CREDIT AGREEMENT
dated as of
April 30, 1997
among
SOLECTRON CORPORATION,
The Banks Party Hereto
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
Agent and Issuing Bank
BANCAMERICA SECURITIES, INC.
as Arranger
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions 1
SECTION 1.01 Defined Terms 1
SECTION 1.02 Classification of Loans and Borrowings 14
SECTION 1.03 Terms Generally 14
SECTION 1.04 Accounting Terms; GAAP 14
ARTICLE II. The Credits 14
SECTION 2.01 Amounts and Terms of Commitments 14
(a) The Revolving Credit 14
(b) Additional Borrowers 15
SECTION 2.02 Loan Accounts 15
SECTION 2.03 Procedure for Borrowing 15
SECTION 2.04 Conversion and Continuation Elections 16
SECTION 2.05 Utilization of Revolving Commitments in Offshore
Currencies 17
SECTION 2.06 Voluntary Termination or Reduction of Total
Commitment 19
SECTION 2.07 Prepayments 19
SECTION 2.08 Repayment 20
SECTION 2.09 Interest 20
SECTION 2.10 The Letter of Credit Subfacility 21
SECTION 2.11 Issuance, Amendment and Renewal of Letters of Credit 22
SECTION 2.12 Participations, Drawings and Reimbursements 24
SECTION 2.13 Automatic Renewals 25
SECTION 2.14 Repayment of Participations 25
SECTION 2.15 Role of the Issuing Bank 26
SECTION 2.16 Obligations Absolute 26
SECTION 2.17 Cash Collateral Pledge 27
SECTION 2.18 Letter of Credit Fees 28
SECTION 2.19 The Borrowers' Agent 28
SECTION 2.20 Uniform Customs and Practice 29
SECTION 2.21 Other Fees 29
(a)Arrangement Fee; Agency Fee 29
(b)Commitment Fees 29
(c)Fees Nonrefundable 29
SECTION 2.22 Computation of Fees and Interest 29
SECTION 2.23 Payments by the Borrowers 30
SECTION 2.24 Payments by the Banks to the Agent 31
SECTION 2.25 Sharing of Payments, Etc. 31
SECTION 2.26 Taxes 32
SECTION 2.27 Illegality 34
SECTION 2.28 Increased Costs and Reduction of Return 34
SECTION 2.29 Funding Losses 35
SECTION 2.30 Inability to Determine Rates 35
SECTION 2.31 Certificates of Banks 35
SECTION 2.32 Substitution of Banks 36
ARTICLE III Representations and Warranties 36
SECTION 3.01 Existence and Power 36
SECTION 3.02 Binding Effect 36
SECTION 3.03 Corporate Authorization; No Conflict 36
SECTION 3.04 Subsidiaries 36
SECTION 3.05 Financial Condition 36
SECTION 3.06 Litigation 37
SECTION 3.07 Governmental Authorization 37
SECTION 3.08 Title to Properties 37
SECTION 3.09 ERISA Compliance 37
SECTION 3.10 Use of Proceeds; Margin Regulations 37
SECTION 3.11 Taxes 37
SECTION 3.12 Environmental Matters 38
SECTION 3.13 Copyrights, Patents, Trademarks and Licenses, Etc. 38
SECTION 3.14 Full Disclosure 38
SECTION 3.15 Regulated Entities 38
SECTION 3.16 Insurance 38
ARTICLE IV Conditions 38
SECTION 4.01 Closing Date 38
SECTION 4.02 Each Credit Event 39
ARTICLE V Affirmative Covenants 40
SECTION 5.01 Financial Statements and Other Information 40
SECTION 5.02 Notices of Material Events 41
SECTION 5.03 Existence; Conduct of Business 41
SECTION 5.04 Payment of Obligations 41
SECTION 5.05 Maintenance of Properties; Insurance 41
SECTION 5.06 Books and Records; Inspection Rights 41
SECTION 5.07 Compliance with Laws 42
SECTION 5.08 Use of Proceeds and Letters of Credit 42
SECTION 5.09 Accession by Subsidiary 42
ARTICLE VI Negative Covenants 42
SECTION 6.01 Subsidiary Indebtedness 42
SECTION 6.02 Liens 43
SECTION 6.03 Sale and Leaseback Transactions 44
SECTION 6.04 Fundamental Changes 44
SECTION 6.05 Margin Stock; Unfriendly Acquisitions 45
SECTION 6.06 Fiscal Year 45
SECTION 6.07 Restrictive Agreements 45
SECTION 6.08 Distributions 46
SECTION 6.09 Adjusted Leverage Ratio 46
SECTION 6.10 Consolidated Tangible Net Worth 46
ARTICLE VII Events of Default 46
ARTICLE VIIIThe Agent 48
SECTION 8.01 Appointment and Authorization 48
SECTION 8.02 Delegation of Duties 49
SECTION 8.03 Liability of Agent and Issuing Bank 49
SECTION 8.04 Reliance by Agent 49
SECTION 8.05 Notice of Default 49
SECTION 8.06 Credit Decision 50
SECTION 8.07 Indemnification 50
SECTION 8.08 Agent in Individual Capacity 51
SECTION 8.09 Successor Agent 51
ARTICLE IX Miscellaneous 51
SECTION 9.01 Notices 51
SECTION 9.02 Waivers; Amendments 52
SECTION 9.03 Expenses; Indemnity; Damage Waiver 52
SECTION 9.04 Successors and Assigns 53
SECTION 9.05 Survival 55
SECTION 9.06 Counterparts; Integration; Effectiveness 55
SECTION 9.07 Severability 56
SECTION 9.08 Automatic Debits of Fees 56
SECTION 9.09 Right of Setoff 56
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of
Process 56
SECTION 9.11 WAIVER OF JURY TRIAL 57
SECTION 9.12 Headings 57
SECTION 9.13 Confidentiality 57
SECTION 9.14 Interest Rate Limitation 58
SECTION 9.15 Judgment Currency 58
SECTION 9.16 No Third Parties Benefited 58
SECTION 9.17 Entire Agreement 58
SCHEDULES:
Schedule 2.01 Commitments
Schedule 3.04 Borrower's Subsidiaries
Schedule 3.05 Liabilities
Schedule 3.06 Litigation
Schedule 3.09 ERISA Matters
Schedule 3.13 Intellectual Property
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.07 Restrictions
Schedule 9.01 Addresses for Notices; Lending Offices
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Compliance Certificate
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion/Continuation
Exhibit E Form of Additional Borrower Notice
Exhibit F Form of Legal Opinion of Borrower's Counsel
Exhibit G Form of Additional Borrower Request and Assumption Agreement
Exhibit H Form of Continuing Guaranty (Multicurrency)
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CREDIT AGREEMENT dated as of April 30, 1997, among SOLECTRON
CORPORATION, a Delaware corporation, the BANKS party hereto, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent and Issuing
Bank.
The Company (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I)
has requested the Banks to establish the credit facilities provided for
herein to be used for the general corporate purposes of the Borrowers
and the Subsidiaries. The Banks are willing to establish such credit
facilities upon the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
I. DEFINITIONS
1. DEFINED TERMS. As used in this Agreement, the following terms have
the meanings specified below:
"ABR," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADDITIONAL BORROWER" has the meaning specified in subsection
2.01(b).
"ADDITIONAL BORROWER NOTICE" has the meaning specified in subsection
2.01(b).
"ADDITIONAL BORROWER REQUEST AND ASSUMPTION AGREEMENT" has the
meaning specified in Section 5.09.
"ADJUSTED LEVERAGE RATIO" means, in respect of the Company and its
Subsidiaries on a consolidated basis at the end of any fiscal quarter,
the ratio of (a) (without duplication) (i) Consolidated Funded Debt PLUS
(ii) Guarantee obligations PLUS (iii) Indebtedness with respect to
synthetic leases and securitized assets PLUS (iv) Indebtedness in
respect of letters of credit (including the Letters of Credit) MINUS (v)
Permitted Subordinated Indebtedness, to (b) (i) operating income PLUS
(ii) depreciation and amortization charges, in each case, for the period
of four fiscal quarters ended on the applicable date of determination.
"ADJUSTED LIBO RATE" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO
Rate for such Interest Period multiplied by (b) the Eurocurrency Reserve
Percentage.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under Control with the Person
specified.
"AGENT" means BofA, in its capacity as agent for the Banks
hereunder.
"AGENT/IB-RELATED PERSONS" means BofA as Agent and Issuing Bank, and
any successor Agent arising under Section 8.09, together with their
respective Affiliates, and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"AGGREGATE L/C COMMITMENT" means the combined L/C Commitments of the
Banks, in the initial aggregate amount of $25,000,000, as such amount
may be reduced from time to time pursuant to this Agreement. The
Aggregate L/C Commitment is a part of the Total Commitment rather than a
separate, independent commitment.
"AGREED ALTERNATE CURRENCY" has the meaning specified in
subsection 2.05(e).
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of (a) the Reference Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus one-half of 1%.
Any change in the Alternate Base Rate due to a change in the Reference
Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Reference Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE MARGIN" means, for any day, with respect to any
Eurocurrency Loan, CD Rate Loan or ABR Loan or with respect to the
commitment fees and letter of credit fees payable hereunder, as the case
may be, the applicable margin or fee set forth in the pricing grid
attached as Annex I, as determined in accordance with the parameters for
calculation and adjustment of such margin or fee also set forth on
Annex I.
"APPLICABLE PERCENTAGE" means, with respect to any Bank, the
percentage of the Total Commitment represented by such Bank's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Bank and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the Agent,
in substantially the form of EXHIBIT A or any other form approved by the
Agent.
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all disbursements of internal
counsel, PROVIDED that "Attorney Costs" shall mean and include ALL fees
and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements of
internal counsel if incurred by the Agent, the Issuing Bank or any Bank
in connection with the enforcement or protection of its rights under
this Agreement or any other Loan Document.
"AVAILABILITY PERIOD" means the period from and including the
Closing Date to but excluding the Maturity Date.
"BANKS" means the Persons listed on SCHEDULE 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Acceptance. References to "Banks"
shall include BofA, including in its capacity as Issuing Bank; for
purposes of clarification only, to the extent that BofA may have any
rights or obligations in addition to those of the Banks due to its
status as Issuing Bank, its status as such will be specifically
referenced.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BofA" means Bank of America National Trust and Savings Association.
"BORROWERS" means the Company and each Additional Borrower.
"BORROWERS' AGENT" means the Company, and any successor agent for
the Borrowers pursuant to Section 2.19.
"BORROWING" means Revolving Loans of the same Type made, converted
or continued on the same date and, in the case of Eurocurrency Loans or
CD Rate Loans, as to which a single Interest Period is in effect.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized or required by law to remain closed: PROVIDED that, when used
in connection with a Eurocurrency Loan, the term "BUSINESS DAY" shall
also exclude any day on which banks are not open for dealings in Dollar
deposits in the London interbank market, and with respect to any
disbursement and payments in calculations pertaining to any Offshore
Currency Loan, a day on which commercial banks are open for foreign
exchange business in London, England, and on which dealings in the
relevant Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursements of or payments
in such Offshore Currency will be made or received hereunder.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"CD RATE" means, for each Interest Period in respect of CD Rate
Loans comprising a part of the same Borrowing, the rate of interest
(rounded upward to the nearest 1/100th of 1%) as determined by the Agent
pursuant to the following formula:
CD Rate = Certificate of Deposit Rate
--------------------------- + Assessment Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means the maximum net annual assessment rate
(whether or not applicable to any Bank) determined by the Agent to be in
effect on the first day of such Interest Period payable by banks to the
Federal Deposit Insurance Corporation, or any successor, for insuring
time deposits made in Dollars at the offices of banks in the United
States.
"Certificate of Deposit Rate" means for any Interest Period
for CD Rate Loans the rate of interest per annum determined by the Agent
to be the arithmetic mean (rounded upward to the nearest 1/100th of 1%)
of the rates notified to the Agent as the rates of interest bid by two
or more certificate of deposit dealers of recognized standing selected
by the Agent for the purchase at face value of Dollar certificates of
deposit issued by major United States banks, for a maturity comparable
to such Interest Period and in the approximate amount of BofA's CD Rate
Loan, at the time selected by the Agent on the first day of such
Interest Period.
"Reserve Percentage" means for any Interest Period for CD Rate
Loans the maximum reserve percentage (expressed as a decimal, rounded
upward to the nearest 1/100th of 1%), as determined by the Agent, in
effect on the first day of such Interest Period (including any ordinary,
marginal, emergency, supplemental, special and other reserve
percentages) prescribed by the Board for determining the maximum
reserves to be maintained by member banks of the Federal Reserve System
with deposits exceeding $1,000,000,000 for new non-personal time
deposits for a period comparable to such Interest Period and in an
amount of $100,000 or more.
"CD RATE LOAN" means a Revolving Loan that bears interest based on
the CD Rate.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within
the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date
hereof) other than an employee benefit plan or related trust of the
Company or of the Company and any Subsidiaries, of shares representing
more than 35% of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Company; or (b) occupation
of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by
the board of directors of the Borrower nor (ii) appointed by directors
so nominated.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c)
compliance by any Bank or the Issuing Bank (or by any lending office of
such Bank or by such Bank's or the Issuing Bank's holding company, if
any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the
date of this Agreement.
"CLASS," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are
Eurocurrency Loans, CD Rate Loans or ABR Loans.
"CLOSING DATE" means the date on which the conditions specified in
Section 4.01 and 4.02 are satisfied (or waived in accordance with
Section 9.02).
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITMENT" means, with respect to each Bank, the commitment of
such Bank to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, as such Commitment may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from
time to time pursuant to assignments by or to such Bank pursuant to
Section 9.04. The initial amount of each Bank's Commitment is set forth
on SCHEDULE 2.01, or in the Assignment and Acceptance pursuant to which
such Bank shall have assumed its Commitment, as applicable.
"COMPANY" means Solectron Corporation, a California corporation.
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B.
"COMPUTATION DATE" has the meaning specified in subsection 2.05(a).
"CONSOLIDATED FUNDED DEBT" means, as of the last day of any fiscal
quarter, the sum for the Company and its Subsidiaries as of such day,
of, without duplication, (a) the aggregate outstanding principal amount
of the Loans, (b) the aggregate outstanding principal amount of
Indebtedness for borrowed money and (c) the aggregate outstanding
capitalized amount of Capital Lease Obligations, all as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means, as of the last day of any
fiscal quarter, all tangible assets on the consolidated balance sheet of
the Company and its Subsidiaries, as determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of the last day of any
fiscal quarter, (a) total shareholders' equity of the Company and its
Subsidiaries MINUS (b) the aggregate amount of all intangible assets on
the consolidated balance sheet of the Company and its Subsidiaries, all
as determined on a consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by
contract or otherwise. "CONTROLLING" and "CONTROLLED" have meanings
correlative thereto.
"CONVERSION DATE" means any date on which the Borrowers' Agent on
behalf of itself or another Borrower elects to convert an ABR Loan to a
CD Rate Loan or a Eurocurrency Loan in Dollars; a CD Rate Loan to a
Eurocurrency Loan in Dollars or an ABR Loan; or a Eurocurrency Loan in
Dollars to a CD Rate Loan or an ABR Loan.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured
or waived, becomes an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE AMOUNT" means (a) with respect to any Revolving Loans on
any date the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Revolving
Loans occurring on such date; and (b) with respect to any outstanding
L/C Obligations on any date the amount of such L/C Obligations on such
date after giving effect to any issuances, amendments and renewals of
Letters of Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date. For
purposes of determining the Effective Amount in respect of any Offshore
Currency Loans to be made as part of a Borrowing or of any outstanding
Offshore Currency Loans, the amount of any such Offshore Currency Loans
shall be the Equivalent Amount in Dollars thereof, and for purposes of
determining the Effective Amount in respect of any Letters of Credit to
be issued in an Offshore Currency or any Offshore Currency L/C
Obligations outstanding, the amount of any such Letters of Credit and
other Offshore Currency L/C Obligations shall be the Equivalent Amount
in Dollars thereof, in each case based upon the calculation thereof as
of the most recent Computation Date therefor pursuant to
subsection 2.05(a). Additionally, for purposes of Section 2.07, the
Effective Amount shall be determined without giving effect to any
mandatory prepayments to be made under subsection 2.07(b) or 2.07(c),
until such payments are made.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (c) a
Person that is primarily engaged in the business of commercial banking
and that is (i) a subsidiary of a Bank, (ii) a subsidiary of a Person of
which a Bank is a subsidiary, or (iii) a Person of which a Bank is a
subsidiary.
"ENVIRONMENTAL LAWS" means all (a) laws, rules, regulations, codes
and ordinances and (b) all orders, decrees, injunctions or binding
agreements issued, promulgated or entered into by any Governmental
Authority and by or affecting the Borrower, in each case relating in any
way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
"EQUIVALENT AMOUNT" means (a) whenever this Agreement requires or
permits a determination on any date of the equivalent in Dollars of an
amount expressed in an Offshore Currency, the equivalent amount in
Dollars of an amount expressed in an Offshore Currency as determined by
the Agent on such date on the basis of the Spot Rate for the purchase of
such Offshore Currency with Dollars on the relevant Computation Date
provided for hereunder; or (b) whenever this Agreement requires or
permits a determination on any date of the equivalent in an Offshore
Currency of an amount expressed in Dollars, the equivalent amount in an
Offshore Currency of an amount expressed in Dollars as determined by the
Agent on such date on the basis of the Spot Rate for the purchase of
Dollars with such Offshore Currency on the relevant Computation Date
provided for hereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect
to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Company or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by the Company or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Company
or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"EUROCURRENCY," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.
"EUROCURRENCY RESERVE PERCENTAGE" for any day for any Interest
period the reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Board or any successor
and, in the case of Offshore Currency Loans denominated in pounds
sterling, the reserve percentage applicable during such Interest Period
under regulations issued from time to time by the Bank of England or any
successor and, in the case of Offshore Currency Loans denominated in
other foreign currencies, the reserve percentage applicable during such
Interest Period under regulations issued from time to time by such other
foreign central bank or any successors thereto (or, in each case, if
different percentages shall be applicable during different periods
within such Interest Period, the daily average of such percentages
during such Interest Period) for determining the maximum reserve
percentage (expressed as a decimal, rounded upward to the next 1/100th
of 1%) in effect on such day (whether or not applicable to any Bank and
including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to
as "Eurocurrency liabilities").
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXISTING FACILITY" means the $100,000,000 credit facility under
that certain Multicurrency Credit Agreement dated as of June 30, 1993,
among the Company and certain of its Subsidiaries, the financial
institutions from time to time party thereto, and BofA as "Agent" and
"Issuing Bank" thereunder (as the same may have been amended, modified
or otherwise supplemented).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Business
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as
determined by the Agent of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time)
on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"FINANCIAL OFFICER" means the chief financial officer, Vice
President-Finance, principal accounting officer, treasurer or controller
of the Company.
"FURTHER TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to Section
2.26.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "PRIMARY OBLIGOR") in any matter,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof (b) to purchase or
lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; PROVIDED
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes regulated pursuant to any Environmental
Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily
paid (excluding deferred compensation obligations owed to current and
former directors, officers and employees), (d) all obligations of such
Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable, measured in accordance
with GAAP, incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise to be
secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital
Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty supporting Indebtedness, (j) all
obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances, and (k) all obligations, contingent or otherwise,
with respect to synthetic leases or securitized assets. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of
such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"INDEX DEBT" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other
Person or subject to any other credit enhancement.
"INTEREST PAYMENT DATE" means, with respect to any CD Rate Loan or
Eurocurrency Loan, the last day of each Interest Period applicable to
such Loan and, with respect to ABR Loans, the last Business Day of each
calendar quarter and each date an ABR Loan is converted into a
Eurocurrency Loan or a CD Rate Loan; PROVIDED, HOWEVER, that if any
Interest Period for a CD Rate Loan or a Eurocurrency Loan exceeds 90
days or three months, respectively, interest shall also be paid on the
date which falls 90 days or three months after the beginning of such
Interest Period.
"INTEREST PERIOD" means, (a) with respect to any Eurocurrency Loan,
the period commencing on the Business Day the Eurocurrency Loan is
disbursed or continued or on the Conversion Date on which a Loan is
converted to the Eurocurrency Loan and ending on the date one, two,
three or six months thereafter, as selected by the Borrowers' Agent on
behalf of itself or another Borrower in its Notice of Borrowing or
Notice of Conversion/Continuation, or on the date one week thereafter,
in the case of any Eurocurrency Loans made on the date of a drawing
under a Letter of Credit as provided in Section 2.12 (whether as part of
any Borrowing of Offshore Currency Loans or as part of any L/C
Borrowing) and (b) with respect to any CD Rate Loan, the period
commencing on the Business Day the CD Rate Loan is disbursed or
continued or on the Conversion Date on which a Loan is converted to the
CD Rate Loan and ending on the date 30, 60, 90 or 180 days thereafter,
as selected by the Borrowers' Agent on behalf of itself or another
Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation; PROVIDED that: (i) if any Interest Period
pertaining to a Eurocurrency Loan or CD Rate Loan would otherwise end on
a day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Loan, the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to a Eurocurrency Loan that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the ending calendar month
of such Interest Period) shall end on the last Business Day of the
ending calendar month of such Interest Period; and (iii) no Interest
Period for any Loan shall extend beyond the Maturity Date.
"ISSUING BANK" means BofA, in its capacity as issuer of Letters of
Credit hereunder, and its successors in such capacity. The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"L/C ADVANCE" means each Bank's participation in any L/C Borrowing
in accordance with its Applicable Percentage.
"L/C AMENDMENT APPLICATION" means an amendment application form for
amendments of outstanding performance or standby letters of credit as
shall at any time be in use at BofA, as BofA shall request.
"L/C APPLICATION" means an application form for issuances of standby
letters of credit as shall at any time be in use at BofA, as BofA shall
request.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Revolving Loans
under subsection 2.12(b).
"L/C COMMITMENT" means for each Bank the commitment to participate
in Letters of Credit issued or outstanding pursuant to Article II and to
make L/C Advances, in an aggregate amount not to exceed on any date the
amount set forth with respect to such date opposite the Bank's name in
SCHEDULE 2.01) under the heading "L/C Commitment," as the same shall be
reduced as a result of a reduction in the Aggregate L/C Commitment
pursuant to Section 2.06 or as a result of any assignment pursuant to
Section 9.04; PROVIDED that each Bank's L/C Commitment is a part of its
Commitment rather than a separate, independent commitment.
"L/C OBLIGATIONS" means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit, PLUS (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all L/C
Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other consents,
waivers and other agreements and instruments entered into by any
Borrower with (or in favor of) the Agent, the Issuing Bank or any of the
Banks and relating to any Letter of Credit, including any of the Issuing
Bank's standard form documents for letter of credit issuances, and
delivered to the Agent, the Issuing Bank or the Banks pursuant to the
requirements of this Agreement or in connection with any Letter of
Credit.
"LENDING OFFICE" means with respect to each Bank, the office of such
Bank designated as such on SCHEDULE 9.01 or such other office of such
Bank as such Bank may from time to time specify to the Borrower and the
Agent.
"LETTER OF CREDIT" means a standby letter of credit issued pursuant
to this Agreement.
"LIBO RATE" means the rate of interest per annum determined by the
Agent to be the rate of interest per annum appearing on Telerate display
page 3750 (or such other display page on the Telerate System as may
replace such page) for Dollar deposits in the approximate amount of the
Offshore Rate Loan to be made, continued or converted by BofA and having
a maturity comparable to such Interest Period, at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period (rounded upwards if necessary to the next 1/16 of
1%). In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurocurrency Borrowing
for such Interest Period shall be the rate at which deposits in Dollars
or in the applicable Offshore Currency approximately equal in principal
amount to such Eurocurrency Borrowing and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Agent in immediately available funds in the London interbank market (or
other applicable offshore interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance or security interest in,
on or of such asset, and (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention
agreement relating to such asset.
"LOAN DOCUMENTS" means this Agreement, the L/C-Related Documents and
any and all other consents, waivers, documents, agreements, instruments
and certificates delivered to the Agent, the Issuing Bank or the Banks
in connection herewith or therewith.
"LOANS" means the loans and L/C Advances made by the Banks to the
Borrowers pursuant to this Agreement.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U promulgated by the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole, (b) the
ability of any Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the Banks
pursuant to this Agreement.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Company and its Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the
obligations of the Company or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Company or such Subsidiary
would be required to pay if such Hedging Agreement were terminated at
such time.
"MATURITY DATE" means the fifth anniversary of the date of this
agreement or such earlier date on which the Commitments terminate as
provided herein.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NOTICE OF BORROWING" means a notice given by the Borrowers' Agent
on behalf of itself or another Borrower to the Agent pursuant to
Section 2.03, in substantially the form of EXHIBIT C.
"NOTICE OF CONVERSION/CONTINUATION" means a notice given by the
Borrowers' Agent on behalf of itself or another Borrower to the Agent
pursuant to Section 2.04, in substantially the form of EXHIBIT D.
"OFFSHORE CURRENCY" means at any time English pounds sterling,
French francs, German deutsche marks, Italian lira and any Agreed
Alternate Currency.
"OFFSHORE CURRENCY COMMITMENT" means $50,000,000. The Offshore
Currency Commitment is part of the Total Commitment rather than a
separate, independent Commitment.
"OFFSHORE CURRENCY L/C OBLIGATIONS" means any L/C Obligations
denominated in an Offshore Currency or in Offshore Currencies.
"OFFSHORE CURRENCY LOAN" means any Eurocurrency Loan denominated in
an Offshore Currency.
"ORGANIZATION DOCUMENTS" means, for any corporation, the certificate
or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, and all applicable resolutions of the
board of directors (or any committee thereof) of such corporation.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"OVERNIGHT RATE" means, for any day, (a) the rate of interest per
annum, as determined by the Agent, at which overnight deposits in the
relevant Offshore Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be
offered for such day by BofA's London Branch (or other applicable
office, as selected by the Agent) to major banks in the London or other
applicable offshore interbank market; or (b), if no such overnight
deposits are offered by BofA in any Offshore Currency, the rate of
interest per annum, as determined by the Agent, equal to the cost of
funding the amount with respect to which such rate is being determined
for such day.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar
functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law by any Governmental Authority for taxes
that are not yet due or are being contested in compliance with Section
5.04;
(b) carriers', warehousemen's, mechanics', material men's,
repairmen's and other like Liens imposed by law, and any other
involuntary, statutory or common law Lien arising in the ordinary course
of business and securing obligations that are not overdue by more than
30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any
Subsidiary;
(f) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default;
(g) Liens which constitute rights of set-off of a customary nature
or banker's Liens with respect to amounts on deposit arising by
operation of law in connection with arrangements entered into with banks
in the ordinary course of business;
(h) Liens in favor or customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(i) leases or subleases and licenses and sublicenses granted to
others in the ordinary course of business not interfering in any
material respect with the business of the Company or its Subsidiaries
taken as a whole, and any interest or title of any lessor or licensor
under any lease or license;
PROVIDED that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"PERMITTED SUBORDINATED INDEBTEDNESS" means Indebtedness of the
Company which is subordinated (on terms satisfactory to the Agent and
the Required Banks) to the Indebtedness of the Borrowers owing or
arising under this Agreement and the other Loan Documents, including the
Company's 6% Convertible Subordinated Notes due 2001.
"PERSON" means any natural person, corporation, limited liability
company, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"REFERENCE RATE" means the rate of interest per annum publicly
announced from time to time by BofA as its "reference rate" in effect at
its principal office in San Francisco; each change in the Reference Rate
shall be effective from and including the date on which a change in the
reference rate is publicly announced as being effective.
"REGISTER" has the meaning set forth in subsection 9.04(c).
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED BANKS" means at any time Banks then holding in excess of
66-2/3% of the then aggregate unpaid principal amount of the Loans, or,
if no such principal amount is then outstanding, Banks then having in
excess of 66-2/3% of the Commitments.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon
the Person or any of its property or to which the Person or any of its
property is subject.
"REVOLVING LOAN" has the meaning set forth in subsection 2.01.
"S&P" means Standard & Poor's Rating Group of Standard & Poor's
Corporation.
