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REVOLVING CREDIT AGREEMENT
Dated as of May 14, 1996
among
MICRON TECHNOLOGY, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BA SECURITIES, INC.
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REVOLVING CREDIT AGREEMENT
--------------------------
This REVOLVING CREDIT AGREEMENT is entered into as of May
14, 1996, among Micron Technology, Inc. a Delaware corporation
(the "Company"), the several financial institutions from time to
time party to this Agreement (collectively, the "Banks";
individually, a "Bank"), and Bank of America National Trust and
Savings Association, as agent for the Banks.
WHEREAS, the Banks have agreed to make available to the
Company a revolving credit facility upon the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I - DEFINITIONS AND RELATED MATTERS
-------------------------------------------
In this Agreement, unless otherwise specified, capitalized
terms are used as defined herein and in Annex I hereto. Certain
other interpretive provisions and accounting principles
applicable to this Agreement are also set forth in Annex I
hereto.
ARTICLE II - THE REVOLVING CREDIT
---------------------------------
2.01 Amounts and Terms of Commitments. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
loans to the Company from time to time on any Business Day during
the period from the Closing Date to the Revolving Termination
Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount,
as the same may be reduced under Section 2.05 or as a result of
one or more assignments under Section 10.08, the Bank's
"Commitment"); provided, however, that, after giving effect to
any Borrowing, the aggregate principal amount of all outstanding
Loans shall not at any time exceed the lesser of (a) the combined
Commitments, and (b) the Borrowing Base, calculated as of the
date of the Borrowing Base Certificate most recently delivered
pursuant to Section 6.02(c). Within the limits of each Bank's
Commitment and the Borrowing Base, and subject to the other terms
and conditions hereof, the Company may borrow under this Section
2.01, prepay under Section 2.06 and reborrow under this Section
2.01.
2.02 Notes. The Loans made by the Banks shall be evidenced
by Notes executed by the Company in favor of each Bank. Each
Bank shall endorse on schedules annexed to its Note the date,
amount and maturity of each Loan made by it and the amount of
each payment of principal made by the Company with respect
thereto. Each Bank is irrevocably authorized by the Company to
endorse its Note and each Bank's record shall be conclusive
absent manifest error; provided, however, that the failure of a
Bank to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to
such Bank.
2.03 Procedure for Borrowing. (a) Each Borrowing shall be
made upon the Company's irrevocable written notice delivered to
the Agent 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) three Business Days prior to the requested Borrowing Date, in
the case of Offshore Rate Loans, and (ii) one Business Day prior
to the requested Borrowing Date, in the case of Base Rate Loans,
specifying: (A) the amount of the Borrowing, which shall be in
an aggregate minimum amount of $10,000,000 or any multiple of
$5,000,000 in excess thereof; (B) the requested Borrowing Date,
which shall be a Business Day; (C) the Type of Loans comprising
the Borrowing; (D) the duration of the Interest Period applicable
to such Loans included in such notice (if the Notice of Borrowing
fails to specify the duration of the Interest Period for any
Borrowing comprised of Offshore Rate Loans, such Interest Period
shall be one month); and (E) the Borrowing Base calculated as of
the date of the most recently delivered Borrowing Base
Certificate
pursuant to Section 6.02(c); provided, however, that
with respect to the Borrowing to be made on the Closing Date, the
Notice of Borrowing shall be delivered to the Agent not later
than 9:00 a.m. (San Francisco time) one Business Day before the
Closing Date and such Borrowing will consist of Base Rate Loans
only. After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than six different
Interest Periods in effect.
(b) The Agent will promptly notify each Bank of its
receipt of any Notice of Borrowing and of the amount of such
Bank's Pro Rata Share of that Borrowing. Each Bank will make the
amount of its Pro Rata Share of each Borrowing available to the
Agent for the account of the Company at the Agent's Payment
Office by 11:00 a.m. (San Francisco time) on the Borrowing Date
requested by the Company in funds immediately available to the
Agent. The proceeds of all such Loans will then be made
available to the Company by the Agent at such office by crediting
the account of the Company on the books of BofA (or any successor
Agent pursuant to subsection (i) of Annex IX) with the aggregate
of the amounts made available to the Agent by the Banks and in
like funds as received by the Agent or, if requested by the
Company, by wire transfer in accordance with written instructions
provided to the Agent by the Company of like funds as received by
the Agent.
2.04 Conversion and Continuation Elections. (a) The
Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.04(b): (i) elect, as of any
Business Day, in the case of Base Rate Loans, or as of the last
day of the applicable Interest Period, in the case of any other
Type of Loans, to convert any such Loans (or any part thereof in
an amount not less than $10,000,000, or that is in an integral
multiple of $5,000,000 in excess thereof) into Loans of any other
Type; or (ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not less
than $10,000,000, or that is in an integral multiple of
$5,000,000 in excess thereof); provided, that if at any time the
aggregate amount of Offshore Rate Loans in respect of any
Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $10,000,000, such Offshore Rate
Loans shall automatically convert into Base Rate Loans, and on
and after such date the right of the Company to continue such
Loans as, and convert such Loans into, Offshore Rate Loans shall
terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later
than 9:00 a.m. (San Francisco time) at least (i) three Business
Days in advance of the Conversion/Continuation Date, if the Loans
are to be converted into or continued as Offshore Rate Loans, and
(ii) at least one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted
into Base Rate Loans, specifying: (A) the proposed
Conversion/Continuation Date; (B) the aggregate amount of Loans
to be converted or continued; (C) the Type of Loans resulting
from the proposed conversion or continuation; (D) other than in
the case of conversions into Base Rate Loans, the duration of the
requested Interest Period; and (E) the Borrowing Base calculated
as of the date of the most recently delivered Borrowing Base
Certificate pursuant to Section 6.02(c). After giving effect to
any conversion or continuation of Loans, unless the Agent shall
otherwise consent, there may not be more than six different
Interest Periods in effect.
(c) During the existence of an Event of Default, the
Company may not elect to have a Loan converted into or continued
as an Offshore Rate Loan. If upon the expiration of any Interest
Period applicable to Offshore Rate Loans, the Company has failed
to select timely a new Interest Period to be applicable to such
Offshore Rate Loans, as the case may be, or if any Event of
Default then exists, the Company shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company, or if the Agent has received a
notice of an Event of Default pursuant to Section (e) of Annex
IX, the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations
shall be made ratably according to the respective outstanding
principal amounts of the Loans held by each Bank with respect to
which the notice was given.
2.05 Voluntary Termination or Reduction of Commitments.
Subject to Section 3.04, the Company may, upon not less than
three Business Days' prior notice to the Agent, terminate the
Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $10,000,000, or any multiple of
$5,000,000 in excess thereof; unless, after giving effect thereto
and to any prepayments of Loans made on the effective date
thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the combined Commitments then in effect.
Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. All
accrued commitment fees to, but not including the effective date
of any termination of Commitments, shall be paid on the effective
date of such termination.
2.06 Optional Prepayments. Subject to Section 3.04, the
Company may, at any time or from time to time, upon not less than
three Business Days' irrevocable notice to the Agent, in the case
of Offshore Rate Loans, or one Business Days' irrevocable notice
to the Agent, in the case of Base Rate Loans, ratably prepay
Loans in whole or in part, in minimum amounts of $10,000,000, or
any multiple of $5,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment
and the Type(s) of Loans to be prepaid. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is
given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04.
2.07 Mandatory Prepayments. In the event that any Borrowing
Base Certificate delivered pursuant to Section 6.02(c) shall
indicate as of the date of such Borrowing Base Certificate that
the aggregate principal amount of Loans then outstanding exceeds
the Borrowing Base, the Company shall promptly prepay Loans in an
amount equal to such excess, together with any amount required to
be paid in connection therewith pursuant to Section 3.04.
2.08 Repayment. The Company shall repay to the Banks on the
Revolving Termination Date the aggregate principal amount of
Loans outstanding on such date.
2.09 Interest. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Offshore Rate or
the Base Rate, as the case may be (and subject to the Company's
right to convert to other Types of Loans under Section 2.04),
plus the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans under Sections 2.06 or 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 of the Agent
at the request or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if
any amount of principal of or interest on any Loan, or any other
amount payable hereunder or under any other Loan Document is not
paid in full when due (whether at stated maturity, by
acceleration, demand or otherwise), the Company 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
fluctuating rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding,
the obligations of the Company to any Bank hereunder shall be
subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the
provisions of any law applicable to such Bank limiting the
highest rate of interest that may be lawfully contracted for,
charged or received by such Bank, and in such event the Company
shall pay such Bank interest at the highest rate permitted by
applicable law.
2.10 Fees. (a) Arrangement, Agency Fees. The Company
shall pay an arrangement fee to the Arranger for the Arranger's
own account, and shall pay an agency fee to the Agent for the
Agent's own account, as required by the letter agreement ("Fee
Letter") between the Company and the Arranger and the Agent dated
February 8, 1996.
(b) Commitment Fees. The Company shall 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, at a rate per annum equal to
the Applicable Fee Percentage. Such commitment fee shall accrue
from the Closing Date to the Revolving Termination Date and shall
be due and payable quarterly in arrears on the last Business Day
of each calendar quarter commencing on June 30, 1996 through the
Revolving Termination Date, with the final payment to be made on
the Revolving Termination Date; provided that, in connection with
any termination of Commitments under Section 2.05, the accrued
commitment fee calculated for the period ending on such date
shall also be paid on the date of such termination, with the
following quarterly payment being calculated on the basis of the
period from such termination date to such quarterly payment date.
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 Section 4.02
are not met.
2.11 Computation of Fees and Interest. All computations of
interest for Base Rate Loans when the 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 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. Each determination of an
interest rate by the Agent shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
2.12 Payments by the Company. (a) All payments to be made
by the Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Agent for the
account of the Banks at the Agent's Payment Office, and shall be
made in dollars and in immediately available funds, no later than
10:00 a.m. (San Francisco time) on the date specified herein.
The Agent will promptly distribute to each Bank its Pro Rata
Share (or other applicable share as expressly provided herein) of
such payment in like funds as received. Any payment received by
the Agent later than 10:00 a.m. (San Francisco time) shall be
deemed to have been received on the following Business Day and
any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following 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.
(c) Unless the Agent receives notice from the Company
prior to the date on which any payment is due to the Banks that
the Company will not make such payment in full as and when
required, the Agent may assume that the Company has made such
payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Bank on such
due date an amount equal to the amount then due such Bank. If
and to the extent the Company has not 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
at the Federal Funds Rate for each day from the date such amount
is distributed to such Bank until the date repaid.
2.13 Payments by the Banks to the Agent. Unless the Agent
receives notice from a Bank on or prior to the Closing Date or,
with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such
Bank will not make available as and when required hereunder to
the Agent for the account of the Company the amount of that
Bank's Pro Rata Share of the Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in
immediately available funds on the Borrowing Date and the Agent
may (but shall not be so required), in reliance upon such
assumption, make available to the Company 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 immediately
available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the
Agent submitted to any Bank with respect to amounts owing under
this Section 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 Business Day following the Borrowing Date,
the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company 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. The failure of any Bank to
make any Loan on any Borrowing Date shall not relieve any other
Bank of any obligation hereunder to make a Loan on such Borrowing
Date, 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 any
Borrowing Date.
2.14 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),
other than pursuant to Article III, in excess of its ratable
share (or other share contemplated hereunder), such Bank shall
immediately (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 pro rata 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 ratable share (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. The Company agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.10) with respect
to such participation as fully as if such Bank were the direct
creditor of the Company 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 under
this Section and will in each case notify the Banks following any
such purchases or repayments.
ARTICLE III - TAXES, YIELD PROTECTION AND ILLEGALITY
----------------------------------------------------
3.01 Taxes. (a) Any and all payments by the Company 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 Company shall
pay all Other Taxes.
(b) If the Company 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 3.01(e): (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)
the Company shall make such deductions and withholdings; (iii)
the Company shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with
applicable law; and (iv) the Company 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 the Bank
would have received if such Taxes, Other Taxes or Further Taxes
had not been imposed (but only if such Taxes, Other Taxes or
Further Taxes are imposed because the Company has made any
payment to the Agent or any Bank hereunder or under any other
Loan Document from a Person or entity outside of the United
States to a Person or entity inside of the United States or from
a Person or entity inside of the United States to a Person or
entity outside of the United States).
(c) Subject to subsection 3.01(e), the Company 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 referred to in subsection 3.01(b) in the amount that the
respective Bank specifies as necessary to preserve the after-tax
yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed (but only if such Taxes, Other
Taxes or Further Taxes are imposed because the Company has made
any payment to the Agent or any Bank hereunder or under any other
Loan Document from a Person or entity outside of the United
States to a Person or entity inside of the United States or from
a Person or entity inside of the United States to a Person or
entity outside of the United States), and any liability
(including penalties, interest, additions to tax and expenses;
provided, however, that the Company shall not be responsible for
any such penalty, interest or expense resulting from the gross
negligence or willful misconduct of the Agent or any Bank)
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 the Bank or the Agent makes written
demand therefor.
