EXHIBIT 10.41
EXECUTION COPY
US $150,000,000
CREDIT AGREEMENT
dated as of December 13, 2002,
among
INGRAM MICRO INC.,
as an Initial Borrower and Guarantor,
INGRAM EUROPEAN COORDINATION CENTER N.V.,
as an Initial Borrower,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
ABN AMRO BANK N.V.,
as the Syndication Agent for the Lenders
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders
--------------------------------------------
As arranged by
THE BANK OF NOVA SCOTIA AND
ABN AMRO INCORPORATED,
as the Joint Lead Arrangers and
Joint Book Runners
--------------------------------------------
FLEET NATIONAL BANK, AND
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents for the Lenders,
[INGRAM MICRO GRAPHIC]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..........................................2
SECTION 1.1 Defined Terms.....................................................2
SECTION 1.2 Use of Defined Terms.............................................25
SECTION 1.3 Cross-References.................................................25
SECTION 1.4 Accounting and Financial Determinations..........................25
SECTION 1.5 Calculations.....................................................26
SECTION 1.6 Round Amounts....................................................26
ARTICLE II COMMITMENTS, ETC.........................................................26
SECTION 2.1 Commitments......................................................26
SECTION 2.2 Reductions of the Commitment Amounts.............................27
SECTION 2.3 Ineligible Currencies............................................27
ARTICLE III PROCEDURES FOR CREDIT EXTENSIONS.........................................28
SECTION 3.1 Borrowing Procedure for Revolving Loans..........................28
SECTION 3.2 Letter of Credit Issuance Procedures.............................28
ARTICLE IV PRINCIPAL, INTEREST, AND FEE PAYMENTS....................................32
SECTION 4.1 Loan Accounts, Notes, Payments, and Prepayments..................32
SECTION 4.2 Interest Provisions..............................................33
SECTION 4.3 Fees.............................................................35
SECTION 4.4 Rate and Fee Determinations......................................37
ARTICLE V CERTAIN PAYMENT PROVISIONS...............................................37
SECTION 5.1 Illegality; Currency Restrictions................................37
SECTION 5.2 Deposits Unavailable.............................................38
SECTION 5.3 Increased Credit Extension Costs, etc............................39
SECTION 5.4 Funding Losses...................................................39
SECTION 5.5 Increased Capital Costs..........................................40
SECTION 5.6 Discretion of Lenders as to Manner of Funding....................40
SECTION 5.7 Taxes............................................................41
SECTION 5.8 Payments.........................................................43
SECTION 5.9 Sharing of Payments..............................................44
SECTION 5.10 Right of Set-off.................................................45
SECTION 5.11 Judgments, Currencies, etc.......................................45
SECTION 5.12 Replacement of Lenders...........................................45
SECTION 5.13 Change of Lending Office.........................................46
SECTION 5.14 European Monetary Union..........................................46
ARTICLE VI CONDITIONS TO MAKING CREDIT EXTENSIONS AND ACCESSION OF ACCEDING
BORROWERS................................................................47
SECTION 6.1 Initial Credit Extension.........................................47
SECTION 6.2 All Credit Extensions............................................49
SECTION 6.3 Acceding Borrowers...............................................50
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TABLE OF CONTENTS
(continued)
ARTICLE VII REPRESENTATIONS AND WARRANTIES...........................................52
SECTION 7.1 Organization, etc................................................52
SECTION 7.2 Due Authorization, Non-Contravention, etc........................52
SECTION 7.3 No Default.......................................................52
SECTION 7.4 Government Approval, Regulation, etc.............................53
SECTION 7.5 Validity, etc....................................................53
SECTION 7.6 Financial Information............................................53
SECTION 7.7 No Material Adverse Effect.......................................53
SECTION 7.8 Litigation, Labor Controversies, etc.............................53
SECTION 7.9 Subsidiaries.....................................................54
SECTION 7.10 Ownership of Properties..........................................54
SECTION 7.11 Taxes............................................................54
SECTION 7.12 Pension and Welfare Plans........................................54
SECTION 7.13 Environmental Warranties.........................................54
SECTION 7.14 Outstanding Indebtedness.........................................55
SECTION 7.15 Accuracy of Information..........................................55
SECTION 7.16 Patents, Trademarks, etc.........................................56
SECTION 7.17 Margin Stock.....................................................56
ARTICLE VIII COVENANTS................................................................56
SECTION 8.1 Affirmative Covenants............................................56
SECTION 8.2 Negative Covenants...............................................61
ARTICLE IX EVENTS OF DEFAULT........................................................68
SECTION 9.1 Listing of Events of Default.....................................68
SECTION 9.2 Action if Bankruptcy.............................................71
SECTION 9.3 Action if Other Event of Default.................................71
SECTION 9.4 Cash Collateral..................................................71
ARTICLE X AGENTS...................................................................72
SECTION 10.1 Authorization and Actions........................................72
SECTION 10.2 Funding Reliance, etc............................................72
SECTION 10.3 Exculpation......................................................73
SECTION 10.4 Successor........................................................73
SECTION 10.5 Credit Extensions by an Agent....................................74
SECTION 10.6 Credit Decisions.................................................74
SECTION 10.7 Copies, etc......................................................74
SECTION 10.8 Joint Lead Arrangers and other Agents............................74
ARTICLE XI MISCELLANEOUS PROVISIONS.................................................74
SECTION 11.1 Waivers, Amendments, etc.........................................74
SECTION 11.2 Notices..........................................................75
SECTION 11.3 Payment of Costs and Expenses....................................75
SECTION 11.4 Indemnification..................................................76
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TABLE OF CONTENTS
(continued)
SECTION 11.5 Survival.........................................................77
SECTION 11.6 Severability.....................................................77
SECTION 11.7 Headings.........................................................77
SECTION 11.8 Execution in Counterparts, Effectiveness; Entire Agreement.......77
SECTION 11.9 Jurisdiction.....................................................78
SECTION 11.10 Successors and Assigns...........................................79
SECTION 11.11 Assignments and Transfers of Interests...........................79
SECTION 11.12 Other Transactions...............................................81
SECTION 11.13 Further Assurances...............................................81
SECTION 11.14 Waiver of Jury Trial.............................................81
SECTION 11.15 Confidentiality..................................................81
SECTION 11.16 Release of Subsidiary Guarantors and Acceding Borrowers..........82
SECTION 11.17 Collateral.......................................................83
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SCHEDULES AND EXHIBITS
Schedule I - Disclosure Schedule
- Item 3.2.7
- Item 7.8
- Item 7.9
- Item 7.11
- Item 7.12
- Item 7.14
- Item 8.2.1(a)(ii)
- Item 8.2.2(a)
Schedule II - Mandatory Costs
Exhibit A - Revolving Note
Exhibit B - Borrowing Request
Exhibit C - Issuance Request
Exhibit D - Continuation Notice
Exhibit E - Compliance Certificate
Exhibit F - Effective Date Certificate
Exhibit G - Intra-Group Agreement
Exhibit H - Micro Guaranty
Exhibit I - Additional Guaranty
Exhibit J - Lender Assignment Agreement
Exhibit K - Opinion of the Senior Corporate Counsel of Micro
Exhibit L - Opinion of Special New York counsel to Micro
Exhibit M - Opinion of Special Belgian counsel to Coordination Center
Exhibit N - Accession Request and Acknowledgment
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of December 13, 2002, among:
- - INGRAM MICRO INC., a corporation organized and existing under the laws
of the State of Delaware, United States of America ("Micro");
- - INGRAM EUROPEAN COORDINATION CENTER N.V., a company organized and
existing under the laws of The Kingdom of Belgium ("Coordination
Center," and collectively with Micro, the "Initial Borrowers");
- - The financial institutions party hereto (together with their respective
successors and permitted assigns and any branch or affiliate of a
financial institution funding a Revolving Loan as permitted by Section
5.6 as a signatory or otherwise, collectively, the "Lenders"); and
- - THE BANK OF NOVA SCOTIA ("Scotia Capital"), as administrative agent for
the Lenders (in such capacity, the "Administrative Agent") and ABN AMRO
Bank N.V., as syndication agent for the Lenders (in such capacity, the
"Syndication Agent", and collectively with the Administrative Agent, the
"Agents").
