Exhibit 10.22
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AMENDED AND RESTATED
THREE-YEAR LOAN AGREEMENT
DATED AS OF JULY 14, 2003
AMONG
JABIL CIRCUIT, INC.,
CERTAIN BORROWING SUBSIDIARIES,
THE BANKS FROM TIME TO TIME PARTY HERETO,
SUNTRUST BANK, AS CO-SYNDICATION AGENT,
THE ROYAL BANK OF SCOTLAND PLC, AS CO-SYNDICATION AGENT,
ABN AMRO BANK N.V., AS CO-DOCUMENTATION AGENT,
ROYAL BANK OF CANADA, AS CO-DOCUMENTATION AGENT,
AND
BANK ONE, NA
AS ADMINISTRATIVE AGENT
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BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER
AND
SOLE BOOKRUNNER
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS...................................................................... 1
1.1 Certain Definitions.............................................................. 1
1.2 Other Definitions; Rules of Construction......................................... 17
ARTICLE II. THE COMMITMENTS AND THE ADVANCES................................................. 17
2.1 Commitments of the Banks......................................................... 17
2.2 Termination and Reduction of Commitments......................................... 19
2.3 Fees............................................................................. 20
2.4 Disbursement of Advances......................................................... 22
2.5 Conditions for First Disbursement................................................ 23
2.6 Further Conditions for Disbursement.............................................. 25
2.7 Subsequent Elections as to Borrowings............................................ 26
2.8 Limitation of Requests and Elections............................................. 26
2.9 Minimum Amounts; Limitation on Number of Borrowings.............................. 27
2.10 Increase of Aggregate Commitment................................................. 27
ARTICLE III. PAYMENTS AND PREPAYMENTS......................................................... 27
3.1 Principal Payments............................................................... 27
3.2 Interest Payments................................................................ 29
3.3 Letter of Credit Reimbursement Payments.......................................... 30
3.4 Payment Method................................................................... 32
3.5 No Setoff or Deduction........................................................... 33
3.6 Payment on Non-Business Day; Payment Computations................................ 35
3.7 Additional Costs................................................................. 35
3.8 Illegality and Impossibility..................................................... 37
3.9 Indemnification.................................................................. 37
3.10 Right of Banks to Fund Through Other Offices..................................... 38
3.11 Replacement of Bank.............................................................. 38
3.12 Calculation of Amounts........................................................... 39
ARTICLE IV. REPRESENTATIONS AND WARRANTIES................................................... 39
4.1 Corporate Existence and Power.................................................... 39
4.2 Corporate Authority.............................................................. 39
4.3 Binding Effect................................................................... 40
4.4 Subsidiaries..................................................................... 40
4.5 Litigation....................................................................... 40
4.6 Financial Condition.............................................................. 40
4.7 Use of Loans..................................................................... 41
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4.8 Consents, Etc.................................................................... 41
4.9 Taxes............................................................................ 41
4.10 Title to Properties.............................................................. 41
4.11 ERISA............................................................................ 41
4.12 Disclosure....................................................................... 42
4.13 Environmental and Safety Matters................................................. 42
4.14 No Material Adverse Change....................................................... 43
4.15 No Default....................................................................... 43
4.16 No Burdensome Restrictions....................................................... 43
ARTICLE V. COVENANTS........................................................................ 43
5.1 Affirmative Covenants............................................................ 43
(a) Preservation of Corporate Existence, Etc................................ 43
(b) Compliance with Laws, Etc............................................... 44
(c) Maintenance of Properties; Insurance.................................... 44
(d) Reporting Requirements.................................................. 44
(e) Accounting; Access to Records, Books, Etc............................... 46
(f) Stamp Taxes............................................................. 46
(h) Further Assurances...................................................... 46
5.2 Negative Covenants............................................................... 47
(a) Fixed Charge Coverage Ratio............................................. 47
(b) Net Worth............................................................... 47
(c) Total Indebtedness to EBITDA............................................ 47
(d) Indebtedness............................................................ 47
(e) Liens................................................................... 49
(f) Merger; Acquisitions; Etc............................................... 51
(g) Disposition of Assets; Dissolution of Subsidiaries; Etc................. 52
(h) Nature of Business...................................................... 53
(i) Investments, Loans and Advances......................................... 53
(j) Transactions with Affiliates............................................ 54
(k) Sale and Leaseback Transactions......................................... 54
(m) Inconsistent Agreements................................................. 55
(n) Accounting Changes...................................................... 55
(o) Additional Covenants.................................................... 55
(q) Dividends and Other Restricted Payments................................. 56
ARTICLE VI. DEFAULT.......................................................................... 57
6.1 Events of Default................................................................ 57
6.2 Remedies......................................................................... 59
6.3 Distribution of Proceeds......................................................... 60
6.4 Letter of Credit Liabilities..................................................... 61
ARTICLE VII. THE AGENT AND THE BANKS.......................................................... 62
7.1 Appointment and Authorization.................................................... 62
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7.2 Agent and Affiliates............................................................. 62
7.3 Scope of Agent's Duties.......................................................... 62
7.4 Reliance by Agent................................................................ 62
7.5 Default.......................................................................... 63
7.6 Liability of Agent............................................................... 63
7.7 Nonreliance on Agent and Other Banks............................................. 63
7.8 Indemnification.................................................................. 63
7.9 Resignation of Agent............................................................. 64
7.10 Sharing of Payments.............................................................. 65
ARTICLE VIII. MISCELLANEOUS.................................................................... 65
8.1 Amendments, Etc.................................................................. 65
8.2 Notices.......................................................................... 66
8.3 No Waiver By Conduct; Remedies Cumulative........................................ 67
8.4 Reliance on and Survival of Various Provisions................................... 67
8.5 Expenses......................................................................... 67
8.6 Successors and Assigns; Additional Banks......................................... 70
8.7 Counterparts..................................................................... 73
8.8 Governing Law; Consent to Jurisdiction........................................... 73
8.9 Table of Contents and Headings................................................... 74
8.10 Construction of Certain Provisions............................................... 74
8.11 Integration and Severability..................................................... 74
8.12 Independence of Covenants........................................................ 74
8.13 Interest Rate Limitation......................................................... 74
8.14 Joint and Several Obligations; Contribution Rights; Savings Clause............... 75
8.15 Waivers, Etc..................................................................... 77
8.16 Waiver of Jury Trial............................................................. 77
8.17 Amendment and Restatement........................................................ 78
8.18 Tax Disclosure................................................................... 78
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EXHIBITS
Exhibit A New Borrowing Subsidiary Designation
Exhibit B Revolving Credit Note
Exhibit C Swing Line Note
Exhibit D Request for Advance
Exhibits E-1 and E-2 Opinions of Counsel
Exhibit F Request for Conversion
Exhibit G Assignment and Acceptance
SCHEDULES
Schedule 1.1 Borrowing Subsidiaries
Schedule 2.4 Existing Letters of Credit
Schedule 4.4 Subsidiaries
Schedule 4.5 Litigation
Schedule 4.13 Environmental and Safety Matters
Schedule 5.2(d) and (e) Indebtedness and Liens
Schedule 5.2(i) Investments, Loans and Advances
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THIS AMENDED AND RESTATED THREE-YEAR LOAN AGREEMENT, dated as of July
14, 2003 (as amended or modified from time to time, this "Agreement"), is
entered into by and among JABIL CIRCUIT, INC., a Delaware corporation (the
"Company"), each of the Domestic Subsidiaries of the Company designated in
Section 1.1 as a Borrowing Subsidiary (individually, a "Borrowing Subsidiary"
and collectively, the "Borrowing Subsidiaries") (the Company and the Borrowing
Subsidiaries, may each be referred to as a "Borrower" and, collectively, as the
"Borrowers"), the Banks party hereto from time to time, including, without
limitation, unless the context otherwise requires, the Issuing Bank
(collectively, the "Banks" and individually, a "Bank") and BANK ONE, NA (MAIN
OFFICE CHICAGO), a national banking association, as administrative agent for the
Banks (in such capacity, the "Agent").
INTRODUCTION
The Borrowers are party to a Three-Year Loan Agreement dated as of
November 29, 2002 (as amended or modified, the "Existing Credit Agreement") with
certain of the Banks and the Agent. The Borrowers wish to amend and restate the
Existing Credit Agreement pursuant to the terms of this Agreement. The Banks and
the Agent are willing to amend and restate the Existing Credit Agreement
pursuant to the terms and conditions set forth in this Agreement.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall
have the following respective meanings:
"Advance" shall mean any Loan and any Letter of Credit
Advance.
"Affiliate" when used with respect to any person shall mean
any other person which, directly or indirectly, controls or is controlled by or
is under common control with such person. For purposes of this definition
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), with respect to any person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities or by contract or otherwise.
"Aggregate Commitment" shall mean the aggregate of the
Commitments of all of the Banks, as reduced or modified from time to time
pursuant to the terms hereof, which Aggregate Commitment shall initially be
$400,000,000 as of the Effective Date.
"Agreed Currencies" shall mean (i) Dollars, and (ii) so long
as such currency remains an Eligible Currency, euro.
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"Applicable Rate" shall mean with respect to any Eurocurrency
Rate Loan, facility fee, usage fee, S/L/C fee, C/L/C fee, or Bank Guarantee fee,
as the case may be, the then applicable percentage set forth in the table below;
provided, that Rating Level V shall apply subsequent to the occurrence of an
Event of Default.
APPLICABLE RATE
Eurocurrency
Rate Loan/
S/L/C
C/L/C
Rating Bank
Level Guarantee Fee Facility Fee Usage Fee
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Rating 0.65% 0.225% 0.125%
Level I
Rating 0.875% 0.25% 0.125%
Level II
Rating 1.10% 0.275% 0.125%
Level III
Rating 1.325% 0.30% 0.125%
Level IV
Rating 1.35% 0.40% 0.25%
Level V
"Applicable Rate Rating" shall mean, on any date of
determination, the Company's general corporate rating, or at such time as the
Company has outstanding senior unsecured long-term Indebtedness, the rating of
such senior unsecured long-term Indebtedness (without giving effect to any
third-party credit enhancement) on such date by each of S&P and Xxxxx'x;
provided, however, that if such corporate rating or such Indebtedness, as
applicable, is split-rated by one rating (i.e., BBB+ by S&P and Baa2 by
Xxxxx'x), the higher rating (i.e., BBB+) shall apply; provided, further, that if
such corporate rating or such Indebtedness, as applicable, is split-rated by
more than one rating (i.e., BBB+ by S&P and Ba1 by Xxxxx'x), the rating one
level below the higher of the two ratings (i.e., BBB, which is one level below
BBB+) would apply.
"Bank Guarantee" shall mean each guarantee of monetary
obligations and any other similar instrument having an analogous effect to
letters of credit, issued by the Issuing Bank hereunder for the benefit of a
Borrower or one of its Affiliates for the purpose of guaranteeing obligations of
such Borrower or one of its Affiliates.
2
"Bank Obligations" shall mean all indebtedness, obligations
and liabilities, whether now owing or hereafter arising, direct, indirect,
contingent or otherwise, of the Borrowers to the Agent or any Bank, including
the Issuing Bank, pursuant to the Loan Documents.
"Bank One" shall mean Bank One, NA (Main Office Chicago), a
national banking association, in its individual capacity, and its successors.
"Borrowing" shall mean the aggregation of Advances made to any
Borrower, or continuations and conversions of such Advances, made pursuant to
Article II on a single date and for a single Interest Period. A Borrowing may be
referred to for purposes of this Agreement by reference to the type of Loan
comprising the relating Borrowing, e.g., a "Floating Rate Borrowing" if such
Loans are Floating Rate Loans or a "Eurocurrency Rate Borrowing" if such Loans
are Eurocurrency Rate Loans.
"Borrowing Subsidiary" shall mean each of the Domestic
Subsidiaries of the Company set forth on Schedule 1.1 on the Effective Date
together with any other Domestic Subsidiary of the Company upon request by the
Company to the Agent for designation of such Domestic Subsidiary as a "Borrowing
Subsidiary" hereunder, so long as (a) all of the Banks approve, in their
reasonable discretion, the designation of such Domestic Subsidiary as a
"Borrowing Subsidiary", (b) such new Borrowing Subsidiary delivers Notes
executed in favor of each Bank, all documents and items referred to in Section
2.5, all in form and substance satisfactory to the Banks, and (c) the Company
and such new Borrowing Subsidiary execute an agreement substantially in the form
of Exhibit A hereto.
"Business Day" shall mean:
(a) for the purpose of determining the rate described in
clause (b) of the definition of Eurocurrency Rate, a day other than a Saturday
or Sunday on which banks are open for the transaction of domestic and foreign
exchange business in London, England;
(b) for the purpose of any payment to be made in Dollars,
a day other than a Saturday or Sunday on which banks are open in Chicago,
Illinois for the conduct of substantially all of their commercial lending
activities, including transacting domestic and foreign exchange business, making
interbank wire transfers on the Fedwire system, and dealings in Dollars in the
London interbank markets; and
(c) for any other purpose, means a day (i) other than a
Saturday or Sunday on which banks are open in Chicago, Illinois for the conduct
of substantially all of their commercial lending activities, including
transacting domestic and foreign exchange business, and making interbank wire
transfers on the Fedwire system, and (ii) with respect to borrowings, payment or
rate selection of Loans denominated in euro, a day on which such clearing system
as is determined by Agent to be suitable for clearing or settlement of euro is
open for business.
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"Capital Expenditures" shall mean, for any period, the
additions to property, plant and equipment and other capital expenditures of the
Company and its Subsidiaries for such period as the same are (or should be) set
forth, in accordance with Generally Accepted Accounting Principles, in
consolidated financial statements of the Company and its Subsidiaries for such
period.
"Capital Lease" of any person shall mean any lease which, in
accordance with Generally Accepted Accounting Principles, is capitalized on the
books of such person.
"Capital Stock" shall mean (i) in the case of any corporation,
all capital stock (whether common, preferred or any other type) and any
securities exchangeable for or convertible into capital stock and any warrants,
rights or other options to purchase or otherwise acquire capital stock or such
securities or any other form of equity securities, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (iii) in
the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distribution of assets of, the issuing Person.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder.
"C/L/C" shall mean any commercial letter of credit issued by
the Issuing Bank hereunder.
"Commitment" shall mean, with respect to each Bank, the
commitment of each such Bank to make Loans and to participate in Letter of
Credit Advances made through the Issuing Bank pursuant to Section 2.1(a) and
(b), in amounts not exceeding in aggregate principal amount outstanding at any
time the respective commitment amount for each such Bank set forth next to the
name of each such Bank in the signature pages hereof or in its Assignment and
Acceptance hereto (if applicable), as such amounts may be modified in accordance
with assignments permitted under Section 9.6 or reduced from time to time
pursuant to Section 2.2.
"Consolidated" or "consolidated" shall mean, when used with
reference to any financial term in this Agreement, the aggregate for the Company
and its consolidated Subsidiaries of the amounts signified by such term for all
such persons determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles.
"Contingent Liabilities" of any person shall mean, as of any
date, all obligations of such person or of others for which such person is
contingently liable, as obligor, guarantor, surety or in any other capacity, or
in respect of which obligations such person assures a creditor against loss or
agrees to take any action to prevent any such loss (other than endorsements of
negotiable instruments for collection in the ordinary course of business),
including without limitation all reimbursement obligations
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of such person in respect of any letters of credit, surety bonds or similar
obligations and all obligations of such person to advance funds to, or to
purchase assets, property or services from, any other person in order to
maintain the financial condition of such other person.
"Contractual Obligation" shall mean, as to any person, any
material provision of any security issued by such person or of any agreement,
instrument or other undertaking to which such person is a party or by which it
or any of its property is bound.
"Default" shall mean any of the events or conditions described
in Section 6.1 which might become an Event of Default with notice or lapse of
time or both.
"Defaulting Bank" means any Bank that fails to make available
to the Agent such Bank's Loans required to be made hereunder or shall not have
made a payment required to be made to the Agent hereunder. Once a Bank becomes a
Defaulting Bank, such Bank shall continue as a Defaulting Bank until such time
as such Defaulting Bank makes available to the Agent, the amount of such
Defaulting Bank's Loans and all other amounts required to be paid to the Agent
pursuant to this Agreement.
"Dollar Amount" of any currency at any date shall mean (i) the
amount of such currency if such currency is Dollars or (ii) the Equivalent
Amount of Dollars if such currency is any currency other than Dollars.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of any
Borrower incorporated or formed in any State of the United States or any
political subdivision of any such State.
"EBIT" shall mean, with respect to any person, for any period,
the sum of (a) Net Income or loss plus (b) all amounts deducted in determining
such Net Income or loss on account of (i) all consolidated interest expense and
(ii) taxes based on or measured by income, all as determined in accordance with
Generally Accepted Accounting Principles.
"EBITDA" shall mean, with respect to any person, for any
period, EBIT for such period plus, to the extent deducted in determining such
EBIT, depreciation and positive amortization expense, plus (or minus) up to
$85,000,000 in the aggregate at any time of extraordinary non-cash or
nonrecurring non-cash charges and losses (or gains), plus Permitted OEM Cash
Charges, and minus Permitted OEM Cash Payments, all as determined in accordance
with Generally Accepted Accounting Principles; provided, however, that in
connection with Permitted OEM Cash Payments, if any Permitted OEM Cash Payment
is recognized or otherwise included in a calculation of EBITDA for a calculation
period, such Permitted OEM Cash Payment shall not be included in subsequent
calculation periods, notwithstanding the fact that Generally Accepted Accounting
Principles may require the amortization of such Permitted OEM Cash Payment for
accounting purposes over multiple calculation periods. For example, if the
5
Company receives a $25,000,000 Permitted OEM Cash Payment on February 1, 2004,
the entire amount of such Permitted OEM Cash Payment shall be included in the
EBITDA calculation for the quarter ending February 28, 2004. If, however, the
Company is required under Generally Accepted Accounting Principles to amortize
such $25,000,000 over four quarters, such that $6,250,000 will appear in the
Company's financial statements or balance sheet with respect to such Permitted
OEM Cash Payment for each of such four quarters, the Company shall not be
required to reflect $6,250,000 in its EBITDA calculations for the quarters
ending May 31, 2004, August 31, 2004, and November 30, 2004. Such amounts were
already captured in the February 2003 EBITDA calculation.
"Effective Date" shall mean July 14, 2003.
"Eligible Currency" shall mean any currency other than Dollars
with respect to which a certificate has not been delivered under Section 2.8 and
that is readily available, freely traded, in which deposits are customarily
offered to banks in the London interbank market, convertible into Dollars in the
international interbank market available to the Banks in such market and as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Banks at the request of the Company of any currency as an Eligible
Currency, currency control or other exchange regulations are imposed in the
country in which such currency is issued with the result that different types of
such currency are introduced, such country's currency is, in the determination
of the Agent, no longer readily available or freely traded or (ii) as to which,
in the determination of the Agent, an Equivalent Amount is not readily
calculable (each of clause (i) and (ii), a "Disqualifying Event"), then the
Agent shall promptly notify the Banks and the Company thereof, and such
country's currency shall no longer be an Eligible Currency until such time as
the Disqualifying Event(s) no longer exist, but in any event within five (5)
Business Days of receipt of such notice from the Agent, the Company shall repay
all Loans in such currency to which the Disqualifying Event applies or convert
such Loans into Loans in Dollars or another Eligible Currency, if any, subject
to the other terms contained in Articles II and III.
"Environmental Laws" at any date shall mean all provisions of
law, statute, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards which are applicable to any Borrower or
any Subsidiary and promulgated by the government of the United States of America
or any foreign government or by any state, province, municipality or other
political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"Equivalent Amount" of any currency at any date shall mean the
equivalent in Dollars of such currency, calculated on the basis of the
arithmetic mean of the buy and sell spot rates of exchange of the Agent or an
Affiliate of the Agent in the London interbank market (or other market where the
Agent's foreign exchange operations in respect of such currency are then being
conducted) for such other currency at or about 11:00 a.m. local time applicable
to the transaction in question on the date on
6
which such amount is to be determined, rounded up to the nearest amount of such
currency as determined by the Agent from time to time; provided, however, that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Agent or an Affiliate of the Agent may use any reasonable
method it deems appropriate (after consultation with the Borrower) to determine
such amount, and such determination shall be conclusive absent manifest error.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any person, any
trade or business (whether or not incorporated) which, together with such person
or any Subsidiary of such person, would be treated as a single employer under
Section 414 of the Code.
"euro" means the lawful currency of the member states of the
European Union which adopted the Council Regulation E.C. No. 1103/97 dated 17
June 1997 passed by the Council of the European Union, or, if different, the
then lawful currency of the member states of the European Union that participate
in the third stage of the Economic and Monetary Union.
"Eurocurrency Rate" shall mean, as applicable to any
Eurocurrency Interest Period, the per annum rate that is equal to the sum of:
(a) the Applicable Rate for Eurocurrency Rate Loans, plus
(b) the applicable British Bankers' Association Interest
Settlement Rate for deposits in the Agreed Currency as reported by any generally
recognized financial information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurocurrency Interest Period, and
having a maturity equal to such Eurocurrency Interest Period, as adjusted for
Reserves, and (ii) if no such British Bankers' Association Interest Settlement
Rate is available, the applicable Eurocurrency Rate for the relevant Interest
Period shall instead be the rate determined by the Agent to be the rate at which
Bank One offers to place deposits in the Agreed Currency with first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurocurrency Interest Period, in
the approximate amount of Bank One's relevant Eurocurrency Rate Loan and having
a maturity equal to such Eurocurrency Interest Period, as adjusted for Reserves.
"Eurocurrency Interest Period" shall mean, with respect to any
Eurocurrency Rate Loan, the period commencing on the day such Eurocurrency Rate
Loan is made, converted to or continued as a Eurocurrency Rate Loan and ending
on the date one, two, three or six months thereafter, as any Borrower may elect
under Section 2.4 or 2.7, and each subsequent period commencing on the last day
of the immediately preceding Eurocurrency Interest Period and ending on the date
one, two, three or six months thereafter, as a Borrower may elect under Section
2.4 or 2.7, provided, however, that (a) any Eurocurrency Interest Period which
commences on the
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last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month,
(b) each Eurocurrency Interest Period which would otherwise end on a day which
is not a Business Day shall end on the next succeeding Business Day or, if such
next succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day, and (c) no Eurocurrency Interest Period shall be
permitted which would end after the Termination Date.
"Eurocurrency Rate Loan" shall mean any Loan which bears
interest at the Eurocurrency Rate.
"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
"Existing Credit Agreement" is defined in the Introduction to
this Agreement.
"Federal Funds Rate" shall mean, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal Funds
transactions, with members of the Federal Reserve System arranged by Federal
Funds brokers, as published for such day by the Federal Reserve Bank of New
York, or if such rate is not so published for such day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by it.
"Fixed Charge Coverage Ratio" of any person shall mean, as of
any date, the ratio of (a) Consolidated EBITDA as calculated for the four most
recently ended consecutive fiscal quarters of the Company plus all payments
relating to operating leases of such person during such period to (b) all
consolidated interest expense during such period for such person, plus all
payments relating to operating leases of such person during such period.
"Floating Rate" shall mean, as of any date, the per annum rate
equal to the greater of (i) the Prime Rate in effect from time to time, or (ii)
the sum of the Federal Funds Rate in effect from time to time plus one-half of
one percent (1/2 of 1%) per annum; which Floating Rate shall change
simultaneously with any change in such Prime Rate or Federal Funds Rate, as the
case may be.
"Floating Rate Loan" shall mean any Loan which bears interest
at the Floating Rate.