(d) Within 30 days after the date of any payment by
the Company of Taxes, Other Taxes or Further Taxes, the Company
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.
(e) The Company will not be required to pay any
additional amounts in respect of United States Federal income tax
pursuant to subsection 3.01(b) or (c) to any Bank for the account
of any Lending Office of such Bank:
(i) if the obligation to pay such additional
amounts arose solely as a result of such Bank's failure to
comply with its obligations under Section (j) of Annex IX in
respect of such Lending Office;
(ii) if such Bank shall have delivered to the
Company a Form 4224 in respect of such Lending Office
pursuant to Section (j) of Annex IX, 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 the Company hereunder 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
Company a Form 1001 in respect of such Lending Office
pursuant to Section (j) of Annex IX, 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 the Company 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.
(f) If the Company is required to pay any amount to any
Bank or the Agent pursuant to subsection 3.01(b) or (c), 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
the Company which may thereafter accrue, if such change in the
sole judgment of such Bank is not otherwise disadvantageous to
such Bank.
(g) Each of the Banks and the Agent agrees that it will
take all reasonable actions by all usual means to maintain all
exemptions, if any, available to it from United States
withholding taxes (whether available pursuant to treaty, existing
administrative waiver, or otherwise); provided, however, that
neither the Agent nor any Bank shall be obligated by reason of
this subsection 3.01(g) to disclose any information regarding its
tax affairs or tax computations, to reorder or alter in any way
its general tax or other affairs or tax planning, or to undertake
any action that such Person deems to involve the incurrence of
any risk of liability or cost to itself or which requires any
expenditure of effort which such Person deems unreasonable under
the circumstances.
3.02 Illegality. If any Bank determines that the
introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of
any Requirement of Law, has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by such Bank to the
Company through the Agent, any obligation of that Bank to make
Offshore Rate Loans shall be suspended until such Bank notifies
the Agent and the Company that the circumstances giving rise to
such determination no longer exist, and (a) if such Bank may
lawfully continue to maintain such Offshore Rate Loans to the
last day of the Interest Period with respect thereto, the Company
shall repay in full such Offshore Rate Loans, together with
interest accrued thereon, on the last day of the Interest Period
thereof, or (b) if such Bank may not lawfully continue to
maintain such Offshore Rate Loans to the last day of the Interest
Period with respect thereto, such Offshore Rate Loans shall
automatically be converted into Base Rate Loans and the Company
shall pay, within five Business Days of such conversion, all
interest accrued on such Offshore Rate Loans prior to such
conversion and all amounts required under Section 3.04 in
connection with such conversion.
3.03 Increased Costs and Reduction of Return. (a) If any
Bank determines that, due to either (i) the introduction
announced after the date hereof of or any change (other than any
change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate or
in respect of the assessment rate payable by any Bank to the FDIC
for insuring U.S. deposits or a change in the rate of taxation
imposed on or measured by a Bank's net income by the jurisdiction
(or any political subdivision thereof) under the laws of which
such Bank is organized or maintains a lending office) in or in
the interpretation of any law or regulation or (ii) the
compliance by that Bank with any guideline or request from any
central bank or other Governmental Authority announced after the
date hereof (whether or not having the force of law), there shall
be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the
Company shall be liable for, and shall from time to time, within
30 days after written notice from such Bank (with a copy of such
demand to be sent to the Agent), pay to the Agent for the account
of such Bank, additional amounts as are sufficient to compensate
such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction announced after the date hereof of any Capital
Adequacy Regulation, (ii) any change announced after the date
hereof in any Capital Adequacy Regulation, (iii) any change
announced after the date hereof 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 any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would
affect the amount of capital required to be maintained by the
Bank or any corporation controlling the 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, credits or obligations
under this Agreement, then, upon demand of such Bank to the
Company through the Agent, the Company shall pay to the Bank,
from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
3.04 Funding Losses. The Company shall reimburse each Bank
and hold each Bank harmless from any loss or expense which the
Bank may sustain or incur as a consequence of: (a) the failure
of the Company to make on a timely basis any payment of principal
of any Offshore Rate Loan, (b) the failure of the Company to
borrow, continue or convert a Loan after the Company has given
(or is deemed to have given) a Notice of Borrowing or a Notice of
Conversion/ Continuation, (c) the failure of the Company to make
any prepayment in accordance with any notice delivered under
Section 2.06, (d) the
prepayment or other payment (including
after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period, or (e)
the automatic conversion under Section 2.04 or Section 3.02 of
any Offshore Rate Loan to a Base Rate Loan on a day that is not
the last day of the relevant Interest Period; including any such
loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain its Offshore Rate Loans or from
fees payable to terminate the deposits from which such funds were
obtained; provided, however, that any such loss or expense shall
not include lost profit due solely to a failure to receive the
Applicable Margin relating to any such Loan for the portion of
the applicable Interest Period remaining after the date of such
prepayment.
3.05 Inability to Determine Rates. If either the Agent or
the Majority Banks determine (a) that for any reason adequate and
reasonable means do not exist for determining the Offshore Rate
for any requested Interest Period with respect to a proposed
Offshore Rate Loan, or (b) that the Offshore Rate applicable
pursuant to subsection 2.09(a) for any requested Interest Period
with respect to a proposed Offshore Rate Loan does not adequately
and fairly reflect the cost to the Agent or such Banks of funding
such Loan, the Agent will promptly so notify the Company and each
Bank. Thereafter, the obligation of the Banks to make or
maintain Offshore Rate Loans, as the case may be, hereunder shall
be suspended until the Agent upon the instruction of the Majority
Banks revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company
does not revoke such Notice, the Banks shall make, convert or
continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but
such Loans shall be made, converted or continued, as the case may
be, as Base Rate Loans instead of Offshore Rate Loans.
3.06 Certificates of Banks. Any Bank claiming reimbursement
or compensation under this Article III shall deliver to the
Company (with a copy to the Agent) a certificate setting forth in
reasonable detail the amount payable to the Bank hereunder and
such certificate shall be conclusive and binding on the Company
in the absence of manifest error; provided, however, that the
Company shall not be liable for any such amount attributable to
any period prior to the date 180 days prior to the date that an
officer at such Bank responsible for the administration of this
Agreement knew or reasonably should have known of such claim for
reimbursement or compensation.
3.07 Replacement of Bank. (a) In the event that any Bank
makes a demand for payment pursuant to Section 3.01 or 3.03, or
any Bank has suspended its funding of Offshore Loans pursuant to
Section 3.02 or 3.05, the Company shall have the right, if no
Event of Default then exists, to replace such Bank in accordance
with this Section 3.07.
(b) If the Company determines to replace a Bank
pursuant to this Section 3.07, the Company shall have the right
to replace such Bank with an entity that is an Eligible Assignee
(a "Replacement Bank"); provided that such Replacement Bank: (i)
if it is not already a Bank, shall be reasonably acceptable to
the Agent, (ii) shall unconditionally agree in writing (with a
copy to the Agent) to purchase all of such Bank's rights
hereunder and interest in the Loans owing to such Bank and the
Note held by such Bank without recourse at the principal amount
of such Note plus interest and fees accrued thereon to the date
of such purchase on a date therein specified, and (iii) shall, if
such Replacement Bank is not already a Bank, execute and deliver
to the Agent an Assignment and Acceptance substantially in the
form of Exhibit F pursuant to which such Replacement Bank becomes
a party hereto with a Commitment equal to that of the Bank being
replaced.
(c) Upon (i) satisfaction of the requirements set forth
in subsection 3.07(b), (ii) payment to such Bank by the
Replacement Bank of the purchase price in immediately available
funds, (iii) payment to such Bank by the Company of all requested
increased costs or additional amounts accrued to
the date of such
purchase which the Company is obligated to pay under Article III
(including any break funding costs under Section 3.04) and all
other amounts owed by the Company to such Bank hereunder (other
than the principal of and interest on the Loans of such Bank
purchased by the Replacement Bank and interest and fees accrued
thereon to the date of purchase), and (iv) payment to the Agent
by the Replacement Bank or the Company of a non-refundable
processing fee of $3,500, the Replacement Bank shall constitute a
"Bank" hereunder with a Commitment as so specified and the Bank
being so replaced shall no longer constitute a "Bank" hereunder
(and this Agreement shall be deemed to be amended to the extent,
but only to the extent, necessary to reflect the addition of the
Replacement Bank) and such Bank shall be relieved of its
obligations hereunder.
(d) If, however, the conditions to replacement set
forth in this Section are for any reason not satisfied, or the
proposed Replacement Bank for any reason fails to purchase such
rights and interest in accordance with the terms hereof, the
Company shall continue to be obligated to pay the increased costs
or additional amounts due to such Bank pursuant to Section 3.01
or 3.03, as applicable.
(e) In no event shall the Agent or any Bank have any
obligation to be a Replacement Bank or to assist the Company in
finding a Replacement Bank.
3.08 Survival. The agreements and obligations of the
Company in Section 3.01 and 3.03 shall survive the payment of all
other Obligations.
ARTICLE IV - CONDITIONS PRECEDENT
---------------------------------
4.01 Conditions of Initial Loans. The obligation of each
Bank to make its initial Loan hereunder is subject to the
condition that the Agent shall have received on or before the
Closing Date all of the following, in form and substance
satisfactory to the Agent and each Bank, and in sufficient copies
for each Bank:
(a) Credit Agreement and Notes. This Agreement and the
Notes executed by each party thereto;
(b) Resolutions; Incumbency; Organization Documents.
(i) Copies of the resolutions of the board of
directors of the Company authorizing the transactions
contemplated hereby, certified as of the Closing Date by the
Secretary of the Company;
(ii) A certificate of the Secretary of the
Company certifying the names and true signatures of the
officers of the Company authorized to execute, deliver and
perform, as applicable, this Agreement and all other Loan
Documents to be delivered by it hereunder; and
(iii) the articles or certificate of
incorporation and the bylaws of the Company as in effect on
the Closing Date, certified by the Secretary of the Company
as of the Closing Date;
(c) Good Standing. Good standing and tax good standing
certificate for the Company from the Secretary of State (or
similar, applicable Governmental Authority) of its state of
incorporation and each state where the Company is qualified to do
business as a foreign corporation as of a recent date;
(d) Legal Opinions. An opinion of (i) David A.
Channer, Esquire, Associate General Counsel to the Company,
addressed to the Agent and the Banks, substantially in the form
of Exhibit E-1 and (ii) Wilson, Sonsini, Goodrich & Rosati,
outside counsel to the Company, addressed to the Agent and the
Banks, substantially in the form of Exhibit E-2;
(e) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the
extent then due and payable under the Fee Letter on the Closing
Date, together with Attorney Costs of BofA to the extent invoiced
prior to or on the Closing Date;
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that: (i) the
representations and warranties contained in Article V are true
and correct on and as of such date, as though made on and as of
such date; (ii) no Default or Event of Default exists or would
result from the initial Borrowing; and (iii) there has occurred
since February 29, 1996, no event or circumstance that has
resulted or could reasonably be expected to result in a Material
Adverse Effect, other than the material adverse changes, if any,
as may have been disclosed in the written projections dated March
15, 1996 delivered to the Banks prior to the date hereof;
(g) Borrowing Base Certificate. A Borrowing Base
Certificate for the fiscal month ending April 4, 1996;
(h) Termination of Existing Facility. Evidence
satisfactory to the Agent that the commitments of the lenders to
extend credit under the Existing Facility have been terminated,
and that all loans and other obligations outstanding under the
Existing Facility have been paid in full; and
(i) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may request.
4.02 Conditions to All Borrowings. The obligation of each
Bank to make any Loan to be made by it (including its initial
Loan), or to continue or convert any Loan under Section 2.04, is
subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date or Conversion/Continuation Date:
(a) Notice of Borrowing or Conversion/Continuation.
The Agent shall have received a Notice of Borrowing or a Notice
of Conversion/Continuation, as applicable;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article V (other than the
representations and warranties contained in Sections 5.05 and
5.14) shall be true and correct on and as of such Borrowing Date
or Conversion/Continuation Date with the same effect as if made
on and as of such Borrowing Date or Conversion/Continuation Date,
as applicable (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they
shall be true and correct as of such earlier date);
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing or
continuation or conversion; and
(d) Borrowing Base Compliance. The proposed Borrowing
or conversion/continuation, as applicable, will not cause the
aggregate principal amount of all outstanding Loans to exceed the
lesser of (i) the combined Commitments of the Banks, and (ii) the
Borrowing Base calculated as of the date of the most recently
delivered Borrowing Base Certificate pursuant to Section 6.02(c).
