EXECUTION COPY
CONTINGENT MULTICURRENCY NOTE PURCHASE
COMMITMENT AGREEMENT
DATED AS OF DECEMBER 12, 1996
BETWEEN
STORAGE TECHNOLOGY CORPORATION
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
|| TABLE OF CONTENTS
ARTICLE I
TRANSFERS AND PAYMENTS
Page
1.01 Commitments to Sell and Purchase Notes 2
1.02 Procedures for Entering Into Supplements and Sale of Notes 2
1.03 Delivery of Notes; Purchase Price Calculation 10
1.04 Interest on Notes 10
1.05 Facility Limit and Note Limit 12
1.06 Voluntary Termination of Facility; Reduction of Facility
Limit 13
1.07 Termination Date; Extension of Termination Date 13
1.08 Early Termination or Reduction Payments 14
1.09 Certain Forward Contracts. 15
ARTICLE II
SETTLEMENT
2.01 Maturity Date Payment Procedures 16
2.02 Settlement of Forward Contracts on Maturity Dates 16
2.03 Netting of Payments on Certain Issuance Dates 17
2.04 Payments and Computations, Etc 17
ARTICLE III
FEES AND YIELD PROTECTION
3.01 Fees 18
3.02 Yield Protection 19
3.03 Inability to Determine Eurodollar Rate; Failure to Specify
Maturity Date 20
3.04 Funding Losses 20
3.05 Taxes, Etc 21
3.06 Set-off 22
ARTICLE IV
CONDITIONS TO EFFECTIVENESS AND PURCHASES
4.01 Conditions Precedent to Effectiveness 22
4.02 Conditions Precedent to All Purchases of Notes. 23
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Representations and Warranties of Borrower 24
ARTICLE VI
GENERAL COVENANTS OF BORROWER
6.01 Affirmative Covenants of Borrower 26
ARTICLE VII
TERMINATION EVENTS
7.01 Termination Events 30
7.02 Remedies 32
ARTICLE VIII
INDEMNIFICATION; EXCULPATION
8.01 Indemnities by Borrower 34
8.02 Exculpation 35
ARTICLE IX
MISCELLANEOUS
9.01 Amendments, Waivers, Etc 36
9.02 Notices, Etc 36
9.03 Binding Effect; Assignability; Survival of
Provisions 36
9.04 Governing Law 37
9.05 Costs, Expenses and Taxes 37
9.06 Execution in Counterparts 38
9.07 Confidentiality 38
9.08 Severability of Provisions 40
9.09 Conflict in Agreement Documents. 40
9.10 Legal Representation of Parties. 40
9.11 Recording. 40
9.12 Judgments 40
9.13 Submission to Jurisdiction 41
9.14 Integration 41
9.15 Waiver of Jury Trial 41
LIST OF SCHEDULES AND EXHIBITS
------------------------------
SCHEDULE I Definitions
SCHEDULE II Determination Dates
EXHIBIT 1.01 Form of Promissory Note
EXHIBIT 1.02(b) Form of Supplement
EXHIBIT 1.02(f) Form of Deficiency Certificate
EXHIBIT 1.07(c) Form of Amendment
EXHIBIT 4.01(d) Form of Opinion of Counsel for Borrower
EXHIBIT 4.02(b) Form of Officer's Certificate on Purchase Date
EXHIBIT 5.01(d) Schedule of Litigation
EXHIBIT 6.01(g)(vii) Compliance Certificate
||
THIS CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
(this "Agreement"), dated as of December 12, 1996, is between STORAGE
TECHNOLOGY CORPORATION, a Delaware corporation ("Borrower"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking
association ("BofA").
RECITALS
A. Borrower and BofA may from time to time wish to enter into
Supplements pursuant to which Borrower will agree to issue and sell to
BofA, and BofA will agree to purchase from Borrower, on the Purchase
Dates specified in such Supplements, certain Notes issued by Borrower.
B. The issuance and sale of such Notes by Borrower, and the
purchase of such Notes by BofA, will be subject to the conditions set
forth in this Agreement, including without limitation the condition
that at the time of such issuance, sale and purchase, Borrower and its
Subsidiaries taken as a whole will own at least the aggregate amount of
Receivables specified in Sections 1.02(f) or (g).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
DEFINITIONS AND RELATED MATTERS
In this Agreement, unless otherwise specified:
(a) capitalized terms, "currency", and "foreign currency" are
used as defined in Schedule I;
(b) accounting terms shall be interpreted, and accounting
determinations and computations made, in accordance with GAAP;
(c) references to any Article, Section, Exhibit or Schedule
refer to such Article or Section of, or Exhibit or Schedule to,
this Agreement, and references in any Article, Section or
definition to any subsection or clause refer to such subsection or
clause of such Article, Section or definition;
(d) "herein", "hereof", "hereto", "hereunder" and similar
terms refer to this Agreement as a whole and not to any particular
Section, paragraph or provision of this Agreement;
(e) "including" means including without limitation, and other
forms of the verb "to include" have correlative meanings;
(f) for purposes of calculating interest, any fee, discount
or any other amount accrued over a period of time, the first day
of such period shall be included and the last day excluded;
(g) a reference to any Person includes such Person's
successors and assigns, unless such successors and assigns are not
permitted by this Agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
(h) a reference to any law, rule or regulation refers to such
law, rule or regulation as amended from time to time and includes
any successor law, rule or regulation; and
(i) captions are solely for convenience of reference and
shall not affect the meaning of this Agreement.
ARTICLE I
TRANSFERS AND PAYMENTS
----------------------
SECTION 1.01 Commitments to Sell and Purchase Notes. On the
terms and subject to the conditions hereinafter set forth, including
Section 1.02(f), from time to time on each Purchase Date occurring on
or prior to the Termination Date, Borrower agrees to issue and sell to
BofA, and BofA agrees to purchase from Borrower, promissory notes in
the form of Exhibit 1.01 (each, a "Note"), duly completed and executed
by Borrower to the order of BofA, each of which will be denominated in
one or more foreign currencies (or, if provided in any amended
Supplement, Dollars). Such Notes shall be in the respective principal
amounts which are specified for each of such currencies in one or more
Supplements relating to such Purchase Date which are entered into by
Borrower and BofA from time to time. If Borrower and BofA wish to
denominate all or a portion of any Note in a currency which is not
listed in Annex 1 to Exhibit 1.02(b) hereto, they may by mutual
agreement specify such currency in the applicable Supplement. BofA and
Borrower may, from time to time by mutual agreement, amend any
Supplement to provide that all or any portion of any Note will be
denominated in Dollars, by executing and delivering an appropriately
completed Amendment.
SECTION 1.02 Procedures for Entering Into Supplements and Sale of
Notes.
(a) Certain Definitions. As used herein:
(i) "Determination Date" means each date set forth in
Schedule II hereto, as in effect from time to time, or, if any
such date is not a Business Day, the immediately preceding
Business Day.
(ii) "Purchase Date" means each date designated in any
Supplement as a Purchase Date. No Purchase Date shall fall less
than four Eurodollar Business Days after the immediately preceding
Determination Date. Not more than thirteen Purchase Dates may
fall in any twelve-month period. The Purchase Date applicable to
any Note is the Purchase Date designated in the Supplement which
originally created the obligation to issue such Note.
(iii) "LIBOR Fixing Date" means, with respect to any
Purchase Date, the third Eurodollar Business Day preceding such
Purchase Date.
(iv) "Maturity Date" means with respect to any Note, the
Business Day specified by Borrower as the Maturity Date for such
Note in the notice delivered by Borrower pursuant to
Section 1.02(e)(i), or, if no such notice is given, in such Note,
provided, that:
(A) no Maturity Date may fall less than 90 days or more
than 110 days after the applicable Issuance Date;
(B) The Borrower will specify Maturity Dates so that it
will at all times be in compliance with the certification set
forth in Section 1.02(c)(v);
(C) if any Maturity Date specified by the Borrower
would otherwise fall on a day that is not a Eurodollar
Business Day, the Borrower will specify a new Maturity Date
for the applicable Note which falls on a later Eurodollar
Business Day; and
(D) the Maturity Date pertaining to a Note which is
issued to reduce any Carryforward Amount shall be the 90th
day after the Issuance Date thereof, or, if such 90th day is
not a Business Day, the next succeeding Business Day.
(b) Supplements.
(i) Each agreement by the parties that Borrower will issue
and sell to BofA, and that BofA will purchase from Borrower, one
or more Notes hereunder shall be made pursuant to a supplement to
this Agreement (a "Supplement") entered into by the parties hereto
from time to time prior to the third Business Day before the last
Determination Date which falls prior to the then Scheduled
Termination Date, in substantially the form of Exhibit 1.02(b),
specifying therein:
(A) each Purchase Date to occur pursuant to such
Supplement,
(B) the aggregate principal amount, expressed in each of
the applicable foreign currencies, of the Note to be issued
and sold on each such Purchase Date (each such amount of a
particular foreign currency for a particular Purchase Date
being herein called a "Required Foreign Currency Amount"),
(C) the total Purchase Price in Dollars that BofA is to
pay Borrower on such Purchase Date for the Note to be
purchased by BofA on such Purchase Date pursuant to such
Supplement, and
(D) the Dollar portion of such total Purchase Price that
is allocable to each Required Foreign Currency Amount for
such Purchase Date pursuant to such Supplement (each an
"Allocated Purchase Price Amount").
Subject to clause (iii), the parties may enter into more than
one Supplement with respect to any Purchase Date.
(ii) If Borrower wishes to enter into a Supplement, it will
deliver to BofA by facsimile at the address specified in
Section 9.02 a proposed Supplement, showing the Purchase Dates and
the applicable Required Foreign Currency Amounts requested by
Borrower. Following BofA's receipt of such proposed Supplement,
BofA will consult with Borrower and will notify it of the
Allocated Purchase Price Amount that BofA is prepared to pay on
each applicable Purchase Date in respect of each Required Foreign
Currency Amount shown on such proposed Supplement, and the total
Purchase Price in Dollars that BofA is prepared to pay on each
such Purchase Date. Such Allocated Purchase Price Amounts will be
determined by BofA in good faith based on market conditions. If
BofA and Borrower agree to each such Allocated Purchase Price
Amount and total Purchase Price, they will enter into a Supplement
reflecting such agreement. Neither Borrower nor BofA will have any
obligation to agree to any proposed Allocated Purchase Price
Amount or total Purchase Price. BofA will have no obligation to
notify Borrower of any Allocated Purchase Price Amount for any
Required Foreign Currency Amount proposed by Borrower if BofA
informs Borrower that such Required Foreign Currency Amount is not
freely available and commercially transferable in the relevant
amount and currency at such time or for any other relevant time or
period.
(iii) Notwithstanding anything contained herein to the
contrary, neither BofA nor Borrower shall be obligated to enter
into any Supplement at any time when any Carryforward Amount
exists, or at any time prior to, or in the absence of, agreement
by Borrower and BofA of all terms and provisions thereof.
(c) Certain Requirements which are Applicable to Supplements. By
proposing or entering into any Supplement, Borrower shall be deemed to
have certified that, on the day of such proposal and the date of such
Supplement:
(i) the representations and warranties contained in
Section 5.01 are correct on and as of the day of such proposal and
the date of such Supplement as though made on and as of such days,
(ii) no Termination Event or Unmatured Termination Event
exists or would result from entering into such Supplement,
(iii) the Termination Date shall not have occurred as of the
date of such Supplement,
(iv) the latest Purchase Date under such Supplement would
not fall after the Scheduled Termination Date,
(v) assuming issuance and sale by Borrower of all Notes then
outstanding or contemplated by all Supplements then in effect, and
payment in full of such Notes on the respective Maturity Dates
thereof, the payment by BofA of the total Purchase Price
contemplated by such Supplement will not cause the Aggregate
Purchase Price to exceed the Facility Limit, and
(vi) on the dates of such proposal and Supplement, no
Carryforward Amount is anticipated by Borrower to exist at any
time thereafter.
(d) Determination Date - Calculation of Required Dollar
Equivalent Receivables Amount. On each Determination Date, BofA will
after consultation with Borrower determine the Required Dollar
Equivalent Receivables Amount applicable to the Purchase Date which
immediately follows such Determination Date. The "Required Dollar
Equivalent Receivables Amount" applicable to any Purchase Date shall in
all cases be denominated in Dollars and equal the sum of the separate
Dollar amounts which would result from the conversion of each Required
Foreign Currency Amount shown on all the applicable Supplements for
such Purchase Date into Dollars at a rate of exchange for each
applicable currency, for value on such Purchase Date, which is
determined by BofA in good faith on the Determination Date based on
market conditions (each a "Determination Date Exchange Rate"). While
BofA will consult with Borrower in determining such rates of exchange
and the Required Dollar Equivalent Receivables Amount, any
determination by BofA of any Determination Date Exchange Rate or any
Required Dollar Equivalent Receivables Amount shall be conclusive and
binding on the parties for all purposes. Reference to the Purchase
Date or the Determination Date Exchange Rate applicable to any Note
(including any Note which is issued to reduce any Carryforward Amount,
irrespective of the Issuance Date, thereof) shall mean the Purchase
Date designated in the Supplement which originally created the
obligation to issue such Note, and the Determination Date Exchange Rate
applicable to such Purchase Date.
(e) LIBOR Fixing Date - Specification of Maturity Date and
Discount.
(i) On each LIBOR Fixing Date, no later than 10:00 a.m.,
San Francisco time, Borrower will notify BofA in writing of (A)
the Maturity Date which will be applicable to the Note issued on
the Purchase Date which immediately follows such LIBOR Fixing Date
and (B) whether the Dollar Equivalent Principal Amount of such
Note will be equal to the Required Dollar Equivalent Receivables
Amount, or whether Borrower will furnish a Deficiency Certificate
to BofA on such Purchase Date.
(ii) In the absence of any such notification pursuant to
clause (i), (A) the Maturity Date for such Note will be the date
specified in such Note, and (B) such Note shall bear interest
based on the Reference Rate rather than the Eurodollar Rate, as
provided in Section 3.03.
(iii) As used herein, the term "Dollar Equivalent Principal
Amount" of any Note means the sum of the Dollar Equivalents of the
unpaid principal amounts of such Note, calculated in the case of
foreign currencies at the Determination Date Exchange Rates
applicable to such Note.
(f) Delivery of Notes or Deficiency Certificate.
(i) The execution and delivery of any Supplement shall
obligate Borrower to issue and sell to BofA, and shall obligate
BofA to purchase from Borrower, on each Purchase Date, a Note in
the principal amounts, and in the currencies, equal to the
Required Foreign Currency Amounts specified in such Supplement for
such Purchase Date. However, if (A) the aggregate Dollar
Equivalent of the Unpaid Balance of all Receivables that are owned
by Borrower and its Subsidiaries taken as a whole on any Purchase
Date, excluding Transferred Receivables, is less than the Required
Dollar Equivalent Receivables Amount for such Purchase Date, and
(B) prior to 10:00 a.m. (San Francisco time) on such Purchase
Date, Borrower furnishes BofA with a certificate of Borrower's
chief financial officer, treasurer or assistant treasurer in the
form of Exhibit 1.02(f) (a "Deficiency Certificate") certifying
such deficiency, the aggregate principal amount of the Note which
Borrower will be required to issue and sell, and which BofA will
be required to purchase, on the related Purchase Date, shall be
reduced as set forth in clause (f)(iv) below. In such event, the
Purchase Price which BofA shall be required to pay for such
reduced Note shall be reduced as set forth in Section 1.03.
(ii) If Borrower does not deliver a Deficiency Certificate
to BofA before the time indicated in clause (f)(i), Borrower will
be required on such Purchase Date to issue and sell to BofA a Note
in an aggregate principal amount, and in the currencies, required
by all Supplements (as amended from time to time) which are
applicable to such Purchase Date.
