borrowing shall be shared among the Lenders which made or
funded the Loans in such Borrowing pro rata according to the
respective unpaid principal amounts of such Loans so made or
funded by such Lenders;
(iii) Each payment of interest on Loans in any
Borrowing shall be shared among the Lenders which made or
funded the Loans in such Borrowing pro rata according to (A)
the respective unpaid principal amounts of such Loans so made
or funded by such Lenders and (B) the-dates on which such
Lenders so made or funded such Loans;
(iv) Each payment of Commitment Fees shall be shared
among the Lenders pro rata according to (A) their respective
Proportionate Shares and (B) in the case of each Lender which
becomes a Lender hereunder after the date hereof, the date
upon which such Lender so became a Lender;
(v) Each payment of interest (other than interest on
Loans) shall be shared among the Lenders and Agent owed the
amount upon which such interest accrues pro rata according to
(A) the respective amounts so owed such Lenders and Agent and
(B) the dates on which such amounts became owing to such
Lenders and Agent; and
(vi) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person
or Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of Loans owed to it in excess
of its ratable share of payments on account of such Loans obtained by
all Lenders entitled to such payments, such Lender shall forthwith
purchase from the other Leaders such participations in the Loans as
shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase shall be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such other
Lender's ratable share (according to the proportion of (i) the amount
of such other Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total
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amount so recovered. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Subparagraph
2.13(b) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of
Borrower in the amount of such participation.
2.14. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Interest Period for any LIBOR Loan, (i) any Lender shall
advise Agent that the LIBO Rate for such Interest Period cannot be
adequately and reasonably determined due to the unavailability of
funds in or other circumstances affecting the London interbank market
or (ii) any Lender shall advise Agent that the rate of interest for
such Loan does not adequately and fairly reflect the cost to such
Lender of making or maintaining such LIBOR Loan, Agent shall
immediately give notice of such condition to Borrower and the other
Lenders. After the giving of any such notice and until Agent shall
otherwise notify Borrower that the circumstances giving rise to such
condition no longer exist, Borrower's right to request the making of,
and the Lenders' obligations to make LIBOR Loans shall be suspended.
Any LIBOR Loans outstanding at the commencement of any such suspension
shall be prepaid at the end of the then current Interest Period for
such LIBOR Loans (whether from the proceeds of a Base Rate Borrowing or
otherwise), unless such suspension has then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Lender with any request or directive (whether or
not having the force of law) of any Governmental Authority (a "Change
of Law") shall make it unlawful or impossible for any Lender to make or
maintain any LIBOR Loan, such Lender shall immediately notify Agent and
Borrower of such Change of Law. Upon receipt of such notice, (i)
Borrower's right to request the making and such Lender's obligation to
make LIBOR Loans shall be terminated, and (ii) Borrower shall, at the
request of such Lender, prepay any such LIBOR Loans then outstanding
(whether from the proceeds of a Base Rate Borrowing or otherwise) at
the end of the current Interest Periods for such LIBOR Loans or, if
such Lender shall notify Borrower that such Lender may not lawfully
continue to fund and maintain such LIBOR Loans, immediately. Any
prepayment of LIBOR Loans made pursuant to the preceding sentence prior
to the last day of an Interest
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Period for such LIBOR Loans shall be deemed a prepayment thereof for
Purposes of Paragraph 2.16. After an Lender notifies Agent and Borrower
of such a Change of Law and until such Lender notifies Agent and
Borrower that it is no longer unlawful or impossible for such Lender to
make or maintain a LIBOR Loan, all Loans of such Lender shall be Base
Rate Loans.
(c) Increased costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Lender to any tax, duty or
other charge with respect to any LIBOR Loan, or shall change
the basis of taxation of payments by Borrower to any Lender on
such a LIBOR Loan or in respect to such a LIBOR Loan under
this Agreement (except for changes in the rate of taxation on
the overall net income of any Lender imposed by its
jurisdiction of incorporation or the jurisdiction in which its
Euro-Dollar Lending Office is located); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of the LIBO Rate for
any Loans), special deposit or similar requirement against
assets held by, deposits or other liabilities in or for the
account of, advances or loans by, or any other acquisition of
funds by any Lender for any LIBOR Loan; or
(iii) Shall impose on any Lender any other condition
related to any LIBOR Loan or such Lender's Commitment;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, issuing, renewing, or maintaining any such LIBOR Loan
or its Commitment or to reduce any amount receivable by such Lender
hereunder; then Borrower shall from time to time, within five (5)
Business Days after demand by such Lender, pay to such Lender
additional amounts sufficient to reimburse such Lender for such
increased costs or to compensate such Lender for such reduced amounts.
A certificate as to the amount of such increased costs or reduced
amounts, submitted by such Lender to Borrower shall, in the absence of
manifest error, be conclusive and binding on Borrower for all purposes.
The obligations of Borrower under this Subparagraph 2.14(c) shall
survive the payment and performance of the Obligations and the
termination of this Agreement.
(d) Capital Requirements. If, after the date of this
Agreement, any Lender determines that (i) any Change of Law affects the
amount of capital required or expected to be maintained by such Lender
or any Person controlling such
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Lender (a "Capital Adequacy Requirement") and (ii) the amount of
capital maintained by such Lender or such Person which is attributable
to or based upon the Loans, the Letters of Credit, the Commitments or
this Agreement must be increased as a result of such Capital Adequacy
Requirement (taking into account such Lender's or such Person's
policies with respect to capital adequacy), Borrower shall pay to such
Lender or such Person, within five (5) Business Days after demand of
such Lender, such amounts as such Lender or such Person shall determine
are necessary to compensate such Lender or such Person for the
increased costs to such Lender or such Person of such increased
capital. A certificate of any Lender setting forth in reasonable detail
the computation of any such increased costs, delivered by such Lender
to Borrower shall, in the absence of manifest error, be conclusive and
binding on Borrower for all purposes. The obligations of Borrower under
this Subparagraph 2.14(d) shall survive the payment and performance of
the Obligations and the termination of this Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any
Change of Law which will make it unlawful or impossible for such Lender
to make or maintain any LIBOR Loan or (ii) any Change of Law or other
event or condition which will obligate Borrower to pay any amount
pursuant to Subparagraph 2.14(c) or Subparagraph 2.14(d) shall notify
Borrower and Agent thereof as promptly as practical. If any Lender has
given notice of any such Change of Law or other event or condition and
thereafter becomes aware that such Change of Law or other event or
condition has ceased to exist, such Lender shall notify Borrower and
Agent thereof as promptly as practical. Each Lender affected by any
Change of Law which makes it unlawful or impossible for such Lender to
make or maintain any LIBOR Loan or to which Borrower is obligated to
pay any amount pursuant to Subparagraph 2.14(c) or Subparagraph 2.14(d)
shall use reasonable commercial efforts (including changing the
jurisdiction of its Applicable Lending Office) to avoid the effect of
such Change of Law or to avoid or materially reduce any amounts which
Borrower is obligated to pay pursuant to Subparagraph 2.14(c) or
Subparagraph 2.14(d) if, in the reasonable opinion of such Lender, such
efforts would not be disadvantageous to such Lender or contrary to such
Lender's normal banking practices.
2.15. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrower
under this Agreement and the other Credit Documents shall be made free
and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
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Governmental Authority (except net income taxes and franchise taxes in
lieu of net income taxes imposed on Agent or any Lender by its
jurisdiction of incorporation or the jurisdiction in which its
Applicable Lending Office is located) (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to Agent or any Lender hereunder or
under the other Credit Documents, the amounts so payable to Agent or
such Lender shall be increased to the extent necessary to yield to
Agent or such Lender (after payment of all Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever
any Taxes are payable by Borrower, as promptly as possible thereafter,
Borrower shall send to Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by Borrower showing payment thereof. If
Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Agent the required receipts or other
required documentary evidence, Borrower shall indemnify Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by Agent or any Lender as a result of any such failure.
The obligations of Borrower under this Subparagraph 2.15(a) shall
survive the payment and performance of the Obligations and the
termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the date of
the initial Borrowing or, if such date does not occur within thirty
(30) days after the date of this Agreement, by the end of such 30-day
period, each Lender which is not organized under the laws of the United
States of America or a state thereof shall deliver to Borrower and
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as the case
may be, certifying in each case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes. Each Lender which delivers to
Borrower and Agent a Form 1001 or 4224 pursuant to the immediately
preceding sentence further undertakes to deliver to Borrower and Agent
two further copies of Form 1001 or 4224 (or successor applicable
forms), as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by such
Lender to Borrower and Agent, certifying that such Lender is entitled
to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender
which is not organized under the laws of the United States of America
or a state thereof further agrees (i) promptly to notify Agent and
Borrower of any
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change of circumstances (including without limitation any change in any
treaty, law or regulation) which would prevent such Lender from
receiving payments hereunder without any deduction or withholding of
United States federal income tax and (ii) to furnish to Agent and
Borrower any other manner of certification as Agent or Borrower may
reasonably request to establish the right of such Lender to receive
payments hereunder without any deduction or withholding of United
States federal income tax.