Each Notice of Borrowing and Notice of Conversion/Continuation
submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the
date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date, as applicable, that the conditions
in this Section 4.02 are satisfied.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
------------------------------------------
The Company represents and warrants to the Agent and each
Bank that:
5.01 Corporate Existence and Power. The Company and each of
its Subsidiaries: (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 to
own its assets and to carry on its business, (c) in the case of
the Company, has the power and authority to execute, deliver and
perform its obligations under the Loan Documents, (d) is duly
qualified as a foreign corporation and is 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 or license, and (e) is in compliance
in all material respects with all Requirements of Law; except, in
each case referred to in clause (b), (d) or (e), to the extent
that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
5.02 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company of this
Agreement and each other Loan Document to which the Company is
party, have been duly authorized by all necessary corporate
action, and do not and will not: (a) contravene the terms of any
of the Company's Organization Documents, (b) conflict with or
result in any breach or contravention of, or the creation of any
Lien under, any document evidencing any material Contractual
Obligation to which the Company is a party or any order,
injunction, writ or decree of any Governmental Authority to which
the Company or its property is subject, or (c) violate any
Requirement of Law.
5.03 Governmental Authorization. No approval, license,
consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or
performance by, or enforcement against, the Company or any of its
Subsidiaries of the Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan
Document to which the Company is a party constitute the legal,
valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective 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.
5.05 Litigation. Except as set forth in the Forms 10K for
the fiscal year ended August 31, 1995 and the Forms 10Q for the
fiscal quarters ended November 30, 1995 and February 29, 1996,
respectively, and in each case as filed with the SEC by the
Company or Micron Electronics, Inc., there are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge
of the Company, 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 (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby, or (b) could reasonably be
expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been
issued by any court or other Governmental Authority purporting to
enjoin or restrain the execution, delivery or performance of this
Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as
herein or therein provided.
5.06 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by the
Company. As of the Closing Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with
all such defaults, could reasonably be expected to have a
Material Adverse Effect, or that would, if such default had
occurred after the Closing Date, create an Event of Default under
subsection 8.01(e).
5.07 ERISA Compliance. (a) Each Plan is in compliance in
all material respects with the applicable provisions of ERISA,
the Code and other federal or state law. Each Plan which is
intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best
knowledge of the Company, nothing has occurred which would cause
the loss of such qualification. The Company and each ERISA
Affiliate has made all required contributions to any Plan subject
to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur, (ii) no Pension Plan has any Unfunded Pension
Liability, (iii) neither the Company nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA),
(iv) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Section 4201 or 4243
of ERISA with respect to a Multiemployer Plan, and (v) neither
the Company nor any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
5.08 Use of Proceeds; Margin Regulations. The proceeds of
the Loans are to be used solely for the purposes set forth in and
permitted by Section 6.12 and Section 7.08. Neither the Company
nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
5.09 Title to Properties. The Company and each Subsidiary
have good and marketable title to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct
of their respective businesses, except for such defects in title
as could not, individually or in the aggregate, have a Material
Adverse Effect. As of the Closing Date, the property of the
Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all
Federal and other material tax returns and reports required to be
filed, and have 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 contested in good
faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP. There is no final
tax assessment against the Company or any Subsidiary that would
have a Material Adverse Effect.
5.11 Financial Condition. (a) The unaudited consolidated
financial statements of the Company and its Subsidiaries dated
February 29, 1996 and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date: (i) were prepared in
accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein,
subject to ordinary, good faith year end audit adjustments and
except for the absence of footnotes, (ii) fairly present in all
material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and results of operations for
the period covered thereby, and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the
Company and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and
material Contingent Obligations.
(b) Since February 29, 1996, there has been no Material
Adverse Effect other than the material adverse changes, if any,
as may have been disclosed in the written projections dated
March 15, 1996 delivered to the Banks prior to the date hereof.
5.12 Environmental Matters. The Company conducts in the
ordinary course of business a review of the effect of existing
Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof the
Company has reasonably concluded that it is in material
compliance with all such Environmental Laws and that any
Environmental Claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.13 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment
Company" within the meaning of the Investment Company Act of
1940. The Company is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability
to incur Indebtedness.
5.14 Intellectual Property. Except as set forth in the
Forms 10K for the fiscal year ended August 31, 1995 and the Forms
10Q for the fiscal quarters ended November 30, 1995 and February
29, 1996, respectively, and in each case as filed with the SEC by
the Company or Micron Electronics, Inc., (a) the Company and its
Subsidiaries own or are licensed to use or otherwise have the
right to use (or could obtain such ownership or licenses or
rights on terms not materially adverse to the Company and its
Subsidiaries, taken as a whole, and under circumstances that
could not reasonably be expected to have a Material Adverse
Effect) all of the patents, trademarks, service marks, trade
names, copyrights, contractual franchises and other rights that
are reasonably necessary for the operation of their respective
businesses, and (b) there are no pending or, to the best
knowledge of Company, threatened claims that any slogan or other
advertising device, product, process, method, substance, part or
other material now employed by the Company or any Subsidiary
infringes upon any rights held by any other Person, except where
the consequences of such infringement could not reasonably be
expected to have a Material Adverse Effect.
5.15 Subsidiaries; Minority Interests. As of the Closing
Date, the Company has no Subsidiaries other than those
specifically disclosed in part (a) of Schedule 5.15 hereto and
has no equity investments in any other corporation or entity in
excess of $10,000,000, individually, other than those
specifically disclosed in part (b) of Schedule 5.15.
5.16 Insurance. The properties of the Company and its
Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Company, 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 Subsidiary operates.
5.17 Swap Obligations. Neither the Company nor any of its
Subsidiaries has incurred any outstanding obligations under any
Swap Contracts, other than Permitted Swap Obligations. The
Company has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks
associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
5.18 Full Disclosure. None of the representations or
warranties made by the Company in the Loan Documents as of the
date such representations and warranties are made or deemed made,
and none of the statements contained in any exhibit, report,
written statement or certificate furnished by or on behalf of the
Company or any Subsidiary in connection with the Loan Documents
(including the offering and disclosure materials delivered by or
on behalf of the Company to the Banks prior to the Closing Date,
taken together with all such exhibits, reports, written
statements and certificates filed by the Company with the SEC,
but excluding the items listed in Section 5.19), contains any
untrue statement of a material fact or omits 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 as of the time when made or delivered. In
addition, any factual information, forecasts and projections by
industry analysts, including those set forth in the information
memorandum distributed to the Banks prior to closing, have been
developed solely by such analysts and are not adopted by the
Company, notwithstanding their inclusion in such information
memorandum, and the Company makes no representations or
warranties concerning same, unless such representation or
warranty is separately made by the Company.
5.19 Projections. All projections (including the
projections dated March 15, 1996 delivered to the Banks prior to
the date hereof), forward-looking information or other similar or
related information furnished by or on behalf of the Company in
connection with this Agreement were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were
fair in the light of conditions existing at the time of
preparation of such forecasts, and represented, at the time of
preparation, the Company's reasonable estimate of its future
financial performance; provided, however, that such projections
and other forward-looking information are not to be viewed as
factual and actual results during the period or periods covered
thereby may differ from the projected or forecasted results.
ARTICLE VI - AFFIRMATIVE COVENANTS
----------------------------------
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation (other than indemnity obligations
which remain inchoate at such time) shall remain unpaid or
unsatisfied, unless the Majority Banks waive compliance in
writing:
6.01 Financial Statements. The Company shall deliver to the
Agent, in form and detail satisfactory to the Agent and the
Majority Banks, with sufficient copies for each Bank:
(a) promptly after becoming available, but not later
than 90 days after the end of each fiscal year (commencing with
the fiscal year ended August 29, 1996), a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such year 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, and accompanied by the
opinion of Coopers & Lybrand, LLP or another
nationally-recognized independent public accounting firm
("Independent Auditor") which opinion shall state that such
consolidated financial statements present fairly in all material
respects the financial position of the Company as of the date
thereof and the results of operations for the periods indicated
in conformity with GAAP applied on a basis consistent with prior
years, except as otherwise indicated therein. Such opinion shall
not be 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; and
(b) promptly after becoming available, but not later
than 45 days after the end of each of the first three fiscal
quarters of each fiscal year (commencing with the fiscal quarter
ended May 30, 1996), a copy of the unaudited consolidated balance
sheet of the Company and its Subsidiaries as of the end of such
quarter and the related consolidated statements of income for the
period commencing on the first day and ending on the last day of
such quarter, and statement of cash flows for the year to date,
all certified by a Responsible Officer as fairly presenting in
all material respects, in accordance with GAAP (subject to
ordinary, good faith year-end audit adjustments and except for
the absence of footnotes), the financial position and the results
of operations of the Company and the Subsidiaries.
6.02 Certificates; Other Information. The Company shall
furnish to the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 6.01(a), a certificate of a
Responsible Officer setting forth a true and correct copy of the
Company's financial projections in form and substance reasonably
satisfactory to the Agent and the Majority Banks;
(b) concurrently with the delivery of the financial
statements referred to in subsections 6.01(a) and (b), a
Compliance Certificate executed by a Responsible Officer;
(c) promptly after becoming available, but not later
than 20 days after the end of each fiscal month (commencing with
the fiscal month ending April 4, 1996), a Borrowing Base
Certificate as of the end of such fiscal month, executed by a
Responsible Officer;
(d) promptly after becoming available, but not later
than 10 days after the filing thereof with the SEC or the
delivery thereof to its Shareholders, as applicable, copies of
all annual reports and proxy statements that the Company sends to
its shareholders, and copies of all financial statements and
regular, periodical or special reports (including Forms 10K, 10Q,
8K, S-1 and S-3) that the Company or any Subsidiary may make to,
or file with, the SEC; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Agent, at the request of any Bank, may from
time to time reasonably request in writing.
6.03 Notices. The Company shall promptly, after any
Responsible Officer becomes aware thereof or should have become
aware thereof, notify the Agent and each Bank:
(a) of the occurrence of any Default or Event of
Default, and of the occurrence or existence of any event or
circumstance that could reasonably be expected to become a
Default or Event of Default;
(b) of the occurrence of any breach or termination of
any material Contractual Obligation pursuant to which the Company
or any of its Material Subsidiaries is licensed or otherwise has
the right to use any patented technology, trademarks, service
marks, trade names, copyrights or contractual franchises that are
reasonably necessary for the operation of their respective
businesses ("Intellectual Property Licenses"); or the receipt of
any written claim with respect to any Intellectual Property
License in which the licensor, seller or grantor of such
intellectual property rights states its intention (i) to
terminate such Intellectual Property License, (ii) to require the
Company or any Subsidiary to cease using such intellectual
property rights (or any material portion thereof), or to cease
marketing or selling products developed based on intellectual
property rights (or any material portion thereof) covered by such
Intellectual Property License, or (iii) to cease performing its
obligations thereunder, and which, in each of the cases set forth
in clauses (i), (ii) and (iii), could reasonably be expected to
have a Material Adverse Effect;
(c) of the commencement of, or any material development
in, any litigation, arbitration or other similar proceeding
affecting the Company or any Subsidiary with respect to any
Intellectual Property License, in which injunctive or similar
relief (whether temporary or permanent) is sought and which could
reasonably be expected to have a Material Adverse Effect;
(d) of any other matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect,
which matters include, for example (but not by way of
limitation): (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Subsidiary,
(ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any
Governmental Authority, or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting
the Company or any Subsidiary, including pursuant to any
applicable Environmental Laws;
(e) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than 10 days after such event), and deliver to the Agent and
each Bank a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with
respect to such event: (i) an ERISA Event, (ii) a material
increase in the Unfunded Pension Liability of any Pension Plan,
(iii) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company or any
ERISA Affiliate, or (iv) the adoption of any amendment to a Plan
subject to Section 412 of the Code, if such amendment results in
a material increase in contributions or Unfunded Pension
Liability; and
(f) of any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries; provided that the description of any
such changes set forth in the Company's filings with the SEC,
when delivered to Agent and the Banks, shall constitute notice
sufficient under this subsection (f).
Each notice under this Section (other than under
subsection (f)) shall be accompanied by a written statement by a
Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at
what time. Each notice under subsection 6.03(a) shall describe
with particularity any and all clauses or
provisions of this
Agreement or other Loan Document that have been (or could
reasonably be expected to be) breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company
shall, and shall cause each Material Subsidiary to: (a) preserve
and maintain in full force and effect its corporate existence and
good standing under the laws of its state or jurisdiction of
incorporation, except, with respect to any Material Subsidiary,
in connection with transactions permitted by Section 7.03 or
7.04; (b) preserve and maintain in full force and effect all
material governmental rights, privileges, qualifications,
permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except in connection with
transactions permitted by Section 7.03 or 7.04; (c) use
reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill, except, with
respect to any Material Subsidiary, in connection with
transactions permitted by Section 7.03 or 7.04; and (d) preserve
or renew all of its registered patents, trademarks, trade names
and service marks, except where the non-preservation of which
could not reasonably be expected to have a Material Adverse
Effect.