"SAME DAY FUNDS" means (a) with respect to disbursements and
payments in Dollars, immediately available funds, and (b) with respect
to disbursements and payments in an Offshore Currency, same day or other
funds as may be determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international banking
transactions in the relevant Offshore Currency.
"SPECIAL PURPOSE SUBSIDIARY" shall mean any bankruptcy remote
special purpose subsidiary of the Company formed for the purpose of
selling undivided interests in accounts receivable and/or other assets
transferred by the Company and/or any of its Subsidiaries to such
subsidiary for financing purposes, including Solectron Funding
Corporation, a corporation to be organized under the laws of the State
of Delaware.
"SPOT RATE" for a currency means the rate quoted by BofA as the spot
rate for the purchase by BofA of such currency with another currency
through its Foreign Exchange Trading Center located in San Francisco,
California, at approximately 8:00 a.m. (San Francisco time) on the date
two Banking Days prior to the date as of which the foreign exchange
computation is made.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with
GAAP as of such date.
"Subsidiary" means any subsidiary of the Company and any Special
Purpose Subsidiary.
"TAXES" means any and all present or future taxes, levies, deposits,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TOTAL COMMITMENT" means, at any time, the aggregate amount of
Commitments in effect at such time.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrowers of this Agreement, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"TYPE," when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate,
the Alternate Base Rate or the CD Rate.
"UNFRIENDLY ACQUISITION" means any Acquisition that has not, at the
time of the first public announcement of an offer relating thereto, been
approved by the board of directors (or other legally recognized
governing body) of the Person to be acquired. For purposes of this
definition, "ACQUISITION" shall mean any transaction or series of
related transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a subsidiary, or (b) a
merger or consolidation or any other combination with another Person
(other than a Person that is a Subsidiary) in which the Company or a
Subsidiary is the surviving entity.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part l of Subtitle E of Title IV of ERISA.
2. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (E.G. a
"Revolving Loan") or by Type (E.G., a "Eurocurrency Loan") or by Class
and Type (E.G., a "Eurocurrency Revolving Loan"). Borrowings also may
be classified and referred to by Class (E.G., a "Revolving Borrowing")
or by Type (E.G., a "Eurocurrency Borrowing") or by Class and Type
(E.G., a "Eurocurrency Revolving Borrowing").
3. TERMS GENERALLY. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein), (b)
any reference herein to any Person shall be construed to include such
Person's successors and assigns. (c) the words "herein", "hereof and
hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property'" shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties,
including all securities, accounts and contract rights. This Agreement
and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such
limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly
provided, any reference to any action of the Agent or the Banks by way
of consent, approval or waiver shall be deemed modified by the phrase
"in its/their sole discretion." This Agreement and the other Loan
Documents are the result of negotiations among and have been reviewed by
counsel to the Agent, the Company and the other parties, and are the
products of all parties. Accordingly, they shall not be construed
against the Banks or the Agent merely because of the Agent's or Banks'
involvement in their preparation.
4. ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time;
PROVIDED that, if the Company notifies the Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Agent notifies the
Company that the Required Banks request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
II. THE CREDITS
1. AMOUNTS AND TERMS OF COMMITMENTS.
(a) THE REVOLVING CREDIT. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Loans in Dollars or an
Offshore Currency to the Company, and (subject to compliance with
subsection 2.01(b)) in an Offshore Currency to each Additional Borrower
(each such Loan, sometimes referred to as a "Revolving Loan" and,
collectively, the "Revolving Loans") from time to time on any Business
Day during the Availability Period, in an aggregate amount (determined
in Dollars, including, when applicable, in accordance with the
Equivalent Amount of any requested and outstanding Offshore Currency
Loans pursuant to subsection 2.05(a)) not to exceed at any time
outstanding the Dollar amount set forth opposite such Bank's name in
SCHEDULE 2.01 under the heading "Commitment" (such amount as the same
may be reduced as a result of a reduction in the Commitments pursuant to
Section 2.06 or as a result of any assignment pursuant to Section 9.04,
such Bank's "COMMITMENT"); PROVIDED, HOWEVER, that the Effective Amount
of all Revolving Loans PLUS the Effective Amount of all L/C Obligations
shall not exceed the Total Commitment; PROVIDED FURTHER that the
Effective Amount of all Offshore Currency Loans shall not exceed the
Offshore Currency Commitment; and PROVIDED FURTHER, that the Effective
Amount of the Revolving Loans of any Bank PLUS the participation of such
Bank in the Effective Amount of all L/C Obligations shall not exceed
such Bank's Commitment. Revolving Loans may be made in Dollars (in the
case of ABR Loans and CD Rate Loans) and in Dollars or Offshore
Currencies (in the case of Eurocurrency Loans and Letters of Credit).
Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrowers may from time to time borrow under this
subsection 2.01(a), prepay pursuant to Section 2.07 and reborrow
pursuant to this subsection 2.01(a). The Total Commitment on the date
of this Agreement is $100,000,000 and is allocated among the Banks as
set forth in SCHEDULE 2.01.
(b) ADDITIONAL BORROWERS. The Banks and the Agent in their sole
discretion may hereafter agree that a Subsidiary that becomes a party
hereto after the Closing Date pursuant to Section 5.09 (an "ADDITIONAL
BORROWER") shall be entitled to request Offshore Currency Loans and
Letters of Credit denominated in an Offshore Currency hereunder. The
parties hereto acknowledge and agree that prior to any Additional
Borrower so becoming entitled to utilize the credit facilities provided
for herein the Agent and the Banks shall have first received (i) an
Additional Borrower Request and Assumption Agreement as provided in
Section 5.09, (ii) the parent guaranty specified in Section 5.09, and
(iii) such other documents or information (including a legal opinion
covering such matters as the Agent or any Bank may reasonably request),
in form and substance satisfactory to the Agent and the Banks, as may be
required by the Agent or any of the Banks in their sole discretion. If
the Agent and the Banks shall agree that an Additional Borrower shall be
entitled to request Revolving Loans and Letters of Credit hereunder, the
Agent shall send a notice in substantially the form of EXHIBIT E (an
"Additional Borrower Notice") to the Borrowers' Agent and the Banks
designating the effective date thereof, whereupon each of the Banks
agrees to permit such Additional Borrower to request Offshore Currency
Loans, and the Issuing Bank and the Banks agree to permit such
Additional Borrower to request Letters of Credit in an Offshore
Currency, on the terms and conditions set forth herein, and each of the
parties agrees that such Additional Borrower otherwise shall be a
Borrower for all purposes of this Agreement.
2. LOAN ACCOUNTS. The Loans made by each Bank shall be evidenced by
one or more loan accounts maintained by such Bank in the ordinary course
of business. The loan accounts or records maintained by the Agent and
each Bank shall be PRIMA FACIE evidence as to the amount of the Loans
made by the Banks to the Borrowers and the interest and payments
thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Loans. In case of
a discrepancy between the entries in the Agent's books and any Bank's
books, such Bank's books shall constitute PRIMA FACIE evidence of the
accuracy of the information so recorded.
3. PROCEDURE FOR BORROWING.
(a) Each Borrowing shall be made upon the Borrowers' Agent's
irrevocable written notice delivered to the Agent in accordance with
Section 9.01 in the form of a Notice of Borrowing (which notice must be
received by the Agent prior to 9:00 a.m. (San Francisco time) (i) five
Business Days prior to the requested Borrowing date, in the case of
Offshore Currency Loans; (ii) three Business Days prior to the requested
Borrowing date, in the case of CD Rate Loans and Eurocurrency Loans
denominated in Dollars; and (iii) one Business Day prior to the
requested Borrowing date, in the case of ABR Loans, specifying in each
case: (1) the identity of the Borrower; (2) the amount of the Borrowing
(in the case of a Borrowing in an Offshore Currency, expressed in
Dollars), which shall be in an aggregate minimum principal amount of
$5,000,000 or any integral multiple of $1,000,000 in excess thereof;
(3) the requested Borrowing date, which shall be a Business Day;
(4) whether the Borrowing is to be comprised of Eurocurrency Loans, CD
Rate Loans or ABR Loans; (5) in the case of a Borrowing comprised of
Offshore Currency Loans, the currency thereof; and (6) the duration of
the Interest Period applicable to such Loans included in such notice.
If the Notice of Borrowing shall fail to specify the duration of the
Interest Period for any Borrowing comprised of CD Rate Loans or
Eurocurrency Loans, such Interest Period shall be 90 days or three
months, respectively. The Equivalent Amount of any Borrowing in an
Offshore Currency requested in Dollars as provided above will be
determined by the Agent for such Borrowing on the Computation Date
therefor in accordance with subsection 2.05(a).
(b) Upon receipt of the Notice of Borrowing, the Agent will promptly
notify each Bank thereof and of the amount of such Bank's Applicable
Percentage of the Borrowing. In the case of a Borrowing comprised of
Offshore Currency Loans, such notice will consist of the approximate
amount of each Bank's Applicable Percentage of the Borrowing, and the
Agent will, upon the determination of the Equivalent Amount of the
Dollar amount of the Borrowing as specified in the Notice of Borrowing
(determined on the Computation Date as provided in subsection 2.05(a)),
promptly notify each Bank of the exact amount of such Bank's Applicable
Percentage of the Borrowing.
(c) Each Bank will make the amount of its Applicable Percentage of
the Borrowing available to the Agent for the account of the applicable
Borrower at the Agent's Payment Office on the Borrowing date requested
by the Borrowers' Agent in Same Day Funds and in the requested currency
(i) in the case of a Borrowing comprised of Revolving Loans in Dollars,
by 11:00 a.m. (San Francisco time), and (ii) in the case of a Borrowing
comprised of Offshore Currency Loans, by such time as the Agent may
specify. The proceeds of all such Revolving Loans will then be made
available to the applicable Borrower by the Agent by wire transfer or by
crediting the account of the applicable Borrower on the books of BofA
with the aggregate of the amounts made available to the Agent by the
Banks and in like funds as received by the Agent, unless on the date of
the Borrowing all or any portion of the proceeds thereof shall then be
required to be applied to the reimbursement of any outstanding drawings
under Letters of Credit pursuant to Section 2.12, in which case such
proceeds or portion thereof shall be applied to the reimbursement of
such Letter of Credit drawings.
(d) After giving effect to any Borrowing, there shall not be more
than six different Interest Periods in effect.
4. CONVERSION AND CONTINUATION ELECTIONS. (a) The Borrowers' Agent
may upon irrevocable written notice to the Agent in accordance with
subsection 2.04(b): (i) elect to convert on any Business Day, any ABR
Loans of a Borrower (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Eurocurrency Loans in Dollars or CD Rate Loans; (ii) elect
to convert on the last day of the current Interest Period any
Eurocurrency Loans in Dollars maturing at the end of such Interest
Period (or any part thereof in an amount not less than $5,000,000, or
that is in an integral multiple of $1,000,000 in excess thereof) into
ABR Loans or CD Rate Loans; (iii) elect to convert on the last day of
the current Interest Period any CD Rate Loans maturing at the end of
such Interest Period (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into ABR Loans or Eurocurrency Loans in Dollars; or (iv) elect
to renew on the last day of the current Interest Period any Eurocurrency
Loans of a Borrower (whether in Dollars or in an Offshore Currency) or
CD Rate Loans maturing at the end of such Interest Period as such (or
any part thereof in an amount not less than $5,000,000 (or the
Equivalent Amount thereof in an Offshore Currency as determined as of
the most recent Computation Date), or that is in an integral multiple of
$1,000,000 (or the Equivalent Amount thereof in an Offshore Currency as
determined as of the most recent Computation Date) in excess thereof in
the same currency; PROVIDED, that if the aggregate amount of CD Rate
Loans or Eurocurrency Loans denominated in Dollars shall have been
reduced, by payment, prepayment, or conversion of part thereof to be
less than $5,000,000, such CD Rate Loans or Eurocurrency Loans shall
automatically convert into ABR Loans, and on and after such date the
right of the Borrowers' Agent to continue such Loans as, and convert
such Loans into, Eurocurrency Loans or CD Rate Loans, as the case may
be, on behalf of itself or any other Borrower, shall terminate.
(a) The Borrowers' Agent shall deliver a Notice of Conversion/
Continuation in accordance with Section 9.01 to be received by the Agent
not later than 9:00 a.m. (San Francisco time) (i) at least five Business
Days in advance of the continuation date, if the Loans are to be
continued as Offshore Currency Loans; (ii) at least three Business Days
in advance of the Conversion Date or continuation date, if the Loans are
to be converted into or continued as CD Rate Loans or Eurocurrency Loans
denominated in Dollars; and (iii) at least one Business Day in advance
of the Conversion Date, if the Loans are to be converted into ABR Loans,
specifying in each case: (A) the Loans to be continued or converted;
(B) the proposed Conversion Date or continuation date; (C) the aggregate
amount of Loans to be converted or continued; (D) the nature of the
proposed conversion or continuation; and (E) the duration of any
requested Interest Period.
(b) If the Borrowers' Agent has failed to select a new Interest
Period to be applicable to CD Rate Loans or Eurocurrency Loans
denominated in Dollars prior to the third Business Day in advance of the
expiration date of the current Interest Period applicable thereto as
provided in subsection 2.04(b), or if any Default or Event of Default
shall then exist, the Borrowers' Agent shall be deemed to have elected
to convert such CD Rate Loans or Eurocurrency Loans into ABR Loans
effective as of the expiration date of such current Interest Period. If
the Borrowers' Agent has failed to select a new Interest Period to be
applicable to Offshore Currency Loans prior to the fifth Business Day in
advance of the expiration date of the current Interest Period applicable
thereto as provided in subsection 2.04(b), or if any Default or Event of
Default shall then exist, subject to the provisions of subsection
2.05(d), the Borrowers' Agent shall be deemed to have elected to
continue such Offshore Currency Loans on the basis of a one-month
Interest Period.
(c) Upon receipt of a Notice of Conversion/Continuation, the Agent
will promptly notify each Bank thereof, or, if no timely notice is
provided by the Borrowers' Agent, the Agent will promptly notify each
Bank of the details of any automatic conversion or continuation, as the
case may be. All conversions and continuations shall be made pro rata
according to the respective outstanding principal amounts of the Loans
with respect to which the notice was given held by each Bank.
(d) Unless the Required Banks shall otherwise agree, during the
existence of a Default or Event of Default, the Borrowers' Agent may not
elect to have a Loan in Dollars converted into or continued as a
Eurocurrency Loan or a CD Rate Loan or to have an Offshore Currency Loan
continued on the basis of an Interest Period exceeding one month.
(e) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Loans,
there shall not be more than six different Interest Periods in effect.
5. UTILIZATION OF REVOLVING COMMITMENTS IN OFFSHORE CURRENCIES. (a)
The Agent shall determine the Equivalent Amount with respect to any
(i) Borrowing comprised of Offshore Currency Loans as of the requested
Borrowing date, (ii) outstanding Offshore Currency Loans or other
amounts due hereunder and denominated in an Offshore Currency as of the
last Business Day of each calendar quarter, (iii) Letters of Credit to
be issued in an Offshore Currency as of the requested date of issuance,
(iv) outstanding Letters of Credit denominated in an Offshore Currency
as of the last Business Day of each calendar quarter, and
(v) outstanding Offshore Currency Loans as of any redenomination date
pursuant to this Section 2.05 or Section 2.28 or Section 2.30 (each such
date under clauses (i) through (v) a "Computation Date"), PROVIDED that
the Required Banks may in writing instruct the Agent to determine such
Equivalent Amount as of a date in addition to the last Business Day of
each month, and the Issuing Bank may in writing instruct the Agent to
determine such Equivalent Amount as of a conversion date (if not on the
last Banking Day of a month) in connection with a redenomination of any
amounts payable in an Offshore Currency pursuant to subsection 2.12(b),
in which case such alternative date or dates shall also be a Computation
Date or Dates.
(a) In the case of a proposed Borrowing pursuant to Section 2.03
comprised of Offshore Currency Loans, the Banks shall be under no
obligation to make Offshore Currency Loans in the requested Offshore
Currency as part of such Borrowing if the Agent has received notice from
any of the Banks by 8:00 a.m. (San Francisco time) four Business Days
prior to the day of such Borrowing that such Bank cannot provide Loans
in the requested Offshore Currency, in which event the Agent will give
notice to the Borrowers' Agent not later than 9:00 a.m. (San Francisco
time) on the fourth Business Day prior to the requested date of such
Borrowing that the Borrowing in the requested Offshore Currency is not
then available, and notice thereof also will be given promptly by the
Agent to the Banks. If the Agent shall have so notified the Borrowers'
Agent that any such Borrowing in a requested Offshore Currency is not
then available, the Borrowers' Agent may, by notice to the Agent not
later than the 5:00 p.m. (San Francisco time) four Business Days prior
to the requested date of such Borrowing, withdraw the Notice of
Borrowing relating to such requested Borrowing. If the Borrowers' Agent
does so withdraw such Notice of Borrowing, the Borrowing requested
therein shall not occur and the Agent will promptly so notify each Bank.
If the Borrowers' Agent does not so withdraw such Notice of Borrowing,
the Agent will promptly so notify each Bank and such Notice of Borrowing
shall be deemed to be a Notice of Borrowing which requests a Borrowing
comprised of ABR Loans in an aggregate amount equal to amount of the
originally requested Borrowing as expressed in Dollars in the Notice of
Borrowing; and in such notice by the Agent to each Bank the Agent will
state such aggregate amount of such Borrowing in Dollars and such Bank's
Applicable Percentage thereof.
(b) In the case of a proposed continuation of Offshore Currency
Loans for an additional Interest Period pursuant to Section 2.04, the
Banks shall be under no obligation to continue such Offshore Currency
Loans if the Agent has received notice from any of the Banks by 8:00
a.m. (San Francisco time) four Business Days prior to the day of such
continuation that such Bank cannot continue to provide Loans in the
relevant Offshore Currency, in which event the Agent will give notice to
the Borrowers' Agent not later than 9:00 a.m. (San Francisco time) on
the fourth Business Day prior to the requested date of such continuation
that the continuation of such Offshore Currency Loans in the relevant
Offshore Currency is not then available, and notice thereof also will be
given promptly by the Agent to the Banks. If the Agent shall have so
notified the Borrowers' Agent that any such continuation of Offshore
Currency Loans is not then available, any Notice of
Continuation/Conversion with respect thereto shall be deemed withdrawn
and such Offshore Currency Loans shall be redenominated into ABR Loans
in Dollars with effect from the last day of the Interest Period with
respect to any such Offshore Currency Loans. The Agent shall promptly
notify the Borrowers' Agent and the Banks of any such redenomination and
in such notice by the Agent to each Bank the Agent will state the
aggregate Equivalent Amount of the redenominated Offshore Currency Loans
in Dollars as of the Computation Date with respect thereto and such
Bank's Applicable Percentage thereof.
(c) Notwithstanding anything herein to the contrary, during the
existence of a Default or an Event of Default, upon the request of the
Required Banks all or any part of any outstanding Offshore Currency
Loans shall be redenominated into ABR Loans in Dollars with effect from
the last day of the Interest Period, with respect to any such Offshore
Currency Loans, and all or any part of any other outstanding amount
payable in an Offshore Currency shall be redenominated into Dollars on
the date specified by the Required Banks. The Agent shall promptly
notify the Borrowers' Agent of any such redenomination request.
(d) The Borrowers' Agent shall be entitled to request that Revolving
Loans hereunder also be permitted to be made, and Letters of Credit
hereunder also be permitted to be issued, in any other lawful currency
constituting a eurocurrency (other than Dollars), in addition to the
eurocurrencies specified in the definition of "Offshore Currency"
herein, that in the opinion of all of the Banks is at such time freely
traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "AGREED ALTERNATE
CURRENCY"). The Borrowers' Agent shall deliver to the Agent any request
for designation of an Agreed Alternate Currency in accordance with
Section 9.01, to be received by the Agent not later than 10:00 a.m. (San
Francisco time) at least ten Business Days in advance of the date of any
Borrowing hereunder proposed to be made in such Agreed Alternate
Currency or any Letter of Credit proposed to be issued hereunder in such
Agreed Alternate Currency. Upon receipt of any such request the Agent
shall promptly notify the Banks thereof, and each Bank shall use its
best efforts to respond to such request within two Business Days of
receipt thereof. Each Bank may grant or accept such request in its sole
discretion, and each of the Borrowers understands that there is no
commitment by or understanding with any Bank with respect to the
approval of any Agreed Alternate Currency. The Agent will promptly
notify the Borrowers' Agent of the acceptance (which shall require the
approval of ALL Banks) or rejection of any such request.
6. VOLUNTARY TERMINATION OR REDUCTION OF TOTAL COMMITMENT. The
Borrowers' Agent may, on behalf of the Borrowers, upon not less than
five Business Days' prior notice to the Agent, terminate the Total
Commitment (including the Aggregate L/C Commitment and Offshore Currency
Commitment) or permanently reduce the Total Commitment (including the
Aggregate L/C Commitment and Offshore Currency Commitment if specified
by the Borrowers' Agent) by an aggregate minimum amount of $1,000,000 or
any multiple of $1,000,000; PROVIDED that no such reduction or
termination shall be permitted if the Effective Amount of Revolving
Loans and L/C Obligations would exceed the amount of the Total
Commitment then in effect; and PROVIDED FURTHER that once reduced in
accordance with this Section 2.06, the Total Commitment may not be
increased. Any reduction of the Total Commitment and the Aggregate L/C
Commitment pursuant to this Section 2.06 shall be applied to each Bank's
Commitment and L/C Commitment in accordance with such Bank's Applicable
Percentage. The amount of any such Total Commitment reduction shall not
be applied to the Aggregate L/C Commitment or the Offshore Currency
Commitment unless otherwise specified by the Borrower. All accrued
commitment and letter of credit fees to, but not including, the
effective date of any such termination shall be payable on the effective
date of such termination.
7. PREPAYMENTS. (a) Subject to Section 2.29, the Borrowers' Agent
may, on behalf of itself or the applicable Borrower, at any time or from
time to time, ratably prepay Loans made to it in whole or in part, in
amounts of $1,000,000 (or, in the case of Offshore Currency Loans, the
Equivalent Amount thereof in an Offshore Currency as determined as of
the most recent Computation Date with respect thereto) or any multiple
of $1,000,000 (or, in the case of Offshore Currency Loans, the
Equivalent Amount thereof in an Offshore Currency as determined as of
the most recent Computation Date with respect thereto) in excess
thereof. The Borrowers' Agent shall deliver a notice of prepayment on
behalf of itself or the applicable Borrower in accordance with
Section 9.01 to be received by the Agent not later than 9:00 a.m. (San
Francisco time) (i) at least five Business Days in advance of the
prepayment date if the Loans to be prepaid are Offshore Currency Loans,
(ii) at least three Business Days in advance of the prepayment date if
the Loans to be prepaid are CD Rate or Eurocurrency Loans denominated in
Dollars, and (iii) at least one Business Day in advance of the
prepayment date if the Loans to be prepaid are ABR Loans.
(a) Subject to subsection 2.07(c) and Section 2.29, if on any date
the Effective Amount of all Revolving Loans PLUS the Effective Amount of
all L/C Obligations shall exceed the Total Commitment, the Borrowers
shall immediately, and without notice or demand, prepay the outstanding
principal amount of the Revolving Loans and L/C Advances by an amount
equal to the applicable excess. Additionally, subject to
subsection 2.07(c), (i) if on any date the Effective Amount of L/C
Obligations shall exceed the Aggregate L/C Commitment, the Borrowers
shall cash collateralize, in Dollars, on such date the outstanding
Letters of Credit in an amount equal to the excess of the maximum amount
then available to be drawn under the Letters of Credit over the
Aggregate L/C Commitment (in the case of any Offshore Currency L/C
Obligations, such amounts to be determined on the basis of the
Equivalent Amount thereof in Dollars as of the most recent Computation
Date); and (ii) if on any date the Effective Amount of all Offshore
Currency Loans and the Effective Amount of all Offshore Currency L/C
Obligations (in each case, determined on the basis of the Equivalent
Amount thereof in Dollars as of the most recent Computation Date) shall
exceed the Offshore Currency Commitment, the Borrowers shall
immediately, and without notice or demand, prepay the outstanding amount
of the Offshore Currency Loans and the Offshore Currency L/C Advances by
an amount equal to the applicable excess.
(b) Subject to Section 2.29, if on any Computation Date the Agent
shall have determined that the Effective Amount of all Revolving Loans
PLUS the Effective Amount of all L/C Obligations shall exceed the Total
Commitment by more than $100,000 due to a change in applicable rates of
exchange between Dollars and Offshore Currencies, the Agent shall give
notice to the Borrowers' Agent that a prepayment by the Borrowers is
required hereunder, and the Borrowers shall thereupon be required to
make a prepayment of Revolving Loans and L/C Advances hereunder, such
that the Effective Amount of all Revolving Loans PLUS the Effective
Amount of all L/C Obligations (after giving effect to such prepayment)
will be equal to or less than the Total Commitment.
(c) Any notice of prepayment given by the Borrowers' Agent under
subsection 2.07(a) shall specify the date and amount of the proposed
prepayment. In connection with any prepayment pursuant to this Section
2.07, the Borrowers' Agent shall specify whether such prepayment is of
ABR Loans, CD Rate Loans or Eurocurrency Loans, or any combination
thereof, and identify any Offshore Currency Loans that are the subject
of the prepayment and shall identify the Borrower or Borrowers making
the prepayment. Any notice of prepayment given by the Borrowers' Agent
under subsection 2.07(a) shall not thereafter be revocable by the
Borrowers' Agent. The Agent will promptly notify each Bank of any
proposed prepayment and of such Bank's Applicable Percentage of such
prepayment.
(d) If any notice of prepayment is given, the Borrowers shall make
the prepayment described in such notice and the payment amount specified
in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid and
any amounts required pursuant to Section 2.29.
8. REPAYMENT. Each Borrower shall repay to the Banks in full on the
Maturity Date the aggregate principal amount of the Revolving Loans made
to such Borrower outstanding on the Maturity Date.
9. INTEREST.
(a) Subject to Section 9.14, each Revolving Loan shall bear interest
on the outstanding principal amount thereof from the date when made
until it becomes due (i) during such periods as such Revolving Loan is a
Eurocurrency Loan, at a rate per annum equal during each Interest Period
for such Eurocurrency Loan to the Adjusted LIBO Rate for such Interest
Period PLUS the Applicable Margin, (ii) during such periods as such
Revolving Loan is a CD Rate Loan, at a rate per annum equal during each
Interest Period for such CD Rate Loan to the CD Rate for such Interest
Period PLUS the Applicable Margin, and (iii) during such periods as such
Revolving Loan is an ABR Loan, at a rate per annum equal to the
Alternate Base Rate PLUS the Applicable Margin.
(b) Each Borrower agrees to pay interest on each Loan made to it, in
arrears, on each Interest Payment Date. Interest shall also be paid by
each Borrower on the date of any prepayment of Loans pursuant to Section
2.07 for the portion of the Loans so prepaid and upon payment (including
prepayment) in full thereof and, during the existence of any Event of
Default, interest shall be paid on demand.
(c) If any amount of principal of or interest on any Loan, or any
other amount payable hereunder or under any of the other Loan Documents
by any Borrower is not paid in full when due (whether at stated
maturity, by acceleration, demand or otherwise), such Borrower agrees to
pay interest on such unpaid principal or other amount, from the date
such amount becomes due until the date such amount is paid in full, and
after as well as before any entry of judgment thereon to the extent
permitted by law, payable on demand, at a rate per annum equal to the
Alternate Base Rate PLUS 1%.