"Foreign Affiliate Contingent Liabilities" shall mean, on any
date of determination, the aggregate Contingent Liabilities of the Company and
its Affiliates which arise in respect of amounts owing by their Foreign
Subsidiaries in connection with value added taxes, duties, customs, excise
taxes, franchises, licenses, rents, goods or services being provided to such
Foreign Subsidiaries by governmental entities or
8
suppliers, or other similar items which under Generally Accepted Accounting
Principles constitute operating expenses.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or
formed in any jurisdiction other than any State of the United States of America
or any political subdivision of any such State.
"Generally Accepted Accounting Principles" shall mean
Generally Accepted Accounting Principles as in effect in the United States of
America from time to time and applied on a basis consistent with that reflected
in the financial statements referred to in Section 4.6.
"Hazardous Materials" shall mean any material or substance:
(1) which is or becomes defined as a hazardous substance, pollutant, or
contaminant, pursuant to the Comprehensive Environmental Response Compensation
and Liability Act (42 USC Section 9601 et. seq.) as amended and regulations
promulgated under it; (2) containing gasoline, oil, diesel fuel or other
petroleum products; (3) which is or becomes defined as hazardous waste pursuant
to the Resource Conservation and Recovery Act (42 USC Section 6901 et. seq.) as
amended and regulations promulgated under it; (4) containing polychlorinated
biphenyls (PCBs); (5) containing asbestos; (6) which is radioactive; (7) the
presence of which requires investigation or remediation under any Environmental
Law; (8) which is or becomes defined or identified as a hazardous waste,
hazardous substance, hazardous or toxic chemical, pollutant, contaminant, or
biologically Hazardous Material under any Environmental Law.
"Indebtedness" of any person shall mean, without duplication
(i) indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, except for (a) trade accounts
payable arising in the ordinary course of business, and (b) obligations arising
under supply or consignment agreements, in each case with respect to clauses (a)
and (b) that are not more than 90 days past due or as are reasonably being
contested, (iv) obligations as lessee under leases which have been in accordance
with Generally Accepted Accounting Principles, recorded as Capital Leases, (v)
obligations to purchase property or services if payment is required regardless
of whether such property is delivered or services are performed (generally
called "take or pay" contracts), (vi) all Contingent Liabilities, including,
without limitation Foreign Affiliate Contingent Liabilities, (vii) liabilities
in respect of actual unfunded vested benefits under plans covered by Title IV of
ERISA, (viii) the aggregate principal amount of the financing provided to the
Company and its Subsidiaries under any agreement entered into as part of a
Permitted Receivables Transaction, (ix) any liability under any so-called
"synthetic lease" or "tax ownership operating lease" transaction, and (x) Net
Xxxx-to-Market Exposure under Rate Management Transactions.
"Interest Payment Date" shall mean (a) with respect to any
Eurocurrency Rate Loan, the last day of each Interest Period with respect to
such Eurocurrency Rate Loan and, in the case of any Interest Period exceeding
three months, those days that occur during such Interest Period at intervals of
three months after the first day of such
9
Interest Period, and (b) in all other cases, the last Business Day of each
August, November, February and May occurring after the date hereof, commencing
with the first such Business Day occurring after the date of this Agreement.
"Interest Period" shall mean any Eurocurrency Interest Period.
"Issuing Bank" shall mean Bank One, together with its
successors and assigns, and any other Bank hereafter designated as an "Issuing
Bank" upon the prior written agreement of the Company, the Agent and such Bank.
"Letter of Credit" shall mean a Bank Guarantee, S/L/C or C/L/C
having a stated expiry date or a date by which any draft drawn thereunder must
be presented not later than twelve months after the date of issuance (provided
that any Letter of Credit with a one-year tenor may provide for the renewal
thereof for additional one-year periods). Such Bank Guarantee, S/L/C or C/L/C
shall be issued by the Issuing Bank on behalf of the Banks for the account of
any Borrower under an application and related documentation acceptable to the
Issuing Bank. Such application and documentation shall require, among other
things, immediate reimbursement by such Borrower to the Issuing Bank in respect
of all drafts or other demands for payment honored thereunder and all reasonable
and customary expenses paid or incurred by the Issuing Bank relative thereto.
Notwithstanding anything to the contrary set forth in this definition, no Letter
of Credit may expire later than, and no draw may occur under a Letter of Credit
later than, the fifth Business Day before the Termination Date.
"Letter of Credit Advance" shall mean any issuance of a Letter
of Credit under Section 2.4 made pursuant to Section 2.1 in which each Bank
acquires a pro rata participation (based on such Bank's Commitment) pursuant to
Section 2.4(d).
"Letter of Credit Documents" shall have the meaning set forth
in Section 3.3(b).
"Lien" shall mean any pledge, assignment, deed of trust,
hypothecation, mortgage, security interest, conditional sale or title retaining
contract, or any other type of lien, charge, encumbrance or other similar claim
or right.
"Loan" shall mean any Revolving Credit Loan or any Swing Line
Loan, as the context may require.
"Loan Documents" shall mean this Agreement, the Notes, the
Letter of Credit Documents, and any other agreement, instrument or document
executed at any time in connection with this Agreement.
"Majority Banks" shall mean Banks holding not less than
fifty-one percent (51%) of the Commitments (or fifty-one percent (51%) of the
outstanding Advances if the Commitments have been terminated).
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or financial condition of the Company
and its Subsidiaries,
10
taken as a whole, (b) the ability of any Borrower to perform its obligations
under any Loan Document, or (c) the validity or enforceability of any Loan
Document or the rights or remedies of the Agent or the Banks under any Loan
Document.
"Multiemployer Plan" shall mean any "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" of any person shall mean, for any period, the net
income (after deduction for income and other taxes of such person determined by
reference to income or profits of such person) of such person for such period,
all as determined in accordance with Generally Accepted Accounting Principles.
"Net Xxxx-to-Market Exposure" of a Person shall mean, as of
any date of determination, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from Rate Management Transactions.
"Unrealized losses" means the fair market value of the cost to such Person of
replacing such Rate Management Transaction as of the date of determination
(assuming the Rate Management Transaction were to be terminated as of that
date), and "unrealized profits" means the fair market value of the gain to such
Person of replacing such Rate Management Transaction as of the date of
determination (assuming such Rate Management Transaction were to be terminated
as of that date).
"Net Worth" of any person shall mean, as of any date, the
amount of any capital stock, paid in capital and similar equity accounts plus
(or minus in the case of a deficit) the capital surplus and retained earnings of
such person and the amount of any foreign currency translation adjustment or
other income shown as a capital account of such person, all as determined under
Generally Accepted Accounting Principles.
"Notes" shall mean the Revolving Credit Notes and the Swing
Line Notes; "Note" shall mean any Revolving Credit Note or any Swing Line Note.
"Notional Pooling Accounts" shall mean those deposit accounts
of the Borrowers and their Subsidiaries operated and maintained outside of the
United States of America by ABN AMRO Bank N.V. or its successor in connection
with cross-border, multiple-currency cash pooling arrangements, including
overdraft facilities, by the Borrowers and their Subsidiaries.
"Overdue Rate" shall mean (a) in respect of principal of
Floating Rate Loans, a rate per annum that is equal to the sum of two percent
(2%) per annum plus the Floating Rate, (b) in respect of principal of
Eurocurrency Rate Loans or Swing Line Loans, a rate per annum that is equal to
the sum of two percent (2%) per annum plus the per annum rate in effect thereon
until the end of the then current Interest Period for such Loan and, thereafter,
a rate per annum that is equal to the sum of two percent (2%) per annum plus the
Floating Rate, and (c) in respect of other amounts payable by any Borrower
hereunder (other than interest), a per annum rate that is equal to the sum of
two percent (2%) per annum plus the Floating Rate.
11
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean Liens permitted by Section 5.2(e)
hereof.
"Permitted OEM Cash Charges" shall mean, with respect to the
Company or any Affiliate thereof, cash charges of the Company or an Affiliate
thereof arising in connection with a Permitted OEM Divestiture Purchase for
which the Company or such Affiliate, pursuant to the agreements evidencing such
Permitted OEM Divestiture Purchase (as such agreements may be amended or
supplemented), shall be reimbursed by the original equipment manufacturer acting
as seller under such Permitted OEM Divestiture Purchase; provided, however, that
such cash charges shall not constitute Permitted OEM Cash Charges if the Company
or its Affiliate, as applicable, shall not be required to be reimbursed for such
cash charges pursuant to the terms of the agreements (as amended or
supplemented) evidencing such Permitted OEM Divestiture Purchase; provided,
further, that no charge shall constitute a Permitted OEM Cash Charge if the
reimbursement provisions set forth in the aforementioned agreements (as amended
or modified) are not in form and substance acceptable to the Agent.
"Permitted OEM Cash Payments" shall mean, with respect to the
Company or any Affiliate thereof, cash payments made by an original equipment
manufacturer to the Company or an Affiliate thereof in connection with a
Permitted OEM Divestiture Purchase where such payments are made as a result of,
and correspond with the amount of, Permitted OEM Cash Charges.
"Permitted OEM Divestiture Purchase" shall mean, whether
through the acquisition of Capital Stock or through the acquisition of assets,
the acquisition by the Company or any of its Subsidiaries, in one or a series of
transactions, of all or any substantial portion of a division, line of business
or separate facility of an original equipment manufacturer; provided, however,
that, in order for such acquisition to constitute a "Permitted OEM Divestiture
Purchase" (i) both before and after such acquisition, the Company shall be in
compliance with all financial covenants hereunder, (ii) the assets or Persons
holding such assets being acquired relate to a line of business substantially
similar to a line of business then engaged in by the Company or its
Subsidiaries, (iii) such acquisition is on terms and conditions no less
favorable to the purchaser than shall then be customary for acquisitions in the
electronics or high technology industries, and (iv) with respect to any
acquisition that satisfies the requirements of clauses (i) through (iii) and has
a purchase price or requires the remittance of aggregate consideration in excess
of $50,000,000, the Agent, in the reasonable exercise of its discretion, shall
have approved the terms and conditions of any such acquisition; provided,
further, that acquisitions satisfying the foregoing requirements shall be
subject to Section 5.2(q) instead of Sections 5.2(f) and 5.2(i).
"Permitted Receivables Transactions" shall mean, collectively,
(i) if an SPC is created in connection therewith, the creation of the SPC to
purchase accounts receivable generated by and owed to the Company or any
Subsidiary, (ii) the entry by one or more Receivables Sellers into one or more
receivables purchase agreements, including,
12
without limitation, factoring agreements and other similar agreements pursuant
to which receivables are sold at a discount, with Purchasers, pursuant to which
each Purchaser will, from time to time, purchase from such Receivables Sellers
accounts receivable (or undivided interests therein) generated by and owed to
the Company or any Subsidiary thereof, and (iii) the entry by such Receivables
Sellers into such ancillary agreements, documents and instruments as are
necessary or advisable in connection with such receivables purchase agreements,
provided that (x) the outstanding principal amount of the financing provided by
all Purchasers pursuant to all such receivables purchase agreements, including,
without limitation, factoring agreements and other similar agreements pursuant
to which receivables are sold at a discount, shall not exceed $500,000,000 in
the aggregate at any time and (y) the primary structural terms of each such
receivables purchase agreement, including without limitation, the amount of any
recourse to the Company or any of its Subsidiaries for uncollectible
receivables, shall be reasonably satisfactory to the Agent in each case.
"Person" or "person" shall include an individual, a
corporation, a limited liability company, an association, a partnership, a trust
or estate, a joint stock company, an unincorporated organization, a joint
venture, a trade or business (whether or not incorporated), a government
(foreign or domestic) and any agency or political subdivision thereof, or any
other entity.
"Plan" shall mean, with respect to any person, any pension
plan (other than a Multiemployer Plan) subject to Title IV of ERISA or to the
minimum funding standards of Section 412 of the Code which has been established
or maintained by such person, any Subsidiary of such person or any ERISA
Affiliate, or by any other person if such person, any Subsidiary of such person
or any ERISA Affiliate could have liability with respect to such pension plan.
"Prime Rate" shall mean the per annum rate announced by Bank
One or its parent from time to time as its "prime rate" (it being acknowledged
that such announced rate may not necessarily be the lowest rate charged by Bank
One or its parent to any of its customers) which Prime Rate shall change
simultaneously with any change in such announced rate.
"Prohibited Transaction" shall mean any non-exempt transaction
involving any Plan which is proscribed by Section 406 of ERISA or Section 4975
of the Code.
"Purchaser" shall mean a purchaser of accounts receivable from
one or more Receivables Sellers pursuant to a Permitted Receivables Transaction.
"Rate Management Obligations" of a Person shall mean any and
all obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all Rate Management Transactions, and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Rate Management
Transactions.
13
"Rate Management Transaction" shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
by a Borrower or a Subsidiary thereof which is a rate swap, basis swap, forward
rate transaction, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, or equity prices.
"Rating Level I" shall mean an Applicable Rate Rating of BBB+
or higher by S&P or Baa1 or higher by Xxxxx'x.
"Rating Level II" shall mean an Applicable Rate Rating of BBB
or higher by S&P or Baa2 or higher by Xxxxx'x and Rating Level I does not apply.
"Rating Level III" shall mean an Applicable Rate Rating of
BBB- or higher by S&P and Baa3 or higher by Xxxxx'x and neither Rating Level I
nor Rating Level II applies.
"Rating Level IV" shall mean an Applicable Rate Rating of (x)
BB+ or higher by S&P and Baa3 or higher by Xxxxx'x or (y) BBB- or higher by S&P
and Ba1 or higher by Xxxxx'x, and none of Rating Level I, Rating Level II, or
Rating Level III apply.
"Rating Level V" shall mean an Applicable Rate Rating of BB+
or lower by S&P and Ba1 or lower by Xxxxx'x and none of Rating Level I, Rating
Level II, Rating Level III, or Rating Level IV apply.
"Receivables Seller" shall mean any one of any SPC, the
Company, or a Subsidiary which is the seller of receivables in a Permitted
Receivables Transaction, and "Receivables Sellers" means all of such entities
collectively.
"Reportable Event" shall mean a reportable event as described
in Section 4043(b) of ERISA including those events as to which the thirty (30)
day notice period is waived under Part 2615 of the regulations promulgated by
the PBGC under ERISA.
"Requirement of Law" shall mean as to any person, the
certificate of incorporation and by-laws or other organizational or governing
documents of such person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such person or any of its property or to
which such person or any of its property is subject.
"Reserves" shall mean the maximum reserve requirement as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to "Eurocurrency liabilities" or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurocurrency Rate Loans is
14
determined or category of extensions of credit or other assets which includes
loans by a non-United States office of any Lender to United States residents.
"Revolving Credit Advance" shall mean any Revolving Credit
Loan and any Letter of Credit Advance.
"Revolving Credit Loan" shall mean any Borrowing under Section
2.4 evidenced by the Revolving Credit Notes and made pursuant to Section 2.1(a).
"Revolving Credit Note" shall mean any promissory note of any
Borrower evidencing the Revolving Credit Advances in substantially the form
annexed hereto as Exhibit B, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Senior Debt Securities" shall mean senior debt securities
from time to time issued under the Senior Indenture.
"Senior Indenture" shall mean the senior indenture to be
entered into between the Company and The Bank of New York, as trustee (or any
additional or successor trustee), substantially in the form filed as an exhibit
to the Company's registration statement on Form S-3 (File No. 333-91719), and
any amendment or restatement thereof or supplement thereto.
"Senior Trustee" shall mean the trustee at any time acting as
such under the Senior Indenture.
"S/L/C" shall mean any standby letter of credit issued by the
Issuing Bank hereunder.
"SPC" shall mean any special purpose corporation or other
legal entity created in connection with a Permitted Receivables Transaction and
which performs the function of purchasing receivables from the Company and/or
one or more Subsidiaries and selling them to a Purchaser.
"Subordinated Debt" of any person shall mean, as of any date,
that Indebtedness of such person for borrowed money which is expressly
subordinate and junior in right and priority of payment to the Advances and
other Indebtedness of such person to the Banks in manner and by agreement
satisfactory in form and substance to the Majority Banks.
"Subordinated Indenture" shall mean the Indenture (for
subordinated debt securities), dated as of April 24, 2001, entered into between
the Company and The Bank of New York, as trustee (or any additional or successor
trustee), and any amendment or restatement thereof or supplement thereto.
"Subsidiary" of any person shall mean any other person
(whether now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities or other ownership interests of
15
each class having ordinary voting power or analogous right (other than
securities or other ownership interests which have such power or right only by
reason of the happening of a contingency), at the time as of which any
determination is being made, are owned, beneficially and of record, by such
person or by one or more of the other Subsidiaries of such person or by any
combination thereof. Unless otherwise specified, reference to "Subsidiary" shall
mean a Subsidiary of the Company.
"Swing Line Bank" shall mean Bank One, together with its
successors and assigns, and any other Bank hereafter designated as a "Swing Line
Bank" upon the prior written agreement of the Company, the Agent and such Bank.
"Swing Line Facility" shall have the meaning specified in
Section 2.1(b).
"Swing Line Interest Period" shall mean, with respect to any
Swing Line Loan, the period commencing on the day such Swing Line Loan is made
and ending on the date agreed upon between the Borrower requesting such Loan and
the Swing Line Bank at the time such Swing Line Loan is made, provided no Swing
Line Interest Period which would end after the Termination Date shall be
permitted.
"Swing Line Loan" shall mean any borrowing under Section 2.4
evidenced by a Swing Line Note and made pursuant to Section 2.1(b).
"Swing Line Note" means any promissory note of any Borrower
payable to the order of the Swing Line Bank, in substantially the form annexed
hereto as Exhibit C, as amended or modified from time to time and together with
any promissory note or notes issued in exchange or replacement therefor.
"Swing Line Rate" shall mean, with respect to any Swing Line
Rate Loan, the rate per annum agreed upon between the Borrower requesting such
Loan and the Swing Line Bank at the time such Swing Line Rate Loan is made.
"Termination Date" shall mean the earlier to occur of (a) July
14, 2006 and (b) the date on which the Commitments shall be terminated pursuant
to Section 2.2 or 6.2.
"Total Indebtedness" of any person shall mean, as of any date,
all Indebtedness of such person for borrowed money, including without
limitation, all obligations under any Capital Lease and Subordinated Debt.
"Unfunded Benefit Liabilities" shall mean, with respect to any
Plan as of any date, the amount of the unfunded benefit liabilities determined
in accordance with Section 4001(a)(18) of ERISA.
"Wholly-Owned Subsidiary" for any Person means (i) any
Subsidiary all of the outstanding voting securities of which shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar
16
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
1.2 Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Banks", "Company", "Borrower", "Borrowers", "Borrowing
Subsidiary", "Borrowing Subsidiaries", and "this Agreement" shall have the
respective meanings ascribed thereto in the introductory paragraphs of this
Agreement. Such terms, together with the other terms defined in Section 1.1,
shall include both the singular and the plural forms thereof and shall be
construed accordingly. All computations required hereunder and all financial
terms used herein shall be made or construed in accordance with Generally
Accepted Accounting Principles unless such principles are inconsistent with the
express requirements of this Agreement provided that, if the Company notifies
the Agent that the Company wishes to amend any covenant in Article V to
eliminate the effect of any change in Generally Accepted Accounting Principles
in the operation of such covenant (or if the Agent notifies the Company that the
Majority Banks wish to amend Article V for such purpose), then the Borrowers'
compliance with such covenant shall be determined on the basis of Generally
Accepted Accounting Principles in effect immediately before the relevant change
in Generally Accepted Accounting Principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrowers and the Majority Banks. Use of the terms "herein", "hereof", and
"hereunder" shall be deemed references to this Agreement in its entirety and not
to the Section or clause in which such term appears. References to "Sections"
and "subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
ARTICLE II
THE COMMITMENTS AND THE ADVANCES
2.1 Commitments of the Banks.
(a) Revolving Credit Advances. Each Bank agrees, for
itself only, subject to the terms and conditions of this Agreement, to make
Revolving Credit Loans to the Borrowers in an Agreed Currency pursuant to
Section 2.4 and to participate in Letter of Credit Advances to the Borrowers
pursuant to Section 2.4, from time to time from and including the Effective Date
to but excluding the Termination Date, in an aggregate principal Dollar Amount
not to exceed the amount determined pursuant to Section 2.1(c). On the date of
each Advance, the aggregate principal Dollar Amount of all Advances, including
the Advances to be made or requested on such date, shall not exceed the
Aggregate Commitment. Notwithstanding anything to the contrary set forth in this
Agreement or the other Loan Documents, only the Company may request Loans
denominated in an Agreed Currency other than Dollars and the Banks shall only
extend Loans denominated in an Agreed Currency other than Dollars to the
Company. No other Borrower may request or receive Loans in an Agreed Currency
other than Dollars.
(b) Swing Line Loan. (i) Any Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, in its sole discretion
provided that the requirements of Section 2.6 are complied with by the Borrowers
at the time of such
17
request, make, Swing Line Loans in Dollars to any Borrower from time to time on
any Business Day during the period from the Effective Date until the Termination
Date in an aggregate principal Dollar Amount not to exceed at any date the
lesser of (A) $25,000,000 (the "Swing Line Facility") and (B) the aggregate of
the unused portions of the Commitments of the Banks as of such date. Each Bank's
Commitment shall be deemed utilized by an amount equal to such Bank's pro rata
share (based on such Bank's Commitment) of each Swing Line Loan for purposes of
determining the amount of Revolving Credit Advances required to be made by such
Bank, but no Bank's Commitment shall be deemed utilized for purposes of
determining commitment fees under Section 2.3(a)(i). Swing Line Loans shall bear
interest at the Floating Rate or at the Swing Line Rate, as elected by the
Borrower requesting such Loan pursuant to Section 2.4. Within the limits of the
Swing Line Facility, so long as the Swing Line Bank, in its sole discretion,
elects to make Swing Line Loans, the Borrowers may borrow and reborrow under
this Section 2.1(b)(i).
(ii) The Swing Line Bank may at any time in its
sole and absolute discretion require that any Swing Line Loan be refunded by a
Revolving Credit Loan which is a Floating Rate Loan, and upon written notice
thereof by the Swing Line Bank to the Agent, the Banks and the applicable
Borrower for any such Swing Line Loan, such Borrower shall be deemed to have
requested a Revolving Credit Loan for the account of such Borrower for any such
Swing Line Loan bearing interest at the Floating Rate, as the Floating Rate may
change from time to time, in an amount equal to the amount of any such Swing
Line Loan, and such Revolving Credit Loan shall be made to refund such Swing
Line Loan. Each Bank shall be absolutely and unconditionally obligated to fund
its pro rata share (based on such Bank's Commitment) of such Revolving Credit
Loan or, if applicable, purchase a participating interest in the Swing Line
Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected
by any circumstance, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Bank or any Borrower
or any of their respective Subsidiaries may have against the Agent, any Borrower
or any of their respective Subsidiaries or anyone else for any reason
whatsoever; (B) the occurrence or continuance of a Default or an Event of
Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition
(financial or otherwise) of any Borrower or any of its Subsidiaries; (D) any
breach of this Agreement by any Borrower or any of their respective Subsidiaries
or any other Bank; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing (including any Borrower's failure
to satisfy any conditions contained in Article II or any other provision of this
Agreement).