WHEREAS, Micro and its Subsidiaries (such capitalized term and all other
capitalized terms used herein having the meanings provided in Section 1.1) are
engaged primarily in the business of the wholesale distribution of microcomputer
software and hardware products, multimedia products, customer financing,
assembly and configuration and other related wholesaling, distribution and
service activities; and
WHEREAS, Micro wishes to obtain for itself and Coordination Center as
Initial Borrowers, Commitments from all the Lenders for Credit Extensions to be
made prior to the Commitment Termination Date in an aggregate amount in any
Available Currency, not to exceed the Total Credit Commitment Amount at any one
time outstanding, such Credit Extensions being available as Revolving Loans and
Letters of Credit, so long as the Letter of Credit Outstandings never exceed the
Letter of Credit Limit; and
WHEREAS, Micro is willing to guarantee all Obligations of Coordination
Center; and
WHEREAS, the Lenders are willing, pursuant to and in accordance with the
terms of this Agreement, to extend severally Commitments to make, from time to
time prior to the Commitment Termination Date, Credit Extensions in an aggregate
amount at any time outstanding not to exceed the excess of the Total Credit
Commitment Amount over the then Outstanding Credit Extensions; and
WHEREAS, the proceeds of the Credit Extensions will be used for general
corporate purposes (including, working capital and, so long as the relevant
Borrower has complied with Section 8.2.7, Acquisitions) of each Borrower and its
Subsidiaries;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency, of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. The following terms when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"ABN AMRO" means, collectively, ABN AMRO Bank N.V. and ABN AMRO
Incorporated.
"Acceding Borrower" is defined in Section 6.3.
"Accession Request and Acknowledgment" means a request for accession
duly completed and executed by an Authorized Person of the applicable Acceding
Borrower and acknowledged by an Authorized Person of each Guarantor,
substantially in the form of Exhibit N attached hereto.
"Acquired Existing Debt and Liens" means, for a period of 90 days
following the acquisition or merger of a Person by or into Micro or any of its
Subsidiaries or the acquisition of a business unit of a Person or the assets of
a Person or business unit of a Person by Micro or any of its Subsidiaries, the
Indebtedness and Liens of that Person or business unit that (a) were not
incurred in connection with that acquisition or merger and do not constitute any
refinancing of Indebtedness so incurred and (b) were in existence at the time of
that acquisition or merger.
"Acquisition" means any transaction, or any series of related
transactions, by which Micro and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors of such Person or (c) otherwise acquires
control of a more than 50% ownership interest in any Person.
"Additional Guarantor" means each Subsidiary of Micro as shall from time
to time become a Guarantor in accordance with Section 8.1.10.
"Additional Guaranty" means a guaranty, substantially in the form of the
Exhibit I attached hereto, duly executed and delivered by an Authorized Person
of each Additional Guarantor, as amended, supplemented, restated, or otherwise
modified from time to time.
"Additional Permitted Liens" means, as of any date (a) Liens securing
Indebtedness and not described in clauses (a) through (l) of Section 8.2.2, but
only to the extent that (i) the Amount of Additional Liens on that date does not
exceed 20% of Consolidated Tangible Net Worth on
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that date and (ii) the Borrowers are otherwise in compliance with Section
8.2.1(b)(i), and (b) Liens constituting Acquired Existing Debt and Liens on that
date.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 10.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be controlled by any other
Person if such other Person possesses, directly or indirectly, power (a) to
vote, in the case of any Lender Party, 10% or more or, in the case of any other
Person, 35% or more, of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners, or (b) in the case of any Lender Party or any other Person, to direct
or cause the direction of the management and policies of such Person whether by
contract or otherwise.
"Affiliate Transaction" is defined in Section 8.2.6.
"Agents" is defined in the preamble.
"Agreement" means this Credit Agreement, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"Amount of Additional Liens" means, at any date, the aggregate principal
amount of Indebtedness secured by Additional Permitted Liens on such date.
"Applicable Margin" means, for any Revolving Loan or Letter of Credit
(a) for any day during the period from and including the Effective Date, through
and including the last day of the Fiscal Period ending on the Saturday nearest
June 30, 2003, 1.75% per annum and (a) for any day thereafter, the rate per
annum determined in accordance with the following procedure:
(1) If the Pricing Level set forth opposite the Leverage Ratio
is the same as the Pricing Level set forth opposite the applicable
Credit Rating, then the Applicable Margin for that Pricing Level shall
be the Applicable Margin.
(2) If the Pricing Level set forth opposite the Leverage Ratio
differs by one Pricing Level from the Pricing Level set forth opposite
the applicable Credit Rating, then the Applicable Margin for the lower
numbered Pricing Level of the two shall be the Applicable Margin.
(3) If the Pricing Level set forth opposite the Leverage Ratio
differs by more than one Pricing Level from the Pricing Level set forth
opposite the applicable Credit Rating, then the Applicable Margin shall
be the average of the Applicable Margins for such two Pricing Levels.
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===============================================================================================
PRICING LEVEL CREDIT RATING LEVERAGE RATIO APPLICABLE MARGIN
- -----------------------------------------------------------------------------------------------
Level I Higher than or equal Less than 2.00 1.25%
to BBB or Baa2
- -----------------------------------------------------------------------------------------------
Level II BBB- or Baa3 Greater than or equal 1.50%
to 2.00, but less than
2.50
- -----------------------------------------------------------------------------------------------
Level III BB+ or Ba1 Greater than or equal 1.75%
to 2.50, but less than
3.00
- -----------------------------------------------------------------------------------------------
Level IV BB or Ba2 Greater than or equal 2.25%
to 3.00, but less than
3.50
- -----------------------------------------------------------------------------------------------
Level V Lower than or equal Greater than or equal 3.00%
to BB- or Ba3 to 3.50
===============================================================================================
Any change in the Applicable Margin as a result in a change in the Credit Rating
assigned by either S&P or Moody's will be effective as of the day subsequent to
the date on which S&P or Moody's, as the case may be, releases the applicable
change in its Credit Rating. If the Credit Ratings assigned by S&P and Moody's
fall into different Pricing Levels, then the applicable Pricing Level shall be
determined by reference to the lower of the two Credit Ratings.
The applicable Leverage Ratio shall be the Leverage Ratio for the Fiscal Period
most recently ended prior to such day for which financial statements and reports
have been received by the Administrative Agent pursuant to Section 8.1.1(a) or
(b), as set forth in (and effective upon delivery by Micro to the Administrative
Agent of) the related new Compliance Certificate pursuant to Section 8.1.1(d).
Notwithstanding the foregoing, (i) for so long as an Event of Default has
occurred and is continuing the applicable Pricing Level shall be Level V and
(ii) if Micro shall fail to deliver a Compliance Certificate required to be
delivered pursuant to Section 8.1.1(d) within 60 days after the end of any of
its fiscal quarters (or within 90 days, in the case of the last fiscal quarter
of its Fiscal Year), the applicable Pricing Level from and including the 61st
(or 91st, as the case may be) day after the end of such fiscal quarter (or
Fiscal Year, as the case may be) to but not including the date Micro delivers to
the Administrative Agent a quarterly Compliance Certificate shall be Level V.
"Applicable Time" means, except as provided in clause (ii), (i) New York
City time and (ii) in the case of notices, payments, requests or other actions
relating to any Revolving Loan or Letter of Credit denominated in any Available
Currency other than Dollars, the local time in the Principal Financial Center of
the Available Currency in which such Revolving Loan or Letter of Credit is
denominated.
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"Authorized Person" means those officers or employees of each Obligor
whose signatures and incumbency shall have been certified to the Administrative
Agent pursuant to Section 6.1.1 or 6.3.1.
"Available Credit Commitment" means, for any Lender and at any time, the
amount (not less than zero) equal to the remainder of (a) its Credit Commitment
Amount at that time minus (b) its Outstanding Credit Extensions at that time.
"Available Currency" means Dollars, Sterling and Euro, and any other
currency approved in writing by all of the Lenders.