(iii) If Borrower does deliver a Deficiency Certificate to
BofA in respect of any Purchase Date, Borrower will also deliver
to BofA at the same time a computation certified by Borrower's
chief financial officer, treasurer or assistant treasurer showing
the aggregate Unpaid Balance of all Receivables then owned by
Borrower and its Subsidiaries, taken as a whole, excluding
Transferred Receivables. On receipt of such certified computation,
BofA will calculate the aggregate Dollar Equivalent of such
aggregate Unpaid Balance, using the applicable Determination Date
Exchange Rates or (with respect to Receivables denominated in
currencies for which no Determination Date Exchange Rate was
calculated) such other exchange rates as BofA may determine in
good faith but in its sole discretion based on then applicable
market conditions. Any such calculation by BofA shall be
conclusive and binding for all purposes. Such Dollar Equivalent so
calculated is herein called the "Reduced Dollar Equivalent
Receivables Amount". BofA shall notify Borrower of such Reduced
Dollar Equivalent Receivables Amount, showing the exchange rates
used by BofA in the calculation thereof.
(iv) At the time BofA notifies Borrower of such Reduced
Dollar Equivalent Receivables Amount, BofA, after consultation
with the Borrower, will also deliver to Borrower a schedule to the
Note to be delivered by Borrower on such Purchase Date, showing
the different principal amounts of such Note in the currencies
applicable to such principal amounts. No such principal amount in
any currency shall exceed the aggregate Required Foreign Currency
Amount which is applicable for such currency on such Purchase Date
under all Supplements, and the aggregate Dollar Equivalent
(calculated at the applicable Determination Date Exchange Rates)
of all such principal amounts in such schedule shall equal the
Reduced Dollar Equivalent Receivables Amount. Subject to the
foregoing sentence, while BofA will consult with the Borrower when
preparing such schedule, such schedule as finally prepared by BofA
shall be conclusive and binding on Borrower, and Borrower will
promptly deliver to BofA a Note, dated the applicable Purchase
Date, in the principal amounts and currencies specified in such
schedule.
(v) The parties agree that the fact that Receivables are or
may be owned by a Subsidiary of Borrower and/or are or may be
subject to an Adverse Claim shall not relieve Borrower from its
obligation to issue and sell to BofA hereunder on any Purchase
Date a Note in the principal amounts and currencies which are
required by all Supplements applicable to such Purchase Date.
(vi) Unless otherwise permitted by BofA in its sole
discretion, no Deficiency Certificate may be delivered, and no
Carryforward Amount may be created or continue to exist, following
any Change in Control or Early Termination. On each Purchase Date
following any Change of Control, Borrower will be required to
issue and sell to BofA a Note having an aggregate Dollar
Equivalent Principal Amount equal to the Required Dollar
Equivalent Receivables Amount for such Purchase Date. If Borrower
fails for any reason to issue and sell to BofA a Note having such
Dollar Equivalent Principal Amount on any such Purchase Date
following a Change of Control, the parties will make payments to
each other, as applicable, calculated as set forth in Section
3.04(b).
(g) Carryforward Amount.
(i) If Borrower furnishes a proper Deficiency Certificate to
BofA for any Purchase Date, BofA will calculate, and will notify
Borrower of the difference between: (A) each Required Foreign
Currency Amount for such Purchase Date and (B) the portion of the
principal amount in such currency of the Note issued by Borrower
on such Purchase Date pursuant to Section 1.02(f)(iv). Each such
difference is herein called a "Carryforward Amount").
(ii) As long as any Carryforward Amount exists, Borrower
will deliver to BofA on Wednesday of each calendar week (or, if
any such Wednesday is not a Business Day, on the next succeeding
Business Day) a certificate signed by Borrower's chief financial
officer, treasurer or assistant treasurer showing the aggregate
Unpaid Balance of all new Receivables (excluding Transferred
Receivables) which were owned by Borrower and its Subsidiaries,
taken as a whole, as of the close of business on the preceding
Business Day. BofA will calculate the aggregate Dollar Equivalent
of such aggregate Unpaid Balance, using the same exchange rates
which were used in the calculation of the Reduced Dollar
Equivalent Receivables Amount for the applicable Purchase Date
pursuant to Section 1.02(f)(iii) (or other rates determined by
BofA in good faith based on market conditions as of the
Determination Date for such Purchase Date), and shall notify
Borrower of such calculation. On the Business Day following its
receipt of such notice, Borrower will execute and deliver to BofA
an additional Note, dated such Business Day and maturing 90 days
(or if such 90th day is not a Business Day, on the next succeeding
Business Day) from such date, in principal amounts and currencies
specified by BofA, after consultation in accordance with
Section 1.02(f)(iv) (but not to exceed the amounts specified in
the proviso of clause (g)(iii) below). BofA will pay to Borrower
the Reduced Purchase Price applicable to each such Note,
calculated as set forth in Section 1.03.
(iii) Delivery by Borrower of any Note pursuant to this
Section 1.02(g) shall reduce an outstanding Carryforward Amount by
an amount equal to the portion of the principal of such Note which
is denominated in the currency of such Carryforward Amount.
Borrower will continue to send BofA certified calculations of
Receivables,and will execute and deliver Notes to BofA pursuant to
this Section 1.02(g) with respect to each Purchase Date for which
a Deficiency Certificate was delivered until all Carryforward
Amounts relating to such Purchase Date have been reduced to zero
or cancelled by BofA, provided, that (1) the aggregate principal
amount in any currency of all Notes delivered hereunder which
relate to any Purchase Date shall not exceed the aggregate
Required Foreign Currency Amount specified for such currency and
such Purchase Date in all Supplements and (2) the aggregate Dollar
Equivalent of the foreign currency principal amounts of any such
Note which is issued to reduce a Carryforward Amount shall not
exceed the Dollar Equivalent of the Unpaid Balance of the
Receivables owned by Borrower and its Subsidiaries, taken as a
whole (excluding Transferred Receivables), as shown in the
certificate which was most recently delivered by Borrower pursuant
to clause (g)(ii), in each case calculated using same
Determination Date Exchange Rate or other exchange rates which
were used by BofA in calculating the Reduced Dollar Equivalent
Amount at the time the applicable Deficiency Certificate was
delivered.
(iv) The Reduced Purchase Price paid for Notes that are
issued and delivered to reduce any Carryforward Amount shall be
calculated as set forth in Section 1.03 based on the original
Purchase Price payable on the original Purchase Date from which
such Carryforward Amount arose, and the original Required Foreign
Currency Amounts and Determination Date Exchange Rates applicable
to such Purchase Date. BofA may also require the issuance and
sale by Borrower of Notes under this Section 1.02(g) after the
Termination Date. BofA may in its sole discretion at any time
cancel or reduce any Carryforward Amount then in effect.
(h) Deferral Compensation Amount. For each day during the period
from the Purchase Date on which a Carryforward Amount is created until
such Carryforward Amount has been reduced to zero or cancelled by BofA,
Borrower shall pay to BofA on the last Business Day of each calendar
month an additional amount in respect of each then-outstanding
Carryforward Amount (such additional amount being herein called the
"Deferral Compensation Amount") equal to the product of (x) the Dollar
Equivalent of the foreign currency amount of such outstanding
Carryforward Amount on such day calculated at the Determination Date
Exchange Rate which is applicable to such Purchase Date, multiplied by
(y) a percentage equal to the sum of the Reference Rate in effect on
such day plus 2.0% per annum.
(i) Borrower's Option to Make Payments in Lieu of Carryforward
Amount. If any Carryforward Amount shall (or would on any Purchase
Date) be outstanding at any time, the Borrower may, at its option,
reduce such Carryforward Amount to zero (or prevent such Carryforward
Amount from arising on such Purchase Date) by making a payment to BofA
equal to (x) the excess of (A) the Dollar Equivalent, calculated at the
applicable Determination Date Exchange Rate for the currency and
Purchase Date relating to such Carryforward Amount over (B) the Reduced
Purchase Price that would be applicable to such Carryforward Amount
(determined as set forth in Section 1.03(c)), plus (y) the Deferral
Compensation Amount (if any) which is accrued and unpaid at the date of
such payment with respect to such Carryforward Amount. If the amount
described in clause (x)(B) exceeds the sum of the amounts described in
clause (x)(A) and clause (y), then, provided no Termination Event or
Unmatured Termination Event shall have occurred and be continuing,
Borrower may at its option require BofA to pay the excess to Borrower.
Following any Change in Control or Early Termination, the parties will
make payments in respect of all outstanding Carryforward Amounts as
provided in Section 1.08(b).
SECTION 1.03 Delivery of Notes; Purchase Price Calculation.
(a) Delivery of Notes. Prior to 10:00 a.m. (San Francisco time)
on each Purchase Date, Borrower will deliver to BofA a duly completed
Note in the currencies and principal amounts required by Section 1.02.
Such Note may be delivered by facsimile, followed promptly by an
original; provided, that such facsimile shall be binding and effective
for all purposes.
(b) Payment of Purchase Price. By 11:30 a.m. (San Francisco time)
on each Purchase Date, BofA shall, upon satisfaction of the applicable
conditions set forth in Article IV, pay to Borrower in Dollars in
immediately available funds: (i) the Purchase Price specified for such
Purchase Date in the applicable Supplements, as such Supplement may be
amended from time to time, or (ii) if applicable, the Reduced Purchase
Price calculated pursuant to clause (c).
(c) Calculation of Reduced Purchase Price. If the principal
amount in any currency of any Note delivered on any Purchase Date (as
specified by BofA in accordance with Section 1.02(f)(iv)) is less than
the aggregate of the Required Foreign Currency Amounts in such currency
specified in all applicable Supplements for such Purchase Date, the
aggregate portion of the Purchase Price specified in the related
Supplements that is to be paid on such Purchase Date in respect of the
portion of such Note which is denominated in such currency {xe
"Original Purchase Price"}shall be reduced to a Dollar amount equal to:
(i) the aggregate of the Allocated Purchase Price Amounts applicable to
such currency for such Purchase Date in all Supplements, multiplied by
(ii) a fraction, the numerator of which is the Dollar Equivalent of the
portion of the principal amount of the Note which is denominated in
such currency, and the denominator of which is the Dollar Equivalent of
the Required Foreign Currency Amount for such currency, in each case
calculated using the Determination Date Exchange Rate for such Purchase
Date. The aggregate of all such Dollar amounts payable for any Note is
herein called the "Reduced Purchase Price".
SECTION 1.04 Interest on Notes.
(a) The different portions of the principal amount of each Note
may be denominated in different foreign currencies (or, if so provided
in any amended Supplement, in Dollars), which will be set forth in
Schedule I to such Note. Interest on each Note will be payable only in
Dollars, notwithstanding the currencies in which the principal of such
Note is denominated.
(b) Borrower will pay interest on each Note (other than a Note
which is issued to reduce a Carryforward Amount) for each day during
the period from the Issuance Date thereof until the Maturity Date
thereof (the "Period to Maturity") at a rate per annum equal to the sum
of (A) the Eurodollar Rate (Reserve Adjusted) applicable to such Note
plus (B) the Applicable Margin in effect from time to time, applied to
the Dollar Equivalent Principal Amount of such Note, calculated
according to the following formula:
Interest = DEPA x (ERRA + AM) x PTM
------------------------
360
WHERE:
DEPA = the Dollar Equivalent Principal Amount of such
Note;
ERRA = the Eurodollar Rate (Reserve Adjusted) for the
applicable Period to Maturity;
AM = The Applicable Margin in effect on such day; and
PTM = the number of days in such Period to Maturity.
Such interest shall be payable on the Maturity Date of such Note.
(c) Borrower further agrees to pay interest on each Note which is
issued to reduce a Carryforward Amount, and on any Note where the
circumstances specified in Section 3.03(b) apply, from the Issuance
Date thereof until the Maturity Date thereof at a rate per annum equal
to the sum of the Reference Rate plus the Applicable Margin in effect
from time to time, applied to the Dollar Equivalent Principal Amount of
such Note.
(d) Borrower further agrees to pay interest on any principal of
(and, to the extent permitted by applicable law, interest on) any Note
which is not paid when due, whether at the Maturity Date thereof or on
Early Termination, until such principal or interest is paid in full, at
a rate per annum equal to the sum of the Reference Rate plus the
Applicable Margin in effect from time to time plus 2.0 percent, applied
to the Dollar Equivalent Principal Amount of such unpaid principal or
to such unpaid interest, as the case may be.
(e) The "Applicable Margin" shall be
(i) 0.50%, in the case of interest calculated using the Eurodollar
Rate (Reserve Adjusted), and zero, in the case of interest
calculated using the Reference Rate, on any day when the Borrower
is in Collateral Status, and
(ii) a percentage determined as follows on any day when the
Borrower is in Cash Equivalent Investment Status. The Applicable
Margin will be determined by BofA from time to time in accordance
with the table set forth below based on the most recent Compliance
Certificate of Borrower delivered by Borrower pursuant hereto.
Such determination shall be based on the calculations (made on a
rolling four-quarter basis) of Consolidated Net Income of the
Borrower and its Subsidiaries set forth in such Compliance
Certificate of Borrower and shall apply from the first Business
Day after BofA receives such Compliance Certificate until and
through the Business Day when BofA receives the applicable
Compliance Certificate for the next fiscal quarter of Borrower.
Prior to the first Business Day after the date when BofA receives
the first Compliance Certificate delivered hereunder, the
Applicable Margin will be 1.125% in the case of interest
calculated using the Eurodollar Rate (Reserve Adjusted) and .125%
in the case of interest calculated using the Reference Rate.
Applicable Margin
-----------------
If interest is If interest is
calculated using calculated using
the Eurodollar Rate the Reference
Consolidated Net Income Reserve Adjusted Rate
----------------------- ------------------ ----------------
Less than or equal to $50,000,000 +1.375% +0.375%
More than $50,000,000 but less +1.125% +0.125%
than or equal to $90,000,000
More than $90,000,000 but less
than or equal to $150,000,000 +1.000% +0%
More than $150,000,000 +0.750% +0%
SECTION 1.05 Facility Limit and Note Limit.
(a) Facility Limit. BofA shall not be obligated to purchase any
Note on any Purchase Date to the extent that, after giving effect to
such purchase, the Aggregate Purchase Price at such date would exceed
the Facility Limit. Any outstanding Carryforward Amount shall continue
to be carried forward to the extent that a purchase by BofA of Notes in
respect thereof would result in such excess.
(b) Note Limit. If on any Purchase Date the Dollar Equivalent
Principal Amount of the Note to be issued on such Purchase Date exceeds
the Note Limit in effect on such Purchase Date (such excess being
called the "Note Limit Excess") then:
(i) BofA, after consultation with the Borrower, will specify
lower principal amounts in some or all of the required foreign
currencies in which such Note is to be denominated, such that the
aggregate Dollar Equivalent of such lower principal amounts of the
Note, calculated at the Determination Date Exchange Rates
applicable thereto, will equal such Note Limit;
(ii) the Borrower will issue and sell to BofA on such
Purchase Date a Note in such lower principal amounts, and BofA
will pay for such Note the full Purchase Price originally
applicable to such Purchase Date; and
(iii) the Borrower will pay to BofA on such Purchase Date in
Dollars in immediately available funds an amount equal to such
Note Limit Excess, which payment will be subject to the netting
provisions of Section 2.03, if applicable.
SECTION 1.06 Voluntary Termination of Facility; Reduction of Facility
Limit
(a) Borrower may, upon at least five days' (or ten days' in the
case of a reduction to zero) prior irrevocable written notice to BofA,
permanently reduce (including to zero) the Facility Limit; provided,
that the Facility Limit may not at any time be reduced by Borrower to
an amount that is (A) less than the sum of (i) the Aggregate Purchase
Price plus (ii) the sum of the Dollar Equivalents at the applicable
Determination Date Exchange Rates of all outstanding Carryforward
Amounts or (B) less than the Aggregate Purchase Price which would be
outstanding at any time if all Notes contemplated by all Supplements
then in effect were purchased by BofA on their respective Purchase
Dates and paid on their respective Maturity Dates (or, in the case of
any such Note where no Maturity Date has been specified, on the 90th
day after the Purchase Date thereof.
(b) Each partial reduction of the Facility Limit pursuant to
clause (a) shall be in an amount equal to $1,000,000 or an integral
multiple thereof.