(iii) If, for any reason (including without
limitation as a result of the occurrence of an Event of Default with respect to
any Borrower pursuant to Section 6.1(i)), Revolving Credit Loans may not be made
by the Banks as described in Section 2.1(b)(ii), then (A) each Borrower agrees
that each Swing Line Loan not paid pursuant to Section 2.1(b)(ii) shall bear
interest, payable on demand to the Agent, at the Overdue Rate then applicable to
Floating Rate Loans, and (B) effective on the date each such Revolving Credit
Loan would otherwise have been made, each Bank severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of
18
any Default or Event of Default, in lieu of deemed disbursement of loans, to the
extent of such Bank's Commitment, purchase a participating interest in the Swing
Line Loans by paying its participation percentage thereof. Each Bank will
immediately transfer to the Agent, in same day funds, the amount of its
participation. Each Bank shall share on a pro rata basis (calculated by
reference to its Commitment) in any interest which accrues thereon and in all
repayments thereof. If and to the extent that any Bank shall not have so made
the amount of such participating interest available to the Agent, such Bank and
the Borrower of such Swing Line Loan severally agree to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Agent until the date such amount is paid to the
Agent, at (x) in the case of any Borrower, at the interest rate specified above
and (y) in the case of such Bank, the Federal Funds Rate.
(c) Limitation on Amount of Advances. Notwithstanding
anything in this Agreement to the contrary, but subject to Section 3.1(c) and
the mandatory prepayment provisions thereof, (i) the aggregate principal Dollar
Amount of the Revolving Credit Advances made by any Bank at any time outstanding
shall not exceed the amount of its respective Commitment as of the date any such
Advance is made, and (ii) the aggregate principal Dollar Amount of Revolving
Credit Advances and Swing Line Loans outstanding to the Borrowers shall not
exceed the Aggregate Commitment; provided, however, that the aggregate principal
Dollar Amount of Letter of Credit Advances outstanding at any time shall not
exceed $40,000,000; provided, further, that mandatory prepayments required to
cause the aggregate principal Dollar Amount of Revolving Credit Advances and
Swing Line Loans to equal or be less than the Aggregate Commitment shall be made
in accordance with Section 3.1(c).
2.2 Termination and Reduction of Commitments.
(a) (i) The Company shall have the right to
terminate or reduce the Aggregate Commitment at any time and from time to time
at its option, provided that (A) the Company shall give five days' prior written
notice of such termination or reduction to the Agent (with sufficient executed
copies for each Bank) specifying the amount and effective date thereof, (B) each
partial reduction of the Aggregate Commitment shall be in a minimum amount of
$5,000,000 and in integral multiples of $5,000,000 and shall reduce the
Commitments of all of the Banks proportionately in accordance with the
respective Commitments of such Banks, (C) no such termination or reduction shall
be permitted with respect to any portion of the Aggregate Commitment as to which
a request for a Borrowing pursuant to Section 2.4 is then pending and (D) the
Aggregate Commitment may not be terminated if any Advances are then outstanding
and may not be reduced below the aggregate principal amount of Advances then
outstanding.
(ii) The Commitments or any portion thereof
terminated or reduced pursuant to this Section 2.2(a), whether optional or
mandatory, may not be reinstated. The Borrowers shall immediately prepay the
Loans to the extent they exceed the reduced Aggregate Commitment pursuant
hereto, and any reduction hereunder shall reduce the Commitment amount of each
Bank proportionately in accordance with the respective
19
Commitments of such Banks. In addition to the foregoing, the Aggregate
Commitment may be increased or decreased, as applicable, pursuant to Section
2.11 and Section 3.1(d).
(b) For purposes of this Agreement, a Letter of Credit
Advance (i) shall be deemed outstanding in an amount equal to the sum of the
maximum amount available to be drawn under the related Letter of Credit on or
after the date of determination and on or before the stated expiry date thereof
plus the amount of any draws under such Letter of Credit that have not been
reimbursed by a Revolving Credit Loan as provided in Section 3.3 and (ii) shall
be deemed outstanding at all times on and before such stated expiry date or such
earlier date on which all amounts available to be drawn under such Letter of
Credit have been fully drawn, and thereafter until all related reimbursement
obligations have been paid by a Revolving Credit Loan or otherwise. Upon each
payment made by the Agent in respect of any draft or other demand for payment
under any Letter of Credit, the amount of any Letter of Credit Advance
outstanding immediately prior to such payment shall be automatically reduced by
the amount of each Revolving Credit Loan deemed advanced in respect of the
related reimbursement obligation of the Borrowers, as more fully provided for in
Section 3.3.
2.3 Fees.
(a) (i) The Company agrees to pay to the Banks a
facility fee on the daily average amount of the Aggregate Commitment (without
regard to usage), for the period from the Effective Date to but excluding the
Termination Date, at a rate equal to the Applicable Rate for facility fees.
(ii) During any calendar quarter during the
period from the Effective Date to but excluding the Termination Date, when the
aggregate daily average amount of outstanding Advances exceeds 33-1/3% of the
Aggregate Commitment at any time during such quarter, the Company agrees to pay
to the Banks a usage fee on the daily average amount of outstanding Advances
during such quarter at a rate equal to the Applicable Rate for usage fees.
(iii) Accrued facility and usage fees shall be
payable quarterly in arrears on the last Business Day of each August, November,
February and May, commencing on the first such Business Day occurring after the
date of this Agreement, and on the Termination Date. For the purpose of
calculating the fees under this Section 2.3(a) only, the aggregate amount of
outstanding Bank Guarantees, C/L/Cs and S/L/Cs shall constitute usage of the
Aggregate Commitment. For the purpose of calculating the fees under this Section
2.3(a), Swing Line Loans shall count as usage of the Aggregate Commitment.
(b) The Borrowers agree to pay:
(i) with respect to any S/L/C, (A) a fee to
Agent for the benefit of the Banks computed at the Applicable Rate on the
maximum Dollar Amount available to be drawn from time to time under such S/L/C
payable quarterly in arrears on the last Business Day of each August, November,
February and May for the period from and
20
including the date of issuance of such S/L/C to and including the stated expiry
date of such S/L/C, and (B) an additional fee to the Issuing Bank for its own
account, which fee shall be paid annually in advance at the time such S/L/C is
issued or amended, and which fee shall equal one-eighth of one percent (1/8 of
1%) of such maximum Dollar Amount for each such period,
(ii) with respect to any C/L/C, (A) a fee to the
Agent for the benefit of the Banks computed at a rate equal to .50 times the
Applicable Rate on the maximum Dollar Amount available to be drawn from time to
time under such C/L/C payable quarterly in arrears on the last Business Day of
each August, November, February and May for the period from and including the
date of issuance of such C/L/C to and including the stated expiry date of such
C/L/C, and (b) an additional fee to the Issuing Bank for its own account, which
fee shall be paid annually in advance at the time such C/L/C is issued or
amended, and which fee shall equal one-eighth of one percent (1/8 of 1%) of such
maximum Dollar Amount for each such period, and
(iii) with respect to any Bank Guarantee, (A) a
fee to Agent for the benefit of the Banks computed at the Applicable Rate on the
maximum Dollar Amount available to be drawn from time to time under such Bank
Guarantee payable quarterly in arrears on the last Business Day of each August,
November, February and May for the period from and including the date of
issuance of such Bank Guarantee to and including the stated expiry date of such
Bank Guarantee, and (B) an additional fee to the Issuing Bank for its own
account, which fee shall be paid annually in advance at the time such Bank
Guarantee is issued or amended, and which fee shall equal one-eighth of one
percent (1/8 of 1%) of such maximum Dollar Amount for each such period
(iv) The aforementioned fees are nonrefundable
once they accrue and/or they have been paid and the Borrowers shall not be
entitled to any rebate of any portion of any such accrued or previously paid fee
if the applicable Letter of Credit does not remain outstanding through its
stated expiry date or for any other reason. With respect to any Letter of
Credit, the S/L/C fee, C/L/C fee or Bank Guarantee fee payable in respect
thereof shall cease to accrue upon the earlier to occur of the expiry date
therefor or such date as such Letter of Credit no longer remains outstanding.
The Borrowers further agree to pay to the Issuing Bank, on demand, such other
customary and reasonable administrative fees, charges and expenses of the
Issuing Bank in respect of the issuance, negotiation, acceptance, amendment,
transfer and payment of such Letter of Credit or otherwise payable pursuant to
the application and related documentation under which such Letter of Credit is
issued in accordance with a schedule of fees provided by the Issuing Bank to the
Company.
(c) The Company agrees to pay to the Agent and Banc One
Capital Markets, Inc. (the "Arranger") an arrangement fee and an agency fee for
their services as Agent and Arranger, respectively, under this Agreement in such
amounts as may from time to time be agreed upon by the Company, the Agent and
the Arranger.
21
2.4 Disbursement of Advances.
(a) Except with respect to Swing Line Loans, a Borrower
shall give the Agent notice of its request for each Advance in substantially the
form of Exhibit D hereto at the principal office of the Agent with respect to
such Advance not later than 10:00 a.m. Chicago time (i) three Business Days
prior to the date such Advance is requested to be made if such Borrowing is to
be made as a Eurocurrency Rate Borrowing, (ii) three Business Days prior to the
date any Letter of Credit Advance is requested to be made and (iii) on the date
such Advance is requested to be made if such Advance is to be made as a Floating
Rate Borrowing. The Agent shall promptly notify each Bank of such notice. Such
notice shall specify whether a Eurocurrency Rate Loan, Floating Rate Loan or a
Letter of Credit Advance is requested and, in the case of each requested
Eurocurrency Rate Loan, the Interest Period to be initially applicable to such
Loan. With respect to Swing Line Loans, a Borrower shall give the Swing Line
Bank notice of its request for each Swing Line Loan in substantially the form of
Exhibit D hereto at the principal office of the Agent and the principal office
of the Swing Line Bank with respect to such Advance not later than 1:00 p.m.
Chicago time on the same Business Day any Swing Line Loan is requested to be
made which notice shall specify whether such Borrower elects the Swing Line Rate
or the Floating Rate with respect to such Swing Line Loan. The Agent, on the
same day any such notice is given, shall provide notice of such requested Loan,
other than any Swing Line Loan, to each Bank (which notice shall be provided by
1:00 p.m. Chicago time with respect to Floating Rate Loans). Subject to the
terms and conditions of this Agreement, the proceeds of each such requested Loan
shall be made available to the Borrower requesting such Loan by depositing the
proceeds thereof, in immediately available, freely transferable cleared funds,
in an account maintained and designated by such Borrower. Subject to the terms
and conditions of this Agreement, the Issuing Bank shall, on the date any Letter
of Credit Advance is requested to be made, issue the related Letter of Credit on
behalf of the Banks for the account of the Borrower requesting such Letter of
Credit. Notwithstanding anything herein to the contrary, the Issuing Bank may
decline to issue any requested Letter of Credit on the basis that the
beneficiary, the purpose of issuance or the terms or the conditions of drawing
are unacceptable to it in its reasonable discretion. As of the Effective Date,
subject to the satisfaction of the conditions precedent set forth in Sections
2.5 and 2.6, those letters of credit, bank guarantees, and similar obligations
set forth on Schedule 2.4, which letters of credit, bank guarantees and similar
obligations were issued for the account of the Company prior to the Effective
Date, shall be deemed to be Letters of Credit issued under this Agreement. The
Issuing Bank shall be deemed to be the issuer thereof and shall enjoy all
rights, benefits and indemnities afforded the Issuing Bank hereunder with
respect to such letters of credit, bank guarantees and similar obligations.
(b) Each Bank, on the date any Loan is requested to be
made, shall make its pro rata share of such Loan available in immediately
available funds for disbursement to the Borrower requesting such Loan pursuant
to the terms and conditions of this Agreement at the principal office of the
Agent. Unless the Agent shall have received prior notice from any Bank that such
Bank will not make available to the Agent such Bank's pro rata portion of such
Loan, the Agent may assume that such Bank has made such portion available to the
Agent on the date such Loan is requested to be made
22
in accordance with this Section 2.4. If, after receiving notice of a Loan from
the Agent in accordance with this Section 2.4, and to the extent such Bank shall
not have so made such pro rata portion available to the Agent, the Agent may
(but shall not be obligated to) make such amount available to such Borrower, and
such Bank agrees to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower by the Agent until the date such amount is repaid to the Agent,
at a rate per annum equal to the Federal Funds Rate then in effect. If such Bank
shall pay such amount to the Agent together with interest, such amount so paid
shall constitute a Loan by such Bank as part of the related Borrowing for
purposes of this Agreement and interest shall accrue from the date of the
related Borrowing. The failure of any Bank to make its pro rata portion of any
such Borrowing available to the Agent shall not relieve any other Bank of its
obligation to make available its pro rata portion of such Loan on the date such
Loan is requested to be made, but no Bank shall be responsible for failure of
any other Bank to make such pro rata portion available to the Agent on the date
of any such Loan.
(c) All Revolving Credit Loans made under this Section
2.4 shall be evidenced by the Revolving Credit Notes and all Swing Line Loans
made under this Section 2.4 shall be evidenced by the Swing Line Notes, and all
such Loans shall be due and payable and bear interest as provided in Article
III. Each Bank is hereby authorized by the Borrowers to record on its books and
records, the date, amount and type of each Loan and the duration of the related
Interest Period (if applicable), the amount of each payment or prepayment of
principal thereon, and the other information provided for in such books and
records, which books and records shall constitute prima facie evidence of the
information so recorded, provided, however, that failure of any Bank to record,
or any error in recording, any such information shall not relieve the Borrowers
of their obligation to repay the outstanding principal amount of the Loans, all
accrued interest thereon and other amounts payable with respect thereto in
accordance with the terms of the Notes and this Agreement. Subject to the terms
and conditions of this Agreement, each Borrower may borrow Revolving Credit
Loans under this Section 2.4, prepay Revolving Credit Loans pursuant to Section
3.1 and reborrow Revolving Credit Loans.
(d) Nothing in this Agreement shall be construed to
require or authorize any Bank to issue any Letter of Credit, it being recognized
that the Issuing Bank has the sole obligation under this Agreement to issue
Letters of Credit on behalf of the Banks, and the Commitment of each Bank with
respect to Letter of Credit Advances is expressly conditioned upon the Issuing
Bank's performance of such obligations. Upon such issuance by the Issuing Bank,
each Bank shall automatically acquire a pro rata participation interest in such
Letter of Credit Advance based on the amount of its respective Commitment. Upon
the Issuing Bank making any payment in respect of a Letter of Credit honored by
the Issuing Bank, the Issuing Bank shall be reimbursed for such payment in
accordance with Section 3.3 hereof.
2.5 Conditions for First Disbursement. The obligation of each Bank
to make its first Advance hereunder is subject to receipt by each Bank and the
Agent of the following documents and completion of the following matters, in
form and substance reasonably satisfactory to the Agent:
23
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of each Borrower's jurisdiction of
organization listing all charter documents of such Borrower on file in that
office and certifying as to the good standing and corporate existence of such
Borrower, together with copies of such charter documents of such Borrower,
certified as of a recent date by such authority or official and certified as
true and correct as of the Effective Date by a duly authorized officer of such
Borrower;
(b) By-Laws and Corporate Authorizations. Copies of the
by-laws of each Borrower together with all authorizing resolutions and evidence
of other corporate action taken by such Borrower to authorize the execution,
delivery and performance by such Borrower of the Loan Documents to which it is a
party and the consummation by such Borrower of the transactions contemplated
hereby, certified as true and correct as of the Effective Date by a duly
authorized officer of such Borrower;
(c) Incumbency Certificate. Certificates of incumbency of
each Borrower containing, and attesting to the genuineness of, the signatures of
those officers authorized to act on behalf of such Borrower in connection with
the Loan Documents and the consummation by such Borrower of the transactions
contemplated hereby, certified as true and correct as of the Effective Date by a
duly authorized officer of such Borrower;
(d) Notes. The Notes, duly executed on behalf of each
Borrower, for each Bank;
(e) Legal Opinions. The favorable written opinion of
Xxxxxx Xxxxx, General Counsel of the Company and Holland & Knight, LLP, in
substantially the forms of Exhibits E-1 and E-2, respectively, attached hereto;
(f) Consents, Approvals, Etc. Copies of all governmental
and nongovernmental consents, approvals, authorizations, declarations,
registrations or filings, if any, required on the part of each Borrower in
connection with the execution, delivery and performance of the Loan Documents or
the transactions contemplated hereby or as a condition to the legality, validity
or enforceability of this Agreement and the Notes, certified as true and correct
and in full force and effect as of the Effective Date by a duly authorized
officer of such Borrower, or, if none are required, a certificate of such
officer to that effect;
(g) Termination of 364-Day Loan Agreement. Evidence
satisfactory to the Agent of the termination of the 364-Day Loan Agreement,
dated as of November 29, 2002, as amended, to which the Company, certain of its
affiliates, certain financial institutions, and Bank One, NA, as Agent are
party, and the repayment of all amounts outstanding thereunder;
(h) Termination of Private Placement Notes. Evidence
satisfactory to the Agent of the termination of the Note Purchase Agreement
dated as of May 30, 1996, as amended, to which the Company and certain investors
are subject, together with all
24
promissory notes issued pursuant thereto, and the repayment of all amounts
outstanding thereunder;
(i) Termination of Security Documentation. Evidence
satisfactory to the Agent of the termination of a pledge of the Company's
general partnership interest in Jabil Circuit Cayman L.P. in favor of Bank One,
NA, as agent for certain of the Company's creditors;
(j) Termination of Intercreditor Agreement. Evidence
satisfactory to the Agent of the termination of the Intercreditor Agreement,
dated as of May 30, 1996, as amended, to which certain of the Company's
creditors are subject; and
(k) Fees. Evidence satisfactory to the Agent that the
Borrowers have paid all fees owing to the Agent and the Banks on the Effective
Date in connection with the transactions evidenced by this Agreement.
2.6 Further Conditions for Disbursement. The obligation of each
Bank to make any Advance (including its first Advance), or any continuation or
conversion under Section 2.7, is further subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties contained in
Article IV hereof and in any other Loan Document shall be true and correct in
all material respects on and as of the date such Advance is made, continued or
converted (both before and after such Advance is made, continued or converted)
as if such representations and warranties were made on and as of such date;
(b) No Event of Default and no Default shall exist or
shall have occurred and be continuing on the date such Advance is made,
continued or converted (whether before or after such Advance is made, continued
or converted);
(c) In the case of any Letter of Credit Advance, the
Borrower requesting such Letter of Credit Advance shall have delivered to the
Agent an application for the related Letter of Credit and other related
documentation requested by and acceptable to the Agent appropriately completed
and duly executed on behalf of such Borrower; and
(d) In the case of a Letter of Credit Advance consisting
of a Bank Guarantee, the Issuing Bank shall have approved the terms and
conditions of such Bank Guarantee in its sole discretion.
Each Borrower shall be deemed to have made a representation and
warranty to the Banks at the time of the requesting of, the making of, and the
continuation or conversion under Section 2.7 of, each Advance to the effects set
forth in clauses (a) and (b) of this Section 2.6. For purposes of this Section
2.6, the representations and warranties contained in Section 4.6 hereof shall be
deemed made with respect to the most recent financial statements delivered
pursuant to Section 5.1(d)(ii) and (iii), and the representations and warranties
contained in Section 4.4 hereof with respect to identifying the Company's
Subsidiaries on Schedule 4.4 shall be deemed made as of the last date on
25
which deliveries with respect to the identification of such Subsidiaries were
made under Section 5.1(g).
2.7 Subsequent Elections as to Borrowings. A Borrower may elect
(a) to continue a Eurocurrency Rate Borrowing, or a portion thereof, as a
Eurocurrency Rate Borrowing, or (b) may elect to convert a Eurocurrency Rate
Borrowing, or a portion thereof, to a Floating Rate Borrowing or (c) elect to
convert a Floating Rate Borrowing, or a portion thereof, to a Eurocurrency Rate
Borrowing, in each case by giving notice thereof to the Agent in substantially
the form of Exhibit F hereto at the principal office of the Agent with respect
to such Loan not later than 10:00 a.m. (Chicago time) (i) three Business Days
prior to the date any such continuation of or conversion to a Eurocurrency Rate
Borrowing is to be effective, (ii) the date such continuation or conversion is
to be effective in all other cases, provided that an outstanding Eurocurrency
Rate Borrowing may only be converted on the last day of the then current
Interest Period with respect to such Borrowing, and provided, further, if a
continuation of a Borrowing as, or a conversion of a Borrowing to, a
Eurocurrency Rate Borrowing is requested, such notice shall also specify the
Interest Period to be applicable thereto upon such continuation or conversion.
The Agent, on the day any such notice is given, shall promptly provide notice of
such election to the Banks. If a Borrower shall not timely deliver such a notice
with respect to any outstanding Eurocurrency Rate Borrowing, the Borrower shall
be deemed to have elected to convert such Eurocurrency Rate Borrowing to a
Floating Rate Borrowing on the last day of the then current Interest Period with
respect to such Borrowing.
2.8 Limitation of Requests and Elections. Notwithstanding any
other provision of this Agreement to the contrary, if, upon receiving a request
for a Eurocurrency Rate Borrowing pursuant to Section 2.4, or a request for a
continuation of a Eurocurrency Rate Borrowing as a Eurocurrency Rate Borrowing,
or a request for a conversion of a Floating Rate Borrowing to a Eurocurrency
Rate Borrowing pursuant to Section 2.7, or a request for a Borrowing in an
Eligible Currency (a) in the case of any Eurocurrency Rate Borrowing, deposits
for periods comparable to the Interest Period elected by a Borrower are not
available to any Bank in the relevant interbank or secondary market and such
Bank has provided to the Agent and the Borrowers a certificate prepared in good
faith to that effect, or (b) any Bank reasonably determines that the
Eurocurrency Rate will not adequately and fairly reflect the cost to such Bank
of making, funding or maintaining the related Eurocurrency Rate Loan and such
Bank has provided to the Agent and the Borrowers a certificate prepared in good
faith to that effect, or (c) by reason of national or international financial,
political or economic conditions or by reason of any applicable law, treaty,
rule or regulation (whether domestic or foreign) now or hereafter in effect, or
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Bank with any directive of such authority (whether or not having the force of
law), including without limitation exchange controls, it is impracticable,
unlawful or impossible for any Bank (i) to make or fund the relevant
Eurocurrency Rate Borrowing or (ii) to continue such Eurocurrency Rate Borrowing
as a Eurocurrency Rate Borrowing or (iii) to convert a Loan to such a
Eurocurrency Rate Loan or (iv) to make an Advance in the requested Eligible
Currency, and such Bank has provided to the Agent
26
and the Borrowers a certificate prepared in good faith to that effect, then the
Borrowers shall not be entitled, so long as such circumstances continue, to
request a Eurocurrency Rate Borrowing of the affected type pursuant to Section
2.4 or a continuation of or conversion to a Eurocurrency Rate Borrowing pursuant
to Section 2.7 or a Borrowing in the requested Eligible Currency. In the event
that such circumstances no longer exist, the Banks shall again honor requests,
subject to this Agreement, for Eurocurrency Rate Borrowings of the affected type
pursuant to Section 2.4, and requests for continuations of and conversions to
Eurocurrency Rate Borrowings of the affected type pursuant to Section 2.7. Any
Bank to which this Section 2.8 may apply from time to time may be removed from
the transactions evidenced by the Loan Documents in accordance with Section
3.11.
2.9 Minimum Amounts; Limitation on Number of Borrowings. Except
for (a) Borrowings and conversions thereof which exhaust the entire remaining
amount of the Commitments, (b) conversions or payments required pursuant to
Section 3.1(c) or Section 3.7, and (c) Revolving Credit Loans disbursed to
satisfy reimbursement obligations under Letters of Credit pursuant to Section
3.3(a), each Revolving Credit Loan and each continuation or conversion pursuant
to Section 2.7 shall be in a minimum amount of, with respect to Floating Rate
Loans, $5,000,000 and in integral multiples of $500,000 and, with respect to
Eurocurrency Rate Loans, $10,000,000 and in integral multiples of $1,000,000.