"Board Representation Agreement" means the Board Representation
Agreement dated as of November 6, 1996 and amended as of June 1, 2001, March 12,
2002 and May 30, 2002, among Micro and the "Family Stockholders" (as defined
therein) listed on the signature pages thereof, as in effect without giving
effect to any further amendment, waiver, supplement, or modification except for
any such amendment, waiver, supplement, or modification that does not materially
alter the terms thereof (excluding from such exception however, any such
amendment, waiver, supplement, or modification that in any way expands the scope
of or materially affects the definition of "Family Stockholders" set forth
therein).
"Borrowers" means, collectively, the Initial Borrowers and the Acceding
Borrowers party to this Agreement from time to time, together with their
respective successors and assigns.
"Borrowing" means the Revolving Loans having the same Interest Period,
made by all Lenders on the same Business Day, and made pursuant to the same
Borrowing Request in accordance with Section 3.1.
"Borrowing Request" means a loan request and certificate for Revolving
Loans duly completed and executed by an Authorized Person of the relevant
Borrower, substantially in the form of Exhibit B attached hereto.
"Business Day" means
(a) any day which (i) is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in
London or in Brussels and (ii) relative to the making, continuing,
prepaying of Revolving Loans denominated in an Available Currency, is
also a day on which dealings in such Available Currency are carried on
in the interbank eurodollar market in London or New York City; and
(b) relative to the making of any payment in respect of any
Credit Extension denominated in an Available Currency other than
Sterling, any day on which dealings in such Available Currency are
carried on in the London interbank eurodollar market and in the relevant
local money market.
"Business Improvement Program Charges" means, for any period, the
aggregate business improvement program charges recorded in accordance with GAAP
by Micro and its Consolidated Subsidiaries during such period with respect to
the comprehensive business improvement program described in the September 18,
2002 Press Release of Micro.
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"Capitalized Lease Liabilities" of any Person means, at any time, any
obligation of such Person at such time to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or personal
property, which obligation is, or in accordance with GAAP (including FASB
Statement 13) is required to be, classified and accounted for as a capital lease
on a balance sheet of such Person at the time incurred; and for purposes of this
Agreement the amount of such obligation shall be the capitalized amount thereof
determined in accordance with such FASB Statement 13.
"Cash Business Improvement Program Charges" means Business Improvement
Program Charges that will require a corresponding cash expenditure.
"Code" means the U.S. Internal Revenue Code of 1986, as amended and as
in effect from time to time, and any rules and regulations promulgated
thereunder.
"Commitment" means, relative to each Lender, its obligation under
Section 2.1(a) to make Revolving Loans and under Section 3.2 to participate in
Letters of Credit and drawings thereunder.
"Commitment Termination Date" means the third anniversary of the
Effective Date, or the earlier date of termination in whole of the Commitments
pursuant to Section 2.2, 9.2 or 9.3.
"Compliance Certificate" means a report duly completed, with
substantially the same information as set forth in Exhibit E attached hereto, as
such Exhibit E may be amended, supplemented, restated or otherwise modified from
time to time.
"consolidated" and any derivative thereof each means, with reference to
the accounts or financial reports of any Person, the consolidated accounts or
financial reports of such Person and each Subsidiary of such Person determined
in accordance with GAAP, including principles of consolidation consistent with
those applied in the preparation of the consolidated financial statements of
Micro referred to in Section 7.6.
"Consolidated Assets" means, at any date, the total assets of Micro and
its Consolidated Subsidiaries that would be reflected on a consolidated balance
sheet of Micro and its Consolidated Subsidiaries as at such date in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Income (or
Loss) from Operations for such period adjusted by adding thereto (a) the amount
of all amortization of intangibles, depreciation and any other non-cash charges
that were deducted in arriving at Consolidated Income (or Loss) from Operations
for such period and (b) the amount of Cash Business Improvement Program Charges
recorded in accordance with GAAP during such period; provided that the
cumulative amount of Cash Business Improvement Program Charges added may not
exceed $50,000,000.
"Consolidated Funded Debt" means, as at any date, the total of all
Funded Debt of Micro and its Consolidated Subsidiaries outstanding on such date,
after eliminating all offsetting debits and credits between Micro and its
Consolidated Subsidiaries and all other items required to be eliminated in the
course of the preparation of consolidated financial statements of Micro and its
Consolidated Subsidiaries in accordance with GAAP.
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"Consolidated Income (or Loss) from Operations" means, for any period,
the amount of "income or loss from operations" (or any substituted or
replacement line item) reflected on a consolidated statement of income of Micro
and its Consolidated Subsidiaries for such period in accordance with GAAP.
"Consolidated Interest Charges" means, for any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between Micro and its Consolidated Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of Micro and its Consolidated Subsidiaries in accordance
with GAAP):
(a) aggregate Net Interest Expense for such period plus, to the
extent not deducted in determining Consolidated Net Income for such
period, the amount of all interest previously capitalized or deferred
that was amortized during such period; plus
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such
period; plus
(c) all attributable interest, fees in lieu of interest and
"losses on sales of receivables" (or any substituted or replacement line
item) reflected on a consolidated statement of income of Micro and its
Consolidated Subsidiaries for such period, in each case associated with
any securitization program by Micro or any of its Consolidated
Subsidiaries.
"Consolidated Liabilities" means, at any date, the sum of all
obligations of Micro and its Consolidated Subsidiaries that would be reflected
on a consolidated balance sheet of Micro and its Consolidated Subsidiaries as at
such date in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
income of Micro and its Consolidated Subsidiaries as reflected on a consolidated
statement of income of Micro and its Consolidated Subsidiaries for such period
in accordance with GAAP.
"Consolidated Retained Receivables" means, at any date, the face amount
(calculated in Dollars but net of any amount allocated to the relevant Trade
Accounts Receivable with respect to any reserve or similar allowance for
doubtful payment) of all Trade Accounts Receivable of Micro and its Consolidated
Subsidiaries outstanding as at such date (including the amount of "retained
interest in securitized receivables" (or any substituted or replacement line
item) that would be reflected on a consolidated balance sheet of Micro and its
Consolidated Subsidiaries at such date, it being agreed for the avoidance of
doubt that Consolidated Retained Receivables shall not include any Consolidated
Transferred Receivables).
"Consolidated Stockholders' Equity" means, at any date, the remainder of
(a) Consolidated Assets as at such date, minus (b) Consolidated Liabilities as
at such date.
"Consolidated Subsidiary" means any Subsidiary whose financial
statements are required in accordance with GAAP to be consolidated with the
consolidated financial statements delivered by Micro from time to time in
accordance with Section 8.1.1.
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"Consolidated Tangible Net Worth" means, at any date, the remainder of
(a) Consolidated Stockholders' Equity as at the end of the most recently ended
Fiscal Period for which financial statements have been delivered pursuant to
Section 6.1.4 or 8.1.1 plus the accumulated after-tax amount of non-cash charges
and adjustments to income and Consolidated Stockholders' Equity attributable to
employee stock options and stock purchases through the last day of such Fiscal
Period, minus (b) goodwill and other Intangible Assets of Micro and its
Consolidated Subsidiaries as at such last day.
"Consolidated Transferred Receivables" means, at any date, the face
amount (calculated in Dollars but net of any amount allocated by Micro or any of
its Consolidated Subsidiaries to the relevant Trade Accounts Receivable with
respect to any reserve or similar allowance for doubtful payment) of all Trade
Accounts Receivable (or an undivided interest in a specified amount thereof)
originally payable to the account of Micro or any of its Consolidated
Subsidiaries, which have not been discharged at such date and in respect of
which Micro's or any such Consolidated Subsidiary's rights and interests have,
on or prior to such date, been sold, assigned or otherwise transferred, in whole
or in part, to any Person other than Micro or any of its Consolidated
Subsidiaries (either directly or by way of such Person holding an undivided
interest in a specified amount of Trade Accounts Receivable sold, assigned or
otherwise transferred to a trust), it being agreed for avoidance of doubt that
(a) the determination of whether Trade Accounts Receivable (or an undivided
interest in a specified amount thereof) have been sold, assigned or otherwise
transferred, in whole or in part, shall be made on the basis of the form of such
sale, assignment or transfer and not on GAAP and (b) the amount of any such
Trade Accounts Receivable that are Consolidated Transferred Receivables shall be
net of the amount, if any, of Consolidated Retained Receivables determined with
respect thereto.