(c) In the event of any termination of the Facility the parties
shall make the Early Termination Payments specified in Section 1.08.
(d) No Note may be prepaid prior to its Maturity Date unless such
Note is accelerated following a Termination Event.
SECTION 1.07 Termination Date; Extension of Termination Date.
(a) The "Termination Date" shall be the earliest to occur of
(i) January 15, 1998 (as such date may be extended from time to time,
the "Scheduled Termination Date"), (ii) the last Purchase Date
following the date of a termination of the Facility in whole pursuant
to Section 1.06(a), (iii) the date so declared pursuant to
Section 7.02, and (iv) the date that occurs automatically pursuant to
Section 7.02.
(b) Borrower, by written notice to BofA, may from time to time
request that the Scheduled Termination Date be extended. Borrower may
not make any such request more than once in any calendar quarter. Any
such request shall be accompanied or preceded by a proposed revised
Schedule II hereto, showing the proposed additional Determination Dates
which Borrower desires to make applicable during the period of the
requested extension. No such proposal shall modify the Purchase Dates
or Required Foreign Currency Amounts which are shown on any Supplement
which is then in effect. BofA will use reasonable efforts to notify
Borrower in writing, on or before the date which is 30 days after the
receipt by BofA of such request from Borrower, as to whether BofA will
consent to such extension and, if BofA does consent to such extension
in writing, the conditions of such consent (including conditions
relating to legal documentation). If BofA shall notify Borrower that
it does not consent to such extension or if BofA fails to notify the
Borrower in writing of its consent to such request within such 30 day
period, BofA shall be deemed to have not consented to such request and
the Scheduled Termination Date shall not be so extended. Borrower
acknowledges and agrees that the granting of any such request shall be
in the sole and absolute discretion of BofA.
(c) If BofA is willing, in its sole discretion, to extend the
Scheduled Termination Date as so requested by Borrower, the parties
will enter into an amendment hereto in the form of Exhibit 1.07(c),
including an amendment to Schedule II (collectively, an "Amendment"),
to effect such extension.
SECTION 1.08 Early Termination of Reduction Payments
(a) If the Termination Date occurs prior to the Scheduled
Termination Date (such occurrence being herein referred to as an "Early
Termination"), then the rights and obligations of Borrower to issue and
sell to BofA, and the rights and obligations of BofA to purchase, Notes
shall terminate and be discharged in full with respect to all Purchase
Dates that have not occurred prior to the Termination Date, provided,
that notwithstanding such discharge and termination, the parties will
remain obligated to make all payments set forth in this Section 1.08,
and Sections 3.04, and 7.02(b), and provided further, that BofA may
still require Borrower to issue and sell Notes to BofA after any
Termination Date in respect of any Carryforward Amount, as provided in
Section 1.02(g).
(b) Promptly following any Change in Control or Early
Termination, the parties will make payments to each other, as
applicable, calculated as set forth in Section 3.04(a) and (b). In
addition, promptly following any Change in Control or Early
Termination, Borrower will on demand pay to BofA in Dollars in
immediately available funds (x) the sum of all the amounts by which:
(A) the sum of the Dollar Equivalents, calculated at the applicable
Determination Date Exchange Rates, of all Carryforward Amounts then in
effect exceed (B) the Reduced Purchase Prices that would be applicable
thereto (determined as set forth in Section 1.03(c)), plus (y) the
aggregate of the Deferral Compensation Amounts that are accrued and
unpaid at the date of such payment. If the amounts described in clause
(x)(B) exceed the sum of the amounts described in clause (x)(A) and
clause (y), BofA will on demand pay the excess to Borrower.
(c) Upon the occurrence of an Early Termination, Borrower shall
pay to BofA or BofA shall pay to Borrower (as applicable) at the times
provided below amounts calculated as follows (each an "Early
Termination Payment"):
(i) The date on which an Early Termination occurs is herein
called the "Early Termination Date."
(ii) BofA will calculate the gross Dollar amount that it
would pay if it entered into forward contracts on the Early
Termination Date for purchase by BofA for Dollars of all the
Required Foreign Currency Amounts for each Purchase Date, in each
case with value dates that are the same as such Purchase Date and
using rates determined by BofA in good faith based on market
conditions;
(iii) BofA will calculate the sum of all the Dollar amounts
calculated in clause (ii) that would be payable with respect to
each Purchase Date.
(iv) If such aggregate Dollar amount for any Purchase Date
is greater than the sum of the applicable Purchase Prices
applicable to such Purchase Date, Borrower will pay to BofA,
within two Business Days after any demand therefor, the discounted
present value of the excess, discounted from the applicable
Purchase Date to the date on which such amount is paid at the
Eurodollar Rate.
(v) If such aggregate Dollar amount for any Purchase Date
is less than the sum of the applicable Purchase Prices applicable
to such Purchase Date, BofA will pay to Borrower, within two
Business Days after any demand therefor, the discounted present
value of the absolute value of the deficiency, discounted from the
applicable Purchase Date to the date on which such amount is paid
at the Eurodollar Rate (Reserve Adjusted).
To the extent that payments are to be made by both Borrower and BofA on
any day pursuant to this Section 1.08, Section 3.04, or Section 7.02(b)
such payments will be netted against each other and only the net amount
will be paid by the appropriate party. BofA will not be obligated to
make any payment to Borrower pursuant to this Section 1.08,
Section 3.04 or Section 7.02(b) until all Obligations then due and
owing have been paid in full and all Carryforward Amounts have been
reduced to zero or cancelled by BofA. BofA agrees to pay Borrower
interest on any amounts owing by BofA to Borrower that are not paid
pursuant to the preceding sentence for the period from: (A) the
applicable Purchase Dates from which such amounts are discounted or on
which such amounts are payable, as the case may be, to (B) the dates
such amounts are paid, at the Federal Funds Rate from time to time in
effect.
SECTION 1.09 Certain Forward Contracts.
In order to hedge the foreign currency exposure of Borrower with
respect to each Note which is delivered by Borrower hereunder, BofA and
Borrower agree to enter into certain forward contracts as follows:
(a) On each Purchase Date when a Note is delivered hereunder, or
other date on which a Note is delivered hereunder to reduce any
Carryforward Amount (each such Purchase Date or other date being herein
called an ("Issuance Date") Borrower and BofA will enter into forward
contracts with respect to each foreign currency in which any portion of
the Note delivered on such date is denominated, for value on the
Maturity Date of the Note issued on such date, pursuant to which, on
such Maturity Date, (i) BofA will deliver to Borrower (subject to full
payment by Borrower of such Note on such Maturity Date) amounts in the
same foreign currencies in which the principal of such Note is
denominated which are equal to the portions of such principal which are
denominated in such currencies, and (ii) Borrower will deliver to BofA
in Dollars the Dollar Equivalent of each of such foreign currency
amounts, calculated at the Determination Date Exchange Rate applicable
to such Note.
(b) If Borrower and BofA fail for any reason to enter into the
forward contracts specified in clause (a) on any date specified in
clause (a), they will be deemed for all purposes hereof (without
further action) to have entered into such forward contracts on such
day.
(c) All forward contracts which are entered into pursuant to
clause (a) or deemed to be entered into pursuant to clause (b) shall be
settled as provided in Section 2.02(a). All such settlements shall be
subject to the terms of Section 2.02(b), so that on each Maturity Date,
Borrower will be obligated to pay to BofA in Dollars the Dollar
Equivalent of each of the foreign currency principal amounts of the
Note which matures on such Maturity Date, calculated at the
Determination Date Exchange Rate applicable to such Note. Following
such payment, Borrower and BofA shall have no further obligations under
such forward contracts which have value dates falling on such Maturity
Date.
ARTICLE II
SETTLEMENT
----------
SECTION 2.01 Maturity Date Payment Procedures
(a) On each Maturity Date, Borrower shall pay the principal
amount of each Note which matures on such Maturity Date plus all
interest accrued thereon to BofA, subject, in the case of payments of
principal, to the forward contract settlement procedures set forth in
Section 2.02.
(b) Notwithstanding anything herein to the contrary, the
obligations of Borrower hereunder shall not be considered reduced by
any payment to BofA if at any time such payment is rescinded or must
otherwise be returned for any reason.
SECTION 2.02 Settlement of Forward Contracts on Maturity Dates.
(a) Settlement of Forward Contracts. On each Maturity Date,
Borrower shall:
(i) hold in trust for BofA all foreign currency principal
amounts payable by Borrower on the Note which matures on such
date;
(ii) release such foreign currency amounts to itself from
such trust against payment by Borrower to BofA of all Dollar
amounts which are payable by Borrower pursuant to all forward
contracts which were entered into or deemed entered into pursuant
to Section 1.09 and have value dates falling on such Maturity
Date; and
(iii) pay such Dollar amounts under such forward contracts
to BofA in immediately available funds, which payment shall
discharge Borrower's obligation to pay the principal amount of the
Note which matures on such date.
(b) Payment in Dollars by Borrower. Notwithstanding anything in
this Agreement, or in any forward contract which is or is deemed to be
entered into pursuant to this Agreement, and notwithstanding that the
Notes may be denominated in foreign currencies, it is of the essence
under this Agreement that all amounts payable to BofA hereunder or in
respect of any Notes shall be payable in Dollars, so that on each
Maturity Date, after giving effect to payment of the Note maturing on
such date and all payments by Borrower in respect of any forward
contracts with value dates on such Maturity Date which are or are
deemed to be entered into by BofA and Borrower pursuant to this
Agreement, Borrower (whether as Note issuer, forward contract
counterparty or otherwise) will pay to BofA in Dollars in immediately
available funds the Dollar Equivalent, calculated at the Determination
Date Exchange Rate applicable to such Note, of all foreign currency
principal amounts of the Note which matures on such Maturity Date.
SECTION 2.03 Netting of Payments on Certain Issuance Dates. If
any Maturity Date is also an Issuance Date, then (provided, that all
conditions precedent to any purchase of a Note to be made on such date
have been fulfilled prior to 10:00 a.m. (San Francisco time) on such
date): (a) BofA will calculate the total amounts payable by Borrower in
respect of such Maturity Date and by BofA and Borrower in respect of
such Issuance Date, (b) such payments will be netted against each
other, and (c) only the net amount will be paid by the appropriate
party on such date. However, if by such time on such date any condition
precedent to payment of Purchase Price or Reduced Purchase Price to a
Note applicable has not been fulfilled (including by non-receipt by
BofA of any properly completed and executed Note or other document
required hereby) then no such netting will be permitted and Borrower
will be required to pay BofA on such Maturity Date the full amount
payable in respect of such Maturity Date under all Notes maturing on
such Maturity Date and all forward contracts entered into or deemed
entered into hereunder with respect to such Notes. Failure to pay such
full amount within three Business Days after such Maturity Date shall
constitute a Termination Event under Section 7.01(a)(i).
SECTION 2.04 Payments and Computations, Etc. All amounts to be
paid or deposited (A) to or for the account of BofA by Borrower
hereunder or (B) to or for the account of Borrower by BofA hereunder,
shall in each case be paid or deposited in accordance with the terms
hereof no later than 11:30 a.m. (San Francisco time) on the day when
due in Dollars in immediately available funds (i) if to BofA for
payment of the structuring fee referred to in Section 3.01(b) at Bank
of America ABA 0000-0000-0, BISD Account No. 3300683980, Attention:
Interest Rate Swap Operations, (ii) if to BofA for payment of other
amounts hereunder at Account No. 1233183980 at Bank of America National
Trust and Savings Association, Concord, California and (iii) if to
Borrower, at Account No. 0000000 at Xxxxxx Trust and Savings Bank,
Chicago, Illinois. Borrower shall pay to BofA interest on all amounts
not paid or deposited when due (without giving effect to any grace
period) until paid or deposited in full at 2% per annum above the sum
of Reference Rate plus the Applicable Margin from time to time in
effect, payable on demand; provided, that such interest rate shall not
at any time exceed the maximum rate permitted by applicable law.
Interest and all fees hereunder shall be made on the basis of a year of
360 days for the actual number of days elapsed.
ARTICLE III
FEES AND YIELD PROTECTION
-------------------------
SECTION 3.01 Fees
(a) Facility Fee. From the Initial Closing Date until the
Termination Date, Borrower shall pay to BofA a facility fee ("Facility
Fee") for each day in such period equal to (A) the excess of (i) the
Facility Limit over (ii) the Aggregate Purchase Price on such day times
(B) the Applicable Facility Fee Rate on such day divided by (C) 360.
Such Facility Fee shall be paid quarterly in arrears, on the last
Business Day of each calendar quarter and on the Termination Date.
(b) Structuring Fee. Borrower shall pay to BofA a structuring
fee of $100,000 payable prior to or on the Initial Closing Date.
(c) The "Applicable Facility Fee Rate" shall be:
(i) .25% on any day when the Borrower is in Collateral Status,
and
(ii) a percentage determined as follows on any day when the
Borrower is in Cash Equivalent Investment Status. For the period
from the Closing Date through the Business Day when BofA receives
the first Compliance Certificate hereunder, the Applicable
Facility Fee Rate will be .350%. Thereafter, the Applicable
Facility Fee Rate will be determined by BofA from time to time in
accordance with the table set forth below based on the most recent
Compliance Certificate delivered by the Borrower pursuant hereto.
Such determination shall be based on the calculations of
Consolidated Net Income (made on a rolling four quarter basis) set
forth in such Compliance Certificate and shall apply from the
first Business Day after BofA receives such Compliance Certificate
until and through the Business Day when BofA receives the
applicable Compliance Certificate for the next fiscal quarter as
provided herein.
Applicable Facility
Consolidated Net Income Fee Rate
----------------------- -------------------
Less than or equal to $50,000,000 0.400%
More than $50,000,000 but less 0.350%
than or equal to $90,000,000
More than $90,000,000 but less 0.300%
than or equal to $150,000,000
More than $150,000,000 0.250%
SECTION 3.02 Yield Protection
If (a) Regulation D of the Board of Governors of the Federal
Reserve System or (b) any Regulatory Change occurring after the date
hereof:
(i) shall subject any Affected Party to any tax, duty or
other charge with respect to its exercise of its rights or
performance of its obligations under any Agreement Document, or
shall change the basis of taxation of payments to any Affected
Party of any amounts payable to it under any Agreement Document
(except for changes in the rate of tax on the overall net income
of such Affected Party imposed by the jurisdiction in which such
Affected Party's principal executive office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, or
deposits or obligations with or for the account of (or with or for
the account of any affiliate of), or credit extended by, any
Affected Party; or
(iii) shall change the amount of capital maintained or
required or requested or directed to be maintained by any Affected
Party; or
(iv) shall impose any other condition affecting any Affected
Party in connection with any Agreement Document;
and the result of any of the foregoing is:
(x) to increase the cost to (or to impose a cost on)
such Affected Party's participating in the transactions
contemplated in any Agreement Document,
(y) to reduce the amount of any sum received or
receivable by such Affected Party under any Agreement
Document, or
(z) in the sole determination of such Affected Party,
to reduce the rate of return on the capital of such Affected
Party as a consequence of its obligations arising in
connection herewith to a level below that which such Affected
Party could otherwise have achieved,
then upon written notice by the applicable Affected Party to Borrower,
Borrower shall pay directly to such Affected Party such additional
amount or amounts as will compensate it for such increased cost or such
reduction. Such written notice shall include calculations thereof in
reasonable detail and, in the absence of manifest error, be conclusive
and binding upon Borrower.
SECTION .03 Inability to Determibe the Eurodollar Rate; Failure to
Specify Maturity Date.
(a) If BofA shall have determined in good faith, that: (i) Dollar
deposits are not available to banks such as BofA in the London interbank
eurodollar market, or (ii) by reason of circumstances affecting the London
interbank eurodollar market, adequate means do not exist for ascertaining the
applicable Eurodollar Rate, or (iii) it would be contrary to any applicable law
or regulation for the applicable interest rate to be determined based on the
Eurodollar Rate, then BofA shall promptly so notify Borrower, which
determination shall be conclusive and binding on Borrower, and, so long as such
circumstances shall continue, Borrower shall pay interest to BofA as provided
in clause (c).