(c) Mitigation. If Agent or any Lender claims any additional
amounts to be payable to it pursuant to this Paragraph 2.15, such
Person shall use reasonable commercial efforts to file any certificate
or document requested in writing by Borrower (including without
limitation copies of Internal Revenue Service Form 1001 (or
successor forms) reflecting a reduced rate of withholding) or to change
the jurisdiction of its Applicable Lending Office if the making of such
a filing or such change in the jurisdiction of its Applicable Lending
Office would avoid the need for or materially reduce the amount of any
such additional amounts which may thereafter accrue and if, in the
reasonable opinion of such Person, in the case of a change in the
jurisdiction of its Applicable Lending Office, such change would not be
disadvantageous to such Person or contrary to such Person's normal
banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.15 shall
require Agent or any Lender to make available any of its tax returns
(or any other information relating to its taxes which it deems to be
confidential).
2.16. Funding Loss Indemnification. If Borrower shall (a) repay or
prepay any LIBOR Loan on any day other than the last day of an Interest Period
therefor (whether a scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration or otherwise) or
(b) fail to borrow any LIBOR Loan for which a Notice of Borrowing has been
delivered to Agent (whether as a result of the failure to satisfy any applicable
conditions or otherwise), Borrower shall, upon demand by any Lender, reimburse
such Lender for and hold such Lender harmless from all costs and losses incurred
by such Lender as a result of such repayment, prepayment or failure. Borrower
understands that such costs and losses may include, without limitation, losses
incurred by a Lender as a result of funding and other contracts entered into by
such Lender to fund a LIBOR Loan. Each Lender demanding payment under this
Paragraph 2.16 shall deliver to Borrower, with a copy to Agent, a certificate
setting forth the amount of costs and losses for which demand is made, which
certificate shall set forth in reasonable detail the calculation of the amount
demanded. Such a certificate so delivered to Borrower shall constitute prima
facie evidence of such costs and losses. The obligations of Borrower under this
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Paragraph 2.16 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
2.17. Replacement of Lenders. If any Lender shall (a) become a
Defaulting Lender more than two (2) times in a period of twelve (12) consecutive
months, (b) continue as a Defaulting Lender for more than five (5) Business Days
at any time, (c) suspend its obligation to make or maintain LIBOR Loans pursuant
to Subparagraph 2.14(b) for a reason which is not applicable to Required Lenders
or (d) demand any payment under Subparagraph 2.14(c), 2.14(d) 2.15(a) for a
reason which is not applicable to Required Lenders, then Agent may (or upon the
written request of Borrower, shall) replace such Lender (the "affected Lender"),
or cause such affected Lender to be replaced, with another lender (the
"replacement Lender") satisfying the requirements of an Assignee Lender under
Subparagraph 8.05 (c), by having the affected Lender sell and assign all of its
rights and obligations under this Agreement and the other Credit Documents to
the replacement Lender pursuant to Subparagraph 8.05(c); provided, however, that
if Borrower seeks to exercise such right, it must do so within sixty (60) days
after it first knows or should have known of the occurrence of the event or
events giving rise to such right, and neither Agent nor any Lender shall have
any obligation to identify or locate a replacement Lender for Borrower. Upon
receipt by any affected Lender of a written notice from Agent stating that Agent
is exercising the replacement right set forth in this Paragraph 2.17, such
affected Lender shall sell and assign all of its rights and obligations under
this Agreement and the other Credit Documents to the replacement Lender pursuant
to an Assignment Agreement and Subparagraph 8.05(c) for a purchase price equal
to the sum of the principal amount of the affected Lender's Loans so sold and
assigned, all accrued and unpaid interest thereon and its ratable share of all
fees to which it is entitled.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of the Lenders to
make the Loans comprising the initial Borrowing are subject to receipt by Agent,
on or prior to the Closing Date, of each item listed in Schedule 3.01, each in
form and substance satisfactory to Agent and each Lender, and with sufficient
copies for, Agent and each Lender.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing) is subject to the further
conditions that:
(a) Borrower shall have delivered to Agent the Notice of Borrowing
or Notice of Interest Period Selection, as the case may be, for such
Credit Event in accordance with this Agreement; and
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(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties set forth in Paragraph
4.01 and in the other Credit Documents are true and correct in all
material respects as if made on such date (except for
representations and warranties expressly made as of a specified
date, which shall be true as of such date);
(ii) No Default has occurred and is continuing or will result
from such Credit Event; and
(iii) All of the Credit Documents are in full force and effect.
The submission by Borrower to Agent of each Notice of Borrowing and
each Notice of Interest Period Selection shall be deemed to be a
representation and warranty by Borrower that each of the statements set
forth above in this Subparagraph 3.02(b) is true and correct as of the
date of such notice.
3.03. Covenant to Deliver. Borrower agrees (not as a condition but as a
covenant) to deliver to Agent each item required to be delivered to Agent as a
condition to the occurrence of any Credit Event if such Credit Event occurs.
Borrower expressly agrees that the occurrence of any such Credit Event prior to
the receipt by Agent of any such item shall not constitute a waiver by Agent or
any Lender of Borrower's obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrower's Representations and Warranties. In order to induce
Agent and the Lenders to enter into this Agreement, Borrower hereby represents
and warranties to Agent and the Lenders as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrower and
Borrower's Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation; (ii) has the power and authority to own, lease and
operate its properties and carry on its business as now conducted; and
(iii) is duly qualified, licensed to do business and in good standing
as a foreign corporation in each jurisdiction where the failure to be
so qualified or licensed is reasonably likely to have a Material
Adverse Effect.
(b) Authority. The execution, delivery and performance by Borrower
of each Credit Document executed, or
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to be executed, by Borrower and the consummation of the transactions
contemplated thereby (i) are within the power of Borrower and (ii) have
been duly authorized by all necessary actions on the part of Borrower.
(c) Enforceability. Each Credit Document executed, or to be
executed, by Borrower has been, or will be, duly executed and delivered
by Borrower and constitutes, or will constitute, a legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as limited by bankruptcy, insolvency
or other laws of general application relating to or affecting the
enforcement of creditors, rights generally and general principles of
equity.
(d) Non-Contravention. The execution and delivery by Borrower of
the Credit Documents executed by Borrower and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Borrower; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of
Borrower; or (iii) result in the creation or imposition of any Lien (or
the obligation to create or impose any Lien) upon any property, asset
or revenue of Borrower (except such Liens as may be created in favor of
Agent pursuant to this Agreement or the other Credit Documents).
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including, without limitation, the shareholders of any
Person) is required in connection with the execution and delivery of
the Credit Documents executed by Borrower and the performance and
consummation by Borrower of the transactions contemplated thereby,
except such as have been made or obtained and are in full force and
effect.
(f) No Violation or Default. Neither Borrower nor any of its
Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which,
if not in effect, would result in such a violation or default), where,
in each case, such violation or default is reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the
foregoing, neither Borrower nor any of its Subsidiaries (A) has
violated any Environmental Laws, (B) has any liability under any
Environmental Laws or (C) has received notice or other communication of
an investigation or is under investigation by any Governmental
Authority having authority to enforce Environmental Laws, where such
violation, liability or investigation is reasonably likely
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to have a Material Adverse Effect. No Default has occurred and is
continuing.
(g) Litigation. Except as set forth (with estimates of the dollar
amounts involved) in Schedule 4.01(g), no actions (including, without
limitation, derivative actions), suits, proceedings or investigations
are pending or, to the knowledge of Borrower, threatened against
Borrower or any of its Subsidiaries at law or in equity in any court or
before any other Governmental Authority which (i) is reasonably likely
(alone or in the aggregate) to have a Material Adverse Effect or (ii)
seeks to enjoin, either directly or indirectly, the execution, delivery
or performance by Borrower of the Credit Documents or the transactions
contemplated thereby.
(h) Title; Possession Under Leases. Borrower and its Subsidiaries
own and have good and marketable title, or a valid leasehold interest
in, all their respective properties and assets as reflected in the most
recent Financial Statements delivered to Agent (except those assets and
properties disposed of in the ordinary course of business or otherwise
in compliance with this Agreement since the date of such Financial
Statements) and all respective assets and properties acquired by
Borrower and its Subsidiaries since such date (except those disposed of
in the ordinary course of business or otherwise in compliance with this
Agreement), except in any case where the failure so to own or to have
such title is not reasonably likely to have a Material Adverse Effect.
Such assets and properties are subject to no Lien, except for Permitted
Liens. Each of Borrower and its Subsidiaries has complied with all
material obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of Borrower and
its Subsidiaries enjoys peaceful and undisturbed possession under such
leases.