2.10 Increase of Aggregate Commitment. The Borrowers may from time
to time request that the Aggregate Commitment be increased to an amount which
does not exceed $500,000,000; provided, however, that an increase in the
Aggregate Commitment hereunder may only be made at a time when no Event of
Default or Default shall have occurred and be continuing or would result
therefrom. In the event of a requested increase in the Aggregate Commitment,
each of the Banks shall be given the opportunity to participate in the increased
Aggregate Commitment (x) initially ratably in the proportion that its Commitment
bears to the Aggregate Commitment and (y) to the extent that the requested
increase in the Aggregate Commitment is not fulfilled pursuant to the preceding
clause, in such additional amounts as any Bank, including any new Bank (which
new Bank shall be subject to the Agent's prior written approval), and the
Borrowers agree. No Bank shall have any obligation to increase its Commitment
pursuant to a request by the Borrowers hereunder. Voluntary reductions of the
Aggregate Commitment under Section 2.2 shall not be impacted by the terms of
this Section 2.10 and the aggregate amount by which the Aggregate Commitment was
reduced pursuant to Section 2.2 shall not be reinstated as a result of any
increase under this Section 2.10.
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.1 Principal Payments.
(a) Unless earlier payment is required under this
Agreement, the Borrowers shall pay to the Banks on the Termination Date the
entire outstanding principal amount of the Loans. Such Loans shall be repaid in
the Agreed Currency in
27
which such Loans were originally extended. The Borrowers shall be jointly and
severally liable for all such principal amounts as contemplated in Section 8.14.
(b) The Borrowers may at any time and from time to time
prepay all or a portion of the Loans without premium or penalty, provided that
(i) a Borrower may not prepay any portion of any Loan as to which an election
for continuation of or conversion to a Eurocurrency Rate Loan is pending
pursuant to Section 2.7, and (ii) unless earlier payment is required under this
Agreement or unless Borrower pays all amounts required pursuant to Section 3.9,
any Eurocurrency Rate Loan may only be prepaid on the last day of the then
current Interest Period with respect to such Loan and (iii) such prepayment
shall only be permitted if a Borrower shall have given not less than one
Business Days' notice thereof of such prepayment with respect to prepayment of
Floating Rate Loans which shall be in a minimum aggregate amount of $2,000,000
and in integral multiples of $100,000, not less than three Business Days' notice
thereof with respect to prepayment of Eurocurrency Rate Loans which shall be in
a minimum aggregate amount of $5,000,000 and in integral multiples of $500,000,
such notice specifying the Loan or portion thereof to be so prepaid and shall
have paid to the Banks, together with such prepayment of principal, all accrued
interest to the date of payment on such Loan or portion thereof so prepaid and
all amounts owing to the Banks under Section 3.9 in connection with such
prepayment. Upon the giving of such notice, the aggregate principal amount of
such Loan or portion thereof so specified in such notice, together with such
accrued interest and other amounts, shall become due and payable on the
specified date. All such principal prepayments and related interest payments
shall be made in the Agreed Currency in which the related Loan was originally
extended. The Borrowers shall be jointly and severally liable for all such
principal and interest amounts as contemplated in Section 8.14.
(c) If at any time (i) the aggregate outstanding
principal amount of the Revolving Credit Advances and Swing Line Loans shall
exceed the Aggregate Commitment for any reason other than fluctuations in
currency exchange rates or (ii) the aggregate outstanding principal amount of
the Revolving Credit Advances to any Borrower shall exceed the sublimit, if any,
specified for such Borrower on Schedule 1.1, the Borrowers, in the case of
clause (i) above, or the relevant Borrower, in the case of clause (ii) above,
shall forthwith pay to the Banks, without demand, an amount not less than the
amount of such excess for application to the outstanding principal amount of the
Loans. If any such prepayment would be in excess of the outstanding amount of
the Loans, the Borrowers or the relevant Borrower, as the case may be, shall
make an additional payment in respect of outstanding Letters of Credit in the
amount of such excess which is greater than the outstanding Loans. If, after the
repayment of all amounts owing in respect of Letters of Credit, which amounts
shall equal no less than the aggregate maximum amount then available to be drawn
under all of the outstanding Letters of Credit, and the termination and
expiration of such Letters of Credit, any portion of the above described payment
remains, such remaining payment amount shall be returned to the Borrowers. If at
any time the Dollar Amount of the aggregate outstanding principal amount of the
Revolving Credit Advances and Swing Line Loans exceeds (x) 105% of the Aggregate
Commitment prior to the occurrence of an Event of Default and (y) 100%
subsequent to the occurrence of an Event of Default, as a result of fluctuations
28
in currency exchange rates, the Borrowers, for the ratable benefit of the Banks,
shall immediately prepay Loans in an aggregate amount such that after giving
effect thereto the Dollar Amount of the aforementioned outstanding principal
obligations is less than or equal to the Aggregate Commitment; provided,
however, that no amount shall be due and payable under Section 3.9 as a result
of such prepayment occurring on a day other than the last day of an Interest
Period.
(d) [Reserved]
(e) If, pursuant to Section 2.7, a Loan, or portion
thereof, is continued, such Loan or portion thereof shall be repaid on the last
day of the related Interest Period and the Agent shall readvance to the
requesting Borrower the same amount as has been so repaid. For purposes of
effecting the repayment required by this Section 3.1(e), the Agent shall apply
the proceeds of such readvance toward the repayment of such Loan or portion
thereof on the last day of the related Interest Period. On the date of each such
continuation, if the aggregate principal amount of all Advances, including the
Advances being continued, exceeds the Aggregate Commitment, the Borrowers shall
prepay the Advances, in such order as determined by the Borrowers, in an amount
such that the outstanding principal amount of all Advances does not exceed the
Aggregate Commitment as of such date, together with all amounts owing to the
Banks under Section 3.9 in connection therewith, if any.
(f) Notwithstanding the foregoing provisions of this
Section or any other provision of this Agreement, if, after the making of any
Advance in any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such Agreed Currency with
the result that different types of such Agreed Currency (the "New Currency") are
introduced and the type of currency in which the Advance was made (the "Original
Currency") no longer exists or the Borrowers are not able to make payment to the
Agent for the account of the Banks in such Original Currency, then all payments
to be made by the Borrowers hereunder in such currency shall be made to the
Agent in such amount and such type of the New Currency or Dollars as shall be
equivalent to the amount of such payment otherwise due hereunder in the Original
Currency. In addition, notwithstanding the foregoing provisions of this Section,
if, after the making of any Advance in any currency other than Dollars, the
Borrowers are not able to make payment to the Agent for the account of the Banks
in the type of currency in which such Advance was made because of the imposition
of any such currency control or exchange regulation, then such Advance shall
instead be repaid when due in Dollars in a principal amount equal to the Dollar
Amount (as of the date of repayment) of such Advance.
3.2 Interest Payments. The Borrowers shall pay interest to the
Banks on the unpaid principal amount of each Loan, for the period commencing on
the date such Loan is made until such Loan is paid in full, on each Interest
Payment Date and at maturity (whether at stated maturity, by acceleration or
otherwise), and thereafter on demand, at the following rates per annum:
(a) With respect to Revolving Credit Loans:
29
(i) During such periods that such Loan is a
Floating Rate Loan, the Floating Rate.
(ii) During such periods that such Loan is an
Eurocurrency Rate Loan, the Eurocurrency Rate applicable to such Loan for each
related Eurocurrency Interest Period.
(b) With respect to Swing Line Loans, the Swing Line Rate
or Floating Rate applicable to such Loan.
Notwithstanding the foregoing paragraphs (a) through (b), the Borrowers
shall pay interest on demand at the Overdue Rate on the outstanding principal
amount of any Loan and any other amount payable by the Borrowers hereunder
(other than interest) on and after an Event of Default. Interest on a Loan shall
be paid in the Agreed Currency in which such Loan was initially extended.
3.3 Letter of Credit Reimbursement Payments.
(a) (i) Each Borrower agrees to pay to the Agent for
the benefit of the Banks, on the day on which the Issuing Bank shall honor a
draft or other demand for payment presented or made under any Letter of Credit,
an amount equal to the amount paid by the Issuing Bank in respect of such draft
or other demand under such Letter of Credit and all expenses paid or incurred by
the Issuing Bank relative thereto. Unless a Borrower shall have made such
payment to the Agent on such day, upon each such payment by the Issuing Bank,
subject to Section 3.3(a)(ii), the Issuing Bank shall be deemed to have
disbursed to such Borrower, and such Borrower shall be deemed to have elected to
satisfy its reimbursement obligation by requesting a Revolving Credit Loan
bearing interest at the Floating Rate for the account of the Banks in an amount
equal to the amount so paid by the Issuing Bank in respect of such draft or
other demand under such Letter of Credit. Such Revolving Credit Loans shall,
subject to Section 3.3(a)(ii), be disbursed notwithstanding any failure to
satisfy any conditions for disbursement of any Loan set forth in Article II
hereof and, to the extent of the Revolving Credit Loan so disbursed, the
reimbursement obligation of the Borrower under this Section 3.3 shall be deemed
satisfied; provided, however, that nothing in this Section 3.3 shall be deemed
to constitute a waiver of any Default or Event of Default caused by the failure
to the conditions for disbursement or otherwise.
(ii) If, for any reason (including without
limitation as a result of the occurrence of an Event of Default with respect to
any Borrower pursuant to Section 6.1(i)), Floating Rate Loans may not be made by
the Banks as described in Section 3.3(a)(i), then (A) each Borrower agrees that
each reimbursement amount not paid pursuant to the first sentence of Section
3.3(a)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Floating Rate Loans, and (B) effective on the date each
such Floating Rate Loan would otherwise have been made, each Bank severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, in lieu of deemed disbursement of
loans, to the extent of such Bank's Commitment, purchase a participating
interest in each
30
reimbursement amount. Each Bank will immediately transfer to the Agent, in same
day funds, the amount of its participation. Each Bank shall share on a pro rata
basis (calculated by reference to its Commitment) in any interest which accrues
thereon and in all repayments thereof. If and to the extent that any Bank shall
not have so made the amount of such participating interest available to the
Agent, such Bank and the Borrowers severally agree to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
of demand by the Agent until the date such amount is paid to the Agent, at (x)
in the case of any Borrower, the interest rate then applicable to Floating Rate
Loans and (y) in the case of such Bank, the Federal Funds Rate. The failure of
any Bank to make its pro rata portion of any such amount paid by the Issuing
Bank available to the Agent shall not relieve any other Bank of its obligation
to make available its pro rata portion of such amount, but no Bank shall be
responsible for failure of any other Bank to make such pro rata portion
available to the Agent.
(b) The reimbursement obligation of each Borrower under
this Section 3.3 shall be absolute, unconditional and irrevocable and shall
remain in full force and effect until all obligations of the Borrowers to the
Banks hereunder shall have been satisfied, and such obligations of the Borrowers
shall not be affected, modified or impaired upon the happening of any event,
including without limitation, any of the following, whether or not with notice
to, or the consent of, any Borrower:
(i) Any lack of validity or enforceability of
any Letter of Credit or any documentation relating to any Letter of Credit or to
any transaction related in any way to such Letter of Credit (the "Letter of
Credit Documents");
(ii) Any amendment, modification, waiver,
consent, or any substitution, exchange or release of or failure to perfect any
interest in collateral or security, with respect to any of the Letter of Credit
Documents;
(iii) The existence of any claim, setoff, defense
or other right which any Borrower may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any persons or entities for whom
any such beneficiary or any such transferee may be acting), the Agent, the
Issuing Bank or any Bank or any other person or entity, whether in connection
with any of the Letter of Credit Documents, the transactions contemplated herein
or therein or any unrelated transactions;
(iv) Any draft or other statement or document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) Payment by the Issuing Bank to the
beneficiary under any Letter of Credit against presentation of documents which
do not comply with the terms of the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the
part of the Agent, the Issuing Bank or any Bank or any party to any of the
Letter of Credit
31
Documents to enforce, assert or exercise any right, power or remedy conferred
upon the Agent, the Issuing Bank, any Bank or any such party under this
Agreement or any of the Letter of Credit Documents, or any other acts or
omissions on the part of the Agent, the Issuing Bank, any Bank or any such
party;
(vii) Any other event or circumstance that would,
in the absence of this clause, result in the release or discharge by operation
of law or otherwise of any Borrower from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of
any obligation or any defense of any kind or nature which any Borrower has or
may have against the beneficiary of any Letter of Credit shall be available
hereunder to such Borrower against the Agent, the Issuing Bank or any Bank.
Nothing in this Section 3.3 shall limit the liability, if any, of the Agent or
the Issuing Bank to any Borrower pursuant to Section 9.5.
3.4 Payment Method.
(a) All payments to be made by the Borrowers hereunder
shall be made to the Agent in Chicago for the account of the Banks in the
applicable Agreed Currency in same-day funds, not later than 12:00 p.m. Chicago
time on the date on which such payment is due. Payments received after 12:00
p.m. Chicago time shall be deemed to be payments made prior to 12:00 p.m.
Chicago time on the next succeeding Business Day. Each Borrower hereby
authorizes the Agent to charge its account with the Agent in order to cause
timely payment of amounts due hereunder to be made (subject to sufficient funds
being available in such account for that purpose).
(b) At the time of making each such payment, a Borrower
shall, subject to the other terms and conditions of this Agreement, specify to
the Agent the Borrowing or other obligation of the Borrowers hereunder to which
such payment is to be applied. In the event that a Borrower fails to so specify
the relevant obligation or if an Event of Default shall have occurred and be
continuing, the Agent may apply such payments as it may determine in its sole
discretion to obligations of the Borrowers to the Banks arising under this
Agreement.
(c) On the day such payments are deemed received, the
Agent shall promptly remit to the Banks their pro rata shares of such payments
in immediately available funds either to their respective addresses in the
United States specified for notices pursuant to Section 9.2 or by wire transfer
to their respective deposit accounts identified to the Agent in writing. Such
pro rata shares shall be determined with respect to each such Bank, (i) in the
case of payments of principal and interest on any Borrowing, by the ratio which
the outstanding principal balance of its Loan included in such Borrowing bears
to the outstanding principal balance of the Loans of all of the Banks included
in such Borrowing and (ii) in the case of fees paid pursuant to Section 2.3 and
other amounts payable hereunder (other than the Agent's fees payable pursuant to
Section 2.3(d) and amounts payable to any Bank under Section 2.4 or 3.6) by the
ratio which the Commitment of such Bank bears to the Aggregate Commitment.
32
(d) This Agreement arises in the context of an
international transaction, and the specification of payment in a specific
currency at a specific place pursuant to this Agreement is of the essence. Such
specified currency shall be the currency of account and payment under this
Agreement. The obligations of the Borrowers hereunder shall not be discharged by
an amount paid in any other currency or at another place, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid, on prompt
conversion into the applicable currency and transfer to the Banks under normal
banking procedure, does not yield the amount of such currency due under this
Agreement. In the event that any payment, whether pursuant to a judgment or
otherwise, upon conversion and transfer, does not result in payment of the
amount of such currency due under this Agreement, the Banks shall have an
independent cause of action against the Borrowers for the currency deficit.
(e) If for purposes of obtaining judgment in any court it
becomes necessary to convert any currency due hereunder into any other currency,
the Borrowers will pay such additional amount, if any, as may be necessary to
ensure that the amount paid in respect of such judgment is the amount in such
other currency which, when converted at the Agent's spot rate of exchange
prevailing on the date of payment, would yield the same amount of the currency
due hereunder. Any amount due from the Borrowers under this Section 3.4(e) will
be due as a separate debt and shall not be affected by judgment being obtained
for any other sum due under or in respect of this Agreement.
3.5 No Setoff or Deduction.
(a) All such payments shall be made free and clear of any
present or future taxes or withholdings and without any set-off or counter claim
or any restriction or condition or deduction whatsoever. The Borrowers shall
indemnify the Agent and each Bank against any taxes or charges (other than on
net overall income) which may be claimed from it in respect of the Advances or
any of them or any sum payable by the Borrowers or any of them hereunder and
against any costs, charges and expenses or liabilities in respect of such claim
and such indemnity shall survive the termination of the Commitments.
(b) If at any time any Borrower is required by law or by
any directive or order of any court of competent jurisdiction to make any
deduction or withholding of whatsoever nature from any payment due under this
Agreement or any of the Loan Documents, such Borrower will ensure that the same
does not exceed the minimum liability therefor and will (a) pay to any Bank on
request such additional amount as such Bank certifies will result in the net
amount received by it after all deductions being equal to the full amount which
would have been receivable had there been no deduction or withholding and (b)
pay forthwith to the relevant authorities the full amount of the deduction or
withholding and deliver to the Agent such an official receipt, certificate or
other proof evidencing the amount paid in respect of such deduction or
withholding. Any additional amount paid under this sub-clause shall not be
treated as interest but as agreed compensation.
33
(c) If any payment by any Borrower is made to or for the
account of any Bank after deduction for or on account of tax, and additional
payments are made by such Borrower then, if any Bank shall receive or be granted
a credit against or remission for such tax, such Bank shall, to the extent that
it can do so without prejudice to the retention of the amount of such credit or
remission, reimburse to such Borrower such amount as such Bank shall, in its
sole and absolute discretion, have concluded to be attributable to the relevant
tax or deduction or withholding. Nothing herein contained shall interfere with
the right of any Bank to arrange its affairs in whatever manner it thinks fit
and, in particular, the Banks shall not be under any obligation to claim relief
from its corporation profits or similar tax liability in respect of such tax in
priority to any other claims, reliefs, credits or deductions available to it nor
oblige any Bank to disclose any information relating to its tax affairs. Such
reimbursement shall be made as soon as reasonably practical upon such Bank
certifying that the amount of such credit or remission has been received by it.
(d) Each Bank that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S. Bank") agrees
that it will, not less than ten Business Days after the date of this Agreement,
(i) deliver to each of the Company and the Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in
either case that such Bank is entitled to receive payments under this Agreement
from the Company and any other Borrower that is not a Non-U.S. Borrower without
deduction or withholding of any United States federal income taxes, or (ii)
deliver to each of the Company and the Agent a United States Internal Revenue
Form W-8 or W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S. Bank further
undertakes to deliver to each of the Company and the Agent (x) renewals or
additional copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested by the
Company or the Agent. All forms or amendments described in the preceding
sentence shall certify that such Bank is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form or amendment
with respect to it and such Bank advises the Company and the Agent that it is
not capable of receiving payments from the Company and any other Borrower that
is not a Non-U.S. Borrower without any deduction or withholding of United States
federal income tax.
(e) For any period during which a Non-U.S. Bank has
failed to provide the Company with an appropriate form pursuant to subsection
(d) above (unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Bank shall not be
entitled to indemnification under this Section 3.5 with respect to taxes imposed
by the United States; provided that, should a Non-U.S. Bank which is
34
otherwise exempt from or subject to a reduced rate of withholding tax become
subject to taxes because of its failure to deliver a form required under
subsection (d), above, the Company shall take such steps as such Non-U.S. Bank
shall reasonably request to assist such Non-U.S. Bank to recover such taxes.
(f) Any Bank that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Company (with a copy to the Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(g) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank (because such
Bank failed to notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective), such Bank shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax,
withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the Banks under
this Section 3.5(g) shall survive the payment of the Bank Obligations and
termination of this Agreement.
3.6 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days for the actual number of days elapsed,
including the first day but excluding the last day of the relevant period.
3.7 Additional Costs.
(a) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or the Agent
with any directive of any such authority (whether or not having the force of
law), shall (i) affect the basis of taxation of payments to any Bank or the
Agent of any amounts payable by any Borrower under this Agreement (other than
taxes imposed on the overall net income of the Bank or the Agent, by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which any Bank or the Agent, as the case may be, has its
principal office), or (ii) shall
35
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any Bank or the Agent, as the case may be, or (iii) shall impose any
other condition with respect to this Agreement, the Commitments, the Notes or
the Advances, and the result of any of the foregoing is to increase the cost to
any Bank or the Agent, as the case may be, of making, funding or maintaining any
Loan or to reduce the amount of any sum receivable by any Bank or the Agent,
thereon, then the Borrowers shall pay to such Bank or the Agent, as the case may
be, from time to time, upon request by such Bank (with a copy of such request to
be provided to the Agent) or the Agent, additional amounts sufficient to
compensate such Bank or the Agent, as the case may be, for such increased cost
or reduced sum receivable to the extent, in the case of any Eurocurrency Rate
Loan, such Bank or the Agent, as the case may be, is not compensated therefor in
the computation of the interest rate applicable to such Eurocurrency Rate Loan.
Each Bank or the Agent, as the case may be, seeking compensation hereunder shall
deliver to the Borrowers a statement setting forth (i) such increased cost or
reduced sum receivable as such Bank or the Agent, as the case may be, has
calculated in good faith, (ii) a description of the event giving rise thereto,
and (iii) a calculation in reasonable detail of the amounts requested. Such
statement as to the amount of such increased cost or reduced sum receivable,
prepared in good faith and in reasonable detail by such Bank or the Agent, as
the case may be, and submitted by such Bank or the Agent, as the case may be, to
the Borrowers, shall be conclusive and binding for all purposes absent manifest
error. Any Bank to which this Section 3.7(a) may apply from time to time may be
removed from the transactions evidenced by the Loan Documents in accordance with
Section 3.11.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or the Agent, but applicable to banks or
financial institutions generally, or any interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank or the Agent with any
directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects the amount of capital
required or expected to be maintained by such Bank or the Agent (or any
corporation controlling such Bank or the Agent) and such Bank or the Agent, as
the case may be, determines that the amount of such capital is increased by or
based upon the existence of such Bank's or the Agent's obligations hereunder and
such increase has the effect of reducing the rate of return on such Bank's or
the Agent's (or such controlling corporation's) capital as a consequence of such
obligations hereunder to a level below that which such Bank or the Agent (or
such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank or the Agent to be material, then the Borrowers shall
pay to such Bank or the Agent, as the case may be, from time to time, upon
request by such Bank (with a copy of such request to be provided to the Agent)
or the Agent, additional amounts sufficient to compensate such Bank or the Agent
(or such controlling corporation) for any reduced rate of return which such Bank
or the Agent reasonably determines to be allocable to the existence of such
Bank's or the Agent's obligations hereunder. Each Bank or the Agent, as the case
may be, seeking compensation hereunder shall deliver to the Borrowers a
statement setting forth (i) such increased cost or reduced
36
sum receivable as such Bank or the Agent, as the case may be, has calculated in
good faith, (ii) a description of the event giving rise thereto, and (iii) a
calculation in reasonable detail of the amounts requested. Such statement as to
the amount of such compensation, prepared in good faith and in reasonable detail
by such Bank or the Agent, as the case may be, and submitted by such Bank or the
Agent to the Borrowers, shall be conclusive and binding for all purposes absent
manifest error. Any Bank to which this Section 3.7(b) may apply from time to
time may be removed from the transactions evidenced by the Loan Documents in
accordance with Section 3.11.
3.8 Illegality and Impossibility. In the event that any applicable
law, treaty, rule or regulation (whether domestic or foreign) now or hereafter
in effect and whether or not presently applicable to any Bank, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for any Bank to maintain any Eurocurrency Rate Loan under this
Agreement or shall make it impracticable, unlawful or impossible for, or shall
in any way limit or impair the ability of, any Borrower to make or any Bank to
receive any payment under this Agreement at the place specified for payment
hereunder, or to transfer any amount paid or so converted to the address of its
principal office specified in Section 9.2, the Borrowers shall upon receipt of
notice thereof from such Bank, repay in full the then outstanding principal
amount of each Loan so affected, together with all accrued interest thereon to
the date of payment and all amounts owing to such Bank under Section 3.9, (a) on
the last day of the then current Interest Period applicable to such Loan if such
Bank may lawfully continue to maintain such Loan to such day, or (b) immediately
if such Bank may not continue to maintain such Loan to such day. Any Bank to
which this Section 3.8 may apply from time to time may be removed from the
transactions evidenced by the Loan Documents in accordance with Section 3.11.