(b) In addition, if Borrower shall fail for any reason to notify
BofA prior to 10:00 a.m. (San Francisco time) on the third Eurodollar
Business Day preceding the Issuance Date of any Note of the precise
Dollar Equivalent Principal Amount and Maturity Date of such Note, the
Borrower will be obligated to pay interest on such Note Amount
calculated as provided in clause (c).
(c) If any of the circumstances described in clause (a) or (b)
above are applicable on the Issuance Date of any Note, Borrower shall
pay to BofA on the Maturity Date of such Note interest on such Note,
calculated for each day during the period from such Issuance Date to
such Maturity Date at a rate per annum equal to the sum of the
Reference Rate plus the Applicable Margin in effect on such day,
applied to the Dollar Equivalent Principal Amount of such Note.
SECTION 3.04 Funding Losses. (a) In the event BofA shall
incur any loss or expense (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
obtained by BofA in order to fund its purchase of Notes from Borrower)
as a result of:
(i) any termination of the Facility or any reduction of the
Facility Limit pursuant to Section 1.06 or the occurrence of an
Early Termination, or the principal amount of any Note in any
currency being less than the amount required hereby, or the Dollar
Equivalent Principal Balance of any Note being less than the
amount specified in the Borrower's notice delivered pursuant to
Section 1.02(e)(i), or the payment by BofA of a Reduced Purchase
Price pursuant to Section 1.03(c) or 1.09 (in the case of each of
the foregoing, to the extent not included in the Early Termination
Payments paid pursuant to Section 1.08);
(ii) the failure by Borrower to issue and sell to Bank of
America any Note which Borrower is required to issue and sell
under the terms of this Agreement, or
(iii) the failure by Borrower to pay in full to BofA on any
Maturity Date all amounts which are due on such date under any
Note and under all forward contracts which are entered into or
deemed entered into pursuant to Section 1.09 and which have value
dates falling on such Maturity Date, or the payment by Borrower of
any such amounts on any day other than the applicable Maturity
Date.
then, upon written notice by BofA to Borrower, Borrower shall pay
directly to BofA such amount as will reimburse BofA for such loss or
expense. Such written notice shall include calculations thereof in
reasonable detail and shall, in the absence of manifest error, be
conclusive and binding on Borrower.
(b) Without limiting the foregoing, if for any reason Borrower
fails on any Purchase Date to issue and sell to BofA a Note having
principal amounts at least equal to the Required Foreign Currency
Amounts applicable to such Purchase Date (or, but only if Borrower has
timely delivered to BofA a Deficiency Certificate in accordance with
Section 1.02(f), such lesser amount permitted by Section 1.02(f)), then
on such Purchase Date Borrower will pay to BofA as liquidated damages
for BofA's loss of profit for Borrower's breach of its agreement to
issue and sell such Note for the Purchase Prices applicable thereto an
amount equal to the excess, if any, of: (i) the Required Dollar
Equivalent Receivables Amount (or, if permitted by Section 1.02(g),
Reduced Dollar Equivalent Receivables Amount applicable to such
Purchase Date), over (ii) the Purchase Price or Reduced Purchase Price
applicable to such Purchase Date. Such damages are payable in addition
to, but without duplication of, any other amounts payable by Borrower
hereunder. If the amount described in clause (ii) exceeds the amount
described in clause (i), BofA will pay such excess to Borrower, subject
to the last paragraph of Section 1.08(c).
SECTION 3.05 Taxes, Etc. Borrower hereby covenants that all
payments by Borrower to BofA in respect of any Obligation, shall be
made without any set-off or counterclaim, and free and clear of and
without deduction or withholding for or on account of, any present or
future Taxes now or hereafter imposed on Borrower or BofA (as
applicable) with respect to such payments by any governmental or other
authority, except to the extent that such deduction or withholding is
compelled by applicable laws, rules or regulations. As used herein,
the term "Taxes" shall include all excise and other taxes of whatever
nature imposed on Borrower or BofA (as applicable) with respect to such
payments (other than taxes generally assessed on the overall net income
of BofA imposed by the jurisdiction in which BofA's principal executive
office is located), as well as all levies, imposts, duties, charges or
fees of whatever nature.
If Borrower is compelled by applicable laws, rules or regulations
to make any such deduction or withholding, Borrower will:
(a) pay to the relevant authorities the full amount required to
be so withheld or deducted;
(b) pay to BofA such additional amounts as may be necessary in
order that the net amount received by BofA, after such deduction or
withholding (including any required deduction or withholding on such
additional amounts) shall equal the amount BofA would have received had
no such deduction or withholding been made; and
(c) promptly forward to BofA an official receipt or other
documentation satisfactory to BofA evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against BofA with respect
to any payment made in respect of any Obligation, BofA may pay such
Taxes, and Borrower agrees promptly to pay such additional amount
(including, without limitation, any penalties, interest or expenses) as
may be necessary in order that the net amount received by BofA after
the payment of such taxes (including any Taxes on such additional
amount) shall equal the amount BofA would have received had no such
Taxes been asserted.
SECTION 3.06 Set-off. BofA is hereby authorized upon the
occurrence of any Termination Event, to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), any
and all balances, credits, deposits, accounts, or moneys of Borrower
then or thereafter maintained with BofA.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS AND PURCHASES
-----------------------------------------
SECTION 4.01 Conditions Precedent to Effectiveness. The
effectiveness of this Agreement is subject to the condition precedent
that BofA shall have received the following, each in form and substance
satisfactory to BofA:
(a) Original executed copies of this Agreement;
(b) A certificate of the Secretary or an Assistant Secretary of
Borrower, certifying as to (i) resolutions of Borrower's Board of
Directors approving the Agreement Documents and the transactions
contemplated therein, (ii) the names and true signatures of the
officers authorized on its behalf to sign the Agreement Documents to be
delivered by it hereunder (on which certificate BofA may conclusively
rely until such time as BofA shall receive from Borrower a revised
certificate), (iii) a true, correct and complete copy of the
Certificate of Incorporation of Borrower duly filed with the Secretary
of State of its state of incorporation as in effect on the date of
delivery of such certificate, and (iv) a true, correct and complete
copy of the Bylaws of Borrower as in effect on the date of delivery of
such certificate;
(c) A good standing certificate for Borrower issued by the
Secretary of State of its state of incorporation;
(d) An opinion of counsel for Borrower, substantially in the
form of Exhibit 4.01(d);
(e) The fees payable to BofA pursuant to Section 3.01(b),
together with all costs and expenses due and payable pursuant to
Section 9.05, if then invoiced; and
(f) Such other approvals, opinions or documents as BofA may
reasonably request.
SECTION 4.02 Conditions Precedent to All Purchases of Notes. The
obligation of BofA to purchase any Note and to pay the Purchase Price
or Reduced Purchase Price related thereto on any Issuance Date shall be
subject to the further conditions precedent that:
(a) BofA shall have received such Note, in the principal
amounts in the applicable currencies specified in Section 1.02,duly completed
and executed on behalf of Borrower and satisfactory
in form and substance to BofA,
(b) BofA shall have received a certificate from the chief financial
officer, treasurer or assistant treasurer of Borrower in the form of Exhibit
4.02(b), and
(c) on the date of such purchase the following statements
shall be true (and Borrower, by accepting the Purchase Price or
the Reduced Purchase Price, shall be deemed to have certified
that):
(i) the representations and warranties contained in
Section 5.01 are correct on and as of such day as though made
on and as of such day,
(ii) no Termination Event or Unmatured Termination Event
(except, if permitted by Section 7.02(e) a Change of Control
Termination Event) exists or would result from such purchase,
(iii) after giving effect to such purchase, the
Aggregate Purchase Price at such time will not exceed the
Facility Limit,
(iv) the Termination Date shall not have occurred, and
(v) the Dollar Equivalent Principal Balance of such
Note will not exceed the Note Limit, and any Note Limit
Excess which is payable on such Purchase Date pursuant to
Section 1.05(b) shall be paid on such date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 5.01 Representations and Warranties of Borrower.
Borrower represents and warrants as follows:
(a) Organization and Good Standing. Borrower is validly
existing as a corporation in good standing under the laws of its state
of incorporation and possesses all necessary licenses and approvals,
and is duly qualified to do business in each jurisdiction in which the
nature of its business requires such licenses and approvals to own its
properties and to conduct its business or in which the failure so to
qualify would have a Material Adverse Effect.
(b) Power, Authorization and Non-Contravention. The execution,
delivery and performance by Borrower of the Agreement Documents to
which it is a party (a) are within Borrower's corporate powers, (b)
have been duly authorized by all necessary corporate action, (c) do not
contravene (i) Borrower's charter or by-laws, (ii) any contractual
restriction binding on or affecting Borrower or any of its property,
(except where such contravention would not give rise to any Material
Adverse Effect or render any Agreement Document unenforceable against
the Borrower or its creditors), or (iii) any law, rule, regulation,
order, judgment, injunction, decree, determination or award binding on
or affecting Borrower or its property, (d) do not result in the
imposition of any Adverse Claim on any of Borrower's material
properties and (e) do not require any authorization, approval or other
action by, or notice to or filing with, any Governmental Authority or
regulatory body or any other Person.
Without limiting the generality of the foregoing, (A) Borrower had
at all relevant times, and now has, all necessary power, authority and
legal right to issue and sell the Notes and to incur and perform its
obligations under the Notes and the other Agreement Documents, (B) the
use of funds obtained by Borrower under this Agreement will not violate
any of Regulations G, T, U and X of the Federal Reserve Board, and (C)
Borrower is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940.
(c) Binding Obligations. This Agreement constitutes, and each
Note and each other Agreement Document to which Borrower is a party
when duly executed and delivered will constitute, a legal, valid and
binding obligation of Borrower enforceable against Borrower in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(d) Litigation. There is no action, suit or proceeding pending
or, to the best of Borrower's knowledge, threatened in any court or a
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (i) except as set forth on
Exhibit 5.01(d) that relates to Borrower or any of its Subsidiaries or
any of the properties of Borrower or any of its Subsidiaries and that,
if adversely determined, could create a Material Adverse Effect, or
(ii) that relates to any aspect of the transactions contemplated by
this Agreement.
(e) No Material Adverse Effect. Since September 27, 1996, no
event or occurrence that individually or in the aggregate is reasonably
likely to have a Material Adverse Effect has occurred, other than as
disclosed on Borrower's quarterly report on Form 10-Q dated as of
November 8, 1996 for the period ended September 27, 1996 and press
releases disseminated by Borrower and made available to BofA prior to
the date hereof.
(f) Accuracy of Information. All written information supplied
by or on behalf of Borrower to BofA for purposes of or in connection
with any Agreement Document or any transaction contemplated herein or
therein is true, complete and accurate in all material respects and
such information is not incomplete by omitting to state a material fact
or any fact necessary to make the statements contained therein not
misleading in any material respect on the date as of which such
information is dated.
(g) Taxes. Borrower has filed or caused to be filed all tax
returns and reports required by applicable laws, rules and regulations
to have been filed by it and has paid all taxes, assessments and
governmental charges thereby shown to be owing, except any such taxes,
assessments or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
(h) Compliance with Applicable Laws. Borrower is in compliance
with the requirements of all applicable laws, rules, regulations, and
orders of all Governmental Authorities (federal, state, local or
foreign, and including Environmental Laws, tax laws and laws with
respect to ERISA and laws, rules and regulations applicable to the
Contracts), a violation of any of which, individually or in the
aggregate for all such violations, would be reasonably likely to have a
Material Adverse Effect.
(i) ERISA. Borrower and its ERISA Affiliates have not incurred
and are not reasonably expected to incur any material liability in
connection with any Plan, other than ordinary liabilities for benefits;
neither Borrower nor any ERISA Affiliate has incurred or is reasonably
expected to incur any material Withdrawal Liability to any Plan; and no
Plan of Borrower or any ERISA Affiliate is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
ARTICLE VI
GENERAL COVENANTS OF BORROWER
-----------------------------
SECTION 6.01 Affirmative Covenants of Borrower. Until the first
day following the Termination Date on which all Carryforward Amounts
have been reduced to zero or cancelled by BofA, and all Obligations are
paid in full in cash, Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws (including Environmental Laws), rules, regulations, permits,
orders, consent decrees and judgments binding on Borrower and its
Subsidiaries, except where failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(b) Preservation of Corporate Existence and Name. (i) Preserve
and maintain, and cause its Material Subsidiaries to preserve and
maintain, its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation; and (ii) qualify and remain
qualified in good standing as a foreign corporation in each
jurisdiction except where the failure to maintain a franchise or
privilege or to remain qualified would not have a Material Adverse
Effect.
(c) Audits. At the expense of Borrower, upon reasonable prior
notice at any time and from time to time during regular business hours,
permit, and cause its Subsidiaries to permit, BofA or its agents or
representatives (i) to examine and make copies of and abstracts from
the records of, and (ii) to visit the offices and properties of,
Borrower, and to discuss matters relating to the Receivables or
Borrower's performance hereunder with any of the officers or employees
of Borrower, provided, that unless a Termination Event or Unmatured
Termination Event shall have occurred and be continuing, only one such
audit in any calendar year shall be at the expense of Borrower.
(d) Keeping of Records and Books of Account. Maintain at all
times accurate and complete books, records and accounts relating to the
Receivables, in which timely entries shall be made.
(e) Taxes. Pay and discharge, and cause its Subsidiaries to
pay and discharge, all taxes and governmental charges imposed upon it
or its properties, prior to the date on which penalties attach thereto,
if failure to pay such taxes or governmental charges could reasonably
be expected to have a Material Adverse Effect; except any such tax or
charge which is being contested in good faith and by appropriate
proceedings if such contest shall operate to stay the Material Adverse
Effect of any such nonpayment.
(f) Availability of Receivables. Use and cause its
Subsidiaries to use, commercially reasonable efforts to manage its and
their Receivables so that it and they will own, on each Purchase Date,
Receivables (excluding Transferred Receivables) that have an aggregate
Unpaid Balance of not less than the Required Dollar Equivalent
Receivables Amount applicable to such Purchase Date.
(g) Reporting Requirements of Borrower. Furnish to BofA:
(i) Quarterly Financials. As soon as available and in any
event within 55 days after the end of each fiscal quarter (except
the fourth fiscal quarter of any fiscal year), consolidated
balance sheets of Borrower and its Subsidiaries as of the end of
such fiscal quarter and consolidated statements of operations and
cash flows of Borrower and its Subsidiaries for such fiscal
quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such fiscal quarter, in
each case in reasonable detail and duly certified (subject to
year-end audit adjustments and without footnotes) by the chief
financial officer, treasurer or assistant treasurer of Borrower as
having been prepared in accordance with GAAP (applied on a
consistent basis).
(ii) Annual Financials. As soon as available and in any
event within 120 days after the end of each fiscal year, a copy of
Borrower's annual report on Form 10-K (or any successor form in
substantially the same format) for such fiscal year of Borrower
and its Subsidiaries, including therein a consolidated balance
sheet of Borrower and its Subsidiaries as of the end of such
fiscal year and consolidated statements of operations and cash
flows of Borrower and its Subsidiaries for such fiscal year,
certified in a manner acceptable to BofA by independent public
accountants of nationally recognized standing acceptable to BofA.