(i) Financial Statements. The Financial Statements of Borrower and
its Subsidiaries which have been delivered to Agent, (i) are in
accordance with the books and records of Borrower and its Subsidiaries,
which have been maintained in accordance with good business practice;
(ii) have been prepared in conformity with GAAP; and (iii) fairly
present the financial conditions and results of operations of Borrower
and its Subsidiaries as of the date thereof and for the period covered
thereby. Neither Borrower nor any of its Subsidiaries has any
Contingent Obligations, liability for taxes or other outstanding
obligations which are material in the aggregate, except as disclosed
in the audited Financial Statements dated December 31, 1996, furnished
by Borrower to Agent prior to the date hereof, or in the Financial
Statements delivered to Agent pursuant to clause (i) or (ii) of
Subparagraph 5.01(a).
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(j) Equity Securities. All outstanding Equity Securities of
Borrower are duly authorized, validly issued, fully paid and
non-assessable. All Equity Securities of Borrower have been offered and
sold in compliance with all federal and state securities laws and all
other Requirements of Law.
(k) No Agreements to sell Assets; Etc. Neither Borrower nor any of
its Subsidiaries has any legal obligation, absolute or contingent, to
any Person to sell the assets of Borrower or any of its Subsidiaries
(other than sales in the ordinary course of business), or to effect any
merger, consolidation or other reorganization of Borrower or any of its
Subsidiaries or to enter into any agreement with respect thereto,
except for sales permitted by Subparagraph 5.02(c).
(1) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee Benefit Plan
that either Borrower or any ERISA Affiliate maintains or
contributes to, or has any obligation under (which occurred within
twelve months of the date of this representation), the aggregate
benefit liabilities of such plan within the meaning of Section 4001
of ERISA did not exceed the aggregate value of the assets of such
plan. Neither Borrower nor any ERISA Affiliate has any liability
with respect to any post-retirement benefit under any Employee
Benefit Plan which is a welfare plan (as defined in section 3(1) of
ERISA), other than liability for health plan continuation coverage
described in Part 6 of Title I(B) of ERISA, which liability for
health plan contribution coverage is not reasonably likely to have
a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both form and
operation, in all material respects, with its terms, ERISA and the
IRC, and no condition exists or event has occurred with respect to
any such plan which would result in the incurrence by either
Borrower or any ERISA Affiliate of any material liability, fine or
penalty. Each Employee Benefit Plan, related trust agreement,
arrangement and commitment of Borrower or any ERISA Affiliate is
legally valid and binding and in full force and effect. No Employee
Benefit Plan is being audited or investigated by any government
agency or is subject to any pending or threatened claim or suit.
Neither Borrower nor any ERISA Affiliate nor any fiduciary of any
Employee Benefit Plan has engaged in a prohibited transaction under
section 406 of ERISA or section 4975 of the IRC.
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(iii) Neither Borrower nor any ERISA Affiliate contributes to
or has any material contingent obligations to any Multiemployer
Plan. Neither Borrower nor any ERISA Affiliate has incurred any
material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal
from such Multiemployer Plan under Section 4201 of ERISA or as a
result of a sale of assets described in Section 4204 of ERISA.
Neither Borrower nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or that
any Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
(m) Other Regulations. Borrower is not subject to regulation under
the Investment Company Act of 1940, the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code or to any other Governmental Rule limiting
its ability to incur indebtedness.
(n) Patent and Other Rights. Borrower and its Subsidiaries own,
license or otherwise have the right to use, under validly existing
agreements, all patents, licenses, trademarks, trade names, trade
secrets, service marks, copyrights and all rights with respect thereto,
which are required to conduct their businesses as now conducted.
(o) Governmental Charges. Borrower and its Subsidiaries have filed
or caused to be filed all tax returns which are required to be filed by
them. Borrower and its Subsidiaries have paid, or made provision for
the payment of, all taxes and other Governmental Charges which have or
may have become due pursuant to said returns or otherwise and all other
indebtedness, except such Governmental Charges or indebtedness, if any,
which are being contested in good faith and as to which adequate
reserves (determined in accordance with GAAP) have been provided or
which are not reasonably likely to have a Material Adverse Effect if
unpaid.
(p) Margin Stock. Borrower owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of
Borrower, and no proceeds of any Loan will be used to purchase or
carry, directly or indirectly, any Margin Stock or to extend credit,
directly or indirectly, to any Person for the purpose of purchasing or
carrying any Margin Stock.
(Q) Subsidiaries, etc. Set forth in Schedule 4.01(g) (as
supplemented by Borrower from time to time in a written notice to
Agent) is a complete list of all of Borrower's
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Subsidiaries, the jurisdiction of incorporation of each, the classes of
Equity Securities of each and the number of shares and percentages of
shares of each such class owned directly or indirectly by Borrower.
Except for such Subsidiaries, Borrower has no Subsidiaries, is not a
partner in any partnership or a joint venturer in any joint venture.
(r) Catastrophic Events. Neither Borrower nor any of its
Subsidiaries and none of their properties is or has been affected by
any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are
no disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which
Borrower or any of its Subsidiaries is a party, and there are no
strikes, lockouts, work stoppages or slowdowns, or, to the best
knowledge of Borrower, jurisdictional disputes or organizing activities
occurring or threatened which alone or in the aggregate are reasonably
likely to have a Material Adverse Effect.
(s) No Material Adverse Effect. No event has occurred and is
continuing and no condition exists which is reasonably likely to have a
Material Adverse Effect.
(t) Accuracy of Information Furnished. None of the Credit Documents
and none of the other certificates, statements or information furnished
to Agent or any Lender by or on behalf of Borrower or any of its
Subsidiaries in connection with the Credit Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.02. Reaffirmation. Borrower shall be deemed to have reaffirmed, for
the benefit of the Lenders and Agent, each representation and warranty contained
in Paragraph 4.01 on and as of the date of each Credit Event (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement
and the satisfaction in full by Borrower of all Obligations, Borrower will
comply, and will cause compliance, with the following affirmative covenants,
unless Required Lenders shall otherwise consent in writing:
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(a) Financial Statements, Reports, etc. Borrower shall furnish to
Agent, with sufficient copies for each Lender, the following, each in
such form and such detail as Agent or the Required Lenders shall
reasonably request:
(i) As soon as available and in no event later than fifty (50)
days after the last day of each fiscal quarter of Borrower (other
than the last quarter in any fiscal year), a copy of the Financial
Statements of Borrower and its Subsidiaries (prepared on a
consolidated basis) for such quarter and for the fiscal year to
date, certified by the president or chief financial officer of
Borrower to present fairly the financial condition, results of
operations and other information reflected therein and to have been
prepared in accordance with GAAP (subject to normal year-end audit
adjustments);
(ii) As soon as available and in no event later than one
hundred (100) days after the close of each fiscal year of Borrower,
(A) copies of the audited Financial Statements of Borrower and its
Subsidiaries (prepared on a consolidated basis) for such year,
prepared by Ernst & Young or by other independent certified public
accountants of recognized national standing acceptable to Agent,
(B) copies of the unqualified opinions (or qualified opinions
reasonably acceptable to Required Lenders) and management letters
delivered by such accountants in connection with all such Financial
Statements and (C) certificates of such accountants to Agent
stating that in making the examination necessary for their opinion
they have reviewed this Agreement and have obtained no knowledge of
any Default which has occurred and is continuing, or if, in the
opinion of such accountants, a Default has occurred and is
continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and
(ii), a compliance certificate of the president or chief financial
officer of Borrower which (A) states that no Default has occurred
and is continuing, or, if any such Default has occurred and is
continuing, a statement as to the nature thereof and what action
Borrower proposes to take with respect thereto and (B) sets forth,
for the quarter or year covered by such Financial Statements or as
of the last day of such quarter or year (as the case may be), the
calculation of the financial ratios and tests provided in Paragraph
5.03;
(iv) As soon as available and in no event later than fifty (50)
days after the last day of each fiscal
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quarter of Borrower, a certificate of the chief financial officer
of Borrower which sets forth the calculation of the Funded
Indebtedness/EBITDA Ratio for the consecutive four-quarter period
ending on such day;
(v) As soon as possible and in no event later than five (5)
Business Days after any Senior Officer of Borrower knows of the
occurrence or existence of (A) any Reportable Event under any
Employee Benefit Plan or Multiemployer Plan; (B) any actual or
threatened litigation, suits, claims or disputes against Borrower
or any of its Subsidiaries involving potential monetary damages
payable by Borrower or its Subsidiaries of $2,500,000 or more
(alone or in the aggregate); (C) any other event or condition which
is reasonably likely to have a Material Adverse Effect; or (D) any
Default; the statement of the president or chief financial officer
of Borrower setting forth details of such event, condition or
Default and the action which Borrower proposes to take with respect
thereto;
(vi) As soon as available and in no event later than five (5)
Business Days after they are sent, made available or filed, copies
of (A) all registration statements and reports filed by Borrower or
any of its Subsidiaries with any securities exchange or the
Securities and Exchange Commission (including, without limitation,
all 10-Q, 10-K and 8-Q reports); (B) all reports, proxy statements
and financial statements sent or made available by Borrower or any
of its Subsidiaries to its security holders; and (C) all press
releases and other similar public, concerning any material
developments in the business of Borrower or any of its Subsidiaries
made available by Borrower or any of its Subsidiaries to the public
generally;
(vii) As soon as available and in no event later than five (5)
Business Days after they are filed, copies of all IRS Form 5500
reports for all Employee Benefit Plans required to file such form;
(viii) As soon as available and in no event later than ten (10)
days before the first day of each fiscal year of Borrower, the
consolidated plan and forecast of Borrower and its Subsidiaries for
such fiscal year, including quarterly cash flow projections and
quarterly projections of Borrower's compliance with each of the
covenants set forth in Paragraph 5.03;
(ix) As soon as possible and in no event later than (A) ten
(10) days prior to the acquisition by Borrower or any of its
Subsidiaries of any new
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Subsidiary or all or substantially all of the assets of any other
Person, written notice thereof; and
(x) Such other instruments, agreements, certificates, opinions,
statements, documents and information relating to the operations or
condition (financial or otherwise) of Borrower or its Subsidiaries,
and compliance by Borrower with the terms of this Agreement and the
other Credit Documents as Agent may from time to time reasonably
request.
