EXHIBIT 10.46
EXECUTION VERSION
================================================================================
CREDIT AGREEMENT (MULTI-YEAR)
Dated as of December 6, 2001
among
SANMINA CORPORATION
and
CERTAIN SUBSIDIARIES,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent and
L/C Issuer,
CITICORP USA, INC.
as
Syndication Agent,
SALOMON SMITH BARNEY INC.
as
Co-Arranger,
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA
and
BARCLAYS BANK PLC
as
Co-Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
================================================================================
[BANK OF AMERICA LOGO]
TABLE OF CONTENTS
Section Page
- ------- ----
Article I. DEFINITIONS AND ACCOUNTING TERMS................................................. 1
1.01 Defined Terms................................................................ 1
1.02 Other Interpretive Provisions................................................ 24
1.03 Accounting Terms............................................................. 24
1.04 Rounding..................................................................... 25
1.05 References to Agreements and Laws............................................ 25
1.06 Exchange Rates; Currency Equivalents......................................... 25
1.07 Additional Alternative Currencies............................................ 26
1.08 Redenomination of Certain Alternative Currencies............................. 26
Article II. THE COMMITMENTS AND CREDIT EXTENSIONS........................................... 26
2.01 Loans........................................................................ 26
2.02 Borrowings, Conversions and Continuations of Loans........................... 27
2.03 Letters of Credit............................................................ 29
2.04 Prepayments.................................................................. 36
2.05 Reduction or Termination of Commitments...................................... 36
2.06 Repayment of Loans........................................................... 37
2.07 Interest..................................................................... 37
2.08 Fees......................................................................... 37
2.09 Computation of Interest and Fees............................................. 38
2.10 Evidence of Debt............................................................. 38
2.11 Payments Generally........................................................... 39
2.12 Sharing of Payments.......................................................... 41
2.13 Increase in Commitments...................................................... 41
2.14 Security and Guaranties...................................................... 43
Article III. TAXES, YIELD PROTECTION AND ILLEGALITY......................................... 43
3.01 Taxes........................................................................ 43
3.02 Illegality................................................................... 45
3.03 Inability to Determine Rates................................................. 45
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans...................................................... 46
3.05 Compensation for Losses...................................................... 47
3.06 Matters Applicable to all Requests for Compensation.......................... 47
3.07 Survival..................................................................... 48
Article IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS....................................... 48
4.01 Conditions of Initial Credit Extension....................................... 48
4.02 Conditions to all Credit Extensions.......................................... 51
Article V. REPRESENTATIONS AND WARRANTIES................................................... 51
5.01 Existence, Qualification and Power; Compliance with Laws..................... 52
i
Section Page
- ------- ----
5.02 Authorization; No Contravention.............................................. 52
5.03 Governmental Authorization; Other Consents................................... 52
5.04 Binding Effect............................................................... 52
5.05 Financial Statements; No Material Adverse Effect............................. 53
5.06 Litigation................................................................... 53
5.07 No Default................................................................... 53
5.08 Ownership of Property; Liens................................................. 54
5.09 Environmental Compliance..................................................... 54
5.10 Insurance.................................................................... 54
5.11 Taxes........................................................................ 54
5.12 ERISA Compliance; Foreign Plans.............................................. 54
5.13 Subsidiaries................................................................. 55
5.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.................................................................. 56
5.15 Disclosure................................................................... 56
5.16 Intellectual Property; Licenses, Etc......................................... 56
5.17 Pledge....................................................................... 57
5.18 Consummation of SCI Merger................................................... 57
5.19 Merger Representations....................................................... 57
Article VI. AFFIRMATIVE COVENANTS........................................................... 57
6.01 Financial Statements......................................................... 57
6.02 Certificates; Other Information.............................................. 58
6.03 Notices...................................................................... 59
6.04 Payment of Obligations....................................................... 60
6.05 Preservation of Existence, Etc............................................... 60
6.06 Maintenance of Properties.................................................... 60
6.07 Maintenance of Insurance..................................................... 60
6.08 Compliance with Laws......................................................... 60
6.09 Books and Records............................................................ 61
6.10 Inspection Rights............................................................ 61
6.11 Compliance with ERISA and Foreign Plans...................................... 61
6.12 Use of Proceeds.............................................................. 61
6.13 Change in Material Subsidiaries.............................................. 62
6.14 Opinions of Counsel Concerning Foreign Subsidiaries; Additional Items........ 64
6.15 Further Assurances........................................................... 64
6.16 Hadco Subordinated Notes..................................................... 64
Article VII. NEGATIVE COVENANTS............................................................. 65
7.01 Liens........................................................................ 65
7.02 Investments.................................................................. 67
7.03 Indebtedness................................................................. 69
7.04 Fundamental Changes.......................................................... 71
7.05 Dispositions................................................................. 71
7.06 Lease Obligations............................................................ 72
7.07 Restricted Payments.......................................................... 73
ii
Section Page
- ------- ----
7.08 ERISA; Foreign Plans......................................................... 73
7.09 Change in Nature of Business................................................. 74
7.10 Transactions with Affiliates................................................. 74
7.11 Burdensome Agreements........................................................ 74
7.12 Use of Proceeds.............................................................. 74
7.13 Financial Covenants.......................................................... 74
7.14 SCI Merger Documents......................................................... 75
Article VIII. EVENTS OF DEFAULT AND REMEDIES................................................ 75
8.01 Events of Default............................................................ 75
8.02 Remedies Upon Event of Default............................................... 78
Article IX. ADMINISTRATIVE AGENT............................................................ 78
9.01 Appointment and Authorization of Administrative Agent........................ 78
9.02 Delegation of Duties......................................................... 79
9.03 Liability of Administrative Agent............................................ 79
9.04 Reliance by Administrative Agent............................................. 80
9.05 Notice of Default............................................................ 80
9.06 Credit Decision; Disclosure of Information by Administrative Agent........... 81
9.07 Indemnification of Administrative Agent...................................... 81
9.08 Administrative Agent in its Individual Capacity.............................. 82
9.09 Successor Administrative Agent............................................... 82
9.10 Other Agents; Lead Managers.................................................. 83
9.11 Collateral Matters........................................................... 83
Article X. MISCELLANEOUS.................................................................... 83
10.01 Amendments, Etc.............................................................. 83
10.02 Notices and Other Communications; Facsimile Copies........................... 85
10.03 No Waiver; Cumulative Remedies............................................... 86
10.04 Attorney Costs, Expenses and Taxes........................................... 86
10.05 Indemnification by the Company............................................... 86
10.06 Marshalling; Payments Set Aside.............................................. 87
10.07 Successors and Assigns....................................................... 87
10.08 Confidentiality.............................................................. 90
10.09 Set-off...................................................................... 91
10.10 Interest Rate Limitation..................................................... 91
10.11 Counterparts................................................................. 92
10.12 Integration.................................................................. 92
10.13 Survival of Representations and Warranties................................... 92
10.14 Severability................................................................. 92
10.15 Addition of Designated Borrowers............................................. 92
10.16 Tax Forms.................................................................... 93
10.17 Removal and Replacement of Lenders........................................... 94
10.18 Governing Law................................................................ 95
10.19 Waiver of Right to Trial by Jury............................................. 95
10.20 Waiver of Immunity........................................................... 96
iii
Section Page
- ------- ----
10.21 Judgment Currency............................................................ 96
10.22 Designation as Senior Debt................................................... 96
iv
SCHEDULES
1.01 Mandatory Cost Rate
2.01 Commitments and Pro Rata Shares
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Notice
B Note
C Compliance Certificate
D Assignment and Acceptance
E Stock Pledge Agreement
F Company Guaranty
G Subsidiary Guaranty
H Designated Borrower Request and Assumption Agreement
I Designated Borrower Notice
J Opinion of U.S. Company Counsel
K Joinder Agreement
v
CREDIT AGREEMENT
(MULTI-YEAR)
This CREDIT AGREEMENT (MULTI-YEAR) (this "Agreement") is entered into as
of December 6, 2001 among SANMINA CORPORATION, a Delaware corporation (the
"Company"), certain Subsidiaries of the Company that from time to time become
parties hereto pursuant to Section 10.15 (each a "Designated Borrower" and,
together with the Company, the "Borrowers" and, each a "Borrower"), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender") and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.
The Company has requested that the Lenders provide a revolving
multicurrency credit facility with a letter of credit subfacility, and the
Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"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 of the Company).
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02 with respect to such currency, or such other address or account
with respect to such currency as the Administrative Agent may from time to time
notify to the Company and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether through
ownership of voting securities, by contract or otherwise.
"Agent-Related Persons" means the Administrative Agent and the
Collateral Agent (including any successor agent or agents), together with their
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Collateral Agent and the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Commitments" means the Commitments of the Lenders.
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Krona, Sterling, Yen and each
other lawful currency (other than Dollars) that is freely available and freely
transferable and convertible into Dollars and which is approved by all the
Lenders in accordance with Section 1.07.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency as determined by the Administrative Agent at
such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Alternative Currency with
Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of
the Aggregate Commitments and $100,000,000. The Alternative Currency Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Applicable Currency" has the meaning specified in Section 3.02.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating existing at such time:
Pricing Debt Rating Base Eurocurrency Utilization Facility
Level S&P / Moody's Rate Rate & L/Cs Fee Fee
------- --------------- ------ ------------ ----------- --------
1 >/- BBB / Baa2 0% 0.700% 0.125% 0.175%
2 BBB- / Baa3 0% 0.900% 0.125% 0.225%
3 BB+ / Ba1 0% 1.000% 0.250% 0.250%
4 BB / Ba2 0% 1.100% 0.250% 0.400%
5 </- BB- / Ba3 0.250% 1.250% 0.500% 0.500%
As used in this definition, "Debt Rating" means, as of any date of
determination, the rating as determined by either S&P or Moody's of the
Company's non-credit-enhanced, senior unsecured long-term debt; provided that if
a Debt Rating is issued by each of the foregoing rating agencies, then the lower
of such Debt Ratings shall apply (with Pricing Level 1 being the highest and
Pricing Level 5 being the lowest), unless there is a split in Debt Ratings of
more than one level, in which case the level that is one level higher than the
lower Debt Rating shall apply;
2
provided, further, however, initially, the Applicable Rate shall be determined
based upon Pricing Level 3 until December 31, 2001.
Each change in the Applicable Rate resulting from a publicly announced
change in the Debt Rating shall be effective during the period commencing on the
next Business Day after the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.
"Applicable Time" means, with respect to any borrowings and payments in
Alternative Currencies, the local times in the place of settlement for such
Alternative Currencies as may be determined by the Administrative Agent to be
necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
"Applicant Borrower" has the meaning specified in Section 10.15.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and the allocated cost of internal legal
services and all disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a capital lease and (c) in respect of any Permitted
Securitization, an amount equal to (i) the outstanding principal amount of
Indebtedness incurred at such time by the Securitization Subsidiary, or (ii) if
the Securitization Subsidiary has incurred no such Indebtedness, the unrecovered
purchase price of all Permitted Receivables (or interest therein) sold or
transferred by such Securitization Subsidiary to the conduit entity or other
receivables credit provider relating to such Permitted Securitization.
"Audited Financial Statements" means the audited consolidated balance
sheet of (i) the Company and its Subsidiaries for the fiscal year ended
September 30, 2000, and the related consolidated statements of income,
shareholders' equity and cash flows for such fiscal year of the Company and (ii)
SCI and its Subsidiaries for the fiscal year ended June 30, 2001, and the
related consolidated statements of income, shareholders' equity and cash flows
for such fiscal year of SCI.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly
3
announced from time to time by Bank of America as its "prime rate." Such rate is
a rate set by Bank of America based upon various factors, including Bank of
America'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 such rate
announced by Bank of America 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. All Base Rate Loans shall be denominated in Dollars.
"Borrower" and "Borrowers" each has the meaning specified in the
introductory paragraph hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type, in the same currency and having the same Interest Period made by each
of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office with respect
to Obligations denominated in Dollars is located and (a) if such day relates to
any Eurocurrency Rate Loan denominated in a currency other than Euro, means any
such day on which dealings in deposits in the relevant currency are conducted by
and between banks in the London interbank market or (b) if such day relates to
any Eurocurrency Rate Loan denominated in Euro, means a TARGET Day.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term shall have corresponding meaning. The
Company hereby grants the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a Lien on all such cash and deposit account balances.
Cash collateral shall be maintained in blocked, interest bearing deposit
accounts at Bank of America or other institutions satisfactory to it and shall
be subject to such Lien documentation as Bank of America shall reasonably
request; provided, any such documentation shall provide for "control" (within
the meaning of the Uniform Commercial Code in any applicable jurisdiction) of
such cash or deposit account.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, or any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that such a person or group shall be deemed
to have "beneficial ownership" of all
4
securities that such person or group has the right to acquire (such
right, "option right"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 35% or more
of the Equity Securities of such Person entitled to vote for members of
the board of directors or equivalent governing body on a
partially-diluted basis (i.e., taking into account all such securities
that such person or group has the right to acquire pursuant to any
option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(g) and (h), waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means the Pledged Shares and all other property and
interests in property and proceeds thereof now owned or hereafter acquired by
the Company or any of its Subsidiaries in or upon which a Lien now or hereafter
exists in favor of the Collateral Agent, the Administrative Agent or the Lenders
under any Collateral Document.
"Collateral Agent" means Bank of America in its capacity as collateral
agent under any Stock Pledge Agreement or any other Loan Document, or any
successor collateral agent.
"Collateral Documents" means, collectively, the Stock Pledge Agreements
and all other security agreements, pledge agreements and other similar
agreements between the Company or any Subsidiary of the Company and the
Administrative Agent, the Collateral Agent or any Lender now or hereafter
delivered to the Lenders or the Administrative Agent pursuant to or in
connection with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in accordance with
the Uniform Commercial Code or comparable law) against the Company or any
Subsidiary of the Company as debtor in favor of the Administrative Agent, the
Collateral Agent or any Lender, as secured party.
"Commitment" means, as to each Lender, its obligation to (a) make Loans
to the Borrowers pursuant to Section 2.01, and (b) purchase participations in
L/C Obligations, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule 2.01,
as such amount may be reduced or adjusted from time to time in accordance with
this Agreement.
5
"Company" means Sanmina Corporation, a Delaware corporation.
"Company Guaranty" means the Guaranty made by the Company in favor of
the Administrative Agent and the Lenders, substantially in the form of Exhibit
F.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated Cash Interest Charges" means, for any period, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) all cash
interest, premium payments, fees, charges and related expenses of the Company
and its Subsidiaries in connection with borrowed money or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the cash portion of rent expense of
the Company and its Subsidiaries with respect to such period under capital
leases that is treated as interest in accordance with GAAP. For purposes of
determining Consolidated Cash Interest Charges of the Company and its
Subsidiaries in connection with the calculation of the Interest Coverage Ratio
following the Acquisition of any Acquiree (as such term is defined in the
definition of Consolidated EBIT) otherwise permitted hereunder, if Consolidated
EBIT shall be adjusted as provided in the definition thereof upon the
Acquisition of such Acquiree for any Calculation Period (as such term is defined
in the definition of Consolidated EBIT), then Consolidated Cash Interest Charges
for such Calculation Period shall be adjusted on a historical pro forma basis to
(A) eliminate any cash interest charges described in clauses (a) and (b) above
accrued during such Calculation Period on any Indebtedness repaid in connection
with such Acquisition and (B) include any such cash interest charges accrued
during such Calculation Period on any Indebtedness incurred, acquired or assumed
in connection with such Acquisition. Any certificate of a Responsible Officer
delivered to the Administrative Agent and the Lenders setting forth adjustments
to Consolidated EBIT for such Calculation Period shall also set forth the
adjustments to Consolidated Cash Interest Charges in connection therewith.
"Consolidated EBIT" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
Consolidated Net Income, (d) cash and noncash charges for the fiscal quarters
ending March 31, 2001 (not exceeding $144,000,000 for such quarter), June 30,
2001 (not exceeding $50,000,000 for such quarter) and September 30, 2001 (not
exceeding $366,000,000 for such quarter), (e) nonrecurring charges taken by the
Company in any fiscal quarter after September 30, 2001 in connection with the
SCI Merger in an aggregate amount for all such quarters not to exceed
$195,000,000, (f) accounting prescribed pre-merger nonrecurring restructuring
charges taken against income by SCI during the period beginning on October 1,
2001 and ending on the Closing Date in connection with the SCI Merger in an
aggregate amount for such period not to exceed $100,000,000, (g) accounting
prescribed pre-merger nonrecurring purchase price adjustment charges taken
against income by SCI during the period beginning on October 1, 2001 and ending
on the Closing Date in connection with the SCI Merger in an aggregate amount for
such period not to exceed $100,000,000 and (h) nonrecurring noncash charges
(other than in connection with the SCI Merger) for any fiscal quarter after
December 31, 2001. For purposes of determining Consolidated EBIT of the Company
and its Subsidiaries in connection with the calculation of the Interest Coverage
Ratio following the Acquisition of any Person (an "Acquiree") otherwise
permitted hereunder, Consolidated EBIT shall, at the election
6
of the Company, be adjusted upon the Acquisition of such Acquiree (i) to include
the historical financial results of such Acquiree for the four fiscal quarter
period ("Calculation Period") for which Consolidated EBIT is calculated
hereunder, until such time as the first day of any Calculation Period falls on
or after the date on which the Acquisition of such Acquiree is consummated; and
(ii) to exclude any specific, identifiable expense items which are eliminated as
a result of the Acquisition of such Acquiree at the closing thereof; provided
that (1) supporting financial information relating thereto and satisfactory to
the Required Lenders shall have been received by the Administrative Agent and
the Lenders and (2) the Required Lenders shall have approved of such adjustment.
Notwithstanding the immediately preceding sentence, if audited financial
statements accompanied by an unqualified opinion of an independent auditor of
recognized national standing are delivered to the Administrative Agent and the
Lenders in respect of such Acquiree for the then most recent fiscal year of such
Person, then the approval of the Required Lenders shall not be required for such
adjustments to Consolidated EBIT. Any such adjustment may only be made after the
Administrative Agent and the Lenders shall have received a certificate of a
Responsible Officer clearly setting forth such adjustments.
"Consolidated Funded Indebtedness" means, as of any date of
determination, the consolidated total Indebtedness of the Company and its
Subsidiaries minus any portion thereof consisting of Indebtedness described in
clauses (b) or (c) of the definition thereof.
"Consolidated Interest Charges" means, for any period, for the Company
and its Subsidiaries on a consolidated basis, the sum of Consolidated Cash
Interest Charges for such period and Consolidated Non-Cash Interest Charges for
such period.
"Consolidated Net Income" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the net income of the Company and its
Subsidiaries from continuing operations for that period, excluding (i) gains or
losses from Dispositions of assets and (ii) other extraordinary items, in each
case for that period.
"Consolidated Non-Cash Interest Charges" means, for any period, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) all
non-cash interest, premium payments, fees, charges and related expenses of the
Company and its Subsidiaries in connection with borrowed money or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, and (b) the non-cash portion of rent
expense of the Company and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Shareholders' Equity" means, as of any date of
determination, for the Company and its Subsidiaries on a consolidated basis,
shareholders' equity as of that date determined in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Company and its Subsidiaries on a consolidated basis,
Consolidated Shareholders' Equity of the Company and its Subsidiaries on that
date minus the Intangible Assets of the Company and its Subsidiaries on that
date.
7
"Consolidated Total Capitalization" means, as of any date of
determination, Consolidated Funded Indebtedness plus Consolidated Shareholders'
Equity.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convertible Notes" means notes that are convertible into capital stock
of the Company or any of its Subsidiaries at the option of the holders thereof.
"Credit Extension" means either of the following: (a) a Borrowing, and
(b) an L/C Credit Extension.
"Debt Rating" has the meaning set forth in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurocurrency Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Designated Borrower Notice" has the meaning set forth in Section 10.15.
"Designated Borrower Request and Assumption Agreement" has the meaning
set forth in Section 10.15.
"Disclosure Letter" means the disclosure letter of the Company to the
Administrative Agent and the Lenders dated as of the Closing Date.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent at
8
such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of Dollars with such Alternative
Currency.
"Domestic Subsidiary" means any Subsidiary of the Company other than a
Foreign Subsidiary.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Eligible Material Subsidiary" shall mean, at any time, any Material
Subsidiary that is not then an Ineligible Material Subsidiary.
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht
Treaty of 1992 and the Amsterdam Treaty of 1998, as amended from time to time.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the "euro" or otherwise).
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, ordinances, rules, regulations, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions or policies, including, the Comprehensive
Environmental Response, Compensation and Liability Act, the Superfund Amendments
and Reauthorization Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Clean Air Act and the Clean Water Act, relating to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes into the environment (including, ambient air,
surface water, ground water or land) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equity Securities" means, as to any Person, the capital stock of any
class or classes or other equity, partnership or other ownership interests
(however designated and including general partnership interests in a
partnership).
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto.
"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 that is treated as such a withdrawal
9
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 Sections
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 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.
"Euro" means the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means (a) (a) for any Interest Period with respect
to any Eurocurrency Rate Loan other than one referred to in subsection (b) of
this definition:
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in the
relevant currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
(ii) if the rate referenced in the preceding subsection (i) does
not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(iii) if the rates referenced in the preceding subsections (i)
and (ii) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upwards to the
next 1/100th of 1%) at which deposits in the relevant currency for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London branch
or Affiliate) to major banks in the offshore interbank market for such
currency at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period; and
(b) for any Interest Period with respect to any Eurocurrency Rate
Loan advanced by a Lender required to comply with the relevant
requirements of the Bank of England and the Financial Services Authority
of the United Kingdom, the sum of (i) the
10
rate determined in accordance with subsection (a) of this definition and
(ii) the Mandatory Cost Rate for such Interest Period.