The Borrower acknowledges that (without limitation) BofA is
relying upon the financial statements delivered from time to time
pursuant to this Agreement, including the annual audited
financials referenced in this Section;
(iii) Termination Events. Within five Business Days after
Borrower discovers the occurrence of any Termination Event or
Unmatured Termination Event continuing on the date of such
statement, a statement of a Responsible Officer setting forth
details of such Termination Event or Unmatured Termination Event
and the action that Borrower proposes to take with respect
thereto;
(iv) ERISA Event. Promptly and in any event within ten days
after a Responsible Officer of Borrower or any ERISA Affiliate
knows or has reason to know that any material ERISA Event has
occurred, a statement of a Responsible Officer of Borrower
describing such ERISA Event and the action, if any, that Borrower
or such ERISA Affiliate proposes to take with respect thereto;
(v) Proceedings. Promptly after a Responsible Officer of
Borrower becomes aware of the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting Borrower or any of its Subsidiaries
of the type described in Section 5.01(d);
(vi) SEC Reports. Promptly after the sending or filing
thereof, copies of all reports on Form 10-K, 10-Q or 8-K that
Borrower files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor;
(vii) Compliance Certificate. Concurrently with the
delivery of the financial statements referred to in clauses (g)(i)
and (g)(ii), a Compliance Certificate executed by the chief
financial officer, treasurer or assistant treasurer of Borrower.
(viii) Other Information. Such other information respecting
the business or properties or the condition, financial or
otherwise, or operations of Borrower or any of its Subsidiaries as
BofA may from time to time reasonably request.
BofA agrees that delivery to BofA under the Bank Credit Agreement of
any of the documents required by this clause (g) (other than clause
(g)(iii) and (g)(vii)) shall satisfy Borrower's obligation to deliver
such documents hereunder.
Notwithstanding the foregoing, upon the occurrence and during the
continuance of a Termination Event or a Unmatured Termination Event,
Borrower will, and will cause its Subsidiaries to, provide to BofA
additional information and any and all of the above information more
frequently to the extent requested by BofA.
(h) Maintenance of Cash Equivalent Investments or Cash
Collateral.
(i) The Borrower and its Subsidiaries will (unless the
Borrower has executed and delivered to the Bank the security
agreement referred to in clause (h)(ii)(B) below) own sufficient
Cash Equivalent Investments so that, on the last day of each
fiscal quarter of the Borrower, the Free Cash Equivalent
Investment Amount will be not less than $200,000,000. The term
"Free Cash Equivalent Investment Amount" means, with respect to
the last day of any fiscal quarter, the excess of (A) the U.S.
Dollar equivalent (determined in accordance with GAAP) of the Cash
Equivalent Investments owned by the Borrower and its Subsidiaries
on such day, as shown on the consolidated balance sheet of the
Borrower and its Subsidiaries for such day which is delivered
pursuant to Section 6.01(g)(i) or (ii) above, over (B) the sum of
(1) the aggregate of the Dollar Equivalent Principal Amounts of
all Notes which are outstanding or to be issued on such day, plus
(2) the aggregate outstanding principal amount of all loans and
advances which are outstanding or to be borrowed on such day under
the Bank Credit Agreement, plus (3) the aggregate face amount of
all letters of credit which are (or are deemed to be) outstanding
or to be issued on such day under the Bank Credit Agreement,
excluding any "Letter of Credit" as defined in the Receivables
Transfer Agreement, plus (4) the aggregate "Transferred
Receivables Amount", as defined in the Receivables Transfer
Agreement, which is outstanding on such day.
(ii) The Borrower and its Subsidiaries will not be required
to maintain Cash Equivalent Investments in the amounts specified
in clause (i) above if the Borrower:
(A) maintains a cash collateral account at BofA;
(B) executes and delivers to BofA a security agreement
in form and substance satisfactory to BofA covering all cash
and other investments which are from time to time maintained
in such account (which investments shall be in form and
substance approved by BofA at the time such security
agreement is delivered, shall be of the Required Credit
Quality, and shall, if required by BofA, be made in the name
of BofA);
(C) on each day maintains cash and other such approved
investments in such account at BofA in an aggregate amount
(or, in the case of investments, principal equivalent
amounts) which is not less than 102% of the aggregate of the
Dollar Equivalent Principal Balances of all Notes which are
outstanding or to be issued on such day (after giving effect
to any Notes which will be repaid on such day);
(D) delivers to BofA such consents as may be required
under the Bank Credit Agreement (and all other agreements or
instruments affecting the Borrower) to the delivery of such
security agreement and collateral; and
(E) delivers to BofA such resolutions, incumbency
certificates, opinions of counsel and other documents as BofA may
require with respect to authorization, enforceability, legality,
perfection, lack of conflict and other matters required by BofA
with respect to such security agreement and the collateral covered
thereby.
"Required Credit Quality" means, with respect to any
investment of collateral pursuant to this clause (h)(ii),
(i) that the maturity date of such investment
falls not more than 110 days after the date such
investment is made;
(ii) that such investment is rated not lower than
A-1 or A by S&P and not lower than P-1 or A by
Xxxxx'x Investors Service, Inc.; and
(iii) that such investment complies with Borrower's
corporate investment policy as amended from time to
time and as most recently approved by the lenders
under the Bank Credit Agreement.
(iii) If Borrower is required to maintain (along with its
Subsidiaries) Cash Equivalent Investments in the amounts specified
in clause (h)(i), the Borrower shall be deemed to be in "Cash
Equivalent Investment Status" for purposes of determining the
Applicable Margin and the Applicable Facility Fee Rate. If
Borrower has executed and delivered the security agreement
referred to in clause (h)(ii)(B), the Borrower shall be deemed to
be in "Collateral Status" for such purposes. If the Borrower is
in Collateral Status, it will be required to comply with all the
provisions of, and take all the actions specified in, clauses
(h)(ii)(A) through (E) above.
(iv) Following any Change in Control, Borrower will, within
one Business Day following any demand by BofA, execute and deliver
to BofA a security agreement as contemplated by clause (h)(ii)(B)
and otherwise comply in all respects with the provisions of, and
take all the actions specified in, clauses (h)(ii)(A), through (E)
above. Following delivery of such security agreement, Borrower
will be in Collateral Status. BofA will not be required to pay
the Borrower the Purchase Price or Reduced Purchase Price of any
Note following any such demand by BofA unless Borrower is in full
compliance with, and has taken all the actions specified in,
clauses (h)(ii)(A) through (E).
ARTICLE VII
TERMINATION EVENTS
------------------
SECTION 7.01 Termination Events. Each of the following events
shall be a "Termination Event" hereunder:
(a) any amount payable by Borrower under any Note or any other
Agreement Document (including without limitation under any forward
contract which is entered into or deemed entered into pursuant to
Section 1.09) is not paid when due hereunder, which failure continues
for: (i) three Business Days, in the case of any payment required to be
made on any Maturity Date, or (ii) except as set forth in clause (c),
ten Business Days, in the case of any other payment hereunder;
(b) Any representation or warranty made or deemed to be made by
Borrower under or in connection with any Agreement Document, or any
other information or report delivered pursuant hereto or thereto shall
prove to have been incorrect in any material respect when made;
(c) Borrower: (i) shall fail on any Purchase Date to either:
(A) issue and sell to BofA Notes having principal amounts equal to all
Required Foreign Currency Amounts applicable to such Purchase Date, or
(B) deliver to BofA a Deficiency Certificate pursuant to
Section 1.02(f), and (ii) shall thereafter fail to make any payment
required by Section 1.02(g) or Section 3.04, and such failure to make
such payment shall continue for five Business Days,
(d) Borrower shall fail to perform or observe any term,
covenant or agreement contained in any Agreement Document (excluding
the terms, covenants and agreements described above in Sections 7.01(a)
and (c), which failure continues unremedied for (A) one Business Day in
the case of any failure to maintain collateral in the amounts required
by Section 6.01(h)(ii) or (h)(iv), and (B) thirty days in the case of
any other such failure, in each case after written notice by BofA to
Borrower;
(e) (i) Borrower or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on, or any other amount payable
in respect of, (A) any Debt outstanding under the Bank Credit
Agreement, or (B) any other Debt outstanding in a principal or notional
amount of at least $25,000,000 in the aggregate (but excluding Debt
arising hereunder) when the same becomes due and payable (whether by
scheduled maturity, required prepayment, redemption, purchase,
defeasance, cash collateralization, acceleration, demand or otherwise),
and such failure shall continue (x) after the applicable grace period,
if any, in the case of a non-payment of principal or (y) for five
Business Days after the applicable grace period, if any, in the case of
non-payment of any other amount, in each case specified in the
agreement or instrument relating to such Debt and shall not have been
cured or waived; (ii) any failure to make any payment or any other
event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt (including the Bank Credit
Agreement), if the effect of such failure, event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt
or otherwise to cause, or to permit the holder thereof to cause, such
Debt to become due and payable (whether by required prepayment (other
than by a regularly scheduled required prepayment), purchase,
redemption, defeasance, cash collateralization, acceleration, demand or
otherwise) or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, prior to its scheduled maturity, and,
unless such Debt has been accelerated or otherwise has become due and
payable prior to its scheduled maturity, such failure, event or
condition continues for ten Business Days after any grace period
specified in the applicable agreement or instrument relating to such
Debt; or (iii) any default, termination event, repurchase event or like
event by or relating to Borrower or any of its Affiliates shall have
occurred under any agreement (other than an Agreement Document) that
involves a commitment of $25,000,000 or more and provides for (x) the
sale, assignment or factoring of accounts receivables or (y) any other
structured financing or off-balance sheet financing and, in the case of
any such default, termination event or like event, shall have continued
for the grace period, if any, applicable thereto, and as a result (A)
in the case of clause (x) next above, the obligation to purchase, take
by assignment or factor such receivables shall have been terminated or
the transferee of receivables shall have the right (with or without the
passage of time or the giving of notice, or both) to terminate such
obligation or (B) in the case of clause (y) next above, the obligations
of the other party or parties to such other structured financing or
off-balance sheet financing shall terminate or such other party or
parties shall have the right to terminate such obligations.
(f) A Bankruptcy Event with respect to Borrower or any of its
Material Subsidiaries shall occur;
(g) There shall occur any event which materially and adversely
affects the ability of Borrower to perform its obligations under any
Agreement Document;
(h) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to
any of the assets of Borrower and such lien shall not have been
released within 30 days, or the PBGC shall, or shall indicate its
intention to, file notice of a lien pursuant to Section 4068 of ERISA
with regard to any of the assets of Borrower or any of its Affiliates.
(i) Any Change in Control shall occur;
(j) Any judgments, decrees, or orders shall be rendered against
Borrower or any of its Material Subsidiaries in excess of $15,000,000
in the aggregate and which are not, within a period of 30 days, either
satisfied or stayed pending appeal;
(k) Any Agreement Document shall (except in accordance with its
terms), in whole or in part, cease to be in full force and effect or
shall be declared to be null and void, or the validity or
enforceability thereof shall be contested by Borrower, any of its
Affiliates or any such Person shall deny that it has any obligation
thereunder; or
(l) Any "Termination Event", as defined in the Receivables
Transfer Agreement, shall occur and be continuing, provided, that if
the only such "Termination Event" is a Change in Control Termination
Event, BofA's remedies will be limited as set forth in Section 7.02(e).
SECTION 7.02 Remedies. (a) Upon the occurrence of a Termination
Event (other than a Termination Event described in Section 7.01(f) with
respect to Borrower), BofA may by notice to Borrower declare the
Termination Date to have occurred. The Termination Date shall be deemed
to have occurred automatically upon the occurrence of a Termination
Event described in Section 7.01(f) with respect to Borrower.
(b) Upon the occurrence of the Termination Date as a result of the
occurrence of any Termination Event,
(i) the commitment of Bank of America to purchase Notes and
enter into forward contracts hereunder shall terminate;
(ii) Bank of America may declare the unpaid principal amount
of all outstanding Notes, all interest accrued and unpaid thereon,
and all other amounts owing or payable hereunder or under any
other Agreement Documents to be immediately due and payable, and
may accelerate the value dates of all forward contracts which were
entered into or deemed entered into pursuant to Section 1.09, so
that all payments in respect of such forward contracts will be
payable on the dates on which the related Notes have been declared
to be due and payable, all without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived
by Borrower; and
(iii) BofA shall compute, as liquidated damages, the Early
Termination Payment to be paid in connection with the Termination
Date pursuant to Section 1.08, together with any amounts payable
to BofA pursuant to Section 3.04(a), and any amounts payable by
Borrower pursuant to Section 3.04(b) and such amounts shall become
immediately due and payable by Borrower; provided, that no Early
Termination Payment shall be paid to Borrower that results from
the occurrence of the Termination Date until all Carryforward
Amounts have been reduced to zero or cancelled by BofA and all
Obligations shall have been finally and fully paid and performed
in full and in cash.
(c) Upon termination of the Facility pursuant to this Section,
BofA shall have, in addition to all other rights and remedies under
this Agreement or otherwise, all other rights and remedies provided
under applicable laws, which rights shall be cumulative.
(d) BORROWER ACKNOWLEDGES AND AGREES THAT THE OBLIGATION OF BOFA
TO PURCHASE NOTES AND ENTER INTO FORWARD CONTRACTS HEREUNDER IS A
"FINANCIAL ACCOMMODATION", WITHIN THE MEANING OF 11 U.S.C.
SECTION365(C)(2), BUT ANY TERMINATION OF BOFA'S OBLIGATION HEREUNDER
SHALL NOT RELIEVE BORROWER OF ANY OBLIGATION TO MAKE ANY EARLY
TERMINATION PAYMENT OR OTHER PAYMENT DUE HEREUNDER.
(e)(i) Notwithstanding the foregoing, if (A) a Termination Event
under Section 7.01(i) or (B) a Termination Event under Section 7.01(i)
resulting from a breach of Section 6.01(b)(i) that is caused only by a
Change in Control (each a "Change in Control Termination Event") shall
have occurred, then, (but only if and so long as no other Termination
Event shall occur or be continuing) BofA's remedies with respect to
such Change in Control Termination Event shall be limited as set forth
in this clause (e).
(ii) If, following such Change in Control Termination Event,
each Surviving Entity shall have ratified and agreed to be bound
by this Agreement and the Agreement Documents to the same extent
as Borrower, by documents in form and substance satisfactory to
BofA, then BofA (A) will not specify an Early Termination and (B)
will continue to accept and pay the Purchase Price for Notes on
each Purchase Date as provided in this Agreement and any Agreement
Document, provided, that (1) all conditions precedent to such
Purchase and such payments that are set forth in Section 4.02
(other than the absence of a Change in Control Termination Event)
have been met, (2) the credit rating (or implied credit rating)
given by S&P to the senior unsecured and uncredit-enhanced long
term debt of each Surviving Entity is not lower than the credit
rating or implied credit rating that S&P gave to such debt of
Borrower immediately prior to such Change in Control, and (3) if
S&P does not issue a credit rating or implied credit rating for
any such debt of any Surviving Entity, then, in the reasonable
opinion of BofA, the combined financial condition of the Surviving
Entities is not materially worse than that of Borrower prior to
such Change in Control.
(iii) The term "Surviving Entity" means, with respect to any
Change in Control, (A) Borrower, if Borrower survives such Change
in Control, (B) any Person with or into which Borrower is merged
or consolidated, if Borrower does not survive such Change in
Control, (C) any Person that, following such Change in Control,
owns beneficially, directly or indirectly, securities (or
securities which are convertible into such securities)
representing more than 50% of the combined voting power of all
securities entitled to vote in the election of directors of
Borrower or any Person with or into which Borrower is merged or
consolidated, and (D) any Person or Persons to which all or
substantially all of Borrower's assets have been transferred.
(iv) Nothing herein shall obligate BofA to enter into any
Supplement following any Change in Control Termination Event.