"Contingent Liability" means any agreement, undertaking or arrangement
(including any partnership, joint venture or similar arrangement) by which any
Person guarantees, endorses or otherwise becomes or is contingently liable (by
direct or indirect agreement, contingent or otherwise) to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor, or obligation
or any other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other person, if the primary
purpose or intent thereof by the Person incurring the Contingent Liability is to
provide assurance to the obligee of such obligation of another Person that such
obligation of such other Person will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof. The amount of any Person's obligation under any Contingent Liability
shall be deemed to be the lower of (a) the outstanding principal or face amount
of the debt, obligation or other liability guaranteed thereby and (b) the
maximum amount for which such Person may be liable pursuant to the terms of the
instrument embodying such Contingent Liability, unless such obligation and the
maximum amount for which such Person may be liable are not stated or
determinable, in which case the amount of such Contingent Liability shall be
such Person's maximum reasonably anticipated liability in respect thereof as
determined by Micro in good faith.
"Continuation Notice" means a notice of continuation and certificate for
Revolving Loans duly completed and executed by an Authorized Person of the
relevant Borrower, substantially in the form of Exhibit D attached hereto.
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"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with Micro,
are treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Coordination Center" is defined in the preamble.
"Cost of Funds" means, for the Administrative Agent or any Lender, as
the case may be, its cost, from whatever source it reasonably selects, of funds
in respect of any expenditure or funding by it or in respect of maintaining any
Revolving Loan, as the case may be.
"Cost of Funds Rate Loan" means, for any Lender, any Revolving Loan
bearing interest at an annual rate equal to the sum of (a) the Applicable Margin
for that Loan plus (b) such Lender's Cost of Funds.
"Credit Commitment Amount" means, relative to any Lender at any time,
such Lender's Percentage multiplied by the then Total Credit Commitment Amount
as in effect at such time.
"Credit Extension" means, collectively, (a) the making of Revolving
Loans by the Lenders and (b) the issuance by any Issuer of a Letter of Credit.
"Credit Extension Request" means, as the context may require, a
Borrowing Request, a Continuation Notice or an Issuance Request.
"Credit Rating" means a statistical rating assigned by S&P and Moody's
to Micro's long-term senior unsecured debt and either published or otherwise
evidenced in writing by the applicable rating agency and made available to the
Administrative Agent, including both "express" and "indicative" or "implied" (or
equivalent) ratings.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement Date" is defined in Section 3.2.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as the same may be amended, supplemented or otherwise modified from
time to time by Micro with the consent of the Administrative Agent and the
Required Lenders.
"Dollar" and the sign "$" each means the lawful currency of the United
States.
"Dollar Amount" at any date, means (a) with respect to an amount
denominated in Dollars, such amount as at such date, and (b) with respect to an
amount denominated in any other Available Currency, the amount of Dollars into
which such Available Currency is convertible into Dollars as at such date and on
the terms herein provided.
"Effective Date" is defined in Section 11.8.
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"Effective Date Certificate" means a certificate duly completed and
executed by an Authorized Person of Micro, substantially in the form of Exhibit
F attached hereto.
"Eligible Assignee" means any Person that, on the date that it is to
become a Lender under this Agreement, is (i) a Lender or (ii) any one of the
following (in each case, with the prior written consent of the Administrative
Agent, the Issuer and (so long as no Event of Default exists at that time)
Micro, in each case such consent not to be unreasonably withheld or delayed (it
being understood that (1) if an assignment or transfer to a Person described
below results in a reduced rate of return to the Issuer or requires the Issuer
to set aside capital in an amount greater than that which is required to be set
aside for other Lenders participating in the Letter of Credit or the Issuer has
a reasonable concern about the creditworthiness or reputation of the proposed
assignee, then the failure to consent to such transfer by the Issuer shall be
deemed reasonable and (2) in the case of an assignment or transfer to a bank or
financial institution pursuant to clause (a) below to which Micro must consent,
Micro may take into account, among other things, the creditworthiness of that
bank or financial institution and the holding company, if any, by which it is
owned):
(a) a bank or financial institution that at that time has (or is
owned by a holding company that on a consolidated basis has) combined
capital and surplus (as established in its most recent report of
condition to its primary regulator) of not less than $250,000,000 (or
its equivalent in foreign currency);
(b) a commercial bank that at that time (i) is organized under
the laws of the United States or any State thereof, (ii) has outstanding
unsecured indebtedness that is rated A- or better by S&P or A3 or better
by Moody's (or an equivalent rating by another nationally recognized
statistical rating agency of similar standing if such corporations are
no longer in the business of rating unsecured indebtedness of entities
engaged in such businesses) and (iii) has combined capital and surplus
(as established in its most recent report of condition to its primary
regulator) of not less than $250,000,000 (or its equivalent in foreign
currency);
(c) a commercial bank that at that time (i) is organized under
the laws of (A) any other country that is a member of the Organization
for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated
with its General Arrangements to Borrow or any country that is a member
of the European Community, or (B) political subdivision of any such
country, (ii) has (unless Micro otherwise agrees) outstanding unsecured
indebtedness that is rated A- or better by S&P or A3 or better by
Moody's (or an equivalent rating by another nationally recognized
statistical rating agency of similar standing if such corporations are
no longer in the business of rating unsecured indebtedness of entities
engaged in such businesses) and (iii) has combined capital and surplus
(as established in its most recent report of condition to its primary
regulator) of not less than $250,000,000 (or its equivalent in foreign
currency);
(d) the central bank of any country that at that time (i) is a
member of the Organization for Economic Cooperation and Development,
(ii) has (unless Micro otherwise agrees) outstanding unsecured
indebtedness that is rated A- or better by S&P or
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A3 or better by Moody's (or an equivalent rating by another nationally
recognized statistical rating agency of similar standing if such
corporations are no longer in the business of rating unsecured
indebtedness of entities engaged in such businesses) and (iii) has
combined capital and surplus (as established in its most recent report
of condition to its primary regulator) of not less than $250,000,000 (or
its equivalent in foreign currency); or
(e) solely during the occurrence and continuance of an Event of
Default, a finance company, insurance company, or other financial
institution or fund (whether a corporation, partnership, or other
entity) that at that time is engaged generally in making, purchasing,
and otherwise investing in commercial loans in the ordinary course of
its business;
so long as, in the case of any Person described in clauses (a) through (e)
above, it must also at that time be (A) in respect of payments by Micro,
entitled to receive payments hereunder free and clear of and without deduction
for or on account of any United States federal income taxes, and (B) in respect
of payments by Coordination Center, entitled to receive payments hereunder free
and clear of and without any deduction for or on account of any income taxes
imposed by The Kingdom of Belgium.
"EMU" means economic and monetary union as contemplated in the Treaty on
European Union.
"EMU Legislation" means 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), being in part the
implementation of the third stage of EMU.
"Encumbered Trade Receivables" means, at any date, the face amount of
any item includable in "trade receivables" (or any substituted or replacement
line item) that would be reflected on a consolidated balance sheet of Micro and
its Consolidated Subsidiaries at such date that is subject to a Lien securing
any Indebtedness or otherwise arising in connection with a receivables
securitization program.
"Environmental Laws" means any and all applicable statutes, laws,
ordinances, codes, rules, regulations and binding and enforceable guidelines
(including consent decrees and administrative orders binding on any Obligor or
any of their respective Subsidiaries), in each case as now or hereafter in
effect, relating to human health and safety, or the regulation or protection of
the environment, or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes
into the indoor or outdoor environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes issued (presently or in the future) by any
national, federal, state, provincial, territorial, or local authority in any
jurisdiction in which any Obligor or any of their respective Subsidiaries is
conducting its business.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the rules
and regulations promulgated
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thereunder, in each case as in effect from time to time. References to sections
of ERISA also refer to any successor sections.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the F.R.S. Board, as in effect from time to time.
"Euro" means the single currency of Participating Member States of the
European Union.
"Euro Unit" means a currency unit of the Euro.
"Event of Default" is defined in Section 9.1.