"Eurocurrency Rate Loan" means a Loan that bears interest at a rate
based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in
Dollars or in an Alternative Currency. All Loans denominated in an Alternative
Currency must be Eurocurrency Rate Loans.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Letters of Credit" means the letters of credit identified in
Section 1.01 of the Disclosure Letter.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.10.
"First Tier Foreign Subsidiary" means, at any date of determination,
each Foreign Subsidiary in which any one or more of the Company or its Domestic
Subsidiaries owns directly more than 50%, in the aggregate, of the Equity
Securities of such Subsidiary.
"Foreign Lender" has the meaning specified in Section 10.16(a).
"Foreign Non-Significant Subsidiary" means a Foreign Subsidiary with
assets with a book value equal to $5,000,000 or less.
"Foreign Plan" shall mean any employee benefit plan maintained by the
Company or any of its Subsidiaries which is mandated or governed by any Laws of
any Governmental Authority other than the United States.
"Foreign Subsidiary" shall mean any Subsidiary of the Company that is
organized under the laws of a jurisdiction other than the United States or a
state thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles set forth 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 such other principles as may be
approved by a significant segment of the accounting
11
profession, that are applicable to the circumstances as of the date of
determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or 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.
"Guarantors" means, collectively, the Company, and each of the
Subsidiaries of the Company (other than any Securitization Subsidiary) executing
the Subsidiary Guaranty as of the Closing Date or thereafter (as provided in
Section 6.13).
"Guaranties" means the Company Guaranty and the Subsidiary Guaranty.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligees in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligees against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided, however, that the term "Guaranty Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guarantying Person in good faith and in the case of
contingent obligations in respect of Swap Contracts, shall be equal to the Swap
Termination Value.
"Hadco Indenture" has the meaning specified in Section 10.22.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976.
"Indebtedness" means, without duplication, as to any Person at a
particular time, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:
12
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations under any Swap Contract in an amount equal to
(i) if such Swap Contract has been closed out, the termination value
thereof, or (ii) if such Swap Contract has not been closed out, the
mark-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap
Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services and indebtedness (excluding prepaid
interest thereon and excluding royalty payables and trade payables
entered into in the ordinary course of business) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse;
(e) Attributable Indebtedness in respect of capital leases,
Synthetic Lease Obligations and Permitted Securitizations; and
(f) all Guaranty Obligations of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary recourse exceptions
acceptable to the Required Lenders). The amount of any capital lease, Synthetic
Lease Obligation or Permitted Securitization as of any date shall be deemed to
be the amount of Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Ineligible Material Subsidiary" shall mean, at any time, any Material
Subsidiary (a) that is then prohibited by any applicable Law from acting as a
Guarantor under the Subsidiary Guaranty or (b) that then would incur, or would
cause the Company to incur, a significant increase in its tax liabilities or
similar liabilities or obligations as a result of acting as a Guarantor under
the Subsidiary Guaranty.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trade marks,
13
patents, unamortized deferred charges, unamortized debt discount and capitalized
research and development costs.
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of Consolidated EBIT for the period of the four consecutive fiscal
quarters ending on such date to Consolidated Cash Interest Charges for such
period.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan, the last Business Day of each March, June, September and
December and the Maturity Date.
"Interest Period" means as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or (in the case
of any Eurocurrency Rate Loan) converted to or continued as a Eurocurrency Rate
Loan and ending on the date one, two, three or six months thereafter, as
selected by the Company in its Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a Eurocurrency Rate Loan, such Business Day falls
in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurocurrency 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
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, guaranty or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.16.
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a Joinder Agreement in substantially the form
of Exhibit J.
14
"Krona" means the lawful currency of Sweden.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all outstanding L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify to the Company and the Administrative Agent.
"Letters of Credit" means any Dollar standby letters of credit issued
hereunder and shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Commitments and $100,000,000. The Letter of Credit Sublimit is part
of, and not in addition to, the Aggregate Commitments.
15
"Leverage Ratio" means, as of any date of determination, for the Company
and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Funded Indebtedness to (b) Consolidated Total Capitalization.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable or similar filing under the Laws of any
jurisdiction), including the interest of a purchaser of accounts receivable.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means this Agreement, the Disclosure Letter, each Note,
the Fee Letter, each Request for Credit Extension, each Designated Borrower
Request and Assumption Agreement, each Compliance Certificate, the Collateral
Documents, the Guaranties, each Joinder Agreement, and each other document,
instrument or agreement from time to time executed by the Company or any of its
Subsidiaries or any Responsible Officer thereof and delivered in connection with
this Agreement or any other Loan Document.
"Loan Parties" means, collectively, the Company, each Designated
Borrower, each Guarantor and each Pledgor.
"Mandatory Cost Rate" means, with respect to any period, a rate per
annum determined in accordance with Schedule 1.01.
"Mandatory Cost Reference Lender" means each of Bank of America and
Citibank, N.A.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of any Loan Party to perform its obligations under any
Loan Document to which it is a party; or (c) a material adverse effect upon (i)
the legality, validity, binding effect or enforceability against any Loan Party
of any Loan Document to which it is a party or (ii) the perfection or priority
of any Lien granted under any of the Collateral Documents.
"Material Subsidiary" shall mean, at any time during any fiscal year of
the Company, any Subsidiary of the Company that (i) held assets, excluding
Intangible Assets, on the last day of the immediately preceding fiscal year with
a book value equal to or greater than $150,000,000 as set forth or reflected in
the audited financial statements provided pursuant to Section 6.01(a) or (ii)
with respect to any Subsidiary added or created during such year, held assets,
excluding Intangible Assets, on the last day of the immediately preceding
quarter with a book value equal to or greater than $150,000,000 as set forth in
financial statements provided and reasonably satisfactory to the Administrative
Agent and the Required Lenders.
"Maturity Date" means (a) December 6, 2004, or (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance with the
terms hereof.
16
"Merger Sub" means Sun Acquisition Subsidiary, Inc., a Delaware
corporation.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Net Disposition Proceeds" means, in respect of any Disposition of any
property, net proceeds of such Disposition, calculated exclusive of reasonable
out-of-pocket expenses and taxes actually paid in connection with such
Disposition and exclusive of the amount of any Indebtedness secured solely or
principally by such property and actually repaid.
"Net Issuance Proceeds" means, as to any issuance or other incurrence of
debt or any issuance of equity or capital stock by any Person, cash proceeds and
other proceeds (of property or other tangible assets) received or receivable by
such Person in connection therewith, net of out-of-pocket costs and expenses
paid or incurred in connection therewith in favor of any Person not an Affiliate
of such Person.
"Non-Material Subsidiary" shall mean any Subsidiary of the Company which
is not a Material Subsidiary.
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender to such Borrower, substantially in the form
of Exhibit B.
"Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Loans as the same Type,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutional documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the articles of formation and
operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
applicable Governmental Authority in the jurisdiction of its formation, in each
case as amended from time to time.
"Outstanding Amount" means (i) with respect to Loans on any date, the
aggregate outstanding principal Dollar Equivalent amount thereof after giving
effect to any borrowings and
17
prepayments or repayments of Loans occurring on such date; and (ii) with respect
to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and
any other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid drawings
under any Letters of Credit or any reductions in the maximum amount available
for drawing under Letters of Credit taking effect on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America located in the applicable interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, 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 plan years.
"Permitted Acquisition" means any Acquisition that conforms to the
following requirements: (i) the assets, Person, division or line of business to
be acquired is in a substantially similar or ancillary or related line of
business as the Company, (ii) all transactions related to such Acquisition shall
be consummated in accordance in all material respects with applicable Law, (iii)
at the time of the first public announcement of an offer relating thereto, such
Acquisition has been approved by the board of directors or equivalent governing
body of the acquiree, (iv) the board of directors or equivalent governing body
of the acquiree has not at any time notified the Borrower that it opposes such
action or, if it had done so, such opposition has been withdrawn, (v)
immediately after giving effect to such Acquisition: (A) no Default or Event of
Default shall have occurred and be continuing or would result therefrom, and (B)
all actions required to be taken with respect to any such acquired or newly
formed Subsidiary under Section 6.13 shall have been or will be taken in
accordance therewith, and (vi) in the case of any Significant Acquisition, the
Administrative Agent and the Lenders shall have received no less than ten
Business Days prior to the consummation of such Significant Acquisition, (A)
financial information regarding the assets, Person, division or line of business
to be acquired, including the most recent audited financial statements, if
available, but in any case the most recently prepared balance sheet, statement
of income and statement of cash flows for the assets, Person, division or line
of business to be acquired and pro forma projected financial statements showing
the effect of the Acquisition of the assets, Person, division or line of
business to be acquired on
18
the Company, including a balance sheet for Company and its Subsidiaries as of
the time of the Acquisition and projected statements of income and cash flows
for Company and its Subsidiaries through at least the Maturity Date, and (B) a
completed Compliance Certificate prepared on a pro forma basis demonstrating the
Company's pro forma compliance with the financial covenants set forth in Section
7.13, measured as of the last day of the fiscal quarter then most recently
ended, after giving effect to such Acquisition.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables" means accounts receivable (including notes,
chattel paper, accounts, instruments and general intangibles consisting of
rights to payment) generated by the Company or any of its Subsidiaries (each, an
"originator") in the ordinary course of business, together with any guarantees,
insurance, letters of credit, collateral, service contracts and other agreements
associated with any account receivable, the interest of the originator in the
inventory and goods, including returned or repossessed inventory or goods, if
any, the sale, financing or lease of which gave rise to an account receivable,
the interest of the Securitization Subsidiary in the agreement with the
originator pursuant to which such Securitization Subsidiary purchased such
accounts receivable, and other ancillary rights of the originator arising in
connection with the transaction giving rise to such accounts receivable and all
business records relating thereto.
"Permitted Securitization" means (a) transfers constituting sales under
GAAP and accompanied by the delivery of a customary true-sale opinion given by
independent counsel, to a Securitization Subsidiary of Permitted Receivables by
the applicable originator; and (b) if applicable, the incurrence by the
Securitization Subsidiary of Attributable Indebtedness to a conduit entity or
other receivables credit provider secured by a Lien on any or all of the assets
of such Securitization Subsidiary.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority or other legal entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or any ERISA Affiliate.
"Pledged Shares" means the "Pledged Shares" as defined in any Stock
Pledge Agreement.
"Pledgors" means, collectively, the Company and each of the Subsidiaries
of the Company executing a Stock Pledge Agreement with respect to any Equity
Securities of the First Tier Foreign Subsidiaries or as otherwise provided in
Section 6.13.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07.
19
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Notice, and (b) with respect to an L/C
Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, Lenders whose
Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, president,
chief financial officer or treasurer (or any other officer having substantially
the same authority and responsibility) of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock of the
Company or any Subsidiary, or any payment with respect to such capital stock
(whether in cash, securities or other property), including any sinking fund or
similar deposit on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or of any option, warrant
or other right to acquire any such capital stock; provided that no Restricted
Payment shall be deemed to occur upon the "cashless exercise" of any options or
warrants of the Company or any Subsidiary by the holder thereof if such exercise
does not result in the deemed repayment, forgiveness or other cancellation of
Indebtedness owing to the Company or any of its Subsidiaries; provided further,
that no Restricted Payment shall be deemed to occur with respect to (i) the
payment of principal of, interest on or premium in respect of Indebtedness
evidenced by Convertible Notes in accordance with the terms of such Convertible
Notes (including in connection with the redemption or repurchase of such notes)
at any time prior to the conversion of the same into capital stock of the
Company or its Subsidiaries, (ii) the delivery of capital stock upon conversion
of Convertible Notes in accordance with the terms thereof or (iii) any payment
of cash in lieu of the issuance of fractional shares to holders of such notes
upon conversion.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(b) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02 and (c) such additional dates as
the Administrative Agent or the Required Lenders shall specify.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
20
"SCI" means SCI Systems, Inc., a Delaware corporation, and subsequent to
the consummation of the SCI Merger, the corporation surviving such merger.
"SCI Adjustable Rate Senior Notes" means the Adjustable Rate Senior
Notes due 2006 issued by SCI pursuant to the Note Purchase Agreement dated as of
June 28, 1996.
"SCI Existing 5-Year Credit Agreement" means the Credit Agreement dated
as of June 30, 2000 among SCI, the financial institutions party thereto and
Citicorp USA, as administrative agent.
"SCI Existing Indebtedness" means the Indebtedness described in Section
1.01 of the Disclosure Letter under the caption "SCI Existing Indebtedness".
"SCI Existing 364-Day Credit Facility" means the Credit Agreement dated
as of June 30, 2000 among SCI, the financial institutions party thereto and
Citicorp USA, as administrative agent.
"SCI Existing Securitization Facility" means the Second Amended and
Restated Receivables Purchase Agreement, dated as of June 14, 2000, among SCI
Funding, Inc., SCI Technology, Inc., SCI and Bank of America, N.A. as
administrative agent.
"SCI Merger" means the merger of SCI with Merger Sub, undertaken
pursuant to the SCI Merger Agreement.
"SCI Merger Agreement" means the Amended and Restated Agreement and Plan
of Reorganization dated as of July 13, 2001, among the Borrower, Merger Sub and
SCI, as amended by the Amendment to Merger Agreement dated September 14, 2001.
"SCI Merger Documents" means, collectively, the SCI Merger S-4 and each
of the documents and agreements set forth in Section 1.01 of the Disclosure
Letter under the caption "SCI Merger Documents", each in the form executed by
the parties thereto and delivered to the Administrative Agent and the Lenders
prior to the date hereof.
"SCI Merger S-4" means that Registration Statement on Form S-4 filed by
the Borrower with the SEC on August 10, 2001, as amended by amendments thereto
filed on September 26, 2001, November 1, 2001 and November 2, 2001,
respectively, together with all exhibits and attachments thereto.
"SCI Senior Notes" means the Senior Notes, Series A, due March 1, 2006
and Senior Notes, Series B, due March 1, 2006, in each case issued by SCI
pursuant to the Note Purchase Agreement dated March 12, 2001.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Subsidiary" means a Wholly-Owned Subsidiary of the
Company created solely for purposes of effectuating a Permitted Securitization,
the activities and assets of which
21
are limited solely to such purpose and assets, and the Organization Documents of
which contain customary bankruptcy -- remote provisions.
"Significant Acquisition" means any Acquisition by the Company or any
Subsidiary of the Company in respect of which the consideration therefor shall
equal or exceed $500,000,000 in the aggregate.
"Special Notice Currency" means at any time an Alternative Currency,
other than of a country that is, at such time, a member of the Organization for
Economic Cooperation and Development located in North America or Europe.
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its principal foreign exchange trading office at approximately
8:00 a.m., San Francisco time, on the date two Business Days prior to the date
as of which the foreign exchange computation is made.
"Sterling" means the lawful currency of the United Kingdom.
"Stock Pledge Agreement" means a Stock Pledge Agreement made between the
Pledgor party thereto and the Collateral Agent, substantially in the form of
Exhibit F.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity (i) of which a
majority of the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person or (ii) the
accounts of which are consolidated with such Person's on such Person's
consolidated financial statements. Unless otherwise specified, all references
herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Guaranty" means the Guaranty made by the Subsidiary
Guarantors in favor of the Administrative Agent, the L/C Issuer and the Lenders,
substantially in the form of Exhibit G.
"Subsidiary Guarantor" means each Guarantor that is a Subsidiary of the
Company.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange
22
Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"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 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 Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System (or, if such
clearing system ceases to be operative, such other clearing system (if any)
determined by the Administrative Agent to be a suitable replacement) is
operating.
"364-Day Credit Agreement" means that certain Credit Agreement (364-Day)
dated as of the date hereof among the Borrower, the lenders from time to time
party thereto and Bank of America, as administrative agent.
"364-Day Credit Agreement Loan Documents" means the "Loan Documents" as
defined in the 364-Day Credit Agreement.
"Threshold Amount" means $10,000,000.
"Type" means, with respect to a Loan, its character as a Base Rate Loan
or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension 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.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Aggregate Commitments, the percentage (carried
out to the ninth decimal
23
place) which (i) the sum of (A) the Outstanding Amount of such Lender's Loans,
plus (B) such Lender's Pro Rata Share of the Outstanding Amount of L/C
Obligations, then comprises of (ii) the Outstanding Amount of all Loans and L/C
Obligations; provided, however, that if any Lender has failed to fund any
portion of the Loans or participations in L/C Obligations required to be funded
by it hereunder, such Lender's Voting Percentage shall be deemed to be zero, and
the respective Pro Rata Shares and Voting Percentages of the other Lenders shall
be recomputed for purposes of this definition and the definition of "Required
Lenders" without regard to such Lender's Commitment or the outstanding amount of
its Loans and L/C Advances, as the case may be.
"Wholly-Owned Subsidiary" means any Subsidiary of the Borrower in which
(other than directors' qualifying shares required by Law) 100% of the Equity
Securities at the time as of which any determination is being made is owned,
beneficially and of record, by the Borrower, or by one or more of the other
Wholly-Owned Subsidiaries, or both.
"Yen" means the lawful currency of Japan.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto" and "hereunder" and words of
similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such references appear.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in electronic
or physical form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a
24
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Company or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. Such
Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Loan or the issuance of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such
Alternative Currency), as determined by the Administrative Agent.
25
1.07 ADDITIONAL ALTERNATIVE CURRENCIES. The Company may from time to
time request that Loans be made in a currency other than those specifically
listed in the definition of "Alternative Currency;" provided that such requested
currency otherwise meets the requirements set forth in such definition. Any such
request shall be made to the Administrative Agent (which shall promptly notify
each Lender thereof) not later than 8:00 a.m., San Francisco time, 15 Business
Days prior to the date of the desired Credit Extension. Each Lender shall notify
the Administrative Agent, not later than 8:00 a.m., California time, ten
Business Days after receipt of such request whether it consents, in its sole
discretion, to making Loans in such requested currency. Any failure by a Lender
to respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender to make Loans in such
requested currency. If all the Lenders consent to making Loans in such requested
currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency
hereunder.
1.08 REDENOMINATION OF CERTAIN ALTERNATIVE CURRENCIES.
(a) Each obligation of the Borrowers to make a payment denominated in
the national currency unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall be redenominated
into Euro at the time of such adoption (in accordance with the EMU Legislation).
If, in relation to the currency of any such member state, the basis of accrual
of interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the
Borrowers in Dollars or in one or more Alternative Currencies from time to time
on any Business Day during the period from the Closing Date to the Maturity
Date, in an aggregate amount not to exceed at any time outstanding the amount of
such Lender's Commitment; provided, however, that after giving effect to any
Borrowing, the Dollar Equivalent of (i) the aggregate Outstanding Amount of all
Loans and L/C Obligations shall not exceed the Aggregate Commitments, (ii) the
aggregate Outstanding Amount of the Loans of any Lender, plus such Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations shall not exceed
such Lender's Commitment, and (iii) the aggregate Outstanding Amount of all
Loans denominated in Alternative Currencies shall not exceed the Alternative
Currency Sublimit. Within the limits of each Lender's Commitment,
26
and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 2.01, prepay under Section 2.04, and reborrow under this
Section 2.01. Loans may be Base Rate Loans or Eurocurrency Rate Loans, as
further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS. (a) Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Loans as the same Type shall be made upon the Company's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
8:00 a.m., San Francisco time, (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans, (ii) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the requested
date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Loans. Each such telephonic notice must be confirmed promptly by delivery
to the Administrative Agent of a written Notice, appropriately completed and
signed by a Responsible Officer of the Company and, if applicable, any
Designated Borrower. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in Dollars shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in Alternative
Currencies shall be in a minimum principal Dollar Equivalent amount of or
approximating $5,000,000. Each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof. Each Notice (whether telephonic or written) shall specify (i)
whether the applicable Borrower is requesting a Borrowing, a conversion of Loans
from one Type to the other, or a continuation of Loans as the same Type, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may
be (which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to
which existing Loans are to be converted, (v) if applicable, the duration of the
Interest Period with respect thereto, and (vi) the currency of the Loans to be
borrowed; provided, however, that if as of the date of any notice requesting a
Borrowing, there are L/C Borrowings outstanding, the Company shall be deemed to
have requested that a portion of the requested Loans in a principal amount equal
to the outstanding principal amount of such L/C Borrowings be denominated in
Dollars. If the Company fails to specify a currency in a Notice requesting a
Borrowing, then the Loans so requested shall be made in Dollars. If the Company
fails to specify a Type of Loan in a Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans
shall be made or continued as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of Loans
denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Notice,
but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Loan may be converted into or continued as a
Loan denominated in a different currency, but instead must be prepaid in the
original currency of such Loan and reborrowed in the other currency.
27
(b) Following receipt of a Notice, the Administrative Agent shall
promptly notify each Lender of its Pro Rata Share of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the Company,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans or continuation of Loans denominated in
a currency other than Dollars, in each case as described in the preceding
subsection. In the case of a Borrowing, each Lender shall make the amount of its
Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent's Office for the applicable currency not later than 11:00
a.m., San Francisco time, in the case of any Loan denominated in Dollars, and
not later than the Applicable Time specified by the Administrative Agent in the
case of any Loan in an Alternative Currency, in each case on the Business Day
specified in the applicable Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), the Administrative Agent shall make all funds
so received available to the applicable Borrower in like funds as received by
the Administrative Agent either by (i) crediting the account of such Borrower on
the books of Bank of America with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to the
Administrative Agent by the Company; provided, however, that if, on the date of
any Borrowing in Dollars there are L/C Borrowings outstanding, then the proceeds
of such Borrowing shall be applied, first, to the payment in full of any such
L/C Borrowings, and second, to the applicable Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default or Event of Default,
no Loans may be requested as, converted to or continued as Eurocurrency Rate
Loans without the consent of the Required Lenders, and the Required Lenders may
demand that (i) any or all of the then outstanding Eurocurrency Rate Loans
denominated in Dollars be converted immediately to Base Rate Loans and (ii) any
or all of the then outstanding Eurocurrency Rate Loans denominated in an
Alternative Currency be prepaid on the last day of the then current Interest
Period with respect thereto.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Eurocurrency Rate Loan upon
determination of such interest rate. The determination of the Eurocurrency Rate
by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify the Company and the Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than six Interest Periods in effect with respect to Loans;
provided that after any termination of the 364 Day Credit Agreement, there shall
not be more than ten Interest Periods in effect with respect to Loans.