3.9 Indemnification. If any Borrower makes any payment of
principal with respect to any Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.8 or Section
6.2 or otherwise), or if any Borrower fails to borrow or convert any Loan after
notice has been given to the Banks in accordance with Section 2.4 or Section
2.7, the Borrowers shall reimburse each Bank on demand for any resulting net
loss or expense incurred by each such Bank after giving credit for any earnings
or other quantifiable financial benefit to such Bank from such Bank's investment
or other amounts prepaid or not reborrowed, including without limitation any
loss incurred in obtaining, liquidating or employing deposits from third
parties, whether or not such Bank shall have funded or committed to fund such
Loan. A statement as to the amount of such loss or expense, prepared in good
faith and in reasonable detail by such Bank and submitted by such Bank to the
Borrowers, shall be conclusive and binding for all purposes absent manifest
error, provided that before delivery of such statement, each Bank shall use
reasonable efforts in accordance with its normal practices and procedures to
reduce amounts payable under this Section. Calculation of all amounts payable to
such Bank under this Section 3.9 shall be made as though such Bank shall have
actually funded or committed to fund the relevant Loan through the purchase of
an underlying deposit in an amount equal to the amount of such
37
Loan and having a maturity comparable to the related Interest Period; provided,
however, that such Bank may fund any Loan in any manner it sees fit and the
foregoing assumption shall be utilized only for the purpose of calculation of
amounts payable under this Section 3.9.
3.10 Right of Banks to Fund Through Other Offices. Each Bank may
perform its Commitment to fund its pro rata share of any Eurocurrency Rate Loan
or, with respect to the Swing Line Bank, any Swing Line Loan to the Borrowers by
causing an affiliate of such Bank to provide such funds in accordance with the
terms of this Agreement. For all purposes of this Agreement, any amounts so
advanced shall be deemed to have been advanced by such Bank, and the obligation
of the Borrowers to repay such amounts shall be as provided in this Agreement.
3.11 Replacement of Bank. If (x) the Borrowers are required
pursuant to Section 2.8, 3.7 or 3.8 to make any additional payment to any Bank
or if any Bank's obligation to make Eurocurrency Rate Loans, or to convert
Floating Rate Borrowings into Eurocurrency Rate Borrowings, shall be suspended
(any such Bank, a "Funding Affected Bank"), or (y) any Bank refuses to consent
to certain proposed changes, waivers, discharges or terminations with respect to
this Agreement requiring the consent of all Banks (or all Banks affected by such
change, waiver, discharge or termination) pursuant to Section 8.1 and the same
have been approved by the Majority Banks (any such Bank, a "Voting Affected
Bank" and together with any Funding Affected Bank, the "Affected Banks"), the
Borrowers may elect to terminate or, solely with respect to Funding Affected
Banks, replace the Commitment of such Affected Bank so long as (1) no Default or
Event of Default shall have occurred and be continuing at the time of such
termination or replacement, and (2) concurrently with such termination or
replacement:
(a) if the Affected Bank is being replaced, another
financial institution reasonably acceptable to the Borrowers and the Agent shall
agree, as of such date, to purchase for cash the outstanding portion of the Bank
Obligations of the Affected Bank pursuant to an Assignment and Acceptance
substantially in the form attached hereto as Exhibit G and to become a Bank for
all purposes under this Agreement and to assume all obligations of the Affected
Bank to be terminated as of such date and to comply with the requirements of
this Agreement with respect to assignments, and the Borrowers shall pay to such
Affected Bank in immediately available funds on the day of such replacement
(i) all interest, fees and other amounts then
accrued and unpaid to such Affected Bank by the Borrowers hereunder to and
including the date of termination, including, without limitation, payments due
to such Affected Bank under Sections 2.8, 3.7, and 3.8, and
(ii) an amount, if any, equal to the payment
which would have been due to such Bank on the day of such replacement under this
Agreement had the Loans of such Affected Bank been prepaid on such date rather
than sold to the replacement Bank, in each case to the extent not paid by the
replacement Bank, and
38
(b) solely with respect to Funding Affected Banks, if
such Funding Affected Bank is being terminated, the Borrowers shall pay to such
Funding Affected Bank all Bank Obligations due and payable to such Funding
Affected Bank (including the amounts described in the immediately preceding
clauses (i) and (ii)). No Bank may be terminated under this Section 3.11(b)
because it constitutes a Voting Affected Bank.
3.12 Calculation of Amounts. Except as set forth below, all amounts
referenced in Articles II and III shall be calculated using the Dollar Amount
determined based upon the Equivalent Amount in effect as of the date of any
determination thereof; provided, however, that to the extent the Borrowers shall
be obligated hereunder to pay in Dollars any Advance denominated in a currency
other than Dollars, such amount shall be paid in Dollars using the Dollar Amount
of the Advance (calculated based upon the Equivalent Amount in effect on the
date of payment thereof) and in the event that the Borrowers do not reimburse
the Agent, and the Banks are required to fund a purchase of a participation in
such Advance, such purchase shall be made in Dollars in an amount equal to the
Dollar Amount of such Advance (calculated based upon the Equivalent Amount in
effect on the date of payment thereof). Notwithstanding anything herein to the
contrary, the full risk of currency fluctuations shall be borne by the Borrowers
and the Borrowers agree to indemnify and hold harmless each Issuing Bank, the
Agent and the Banks from and against any loss resulting from any borrowing
denominated in a currency other than in Dollars and for which the Lenders are
not reimbursed on the day of such borrowing as it relates to the Borrowers'
respective obligations.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent and the Banks that:
4.1 Corporate Existence and Power. Each Borrower is a Person duly
organized, validly existing and in good standing under the laws of the state or
other political subdivision of its jurisdiction of incorporation or
organization, as the case may be, and is duly qualified to do business, and is
in good standing, in all additional jurisdictions where such qualification is
necessary under applicable law, except where the failure to be so qualified
would not have a material adverse effect on the business and financial condition
of the Company and its Subsidiaries taken as a whole. Each Borrower has all
requisite corporate power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted, and to execute and deliver the Loan Documents to which it is a party
and to engage in the transactions contemplated by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance
by each Borrower of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and are not in contravention of any
material law, rule or regulation, or any judgment, decree, writ, injunction,
order or award of any arbitrator, court or governmental authority, or of the
terms of such Borrower's charter or by-laws, or of any material contract or
undertaking to which such Borrower is a party or by which
39
such Borrower or any of its property is bound and do not result in the
imposition of any Lien except for Permitted Liens.
4.3 Binding Effect. The Loan Documents when executed and delivered
hereunder will be legal, valid and binding obligations of each Borrower party
thereto enforceable against each Borrower party thereto in accordance with their
respective terms; except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights and except that the remedy of specific performance and
injunctive and other forms of equitable relief are subject to equitable defenses
and to the discretion of the court before which any proceedings may be brought.
4.4 Subsidiaries. Schedule 4.4 hereto (as supplemented from time
to time pursuant to Section 5.1(h)) correctly sets forth the corporate name,
jurisdiction of organization and ownership of each Subsidiary of each Borrower.
Each Subsidiary and each corporation or other entity becoming a Subsidiary of
any Borrower after the date hereof is and will be a corporation or other entity
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is and will be duly qualified to do business in
each additional jurisdiction where such qualification is or may be necessary
under applicable law, except where the failure to be so qualified would not have
a Material Adverse Effect.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there
is no action, investigation, suit or proceeding pending or, to the best of each
Borrower's knowledge, threatened against or affecting any Borrower or any of its
Subsidiaries before or by any court, governmental authority or arbitrator, which
if adversely decided would result, either individually or collectively, in any
Material Adverse Effect. Since the date of this Agreement, there has been no
change in the status of the matters disclosed in Schedule 4.5 that, individually
or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.
4.6 Financial Condition. The consolidated balance sheet of the
Company and its Subsidiaries and the related consolidated statements of income,
shareholders equity and cash flows of the Company and its Subsidiaries for the
fiscal year ended August 31, 2002, as reported on by KPMG LLP, independent
certified public accountants (copies of which have been furnished to the Banks),
fairly present, and the financial statements of the Company and its Subsidiaries
delivered pursuant to Section 5.1(d) will fairly present the consolidated
financial position of the Company and its Subsidiaries as at the respective
dates thereof, and the consolidated results of operations of the Company and its
Subsidiaries for the respective periods indicated, all in accordance with
Generally Accepted Accounting Principles consistently applied (subject, in the
case of said interim statements, to normal year-end adjustments). There has been
no material adverse change in the financial condition of the Company and its
Subsidiaries taken as a whole since February 28, 2003. There is no material
Contingent Liability of the Company that is not reflected in such financial
statements or in the notes thereto.
40
4.7 Use of Loans. Each Borrower will use the proceeds of the Loans
for its general corporate purposes, including repayment of certain existing
Indebtedness. No Borrower nor any of their respective Subsidiaries extends or
maintains, in the ordinary course of business, credit for the purpose, whether
immediate, incidental, or ultimate, of buying or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan will be used for the purpose,
whether immediate, incidental, or ultimate, of buying or carrying margin stock
or maintaining or extending credit to others for such purpose. After applying
the proceeds of each Loan, margin stock will not constitute more than 25% of the
value of the assets (either of any Borrower alone or of the Borrowers and their
respective Subsidiaries on a consolidated basis) that are subject to any
provisions of this Agreement that may cause the Loans to be deemed secured,
directly or indirectly, by margin stock.
4.8 Consents, Etc. Except for such consents, approvals,
authorizations, declarations, registrations or filings delivered by the
Borrowers pursuant to Section 2.5(f), if any, each of which is in full force and
effect, no consent, approval or authorization of or declaration, registration or
filing with any governmental authority or any nongovernmental person, including
without limitation any creditor, lessor or stockholder of any Borrower, is
required on the part of any Borrower in connection with the execution, delivery
and performance of the Loan Documents or the transactions contemplated hereby or
as a condition to the legality, validity or enforceability of the Loan
Documents.
4.9 Taxes. Each Borrower and each of their respective Subsidiaries
has filed all material tax returns (federal, state and local applicable in the
United States or any foreign jurisdiction) required to be filed and have paid
all taxes shown thereon to be due, including interest and penalties, or have
established adequate financial reserves on their respective books and records
for payment thereof except where the failure to file such returns, pay such
taxes or establish such reserves would not have a Material Adverse Effect.
4.10 Title to Properties. Except as otherwise disclosed in the
latest balance sheet delivered pursuant to this Agreement, a Borrower or one or
more of its Subsidiaries has good and marketable fee simple title to all of the
material real property identified in such balance sheet to the best of such
Borrower's knowledge absent manifest error, and a valid and indefeasible
ownership interest in all of the other properties and assets reflected in said
balance sheet or subsequently acquired by a Borrower or any such Subsidiary
material to the business or financial condition of the Borrowers and their
respective Subsidiaries, taken as a whole, except for title defects that do not
have a Material Adverse Effect. All of such properties and assets are free and
clear of any Lien, except for Permitted Liens.
4.11 ERISA. The Borrowers, their respective Subsidiaries, their
ERISA Affiliates and their respective Plans are in substantial compliance in all
material respects with those provisions of ERISA and of the Code which are
applicable with respect to any Plan. No Prohibited Transaction and no Reportable
Event has occurred with respect to
41
any such Plan which would cause an Event of Default. No Borrower, any of their
respective Subsidiaries nor any of their ERISA Affiliates is an employer with
respect to any Multiemployer Plan. The Borrowers, their respective Subsidiaries
and their ERISA Affiliates have met the minimum funding requirements under ERISA
and the Code with respect to each of their respective Plans, if any, and have
not incurred any liability to the PBGC, other than premiums which are not yet
due and payable. The execution, delivery and performance of the Loan Documents
does not constitute a Prohibited Transaction. There is no material unfunded
benefit liability, determined in accordance with Section 4001(a)(18) of ERISA,
with respect to any Plan of any Borrower, their respective Subsidiaries or their
ERISA Affiliates.
4.12 Disclosure. No report or other information furnished in
writing or on behalf of any Borrower to any Bank or the Agent in connection with
the negotiation or administration of this Agreement contains any material
misstatement of fact or omits to state any material fact or any fact necessary
to make the statements contained therein not misleading in light of the
circumstances in which they were made. Neither this Agreement, the Notes, nor
any other document, certificate, or report or statement or other information
furnished to any Bank or the Agent by or on behalf of any Borrower in connection
with the transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact in order to make the statements
contained herein and therein not misleading in light of the circumstances in
which they were made. There is no fact known to any Borrower which has or which
in the future may have (so far as any Borrower reasonably can now foresee based
on information currently available to such Borrower) a Material Adverse Effect,
which has not been set forth in this Agreement or in the other documents,
certificates, statements, reports and other information furnished in writing to
the Banks by or on behalf of any Borrower in connection with the transactions
contemplated hereby.
4.13 Environmental and Safety Matters. The Borrowers and each of
their respective Subsidiaries are in substantial compliance with all
Environmental Laws in jurisdictions in which such Borrower or any such
Subsidiary owns or operates, or has owned or operated, a facility or site, or
arranges or has arranged for disposal or treatment of hazardous substances,
solid waste, or other wastes, accepts or has accepted for transport any
hazardous substances, solid wastes or other wastes or holds or has held any
interest in real property or otherwise, except where the failure to comply would
not have a Material Adverse Effect. No demand, claim, notice, action,
administrative proceeding, investigation or inquiry whether brought by any
governmental authority, private person or entity or otherwise, arising under,
relating to or in connection with any Environmental Laws is pending or, to the
best of its knowledge, threatened against any Borrower or any of their
respective Subsidiaries, any real property in which any Borrower or any such
Subsidiary holds or has held an interest or any past or present operation of any
Borrower or any such Subsidiary. Neither any Borrower nor any of their
respective Subsidiaries (a) is the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic substances, radioactive materials, hazardous wastes or related materials
into the environment, (b) has received any notice of any toxic substances,
radioactive materials, hazardous waste or related materials in, or upon any of
its properties in violation of any Environmental Laws, (c) knows of any basis
for any
42
such investigation, notice or violation, or (d) owns or operates, or has owned
or operated, property which appears on the United States National Priority List
or any other governmental listing which identifies sites for remedial clean-up
or investigatory actions, except as disclosed on Schedule 4.13 hereto, and as to
such matters disclosed on such Schedule, none will have a Material Adverse
Effect. No release, threatened release or disposal of hazardous waste, solid
waste or other wastes is occurring or has occurred on, under or to any real
property in which any Borrower or any of their respective Subsidiaries holds any
interest or performs any of its operations, in material violation of any
Environmental Law.
4.14 No Material Adverse Change. Neither any Borrower nor any of
its Subsidiaries has received any notice, citation or communication of the
nature referred to in Section 5.1(d)(i), except in respect of such matters as
have been or are being remediated in all material respects or are being
contested or remediated in good faith, and, in the case of any such matter being
so contested or remediated, and as of the date of this Agreement, adequate
provision for all material costs of any remediation is reflected in the
financial statements referred to in Section 4.6 of this Agreement, and in
respect of any such notice, citation or communication received after the date of
this Agreement, will be reflected in the subsequent financial statements
furnished to the Agent and the Banks pursuant to Sections 5.1(d)(ii),
5.1(d)(iii) and 5.1(d)(iv).
4.15 No Default. Neither any Borrower nor any Subsidiary is in
default or has received any written notice of default under or with respect to
any of its Contractual Obligations in any respect which would have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.16 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation applicable to any Borrower or any Subsidiary would have a
Material Adverse Effect.
ARTICLE V.
COVENANTS
5.1 Affirmative Covenants. Each Borrower covenants and agrees
that, until the Termination Date and thereafter until irrevocable payment in
full of the principal of and accrued interest on the Notes and all other Bank
Obligations and the performance of all other obligations of the Borrowers under
this Agreement, unless the Majority Banks shall otherwise consent in writing, it
shall, and shall cause each of its Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except to the extent permitted by Sections 5.2(f)
and (g), and its qualification as a foreign corporation in good standing in each
jurisdiction in which such qualification is necessary under applicable law,
except for such jurisdictions where the failure to so qualify would not have a
Material Adverse Effect.
43
(b) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders of any
governmental authority, whether federal, state, local or foreign (including
without limitation ERISA, the Code and Environmental Laws), in effect from time
to time, except where the failure to comply would not have a Material Adverse
Effect; and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income, revenues or
property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise, which, if unpaid,
would give rise to Liens upon such properties or any portion thereof, except to
the extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of any such
Borrower or Subsidiary.
(c) Maintenance of Properties; Insurance. Maintain,
preserve and protect all property that is material to the conduct of the
business of any Borrower or any of their respective Subsidiaries and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
and, maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated and maintain in full force and
effect public liability insurance, insurance against claims for personal injury
or death or property damage occurring in connection with any of its activities
or any properties owned, occupied or controlled by it, in such amount as it
shall reasonably deem necessary.
(d) Reporting Requirements. Furnish to the Banks and the
Agent the following:
(i) Promptly and in any event within seven
calendar days after becoming aware of the occurrence of (A) any Event of Default
or Default, or (B) the commencement of any material litigation against, by or
affecting any Borrower or any of their respective Subsidiaries or (C) entering
into any material contract or undertaking that is not entered into in the
ordinary course of business and which has resulted in or which is likely, in the
reasonable judgment of the Company, to result in a Material Adverse Effect, or
(D) any material development in the business or affairs of any Borrower or any
of their respective Subsidiaries which has resulted in or which is likely, in
the reasonable judgment of such Borrower, to result in a Material Adverse
Effect, a statement of the chief financial officer of such Borrower setting
forth details of each such Default or Event of Default or such litigation,
material contract or undertaking or development and the action which such
Borrower or such Subsidiary, as the case may be, has taken and proposes to take
with respect thereto;
(ii) As soon as available and in any event within
45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Company, the
44
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter, and the related consolidated statements of income and cash flow
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to normal
year-end adjustments) by the treasurer of the Company as having been prepared in
accordance with Generally Accepted Accounting Principles, together with a
certificate of the treasurer of the Company stating (A) that no Event of Default
or Default has occurred and is continuing or, if an Event of Default or Default
has occurred and is continuing, a statement setting forth the details thereof
and the action which the Company has taken and proposes to take with respect
thereto, and (B) that a computation (which computation shall accompany such
certificate and shall be in reasonable detail) showing compliance with Section
5.2(a), (b), and (c) hereof is in conformity with the terms of this Agreement;
(iii) As soon as available and in any event within
90 days after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income, shareholders
equity and cash flows of the Company and its Subsidiaries for such fiscal year,
with a customary audit report of KPMG LLP, or other independent certified public
accountants selected by the Company and acceptable to the Majority Banks,
without qualifications unacceptable to the Majority Banks, together with (A)
either (I) a written statement of the accountants that in making the examination
necessary for their report or opinion they obtained no knowledge of the
occurrence of any Default or Event of Default under this Agreement or (II) if
they know of any Default or Event of Default, their written disclosure of its
nature and status, provided that, the accountants shall not be liable directly
or indirectly to anyone for any failure to obtain knowledge of any Default or
Event of Default under this Agreement, and (B) a certificate of the treasurer of
the Company stating (I) that no Event of Default or Default has occurred and is
continuing or, if an Event of Default or Default has occurred and is continuing,
a statement setting forth the details thereof and the action which the Company
has taken and proposes to take with respect thereto, and (II) that a computation
(which computation shall accompany such certificate and shall be in reasonable
detail) showing compliance with Section 5.2(a), (b), and (c) hereof is in
conformity with the terms of this Agreement;
(iv) Promptly after the sending or filing
thereof, copies of all reports, proxy statements and financial statements which
any Borrower sends to or files with any of its respective security holders or
any securities exchange or the Securities and Exchange Commission or any
successor agency thereof; provided, however, that no such report, proxy
statement or financial statement need be delivered to the Agent or any Bank if
such item is readily available and accessible to the Agent and the Banks in its
entirety on the Company's internet web site, xxx.xxxxx.xxx.
(v) Promptly and in any event within 10 calendar
days after receiving or becoming aware thereof (A) a copy of any notice of
intent to terminate any Plan of any Borrower, their respective Subsidiaries or
any ERISA Affiliate filed with the
45
PBGC, (B) a statement of the chief financial officer or any other officer of
such Borrower setting forth the details of the occurrence of any Reportable
Event with respect to any such Plan, (C) a copy of any notice that any Borrower,
any of their respective Subsidiaries or any ERISA Affiliate may receive from the
PBGC relating to the intention of the PBGC to terminate any such Plan or to
appoint a trustee to administer any such Plan, or (D) a copy of any notice of
failure to make a required installment or other payment within the meaning of
Section 412(n) of the Code or Section 302(f) of ERISA with respect to any such
Plan; and
(vi) Promptly, such other information respecting
the business, properties, operations or condition, financial or otherwise, of
any Borrower or any of their respective Subsidiaries as any Bank or the Agent
may from time to time reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with Generally Accepted Accounting Principles and to comply with the
requirements of this Agreement and, at any reasonable time during normal
business hours and from time to time, (i) permit any Bank or the Agent or any
agents or representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of, the
Borrowers and their respective Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrowers and their respective Subsidiaries with
their respective officers, employees and independent auditors, provided that
representatives of the Company selected by the Company are present during any
such visit or discussion, and by this provision the Company does hereby
authorize such persons to discuss such affairs, finances and accounts with any
Bank or the Agent subject to the above terms and conditions and (ii) permit the
Agent and any of its agents or representative to conduct a comprehensive field
audit of its books, records, property and assets, which audits shall be
performed once per year (unless an Event of Default has occurred in which case
audits may be performed more frequently) and which audits shall be at the
expense of the Borrowers. In connection with any activities of the Agent or any
Bank pursuant to this Section 5.1(e), prior to any Default or Event of Default
hereunder, the Agent and each of the Banks: (i) shall endeavor to give the
Company three Business Days notice of any audit or visit, which visit shall be
during normal business hours, and (ii) shall follow the Company's standard
security procedures.
(f) Stamp Taxes. The Borrowers will pay all stamp taxes
and similar taxes, if any, including interest and penalties, if any, payable in
respect of the Notes. The efficacy of this subsection shall survive the payment
in full of the Notes.
(g) Further Assurances. Will execute and deliver within
30 days after request therefor by the Majority Banks or the Agent, all further
instruments and documents and take all further action that may be necessary, in
order to give effect to, and to aid in the exercise and enforcement of the
rights and remedies of the Banks and the Agent under, this Agreement and the
Notes. In addition, the Company shall promptly deliver to the Agent supplements
to Schedule 4.4 identifying those Persons that have
46
become Subsidiaries since the last date on which Schedule 4.4 was updated, with
any such delivery to occur either upon the request of the Agent or any Bank or
at such time as the assets owned, held, or otherwise controlled by such
Subsidiar(y)/(ies) equals US$25,000,000 in the aggregate.
5.2 Negative Covenants. Until the Termination Date and thereafter
until irrevocable payment in full of the principal of and accrued interest on
the Notes and all other Bank Obligations and the performance of all other
obligations of each Borrower under this Agreement, each Borrower agrees that,
unless the Majority Banks shall otherwise consent in writing it shall not (and
shall not permit any of its Subsidiaries to):
(a) Fixed Charge Coverage Ratio. Permit or suffer the
Consolidated Fixed Charge Coverage Ratio of the Company and its Subsidiaries to
be less than at 3.0 to 1.0. For purposes of this Section 5.2(a), the
Consolidated Fixed Charge Coverage Ratio shall be calculated on the last day of
each of the Company's fiscal quarters for the then most-recently ended four
consecutive fiscal quarters.