ARTICLE VIII
INDEMNIFICATION; EXCULPATION
----------------------------
SECTION 8.01 Indemnities by Borrower. Without limiting any other
rights which any Indemnified Party may have hereunder or under
applicable law, Borrower hereby agrees to indemnify each of BofA and
each of its Affiliates, each of its and their respective successors,
transferees and assigns and all of its and their officers, directors,
shareholders, controlling persons, employees and agents (each an "{xe
"Indemnified Party"}Indemnified Party"), forthwith on demand, from and
against any and all damages, losses, claims (whether on account of
settlements or otherwise), judgments, liabilities and related costs and
expenses, including reasonable attorneys' fees and disbursements and
the allocated costs of in-house counsel, if any (all of the foregoing
being collectively called "{xe "Indemnified Amounts"}Indemnified
Amounts") that may be incurred by or asserted against any Indemnified
Party in each case arising out of or in connection with or by reason
of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding (whether or not an Indemnified
Party is a party thereto) arising out of, related to or in connection
with, any Contract or Agreement Document, or the transactions
contemplated herein or therein or the use of proceeds herefrom or
therefrom; provided that no Indemnified Party shall be indemnified
under this Section 8.01 with respect to (i) matters for which such
Indemnified Party has been compensated pursuant to any other provision
of this Agreement or (ii) Indemnified Amounts caused by or resulting
from the gross negligence or willful misconduct of such Indemnified
Party as finally determined by a court of competent jurisdiction. If
any action is brought against any Indemnified Party with respect to any
Contract, such Indemnified Party shall promptly notify Borrower in
writing of the institution of such action and Borrower shall thereupon
have the right, at its option, to elect to assume the defense of such
action. If Borrower so elects, it shall promptly assume the defense of
such action, including the employment of counsel (reasonably
satisfactory to such Indemnified Party) and payment of expenses. Such
Indemnified Party shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the
employment of such counsel shall have been authorized in writing by
Borrower in connection with the defense of such action or (ii) Borrower
shall not have properly employed counsel reasonably satisfactory to
such Indemnified Party to have charge of the defense of such action, in
which case such fees and expenses shall be paid by Borrower. If such
Indemnified Party shall have reasonably concluded (based upon the
advice of counsel) that the representation by one counsel of the
Indemnified Party and Borrower creates a conflict of interest for such
counsel, the reasonable fees and expenses of such counsel shall be
borne by Borrower and Borrower shall not have the right to direct the
defense of such action on behalf of the Indemnified Party (but shall
retain the right to direct the defense of such action on behalf of
Borrower). Anything in this Section 8.01 to the contrary
notwithstanding, Borrower shall not be liable for the fees and expense
of more than one counsel for any Indemnified Party in any jurisdiction
as to any Indemnified Amounts or for any settlement of any Indemnified
Amounts effected without its written consent. All Obligations of
Borrower under this Section 8.01 shall survive the making and repayment
of the Obligations and the termination of this Agreement.
If for any reason the indemnification provided in this Section
8.01 is unavailable to an Indemnified Party or is insufficient to hold
an Indemnified Party harmless, then Borrower shall contribute to such
Indemnified Party the maximum amount that can be paid to such
Indemnified Party as a result of such loss, claim, damage or liability.
SECTION 8.02 Exculpation. Notwithstanding anything contained
herein to the contrary, no Indemnified Party shall be liable to
Borrower or any other Person in any manner in respect of any
Indemnified Amounts awarded against or incurred by Borrower, any of its
Affiliates, any of its and their respective successors, transferees and
assigns or any of its and their officers, directors, shareholders,
controlling persons, employees and agents (each a "Borrower Party"), in
each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation,
litigation or proceeding (whether or not a Borrower Party is a party
thereto) arising out of, related to or in connection with, any Contract
or Agreement Document or the transactions contemplated herein or
therein or the use of proceeds herefrom or therefrom (collectively a
"Borrower Matter") except to the extent that a court of competent
jurisdiction finally determines that such Indemnified Amounts were
caused by or resulted from the gross negligence or willful misconduct
of such Indemnified Party. In no event, however, shall the Indemnified
Parties be liable for any indirect, special, punitive, exemplary or
consequential damages that may be incurred by or asserted against any
Indemnified Party in each case arising out of or in connection with or
by reason of, or in connection with the preparation for a defense of,
any Borrower Matter.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01 Amendments, Waivers, Etc. No amendment,
modification or waiver of any provision of this Agreement or any other
Agreement Document nor consent to any departure therefrom shall in any
event be effective unless the same shall be in writing and signed by
(a) Borrower and BofA (with respect to an amendment or modification) or
(b) BofA (with respect to a waiver or consent by it) or Borrower (with
respect to a waiver or consent by it), as the case may be, and then
such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. Subject to the
foregoing, any Agreement Document (including Schedule II hereto, Annex
I to Exhibit 1.02(b), and any Supplement) may be modified at any time
by mutual written consent of the parties, and, if required by BofA in
its discretion as a condition of its consent, the payment of such
amendment fees as may be agreed by the parties. No failure or delay on
the part of BofA or any Indemnified Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude
any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by applicable law.
SECTION 9.02 Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in
writing (including facsimile communication) and shall be personally
delivered or sent by certified mail, postage prepaid, by facsimile or
by overnight courier, to the intended party at the address or facsimile
number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties
hereto given in accordance with this Section 9.02. All such notices
and communications shall be effective, (a) if personally delivered,
when received, (b) if sent by certified mail, five Business Days after
having been deposited in the mail, postage prepaid and properly
addressed, (c) if transmitted by facsimile, when sent, receipt
confirmed by telephone or electronic means, and (d) if sent by
overnight courier, two Business Days after having been given to such
courier unless sooner received by the addressee; provided that
notwithstanding the foregoing, notices and communications pursuant to
Article I shall not be effective until received.
SECTION 9.03 Binding Effect; Assignability; Survival of
Provisions. This Agreement shall be binding upon and inure to the
benefit of Borrower and BofA and their respective successors and
assigns, and the provisions of Sections 3.02 and Article VIII shall
inure to the benefit of BofA and the Indemnified Parties, respectively,
and their respective successors and assigns. Borrower shall not assign
any of its rights hereunder or any interest herein without the prior
written consent of BofA. BofA may not, without the prior written
consent of Borrower (which consent may not be unreasonably withheld or
delayed), assign its rights and obligations hereunder at any time to
any Person, except that BofA may, without such consent, assign any of
such rights or obligations (i) to any present or future Affiliate of
BofA, and also (ii) at any time when any Termination Event or any
Unmatured Termination Event described in Section 7.01(f) shall have
occurred and be continuing, to any Person selected by BofA. This
Agreement shall create and constitute the continuing obligations of the
parties hereto in accordance with its terms, and shall remain in full
force and effect until the date following the Termination Date on which
any Carryforward Amount shall have been reduced to zero and all
Transferred Receivables and all Obligations that have ever been
outstanding hereunder have been finally and fully paid and performed.
The rights and remedies with respect to any breach of any
representation and warranty made by Borrower pursuant to Article V and
the indemnification and payment provisions of Article VIII and
Sections 3.02, 3.05 and 9.05 shall be continuing and shall survive any
termination of this Agreement.
SECTION 9.04 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA.
SECTION 9.05 Costs, Expenses and Taxes. In addition to its
obligations under Article VIII, Borrower agrees to pay to BofA and the
other Indemnified Parties on demand:
(a) all reasonable out-of-pocket and other costs and expenses
in connection with the preparation, execution, delivery and
administration of the Agreement Documents, including the reasonable
fees and expenses of counsel (including local counsel and the allocated
costs of in-house counsel, if any) for BofA and the other Indemnified
Parties with respect thereto, and all costs and expenses, if any
(including reasonable counsel fees and expenses (including local
counsel and the allocated costs of in-house counsel, if any)), in
connection with the enforcement of the Agreement Documents, or any
claim of breach of contract, breach of warranty or any other breach of
any Agreement Document or any tort claim relating to any of the
foregoing;
(b) all present and future stamp and other taxes and
governmental fees and charges payable or determined to be payable in
connection with the execution, delivery, filing, recording or
performance of the Agreement Documents (other than taxes on the overall
net income of the Person that is requesting payment under this
Section 9.05), and agrees to indemnify each such Person against all
penalties and interest with respect to or resulting from such taxes,
charges and fees and against all other liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes,
charges and fees;
(c) all reasonable costs and expenses of BofA in connection
with performing any of the obligations of Borrower under or in
connection with the Agreement Documents; and
(d) all other reasonable costs and expenses and all taxes
incurred by BofA in connection with the auditing of Borrower's books
relating to the Receivables by certified public accountants at any
time, provided, that unless a Termination Event or Unmatured
Termination Event shall have occurred and be continuing, Borrower shall
only be required to reimburse BofA for the cost of one such audit in
each calendar year.
SECTION 9.06 Execution in Counterpart. This Agreement may be executed in
separate counterparts, each of which shall be deemed to be an original and all
of which shall constitute one and the same Agreement.
SECTION 9.07 Confidentialty.
(a) Borrower acknowledges that BofA regards the structure of
the transactions contemplated by this Agreement to be proprietary, and
Borrower agrees that:
(i) it will not disclose without the prior consent of BofA
(other than to Borrower's directors, employees, auditors, counsel
or affiliates (collectively, "Borrower Representatives"), each of
whom shall be informed by Borrower of the confidential nature of
the Information (as defined below) and of the terms of this
Section 9.07), (A) detailed information regarding, or copies of,
the Agreement Documents and the attachments thereto or any
transaction specifically contemplated herein or therein, except to
other financial institutions providing services or funds to
Borrower who enter into a confidentiality agreement with respect
to the Agreement Documents and the above-described attachments and
the transactions specifically contemplated herein and therein
(which agreement shall be satisfactory in form and substance to
BofA) and who agree not to copy or duplicate the structure of the
transactions contemplated by this Agreement or otherwise to use
the information described above that is so disclosed to them for
any purpose other than their credit evaluations of Borrower or (B)
any information regarding BofA, which information is furnished by
BofA to Borrower and which is designated by BofA to Borrower in
writing as confidential or as not otherwise available to the
general public (the information referred to in clauses (A) and (B)
is collectively called the Information");
provided that Borrower may disclose any such Information as may be
required or requested by or to any municipal, state, federal or
other regulatory body having or claiming to have jurisdiction over
Borrower or in order to comply with any law, order, regulation,
regulatory request or ruling applicable to Borrower;
(ii) except as provided above, it will use the Information
solely to evaluate, administer and enforce the transactions
contemplated by the Agreement Documents and to make any necessary
business judgments with respect thereto; and
(iii) upon reduction of each Carryforward Amount to zero or
cancellation thereof and final payment in full of all Obligations,
it will, upon demand, return (and cause each of the Borrower
Representatives to return) to BofA all documents or other written
material received from BofA and all copies thereof made by
Borrower which contain the Information.
(b) BofA acknowledges that Borrower regards certain information with
respect to Borrower and the Receivables to be confidential, and BofA agrees
that:
(i) it will not disclose without the prior consent of
Borrower (other than to the assignees, participants, proposed
assignees, proposed participants, directors, employees, auditors,
counsel, agents or affiliates (collectively, the "BofA
Representatives") of BofA, each of whom shall be informed by BofA
of the confidential nature of Borrower Information (as defined
below) and of the terms of this Section 9.07), (A) any financial,
business, marketing or strategic information with respect to
Borrower which is not otherwise available to the general public
and which has been designated in writing by Borrower as "secret"
or "confidential" or which has been orally designated by Borrower
as confidential which designation is confirmed in writing by
Borrower within seven days, (B) the identity of the obligors of
the Receivables and the Unpaid Balances thereof, or (C) any other
information regarding Borrower or the Receivables which is
furnished by Borrower to BofA and which is designated by Borrower
to BofA in writing (or orally, confirmed in writing within seven
days) as "secret", "confidential" or as not otherwise available to
the general public (the information referred to in clauses (A),
(B) and (C) is collectively called the "{xe "Transferor
Information"}Borrower Information"); provided that BofA may
disclose any such Borrower Information as may be required or
requested by or to any municipal, state, federal or other
regulatory body having or claiming to have jurisdiction over BofA
or in order to comply with any law, order, regulation or ruling
applicable to BofA;
(ii) except as set forth above, it will use Borrower
Information solely for the purpose of evaluating, administering
and enforcing the transactions contemplated by the Agreement
Documents and making any necessary business judgments with respect
thereto; and
(iii) upon reduction of each Carryforward Amount to zero or
cancellation thereof and final payment in full of all Obligations,
it will, upon demand, return (and cause each of the BofA
Representatives to return) to Borrower all documents or other
written material received from Borrower in connection with
clause (b)(i) above and all copies thereof made by BofA which
contain Borrower Information, provided, that BofA may keep such
materials, subject to the confidentiality provisions hereof, as
required by applicable law or regulation.
(c) This Section 9.07 shall be inoperative as to such portions
of the Information or Borrower Information (as applicable) which are or
become generally available to the public or to a party to this
Agreement on a nonconfidential basis or were known to a party to this
Agreement on a nonconfidential basis prior to its disclosure by a party
to this Agreement.
(d) In the event that Borrower or anyone to whom Borrower or
any of Borrower Representatives transmits the Information is requested
or becomes legally compelled (by interrogatories, requests for
information or documents, subpoena, civil investigation demand or
similar process) to disclose any of the Information, Borrower will
provide BofA with prompt written notice so that BofA may seek a
protective order or other appropriate remedy and/or waive compliance
with the provisions of this Section 9.07. In the event that such
protective order or other remedy is not obtained, or BofA waives
compliance with the provisions of this Section 9.07, Borrower will
furnish only that portion of the Information which is legally required
to be furnished and will exercise its best efforts to obtain reliable
assurance that confidential treatment will be accorded the Information.
(e) This Section 9.07 shall survive termination of this
Agreement.
SECTION 9.08 Severability of Provisions. If any covenants,
agreements, provisions or terms of any Agreement Document shall for any
reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable and shall in no way
affect the validity or enforceability of the other provisions of or any
Agreement Document.
SECTION 9.09 Conflict in Agreement Documents. If there is any
conflict between this Agreement and any other Agreement Document, this
Agreement and such other Agreement Document shall be interpreted, if
possible, so as to avoid or minimize such conflict but, to the extent
(and only to the extent) of such conflict, this Agreement shall prevail
and control.
SECTION 9.10 Legal Representation of Parties. This Agreement and
the other Agreement Documents were negotiated by the parties with the
benefit of legal representation and any rule of construction or
interpretation otherwise requiring this Agreement or any other
Agreement Document to be construed or interpreted against any party
shall not apply to any construction or interpretation hereof or
thereof. Without limiting the generality of the foregoing, Borrower
acknowledges that it has made an independent determination to enter
into the transactions contemplated by the Agreement Documents and has
not relied on any representation or other assurance by or on behalf of
BofA regarding any legal, tax, accounting or other treatment or effect
of such transactions.
SECTION 9.11 Recording. Borrower understands and agrees that
BofA in its sole discretion may record, on tape or otherwise, any
telephone conversation between Borrower and BofA. Borrower hereby
agrees and consents to such tape recording and waives any right
Borrower may have to object to the admissibility into evidence of such
recording in any legal proceeding between Borrower and BofA or in any
other proceeding to which Borrower is a party or in which BofA's
records are subpoenaed. BofA shall not be required to transcribe such
recordings or maintain such recordings or any transcripts thereof.
SECTION 9.12 Judgments. To the extent permitted by applicable
law, if any judgment or order expressed in any currency other than
Dollars is rendered (i) for the payment of any amount owing in respect
of this Agreement, or (ii) in respect of a judgment or order of another
court for the payment of any such amount, the party seeking recovery,
after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Dollars received by such party as a consequence of sums paid in such
other currency and will refund promptly to the other party any excess
of the Dollars received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results
(A) from any variation between the rate of exchange at which Dollars
are converted into the currency of the judgment or order for the
purposes of such judgment or order and the rate of exchange at which
such party is able, acting in a reasonable manner and in good faith in
converting the currency received into Dollars, to purchase Dollars with
the amount of the currency of the judgment or order actually received
by such party, such party not receiving (after such conversion) the
full amount of Dollars to which it is entitled hereunder. The term
"rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion
into Dollars.
SECTION 9.13 Submission to Jurisdiction. BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY CALIFORNIA STATE OR
FEDERAL COURT SITTING IN SAN FRANCISCO, CALIFORNIA OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY AGREEMENT DOCUMENT, AND
HEREBY (A) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE OR
FEDERAL COURT; AND (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING.
SECTION 9.14 Integration. The Agreement Documents contain a
final and complete integration of all prior expressions by the parties
hereto with respect to the subject matter hereof and thereof and shall
together constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and thereof, superseding all prior
oral or written understandings.