10. THE LETTER OF CREDIT SUBFACILITY. (a) On the terms and conditions
set forth herein (i) the Issuing Bank hereby agrees, (A) from time to
time on any Business Day during the period from the Closing Date to the
Maturity Date to issue Letters of Credit for the account of any Borrower
in accordance with subsection 2.11(a), and to amend or renew Letters of
Credit previously issued by it in accordance with subsections 2.11(c)
and 2.11(d), in an aggregate amount (determined in Dollars, including,
when applicable, in accordance with the Equivalent Amount of any
requested and outstanding Letters of Credit denominated in Offshore
Currencies pursuant to subsection 2.05(a)) not to exceed at any time the
Aggregate L/C Commitment, and (B) to honor drafts under the Letters of
Credit; and (ii) the Banks severally agree to participate in Letters of
Credit issued for the account of any Borrower; PROVIDED, that the
Issuing Bank shall not be obligated to issue any Letter of Credit if
(1) the Effective Amount of all L/C Obligations PLUS the Effective
Amount of all Revolving Loans shall exceed the Total Commitment, (2) the
Effective Amount of all Offshore Currency L/C Obligations PLUS the
Effective Amount of all Offshore Currency Loans (in each case,
determined on the basis of the Equivalent Amount thereof in Dollars as
of the most recent Computation Date) shall exceed the Offshore Currency
Commitment, (3) the participation of any Bank in the Effective Amount of
all L/C Obligations PLUS the Effective Amount of the Revolving Loans of
such Bank shall exceed such Bank's Commitment, or (4) the Effective
Amount of L/C Obligations shall exceed the Aggregate L/C Commitment.
Within the foregoing limits, and subject to the other terms and
conditions hereof, each Borrower's ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, each Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
(a) The Issuing Bank shall be under no obligation to issue, amend or
reinstate any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Bank from issuing, amending or reinstating such Letter of
Credit, or any Requirement of Law applicable to the Issuing Bank or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the issuance,
amendment or reinstatement of letters of credit generally or such Letter
of Credit in particular or shall impose upon the Issuing Bank with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Issuing Bank is not otherwise compensated)
not in effect on the Closing Date, or shall impose upon the Issuing Bank
any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Bank in good faith deems material to
it;
(ii) the Issuing Bank has received written notice from any Bank,
the Agent or the Borrowers' Agent, at least one Business Day prior to
the requested date of issuance, amendment or reinstatement of such
Letter of Credit, that one or more of the applicable conditions
contained in Section 4.02 is not then satisfied;
(iii) the expiry date of any requested Letter of Credit is
(A) more than 365 days after the date of issuance, unless the Required
Banks have approved such expiry date in writing, or (B) more than 365
days after the Maturity Date, unless all of the Banks have approved such
expiry date in writing; PROVIDED, that a Letter of Credit may state that
the expiry date thereof is extendible for an additional term as shall be
satisfactory to the Issuing Bank (either upon prior notice or
automatically) so long as the next succeeding additional term at any
time is not more than 365 days;
(iv) any requested Letter of Credit does not provide for drafts,
or is not otherwise in form and substance acceptable to the Issuing
Bank, or the issuance, amendment or renewal of a Letter of Credit shall
violate any applicable policies of the Issuing Bank;
(v) any standby Letter of Credit is for the purpose of
supporting the issuance of any letter of credit by any other Person;
(vi) such Letter of Credit is (A) in a face amount less than
$1,000,000 (or the Equivalent Amount thereof in an Offshore Currency, as
determined as of the Computation Date for an Offshore Currency Letter of
Credit), (B) to be used to support workers' compensation obligations,
(C) to be used to support the obligations of any Person other than the
Borrowers and the Subsidiaries, or (D) denominated in a currency other
than Dollars or an Offshore Currency; or
(vii) in respect of any Letter of Credit to be denominated in an
Offshore Currency, the Issuing Bank has determined that it is unable to
fund obligations in the requested Offshore Currency.
(b) The Issuing Bank will use its best efforts promptly following
receipt of a request to issue, amend or reinstate a Letter of Credit to
notify the Agent and the Borrowers' Agent of any unreimbursed material
loss, cost or expense imposed on the Issuing Bank referred to in
subsection (b)(i) above that may prevent such issuance, amendment or
reinstatement from occurring as provided in this Article II, PROVIDED
that any failure to provide such notice shall not impose any additional
obligations under this Article II.
11. ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of
the Borrowers' Agent received by the Issuing Bank (with a copy sent by
the Borrowers' Agent to the Agent) at least four Business Days (or in
each case such shorter time as the Issuing Bank may agree in a
particular instance in its sole discretion), prior to the proposed date
of issuance. Each such request for issuance of a Letter of Credit shall
be by facsimile, confirmed immediately in an original writing, in the
form of an L/C Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the proposed date of issuance of
the Letter of Credit (which shall be a Business Day); (ii) the face
amount of the Letter of Credit (and applicable Offshore Currency, if
such Letter of Credit is not denominated in Dollars); (iii) the expiry
date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary
in case of any drawing thereunder; (vii) the identity of the Person
whose obligations will be supported by such Letter of Credit (which, if
other than the Borrower, must be a Subsidiary); and (viii) such other
matters as the Issuing Bank may require. The Equivalent Amount of any
Letter of Credit to be denominated in an Offshore Currency as provided
above will be determined by the Agent for such Letter of Credit on the
Computation Date therefor in accordance with subsection 2.05(a).
(a) Not more than one Business Day following receipt of any request
for the issuance of any Letter of Credit or any amendment or renewal of
any Letter of Credit, the Issuing Bank will confirm with the Agent (by
telephone or in writing) that the Agent has received a copy of the L/C
Application or L/C Amendment Application from the Borrowers' Agent and,
if not, the Issuing Bank will provide the Agent with a copy thereof.
Unless the Issuing Bank has received notice on or before the Business
Day immediately preceding the date the Issuing Bank is to issue, amend
or renew a requested Letter of Credit from the Agent (A) directing the
Issuing Bank not to issue, amend or renew such Letter of Credit because
such issuance, amendment or renewal is not then permitted under
subsection 2.10(a) as a result of the limitations set forth in clauses
(1) through (4) thereof or subsection 2.10(b)(iii); or (B) that one or
more conditions specified in Section 4.02 are not then satisfied; THEN,
subject to the terms and conditions hereof, the Issuing Bank shall, on
the requested date, issue a Letter of Credit for the account of the
applicable Borrower or amend or renew a Letter of Credit, as the case
may be, in accordance with the Issuing Bank's usual and customary
business practices.
(b) From time to time while a Letter of Credit is outstanding and
prior to the Maturity Date, the Issuing Bank will, upon the written
request of the Borrowers' Agent received by the Issuing Bank (with a
copy sent by the Borrowers' Agent to the Agent) at least four Business
Days (or in each case such shorter time as the Issuing Bank may agree in
a particular instance in its sole discretion), prior to the proposed
date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of an L/C
Amendment Application and shall specify in form and detail satisfactory
to the Issuing Bank: (i) the Letter of Credit to be amended; (ii) the
proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the Issuing Bank may require. The Issuing Bank shall
be under no obligation to amend any Letter of Credit, and shall not
permit the amendment of a Letter of Credit, if: (A) the Issuing Bank
would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit.
(c) The Issuing Bank and the Banks agree that, while a Letter of
Credit is outstanding and prior to the Maturity Date, at the option of
the Borrowers' Agent and upon the written request of the Borrowers'
Agent received by the Issuing Bank (with a copy sent by the Borrowers'
Agent to the Agent) at least four Business Days (or in each case such
shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion), prior to the proposed date of notification of
renewal, the Issuing Bank shall be entitled to authorize the automatic
renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, in the form of an L/C Amendment
Application, and shall specify in form and detail satisfactory to the
Issuing Bank: (i) the Letter of Credit to be renewed; (ii) the proposed
date of notification of renewal of the Letter of Credit (which shall be
a Business Day); (iii) the revised expiry date of the Letter of Credit;
and (iv) such other matters as the Issuing Bank may require. The
Issuing Bank shall be under no obligation so to renew any Letter of
Credit, and shall not permit any renewal (including any automatic
renewal of a Letter of Credit), if: (A) the Issuing Bank would have no
obligation at such time to issue or amend such Letter of Credit in its
renewed form under the terms of this Agreement; or (B) the beneficiary
of any such Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall provide
that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Bank that such Letter of Credit shall
not be renewed, and if at the time of renewal the Issuing Bank would be
entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this subsection 2.11(d) upon the request of the
Borrowers' Agent but the Issuing Bank shall not have received any L/C
Amendment Application from the Borrowers' Agent with respect to such
renewal or other written direction by the Borrowers' Agent with respect
thereto, the Issuing Bank shall nonetheless be permitted to allow such
Letter of Credit to renew, and the Borrowers and the Banks hereby
authorize such renewal, and, accordingly, the Issuing Bank shall be
deemed to have received an L/C Amendment Application from the Borrowers'
Agent requesting such renewal.
(d) The Issuing Bank may, at its election (or as required by the
Agent at the direction of the Required Banks), deliver any notices of
termination or other communications to any Letter of Credit beneficiary
or transferee, or take any other action as necessary or appropriate, at
any time and from time to time, in order to cause the expiry date of
such Letter of Credit to be a date not later than the Maturity Date.
(e) This Agreement shall control in the event of any conflict with
any L/C-Related Document (other than any Letter of Credit).
(i) The Issuing Bank will also deliver to the Agent,
concurrently with or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an advising
bank or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
(ii) The Agent will promptly notify the Banks of the issuance,
amendment or renewal of a Letter of Credit hereunder (including the date
thereof and the amount, currency, expiry and reference number of such
Letter of Credit).
12. PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (a) Immediately upon
the issuance of each Letter of Credit, the Issuing Bank shall be deemed
irrevocably to have sold and transferred to each Bank without recourse
or warranty, and each Bank shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase and accept from the Issuing
Bank, for such Bank's own account and risk, an undivided interest and
participation in such Letter of Credit and each drawing thereunder in an
amount equal to the product of (i) the Applicable Percentage of such
Bank, times (ii) the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For
purposes of subsection 2.10(a), each issuance of a Letter of Credit
shall be deemed to utilize the Commitment of each Bank by an amount
equal to the amount of such participation.
(a) In the event of any request for a drawing under a Letter of
Credit by the beneficiary thereof, the Issuing Bank shall immediately
notify the Borrowers' Agent, the applicable Borrower and the Agent. The
applicable Borrower shall reimburse the Issuing Bank on each date that
any amount is paid by the Issuing Bank under any Letter of Credit, in an
amount equal to the amount paid by the Issuing Bank on such date under
such Letter of Credit, in the currency in which such Letter of Credit is
payable; PROVIDED that the Issuing Bank may at its election (a
"CONVERSION ELECTION"), require payment in respect of any Letter of
Credit payable in an Offshore Currency to be made in Dollars in an
amount equal to the Equivalent Amount in Dollars as of the date of
payment by the Issuing Bank on such Letter of Credit. Such
reimbursement shall be made by the applicable Borrower prior to 9:00
a.m. (San Francisco time) on such payment date in the case of payments
to be made in Dollars (whether originally payable in Dollars or
redenominated into Dollars as a result of a Conversion Election), and no
later than the time specified by the Issuing Bank on such payment date
in the case of payments to be made in an Offshore Currency. In the
event the applicable Borrower shall fail to reimburse the Issuing Bank
for the full amount of any drawing under any Letter of Credit by the
required time as provided above on the same date such drawing is honored
by the Issuing Bank, the Issuing Bank will promptly notify the Agent,
and the Agent will promptly notify each Bank thereof (including the
amount and currency of the drawing and such Bank's Commitment Percentage
thereof), and the applicable Borrower shall be deemed to have requested
that (i) ABR Loans be made by the Banks in the case of any reimbursement
obligation in Dollars, or (ii) Offshore Currency Loans be made in the
currency of any outstanding reimbursement obligations in an Offshore
Currency, on the basis of a one week Interest Period, to be disbursed on
the date of payment by the Issuing Bank under such Letter of Credit,
subject to the amount of the unutilized portion of the Total Commitment
and subject to the conditions set forth in Section 4.02. Each of the
Borrowers hereby directs that the proceeds of any such Loans deemed to
be made by it shall be used to pay its reimbursement obligations in
respect of any such drawing. Solely for the purposes of making such
Loans, the minimum borrowing amount limitations set forth in
Section 2.03 shall not be applicable. Any notice given by the Issuing
Bank or the Agent pursuant hereto may be oral if immediately confirmed
in writing (including by facsimile); PROVIDED that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(b) Each Bank shall upon receipt of any notice pursuant to
subsection 2.12(b) make available to the Agent for the account of the
relevant Issuing Bank an amount in the specified currency and in Same
Day Funds equal to its Applicable Percentage of the amount of the
drawing, whereupon the participating Banks shall (subject to subsection
2.12(d)) each be deemed to have made a Revolving Loan consisting of an
ABR Loan or Offshore Currency Loan, as the case may be, to the
applicable Borrower in that amount. If any Bank so notified shall fail
to make available to the Agent for the account of the Issuing Bank the
amount of such Bank's Applicable Percentage of the amount of the drawing
on the date such drawing was honored by the Issuing Bank (the
"PARTICIPATION DATE"), in the case of a drawing in to be reimbursed in
Dollars (whether originally payable in Dollars or redenominated into
Dollars as a result of a Conversion Election), by no later than 12:00
noon (San Francisco time), and in the case of a drawing to be reimbursed
in an Offshore Currency, by such time as the Agent may specify, then
interest shall accrue on such Bank's obligation to make such payment,
from the Participation Date to the date such Bank makes such payment, at
(i), in the case of payments to be made in Dollars, (A) the Federal
Funds Effective Rate in effect from time to time during the period
commencing on the Participation Date and ending on the date three
Business Days thereafter, and (B) thereafter at the Alternate Base Rate
as in effect from time to time, and (ii) in the case of payment to be
made in an Offshore Currency, at the Overnight Rate, as in effect for
each day during the period such amount remains unpaid. The Agent will
promptly give notice of the occurrence of the Participation Date, but
failure of the Agent to give any such notice on the Participation Date
or in sufficient time to enable any Bank to effect such payment on such
date shall not relieve such Bank from its obligations under this Section
2.12.
(c) With respect to any unreimbursed drawing which is not converted
into Revolving Loans consisting of ABR Loans or Offshore Currency Loans,
as the case may be, to the applicable Borrower in whole or in part,
because of such Borrower's failure to satisfy the conditions set forth
in Section 4.02 or for any other reason, such Borrower shall be deemed
to have incurred from the Issuing Bank an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on demand
(together with interest) and (i) if denominated in Dollars, shall bear
interest at the rate specified in subsection 2.09(c) for overdue amounts
payable in Dollars, and (ii) if denominated in an Offshore Currency,
shall initially have a one week Interest Period and bear interest at the
rate specified in subsection 2.09(c) for overdue amounts payable in an
Offshore Currency and each Bank's payment to the Issuing Bank pursuant
to subsection 2.12(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Bank in satisfaction of its participation obligation under
this Section 2.12.
(d) Each Bank's obligation in accordance with this Agreement to make
the Revolving Loans or L/C Advances, as contemplated by this
Section 2.12, as a result of a drawing under a Letter of Credit, shall
be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank may have against the Issuing
Bank, any Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default, an Event of Default or
a Material Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
13. AUTOMATIC RENEWALS. If any outstanding Letter of Credit for the
account of any Borrower shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the Issuing
Bank that such Letter of Credit shall not be renewed, and if at the time
of renewal the Issuing Bank would be entitled to authorize the automatic
renewal of such Letter of Credit in accordance with subsection 2.11(d)
upon the request of the Borrowers' Agent but the Issuing Bank shall not
have received any L/C Amendment Application from the Borrowers' Agent
with respect to such renewal or other written direction by the
Borrowers' Agent with respect thereto, the Issuing Bank shall
nonetheless be permitted to allow such Letter of Credit to renew, and,
notwithstanding anything in this Agreement to the contrary, the
Borrowers and the Banks hereby authorize such renewal (unless the
Required Banks notify the Agent and the Issuing Bank in writing that
non-renewal of any Letter of Credit is desired and such notice is
received by the Agent and the Issuing Bank no less than 30 days prior to
the last date on which the Issuing Bank is entitled to notify the
beneficiary of any such Letter of Credit of its non-renewal), and,
accordingly, the Issuing Bank shall be deemed to have received an L/C
Amendment Application from the Borrowers' Agent requesting such renewal.
14. REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon) receipt by
the Agent for the account of the Issuing Bank of funds from a Borrower
(i) in reimbursement of any payment made by the Issuing Bank under the
Letter of Credit with respect to which any Bank has theretofore paid the
Agent for the account of the Issuing Bank for such Bank's participation
in the Letter of Credit pursuant to Section 2.12, or (ii) in payment of
interest thereon, the Agent will pay to each Bank, in the same funds and
currency so received by the Agent for the account of the Issuing Bank,
the amount of such Bank's Applicable Percentage thereof, and the Issuing
Bank shall receive the amount of the Applicable Percentage thereof with
respect to any Bank that did not so pay the Agent for the account of the
Issuing Bank.
(a) If the Agent or the Issuing Bank is required at any time to
return to any Borrower or to a trustee, receiver, liquidator, custodian,
or any official in any Insolvency Proceeding, any portion of the
payments made by any Borrower to the Agent for the account of the
Issuing Bank pursuant to subsection 2.14(a) in reimbursement of a
payment made under the Letter of Credit or interest thereon, each Bank
shall, on demand of the Agent, forthwith return to the Agent or the
Issuing Bank the amount of its Applicable Percentage of any amounts so
returned by the Agent or the Issuing Bank and in the currency in which
any such amounts were so returned PLUS interest thereon from the date
such demand is made to the date such amounts are returned by such Bank
to the Agent or the Issuing Bank, at a rate per annum equal to (i) the
Federal Funds Effective Rate in effect from time to time with respect to
any such amounts denominated in Dollars, and (ii) the Overnight Rate
with respect to any amounts denominated in an Offshore Currency, for and
determined as of each day during such period.
15. ROLE OF THE ISSUING BANK. (a) Each of the Banks and the Borrowers
agrees that, in paying any drawing under a Letter of Credit, the Issuing
Bank shall not have any responsibility to obtain any document (other
than any sight draft and certificates expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or delivering
any such document.
(a) No Agent/IB-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be
liable to any Bank for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Banks (including the
Required Banks, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or wilful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(b) Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter
of Credit; PROVIDED, HOWEVER, that this assumption is not intended to,
and shall not, preclude such Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. No Agent/IB-Related Person, nor any of the
respective correspondents, participants or assignees of the Issuing
Bank, shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of Section 2.10(b); PROVIDED, HOWEVER,
anything in such clauses to the contrary notwithstanding, that such
Borrower may have a claim against the Issuing Bank, and the Issuing Bank
may be liable to such Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which the Borrower proves were caused by the
Issuing Bank's willful misconduct or gross negligence or the Issuing
Bank's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the Issuing Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary;
and (ii) the Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason.
16. OBLIGATIONS ABSOLUTE. The obligations of each Borrower under this
Agreement and any L/C-Related Document to reimburse the Issuing Bank for
a drawing under a Letter of Credit, and to repay any L/C Borrowing and
any drawing under a Letter of Credit converted into Revolving Loans,
shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other
L/C-Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or any
L/C-Related Document; (ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
such Borrower in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents in accordance with their terms; (iii) the
existence of any claim, set-off, defense or other right that such
Borrower may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or
any such transferee may be acting), the Issuing Bank or any other
Person, whether in connection with this Agreement, the transactions
contemplated hereby or by the L/C-Related Documents or any unrelated
transaction; (iv) any draft, demand, certificate or other 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) any payment by the Issuing
Bank under any Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of any Letter
of Credit; (vi) any payment made by the Issuing Bank under any Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or
any transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding; (vii) any exchange, release
or non-perfection of any collateral, or any release or amendment or
waiver of or consent to departure from any other guarantee, for all or
any of the obligations of any Borrower in respect of any Letter of
Credit; or (viii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, any Borrower or a guarantor.
17. CASH COLLATERAL PLEDGE. Upon (i) the request of the Agent, if the
Issuing Bank has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing
hereunder, (ii) the occurrence of the Maturity Date, if any Letters of
Credit may for any reason remain outstanding and partially or wholly
undrawn, or (iii) the occurrence of the circumstances described in
subsection 2.07(b) requiring any Borrower to cash collateralize Letters
of Credit, such Borrower shall immediately pay over cash, in Dollars, in
an amount equal to the L/C Obligations of such Borrower to the Agent for
the benefit of the Banks to be held by the Agent as cash collateral
subject to the terms of this Section 2.17. Such amount, together with
any amount received by the Agent in respect of outstanding Letters of
Credit pursuant to Article VII and any additional amounts received by
the Agent as provided in this Section 2.17, when received by the Agent,
shall be held by the Agent in a cash collateral account opened by the
Agent as cash collateral for the reimbursement obligations of the
applicable Borrower under this Agreement in respect of the L/C
Obligations of such Borrower and for the other Obligations. In
connection with any such amounts to be paid over to the Agent as cash
collateral for Offshore Currency L/C Obligations then outstanding, the
amount of cash collateral to be paid over with respect thereto and held
as part of the cash collateral pursuant to this Section 2.17 shall be
determined on the basis of the Equivalent Amount thereof in Dollars as
of the most recent Computation Date. Each Borrower shall, to the extent
necessary, make such additional pledges from time to time as shall be
necessary to ensure that all L/C Obligations remain at all times fully
cash collateralized (in the case of any Offshore Currency L/C
Obligations, the amounts thereof from time to time to be determined on
the basis of the Equivalent Amount thereof in Dollars as of the most
recent Computation Date), PROVIDED that no such additional pledge shall
be required at any time that the shortfall in the amount of the required
cash collateral results from a change in applicable rates of exchange
between Dollars and Offshore Currencies and such shortfall shall not
exceed at such time $100,000. Such cash collateral shall bear interest
at a rate per annum equal at all times to the rate specified by BofA as
its money market rate, and shall be credited to such cash collateral
account monthly, PROVIDED that no interest shall be payable on such cash
collateral while an Event of Default exists hereunder. Amounts held in
such cash collateral account shall be applied by the Agent to the
reimbursement of the Issuing Bank for any payment made by it of drafts
drawn under the outstanding Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other Obligations of
the Borrowers hereunder. After all such Letters of Credit shall have
expired or been fully drawn upon, all L/C Obligations shall have been
satisfied and all other Obligations of the Borrowers hereunder shall
have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrowers. The Borrowers hereby grant
the Agent (for itself and on behalf of and for the ratable benefit of
the Issuing Bank and the Banks) a security interest in all such cash
collateral. The Borrowers shall execute such further agreements,
documents, instruments or financing statements as the Agent reasonably
deems necessary in connection therewith.
18. LETTER OF CREDIT FEES. (a) The Company agrees to pay to the Agent
for the account of each of the Banks a letter of credit fee, in Dollars,
with respect to the average daily maximum amount available to be drawn
on the outstanding Letters of Credit, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
Letters of Credit outstanding for that quarter as calculated by the
Agent equal to the applicable rate per annum set forth in Annex I. (For
the sake of clarity, a Letter of Credit which is a "financial standby
letter of credit" within the meaning of Parts 208 and 225 of 12 Code of
Federal Regulations shall accrue fees at the applicable rate per annum
set forth under the heading "Financial Standby Letter of Credit Fees" in
the pricing grid attached as Annex I, and a Letter of Credit which is a
"performance standby letter of credit" within the meaning of Parts 208
and 225 of 12 Code of Federal Regulations shall accrue fees at the
applicable rate per annum set forth under the heading "Performance
Standby Letter of Credit Fees" in such pricing grid). Such letter of
credit fees shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of Credit are
outstanding, commencing on the first such quarterly date to occur after
the Closing Date, through the Maturity Date (or such later date upon
which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Maturity Date (or such expiration date). For
purposes of determining the average daily maximum amount available to be
drawn on the outstanding Letters of Credit in order to calculate the
letter of credit fee due under this subsection 2.18(a), the amount of
any Letter of Credit in an Offshore Currency on any date shall be
determined based upon the Equivalent Amount in Dollars thereof as of the
most recent Computation Date pursuant to subsection 2.05(a) with respect
to such Letter of Credit.
(a) The Company agrees to pay to the Agent for the account of the
Issuing Bank a letter of credit fronting fee, in Dollars, for each
standby Letter of Credit issued by the Issuing Bank equal to 0.125% of
the face amount of such standby Letter of Credit. Such standby Letter
of Credit fronting fee shall be due and payable on each date of issuance
of a standby Letter of Credit and, if such Letter of Credit is in an
Offshore Currency, the amount thereof shall be determined based upon the
Equivalent Amount in Dollars thereof as of the initial Computation Date
pursuant to subsection 2.05(a) with respect to such standby Letter of
Credit.
(b) The Company agrees to pay to the Issuing Bank from time to time
on demand the normal and reasonable issuance, presentation, amendment
and other processing fees, and other standard costs and charges, of the
Issuing Bank relating to standby letters of credit as from time to time
in effect, in Dollars or in such Offshore Currency as the Issuing Bank
shall specify.
(c) All fees payable under this Section 2.18 shall be nonrefundable.
19. THE BORROWERS' AGENT.
(a) Each of the Borrowers irrevocably appoints, designates and
authorizes the Borrowers' Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. The
Borrowers' Agent may execute any of its duties under this Agreement or
any other Loan Document by or through agents, employees or
attorneys-in-fact.
(b) The Borrowers' Agent shall promptly forward to the Agent or the
Borrowers, as appropriate, all notices, certificates, financial
statements and reports received by it in the performance of its duties
hereunder.
(c) The Borrowers may, upon 30 days' notice to and with the consent
of the Agent (which consent shall not be unreasonably withheld), appoint
another Borrower to act as Borrowers' Agent and upon such appointment
such successor Borrowers' Agent shall succeed to all the appointment,
powers and duties of the retiring Borrowers' Agent and the term
"Borrowers' Agent" shall mean such successor agent and the retiring
Borrowers' Agent's rights, powers and duties as Borrowers' Agent shall
be terminated.
(d) The Borrowers' Agent shall perform its duties hereunder and
under the other Loan Documents on behalf of the Borrowers. The action
of the Borrowers' Agent shall in each case bind all the Borrowers, and
any action taken by the Borrowers' Agent in the name of the Borrowers or
any of them pursuant to this Agreement or any other Loan Document shall
bind the Borrowers, whether or not such action has been duly authorized
by such Borrowers.
20. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and Practice for
Documentary Credits as most recently published by the International
Chamber of Commerce ("UCP") shall in all respects be deemed a part of
this Article II as if incorporated herein and shall apply to the Letters
of Credit.
21. OTHER FEES.
(a) ARRANGEMENT FEE; AGENCY FEE. The Company shall pay to the Agent
for the Agent's own account an arrangement fee and an agency fee, in
each case in the amount and at the times set forth in a letter agreement
between the Company and the Agent dated February 6, 1997.
(b) COMMITMENT FEES. The Company agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily unused
portion of such Bank's Commitment, computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon the
daily utilization for that quarter as calculated by the Agent, equal to
the applicable rate per annum set forth on Annex I. Such commitment fee
shall accrue from the Closing Date through the Maturity Date and shall
be due and payable quarterly in arrears on the last Business Day of each
calendar quarter commencing on the first such date after the Closing
Date through the Maturity Date, with the final payment to be made on the
Maturity Date; PROVIDED that, in connection with any termination of
Commitments pursuant to Section 2.06, the accrued commitment fee
calculated for the period ending on such date shall be paid on the date
of such termination. The commitment fees provided in this subsection
shall accrue at all times after the above-mentioned commencement date,
including at any time during which one or more conditions in Article IV
are not met.
(c) FEES NONREFUNDABLE. All fees payable under this Section 2.21
shall be nonrefundable.
22. COMPUTATION OF FEES AND INTEREST.
(a) All computations of interest payable in respect of ABR Loans at
all times that the Alternate Base Rate is determined by BofA's Reference
Rate shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees
and interest under this Agreement shall be made on the basis of a 360-
day year and actual days elapsed, which results in more interest being
paid than if computed on the basis of a 365-day year. Interest and fees
shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
(b) For purposes of determining utilization of each Bank's
Commitment in order to calculate the commitment fee due under Section
2.21(b), (i) the amount of any outstanding Offshore Currency Loan on any
date shall be determined based upon the Equivalent Amount in Dollars
thereof as of the most recent Computation Date pursuant to subsection
2.05(a) with respect to such Offshore Currency Loan, and (ii) each
Bank's Revolving Commitment shall be considered used on any date to the
extent of its participation on such date in any Letter of Credit and any
L/C Advance made by it, and for such purposes the amount of its
participation in any outstanding Letter of Credit in an Offshore
Currency or any L/C Advance constituting an Offshore Currency Loan on
any date shall be determined based upon the Equivalent Amount in Dollars
thereof as of the most recent Computation Date pursuant to subsection
2.05(a) with respect to such Letter of Credit or L/C Advance.