"Equity Issuance" means (a) any issuance or sale by Micro or any of its
Consolidated Subsidiaries after the Effective Date of (i) any of its capital
stock, (ii) any warrants or options exercisable in respect of its capital stock
(other than any warrants or options issued to directors, officers or employees
of Micro or any of its Consolidated Subsidiaries pursuant to employee benefit
plans established in the ordinary course of business and any capital stock of
Micro issued upon the exercise of such warrants or options) or (iii) any other
security or instrument representing an equity interest (or the right to obtain
any equity interest) in Micro or any of its Subsidiaries or (b) the receipt by
Micro any of its Subsidiaries after the Effective Date of any capital
contribution; provided that Equity Issuance shall not include (x) any such
issuance or sale by any Subsidiary of Micro to Micro or any wholly owned
Subsidiary of Micro or (y) any capital contribution by Micro or any wholly owned
Subsidiary of Micro to any Subsidiary of Micro.
"FASB" means the Financial Accounting Standards Board.
"Fee Letter" means the letter agreement dated as of October 15, 2002,
between Scotia Capital, ABN AMRO, Micro and Coordination Center, relating to
certain fees to be paid in connection with this Agreement.
"Fiscal Period" means a fiscal period of Micro or any of its
Subsidiaries, which shall be either a calendar quarter or an aggregate period
comprised of three consecutive periods of four weeks and five weeks (or, on
occasion, six weeks instead of five), currently commencing on or about each
January 1, April 1, July 1 or October 1.
"Fiscal Year" means, with respect to any Person, the fiscal year of such
Person. The term Fiscal Year, when used without reference to any Person, shall
mean a Fiscal Year of Micro, which currently ends on the Saturday nearest
December 31.
"Floor Plan Obligation" means, with respect to any Person, an obligation
owed by such Person arising out of arrangements whereby a third party makes
payments for the account of such Person directly or indirectly to a trade
creditor of such Person in respect of Trade Payables of such Person.
"Floor Plan Support Obligation" means any obligation, contingent or
otherwise, of any Person (the "Obligor") in favor of another Person in respect
of Floor Plan Obligations held by the other Person that arise in connection with
sales of goods or services by the Obligor or its Affiliates.
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"Foreign Borrowers" means, collectively, (a) Coordination Center and (b)
any Acceding Borrower that is not domiciled in the United States.
"Foreign Subsidiary" means any Subsidiary of Micro that is not domiciled
in the United States.
"F.R.S. Board" is defined in Section 7.17.
"Funded Debt" means, with respect to any Person, the sum (without
duplication) of (i) all Indebtedness of such Person, (ii) Consolidated
Transferred Receivables and (iii) the aggregate amount of Total Reimbursement
Obligations that are more than 3 days past due; provided that, for purposes of
determining the "Applicable Margin" and the amount of the commitment fee
pursuant to Section 4.3.2, the definition of Funded Debt used to determine the
Leverage Ratio shall include, in lieu of clause (iii) above, all Letter of
Credit Outstandings.
"GAAP" is defined in Section 1.4.
"Guaranties" means, collectively, (a) the Micro Guaranty and (b) each
Additional Guaranty.
"Guarantors" means, collectively, Micro and each Additional Guarantor.
"Hazardous Material" means (a) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material or substance that is presently
or hereafter becomes defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants," "pollutants," or terms of similar import within the meaning of
any Environmental Law, or (b) any other chemical or other material or substance,
exposure to which is presently or hereafter prohibited, limited or regulated
under any Environmental Law.
"herein," "hereof," "hereto," "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Article,
Section, clause, paragraph or provision of this Agreement or such other Loan
Document.
"Impermissible Qualifications" means, relative to the opinion of
certification of any independent public accountant engaged by Micro as to any
financial statement of Micro and its Consolidated Subsidiaries, any
qualification or exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be to
cause Micro to be in default of any of its obligations under Section
8.2.3 or 8.2.8;
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provided that (i) qualifications relating to pre-acquisition balance sheet
accounts of Person(s) acquired by Micro or any of its Subsidiaries and (ii)
statements of reliance in the auditor's opinion on another accounting firm (so
long as such other accounting firm has a national reputation in the applicable
country and such reliance does not pertain to any Borrower) shall not be deemed
an Impermissible Qualification.
"including" and "include" mean including without limiting the generality
of any description preceding such term.
"Indebtedness" of any Person means and includes the sum of the following
(without duplication):
(a) all obligations of such Person for borrowed money, all
obligations evidenced by bonds, debentures, notes, investment repurchase
agreements or other similar instruments, and all securities issued by
such Person providing for mandatory payments of money, whether or not
contingent;
(b) all obligations of such Person pursuant to revolving credit
agreements or similar arrangements to the extent then outstanding;
(c) all obligations of such Person to pay the deferred purchase
price of property or services, except (i) trade accounts payable arising
in the ordinary course of business, (ii) other accounts payable arising
in the ordinary course of business in respect of such obligations the
payment of which has been deferred for a period of 270 days or less,
(iii) other accounts payable arising in the ordinary course of business
none of which shall be, individually, in excess of $200,000, and (iv) a
lessee's obligations under leases of real or personal property not
required to be capitalized under FASB Statement 13;
(d) all obligations of such Person as lessee under Capitalized
Lease Liabilities or Synthetic Leases;
(e) all obligations of such Person to purchase securities (or
other property) which arise out of or in connection with the sale of the
same or substantially similar securities or property excluding any such
sales or exchanges for a period of less than 45 days;
(f) all obligations, contingent or otherwise, with respect to
the stated amount of letters of credit, whether or not drawn, issued for
the account of such Person to support the Indebtedness of any Person
other than Micro or a Subsidiary of Micro, and bankers' acceptances
issued for the account of such Person;
(g) all Indebtedness of others secured by a Lien of any kind on
any asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided that the amount of any Indebtedness attributed to
any Person pursuant to this clause (g) shall be limited, in each case,
to the lesser of (i) the fair market value of the assets of such Person
subject to such Lien and (ii) the amount of the other Person's
Indebtedness secured by such Lien; and
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(h) all guarantees, endorsements and other Contingent
Liabilities of such Person in respect of any of the foregoing;
provided that it is understood and agreed that the following are not
"Indebtedness":
(i) obligations to pay the deferred purchase price for
the acquisition of any business (whether by way of merger, sale
of stock or assets or otherwise), to the extent that such
obligations are contingent upon attaining performance criteria
such as earnings and such criteria shall not have been achieved;
(ii) obligations to repurchase securities issued to
employees pursuant to any Plan or other contract or arrangement
relating to employment upon the termination of their employment
or other events;
(iii) obligations to match contributions of employees
under any Plan;
(iv) guarantees of any Obligor or any of their
respective Subsidiaries that are guarantees of performance,
reclamation or similar bonds or, in lieu of such bonds, letters
of credit used for such purposes issued in the ordinary course
of business for the benefit of any Subsidiary of Micro, which
would not be included on the consolidated financial statements
of any Obligor; and
(v) Trade Payables.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Ineligible Currency" means, with respect to any Available Currency
(other than Dollars), a determination by the Administrative Agent that such
currency has ceased to be (a) freely convertible into Dollars or (b) a currency
for which there is an active foreign exchange and deposit market in London or
New York City.
"Initial Borrowers" is defined in the preamble.
"Intangible Assets" means, with respect to any Person, that portion of
the book value of the assets of such Person which would be treated as
intangibles under GAAP, including all items such as goodwill, trademarks, trade
names, brands, trade secrets, customer lists, copyrights, patents, licenses,
franchise conversion rights and rights with respect to any of the foregoing and
all unamortized debt or equity discount and expenses.
"Interest Period" means, for any Revolving Loan, the period beginning on
(and including) the date on which such Revolving Loan is made, continued or
converted and ending on (but excluding) the last day of the period selected by
the relevant Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be one week (it being understood that such one-week
Interest Period may not be selected by the Borrowers collectively more than
twice in any calendar month) or one, three, or six months from (and including)
the date of such Revolving Loan, ending on (but excluding), in the case of a
one-week Interest
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Period, the corresponding day of the following week and, in each other case, the
day which numerically corresponds to such date (or, if such month has no
numerically corresponding day on the last Business Day of such month), as the
relevant Borrower may select in its relevant notice pursuant to Section 3.1 or
4.2.3; provided that:
(a) the Borrowers shall not be permitted to select Interest
Periods for Revolving Loans to be in effect at any one time which have
expiration dates occurring on more than 10 different dates in the
aggregate;
(b) Interest Periods commencing on the same date for Revolving
Loans comprising part of the same Borrowing shall be of the same
duration;
(c) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless (except in the case of a one-week
Interest Period), if such Interest Period applies to a Revolving Loan,
such next following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
(d) no Interest Period for any Revolving Loan may end later than
the Commitment Termination Date.