6.05 Maintenance of Property. The Company shall maintain,
and shall cause each Material Subsidiary to maintain, and
preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear
excepted and make all reasonably necessary repairs thereto and
renewals and replacements thereof except where the failure to do
so could not reasonably be expected to have a Material Adverse
Effect.
6.06 Insurance. The Company shall maintain, and shall cause
each Subsidiary to maintain, with financially sound and reputable
independent insurers or through self-insurance, insurance with
respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other
Persons.
6.07 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
become due and payable (or within any applicable grace period),
all their respective material obligations and liabilities, which
matters may include, for example (but not by way of limitation):
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by
the Company or such Subsidiary, and (b) all lawful claims which,
if unpaid, would by law become a Lien upon its property, except
for Permitted Liens.
6.08 Compliance with Laws. The Company shall comply, and
shall cause each Material Subsidiary to comply, in all material
respects, with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including
the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may
exist.
6.09 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law, (b)
cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification, and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
6.10 Inspection of Property and Books and Records. (a) The
Company shall maintain and shall cause each Subsidiary to
maintain financial books of record and account sufficient to
permit the Company to prepare financial statements in accordance
with GAAP.
(b) The Company shall permit, and shall cause each
Subsidiary to permit, representatives and independent contractors
of the Agent (i) to visit and inspect any of their respective
material properties, (ii) to examine their respective financial
records, and make copies thereof or abstracts therefrom, and
(iii) to discuss their respective affairs, finances and accounts
with their respective directors, officers, and independent public
accountants, all at the expense of the Banks and at such
reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance written notice to
the Company; provided, however, that when an Event of Default
exists, the Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal business hours
and without advance written notice. In addition, the Company
shall permit, and shall cause each Subsidiary to permit,
representatives and independent contractors of the Agent to audit
the Receivables and the Borrowing Base of the Company and its
Subsidiaries, at the expense of the Company and at such
reasonable times during normal business hours and as often as may
be reasonably desired (which shall be at least annually) upon
reasonable advance written notice to the Company; provided,
however, when an Event of Default exists the Agent or any Bank
may do any of the foregoing at any time during normal business
hours and without advance written notice. At any time when no
Event of Default has occurred and is continuing, any such
representative, independent contractor or independent public
accountants (other than employees of the Agent) selected by the
Agent to perform such inspections or audits, must be reasonably
acceptable to the Company.
(c) Notwithstanding the foregoing, prior to the
occurrence of an Event of Default, neither the Company nor any of
its Subsidiaries will be required to disclose, permit the
inspection, examination, copying or making extracts of, or
discussions of, any document, information or other matter that
(i) constitutes non-financial trade secrets or non-financial
proprietary information, or (ii) in respect to which disclosure
to the Agent or any Bank (or designated representative) is then
prohibited by law or any agreement binding upon the Company or
such Subsidiary that was not entered into by the Company or such
Subsidiary for the primary purpose of concealing information from
Agent and the Banks or evading the provisions of this Agreement.
6.11 Environmental Laws. The Company shall, and shall cause
each Material Subsidiary to, conduct its operations and keep and
maintain its property in compliance in all material respects with
all Environmental Laws.
6.12 Use of Proceeds. The Company shall use the proceeds of
the Loans for working capital and other general corporate
purposes not in contravention of any Requirement of Law or of any
Loan Document.
6.13 Ranking. The Company shall take, or cause to be taken,
all actions necessary to ensure that the Obligations are and
continue to rank at least pari passu in right of payment with all
other unsecured Indebtedness of the Company.
ARTICLE VII - NEGATIVE COVENANTS
--------------------------------
So long as any Bank shall have any Commitment hereunder, or
any Loan or other Obligation (other than indemnity obligations
which remain inchoate at such time) shall remain unpaid or
unsatisfied, unless the Majority Banks waive compliance in
writing:
7.01 Limitation on Liens. The Company shall not, and shall
not suffer or permit any Subsidiary to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or
with respect to
any part of its properties, revenues or assets,
whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 7.01
securing Indebtedness outstanding on such date (including any
such Lien securing Indebtedness that is renewed, extended or
refunded after the Closing Date, provided that the principal
amount of such Indebtedness outstanding at the time of such
renewal, extension or refunding is not increased and such Lien is
not extended to any other property, other than replacements or
substitutions for such property);
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 6.07;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested in good
faith and by appropriate proceedings, which proceedings are for
the purpose of preventing the forfeiture or sale of the property
subject thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens on the property of the Company or its
Subsidiary securing (i) the non-delinquent performance of bids,
trade contracts (other than for borrowed money), leases,
statutory obligations, (ii) contingent obligations with respect
to surety and appeal bonds, or letters of credit issued in lieu
thereof, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of
business, provided all such Liens in the aggregate would not
(even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
liens, arising in circumstances not constituting an Event of
Default under Section 8.01(j);
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
(including the easements, rights-of-way, restrictions and other
similar encumbrances incurred in connection with the interchange
and new road to be located on the Company's headquarters property
in Boise, Idaho) which, in the aggregate, do not materially
detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the
Company and its Subsidiaries taken as a whole;
(i) Liens on (i) assets of corporations which become
Subsidiaries after the date of this Agreement, (ii) assets which
are acquired at the time a corporation merges with or into the
Company or a Subsidiary of the Company pursuant to Section 7.04,
and (iii) assets acquired by the Company or a Subsidiary pursuant
to Section 7.05; provided, however, that such Liens existed at
the time the respective corporations became Subsidiaries or at
the time the assets were acquired and were not created in
anticipation thereof;
(j) purchase money and other security interests, and
liens in the nature of capital leases, in personal or real
property where the security interests do not extend beyond the
property purchased, any replacements, additions, attachments and
accessions thereto, and the proceeds (including insurance
proceeds) thereof and the amount of indebtedness secured thereby
does not materially exceed the value of the property and, in the
aggregate, the amount of all indebtedness so secured does not at
any time exceed 15% of the Company's consolidated net property,
plant and equipment (as reflected on the Company's consolidated
financial statements) as of the last day of the fiscal quarter
most recently ended prior thereto (including any such Lien
securing any such indebtedness that is renewed, extended or
refunded, provided that the principal amount of such indebtedness
outstanding at the time of such renewal, extension or refunding
is not materially increased and such Lien is not extended to any
other property);
(k) Liens arising solely by virtue of any statutory,
common law or contractual provision relating to banker's liens,
rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository
institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by the Company or any Subsidiary
to provide collateral to the depository institution;
(l) Liens on assets of Subsidiaries securing extensions
of credit made by the Company or another Subsidiary to such
Subsidiaries, to the extent such extensions of credit are
permitted by Section 7.06;
(m) Liens on assets of the Company granted after the
Closing Date, pursuant to documentation in effect on the Closing
Date, in favor of United States National Bank of Oregon in
connection with letters of credit issued for the Company's
account in a maximum aggregate principal amount of $15,000,000;
(n) leases and subleases of, and licenses and
sublicenses with respect to, property where the Company or a
Subsidiary of the Company is the lessor or licensor (or sublessor
or sublicensor); provided that such leases, subleases, licenses
and sublicenses do not in the aggregate materially interfere with
the business of the Company and its Subsidiaries taken as a
whole;
(o) Liens with respect to operating leases otherwise
permitted by this Agreement; provided, that such Liens encumber
only property financed or leased, any replacements, additions,
attachments and accessions thereto, and the proceeds (including
insurance proceeds) thereof;
(p) Liens on assets incurred in the ordinary course of
business used to secure cash reserves that have been deposited
with the Company or its Subsidiaries by customers to obtain the
rights to delivery of future goods or services; and
(q) Liens (i) consisting of pledges of cash collateral
or government securities to secure on a mark-to-market basis
Permitted Swap Obligations only, provided that the counterparty
to any Swap Contract relating to any such Permitted Swap
Obligation is under a similar requirement to deliver similar
collateral from time to time to the Company or the Subsidiary
party thereto on a mark-to-market basis, or (ii) not otherwise
permitted by this Section 7.01, on property of the Company or any
Subsidiary of the Company incurred in the ordinary course of
business; provided, that, as of any determination date, the
amount of all such Indebtedness or Permitted Swap Obligations
secured by Liens permitted only by this subsection (q) does not
at any time exceed 5% of the Company's consolidated tangible
fixed assets as of
the end of the most recent fiscal quarter; and
provided further, that such Liens do not secure any indebtedness
for borrowed money.
7.02 Exclusive Negative Pledge. The Company will not, and
will not permit any of its Subsidiaries to, enter into any
Contractual Obligation (other than this Agreement) which
prohibits the creation or assumption of any Lien upon or with
respect to any part of such Persons properties or assets
(including intangible assets, such as patents and trademarks, and
the capital stock of Subsidiaries) (such Contractual Obligation,
a "Negative Pledge"), whether now owned or hereafter acquired,
other than:
(a) Negative Pledges in favor of the Company or a
Subsidiary of the Company with respect to the assets of a
Subsidiary (including Micron Electronics, Inc.) in connection
with extensions of credit made by the Company or a Subsidiary to
such Subsidiary, to the extent such extensions of credit are
permitted by Section 7.07;
(b) Negative Pledges granted in connection with
extensions of credit (whether or not guaranteed by the Company)
made available by Persons other than the Company to the Company's
Subsidiaries (including Micron Electronics, Inc.), to the extent
such extensions of credit are permitted by Section 7.06(h);
(c) Negative Pledges granted in connection with Senior
Unsecured Debt or Subordinated Debt incurred by the Company
pursuant to Section 7.06(j); and
(d) Negative Pledges granted in connection with real or
personal property financing arrangements to the extent permitted
by Section 7.01(j), in favor of the Person providing such
financing, pursuant to which the Company or Subsidiary, as
applicable, agrees not to create or assume any Lien upon or with
respect to the equipment being financed (together with
replacements, additions, attachments, accessions and proceeds
(including insurance proceeds) thereof and accessories thereto).
7.03 Disposition of Assets. The Company shall not, and
shall not suffer or permit any Subsidiary to, directly or
indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions):
(a) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person,
provided, that any Subsidiary may sell, assign, lease, convey,
transfer or otherwise dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company
or any other Person provided that if the selling Subsidiary is
not a Wholly-Owned Subsidiary, the distribution of proceeds of
the transaction to a party other than the Company or a
Wholly-Owned Subsidiary would be a distribution permitted under
Section 7.09(d);
(b) any accounts receivable; or
(c) any other material asset (greater than $1,000,000
individually) outside the ordinary course of business (the
parties hereby agreeing that dispositions of inventory, or used,
worn-out or surplus equipment shall be considered to be
dispositions in the ordinary course of business), provided that
the aggregate fair market value of all material assets so sold by
the Company and its Subsidiaries, together, shall not exceed 10%
of the Company's consolidated tangible assets as of the last day
of the fiscal quarter most recently ended prior thereto, and that
any sale of assets by or among the Company and its Subsidiaries
is permitted by Section 7.07.
7.04 Consolidations and Mergers. The Company shall not, and
shall not suffer or permit any Subsidiary to, liquidate, dissolve
or reorganize, or merge or consolidate with or into any other
Person, except that:
(a) the Company or any Subsidiary may enter into a
consolidation, reorganization or merger with another Person
(other than another Subsidiary) to the extent required in
connection with an Acquisition permitted pursuant to Section
7.05, provided, that no Default or Event of Default has occurred
or would occur as a result thereof on a pro forma basis, and that
(i) in the case of a transaction involving the Company, the
Company shall be the surviving corporation, and (ii) in the case
of a transaction involving a Subsidiary, the Subsidiary shall be
the surviving corporation or the surviving corporation shall
become a Subsidiary of which the Company owns at least as large a
percentage of the outstanding voting stock as it did of the
Subsidiary which was not the surviving corporation;
(b) any Subsidiary may merge or consolidate with or into
the Company or a Wholly-Owned Subsidiary, provided that the
Company or such Wholly-Owned Subsidiary shall be the continuing
or surviving corporation;
(c) any Subsidiary may consolidate or merge with or into
any other Subsidiary, provided that (i) if the transaction is
between a Subsidiary which is not a Wholly-Owned Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
surviving corporation, or (ii) if the transaction is with two
Subsidiaries which are not Wholly-Owned Subsidiaries, the
Subsidiary which has the higher direct or indirect percentage
ownership by the Company shall be the surviving corporation, or
if such Subsidiary having the higher percentage ownership is not
the surviving corporation, the resulting increased ownership by a
third Person would be a distribution permitted under Section
7.09(d); and
(d) any Subsidiary may liquidate or dissolve, provided,
that if such Subsidiary is not a Wholly-Owned Subsidiary, any
proceeds of such liquidation or dissolution which are not
distributed directly or indirectly to the Company would be a
distribution permitted under Section 7.09(d).