(c) The Agent will, with reasonable promptness, notify the
Borrowers' Agent and the Banks of each determination of Adjusted LIBO
Rate or of a CD Rate and each determination of the Equivalent Amount of
outstanding Offshore Currency Loans and other outstanding amounts
denominated in an Offshore Currency on any Computation Date as provided
in subsection 2.05(a); PROVIDED that any failure to do so shall not
relieve any Borrower of any liability hereunder or provide the basis for
any claim against the Agent. Any change in the interest rate on a CD
Rate Loan resulting from a change in the Reserve Percentage or the
Assessment Rate (as such terms are defined in the definition of CD Rate
herein) shall become effective as of the opening of business on the day
on which such change in the Reserve Percentage or the Assessment Rate
becomes effective. The Agent will with reasonable promptness notify the
Borrowers' Agent and the Banks of the effective date and the amount of
each such change, PROVIDED that any failure to do so shall not relieve
any Borrower of any liability hereunder or provide the basis for any
claim against the Agent.
(d) Each determination of an interest rate and an Equivalent Amount
by the Agent pursuant hereto shall be conclusive and binding on the
Borrowers and the Banks in the absence of manifest error.
23. PAYMENTS BY THE BORROWERS. (a) All payments (including
prepayments) to be made by any Borrower on account of principal,
interest, drawings under Letters of Credit, fees and other amounts
required hereunder shall be made without set-off or counterclaim and
shall, except as otherwise expressly provided with respect to drawings
under Letters of Credit and elsewhere herein, be made to the Agent for
the ratable account of the Banks at the Agent's Payment Office
identified on SCHEDULE 9.01 or such other office as the Agent shall
specify to the Borrowers' Agent in writing, with respect to principal
of, interest on, and other amounts relating to, any Offshore Currency
Loan, or any other Obligation payable in an Offshore Currency, in the
Offshore Currency in which such Offshore Currency Loan or other
Obligation is denominated or payable, and, with respect to all other
amounts payable hereunder, except as otherwise expressly provided
herein, in Dollars. Such payments shall be made in Same Day Funds, and
(i) in the case of Offshore Currency payments, no later than such time
on the date specified herein as may be determined by the Agent to be
necessary for such payment to be credited on such date in accordance
with normal banking procedures in the place of payment, and (ii) in the
case of any Dollar payments, no later than 11:00 a.m. (San Francisco
time) on the date specified herein. The Agent will promptly distribute
to each Bank its Applicable Percentage (or other applicable share as
expressly provided herein) of such principal, interest, fees or other
amounts, in like funds and currency as received. Any payment which is
received by the Agent later than 11:00 a.m. (San Francisco time) (in the
case of any Dollar payments) or later than the time specified by the
Agent as provided in clause (i) above (in the case of Offshore Currency
payments) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(a) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, as the case may be,
subject to the provisions set forth in the definition of "Interest
Period" herein.
(b) Unless the Agent shall have received notice from the Borrowers'
Agent prior to the date on which any payment is due to the Banks
hereunder that any Borrower will not make such payment in full as and
when required hereunder, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date in Same Day Funds
and the Agent may (but shall not be so required), in reliance upon such
assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent any
such Borrower shall not have made such payment in full to the Agent,
each Bank shall repay to the Agent on demand such amount distributed to
such Bank, together with interest thereon for each day from the date
such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Effective Rate or, in the
case of a payment in an Offshore Currency, the Overnight Rate, as in
effect for each such day.
24. PAYMENTS BY THE BANKS TO THE AGENT. (a) Unless the Agent shall
have received notice from a Bank on the Closing Date or, with respect to
each Borrowing after the Closing Date, at least one Business Day prior
to the date of any proposed Borrowing, that such Bank will not make
available to the Agent as and when required hereunder for the account of
any Borrower the amount of that Bank's Applicable Percentage of the
Borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in Same Day Funds on the Borrowing date and the
Agent may (but shall not be so required), in reliance upon such
assumption, make available to such Borrower on such date a corresponding
amount. If and to the extent any Bank shall not have made its full
amount available to the Agent in Same Day Funds and the Agent in such
circumstances has made available to any Borrower such amount, that Bank
shall on the next Business Day following the date of such Borrowing make
such amount available to the Agent, together with interest at the
Federal Funds Effective Rate or, in the case of any Borrowing consisting
of Offshore Currency Loans, the Overnight Rate, for and determined as of
each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Agent. A notice of the Agent
submitted to any Bank with respect to amounts owing under this
subsection 2.24(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute
such Bank's Loan on the date of borrowing for all purposes of this
Agreement. If such amount is not made available to the Agent on the
next Business Day following the date of such Borrowing, the Agent shall
notify the Borrowers' Agent of such failure to fund and, upon demand by
the Agent to the Borrowers' Agent, the applicable Borrower shall pay
such amount to the Agent for the Agent's account, together with interest
thereon for each day elapsed since the date of such Borrowing, at a rate
per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(a) The failure of any Bank to make any Loan on any date of
Borrowing shall not relieve any other Bank of any obligation hereunder
to make a Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on the date of any Borrowing.
25. SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by
it any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) in excess of its Applicable
Percentage of payments on account of the Loans obtained by all the
Banks, such Bank shall forthwith (a) notify the Agent of such fact, and
(b) purchase from the other Banks such participations in the Loans made
by them as shall be necessary to cause such purchasing Bank to share the
excess payment ratably with each of them; PROVIDED, HOWEVER, that if all
or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and
each other Bank shall repay to the purchasing Bank the purchase price
paid therefor, together with an amount equal to such paying Bank's
Applicable Percentage (according to the proportion of (i) the amount of
such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid
or payable by the purchasing Bank in respect of the total amount so
recovered. Each of the Borrowers agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.25 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 9.09) with
respect to such participation as fully as if such Bank were the direct
creditor of the applicable Borrower in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased pursuant to
this Section 2.25 and will in each case notify the Banks following any
such purchases or repayments.
26. TAXES. (a) Subject to subsection 2.26(g), any and all payments by
any Borrower to each Bank or the Agent under this Agreement and any
other Loan Document shall be made free and clear of, and without
deduction or withholding for, any Taxes. In addition, the Borrowers
shall pay all Other Taxes.
(a) If any Borrower shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then, subject to subsection
2.26(g):
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Bank or the Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and retained
had no such deductions or withholdings been made;
(ii) such Borrower shall make such deductions and withholdings;
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) such Borrower shall also pay to each Bank or the Agent for
the account of such Bank, at the time interest is paid, Further Taxes in
the amount that the respective Bank specifies as necessary to preserve
the after-tax yield such Bank would have received if such Taxes, Other
Taxes or Further Taxes had not been imposed.
(b) Subject to subsection 2.26(g), each Borrower agrees to indemnify
and hold harmless each Bank and the Agent for the full amount of
(i) Taxes, (ii) Other Taxes, and (iii) Further Taxes in the amount that
the respective Bank specifies as necessary to preserve the after-tax
yield such Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Taxes, Other Taxes or Further
Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date such Bank or
the Agent makes written demand therefor.
(c) Within 30 days after the date of any payment by any Borrower of
Taxes, Other Taxes or Further Taxes, such Borrower shall furnish to each
Bank or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to
such Bank or the Agent.
(d) If any Borrower is required to pay any amount to any Bank or the
Agent pursuant to subsection (b) or (c) of this Section, then such Bank
shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by such Borrower which may
thereafter accrue, if such change in the sole judgment of such Bank is
not otherwise disadvantageous to such Bank.
(e) Each Bank which is a foreign person (i.e., a person other than a
United States person for United States Federal income tax purposes)
agrees that:
(i) it shall, no later than the Closing Date (or, in the case of
a Bank which becomes a party hereto pursuant to Section 9.04 after the
Closing Date, the date upon which the Bank becomes a party hereto)
deliver to the Borrowers' Agent through the Agent two accurate and
complete signed originals of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"), or two accurate and complete signed
originals of Internal Revenue Service Form 1001 or any successor thereto
("Form 1001"), as appropriate, in each case indicating that the Bank is
on the date of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free from withholding
of United States Federal income tax;
(ii) if at any time the Bank makes any changes necessitating a
new Form 4224 or Form 1001, it shall with reasonable promptness deliver
to the Borrowers' Agent through the Agent in replacement for, or in
addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224; or two accurate and
complete signed originals of Form 1001, as appropriate, in each case
indicating that the Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees under this Agreement
free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned
in (ii) above) requiring a change in or renewal of the most recent Form
4224 or Form 1001 previously delivered by such Bank and deliver to the
Borrowers' Agent through the Agent two accurate and complete original
signed copies of Form 4224 or Form 1001 in replacement for the forms
previously delivered by the Bank; and
(iv) it shall, promptly upon the Borrowers' Agent's or the
Agent's reasonable request to that effect, deliver to the Borrowers'
Agent or the Agent (as the case may be) such other forms or similar
documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Bank's tax
status for withholding purposes.
(f) The Borrowers will not be required to pay any additional amounts
in respect of United States Federal income tax pursuant to subsection
2.26(b) to any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its
obligations under subsection 2.26(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Borrowers' Agent a
Form 4224 in respect of such Lending Office pursuant to subsection
2.26(f), and such Bank shall not at any time be entitled to exemption
from deduction or withholding of United States Federal income tax in
respect of payments by any Borrower for the account of such Lending
Office for any reason other than a change in United States law or
regulations or in the official interpretation of such law or regulations
by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Borrowers' Agent a
Form 1001 in respect of such Lending Office pursuant to subsection
2.26(f), and such Bank shall not at any time be entitled to exemption
from deduction or withholding of United States Federal income tax in
respect of payments by any Borrower hereunder for the account of such
Lending Office for any reason other than a change in United States law
or regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form 1001.
(g) If, at any time, the Borrowers' Agent requests any Bank to
deliver any forms or other documentation pursuant to subsection
2.26(f)(iv), then the Borrowers jointly and severally agree, on demand
of such Bank through the Agent, to reimburse such Bank for any costs and
expenses (including Attorney Costs) reasonably incurred by such Bank in
the preparation or delivery of such forms or other documentation.
27. ILLEGALITY. If any Bank shall determine that the introduction of
any Requirement of Law, or any change in any Requirement of Law or in
the interpretation or administration thereof, has made it unlawful, or
that any central bank or other Governmental Authority has asserted that
it is unlawful, for any Bank or its Lending Office to make Eurocurrency
Loans, then, on notice thereof by the Bank to the Borrowers' Agent
through the Agent, the obligation of that Bank to make Eurocurrency
Loans shall be suspended until the Bank shall have notified the Agent
and the Borrowers' Agent that the circumstances giving rise to such
determination no longer exist. If a Bank shall determine that it is
unlawful to maintain any Eurocurrency Loan, each Borrower shall prepay
in full all Eurocurrency Loans of that Bank made to such Borrower then
outstanding, together with interest accrued thereon, either on the last
day of the Interest Period thereof if the Bank may lawfully continue to
maintain such Eurocurrency Loans to such day, or immediately, if the
Bank may not lawfully continue to maintain such Eurocurrency Loans,
together with any amounts required to be paid in connection therewith
pursuant to Section 2.29. If any Borrower is required to prepay any
Eurocurrency Loan immediately as provided in this Section 2.27, then
concurrently with such prepayment, such Borrower shall borrow from the
affected Bank, in the amount of such repayment (or the Equivalent Amount
thereof in Dollars on the date of repayment and borrowing, in the case
of a prepayment of an Offshore Currency Loan), an ABR Loan.
28. INCREASED COSTS AND REDUCTION OF RETURN. (a) If any Bank or the
Issuing Bank shall determine that, due to either (i) the introduction of
or any change (other than any change by way of imposition of or increase
in reserve requirements included in the calculation of the CD Rate or
the Offshore Rate) in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost to such Bank or the
Issuing Bank of agreeing to make or making, funding or maintaining any
Eurocurrency Loans or CD Rate Loans or participating in any L/C
Obligations, or any increase in the cost to the Issuing Bank of agreeing
to issue, issuing or maintaining any Letter of Credit or of agreeing to
make or making, funding or maintaining any unpaid drawing under any
Letter of Credit, then the Borrowers shall be liable for, and shall from
time to time, upon demand therefor to the Borrowers' Agent by such Bank
or the Issuing Bank, as the case may be (with a copy of such demand to
the Agent), pay to the Agent for the account of such Bank or the Issuing
Bank, additional amounts as are sufficient to compensate such Bank or
the Issuing Bank for such increased costs, not later than 30 days
following demand therefor.
(a) If any Bank or the Issuing Bank shall have determined that
(i) the introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Bank
(or its Lending Office) or the Issuing Bank, as the case may be, or any
corporation controlling the Bank, or the Issuing Bank, as the case may
be, with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or
the Issuing Bank or any corporation controlling the Bank or the Issuing
Bank and (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy and such Bank's desired return
on capital) determines that the amount of such capital is increased as a
consequence of its Commitment, Loans, Letters of Credit or other
extensions of credit or obligations under this Agreement, then, the
Borrowers shall be liable for, and shall upon demand to the Borrowers'
Agent by such Bank or the Issuing Bank, as the case may be (with a copy
to the Agent), pay to such Bank or the Issuing Bank, from time to time
as specified by such Bank or the Issuing Bank, additional amounts
sufficient to compensate such Bank or the Issuing Bank for such
increase, not later than 30 days following demand therefor.
29. FUNDING LOSSES. Each Borrower agrees to reimburse each Bank for,
and to hold each Bank harmless from any loss, cost or expense which the
Bank may sustain or incur as a consequence of: (a) any failure of such
Borrower to make any payment or prepayment of principal of any
Eurocurrency Loan or a CD Rate Loan (including payments made after any
acceleration thereof); (b) any failure of such Borrower to borrow,
continue or convert a Loan after the Borrowers' Agent has given (or is
deemed to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation in respect of such Borrower; (c) any failure of
such Borrower to make any prepayment after the Borrowers' Agent has
given a notice in accordance with Section 2.07; (d) any prepayment
(including pursuant to Section 2.07) of a Eurocurrency Loan or a CD Rate
Loan on a day which is not the last day of the Interest Period with
respect thereto; or (e) any conversion pursuant to Section 2.04 of any
Eurocurrency Loan to an ABR Loan or a CD Rate Loan, or of any CD Rate
Loan to a Eurocurrency Loan or an ABR Loan, on a day that is not the
last day of the respective Interest Period; including any such loss or
expense arising from the liquidation or reemployment of funds obtained
by it to maintain its Eurocurrency Loans or CD Rate Loans hereunder or
from fees payable to terminate the deposits from which such funds were
obtained or from charges relating to the Offshore Currency Loans. Any
request for compensation by any Bank pursuant to this Section 2.29 shall
be paid not later than 30 days following demand therefor.
30. INABILITY TO DETERMINE RATES. If the Required Banks shall have
determined that for any reason adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the CD Rate for any
requested Interest Period with respect to a proposed Eurocurrency Loan
or CD Rate Loan or that the Offshore Rate or the CD Rate applicable
pursuant to subsection 2.09(a) for any requested Interest Period with
respect to a proposed Eurocurrency Loan or CD Rate Loan does not
adequately and fairly reflect the cost to such Banks of funding such
Loan, the Agent will forthwith give notice of such determination to the
Borrowers' Agent and each Bank. Thereafter, the obligation of the Banks
to make or maintain CD Rate Loans or Eurocurrency Loans, as the case may
be, hereunder shall be suspended until the Agent upon the instructions
of the Required Banks revokes such notice in writing. Upon receipt of
such notice, the Borrowers' Agent may revoke any Notice of Borrowing or
Notice of Conversion/Continuation then submitted by it. If the
Borrowers' Agent does not revoke such notice, the Banks shall make,
convert or continue the Loans, as proposed by the Borrowers' Agent, in
the amount specified in the applicable notice submitted by the
Borrowers' Agent, but such Loans shall be made, converted or continued
as ABR Loans instead of CD Rate Loans or Eurocurrency Loans, as the case
may be. In the case of any Offshore Currency Loans, the Borrowing shall
be in an aggregate amount equal to the originally requested Borrowing
amount in Dollars, and the continuation shall be in an aggregate amount
equal to the Equivalent Amount as of the continuation date for any such
Offshore Currency Loans, and to that end any outstanding Offshore
Currency Loans which are the subject of any such continuation shall be
redenominated into ABR Loans in Dollars with effect from the last day of
the Interest Period with respect to any such Offshore Currency Loans.
31. CERTIFICATES OF BANKS. Any Bank or the Issuing Bank claiming
reimbursement or compensation pursuant to this Article II shall deliver
to the Borrowers' Agent (with a copy to the Agent) a certificate setting
forth in reasonable detail the amount payable to the Bank or the Issuing
Bank hereunder and such certificate shall be conclusive and binding on
the Borrowers' Agent in the absence of manifest error. If any Bank or
the Issuing Bank fails to notify the Borrowers' Agent that it intends to
claim any such reimbursement or compensation within six months after
such Bank or the Issuing Bank has, or with reasonable diligence should
have, knowledge of its claim therefor, the Borrowers shall not be
obligated to compensate such Bank or the Issuing Bank for the amount of
such Bank's or the Issuing Bank's claim accruing prior to the date which
is six months before the date on which such Bank or the Issuing Bank
first notifies the Borrowers' Agent that it intends to such claim; it
being understood that the calculation of the actual amounts may not be
possible within such period and that in the event it is not possible to
calculate such amounts within such period such Bank or the Issuing Bank
may provide such calculation as soon as reasonably practicable
thereafter without affecting or limiting any Borrower's payment
obligations hereunder.
32. SUBSTITUTION OF BANKS. Upon the receipt by the Borrowers' Agent
from any Bank (an "Affected Bank") of a claim for compensation pursuant
to Section 2.28, the Borrowers' Agent may: (i) request the Affected
Bank to use its best efforts to obtain a replacement bank or financial
institution satisfactory to the Borrowers' Agent to acquire and assume
all or part of such Affected Bank's Loans and Commitment (a "Replacement
Bank"); (ii) request one OR more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Revolving Commit-
ment; or (iii) designate a Replacement Bank. Any such designation of a
Replacement Bank under clause (i) or (iii) shall be subject to the prior
written consent of the Agent and the Issuing Bank (which consent shall
not be unreasonably withheld). Any substitution of Banks under this
Section 2.32, shall be subject to payment by the applicable Borrower to
the applicable Bank(s) of amounts, if any, incurred by such Bank(s)
under Section 2.29 hereof arising from the substitutions of Bank(s) on a
date other than the last day of the applicable Interest Period(s).
III. Representations and Warranties
Each Borrower represents and warrants to the Banks that:
1. EXISTENCE AND POWER. Each Borrower (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation; (b) has the power and authority and
all governmental licenses, authorizations, consents and approvals (i) to
own its assets and carry on its business as presently conducted and
(ii) to execute, deliver, and perform its obligations under, the Loan
Documents; (c) is duly qualified as a foreign corporation, licensed and
in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification; and (d) is in compliance with all
Requirements of Law; except, in each case, to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
2. BINDING EFFECT. Each Loan Document to which any Borrower is a party
constitutes the legal, valid and binding obligations of such Borrower,
enforceable against such Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
or similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability.
3. CORPORATE AUTHORIZATION; NO CONFLICT. The execution, delivery and
performance by each Borrower of each Loan Document to which it is party,
have been duly authorized by all necessary corporate action of such
Borrower, and do not and will not: (a) contravene the terms of any of
its Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which such Borrower is a party
or any order, injunction, writ or decree of any Governmental Authority
to which such Borrower or its property is subject; or (c) violate any
Requirement of Law. The Borrowers are not in default under or with
respect to any Contractual Obligation or Requirement of Law in any
respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect.
4. SUBSIDIARIES. The Company has no Subsidiaries as of the Closing
Date other than those specifically disclosed in SCHEDULE 3.04.
5. FINANCIAL CONDITION. (a) The audited consolidated balance sheet of
the Company and its Subsidiaries as at August 31, 1996, and the related
consolidated statements of income, shareholders' equity and cash flows
for the fiscal year ended on that date, and the unaudited consolidated
balance sheet of the Company and its Subsidiaries as at February 28,
1997, and other Indebtedness and liabilities incurred since such date
permitted hereunder, and the related consolidated statements of income
and cash flows, for the period ended on that date: (i) were prepared in
accordance with GAAP consistently applied throughout the periods covered
thereby, except as otherwise expressly noted therein, except that the
February 28, 1997, financial statements are subject to year-end
adjustments and except for the absence of notes; (ii) are complete and
accurate in all material respects and fairly present in all material
respects the consolidated financial condition of the Company and its
Subsidiaries as of the dates thereof and results of operations for the
periods covered thereby; and (iii) except as specifically disclosed in
Schedule 3.05 and except for Indebtedness and other liabilities incurred
in the ordinary course of business since February 28, 1997, and other
Indebtedness and liabilities incurred since such date permitted
hereunder, neither the Company nor any of its Subsidiaries has incurred,
created, assumed or otherwise become liable with respect to any material
Indebtedness or other liabilities, direct or contingent, including
liabilities for material taxes, commitments and Guarantees not reflected
in the financial statements referred to above.
(a) Since February 28, 1997, there has been no Material Adverse
Effect.
6. LITIGATION. Except as specifically disclosed in SCHEDULE 3.06 or
otherwise disclosed to the Banks in writing, there are no actions,
suits, proceedings, claims or disputes pending, or to the best knowledge
of the Company, after due inquiry, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, against
the Company, or any of its Subsidiaries or any of their respective
properties, which could reasonably be expected to have a Material
Adverse Effect.
7. GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority, or the consent of any other Person, is necessary
or required in connection with the execution, delivery or performance
by, or enforcement against, the Company or any Additional Borrower of
any Loan Document to which it is a party.
8. TITLE TO PROPERTIES. The Company and each of its Subsidiaries has
good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect. The property of the Company and each of its
Subsidiaries is subject to no Liens, other than Permitted Liens.
9. ERISA COMPLIANCE. All Employee Benefit Plans of the Company are
listed in SCHEDULE 3.09. Except as specifically disclosed in such
Schedule, no Termination Event which could result in unfunded liability
in excess of $500,000 has occurred or is reasonably expected to occur
with respect to any Pension Plan. Each Employee Benefit Plan is in
compliance in all material respects with the applicable provisions of
ERISA, the Code and other applicable Federal or state law, and benefits
have been paid in accordance with the provisions of each such Employee
Benefit Plan, except for such failures as would not have a Material
Adverse Effect. No prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) or other event that would result in
material liability to the Company or any of its Subsidiaries has
occurred with respect to any Employee Benefit Plan.
10. USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans and
other extensions of credit hereunder are intended to be and shall be
used solely for the purposes set forth in and permitted by Section 5.08,
subject to the limitations set forth in Section 6.05.
11. TAXES. The Company and each of its Subsidiaries has filed all
Federal and other material tax returns and reports required to be filed,
and has paid all Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those
which are being or will be contested in good faith by appropriate
proceedings and for which adequate reserves have been provided for to
the extent required by GAAP and no notice of lien has been filed or
recorded. There is no proposed tax assessment against the Company or
any of its Subsidiaries which would, if the assessment were made, have a
Material Adverse Effect.
12. ENVIRONMENTAL MATTERS. The on-going operations of the Company and
each of its Subsidiaries comply in all respects with all Environmental
Laws, except such non-compliance which could not be reasonably expected
to have a Material Adverse Effect. There are no Hazardous Materials or
other conditions or circumstances existing with respect to any property
of the Company or any of its Subsidiaries, or arising from operations
prior to the Closing Date (in the case of any previous owner, tenant,
occupant, user or operator thereof, to the best of the Company's
knowledge), that could reasonably be expected to result in a Material
Adverse Effect.
13. COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use
all of the material patents, trademarks, service marks, trade names,
copyrights, franchises, authorizations and other intellectual property
rights that are reasonably necessary for the operation of their
respective businesses, without known conflict with the rights of any
other Person, which conflicts, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse Effect.
Except as specifically disclosed in SCHEDULE 3.13, no claim or
litigation regarding any of the foregoing is pending or, to the
knowledge of the Company, threatened, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
14. FULL DISCLOSURE. The documents, certificates and written
statements (including the Loan Documents) furnished by the Company or
any Subsidiary to the Agent or any Bank pursuant to any provision of any
Loan Document, or for use in connection with the transactions
contemplated by this Agreement, taken together with all such documents,
certificates and written statements, do not contain any untrue
statements of a material fact or omit any material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading.
It is recognized by the Agent and the Banks that projections and
forecasts provided by or on behalf of the Company or any Subsidiary,
although reflecting the Company's or such Subsidiary's good faith
projections or forecasts based upon methods and data the Borrower or
such Subsidiary believes to be reasonable and accurate, are not to be
viewed as facts and that actual results during the period or periods
covered by any such projections and forecasts may differ from the
projected or forecasted results.
15. REGULATED ENTITIES. Neither the Company, any Person controlling
the Company, nor any Subsidiary of the Company, is (a) an "Investment
Company" within the meaning of the Investment Company Act of 1940; or
(b) subject to regulation under the Public Utility Holding Company Act
of 1935 or any other Federal or state statute or regulation limiting its
ability to incur Indebtedness.
16. INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies, in
such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Company or such
Subsidiaries operate (after giving effect to customary self-insurance).
IV. CONDITIONS
1. CLOSING DATE. The obligations of the Banks to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Agent shall have received a favorable written opinion
(addressed to the Agent, the Issuing Bank and the Banks and dated the
Closing Date) of Wilson, Sonsini, Goodrich & Rosati, in substantially
the form set forth in EXHIBIT F satisfactory to the Agent and each Bank,
and covering such other matters relating to the Company, this Agreement
or the Transactions as the Banks shall reasonably request. The Company
hereby requests such counsel to deliver such opinion.
(c) The Agent shall have received such documents and certificates as
the Agent or any Bank may reasonably request relating to the
organization, existence and good standing of the Company, the
authorization of the Transactions and any other legal matters relating
to the Company, this Agreement or the Transactions, all in form and
substance satisfactory to the Agent and each Bank.
(d) The Agent shall have received a certificate. dated the Closing
Date and signed by the President, a Vice President or a Financial
Officer of the Company, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Banks shall be satisfied that (i) no Material Adverse Effect
has occurred since February 28, 1997, and (ii) the Company and the
Subsidiaries are not party to or subject to any litigation which would
be likely to have a Material Adverse Effect.
(f) The Agent shall have received all fees and other amounts due are
payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder.
(g) The Agent shall have received evidence satisfactory to it that
the Existing Facility and all commitments to make loans or otherwise
extend credit thereunder has been terminated as of the Closing Date.
2. EACH CREDIT EVENT. The obligation of each Bank to make a Loan on the
occasion of any Borrowing (other than a Borrowing in which Revolving
Loans or L/C Borrowings are refinanced with Revolving Loans without any
increase in the Effective Amount of Revolving Loans and L/C
Obligations), and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit, is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of the Company and each other
Borrower set forth in this Agreement shall be true and correct on and as
of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and
warranty by the Company and each other Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
V. AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full and all Letters of Credit shall have
expired or terminated and all L/C Obligations shall have been
reimbursed, and unless the Required Banks waive compliance in writing in
accordance with Section 9.02, the Company covenants and agrees with the
Banks that:
1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company will furnish
to the Agent and each Bank:
(a) within 90 day's after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related statements
of operations, changes in shareholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by KPMG Peat
Marwick or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Company and the consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, its consolidated balance
sheet and related statements of operations and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the
fiscal year. setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the
balance sheet. as of the end of) the previous fiscal year, all certified
by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the
Company and the consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a completed Compliance Certificate of a
Financial Officer of the Company;
(d) Concurrently with any delivery of consolidated financial
statements under clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether they obtained
knowledge during the course of their audit of such consolidated
financial statements of any Default insofar as it relates to accounting
matters (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed
by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange. or distributed by the Company to its shareholders generally,
as the case may be;
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
the Company or any Subsidiary, or compliance with the terms of this
Agreement, as the Agent or any Bank may reasonably request; and
(g) promptly upon becoming aware thereof, notice of the
effectiveness of any rating of any Index Debt by S&P or Moody's and
notice of the effectiveness of any change in any rating of any Index
Debt by S&P or Moody's.