For the purposes of this Subparagraph 5.01(a), (1) the timely delivery
by Borrower to Agent pursuant to clause (vi) of a copy of the Form 10-Q
report filed by Borrower with the Securities and Exchange Commission
for any quarter shall satisfy the requirements of clause (i) for such
quarter and (2) the timely delivery by Borrower to Agent pursuant to
clause (vi) of a copy of the Form 10-K report filed by Borrower with
the Securities and Exchange Commission for any year shall satisfy the
requirements of clause (ii)(A) for such year, provided that such
reports are required to contain the same information as required by
clause (ii)(A), respectively.
(b) Books and Records. Borrower and its Subsidiaries shall at all
times keep proper books of record and account in which full, true and
correct entries will be made of their transactions in accordance with
GAAP.
(c) Inspections. Borrower and its Subsidiaries shall permit any
Person designated by any Lender, upon reasonable notice and during
normal business hours, to visit and inspect any of the properties and
offices of Borrower and its Subsidiaries, to examine the books and
records of Borrower and its Subsidiaries and make copies thereof and to
discuss the affairs, finances and business of Borrower and its
Subsidiaries with, and to be advised as to the same by, their officers,
auditors and accountants, all at such times and intervals as any Lender
may reasonably request.
(d) Insurance. Borrower and its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in the
amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same business
as such Person and operating in the same geographic area as such
Person, including, but not limited to, fire, public liability,
property damage and worker's compensation; and
(ii) Carry and maintain each policy for such insurance with
financially sound insurers.
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(e) Governmental Charges and other Indebtedness. Borrower and its
Subsidiaries shall promptly pay and discharge when due (i) all taxes
and other Governmental Charges prior to the date upon which penalties
accrue thereon, (ii) all indebtedness which, if unpaid, could become a
Lien upon the property of Borrower or its Subsidiaries and (iii)
subject to any subordination provisions applicable thereto, all other
Indebtedness which, if unpaid, is reasonably likely to have a Material
Adverse Effect, except such Indebtedness as may in good faith be
contested or disputed, or for which arrangements for deferred payment
have been made, provided that in each such case appropriate reserves as
required by GAAP are maintained.
(f) Use of Proceeds. Borrower shall use the proceeds of the Loans
only for the purposes set forth in Subparagraph 2.01(f). Borrower shall
not use any part of the proceeds of any Loan, directly or indirectly,
for the purpose of purchasing or carrying any Margin Stock or for the
purpose of purchasing or carrying or trading in any securities under
such circumstances as to involve Borrower, any Lender or Agent in a
violation of Regulations G, T, U or X issued by the Federal Reserve
Board.
(g) General Business Operations. Each of Borrower and its
Subsidiaries shall (i) preserve and maintain its corporate existence
and all of its rights, privileges and franchises reasonably necessary
to the conduct of its business, (ii) conduct its business activities in
compliance with all Requirements of Law and Contractual Obligations
applicable to such Person, the violation of which is reasonably likely
to have a Material Adverse Effect and (iii) keep all property useful
and necessary in its business in good working order and condition,
ordinary wear and tear excepted; provided, however, that Borrower and
its Subsidiaries may dissolve or liquidate any Subsidiary if such
Subsidiary is not a Material Subsidiary and such dissolution or
liquidation is not reasonably likely to have a Material Adverse Effect.
Borrower shall maintain its chief executive office and principal place
of business in the United States and shall not relocate its chief
executive office or principal place of business outside of California
except upon not less than thirty (30) days prior written notice to
Agent.
5.02. Negative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following negative covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Indebtedness. Neither Borrower nor any of its Subsidiaries
shall create, incur, assume or permit to exist
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any Indebtedness except for the following ("Permitted Indebtedness"):
(i) The Obligations of Borrower under the Credit Documents;
(ii) The Related Lease Obligations;
(iii) Indebtedness of Borrower and its Subsidiaries listed in
Schedule 5.02(a) and existing on the date of this Agreement;
(iv) Indebtedness of Borrower and its Subsidiaries arising from
the endorsement of instruments for collection in the ordinary
course of Borrower's or a Subsidiary's business;
(v) Indebtedness of Borrower and its Subsidiaries for trade
accounts payable, provided that (A) such accounts arise in the
ordinary course of business and (B) no material part of any such
account is more than ninety (90) days past due (unless subject to a
bona fide dispute and for which adequate reserves as required by
GAAP have been established);
(vi) Indebtedness of Borrower and its Subsidiaries under Rate
Contracts, provided that all such Rate Contracts are entered into
in connection with bona fide hedging operations and not for
speculation;
(vii) Indebtedness of Borrower and its Subsidiaries under
purchase money loans and Capital Leases incurred by Borrower or any
of its Subsidiaries to finance the acquisition by such Person of
real property, fixtures or equipment provided that in each case,
(A) such Indebtedness is incurred by such Person at the time of, or
not later than thirty (30) days after, the acquisition by such
Person of the property so financed, (B) such Indebtedness does not
exceed the purchase price of the property so financed, and (C) no
Default has occurred and is continuing at the time such
Indebtedness is incurred or will occur after giving effect to such
Indebtedness;
(viii) Indebtedness of Borrower and its Subsidiaries under
initial or successive refinancings of any Indebtedness permitted by
clause (iii) above, provided that (A) the principal amount of any
such refinancing does not exceed the principal amount of the
Indebtedness being refinanced (except to the extent otherwise
permitted by clause (x) below) and (B) the material terms and
provisions of any such refinancing (including maturity, redemption,
prepayment, default
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and subordination provisions) are no less favorable to the Lenders
than the Indebtedness being refinanced;
(ix) Indebtedness of Borrower and its Subsidiaries with respect
to surety, appeal, indemnity, performance or other similar bonds in
the ordinary course of business; and
(x) Other Indebtedness of Borrower and its Subsidiaries,
provided that the aggregate principal amount of all such other
Indebtedness does not exceed $25,000,000 at any time.
(b) Liens. Neither Borrower nor any of its Subsidiaries shall
create, incur, assume or permit to exist' any Lien on or with respect
to any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of Agent or any Lender securing the
Obligations;
(ii) Liens in favor of the lessor, participants or agent under
the Related Lease Participation Agreement securing the Related
Lease Obligations;
(iii) Liens listed in Schedule 5.02(b) and existing on the date
of this Agreement;
(iv) Liens for taxes or other Governmental Charges not at the
time delinquent or thereafter payable without penalty or being
contested in good faith, provided that adequate reserves for the
payment thereof as required by GAAP have been established;
(v) Liens of carriers, warehousemen, mechanics, materialmen,
vendors, and landlords and other similar Liens imposed by law
incurred in the ordinary course of business for sums not overdue or
being contested in good faith, provided that adequate reserves for
the payment thereof as required by GAAP have been established;
(vi) Deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety or
appeal bonds or to secure indemnity, performance or other similar
bonds in the ordinary course of business;
(vii) Zoning restrictions, easements, rights-of-way, title
irregularities and other similar encumbrances, which alone or in
the aggregate are not
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substantial in amount and do not materially detract from the value
of the property subject thereto or interfere with the ordinary
conduct of the business of Borrower or any of its Subsidiaries;
(viii) Banker's Liens and similar Liens (including set-off
rights) in respect of bank deposits;
(ix) Liens on property or assets of any corporation which
becomes a Subsidiary of Borrower or on any property or assets
acquired by Borrower or any of its Subsidiaries after the date of
this Agreement, provided that (A) such Liens exist at the time the
stock of such corporation or such assets or property is or are
acquired by Borrower and (B) such Liens were not created in
contemplation of such acquisition by Borrower;
(x) Judgement Liens, provided that such Liens do not have a
value in excess of $2,500,000 or such Liens are released, stayed,
vacated or otherwise dismissed within twenty (20) days after issue
or levy and, if so stayed, such stay is not thereafter removed;
(xi) Rights of vendors or lessors under conditional sale
agreements, Capital Leases or other title retention agreements,
provided that, in each case, (A) such rights secure or otherwise
relate to Permitted Indebtedness, (B) such rights do not extend to
any property other than property acquired with the proceeds of such
Permitted Indebtedness and (C) such rights do not secure any
Indebtedness other than such Permitted Indebtedness;
(xii) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties and in
connection with the importation of goods in the ordinary course of
Borrower's and its Subsidiaries' businesses;
(xiii) Liens securing Indebtedness which constitutes Permitted
Indebtedness under clause (vii) of Subparagraph 5.02(a) provided
that, in each case, such Lien (A) covers only those assets, the
acquisition of which was financed by such Permitted Indebtedness,
and (B) secures only such Permitted Indebtedness;
(xiv) Liens on the property or assets of any Subsidiary of
Borrower in favor of Borrower or any other Subsidiary of Borrower;
(xv) Liens incurred in connection with the extension, renewal
or refinancing of the Indebtedness secured by the Liens described
in clause (iii) above,
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provided that any extension, renewal or replacement Lien (A) is
limited to the property covered by the existing Lien and (B)
secures Indebtedness which is no greater in amount and has material
terms no less favorable to the Lenders than the Indebtedness
secured by the existing Lien;
(xvi) Liens on insurance proceeds in favor of insurance
companies with respect to the financing of insurance premiums;
(xvii) Permitted Property Liens (as defined in the Related
Lease Participation Agreement) in the Property (as defined in the
Related Lease Participation Agreement); and
(xviii) Other Liens on the property of Borrower and its
Subsidiaries, provided that the aggregate principal amount of all
Indebtedness secured by such other Liens does not exceed at any
time ten percent (10%) of the consolidated total assets of Borrower
and its Subsidiaries at such time.