(b) Net Worth. Permit or suffer Consolidated Net Worth of
the Company and its Subsidiaries at any time to be less than the sum of (i)
$1,242,500,000 plus (ii) 75% of the cash proceeds of Capital Stock of the
Company offered or otherwise sold after the Effective Date (net of investment
banking fees, reasonable and documented attorneys' fees, accountants' fees,
underwriting discounts and commissions and other customary fees and other costs
and expenses actually incurred in connection therewith), plus (iii) an aggregate
amount equal to 60% of Consolidated Net Income (but, in each case, only if a
positive number) for each completed fiscal quarter of the Company commencing
with the fiscal quarter ending May 31, 2003.
(c) Total Indebtedness to EBITDA. Permit or suffer the
ratio of Total Indebtedness of the Company and its Subsidiaries on a
Consolidated basis to EBITDA of the Company and its Subsidiaries on a
Consolidated basis to exceed 2.5 to 1.0. For purposes of this Section 5.2(c),
(i) the ratio of Total Indebtedness to EBITDA shall be calculated on the last
day of each of the Company's fiscal quarters for the then most-recently ended
four consecutive fiscal quarters, (ii) Indebtedness arising in connection with
Notional Pooling Accounts permitted under Section 5.2(d)(ix) shall not be
included in any calculation of Total Indebtedness under this Section 5.2(c), and
(iii) Total Indebtedness, on any date of calculation, shall only include that
portion of Foreign Affiliate Contingent Liabilities in excess of US$50,000,000.
(d) Indebtedness. Create, incur, assume or in any manner
become liable in respect of, or suffer to exist, any Indebtedness other than:
(i) The Advances;
(ii) The Indebtedness described in Schedule
5.2(d) hereto and extensions and renewals thereof, having the same terms as
those existing on the date of this Agreement, but no increase in the principal
amount thereof shall be permitted;
47
(iii) Indebtedness of any Subsidiary of a Borrower
owing to a Borrower or to any other Subsidiary of a Borrower;
(iv) [Reserved]
(v) Indebtedness under the Senior Indenture
and/or the Subordinated Indenture, provided, that any Indebtedness issued under
the Senior Indenture shall, with respect to payment priority, rank equally with
or junior to the Bank Obligations, and any Indebtedness issued under the
Subordinated Indenture shall, with respect to payment priority, rank junior to
the Bank Obligations;
(vi) Indebtedness secured by Liens described in
Section 5.2(e)(ix);
(vii) Indebtedness incurred as part of a Permitted
Receivables Transaction;
(viii) Indebtedness, in an aggregate amount not to
exceed $20,000,000, in connection with any so called "synthetic lease" or "tax
ownership operating lease" transaction;
(ix) Indebtedness which in the aggregate does not
exceed US $30,000,000 and which arises solely in connection with the
administration and operation of the Notional Pooling Accounts, including,
without limitation, any Indebtedness resulting under an overdraft facility
offered by ABN AMRO Bank N.V. in connection with the operation and
administration of the Notional Pooling Accounts or any Contingent Liability
incurred by the Company in connection with its guaranty of amounts owing by any
other Borrower or Affiliate thereof in connection with the operation and
administration of the Notional Pooling Accounts;
(x) Contingent Liabilities of any Borrower or
any Subsidiary thereof which arise in respect of amounts owing by any of its
Affiliates (x) in connection with value added taxes, duties, customs, excise
taxes, franchises, licenses, rents, or the receipt of goods or services, in each
case owing to a governmental entity or a supplier, so long as the aggregate
amount of the Contingent Liabilities described in this clause (x) at no time
exceeds $115,000,000, and (y) in connection with any other Borrower or Affiliate
obligation not described in the preceding clause (x), so long as the aggregate
amount of the Contingent Liabilities described in this clause (y) at no time
exceeds $15,000,000;
(xi) Indebtedness in an aggregate amount not to
exceed $10,000,000 arising in connection with Capital Leases;
(xii) Indebtedness in an aggregate amount not to
exceed US$50,000,000 owing by Subsidiaries of the Company that are not organized
under the laws of the United States of America or any political subdivision
thereof to non-Affiliates of the Company;
48
(xiii) Purchase money Indebtedness incurred by any
Borrower or Subsidiary thereof to finance the acquisition of assets used in its
business if (a) at the time of such incurrence, no Default or Event of Default
has occurred or would result from such incurrence, (b) such Indebtedness does
not exceed the lower of the fair market value or the cost of the applicable
asset on the date acquired; and (c) such outstanding Indebtedness in the
aggregate does not exceed $5,000,000 at any time;
(xiv) Indebtedness arising under Rate Management
Transactions; and
(xv) Additional unsecured Indebtedness in an
aggregate amount not exceeding $25,000,000 at any time.
(e) Liens. Create, incur or suffer to exist any Lien on
any of the assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, whether now owned or hereafter acquired, of any Borrower
or any of its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes
being contested in good faith by appropriate proceedings and as to which
adequate financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA)
created and maintained in the ordinary course of business which are not material
in the aggregate and which constitute (A) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar legislation, (B) good
faith deposits in connection with bids, tenders, contracts or leases to which a
Borrower or any of its Subsidiaries is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits, and (C)
Liens imposed by law, such as those of carriers, warehousemen and mechanics, if
payment of the obligation secured thereby is not yet due;
(iii) Liens affecting real property which
constitute minor survey exceptions or defects or irregularities in title, minor
encumbrances, easements or reservations of, or rights of others for, rights of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of such real property,
provided that all of the foregoing, in the aggregate, do not at any time
materially detract from the value of said properties or materially impair their
use in the operation of the businesses of a Borrower or any of its Subsidiaries;
(iv) Liens existing on the date hereof upon the
same terms as the date hereof and extensions and renewals thereof, but no
increase in the principal amount secured thereby shall be permitted, with each
existing Lien described in Schedule 5.2(e) hereto;
(v) Liens granted by any Subsidiary in favor of
a Borrower or any other Subsidiary on terms and pursuant to agreements
satisfactory to the Banks;
49
(vi) The interest or title of a lessor or a
lessee, as applicable, under any lease otherwise permitted under this Agreement,
including, without limitation, "synthetic leases" and "tax ownership operating
leases" permitted under Section 5.2(d)(viii), with respect to the property
subject to such lease;
(vii) Liens on accounts receivable (together with
related collections and proceeds thereof, collateral insurance therefor,
guaranties thereof, lockbox or other collection accounts related thereto and all
records related thereto) of the Company or any Subsidiary which are transferred
to a Receivables Seller and/or to a Purchaser as part of a Permitted Receivables
Transaction (subject to the limitation on the amount of financing which may be
provided in all such transactions as set forth in the definition of the term
"Permitted Receivables Transaction" herein);
(viii) Liens (other than any Lien imposed by ERISA)
created and maintained in the ordinary course of business which are not material
in the aggregate and which constitute pledges or deposits to secure public or
statutory obligations of a Borrower or any of its Subsidiaries, or surety,
customs or appeal bonds to which a Borrower or any of its Subsidiaries is a
party;
(ix) Liens created to secure payment of a portion
of the purchase price of, or existing at the time of acquisition of, any
tangible fixed asset or real property acquired by a Borrower or any of its
Subsidiaries if the outstanding principal amount of the Indebtedness secured by
any such Lien does not at any time exceed 100% of the purchase price paid by
such Borrower or Subsidiary for such fixed asset or real property, and the
aggregate principal amount of Indebtedness secured by such Liens does not exceed
$10,000,000 at any time, provided that any such Lien does not encumber any other
asset at any time owned by such Borrower or Subsidiary;
(x) Liens arising in favor of ABN AMRO Bank
N.V., its successor, or its designee, in connection with the administration and
operation of the Notional Pooling Accounts; provided, however, that such Liens
shall not extend beyond the Notional Pooling Accounts and the amounts on deposit
therein; provided, further, that, unless otherwise required under those laws
governing the Notional Pooling Accounts, including, without limitation, the
administration and operation thereof, such Liens shall only secure the
Indebtedness described in Section 5.2(d)(ix);
(xi) Liens arising in connection with Capital
Leases permitted under Section 5.2(d)(xi);
(xii) Liens securing the Indebtedness in an
aggregate amount not to exceed US$15,000,000 incurred by Subsidiaries organized
under the laws of a jurisdiction other than the United States of America or a
political subdivision thereof and permitted under Section 5.2(d)(xii); provided,
however, that the value of those assets securing the permitted Indebtedness
shall not exceed the aggregate principal amount of the permitted Indebtedness
plus accrued and unpaid interest on the permitted Indebtedness;
50
(xiii) Liens in favor of suppliers or consignors
upon the property of such suppliers or consignors;
(xiv) Liens securing purchase money Indebtedness
permitted under Section 5.2(d)(xiii); provided, that such Liens shall not apply
to or otherwise be permitted with respect to any property of the Borrowers or
any Subsidiaries thereof other than such property purchased with the proceeds of
such purchase money Indebtedness;
(xv) Liens for the equal and ratable benefit of
the Agent, the Banks, and the Senior Trustee on behalf of the holders from time
to time of Senior Debt Securities, provided, that such Liens shall be subject to
agreements, documents, and instruments in form and substance acceptable to the
Agent;
(xvi) Liens upon cash or cash equivalents that (a)
secure Rate Management Obligations owing under Rate Management Transactions
permitted hereunder, (b) are incurred in the ordinary course of the applicable
Borrower's or Subsidiary's business, and (c) are within general industry
parameters for such types of Rate Management Obligations, such as Liens in
respect of "Credit Support Amounts" under ISDA Master Agreements and the
agreements, documents and instruments issued thereunder from time to time,
including, without limitation, credit support annexes; and
(xvii) Additional Liens securing Indebtedness owing
by the Borrowers or any Subsidiaries thereof not in excess of $5,000,000 in the
aggregate at any time outstanding.
(f) Merger; Acquisitions; Etc. Purchase or otherwise
acquire, or permit any Subsidiary to purchase or otherwise acquire, whether in
one or a series of transactions, all or a substantial portion of the business
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, of any person, or all or a substantial portion of the Capital Stock
of or other ownership interest in any other person, nor merge or consolidate or
amalgamate with any other person or take any other action having a similar
effect, nor enter into any joint venture or similar arrangement with any other
person, provided, however, that this Section 5.2(f) shall not prohibit (i)
Permitted OEM Divestiture Purchases that are governed by and comply with the
terms of Section 5.2(q), (ii) purchases and acquisitions that are governed by
Section 5.2(i) because such purchases and acquisitions are not for a substantial
portion of the business assets, rights, revenues, property or Capital Stock of
any Person, (iii) a merger of a Wholly-Owned Subsidiary of the Company with the
Company or a Wholly-Owned Subsidiary of the Company or any transfer of the
Capital Stock of a Wholly-Owned Subsidiary of the Company between Wholly-Owned
Subsidiaries of the Company or a Wholly-Owned Subsidiary of the Company and the
Company, (iv) asset or Capital Stock transfers between Wholly-Owned Subsidiaries
of the Company or the Company and one of its Wholly-Owned Subsidiaries, and (v)
joint ventures or similar arrangements between Wholly-Owned Subsidiaries of the
Company or the Company and one of its Wholly-Owned Subsidiaries; provided,
further, that this Section 5.2(f) shall not prohibit any merger, acquisition or
joint venture if (i) in the case of a merger, a Borrower or a Wholly-Owned
Subsidiary thereof shall be the surviving or continuing corporation
51
thereof, (ii) immediately before and after such merger or acquisition, no
Default or Event of Default shall exist or shall have occurred and be continuing
and the representations and warranties contained in Article IV shall be true and
correct on and as of the date thereof (both before and after such merger or
acquisition is consummated) as if made on the date such merger or acquisition is
consummated, (iii) the aggregate amount paid or payable in cash for (A) any
single merger, acquisition or joint venture by any Borrower or Subsidiary does
not exceed $50,000,000, and (B) all such mergers, acquisitions or joint ventures
by the Borrowers and Subsidiaries after the Effective Date does not exceed
$150,000,000, and (iv) if the aggregate purchase price of or aggregate amount of
consideration remitted in connection with any such merger or acquisition exceeds
or is to exceed $25,000,000, prior to the consummation of such merger or
acquisition the Company shall have provided to the Banks an opinion of counsel
and a certificate of the chief financial officer of the Company (attaching
computations and pro forma financial statements to demonstrate compliance with
all financial covenants hereunder both before and after such merger, acquisition
or joint venture has been completed), stating that such merger or acquisition
complies with this Section 5.2(f) and that any other conditions under this
Agreement relating to such transaction have been satisfied.
(g) Disposition of Assets; Dissolution of Subsidiaries;
Etc. (i) Sell, lease, license, transfer, assign or otherwise dispose of, or
permit any Subsidiary to sell, lease, license, transfer, assign or otherwise
dispose of, all or a substantial portion of its business, assets, rights,
revenues or property, real, personal or mixed, tangible or intangible, whether
in one or a series of transactions, other than inventory sold in the ordinary
course of business upon customary credit terms and sales of scrap or obsolete
material or equipment, provided, however, that this Section 5.2(g) shall not
prohibit (A) any such sale, lease, license, transfer, assignment or other
disposition if the consolidated book value (disregarding any write-downs of such
book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property of the Company and its
Subsidiaries disposed of in any consecutive twelve-month period shall be less
than 10% of the consolidated book value of the assets of the Company and its
Subsidiaries as of the beginning of such twelve month period and the aggregate
book value of all assets disposed of after the Effective Date shall be less than
25% of the consolidated book value of assets of the Company and its Subsidiaries
at the time of any such disposition and if, immediately before and after such
transaction, no Default or Event of Default shall exist or shall have occurred
and be continuing, (B) sales by any Borrower or any Subsidiary of accounts
receivable pursuant to Permitted Receivables Transactions (subject to the
limitation on the amount of financing which may be provided in all such
transactions set forth in the definition of the term "Permitted Receivables
Transaction" herein) or (C) any such sale, lease, license, transfer, assignment
or other disposition between Wholly-Owned Subsidiaries of the Company or a
Wholly-Owned Subsidiary of the Company and the Company.
(ii) Dissolve or terminate the existence of any Subsidiary
of the Company other than the dissolution or termination of any Subsidiary
possessing immaterial assets or liabilities or no continuing business purpose,
in either case as determined by the Company in its reasonable discretion.
52
(h) Nature of Business. Make any substantial change in
the nature of its business from that engaged in on the date of this Agreement or
engage in any other businesses other than the design, development and
manufacturing of computer-grade electronic products.
(i) Investments, Loans and Advances. Purchase or
otherwise acquire any Capital Stock of or other ownership interest in, or debt
securities of or other evidences of Indebtedness of, any other person; nor make
any loan or advance of any of its funds or property or make any other extension
of credit to, or make any investment or acquire any interest whatsoever in, any
other person; nor incur any Contingent Liability owing by or constituting an
obligation of another Person; provided, however, that this Section 5.2(i) shall
not apply to:
(i) Permitted OEM Divestiture Purchases governed
by and permitted under Section 5.2(q) and those transactions that are governed
by and permitted under Section 5.2(f);
(ii) extensions of trade credit made in the
ordinary course of business on customary credit terms and commission, travel and
similar advances made to officers and employees in the ordinary course of
business;
(iii) demand deposit accounts, escrow deposits, or
retainer deposits maintained in the ordinary course of business;
(iv) commercial paper of any United States issuer
having the highest rating then given by Xxxxx'x Investors Service, Inc.
("Moody's"), Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies ("S&P"), or Fitch Investors Service, L.P. ("Fitch");
(v) direct obligations of or obligations fully
guaranteed by the United States of America or any agency or instrumentality
thereof, or direct obligations of or obligations fully guaranteed by a state of
the United States of America or any political subdivision or instrumentality
thereof having one of the two highest ratings then given by Moody's, S&P, or
Fitch;
(vi) repurchase agreements relating to a security
having one of the three highest ratings then given by Moody's, S&P, or Fitch;
(vii) time deposits, certificates of deposit, or
bankers' acceptances of any commercial bank which is a member of the Federal
Reserve System or any OECD country's equivalent thereof and which has capital,
surplus and undivided profit (as shown on its most recently published statement
of condition) aggregating not less than $100,000,000;
(viii) Money market instruments having maturities
of no more than 35 days collateralized with student loans and having the highest
rating then given by S&P, Moody's, or Fitch;
53
(ix) Money market, mutual fund, or similar funds
having net assets in excess of $500,000,000 and substantially all of whose
assets are of the types described in (iii) through (viii) above;
(x) those investments, loans, advances and other
transactions described in Schedule 5.2(i) hereto, having the same terms as
existing on the date of this Agreement, together with extensions and renewals
thereof, but no increase in the amount of such investment, loan or advance shall
be permitted, unless otherwise permitted pursuant to clause (xii) hereof;
(xi) investments in, or loans and advances to,
any Subsidiary which was a Subsidiary prior to such investment, loan or advance;
(xii) other investments, loans and advances not
exceeding an aggregate amount of $50,000,000 at any time;
(xiii) Contingent Liabilities permitted under
Section 5.2(d); and
(xiv) Rate Management Obligations otherwise
permitted under this Agreement;
provided, however, that each of the investments described in clauses (iv)
through (vii) and clause (ix) above has a maturity date not later than 365 days
after the acquisition thereof by the Company or any of its Subsidiaries.
(j) Transactions with Affiliates. Enter into or become a
party to any contract or undertaking with any Affiliate except (i) in the
ordinary course of business and on terms not less favorable to a Borrower or any
Subsidiary than those which could be obtained if such contract or undertaking
were an arms length transaction with a person other than an Affiliate, or (ii)
pursuant to or in connection with a Permitted Receivables Transaction;
(k) Sale and Leaseback Transactions. Become or remain
liable in any way, whether directly or by assignment or as a guarantor or other
contingent obligor, for the obligations of the lessee or user under any lease or
contract for the use of any real or personal property if such property is owned
on the date of this Agreement or thereafter acquired by such Borrower or any of
its Subsidiaries and has been or is to be sold or transferred to any other
person and was, is or will be used by such Borrower or any such Subsidiary for
substantially the same purpose as such property was used by such Borrower or
such Subsidiary prior to such sale or transfer if the net present value of the
aggregate rental obligations under any such leases or contracts (discounted at
the implied interest rate of such lease or contract) exceeds 10% of the total
assets of such Borrower and its Subsidiaries on a consolidated basis.
(l) Negative Pledge Limitation. Enter into any agreement
with any person that prohibits or limits the ability of any Borrower or any
Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its
assets, rights, revenues or
54
property, real, personal or mixed, tangible or intangible, whether now owned or
hereafter acquired, other than:
(i) this Agreement or the agreements, documents
and instruments delivered in connection herewith;
(ii) the Senior Indenture;
(iii) any agreement evidencing a Permitted
Receivables Transaction so long as such limitation relates to the receivables
subject thereto or the property the sale of which gives rise to such
receivables;
(iv) any agreement evidencing purchase money
Indebtedness so long as such Indebtedness is permitted hereunder and such
prohibition or limitation relates only to property acquired with the proceeds of
such purchase money Indebtedness;
(v) any agreement evidencing Indebtedness
secured by Liens described in Section 5.2(e)(ix) so long as such Indebtedness is
permitted hereunder and such prohibition or limitation relates only to the fixed
assets or real property acquired with the proceeds of such Indebtedness;
(vi) any agreement evidencing Indebtedness
arising in connection with Capital Leases permitted under Section 5.2(d) (xi) so
long as such prohibition or limitation relates only to the property subject to
such Capital Lease;
(vii) those agreements evidencing supply or
consignment arrangements where Liens granted in connection therewith are
permitted under Section 5.2(e); provided, however, that such prohibition or
limitation shall only related to the property subject to such supply or
consignment arrangement;
(viii) the agreements, documents, and instruments
evidencing the creation, operation and maintenance of the Notional Pooling
Accounts so long as such prohibition or limitation relates solely to the
Notional Pooling Accounts and the amounts on deposit therein.
(m) Inconsistent Agreements. Enter into any agreement
containing any provision which would be violated or breached in any material
respect by this Agreement or any of the transactions contemplated hereby or by
performance by any Borrower or any of its Subsidiaries of its obligations in
connection therewith.
(n) Accounting Changes. A Borrower shall not change its
fiscal year or make any significant changes (i) in accounting treatment and
reporting practices except as permitted by Generally Accepted Accounting
Principles and disclosed to the Banks, or (ii) in tax reporting treatment except
as permitted by law and disclosed to the Banks.
(o) Additional Covenants. If at any time any Borrower
shall enter into or be a party to any instrument or
55
agreement, including all such instruments or agreements in existence as of the
date hereof and all such instruments or agreements entered into after the date
hereof, relating to or amending any terms or conditions applicable to any of its
Indebtedness which includes covenants, terms, conditions or defaults not
substantially provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then the Borrowers
shall promptly so advise the Agent and the Banks. Thereupon, the Agent shall
request, and, upon notice to the Borrowers, the Agent and the Banks shall enter
into an amendment to this Agreement or an additional agreement (as the Agent may
request), providing for substantially the same covenants, terms, conditions and
defaults as those provided for in such instrument or agreement to the extent
required and as may be selected by the Agent. In addition to the foregoing, any
covenants, terms, conditions or defaults in the Senior Indenture and any Senior
Debt Securities issued pursuant thereto not substantially provided for in this
Agreement or more favorable to the holders of the Senior Debt Securities issued
in connection therewith, including, without limitation, as set forth in any
amendments or waivers thereto, are hereby incorporated by reference into this
Agreement to the same extent as if set forth fully herein.
(p) Dividends and Other Restricted Payments. At any time
when the long-term debt ratings of the Company as assigned by both Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, are less than investment grade, make, pay, declare or
authorize any dividend, payment or other distribution in respect of any class of
its Capital Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of shares of its Capital Stock (together with any dividend or other
distribution, "Distributions") other than (i) Distributions to the extent
payable solely in shares of Capital Stock of the Company and (ii) Distributions
by Subsidiaries of the Company, if the aggregate amount of such Distributions
(excluding consideration paid in other Capital Stock of the Company but
including any such Distribution then being paid or authorized) from and after
the Effective Date would not exceed 20% of the Net Worth of the Company at such
time.
(q) Permitted OEM Divestiture Purchases. Acquire, or
permit any Subsidiary to acquire, whether through an acquisition of Capital
Stock or of assets, all or any substantial portion of a division, line of
business or separate facility of any other person, or make any similar purchase
or acquisition, other than (i) mergers and acquisitions that are not Permitted
OEM Divestiture Purchases but otherwise comply with the terms of Sections 5.2(f)
and 5.2(i), and (ii) Permitted OEM Divestiture Purchases for which the aggregate
consideration paid or payable does not exceed $250,000,000 individually or,
together with all other Permitted OEM Divestiture Purchases occurring after the
Effective Date, $500,000,000.
(r) Financial Contracts. Enter into or remain liable
upon, or permit any Subsidiary to enter into or remain liable upon, any Rate
Management Transactions except for those entered into in the ordinary course of
business for bona fide hedging purposes and not for speculative purposes.