"Intra-Group Agreement" means the Intra-Group Agreement, substantially
in the form of Exhibit G attached hereto, to be duly executed and delivered if
and when required by Section 8.1.11 by Authorized Persons of each Borrower that
is a Guarantor, as amended, supplemented, restated or otherwise modified from
time to time.
"Issuance Request" means an issuance request for Letters of Credit duly
completed and executed by an Authorized Person of the relevant Borrower,
substantially in the form of Exhibit C attached hereto.
"Issuer" means Scotia Capital, in its capacity as issuer of the Letters
of Credit. At the request of the Agents, another Lender or an Affiliate of
Scotia Capital may (but is not otherwise obligated to) issue one or more Letters
of Credit hereunder.
"Joint Lead Arrangers" means Scotia Capital and ABN AMRO Incorporated.
"Lenders" is defined in the preamble.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J attached hereto.
"Lender Party" means any of the Lenders, the Agents, the Issuers, and
(for purposes only of Section 11.4) the Joint Lead Arrangers.
"Lending Office" means, for any Lender (a) for Revolving Loans to Micro,
its Lending Office for Loans to Micro designated beside its signature below,
designated in a Lender Assignment Agreement to which it is a party, or
designated in a notice to the Administrative
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Agent and Micro from time to time and at any time and (b) for other Revolving
Loans, its Lending Office for "Other Loans" designated beside its signature
below, designated in a Lender Assignment Agreement to which it is a party, or
designated in a notice to the Administrative Agent and Micro from time to time
and at any time.
"Letter of Credit Commitment" means, with respect to any Issuer of
Letters of Credit, such Issuer's obligations to issue Letters of Credit pursuant
to Section 3.2 and, with respect to each of the other Lenders, the obligations
of each such Lender to participate in Letters of Credit pursuant to such Section
3.2.
"Letter of Credit Limit" means, on any date, a maximum amount (as such
amount may be reduced from time to time pursuant to Section 2.2) equal to the
Total Credit Commitment Amount.
"Letter of Credit Outstandings" means, on any date, the sum (without
duplication) of the Dollar Amounts of (a) the then aggregate amount which is
undrawn and available under all Letters of Credit issued and outstanding
(assuming that all conditions for drawing have been satisfied), plus (b) the
then aggregate amount of all unpaid and outstanding Reimbursement Obligations.
"Letters of Credit" means all letters of credit issued and outstanding
under this Agreement.
"Leverage Ratio" means the ratio of (a) Consolidated Funded Debt on the
last day of any Fiscal Period to (b) Consolidated EBITDA for the period of four
Fiscal Periods ending on the last day of such Fiscal Period.
"LIBO Rate" means, for any Interest Period for a Borrowing, an annual
interest rate (rounded upward to four decimal places) determined by the
Administrative Agent to be either:
(a) the London interbank offered rate for deposits, in the
currency in which that Borrowing is denominated under this Agreement, at
approximately 11:00 a.m., London time, two Business Days before the
first day (or, solely in the case of Borrowings denominated in Sterling,
on the first day) of that Interest Period for a term comparable to that
Interest Period, that appears on Telerate Pages 3740 or 3750, as
applicable; or
(b) if no such display rate is then available, the average of
the rates at which deposits of the currency of the relevant Borrowing in
immediately available funds are offered to each Reference Lender's
principal office in the London interbank market at or about 11:00 a.m.,
London time, two Business Days prior to (or the Business Day that, for
Borrowings denominated in Sterling, is) the beginning of such Interest
Period for delivery on the first day of such Interest Period, and in an
amount approximately equal to the amount of each such Reference Lender's
Revolving Loan that is part of that Borrowing and for a period
approximately equal to such Interest Period.
"LIBOR Reserve Percentage" means, for any Lender, relative to any
Interest Period for Revolving Loans, the reserve percentage (expressed as a
decimal) equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplement, marginal and other
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reserves and taking into account any transitional adjustments or other scheduled
changes in reserve requirements) specified under regulations issued from time to
time by the F.R.S. Board and then applicable to assets or liabilities consisting
of and including Eurocurrency Liabilities having a term approximately equal or
comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against, valid claim on or interest in property to secure payment of a
debt or performance of an obligation or other priority or preferential
arrangement of any kind or nature whatsoever (including, without limitation, (a)
the lien or retained security title of a conditional vendor and (b) under any
agreement for the sale of Trade Accounts Receivable (or an undivided interest in
a specified amount of such Trade Accounts Receivable), the interest of the
purchaser (or any assignee of such purchaser which has financed the relevant
purchase) in a percentage of receivables of the seller not so sold, held by the
purchaser (or such assignee) as a reserve for (i) interest rate protection in
the event of a liquidation of the receivables sold, (ii) expenses that would be
incurred upon a liquidation of the receivables sold, (iii) losses that might be
incurred in the event the amount actually collected from the receivables sold is
less than the amount represented in the relevant receivables purchase agreement
as collectible, or (iv) any similar purpose (but excluding the interest of a
trust in such receivables to the extent that the beneficiary of such trust is
Micro or a Subsidiary of Micro).
"Loan Document" means this Agreement, each Revolving Note (if any), each
Credit Extension Request, each Letter of Credit, the Intra-Group Agreement, each
Guaranty, the most recently delivered Compliance Certificate (specifically
excluding any other Compliance Certificate previously delivered), any Accession
Request and Acknowledgment, and any other agreement, document, or instrument
(excluding any documents delivered solely for the purpose of satisfaction
disclosure requirements or requests for information) required in connection with
this Agreement or the making or maintaining of any Credit Extension and
delivered by an Authorized Person.
"Mandatory Costs" means the percentage rate per annum calculated by the
Administrative Agent in accordance with Schedule II.
"Margin Stock" means "margin stock," as such term is defined and used in
Regulation U.
"Material Adverse Effect" means a material adverse effect on the ability
(whether financial, legal or otherwise) of the Obligors to comply with their
obligations (future or otherwise) under this Agreement.
"Material Asset Acquisition" (a) means the purchase or other acquisition
(in one transaction or a series of related transactions) from any Person of
property or assets, the aggregate purchase price of which (calculated in
Dollars) paid in cash or property (other than property consisting of equity
shares or interests or other equivalents of corporate stock of, or partnership
or other ownership interests in, any Obligor), equals or exceeds 25% of the sum
(calculated without giving effect to such purchase or acquisition) of (i)
Consolidated Funded Debt (determined as at the end of the then most recently
ended Fiscal Period), plus (ii) Consolidated Stockholders' Equity (determined as
at the end of the then most recently ended Fiscal Period), plus (iii) any
increase thereof attributable to any equity offerings or issuances of
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capital stock occurring subsequent to the end of such Fiscal Period and before
any such purchase or acquisition, but (b) does not mean a purchase or
acquisition of property or assets of the character described in and permitted
under Section 8.2.9(c) or 8.2.9(d).
"Material Subsidiary" means:
(a) with respect to any Subsidiary of Micro as of the date of
this Agreement, a Subsidiary of Micro that, as of any date of
determination, either (i) on an average over the three most recently
preceding Fiscal Years contributed at least 5% to Consolidated Net
Income or (ii) on an average at the end of the three most recently
preceding Fiscal Years owned assets constituting at least 5% of
Consolidated Assets; and
(b) with respect to any Subsidiary of Micro organized or
acquired subsequent to the date of this Agreement, a Subsidiary of Micro
that as of:
(i) the date it becomes a Subsidiary of Micro, would
have owned (on a pro forma basis if such Subsidiary had been a
Subsidiary of Micro at the end of the preceding Fiscal Year)
assets constituting at least 5% of Consolidated Assets at the
end of the Fiscal Year immediately prior to the Fiscal Year in
which it is organized or acquired; or
(ii) any date of determination thereafter, either (A) on
an average over the three most recently preceding Fiscal Years
(or, if less, since the date such Person became a Subsidiary of
Micro) contributed at least 5% to Consolidated Net Income or (B)
on an average at the end of the three (or, if less, such number
of Fiscal Year-ends as have occurred since such Person became a
Subsidiary of Micro) most recently preceding Fiscal Years owned
assets constituting at least 5% of Consolidated Assets;
provided that Ingram Funding Inc. and any other special purpose financing
vehicle shall not be Material Subsidiaries.