(c) Asset Dispositions. Neither Borrower nor any of its
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
its assets or property, whether now owned or hereafter acquired, except
for the following:
(i) Sales of inventory by Borrower and its Subsidiaries in the
ordinary course of their businesses;
(ii) Sales of surplus, damaged, worn or obsolete equipment or
inventory for not less than fair market value;
(iii) Sales or other dispositions of Investments permitted by
clauses (i) and (iii) of Subparagraph 5.02(e) for not less than
fair market value;
(iv) Sales or assignments of defaulted receivables to a
collection agency in the ordinary course of business;
(v) Licenses by Borrower or its Subsidiaries of its patents,
copyrights, trademarks, trade names and service marks in the
ordinary course of its business provided that, in each case, the
terms of the transaction are terms which then would prevail in the
market for similar transactions between unaffiliated parties
dealing at arm's length;
(vi) Sales or other dispositions of assets and property by
Borrower to any of Borrower's Subsidiaries
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or by any of Borrower's Subsidiaries to Borrower or any of its
other Subsidiaries, provided that the terms of any such sales or
other dispositions by or to Borrower are terms which are no less
favorable to Borrower then would prevail in the market for similar
transactions between unaffiliated parties dealing at arm's length;
(vii) Sales of accounts receivable of Borrower and its
Subsidiaries, provided that (A) each such sale is (1) for not less
than fair market value and (2) for cash, and (B) the aggregate book
value of all such accounts receivable so sold in any consecutive
four-quarter period does not exceed ten percent (10%) of the
consolidated total accounts receivable of Borrower and its
Subsidiaries on the last day immediately preceding such
four-quarter period; and
(viii) other sales, leases, transfers and disposals of assets
and property for not less than fair market value, provided that the
aggregate book value of all such assets and property so sold,
leased, transferred or otherwise disposed of in any consecutive
four-quarter period does not exceed five percent (5%) of the
consolidated total assets of Borrower and its Subsidiaries on the
last day immediately preceding such four-quarter period.
(d) Mergers, Acquisitions, Etc. Neither Borrower nor any of its
Subsidiaries shall consolidate with or merge into any other Person or
permit any other Person to merge into it, establish any new Subsidiary,
acquire any Person as a new Subsidiary or acquire all or substantially
all of the assets of any other Person, except for the following:
(i) Any Subsidiary of Borrower may merge or consolidate with
any other Subsidiary of Borrower;
(ii) Any Subsidiary of Borrower may merge or consolidate with
Borrower, provided that Borrower is the surviving corporation; and
(iii) Borrower may merge or consolidate with any other
corporation, establish a new Subsidiary, acquire any Person as a
new Subsidiary or acquire all or substantially all of the assets of
any other Person, provided that:
(A) In the case of any merger or consolidation, either
(1) Borrower is the surviving corporation or (2) the surviving
corporation (y) is a Solvent United States corporation with a
financial condition equal to or better than the financial
condition of Borrower immediately prior to such merger or
consolidation
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and (z) assumes all of the obligations in a manner reasonably
acceptable to the Required Lenders;
(B) No Default has occurred and is continuing at the time
of such merger, consolidation, establishment or acquisition or
will occur after giving effect to such merger, consolidation or
acquisition; and
(C) The aggregate cost of any such merger, consolidation,
establishment or acquisition does not exceed the amounts
permitted under Subparagraph 5.02(e)(iv).
(e) Investments. Neither Borrower nor any of its Subsidiaries shall
make any Investment except for Investments in the following:
(i) Investments of Borrower and its Subsidiaries in Cash
Equivalents;
(ii) Any transaction permitted by Subparagraph, 5.02(a);
(iii) Money market mutual funds registered with the Securities
and Exchange Commission, meeting the requirements of Rule 2a-7
promulgated under the Investment Company Act of 1940;
(iii) Investments listed in Schedule 5.02(2) existing on the
date of this Agreement; and
(iv) Other Investments, provided that the aggregate amount of
such other Investments plus the aggregate cost of all mergers and
consolidations consummated, Subsidiaries established and
Subsidiaries and assets acquired by Borrower pursuant to
Subparagraph 5.02(d) does not exceed in any fiscal year (A)
$100,000,000 for any amounts paid in cash and (B) $500,000,000 for
any amounts paid with shares of common stock of Borrower (as
determined according to the stock price of such shares on the date
of transfer) and accounted for on a pooling basis in accordance
with GAAP.
(f) Dividends, Redemptions, Etc. Neither Borrower nor any of its
Subsidiaries shall pay any dividends or make any distributions on its
Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to
any holder of its Equity Securities as such; make any distribution of
assets, Equity Securities, obligations or securities to any holder of
its Equity Securities as such; or set apart any sum for any such
purpose; except as follows:
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(i) Either Borrower or any of its Subsidiaries may pay
dividends on its capital stock payable solely in such Person's own
capital stock;
(ii) Any Subsidiary of Borrower may pay dividends to Borrower;
(iii) Borrower may purchase shares of its capital stock for its
employee stock option plans, provided that (A) the aggregate amount
of such purchases does not exceed $50,000,000 in any fiscal year
and (B) no Default has occurred and is continuing at the time of
such purchase or will occur after giving effect to such purchase;
and
(iv) Borrower may purchase shares of its capital stock with the
proceeds received by it from a substantially concurrent issue of
new shares of its capital stock.
(g) Change in Business. Neither Borrower nor any of its
Subsidiaries shall engage, either directly or indirectly through
Affiliates, in any material line of business other than the
semiconductor capital equipment business and other businesses
incidental or reasonably related thereto.
(h) ERISA. Neither Borrower nor any ERISA Affiliate shall (i) adopt
or institute any Employee Benefit Plan that is an employee pension
benefit plan within the meaning of Section 3(2) of ERISA, (ii) take any
action which will result in the partial or complete withdrawal, within
the meanings of sections 4203 and 4205 of ERISA, from a Multiemployer
Plan, (iii) engage or permit any Person to engage in any transaction
prohibited by section 406 of ERISA or section 4975 of the IRC involving
any Employee Benefit Plan or multiemployer Plan which would subject
either Borrower or any ERISA Affiliate to any tax, penalty or other
liability including a liability to indemnity, (iv) incur or allow to
exist any accumulated funding deficiency (within the meaning of section
412 of the IRC or section 302 of ERISA), (v) fail to make full payment
when due of all amounts due as contributions to any Employee Benefit
Plan or Multiemployer Plan, (vi) fail to comply with the requirements
of section 4980B of the IRC or Part 6 of Title I(B) of ERISA, or (vii)
adopt any amendment to any Employee Benefit Plan which would require
the posting of security pursuant to section 401(a)(29) of the IRC,
where singly or cumulatively, the above would have a Material Adverse
Effect.
(i) Transactions With Affiliates. Neither Borrower nor any of its
Subsidiaries shall enter into any Contractual Obligation with any
Affiliate or engage in any other transaction with any Affiliate except
upon terms at least as
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favorable to Borrower or such Subsidiary as an arms-length transaction
with unaffiliated Persons.
(j) Accounting Changes. Neither Borrower nor any of its
Subsidiaries shall change (i) its fiscal year (currently January 1
through December 31) or (ii) its accounting practices except as
permitted by GAAP.