7.05 Loans and Investments. The Company shall not purchase
or acquire, or suffer or permit any Subsidiary to purchase or
acquire, any capital stock, equity interest, or any obligations
or other securities of, or any interest in, any Person, or make
any Acquisitions, or make any advance, loan, extension of credit
or capital contribution to or any other investment in, any Person
including any Affiliate of the Company (together, "Investments"),
except for:
(a) Investments held by the Company or Subsidiary in
the form of cash equivalents and liquid investments;
(b) Investments in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or
services or licensing of property in the ordinary course of
business;
(c) Investments made by the Company to or in its
Subsidiaries (including Micron Electronics, Inc.), or by a
Subsidiary of the Company to or in the Company or another
Subsidiary, to the extent permitted by Section 7.07, provided,
that (i) Investments to or in Micron Electronics, Inc. may not
exceed $100,000,000 in aggregate principal amount, and (ii)
Investment to or in any Subsidiary that is not a Wholly-Owned
Subsidiary (other than Micron Electronics, Inc.) may not exceed,
in the aggregate, an amount equal to 5% of Consolidated Tangible
Net Worth as of the last day of the fiscal quarter most recently
ended prior thereto;
(d) Incidental loans or advances to employees in the
ordinary course of business or as part of their overall
compensation package;
(e) Investments incurred in order to consummate
Acquisitions or minority Investments, provided that (i) the
cumulative aggregate consideration paid (including the assumption
of debt) or assets contributed in all such Investments after the
Closing Date (including the proposed Investment) does not at any
time exceed 25% of the consolidated tangible assets of the
Company as of the last day of the fiscal quarter most recently
ended prior thereto, (ii) the Investment is being made in a
Person that is engaged in a line of business that would be
permitted under Section 7.11 if such Person were a Subsidiary of
the Company, (iii) no Default or Event of Default has occurred or
would occur as a result of such Investment on a pro forma basis,
(iv) such Acquisitions or Investments are undertaken in
accordance with all applicable Requirements of Law, and (v) if
such Investment constitutes an Acquisition, the prior, effective
written consent or approval to such Investment of the board of
directors or equivalent governing body of the Person acquired or
in which the Investment is being made is obtained;
(f) Investments consisting of guarantees by the Company
and its Subsidiaries of the obligations of vendors and suppliers
of the Company or its Subsidiaries entered into in the ordinary
course of business;
(g) Investments constituting Permitted Swap Obligations
or payments or advances under Swap Contracts relating to
Permitted Swap Obligations;
(h) Investments existing on the Closing Date;
(i) Investments received in settlement of delinquent
obligations or disputes, including Investments received in
connection with the bankruptcy or reorganization of third
Persons;
(j) Investments consisting of deposit accounts
maintained in the ordinary course of business;
(k) Investments accepted in connection with
dispositions of assets permitted under Section 7.03; and
(l) Investments not described or covered by any of the
foregoing subsections (a) through (k) of this Section; provided
that (i) no Default or Event of Default has occurred or would
occur as a result of such Investment on a pro forma basis,
(ii) such Investments are undertaken in accordance with all
applicable Requirements of Law, (iii) if such Investment
constitutes an Acquisition, the prior, effective written consent
or approval to such Investment of the board of directors or
equivalent governing body of the Person acquired or in which the
Investment is being made is obtained, and (iv) the aggregate
amount of all Investments made under this subsection (l) does not
at any time exceed 2% of the Company's consolidated tangible
assets as of the end of the Company's most recent fiscal quarter.
7.06 Limitation on Indebtedness and Contingent Obligations.
The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness or Contingent Obligations, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness and Contingent Obligations existing on
the Closing Date and set forth in Schedule 7.06;
(c) Contingent Obligations in the form of endorsements
for collection or deposit in the ordinary course of business;
(d) Indebtedness with respect to cash deposited by
customers to obtain the rights to delivery of future goods or
services;
(e) Permitted Swap Obligations;
(f) Indebtedness permitted by Section 7.01(j) or
incurred in connection with deferred purchases of equipment;
(g) Indebtedness incurred in connection with Investments
permitted by Section 7.05(c);
(h) Indebtedness incurred by Subsidiaries of the Company
(including Micron Electronics, Inc.) from Persons other than the
Company or another Subsidiary up to a maximum aggregate principal
amount of $100,000,000;
(i) Indebtedness with respect to deferred compensation
or employee benefit programs incurred in the ordinary course of
business or in connection with the discontinuance or sale of
businesses or facilities;
(j) Subordinated Debt and Senior Unsecured Debt incurred
by the Company in an aggregate principal amount not to exceed at
any time the greater of (i) $150,000,000, and (ii) the
Capitalization Capacity as of such date;
(k) Indebtedness or Contingent Obligations incurred in
connection with the bonding requirements of Micron Construction,
Inc.;
(l) Contingent Obligations of the Company with respect
to Indebtedness of its Subsidiaries to the extent such
Indebtedness is otherwise permitted under this Section 7.06, and
Contingent Obligations of Subsidiaries of the Company with
respect to Indebtedness of the Company or other Subsidiaries of
the Company to the extent such Indebtedness is otherwise
permitted under this Section 7.06; and
(m) Indebtedness and Contingent Obligations other than
for borrowed money, to the extent not otherwise permitted by this
Section 7.06, in a maximum aggregate principal amount of
$100,000,000.
7.07 Transactions with Affiliates. The Company shall not,
and shall not suffer or permit any Subsidiary to, enter into any
transaction with any Affiliate of the Company, except (a) with
respect to any Affiliate which is not a Subsidiary, upon fair and
reasonable terms no less favorable to the Company or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Company or such
Subsidiary, and (b) with respect to any Affiliate which is a
Subsidiary, upon fair and reasonable terms.
7.08 Use of Proceeds. The Company shall not, and shall not
suffer or permit any Subsidiary to, use any portion of the Loan
proceeds, directly or indirectly, (i) to purchase or carry Margin
Stock, (ii) to repay or otherwise refinance indebtedness of the
Company or others incurred to purchase or carry Margin Stock,
(iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Exchange
Act.
7.09 Restricted Payments. The Company shall not, and shall
not suffer or permit any Subsidiary 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 (collectively "Restricted Payments"),
except that:
(a) the Company may make Restricted Payments or other
distributions payable solely in its capital stock, and may
distribute rights under any stockholder rights plan;
(b) the Company may make Restricted Payments with the
proceeds received from the substantially concurrent issue of new
shares of its capital stock and may redeem rights distributed
under any stockholder rights plan;
(c) any Subsidiary of the Company may declare and make
dividend payments or other distributions of assets, properties,
cash, rights, obligations or securities on account of any shares
of any class of its capital stock or redeem or otherwise acquire
for value any shares of its capital stock or any warrants, rights
or options to acquire such shares, to or from the Company or to
or from a Wholly-Owned Subsidiary of the Company or to or from a
non-Wholly-Owned Subsidiary to the extent the value distributed
or paid to Persons other than the Company or a Wholly-Owned
Subsidiary would be permitted to be paid under clause (d) below;
and
(d) the Company and its Subsidiaries may make such other
cash Restricted Payments from earnings available therefor;
provided, that (i) the aggregate amount of all such cash
Restricted Payments paid during the current fiscal quarter and
the three fiscal quarters immediately preceding such quarter may
not at any time exceed 25% of the Company's Consolidated Net
Income for the most recently ended fiscal quarter and the three
fiscal quarters immediately preceding such quarter, and (ii)
immediately after giving effect to any such Restricted Payments,
no Default or Event of Default would exist.
7.10 ERISA. The Company shall not, and shall not suffer or
permit any of its ERISA Affiliates to: (a) engage in a
prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted
or could reasonably expected to result in liability of the
Company in an aggregate amount in excess of 5% Consolidated
Tangible Net Worth, or (b) engage in a transaction that could
reasonably be expected to subject the Company to liability under
Section 4069 or 4212(c) of ERISA.
7.11 Business or Accounting Changes. The Company shall not,
and shall not suffer or permit any Subsidiary to, engage in any
material line of business substantially different from those
lines of business carried on by the Company and its Subsidiaries
on the date hereof, together with businesses which are
appropriate extensions of or are reasonably related or incidental
to the current businesses of the Company and its Subsidiaries.
The Company shall not, and shall not suffer or permit any
Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted
by GAAP, or change the fiscal year of the Company or of any
Subsidiary.
7.12 Adjusted Quick Ratio. The Company shall not permit, as
of the last day of any fiscal quarter, the ratio of (a) the sum
of (i) cash, cash equivalents and liquid investments, and (ii)
net trade accounts receivable of the Company and its Subsidiaries
on a consolidated basis, to (b) the sum of (i) current
liabilities of the Company and its Subsidiaries on a consolidated
basis (plus long-term liabilities related to customer deposits),
and (ii) any Loans outstanding, to be less than (A) 0.50 to 1.00,
from the Closing Date through May 29, 1997, and (B) 1.00 to 1.00,
from May 30, 1997 and thereafter.
7.13 Consolidated Tangible Net Worth. The Company shall not
permit, as of the last day of any fiscal quarter, Consolidated
Tangible Net Worth to be less than an amount equal to
$2,172,333,000, plus the sum of (a) 75% of Consolidated Net
Income (not reduced by Consolidated Net Loss for any period)
earned in each fiscal quarterly accounting period commencing
after the Closing Date, and (b) 100% of the Net Proceeds from any
secondary public or private offering of equity securities by the
Company and its Subsidiaries (not in connection with an
Acquisition or employee stock option or purchase plans) after the
Closing Date.
7.14 Leverage Ratio. The Company shall not permit, as of
the last day of any fiscal quarter, the Leverage Ratio to exceed
0.75 to 1.00.
7.15 Minimum Cash Flow. The Company shall not permit, as of
the last day of any fiscal quarter, (a) EBITDA for the period
consisting of the four consecutive fiscal quarters ending on such
day, to be less than $1,000,000,000, or (b) EBITDA for the fiscal
quarter ending on such day, to be less than (i) $225,000,000, as
of the last day of the fiscal quarter ending May 30, 1996, (ii)
$200,000,000, as of the last day of the fiscal quarter ending
August 29, 1996, and (iii) $250,000,000, as of the last day of
each fiscal quarter ending thereafter.
ARTICLE VIII - EVENTS OF DEFAULT
--------------------------------
8.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of any
Loan, (ii) any amount of interest or commitment fee payable
hereunder within five days after the same becomes due, or (iii)
any other amount payable hereunder or under any other Loan
Document within 30 days after the same becomes due; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made
herein or in any other Loan Document is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in Section 6.13
or in Article VII; or
(d) Other Defaults. (i) The Company fails to perform
or observe any term, covenant or agreement contained in any of
Sections 6.02(b), 6.02(c), 6.03 or 6.10(b), and such default
shall continue unremedied for a period of five days after the
earlier of (a) the date upon which a Responsible Officer knew or
reasonably should have known of such failure, and (b) the date
upon which written notice thereof is given to the Company by the
Agent or any Bank; or (ii) the Company fails to perform or
observe any other term or covenant contained in this Agreement or
any other Loan Document, and such default shall continue
unremedied for a period of 20 days after the earlier of (x) the
date upon which a Responsible Officer knew or reasonably should
have known of such failure, and (y) the date upon which written
notice thereof is given to the Company by the Agent or any Bank;
or
(e) Cross-Acceleration - Indebtedness. The Company or
any Subsidiary (i) fails to make any payment in respect of any
individual item of Indebtedness having an aggregate principal
amount (including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than
$10,000,000, or with respect to any multiple items of
Indebtedness having an aggregate principal amount (including
amounts owing to all creditors under any combined or syndicated
credit arrangement)
of more than $20,000,000, when due (whether
by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) and such failure continues after the applicable
grace or notice period, if any, specified in the relevant
document on the date of such failure, or (ii) fails to perform or
observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument
relating to any such Indebtedness described in Section 8.01(e)(i)
hereof and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the
date of such failure, if, in the case of clause (i) or
clause (ii), the effect of such failure, event or condition
results in the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or
beneficiaries) declaring such Indebtedness to be due and payable
prior to its stated maturity; or
(f) Cross-Acceleration - Swap Obligations. There
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (i) any event of
default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap
Contract), or (ii) any Termination Event (as defined in such Swap
Contract) as to which the Company or any Subsidiary is an
Affected Party (as defined in such Swap Contract), and, in either
event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $10,000,000; or
(g) Insolvency; Voluntary Proceedings. The Company or
any Subsidiary (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its
debts as they become due, subject to applicable grace periods, if
any, whether at stated maturity or otherwise, (ii) voluntarily
ceases to conduct its business in the ordinary course, except as
may otherwise be permitted herein, (iii) voluntarily commences
any Insolvency Proceeding with respect to itself, or (iv) takes
any action to effectuate or authorize any of the foregoing; or
(h) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Subsidiary, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a
substantial part of the Company's or any Subsidiary's properties,
and any such proceeding or petition shall not be dismissed, or
such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy, (ii) the Company or any
Subsidiary admits the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency
Proceeding, or (iii) the Company or any Subsidiary acquiesces in
the appointment of a receiver, trustee, custodian, conservator,
liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its
property or business; or
(i) ERISA. (i) An ERISA Event shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or
could reasonably be expected to result in liability of the
Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess
of 5% of Consolidated Tangible Net Worth, (ii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at
any time exceeds 5% of Consolidated Tangible Net Worth, or (iii)
the Company or any ERISA Affiliate shall fail to pay when due,
after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of 5% of Consolidated Tangible Net
Worth; or
(j) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration
awards is entered against the Company or any Subsidiary involving
in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the
insurer does
not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $20,000,000 or more,
and the same shall remain unsatisfied, unvacated and unstayed
pending appeal for a period of 30 consecutive days after the
entry thereof; or
(k) Non-Monetary Judgments. 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; or
(l) Change of Control. If (i) any Person or two or
more Persons acting in concert, other than J.R. Simplot, J.R.