2. NOTICES OF MATERIAL EVENTS. The Company will furnish to the Agent
and each Bank prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Subsidiary thereof that could reasonably be expected
to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred. could reasonably be expected
to result in liability of the Company and its Subsidiaries in an
aggregate amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the
Company setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect
thereto.
3. EXISTENCE; CONDUCT OF BUSINESS. The Company will, and will cause
each of the Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence
and the licenses, permits, privileges and franchises material to the
conduct of its business; PROVIDED that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under
Section 6.04.
4. PAYMENT OF OBLIGATIONS. The Company will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that,
if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and
(c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
5. MAINTENANCE OF PROPERTIES; INSURANCE. The Company will, and will
cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except to the extent the
failure to do so could not reasonably be expected to result in a
Material Adverse Effect, and (b) maintain, with financially sound and
reputable insurance companies. insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the
sane or similar businesses operating in the same or similar locations
(after giving effect to customary self insurance).
6. BOOKS AND RECORDS; INSPECTION RIGHTS. The Company will, and will
cause each of its Subsidiaries to, keep proper books of record and
account in which entries are made of all dealings and transactions in
relation to its business and activities (including with respect to ERISA
if applicable) that are true and complete in all material respects. The
Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Agent or any Bank, upon reasonable
prior notice, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested.
7. COMPLIANCE WITH LAWS. The Company will, and will cause each of its
Subsidiaries to comply in all material respects with all laws, rules,
regulations and orders (including ERISA if applicable) of any
Governmental Authority applicable to it or its property, except such as
may be contested by the Company or the applicable Subsidiary in good
faith or as to which a bona fide dispute may exist at except for
noncompliance by any Subsidiary that individually or taken together with
all compliance by Subsidiaries could not reasonably be expected to
result in a Material Adverse Effect.
8. USE OF PROCEEDS AND LETTERS OF CREDIT. The Letters of Credit and
the proceeds of the Loans will be used only for general corporate
purposes of the Company and its Subsidiaries, including acquisitions,
subject to the limitations set forth in Section 6.05.
9. ACCESSION BY SUBSIDIARY. In addition to the requirements set forth
in subsection 2.01(b), prior to any Subsidiary becoming an Additional
Borrower hereunder, such Subsidiary shall furnish to the Agent and each
Bank the following, each in form and substance satisfactory to the Agent
and each Bank:
(a) a duly executed notice and agreement in substantially the form
of EXHIBIT G (an "ADDITIONAL BORROWER REQUEST AND ASSUMPTION
AGREEMENT"); and
(b) a guaranty in substantially the form of EXHIBIT H duly executed
by the Company.
VI. NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and
all L/C Obligations shall have been reimbursed, and unless the Required
Banks waive compliance in writing in accordance with Section 9.02, the
Company covenants and agrees with the Banks that:
1. SUBSIDIARY INDEBTEDNESS. No Subsidiary will create, incur, assume or
permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in
SCHEDULE 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(b) Indebtedness of any Subsidiary to the Company or any other
Subsidiary;
(c) Guarantees by any Subsidiary of Indebtedness of the Company or
of any other Subsidiary to the extent such Indebtedness is permitted
under this Agreement;
(d) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien
on any such assets prior to the acquisition thereof and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 120 days after such
acquisition or the completion of such construction or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this
clause (d) when aggregated (without duplication) with all Indebtedness
incurred under clause (g) below, with the aggregate amount of all claims
and obligations secured by Liens permitted pursuant to clauses (d) and
(f) of Section 6.02 and with the aggregate book value or sale price of
the assets sold in sale and leaseback transactions permitted pursuant to
Section 6.03 does not exceed 30% of Consolidated Tangible Assets as of
the last day of the most recent fiscal period in respect of which
financial statements shall have been delivered pursuant to Section 5.01:
(e) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; PROVIDED that such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in respect of
trade letters of credit;
(g) other unsecured Indebtedness of the Subsidiaries in an aggregate
principal amount outstanding at any time that, when aggregated (without
duplication) with all Indebtedness incurred under clause (d) above, with
the aggregate amount of all claims and obligations secured by Liens
permitted pursuant to clauses (d) and (f) of Section 6.02 and with the
aggregate book value or sale price of the assets sold in sale and
leaseback transactions permitted pursuant to Section 6.03 does not
exceed 30% of Consolidated Tangible Assets as of the last day of the
most recent fiscal period in respect of which financial statements shall
have been delivered pursuant to Section 5.01; and
(h) (i) Indebtedness of any Special Purpose Subsidiary; or (ii)
Indebtedness of any other Subsidiary incurred by such Subsidiary in
connection with the incurrence of Indebtedness by any Special Purpose
Subsidiary.
2. LIENS. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(a) Permitted Encumbrances and Liens securing Capital Lease
Obligations permitted under subsection 6.01(d), and any renewal or
extension of any such Permitted Encumbrance or Lien so long as the
principal amount of the obligations secured thereby is not increased;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in SCHEDULE 6.02;
PROVIDED that (i) such Lien shall not apply to any other property or
asset of the Company or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset (including attachments, accessions, replacements or
proceeds thereof) of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; PROVIDED that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may
be, (ii) such Lien shall not apply to any other property or assets of
the Company or any Subsidiary and (iii) such Lien shall secure only
those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary (including replacements or
proceeds of such assets and including any Capital Lease Obligations);
PROVIDED that (i) in the case of any Subsidiary, such security interests
secure Indebtedness permitted by clause (d) of Section 6.01, (ii) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 120 days after such acquisition or the completion of
such construction or improvement, (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of acquiring, constructing or improving
such fixed or capital assets, (iv) such security interests shall not
apply to any other property or assets of the Company or any Subsidiary
and (v) the aggregate amount of such Indebtedness when aggregated
(without duplication) with all Indebtedness incurred under clauses (d)
and (g) of Section 6.01, with the aggregate amount of all claims secured
by Liens permitted pursuant to clause (f) below and with the aggregate
book value or sale price of the assets sold in sale and leaseback
transactions permitted pursuant to Section 6.03 does not exceed 30% of
Consolidated Tangible Assets as of the last day of the most recent
fiscal period in respect of which financial statements shall have been
delivered pursuant to Section 5.01;
(e) Liens securing claims of any Special Purpose Subsidiary against
any other Subsidiary and sales or assignments of accounts receivable (or
interests therein) by any Subsidiary to a Special Purpose Subsidiary and
by any Special Purpose Subsidiary; and
(f) other Liens securing claims in an aggregate amount at any time
outstanding that when aggregated (without duplication) with (i) all
obligations of any Special Purpose Subsidiary secured by Liens, (ii) all
Indebtedness incurred under clauses (d) and (g) of Section 6.01, (iii)
the aggregate amount of all obligations secured by Liens permitted
pursuant to clause (d) above and (iv) the aggregate book value or sale
price of the assets sold in sale and leaseback transactions permitted
pursuant to Section 6.03, does not exceed 30% of Consolidated Tangible
Assets as of the last day of the most recent fiscal period in respect of
which financial statements shall have been delivered pursuant to
Section 5.01, PROVIDED that the Dollar amount of claims and other
obligations (other than claims or other obligations of any Subsidiary in
favor of any Special Purpose Subsidiary which is directly or indirectly
wholly owned by the Company and inchoate indemnity obligations) secured
by accounts receivable does not exceed the greater of $130,000,000 or
35% of the Company's aggregate accounts receivable (including such
accounts receivable sold to any Special Purpose Subsidiary) calculated
on a consolidated basis.
3. SALE AND LEASEBACK TRANSACTIONS. The Company will not, and will not
permit any Subsidiary to, enter into any arrangement, directly or
indirectly, with any Person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property
which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred; PROVIDED, HOWEVER, that
notwithstanding the above, the Company or any Subsidiary may engage in
any sale and leaseback transaction if, immediately after the
consummation of such transaction, the aggregate book value or sale price
of the assets sold in sale and leaseback transactions referred to in
this Section 6.03, when aggregated (without duplication) with all
Indebtedness incurred under clauses (d) and (g) of Section 6.01 and with
the aggregate amount of all claims and obligations secured by Liens
permitted pursuant to clauses (d) and (f) of Section 6.02, does not
exceed 30% of Consolidated Tangible Assets as of the last day of the
most recent fiscal period in respect of which financial statements shall
have been delivered pursuant to Section 5.01.
4. FUNDAMENTAL CHANGES. (a) The Company will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any substantial portion of its assets, or
all or substantially all of the capital stock of any of the Subsidiaries
(in each case, whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing
(i) any Person may merge into or consolidate with the Company in a
transaction in which the Company is the surviving corporation, (ii) any
Person may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Company or to
another Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is
in the best interests of the Company and is not materially
disadvantageous to the Banks and any distribution or other transfer of
assets in connection with such liquidation or dissolution is made to the
Company or another Subsidiary in an amount consistent with such person's
ownership percentage of the Subsidiary being dissolved or liquidated,
(v) the Borrower and the Subsidiaries may sell, lease or otherwise
dispose of property in any individual transaction not related to any
other such transaction if the aggregate fair market value of the assets
sold, leased or otherwise disposed of in such transaction is less than
$2,000,000, (vi) the Company and/or any of the Subsidiaries may sell or
otherwise transfer their accounts receivable and other assets to any
Special Purpose Subsidiary and/or any Special Purpose Subsidiary may
sell or otherwise transfer such accounts receivable or other property
(or interests therein) if otherwise permitted under Section 6.02(f), and
(vii) the Company and the Subsidiaries may sell, lease or otherwise
dispose of property in any other transaction in the ordinary course of
business, PROVIDED that, with respect to transactions outside of the
ordinary course of business, the aggregate fair market value of all
assets sold, leased or otherwise disposed of in transactions under this
clause (vii) shall not when taken together at the time of each such
sale, lease or other disposition exceed 25% of Consolidated Tangible
Assets as of the last day of the most recent fiscal period in respect of
which financial statements shall have been delivered pursuant to
Section 5.01 at such time.
(a) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any line of business
material to the Company and the Subsidiaries, taken as a whole, other
than businesses currently conducted by the Company and the Subsidiaries
and businesses reasonably related thereto.
5. MARGIN STOCK; UNFRIENDLY ACQUISITIONS. No Letter of Credit and no
part of the proceeds of any Loan will be used, (a) whether directly or
indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the
purpose of purchasing or carrying Margin Stock or to refund Indebtedness
originally incurred for such purpose or (ii) for any purpose which
entails a violation of, or which is inconsistent with, the provisions of
the Regulations of the Board. including. without limitation, Regulations
G, T, U or X thereof, or (b) directly or through any Subsidiary, to
finance any Unfriendly Acquisition.
6. FISCAL YEAR. The Company will not change its fiscal year end from
August 31.
7. RESTRICTIVE AGREEMENTS. The Company will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Company
or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its
capital stock or to make or repay loans or advances to the Company or
any other Subsidiary or to Guarantee Indebtedness of the Company or any
other Subsidiary if any such prohibition, restriction or condition is
more burdensome than any similar prohibition, restriction or condition
contained in this Agreement or any other Loan Document; PROVIDED that
(i) the foregoing shall not apply to restrictions and conditions imposed
by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on
SCHEDULE 6.07 (but shall apply to any amendment or modification
expanding the scope of any such restriction or condition unless
otherwise permitted under this Section 6.07), (iii) the foregoing shall
not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder, (iv) clause (a)
of the foregoing shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness, (v) clause (a) of the foregoing
shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof, (vi) the foregoing shall not apply
to such restrictions and conditions applicable to any Subsidiary
acquired after the date hereof if such restrictions and conditions
existed at the time such Subsidiary was acquired and were not created in
anticipation of such acquisition, (vii) the foregoing shall not apply to
one or more Subsidiaries having any such restriction or condition so
long as any such Subsidiary individually shall not account for more than
5% of the gross revenues for the most recently ended fiscal year of the
Company and the Subsidiaries, taken as a whole, and each such Subsidiary
together with all other such Subsidiaries in the aggregate shall not
account for more than 10% of the gross revenues for the most recently
ended fiscal year of the Company and the Subsidiaries, taken as a whole,
(viii) the foregoing shall not apply to any working capital facility
entered into by a Subsidiary organized under the laws of any foreign
country, and (ix) the foregoing shall not apply to any Special Purpose
Subsidiary or to any agreement or other arrangement entered into by the
Company or any of the Subsidiaries incidental to a transaction involving
a Special Purpose Subsidiary which transaction is otherwise permitted
under the terms of this Agreement.
8. DISTRIBUTIONS. The Company shall not declare or make, and shall not
suffer or permit any of its Subsidiaries to declare or make, any
dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class
of its capital stock, or purchase, redeem or otherwise acquire for value
any shares of its capital stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding, if any Default then
exists or would result therefrom.
9. ADJUSTED LEVERAGE RATIO. Notwithstanding any other provision of
this Agreement, the Company shall not permit its Adjusted Leverage
Ratio, as calculated as of the last day of each fiscal quarter, to be
greater than (a) 1.75 to 1.00 from the Closing Date through and
including February 28, 1998, (b) 1.50 to 1.00 from May 31, 1998 through
and including February 28, 1999, (c) 1.25 to 1.00 from May 31, 1999
through and including February 28, 2000, and (d) 1.00 to 1.00
thereafter.
10. CONSOLIDATED TANGIBLE NET WORTH. Notwithstanding any other
provision of this Agreement, the Company will not permit its
Consolidated Tangible Net Worth as of the last day of each fiscal
quarter following the Closing Date to be less than the sum of (without
duplication) 80% of Consolidated Tangible Net Worth measured as of the
end of the fiscal quarter ended February 28, 1997, PLUS 50% of
consolidated net income (without subtracting losses or acquisition
related charges) for each fiscal quarter ended after the fiscal quarter
ended February 28, 1997, MINUS 100% of all acquisition-related charges
if such charges are recorded in the same fiscal quarter in which the
applicable acquisition is consummated.
VII. EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any L/C Obligation when and as
the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a)
of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue unremedied
for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder,
or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall prove to
have been materially incorrect or misleading when made or deemed made;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Company's existence) or 5.08 or in Article VI;
(e) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Agent to the Borrowers' Agent (which notice will be given at
the request of any Bank)
(f) the Company or any Subsidiary shall be in default with respect
to any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness and such failure shall
continue beyond the applicable grace period specified in the agreement
or instrument relating to such Material Indebtedness;
(g) the Company or any Subsidiary shall default in any obligation
under any Material Indebtedness and such failure shall result in such
Material Indebtedness being declared to be due and payable prior to the
stated maturity thereof;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days;
(i) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
the Company or any Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Company or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) (i) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against the
Company, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Company or any Subsidiary to enforce any such judgment or (ii)
any non-monetary judgment, order or decree is entered against the
Company or any Subsidiary which does or would reasonably be expected to
have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Banks, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect; or
(m) a Change in Control shall occur;
(n) the stated (or implied) ratings by S&P and Moody's,
respectively, applicable to the Index Debt shall at any time be lower
than BB/Ba2.
then, and in every such event (other than an event with respect to the
Company or any Subsidiary described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such
event, the Agent may with the consent of the Required Banks, or shall at
the request of the Required Banks, by notice to the Borrowers' Agent,
take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, and (ii) declare the Loans then outstanding
to be due and payable in whole (or in part, in which case any principal
not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrowers; and in case of any event with respect to the Company or any
Subsidiary described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
VIII. THE AGENT
1. APPOINTMENT AND AUTHORIZATION. Each of the Banks and the Issuing
Bank hereby irrevocably appoints, designates and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be
deemed to have any fiduciary relationship with any Bank or the Issuing
Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against the Agent. Without
limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent
contracting parties.
2. DELEGATION OF DUTIES. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any agent
or attorney-in-fact that it selects with reasonable care.
3. LIABILITY OF AGENT AND ISSUING BANK. None of the Agent/IB-Related
Persons shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer
thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with,
this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company
or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent/IB-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of,
this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Company or any of the Company's Subsidiaries or
Affiliates.
4. RELIANCE BY AGENT. (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to any Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate and,
if it so requests, it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Banks
and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(a) For purposes of determining compliance with the conditions
specified in Sections 4.01 and 4.02, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter either sent or made
available by the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to the Bank, unless an officer of the
Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from the Bank prior to the Closing
Date specifying its objection thereto and either such objection shall
not have been withdrawn by notice to the Agent to that effect on or
prior to the Closing Date or, if any Borrowing or other Credit Extension
on the Closing Date has been requested, the Bank shall not have made
available to the Agent on or prior to the Closing Date the Bank's
ratable portion of any Borrowing or made the applicable Credit
Extension, as the case may be.
5. NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless
the Agent shall have received written notice from a Bank or the
Borrowers' Agent referring to this Agreement, describing 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 notice thereof to the Banks. The Agent shall take such
action with respect to such Default or Event of Default as shall be
requested by the Required Banks in accordance with Article VII;
PROVIDED, HOWEVER, that unless and until the Agent shall have received
any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
6. CREDIT DECISION. Each Bank expressly acknowledges that none of the
Agent/IB-Related Persons has made any representation or warranty to it
and that no act by the Agent or the Issuing Bank hereinafter taken,
including any review of the affairs of the Company and its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Agent or the Issuing Bank to any Bank. Each Bank represents to the
Agent and the Issuing Bank that such Bank has, independently and without
reliance upon the Agent or the Issuing Bank and based on such documents
and information as it has deemed appropriate, made its own appraisal of
and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to
the transactions contemplated thereby, and made its own decision to
enter into this Agreement and extend credit to the Borrowers hereunder.
Each Bank also represents that it will, independently and without
reliance upon the Agent or the Issuing Bank and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to
make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to
the Banks by the Agent or the Issuing Bank (if any), the Agent and the
Issuing Bank shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of
any of the Agent/IB-Related Persons.
7. INDEMNIFICATION. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify upon demand the
Agent/IB-Related Persons (to the extent not reimbursed by or on behalf
of the Borrowers and without limiting the obligation of the Borrowers to
do so), ratably from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever (including as a result of foreign currency
fluctuations) which may at any time (including at any time following the
termination of the Letters of Credit, the repayment of the Loans and the
termination or resignation of the related Agent) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising
out of this Agreement or any other Loan Document, the transactions
contemplated hereby or thereby, or the Loans or the use of the proceeds
thereof or the Letters of Credit, or any action taken or omitted by any
such Person under or in connection with any of the foregoing; PROVIDED,
HOWEVER, that no Bank shall be liable for the payment to the
Agent/IB-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses or disbursements resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of
the foregoing, each Bank shall reimburse the Agent and the Issuing Bank
upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent or the Issuing Bank 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, any other Loan Document, or
any document contemplated by or referred to herein to the extent that
the Agent or the Issuing Bank is not reimbursed for such expenses by or
on behalf of the Borrowers. Without limiting the generality of the
foregoing, if the Internal Revenue Service or any other Governmental
Authority of the United States or other jurisdiction asserts a claim
that the Agent did not properly withhold tax from amounts paid to or for
the account of any Bank (because the appropriate form was not delivered,
was not properly executed, or because such Bank failed to notify the
Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such
Bank shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the
amounts payable to the Agent under this Section, together with all costs
and expenses and attorneys' fees (including Attorney Costs). The
obligations of the Banks in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of the
Agent.
8. AGENT IN INDIVIDUAL CAPACITY. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory or other business with any Borrower
and its Subsidiaries and Affiliates as though BofA were not the Agent or
the Issuing Bank hereunder or without notice to or consent of the Banks.
With respect to its Loans and participation in Letters of Credit, BofA
shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not the Agent or the
Issuing Bank, and the terms "Bank" and "Banks" shall include BofA in its
individual capacity. The Banks acknowledge that, pursuant to any
activities that BofA may pursue in its individual capacity as
contemplated under this Section 8.08, BofA or its Affiliates may receive
information regarding the Company, its Subsidiaries or its Affiliates
(including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiaries and Affiliates)
and acknowledge that BofA shall be under no obligation to provide such
information to the Banks.
9. SUCCESSOR AGENT. The Agent may, and at the request of the Required
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent shall resign as Agent under this Agreement, the Required Banks
shall, with the consent of the Borrowers' Agent (not to be unreasonably
withheld), appoint from among the Banks a successor agent for the Banks.
If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with
the Banks and the Borrowers' Agent, a successor agent from among the
Banks. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the appointment,
powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's rights, powers and duties
as Agent shall be terminated. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article VIII and Section 9.03
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. If no successor
agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks
shall perform all of the duties of the Agent hereunder until such time,
if any, as the Required Banks appoint a successor agent as provided for
above.
IX. MISCELLANEOUS
1. NOTICES. Subject to the last three sentences of this Section 9.01,
all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by facsimile, PROVIDED
that any matter transmitted by the Borrowers' Agent or any Borrower by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient and (ii) shall be followed promptly by delivery of a hard copy
original thereof, as follows:
(a) if to the Company (including in its capacity as Borrowers'
Agent), to it at 847 Gibraltar Drive, Building 5, Milpitas, CA 95035;
attention: Treasurer (Telephone: 408/956-6577; Facsimile: 408/956-6062);
(b) if to the Agent, to it at Agency Administrative Services #5596,
1455 Market Street, 13th Floor, San Francisco, CA 94103; attention:
Blanca Vinje (Telephone: (415) 436-2783; Facsimile: (415) 436-2700); and
(c) if to the Issuing Bank or any other Bank, to it at its address
(or facsimile number) set forth in its SCHEDULE 9.01.
Any party hereto may change its address or facsimile number, address of
offshore lending office or payment instructions for notices and other
communications hereunder by notice to the parties listed above. All
notices and other communications given to any party here to in
accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt. Any agreement of the Agent and the
Banks herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower's Agent
and the Borrowers. The Agent and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the
Borrowers' Agent or the Borrowers to give such notice and the Agent and
the Banks shall not have any liability to any Borrower or other Person
on account of any action taken or not taken by the Agent or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of
each Borrower to repay their Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by the Agent and the
Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which
is at variance with the terms understood by the Agent and the Banks to
be contained in the telephonic or facsimile notice.
2. WAIVERS; AMENDMENTS. (a) No failure or delay by the Agent, the
Issuing Bank or any Bank in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Agent, the Issuing Bank and the
Banks hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any Borrower (or the
Borrowers' Agent) therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the
Agent, any Bank or the Issuing Bank may have had notice or knowledge of
such Default at the time.
(a) Neither this Agreement nor any provision hereof may be waived,
amended or modified. except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Banks or by the
Borrowers and the Agent with the consent of the Required Banks; PROVIDED
that no such agreement shall (i) increase the Commitment of any Bank
without the written consent of such Bank, (ii) reduce the principal
amount of any Loan or L/C Obligations or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written
consent of each Bank affected thereby, (iii) postpone the scheduled date
of payment of the principal amount of any Loan or L/C obligations, or
any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of
each Bank affected thereby, (iv) change Section 2.14 or Section 2.25 in
a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Bank, or (v) change any of
the provisions of this Section or the definition of "Required Banks" or
any other provision hereof specifying the number or percentage of Banks
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Bank; PROVIDED FURTHER that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Agent or
the Issuing Bank hereunder without the prior written consent of the
Agent or the Issuing Bank, as the case may be.
3. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrowers shall pay (i)
all reasonable out-of-pocket expenses incurred by the Agent and its
Affiliates, including the reasonable fees, charges and disbursements of
counsel (including the allocated costs and expenses of in-house
counsel), in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Agent,
the Issuing Bank or any Bank, including the fees, charges and
disbursements of any counsel (including, in the case of the Agent,
allocated costs and expenses of in-house counsel) for the Agent, the
Issuing Bank or any Bank, in connection with the enforcement or
protection of its rights in connection with this Agreement, including
its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(a) The Borrowers shall indemnify the Agent, the Issuing Bank and
each Bank, and each Related Party of any of the foregoing Persons (each
such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee (including, in the case
of the Agent, allocated costs and expenses of in-house counsel),
incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or
the use of the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Company or any of its Subsidiaries, or
any Environmental Liability related in any way to the Company Borrower
or any of its Subsidiaries, (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto, or (v) foreign
currency fluctuations; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims,
damages. liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(b) To the extent any Borrowers fail to pay any amount required to
be paid by it to the Agent or the Issuing Bank under paragraph (a) or
(b) of this Section, each Bank severally agrees to pay to the Agent or
the Issuing Bank, as the case may be, such Bank's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; PROVIDED that the
unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or assessed against
the Agent or the Issuing Bank in its capacity as such.
(c) To the extent permitted by applicable law, Borrowers shall not
assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable promptly
after written demand therefor.
4. SUCCESSORS AND ASSIGNS. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank), except that each Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Bank (and any attempted assignment or
transfer by any Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the
Issuing Bank) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agent, the Issuing Bank and the Banks)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(a) Any Bank may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to
it); PROVIDED that (i) except in the case of an assignment to a Bank or
an Affiliate of a Bank, the Borrowers' Agent and the Agent (and, in the
case of an assignment of all or a portion of a Commitment or any Bank's
obligations in respect of its L/C Obligations, the Issuing Bank) must
give their prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) except in the case of an assignment
to a Bank or an Affiliate of a Bank or an assignment of the entire
remaining amount of the assigning Bank's Commitment, the amount of the
Commitment of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Agent) shall not be less than
$10,000,000 unless the Borrowers' Agent and the Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations
under this Agreement, and (iv) the parties to each assignment shall
execute and deliver to the Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500; and PROVIDED FURTHER
that any consent of the Borrowers' Agent otherwise required under this
paragraph shall not be required if an Event of Default under clause (h)
or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment
and Acceptance the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Bank under this Agreement, and the
assigning Bank thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto but shall continue
to be entitled to the benefits of Section 9.03), any assignment or
transfer by a Bank of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Bank of a participation in such rights
and obligations in accordance with paragraph (e) of this Section.
(b) The Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in San Francisco a copy of each
Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitment
of, and principal amount of the Loans and L/C Obligations owing to, each
Bank pursuant to the terms hereof from time to time (the "REGISTER").
The entries in the Register shall be conclusive, and the Borrowers, the
Agent, the Issuing Bank and the Banks may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Bank
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Borrowers, the Issuing Bank and any Bank, at any reasonable time and
from time to time upon reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee, the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Agent shall accept such Assignment and Acceptance and
record the information contained therein in the Register.
(d) Any Bank may, without the consent of the Borrowers, the Agent or
the Issuing Bank, sell participations to one or more banks or other
entities (a "PARTICIPANT") in all or a portion of such Bank's rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Agent, the
Issuing Bank 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. Any agreement or instrument pursuant
to which a Bank sells such a participation shall provide that such Bank
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
PROVIDED that such agreement or instrument may provide that such Bank
shall not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first provision to
Section 9.02(b) that affects such Participant. Subject to paragraph (o)
of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.26 through 2.32 to the same
extent as if it were a Bank and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant, if notice of such Participant is given to the
Borrower's Agent, also shall be entitled to the benefits of Section 9.09
as though it were a Bank.
(e) A Participant shall not be entitled to receive any greater
payment under Sections 2.26 through 2.32 than the applicable Bank would
have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such
Participant is made with the prior written consent of each Borrower.
(f) Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure
obligations of such Bank, including any pledge or assignment to secured
obligations to a Federal Reserve Bank, and this Section shall not apply
to any such pledge or assignment of a security interest; PROVIDED that
no such pledge or assignment of a security interest shall release a Bank
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Bank as a party hereto.
5. SURVIVAL. All covenants, agreements, representations and warranties
made by the Company and the other Borrowers herein and in the
certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon
by the other parties hereto and shall survive the execution and delivery
of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such
other party or on its behalf, and notwithstanding that the Agent, the
Issuing Bank or any Bank may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.26 through
2.32 and 9.03 and Article VIII shall survive and remain in full force
and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
6. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees
payable to the Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Agent and when
the Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of
this Agreement.