56
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall constitute an "Event of Default" hereunder unless
waived by the Majority Banks pursuant to Section 9.1:
(a) Nonpayment of Principal. Any Borrower shall fail to
pay when due any principal of the Notes; or
(b) Nonpayment of Interest. Any Borrower shall fail to
pay when due any interest or any fees or any other amount payable hereunder and
such failure shall remain unremedied for five days; or
(c) Misrepresentation. Any representation or warranty
made by any Borrower in Article IV hereof, any other Loan Document or any other
certificate, report, financial statement or other document furnished by or on
behalf of any Borrower in connection with this Agreement shall prove to have
been incorrect in any material respect when made or deemed made; or
(d) Certain Covenants. Any Borrower shall fail to perform
or observe any term, covenant or agreement contained in Section 5.2 hereof; or
(e) Other Defaults. Any Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any
other Loan Document, and any such failure shall remain unremedied for 30
calendar days after written notice thereof shall have been given to the Company
by the Agent; or
(f) Cross Default. (i) Any Borrower or any of its
respective Subsidiaries shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due under any
of its Indebtedness (other than Indebtedness hereunder), beyond any period of
grace provided with respect thereto, which individually or together with other
such Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $15,000,000; or (ii) any Borrower or
any of its respective Subsidiaries shall fail to perform or observe any other
term, covenant or agreement contained in any agreement, document or instrument
evidencing or securing any such Indebtedness having such aggregate outstanding
principal amount, or under which any such Indebtedness was issued or created,
beyond any period of grace, if any, provided with respect thereto, and the
effect of any such failure is either (x) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment of
such Indebtedness to become due prior to its due date or (y) to permit the
holders of such Indebtedness (or a trustee on behalf of such holders) to elect a
majority of the board of directors of such Borrower or such Subsidiary; or
(g) Judgments. One or more final unappealable judgments
or orders for the payment of money in an aggregate amount of $10,000,000 shall
be rendered against or shall affect any Borrower or any of their respective
Subsidiaries, or any other
57
judgment or order (whether or not for the payment of money) shall be rendered
against or shall affect any Borrower or any of their respective Subsidiaries
which causes or would cause a Material Adverse Effect; or
(h) ERISA. The occurrence of a Reportable Event that
results in or would result in material liability of any Borrower, any Subsidiary
of any Borrower or their ERISA Affiliates to the PBGC or to any Plan and such
Reportable Event is not corrected within thirty (30) days after the occurrence
thereof; or the occurrence of any Reportable Event which would constitute
grounds for termination of any Plan of any Borrower, their respective
Subsidiaries or their ERISA Affiliates by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer any such
Plan and such Reportable Event is not corrected within thirty (30) days after
the occurrence thereof; or the filing by any Borrower, any Subsidiary of any
Borrower or any of their ERISA Affiliates of a notice of intent to terminate a
Plan or the institution of other proceedings to terminate a Plan; or any
Borrower, any Subsidiary of any Borrower or any of their ERISA Affiliates shall
fail to pay when due any material liability to the PBGC or to a Plan; or the
PBGC shall have instituted proceedings to terminate, or to cause a trustee to be
appointed to administer, any Plan of any Borrower, their respective Subsidiaries
or their ERISA Affiliates; or any person engages in a Prohibited Transaction
with respect to any Plan which results in or could result in material liability
of the any Borrower, any Subsidiary of any Borrower, any of their ERISA
Affiliates, any Plan of any Borrower, their respective Subsidiaries or their
ERISA Affiliates or fiduciary of any such Plan; or failure by any Borrower, any
Subsidiary of any Borrower or any of their ERISA Affiliates to make a required
installment or other payment to any Plan within the meaning of Section 302(f) of
ERISA or Section 412(n) of the Code that results in or could result in liability
of any Borrower, any Subsidiary of any Borrower or any of their ERISA Affiliates
to the PBGC or any Plan; or the withdrawal of any Borrower, any of their
respective Subsidiaries or any of their ERISA Affiliates from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(9a)(2) of ERISA; or any Borrower, any of their respective Subsidiaries or
any of their ERISA Affiliates becomes an employer with respect to any
Multiemployer Plan without the prior written consent of the Majority Banks; or
(i) Insolvency, Etc. Any Borrower shall be dissolved or
liquidated (or any judgment, order or decree therefor shall be entered), or
shall generally not pay its debts as they become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors, or shall institute, or there shall be instituted
against any Borrower, any proceeding or case seeking to adjudicate it a bankrupt
or insolvent or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief or protection of
debtors or seeking the entry of an order for relief, or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its assets, rights, revenues or property, and, if such
proceeding is instituted against any Borrower and is being contested by such
Borrower in good faith by appropriate proceedings, such proceeding shall remain
undismissed or unstayed for a period of 60 days; or any Borrower shall take any
action
58
(corporate or other) to authorize or further any of the actions described above
in this subsection; or
(j) Loan Documents. Any event of default described in any
Loan Document shall have occurred and be continuing, or any provision of any
Loan Document shall at any time for any reason cease to be valid and binding and
enforceable against any obligor thereunder, or the validity, binding effect or
enforceability thereof shall be contested by any person, or any obligor, shall
deny that it has any or further liability or obligation thereunder, or any Loan
Document shall be terminated, invalidated or set aside, or be declared
ineffective or inoperative or in any way cease to give or provide to the Banks
and the Agent the benefits purported to be created thereby.
(k) Change of Control. The Company shall experience a
Change of Control. For purposes of this Section 6.1(k), a "Change of Control"
shall occur if during any twelve-month period (i) any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13D-3 promulgated by the Securities and Exchange Commission under said Act) of
50% or more in voting power of the voting shares of the Company that were
outstanding as of the date of this Agreement and (ii) a majority of the board of
directors of the Company shall cease for any reason to consist of individuals
who as of a date twelve months prior to any date compliance herewith is
determined were directors of the Company.
(l) Rate Management Obligations. Any Borrower or any of
its respective Subsidiaries shall fail to pay any Rate Management Obligation
when due, beyond any period of grace provided with respect thereto, if any, or
shall fail to perform or observe any other term, covenant or agreement contained
in any agreement, document or instrument evidencing or securing any such Rate
Management Obligation, or under which any such Rate Management Obligation was
issued or created, beyond any period of grace, if any, provided with respect
thereto, and the effect of any such failure is to cause, or permit the Person to
whom such Rate Management Obligation is owing (or a trustee on behalf of such
Person) to cause, any payment of such Rate Management Obligation to become due
prior to its due date.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any
Event of Default, the Agent may, with the consent of the Majority Banks, and,
upon being directed to do so by the Majority Banks, shall by notice to the
Borrowers (i) terminate the Commitments or (ii) declare the outstanding
principal of, and accrued interest on, the Notes and all other amounts owing
under this Agreement to be immediately due and payable, or (iii) demand an
immediate payment, and the Borrowers agree to make such payment upon demand, in
an amount equal to the maximum amount that may be available to be drawn at any
time prior to the stated expiry of all outstanding Letters of Credit, or any one
or more of the foregoing, whereupon the Commitments shall terminate forthwith
and all such amounts, including such payment in respect of Letters of Credit,
shall become immediately due and payable, provided that in the case of any event
or
59
condition described in Section 6.1(i) with respect to any Borrower, the
Commitments shall automatically terminate forthwith and all such amounts,
including such payments in respect of Letters of Credit, shall automatically
become immediately due and payable without notice; in all cases without demand,
presentment, protest, diligence, notice of dishonor or other formality, all of
which are hereby expressly waived. Any portion of a payment made in respect of
Letters of Credit that remains after the expiry or termination of such Letters
of Credit and the payment of all amounts owing in connection therewith shall be
promptly returned to the Borrowers.
(b) The Agent may, with the consent of the Majority
Banks, and, upon being directed to do so by the Majority Banks, shall, in
addition to the remedies provided in Section 6.2(a), exercise and enforce any
and all other rights and remedies available to it or the Banks, whether arising
under this Agreement, the Notes, any other Loan Document or under applicable
law, in any manner deemed appropriate by the Agent, including suit in equity,
action at law, or other appropriate proceedings, whether for the specific
performance (to the extent permitted by law) of any covenant or agreement
contained in this Agreement or any other Loan Document or in aid of the exercise
of any power granted in this Agreement or any other Loan Document.
(c) Upon the occurrence and during the continuance of any
Event of Default, each Bank may at any time and from time to time, without
notice to any Borrower (any requirement for such notice being expressly waived
by each Borrower) set off and apply against any and all of the obligations of
each Borrower now or hereafter existing under this Agreement, whether owing to
such Bank or any other Bank or the Agent, any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of any Borrower and any property of any Borrower from time to time in possession
of such Bank, irrespective of whether or not such Bank shall have made any
demand hereunder and although such obligations may be contingent and unmatured.
The rights of such Bank under this Section 6.2(c) are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
which such Bank may have.
6.3 Distribution of Proceeds. Upon and during the continuance of
any Event of Default, all amounts received by the Agent in respect of the Bank
Obligations shall be allocated and distributed as follows:
(a) First, to the payment of all costs and expenses,
including without limitation all reasonable attorneys' fees, of the Agent in
connection with the enforcement of and otherwise administering this Agreement
and the other Loan Documents;
(b) Second, to the payment of all costs, expenses and
fees, including without limitation, facility fees and reasonable attorneys fees,
owing to the Banks pursuant to the Bank Obligations on a pro rata basis in
accordance with the Bank Obligations consisting of fees, costs and expenses
owing to the Banks under the Bank Obligations, for application to payment of
such liabilities;
60
(c) Third, to the Banks on a pro rata basis in accordance
with the Bank Obligations consisting of interest owing to the Banks under the
Bank Obligations, for application to payment of such liabilities;
(d) Fourth, to the Banks on a pro rata basis in
accordance with the Bank Obligations consisting of principal (including, without
limitation, any payment made in respect of any outstanding Letters of Credit as
contemplated in Section 6.4 or as otherwise contemplated by this Agreement)
owing to the Banks under the Bank Obligations, for application to payment of
such liabilities;
(e) Fifth, to the payment of any and all other amounts
owing to the Banks on a pro rata basis in accordance with the total amount of
such Indebtedness owing to each of the Banks, for application to payment of such
liabilities; and
(f) Sixth, to the Borrowers or such other person as may
be legally entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest or fees
delivered to the Agent for the account of any Defaulting Bank shall be delivered
by the Agent to such Defaulting Bank. Instead, such payments shall, for so long
as such Defaulting Bank shall be a Defaulting Bank, be held by the Agent, and
the Agent is hereby authorized and directed by all parties hereto to hold such
funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due
from such Defaulting Bank to the Agent; and
(ii) Second, to Loans required to be made by such
Defaulting Bank on any borrowing date to the extent such Defaulting Bank fails
to make such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments
and the payment and performance of all of the Advances (other than those owing
to a Defaulting Bank), any funds then held in escrow by the Agent pursuant to
the preceding sentence shall be distributed to each Defaulting Bank, pro rata in
proportion to amounts that would be due to each Defaulting Bank but for the fact
that it is a Defaulting Bank.
6.4 Letter of Credit Liabilities. For the purposes of payments and
distributions under Section 6.3, the full amount of Bank Obligations on account
of any Letter of Credit then outstanding but not drawn upon shall be deemed to
be then due and owing. The Borrowers shall promptly remit a payment to the Agent
on behalf of the Banks equal to the aggregate of such Bank Obligations on
account of all outstanding Letters of Credit. If any portion of such payment
remains after the repayment of all such Letter of Credit Bank Obligations and
the expiration or termination of all of the underlying Letters of Credit, then
such remaining portion of such payment shall be promptly returned to the
Borrowers.
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ARTICLE VII
THE AGENT AND THE BANKS
7.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. The provisions of this Article VII
are solely for the benefit of the Agent and the Banks, and the Borrowers shall
not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, the Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Borrowers.
7.2 Agent and Affiliates. The Agent in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank and
may exercise or refrain from exercising the same as though it were not the
Agent. Bank One and its affiliates may (without having to account therefor to
any Bank) accept deposits from, lend money to, and generally engage in any kind
of banking, trust, financial advisory or other business with any Borrower or any
Subsidiary of any Borrower as if it were not acting as Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
7.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Bank, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement actions under the Notes), the Agent shall
not be required to exercise any discretion or take any action, but the Agent
shall take such action or omit to take any action pursuant to the written
instructions of the Majority Banks and may request instructions from the
Majority Banks. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, pursuant to the written instructions of the Majority
Banks, which instructions and any action or omission pursuant thereto shall be
binding upon all of the Banks; provided, however, that the Agent shall not be
required to act or omit to act if, in the judgment of the Agent, such action or
omission may expose the Agent to personal liability or is contrary to this
Agreement, the Notes or applicable law.
7.4 Reliance by Agent. The Agent shall be entitled to rely upon
any certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto.
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The Agent may employ agents (including without limitation collateral agents) and
may consult with legal counsel (who may be counsel for the Borrowers),
independent public accountants and other experts selected by it and shall not be
liable to the Banks, except as to money or property received by it or its
authorized agents, for the negligence or misconduct of any such agent selected
by it with reasonable care or for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
7.5 Default. The Agent shall not be deemed to have knowledge of
the occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Bank or a Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice, the Agent shall give prompt written notice
thereof to the Banks.
7.6 Liability of Agent. Neither the Agent nor any of its
directors, officers, agents, or employees shall be liable to the Banks for any
action taken or not taken by it or them in connection herewith with the consent
or at the request of the Majority Banks or in the absence of its or their own
gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any recital, statement, warranty
or representation contained in this Agreement or any Note, or in any
certificate, report, financial statement or other document furnished in
connection with this Agreement, (ii) the performance or observance of any of the
covenants or agreements of any Borrower, (iii) the satisfaction of any condition
specified in Article II hereof, or (iv) the validity, effectiveness, legal
enforceability, value or genuineness of this Agreement or the Notes or any
collateral subject thereto or any other instrument or document furnished in
connection herewith.
7.7 Nonreliance on Agent and Other Banks. Each Bank acknowledges
and agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrowers and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decision in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
any Borrower of this Agreement, the Notes or any other documents referred to or
provided for herein or to inspect the properties or books of any Borrower and,
except for notices, reports and other documents and information expressly
required to be furnished to the Banks by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Bank with any information
concerning the affairs, financial condition or business of the Borrowers or any
of their respective Subsidiaries which may come into the possession of the Agent
or any of its affiliates.
7.8 Indemnification. The Banks agree to indemnify the Agent (to
the extent not reimbursed by the Borrowers, but without limiting any obligation
of the Borrowers to make such reimbursement), ratably according to the
respective principal amounts of the
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Advances then outstanding made by each of them (or if no Advances are at the
time outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all claims, damages, losses, liabilities,
costs or expenses of any kind or nature whatsoever (including, without
limitation, fees and disbursements of counsel) which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or the transactions contemplated hereby or any action taken or omitted
by the Agent under this Agreement, provided, however, that no Bank shall be
liable for any portion of such claims, damages, losses, liabilities, costs or
expenses resulting from the Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including without limitation reasonable fees and expenses of counsel) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrowers, but without limiting the
obligation of the Borrowers to make such reimbursement. Each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any amounts
owing to the Agent by the Banks pursuant to this Section. If the indemnity
furnished to the Agent under this Section shall, in the judgment of the Agent,
be insufficient or become impaired, the Agent may call for additional indemnity
from the Banks and cease, or not commence, to take any action until such
additional indemnity is furnished.
7.9 Resignation of Agent. The Agent may resign as such at any time
upon thirty days' prior written notice to the Borrowers and the Banks. In the
event of any such resignation, the Company and the Majority Banks shall, by an
instrument in writing delivered to the Banks and the Agent, appoint a successor,
which shall be a Bank or any other commercial bank organized under the laws of
the United States or any State thereof and having a combined capital and surplus
of at least $500,000,000. If a successor is not so appointed or does not accept
such appointment before the Agent's resignation becomes effective, the resigning
Agent may appoint a temporary successor to act until such appointment by the
Company and the Majority Banks is made and accepted, which temporary successor
must also meet the standards set forth in the preceding sentence. Any successor
to the Agent shall execute and deliver to the Borrowers and the Banks an
instrument accepting such appointment and thereupon such successor Agent,
without further act, deed, conveyance or transfer shall become vested with all
of the properties, rights, interests, powers, authorities and obligations of its
predecessor hereunder with like effect as if originally named as Agent
hereunder. Upon request of such successor Agent, the Borrowers and the resigning
Agent shall execute and deliver such instruments of conveyance, assignment and
further assurance and do such other things as may reasonably be required for
more fully and certainly vesting and confirming in such successor Agent all such
properties, rights, interests, powers, authorities and obligations. The
provisions of this Article VII shall thereafter remain effective for such
resigning Agent with respect to any actions taken or omitted to be taken by such
Agent while acting as the Agent hereunder.
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7.10 Sharing of Payments. The Banks agree among themselves that, in
the event that any Bank shall obtain payment in respect of any Advance or any
other obligation owing to the Banks under this Agreement through the exercise of
a right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Banks on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Bank shall
promptly notify the Agent and purchase from the other Banks participations in
such Advances and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all of the
Banks share such payment in accordance with such ratable shares. The Banks
further agree among themselves that if payment to a Bank obtained by such Bank
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise as aforesaid shall be rescinded or must otherwise be restored, each
Bank which shall have shared the benefit of such payment shall, by repurchase of
participations theretofore sold, return its share of that benefit to each Bank
whose payment shall have been rescinded or otherwise restored. The Borrowers
agree that any Bank so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including set-off,
banker's lien or counterclaim, with respect to such participation as fully as if
such Bank were a holder of such Advance or other obligation in the amount of
such participation. The Banks further agree among themselves that, in the event
that amounts received by the Banks and the Agent hereunder are insufficient to
pay all such obligations or insufficient to pay all such obligations when due,
the fees and other amounts owing to the Agent in such capacity shall be paid
therefrom before payment of obligations owing to the Banks under this Agreement,
other than agency fees and arrangement fees payable pursuant to Section 2.3(d)
of this Agreement which shall be paid on a pro rata basis with amounts owing to
the Banks. Except as otherwise expressly provided in this Agreement, if any Bank
or the Agent shall fail to remit to the Agent or any other Bank an amount
payable by such Bank or the Agent to the Agent or such other Bank pursuant to
this Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Agent or such other Bank at a rate per
annum equal to the rate at which borrowings are available to the payee in its
overnight federal funds market. It is further understood and agreed among the
Banks and the Agent that if the Agent or any Bank shall engage in any other
transactions with any Borrower and shall have the benefit of any collateral or
security therefor which does not expressly secure the obligations arising under
this Agreement except by virtue of a so-called dragnet clause or comparable
provision, the Agent or such Bank shall be entitled to apply any proceeds of
such collateral or security first in respect of the obligations arising in
connection with such other transaction before application to the obligations
arising under this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of
any provision of this Agreement nor any consent to any departure therefrom shall
be effective
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unless the same shall be in writing and signed by the Borrowers and the Majority
Banks and, to the extent any rights or duties of the Agent may be affected
thereby, the Agent, provided, however, that no such amendment, modification,
termination, waiver or consent shall, without the consent of the Agent and all
of the Banks, (i) authorize or permit the extension of time for, or any
reduction of the amount of, any payment of the principal of, or interest on or
the rate at which interest accrues on, the Notes or any installment thereof or
any Letter of Credit reimbursement obligation, or any fees or other amount
payable hereunder, (ii) amend or terminate the respective Commitment of any Bank
(other than in connection with any assignment permitted hereunder or an increase
or decrease, as applicable, of the Commitments which occurs under Sections 2.2
and 3.1(d), in which case such amendment or termination shall be deemed to
occur, subject to the requirements of Sections 2.11, 3.1(d), and 8.6, as
applicable, automatically upon the effectiveness of such assignment, increase,
or decrease, as applicable) or modify the provisions of this Section regarding
the taking of any action under this Section or the provisions of Section 7.10 or
the definition of Majority Banks, (iii) amend, modify or waive any other
provision hereof requiring consent of all of the Banks or (iv) increase the
principal amount of the Swing Line Facility.
(b) Any such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(c) Notwithstanding anything herein to the contrary, no
Bank that is in default of any of its obligations, covenants or agreements under
this Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction from
the Banks to the Agent, and, for purposes of determining the Majority Banks at
any time when any Bank is in default under this Agreement, the Commitments and
Advances of such defaulting Banks shall be disregarded.
8.2 Notices.
(a) Except as otherwise provided in Section 9.2(c)
hereof, all notices and other communications hereunder shall be in writing and
shall be delivered or sent to the Borrowers in care of the Company at 10560 Xx.
Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, 00000, Attention:
Chief Financial Officer, Facsimile No. (000) 000-0000, and to the Agent and the
Banks at the respective addresses and numbers for notices set forth on the
signatures pages hereof, or to such other address as may be designated by any
Borrower, the Agent or any Bank by notice to the other parties hereto. All
notices and other communications shall be deemed to have been given at the time
of actual delivery thereof to such address, or if sent by certified or
registered mail, postage prepaid, to such address, on the third day after the
date of mailing, or if deposited prepaid with Federal Express or other
nationally recognized overnight delivery service prior to the deadline for next
day delivery, on the Business Day next following such deposit, provided,
however, that notices to the Agent shall not be effective until received.
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(b) Notices by a Borrower to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.2, requests
for Advances pursuant to Section 2.4, requests for continuations or conversions
of Loans pursuant to Section 2.7 and notices of prepayment pursuant to Section
3.1 shall be irrevocable and binding on the Borrowers.
(c) Any notice to be given by a Borrower to the Agent
pursuant to Sections 2.4 or 2.7 and any notice to be given by the Agent or any
Bank hereunder, may be given by telephone, and all such notices given by a
Borrower must be immediately confirmed in writing in the manner provided in
Section 8.2(a). Any such notice given by telephone shall be deemed effective
upon receipt thereof by the party to whom such notice is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of
dealing on the part of the Agent or any Bank, nor any delay or failure on the
part of the Agent or any Bank in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the Agent's or such Bank's rights and remedies hereunder;
nor shall any single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or privilege. No right or
remedy conferred upon or reserved to the Agent or any Bank under this Agreement
or any other Loan Document is intended to be exclusive of any other right or
remedy, and every right and remedy shall be cumulative, except as limited by
this Agreement, and in addition to every other right or remedy granted
thereunder or now or hereafter existing under any applicable law. Every right
and remedy granted by this Agreement or the Notes or by applicable law to the
Agent or any Bank may be exercised from time to time and as often as may be
deemed expedient by the Agent or any Bank and, unless contrary to the express
provisions of this Agreement or the Notes, irrespective of the occurrence or
continuance of any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of any Borrower made
herein or in any certificate, report, financial statement or other document
furnished by or on behalf of any Borrower in connection with this Agreement
shall be deemed to be material and to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter made by any Bank or on
such Bank's behalf, and those covenants and agreements of the Borrowers set
forth in Sections 3.7, 3.9 and 8.5 hereof shall survive the repayment in full of
the Advances and the termination of the Commitments for a period of one year
from such repayment or termination.
8.5 Expenses.
(a) Each of the Borrowers agrees to pay, or reimburse the
Agent for the payment of, on demand, (i) the reasonable fees, without premium,
and expenses of counsel to the Agent, including without limitation the
reasonable fees and expenses of counsel (including, without limitation, Sidley
Xxxxxx Xxxxx & Xxxx) in connection with the preparation, execution, delivery and
administration of the Loan Documents and the consummation of the transactions
contemplated hereby, and in connection with advising
67
the Agent as to its rights and responsibilities with respect thereto, and in
connection with any amendments, waivers or consents in connection therewith, and
(ii) all stamp and other taxes and fees payable or determined to be payable by
the Agent or any Bank in connection with the execution, delivery, filing or
recording of this Agreement, the Notes and the consummation of the transactions
contemplated hereby, and any and all liabilities of the Agent and the Banks with
respect to or resulting from any delay in paying or omitting to pay such taxes
or fees, and (iii) all reasonable costs and expenses of the Agent and the Banks
(including without limitation reasonable fees and expenses of counsel, including
without limitation counsel who are employees of the Agent or the Banks, and
whether incurred through negotiations, legal proceedings or otherwise) in
connection with any Default or Event of Default or the enforcement of, or the
exercise or preservation of any rights under the Loan Documents or in connection
with any refinancing or restructuring of the credit arrangements provided under
this Agreement and (iv) all reasonable costs and expenses of the Agent and the
Banks (including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent from paying any amount
under, or otherwise relating in any way to, any Letter of Credit and any and all
costs and expenses which any of them may incur relative to any payment under any
Letter of Credit. Notwithstanding anything to the contrary contained herein,
prior to the occurrence of an Event of Default or a Default, the Borrower shall
not be required to reimburse any Person other than the Agent for any fees and
expenses of such Person's counsel incurred in connection with the preparation,
negotiation, delivery, administration or modification (whether by waiver,
amendment or otherwise) of this Agreement or the other Loan Documents.