5.03. Financial Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all obligations, Borrower will comply,
and will cause compliance, with the following financial Covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Funded Indebtedness/Capital-Ratio. Borrower shall not permit
its Funded Indebtedness/Capital Ratio on any day set forth below to be
greater than the ratio set forth opposite such day below:
June 30, 1997;
September 30, 1997........................... 0.55 to 1.00;
December 31, 1997;
March 31, 1998;
June 30, 1998................................ 0.50 to 1.00;
September 30, 1998;
December 31, 1998
March 31, 1999
June 30, 1999................................ 0.45 to 1.00;
The last day of each
fiscal quarter thereafter.................... 0.40 to 1.00.
(b) Quick Ratio. Borrower shall not permit its Quick Ratio to be
less than 1.50 to 1.00 on the last day of any fiscal quarter.
(c) Debt Service Coverage Ratio. Borrower shall not permit its Debt
Service Coverage Ratio for any fiscal quarter ending on any day set
forth below to be less than the ratio set forth opposite such day
below:
June 30, 1997;
September 30, 1997;
December 31, 1997;
March 31, 1998;
June 30, 1998;
September 30, 1998........................... 2.50 to 1.00;
December 31, 1998;
March 31, 1999............................... 3.50 to 1.00;
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The last day of each
fiscal quarter thereafter..................... 4.50 to 1.00.
(d) Tangible Net Worth. Borrower shall not permit its Tangible Net
Worth on the last day of any fiscal quarter (such date to be referred
to herein as a "determination date") which occurs after June 30, 1997
(such date to be referred to herein as the "base date") to be less than
the sum on such determination date of the following:
(i) Ninety percent (90%) of the Tangible Net worth of Borrower
and its Subsidiaries on the base date;
plus
(ii) Seventy-five percent (75%) of the sum of Borrower's
consolidated quarterly net income (ignoring any quarterly losses)
for each fiscal quarter after the base date through and including
the fiscal quarter ending on the determination date;
plus
(iii) One hundred percent (100%) of the Net Proceeds of all
Equity Securities issued by Borrower and its Subsidiaries (to
Persons other than Borrower or its Subsidiaries) during the period
commencing on the base date and ending on the determination date;
plus
(iv) One hundred percent (100%) of the principal amount of all
debt securities of Borrower and its Subsidiaries converted into
Equity Securities of Borrower and its Subsidiaries during the
period commencing on the base date and ending on the determination
date;
minus
(v) The lesser of (A) the sum of all non-recurring, non-cash
charges taken by Borrower and its Subsidiaries during the period
commencing on the base date and ending on the earlier of the
determination date and December 31, 1997 and (B) $40,000,000.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
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(a) Non-Payment. Borrower shall (i) fail to pay when due any
principal of any Loan, (ii) fail to pay at the maturity of the Loans
any interest, fees or other amount then due under the terms of this
Agreement or any of the other Credit Documents, or (iii) fail to pay
within five (5) days after the same becomes due any other interest,
fees or other amounts required under the terms of this Agreement or any
of the other Credit Documents; or
(b) Specific Defaults. Borrower or any of its Subsidiary shall fail
to observe or perform any covenant, obligation, condition or agreement
set forth in Paragraph 5.02 or Paragraph 5.03; or
(c) Other Defaults. Borrower or any of its Subsidiaries shall fail
to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or the other Credit Documents and
such failure shall continue for thirty (30) days; or
(d) Representations and Warranties. Any representation, warranty,
certificate, information or other statement (financial or otherwise)
made or furnished by or on behalf of Borrower or any of its
Subsidiaries to Agent or any Lender in or in connection with this
Agreement or any of the other Credit Documents, or as an inducement to
Agent or any Lender to enter into this Agreement, shall be false,
incorrect, incomplete or misleading in any material respect when made
or furnished; or
(e) Cross-Default. (i) Borrower or any of its Subsidiaries shall
fail to make any payment when due on account of any Indebtedness of
such Person (other than the Obligations) and such failure shall
continue beyond any period of grace provided with respect thereto, if
the amount of such Indebtedness exceeds $2,500,000 or the effect of
such failure is to cause, or permit the holder or holders thereof to
cause, Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $2,500,000 to become due
or (ii) Borrower or any of its Subsidiaries shall otherwise fail to
observe or perform any agreement, term or condition contained in any
agreement or instrument relating to any Indebtedness of such Person
(other than the Obligations), or any other event shall occur or
condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to
cause, Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $2,500,000 to become due
(and/or to be secured by cash collateral); or
(f) Insolvency, Voluntary Proceedings. Borrower or any of its
Material Subsidiaries shall (i) apply for or consent to the appointment
of a receiver, trustee,
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liquidator or custodian of itself or of all or a substantial part of
its property, (ii) be unable, or admit in writing its inability, to pay
its debts generally as they mature, (iii) make a general assignment for
the benefit of its or any of its creditors, (iv) be dissolved or
liquidated in full or in part, (v) become insolvent (as such term may
be defined or interpreted under any applicable statute), (vi) commence
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or consent to any such relief or to the appointment of or
taking possession of its property by any official in an involuntary
case or other proceeding commenced against it, or (vi) take any action
for the purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Borrower or any of its
Material Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to Borrower
or any of its Material Subsidiaries or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect
shall be commenced and an order for relief entered or such proceeding
shall not be dismissed or discharged within thirty (30) days of
commencement; or
(h) Judgements. (i) One or more judgments, orders, decrees or
arbitration awards requiring Borrower and/or its Subsidiaries to pay an
aggregate amount of $2,500,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Borrower and
otherwise satisfying the requirements set forth in Subparaqraph 5.01(d)
shall be rendered against Borrower and/or any of its Subsidiaries in
connection with any single or related series of transactions, incidents
or circumstances and the same shall not be vacated or stayed for a
period of twenty (20) consecutive days; (ii) any judgment, writ,
assessment, warrant of attachment, tax lien or execution or similar
process shall be issued or levied against a substantial part of the
property of Borrower or any of its Subsidiaries and the same shall not
be released, stayed, vacated or otherwise dismissed within twenty (20)
days after issue or levy; or (iii) any other judgments, orders,
decrees, arbitration awards, writs, assessments, warrants of
attachment, tax liens or executions or similar processes which, alone
or in the aggregate, are reasonably likely to have a Material Adverse
Effect are rendered, issued or levied; or
(i) Credit Documents. Any Credit Document or any material term
thereof shall cease to be, or be asserted by Borrower or any of its
Subsidiaries not to be, a legal,
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valid and binding obligation of Borrower or any of its Subsidiaries
enforceable in accordance with its terms; or
(j) ERISA. Any Reportable Event which constitutes grounds for the
termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan shall occur, or any Employee Benefit Plan shall be terminated
within the meaning of Title IV of ERISA or a trustee shall be appointed
by the PBGC to administer any Employee Benefit Plan; or
(k) Change of Control. Any Change of Control shall occur; or
(1) Material Adverse Effect. Any event(s) or conditions which
is(are) reasonably likely to have a Material Adverse Effect shall occur
and be continuing or exist.
6.02. Remedies. At any time after the occurrence and during the
continuance of any Event of Default (other than an Event of Default referred to
in Subparagraph 6.01(f) or 6.01(g) Agent may, with the consent of the Required
Leaders, or shall, upon instructions from the Required Lenders, by written
notice to Borrower, (a) terminate the Commitments and the obligations of the
Lenders to make Loans, and/or (b) declare all outstanding Obligations payable by
Borrower to be immediately due and payable without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes to the contrary notwithstanding. Upon
the occurrence or existence of any Event of Default described in Subparagragh
6.01(f) or 6.01(g), immediately and without notice, (1) the Commitments and the
obligations of the Lenders to make Loans shall automatically terminate and (2)
all outstanding obligations payable by Borrower hereunder shall automatically
become immediately due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in the Notes to the contrary notwithstanding. In addition to
the foregoing remedies, upon the occurrence or existence of any Event of
Default, Agent may exercise any other right, power or remedy available to it
under any of the Credit Documents or otherwise by law, either by suit in equity
or by action at law, or both.
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.01. Appointment, Powers and Immunities. Each Lender hereby appoints
and authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall
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not have any duties or responsibilities except those expressly set forth in this
Agreement or in any other Credit Document, be a trustee for any Lender or have
any fiduciary duty to any Lender. Notwithstanding anything to the contrary
contained herein Agent shall not be required to take any action which is
contrary to this Agreement or any other Credit Document or any applicable
Governmental Rule. Neither Agent nor any Lender shall be responsible to any
other Lender for any recitals, statements, representations or warranties made by
Borrower or any of its Subsidiaries contained in this Agreement or in any other
Credit Document, for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure by Borrower or any of its Subsidiaries to perform their
respective obligations hereunder or thereunder. Agent may employ agents and
attorneys-in-fact and shall not be responsible to any Lender for the negligence
or misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither Agent nor any of its directors, officers, employees,
agents or advisors shall be responsible to any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Credit Document
or in connection herewith or therewith, except for its or their own gross
negligence or willful misconduct. Except as otherwise provided under this
Agreement, Agent shall take such action with respect to the Credit Documents as
shall be directed by the Required Lenders.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advise and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but shall be required to act or to
refrain from acting upon instructions of the Required Lenders and shall in all
cases be fully protected by the Lenders in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default unless Agent has received a written notice from
a Lender or Borrower, referring to this Agreement, describing such Default and
stating that such notice is a "Notice of Default". If Agent receives such a
notice of the occurrence of a Default, Agent shall give prompt notice thereof to
the Lenders. Agent shall take such action with respect to such Default as shall
be reasonably directed by the Required Lenders; provided, however, that until
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Agent shall have received such directions, Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders.