28
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.03, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue standby Letters of Credit denominated in
Dollars for the account of the Company, and to amend or renew Letters of
Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the
account of the Company; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in, any Letter
of Credit if as of the date of such L/C Credit Extension or
participation in an outstanding Letter of Credit, (w) the aggregate
Outstanding Amount of all L/C Obligations and all Loans would exceed the
Aggregate Commitments, (x) the aggregate Outstanding Amount of the Loans
of any Lender, plus such Lender's Pro Rata Share of the Outstanding
Amount of all L/C Obligations would exceed such Lender's Commitment, or
(y) the Outstanding Amount of the L/C Obligations would exceed the
Letter of Credit Sublimit. Within the foregoing limits, and subject to
the terms and conditions hereof, the Company's ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Company may,
during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.
All Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or
any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to
such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the L/C Issuer in good faith deems material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of
such requested Letter of Credit would occur more than twelve
months after the date of issuance or last renewal, unless the
Required Lenders have approved such expiry date;
29
(C) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate
one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount less than
$5,000,000.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue or
amend any Letter of Credit if the L/C Issuer has received written notice
from any Lender, the Administrative Agent or any Loan Party, on or prior
to the Business Day prior to the requested date of issuance or amendment
of such Letter of Credit, that one or more applicable conditions
contained in Article IV is not then satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Company delivered to the L/C Issuer
(with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible
Officer of the Company. Such L/C Application must be received by the L/C
Issuer and the Administrative Agent not later than 8:00 a.m., San
Francisco time, at least two Business Days (or such later date and time
as the L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a
Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the Company and, if
not, the L/C Issuer will provide the Administrative Agent with a copy
30
thereof. Upon receipt by the L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the Company or enter
into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in it sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an "Auto-Renewal Letter of Credit"); provided that any
such Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent
any such renewal at least once in each twelve-month period (commencing
with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the "Nonrenewal
Notice Date") in each such twelve-month period to be agreed upon at the
time such Letter of Credit is issued. Unless otherwise directed by the
L/C Issuer, the Company shall not be required to make a specific request
to the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the renewal of such
Letter of Credit at any time to a date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer shall not
permit any such renewal if (A) the L/C Issuer would have no obligation
at such time to issue such Letter of Credit in its renewed form under
the terms hereof, or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is two Business Days
before the Nonrenewal Notice Date (1) from the Administrative Agent that
the Required Lenders have elected not to permit such renewal or (2) from
the Administrative Agent, any Lender or the Company that one or more of
the applicable conditions specified in Section 4.02 is not then
satisfied. Notwithstanding anything to the contrary contained herein,
the L/C Issuer shall have no obligation to permit the renewal of any
Auto-Renewal Letter of Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Company and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C Issuer
shall notify the Company and the Administrative Agent thereof. Not later
than 10:00 a.m., California time, on the date of any payment by the L/C
Issuer under a Letter of Credit (each such date, an "Honor Date"), the
Company shall reimburse the L/C Issuer through the Administrative Agent
in an amount equal to Dollar amount of such drawing. If the Company
fails to so reimburse the L/C Issuer by such time, the Administrative
Agent
31
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and such Lender's Pro
Rata Share thereof. In such event, the Company shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Notice). Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent's Office for payments in an amount equal to
its Pro Rata Share of the Unreimbursed Amount not later than 11:30 a.m.,
California time, on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to the L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 4.02 cannot be satisfied or for any other reason, the
Company shall be deemed to have incurred from the L/C Issuer an L/C
Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Loan or L/C Advance pursuant to
this Section 2.03 to reimburse the L/C Issuer for any amount drawn under
any Letter of Credit, interest in respect of such Lender's Pro Rata
Share of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03, shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Company or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a
Default or Event of Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02.
Any such
32
reimbursement shall not relieve or otherwise impair the obligation of
the Company to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid
by such Lender pursuant to the foregoing provisions of this Section 2.03
by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the
Federal Funds Rate from time to time in effect. A certificate of the L/C
Issuer submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's Loan
or L/C Advance in respect of such payment in accordance with Section
2.03, if the Administrative Agent receives for the account of the L/C
Issuer any payment related to such Letter of Credit (whether directly
from the Company or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), or any payment of interest
thereon, the Administrative Agent will distribute to such Lender its Pro
Rata Share thereof in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to
be returned, each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Company to reimburse the
L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C
Borrowing and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Loans, shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that the Company may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this
33
Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Company.
The Company shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the Company
will immediately notify the L/C Issuer. The Company shall be conclusively deemed
to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
nor any of the respective correspondents, participants or assignees of the L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The Company hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Company's pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Company may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
34
suffered by the Company which the Company proves were caused by the L/C Issuer's
willful misconduct or gross negligence or the L/C Issuer's willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary
of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Company shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations. The Administrative Agent may, at any time and from time to time
after the initial deposit of Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the results of exchange rate
fluctuations.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the Company when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit equal to the Applicable Rate
times the actual daily maximum amount available to be drawn under each such
Letter of Credit. Such fee for each Letter of Credit shall be due and payable
quarterly in arrears on the Business Day immediately following last Business Day
of each March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, and on the Letter of
Credit Expiration Date. If there is any change in the Applicable Rate during any
quarter, the actual daily amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Company shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit equal to 0.125% per annum on
the daily maximum amount available to be drawn thereunder, due and payable
quarterly in arrears on the Business Day immediately following the last Business
Day of each March, June, September and December, commencing with the first such
date to occur after the issuance of such Letter of Credit, and on the Letter of
Credit Expiration Date. In addition, the Company shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such fees and
charges are due and payable on demand and are nonrefundable.
35
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 PREPAYMENTS.
(a) The Borrowers may, upon notice from the Company to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans
in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Administrative Agent not later than 8:00 a.m., San
Francisco time, (A) three Business Days prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Dollars and four Business Days (or five,
in the case of prepayment of Loans denominated in Special Notice Currencies)
prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies, and (B) on the date of prepayment of Base Rate Loans;
(ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars or Base
Rate Loans shall be in a minimum principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of
Eurocurrency Rate Loans denominated in an Alternative Currency shall be in a
minimum Dollar Equivalent principal amount of or approximating $5,000,000. Each
such notice shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of such Lender's Pro Rata Share
of such prepayment. If such notice is given by the Company, the applicable
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurocurrency Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05. Each
such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Pro Rata Shares.
(b) (i) If the Administrative Agent notifies the Company at any time
that the Dollar Equivalent of the Outstanding Amount of all Loans and L/C
Obligations at such time exceeds an amount equal to 102% of the Aggregate
Commitments then in effect, the Borrowers shall, within two Business Days after
receipt of such notice, prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce the Dollar Equivalent of
such Outstanding Amount as of the date of such payment to an amount not to
exceed 100% of the Aggregate Commitments then in effect.
(ii) If the Administrative Agent notifies the Company at any time that
the Dollar Equivalent of the Outstanding Amount of all Loans denominated in
Alternative Currencies at such time exceeds an amount equal to 102% of the
Alternative Currency Sublimit then in effect, the Borrowers shall, within two
Business Days after receipt of such notice, prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
the Dollar Equivalent of such Outstanding Amount as of the date of such payment
to an amount not to exceed 100% of the Alternative Currency Sublimit then in
effect.
2.05 Reduction or Termination of Commitments. The Borrowers may, upon
notice by the Company to the Administrative Agent, terminate the Aggregate
Commitments, or permanently reduce the Aggregate Commitments to an amount not
less than the then Outstanding Amount of all Loans and L/C Obligations; provided
that (i) any such notice shall be received by the Administrative Agent not later
than 8:00 a.m., San Francisco time, five Business
36
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof. The Administrative Agent will promptly notify
the Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. All facility and
utilization fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.06 REPAYMENT OF LOANS.
The Borrowers shall repay to the Lenders on the Maturity Date the
aggregate principal amount of Loans outstanding on such date.
2.07 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurocurrency
Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) While any Event of Default exists or after acceleration, each
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.08 FEES. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Facility Fee. The Company shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
in Dollars equal to the Applicable Rate times the actual daily amount of the
Aggregate Commitments, regardless of usage. The facility fee shall accrue at all
times from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such
37
Applicable Rate was in effect. The facility fee shall accrue at all times,
including at any time during which one or more of the conditions in Article IV
is not met.
(b) Utilization Fee. The Company shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee in Dollars equal to the Applicable Rate times the Dollar
Equivalent of the actual daily aggregate Outstanding Amount of Loans and L/C
Obligations on each day that such aggregate Outstanding Amount exceeds 33% of
the Aggregate Commitments. The utilization fee shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The utilization fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. The utilization fee shall accrue at all times, including at any time
during which one or more of the conditions in Article IV is not met.
(c) Arrangement and 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 Administrative Agent for the Administrative Agent's own account, in
Dollars in the amounts and at the times specified in the letter agreement, dated
October 17, 2001 (the "Fee Letter"), between the Company, the Arranger and the
Administrative Agent. Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
(d) Lenders' Upfront Fee. The Company agrees to pay on the Closing Date
to the Administrative Agent, the account of the Lenders, an upfront fee in
Dollars in an amount agreed between the Administrative Agent and the Company,
calculated based on each Lender's Commitment and allocated by the Administrative
Agent. Such upfront fees are for the credit facilities committed by the Lenders
under this Agreement and are fully earned on the date paid. The upfront fee paid
to each Lender is solely for its own account and is nonrefundable for any reason
whatsoever.
2.09 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans shall
be calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed. Computation of all other types of interest
and all fees shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed, which results in a higher yield to the payee
thereof than a method based on a year of 365 or 366 days, or, in the case of
interest in respect of Loans denominated in Alternative Currencies as to which
market practice differs from the foregoing, in accordance with such market
practice. Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall bear interest for one day.
2.10 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each
38
Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of the Borrowers hereunder to pay any
amount owing with respect to the Loans or L/C Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Lender made through the Administrative
Agent, such Lender's Loans to each Borrower may be evidenced by a Note from such
Borrower in addition to such accounts or records. Each Lender may attach
schedules to its Note(s) and endorse thereon the date, Type (if applicable),
amount and maturity of the applicable Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control absent manifest error.
2.11 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein and except with respect to
principal of and interest on Loans denominated in an Alternative Currency, all
payments by the Borrowers hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent's Office in Dollars and in Same Day Funds not
later than 11:00 a.m., San Francisco time, on the date specified herein. Except
as otherwise expressly provided herein, all payments by the Borrowers hereunder
with respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in such Alternative Currency and in Same Day Funds
not later than the Applicable Time specified by the Administrative Agent on the
dates specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent (i) after 11:00 a.m.,
San Francisco time, in the case of payments in Dollars, or (ii) not later than
the Applicable Time specified by the Administrative Agent in the case of
payments in an Alternative Currency, shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) Subject to the definition of "Interest Period," if any payment to be
made by the Borrowers shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
39
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Collateral Agent, Administrative Agent and each
Lender, (ii) second, toward repayment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (iii) third, toward repayment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.
(d) Unless the Company or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the applicable Borrower or such Lender, as
the case may be, will not make such payment, the Administrative Agent may assume
that the Borrowers or such Lender, as the case may be, have timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
Same Day Funds by any Borrower, then:
(i) if such Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in Same
Day Funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in Same Day Funds, at the applicable Overnight
Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in Same Day Funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent
to the applicable Borrower to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum
equal to the applicable Overnight Rate from time to time in effect. If
such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan, included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may
make a demand therefor upon the Company, and the Company shall pay (or
cause the applicable Borrower to pay) such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the
applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any
rights which the Administrative Agent or any Borrower may have against
any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
40
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Credit Extension set forth
in Article IV are not satisfied or waived in accordance with the terms hereof,
the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit are several and not joint. The failure of
any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.12 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it, or the
participations in L/C Obligations held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations held
by them, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment in respect of such Loans or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrowers in the amount of such
participation. The Administrative 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 Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
2.13 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default or Event of Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Company
may from time to
41
time, but not more often than once in each calendar year, request an increase in
the Aggregate Commitments in an amount equal to (x) $1,000,000,000 less (y) the
then existing Aggregate Commitments under this Agreement less (z) the then
existing "Aggregate Commitments" under and as defined in the 364-Day Agreement;
provided that such increase may not be for an amount less than $25,000,000. At
the time of sending such notice, the Company (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than fifteen Business Days
from the date of delivery of such notice to the Lenders). Each Lender shall
determine, in its sole discretion, whether and to what extent it will increase
its Commitments and notify the Administrative Agent within such time period
whether or not it agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Pro Rata Share of such requested
increase. Any Lender not responding within such time period shall be deemed to
have declined to increase its Commitment. The Administrative Agent shall notify
the Company and each Lender of the Lenders' responses to each request made
hereunder. In the event that the aggregate increase in Commitments agreed to by
the responding Lenders is less than the requested increase in the Aggregate
Commitments, then to achieve the full amount of a requested increase, the
Company may also invite additional Eligible Assignees to become Lenders pursuant
to a Joinder Agreement.
(b) If any Commitments are increased in accordance with this Section
2.13, the Administrative Agent and the Company shall determine the effective
date of such increase (the "Increase Effective Date"). The Administrative Agent
and the Company shall promptly notify the Lenders of the final allocation of
such increase and the Increase Effective Date, no fewer than one Business Day
prior to the Increase Effective Date. As a condition precedent to such increase,
the Company shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to
such increase, and, (ii) in the case of the Company, including a Compliance
Certificate demonstrating pro forma compliance with the financial covenants
contained in Section 7.13 after giving effect to such increase and (iii)
certifying that, before and after giving effect to such increase, the
representations and warranties contained in Article V are true and correct on
and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that
this clause (iii) shall be deemed to refer to the last day of the most recent
fiscal quarter and year for which financial statements have been delivered in
respect of the representations and warranties made in Sections 5.05(a) and (b),
respectively, and no Default or Event of Default exists. The Borrowers shall
deliver new or amended Notes reflecting the increased Commitment of any Lender
holding or requesting Notes. The Administrative Agent shall distribute an
amended Schedule 2.01 (which shall be deemed incorporated into this Agreement),
to reflect any changes therein resulting from such increase. The Borrowers shall
prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Loans ratable with any revised Pro Rata Shares arising from
any nonratable increase in the Aggregate Commitments under this Section.
42
2.14 SECURITY AND GUARANTIES.
(a) All obligations of the Company under this Agreement, the Notes and
all other Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Loan Parties under this Agreement, each of
the Notes and all other Loan Documents shall be unconditionally guaranteed by
the Guarantors pursuant to the Guaranties.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrowers to or for the account of the
Administrative Agent, the Collateral Agent or any Lender under any Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding net income taxes and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent, the Collateral Agent or
any Lender as a result of a present or former connection between the
Administrative Agent, the Collateral Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent, the Collateral Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Loan Document) (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by any Laws to deduct any Taxes from or in respect of
any sum payable under any Loan Document to the Administrative Agent, the
Collateral Agent or any Lender, then, subject to Section 3.01(e), (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), the Administrative Agent, the Collateral Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, such Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender or the
Collateral Agent, as the case may be) the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
43
(c) If any Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent, the Collateral Agent or any Lender, the Company shall also
pay (or cause the applicable Designated Borrower to pay) to the Administrative
Agent (for its own account or the account of such Lender, as the case may be),
the Collateral Agent or to such Lender, at the time interest is paid, such
additional amount that such Lender specifies as necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) the Administrative Agent, the Collateral Agent or such
Lender would have received if such Taxes or Other Taxes had not been imposed
(but only if such Taxes or Other Taxes are imposed because such Borrower has
made any payment to the Administrative Agent, the Collateral Agent or any Lender
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).
(d) The Borrowers agree to indemnify the Administrative Agent, the
Collateral Agent and each Lender for (i) the full amount of Taxes and Other
Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative
Agent, the Collateral Agent and such Lender, (ii) amounts payable under Section
3.01 and (iii) any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender, the Collateral Agent or the
Administrative Agent makes a demand therefor.
(e) The Borrowers will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 3.01(b) or (c)
to any Lender:
(i) if the obligation to pay such additional amounts arose
solely as a result of such Lender's failure to comply with its
obligations under Section 10.16;
(ii) if such Lender shall have delivered to the Company a Form
W-8ECI pursuant to Section 10.16, and such Lender shall not at any time
be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of the payments by the Borrowers hereunder
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 W-8ECI; or
(iii) if the Lender shall have delivered to the Company a Form
W-8BEN pursuant to Section 10.16, and such Lender 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 Borrowers hereunder 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 W-8BEN.
44
(f) If any Borrower is required to pay any amount to any Lender, the
Administrative Agent or the Collateral Agent pursuant to Section 3.01(b) or (c),
then such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by such Borrower which may thereafter
accrue, if such change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender.
(g) Each of the Lenders and the Administrative Agent agrees that it will
take all reasonable actions by all usual means to maintain all exemptions, if
any, available to it from the United States withholding taxes (whether available
pursuant to treaty, existing administrative waiver, or otherwise); provided,
however, that neither the Administrative Agent nor any Lender shall be obligated
by reason of this Section 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 Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency (the "Applicable Currency")), or to determine or charge interest rates
based upon the Eurocurrency Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to
take deposits of, any Applicable Currency in the applicable interbank market,
then, on notice thereof by such Lender to the Company through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans
in the Applicable Currency or, if the Applicable Currency is Dollars, to convert
Base Rate Loans to Eurocurrency Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and the Company that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the
Borrowers shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable and such Loans are denominated in Dollars,
convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans. Upon any such prepayment or conversion, the applicable
Borrower shall also pay interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. (a) If the Administrative Agent
determines in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof that (i) deposits in the relevant currency
are not being offered to banks in the applicable offshore interbank market for
such currency for the applicable amount and Interest Period of such Eurocurrency
Rate Loan, (ii) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for such Eurocurrency Rate Loan, or (iii) the Eurocurrency
Rate for such Eurocurrency Rate Loan does not adequately and fairly reflect the
cost to the Lenders of funding such Eurocurrency Rate Loan, the Administrative
Agent will promptly notify the Company and
45
all Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurocurrency Rate Loans shall be suspended until the Administrative Agent
revokes such notice. Upon receipt of such notice, the Borrowers may revoke any
pending request for a Borrowing, conversion or continuation of Eurocurrency Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.
(b) If any Mandatory Cost Reference Lender's Commitment shall terminate
(otherwise than on termination of the Aggregate Commitments), or for any reason
whatsoever any Mandatory Cost Reference Lender shall cease to be a Lender
hereunder, such Mandatory Cost Reference Lender shall thereupon cease to be a
Mandatory Cost Reference Lender, and, when necessary, the Mandatory Cost Rate
shall be determined on the basis of the rates as notified by the remaining
Mandatory Cost Reference Lenders in accordance with Schedule 1.01.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EUROCURRENCY RATE LOANS.
(a) If any Lender determines that as a result of the introduction,
announced after the date hereof, of or any change in or in the interpretation of
any Law, or such Lender's compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Loans or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this
subsection (a) any such increased costs or reduction in amount resulting from
(i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its Lending
Office, and (iii) reserve requirements contemplated by Section 3.04(c), then
from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the applicable Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.
(b) If any Lender determines that the introduction, announced after the
date hereof, of any Law regarding capital adequacy or any change, announced
after the date hereof, therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the applicable
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
(c) The Company shall pay (or cause the applicable Designated Borrower
to pay) to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency liabilities"),
additional costs on the unpaid principal amount of each Eurocurrency Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive), which shall
46
be due and payable on each date on which interest is payable on such Loan,
provided the Company shall have received at least 15 days' prior notice (with a
copy to the Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice.