7. SEVERABILITY. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction.
8. AUTOMATIC DEBITS OF FEES. With respect to any commitment fee,
facility fee, letter of credit fee or other fee, or any other cost or
expense (including Attorney Costs) due and payable to the Agent, the
Issuing Bank or BofA under the Loan Documents, each Borrower hereby
irrevocably authorizes BofA to debit any deposit account of such
Borrower with BofA in an amount such that the aggregate amount debited
from all such deposit accounts does not exceed such fee or other cost or
expense. If there are insufficient funds in such deposit accounts to
cover the amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in BofA's sole discretion)
and such amount not debited shall be deemed to be unpaid. No such debit
under this Section 9.08 shall be deemed unpaid. No such debit under
this Section 9.08 shall be deemed a set-off. The authority granted to
the Agent, the Issuing Bank and BofA pursuant to this Section 9.08 may
be revoked at any time by the Borrowers' Agent upon not less than five
Business Days' prior notice to the Agent, PROVIDED that no such
revocation may be made if a Default has occurred and is continuing
hereunder. The Agent shall promptly notify the Issuing Bank and BofA of
any such revocation.
9. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Bank and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at
any time owing by such Bank or Affiliate to or for the credit or the
account of any Borrower against any of and all the obligations of such
Borrower now or hereafter existing under this Agreement held by such
Bank, irrespective of whether or not such Bank shall have made any
demand under this Agreement and although such obligations may be
unmatured. The rights of each Bank under this Section are in addition to
other rights and remedies (including other rights of setoff) which such
Bank may have.
10. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS. This
Agreement shall be construed in accordance with and governed by the law
of the State of California.
(a) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the
court of the State of California sitting in San Francisco and of the
United States District Court of the Northern District of California, and
any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such California
State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Agent,
the Issuing Bank or any Bank may otherwise have to bring any action or
proceeding relating to this Agreement against each Borrower or its
properties in the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in
this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
(d) WAIVER OF JURY TRIAL. THE BORROWERS, THE BANKS AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT/IB-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWERS, THE BANKS
AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY
IS WAIVED BY OPERATION OF THIS SECTION. AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12. HEADINGS. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
13. CONFIDENTIALITY. Each of the Agent, the Issuing Bank and the Banks
agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process (in which event, the party
receiving such subpoena or legal process will, if permitted, as promptly
as practicable give notice thereof to the Borrower's Agent and use
reasonable efforts, at the expense of the Borrowers, to cooperate with
the Borrower's Agent in seeking a protective order), (d) to any other
Party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section and naming any Borrower as a third party beneficiary (in the
absence of a provision naming such Borrower as a third party
beneficiary, the applicable Bank hereby agrees to use its reasonable
efforts, at the expense of the Borrowers, upon the request of any
Borrower to enforce such agreement), to any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, (g) with the consent of the
Borrower's Agent or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Agent, the Document Agent, any Issuing
Bank or any Bank on a nonconfidential basis from a source other than any
Borrower not known by it to be bound by obligations of confidentiality.
For the purposes of this Section, "INFORMATION" means all information
received from any Borrower relating to any Borrower or its business,
other than any such information that is available to the Agent, the
Issuing Bank or any Bank on a nonconfidential basis prior to disclosure
by such Borrower; Provided that, in the case of information received
from any Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential, any Person required
to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its
own confidential information.
14. INTEREST RATE LIMITATION. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"),
shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by the Bank holding
such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and
Charges payable to such Bank in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by
such Bank.
15. JUDGMENT CURRENCY. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in
the relevant jurisdiction the first currency could be purchased with
such other currency on the Business Day immediately preceding the day on
which final judgment is given.
(a) The obligations of any Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency
(the "JUDGMENT CURRENCY") other than the currency in which such sum is
stated to be due hereunder (the "AGREEMENT CURRENCY"), be discharged
only to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency
with the Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to the Applicable Creditor
in the Agreement Currency, the Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of each Borrower contained
in this Section 9.15 shall survive the termination of this Agreement and
the payment of all other amounts owing hereunder.
16. NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrowers, the
Banks, the Agent and the Agent/IB-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other
Loan Documents.
17. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the
Borrowers, the Banks and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
1.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the
day and year first above written.
SOLECTRON CORPORATION
By: /s/ Richard D. Gilpin
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Bank, Agent
and Issuing Bank
By: /s/ [signature illegible]
Title: Managing Director
ABN AMRO BANK, N.V.
By: /s/ Robin S. Yim
Title: Group Vice President
By: /s/ Robert N. Hartinger
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ [signature illegible]
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS, SAN FRANCISCO BRANCH
By: /s/ Raphael C. Lumanlan
Title: Vice President
By: /s/ Charles H. Day
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Haruhiko Masuda
Title: Deputy General Manager
THE SANWA BANK LIMITED, SAN FRANCISCO BRANCH
By: /s/ [signature illegible]
Title: General Manager
STANDARD CHARTERED BANK
By: /s/ [signature illegible]
Title:
By: /s/ [signature illegible]
Title: V.P.
THE FUJI BANK, LIMITED, SAN FRANCISCO AGENCY
By: /s/ [signature illegible]
Title: General Manager
<PAGE>
<TABLE>
ANNEX I
Pricing Grid
<CAPTION>
Basis Points Per Annum
--------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Euro- Financial Performance
currency CD Rate Standby Standby
Index Debt Loan Loan ABR Loan Letter of Letter of
Rating Applicable Applicable Applicable Commitment Credit Credit
(S&P/Moody's) Margin Margin Margin Fees Fees Fees
--------------- ---------- ---------- ---------- ---------- --------- -----------
Level BBB+/Baa1
I (or better) 27.50 27.50 0.00 9.00 27.50 13.75
Level
II BBB/Baa2 35.00 35.00 0.00 12.50 35.00 17.50
Level
III BBB-/Baa3 43.75 43.75 0.00 15.00 43.75 21.875
Level
IV BB+/Ba1 62.50 62.50 0.00 20.00 62.50 32.25
Level BB/Ba2
V (or lower, 75.00 75.00 0.00 25.00 75.00 37.50
or no
applicable
rating)
</TABLE>
The Applicable Margin, commitment fee and letter of credit fees shall be
determined by reference to the stated (or implied) ratings by S&P and
Moody's, respectively, applicable to the Index Debt. On any date of
determination, the Applicable Margin, commitment fee and letter of
credit fees shall be set at the Level in the above Pricing Grid which
corresponds to the ratings by S&P and Moody's, respectively, applicable
on such day to the Index Debt; PROVIDED that (a) if either Moody's or
S&P shall not have in effect a rating for the Index Debt, then the
Applicable Margin, commitment fee and letter of credit fees shall be
determined solely with reference to the available rating by the rating
agency that still rates the Index Debt; (b) if the ratings established
or deemed to have been established by Moody's and S&P for the Index Debt
shall indicate two different but consecutive Levels, the Applicable
Margin, commitment fee and letter of credit fees shall be based on the
higher of the two ratings; (c) if the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt shall
indicate two different but nonconsecutive Levels, the Applicable Margin,
commitment fee and letter of credit fees shall be the average of the
Applicable Margins, commitment fees and letter of credit fees,
respectively, corresponding to such Levels; and (d) if the rating
established or deemed to have been established by Moody's or S&P for the
Index Debt shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), such change shall be effective as of
the date on which it is first announced by the applicable rating agency.
If the rating system of Moody's or S&P shall change, or if both such
rating agencies shall cease to be in the business of rating corporate
debt obligations, the Borrower's Agent and the Banks shall negotiate in
good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agencies and,
pending the effectiveness of any such amendment, the Applicable Margin,
commitment fee and letter of credit fees shall be set at Level V.
On the Closing Date, the Applicable Margin, commitment fee and letter of
credit fees shall be initially set at Level III. Each change in the
Applicable Margin, commitment fee and letter of credit fees shall apply
during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next
such change.
<PAGE>
SCHEDULE 2.01
to the Credit Agreement
COMMITMENTS
AND APPLICABLE PERCENTAGES
APPLICABLE
BANK COMMITMENT PERCENTAGE
Bank of America NT & SA $ 14,719,100 14.719000%
ABN AMRO Bank N.V. $ 13,483,146 13.483146%
Union Bank of California, N.A. $ 13,483,146 13.483146%
Banque Nationale de Paris $ 12,078,652 12.078652%
The Industrial Bank of Japan, Limited $ 12,078,652 12.078652%
The Sanwa Bank Limited, San Francisco Branch $ 12,078,652 12.078652%
Standard Chartered Bank $ 12,078,652 12.078652%
The Fuji Bank Limited, San Francisco Agency $ 10,000,000 10.000000%
------------ -----------
Total: $100,000,000 100.000000%
<PAGE>
DISCLOSURE SCHEDULE
SCHEDULE 3.04: SUBSIDIARIES
Solectron California Corporation
Solectron Technology, Inc.
Solectron Texas, Inc.
Solectron Holdings, Inc.
Solectron Massachusetts Corporation
Solectron Washington, Inc.
Fine Pitch Technology, Inc.
Force Computers Inc.
Solectron Technology, Inc. SDN BHD
Solectron Japan, Inc.
Solectron France, S.A.
Solectron Scotland Limited
Solectron GmbH
Solectron (Suzhou) Technology Co. Ltd.
Solectron Hong Kong Ltd.
Solectron Netherlands Holdings B.V.
Solectron de Mexico, S.A. de C.V.
SCHEDULE 3.05: MATERIAL INDEBTEDNESS NOT DISCLOSED IN FINANCIALS
Indebtedness of the Company pursuant to Lease Agreement, dated as of
September 6, 1994 (as amended from time to time) between BNP Leasing
Company and Solectron Corporation, and related agreements.
SCHEDULE 3.06: LITIGATION
None.
SCHEDULE 3.09: EMPLOYEE BENEFITS PLANS
1. 1983 Incentive Stock Option Plan, as amended August 13, 1991.
2. 1988 Employee Stock Purchase Plan, as amended October 1992.
3. Amended and Restated 1992 Stock Option Plan
4. 401(k) Retirement Savings Plan
SCHEDULE 3.13: COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES INFRINGEMENT
CLAIMS
None.
SCHEDULE 6.01: SUBSIDIARY INDEBTEDNESS
Name of Subsidiary Agreement
Solectron Scotland Limited $4.918 million Credit Facility with Royal
Bank of Scotland
Solectron Technology, $30.488 million Credit Agreement with
Inc. SDN BHD Standard Chartered Bank and DCB Bank
Solectron GmbH $5,000 Credit Agreement with Commerzebank
$7 million L-T note from Landersgirekasse
Oeffentliche Bank
$2 million Credit Agreement with Hewlett
Packard Company for purchase of inventory
at acquisition
Solectron Japan, Inc. $22.425 million Credit Agreement with Bank
of Tokyo Mitsubishi Ltd.
Fine Pitch Technology, Inc. $89,000 Equipment Loan from San Jose
National Bank
Force Computers, Inc. $1.038 million Credit Facility with
Dresdner Bank Tokyo
$8.876 million Credit Facility with
Stadtoparkasse Munich
$5.917 million Credit Facility with
Hypobanck Munich
$5.917 million Credit Facility with
Reuschelbank
$655,000 Credit Facility with Barclays
Bank
$500,000 Credit Facility with Bank Leumi
$7.5 million Credit Facility with Comerica
Bank
SCHEDULE 6.02: LIENS
1. Solectron Corporation
SECRETARY OF STATE - CALIFORNIA
Description of Filing
Secured Party Collateral Date File Number
------------------- ------------------------ -------- -----------
Equitable Life Specific Equipment
Leasing Corporation and Proceeds 1-26-93 88020525
Xerox Corporation Office Equipment
and Proceeds 6-22-92 92137563
Taylor Made Office Specific Equipment
Systems, Inc. and Proceeds 4-15-94 94074579
Hewlett Packard Specific Equipment
Company and Proceeds 5-11-94 94093984
Hewlett Packard Specific Equipment
Company and Proceeds 3-2-95 9506661264
Hewlett Packard Specific Equipment
Company and Proceeds 8-28-95 9524460015
Taylor Made Office Specific Equipment
Systems, Inc. and Proceeds 12-19-95 9535560504
Taylor Made Office Specific Equipment
Systems, Inc. and Proceeds 3-1-96 9606760948
Taylor Made Office Specific Equipment
Systems, Inc. and Proceeds 7-24-96 9620860481
Associates Leasing, Computer Equipment
Inc. and Proceeds 1-10-97 9701360025
Security Pacific Specific Equipment
Equipment Leasing,Inc. and Proceeds 5-1-95 85169376
Security Pacific Computer Equipment
Equipment Leasing,Inc. and Proceeds 8-21-95 85270060
MNLC/BALTC Specific Equipment
Leasing Partners and Proceeds 4-2-92 87117094
Security Pacific Computer Equipment
Equipment Leasing,Inc. and Proceeds 5-6-92 87217647
Equitable Life Computer Equipment
Leasing Corporation and Proceeds 10-20-92 87314510
G.E. Capital Specific Equipment
Corporation and Proceeds 2-18-93 88046793
NEMLC Leasing Specific Equipment
Associates No. 3 and Proceeds 1-11-93 88063091
Security Pacific Specific Equipment
Equipment Leasing and Proceeds 12-27-94 90067753
Deutsch Credit Specific Equipment
Corporation and Proceeds 4-3-95 90101368
Security Pacific Specific Equipment
Equipment Leasing,Inc. and Proceeds 5-1-95 90172604
Hewlett-Packard Computer Equipment
Company and Proceeds 5-4-92 92099518
Lease Plan USA, Inc. Specific Equipment
and Proceeds 5-12-92 92107399
Hewlett Packard Specific Equipment
Company and Proceeds 7-13-92 92153799
Hewlett Packard Specific Equipment
Company and Proceeds 10-6-92 92216939
Hewlett Packard Specific Equipment
Company and Proceeds 10-16-92 92223550
Hewlett Packard Specific Equipment
Company and Proceeds 10-27-92 92231425
Hewlett Packard Specific Equipment
Company and Proceeds 4-1-93 92241883
Equitable Life Specific Equipment
Leasing Corporation and Proceeds 1-28-93 93018954
Hewlett Packard Specific Equipment
Company and Proceeds 4-22-93 9308147
Hewlett Packard Specific Equipment
Company and Proceeds 5-12-93 93096482
MetLife Capital, L.P. Computer Equipment
and Proceeds 1-28-94 93113136
Hewlett Packard Specific Equipment
Company and Proceeds 6-4-93 93114108
Hewlett Packard Specific Equipment
Company and Proceeds 6-16-93 93122297
United States Leasing Computer Equipment
International, Inc. and Proceeds 11-5-93 93223327
Capital Preferred Yield Specific Equipment
Fund - II, L.P. and Proceeds 4-7-94 93234553
Avnet Computer Specific Equipment
Technologies, Inc. and Proceeds 2-4-94 94021647
Hewlett Packard Specific Equipment
Company and Proceeds 4-25-94 94081377
Hewlett Packard Specific Equipment
Company and Proceeds 5-4-94 94088238
Hewlett Packard Specific Equipment
Company and Proceeds 5-20-94 94101661
Hewlett Packard Specific Equipment
Company and Proceeds 7-18-94 94145012
Hewlett Packard Specific Equipment
Company and Proceeds 8-30-94 94178790
BNP Leasing Specific Equipment
Corporation and Proceeds 9-8-94 94185412
Hewlett Packard Specific Equipment
Company and Proceeds 9-21-94 9428560112
BNP Leasing Specific Equipment
Corporation and Proceeds 9-27-94 9429360076
Hewlett Packard Specific Equipment
Company and Proceeds 11-28-94 9434761275
Comdisco, Inc. Specific Equipment
and Proceeds 12-8-94 9434960578
Hewlett Packard Specific Equipment
Company and Proceeds 12-14-94 9500361142
Hewlett Packard Specific Equipment
Company and Proceeds 1-26-95 9503360328
Hewlett Packard Specific Equipment
Company and Proceeds 2-10-95 9504860699
Hewlett Packard Specific Equipment
Company and Proceeds 2-10-95 9504860715
Hewlett Packard Specific Equipment
Company and Proceeds 2-21-95 9505960514
Hewlett Packard Specific Equipment
Company and Proceeds 3-6-95 9506860234
Hewlett Packard Specific Equipment
Company and Proceeds 4-28-95 9512160498
Hewlett Packard Specific Equipment
Company and Proceeds 4-28-95 9512160513
Hewlett Packard Specific Equipment
Company and Proceeds 6-5-95 9515960516
Hewlett Packard Specific Equipment
Company and Proceeds 6-5-95 9515960526
Hewlett Packard Specific Equipment
Company and Proceeds 9-5-95 9525560208
Hewlett Packard Specific Equipment
Company and Proceeds 9-5-95 9525560219
Hewlett Packard Specific Equipment
Company and Proceeds 9-26-95 9527260307
Pitney Bowes Credit Specific Equipment
Corporation and Proceeds 1-22-96 9602360211
Hewlett Packard Specific Equipment
Company and Proceeds 1-29-96 9603060985
Copelco Capital, Inc. Specific Equipment
and Proceeds 4-25-96 9608261042
Copelco Capital, Inc. Specific Equipment
and Proceeds 6-19-96 9617660616
Copelco Capital, Inc. Specific Equipment
and Proceeds 7-30-96 9621460705
Hewlett Packard Specific Equipment
Company and Proceeds 8-9-96 9622661204
Copelco Capital, Inc. Specific Equipment
and Proceeds 11-26-96 9633161377
Comdisco, Inc. Specific Equipment
and Proceeds 2-10-97 9704260387
Comdisco, Inc. Specific Equipment
and Proceeds 2-24-97 9705660119
Hewlett Packard Specific Equipment
Company and Proceeds 7-7-93 93138136
Taylor Made Office Specific Equipment
Systems, Inc. and Proceeds 8-21-95 9523560031
Liens of the Company pursuant to that Lease Agreement, dated as of
September 6, 1994 ( as amended from time to time) between BNP Leasing
Company and Solectron Corporation.
2. Solectron Washington, Inc.
DEPARTMENT OF LICENSING-WASHINGTON
Secured Party Description of Collateral Filing Date File Number
----------------- ------------------------- ----------- -----------
GTE Northwest Specific Equipment 9-20-93 93-263-0729
AT&T Capital Leasing
Services, Inc. Specific Equipment 11-3-95 95-307-0414
3. Solectron Texas, Inc.
SECRETARY OF STATE-TEXAS
Secured Party Description of Collateral Filing Date File Number
----------------- ------------------------- ----------- -----------
General Electric
Capital Corp Electronic Equipment 8-26-96 96704367
4. Fine Pitch Technology
SECRETARY OF STATE - CALIFORNIA
Secured Party Description of Collateral Filing Date File Number
----------------- ------------------------- ----------- -----------
San Jose National
Bank Specific Equipment 2-29-95 9504660745
San Jose National
Bank Specific Equipment 4-3-95 9509560531
San Jose National
Bank Specific Equipment 12-13-95 9534860123
5. Force Computers, Inc.
SECRETARY OF STATE - CALIFORNIA
Secured Party Description of Collateral Filing Date File Number
----------------- ------------------------- ----------- -----------
Taylor Made Office
Systems, Inc. Specific Equipment 10-11-94 9430660823
Taylor Made Office
Systems, Inc. Specific Equipment 8-21-95 9523460666
Taylor Made Office
Systems, Inc. Specific Equipment 6-13-94 94119361
6. Solectron Technology, Inc. (Charlotte)
SECRETARY OF STATE - NORTH CAROLINA
Secured Party Description of Collateral Filing Date File Number
----------------- ------------------------- ----------- -----------
Hewlett Packard
Company Specific Equipment 2-22-93 0000970502
SCHEDULE 6.07: RESTRICTIVE AGREEMENTS
Indenture dated as of February 15, 1996 governing the terms of issuance
of 7 3/8% Senior Notes due 2006. Contains a covenant restricting the
Company's ability to encumber certain items of its property.
Lease Agreement dated as of September 6, 1994 (as amended from time to
time) between BNP Leasing Company and Solectron Corporation. Includes
all covenants by cross reference in Article VI of this Credit Agreement.
The Force Computers, Inc. credit facilities contains (1) restrictions on
its ability to pay dividends to Solectron and (2) its ability to
encumber any of its assets except for ordinary course involuntary liens
and equipment finance and purchase money security interests.
<PAGE>
SCHEDULE 9.01
to the Credit Agreement
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
SOLECTRON CORPORATION
Solectron Corporation
847 Gibraltar Drive, Building 5
Milpitas, CA 95035
Attention: Treasurer
Telephone: (408) 956-6577
Facsimile: (408) 956-6062
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent and Issuing Bank
BORROWING NOTICES, NOTICES OF
CONVERSION/CONTINUATION AND PAYMENTS:
Bank of America National Trust
and Savings Association
Agency Management Services #5596
1455 Market Street, 13th Floor
San Francisco, CA 94103
Attention: Blanca Vinje
Telephone: (415) 436-2783
Facsimile: (415) 436-2700
ALL OTHER NOTICES:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Credit Products, High Technology #3697
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: Michael J. McCutchin
Telephone: (415) 622-4589
Facsimile: (415) 622-2514
AGENT'S PAYMENT OFFICE:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
ABA No. 1210-0035-8 SF
1850 Gateway Boulevard, Fourth Floor
Concord, CA 94520
Account No.: 1233915383
Reference: Solectron Corporation
Attention: Agency Administrative Services #5596
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
DOMESTIC AND OFFSHORE LENDING OFFICE
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Global Payment Operations
Customer Service Americas #5693
1850 Gateway Boulevard, Fourth Floor
Concord, CA 94520
Attention: Jackie Holland
Telephone: (510) 675-7531
Facsimile: (510) 675-7331
ALL OTHER NOTICES:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Credit Products, High Technology #3697
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: Michael J. McCutchin
Telephone: (415) 622-4589
Facsimile: (415) 622-2514
ABN AMRO BANK, N.V.
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, CA 94111
Attention: Gloria Chiang Lee
Telephone: (415) 984-3720
Facsimile: (415) 362-3524
ALL OTHER NOTICES:
ABN AMRO Bank, N.V.
101 California Street, Suite 4550
San Francisco, Ca 94111
Attention: Bruce W. Swords
Telephone: (415) 984-3721
Facsimile: (415) 362-3524
BANQUE NATIONALE DE PARIS, SAN FRANCISCO BRANCH
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
Banque Nationale de Paris, San Francisco Branch
180 Montgomery Street, 4th Floor
San Francisco, CA 94104
Attention: Donald Hart
Telephone: (415) 956-2511
Facsimile: (415) 989-9041
ALL OTHER NOTICES:
Banque Nationale de Paris, San Francisco Branch
180 Montgomery Street, 3rd Floor
San Francisco, CA 94104
Attention: Rafael Lumanlan
Telephone: (415) 956-0707
Facsimile: (415) 296-8954
THE SANWA BANK LIMITED, SAN FRANCISCO BRANCH
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
The Sanwa Bank Limited, San Francisco Branch
444 Market Street, 18th Floor
San Francisco, CA 94111
Attention: S. Endo
Telephone: (415) 597-5231
Facsimile: (415) 788-5459
ALL OTHER NOTICES:
The Sanwa Bank Limited, San Francisco Branch
444 Market Street, 18th Floor
San Francisco, CA 94111
Attention: Terrence J. Mech
Telephone: (415) 597-5222
Facsimile: (415) 788-5459
UNION BANK OF CALIFORNIA, N.A.
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
Union Bank of California, N.A.
400 California Street, 17th Floor
San Francisco, CA 94104
Attention: Stacie Burks-Garcia
Telephone: (415) 765-3641
Facsimile: (415) 765-2634
ALL OTHER NOTICES:
Union Bank of California, N.A.
400 California Street, 17th Floor
San Francisco, CA 94104
Attention: Glen Leyrer
Telephone: (415) 705-7578
Facsimile: (415) 705-5093
THE INDUSTRIAL BANK OF JAPAN, LIMITED
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
The Industrial Bank of Japan, Limited
San Francisco Agency
555 California Street, Suite 3110
Attention: Debbie Rajkumar
Telephone: (415) 693-1830
Facsimile: (415) 982-1917
ALL OTHER NOTICES:
The Industrial Bank of Japan, Limited
555 California Street, Suite 3110
San Francisco, CA 94104
Attention: Michael McCorriston
Telephone: (415) 693-1822
Facsimile: (415) 982-1917
THE FUJI BANK, LIMITED, SAN FRANCISCO AGENCY
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
The Fuji Bank, Limited, San Francisco Agency
601 California Street, 5th Floor
San Francisco, CA 94108
Attention: Andy Poon
Telephone: (415) 296-5420
Facsimile: (415) 362-4613
ALL OTHER NOTICES:
The Fuji Bank, Limited, San Francisco Agency
601 California Street, 5th Floor
San Francisco, CA 94108
Attention: Mami Yamajo
Telephone: (415) 256-5433
Facsimile: (415) 362-4613
STANDARD CHARTERED BANK
DOMESTIC AND OFFSHORE LENDING OFFICE(S)
(Borrowing notices, Notices of
Conversion/Continuation, and Payments):
Standard Chartered Bank
707 Wilshire Boulevard, W-8-33
Los Angeles, CA 90017
Attention: Qustandi Shiber/Amelia Quintana
Telephone: (213) 614-5037/5019
Facsimile: (213) 614-4270
ALL OTHER NOTICES:
Standard Chartered Bank
707 Wilshire Boulevard, 8th Floor
Los Angeles, CA 90017
Attention: Mary Machado-Schammel
Telephone: (213) 614-4756
Facsimile: (213) 614-5158
<PAGE>
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "ASSIGNMENT AND
ACCEPTANCE") dated as of _____________ is made between
__________________ (the "ASSIGNOR") and ________________ (the
"ASSIGNEE").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement
dated as of April 30, 1997 (as amended, restated, modified, supplemented
or renewed from time to time, the "CREDIT AGREEMENT"), among Solectron
Corporation (the "COMPANY"), the "Additional Borrowers" from time to
time party thereto, the several financial institutions from time to time
party thereto (including the Assignor, the "BANKS") and Bank of America
National Trust and Savings Association, as agent for the Banks (the
"AGENT"). Any terms defined in the Credit Agreement and not defined in
this Assignment and Acceptance are used herein as defined in the Credit
Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Revolving Loans to the Company in an aggregate
amount not to exceed $__________ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal
amount of $__________ to the Company] [no Loans are outstanding under
the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of
the] [all] rights and obligations of the Assignor under the Credit
Agreement in respect of its Commitment, [together with a corresponding
portion of each of its outstanding Loans], in an amount equal to ___% of
the Assignor's Commitment [and Loans], on the terms and subject to the
conditions set forth herein, and the Assignee wishes to accept
assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ACCEPTANCE.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes
from the Assignor, without recourse and without representation or
warranty (except as provided in this Assignment and Acceptance) ___%
(the "ASSIGNEE'S PERCENTAGE SHARE") of (A) the Commitment [and the
Loans] of the Assignor and (B) all related rights, benefits,
obligations, liabilities and indemnities of the Assignor under and in
connection with the Credit Agreement and the Loan Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement
and succeed to all of the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement, including the
requirements concerning confidentiality and the payment of
indemnification, with a Commitment in the amount set forth in
subsection (c) below. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank. It
is the intent of the parties hereto that the Commitment of the Assignor
shall, as of the Effective Date, be reduced by an amount equal to the
portion thereof assigned to the Assignee hereunder, and the Assignor
shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by
the Assignee; PROVIDED, HOWEVER, that the Assignor shall not relinquish
its rights under Sections 2.26 through 2.34 and Section 9.03 of the
Credit Agreement to the extent such rights relate to the time prior to
the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date: (i) the Assignee's Commitment will
be $__________; and (ii) the Assignee's aggregate outstanding Loans will
be $_______________.
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date: (i) the Assignor's Commitment will
be $__________; and (ii) the Assignor's aggregate outstanding Loans will
be $_______________.
2. PAYMENTS.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor
on the Effective Date in immediately available funds an amount equal to
$__________, representing the Assignee's Percentage Share of the
principal amount of all Loans previously made by the Assignor to the
Company and the Additional Borrowers, if any, under the Credit Agreement
and outstanding on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to pay to the
Agent a processing fee in the amount specified in subsection 9.04(b) of
the Credit Agreement.