(b) Each of the Borrowers hereby indemnifies and agrees
to hold harmless the Banks, the Issuing Bank and the Agent, their affiliates and
their respective officers, directors, employees and agents, harmless from and
against any and all claims, damages, losses, liabilities, costs or expenses of
any kind or nature whatsoever which the Banks, the Issuing Bank or the Agent or
any such person may incur or which may be claimed against any of them by reason
of or in connection with any Letter of Credit, and neither any Bank, the Issuing
Bank nor the Agent, their affiliates or any of their respective officers,
directors, employees or agents shall be liable or responsible for: (i) the use
which may be made of any Letter of Credit or for any acts or omissions of any
beneficiary in connection therewith; (ii) the validity, sufficiency or
genuineness of documents or of any endorsement thereon, even if such documents
should in fact prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (iii) payment by the Issuing Bank to the beneficiary under
any Letter of Credit against presentation of documents which do not comply with
the terms of any Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; (iv) any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit;
or (v) any other event or circumstance whatsoever arising in connection with any
Letter of Credit; provided, however, that the Borrowers shall not be required to
indemnify the Banks, the Issuing Bank and the Agent and such other persons, and
the Issuing Bank shall be liable to the Borrowers to the extent, but only to the
extent, of any direct, as opposed to consequential or incidental, damages
suffered by any Borrower which were
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caused by (A) the Issuing Bank's wrongful dishonor of any Letter of Credit after
the presentation to it by the beneficiary thereunder of a draft or other demand
for payment and other documentation strictly complying with the terms and
conditions of such Letter of Credit, or (B) payment by the Issuing Bank to the
beneficiary under any Letter of Credit against presentation of documents which
do not comply with the terms of the Letter of Credit to the extent, but only to
the extent, that such payment constitutes gross negligence or willful misconduct
of the Issuing Bank. It is understood that in making any payment under a Letter
of Credit, the Issuing Bank will rely on documents presented to it under such
Letter of Credit as to any and all matters set forth therein without further
investigation and regardless of any notice or information to the contrary, and
such reliance and payment against documents presented under a Letter of Credit
substantially complying with the terms thereof shall not be deemed gross
negligence or willful misconduct of the Issuing Bank in connection with such
payment. It is further acknowledged and agreed that a Borrower may have rights
against the beneficiary or others in connection with any Letter of Credit with
respect to which the Issuing Bank is alleged to be liable and it shall be a
precondition of the assertion of any liability of the Issuing Bank under this
Section that such Borrower shall first have exhausted all remedies in respect of
the alleged loss against such beneficiary and any other parties obligated or
liable in connection with such Letter of Credit and any related transactions.
(c) Each of the Borrowers hereby indemnifies and agrees
to hold harmless the Banks and the Agent, their affiliates and their respective
officers, directors, employees and agents, from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
(including reasonable attorneys fees and disbursements incurred in connection
with any investigative, administrative or judicial proceeding whether or not
such person shall be designated as a party thereto) which the Banks or the Agent
or any such person may incur or which may be claimed against any of them by
reason of or in connection with entering into this Agreement or the transactions
contemplated hereby, including without limitation those arising under
Environmental Laws; provided, however, that the Borrowers shall not be required
to indemnify any such Bank and the Agent or such other person, to the extent,
but only to the extent, that such claim, damage, loss, liability, cost or
expense is attributable to the gross negligence or willful misconduct of such
Bank or the Agent, as the case may be.
(d) In consideration of the execution and delivery of
this Agreement by each Bank and the extension of the Commitments, each of the
Borrowers hereby indemnifies, exonerates and holds the Agent, each Bank, their
affiliates and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to:
(i) any transaction financed or to be financed
in whole or in part, directly or indirectly, with the proceeds of any Advance;
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(ii) the entering into and performance of this
Agreement and any other agreement or instrument executed in connection herewith
by any of the Indemnified Parties (including without limitation any action
brought by or on behalf of any Borrower as the result of any determination by
the Majority Banks not to fund any Advance);
(iii) any investigation, litigation or proceeding
related to any acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of any portion of the stock or assets of any person, whether or not
the Agent or such Bank is party thereto;
(iv) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the release by any Borrower or any of
its Subsidiaries of any Hazardous Material; or
(v) the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or releasing from,
any real property owned or operated by any Borrower or any of its Subsidiaries
of any Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, such Borrower or such
Subsidiary, except for any such Indemnified Liabilities arising for the account
of a particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of any Borrower conducted subsequent to a foreclosure on
such property to the extent of the relevant Indemnified Party's gross negligence
or willful misconduct, and if and to the extent that the foregoing undertaking
may be unenforceable for any reason, each of the Borrowers hereby agrees to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Each of the
Borrowers shall be obligated to indemnify the Indemnified Parties for all
Indemnified Liabilities subject to and pursuant to the foregoing provisions,
regardless of whether the Company or any of its Subsidiaries had knowledge of
the facts and circumstances giving rise to such Indemnified Liability.
8.6 Successors and Assigns; Additional Banks.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no Borrower may, without the prior consent of the Banks, assign
its rights or obligations hereunder or under the Notes and the Banks shall not
be obligated to make any Loan hereunder to any entity other than the Borrowers.
(b) Any Bank may, without the prior consent of the
Company or the Agent sell to any financial institution or institutions, and such
financial institution or institutions may further sell, a participation interest
(undivided or divided) in, the Advances and such Bank's Commitment and rights
and benefits under this Agreement and the other Loan Documents, and to the
extent of that participation interest such participant or participants shall
have the same rights and benefits against the Borrowers
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under Section 3.7, 3.9 and 6.2(c) as it or they would have had if such
participant or participants were the Bank making the Loans to the Borrowers
hereunder, provided, however, that (i) such Bank's obligations under this
Agreement shall remain unmodified and fully effective and enforceable against
such Bank, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of its Notes for all purposes of this Agreement, (iv) the Borrowers, the
Agent and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement,
and (v) such Bank shall not grant to its participant any rights to consent or
withhold consent to any action taken by such Bank or the Agent under this
Agreement other than action requiring the consent of all of the Banks hereunder.
(c) The Agent from time to time in its sole discretion
may appoint agents for the purpose of servicing and administering this Agreement
and the transactions contemplated hereby and enforcing or exercising any rights
or remedies of the Agent provided under this Agreement, the Notes or otherwise.
In furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. Each Borrower hereby consents
to the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(d) Each Bank may, with the prior consent of the Company
and the Agent prior to the occurrence of an Event of Default, and solely with
the consent of the Agent subsequent to the occurrence and continuance of an
Event of Default (in either case which consents shall not be unreasonably
withheld or delayed) assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations, (ii) except in the case of an assignment of all of a Bank's rights
and obligations under this Agreement, the amount of the Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $5,000,000, and in integral multiples of $1,000,000
thereafter, or such lesser amount as the Company and the Agent may consent to,
(iii) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance in substantially the form of Exhibit G hereto (an "Assignment and
Acceptance"), together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500, and (iv) any Bank may without the
consent of the Company or the Agent, and without paying any fee, assign to any
Affiliate of such Bank that is a bank or financial institution or to another
Bank all or a portion of its rights and obligations under this Agreement. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment
71
and Acceptance, have the rights and obligations of a Bank hereunder and (y) the
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights to payment under the indemnities
set forth in this Agreement for the period during which it was a Bank hereunder)
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all of the remaining portion of an
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto).
(e) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Bank.
(f) The Agent shall maintain at its address designated on
the signature pages hereof a copy of each Assignment and Acceptance delivered to
and accepted by it and a register for the recordation of the names and addresses
of the Banks and the Commitment of, and principal amount of the Advances owing
to, each Bank from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Company, the Borrowing Subsidiaries, the Agent and the Banks may treat each
person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee, together with any Note or Notes
subject to such
72
assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained a
Commitment hereunder, a new Note to the order of the assigning Bank in an amount
equal to the Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit G hereto.
(h) No Borrower shall be liable for any costs or expenses
of any Bank in effectuating any participation or assignment under this Section
9.6.
(i) INTENTIONALLY OMITTED.
(j) The Banks may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.6, disclose to the assignee or participant or proposed assignee or participant
any information relating to the Borrowers.
(k) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Bank from its obligations
under this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law; Consent to Jurisdiction. This Agreement is a
contract made under, and shall be governed by and construed in accordance with,
the law of the State of Illinois applicable to contracts made and to be
performed entirely within such State and without giving effect to choice of law
principles of such State. Each Borrower further agrees that any legal action or
proceeding with respect to this Agreement or the Notes or the transactions
contemplated hereby may be brought in any court of the State of Illinois, or in
any court of the United States of America sitting in Illinois, and each Borrower
hereby irrevocably submits to and accepts generally and unconditionally the
jurisdiction of those courts with respect to its person and property, and
irrevocably appoints Xxxxx Xxxxx, whose address is set forth in Section 8.2, as
its agent for service of process and irrevocably consents to the service of
process in connection with any such action or proceeding by personal delivery to
such agent or to the Borrowers or by the
73
mailing thereof by registered or certified mail, postage prepaid to the
Borrowers at the address set forth in Section 8.2. Nothing in this paragraph
shall affect the right of the Banks and the Agent to serve process in any other
manner permitted by law or limit the right of the Banks or the Agent to bring
any such action or proceeding against the Borrowers or property in the courts of
any other jurisdiction. Each Borrower hereby irrevocably waives any objection to
the laying of venue of any such suit or proceeding in the above described
courts.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. This Agreement and the Notes
embody the entire agreement and understanding between the Borrowers and the
Agent and the Banks, and supersede all prior agreements and understandings,
relating to the subject matter hereof. In case any one or more of the
obligations of any Borrower under this Agreement or the Notes shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of such Borrower and the other
Borrowers shall not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability in one jurisdiction shall not affect
the validity, legality or enforceability of the obligations of the Borrowers
under this Agreement or the Notes in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any such covenant, the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or such condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provisions of
this Agreement or the Notes, in no event shall the amount of interest paid or
agreed to be paid by any Borrower exceed an amount computed at the highest rate
of interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Bank
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of such Bank's Advances outstanding hereunder (whether or not then
due and payable) and
74
not to the payment of interest, or shall be refunded to the Borrowers if such
principal and all other obligations of the Borrowers to such Bank have been paid
in full.
8.14 Joint and Several Obligations; Contribution Rights; Savings
Clause.
(a) Notwithstanding anything to the contrary set forth
herein or in any Note or in any other Loan Document, the obligations of the
Borrowers hereunder and under the Notes and the other Loan Documents are joint
and several.
(b) If any Borrower makes a payment in respect of the
Bank Obligations it shall have the rights of contribution set forth below
against the other Borrowers; provided that no Borrower shall exercise its right
of contribution until all the Bank Obligations shall have been finally paid in
full in cash. If any Borrower makes a payment in respect of the Bank Obligations
that is smaller in proportion to its Payment Share (as hereinafter defined) than
such payments made by the other Borrowers are in proportion to the amounts of
their respective Payment Shares, the Borrower making such proportionately
smaller payment shall, when permitted by the preceding sentence, pay to the
other Borrowers an amount such that the net payments made by the Borrower in
respect of the Bank Obligations shall be shared among the Borrowers pro rata in
proportion to their respective Payment Shares. If any Borrower receives any
payment that is greater in proportion to the amount of its Payment Shares than
the payments received by the other Borrowers are in proportion to the amounts of
their respective Payment Shares, the Borrower receiving such proportionately
greater payment shall, when permitted by the second preceding sentence, pay to
the other Borrowers an amount such that the payments received by the Borrowers
shall be shared among the Borrowers pro rata in proportion to their respective
Payment Shares. Notwithstanding anything to the contrary contained in this
paragraph or in this Agreement, no liability or obligation of any Borrower that
shall accrue pursuant to this paragraph shall be paid nor shall it be deemed
owed pursuant to this paragraph until all of the Bank Obligations shall be
finally paid in full in cash.
For purposes hereof, the "Payment Share" of each Borrower shall be the
sum of (a) the aggregate proceeds of the Bank Obligations received by such
Borrower plus (b) the product of (i) the aggregate Bank Obligations remaining
unpaid on the date such Bank Obligations become due and payable in full, whether
by stated maturity, acceleration, or otherwise (the "Determination Date")
reduced by the amount of such Bank Obligations attributed to such Borrower
pursuant to clause (a) above, times (ii) a fraction, the numerator of which is
such Borrower's net worth on the effective date of this Agreement (determined as
of the end of the immediately preceding fiscal reporting period of such
Borrower), and the denominator of which is the aggregate net worth of all
Borrowers on such effective date.
(c) It is the intent of each Borrower, the Agent and the
Banks that each Borrower's maximum Bank Obligations shall be, but not in excess
of:
(i) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code on or within one year from the
date on which any
75
of the Bank Obligations are incurred, the maximum amount that would not
otherwise cause the Bank Obligations (or any other obligations of such Borrower
to the Agent and the Banks) to be avoidable or unenforceable against such
Borrower under (A) Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in such case
or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code subsequent to one year from the
date on which any of the Bank Obligations are incurred, the maximum amount that
would not otherwise cause the Bank Obligations (or any other obligations of such
Borrower to the Agent and the Banks) to be avoidable or unenforceable against
such Borrower under any state fraudulent transfer or fraudulent conveyance act
or statute applied in any such case or proceeding by virtue of Section 544 of
the Bankruptcy Code;
(iii) in a case or proceeding commenced by or
against such Borrower under any law, statute or regulation other than the
Bankruptcy Code (including, without limitation, any other bankruptcy,
reorganization, arrangement, moratorium, readjustment of debt, dissolution,
liquidation or similar debtor relief laws), the maximum amount that would not
otherwise cause the Bank Obligations (or any other obligations of such Borrower
to the Agent and the Banks) to be avoidable or unenforceable against such
Borrower under such law, statute or regulation including, without limitation,
any state fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding.
(d) The Borrowers acknowledge and agree that they have
requested that the Banks make credit available to the Borrowers with each
Borrower expecting to derive benefit, directly and indirectly, from the loans
and other credit extended by the Banks to the Borrowers.
(e) The joint and several obligations of the Borrowers
described in this Section 8.14 shall remain in full force and effect without
regard to and shall not be released, affected or impaired by: (i) any amendment,
assignment, transfer, modification of or addition or supplement to the Bank
Obligations, this Agreement, any Note or any other Loan Document, except to the
extent any such amendment, assignment, transfer or modification specifically
relates to the matters set forth in Section 8.14; (ii) any extension,
indulgence, increase in the Bank Obligations or other action or inaction in
respect of any of the Loan Documents or otherwise with respect to the Bank
Obligations, or any acceptance of security for, or guaranties of, any of the
Bank Obligations or Loan Documents, or any surrender, release, exchange,
impairment or alteration of any such security or guaranties including without
limitation the failing to perfect a security interest in any such security or
abstaining from taking advantage or of realizing upon any guaranties or upon any
security interest in any such security; (iii) any default by any Borrower under,
or any lack of due execution, invalidity or unenforceability of, or any
irregularity or other defect in, any of the Loan Documents; (iv) any waiver by
the Banks or any other person of any required performance or otherwise of any
condition precedent or waiver of any requirement imposed by any of the Loan
Documents, any guaranties or
76
otherwise with respect to the Bank Obligations; (v) any exercise or non-exercise
of any right, remedy, power or privilege in respect of this Agreement or any of
the other Loan Documents; (vi) any sale, lease, transfer or other disposition of
the assets of any Borrower or any consolidation or merger of any Borrower with
or into any other person, corporation, or entity, or any transfer or other
disposition by any Borrower or any other holder of any shares of Capital Stock
of any Borrower; (vii) any bankruptcy, insolvency, reorganization or similar
proceedings involving or affecting any Borrower; (viii) the release or discharge
of any Borrower from the performance or observance of any agreement, covenant,
term or condition under any of the Bank Obligations or contained in any of the
Loan Documents by operation of law; or (ix) any other cause whether similar or
dissimilar to the foregoing which, in the absence of this provision, would
release, affect or impair the obligations, covenants, agreements and duties of
any Borrower hereunder, including without limitation any act or omission by the
Agent, or the Bank or any other any person which increases the scope of such
Borrower's risk; and in each case described in this paragraph whether or not any
Borrower shall have notice or knowledge of any of the foregoing, each of which
is specifically waived by each Borrower. Each Borrower warrants to the Banks
that it has adequate means to obtain from each other Borrower on a continuing
basis information concerning the financial condition and other matters with
respect to the Borrowers and that it is not relying on the Agent or the Banks to
provide such information either now or in the future.
8.15 Waivers, Etc. Each Borrower unconditionally waives: (a) notice
of any of the matters referred to in Section 8.14(e) above; (b) all notices
which may be required by statute, rule or law or otherwise to preserve any
rights of the Agent, or the Bank, including, without limitation, presentment to
and demand of payment or performance from the other Borrowers and protect for
non-payment or dishonor; (c) any right to the exercise by the Agent, or the Bank
of any right, remedy, power or privilege in connection with any of the Loan
Documents; (d) any requirement that the Agent, or the Bank, in the event of any
default by any Borrower, first make demand upon or seek to enforce remedies
against, such Borrower or any other Borrower before demanding payment under or
seeking to enforce this Agreement against any other Borrower; (e) any right to
notice of the disposition of any security which the Agent, or the Bank may hold
from any Borrower or otherwise and any right to object to the commercial
reasonableness of the disposition of any such security; and (f) all errors and
omissions in connection with the Agent, or the Bank's administration of any of
the Bank Obligations, any of the Loan Documents', or any other act or omission
of the Agent, or the Bank which changes the scope of the Borrower's risk, except
as a result of the gross negligence or willful misconduct of the Agent, or the
Bank. The obligations of each Borrower hereunder shall be complete and binding
forthwith upon the execution of this Agreement and subject to no condition
whatsoever, precedent or otherwise, and notice of acceptance hereof or action in
reliance hereon shall not be required.
8.16 Waiver of Jury Trial. The Borrowers, the Banks and the Agent,
after consulting or having had the opportunity to consult with counsel,
knowingly, voluntarily and intentionally waive any right either of them may have
to a trial by jury in any litigation based upon or arising out of this Agreement
or any other Loan Document or any of the transactions contemplated by this
Agreement or any course of conduct,
77
dealing, statements (whether oral or written) or actions of any of them. Neither
any Borrower, any Bank nor the Agent shall seek to consolidate, by counterclaim
or otherwise, any such action in which a jury trial has been waived with any
other action in which a jury trial cannot be or has not been waived. These
provisions shall not be deemed to have been modified in any respect or
relinquished by any party hereto except by a written instrument executed by such
party.
8.17 Amendment and Restatement. The Borrowers, the Banks, and the
Agent agree that upon (i) the execution and delivery of this Agreement by each
of the parties hereto and (ii) satisfaction (or waiver by the aforementioned
parties) of the conditions precedent set forth in Section 2.5, the terms and
conditions of the Existing Credit Agreement shall be and hereby are amended,
superseded, and restated in their entirety by the terms and provisions of this
Agreement. This Agreement is not intended to and shall not constitute a novation
of the Existing Credit Agreement or the indebtedness created thereunder. The
commitment of each Bank that is a party to the Existing Credit Agreement shall,
on the effective date hereof, automatically be deemed amended and the only
commitments shall be those hereunder; provided, however, that the commitment of
each Bank under the Existing Credit Agreement that is not a party to this
Agreement shall terminate on the date hereof.
8.18 Tax Disclosure. Each party hereto (and each employee,
representative, or other agent of each such party) may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the transaction evidenced hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating to
such U.S. tax treatment and U.S. tax structure, other than any information for
which nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
JABIL CIRCUIT, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: BANK ONE, NA (Main Office Chicago), as
a Bank and as Agent
0 Xxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Facsimile No.: (000) 000-0000 Name: Xxxx X. Xxxxxxx
Telephone No.: (000) 000-0000 Title: Director
Commitment Amount: $42,500,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: SUNTRUST BANK
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000 By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Attention: Xxxxxx X. Xxxxxxxxx Name: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000 Title: Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $37,500,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: THE ROYAL BANK OF SCOTLAND plc
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Attention: Xxxxxxxx Xxxxxx Name: Xxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000 Title: Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $37,500,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: ABN AMRO BANK N.V.
Xxx Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000 By: /s/ Xxxx X. Xxxxxx
-------------------------------
Attention: Xxxx Xxxxx Xxxxxx Name: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000 Title: Senior Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $37,500,000
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: ROYAL BANK OF CANADA
Loans Administration
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx By: /s/ Xxxxxxxxx Xxxxxx-Allegra
-------------------------------
Xxx Xxxx, Xxx Xxxx 00000-0000 Name: Xxxxxxxxx Xxxxxx-Allegra
Attention: Manager, Loans Administration Title: Senior Manager
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Commitment Amount: $37,500,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: KEYBANK NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Attention: Xxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000 Title: Assistant Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $32,500,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: CITIBANK, N.A.
Citibank, N.A.
000 Xxxxxxxxx Xxxxxx By: /s/ Xxxxx Xxxx Xxxxxxxx
-------------------------------
Xxx Xxxx, XX 00000 Name: Xxxxx Xxxx Xxxxxxxx
Attention: Xxxxx Xxxxx Title: Director
Facsimile No.:(212)
Telephone No.: (000) 000-0000
Commitment Amount: $30,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: JPMORGAN CHASE BANK
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 By: /s/ Xxxxxx XxXxxxxx
-------------------------------
Attention: Xxxxxxx X. Xxxx Name: Xxxxxx XxXxxxxx
Facsimile No.: (000) 000-0000 Title: Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $30,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: BNP PARIBAS
Xxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Attention: Xxxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000 Title: Director
Telephone No.: (000) 000-0000
Commitment Amount: $25,000,000
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 By: /s/ Xxxx Xxxxxx
-------------------------------
Attention: Xxxxxxx Xxxxxx Name: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000 Title: Vice President
Telephone No.: (000) 000-0000
Commitment Amount: $25,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: US BANK, NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx
CN-OH-W8 By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxxxxx, XX 00000 Name: Xxxxxxx X. Xxxx
Attention: Xxxx Xxxxxxx Title: Vice President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Commitment Amount: $25,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: COMERICA BANK
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx 000 By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Xxxxxx, XX 00000 Name: Xxxxxx X. Xxxxxx, Xx.
Attention: Xxxxxx Xxxxxx Title: Vice President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Commitment Amount: $15,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: FIRST COMMERCIAL BANK (NEW YORK AGENCY)
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000 By: /s/ Xxxxx X. X. Xx
-------------------------------
Attention: Xxxxx Xxxx Name: Xxxxx X. X. Xx
Facsimile No.: (000) 000-0000 Title: VP & General Manager
Telephone No.: (000) 000-0000
Commitment Amount: $15,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
Address for Notices: MIZUHO CORPORATE BANK, LTD.
0000 Xxxxx Xxx
Xxxxxx Xxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Attention: Xxxx Xxxx Name: Xxxxxxx X. Xxxx
Facsimile No.: (000) 000-0000 Title: Vice President & Team Leader
Telephone No.: (000) 000-0000
Send a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Commitment Amount: $10,000,000
Signature Page to
2003 Jabil Amended and Restated Three-Year Loan Agreement