3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to
the Administrative Agent) from time to time, the applicable Borrower shall
promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); 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;
(b) any failure by any Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Company;
(c) any failure by any Borrower to make payment of any Loan (or interest
due thereon) denominated in an Alternative Currency on its scheduled due date or
any payment thereof in a different currency; or
(d) any assignment of a Eurocurrency Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the Company
pursuant to Section 10.17;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a
matching deposit or other borrowing in the applicable offshore interbank market
for such currency for a comparable amount and for a comparable period, whether
or not such Eurocurrency Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent, the Collateral Agent or
any Lender claiming compensation under this Article III and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error; provided, however that the Borrowers 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 Lender responsible for the
administration of
47
this Agreement knew or reasonably should have known of such claim for
reimbursement or compensation unless the cause of such claim has retroactive
effect beyond such 180 days, in which case the Borrower shall be liable. In
determining such amount, the Administrative Agent, the Collateral Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Company may remove or replace such Lender in accordance with
Section 10.17.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article III
shall survive termination of the Aggregate Commitments and payment in full of
all the other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent
with respect to immaterial matters or items specified in clause (v) or (vi)
below with respect to which the Company has given assurances satisfactory to the
Administrative Agent that such items shall be delivered promptly following the
Closing Date), the Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent, the Lenders and
their respective legal counsel:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and the
Company;
(ii) Notes executed by the Borrowers in favor of the Lenders
requesting such Notes, each in a principal amount equal to a Lender's
Commitment;
(iii) executed counterparts of (A) the Company Guaranty from the
Company and (B) the Subsidiary Guaranty from each Eligible Material
Subsidiary;
(iv) executed counterparts of Stock Pledge Agreements from the
Pledgors with respect to 65% of any and all Equity Securities of the
Ineligible Material Subsidiaries comprising the First Tier Foreign
Subsidiaries;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Company and each Loan Party that is a Domestic Subsidiary as the
Administrative Agent may require to establish the identities of and
verify the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
48
(vi) such evidence as the Administrative Agent may reasonably
require to verify the due organization or formation, good standing and
qualification to do business with respect to the Company and each other
Loan Party that is a Domestic Subsidiary in each such Person's
jurisdiction of organization and in the jurisdiction where each such
Person maintains its principal place of business;
(vii) a certificate signed by a Responsible Officer of the
Company certifying (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied, (B) that there has been no event or
circumstance since June 30, 2001 which has or could be reasonably
expected to have a Material Adverse Effect, except as disclosed (I) in
public filings by the Company or SCI with the SEC or (II) in press
releases of the Company or SCI or other public disclosures of the
Company or SCI, in each case publicly filed or publicly released after
June 30, 2001 but prior to the date hereof; and (C) the current Debt
Ratings;
(viii) an opinion of U.S. counsel to the Company and each Loan
Party that is a Domestic Subsidiary substantially in the form of Exhibit
G;
(ix) evidence in form and substance satisfactory to the
Administrative Agent that the security interests in the Pledged Shares
of the First Tier Foreign Subsidiaries granted by the Company and its
Subsidiaries to the Collateral Agent (on behalf of the Lenders) pursuant
to the Stock Pledge Agreements have been properly perfected with first
priority (including the delivery to the Collateral Agent for the benefit
of the Lenders all of the Pledged Shares, accompanied in each case by
executed and undated stock powers (or other applicable documents or
agreements)), except for such opinions of counsel and such other
documents and assurances relating to Foreign Subsidiaries, or the Equity
Securities thereof, which shall be delivered pursuant to Section 6.14;
(x) the Disclosure Letter; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Lenders reasonably may
require.
(b) The Administrative Agent shall have received in sufficient copies
for the Lenders, in form and substance satisfactory to it and the Lenders, each
certified by a Responsible Officer of the Company (i) the Audited Financial
Statements, (ii) (A) the unaudited consolidated balance sheet of the Company and
its Subsidiaries as at December 31, 2000, March 31, 2001 and June 30, 2001, and
the related consolidated statements of income, shareholders' equity and cash
flows, for the fiscal quarters then ended and (B) the unaudited consolidated
balance sheet of SCI and its Subsidiaries as at September 30, 2001 and the
related consolidated statements of income, shareholders' equity and cash flows,
for the fiscal quarter then ended and (iii) the pro forma balance sheet of and
five-year financial statement projections for the Company and its Subsidiaries
and SCI and its Subsidiaries as of and commencing at September 30, 2001, and a
completed Compliance Certificate as of September 30, 2001 (which certificate may
omit any reference to the covenant set forth at Section 7.13(a)) based on such
pro forma balance sheet and projections, each giving effect to the SCI Merger
and the transactions contemplated in connection therewith and reflecting good
faith estimated purchase price accounting adjustments.
49
(c) The Administrative Agent shall have received, in form and substance
satisfactory to it and the Lenders, evidence satisfactory to it that the
commitments to extend credit under the SCI Existing 364-Day Credit Facility and
the SCI Existing 5-Year Credit Facility have been terminated and that all
principal, interest, charges and fees due thereunder have been paid or that
arrangements reasonably satisfactory to the Administrative Agent for the payment
thereof have been made by the Company (the Company and each Lender party hereto
that is a lender under the either of such facilities acknowledging that such
commitments shall be terminated simultaneously with the closing hereunder).
(d) The Administrative Agent shall have received, in form and substance
satisfactory to it and the Lenders, a certificate of Responsible Officers of the
Company and SCI (i) attaching true and complete copies of all SCI Merger
Documents, (ii) certifying that the SCI Merger Documents have not been altered,
amended or otherwise changed or supplemented and that no condition therein or
provision thereof has been waived, (iii) certifying that all (A) material
authorizations, consents or approvals of, notices to or filings with, any
Governmental Authority, including pursuant to the HSR Act, and (B) material
approvals and consents of any other Person, required in connection with the SCI
Merger or the execution, delivery and performance of the SCI Merger Documents,
shall have been obtained and remain in full force and effect and that all
applicable waiting periods have expired without notice of any action which seeks
to restrain, enjoin or otherwise prohibit or delay the SCI Merger having been
taken by any Governmental Authority, (iv) certifying that there does not exist
(A) any Law, order, decree, judgment, ruling or injunction which could restrain
or prevent the consummation of the SCI Merger in the manner contemplated by the
SCI Merger Documents, and (B) any pending or, to the best knowledge of such
Responsible Officers, threatened action, suit, investigation or proceeding
relating to the SCI Merger which seeks or threatens any of the foregoing and (v)
certifying that on the Closing Date the SCI Merger will be consummated in
accordance with the terms of the SCI Merger Documents and in compliance with
applicable Law.
(e) The Administrative Agent shall have received a certificate of a
Responsible Officer of SCI, in form and substance satisfactory to it and the
Lenders, (i) certifying that (A) a written offer has been made by SCI prior to
the Closing Date to each holder of record of the SCI Senior Notes to repurchase
such notes and that such offer was made in compliance with the terms of the SCI
Senior Notes and in accordance with applicable Law, (B) all of such offers have
expired in accordance with their terms and (C) payment for all such notes
tendered for repurchase in accordance with such offer has been initiated; (ii)
(A) SCI has received all necessary consents and approvals under the SCI Existing
Securitization Facility such that such facility will remain in place and will be
available to SCI subsequent to the SCI Merger and (B) there will be no default
or event of default under such facility as a result of the consummation of the
SCI Merger; and (iii) certifying that contemporaneously with the initial
Borrowing the Company has initiated repayment of the SCI Adjustable Rate Senior
Notes.
(f) The Administrative Agent shall have received a certificate of a
Responsible Officer of the Company, in form and substance satisfactory to it and
the Lenders, certifying compliance with Section 6.13(g) as of the Closing Date,
which certificate shall attach the calculations forming the basis for such
certification.
(g) Any fees required to be paid on or before the Closing Date shall
have been paid.
50
(h) The Company shall have paid all Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) of the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) as shall constitute its reasonable estimate of Attorney Costs (other
than the allocated cost of internal legal services and all disbursements of
internal counsel) incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Company and the Administrative Agent).
(i) The Closing Date shall occur on or prior to December 6, 2001.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to make any Credit Extension hereunder or otherwise to honor any Request for
Credit Extension (other than any notice requesting only a conversion of Loans to
another Type, or a continuation of Loans as the same Type) is subject to the
following conditions precedent:
(a) The representations and warranties of the Borrowers contained in
Article V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that this subsection (a) shall be
deemed to refer to the last day of the most recent fiscal quarter and year for
which financial statements have been delivered in respect of the representations
and warranties made in Sections 5.05(a) and (b), respectively.
(b) No Default or Event of Default shall exist, or would result from
such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall
have received a Request for Credit Extension in accordance with the requirements
hereof.
(d) If the applicable Borrower is a Designated Borrower, then the
conditions of Section 10.15 to the designation of such Borrower as a Designated
Borrower shall have been met to the reasonable satisfaction of the
Administrative Agent.
(e) The Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or the Required Lenders
reasonably may require.
Each Request for Credit Extension (other than any notice requesting only
a conversion of Loans to another Type, or a continuation of Loans as the same
Type) submitted by the Company shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Administrative Agent and the
Lenders that:
51
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business except
where the failure to have any such license, authorization, consent or approval
could not reasonably be expected to have a Material Adverse Effect and (ii) to
execute, deliver, and perform its obligations under the Loan Documents to which
it is a party, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license, and (d) is in compliance with all Laws, except in each case referred to
in clause (c) or this clause (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any material
Contractual Obligation to which such Person is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Person or its
property is subject; or (c) violate any Law applicable to such Loan Party.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person (except for any recordings or filings
required in connection with the Liens granted to the Administrative Agent and
the Lenders under the Collateral Documents) is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or the
grant or perfection of the Liens of the Collateral Agent (on behalf of the
Lenders) on the Collateral. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (including pursuant to the HSR Act) or any other Person
is necessary or required in connection with the SCI Merger or the execution,
delivery and performance of the SCI Merger Documents, which has not been
obtained and which does not remain in full force and effect and all applicable
waiting periods have expired without notice of any action which seeks to
restrain, enjoin or otherwise prohibit or delay the SCI Merger having been taken
by any Governmental Authority or any other Person.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditor's rights generally
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
52
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Company and its Subsidiaries and SCI and its
Subsidiaries, respectively, as of the respective dates thereof and their results
of operations for the periods covered thereby in accordance with GAAP
consistently applied throughout the periods covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Company and its Subsidiaries and SCI
and its Subsidiaries as of the respective dates thereof, including liabilities
for taxes, material commitments and Indebtedness in accordance with GAAP
consistently applied throughout the periods covered thereby.
(b) The unaudited consolidated balance sheet of (i) the Company and its
Subsidiaries as at December 31, 2000, March 31, 2001 and June 30, 2001, and the
related consolidated statements of income, shareholders' equity and cash flows
for the fiscal quarters then ended and (ii) SCI and its Subsidiaries as at
September 30, 2001, and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended, each (A)
were prepared in accordance with GAAP consistently applied throughout the period
covered thereby (subject to normal year-end adjustments and the absence of
notes), except as otherwise expressly noted therein; (B) fairly present in all
material respects the financial condition of the Company and its Subsidiaries
and SCI and its Subsidiaries, respectively, as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Company and its Subsidiaries and SCI
and its Subsidiaries, respectively, as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness in accordance with
GAAP consistently applied throughout the period covered thereby.
(c) Since June 30, 2001, there has been no event or circumstance that
has or could reasonably be expected to have a Material Adverse Effect, except as
disclosed (i) in public filings by the Company or SCI with the SEC or (ii) in
press releases of the Company or SCI or other public disclosures of the Company
or SCI, in each case publicly filed or publicly released after June 30, 2001 but
prior to the date hereof.
5.06 LITIGATION. Except as specifically disclosed in Section 5.06 of the
Disclosure Letter, there are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of the Company, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against
the Company or any of its Subsidiaries or against any of their properties or
revenues which (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) could
reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither the Company nor any Subsidiary of the Company
is in default under or with respect to any Contractual Obligation that could be
reasonably expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing
53
or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. The Company and each Subsidiary of
the Company have good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of their respective businesses, except for Permitted Liens and such
defects in title as would 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.
5.09 ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Company has reasonably concluded
that, except as specifically disclosed in Section 5.09 of the Disclosure Letter,
such Environmental Laws and claims would not, individually or in the aggregate,
have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies or through the
Company's own program of self-insurance, 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 its Subsidiaries operate.
5.11 TAXES. The Company and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state 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. To the Company's knowledge, there is no
proposed tax assessment against the Company or any Subsidiary of the Company
that would, if made, have a Material Adverse Effect.
5.12 ERISA COMPLIANCE; FOREIGN PLANS.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other applicable Federal or state
Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto and,
to the knowledge of the Company, nothing has occurred which would prevent, or
cause the loss of, such qualification. The Company and each ERISA Affiliate have
made all required contributions to each 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 knowledge of the Company, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could
54
be reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan that has resulted or could be reasonably 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 Sections 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 Sections 4069 or 4212 of ERISA.
(d) All employer and employee contributions required by any applicable
Law in connection with all Foreign Plans have been made, or, if applicable,
accrued, in accordance with the country-specific accounting practices. The fair
market value of the assets of each funded Foreign Plan, the liability of each
insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions, is
sufficient to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most recently used to
determine employer contributions to such Foreign Plan, which actuarial
assumptions are commercially reasonable. Each Foreign Plan required to be
registered has been registered and has been maintained in good standing with
applicable Governmental Authorities. Each Foreign Plan reasonably complies in
all material respects with all applicable Laws.
5.13 SUBSIDIARIES.
As of the Closing Date: (i) the Company has no Subsidiaries or Material
Subsidiaries other than those specifically disclosed in Part (a) of Section 5.13
of the Disclosure Letter (and each Material Subsidiary has been accurately
identified therein as either an Eligible or Ineligible Material Subsidiary and
as a First Tier Foreign Subsidiary, as applicable), and has no equity
investments in any other Person other than those specifically disclosed in Part
(b) of Section 5.13 of the Disclosure Letter; and (ii) Section 5.13 of the
Disclosure Letter sets forth a list of all authorized Equity Securities of each
Subsidiary of the Company, and the number of shares of each class of Equity
Securities of Material Subsidiaries that are First Tier Foreign Subsidiaries
that are issued and outstanding. All of the issued and outstanding Equity
Securities of the Company and the Subsidiaries have been duly authorized and are
validly issued, fully paid and non-assessable, and are free and clear of any
Liens and other restrictions (including any restrictions on the right to vote,
sell or otherwise dispose of such Equity Securities) and of any preemptive or
other similar rights to subscribe for or to purchase any such Equity Securities,
other than as set forth in the Stock Pledge Agreements. There are no outstanding
rights to acquire Equity Securities in any Subsidiary and no additional Equity
Securities of any Subsidiary of the Company will become issuable to any Person
pursuant to any "anti-dilution" provisions of any such issued and outstanding
Equity Securities. All Equity Securities of each Subsidiary of
55
the Company have been issued and offered in compliance in all material respects
with applicable Law.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Company is not engaged principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock.
(b) None of the Company, any Person controlling the Company, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. No statement, information, report, certification,
representation, or warranty made by any Loan Party or any Responsible Officer of
any Loan Party in any Loan Document or furnished to the Administrative Agent or
any Lender by or on behalf of any Loan Party in connection with any Loan
Document (including in any and all disclosure materials furnished by or on
behalf of any Loan Party) contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that to the extent any such document, information,
report, financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Company represents only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
document, information, report, financial statement, exhibit or schedule (it
being understood that forecasts and projections by their nature involve
approximations and uncertainties).
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Company and its
Subsidiaries own, or possess 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
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (together, "IP
Rights") that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person except for such
conflicts that could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary of the Company
infringes upon any rights held by any other Person except for any such
infringement that could not reasonably be expected to have a Material Adverse
Effect. Except as specifically disclosed in Section 5.16 of the Disclosure
Letter, no claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Company, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
56
5.17 PLEDGE. The Collateral Documents are effective to create in favor
of the Collateral Agent for the benefit of the Lenders, a legal, valid and
enforceable first priority perfected security interest in and Lien on, subject
to the terms thereof, all right, title and interest of the Company and its
Subsidiaries in the Collateral.
5.18 CONSUMMATION OF SCI MERGER. As of the Closing Date the SCI Merger
has been consummated in accordance with the terms of the SCI Merger Documents
and in compliance with applicable law and regulatory approvals. The SCI Merger
Documents have not been altered, amended or otherwise changed or supplemented in
any material respect and no material condition therein or material provision
thereof has been waived. The SCI Merger Documents are in full force and effect
and are legal, valid and binding obligations of each party thereto enforceable
against each such party in accordance with their respective terms except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditor's
rights generally and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
5.19 MERGER REPRESENTATIONS. All representations and warranties of the
Company in the SCI Merger Documents are true and correct in all material
respects as of each date made or deemed made. To the Company's knowledge, all
representations and warranties of SCI in the SCI Merger Documents are true and
correct in all material respects as of each date made or deemed made.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Company shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of its
Subsidiaries to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
GAAP and shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any qualifications and exceptions not reasonably
acceptable to the Required Lenders; and
(b) as soon as available, but in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated
57
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Company's fiscal year then ended,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Company as fairly presenting in all material respects the
financial condition, results of operations and cash flows of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to
subsection 6.02(d), the Company shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in subsection (a) and (b) above at the times specified
therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) within five days after the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default insofar as it relates to accounting matters (which
certificate may be limited to the extent required by accounting rules or
guidelines) or, if any such Default or Event of Default shall exist, stating the
nature and status of such event;
(b) within five days after the delivery of the financial statements
referred to in Sections 6.01(a) and (b): (i) a duly completed Compliance
Certificate signed by a Responsible Officer of the Company and (ii) a list of
Material Subsidiaries, Non-Material Subsidiaries and First Tier Foreign
Subsidiaries of the Company and a report on the status of the Company's
compliance with Section 6.13;
(c) promptly after requested by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Company by independent accountants in connection with the
accounts or books of the Company or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Company, and copies of all annual, regular, periodic and
special reports and registration statements which the Company may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto, in each case, other than exhibits thereto;
and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
request.
58
Reports required to be delivered pursuant to Sections 6.01(a), 6.01(b)
or 6.02(d) (to the extent any such financial statements, reports or proxy
statements are included in materials otherwise filed with the SEC) may be
delivered electronically and if so, shall be deemed to have been delivered on
the date on which the Company posts such reports, or provides a link thereto,
either: (i) on the Company's website on the Internet at the website address
listed on Schedule 10.02; or (ii) when such report is posted electronically on
IntraLinks/IntraAgency or other relevant website which each Lender and the
Administrative Agent have access to (whether a commercial, third-party website
or whether sponsored by the Administrative Agent), if any, on the Company's
behalf; provided that: (x) the Company shall deliver paper copies of such
reports to the Administrative Agent or any Lender who requests the Company to
deliver such paper copies until written request to cease delivering paper copies
is given by the Administrative Agent or such Lender; (y) the Company shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such reports and immediately following
such notification the Company shall provide to the Administrative Agent, by
electronic mail, electronic versions (i.e., soft copies) of such reports ; and
(z) in every instance the Company shall provide paper copies of the Compliance
Certificates required by subsection (c) above to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the reports referred
to above, and in any event shall have no responsibility to monitor compliance by
the Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
reports.
6.03 NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (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;
(c) of any litigation, investigation or proceeding involving any Loan
Party in which the amount involved exceeds the Threshold Amount, or in which
injunctive relief or similar relief is sought, which relief, if granted, could
be reasonably expected to have a Material Adverse Effect;
(d) of the occurrence of any ERISA Event;
(e) of any material change in accounting policies or financial reporting
practices by the Company or any Subsidiary; provided that, the description of
any such changes set forth in the Company's filings with the SEC, or the notes
to any financial statements included therein, when delivered to the
Administrative Agent and the Lenders, shall constitute notice sufficient under
this subsection (e); and
59
(f) of any announcement by Moody's or S&P of any change or possible
change in a Debt Rating.
Each notice pursuant to this Section (other than under subsection (e))
shall be accompanied by a statement of a Responsible Officer of the Company
setting forth details of the occurrence referred to therein and stating what
action the Company has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement or other Loan Document that have been breached, if
any.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable (or within any applicable grace period), all its obligations and
liabilities, including (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; (b)
all lawful claims which, if unpaid, would by law become a Lien (other than
Permitted Liens) upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05, (b) except to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect, take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
in a transaction permitted by Section 7.04 or 7.05 and (c) preserve or renew all
of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all 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; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies or through the Company's own program of
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.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws applicable to it or to its business or property, except
in such instances in which (a) such requirement is being contested in good faith
or a bona fide dispute exists with respect
60
thereto or (b) the failure to comply therewith could not be reasonably expected
to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company and its Subsidiaries, as the case may be, and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Company or its Subsidiaries, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Company and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, that when an Event
of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Company at any time during normal business hours
and without advance notice. Notwithstanding the foregoing, while no Event of
Default exists, neither the Company nor any of its Subsidiaries will be required
to disclose, permit the inspection, examination or making extracts of, or
discussion 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 Administrative Agent or any Lender (or
designated representative) is then prohibited by Law or any agreement binding on
the Company or any of its Subsidiaries that was not entered into by the Company
or any of its Subsidiaries for the purpose of concealing information from the
Administrative Agent and the Lenders or evading the provisions of this
Agreement.
6.11 COMPLIANCE WITH ERISA AND FOREIGN PLANS. (a) Do, and cause each of
its ERISA Affiliates to do, each of the following: (i) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA, the
Code and other Federal or state law; (ii) cause each Plan which is qualified
under Section 401(a) of the Code to maintain such qualification, except to the
extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (iii) make all required contributions to any Plan
subject to Section 412 of the Code.
(b) Comply, and cause each of its relevant Subsidiaries to comply, in
all material respects with all applicable Laws relating to the maintenance or
operation of each Foreign Plan, and maintain in full force and effect all
material registrations of any Foreign Plans.
6.12 USE OF PROCEEDS. Use the proceeds of the Borrowings (a) to
refinance the outstanding principal amount of the SCI Existing Indebtedness, (b)
to pay fees and expenses incurred in connection with this Agreement and the SCI
Merger and (c) for working capital and other general corporate purposes not in
contravention of any applicable Law or of any Loan Document.
61
6.13 CHANGE IN MATERIAL SUBSIDIARIES. (a) If, at any time after the date
of this Agreement, any Subsidiary of the Company that is not a Guarantor under
the Subsidiary Guaranty shall be an Eligible Material Subsidiary, the Company
promptly shall deliver, or cause to be delivered, to the Administrative Agent,
within 45 days of the date such Subsidiary was acquired by the Company in the
case of an acquired Subsidiary, or within 60 days of the end of the then current
fiscal quarter, in any other case, (i) an accession agreement in the form of
Annex 1 to the Subsidiary Guaranty, appropriately completed and duly executed by
such Subsidiary, and (ii) such other instruments, agreements, certificates,
opinions and documents as the Administrative Agent may reasonably request to
secure, maintain, protect and evidence the obligations of such Subsidiary under
the Subsidiary Guaranty.