SECTION 9.15 Waiver of Jury Trial. BORROWER AND BOFA EACH HEREBY
EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER ANY AGREEMENT DOCUMENT
OR UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY
BE DELIVERED IN THE FUTURE IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM OR RELATING TO ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF EITHER OF THE
PARTIES HERETO OR ANY RELATIONSHIP EXISTING IN CONNECTION WITH ANY
AGREEMENT DOCUMENT, AND EACH OF THEM AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, Borrower and BofA have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
STORAGE TECHNOLOGY CORPORATION
as Borrower
By /s/ Xxxx XxXxxxxx
----------------------------
Title Vice President and Treasurer
-----------------------------
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Treasurer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
By /s/ Xxxxx XxXxxxx
----------------------------
Title Vice President
---------------------------
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Facsimile No.: (000) 000-0000
EURODOLLAR OFFICE
Global Payment Operations
Domestic Account Administration, #5693
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
All Notices pursuant to the Agreement,
will be sent to BofA at both of the above
addresses except that Notices pursuant to
Sections 1.02(b) and 1.02(d) will not be
sent to the Concord, California address
listed above.
Notices Pursuant to Sections 1.02(b),
1.02(d), 1.02(e),1.02(f), 1.02(g), 1.06
and 1.08 will also be sent to BofA at:
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
SCHEDULE I
----------
DEFINITIONS
"Adverse Claim" means any lien, security interest, charge,
encumbrance or right or claim of any Person, but excluding any of the
foregoing that arise under any Agreement Document in favor of BofA or
any other Indemnified Party.
"Affected Party" means BofA and any Person to whom BofA has
assigned an interest in BofA's rights under the Agreement.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with,
such Person.
"Agreement" is defined in the Preamble.
"Agreement Documents" means this Agreement, each Supplement, each
Note, each Deficiency Certificate, each Amendment, each forward
contract which is entered into or deemed to be entered into pursuant to
Section 1.09 of the Agreement, any security agreement or other document
delivered pursuant to Section 6.01(h), and all agreements, instruments,
certificates, reports and documents executed and delivered or to be
executed and delivered under or in connection with any of the
foregoing.
"Aggregate Purchase Price" means at any time the aggregate of the
Purchase Prices and Reduced Purchase Prices paid by BofA to Borrower in
respect of all Notes that as of such date have not been paid in full.
"Allocated Purchase Price" is defined in Section 1.02(b)(i)(D).
"Amendment" is defined in Section 1.07(c).
"Applicable Facility Fee Rate" is defined in Section 3.01(c).
"Applicable Margin" is defined in Section 1.04(e).
"Bank Credit Agreement" means the Amended and Restated
Multicurrency Credit Agreement dated as of March 28, 1996 among
Borrower, certain of its Subsidiaries, the banks and financial
institutions parties thereto, and Bank of America National Trust and
Savings Association, as Agent, Swing Line Bank and Letter of Credit
Issuing Bank, as amended and supplemented or otherwise modified from
time to time, and any restatement, renewal or replacement thereof.
"Bankruptcy Event" shall be deemed to have occurred with respect
to a Person if either:
(a) a case or other proceeding shall be commenced, without
the application or consent of such Person, under any law relating
to bankruptcy, insolvency, reorganization, dissolution, winding up
or composition or adjustment of debts (each, an "Insolvency Law"),
and such case or proceeding shall continue undismissed, or
unstayed and in effect, for a period of 60 days; or an order for
relief in respect of such Person shall be entered in an
involuntary case under an Insolvency Law; or
(b) such Person shall commence a voluntary case or other
proceeding under any Insolvency Law, or shall consent to the
appointment of or taking possession by a receiver, liquidator or
other similar official for such Person or for any substantial part
of its property, or shall make any general assignment for the
benefit of creditors.
"BofA" is defined in the Preamble.
"BofA Representatives" is defined in Section 9.07(b)(i).
"Borrower" is defined in the Preamble.
"Borrower Information" is defined in Section 9.07(b)(i).
"Borrower Matter" is defined in Section 8.02.
"Borrower Party" is defined in Section 8.02.
"Borrower Representatives" is defined in Section 9.07(a)(i).
"Business Day" means a day (a) that is not Saturday or Sunday and
on which commercial banks in San Francisco are not authorized or
required to be closed for business and (b) that is also a Eurodollar
Business Day, if the applicable Business Day is an Issuance Date or
relates to the determination of the Eurodollar Rate or any payment on
any Maturity Date.
"Carryforward Amount" is defined in Section 1.02(g).
"Cash Equivalent Investments" of any Person means, as of any date
of determination, all cash and short-term investments, in each case as
shown on the most recent balance sheet of such Person and determined in
accordance with GAAP.
"Cash Equivalent Investment Status" is defined in Section
6.01(h)(iii).
"Change in Control" means the occurrence, after the date of this
Agreement, of any of the following: (a) any Person or two or more
Persons acting in concert acquiring beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of
securities of Borrower (or other securities convertible into such
securities) representing 50% or more of the combined voting power of
all securities of Borrower entitled to vote in the election of
directors; (b) during any period of up to 12 consecutive months,
commencing after the Initial Closing Date, individuals who at the
beginning of such 12-month period were directors of Borrower ceasing
for any reason to constitute a majority of the Board of Directors of
Borrower unless the Persons replacing such individuals were nominated
by the Board of Directors of Borrower; (c) any Person or two or more
Persons acting in concert acquiring by contract or otherwise, or
entering into a contract or arrangement that upon consummation will
result in its or their acquisition of, or control over, securities of
Borrower (or other securities convertible into such securities)
representing 50% or more of the combined voting power of all securities
of Borrower entitled to vote in the election of directors; (d) Borrower
shall be a party to any merger or consolidation in which Borrower is
not a surviving entity or (e) Borrower shall directly or indirectly
transfer, assign, convey or lease, whether in one transaction or in a
series of transactions, all or substantially all of its assets,
(whether now owned or hereafter acquired) to any other Person or
Persons.
"Change in Control Termination Event" is defined in
Section 7.02(e)(i).
"Collateral Status" is defined in Section 6.01(h)(iii).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit 6.01(g)(vii).
"Consolidated Net Income" means the consolidated net income of the
Borrower and each Subsidiary of the Borrower determined in accordance
with GAAP.
"Contract" means an agreement or arrangement between Borrower and
any Person, pursuant to or under which such Person shall be obligated
to make payments to Borrower from time to time.
"currency" means any currency which is authorized by the laws of
any nation to circulate as a medium of exchange in such nation.
"Debt" of any Person at any date means (a) all obligations,
contingent or otherwise, of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the property of such
Person or only to a portion thereof), (b) all obligations of such
Person evidenced by bonds, notes or other similar instruments, (c) all
obligations of such Person in respect of letters of credit or other
similar instruments (or reimbursement obligations with respect
thereto), (d) all obligations of such Person to pay the unpaid purchase
price of any property or services, (e) all obligations of such Person
as lessee under leases which under generally accepted accounting
principles would be capitalized, (f) all Debt secured by an Adverse
Claim on any property of such Person, whether or not such Debt is
assumed by such Person, (g) all Guaranties by such Person, and (h) all
net obligations in respect of Hedge Contracts.
"Deferral Compensation Amount" is defined in Section 1.02(h).
"Deficiency Certificate" is defined in Section 1.02(f).
"Determination Date" is defined in Section 1.02(a).
"Determination Date Exchange Rate" is defined in Section 1.02(d).
"Dollars" means lawful money of the United States of America.
"Dollar Equivalent" means (A) as to any amount denominated in
Dollars, such amount, and (B) as to any amount denominated in a foreign
currency, the equivalent amount in Dollars as determined by BofA on the
basis of the Determination Date Exchange Rate (or, if no Determination
Date Exchange Rate was determined by BofA for a particular foreign
currency, another exchange rate determined by BofA in good faith for
the purchase of Dollars with such foreign currency.
"Dollar Equivalent Principal Amount" is defined in
Section 1.02(e).
"Early Termination" is defined in Section 1.08(a).
"Early Termination Date" is defined in Section 1.08(b)(i).
"Early Termination Payment" is defined in Section 1.08(c).
"Environmental Law" means any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, duly promulgated
policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation
thereof, including any order, consent decree or judgment, relating to
the environment, health, safety or any Hazardous Material.
"ERISA" means the Employee Retirement Income Security Act of 1974,
and any regulations thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
ERISA is a member of Borrower's controlled group, or under common
control with Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, unless the 30-day notice
requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (iii) the cessation of operations at a facility in
the circumstances described in Section 4068(f) of ERISA; (iv) the
withdrawal by Borrower or an ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (v) the failure by Borrower or
any ERISA Affiliate to make a payment to a Plan required under Section
302(f)(1) of ERISA; (vi) the adoption of an amendment to a Plan
requiring the provision of initial or additional security to such Plan,
pursuant to Section 307 of ERISA; or (vii) the institution by the PBGC
of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA,
or the occurrence of any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurodollar Business Day" means a Business Day on which dealings
in Dollars are carried on in the London eurodollar interbank market.
"Eurodollar Office" means the office of BofA designated as such on
the signature page of the Agreement, or such other office or Affiliate
of BofA as BofA may from time to time specify to Borrower.
"Eurodollar Rate" means, for any period, a rate of interest per
annum equal to the rate per annum (rounded upwards to the nearest whole
multiple of 1/16 of 1% per annum, if such percentage is not a
multiple,) determined by BofA, at which deposits in Dollars are offered
by the Eurodollar Office in London to prime banks in the London
interbank market:
(a) for purposes of calculating the interest rate applicable
to any Note pursuant to Section 1.04, two Eurodollar Business Days
prior to the applicable Issuance Date for the number of days from
the Issuance Date to the Maturity Date of such Note and in an
amount equal to the Dollar Equivalent Principal Amount of such
Note, as applicable, and
(b) for purposes of calculating the discount on Early
Termination Payments pursuant to Section 1.08, on the date on
which such payment is made, for a period equal to the number of
days until the Purchase Date on which such payment is based, as
specified in Section 1.08, in an amount as specified in such
Section.
"Eurodollar Rate (Reserve Adjusted)" means, for any period, a rate
per annum (expressed as a decimal, rounded upward to the nearest whole
multiple of 1/100 of 1%, if such percentage is not a multiple) equal to
the quotient of:
(a) the applicable Eurodollar Rate; divided by
(b) a percentage equal to 100% minus the maximum reserve
percentage (expressed as a decimal, rounded upward to the nearest
whole multiple of 1/100 of 1%, if such percentage is not such a
multiple) determined by BofA as applicable on the first Business
Day of such period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System or any
successor.
"Facility" means BofA's commitment to purchase Notes on each
Purchase Date.
"Facility Fee" is defined in Section 3.01(a).
"Facility Limit" means $25,000,000, as such amount may be reduced
pursuant to Section 1.06.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15 (519)") on the preceding Business
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as
determined by BofA of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that
day by each of three leading brokers of Federal funds transactions in
New York City selected by BofA.
"foreign currency" means any currency other than Dollars.
"Free Cash Equivalent Investment Amount" is defined in Section
6.01(h)(i).
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority
within the accounting profession), or in such other statements by such
other entity as may be in general use by significant segments of the
U.S. accounting profession, which are applicable to the circumstances.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity in the
United States of America or any applicable foreign jurisdiction that
exercises executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Group" is defined in the definition of "Change of Control".
"Guaranty" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses, agrees to purchase or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss) the indebtedness, obligation or any
other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
"Hazardous Material" means (a) any hazardous substance and toxic
substance as such terms are presently defined or used in Section101(14)
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. Section9601(14)), in 33 U.S.C.
Section1251 et seq. (Clean Water Act), or 15 U.S.C. Section 2601 et
seq. (Toxic Substances Control Act), (b) any additional substances or
materials that are now or hereafter hazardous or toxic substances under
any applicable laws relating to any real property owned or occupied by
Borrower or any of its Subsidiaries, and (c) as of any date of
determination, any additional substances or materials that are
hereafter incorporated in or added to the definition of "hazardous
substance" or "toxic substance" for purposes of any Environmental Law.
"Hedge Contract" means an interest rate swap, cap, floor or collar
agreement, currency exchange agreement or similar transaction entered
into by Borrower.
"Indemnified Amounts" is defined in Section 8.01.
"Indemnified Party" is defined in Section 8.01.
"Information" is defined in Section 9.07(a)(i).
"Initial Closing Date" means December 12, 1996.
"Insolvency Law" is defined in the definition of "Bankruptcy
Event".
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Issuance Date" is defined in Section 1.09.
"LIBOR Fixing Date" is defined in Section 1.02(a)(iii).
"Material Adverse Effect" means a materially adverse effect on (a)
the financial condition, business, assets, operations or prospects of
Borrower and its Subsidiaries, taken as a whole; (b) the ability of
Borrower to perform its obligations under any Agreement Document; or
(c) the validity or enforceability of, or collectibility of amounts
payable under, any Agreement Document.
"Material Subsidiary" means any Subsidiary of the Borrower that at
any time either: (a) owns or holds title to 5% or more of the
consolidated assets of the Borrower and its consolidated Subsidiaries,
or (b) accounts for 5% or more of the consolidated revenue of the
Borrower and its consolidated Subsidiaries, in each case as determined
in accordance with GAAP.
"Maturity Date" is defined in Section 1.02(a)(iv).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (i) is maintained for employees
of Borrower of any ERISA Affiliate and at least one Person other than
Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which Borrower or an ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Note" is defined in Section 1.01.
"Note Limit" at any time means $35,000,000, or, if less, the
product of the Facility Limit at such time times 1.4.
"Note Limit Excess" is defined in Section 1.05(b).
"Obligations" means all obligations of Borrower to BofA, any
assignee of BofA, any Indemnified Party and their respective
successors, permitted transferees and assigns, that arise under or in
connection with the Agreement Documents (including under any forward
contract entered into or deemed entered into pursuant to Section 1.10),
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become
due.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, limited liability company, joint venture, government or
any agency or political subdivision thereof or any other entity.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Purchase Date" is defined in Section 1.02(a).
"Purchase Price" means, with respect to each Note, the aggregate
of the amounts designated as the "Purchase Price" to be paid by BofA on
the Purchase Date applicable to such Note as specified in all
Supplements.
"Receivable" means any right to payment from a Person, arising
from any source whatsoever, which right is owned by the Borrower or any
of its Subsidiaries, and shall include all rights of the Borrower to
payment by any of its Subsidiaries.
"Receivables Transfer Agreement" means the Multicurrency
Receivables Transfer Agreement dated as of January 29, 1996, between
Borrower and BofA, as from time to time amended and supplemented.
"Reduced Purchase Price" is defined in Section 1.03(c).
"Reference Rate" means a fluctuating of interest per annum as
shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest most recently announced from time
to time by BofA in San Francisco, California, as its "reference
rate", which is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans that may be priced at, above or below such
announced rate; and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Regulatory Change" means, relative to any Affected Party, (a)
any change in (or the adoption, implementation, phase-in or
commencement of effectiveness of) any (i) United States federal or
state law or foreign law applicable to such Affected Party; (ii)
regulation, interpretation, directive, requirement or request (whether
or not having the force of law) applicable to such Affected Party of
(A) any court or Governmental Authority charged with the interpretation
or administration of any law referred to in clause (a)(i) or of (B) any
fiscal, monetary or other authority having jurisdiction over such
Affected Party; or (iii) GAAP or regulatory accounting principles
applicable to such Affected Party and affecting the application to such
Affected Party of any law, regulation, interpretation, directive,
requirement or request referred to in clause (a)(i) or (a)(ii) above;
or (b) any change in the application to such Affected Party of any
existing law, regulation, interpretation, directive, requirement,
request or accounting principles referred to in clause (a) above.
"Required Credit Quality" is defined in Section 6.01(h)(ii).
"Required Dollar Equivalent Receivables Amount" is defined in
Section 1.02(d).
"Required Foreign Currency Amount" is defined in
Section 1.02(b)(i)(B).