Simplot Company, Simplot Canada Limited, a member of J.R.
Simplot's immediate family and any other Persons controlled by or
under common control with any of the foregoing, shall either
acquire beneficial ownership, directly or indirectly, of, or
acquire by contract or otherwise, or enter into a contract or
arrangement which upon consummation will result in its or their
acquisition of, or control over, securities of the Company (or
other securities convertible into such securities) representing
30% or more of the combined voting power of all securities of the
Company entitled to vote in the election of directors; or
(ii) during any period of up to 12 consecutive months, commencing
after the Closing Date, individuals who at the beginning of such
12-month period were directors of the Company shall cease for any
reason to constitute a majority of the Board of Directors of the
Company unless the persons replacing such individuals were
nominated by the Board of Directors of the Company; or
(m) Loss of Governmental Licenses. Any Governmental
Authority revokes or fails to renew any material license, permit
or franchise of the Company or any Subsidiary, or the Company or
any Subsidiary for any reason loses any material governmental
license, permit or franchise, or the Company or any Subsidiary
suffers the imposition of any restraining order, escrow,
suspension or impound of funds in connection with any proceeding
(judicial or administrative) with respect to any material
governmental license, permit or franchise and the effect of such
revocation, failure to renew, loss or imposition can reasonably
be expected to have a Material Adverse Effect.
8.02 Remedies. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, the
Majority Banks: (a) declare the commitment of each Bank to make
Loans to be terminated, whereupon such commitments shall be
terminated, (b) declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company, and (c)
exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents
or applicable law; provided, however, that upon the occurrence of
any event specified in subsection (g) or (h) of Section 8.01 (in
the case of clause (i) of subsection (h) upon the expiration of
the 60-day period mentioned therein), the obligation of each Bank
to make Loans shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and
payable without further act of the Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
8.04 Certain Financial Covenant Defaults. In the event
that, after taking into account any extraordinary charge to
earnings taken or to be taken as of the end of any fiscal period
of the Company (a "Charge"), and if solely by virtue of such
Charge, there would exist an Event of Default due to the breach
of any of Sections 7.12, 7.13, 7.14 or 7.15 as of such fiscal
period end date, such Event of Default shall be deemed to arise
upon the earlier of (a) the date after such fiscal period end
date on which the Company announces publicly it will take, is
taking or has taken such Charge (including an announcement in the
form of a statement in a report filed with the SEC) or, if such
announcement is made prior to such fiscal period end date, the
date that is such fiscal period end date, and (b) the date the
Company delivers to the Agent its audited annual or unaudited
quarterly financial statements in respect of such fiscal period
reflecting such Charge as taken.
ARTICLE IX - THE AGENT
----------------------
Certain agreements between the Agent and the Banks are set
forth in Annex IX hereto.
ARTICLE X - MISCELLANEOUS
-------------------------
10.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent with respect to any departure by the Company or any
applicable Subsidiary therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks (or by
the Agent at the written request of the Majority Banks) and the
Company and acknowledged by the Agent, and then any such waiver
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no such waiver, amendment, or consent shall, unless in writing
and signed by all the Banks and the Company and acknowledged by
the Agent, do any of the following: (a) increase or extend the
Commitment of any Bank (or reinstate any Commitment terminated
pursuant to Section 8.02), (b) postpone or delay any date fixed
by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Banks (or
any of them) hereunder or under any other Loan Document, (c)
reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other
amounts payable hereunder or under any other Loan Document, (d)
change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the
Banks or any of them to take any action hereunder, or (e) amend
this Section, or Section 2.14, or any provision herein providing
for consent or other action by all Banks; and, provided further,
that (i) no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of the
Agent under this Agreement or any other Loan Document, (ii) the
Fee Letters may be amended, or rights or privileges thereunder
waived, in a writing executed by the parties thereto; (iii)
Schedule II may be amended by the Company, the Agent and the Co-
Agents acting together from time to time, and (iv) nothing herein
shall be construed to prohibit deemed amendments from taking
effect pursuant to Sections 3.07 or 10.08(c) hereof.
10.02 Notices. (a) All notices, requests, consents,
approvals, waivers and other communications shall be in writing
(including, unless the context expressly otherwise provides, by
facsimile transmission, provided that any matter transmitted by
the Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on
Schedule 10.02, and (ii) shall be followed promptly by delivery
of a hard copy original thereof) and mailed, faxed or delivered,
to the address or facsimile number specified for notices on
Schedule 10.02; or, as directed to the Company or the Agent, to
such other address as shall be designated by such party in a
written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party
in a written notice to the Company and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively,
or if mailed, upon receipt by the addressee, or if delivered,
upon delivery; except that notices pursuant to Article II or IX
to the Agent shall not be effective until actually received by
the Agent.
(c) 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 Company. The Agent and
the Banks shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any
liability to the Company 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 the
Company to repay the Loans 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.
10.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Bank, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse BofA (including in its capacity
as Agent) and the Arranger for all reasonable costs and expenses
incurred by them in connection with the development, preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, the
consummation of the transactions contemplated hereby and thereby,
and in connection with any borrowing base audit of the Company by
the Agent, including Attorney Costs incurred by them with respect
thereto; and
(b) pay or reimburse the Agent, the Arranger and each
Bank for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this
Agreement or any other Loan Document during the existence of an
Event of Default or after acceleration of the Loans (including in
connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate
proceeding). The agreements in this Section shall survive the
payment of all other Obligations.
10.05 Company Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Company
shall indemnify, defend and hold the Agent-Related Persons, and
each Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless 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 which
may at any time (including at any time following repayment of the
Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or
asserted against any such Person in favor of any third-party in
any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted
by any such Person under or in connection with any of the
foregoing, including with respect to any investigation,
litigation or
proceeding (including any Insolvency Proceeding or
appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not
any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the
Company shall have no obligation hereunder to any Indemnified
Person with respect to Indemnified Liabilities resulting from the
gross negligence or willful misconduct of such Indemnified
Person. The agreements in this Section shall survive payment of
all other Obligations.
10.06 Payments Set Aside. To the extent that the Company
makes a payment to the Agent or the Banks, or the Agent or the
Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by
the Agent or such Bank in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of
such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had
not occurred, and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata share of any amount so recovered
from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank.
10.08 Assignments, Participations, etc. (a) Any Bank may,
with the written consent of the Company (at all times other than
during the existence of an Event of Default) and the Agent, which
consents shall not unreasonably be withheld, at any time assign
and delegate to one or more Eligible Assignees (provided that no
written consent of the Company or the Agent shall be required in
connection with any assignment and delegation by a Bank to an
Eligible Assignee that is an Affiliate of such Bank or to another
Bank party hereto) (each an "Assignee") all, or any ratable part
of all, of the Loans, the Commitments and the other rights and
obligations of such Bank hereunder, in a minimum amount of
$10,000,000, or such lesser amount which represents a Bank's
entire Commitment (provided that no minimum amount limitation
shall apply in connection with any assignment and delegation by a
Bank to an Eligible Assignee that is an Affiliate of such Bank or
to another Bank party hereto); provided, however, that the
Company and the Agent may continue to deal solely and directly
with such Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Company and
the Agent by such Bank and the Assignee; (ii) such Bank and its
Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance substantially in the form of Exhibit F
("Assignment and Acceptance"), together with any Note or Notes
subject to such assignment, and (iii) the assignor Bank or
Assignee has paid to the Agent a processing fee in the amount of
$3,500.
(b) From and after the date that the Agent notifies the
assignor Bank that the Agent and the Company have received (and
provided their consent, if required, with respect to) an executed
Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Bank under
the Loan Documents, and (ii) the assignor Bank shall, to the
extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Loan Documents.
(c) Within five Business Days after the Company's
receipt of notice by the Agent that it has received an executed
Assignment and Acceptance and payment of the processing fee, (and
provided
that the Company consents to such assignment in
accordance with subsection 10.08(a)), the Company shall execute
and deliver to the Agent, new Notes evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank has
retained a portion of its Loans and its Commitment, replacement
Notes in the principal amount of the Loans retained by the
assignor Bank (such Notes to be in exchange for, but not in
payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its processing fee payment under the Assignment
and Acceptance, this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Bank pro
tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank (the
"originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's obligations
under this Agreement shall remain unchanged, (ii) the originating
Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to
deal solely and directly with the originating Bank in connection
with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall
transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other
Loan Document, except to the extent such amendment, consent or
waiver would require unanimous consent of the Banks as described
in the first proviso to Section 10.01. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 3.01, 3.03 and 10.05 as though it were also a Bank
hereunder (provided, however, that no Participant shall be
entitled to greater benefits under any such Section than the Bank
which sold such participation would have been entitled to), and
if amounts outstanding under this Agreement are due and unpaid,
or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this
Agreement, any Bank may at any time, without the consent of any
Person, create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and
any Note held by it in favor of any Federal Reserve Bank in
accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted
under applicable law.
10.09 Confidentiality. Each Bank agrees to take and to
cause its Affiliates to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
confidential information provided to it by the Company or any
Subsidiary, or by the Agent on the Company's or such Subsidiary's
behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of
this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the
Company or any Subsidiary; except to the extent such information
(i) was or becomes generally available to the public other than
as a result of disclosure by the Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank;
provided, however, that any Bank may disclose such information
(A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such
authority; (B) pursuant to subpoena or other court process,
provided, that the Bank shall use its reasonable, good faith
efforts to provide prior written notice (unless prohibited from
doing so by any applicable Requirement of Law) to the Company to
allow the Company to seek a
protective order;
(C) when required to do so in accordance with the provisions of
any applicabl Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding (except as
set forth in clause (E)) to which the Agent, any Bank or their respective
Affiliates may be party, provided, that the Bank shall use its
reasonable, good faith efforts to provide prior written notice
(unless prohibited from doing so by any applicable Requirement of
Law) to the Company to allow the Company to seek a protective
order; (E) to the extent reasonably required in connection with
the exercise of any remedy hereunder or under any other Loan
Document; (F) to such Bank's independent auditors and other
professional advisors, provided such persons have a need to know
such information and agree to be bound by the terms of this
Section 10.09 as so they were a party hereto; (G) to any
Participant or Assignee, actual or potential, provided that such
Person agrees in writing to keep such information confidential to
the same extent required of the Banks hereunder; (H) as to any
Bank or its Affiliate, as expressly permitted under the terms of
any other document or agreement regarding confidentiality to
which the Company or any Subsidiary is party or is deemed party
with such Bank or such Affiliate; and (I) to its Affiliates.
Upon the execution hereof by all the parties, the confidentiality
undertaking set forth in this Section shall replace and supersede
the terms of any confidentiality agreement between the Company
and any of the Agent or the Banks executed prior to the Closing
Date and shall survive the termination of this Agreement for a
period of 12 months.
10.10 Set-off. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists or the
Loans have been accelerated, each Bank is authorized at any time
and from time to time, without prior notice to the Company, any
such notice being waived by the Company 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 by, and other indebtedness at any time owing by, such
Bank to or for the credit or the account of the Company against
any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document
and although such Obligations may be contingent or unmatured.