(b) If, at any time after the date of this Agreement, any Subsidiary of
the Company that is a Guarantor under the Subsidiary Guaranty shall not be an
Eligible Material Subsidiary, the Administrative Agent shall release such
Subsidiary from its obligations under the Subsidiary Guaranty, subject to the
completion by the Company (and, if the Equity Securities of such Subsidiary are
owned directly by another Subsidiary of the Company, by such other Subsidiary)
of such actions as may be necessary to grant to the Collateral Agent, for the
benefit of the Lenders, to the extent provided in clause (c) below, a perfected
first-priority security interest in the Equity Securities of such Subsidiary.
(c) If, at any time after the date of this Agreement, any First Tier
Foreign Subsidiary of the Company shall be an Ineligible Material Subsidiary,
the Company shall deliver (or, if such Ineligible Material Subsidiary is a
direct Subsidiary of a Subsidiary of the Company, such parent Subsidiary shall
deliver), to the Administrative Agent, within 45 days of the date such
Subsidiary was acquired by the Company in the case of an acquired Subsidiary, or
within 90 days of the end of the then current fiscal quarter, in any other case,
an executed Stock Pledge Agreement, together with such instruments, agreements,
certificates, opinions and documents (including Uniform Commercial Code
financing statements) as the Administrative Agent may reasonably request, to
grant, perfect, maintain, protect and evidence first-priority security interests
in favor of the Collateral Agent, for the benefit of the Lenders, as security
for the Obligations, in 65% of any and all Equity Securities of such First Tier
Foreign Subsidiary.
(d) If as a result of any transaction otherwise permitted hereunder, any
First Tier Foreign Subsidiary whose Equity Securities have been pledged in favor
of the Collateral Agent, for the benefit of the Lenders, as security for the
Obligations, at any time becomes a Subsidiary of another First Tier Foreign
Subsidiary (a "replacement First Tier Foreign Subsidiary"), then the Collateral
Agent, on behalf of the Lenders, shall release its security interest in the
pledged Equity Securities of such Subsidiary; provided, however, that the
Collateral Agent shall have no obligation to grant such a release unless the
direct owner of the replacement First Tier Foreign Subsidiary shall have
executed and delivered a Stock Pledge Agreement to the Administrative Agent,
together with such instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements) as the Administrative
Agent may reasonably request, to grant, perfect, maintain, protect and evidence
first-priority security interests in favor of the Collateral Agent, for the
benefit of the Lenders, as security for the Obligations, in 65% of any and all
Equity Securities of such Subsidiary.
62
(e) If, at any time after the date of this Agreement, any Ineligible
Material Subsidiary becomes an Eligible Material Subsidiary, upon the Company's
compliance with sub-section (a) above, the Collateral Agent shall release the
Equity Securities of such Subsidiary from any Stock Pledge Agreement previously
delivered with respect to such Subsidiary.
(f) The Company shall deliver, and shall cause its Material Subsidiaries
to deliver, to the Administrative Agent such other Stock Pledge Agreements,
supplements thereto, guaranties, guaranty supplements and other instruments,
agreements, certificates, opinions and documents (including Uniform Commercial
Code financing statements) as the Administrative Agent may reasonably request to
establish, maintain, protect and evidence the rights provided to the
Administrative Agent or Collateral Agent, as the case may be, for the benefit of
Lenders, pursuant to the Subsidiary Guaranty and the Stock Pledge Agreements.
The Company shall fully cooperate (and cause its Subsidiaries to fully
cooperate) with the Administrative Agent and Lenders and perform all additional
acts reasonably requested by the Administrative Agent to effect the purposes of
this Section 6.13.
(g) As of the end of each fiscal quarter of each fiscal year of the
Company, the Company shall determine whether the sum of the book value of (x)
the Company's assets (excluding Intangible Assets and equity interests in
Subsidiaries) plus (y) the aggregate assets (excluding Intangible Assets) of all
Material Subsidiaries, without duplication, that have executed and delivered the
Guaranty or the Equity Securities of which are subject to a Stock Pledge
Agreement to the extent and in the manner set forth in this Section 6.13, in
each case on the last day of such fiscal quarter (the "Subject Assets") is equal
to or greater than 90% of the sum of the book value of (I) the Company's assets
(excluding Intangible Assets and equity interests in Subsidiaries) plus (II) the
aggregate assets (excluding Intangible Assets) of all Subsidiaries of the
Company, without duplication, on such date, as set forth or reflected in the
financial statements provided pursuant to Section 6.01(a) or (b), as applicable
(the "Total Assets"). In the event that the amount of Subject Assets is less
than 90% of the Total Assets, the Company shall take such actions in accordance
with subsection (h) as may be necessary to ensure that the amount of Subject
Assets is equal to or greater than 90% of the Total Assets (i) within 60 days of
such fiscal quarter end in the case of the designation of any Material
Subsidiary which is an Eligible Material Subsidiary and (ii) within 90 days of
such fiscal quarter end in the case of the designation of any Material
Subsidiary which is an Ineligible Material Subsidiary. For purposes of
determining compliance with this Section 6.13(g), the book value of assets of
any Subsidiaries (other than Securitization Subsidiaries) owned by First Tier
Foreign Subsidiaries (excluding Intangible Assets and amounts owing to such
Subsidiary by the Company or any of its Subsidiaries) will be taken into account
in measuring such compliance, provided that the requisite amount of Equity
Securities of such First Tier Foreign Subsidiaries is pledged in accordance with
the provisions of this Agreement.
(h) In order to comply with Section 6.13(g), the Company may elect to
designate any Non-Material Subsidiary as a Material Subsidiary and, provided
such Subsidiary complies with each of the provisions of this Section 6.13, the
assets of such Subsidiary shall be included in determining compliance with
subsection (g); provided that, from and after any such election such Subsidiary
shall be subject to all terms and provisions of this Agreement and the other
Loan Documents as if such Subsidiary were a Material Subsidiary.
63
(i) In the event that any Material Subsidiary shall become a
Non-Material Subsidiary then the Administrative Agent shall release such
Subsidiary from its obligations under the Subsidiary Guaranty or the Collateral
Agent shall release the Equity Securities of such Subsidiary from any Stock
Pledge Agreement relating thereto, as the case may be; provided that after
giving effect to such release the Company shall continue to remain in compliance
with the provisions of Section 6.13(g).
(j) Notwithstanding any other provision of this Agreement to the
contrary, nothing herein shall be deemed to require delivery of a Guaranty from
any Securitization Subsidiary or the pledge of any Equity Securities of any
Securitization Subsidiary.
6.14 OPINIONS OF COUNSEL CONCERNING FOREIGN SUBSIDIARIES; ADDITIONAL
ITEMS. Within 60 days after the Closing Date the Company shall deliver to the
Administrative Agent (a) such opinions of non-U.S. counsel to the Company or its
Subsidiaries addressed to the Administrative Agent and the Lenders regarding any
Foreign Subsidiary of the Company that (i) has entered into the Subsidiary
Guaranty or (ii) that has pledged Equity Securities, or the Equity Securities of
which have been pledged, pursuant to a Stock Pledge Agreement, with respect to
compliance with the laws of organization of any such Subsidiary and such other
matters as the Administrative Agent shall reasonably request, each in form and
substance satisfactory to the Administrative Agent, (b) such evidence of the
security interests in the Pledged Shares and the priority and perfection
thereof, as the Administrative Agent shall reasonably request, (c) such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party that is a Foreign
Subsidiary as the Administrative Agent may require to establish the identities
of and verify the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and
the other Loan Documents to which such Loan Party is a party, and (d) such
evidence as the Administrative Agent may reasonably require to verify the due
organization or formation, good standing and qualification to do business with
respect to each Loan Party that is a Foreign Subsidiary.
6.15 FURTHER ASSURANCES. Promptly upon request by the Administrative
Agent, the Company shall (and shall cause any of its Subsidiaries to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, conveyances, security agreements,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments the Administrative Agent or the Lenders, as the case may be, may
reasonably require from time to time in order (i) to carry out more effectively
the purposes of this Agreement or any other Loan Document, (ii) to subject to
the Liens created by any of the Collateral Documents any of the properties,
rights or interests covered by any of the Collateral Documents, (iii) to perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby, and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent and the Lenders the rights granted or now or hereafter
intended to be granted to the Lenders under any Loan Document or under any other
document executed in connection therewith.
6.16 HADCO SUBORDINATED NOTES. Within 55 days after the Closing Date the
Company shall (a) have completed the redemption of all subordinated notes issued
and
64
outstanding under the Hadco Indenture and (b) shall deliver to the
Administrative Agent a certificate of a Responsible Officer certifying
compliance with the preceding clause (a) and certifying that no Indebtedness
remains outstanding or unpaid under the Hadco Indenture.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following (collectively, "Permitted Liens"):
(a) Liens pursuant to any Loan Document or any 364-Day Credit Agreement
Loan Document;
(b) Liens existing on the date hereof and listed in Section 7.01 of the
Disclosure Letter and any renewals or extensions thereof, provided that the
property covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA or any Foreign Plan;
(f) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), contracts for the purchase of property, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company and its Subsidiaries taken as a whole;
(h) Liens securing judgments for the payment of money in an aggregate
amount not in excess of the Threshold Amount (except to the extent covered by
independent third-party
65
insurance as to which the insurer has acknowledged in writing its obligation to
cover), unless any such judgment remains undischarged for a period of more than
30 consecutive days during which execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness (and accessions, additions and
attachments thereto, and the proceeds thereof) and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(j) the interest of a purchaser of Permitted Receivables acquired
pursuant to, or any Lien on the assets of a Securitization Subsidiary granted
pursuant to, one or more Permitted Securitizations;
(k) Liens on specific tangible assets (including real estate, but not
including inventory and other current assets) acquired in Permitted Acquisitions
after the date of this Agreement; provided, however, that (A) such Liens existed
at the time of the Permitted Acquisition and were not created in anticipation
thereof, (B) any such Lien does not by its terms cover any assets after the time
of the Permitted Acquisition which were not covered immediately prior thereto,
and (C) any such Lien does not by its terms secure any Indebtedness other than
Indebtedness existing immediately prior to the time of the Permitted
Acquisition;
(l) Liens in favor of the Company or any Material Subsidiary on all or
part of the assets of any Eligible Material Subsidiary of the Company securing
Indebtedness owing by any such Subsidiary of the Company to the Company or to a
Material Subsidiary permitted to be incurred under Section 7.03(j);
(m) any Liens securing Indebtedness permitted under Section 7.03(k);
(n) any Lien on cash collateral to collateralize any standby letter of
credit with a face amount of 286,000,000 Krona issued by Bank of America for the
account of the Company for the benefit of certain minority shareholders of
Sanmina Kista AB;
(o) Liens arising by virtue of any contractual, statutory or common law
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 or the relevant Subsidiary in excess of those set forth by
the regulations promulgated by the FRB, and (ii) such deposit account is not
intended by the Company or any of its Subsidiaries to provide collateral to the
depository institution with respect to otherwise unrelated obligations of the
Company or any such Subsidiary to such depository institution;
(p) Liens consisting of pledges of cash collateral or government
securities to secure on a mark-to-market basis Swap Contracts only; provided
that the aggregate value of such collateral so pledged by the Company and its
Subsidiaries in favor of any counterparty does not at any time exceed
$10,000,000 in the aggregate;
66
(q) Liens incurred in connection with sale-leaseback transactions
permitted under Section 7.05;
(r) Liens consisting of precautionary financing statements filed in
connection with operating leases and Liens granted to secure obligations with
respect to any Synthetic Lease Obligation;
(s) Leases or subleases and licenses or sublicenses granted to others in
the ordinary course of business which do not interfere in any material respect
with the business operations of the Company and its Subsidiaries taken as a
whole;
(t) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(u) Liens on insurance proceeds securing the payment of financed
insurance premiums;
(v) Liens on cash collateral securing letters of credit not issued
pursuant to this Agreement in an aggregate face amount outstanding at any time
not to exceed $50,000,000 to the extent permitted under Section 7.03(m);
(w) customary Liens granted in favor of a trustee to secure fees and
other amounts owing to such trustee under an indenture or other agreement
pursuant to which Indebtedness permitted by Section 7.03 is issued;
(x) Liens created in favor of a customer of the Company or any of its
Subsidiaries with respect to specific goods or work-in-process to secure
advances by the customer to the Company or such Subsidiary to purchase or cause
the manufacture of the goods or work-in-process securing the advances, if (A)
such Liens shall secure only the amount used to purchase or manufacture such
goods or work-in-process so purchased or manufactured, and (B) such Liens shall
be limited to the applicable goods or work-in-process; and
(y) other Liens on assets with an aggregate fair-market value not
exceeding $5,000,000 in total.
provided that, notwithstanding any of subsections (a) through (y) of this
Section 7.01, in no case shall the Company or any Subsidiary of the Company
create, incur, assume or suffer to exist any Lien upon (i) any Collateral or
upon any Equity Securities of any Material Subsidiary, except in accordance with
subsection (a) of this Section 7.01 or (ii) any accounts receivable or
inventory, except in accordance subsection (j) of this Section 7.01.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments other than those permitted by subsections (b) through
(m) that are existing on the date hereof and listed in Section 7.02 of the
Disclosure Letter;
67
(b) Investments held by the Company or any Subsidiary of the Company in
the form of cash equivalents or marketable securities, in each case in
accordance with the Company's investment policies in effect from time to time;
(c) advances to officers, directors and employees of the Company and
Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes;
(d) Investments of the Company or any Eligible Material Subsidiary in
any Eligible Material Subsidiary or in the Company;
(e) Investments (i) of the Company or any Eligible Material Subsidiary
in any Ineligible Material Subsidiary or any Non-Material Subsidiary of the
Company or (ii) of any Ineligible Material Subsidiary or Non-Material Subsidiary
of the Company in the Company or another Subsidiary of the Company; provided
that in the case of any Investments permitted under clause (i), (A) at the time
of any such Investment, no Event of Default shall exist or shall result from
such Investment, and (B) the aggregate amount of such Investments shall not
exceed in any fiscal year 5% of the total tangible assets of the Company and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
(f) Investments consisting of extensions of credit in the nature of
accounts receivable, prepaid royalties, or notes receivable arising from the
sale or lease of goods or services in the ordinary course of business,
Investments received in settlement of delinquent obligations or disputes, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(g) Guaranty Obligations permitted by Section 7.03;
(h) Investments permitted by Section 7.04;
(i) additional Investments by the Company, excluding Acquisitions, in
Persons other than Subsidiaries, provided that (i) at the time of any such
Investment, no Event of Default shall exist or shall result from such
Investment, and (ii) the aggregate amount of such Investments shall not exceed
in any fiscal year 5% of the total tangible assets of the Company and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
(j) Permitted Acquisitions;
(k) Investments constituting Swap Contracts or payments or advances
under Swap Contracts;
(l) Investments accepted in connection with Dispositions permitted by
Section 7.05; and
(m) Investments acquired by the Company or any of its Subsidiaries (i)
in exchange for any other Investment held by the Company or such Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such
68
Investment or (ii) as a result of a foreclosure by the Company or any of its
Subsidiaries with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except; and
(a) Indebtedness and Guaranty Obligations under the Loan Documents or
the 364-Day Credit Agreement Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed in Section
7.03 of the Disclosure Letter and any refinancings, refundings, renewals or
extensions thereof; provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder;
(c) Guaranty Obligations (i) of the Company in respect of Indebtedness
otherwise permitted hereunder of any Wholly-Owned Subsidiary or (ii) of any
Subsidiary in respect of senior Indebtedness otherwise permitted hereunder of
the Company or any Wholly-Owned Subsidiary;
(d) obligations (contingent or otherwise) of the Company or any
Subsidiary existing or arising under any Swap Contract, provided that (i) 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, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person and not for purposes of speculation or taking a "market view;" (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party and (iii) at any time, the aggregate Swap Termination Value
which would be owed by the Company and its Subsidiaries in the event of a
Termination Event under all such Swap Contracts does not exceed $75,000,000;
(e) Indebtedness in respect of capital leases and purchase money
obligations for fixed or capital assets within the limitations set forth in
Section 7.01(i) and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at the
time of such refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder;
(f) Indebtedness incurred pursuant to Permitted Securitizations;
provided that at any time the aggregate amount of Indebtedness incurred pursuant
to Permitted Securitizations shall not exceed 30% of all accounts receivable of
the Company and its Subsidiaries on a consolidated basis;
69
(g) any other Indebtedness of the Company (other than in respect of
letters of credit) not secured by any Lien on any assets or property of the
Company or any of its Subsidiaries;
(h) Indebtedness of a Subsidiary acquired after the Closing Date and
Indebtedness of a Person merged or consolidated with or into the Company or a
Subsidiary of the Company after the Closing Date, which Indebtedness in each
case existed at the time of such acquisition, merger, consolidation or
conversion into a Subsidiary and was not created in contemplation of such event
and where such acquisition, merger or consolidation is permitted by this
Agreement and any Liens securing such Indebtedness shall be in compliance with
Section 7.01(k); provided that any such Indebtedness of an Eligible Material
Subsidiary must be on terms satisfactory to the Administrative Agent and
Required Lenders such that the Subsidiary Guaranty of such Subsidiary ranks
equal to or senior in right of payment to such Indebtedness; and provided
further that (i) any Indebtedness in an aggregate principal amount equaling or
exceeding $500,000,000 must be on terms satisfactory to the Administrative Agent
and Required Lenders and (ii) no Default or Event of Default shall result from
the assumption of such Indebtedness (regardless of principal amount);
(i) (i) Indebtedness of any Eligible Material Subsidiaries not secured
by any Lien on any assets or property of the Company or any of its Subsidiaries,
other than in respect of letters of credit and (ii) Indebtedness of any
Ineligible Material Subsidiary or Non-Material Subsidiary not secured by any
Lien on any assets or property of the Company or any of its Subsidiaries, other
than in respect of letters of credit; provided that in the case of clause (ii)
the aggregate principal amount of all such Indebtedness outstanding does not
exceed at any time an amount equal to 5% of the total tangible assets of the
Company and its Subsidiaries on a consolidated basis as determined in accordance
with GAAP as of the last day of the immediately preceding fiscal quarter;
(j) (i) Indebtedness of any Eligible Material Subsidiary owing to the
Company or any other Eligible Material Subsidiary and (ii) (A) Indebtedness of
any Ineligible Material Subsidiary owing to the Company or any other Subsidiary
or (B) Indebtedness of any Non-Material Subsidiary owing to the Company or any
other Subsidiary; provided that in the case of clause (ii) the aggregate
principal amount of all such Indebtedness outstanding does not exceed at any
time an amount equal to 5% of the total tangible assets of the Company and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
(k) other Indebtedness of the Company or any Subsidiary of the Company
to Persons other than Subsidiaries that is secured by a Lien on any assets or
property of the Company or any its Subsidiaries, provided that the aggregate
principal amount of all such secured Indebtedness (other than existing secured
Indebtedness described in Section 7.03(a)), does not exceed $50,000,000 at any
time outstanding;
(l) Indebtedness consisting of guarantees (and other credit support) of
the obligations of vendors and suppliers of the Company or its Subsidiaries in
respect of transactions entered into in the ordinary course of business;
provided that the aggregate principal amount of the Indebtedness in respect of
which such guarantees (and other credit support) are provided shall not exceed
at any time $10,000,000; and
70
(m) reimbursement obligations (whether matured or contingent) in respect
of letters of credit in an aggregate face amount not to exceed $100,000,000 at
any time.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary of the Borrower may merge with (i) the Company,
provided that the Company shall be the continuing or surviving Person, or (ii)
any one or more Subsidiaries of the Company, and provided further, however, that
when any Wholly-Owned Subsidiary of the Company is merging with another
Subsidiary of the Company, a Wholly-Owned Subsidiary of the Company shall be the
continuing or surviving Person, and when any Non-Material Subsidiary of the
Company is merging with a Material Subsidiary of the Company, a Material
Subsidiary of the Company shall be the continuing or surviving Person;
(b) any Subsidiary of the Company may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to the Company or to
another Subsidiary of the Company; provided that the transferee of any such
assets in such a transaction shall be a Material Subsidiary that is a
Wholly-Owned Subsidiary of the Company;
(c) any Person may merge into or consolidate with the Company in a
transaction in which the Company is the surviving Person;
(d) the Company, SCI and Merger Sub may consummate the SCI Merger; and
(e) in connection with a Permitted Acquisition, any Person may merge
into or consolidate with (i) the Company, provided that the Company shall be the
continuing or surviving Person or (ii) any Subsidiary of the Company, provided
that if such Subsidiary is (a) a Wholly-Owned Subsidiary of the Company, such
Wholly-Owned Subsidiary shall be the continuing or surviving Person or (b) a
Material Subsidiary of the Company, such Material Subsidiary shall be the
continuing or surviving Person.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and other property in the ordinary course
of business;
(c) Dispositions of equipment or real property other than in the
ordinary course of business to the extent that such property is exchanged for
credit against the purchase price of similar replacement property, or the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;
(d) Dispositions of property by (i) any Eligible Material Subsidiary to
the Company or to any other Eligible Material Subsidiary that is a Wholly-Owned
Subsidiary, (ii) by any
71
Ineligible Material Subsidiary to the Company or any other Material Subsidiary
that is a Wholly-Owned Subsidiary; and (iii) by any Non-Material Subsidiary to
the Company or any Material Subsidiary that is a Wholly-Owned Subsidiary;
(e) Dispositions by the Company and its Subsidiaries of property
pursuant to sale-leaseback transactions, provided that the aggregate book value
of all property so Disposed of in any fiscal year shall not exceed 5% of the
total tangible assets of the Company and its Subsidiaries on a consolidated
basis as determined in accordance with GAAP as of the last day of the
immediately preceding fiscal quarter;
(f) Dispositions permitted by Section 7.04;
(g) Non-exclusive licenses of IP Rights in the ordinary course of
business and substantially consistent with past practice for terms not exceeding
five years;
(h) a sale or transfer of Permitted Receivables pursuant to one or more
Permitted Securitizations, subject to the limitations set forth in Section
7.03(f) with respect to any such Permitted Securitizations; and
(i) Dispositions not otherwise permitted hereunder; provided that (i) at
the time of any Disposition, no Event of Default shall exist or shall result
from such Disposition, and (ii) the Net Disposition Proceeds from such
Dispositions by the Company and its Subsidiaries, together, shall not exceed in
any fiscal year 5% of the total tangible assets of the Company and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
provided, however, that any Disposition pursuant to subsections (a) through (i)
of this Section 7.05 shall be for fair market value; and provided further that,
notwithstanding any of subsections (a) through (i) of this Section 7.05, in no
case shall the Company or any Subsidiary of the Company be permitted to make any
Disposition of (A) any accounts receivable, except in accordance with subsection
(h) of this Section 7.05 or in accordance with Section 7.04, (B) any Collateral
or any Equity Securities of any Material Subsidiary, or (C) any Material
Subsidiary or all or substantially all of the assets of any Material Subsidiary,
except in accordance with subsection (h) of this Section 7.05.