7.04. Indemnification. Without limiting the Obligations of Borrower
hereunder, each Lender agrees to indemnify Agent, ratably in accordance with
their Proportionate Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof; provided, however, that no Lender shall be liable for
any of the foregoing to the extent they arise from Agent's gross negligence or
willful misconduct. Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The obligations of each Lender under this Paragraph 7.04 shall survive
the payment and performance of the Obligations, the termination of this
Agreement and any Lender ceasing to be a party to this Agreement (with respect
to events which occurred prior to the time such Lender ceased to be a Lender
hereunder).
7.05. Non-Reliance. Each Lender represents that it has, independently
and without reliance on Agent, or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of Borrower and
the Subsidiaries and its own decision to enter into this Agreement and agrees
that it will, independently and without reliance upon Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own appraisals and decisions in taking or not taking
action under this Agreement. Neither Agent nor any of its affiliates nor any of
their respective directors, officers, employees, agents or advisors shall (a) be
required to keep any Lender informed as to the performance or observance by
Borrower or any of its Subsidiaries of the obligations under this Agreement or
any other document referred to or provided for herein or to make inquiry of, or
to inspect the properties or books of Borrower or any of its Subsidiaries; (b)
have any duty or responsibility to provide any Lender with any credit or other
information concerning Borrower or any of its Subsidiaries which may come into
the possession of Agent, except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by Agent
hereunder; or (c) be responsible to any Lender for (i) any recital, statement,
representation or warranty made by Borrower or any officer, employee or agent of
Borrower in this Agreement or in any of the
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other Credit Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, (iii)
the value or sufficiency of any collateral or the validity or perfection of any
of the liens or security interests intended to be created by the Credit
Documents, or (iv) any failure by Borrower to perform its obligations under
this Agreement or any other Credit Document.
7.06. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Borrower and the
Lenders, and Agent may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent, which Agent, if not a Lender,
shall be reasonably acceptable to Borrower; provided, however, that Borrower
shall have no right to approve a successor Agent if a Default has occurred and
is continuing. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from the duties and obligations
thereafter arising hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Section VII shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
7.07. Authorization. Agent is hereby authorized by the Lenders to
execute, deliver and perform, each of the Credit Documents to which Agent is or
is intended to be a party and each Lender agrees to be bound by all of the
agreements of Agent contained in the Credit Documents.
7.08. Agent in its Individual Capacity. Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of banking
or other business with Borrower and its Subsidiaries and affiliates as though
Agent were not Agent hereunder. With respect to Loans, if any, made by Agent in
its capacity as a Lender, Agent in its capacity as a Lender shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Lender and may exercise the same as though it were not Agent, and the
terms "Lender" or "Lenders" shall include Agent in its capacity as a Lender.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Borrower, any Lender or Agent under this Agreement or the other Credit Documents
shall be in writing and faxed, mailed or delivered, if to Borrower or Agent, at
its respective facsimile number or address set forth below or, if to any Lender,
at the address or facsimile number specified beneath
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the heading "Address for Notices" under the name of such Lender in Schedule I
(or to such other facsimile number or address for any party as indicated in any
notice given by that party to the other parties). All such notices and
communications shall be effective (a) when sent by Federal Express or other
overnight service of recognized standing, on the Business Day following the
deposit with such service; (b) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(c) when delivered by hand, upon delivery; and (d) when faxed, upon confirmation
of receipt; provided, however, that any notice delivered to Agent under Section
II shall not be effective until received by Agent.
Agent: ABN AMRO Bank N.V
ABN AMRO Bank North America, Inc.
Capital, Markets-Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
ABN AMRO Bank N. V.
ABN AMRO Bank North America, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Borrower: Novellus Systems, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Fax No: (000) 000-0000
Each Notice of Borrowing and Notice of Interest Period Selection shall be given
by Borrower to Agent's office located at the address referred to above during
Agent's normal business hours; provided, however, that any such notice received
by Agent after 10:00 a.m. on any Business Day shall be deemed received by Agent
on the next Business Day. In any case where this Agreement authorizes notices,
requests, demands or other communications by Borrower to Agent or any Lender to
be made by telephone or facsimile, Agent or any Lender may conclusively presume
that anyone purporting to be a person designated in any incumbency certificate
or other similar document received by Agent or a Lender is such a person.
8.02. Expenses. Borrower shall pay on demand, whether or not any Loan
is made hereunder, (a) all reasonable fees and
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expenses, including reasonable attorneys' fees and expenses incurred by Agent in
connection with the preparation, negotiation, execution and delivery of, and the
exercise of its duties under, this Agreement and the other Credit Documents, and
the preparation, negotiation, execution and delivery of amendments and waivers
thereunder and thereunder and (b) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and the Lenders in
the enforcement or attempted enforcement of any of the Obligations or in
preserving any of Agent's or the Lenders' rights and remedies (including,
without limitation all such fees and expenses incurred in connection with any
"workout" or restructuring affecting the Credit Documents or the Obligations or
any bankruptcy or similar proceeding involving Borrower or any of its
Subsidiaries). As used herein, the term "reasonable attorneys, fees and
expenses" shall include, without limitation, allocable costs and expenses of
Agent's and Lenders' in-house legal counsel and staff. The obligations of
Borrower under this Paragraph 8.02 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrower
agrees to protect, indemnity, defend and hold harmless Agent, the Lenders and
their Affiliates and their respective directors, officers, employees, agents and
advisors ("Indemnities") from and against any and all liabilities, losses,
damages or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to the
Credit Documents or any transaction contemplated thereby, including without
limitation any use by Borrower of any proceeds of the Loans, except to the
extent such liability arises from the willful misconduct or gross negligence of
such Indemnitee. Upon receiving knowledge of any suit, claim or demand asserted
by a third party that Agent or any Lender believes is covered by this indemnity,
Agent or such Lender shall give Borrower notice of the matter and an opportunity
to defend it, at Borrower's sole cost and expense, with legal counsel
satisfactory to Agent or such Lender, as the case may be. Agent or such Lender
may also require Borrower to defend the matter. Any failure or delay of Agent or
any Lender to notify Borrower of any such suit, claim or demand shall not
relieve Borrower of its obligations under this Paragraph 8.03 but shall reduce
such obligations to the extent of any increase in those obligations caused
solely by any such failure or delay which is unreasonable. The obligations of
Borrower under this Paragraph 8.03 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition
of this Agreement or any other Credit Document may be amended or waived, and any
consent under this
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Agreement or any other Credit Document may be given, it such amendment, waiver
or consent is in writing and is signed by Borrower and the Required Lenders (or
Agent on behalf of the Required Lenders with the written approval of the
Required Lenders); provided, however that:
(a) Any amendment, waiver or consent which would (i) increase the
Total Commitment, (ii) extend the Maturity Date, (iii) reduce the
principal of or interest on any Loan or any fees or other amounts
payable for the account of the Lenders hereunder, (iv) extend any
scheduled principal, interest or fee payment date, (v) amend this
Paragraph 8.04, or (vi) amend the definition of Required Lenders, must
be in writing and signed or approved in writing by all Lenders;
(b) Any amendment, waiver or consent which increases or decreases
the Proportionate Share of any Lender must be in writing and signed by
such Lender; and
(c) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of
any other right hereunder or thereunder nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any other
right hereunder or thereunder. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit Documents
shall be binding upon and inure to the benefit of Borrower, the
Lenders, Agent, all future holders of the Notes and their respective
successors and permitted assigns, except that Borrower may not assign
or transfer any of its rights or obligations under any Credit
Document without the prior written consent of Agent and each Lender.
All references in this Agreement to any Person shall be deemed to
include all successors and assigns of such Person.
(b) Participations. Any Lender may at any time sell to one or more
banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such
Lender under this Agreement and the other Credit Documents. In the
event of any such sale by a Lender of participating interests, such
Lender's obligations under this Agreement shall remain unchanged, such
Lender shall remain solely responsible for
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the performance thereof, such Lender shall remain the holder of its
Notes for all purposes under this Agreement and Borrower and Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any such sale is effected
may require the selling Lender to obtain the consent of the Participant
in order for such Lender to agree in writing to any amendment, waiver
or consent of a type specified in clause (i), (ii), (iii) or (iv) of
Subparagraph 8.04(a) but may not otherwise require the Selling Lender
to obtain the consent of such Participant to any other amendment,
waiver or consent hereunder. Borrower agrees that if amounts
outstanding under this Agreement and the other Credit Documents are not
paid when due (whether upon acceleration or otherwise), each
Participant shall, to the fullest extent permitted by law be deemed to
have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any other Credit Documents to
the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any other
Credit Documents; provided, however, that no Participant shall
exercise any rights under this sentence without the consent of Agent,
(ii) no Participant shall have any rights under this sentence which are
greater than those of the selling Lender and (iii) such rights of
setoff shall be subject to the obligation of such Participant to share
the payment so obtained with all of the Lenders as provided in
Subparagraph 2.13(b). Borrower also agrees that any Lender which has
transferred any participating interest in its Commitment or Loans
shall, notwithstanding any such transfer, be entitled to the full
benefits accorded such Lender under Paragraph 2.14, Paragraph 2.15, and
Paragraph 2.16, as if such Lender had not made such transfer.