3. REALLOCATION OF PAYMENTS. Any interest, fees and other
payments accrued to the Effective Date with respect to the Commitment
[and Loans] of the Assignor shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and after the Effective
Date with respect to the portion of such Commitment [and Loans] assigned
to the Assignee shall be for the account of the Assignee. Each of the
Assignor and the Assignee agrees that it will hold in trust for the
other party any interest, fees and other amounts which it may receive to
which the other party is entitled pursuant to the preceding sentence and
pay to the other party any such amounts which it may receive promptly
upon receipt.
4. INDEPENDENT CREDIT DECISION. The Assignee: (a) acknowledges
that it has received a copy of the Credit Agreement and the Schedules
and Exhibits thereto, together with copies of the most recent financial
statements referred to in Section 3.05 or Section 5.01 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to
enter into this Assignment and Acceptance; and (b) agrees that it will,
independently and without reliance upon the Assignor, 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 credit and legal
decisions in taking or not taking action under the Credit Agreement.
5. EFFECTIVE DATE; NOTICES.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be ______________ (the
"EFFECTIVE DATE"); PROVIDED that the following conditions precedent have
been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) any consent of the Company and the Agent required under
Section 9.04 of the Credit Agreement for the effectiveness of the
assignment hereunder by the Assignor to the Assignee shall have been
duly obtained and shall be in full force and effect as of the Effective
Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof
and in subsection 9.04(b) of the Credit Agreement shall have been paid
to the Agent; and
(v) the Assignor and Assignee shall have complied with the
other requirements of Section 9.04 of the Credit Agreement and with the
requirements of Section 9.13 of the Credit Agreement (in each case to
the extent applicable).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgement by the Agent, a Notice of Assignment substantially in
the form attached hereto as SCHEDULE 1.
6. AGENT. The Assignee hereby appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the Banks
pursuant to the terms of the Credit Agreement. [The Assignee shall
assume no duties or obligations held by the Assignor in its capacity as
Agent under the Credit Agreement.] [INCLUDE ONLY IF ASSIGNOR IS AGENT]
7. WITHHOLDING TAX. The Assignee (a) represents and warrants to
the Assignor, the Agent and the Company that under applicable law and
treaties no tax will be required to be withheld by the Bank with respect
to any payments to be made to the Assignee hereunder, and (b) agrees to
furnish (if it is organized under the laws of any jurisdiction other
than the United States or any State thereof) to the Agent and the
Company prior to the time that the Agent or Company is required to make
any payment of interest or fees under the Credit Agreement, duplicate
executed originals of either U.S. Internal Revenue Service Form 4224 or
U.S. Internal Revenue Service Form 1001 (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments
thereto, duly executed and completed by the Assignee, as and when
required under the Credit Agreement.
8. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any Lien or other
adverse claim; (ii) it is duly organized and existing and it has the
full power and authority to take, and has taken, all action necessary to
execute and deliver this Assignment and Acceptance and any other
documents required or permitted to be executed or delivered by it in
connection with this Assignment and Acceptance and to fulfill its
obligations hereunder; (iii) no notices to, or consents, authorizations
or approvals of, any Person are required (other than those referred to
in Section 5(a)(ii) hereof and any already given or obtained) for its
due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings
required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery
or performance; and (iv) this Assignment and Acceptance has been duly
executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the
Company, of any of its respective obligations under the Credit Agreement
or any other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and
has taken, all action necessary to execute and deliver this Assignment
and Acceptance and any other documents required or permitted to be
executed or delivered by it in connection with this Assignment and
Acceptance, and to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any Person are required
(other than those referred to in Section 5(a)(ii) hereof and any already
given or obtained) for its due execution, delivery and performance of
this Assignment and Acceptance; and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation of the Assignee, enforceable
against the Assignee in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles; and (iv) it is an Eligible
Assignee.
9. FURTHER ASSURANCES. The Assignor and the Assignee each hereby
agrees to execute and deliver such other instruments, and take such
other action, as either party may reasonably request in connection with
the transactions contemplated by this Assignment and Acceptance,
including the delivery of any notices or other documents or instruments
to the Company or the Agent, which may be required in connection with
the assignment and assumption contemplated hereby.
10. MISCELLANEOUS.
(a) Any amendment or waiver of any provision of this Assignment
and Acceptance shall be in writing and signed by the parties hereto. No
failure or delay by either party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof and any waiver
of any breach of the provisions of this Assignment and Acceptance shall
be without prejudice to any rights with respect to any other or further
breach thereof.
(b) All payments made hereunder shall be made without any set-
off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA. THE
ASSIGNOR AND THE ASSIGNEE EACH IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN CALIFORNIA OVER
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
ASSIGNMENT AND ACCEPTANCE AND IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
CALIFORNIA STATE OR FEDERAL COURT. EACH PARTY TO THIS ASSIGNMENT AND
ACCEPTANCE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF THIS ASSIGNMENT AND ACCEPTANCE OR ANY
DOCUMENT RELATED HERETO, AND PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
CALIFORNIA LAW.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, AND ANY
RELATED DOCUMENTS AND AGREEMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER PARTY, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE
PARTIES ALSO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY.
[OTHER PROVISIONS TO BE ADDED AS MAY BE NEGOTIATED BETWEEN THE ASSIGNOR
AND THE ASSIGNEE, PROVIDED THAT SUCH PROVISIONS ARE NOT INCONSISTENT
WITH THE CREDIT AGREEMENT.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
<PAGE>
SCHEDULE 1
to the Assignment and Acceptance Agreement
NOTICE OF ASSIGNMENT AND ACCEPTANCE
Date: ___________________
To: Bank of America National Trust and Savings Association, as Agent
Solectron Corporation
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of April 30, 1997 (as
amended, restated, modified, supplemented or renewed from time to time,
the "CREDIT AGREEMENT") among Solectron Corporation (the "COMPANY"), the
"Additional Borrowers" from time to time party thereto, the Banks
referred to therein and Bank of America National Trust and Savings
Association, as Agent for the Banks (the "AGENT"). Terms defined in the
Credit Agreement are used herein as therein defined.
1. We hereby give you notice of[, and request the consent of [the
Company and] the Agent to,] the assignment by ________________________
(the "ASSIGNOR") to ____________________ (the "ASSIGNEE") of ____% of
the right, title and interest of the Assignor in and to the Credit
Agreement (including, without limitation, ____% of the right, title and
interest of the Assignor in and to the Commitment of the Assignor [and
all outstanding Loans made by the Assignor]) pursuant to that certain
Assignment and Acceptance Agreement, dated as of ___________ (the
"ASSIGNMENT AND ACCEPTANCE") between Assignor and Assignee, a copy of
which Assignment and Acceptance is attached hereto. Before giving
effect to such assignment the Assignor's Commitment is $___________.
[The Assignor has made Loans in the aggregate principal amount of
$__________ to the Company.] [No Loans are outstanding under the Credit
Agreement.]
2. The Assignee agrees that, upon receiving the consent of the
Company and the Agent to such assignment (if applicable) and from and
after the Effective Date (as such term is defined in Section 5 of the
Assignment and Acceptance), the Assignee shall be bound by the terms of
the Credit Agreement, with respect to the interest in the Credit
Agreement assigned to it as specified above, as fully and to the same
extent as if the Assignee were the Bank originally holding such interest
in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Lending Office(s):
Assignee name:
Address:
Attention:
Telephone:
Facsimile:
Assignee name:
Address:
Attention:
Telephone:
Facsimile:
(B) Notice Address:
Assignee name:
Address:
Attention:
Telephone:
Facsimile:
(C) Payment Instructions:
Account No.:
At:
Reference:
Attention:
4. You are entitled to rely upon the representations, warranties
and covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
5. This Notice of Assignment and Acceptance may be executed by the
Assignor and the Assignee in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same notice and
agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective
duly authorized officials, officers or agents as of the date first above
mentioned.
Very truly yours,
ADJUSTED COMMITMENT: [ASSIGNOR]
$_________________ By:
ADJUSTED PRO RATA SHARE: Title:
_______%
COMMITMENT: [ASSIGNEE]
$_________________ By:
PRO RATA SHARE: Title:
_______%
[CONSENTED TO this _____ day
of___________________:
SOLECTRON CORPORATION
By:
Title: ]
ACKNOWLEDGED [AND CONSENTED
TO] this ____ day of ________:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
Title:
<PAGE>
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
SOLECTRON CORPORATION
Financial Statements Date: ______________
Reference is made to that certain Credit Agreement dated as of
April 30, 1997 (as extended, renewed, amended or restated from time to
time, the "CREDIT AGREEMENT"), among Solectron Corporation (the
"COMPANY"), the "Additional Borrowers" from time to time party thereto,
the several financial institutions from time to time party thereto (the
"BANKS") and Bank of America National Trust and Savings Association, as
Agent (in such capacity, the "AGENT"). Unless otherwise defined herein,
capitalized terms used herein have the respective meanings assigned to
them in the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies
as of the date hereof that he/she is the [_______________] of the
Company, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Banks and the Agent on the behalf of the Company
and its consolidated Subsidiaries, and that:
[USE THE FOLLOWING PARAGRAPH IF THIS CERTIFICATE IS DELIVERED IN
CONNECTION WITH THE FINANCIAL STATEMENTS REQUIRED BY SUBSECTION 5.01(A)
OF THE CREDIT AGREEMENT.]
1. Attached hereto are true and correct copies of the audited
consolidated balance sheet of the Company and its Subsidiaries as at the
end of the fiscal year ended _______________ and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, accompanied by the
opinion of KPMG Peat Marwick or other independent public accountants of
recognized national standing (the "Independent Auditor"), which opinion
(a) states that such consolidated financial statements present fairly
the financial position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years and (b) does not contain
a "going concern" or like qualification and is not qualified or limited
because of a restricted or limited examination by the Independent
Auditor of any material portion of the Company's or any Subsidiary's
records.
or
[USE THE FOLLOWING PARAGRAPH IF THIS CERTIFICATE IS DELIVERED IN
CONNECTION WITH THE FINANCIAL STATEMENTS REQUIRED BY SUBSECTION 5.01(B)
OF THE CREDIT AGREEMENT.]
1. Attached hereto are true and correct copies of the unaudited
consolidated balance sheet of the Company and its Subsidiaries as of the
end of the fiscal quarter ended _________ and the related consolidated
statements of income or operations and cash flows for the period
commencing on the first day and ending on the last day of such quarter,
which are complete and accurate in all material respects and fairly
present, in accordance with GAAP (subject to ordinary, good faith year-
end audit adjustments), the financial position, the results of
operations and the cash flows of the Company and the Subsidiaries.
2. The undersigned has reviewed and is familiar with the terms of
the Credit Agreement and has made, or has caused to be made under
his/her supervision, a detailed review of the transactions and condition
(financial or otherwise) of the Company and its Subsidiaries during the
accounting period covered by the attached financial statements.
3. To the best knowledge of the undersigned, the Company and its
Subsidiaries, during such period, have observed, performed or satisfied
all of the covenants and other agreements, and satisfied every condition
in the Credit Agreement to be observed, performed or satisfied by the
Company and its Subsidiaries, and the undersigned has no knowledge of
any Default or Event of Default.
4. The representations and warranties of the Company contained in
Article III of the Credit Agreement are true and correct as though made
on and as of the date hereof (except to the extent such representations
and warranties relate to an earlier date, in which case they shall be
true and correct as of such date; and except that this notice shall be
deemed instead to refer to the last day of the most recent year for
which financial statements have then been delivered in respect of the
representation and warranty made in subsection 3.05(a) of the Credit
Agreement).
5. The financial covenant analyses and information set forth on
SCHEDULE 1 attached hereto are true and accurate on and as of the date
of this Certificate. All amounts and ratios in SCHEDULE 1 refer to the
financial statements attached hereto and are determined in accordance
with the specifications set forth in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
as the ____________ of the Company as of ______________, 199_.
SOLECTRON CORPORATION
By:
Title:
<PAGE>
SCHEDULE 1
to the Compliance Certificate
Dated __________, ____
For the fiscal quarter ended __________, _____
Actual Required/Permitted
1. SECTION 6.09 - ADJUSTED
LEVERAGE RATIO As of the last day
of each fiscal
quarter, the
amount which is
not greater than
(a) 1.75 to 1.00
from the Closing
Date through and
including
February 28, 1998,
(b) 1.50 to 1.00
from May 31, 1998
through and
including
February 28, 1999,
(c) 1.25 to 1.00
from May 31, 1999
through and
including
February 28, 2000,
and (d) 1.00 to
1.00 thereafter.
Adjusted Leverage Ratio calculation
(A) Consolidated Funded Debt $________
PLUS Guarantee obligations ________
PLUS Indebtedness with respect
to synthetic leases and
securitized assets ________
PLUS Indebtedness in respect
of letters of credit (including
the Letters of Credit) ________
MINUS Permitted Subordinated
Indebtedness ________
TOTAL $________
(B) operating income $________
PLUS depreciation and
amortization charges ________
TOTAL $________
Ratio of (A) to (B) ________
2. SECTION 6.10 - MINIMUM
CONSOLIDATED TANGIBLE NET WORTH
A. Consolidated Tangible
Net Worth calculation: As of the last day
of each fiscal
quarter following
the Closing Date,
the amount that is
not less than the
sum of (without
duplication) 80%
of Consolidated
Tangible Net Worth
measured as of the
end of the fiscal
quarter ended
February 28, 1997,
PLUS 50% of
consolidated net
income (without
subtracting losses
or acquisition-
related charges)
for each fiscal
quarter ended
after the fiscal
quarter ended
February 28, 1997,
MINUS 100% of all
acquisition-
related charges if
such charges are
recorded in the
same fiscal
quarter in which
the applicable
acquisition is
consummated.
total shareholders' equity $________
MINUS intangible assets ________
Consolidated Tangible Net Worth $________
(B) Minimum Consolidated
Tangible Net Worth
calculation:
Beginning minimum amount ________
PLUS 50% of quarterly net
income for each fiscal quarter
subsequent to the quarter
ended February 28, 1997, with
no reduction for losses or
acquisition-related charges ________
MINUS 100% of all acquisition-
related charges if such
charges are recorded in the same
fiscal quarter in which the
applicable acquisition is
consummated ________
Minimum Consolidated
Tangible Net Worth $________
(A) minus (B) $________
<PAGE>
EXHIBIT C
FORM OF NOTICE OF BORROWING
Date: ______________
To: Bank of America National Trust and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Solectron Corporation (the "COMPANY"), in its
capacity as Borrowers' Agent, refers to the Credit Agreement, dated as
of April 30, 1997 (as extended, renewed, amended or restated from time
to time, the "CREDIT AGREEMENT"), among the Company, the "Additional
Borrowers" from time to time party thereto, the several financial
institutions from time to time party thereto (the "BANKS") and Bank of
America National Trust and Savings Association, as Agent (the "AGENT"),
the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.03 of the
Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________.
2. The aggregate amount of the proposed Borrowing is
$_____________________.
3. The Borrowing is to be comprised of $___________ of [ABR
Loans][CD Rate Loans][Eurocurrency Loans][Offshore Currency Loans].
[4. The duration of the Interest Period for the [Eurocurrency
Loans][CD Rate Loans][Offshore Currency Loans] included in the Borrowing
shall be [_____ months][______ days].]
5. The applicable Borrower is ______________.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the proposed
Borrowing, before and after giving effect thereto and to the application
of the proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article III of the Credit Agreement are true and correct as though
made on and as of such date, except to the extent such representations
and warranties expressly refer to an earlier date, in which case they
are true and correct as of such date, and except that this notice shall
be deemed instead to refer to the last day of the most recent year for
which financial statements have then been delivered in respect of the
representation and warranty made in Section 3.05 of the Credit
Agreement;
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing;
(c) there has occurred since February 28, 1997 no event or
circumstance that has resulted or could reasonably be expected to result
in a Material Adverse Effect; and
(d) after giving effect to the proposed Borrowing, (i) the
Effective Amount of all Revolving Loans PLUS the Effective Amount of all
L/C Obligations shall not exceed the Total Commitment, and (ii) the
Effective Amount of all Offshore Currency Loans shall not exceed the
Offshore Currency Commitment.
SOLECTRON CORPORATION, as
Borrowers' Agent
By:
Title:
<PAGE>
EXHIBIT D
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: ______________
To: Bank of America National Trust and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, Solectron Corporation (the "COMPANY"), in its
capacity as Borrowers' Agent, refers to the Credit Agreement, dated as
of April 30, 1997 (as extended, renewed, amended or restated from time
to time, the "CREDIT AGREEMENT"), among the Company, the "Additional
Borrowers" from time to time party thereto, the several financial
institutions from time to time party thereto (the "BANKS") and Bank of
America National Trust and Savings Association, as Agent (the "AGENT"),
the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.04 of the
Credit Agreement, of the [conversion] [continuation] of Loans specified
below:
1. The Conversion/Continuation Date is ______________.
2. The aggregate amount of the Loans to be [converted] [continued]
is $_______________.
3. The Loans are to be [converted into] [continued as]
[Eurocurrency Loans][CD Rate Loans] [ABR Loans].
[4. The duration of the Interest Period for the [Eurocurrency
Loans][CD Rate Loans] included in the [conversion] [continuation] shall
be [____ months][____ days].]
5. The applicable Borrower is ______________.
The undersigned hereby certifies that the following statement is
true on the date hereof, and will be true on the proposed
Conversion/Continuation Date:
After giving effect to the proposed [conversion] [continuation],
(i) the Effective Amount of all Revolving Loans PLUS the Effective
Amount of all L/C Obligations shall not exceed the Total Commitment, and
(ii) the Effective Amount of all Offshore Currency Loans shall not
exceed the Offshore Currency Commitment.
SOLECTRON CORPORATION, as
Borrowers' Agent
By:
Title:
<PAGE>
EXHIBIT E
FORM OF ADDITIONAL BORROWER NOTICE
To: Solectron Corporation, as Borrowers' Agent
The Banks party to the Credit
Agreement referred to below
Re: SOLECTRON CORPORATION
Ladies and Gentlemen:
This Additional Borrower Notice is made and delivered pursuant to
subsection 2.01(b) of the Credit Agreement, dated as of April 30, 1997
(as amended, modified, renewed or extended from time to time, the
"Credit Agreement"), among Solectron Corporation and each Additional
Borrower party to the Credit Agreement (each a "Borrower" and,
collectively, the "Borrowers"), the several financial institutions party
to the Credit Agreement (the "Banks") and Bank of America National Trust
and Savings Association, as Agent for the Banks, and reference is made
thereto for full particulars of the matters described herein. All
capitalized terms used in this Additional Borrower Notice and not
otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
The Agent hereby notifies the Borrowers' Agent and the Banks that
effective as of the date hereof [____________________] (the "Additional
Borrower") may request Revolving Loans and Letters of Credit denominated
in Offshore Currencies for its account on the terms and conditions set
forth in the Credit Agreement.
This Additional Borrower Notice shall constitute a Loan Document
under the Credit Agreement.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By:
Title:
<PAGE>
EXHIBIT F
FORM OF LEGAL OPINION OF COMPANY'S COUNSEL
See attached.
<PAGE>
May 1, 1997
Bank of America National Trust and Savings Association,
as Agent
Agency Management Services #5596
1455 Market Street, 12th Floor
San Francisco, California 94103
and the Banks party to the Credit Agreement described below
RE: CREDIT AGREEMENT DATED AS OF APRIL 30, 1997 BY AND AMONG SOLECTRON
CORPORATION, THE BANKS NAMED THEREIN, AND BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, IN ITS CAPACITY AS AGENT
Gentlemen:
We have acted as counsel to Solectron Corporation, a Delaware
corporation (the "Company"), in connection with the negotiation of the
Credit Agreement, dated as of April 30, 1997 (the "Credit Agreement") by
and among the Company, the Banks named therein, and Bank of America
National Trust and Savings Association, not in its individual capacity,
but solely in its capacity as Agent (the "Agent"), pursuant to which the
Banks have agreed to lend up to $100,000,000 to the Company. This
opinion is delivered to you pursuant to Section 4.01(b) of the Credit
Agreement. Capitalized terms used herein and not defined shall have the
meanings provided in the Credit Agreement.
In rendering the opinions expressed below, we have examined executed
originals or copies of the following documents:
(a) the Credit Agreement;
(b) the Certificate of Incorporation of the Company;
(c) the Bylaws of the Company;
(d) records of proceedings of the Board of Directors of the Company
during or by which resolutions were adopted relating to matters covered
by this opinion;
(e) a Certificate of the Secretary of the Company, dated as of the
date hereof, as to, among other things: (i) the incumbency and signature
of certain officers of the Company; (ii) the Certificate of
Incorporation of the Company; (iii) the Bylaws of the Company; and
(iv) the adoption of certain resolutions by the directors of the
Company;
(f) (i) a certificate of the Secretary of State of the State of
Delaware with respect to the standing of the Company as a corporation
incorporated under the laws of the State of Delaware, (ii) a Certificate
of the Secretary of State of the State of California with respect to the
standing of Borrower as a foreign corporation qualified to do business
in the State of California; and (iii) a tax status certificate from the
Franchise Tax Board of the State of California;
(g) the certificate of certain officers of the Company as to certain
factual matters;
(h) each of the documents listed on ANNEX A hereto (the "Reviewed
Agreements").
In addition, we have examined and relied upon such corporate records of
the Company as we have deemed necessary or appropriate for purposes of
the opinions expressed below. We have also relied upon and obtained
from public officials and officers of the Company such other
certificates and assurances as we consider necessary for the rendering
of this opinion.
With your permission and without any verification by us, we have assumed
the following for purposes of rendering the opinions set forth herein:
(i) The genuineness of all signatures, the legal capacity of
all natural persons to execute and deliver documents, the authenticity
and completeness of documents submitted to us as originals and the
completeness and conformity with authentic original documents of all
documents submitted to us as copies, and that all documents, books and
records made available to us by the Company are accurate and complete.
(ii) That there are no agreements or understandings between or
among the Company, the Agent or the Banks or third parties which would
expand, modify or otherwise affect the terms of the Credit Agreement or
the respective rights or obligations of the parties thereunder and that
the Credit Agreement correctly and completely sets forth the intent of
all parties thereto.
(iii) That all parties to the Credit Agreement (other than the
Company) have filed all required franchise tax returns, if any, and paid
all required taxes, if any, under the California Revenue & Taxation
Code.
(iv) That the Credit Agreement has been duly authorized, executed
and delivered by each of the Agent and the Banks to the extent each such
party is contemplated to be a party thereto and that each of the Agent
and the Banks has full power, authority and legal right to enter into
and perform the terms and conditions of the Credit Agreement to be
performed by such person, and that the Credit Agreement constitutes a
legal, valid and binding obligation of each such person, enforceable
against it in accordance with its terms.
(v) That each Lender is either (i) a "Bank" as defined in and
operating under that certain act known as the "Bank Act" approved March
1, 1909, as amended, (ii) a bank created and operating under and
pursuant to the laws of the State of California or of the United States
or (iii) a foreign bank complying with the criteria set forth in Section
1716 of the California Financial Code, as amended, and that the Banks
are therefore exempt from the restrictions of Section 1 of Article XV of
the California Constitution and related statutes relating to usury.
(vi) With respect to certain matters of fact, that the
representations and warranties of the Company set forth in the Credit
Agreement, the certificates of certain officers of the Company delivered
to you in connection with the transactions contemplated by the Credit
Agreement and the certificate of certain officers of the Company
referred to in paragraph (g) above are true, correct and complete.
As used in this opinion, the expression "to our knowledge" or "known to
us" with reference to matters of fact means that during the course of
our representation of the Company in connection with the Credit
Agreement, no information has come to the attention of the attorneys of
our firm involved in this engagement which would give them actual
knowledge of the existence or absence of such facts; provided, however,
we have made no independent investigation to determine the existence or
absence of such facts, and any limited inquiry undertaken by us during
the preparation of this opinion should not be regarded as such an
investigation. We note that for purposes of paragraph 7 below only,
attorneys of the firm involved in the engagement have made inquiry of
Larry W. Sonsini and Steven E. Bochner as to their knowledge of
proceedings against the Company in which this firm is currently
providing legal representation. No inference as to our knowledge of the
existence or absence of any facts underlying any opinion given "to our
knowledge" should be drawn from the fact of our representation of the
Company. Specifically, in rendering the opinion set forth in
paragraph 5 below, we have not made any independent investigation of
court records to determine whether any actions have been filed.
On the basis of the foregoing and in reliance thereon, and based upon
examination of such questions of law as we have deemed appropriate, and
subject to the assumptions, exceptions, qualifications, and limitations
set forth herein, we advise you that in our opinion:
1. The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and
is duly qualified to do business and is in good standing in the state of
California..
2. The Company has the requisite corporate power and authority to
enter into the Credit Agreement and to carry out the transactions
contemplated thereby.
3. The execution and delivery by the Company of the Credit
Agreement, and the performance by the Company of its obligations under
the Credit Agreement, have been duly authorized by all necessary
corporate action on the part of the Company.
4. The Credit Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms.
5. The execution and delivery of the Credit Agreement, the
undertaking of the covenants set forth in the Credit Agreement and the
borrowing of Loans in accordance with the Credit Agreement and repayment
of any Loans by the Company do not (a) conflict with or violate the
Bylaws or Certificate of Incorporation of the Company; (b) violate or
contravene any United States federal or California state law, statute,
rule or regulation applicable to the Company; (c) to our knowledge,
violate or contravene any order, writ, judgment, decree, determination
or award of any United States federal or California state governmental
authority applicable to the Company; or (d) to our knowledge after
reviewing the Reviewed Agreements, violate or result in a breach of or
constitute any default under any Reviewed Agreement, or, to our
knowledge, result in or require the creation or imposition of any lien
on any of its properties or revenues pursuant to any provision of any
United States federal or California state law, rule or regulation or any
such contractual obligation.
6. No consents, approvals, authorizations, registrations,
declarations or filings are required to be made or obtained by or in
respect of the Company (or on its behalf) with or from any governmental
or regulatory authority or agency of the United States or the State of
California for the due authorization, execution and delivery by the
Company of the Credit Agreement, the undertaking of the covenants set
forth in the Credit Agreement, the borrowing of Loans in accordance with
the Credit Agreement or the repayment of any such Loans by the Company.
7. Except as disclosed in Schedule 3.06 to the Credit Agreement, to
our knowledge, there are no actions or proceedings against the Company
pending or overtly threatened in writing before any court, governmental
agency or arbitrator which (a) seek to challenge the enforceability of
the Credit Agreement, or (b) we believe are reasonably likely to have a
material adverse effect on the ability of the Company to perform its
obligations under the Credit Agreement.
8. Neither the Company nor any domestic Subsidiary, is an
"Investment Company" within the meaning of the Investment Company Act of
1940.
Our opinions above are subject to the following qualifications:
A. We express no opinion as to any matter relating to laws of any
jurisdiction other than the laws of the State of California, the General
Corporation Law of the State of Delaware and the federal laws of the
United States, as such are in effect on the date hereof, and we have
made no inquiry into, and we express no opinion as to, the statutes,
regulations, treaties, common laws or other laws of any other nation,
state or jurisdiction. As you know, we are not licensed to practice law
in the State of Delaware and, accordingly, our opinions as to Delaware
General Corporation Law are based solely on a review of the official
statutes of the State of Delaware.
B. We express no opinion as to (i) the effect of any bankruptcy,
insolvency, reorganization, arrangement, fraudulent conveyance, mora-
torium or other laws relating to or affecting the rights of creditors
generally, or (ii) the effect of general principles of equity, including
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, and the possible unavailability of specific
performance, injunctive relief or other equitable relief, whether
considered in a proceeding in equity or at law.
C. We express no opinion regarding any of (i) the rights or remedies
available to any party for violations or breaches of any provisions
which are immaterial or the enforcement of which would be unreasonable
under the then existing circumstances, (ii) the rights or remedies
available to any party for material violations or breaches which are the
proximate result of actions taken by any party to the Credit Agreement
other than the party against whom enforcement is sought, which actions
such other party is not entitled to take pursuant to the Credit
Agreement or which otherwise violate applicable laws, (iii) the rights
or remedies available to any party which takes discretionary action
which is arbitrary, unreasonable or capricious, or is not taken in good
faith or in a commercially reasonable manner, whether or not the Credit
Agreement permits such action, (iv) the effect of the exercise of
judicial discretion, whether in a proceeding in equity or at law,
(v) the enforceability of any provision deemed to be "unconscionable"
within the meaning of Section 1670.5 of the California Civil Code,
(vi) the enforceability of any provision authorizing the exercise of any
remedy without reasonable notice and opportunity to cure, or (vii) the
effect of any provision of the Credit Agreement purporting to give the
Agent or the Banks the right to make any conclusive determination in its
sole discretion.