7.06 LEASE OBLIGATIONS. Create or suffer to exist any obligations for
the payment of rent for any property under lease or agreement to lease, except:
(a) leases in existence on the date hereof and any renewal, extension or
refinancing thereof;
(b) operating leases (other than those constituting Synthetic Lease
Obligations) entered into or assumed by the Company or any Subsidiary after the
date hereof;
(c) leases in connection with any sale-leaseback arrangement permitted
hereby; and
(d) capital leases and Synthetic Lease Obligations to the extent
permitted by Section 7.03.
72
7.07 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Subsidiary may make Restricted Payments to the Company and to
Wholly-Owned Subsidiaries (and, in the case of a Restricted Payment by a
non-Wholly-Owned Subsidiary, to the Company and any Subsidiary and to each other
owner of capital stock of such Subsidiary on a pro rata basis based on their
relative ownership interests);
(b) the Company and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock of such
Person;
(c) the Company and each Subsidiary may purchase, redeem or otherwise
acquire (i) shares of its common stock or warrants or options to acquire any
such shares with the proceeds received from the substantially concurrent issue
of new shares of its common stock or (ii) non-cash rights distributed in
connection with any stockholders' rights plan;
(d) at any time the Company's Debt Rating by (i) S&P is "BB-" or higher
and (ii) Moody's is "Ba3" or higher, the Company may (A) declare or pay cash
dividends to its stockholders solely out of 50% of Consolidated Net Income of
the Company arising after the date of this Agreement and computed on a
cumulative consolidated basis with other such dividends by the Company since
that date and (B) purchase, redeem or otherwise acquire shares of its capital
stock or warrants, rights or options to acquire any such shares for cash;
provided, that, in each case immediately after giving effect to such proposed
action, no Default or Event of Default would exist; provided further, that in
the case of clause (B) the aggregate number of shares of a class of capital
stock, warrants, rights or options to acquire shares of capital stock of the
Company purchased, redeemed or otherwise acquired from and after the date of
this Agreement shall at no time exceed a number equal to 5% of the number of
outstanding shares of common stock of the Company on the Closing Date prior to
giving effect to the SCI Merger (adjusted to reflect subsequent stock dividends,
stock splits and recapitalizations);
(e) Any First Tier Foreign Subsidiary which is a special purpose
subsidiary formed in connection with a structured financing transaction, the
proceeds of which are loaned to an Eligible Material Subsidiary, may pay
dividends or other distributions or redeem its preferred stock in accordance
with the terms of such financing; and
(f) the Company and its Subsidiaries may make payments or distributions
to dissenting stockholders pursuant to applicable law pursuant to or in
connection with a Permitted Acquisition.
7.08 ERISA; FOREIGN PLANS. (a) At any time engage in a transaction which
could be subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code); (ii) fail to comply with ERISA or any other applicable Laws; or (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), which, with respect to each event listed above, could be reasonably
expected to have a Material Adverse Effect;
73
(b) (i) At any time engage in any transaction prohibited by any Law
applicable to any Foreign Plan, (ii) fail to make full payment when due of all
amounts due as contributions to any Foreign Plan or (iii) otherwise fail to
comply with the requirements of any Law applicable to any Foreign Plan, which,
with respect to each event listed above, could be reasonably expected to have a
Material Adverse Effect.
7.09 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Company and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Company, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Company or any Subsidiary of the Company as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to transactions between or among the Company and any of its
Wholly Owned Subsidiaries or between and among any Wholly Owned Subsidiaries;
provided that the Company and its Subsidiaries may enter into transactions
permitted by Section 7.02.
7.11 BURDENSOME AGREEMENTS. Except to the extent included as of the
Closing Date in the provisions of Contractual Obligations relating to the
Indebtedness listed in Section 7.11 of the Disclosure Letter, enter into any
Contractual Obligation that limits the ability (a) of any Subsidiary of the
Company to make Restricted Payments to the Company or to otherwise transfer
property to the Company or (b) of the Company or any Subsidiary of the Company
to create, incur, assume or suffer to exist Liens on property of such Person
(such a Contractual Obligation a "negative pledge"); provided, however, that
this subsection shall not prohibit (i) any negative pledge or limitation on the
making of Restricted Payments set forth in the Collateral Documents or the
364-Day Credit Agreement Loan Documents or (ii) any negative pledge incurred or
provided in favor of any holder of Indebtedness permitted under Sections 7.03(e)
or Section 7.03(f) or in favor of a Person who has been granted a Lien permitted
under Section 7.01(v) or Section 7.01(w), in each case solely to the extent any
such negative pledge relates to property financed by or the subject of such
Indebtedness or the property subject to such Lien, as the case may be.
7.12 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose, in each
case in violation of, or for a purpose which violates, or would be inconsistent
with, Regulation T, U or X of the FRB.
7.13 FINANCIAL COVENANTS.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth as of the end of any fiscal quarter of the Company to be less than the sum
of (a) 80% of Consolidated Tangible Net Worth as of the fiscal quarter ending
December 31, 2001, (b) an amount equal to 50% of the Consolidated Net Income
earned in each fiscal quarter ending after December 31,
74
2001 (with no deduction for a net loss in any such fiscal quarter), (c) an
amount equal to 50% of the aggregate increases in Shareholders' Equity of the
Company and its Subsidiaries after December 31, 2001 by reason of the conversion
of debt securities of the Company or its Subsidiaries into capital stock, and
(d) an amount equal to 50% of the Net Issuance Proceeds of any issuance of
capital stock of the Company or any of its Subsidiaries after December 31, 2001.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of
the end of any fiscal quarter of the Company to be less than the following
amounts:
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
September 30, 2001
December 31, 2001 2.00:1.00
March 31, 2002
June 30, 2002
September 30, 2002
December 31, 2002
March 31, 2003 2.50:1.00
June 30, 2003 2.75:1.00
September 30, 2003
and thereafter 3.00:1.00
(c) Leverage Ratio. Permit the Leverage Ratio as of the end of any
fiscal quarter of the Company to be greater than 0.50:1.00.
7.14 SCI MERGER DOCUMENTS. Alter, amend or otherwise change or
supplement any material provision of the SCI Merger Documents or waive any
material provision thereof.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) Non-Payment. Any Borrower shall fail to pay (i) when and as required
to be paid herein, and in the currency required hereunder, any amount of
principal of any Loan, or any L/C Obligation or (ii) within three days after the
same becomes due, any interest on any Loan or on any L/C Obligation, or any
facility, utilization or other fee due hereunder, or (iii) within five days
after the same becomes due, any other amount payable by such Borrower hereunder
or under any other Loan Document; or
(b) Specific Covenants. Any Borrower or any Loan Party fails to perform
or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03, 6.05, 6.10, 6.12, 6.13, 6.14 or 6.16 or Article VII or a Guaranty or
a Stock Pledge Agreement; or
75
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (x) the date on 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 Administrative
Agent or any Lender; or
(d) Representations and Warranties. Any representation or warranty made
or deemed made by any Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
proves to have been incorrect when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary of the Company (A)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guaranty Obligation (other than Indebtedness hereunder and Indebtedness under
Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $10,000,000,
or (B) fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guaranty Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
in each case, the effect of which default or other event described in clause (A)
or (B) is to cause, or to permit the holder or holders of such Indebtedness or
the beneficiary or beneficiaries of such Guaranty Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded
or to become due or to be repurchased or redeemed (automatically or otherwise)
prior to its stated maturity, or such Guaranty Obligation to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) 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 (B) any Termination Event (as so defined) under such Swap Contract
as to which the Company or any Subsidiary is an Affected Party (as so defined)
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
(f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary of the
Company other than a Foreign Non-Significant Subsidiary institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or
76
(g) Inability to Pay Debts; Attachment. (i) The Company or Subsidiary of
the Company other than a Foreign Non-Significant Subsidiary becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against the Company or any Subsidiary of
the Company other than a Foreign Non-Significant Subsidiary (i) a final judgment
or order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage), or (ii) any non-monetary final
judgment that has, or could reasonably be expected to have, a Material Adverse
Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 30 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Company or any Subsidiary of the Company under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate
fails 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 the
Threshold Amount; or
(j) Collateral. Any defined "Event of Default" as defined in any
Collateral Document shall have occurred and is continuing; any provision of any
Collateral Document shall for any reason be revoked or invalidated, or otherwise
cease to be in full force and effect or the Company or any Subsidiary of the
Company or any other Person shall contest in any manner the validity or
enforceability thereof or deny that it has any further liability or obligation
thereunder, or any Collateral Document shall for any reason (other than pursuant
to the terms thereof) cease to create a valid security interest in the
Collateral purported to be covered thereby or such security interest shall for
any reason cease to be a perfected and first priority security interest; or
(k) Failure by any Guarantor to Perform Covenants; Invalidity of
Guaranties. Any Guarantor shall fail to perform or observe any term, covenant or
agreement contained in its Guaranty on its part to be performed or observed, or
any default shall occur under the Guaranty to which it is a party, and any such
failure or default shall continue after the applicable grace period, if any,
specified in such Guaranty as of the date of such failure, or any defined "Event
of Default" as defined in any Guaranty shall have occurred and is continuing;
except as provided in Section 6.13, or any Guaranty shall for any reason be
revoked or invalidated, or otherwise cease to be in full force and effect, or
any Guarantor or any other Person shall contest in any manner the validity or
enforceability thereof or deny that it has any further liability or obligation
thereunder; or
77
(l) Invalidity of Loan Documents. Any other Loan Document or any
provision thereof, at any time after its execution and delivery and for any
reason other than the agreement of all the Lenders or satisfaction in full of
all the Obligations, ceases to be in full force and effect, or is declared by a
court of competent jurisdiction to be null and void, invalid or unenforceable in
any respect; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any other Loan Document; or
(m) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation 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 each Borrower;
(c) require that the Company Cash Collateralize the L/C Obligations (in
an amount equal to the Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders (or cause the
Collateral Agent to exercise) all rights and remedies available to it and the
Lenders under the Loan Documents or applicable Law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of Section 8.01, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Company to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision
78
to the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) The Collateral Agent shall act on behalf of the Lenders and the
Administrative Agent with respect to the Collateral and the Collateral Documents
associated therewith; provided, however, that the Collateral Agent shall have
all of the benefits and immunities provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered by the
Collateral Agent in connection with the Collateral and the Collateral Documents
as fully as if the term "Administrative Agent" as used in this Article IX
included the Collateral Agent with respect to such acts or omissions.
(c) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith until
such time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for the L/C Issuer with respect thereto;
provided, however, that the L/C Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Article IX
included the L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the L/C Issuer.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or for the value of or title to any Collateral,
79
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of any Loan Party
or any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or a Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
80
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, the
value of and title to any Collateral and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrowers and any other
Loan Party. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
the other Loan Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have been caused
primarily by such Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs and costs and expenses
in connection with the use of IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this
81
Section shall survive termination of the Aggregate Commitments, the payment of
all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the L/C Issuer hereunder or the
Collateral Agent and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, the Collateral Agent or the L/C Issuer,
and the terms "Lender" and "Lenders" include Bank of America in its individual
capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders; provided that any
such resignation by Bank of America shall also constitute its resignation as L/C
Issuer and Collateral Agent. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent shall
be consented toby the Company at all times other than during the existence of an
Event of Default (which consent of the Company shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
Collateral Agent and the respective terms "Administrative Agent," "Collateral
Agent" and "L/C Issuer" shall mean such successor administrative agent,
collateral agent and Letter of Credit issuer, and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated; the retiring L/C Issuer's rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or any other Lender, other than the obligation of the
successor L/C Issuer to issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession; and the retiring
Collateral Agent's rights, duties and powers as such shall be terminated,
without any other or further act or deed on the part of such retiring Collateral
Agent or any other Lender. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article IX and
Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
82
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. Any such replacement and release of Bank of America as the
Collateral Agent under the Collateral Documents shall be effected pursuant to
documentation in form and substance satisfactory to Bank of America.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
arranger," "co-arranger" or "lead manager" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
9.11 COLLATERAL MATTERS.(a) The Administrative Agent and Collateral
Agent each is authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to time to take any
action with respect to any Collateral or the Collateral Documents which may be
necessary to perfect and maintain perfected the security interest in and Liens
upon the Collateral granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize each of the Administrative Agent
and the Collateral Agent, at their option and in their discretion, to release
any Lien granted to or held by the Administrative Agent or the Collateral Agent,
as the case may be, upon any Collateral (i) upon termination of the Aggregate
Commitments and payment in full of all Loans and all other Obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any Disposition permitted hereunder; or (iii) if
approved, authorized or ratified in writing by the Required Lenders or all the
Lenders, as the case may be, as provided in Section 10.01. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's or the Collateral Agent's authority to release particular
types or items of Collateral pursuant to this subsection, provided that the
absence of any such confirmation for whatever reason shall not affect the
Administrative Agent's and the Collateral Agent's rights under this Section.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Company or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Company or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each 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 amendment,
waiver or consent shall, unless in writing and signed by each of the Lenders
directly affected thereby and by the Company, and acknowledged by the
Administrative Agent, do any of the following:
83
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02), except for any such increase
made in accordance with Section 2.13;
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(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 L/C Borrowing, or (subject to clause (iii) of the proviso below)
any fees or other amounts payable hereunder or under any other Loan Document, or
change the manner of computation of any financial covenant used in determining
the Applicable Rate that would result in a reduction of any interest rate on any
Loan; provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any obligation
of the Borrowers to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans and L/C Obligations which is
required for the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender (except
for any change resulting from Section 2.13);
(f) amend this Section, or Section 2.12, or any provision herein
providing for consent or other action by all the Lenders;
(g) amend the definition of "Alternative Currency"; or
(h) (i) release the Company from the Company Guaranty, (ii) release all
or substantially all of the Guarantors from the Guaranties or (iii) release all
or substantially all of the Collateral;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to all Lenders, the Required
Lenders or each directly-affected Lender, as the case may be, affect the rights
or duties of the L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (ii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to all Lenders, the Required Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Collateral Agent in addition to all Lenders, the Required Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of the
Collateral Agent under this Agreement or any other Loan Document and (iv) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the respective parties thereto. Notwithstanding
anything to the contrary herein, any Lender that has failed to fund any portion
of any Credit Extension required to be funded by it hereunder or that has a
Voting Percentage deemed to be zero shall not have any right to approve or
disapprove any
84
amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased (except for any such increase resulting from Section
2.13) without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of any Borrower, the
Administrative Agent, or the L/C Issuer, to such other address as shall be
designated by such party in a notice to the other parties, and in the case of
any other party, to such other address as shall be designated by such party in a
notice to the Company, the Administrative Agent and the L/C Issuer. All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the intended recipient and (ii) (A) if
delivered by hand or by courier, when signed for by the intended recipient; (B)
if delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative Agent and
the L/C Issuer pursuant to Article II shall be in writing (which may be by
facsimile) and shall not be effective until actually received by such Person.
Any notice or other communication permitted to be given, made or confirmed by
telephone hereunder shall be given, made or confirmed by means of a telephone
call to the intended recipient at the number specified on Schedule 10.02, it
being understood and agreed that a voicemail message shall in no event be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, subject
to the applicable provisions of Section 6.02, such as financial statements and
other information, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Notices) purportedly given by or on behalf of any Borrower
even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrowers shall indemnify each
Agent-Related Person and each
85
Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of any
Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
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. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Company agrees (a) to pay
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) and costs and expenses in connection with the use of IntraLinks, Inc.
or other similar information transmission systems in connection with this
Agreement, and (b) to pay or reimburse the Administrative Agent and each Lender
for all costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts retained by the Administrative Agent or any Lender. The
agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE COMPANY. Whether or not the transactions
contemplated hereby are consummated, the Company agrees to indemnify, save and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against: (a) any and
all claims, demands, actions or causes of action that are asserted against any
Indemnitee by any Person relating directly or indirectly to a claim, demand,
action or cause of action that such Person asserts or may assert against any
Loan Party, any Affiliate of any Loan Party or any of their respective officers
or directors; (b) any and all claims, demands, actions or causes of action that
may at any time (including at any time following repayment of the Obligations
and the resignation or removal of the Administrative Agent or the replacement of
any Lender) be asserted or imposed against any Indemnitee, arising out of or
relating to, the Loan Documents, any predecessor loan documents, any Commitment,
the use or contemplated use of the proceeds of any Credit Extension, or the
relationship of any Loan Party, the
86
Administrative Agent, the Collateral Agent, the Arranger and the Lenders under
this Agreement or any other Loan Document or the SCI Merger; (c) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
subsection (a) or (b) above; and (d) any and all liabilities (including
liabilities under indemnities), settlement costs or expenses, losses, costs or
expenses (including reasonable Attorney Costs) that any Indemnitee suffers or
incurs as a result of the assertion of any foregoing claim, demand, action,
cause of action or proceeding, or as a result of the preparation of any defense
in connection with any foregoing claim, demand, action, cause of action or
proceeding, in all cases, whether or not arising out of the negligence of an
Indemnitee, and whether or not an Indemnitee is a party to such claim, demand,
action, cause of action or proceeding (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any claim to the extent that such claim is determined in a
final, nonappealable judgment by a court of competent jurisdiction to have been
caused primarily by such Indemnitee's own gross negligence or willful
misconduct. No Indemnitee shall be liable for any damages arising from the use
by others of any information or other materials obtained through IntraLinks,
Inc. or other similar information transmission systems in connection with this
Agreement. The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations.
10.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Administrative Agent,
the Collateral Agent nor the Lenders shall be under any obligation to marshal
any assets in favor of the Borrowers or any other Person or against or in
payment of any or all of the Obligations. To the extent that any payment by or
on behalf of the Borrower is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof (or the Dollar
Equivalent amount thereof) is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law 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 Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Overnight Rate from time to
time in effect, in the applicable currency of such recovery or payment.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrowers may not assign or otherwise transfer
any of their respective rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Borrowers without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent
87
expressly contemplated hereby, the Indemnitees and the Collateral Agent) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) If the Administrative Agent, and so long as there is no Event of
Default or Default has occurred and is continuing, the Company, each consents in
writing (each such consent not to be unreasonably withheld or delayed), any
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) of the assigning Lender
subject to each such assignment, determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent, shall not be less than $5,000,000 (or such lesser amount as the
Administrative Agent, and, so long as no Event of Default or Default has
occurred and is continuing, the Company, each consents to in writing), (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.07, 10.04 and 10.05). Upon request, the Borrowers (at
their expense) shall execute and deliver new or replacement Notes to the
assigning Lender and the assignee Lender. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
88
(d) Any Lender may, without the consent of, or notice to, the Borrowers
or the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans (including such Lender's participations in L/C Obligations) owing
to it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant, (ii) release all or substantially all of the
Collateral, (iii) reduce the principal, interest, fees or other amounts payable
to such Participant, or (iv) release all or substantially all of the Guarantors
from the Guaranties. Subject to subsection (e) of this Section, the Borrowers
agree that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.09 as though it were a Lender, provided that such Participant agrees
to be subject to Section 2.12 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Company
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 10.16 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the Company to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.07(b)), the Company shall be deemed to have
given its consent five Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Company prior to such fifth Business Day.
(h) As used herein, the following terms have the following meanings:
89
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by (i) the Administrative Agent, in the case of any assignment of a
Loan, (ii) the L/C Issuer, and (iii) unless (A) such Person is taking delivery
of an assignment in connection with physical settlement of a credit derivatives
transaction or (B) an Event of Default has occurred and is continuing, the
Company (each such approval referred to in clauses (i) through (iv) not to be
unreasonably withheld or delayed).
"Fund" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Company
and the Lenders, resign as L/C Issuer. In the event of any such resignation as
L/C Issuer, the Company shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the
Company to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer. Bank of America shall retain all the rights and
obligations of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant
to Section 2.03(c)).
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Loan
Parties; (g) with the consent of the Company; (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Company; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally
90
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates. In addition, the Administrative Agent
and the Lenders may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to the Administrative Agent and the
Lenders in connection with the administration and management of this Agreement,
the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section, "Information" means all information received from the
Loan Parties relating to the Loan Parties or their businesses, other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Loan Parties; provided that,
in the case of information received from the Loan Parties after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrowers or any other Loan Party, any such notice being
waived by each Borrower (on its own behalf and on behalf of each Loan Party) 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 Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different than that of the deposit
account. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Company. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations.