(c) Assignments. Any Lender may, at any time, sell and assign to
any other Lender or to any eligible Assignee (individually, an
"Assignee Lender") all or a portion of its rights and obligations under
this Agreement and the other Credit Documents (such a sale and
assignment to be referred to herein as an "Assignment") pursuant to an
assignment agreement in the form of Exhibit D (an "Assignment
Agreement"), executed by each Assignee Lender and such assignor Lender
(an "Assignor Lender") and delivered to Agent for its acceptance and
recording in the Register; Provided, however, that:
(i) Without the written consent of Agent and, if no Default has
occurred and is continuing, Borrower (which consent of Agent and
Borrower shall not be unreasonably withheld), no Lender way make
any Assignment to any Assignee Lender which is not, immediately
prior to such Assignment, a Lender hereunder or an Affiliate
thereof; or
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(ii) Without the written consent of Agent and, if no Default
has occurred and is continuing, Borrower (which consent of Agent
and Borrower shall not be unreasonably withheld), no Lender may
make any Assignment to any Assignee Lender if, after giving effect
to such Assignment, the Commitment of such Lender or such Assignee
Lender would be less than Ten Million Dollars ($10,000,000) (except
that a Lender may make an Assignment which reduces its Commitment
to zero without the written consent of Borrower and Agent); or
(iii) Without the written consent of Agent and, if no Default
has occurred and is continuing, Borrower (which consent of Agent
and Borrower shall not be unreasonably withheld), no Lender may
make any Assignment which does not assign and delegate an equal pro
rata interest in such Lenders Loans, Commitments and all other
rights, duties and obligations of such Lender under this Agreement
and the other Credit Documents and under the Related Lease
Documents.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with a Proportionate
Share as set forth on Attachment I to such Assignment Agreement (under
the caption "Proportionate Share After Assignment") and shall have the
rights, duties and obligations of such a Lender under this Agreement
and the other Credit Documents, and (B) the Assignor Lender thereunder
shall be a Lender with a Proportionate Share as set forth on Attachment
I to such Assignment Agreement (under the caption "Proportionate Share
After Assignment"), or, if the Proportionate Share of the Assignor
Lender has been reduced to 0%, the Assignor Lender shall cease to be a
Lender and to have any obligation to make any Loan; provided, however,
that any such Assignor Lender which ceases to be a Lender shall
continue to be entitled to the benefits of any provision of this
Agreement which by its terms survives the termination of this
Agreement. Each Assignment Agreement shall be deemed to amend Schedule
I to the extent, and only to the extent, necessary to reflect the
addition of each Assignee Lender, the deletion of each Assignor Lender
which reduces its Proportionate Share to 0% and the resulting
adjustment of Proportionate Shares arising from the purchase by each
Assignee Lender of all or a portion of the rights and obligations of an
Assignor Lender under this Agreement and the other Credit Documents. On
or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, Borrower, at its own expense, shall execute and
deliver to Agent, in exchange for the surrendered Note of the Assignor
Lender thereunder, a new Note to the order of each Assignee Lender
thereunder (with each new Note to be in
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an amount equal to the commitment assumed by such Assignee Lender) and,
if the Assignor Lender is continuing as a Lender hereunder, a new Note
to the order of the Assignor Lender (with the new Note to be in an
amount equal to the Commitment retained by it). Each such new Note
shall be dated the Closing Date, and each such new Note shall otherwise
be in the form of the Note replaced thereby. The Notes surrendered by
the Assignor Lender shall be returned by Agent to Borrower marked
"replaced". Each Assignee Lender which was not previously a Lender
hereunder and which is not incorporated under the laws of the United
States of America or a state thereof shall, within three (3) Business
Days of becoming a Lender, deliver to Borrower and Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224 (or successor applicable form), as the case may be, certifying in
each case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes. (Without limiting the generality of any of the preceding
provisions of this Subparagraph 8.05(c), no Lender may, if Borrower
shall object in writing, make any Assignment to any Assignee Lender
that, at the time of such Assignment, (1) has a basis for demanding any
payment under Subparagraph 2.14 (c) or Subparagraph 2.14 (d) in excess
of the pro rata amount that then could be demanded thereunder by the
Lender proposing to make such Assignment or (2) would require Borrower
to make any payment under Subparagraph 2.15(a) on account of payments
to such Assignee Lender in excess of the pro rata amount that Borrower
was then required to make thereunder on account of payments to the
Lender proposing to make such Assignment.)
(d) Register. Agent shall maintain at its address referred to in
Paragraph 8.01 a copy of each Assignment Agreement delivered to it and
a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Proportionate shares of each Lender
from time to time. The entries in the Register shall be conclusive in
the absence of manifest error, and Borrower, Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner
of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the
extent required by Subparagraph 8.05(c), by Borrower and Agent)
together with payment to Agent by Assignor Lender of a registration and
processing fee of $2,500, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Effective Date determined pursuant
thereto record the information contained therein in the
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Register and give notice of such acceptance and recordation to the
Lenders and Borrower. Agent may, from time to time at its election,
prepare and deliver to the Lenders and Borrower a revised Schedule I
reflecting the names, addresses and respective Proportionate Shares of
all Lenders then parties hereto.
(f) Confidentiality. Subject to Subparagraph 8.11(g), Agent and the
Lenders may disclose the Credit Documents and any financial or other
information relating to Borrower or any Subsidiary to each other or to
any potential Participant or Assignee Lender.
8.06. Setoff. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, with the prior consent of
Agent but without prior notice to or consent of Borrower, any such notice and
consent being expressly waived by Borrower to the extent permitted by applicable
law, upon the occurrence and during the continuance of an Event of Default, to
set-off and apply against the Obligations any amount owing from such Lender to
Borrower. The aforesaid right of set-off may be exercised by such Lender against
Borrower or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against Borrower
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off may not have been exercised
by such Lender at any prior time. Each Lender agrees promptly to notify Borrower
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
8.07. No Third Party-Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWER, THE LENDERS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
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8.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
8.11. Confidentiality. Neither Agent nor any Lender shall disclose to
any Person any information with respect to Borrower or any of its Subsidiaries
which is furnished pursuant to this Agreement, except that Agent or any Lender
may disclose any such information (a) to its own directors, officers, employees,
auditors, counsel and other advisors and to its Affiliates; (b) to any other
Lender or Agent; (c) which is otherwise available to the public; (d) if required
or appropriate in any report, statement or testimony submitted to any
Governmental Authority having or claiming to have jurisdiction over such Lender
or Agent; (e) if required or appropriate in response to any summons or subpoena
or in connection with any litigation; (f) to comply with any Requirement of Law
applicable to such Lender or Agent; (g) to any Participant or Assignee Lender or
any prospective Participant or Assignee Lender, provided that such Participant
or Assignee Lender or prospective Participant or Assignee Lender agrees to be
bound by this Paragraph 8.11; or (h) otherwise with the prior consent of
Borrower; provided, however, that any disclosure made in violation of this
Agreement shall not affect the obligations of Borrower and its Subsidiaries
under this Agreement and the other Credit Documents.
[The first signature page follows.]
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IN WITNESS WHEREOF, Borrower, the Lenders and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWER: NOVELLUS SYSTEMS, INC.
By: /s/ XXXX XXXXXXXX
----------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------
Title: Executive V.P., Operations
----------------------------
AGENT: ABN AMRO BANK N.V.
By: /s/ XXXXX X. XXX
----------------------------------
Name: Xxxxx X. Xxx
-----------------------------
Title: Group Vice President
----------------------------
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Senior Vice President
----------------------------
LENDERS: ABN AMRO BANK N.V.
By: /s/ XXXXX X. XXX
----------------------------------
Name: Xxxxx X. Xxx
-----------------------------
Title: Group Vice President
----------------------------
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Senior Vice President
----------------------------
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The following exhibits / schedules to the Credit Agreement have been omitted.
Such exhibits / schedules will be submitted to the Securities and Exchange
Commission upon request:
Schedules
I Lenders
1.01 Pricing Grid
3.01 Initial Conditions Precedent
4.01(g) Litigation
4.01(q) Subsidiaries
5.02(a) Existing Indebtedness
5.02(b) Existing Liens
5.02(e) Existing Investments
Exhibits
A Notice of Borrowing (2.02)
B Notice of Interest Period Selection (2.04(b))
C Note (2.11(a))
D Assignment Agreement (8.05(c))
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