D. We express no opinion as to the legality, validity, binding
nature or enforceability of (i) any provisions in the Credit Agreement
providing for the payment or reimbursement of costs or expenses or
indemnifying a party, to the extent such provisions may be held
unenforceable as contrary to public policy, (ii) any provision of the
Credit Agreement insofar as it provides for the payment or reimbursement
of costs and expenses or indemnification for claims, losses or
liabilities in excess of a reasonable amount determined by any court or
other tribunal, (iii) any provisions regarding a party's ability to
collect attorneys' fees and costs in an action involving the Credit
Agreement, if the party is not the prevailing party in such action (and
we call your attention to the effect of Section 1717 of the California
Civil Code, which provides that, where a contract permits one party
thereto to recover attorneys' fees, the prevailing party in any action
to enforce any provision of the contract shall be entitled to recover
its reasonable attorneys' fees), (iv) any provisions of the Credit
Agreement imposing penalties or forfeitures, late payment charges or any
increase in interest rate, upon delinquency in payment or the occurrence
of a default to the extent they constitute a penalty or forfeiture or
are otherwise contrary to public policy, (v) any rights of set-off,
(vi) any provision of the Credit Agreement to the effect that a
statement, certificate, determination or record shall be deemed
conclusive absent manifest error (or similar effect), including, without
limitation, that any such statement, certificate, determination or
record shall be prima facie evidence of a fact, or (vii) any provision
of the Credit Agreement which provides that notice not actually received
may be binding on any party.
E. We express no opinion with respect to the legality, validity,
binding nature or enforceability of (i) any vaguely or broadly stated
waiver, including without limitation, the waivers of diligence,
presentment, demand, protest or notice, or (ii) any waivers or consents
(whether or not characterized as a waiver or consent in the Credit
Agreement) relating to the rights of the Company or duties owing to it
existing as a matter of law, including, without limitation, waivers of
the benefits of statutory or constitutional provisions, to the extent
such waivers or consents are found by courts to be against public policy
or which are ineffective pursuant to California statutes and judicial
decisions.
F. We express no opinion with respect to the legality, validity,
binding nature or enforceability of any provision of the Credit
Agreement to the effect that rights or remedies are not exclusive, that
every right or remedy is cumulative and may be exercised in addition to
any other right or remedy, that the election of some particular remedy
or remedies does not preclude recourse to one or more other remedies or
that failure to exercise or delay in exercising rights or remedies will
not operate as a waiver of any such right or remedy.
G. We express no opinion as to any provision of the Credit Agreement
requiring written amendments or waivers of such documents insofar as it
suggests that oral or other modifications, amendments or waivers could
not be effectively agreed upon by the parties or that the doctrine of
promissory estoppel might not apply.
H. We express no opinion as to the applicability or effect of
compliance or non-compliance by the Agent or the Banks with any state,
federal or other laws applicable to the Agent or the Banks or to the
transactions contemplated by the Credit Agreement because of the nature
of its business, including its legal or regulatory status.
I. Our opinions set forth in paragraph 1 as to due incorporation,
valid existence and good standing are based solely on the certificates
referenced in paragraph (f) above (originals or copies of which have
been furnished to you).
J. Our opinion set forth in paragraph 3 as to the due execution of
the Credit Agreement by the Company is based solely on representations
made to us by the Company in the certificate referenced in paragraph (g)
above.
K. We express no opinion as to the enforceability or legal effect of
any provision of the Credit Agreement purporting to reinstate, as
against any obligor or guarantor, obligations or liabilities of such
obligor which have been avoided or which have arisen from transactions
which have been rescinded or the payment of which has been required to
be returned by any court of competent jurisdiction.
L. Our opinion in clauses (b) and (c) of paragraph 5 above is
intended to express our opinion that the execution, delivery and
performance by the Company of the Credit Agreement are neither
prohibited by, nor do they subject The Company to a fine, penalty or
similar sanction under or any law, rule, regulation of the State of
California or United States federal law or any order, writ, judgment,
decree, determination or award of any United States federal or
California state governmental authority that a lawyer practicing in the
State of California exercising customary professional diligence would
reasonably recognize to be applicable to the Company and the
transactions contemplated by the Credit Agreement; accordingly, our
opinions set forth above are limited to the foregoing.
M. This opinion speaks only at and as of its date and is based
solely on the facts and circumstances known to us at and as of such
date. We express no opinion as to the effect on Agent's or any Bank's
rights under the Credit Agreement of any statute, rule, regulation or
other law which is enacted or becomes effective after, or of any court
decision which changes the law relevant to such rights which is rendered
after, the date of this opinion or the conduct of the parties following
the closing of the contemplated transaction. In addition, in rendering
this opinion, we assume no obligation to revise or supplement this
opinion should the present laws of the jurisdictions mentioned herein be
changed by legislative action, judicial decision or otherwise.
This opinion is made with the knowledge and understanding that you (but
no other person) may rely thereon in entering into the Credit Agreement
and is solely for your benefit, and this opinion may not be disclosed to
or relied upon by any person other than you, except that (i) this
opinion may be disclosed to (A) bank regulatory and other governmental
authorities having jurisdiction over you requesting (or requiring) such
disclosure, and (B) prospective Eligible Assignees in connection with
the potential transfer of all or part of the Loans or Commitments of any
Bank, and (ii) this opinion may be relied upon by Eligible Assignees in
the Loans if the assignments relating thereto are permitted under and
made in accordance with the Credit Agreement; PROVIDED that in no event
does this opinion extend to any issue or matter related to any such
assignment or arising from or out of any such assignment (as distinct
from the subject transaction).
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
<PAGE>
EXHIBIT G
FORM OF ADDITIONAL BORROWER REQUEST AND
ASSUMPTION AGREEMENT
To: Bank of America National Trust and
Savings Association, as Agent
Re: SOLECTRON CORPORATION
Ladies and Gentlemen:
This Additional Borrower Request and Assumption Agreement is made
and delivered pursuant to Section 5.09 of the Credit Agreement, dated as
of April 30, 1997 (as amended, modified, renewed or extended from time
to time, the "Credit Agreement"), among Solectron Corporation (the
"Company") and each Additional Borrower party to the Credit Agreement
(each a "Borrower" and, collectively, the "Borrowers"), the several
financial institutions party to the Credit Agreement (the "Banks") and
Bank of America National Trust and Savings Association, as Agent for the
Banks, and reference is made thereto for full particulars of the matters
described herein. All capitalized terms used in this Additional
Borrower Request and Assumption Agreement and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
Each of ______________________ (the "Additional Borrower") and the
Borrowers' Agent hereby confirms, represents and warrants to the Agent
and the Banks that the Additional Borrower is a Subsidiary of the
Company.
The documents required to be delivered to the Agent under subsec-
tions 2.01(b) and 5.09(b) of the Credit Agreement will be furnished to
the Agent in accordance with the requirements of the Credit Agreement.
The parties hereto hereby confirm that with effect from the date
hereof, the Additional Borrower shall have obligations, duties and
liabilities towards each of the other parties to the Credit Agreement
identical to those which the Additional Borrower would have had if the
Additional Borrower had been an original party to the Credit Agreement
as a Borrower. The Additional Borrower confirms its acceptance of, and
consents to, all representations and warranties, covenants, and other
terms and provisions of the Credit Agreement.
The parties hereto hereby request that the Additional Borrower be
entitled to request Revolving Loans and Letters of Credit, in each case
denominated in Offshore Currencies, under the Credit Agreement, and
understand, acknowledge and agree that neither the Additional Borrower
nor the Borrowers' Agent on its behalf shall have any rights to request
any Loans or to have any Letters of Credit issued for its account unless
and until the effective date designated by the Agent in an Additional
Borrower Notice delivered to the Borrowers' Agent and the Banks pursuant
to subsection 2.01(b) of the Credit Agreement.
This Additional Borrower Request and Assumption Agreement shall
constitute a Loan Document under the Credit Agreement.
THIS ADDITIONAL BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA; PROVIDED THAT THE AGENT, THE ISSUING BANK AND THE BANKS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
IN WITNESS WHEREOF, the parties hereto have caused this Additional
Borrower Request and Assumption Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and
year first above written.
[______________________]*
By:
Title:
SOLECTRON CORPORATION, as
Borrowers' Agent
By:
Title:
* Insert name of Additional Borrower
<PAGE>
EXHIBIT H
ADDITIONAL BORROWERS: SEE SCHEDULE 1
GUARANTOR: Solectron Corporation
FORM OF CONTINUING GUARANTY (MULTICURRENCY)
To: Bank of America National Trust
and Savings Association, as Agent
II. Definitions
A. "Agent" means Bank of America National Trust and Savings
Association, in its capacity as agent for the "Banks" from time to time
party to the Credit Agreement dated as of April 30, 1997, among
Solectron Corporation, the "Additional Borrowers" party thereto, the
Banks, and the Agent.
B. "Additional Borrowers" means those subsidiaries of Guarantors set
forth in SCHEDULE 1 hereto, as such schedule may be supplemented or
amended in writing by Guarantors and agreed to by Agent.
C. "Guarantors" means the persons or entities signing this Guaranty
as Guarantors.
D. "Indebtedness" means any and all indebtedness of Additional
Borrowers under the Credit Agreement or any Loan Document, including but
not limited to any and all Borrowings in Offshore Currencies, Letters of
Credit, advances, debts, obligations, and liabilities of Additional
Borrowers or any one or more of them, heretofore, now, or hereafter
made, incurred or created, whether voluntary or involuntary and however
arising, whether direct or acquired by any Bank by assignment or
succession, whether due or not due, absolute or contingent, liquidated
or unliquidated, determined or undetermined, and whether Additional
Borrowers may be liable individually or jointly with others, or whether
recovery upon such indebtedness may be or hereafter become barred by any
statute of limitations, or whether such indebtedness may be or hereafter
become otherwise unenforceable.
E. "Judgment Currency" means the currency in which any judgment on
any claim arising under or related to this Guaranty is denominated.
F. "Obligation Currencies" means the currencies in which the
Indebtedness is denominated.
G. The "U.S. Dollar Equivalent" of any amount denominated in any
currency other than U.S. Dollars shall be calculated at the spot rate
for the purchase of the other currency with U.S. Dollars quoted by Agent
in San Francisco, California, at approximately 8:00 a.m. on the date for
determination specified in this Guaranty.
III. For valuable consideration, Guarantors jointly and severally
unconditionally guarantee and promise to pay to Agent for the benefit of
the Banks or order, on demand, at the place for payment of the
Indebtedness or at such other location as Agent may designate:
A. any and all Indebtedness of Additional Borrowers, in the
Obligation Currencies, or
B. if Agent so notifies Guarantors in writing, at Agent's sole and
absolute discretion, the greater of: (i) the U.S. Dollar Equivalent of
the Indebtedness or any portion thereof, determined as of the date or
dates the Indebtedness was loaned to or incurred by Additional
Borrowers, or (ii) such U.S. Dollar Equivalent determined as of the date
payment is made.
IV. (a) The liability of Guarantors under this Guaranty (exclusive of
liability under any other guaranties executed by Guarantors) shall not
exceed at any time the total of (i) ____________ U.S. Dollars (U.S.
$__________) for the sum of the principal amount of any Indebtedness
denominated in U.S. Dollars and the U.S. Dollar Equivalent of the
principal amount of any Indebtedness denominated in an Obligation
Currency other than U.S. Dollars, determined as of the date or dates
such principal amount was loaned to or incurred by Additional Borrowers,
and (ii) all interest, fees, costs, expenses, payments, and indemnities
relating to or arising out of this Guaranty or the Indebtedness or such
part of the Indebtedness as shall not exceed the foregoing limitation.
A. Agent may permit the Indebtedness to exceed Guarantors'
liability, and may apply any amounts received from any source, other
than from Guarantors, to the unguaranteed portion of the Indebtedness.
This is a continuing guaranty relating to any Indebtedness, including
that arising under successive transactions which shall either continue
the Indebtedness or from time to time renew it after it has been
satisfied.
B. Any payment by Guarantors shall reduce their maximum obligation
hereunder only to the extent that any payment constitutes a payment of
principal, and only if written notice to the effect that the amount of
principal paid reduces Guarantors' maximum obligation hereunder is
actually received by Agent at or prior to the time of such payment. If
such principal payment is made in a currency other than U.S. Dollars,
the amount of any reduction of Guarantors' maximum obligation hereunder
shall be the lesser of: (i) the U.S. Dollar Equivalent of such
principal payment determined as of the date or dates the principal
Indebtedness being paid was loaned to or incurred by Additional
Borrowers, or (ii) such U.S. Dollar Equivalent as of the date such
principal payment is made.
C. The entry of any judgment against Guarantors of their obligations
hereunder shall reduce their maximum obligation hereunder in an amount
equal to the sum of the portion of the amount of such judgment
representing principal amounts of Indebtedness denominated in U.S.
Dollars, and the lesser of: (i) the U.S. Dollar Equivalent of each
principal amount of Indebtedness denominated in an Obligation Currency
other than U.S. Dollars included in such judgment, determined as of the
date or dates such amount was loaned to or incurred by Additional
Borrowers, or (ii) such U.S. Dollar Equivalent determined as of the date
of entry of such judgment.
V. Intentionally Omitted.
VI. (a) If any claim arising under or related to this Guaranty is
reduced to a judgment denominated in a Judgment Currency other than the
Obligation Currency, the judgment shall be for the greater of (i) the
equivalent in the Judgment Currency of the amount of the claim
denominated in the Obligation Currency (or each Obligation Currency, if
more than one) included in the judgment, determined as of the date or
dates the Indebtedness related to such claim was loaned to or incurred
by Additional Borrowers, or (ii) such equivalent determined as of the
date of entry of such judgment. The equivalent of any Obligation
Currency amount in any Judgment Currency shall be calculated at the spot
rate for the purchase of the Obligation Currency with the Judgment
Currency quoted by Agent in San Francisco, California, at approximately
8:00 a.m. on the date for determination specified above.
A. Guarantors shall indemnify Agent and each Bank against and hold
Agent and each Bank harmless from all loss and damage resulting from any
change in exchange rates between the date any claim is reduced to
judgment and the date of payment (or, in the case of partial payments,
the date of each partial payment) thereof by Guarantors. This indemnity
shall constitute an obligation separate and independent from the other
obligations contained in this Guaranty, shall give rise to a separate
and independent cause of action, shall apply irrespective of any
indulgence granted by Agent from time to time, and shall continue in
full force and effect notwithstanding any judgment or order for a
liquidated sum in respect of an amount due hereunder or under any
judgment or order.
VII. (a) Guarantors represent and warrant that all payments under or in
respect of this Guaranty are exempt from tax other than taxes on net
income imposed by the country or any subdivision of the country in which
any Bank's principal office or actual lending office is located.
A. (i) If any taxes (other than taxes on net income (A) imposed by
the country or any subdivision of the country in which any Bank's
principal office or actual lending office is located and (B) measured by
the United States taxable income such Bank would have received if all
payments under or in respect of this Guaranty were exempt from taxes
levied by Guarantors' country) are at any time imposed on any payments
under or in respect of this Guaranty including, but not limited to,
payments made pursuant to this paragraph, Guarantors shall pay all such
taxes and shall also pay to such Bank, on demand, all additional amounts
which such Bank specifies as necessary to preserve the after-tax yield
such Bank would have received if such taxes had not been imposed.
1. The additional amounts necessary to preserve the after-tax
yield such Bank would have received if such taxes had not been imposed
shall be calculated pursuant to the formula:
(w)(t)(i)
y = -------------
1-w-t
where the terms are defined as follows:
y = additional payment to be made to Bank
w = withholding tax rate levied by foreign government
t = Bank's combined Federal and state tax rate
i - stated interest to be paid on Indebtedness
(base rate plus quoted spread)
1 = one
B. Guarantors will provide Agent with original tax receipts,
notarized copies of tax receipts, or such other documentation as will
prove payment of tax in a court of law applying the United States
Federal Rules of Evidence, for all taxes paid by Guarantors pursuant to
subparagraph (b) above Guarantors will deliver receipts to Agent within
30 days after the due date for the related tax.
VIII. The obligations hereunder are joint and several, and independent
of the obligations of Additional Borrowers, and shall not be affected by
any acts of any governmental authority affecting Additional Borrowers,
including but not limited to any restrictions on the conversion of
currency or repatriation or control of funds or any total or partial
expropriation of Additional Borrowers' property, or by economic,
political, regulatory, or other events in the countries where Additional
Borrowers are located. A separate action or actions may be brought and
prosecuted against Guarantors whether action is brought against
Additional Borrowers or whether Additional Borrowers be joined in any
such action or actions; and Guarantors waive the benefit of any statute
of limitations affecting their liability hereunder.
IX. Guarantors authorize Agent and each Bank, without notice or demand
and without affecting their liability hereunder, from time to time,
either before or after revocation hereof, to (a) renew, compromise,
extend, accelerate, or otherwise change the time for payment of, or
otherwise change the terms of the Indebtedness or any part thereof,
including increase or decrease of the rate of interest thereon; (b)
receive and hold security for the payment of this Guaranty or any of the
Indebtedness, and exchange, enforce, waive, release, fail to perfect,
sell, or otherwise dispose of any such security; (c) apply such security
and direct the order or manner of sale thereof as Agent in its
discretion may determine; and (d) release or substitute any one or more
of the endorsers or guarantors.
X. Guarantors waive any right to require Agent to (a) proceed against
Additional Borrowers; (b) proceed against or exhaust any security held
from Additional Borrowers; or (c) pursue any other remedy in Agent's
power whatsoever. Guarantors waive any defense arising by reason of any
disability or other defense of Additional Borrowers, or the cessation
from any cause whatsoever of the liability of Additional Borrowers, or
any claim that Guarantors' obligations exceed or are more burdensome
than those of Additional Borrowers. Until the Indebtedness shall have
been paid in full, even though the Indebtedness is in excess of
Guarantors' liability hereunder, Guarantors waive any right of
subrogation, reimbursement, indemnification, and contribution
(contractual, statutory, or otherwise) including, without limitation,
any claim or right of subrogation under the Bankruptcy Code (Title 11,
United States Code) or any successor statute, arising from the existence
or performance of this Guaranty, and Guarantors waive any right to
enforce any remedy which Agent now has or may hereafter have against
Additional Borrowers and waive any benefit of, and any right to
participate in, any security now or hereafter held by Agent. Guarantors
waive all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation,
or incurring of new or additional Indebtedness.
XI. (a) Guarantors understand and acknowledge that if Agent
forecloses, either by judicial foreclosure or by exercise of power of
sale, any deed of trust securing the Indebtedness, that foreclosure
could impair or destroy any ability that Guarantors may have to seek
reimbursement, contribution, or indemnification from Additional
Borrowers or others based on any right Guarantors may have of
subrogation, reimbursement, contribution, or indemnification for any
amounts paid by Guarantors under this Guaranty. Guarantors further
understand and acknowledge that in the absence of this paragraph, such
potential impairment or destruction of Guarantors' rights, if any, may
entitle Guarantors to assert a defense to this Guaranty based on Section
580d of the California Code of Civil Procedure as interpreted in UNION
AGENT V. GRADSKY, 265 Cal. App. 2d. 40 (1968). By executing this
Guaranty, Guarantors freely, irrevocably, and unconditionally:
(i) waive and relinquish that defense and agree that Guarantors will be
fully liable under this Guaranty even though Agent may foreclose, either
by judicial foreclosure or by exercise of power of sale, any deed of
trust securing the Indebtedness; (ii) agree that Guarantors will not
assert that defense in any action or proceeding which Agent may commence
to enforce this Guaranty; (iii) acknowledge and agree that the rights
and defenses waived by Guarantors in this Guaranty include any right or
defense that Guarantors may have or be entitled to assert based upon or
arising out of any one or more of Sections 580a, 580b, 580d, or 726 of
the California Code of Civil Procedure or Section 2848 of the California
Civil Code; and (iv) acknowledge and agree that Agent is relying on this
waiver in creating the Indebtedness, and that this waiver is a material
part of the consideration which Agent is receiving for creating the
Indebtedness.
A. Guarantors waive any rights and defenses that are or may become
available to Guarantors by reason of Sections 1432 to 3433, inclusive,
of the California Civil Code.
B. Guarantors waive all rights and defenses that Guarantors may have
because any of the Indebtedness is secured by real property. This
means, among other things: (i) Agent may collect from Guarantors
without first foreclosing on any real or personal property collateral
pledged by Additional Borrowers; and (ii) if Agent forecloses on any
real property collateral pledged by Additional Borrowers: (1) the
amount of the Indebtedness may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the collateral
is worth more than the sale price, and (2) Agent may collect from
Guarantors even if Agent, by foreclosing on the real property
collateral, has destroyed any right Guarantors may have to collect from
Additional Borrowers. This is an unconditional and irrevocable waiver
of any rights and defenses Guarantors may have because any of the
Indebtedness is secured by real property. These rights and defenses
include, but are not limited to, any rights or defenses based upon
Section 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure.
C. Guarantors waive any right or defense they may have at law or
equity, including California Code of Civil Procedure Section 580a, to a
fair market value hearing or action to determine a deficiency judgment
after a foreclosure.
D. No provision or waiver in this Guaranty shall be construed as
limiting the generality of any other waiver contained in this Guaranty.
XII. Guarantors acknowledge and agree that they shall have the sole
responsibility for obtaining from Additional Borrowers such information
concerning Additional Borrowers' financial conditions or business
operations as Guarantors may require, and that Agent has no duty at any
time to disclose to Guarantors any information relating to the business
operations or financial conditions of Additional Borrowers.
XIII. To secure all of Guarantors' obligations hereunder, Guarantors
assign and grant to Agent a security interest in all moneys, securities,
and other property of Guarantors now or hereafter in the possession of
Agent, all deposit accounts of Guarantors maintained with Agent, and all
proceeds thereof. Upon default or breach of any of Guarantors'
obligations to Agent, Agent may apply any deposit account to reduce the
Indebtedness, and may foreclose any collateral as provided in the
Uniform Commercial Code and in any security agreements between Agent and
Guarantors.
XIV. Any obligations of Additional Borrowers to Guarantors, now or
hereafter existing, including but not limited to any obligations to
Guarantors as subrogees of Agent or resulting from Guarantors'
performance under this Guaranty, are hereby subordinated to the
Indebtedness. Such obligations of Additional Borrowers to Guarantors if
Agent so requests shall be enforced and performance received by
Guarantors as trustees for Agent, and the proceeds thereof shall be paid
over to Agent on account of the Indebtedness, but without reducing or
affecting in any manner the liability or Guarantors under the other
provisions of this Guaranty.
XV. This Guaranty may be revoked at any time by Guarantors in respect
to future transactions, unless there is a continuing consideration as to
such transactions which Guarantors do not renounce. Such revocation
shall be effective upon actual receipt by Agent, at the address shown
below or at such other address as may have been provided to Guarantors
by Agent, of written notice of revocation. Revocation shall not affect
any of Guarantors' obligations or Agent's rights with respect to
transactions which precede Agent's receipt of such notice, regardless of
whether or not the Indebtedness related to such transactions, before or
after revocation, has been renewed, compromised, extended, accelerated,
or otherwise changed as to any of its terms, including time for payment
or increase or decrease of the rate of interest thereon, and regardless
of any other act or omission of Agent authorized hereunder. Revocation
by any one or more of Guarantors shall not affect any obligations of any
nonrevoking Guarantors. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in
property by Additional Borrowers to Agent is rescinded or must be
returned by Agent to Additional Borrowers, this Guaranty shall be
reinstated with respect to any such payment or transfer, regardless of
any such prior revocation, return, or cancellation.
XVI. Where any one or more of Additional Borrowers are corporations,
partnerships, or limited liability companies, it is not necessary for
Agent to inquire into the powers of Additional Borrowers or of the
officers, directors, partners, members, managers, or agents acting or
purporting to act on their behalf, and any Indebtedness made or created
in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
XVII. Guarantors authorize Agent to verity or check any information
given by Guarantors to Agent, check Guarantors' credit references,
verify employment, and obtain credit reports (including any individual
general partner of any Guarantor and including any Guarantor's spouse
and any such general partner's spouse if such Guarantor or such general
partner is married and lives in a community property state).
XVIII. Agent may, without notice to Guarantors and without affecting
Guarantors' obligations hereunder, assign the Indebtedness and this
Guaranty, in whole or in part. Guarantors agree that Agent may disclose
to any assignee or purchaser, or any prospective assignee or purchaser,
of all or part of the Indebtedness any and all information in Agent's
possession concerning Guarantors, this Guaranty, and any security for
this Guaranty.
XIX. Guarantors agree to pay all reasonable attorneys' fees, including
allocated costs of Agent's in-house counsel, and all other costs and
expenses which may be incurred by Agent (a) in the enforcement of this
Guaranty or (b) in the preservation, protection, or enforcement of any
rights of Agent in any case commenced by or against Guarantors under the
Bankruptcy Code (Title 11, United States Code) or any similar or
successor statute.
XX. Where there is but a single Borrower, or where a single Guarantor
executes this Guaranty, then all words used herein in the plural shall
be deemed to have been used in the singular where the context and
construction so require; and when there is more than one Borrower named
herein, or when this Guaranty is executed by more than one Guarantor,
the words "Additional Borrowers" and "Guarantors" respectively shall
mean all and any one or more of them.
XXI. This Guaranty shall be governed by and construed according to the
laws of the State of California, United States of America, to the
jurisdiction of which State the parties hereto submit.
XXII. (a) Any controversy or claim between or among the parties,
including but not limited to those arising out of or relating to this
Guaranty or any agreements or instruments relating hereto or delivered
in connection herewith and any claim based on or arising from an alleged
tort, shall at the request of any party be determined by arbitration.
The arbitration shall be conducted in accordance with the United States
Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Guaranty, and under the Commercial Rules of the
American Arbitration Association ("AAA"). The arbitrators shall give
effect to statutes of limitation in determining any claim, except as
expressly waived hereunder by Guarantors. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrators.
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff,
to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
A. Notwithstanding the provisions of subparagraph (a), no
controversy or claim shall be submitted to arbitration without the
consent of all parties if, at the time of the proposed submission, such
controversy or claim arises from or relates to an obligation to Agent
which is secured by real property collateral located in California. If
all parties do not consent to submission of such a controversy or claim
to arbitration, the controversy or claim shall be determined as provided
in subparagraph (c).
B. A controversy or claim which is not submitted to arbitration as
provided and limited in subparagraphs (a) and (b) shall, at the request
of any party, be determined by a reference in accordance with California
Code of Civil Procedure Sections 638 ET SEQ. If such an election is
made, the parties shall designate to the court a referee or referees
selected under the auspices of the AAA in the same manner as arbitrators
are selected in AAA-sponsored proceedings. The presiding referee of the
panel, or the referee if there is a single referee, shall be an active
attorney or retired judge. Judgment upon the award rendered by such
referee or referees shall be entered in the court in which such
proceeding was commenced in accordance with California Code of Civil
Procedure Sections 644 and 645.
C. No provision of this paragraph shall limit the right of any party
to this Guaranty to exercise self-help remedies such as setoff, to
foreclose against or sell any real or personal property collateral or
security, or to obtain provisional or ancillary remedies from a court of
competent jurisdiction before, after, or during the pendency of any
arbitration or other proceeding. The exercise of a remedy does not
waive the right of either party to resort to arbitration or reference.
At Agent's option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of trust
or mortgage or by judicial foreclosure.
Executed this _____ day of ______________, 19___.
Witnessed
______________________________ ________________________
Witness
______________________________ ________________________
Address Print Name
________________________
Address
______________________________
Witness
______________________________ ________________________
Address Print Name
________________________
Address
Address for notices to Agent: Address for notices to Guarantors:
______________________________ ________________________
______________________________ ________________________
______________________________ ________________________
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Schedule 1
ADDITIONAL BORROWERS
*Insert name of Additional Borrower