Each Bank agrees promptly to notify the Company and the Agent
after any such set-off and application made by such Bank;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.11 Notification of Addresses, Lending Offices, Etc. Each
Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.12 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of said counterparts taken
together shall be deemed to constitute but one and the same
instrument. Each of the parties hereto understands and agrees
that this Agreement and any other Loan Document may be delivered
by any party hereto or thereto either in the form of an executed
original or an executed original sent by facsimile transmission
to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document
purportedly bearing the signature of a Bank or the Company shall
bind such Bank or the Company, respectively, with the same force
and effect as the delivery of a hard copy original. Any failure
by the Agent to receive the hard copy executed original of such
document shall not diminish the binding effect of receipt of the
facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Agent.
10.13 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
10.14 No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and legal benefit of the
Company, the Banks, the Agent and the Agent-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.
10.15 Governing Law and Jurisdiction. (a) THIS AGREEMENT
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT
AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE
AGENT AND THE BANKS IRREVOCABLY WAIVES 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 AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.16 Waiver of Jury Trial. THE COMPANY, 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-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. THE COMPANY, 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.
10.17 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding among the Company, 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in San Francisco,
California by their proper and duly authorized officers as of the
day and year first above written.
MICRON TECHNOLOGY, INC.
By: /s/ Norman L. Schlachter
----------------------------------
Name: Norman L. Schlachter
Title: Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Wendy M. Young
----------------------------------
Name: Wendy M. Young
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Michael J. McCutchin
----------------------------------
Name: Michael J. McCutchin
Title: Vice President
SEATTLE FIRST NATIONAL BANK, as Co-
Agent
By: /s/ Thomas P. Rook
----------------------------------
Name: Thomas P. Rook
Title: Vice President
BANK OF MONTREAL, as Co-Agent
By: /s/ Beverly Blucher
----------------------------------
Name: Beverly A. Blucher
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent
By: /s/ Jeffrey P. White
----------------------------------
Name: Jeffrey P. White
Title: Commercial Banking Officer
UNITED STATES NATIONAL BANK OF
OREGON, as Co-Agent
By: /s/ Jeff A. Killian
----------------------------------
Name: Jeff A. Killian
Title: Vice President
ABN AMRO BANK N.V. SEATTLE BRANCH
By: ABN AMRO North America, Inc., as agent
By: /s/ Lee-Lee Miao
----------------------------------
Name: Lee-Lee Miao
Title: Vice President & Director
By: /s/ Leif H. Olsson
----------------------------------
Name: Leif H. Olsson
Title: Group Vice President & Director
BANQUE NATIONALE DE PARIS
By: /s/ Rafael C. Lumanlan
----------------------------------
Name: Rafael C. Lumanlan
Title: Vice President
By: /s/ Charles Day
----------------------------------
Name: Charles Day
Title: Assistant Vice President
FIRST SECURITY BANK OF IDAHO, N.A.
By: /s/ Brian W. Cook
----------------------------------
Name: Brian W. Cook
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Frank Benesh
----------------------------------
Name: Frank Benesh
Title: Vice President
KEY BANK OF WASHINGTON
By: /s/ John H. Brock
----------------------------------
Name: John H. Brock
Title: Vice President
MELLON BANK, N.A.
By: /s/ R. Jane Westrich
----------------------------------
Name: R. Jane Westrich
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ M. Cole
----------------------------------
Name: Michael Cole
Title: Manager
THE BANK OF NEW YORK
By: /s/ Robert Louk
----------------------------------
Name: Robert Louk
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M. Van Otterloo
----------------------------------
Name: M. Van Otterloo
Title: Senior Relationship Manager
THE DAI-ICHI KANGYO BANK, LIMITED,
SAN FRANCISCO AGENCY
By: /s/ Takuo Yoshida
----------------------------------
Name: Takuo Yoshida
Title: General Manager & Agent
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
By: /s/ N. Umemura
----------------------------------
Name: Nobuhiro Umemura
Title: Joint General Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By: /s/ Makoto Masuda
----------------------------------
Name: Makoto Masuda
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: /s/ M. Uematsu
----------------------------------
Name: Motokazu Uematsu
Title: Deputy General Manager
THE SUMITOMO BANK LIMITED, LOS
ANGELES BRANCH
By: /s/ G. Hirai
----------------------------------
Name: G. Hirai
Title: Joint General Manager
ANNEX I
DEFINITIONS; OTHER INTERPRETIVE PROVISIONS;
ACCOUNTING PRINCIPLES
1. Certain Defined Terms. The following terms have the
following meanings:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially
all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person
(other than a Person that is a Subsidiary) provided that the
Company or the Subsidiary is the surviving entity.
"Adjusted Net Accounts Receivables Amount" means, as of any
date of determination, an amount equal to 80% (as such
percentage may be increased or decreased from time to time
by the Agent, at the request of the Majority Banks, in their
sole discretion, based on audits of the Company's Receivables
and Borrowing Base) of the face amount of net trade receivables,
determined in accordance with GAAP, as of such date.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership
interests, by contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section (i)
of Annex IX.
"Agent-Related Persons" means BofA and any successor agent
arising under Section (i) of Annex IX, together with their
respective Affiliates (including, in the case of BofA, the
Arranger), and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.02 or such other address as the Agent
may from time to time specify.
"Agreement" means this Revolving Credit Agreement.
"Applicable Fee Percentage" means, for any date, the per
annum percentage amount set forth below based on the
Leverage Ratio set forth in the Compliance Certificate most
recently delivered pursuant to Section 6.02(b):
Leverage Applicable
Ratio Fee Percentage
Less than 0.250 0.100%
Greater than or equal to
0.250 but less than 0.450 0.150%
Greater than or equal to
0.450 but less than 0.650 0.175%
Greater than or equal to
0.650 but less than
or equal to 0.750 0.250%
The Applicable Fee Percentage shall be adjusted
automatically as to the commitment fee then accruing
effective as of the 90th day after the end of each fiscal
year and the 45th day of the end of the first three fiscal
quarters of each fiscal year based on the Leverage Ratio
set forth in the most recently delivered Compliance
Certificate.
"Applicable Margin" means, for any date, with respect to
each Offshore Rate Loan or Base Rate Loan outstanding on
such date, the applicable margin (on a per annum basis)
set forth below based on the Leverage Ratio set forth in
the Compliance Certificate most recently delivered
pursuant to Section 6.02(b):
Applicable Margin
Leverage Offshore Rate Base Rate
Ratio Loans Loans
Less than 0.25 0.375% 0.000%
Greater than or equal to
0.250 but less than 0.450 0.450% 0.000%
Greater than or equal to
0.450 but less than 0.650 0.550% 0.000%
Greater than or equal to
0.650 but less than 0.625% 0.000%
or equal to 0.750
The Applicable Margin shall be adjusted automatically as to
all Loans then outstanding effective as of the 90th day
after the end of each fiscal year and the 45th day of the
end of the first three fiscal quarters of each fiscal year
based on the Leverage Ratio set forth in the most recently
delivered Compliance Certificate.
"Arranger" means BA Securities, Inc., a Delaware corporation.
"Assignee" has the meaning specified in subsection 10.08(a).
"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.
"Bank" has the meaning specified in the introductory
clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. Section 101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at,
above, or below such announced rate.) Any change in the
reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on
the Base Rate.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of
Loans of the same Type made to the Company on the same day
by the Banks under Article II, and, other than in the case
of Base Rate Loans, having the same Interest Period.
"Borrowing Base" means, as of any date of determination,
an amount equal to (a) $250,000,000, plus (b) 70% of the
Adjusted Net Accounts Receivables Amount, less (c) the
Pari Passu Debt Amount, as of such date; provided,
however, that if the average daily used portion of the
combined Commitments of all the Banks for the prior fiscal
month (computed on a monthly basis in arrears on the last
Business Day of each fiscal month based upon the daily
utilization for that fiscal month as calculated by the
Agent) exceeds 50%, (i) on and after May 30, 1997, or (ii)
on and after January 1, 1997 if the Company has not
consummated equipment financings of at least $150,000,000
from and including February 29, 1996 through and including
December 31, 1996, then, "Borrowing Base" shall mean, as
of any date of determination, an amount equal to (a) 70%
of the outstanding face amount of Eligible Accounts
Receivable, less (b) the Pari Passu Debt Amount, as of
such date.
"Borrowing Base Certificate" means a certificate, duly
executed by a Responsible Officer of the Company,
substantially in the form of Exhibit C.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.03.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York,
New York, Portland, Oregon, Boise, Idaho, or San
Francisco, California are authorized or required by law to
close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank
market.
"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.
"Capitalization Capacity" means, as of any date of
determination, an amount equal to 10% of the result of (a)
the Company's stockholders' equity, less (b) the sum of
the maximum aggregate principal amount committed (with
respect to committed facilities) and the total aggregate
principal amount borrowed (with respect to uncommitted
facilities) of all the Company's and its Subsidiaries'
secured debt, subordinated debt, guarantees and senior
unsecured debt, including under this Agreement.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.01 are satisfied or
waived by all Banks (or, in the case of subsection
4.01(e), waived by the Person entitled to receive such
payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment", as to each Bank, has the meaning specified
in Section 2.01.
"Company" has the meaning specified in the introductory
clause hereto.
"Compliance Certificate" means a certificate, duly
executed by a Responsible Office of the Company,
substantially in the form of Exhibit D.
"Consolidated Adjusted Total Liabilities" means, as of
any date of determination, without duplication, the total
liabilities of the Company and its Subsidiaries on a
consolidated basis, plus all Guaranty Obligations of the
Company and its consolidated Subsidiaries in respect of
indebtedness or obligations of Persons other than the
Company and its Subsidiaries of the kinds referred to in
clauses (a) through (g) of the definitions of the term
"Indebtedness", and all obligations of the Company or and
its consolidated Subsidiaries under operating and
synthetic leases in excess of $500,000, individually,
which obligations shall be discounted to present value at
the interest rate implicit in each such lease in effect at
any date of determination.
"Consolidated Net Income" and "Consolidated Net Loss"
mean, respectively, for any period, the aggregate net
income or loss for such period of the Company and its
Subsidiaries on a consolidated basis.
"Consolidated Tangible Net Worth" means, as of any date
of determination, the difference of (a) total
stockholders' equity of the Company and its Subsidiaries
on a consolidated basis minus (b) the net book value of
all assets of the Company and its Subsidiaries on a
consolidated basis which would be treated as intangibles
under GAAP, including (without duplication) deferred
charges, leasehold conversion costs, franchise rights, non-
compete agreements, research and development costs,
capitalized costs associated with software development
expenses, goodwill, unamortized debt discounts, patents,
patent applications, trademarks, trade names, and
copyrights and licenses.
"Contingent Obligation" means, as to any Person, any
direct or indirect liability of that Person, whether or
not contingent, with or without recourse: (a) with
respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment
or discharge of any such primary obligation, or to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primaryobligation, or
(iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a
"Guaranty Obligation"); (b) with respect to any Surety Instrument
issued for the account of that Person or as to which that Person
is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from,
or to obtain the services of, another Person if the relevant
contract or other related document or obligation requires
that payment for such materials, supplies or other
property, or for such services, shall be made regardless
of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are
ever performed or tendered, or (d) in respect of any Swap
Contract.
"Contractual Obligation" 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.
"Conversion/Continuation Date" means any date on which,
under Section 2.04, the Company (a) converts Loans of one
Type to another Type, or (b) continues as Loans of the
same Type, but with a new Interest Period, Loans having
Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if
not cured or otherwise remedied during such time)
constitute an Event of Default.
"Defaulted Receivable" means a Receivable: (a) under
which any amount payable under any invoice is more than 90
days past its original due date; (b) as to which the
Obligor thereunder is the subject of any Insolvency
Proceeding; (c) from any Obligor to the extent that the
Borrowing Base already contains Eligible Accounts
Receivable due from such Obligor, or its Affiliates, in an
aggregate amount exceeding 20% of all Eligible Accounts
Receivable as of any date of determination, but only to
the extent of such excess; or (d) on which an estimated or
actual loss has been recognized or which has become
uncollectible, as determined in accordance with the
Company's usual business practice.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"EBITDA" means, for any period, Consolidated Net Income
or Consolidated Net Loss, as the case may be, for such
period, plus the sum of (a) consolidated interest expense,
(b) income tax expense, (c) depreciation expense, and (d)
amortization expense, which were deductible in determining
Consolidated
Net Income or Consolidated Net Loss; provided, however, that
non-cash charges account for no more than 50% of EBITDA.