"Maturity" of any of the Obligations means the earliest to occur of:
(a) the date on which such Obligations expressly become due and
payable pursuant hereto or any other Loan Document but in no event
beyond the Commitment Termination Date; and
(b) the date on which such Obligations become due and payable
pursuant to Section 9.2, 9.3, or 9.4.
"Micro" is defined in the preamble.
"Micro Guaranty" means a guaranty, substantially in the form of Exhibit
H attached hereto, duly executed and delivered by an Authorized Person of Micro,
as amended, supplemented, restated or otherwise modified from time to time.
"Moody's" means Moody's Investors Service, Inc.
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"National Currency Unit" means a unit of currency (other than a Euro
Unit) of a Participating Member State.
"Net Interest Expense" means, for any applicable period, the aggregate
interest expense of Micro and its Consolidated Subsidiaries (including imputed
interest on Capitalized Lease Liabilities) deducted in determining Consolidated
Net Income for such period, net of interest income of Micro and its Consolidated
Subsidiaries included in determining Consolidated Net Income for such applicable
period.
"Non-Exempt U.S. Person" means any Lender Party who is a "United States
person" within the meaning of Section 7701(a)(30) of the Code other than a
Lender Party who is an exempt recipient (including a corporation or a financial
institution) as determined under the provisions of Treas. Reg. Section
1.6049-4(c)(1)(ii) unless the communications with such Lender Party are mailed
by Micro or the Administrative Agent to an address in a foreign country.
"Obligations" means, individually and collectively (a) the Revolving
Loans, (b) all Letter of Credit Outstandings, and (c) all other indebtedness,
liabilities, obligations, covenants and duties of any Borrower owing to the
Agents or the Lenders of every kind, nature and description, under or in respect
of this Agreement or any of the other Loan Documents including, without
limitation, any fees, whether direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note.
"Obligors" means, collectively, the Borrowers and the Guarantors.
"Organic Documents" means, relative to any Obligor, any governmental
filing or proclamation pursuant to which such Person shall have been created and
shall continue in existence (including a charter or certificate or articles of
incorporation or organization, and, with respect to Coordination Center, the
Royal Decree) and its by-laws (or, if applicable, partnership or operating
agreement) and all material shareholder agreements, voting trusts and similar
arrangements to which such Obligor is a party that are applicable to the voting
of any of its authorized shares of capital stock (or, if applicable, other
ownership interests therein).
"Outstanding Credit Extensions" means, relative to any Lender at any
date and without duplication, the sum of the Dollar Amounts of (a) the aggregate
principal amount of all outstanding Revolving Loans of such Lender at such date,
plus (b) such Lender's Percentage of the Letter of Credit Outstandings.
"Participant" is defined in Section 11.11.2.
"Participating Member State" means each such state so described in any
EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(3) of ERISA), and to which any
Obligor or any corporation, trade or business that
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is, along with Obligor, a member of a Controlled Group, may have liability,
including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor within the
meaning of Section 4069 of ERISA.
"Percentage" of any Lender means in the case of (a) each Lender which is
a signatory to this Agreement, the percentage set forth opposite such Lender's
signature hereto under the caption "Percentage," subject to any modification
necessary to give effect to any sale, assignment or transfer made pursuant to
Section 11.11.1, or (b) any Transferee Lender, effective upon the occurrence of
the relevant purchase by, or assignment to, such Transferee Lender, the portion
of the Percentage of the selling, assigning or transferring Lender allocated to
such Transferee Lender.
"Person" means any natural person, company, partnership, firm, limited
liability company or partnership, association, trust, government, government
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Principal Financial Center" means, in the case of any Available
Currency, the principal financial center where such Available Currency is
cleared and settled, as determined by the Administrative Agent.
"Quarterly Payment Date" means the last day of March, June, September
and December of each calendar year or, if any such day is not a Business Day,
the next succeeding Business Day.
"Reference Lenders" means Scotia Capital and ABN AMRO Bank N.V; provided
that, in relation to Mandatory Costs, "Reference Lenders" shall refer to the
principal London office of Scotia Capital and ABN AMRO Bank N.V.
"Reference Rate" means, at any time, an annual interest rate equal to
the sum of (a) the Applicable Margin for Revolving Loans at that time (unless
already included in the rate determined under clause (b) following) plus (b) the
rate determined by the Administrative Agent to be the higher of either:
(i) the rate on the relevant base amount or overdue
amount (before the date due, if principal), as the case may be
and to the extent applicable (the "relevant amount"); or
(ii) the rate that would have been payable if the
relevant amount constituted a Revolving Loan in the currency of
the relevant amount for successive interest periods of such
duration as the Administrative Agent may determine (each a
"designated interest period").
Such rate in clause (b) above shall be determined on each Business Day or the
first day of, or two Business Days before the first day of, the designated
interest period, as appropriate, and otherwise determined in accordance with the
definition of LIBO Rate or, if not available,
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determined by reference to the cost of funds to the Administrative Agent from
whatever source it reasonably selects.
"Regulation U" is defined in Section 7.17.
"Regulation X" is defined in Section 7.17.
"Regulatory Change" means any change after the date hereof in any (or
the promulgation after the date hereof of any new):
(a) law applicable to any class of banks (of which any Lender
Party is a member) issued by (i) any competent authority in any country
or jurisdiction, or (ii) any competent international or supra-national
authority; or
(b) regulation, interpretation, directive or request (whether or
not having the force of law) applicable to any class of banks (of which
any Lender Party is a member) of any court, central bank or governmental
authority or agency charged with the interpretation or administration of
any law referred to in clause (a) of this definition or of any fiscal,
monetary or other authority having jurisdiction over any Lender Party.
"Reimbursement Obligation" is defined in Section 3.2.3.
"Release" means a "release," as such term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended and as in effect from time to time (42 United States Code Section 9601
et seq.), and any rules and regulations promulgated thereunder.
"Required Currency" is defined in Section 5.8.1(a).
"Required Lenders" means (a) at any time when the Commitments of the
Lenders have expired or been terminated, those Lenders holding at least 66-2/3%
of the total Outstanding Credit Extensions of all of the Lenders at that time,
and (b) at any other time, those Lenders whose Percentages total at least
66-2/3% at that time.
"Restricted Payment" is defined in Section 8.2.4(a).
"Revolving Loans" is defined in clause (a) of Section 2.1.
"Revolving Note" means a promissory note of a Borrower, payable to a
Lender that has requested it under Section 4.1, substantially in the form of
Exhibit A attached hereto (as such promissory note may be amended, endorsed, or
otherwise modified from time to time), evidencing the aggregate Indebtedness of
that Borrower to such Lender resulting from outstanding Revolving Loans,
together with all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Royal Decree" means the Royal Decree of The Kingdom of Belgium
recognizing Coordination Center as a coordination center under Belgian law, as
the same may from time to
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time be amended, supplemented or otherwise modified by any new Royal Decree
relating to the recognition of the Coordination Center as a coordination center
under Belgium law.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
"Scotia Capital" is defined in the preamble.
"Securitization Default" is defined in Section 9.1.11.
"Securitization Financing Amount" means, in respect of any
Securitization Default, the principal equivalent of the outstanding amount of
financing being provided to Micro and its Consolidated Subsidiaries under the
related Trade Accounts Receivable securitization program, determined in
accordance with general accepted financial practices.
"Senior Consolidated Funded Debt" means, as of any date of
determination, the total of all Consolidated Funded Debt of Micro and its
Consolidated Subsidiaries outstanding on such date that ranks pari passu with
the Obligations.