"Responsible Officer" means, with respect to any certificate,
report or notice to be delivered or given hereunder, unless the context
otherwise requires, the president, chief executive officer, chief
financial officer, treasurer or assistant treasurer of any Person, and,
in addition, in respect of Borrower, the Director of Treasury
Operations of Borrower.
"S&P" means Standard & Poor's Ratings Services.
"Scheduled Termination Date" is defined in Section 1.07(a).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of
Borrower or an ERISA Affiliate and no Person other than Borrower and
its ERISA Affiliates or (ii) was so maintained and in respect of which
Borrower or an ERISA Affiliate could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" means, with respect to any Person, any other Person
of which such Person owns, directly or indirectly, more than 50% of the
outstanding capital stock or other equity interests (as applicable)
having ordinary voting power for the election of directors or
equivalent management personnel of such other Person.
"Supplement" is defined in Section 1.02(b)(i).
"Surviving Entity" is defined in Section 7.02(e).
"Taxes" is defined in Section 3.05.
"Termination Date" is defined in Section 1.07(a).
"Termination Event" is defined in Section 7.01.
"Transferred Receivables" has the meaning specified in the
Receivables Transfer Agreement.
"Unmatured Termination Event" means any event which, with the
giving of notice or lapse of time, or both, would become a Termination
Event.
"Unpaid Balance" of any Receivable means at any time the unpaid
amount thereof as shown on the books and records of Borrower,
calculated in accordance with GAAP and net of any applicable reserves
on Borrower's or the applicable Person's books and records.
"Withdrawal Liability" has the meaning given to such term under
Part I of Subtitle E of Title IV of ERISA.
SCHEDULE II
-----------
to Contingent Multicurrency Note Purchase Commitment Agreement
DETERMINATION DATES
December 27, 1996
January 24, 1997
February 21, 1997
March 21, 1997
April 25, 1997
May 23, 1997
June 20, 1997
July 25, 1997
August 22, 1997
September 19, 1997
October 24, 1997
November 21, 1997
December 26, 1997
EXHIBIT 1.01
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF
PROMISSORY NOTE
---------------
,
FOR VALUE RECEIVED, the undersigned, STORAGE TECHNOLOGY
CORPORATION ("Borrower"), by this promissory note (this "Note"), hereby
unconditionally promises to pay to the order of Bank of America
National Trust and Savings Association ("BofA"), on (the
"Maturity Date"): (a) the principal amounts, in the specified
currencies, identified on Schedule I hereto. Borrower further promises
to pay interest on this Note from the date hereof until paid in full at
the rates, and calculated in the manner, provided in the Contingent
Multicurrency Note Purchase Commitment Agreement, dated as of December
12, 1996 (as amended, supplemented or otherwise modified from time to
time, the "Agreement"), among Borrower and BofA.
This Note is subject in all respects to all terms of the
Agreement. Terms defined in the Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note
shall be governed by, and construed and interpreted in accordance with,
the laws of California (without regard to its conflict of laws
provisions).
STORAGE TECHNOLOGY CORPORATION
By:
Name:
Title:
SCHEDULE I
TO PROMISSORY NOTE
FOREIGN CURRENCY PRINCIPAL AMOUNTS
----------------------------------
Japanese Yen
French Francs
German Marks
Italian Lira
Spanish Pesetas
UK Pounds Sterling
Belgian Francs
Swiss Francs
Dutch Guilders
Canadian Dollars
Australian Dollars
Swedish Krona
Norwegian Krone
Danish Krone
Finnish Markka
Austrian Schillings
Mexican Peso
Singapore Dollars
Malaysian Ringgit
[OTHER CURRENCIES, INCLUDING U.S. DOLLARS, AS AGREED BY
BORROWER AND BOFA MAY BE ADDED]
EXHIBIT 1.02(B)
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF
SUPPLEMENT
----------
THIS SUPPLEMENT (this "Supplement"), dated , 199 , is
between STORAGE TECHNOLOGY CORPORATION, as borrower ("Borrower"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as lender
("BofA").
RECITALS
A. Borrower and BofA have entered into the Contingent
Multicurrency Note Purchase Commitment Agreement, dated as of December
12, 1996 (as heretofore or hereafter amended, supplemented or otherwise
modified from time to time and in effect, the "Agreement"), pursuant to
which Borrower agrees to issue and sell to BofA, and BofA agrees to
purchase from Borrower, promissory notes from time to time.
B. Borrower and BofA wish to designate the Purchase Dates and the
Required Foreign Currency Amounts, Allocated Purchase Price Amounts and
total Purchase Prices applicable thereto set forth in Annex I.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein and in the Agreement contained, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms by the
Agreement.
Section 2. Continuing Representations and Warranties. Borrower
represents and warrants to BofA that: (a) all of its representations
and warranties contained in Section 5.01 of the Agreement are true and
correct on and as of the date of this Supplement as though made on and
as of such date, (b) no event exists that constitutes a Termination
Event or an Unmatured Termination Event, and (c) all certifications of
Borrower set forth in Section 1.02(c) of the Agreement are true and
correct on the date hereof.
Section 3. Purchase Dates, etc. The Purchase Dates shown on
Annex I are hereby designated as Purchase Dates under the Agreement.
The Required Foreign Currency Amounts, Allocated Purchase Price Amounts
and total Purchase Prices set forth on Annex I shall be applicable to
such Purchase Dates.
Section 4. Warranty as to Delivery. Borrower hereby warrants to
BofA that it has no reason to believe that it and its subsidiaries
taken as a whole will not own Receivables (excluding Transferred
Receivables) having an aggregate Unpaid Balance at least equal to the
Required Dollar Equivalent Receivables Amount on each Purchase Date
designated in Annex I.
IN WITNESS WHEREOF, Borrower and BofA have caused this Supplement
to be executed by their respective officers thereunto duly authorized,
on the date first above written.
STORAGE TECHNOLOGY CORPORATION
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:
Title:
ANNEX I
TO SUPPLEMENT
ALLOCATED PURCHASE
PRICE AMOUNT
NOTE REQUIRED FOREIGN APPLICABLE TO NOTE
PURCHASE DATE */ CURRENCY AMOUNTS */ PURCHASE DATE */
-------------- ----------------- ------------------
Japanese Yen
French Francs
German Marks
Italian Lira
Spanish Pesetas
UK Pounds Sterling
Belgian Francs
Swiss Francs
Dutch Guilders
Canadian Dollars
Australian Dollars
Swedish Krona
Norwegian Krone
Danish Krone
Finnish Markka
Austrian Schillings
Mexican Peso
Singapore Dollars
Malaysian Ringgit
[OTHER CURRENCIES, INCLUDING U.S. DOLLARS, MAY BE ADDED
OR SUBSTITUTED BY AMENDMENT BY AGREEMENT OF THE PARTIES]
Total US$ Purchase $
Price Applicable to
Purchase Date */
ALLOCATED PURCHASE
NOTE PRICE AMOUNT
PURCHASE REQUIRED FOREIGN APPLICABLE TO NOTE
DATE */ CURRENCY AMOUNTS */ PURCHASE DATE */
------ ------------------ -----------------
Japanese Yen
French Francs
German Marks
Italian Lira
Spanish Pesetas
UK Pounds Sterling
Belgian Francs
Swiss Francs
Dutch Guilders
Canadian Dollars
Australian Dollars
Swedish Krona
Norwegian Krone
Danish Krone
Finnish Markka
Austrian Schillings
Mexican Peso
Singapore Dollars
Malaysian Ringgit
[OTHER CURRENCIES, INCLUDING U.S. DOLLARS, MAY BE ADDED
OR SUBSTITUTED BY AMENDMENT, BY AGREEMENT OF THE
PARTIES]
Total US$ Purchase $
Price Applicable to
Purchase Date */
*/ To be completed for each Purchase Date. Attach additional pages of
Annex I if necessary.
EXHIBIT 1.02(f)
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF
DEFICI
ENCY CERTIFICATE
, 000
Xxxx xx Xxxxxxx National Trust
and Savings Association
Attention:
Re: Deficiency Certificate
Ladies and Gentlemen:
Reference is hereby made to the Contingent Multicurrency Note
Purchase Commitment Agreement, dated as of December 12, 1996 (as
heretofore or hereafter amended, supplemented or otherwise modified
from time to time and in effect, the "Agreement"), between you ("BofA")
and Storage Technology Corporation ("Borrower"). Capitalized terms
used but not otherwise defined herein shall have the meanings assigned
to such terms by the Agreement.
The undersigned is the [chief financial officer] [treasurer]
[assistant treasurer] [Delete as appropriate] of Borrower. Pursuant to
Section 1.02(f)(i) of the Agreement, the undersigned certifies to BofA
that the Dollar Equivalent (calculated at the exchange rates required
by the Agreement) of the aggregate Unpaid Balance of all Receivables
(excluding Transferred Receivables) that will be owned by Borrower and
its Subsidiaries taken as a whole on the , Purchase Date
will be less than the Required Dollar Equivalent Receivables Amount for
such Purchase Date.
STORAGE TECHNOLOGY CORPORATION
By:
Name:
Title:
EXHIBIT 1.07(c)
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF AMENDMENT TO CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of , 199 , is
made to the Contingent Multicurrency Note Purchase Commitment
Agreement, dated as of December 12, 1996 (as heretofore or hereafter
amended, modified or supplemented from time to time and in effect, the
"Agreement"), between Storage Technology Corporation ("Borrower") and
Bank of America National Trust and Savings Association ("BofA").
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms by the Agreement.
WHEREAS, Borrower and BofA desire to amend and supplement the
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO AGREEMENT
[DELETE/COMPLETE AS APPROPRIATE]
[Section 1.1 Amendment to Definition of "Scheduled Termination
Date". Section 1.07(a) of the Agreement is hereby amended to change the
Scheduled Termination Date set forth therein to , .]
[SECTION 1.1] [SECTION 1.2] [AMENDMENT TO SUPPLEMENT. ANNEX 1 TO
THE SUPPLEMENT DATED , TO THE AGREEMENT IS
AMENDED TO INSERT IN ITS PLACE ANNEX 1 HERETO.]
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. Borrower hereby
represents and warrants to BofA that:
(a) Representations and Warranties. The representations and
warranties of Borrower contained in the Agreement are true and
correct on and as of the date of this Amendment as though made on
and as of such date, and
(b) No Termination Event. Both before and after giving
effect to this Amendment, no event shall exist that constitutes a
Termination Event or an Unmatured Termination Event.
ARTICLE III
MISCELLANEOUS
Section 3.1 Agreement Document Pursuant to Agreement. This
Amendment is an Agreement Document executed pursuant to the Agreement
and shall be construed, administered and applied in accordance with all
of the terms and provisions of the Agreement.
Section 3.2 Successors, Transferees and Assigns. This Amendment
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, transferees and assigns.
Section 3.3 Execution in Counterparts. This Amendment may be
executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall be taken
together as one agreement.
Section 3.4 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT
MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS PRINCIPLES OF
CONFLICTS OF LAWS.
Section 3.5 Reaffirmation of Agreement. As amended and
supplemented by this Amendment, the Agreement remains in full force and
effect and is hereby reaffirmed, ratified and confirmed in all
respects. From and after the date hereof, all references to the
Agreement in any agreement, instrument or document shall be references
to the Agreement as amended and supplemented hereby.
Section 3.6 Headings. The various captions in this Amendment are
provided solely for convenience of reference and shall not affect the
meaning or interpretation of any provision of this Amendment.
Section 3.7 Complete Agreement. The Agreement (including this
Amendment and the Exhibits and Schedules to the Agreement and this
Amendment) and the other Agreement Documents contain the entire
understanding of the parties with respect to the transactions
contemplated hereby and thereby and supersedes all prior arrangements
or understandings with respect thereto.
Section 3.8 Severability. Whenever possible, each provision of
this Amendment will be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this Amendment
is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Amendment,
except to the extent that such prohibition or invalidity would
constitute a material change in the terms of this Amendment taken as a
whole.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
STORAGE TECHNOLOGY CORPORATION
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Name:
Title:
ANNEX 1 TO
AMENDMENT
[COMPLETE AND ATTACH AS APPROPRIATE]
ANNEX 1 TO THE SUPPLEMENT DATED , IS
AMENDED TO INSERT THE FOLLOWING REVISED ANNEX 1 IN ITS PLACE:
[INSERT REVISED ANNEX]
EXHIBIT 4.02(b)
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF OFFICER'S CERTIFICATE ON PURCHASE DATE
, 000
Xxxx xx Xxxxxxx National Trust
and Savings Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xx Xxxxx
Ladies and Gentlemen:
Reference is hereby made to the Contingent Multicurrency Note
Purchase Commitment Agreement, dated as of December 12, 1996 (as
heretofore or hereafter amended, supplemented or otherwise modified
from time to time and in effect, the "Agreement"), between you ("BofA")
and the undersigned ("Borrower"). Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms
by the Agreement.
The undersigned is the [chief financial officer] [treasurer]
[assistant treasurer] of Borrower.
To induce you to purchase the Note on , (the
"Issuance Date"), and provide the Purchase Price or Reduced Purchase
Price therefor, on the Issuance Date, the undersigned hereby certifies
to you that:
(a) the representations and warranties contained in
Section 5.01 of the Agreement are correct on and as of the date
hereof as though made on and as of such day,
(b) no Termination Event or Unmatured Termination Event
exists or will result from such purchase of a Note,
(c) after giving effect to such purchase of a Note, the
Aggregate Purchase Price will not exceed the Facility Limit,
(d) the Termination Date has not occurred, and
(e) the Dollar Equivalent Principal Balance of such Note does
not exceed the Note Limit, and any Note Limit Excess which is
payable on the Issuance Date pursuant to Section 1.05(b) of the
Agreement will be paid in full on such date.
STORAGE TECHNOLOGY CORPORATION
By:
Name:
Title:
EXHIBIT 5.01(d)
TO CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
SCHEDULE OF LITIGATION
----------------------
EXHIBIT 6.01(g)(vii)
to Contingent Multicurrency Note Purchase Commitment Agreement
FORM OF
COMPLIANCE CERTIFICATE
----------------------
To: Bank of America National Trust and
Savings Association
0000 Xxxxxx Xxxxxx, 00xx Xxx.
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx XxXxxxx
Re: Storage Technology Corporation
Ladies and Gentlemen:
This Compliance Certificate is made and delivered pursuant to
Section 6.01(g)(vii) of the Contingent Multicurrency Note Purchase
Commitment Agreement, dated as of December 12, 1996 (as amended,
modified, supplemented, renewed or extended from time to time, the
"Agreement"), between Storage Technology Corporation and Bank of
America National Trust and Savings Association, and reference is made
thereto for full particulars of the matters described herein. All
capitalized terms used in this Compliance Certificate and not otherwise
defined herein shall have the meanings assigned to such terms in the
Agreement. This Compliance Certificate relates to the fiscal quarter
ending , .
The Borrower hereby certifies that the information set forth
on Schedule 1 hereto (and on any additional schedules hereto setting
forth further supporting detail) is true, accurate and complete as of
the end of such accounting period.
The Borrower further certifies that as of the date hereof no
Termination Event or Unmatured Termination Event exists, except as may
be set forth in a separate attachment hereto describing in detail the
nature of each condition or event constituting an exception to the
foregoing statements, the period during which it has existed and the
action which the Borrower is taking or proposes to take with respect to
each such condition or event.
IN WITNESS WHEREOF, the undersigned has signed this
Compliance Certificate this day of , .
STORAGE TECHNOLOGY CORPORATION
Name:
Title:
SCHEDULE 1
to the Compliance Certificate
Dated: , .
For the fiscal quarter ended , .
1. Consolidated Net Income
The Consolidated Net Income of Borrower and its Subsidiaries for
the four consecutive fiscal quarters ending with the fiscal quarter set
forth above, was US $ .
2. Free Cash Equivalent Investment Amount [TO BE COMPLETED ONLY IF
BORROWER IS IN "CASH EQUIVALENT INVESTMENT STATUS"]
The Free Cash Equivalent Investment Amount of the Borrower and its
Subsidiaries as of the last day of the fiscal quarter set forth above
was US $ .