"Eligible Accounts Receivable" means at any time any
Receivable:
(a) with respect to which the Company has lawful
and absolute title, and has complied with all material
legal requirements, including without limitation, all
laws, rules, regulations and orders of any governmental or
judicial authority relating to truth in lending, billing
practices, fair credit reporting, equal credit
opportunity, debt collection practices and consumer debtor
protection;
(b) which has been invoiced and constitutes as
against an Obligor an "account" fully earned by
performance as defined in the Uniform Commercial Code as
in effect in the applicable jurisdiction;
(c) which constitutes a legal, valid and binding
irrevocable payment obligation of the Obligor, is not
subject to any Lien or any bona fide dispute, setoff,
counterclaim or other claim or defense on the part of any
Person (including the Obligor) denying liability
thereunder (other than accrued royalties payable and
customer deposits up to a maximum aggregate amount not in
excess of 20% of the face amount of all net trade
receivables determined in accordance with GAAP as of any
date of determination), is net of any returns or
allowances, and is denominated in U.S. dollars;
(d) as to which the Obligor is a Qualifying
Obligor;
(e) which is not a Defaulted Receivable; and
(f) as to which the Obligor is not a governmental
entity or agency.
"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 Claims" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for
violation of any Environmental Law, or for release or
injury to the environment.
"Environmental Laws" means all federal, state or local
laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative
orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to
environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Company
within the meaning of Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by the Company or any
ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan
year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations
which is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company
or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of
a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any material liability under Title
IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified
in the definition of "Offshore Rate".
"Event of Default" means any of the events or
circumstances specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934,
and regulations promulgated thereunder.
"Existing Facility" means the $250,000,000 Revolving Loan
Agreement dated as of February 12, 1996 among the Company,
the several financial institutions party thereto, and Bank
of America National Trust and Savings Association, as
agent, and all documents executed in connection therewith.
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its
principal functions.
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day
opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be
the arithmetic mean as determined by 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.
"Fee Letter" has the meaning specified in subsection
2.10(a).
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any
of its principal functions.
"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 3.01.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as
of the Closing Date.
"Governmental Authority" means any nation or government,
any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other
entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Indebtedness" of any Person means, without duplication:
(a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade
payables entered into in the ordinary course of business
on ordinary terms); (c) all non-contingent reimbursement
or payment obligations with respect to Surety Instruments;
(d) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property,
assets or businesses; (e) all indebtedness created or
arising under any conditional sale or other title
retention agreement, or incurred as financing, in either
case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to
repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all
indebtedness referred to in clauses (a) through (f) above
secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for
the payment of such Indebtedness; and (h) all Guaranty
Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g)
above. For all purposes of this Agreement, the
Indebtedness of any Person shall include all recourse
Indebtedness of any partnership or joint venture or
limited liability company in which such Person is a
general partner or a joint venturer or a member.
"Indemnified Liabilities" has the meaning specified in
Section 10.05.
"Indemnified Person" has the meaning specified in Section
10.05.
"Independent Auditor" has the meaning specified in
subsection 6.01(a).
"Insolvency Proceeding" means, with respect to any
Person, (a) any case, action or proceeding with respect to
such Person before any court or other Governmental
Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any
substantial portion of its creditors; undertaken under
U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than
a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Loan, the
last Business Day of each calendar quarter and each date
such Loan is converted into another Type of Loan;
provided, however, that if any Interest Period for an
Offshore Rate Loan exceeds three months, the date that
falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter is
also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan,
the period commencing on the Borrowing Date of such Loan
or on the Conversion/Continuation Date on which the Loan
is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six months
thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation; provided,
that:
(a) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall
be extended to the following Business Day unless, in the
case of an Offshore Rate 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 preceding Business Day;
(b) any Interest Period pertaining to an Offshore
Rate 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 calendar
month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such
Interest Period; and
(c) no Interest Period for any Loan shall extend
beyond the Revolving Termination Date.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Lending Office" means, as to any Bank, the office or
offices of such Bank specified as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office", as
the case may be, on Schedule 10.02, or such other office
or offices as such Bank may from time to time notify the
Company and the Agent.
"Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Adjusted Total Liabilities,
after giving effect to any payments or prepayments
hereunder made on such date, to (b) Consolidated Tangible
Net Worth.
"Lien" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or
deposit arrangement, encumbrance, lien (statutory or
other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those
created by, arising under or evidenced by any conditional
sale or other title retention agreement, the interest of a
lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming
the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the
Company under Article II, and may be a Base Rate Loan or
an Offshore Rate Loan (each, a "Type" of Loan).
"Loan Documents" means this Agreement, the Notes, the Fee
Letter and all other certificates, documents or financial
or other statements delivered at any time to the Agent or
any Bank in connection herewith or with any other Loan
Document.
"Majority Banks" means at any time Banks then holding at
least 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 at least 66-2/3% of
the Commitments.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the
operations, business, properties or condition (financial
or otherwise) of the Company or the Company and its
Subsidiaries taken as a whole; (b) a material impairment
of the ability of the Company to perform under any Loan
Document and to avoid any Event of Default; or (c) a
material adverse effect upon the legality, validity,
binding effect or enforceability against the Company of
any Loan Document.
"Material Subsidiary" means, at any time, (a) any
Subsidiary which either (i) at such time owns assets
having a net book value equal to or greater than ten
percent (10%) of consolidated total assets of the Company,
or (ii) for the most recent fiscal quarter or the most
recent fiscal year had income from operations equal to or
greater than ten percent (10%) of the consolidated income
from operations for the Company, and (b) any Subsidiary
owning 50% or more of the voting stock or other equity
interest of any Subsidiary described in clause (a) of this
definition.
"Multiemployer Plan" means a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA, to which the
Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make,
contributions.
"Negative Pledge" has the meaning specified in Section
7.02.
"Net Proceeds" means, as to any issuance of equity
securities by the Company, cash proceeds and non-cash
proceeds received or receivable by the Company in
connection therewith, net of reasonable out-of-pocket
costs and expenses paid or incurred in connection
therewith in favor of any Person not an Affiliate of the
Company, including underwriters commissions or discounts,
registration and filing fees, reasonable legal and
accounting fees, and printing costs.
"Note" means a promissory note executed by the Company in
favor of a Bank pursuant to subsection 2.02, in
substantially the form of Exhibit G.
"Notice of Borrowing" means a notice in substantially the
form of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by the Company to any Bank, the Agent, or
any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or
contingent, due or to become due, now existing or
hereafter arising.
"Obligor" means the Person obligated under any Receivable.
"Offshore Rate" means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward
to the next 1/16th of 1%) determined by the Agent as
follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day in
any Interest Period 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) under
regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"LIBOR" means, for any Interest Period, the rate of
interest per annum determined by the Agent to be the
arithmetic mean (rounded upward to the next 1/16th of 1%)
equal to the rates of interest per annum notified to the
Agent by BofA as the rate of interest at which dollar
deposits in the approximate amount of the amount of the
Loan to be made or continued as, or converted into, an
Offshore Rate Loan by BofA and having a maturity comparable
to such Interest Period would be offered to major banks
in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as
to all Offshore Rate Loans then outstanding as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"Offshore Rate Loan" means a Loan that bears interest
based on the Offshore Rate.
"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, any
shareholder rights agreement, and all applicable
resolutions of the board of directors (or any committee
thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes,
charges or similar levies imposed by any Governmental
Authority which arise from any payment made hereunder by
the Company or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
"Pari Passu Debt Amount" means, as of any date of
determination, an amount equal to the sum of (a)
outstanding Senior Unsecured Debt permitted pursuant to
Section 7.06(j), plus (b) outstanding Indebtedness
permitted pursuant to Section 7.06(h), as of such date.
"Participant" has the meaning specified in subsection
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or
any Governmental Authority succeeding to any of its
principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which
the Company sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or in the
case of a multiple employer plan (as described in Section
4064(a) of ERISA) has made contributions at any time
during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section
7.01.
"Permitted Swap Obligations" means all obligations
(contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that
each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities,
commitments or assets held or reasonably anticipated by
such Person, or changes in the value of securities issued
by such Person in conjunction with a securities repurchase
program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view;" and (b)
such Swap Contracts do not contain (i) any provision
("walk-away" provision) exonerating the non-defaulting
party from its obligation to make payments on outstanding
transactions to the defaulting party, or (ii) any
provision creating or permitting the declaration of an
event of default, termination event or similar event upon
the occurrence of an Event of Default hereunder (other than
an Event of Default under subsection 8.01(a)).
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture
or Governmental Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company sponsors or
maintains or to which the Company makes, is making, or is
obligated to make contributions and includes any Pension
Plan.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to
the ninth decimal place) at such time of such Bank's
Commitment divided by the combined Commitments of all
Banks.
"Qualifying Obligor" means an Obligor which: (a) is not
an officer, employee or a division of the Company or any
Subsidiary or Affiliate of the Company, (b) is not located
outside of the United States, unless (i) the obligation of
such offshore obligor is supported by a letter of credit
issued by a financial institution that satisfies the
definition of "Eligible Assignee", (ii) such offshore
obligor is listed on Schedule I, or (iii) such offshore
obligor is listed on Schedule II (which Schedule II may be
amended by the Company, the Agent and the Co-Agents from
time to time), and (c) is not, in the reasonable
discretion of the Agent or Majority Banks, an unacceptable
Obligor; provided, however, that all Eligible Accounts
Receivable as of any date of determination may not at any
time include more than 10% of Receivables with respect to
which the obligor thereon is an obligor listed on Schedule
II.
"Receivable" means an account owned by the Company or any
Subsidiary which has arisen in the ordinary course of the
business of the Company or any Subsidiary from the sale of
inventory or the provision of services or the licensing of
property in the normal course of business and all moneys
due or to become due, and all rights and claims arising,
thereunder and all rights related thereto, including
without limitation those assertable against other Persons
in addition to the Obligor.
"Reportable Event" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations
issued by the PBGC.
"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.
"Responsible Officer" means the chief executive officer,
president, chief financial officer or treasurer of the
Company, or any other officer having substantially the
same authority and responsibility.
"Revolving Termination Date" means the earlier to occur
of (a) May 14, 1999, and (b) the date on which the
Commitments terminate in accordance with the provisions of
this Agreement.
"SEC" means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its
principal functions.
"Senior Unsecured Debt" means Indebtedness of the Company
issued under a written instrument containing terms and
conditions no more favorable to the lender(s) under such
facility as those contained herein, and which may not be
amended or modified without the prior written consent of
the Agent and the Majority Banks.
"Subordinated Debt" means Indebtedness of the Company
issued under a written instrument containing terms and
conditions, including subordination provisions expressly
making such Indebtedness subordinate and junior to the
Obligations, in form and substance satisfactory to the
Agent and the Majority Banks, and which may not be amended
or modified in a manner adverse to the Banks without the
prior written consent of the Agent and the Majority Banks.
"Subsidiary" of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which 50% or more of
the voting stock, membership interests or other equity
interests (in the case of Persons other than corporations),
is owned or controlled directly or indirectly by the Person,
or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Surety Instruments" means all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, shipside bonds, surety bonds and similar
instruments.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap,
basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option,
bond, note or bill option, interest rate option, forward
foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar
transaction (including any option to enter into any of the
foregoing) or any combination of the foregoing, and,
unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or
more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date
such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the
date referenced in clause (a) the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid-
market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may
include any Bank).
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Bank and
the Agent, respectively, taxes imposed on or measured by
its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or
the Agent, as the case may be, is organized or maintains a
lending office.
"Type" has the meaning specified in the definition of "Loan."
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan's assets, determined
in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Subsidiary" means any corporation in which
(other than directors' qualifying shares or local
ownership shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100%
of the capital stock of every other class, in each case,
at the time as of which any determination is being made,
is owned, beneficially and of record, by the Company, or
by one or more of the other Wholly-Owned Subsidiaries, or
both.
2. Other Interpretive Provisions. (a) The meanings of
defined terms are equally applicable to the singular and
plural forms of the defined terms. The words "hereof",
"herein", "hereunder" and similar words refer to this
Agreement as a whole and not to any particular provision
of this Agreement; and subsection, Section, Schedule,
Exhibit and Annex references are to this Agreement unless
otherwise specified. The term "documents" includes any
and all instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
The term "including" is not limiting and means "including
without limitation." In the computation of periods of
time from a specified date to a later specified date, the
word "from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word
"through" means "to and including." The captions and
headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of
this Agreement.
(b) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and
other contractual instruments shall be deemed to include
all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation
are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting
the statute or regulation.
(c) 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."
(d) 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 Banks, and are
the products of all the parties. Accordingly, they shall
not be construed against the Agent or the Banks merely
because of the Agent's or Banks' involvement in their
preparation.
3. Accounting Principles. Unless the context otherwise
clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial
computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied. References
herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Company.