91
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which any Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 ADDITION OF DESIGNATED BORROWERS.
(a) The Company may at any time designate any Subsidiary of the Company
(an "Applicant Borrower") as a Designated Borrower to receive Loans in
Alternative Currencies hereunder by delivering to the Administrative Agent
(which shall promptly deliver counterparts thereof to each Lender) a duly
executed notice and agreement in substantially the form of Exhibit H (a
"Designated Borrower Request and Assumption Agreement"). The parties hereto
acknowledge and agree that prior to any Applicant Borrower becoming entitled to
utilize the credit facilities provided for herein the Administrative Agent and
the Lenders shall have received such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information, in form
and substance satisfactory to the Administrative Agent and the Required Lenders,
as may be required by the Administrative Agent and the Required Lenders in their
sole discretion and Notes signed by such new Borrowers to the extent any Lenders
so require. If the Administrative Agent and the Required Lenders shall agree
that an Applicant Borrower shall be entitled to request Loans in Alternative
Currencies hereunder, then promptly following receipt of
92
all such requested resolutions, incumbency certificates, opinions of counsel and
other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit I (a "Designated Borrower Notice") to the
Company and the Lenders specifying the effective date upon which the Applicant
Borrower shall constitute a Designated Borrower for purposes hereof, whereupon
each of the Lenders agrees to permit such Designated Borrower to request
Alternative Currency Loans, on the terms and conditions set forth herein, and
each of the parties agrees that such Designated Borrower otherwise shall be a
Borrower for all purposes of this Agreement. The Obligations of the Company and
each Designated Borrower that is not a Foreign Subsidiary shall be joint and
several in nature. The Obligations of all Designated Borrowers that are Foreign
Subsidiaries shall be several in nature.
(b) Each Subsidiary of the Company that becomes a "Designated Borrower"
pursuant to this Section 10.15 hereby irrevocably appoints the Company as its
agent for all purposes relevant to this Agreement and each of the other Loan
Documents, including (i) the giving and receipt of notices, (ii) the execution
and delivery of all documents, instruments and certificates contemplated herein
and all modifications hereto, and (iii) the receipt of the proceeds of any Loans
made by the Lenders, to any such Designated Borrower hereunder. Any
acknowledgment, consent, direction, certification or other action which might
otherwise be valid or effective only if given or taken by all Borrowers, or by
each Borrower acting singly, shall be valid and effective if given or taken only
by the Company, whether or not any such other Borrower joins therein. Any
notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to each Designated Borrower.
10.16 TAX FORMS. (a) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by the Borrowers pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by the Borrowers
pursuant to this Agreement) or such other evidence satisfactory to the Company
and the Administrative Agent that such Person is entitled to an exemption from,
or reduction of, U.S. withholding tax. Thereafter and from time to time, each
such Person shall (i) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Company and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrowers pursuant to this Agreement, (ii) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (iii) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the applicable Borrower make any deduction or withholding for taxes
from amounts payable to such Person. If such Person fails to deliver the above
forms or other
93
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all Obligations and the resignation or replacement of the
Administrative Agent.
10.17 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the Company
shall have the right to remove or replace a Lender as a party to this Agreement,
the Company may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Commitment or (ii) replace such
Lender by causing such Lender to assign its Commitment (without payment of any
assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Company; provided, however, that if the
Company elects to exercise such right with respect to any Lender pursuant to
Section 3.06(b), it shall be obligated to remove or replace, as the case may be,
all Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Company shall (x) pay in full all principal, interest, fees
and other amounts accrued or owing to such Lender through the date of removal or
replacement (including any amounts payable pursuant to Section 3.05); provided
that the making of such payment shall not preclude any claim by such Lender for
amounts which shall become due to it thereafter in accordance with the terms of
the Loan Documents, (y) provide appropriate assurances and indemnities (which
may include letters of credit) to the L/C Issuer as such may reasonably require
with respect to any continuing obligation to purchase participation interests in
any L/C Obligations then outstanding, and (z) release such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Acceptance with respect to such Lender's
Commitment and outstanding Credit Extensions. The Administrative Agent shall
distribute an amended Schedule 2.01, which shall be deemed incorporated into
this Agreement, to reflect changes in the identities of the Lenders and
adjustments of their respective Commitments and/or Pro Rata Shares resulting
from any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding
Credit Extensions ratable in accordance with any revised Pro Rata Shares after
giving effect to the removal or
94
replacement of a Lender, the Borrowers shall pay or prepay, if necessary, on the
effective date thereof, all outstanding Loans of all Lenders, together with any
amounts due under Section 3.05. The Borrowers may then request Loans from the
Lenders in accordance with their revised Pro Rata Shares. The Borrowers may net
any payments required hereunder against any funds being provided by any Lender
or Eligible Assignee replacing a terminating Lender. The effect for purposes of
this Agreement shall be the same as if separate transfers of funds had been made
with respect thereto.
(c) This Section shall supersede any provision in Section 10.01 to the
contrary.
10.18 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER 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
SITTING IN SAN FRANCISCO COUNTY OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER 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 ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
95
10.20 WAIVER OF IMMUNITY. To the extent that any Borrower which is a
Foreign Subsidiary has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, such Foreign Subsidiary
hereby irrevocably waives such immunity for itself and its property in respect
of its obligations under the Loan Documents.
10.21 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the Business
Day preceding that on which final judgment is given. The obligation of the
Borrowers in respect of any such sum due from them to the Administrative Agent
or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Administrative
Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase
the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from a Borrower in the Agreement Currency, such Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was
owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such
currency, the Administrative Agent agrees to return the amount of any excess to
such Borrower (or to any other Person who may be entitled thereto under
applicable law).
10.22 DESIGNATION AS SENIOR DEBT. All Obligations (a) shall be
"Designated Senior Indebtedness" for purposes of and as defined in that certain
Indenture dated as of May 5, 1999, between the Company and Norwest Bank
Minnesota, N.A., as trustee, and all supplemental indentures thereto, (b) shall
be "Designated Senior Indebtedness" for purposes of and as defined in that
certain Indenture dated as of September 12, 2000, between the Company and Wells
Fargo Bank Minnesota, National Association, as trustee, and all supplemental
indentures thereto, (c) shall be "Designated Senior Indebtedness" for purposes
of and as defined in that certain Indenture dated as of May 18, 1998, between
Hadco Corporation, as issuer, and Hadco Santa Clara, Inc., Hadco Phoenix, Inc.,
CCIR of California Corp., and CCIR of Texas Corp., as guarantors, and State
Street Bank and Trust Company, as trustee, and all supplemental indentures
thereto (the "Hadco Indenture") and (d) shall be "Designated Senior
Indebtedness" for purposes of and as defined in that certain Indenture dated as
of March 15, 2000, between SCI Systems, Inc., as issuer, and Bank One Trust
Company, National Association as trustee, and all supplemental indentures
thereto.
(remainder of page intentionally left blank)
96
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SANMINA CORPORATION
By: /s/ RICK ACKEL
---------------------------------
Name: Rick Ackel
---------------------------------
Title: Chief Financial Officer
---------------------------------
BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT, LENDER AND
L/C ISSUER
By: /s/ JAMES P. JOHNSON
---------------------------------
Name: James P. Johnson
---------------------------------
Title: Managing Director
---------------------------------
S-1
BARCLAYS BANK PLC
By: /s/ JOHN GIANNONE
---------------------------------
Name: John Giannone
---------------------------------
Title: Director
---------------------------------
S-2
FIRST UNION NATIONAL BANK
By: /s/ EILEEN McCRICKARD
---------------------------------
Name: Eileen McCrickard
---------------------------------
Title: Vice President
---------------------------------
S-3
CITICORP USA, INC.
By: /s/ AVRUM SPIEGEL
---------------------------------
Name: Avrum Spiegel
---------------------------------
Title: Director
---------------------------------
S-4
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Lucy Galbraith
---------------------------------
Name: Lucy Galbraith
---------------------------------
Title: Managing Director
---------------------------------
S-5
FLEET NATIONAL BANK
By: /s/ Greg Roux
---------------------------------
Name: Greg Roux
---------------------------------
Title: Director
---------------------------------
S-6
REGIONSBANK
By: /s/ Edwin P. Wilson
---------------------------------
Name: Edwin P. Wilson
---------------------------------
Title: Senior Vice President
---------------------------------
S-7
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Katrina Flowers
---------------------------------
Name: Katrina Flowers
---------------------------------
Title: Assistant Vice President
---------------------------------
By: /s/ June Hanson
---------------------------------
Name: June Hanson
---------------------------------
Title: Vice President
---------------------------------
S-8
THE BANK OF NOVA SCOTIA
By: /s/ Chris Osborn
---------------------------------
Name: Chris Osborn
---------------------------------
Title: Director
---------------------------------
S-9
ROYAL BANK OF CANADA
By: /s/ Stephanie Babich
---------------------------------
Name: Stephanie Babich
---------------------------------
Title: Senior Manager
---------------------------------
S-10
CREDIT SUISSE FIRST BOSTON
By: /s/ Vitaly G. Butenko
---------------------------------
Name: Vitaly G. Butenko
---------------------------------
Title: Associate
---------------------------------
By: /s/ Jeffrey Bernstein
---------------------------------
Name: Jeffrey Bernstein
---------------------------------
Title: Vice President
---------------------------------
S-11
ABN AMRO BANK N.V.
By: /s/ Peter Hsu
---------------------------------
Name: Peter Hsu
---------------------------------
Title: Vice President
---------------------------------
By: /s/ Xiaochuan Zhang
---------------------------------
Name: Xiaochuan Zhang
---------------------------------
Title: Assistant Vice President
---------------------------------
S-12
JPMORGAN CHASE BANK
By: /s/ William P. Rindfuss
---------------------------------
Name: William P. Rindfuss
---------------------------------
Title: Vice President
---------------------------------
S-13
SCHEDULE 1.01
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on a Loan to
compensate a Lender for the cost attributable to such Loan resulting from the
imposition from time to time under the Bank of England Act 1998 (the "Act")
and/or by the Bank of England and/or the Financial Services Authority (the
"FSA") (or other United Kingdom governmental authorities or agencies) of a
requirement to place non-interest-bearing deposits or Special Deposits (whether
interest-bearing or not) with the Bank of England and/or pay fees to the FSA
calculated by reference to liabilities used to fund such a Loan.
The Mandatory Cost Rate will be the percentage rate per annum (or the
arithmetical average of the percentage rates where there is more than one
Mandatory Cost Reference Lender supplying the same) determined by the
Administrative Agent (rounded upward, if necessary, to four decimal places) as
the rate resulting from the application (as appropriate) of the following
formulae:
(a) in relation to Loans or other unpaid amounts denominated in
Sterling:
XL + S(L - D) + F x 0.01
-----------------------------
100 - (X + S)
(b) in relation to Loans or other unpaid amounts denominated in any
currency other than Sterling:
F x 0.01
--------------
300
where, in each case, on the day of application of the formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which such Mandatory Cost Reference Lender is required
under or pursuant to the Act to maintain cash ratio deposits with the Bank of
England;
L is the rate determined in accordance with subsection (a) of the
definition of "Eurocurrency Rate" applicable to such Loan;
F is the rate of charge payable by such Mandatory Cost Reference Lender
to the FSA pursuant to paragraphs 2.02 or 2.03 (as the case may be) of the Fees
Regulations (but for this purpose the figure at paragraph 2.02b or 2.03b (as the
case may be) shall be deemed to be zero) and expressed in pounds per Pound
Sterling 1 million of the Fee Base of such Mandatory Cost Reference Lender;
S is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which such Mandatory Cost Reference Lender
is required to maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
Page 1
D is the percentage rate per annum payable by the Bank of England to
such Mandatory Cost Reference Lender on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
The Mandatory Cost Rate for any Interest Period shall be calculated at
or about 11:00 a.m. (London time) on the first day of such Interest Period for
the duration of such Interest Period.
The determination of the Mandatory Cost Rate in relation to any Interest
Period shall, in the absence of manifest error, be conclusive and binding on all
parties hereto.
If there is any change in circumstance (including the imposition of
alternative or additional requirements, including capital adequacy requirements)
which in the reasonable opinion of the Administrative Agent renders or will
render the above formula (or any element thereof, or any defined term used
therein) inappropriate or inapplicable, the Administrative Agent shall promptly
notify the Company and the Lenders thereof and (following consultation with the
Required Lenders) shall be entitled to vary the same with the prior written
consent of the Company, which shall not be unreasonably withheld. Any such
variation shall, in the absence of manifest error, be conclusive and binding on
all parties and shall apply from the date specified in a notice from the
Administrative Agent to the Company and the Lenders.
For the purposes of this Schedule:
The terms "Eligible Liabilities" and "Special Deposits" shall
bear the meanings ascribed to them under or pursuant to the Act or by the Bank
of England (as may be appropriate), on the day of the application of the
formula.
"Fee Base" has the meaning ascribed to it for the purposes of,
and shall be calculated in accordance with, the Fees Regulations.
"Fees Regulations" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 2000; or
(b) such other law or regulations as from time to time may be in force,
relating to the payment of fees for banking supervision.
Page 2
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------ ---------- --------------
ABN AMRO Bank N.V. $50,000,000.00 10.000000000%
Bank of America, N.A. 64,444,444.44 12.888888889
Barclays Bank PLC 64,444,444.44 12.888888889
First Union National Bank 33,333,333.33 6.666666667
Citicorp USA, Inc. 64,444,444.44 12.888888889
Morgan Stanley Senior Funding,
Inc. 16,666,666.67 3.333333333
Fleet National Bank 33,333,333.33 6.666666667
RegionsBank 16,666,666.67 3.333333333
Wells Fargo Bank, 33,333,333.33 6.666666667
National Association
The Bank of Nova Scotia 50,000,000.00 10.000000000
Royal Bank of Canada 23,333,333.33 4.666666667
Credit Suisse First Boston 16,666,666.67 3.333333333
JPMorgan Chase Bank 33,333,333.33 6.666666667
--------------- -------------
TOTAL $500,000,000.00 100.000000000%
Page 1
SCHEDULE 10.02
EUROCURRENCY AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
SANMINA CORPORATION
AND DESIGNATED BORROWERS
2700 North First Street
San Jose, CA 95134
Attention: Rick Ackel, EVP & CFO
Telephone: 408-364-3613
Facsimile: 408-364-3636
Electronic mail: rick.ackel@sanmina.com
Internet website: http://www.sanmina.com
OVERNIGHT COURIER DELIVERIES:
30 East Plumeria Drive
San Jose, CA 95134
Attention: Walter J. Boileau, Vice President & Treasurer
Telephone: 408-964-3536
Facsimile: 408-964-3644
Electronic mail: walter.boileau@sanmina.com
Internet website: http://www.sanmina.com
with a copy to:
Wilson Sonsoni Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Michael Occhiolini, Esq.
Telephone: 650-493-9300
Facsimile: 650-493-6811
Electronic mail: mocchiolini@wsgr.com
Page 1
BANK OF AMERICA, N.A.
Administrative Agent's Office and Bank of America's Lending Office (for payments
and Requests for Credit Extensions):
Bank of America, N.A.
Credit Services -- Agency
Mail Code: CA4-706-05-09
1850 Gateway Boulevard, 5th Floor
Concord, CA 94520-3281
Attention: Mr. Brian Graybill, AAO
Telephone: (925) 675-8414
Facsimile: (888) 969-9147
Electronic mail: brian.graybill@bankofamerica.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices to L/C Issuer:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
333 S. Beaudry Avenue, 19th Floor
Mail Code: CA9-703-19-23
Los Angeles, CA 90017-1466
Attention: Sandra Leon
Vice President
Telephone: 213.345.5231
Facsimile: 213.345.6694
Electronic mail: Sandra.Leon@bankofamerica.com
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Mail Code: CA5-701-05-19
1455 Market Street, 5th Floor
San Francisco, CA 94103-1339
Attention: Matthew Gabel, Vice President
Telephone: (415) 436-2614
Facsimile: (415) 503-5060
Electronic mail: matthew.gabel@bankofamerica.com
Page 2
with a copy to:
Bank of America, N.A.
Portfolio Management -- Technology
Mail Code: CA5-705-12-14
555 California Street, 12th Floor
San Francisco, CA 94104
Attention: James P. Johnson, Managing Director
Telephone: (415) 622-6177
Facsimile: (415) 622-4057
Electronic mail: james.johnson@bankofamerica.com
BARCLAYS BANK PLC
Requests for Credit Extensions:
Barclays Bank PLC, New York Branch
222 Broadway, 8th Floor
New York, NY 10038
Attention: John Giannona
Telephone: 212-412-3276
Facsimile: 212-412-7511
Electronic mail: JohnGiannona@barcap.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Barclays Bank PLC, New York Branch
222 Broadway, 11th Floor
New York, NY 10038
Attention: Tim Card
Telephone: 212-412-4000
Facsimile: 212-412-5306
Electronic mail: Tim.Card@barcap.com
With a copy to:
Barclays Bank PLC, New York Branch
c/o Barclays Capital, Inc.
222 Broadway, 8th Floor
New York, NY 10038
Attention: Gary B. Wenslow
Telephone: 212-412-1562
Facsimile: 212-412-7511
Electronic mail: gary.wenslow@barcap.com
Page 3
ABN AMRO BANK
Requests for Credit Extensions:
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 1500
Chicago, IL 60604-1003
Attention: Nic Blea, Credit Officer
Telephone: 312-992-5176
Facsimile: 312-992-5111
Electronic mail: dominic.blea@abnamro.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 1500
Chicago, IL 60604-1003
Attention: Loan Administration
Telephone: 312-992-5152
Facsimile: 312-992-5157
With a copy to:
ABN AMRO Bank N.V.
101 California Street
San Francisco, CA 94111
Attention: Peter Hsu
Telephone: 415-983-2964
Facsimile: 415-983-2960
Electronic mail: peter.hsu@abnamro.com
Page 4
CITICORP USA, INC.
Requests for Credit Extensions:
CitiCorp USA, Inc.
One Sansome Street
27th Floor
San Francisco, CA 94104
Attention: Avrum Spiegel, Director
Telephone: 415-627-6358
Facsimile: 415-433-0307
Electronic mail: Avrum.Spiegel@citi.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Citicorp USA Inc.
One Sansome Street
25th Floor - GRB Technology Group
San Francisco, CA 94104
Attention: Gwen Lee
Telephone: 415-627-6336
Facsimile: 415-433-0307
Electronic mail: gwen.lee@citi.com
FIRST UNION NATIONAL BANK
Requests for Credit Extensions:
First Union National Bank
301 South College Street
Charlotte, NC 28078
Attention: Jorge Gonzales, Managing Director & Senior Vice President
Telephone: 704-613-5786
Facsimile: 704-715-1117
Electronic mail: jorge.gonzales@wachovia.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Page 5
Notices (other than Requests for Credit Extensions):
First Union National Bank
301 South College Street
CP-17
Charlotte, NC 28078
Attention: Erika Myers, Loan Portfolio Analyst
Telephone: 704-383-0296
Facsimile: 704-383-7999
Electronic mail: Erika.myers@capmark.funb.com
MORGAN STANLEY SENIOR FUNDING, INC.
Requests for Credit Extensions:
Morgan Stanley Senior Funding, Inc.
1221 Avenue of the Americas
35th Floor
New York, NY 10020
Attention: Stephen Hannan
Telephone: 212-762-5814
Facsimile: 212-762-9181
Electronic mail: Stephen.Hannan@morganstanley.com
Notices (other than Requests for Credit Extensions):
Morgan Stanley Senior Funding, Inc.
1633 Broadway
26th Floor
New York, NY 10019
Attention: James Morgan
Telephone: 212-537-1470
Facsimile: 212-537-1867, 212-537-1866
Electronic mail: James.Morgan@morganstanley.com
Page 6
With a copy to:
Morgan Stanley Senior Funding, Inc.
1585 Broadway
26th Floor
New York, NY 10036
Attention: Lucy K. Galbraith, Managing Director
Telephone: 212-761-1697
Facsimile: 212-761-0587
Electronic mail: lucy.galbraith@morganstanley.com
FLEET NATIONAL BANK
Requests for Credit Extensions:
Fleet National Bank
435 Tasso Street
Suite 250
Mail Stop CAFM55001A
Palo Alto, CA 94301
Attention: Greg Roux
Telephone: 650-470-4180
Facsimile: 650-853-1425
Electronic mail: gregory_roux@fleet.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Fleet National Bank
100 Federal Street
Boston, MA 02110
Mail Stop MADE1009H
Attention: Anna Tollis, Loan Administrator
Telephone: 617-434-6946
Facsimile: 617-434-1709
Electronic mail: anna_tollis@fleet.com
Page 7
REGIONSBANK
Requests for Credit Extensions:
RegionsBank
P.O. Box 680
Huntsville, AL 35804
Attention: Edwin Wilson, Senior Vice President
Telephone: 256-535-0198
Facsimile: 256-535-0308
Electronic mail: epwilson@regionsbank.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
RegionsBank
P.O. Box 680
Huntsville, AL 35804
Attention: Rebecca Simmons
Telephone: 256-535-0331
Facsimile: 256-535-0308
Electronic mail: rsimmons@regionsbank.com
With a copy to:
RegionsBank
417 North 20th Street
Birmingham, AL 35226
Attention: Mark Burr, Vice President - Natl. Div.
Telephone: 205-326-7679
Facsimile: 205-326-7788
Electronic mail: MBURR@regionsbank.com
Page 8
WELLS FARGO BANK, NATIONAL ASSOCIATION
Requests for Credit Extensions:
Wells Fargo Bank, NA
550 California Street
10th Floor
San Francisco, CA 94104-1010
MAC #A0112-101
Attention: Katrina Flowers
Telephone: 415-396-8634
Facsimile: 415-989-4319
Electronic mail: flowersk@wellsfargo.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Wells Fargo Bank, NA
201 3rd Street
MAC # A0187-081
San Francisco, CA 94103
Attention: Ginnie Padgett
Telephone: 415-477-5374
Facsimile: 415-512-1943, 415-979-0675
Electronic mail: padgetgm@wellsfargo.com
THE BANK OF NOVA SCOTIA
Requests for Credit Extensions:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, GA 30308
Attention: Lily Hsieh, Loan Operations Officer
Telephone: 404-877-1523
Facsimile: 404-888-8998
Electronic mail: lily_hsieh@scotiacaptial.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Page 9
Notices (other than Requests for Credit Extensions):
The Bank of Nova Scotia
580 California Street
Suite 2100
San Francisco, CA 94104
Attention: Chris Osborn, Director
Telephone: 415-616-4170
Facsimile: 415-397-0791
Electronic mail: cosborn@scotiacapital.com
ROYAL BANK OF CANADA
Requests for Credit Extensions:
Royal Bank of Canada
287 Bowman Avenue
4th Fl. - Comm. & Tech.
Purchase, NY 10577-2517
Attention: Stephanie Babich, Senior Manager
Telephone: 914-696-6710
Facsimile: 914-696-6717
Electronic mail: Stephanie.Babich@rbccm..com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Royal Bank of Canada
One Liberty Plaza
New York, NY 10006-1404
Attention: Ranslay Solomonsz, Loans Administration Manager
Telephone: 212-428-6322
Facsimile: 212-428-2372
Electronic mail: Ranslay.Solomonsz@royalbank.com
Page 10
CREDIT SUISSE FIRST BOSTON
Requests for Credit Extensions:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Vitaly Butenko
Telephone: 212-325-1681
Facsimile: 212-325-8319
Electronic mail: vitaly.butenko@csfb.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Notices (other than Requests for Credit Extensions):
Credit Suisse First Boston
11 Madison Avenue
20th Floor
New York, NY 10010-3629
Attention: Robert N. Finney, Managing Director
Telephone: 212-325-9038
Facsimile: 212-325-8319
Electronic mail: robert.finney@csfb.com
JPMORGAN CHASE BANK
Requests for Credit Extensions:
JPMorgan Chase Bank
One Bush Street
San Francisco, CA 94104
Attention: William Rindfuss
Telephone: 415-371-4976
Facsimile: 415-371-4881
Electronic mail: william.rindfuss@jpmorgan.com
Ref: Sanmina Corporation (Multi-Year Credit Agreement)
Page 11
Notices (other than Requests for Credit Extensions):
JPMorgan Chase Bank
1 Chase Manhattan Plaza
8th Floor
New York, NY 10005
Attention: Frank Pokras
Telephone: 212-552-1246
Facsimile: 212-552-5700
Electronic mail: frank.pokras@jpmorgan.com
Page 12
EXHIBIT A
FORM OF NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi-Year), dated
as of December 6, 2001 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Sanmina
Corporation, a Delaware corporation (the "Company"), certain Subsidiaries of the
Company as co-borrowers, the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent and L/C Issuer.
The Company hereby requests, on behalf of itself or, if applicable, the
Designated Borrower referenced in item 6 below (the "Applicable Designated
Borrower") (select one):
[ ] A Borrowing of Loans [ ] A conversion or continuation of Loans
1. On _________________ (a Business Day).
2. In the amount of _________________.
3. Comprised of _____________.
[Type of Loan requested]
4. In the following currency: _________________.
5. For Eurocurrency Rate Loans: with an Interest Period of _ months.
6. On behalf of ____________________________ [insert name of applicable
Designated Borrower].
The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement. Other than in connection with a
conversion or continuation of Loans, the Company hereby certifies on behalf of
itself and, if applicable, the Applicable Designated Borrower, that the
following statements are and will be true and correct on the date of the Credit
Extension requested above, both before and after giving effect to the Credit
Extension requested above:
(a) the representations and warranties made by the Company and, if
applicable, the Applicable Designated Borrower, in the Agreement, or which are
contained in any certificate, document or financial or other statement furnished
at any time under or in connection therewith, are and will be true and correct
on and as of the date of the Credit Extension requested above,
A-1
except to the extent that such representations and warranties specifically refer
to any earlier date , in which case they shall be true and correct as of such
earlier date, and except that this subsection (a) shall be deemed instead to
refer to the last day of the most recent fiscal quarter and year for which
financial statements have been delivered in respect of the representations and
warranties made in Sections 5.05(a) and (b), respectively; and
(b) no Default or Event of Default shall exist, or would result from the
Credit Extension requested hereby.
SANMINA CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[APPLICABLE DESIGNATED BORROWER]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
A-2
EXHIBIT B
FORM OF NOTE
___________________, 200_
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to
pay to the order of _____________________________ (the "Lender") on the Maturity
Date (as defined in the Credit Agreement referred to below) the principal amount
of Loans (as defined in such Credit Agreement) due and payable by the Borrower
to the Lender on the Maturity Date under that certain Credit Agreement
(Multi-Year), dated as of December 6, 2001 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement", the terms defined therein being used herein as therein defined),
among the Borrower, certain co-borrowers, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates, and at such times as are specified in the
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in the currency in which such
Loan was denominated and in Same Day Funds at the Administrative Agent's Office
for such currency. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled
to the benefits thereof and is subject to prepayment in whole or in part as
provided therein. This Note is also entitled to the benefits of the Guaranties
and is secured by the Collateral. Upon the occurrence and during the continuance
of one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA.
[SANMINA CORPORATION]
OR
[DESIGNATED BORROWER]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
B-2
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL
CURRENCY OR OUTSTANDING
TYPE OF AND END OF INTEREST PRINCIPAL
LOAN AMOUNT OF INTEREST PAID BALANCE NOTATION
DATE MADE LOAN MADE PERIOD THIS DATE THIS DATE MADE BY
---- -------- --------- -------- ----------- ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
- ----------- ----------- --------- -------- ------------ ----------- --------
B-3
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
FINANCIAL STATEMENT DATE: ________ , ____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi-Year), dated
as of December 6, 2001 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Sanmina
Corporation, a Delaware corporation (the "Company"), certain Subsidiaries of the
Company as co-borrowers, the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent and L/C Issuer.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _________________________ of the Company, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Company, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Company ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present in
all material respects the financial condition, results of operations and cash
flows of the Company and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Company during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Company performed and observed
all its Obligations under the Loan Documents, and
C-1
[select one:]
[to the best knowledge of the undersigned, after due inquiry, no Default
or Event of Default exists as of the date hereof.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default,
its nature and status and the action that the Company proposes to take with
respect thereto:]
4. The financial covenant analyses and information set forth on Schedule
2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
__________, ___________________.
SANMINA CORPORATION
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
C-2
FOR THE QUARTER/YEAR ENDED ___________________("STATEMENT DATE")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.13(a) -- CONSOLIDATED TANGIBLE NET WORTH.
A. Consolidated Tangible Net Worth at Statement
Date:
1. Shareholders' Equity: $___________
2. Intangible Assets: $___________
3. Consolidated Tangible Net Worth (Line I.A.1
less Line I.A.2): $___________
B. Initial required amount (80% of Consolidated
Tangible Net Worth as of the fiscal quarter ending
December 31, 2001): $___________
C. 50% of Consolidated Net Income for each fiscal
quarter ending after December 31, 2001 (no
reduction for losses): $___________
D. 50% of increases in Shareholders' Equity after
December 31, 2001 from conversion of debt securities: $___________
E. 50% of Net Issuance Proceeds of any issuance
of capital stock of the Company or any of its
Subsidiaries after December 31, 2001: $___________
F. Minimum required Consolidated Tangible Net Worth
(Lines I.B + I.C + I.D + I.E): $___________
G. Excess (deficit) for covenant compliance (Line I.A.3 -
I.F): $___________
II. SECTION 7.13(b) -- INTEREST COVERAGE RATIO.
A. Consolidated EBIT for four consecutive fiscal
quarters ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $___________
2. Consolidated Interest Charges for Subject
Period: $___________
C-3
3. The amount of taxes, based on or measured
by income, and or included in the determination
of Consolidated Net Income. $___________
4. Cash and noncash charges permitted under
definition of Consolidated EBIT[*]: $___________
5. Consolidated EBIT
(Lines II.A.1 + II.A.2 + II.A.3 + II.A.4): $___________
B. Consolidated Cash Interest Charges for Subject Period: $___________
C. Interest Coverage Ratio ((Line II.A.5) / (Line II.B)): _____ to 1.00
Minimum required (see Section 7.13(b)): _____ to 1.00
III. SECTION 7.13 -- LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date
1. Consolidated total Indebtedness: $___________
2. Amount of Line III.A.1 consisting of Indebtedness
described in clauses (b) and (c) of the definition
of Indebtedness: $___________
3. Line III.A.1 - Line III.A.2:
$-----------
B. Consolidated Total Capitalization at Statement Date: $___________
C. Leverage Ratio (Line III.A.3 / Line III.B): ____ to 1.00
Maximum permitted: 0.50 to 1.00
- -------------
* [With respect to any cash or non-cash charge attach a worksheet setting forth
in reasonable detail the nature of such charge.]
C-4
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this "Assignment") is dated as of the
Effective Date set forth below and is entered into by and between [insert name
of Assignor] (the "Assignor") and [insert name of Assignee] (the "Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement (Multi-Year) identified below (the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities and Letters of Credit)
(the "Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment, without
representation or warranty by the Assignor.
1. Assignor:
--------------------------------
2. Assignee: [and is an
--------------------------------
Affiliate/Approved Fund(1)]
3. Borrower(s): Sanmina Corporation
[Insert other Borrowers]
4. Administrative Agent: Bank of America, N.A., as the administrative agent
under the Credit Agreement
5. Credit Agreement: The Credit Agreement (Multi-Year), dated as of
December 6, 2001, among Sanmina Corporation (the
"Company"), certain Subsidiaries of the Company as
co-borrowers, the Lenders party thereto, and Bank
of America, N.A., as Administrative Agent and L/C
Issuer
- -----------
(1) Select as applicable.
D-1
6. Assigned Interest:
Aggregate Amount of Percentage
Amount of Commitment/ Assigned of
Commitment/Loans Loans Commitment/
Facility Assigned for all Lenders Assigned Loans(2)
----------------- ----------------- ------------ -----------
(3)
________________________ $________________ $________________ ____________%
________________________ $________________ $________________ ____________%
________________________ $________________ $________________ ____________%
________________________ $________________ $________________ ____________%
Effective Date: __________________, 20__ [to be inserted by
Administrative Agent and which shall be the effective date of recordation of
transfer in the register therefor.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
--------------------------------
Title:
- ----------------------
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
(3) Fill in the appropriate terminology for the types of facilities under
the Credit Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment", "Term Loan Commitment", etc.).
D-2
[Consented to:]4
By:
--------------------------------
Title:
- -----------------
(4) To be added only if the consent of the Borrower and/or other parties
(e.g., L/C Issuer) is required by the terms of the Credit Agreement.
D-3
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
STANDARD TERMS AND CONDITIONS
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Credit Documents"), or any collateral thereunder,
(iii) the financial condition of the Company, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by the Company, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Collateral Agent, the Assignor
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
1.3 Assignee's Address for Notices, Etc. Attached hereto as Schedule 1
is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments
D-4
in payments by the Administrative Agent for periods prior to the Effective Date
or with respect to the making of this Assignment directly between themselves.
3. General Provisions. This Assignment shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually executed counterpart of this Assignment. This Assignment shall be
governed by, and construed in accordance with, the law of the State of
California.
D-5
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
D-6
EXHIBIT E
FORM OF STOCK PLEDGE AGREEMENT
[See attached.]
E-1
EXHIBIT F
FORM OF COMPANY GUARANTY
[See attached.]
F-1
EXHIBIT G
FORM OF SUBSIDIARY GUARANTY
[See attached.]
G-1
EXHIBIT H
FORM OF DESIGNATED BORROWER REQUEST
AND ASSUMPTION AGREEMENT
To: Bank of America, N.A., as Administrative Agent
Re: Sanmina Corporation
Ladies and Gentlemen:
This Designated Borrower Request and Assumption Agreement is made
and delivered pursuant to Section 10.15 of that certain Credit Agreement
(Multi-Year) dated as of December 6, 2001 (as amended, modified, renewed or
extended from time to time, the "Credit Agreement"), among Sanmina Corporation
and each Designated Borrower party to the Credit Agreement (each a "Borrower"
and, collectively, the "Borrowers"), each Lender from time to time party hereto
(collectively, the "Lenders"), and Bank of America, N.A. as Administrative Agent
and L/C Issuer, and reference is made thereto for full particulars of the
matters described therein. All capitalized terms used in this Designated
Borrower Notice and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
Each of ______________________ (the "Designated Borrower") and
the Company hereby confirms, represents and warrants to the Administrative Agent
and the Lenders that the Designated Borrower is a Subsidiary of the Company.
The documents required to be delivered to the Administrative
Agent under Section 10.15 of the Credit Agreement will be furnished to the
Administrative Agent in accordance with the requirements of the Credit
Agreement.
The parties hereto hereby confirm that with effect from the date
hereof, the Designated Borrower shall have obligations, duties and liabilities
towards each of the other parties to the Credit Agreement identical to those
which the Designated Borrower would have had if the Designated Borrower had been
an original party to the Credit Agreement as a Borrower. The Designated Borrower
confirms its acceptance of, and consents to, all representations and warranties,
covenants, and other terms and provisions of the Credit Agreement.
The parties hereto hereby request that the Designated Borrower be
entitled to request Loans denominated in Alternative Currencies under the Credit
Agreement, and understand, acknowledge and agree that neither the Designated
Borrower nor the Company on its behalf shall have any rights to request any
Loans for its account unless and until the effective date designated by the
Administrative Agent in a Designated Borrower Notice delivered to the Company
and the Lenders pursuant to Section 10.15 of the Credit Agreement.
This Designated Borrower Request and Assumption Agreement shall
constitute a Loan Document under the Credit Agreement.
H-1
THIS DESIGNATED BORROWER REQUEST AND ASSUMPTION AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
H-2
IN WITNESS WHEREOF, the parties hereto have caused this
Designated Borrower Request and Assumption Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
[______________], [Designated Borrower]
By:
---------------------------------
Title:
---------------------------------
SANMINA CORPORATION
By:
---------------------------------
Title:
---------------------------------
H-3
EXHIBIT I
FORM OF DESIGNATED BORROWER NOTICE
To: Sanmina Corporation
The Lenders party to the Credit
Agreement referred to below
Re: Sanmina Corporation
Ladies and Gentlemen:
This Designated Borrower Notice is made and delivered pursuant to
Section 10.15 of that certain Credit Agreement (Multi-Year) dated as of December
6, 2001 (as amended, modified, renewed or extended from time to time, the
"Credit Agreement"), among Sanmina Corporation and each Designated Borrower
party to the Credit Agreement (each a "Borrower" and, collectively, the
"Borrowers"), each Lender from time to time party hereto (collectively, the
"Lenders"), and Bank of America, N.A. as Administrative Agent and L/C Issuer,
and reference is made thereto for full particulars of the matters described
therein. All capitalized terms used in this Designated Borrower Notice and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement.
The Administrative Agent hereby notifies Company and the Lenders that
effective as of the date hereof [_________________________] shall be a
Designated Borrower and may request Loans denominated in Alternative Currencies
for its account on the terms and conditions set forth in the Credit Agreement.
This Designated Borrower Notice shall constitute a Loan Document under
the Credit Agreement.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
---------------------------------
Title:
---------------------------------
I-1
EXHIBIT J
FORM OF OPINION OF U.S. COMPANY COUNSEL
[See attached.]
J-1
EXHIBIT K
JOINDER AGREEMENT
Reference is made to that certain Credit Agreement (Multi-Year),
dated as of December 6, 2001 (the "Credit Agreement"), among Sanmina
Corporation. (the "Company"), certain Subsidiaries of the Company as
co-borrowers, the Lenders from time to time party thereto and Bank of America,
N.A., as Administrative Agent and L/C Issuer. Capitalized terms used but not
otherwise defined herein shall have the respective meanings given to such terms
in the Credit Agreement.
The Company has requested that the Aggregate Commitments under
the Credit Agreement be increased from $_____________ to $________________ in
accordance with the provisions set forth in Section 2.13 of the Credit
Agreement.
To achieve the full amount of such requested increase, the
Company, in accordance with Section 2.13 of the Credit Agreement, has invited
___________________ (the "New Lender") to become a Lender under the Credit
Agreement, and the New Lender has agreed to become a Lender under the Credit
Agreement pursuant to this Joinder Agreement (this "Agreement").
Accordingly, the New Lender represents, warrants and agrees as
follows:
1. From and after the date of satisfaction of the conditions set
forth in Section 10 of this Agreement (the "Effective Date"), the New Lender
shall be a Lender under the Credit Agreement, and the New Lender agrees to
perform all of the obligations of a Lender under, and to be bound in all
respects by the terms of, the Credit Agreement to the same extent and with the
same force and effect as if the New Lender were an original signatory thereto.
2. As of the Effective Date, the Commitment of the New Lender
under the Credit Agreement shall be $______________.
3. The New Lender hereby confirms its acceptance of, and consents
to, all representations and warranties, covenants, conditions, and other terms
and provisions of the Credit Agreement, and to the terms and provisions
contained in any other Loan Documents to which the Lenders, the Collateral Agent
or the Administrative Agent are party.
4. The New Lender represents and warrants to the Administrative
Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal
right to make, deliver and perform, and has taken all necessary action,
to authorize the execution, delivery and performance of this Agreement,
and any and all other documents delivered by it in connection herewith
and to fulfill its obligations under, and to consummate the transactions
contemplated by, this Agreement and the Loan Documents, and no consent
or authorization of, filing with, or other act by or in respect of any
Governmental Authority, is required in connection herewith or therewith;
K-1
(c) this Agreement constitutes the legal and binding
obligation of the New Lender;
(d) under applicable Laws no tax will be required to be
withheld by the Administrative Agent or the Company with respect to any
payments to be made to the New Lender hereunder or under any Loan
Document, and unless otherwise indicated in the space opposite the New
Lender's signature below, no tax forms described in Section 10.16(a) of
the Credit Agreement are required to be delivered by the New Lender; and
(e) the New Lender has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
of the Company delivered pursuant thereto, and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement. The New Lender has
independently and without reliance upon the Company, any other Borrower,
the Administrative Agent, the Collateral Agent or any Lender, and based
upon such information as the New Lender has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. The New
Lender will, independently and without reliance upon the Company, any
other Borrower, the Administrative Agent, the Collateral Agent or any
Lender, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement.
5. The New Lender hereby appoints and authorizes each of the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent or the Collateral Agent by the terms thereof, together with such powers as
are incidental thereto.
6. If the New Lender desires Notes to evidence the Loans it may
make to the Borrowers from time to time under the Credit Agreement, it shall
request the Administrative Agent to procure Notes from each of the Borrowers.
7. The New Lender hereby agrees to execute and deliver such other
instruments, and take such other action, as the Administrative Agent may
reasonably request in connection with the transactions contemplated by this
Agreement.
8. This Agreement shall be binding upon the New Lender and shall
inure to the benefit of the Administrative Agent and the Borrowers.
9. This Agreement may be executed by facsimile signatures with
the same force and effect as if manually signed and may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. The effectiveness of this Agreement is subject to the
following conditions:
K-2
(a) the Administrative Agent shall have received executed
counterparts hereto, in sufficient number for distribution to the
Administrative Agent, the Company and the New Lender;
(b) the Administrative Agent shall have received any tax
forms required to be delivered by the New Lender pursuant to Section
10.16 of the Credit Agreement;
(c) the Administrative Agent shall have distributed to the
Company and each Lender an amended Schedule 2.01 to the Credit Agreement
(which shall be deemed incorporated into the Credit Agreement)
reflecting any changes to that Schedule arising as a result of the
increase in the Aggregate Commitments; and
(d) the Increase Effective Date shall have occurred.
11. By countersigning this Agreement below, the Administrative
Agent agrees to register the New Lender as a Lender under the Credit Agreement,
effective as of the Effective Date, and agrees to adjust the registered Pro Rata
Shares of each Lender under the Credit Agreement to reflect the increase in the
Aggregate Commitments.
12. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
13. Attached hereto as Schedule 1 is all contact, address,
account and other administrative information relating to the New Lender.
(remainder of page intentionally left blank)
K-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of this ____ day of __________, ____.
[ ] Tax forms required by [INSERT NAME OF NEW LENDER],
Section 10.16 of the as the New Lender
Credit Agreement included
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
The undersigned hereby acknowledge and consent to the foregoing
joinder as of the Effective Date:
SANMINA CORPORATION
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A., as Administrative Agent
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
K-4
SCHEDULE 1
TO JOINDER AGREEMENT
ADMINISTRATIVE DETAILS
Requests for Credit Extensions:
[Insert address of New Lender]
Attention: ________________________
Telephone: ________________________
Facsimile: ________________________
Email: ________________________
Notices (other than Requests for Credit Extensions):
[Insert address of New Lender]
Attention: ________________________
Telephone: ________________________
Facsimile: ________________________
Email: ________________________
Wire Instructions:
Bank: [Insert name of New Lender]
Account No.: __________________
Reference: __________________
ABA#: __________________
Attention: __________________
K-5