"Senior Leverage Ratio" means the ratio of (a) Senior Consolidated
Funded Debt on the last day of any Fiscal Period to (b) Consolidated EBITDA for
the period of four Fiscal Periods ending on the last day of such Fiscal Period.
"Stated Amount" for any Letter of Credit on any day means the amount
which is undrawn and available under such Letter of Credit on such day (after
giving effect to any drawings thereon on such day).
"Stated Expiry Date" is defined in Section 3.2.
"Sterling" means the lawful currency of the United Kingdom.
"Subject Lender" is defined in Section 5.12.
"Subsidiary" means, with respect to any Person, any corporation,
company, partnership or other entity of which more than 50% of the outstanding
shares or other ownership interests having by the terms thereof ordinary voting
power to elect a majority of the board of directors of, or other persons
performing similar functions for, such corporation, company, partnership or
other entity (irrespective of whether at the time shares or other ownership
interests of any other class or classes of such corporation, company,
partnership or other entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned by such Person,
by such Person and one or more other Subsidiaries of such Person, or by one or
more other Subsidiaries of such Person.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 10.4.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (a) that
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is not a capital lease in accordance with GAAP and (b) in respect of which the
lessee retains or obtains ownership of the property so leased for federal income
tax purposes, other than any such lease under which that Person is the lessor.
"Tax Payment" is defined in Section 5.7.
"Tax Refund" is defined in Section 5.7.
"Taxes" is defined in Section 5.7.
"Total Credit Commitment Amount" means, at any time, $150,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Total Indebtedness of Subsidiaries" means, at any date, the aggregate
of all Indebtedness on such date of all the Subsidiaries of Micro, without
duplication and after eliminating all offsetting debits and credits between each
of such Subsidiaries or between such a Subsidiary and Micro and all other items
required to be eliminated in accordance with GAAP, excluding (a) all
Indebtedness of any Consolidated Subsidiary of Micro outstanding on the
Effective Date, or incurred pursuant to any commitment or line of credit in its
favor in effect on Effective Date, and any renewals or replacements thereof, so
long as such renewals or replacements do not increase the amount of such
Indebtedness or such commitments or lines of credit and (b) any Indebtedness of
Ingram Funding Inc. or any other special purpose financing vehicle incurred in
connection with their purchase, directly or indirectly, from Micro or any of
Micro's other Consolidated Subsidiaries, of Trade Accounts Receivable or
interests therein.
"Total Reimbursement Obligations" means, at any date, the sum of (a) all
Reimbursement Obligations of each Borrower and (b) any other obligations of
Micro or any of its Subsidiaries to reimburse any issuer with respect to a
disbursement under a letter of credit issued on behalf of Micro or any such
Subsidiary, in each case that have ceased to be contingent upon a drawing under
the related letter of credit.
"Trade Accounts Receivable" means, with respect to any Person, all
rights of such Person to the payment of money arising out of any sale, lease or
other disposition of goods or rendition of services by such Person.
"Trade Payables" means, with respect to any Person, (a) any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services or (b) such Person's Floor Plan Obligations and Floor Plan Support
Obligations.
"Transferee Lender" is defined in Section 11.11.1.
"Unencumbered Trade Receivables" means, at any date, the face amount of
any item includable in "trade receivables" (or any substituted or replacement
line item) that would be reflected on a consolidated balance sheet of Micro and
its Consolidated Subsidiaries at such date minus Encumbered Trade Receivables at
such date.
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"United Kingdom" means The United Kingdom of Great Britain and Northern
Ireland.
"United States" or "U.S." means the United States of America, its fifty
States, and the District of Columbia.
"Voting Stock" means, (a) with respect to a corporation, the stock of
such corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect members of the board of directors (or other
governing body) of such corporation, (b) with respect to any partnership, the
partnership interests in such partnership the owners of which are entitled to
manage the affairs of the partnership or vote in connection with the management
of the affairs of the partnership or the designation of another Person as the
Person entitled to manage the affairs of the partnership, and (c) with respect
to any limited liability company, the membership interests in such limited
liability company the owners of which are entitled to manage the affairs of such
limited liability company or entitled to elect managers of such limited
liability company (it being understood that, in the case of any partnership or
limited liability company, "shares" of Voting Stock shall refer to the
partnership interests or membership interests therein, as the case may be).
"Welfare Plan" means a "welfare plan," as such term is defined in
Section 3(l) of ERISA.
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meaning as when used in the Disclosure Schedule and in
each Credit Extension Request, each other Loan Document, and each notice and
other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article, Section, clause
or definition are references to such clause or definition of this Agreement or
such other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section, clause or definition to any section are
references to such section of such Article, Section, clause or definition.
SECTION 1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS.
(a) Unless otherwise specified, all accounting terms used herein
or in any other Loan Document shall be interpreted, and all accounting
determinations and computations hereunder or thereunder (including under
Section 8.2.3) shall be made, in accordance with those U.S. generally
accepted accounting principles ("GAAP") as applied in the preparation of
the financial statements of Micro and its Consolidated Subsidiaries
delivered pursuant to clause (a) of Section 6.1.4; provided that the
financial statements required to be delivered pursuant to clauses (a)
and (b) of Section 8.1.1 shall be prepared in accordance with GAAP as in
effect from time to time and the quarterly financial statements required
to be delivered pursuant to clause (b) of Section 8.1.1 are not required
to contain footnote disclosures required by GAAP and shall be subject to
ordinary year-end adjustments.
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(b) If, after the date hereof, there shall be any change to
Micro's Fiscal Year, or any modification in GAAP used in the preparation
of the financial statements delivered pursuant to clause (a) of Section
6.1.4 (whether such modification is adopted or imposed by FASB, the
American Institute of Certified Public Accountants or any other
professional body) which changes result in a change in the method of
calculation of financial covenants, standards or terms found in this
Agreement, the parties hereto agree promptly to enter into negotiations
in order to amend such financial covenants, standards or terms so as to
reflect equitably such changes, with the desired result that the
evaluations of Micro's financial condition shall be the same after such
changes as if such changes had not been made; provided that until the
parties hereto have reached a definitive agreement on such amendments,
Micro's financial condition shall continue to be evaluated on the same
principles as those used in the preparation of the financial statements
delivered pursuant to clause (a) of Section 6.1.4.
SECTION 1.5 CALCULATIONS. All calculations made for purposes of this
Agreement, each other Loan Document, and the transactions contemplated by them
shall be made to two decimal places except as otherwise specifically stated in
this Agreement or any other Loan Document.
SECTION 1.6 ROUND AMOUNTS. Unless otherwise specifically stated in this
Agreement or any other Loan Document, each requirement that Credit Extensions,
repayments, and reductions in Commitments be in certain Dollar minimums and
integral multiples shall, in respect of dealings in another Available Currency,
be deemed to be rounded amounts in that other Available Currency that
approximate those Dollar minimums and multiples.
ARTICLE II
COMMITMENTS, ETC.
SECTION 2.1 COMMITMENTS. On the terms and subject to the conditions of
this Agreement (including Article VI), each Lender severally agrees that it
will, from time to time on any Business Day occurring prior to the Commitment
Termination Date:
(a) make loans in Available Currencies ("Revolving Loans") to
any Borrower equal to such Lender's Percentage of the aggregate amount
of the Borrowing to be made on such Business Day, all in accordance with
Section 3.1; provided that no Lender shall be required to make any
Revolving Loan if, after giving effect thereto:
(i) such Lender's Outstanding Credit Extensions would
exceed its Credit Commitment Amount; or
(ii) the aggregate Outstanding Credit Extensions of all
the Lenders would exceed the then Total Credit Commitment
Amount; and
(b) purchase participation interests in Available Currencies
equal to its Percentage in each Letter of Credit issued upon the
application of any Borrower pursuant to Section 3.2; provided that no
Issuer shall issue a Letter of Credit if, after giving effect thereto:
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(i) the aggregate Letter of Credit Outstandings would
exceed the then Letter of Credit Limit; or
(ii) the aggregate Outstanding Credit Extensions of all
the Lenders would exceed the then Total Credit Commitment
Amount.
On and subject to the conditions hereof, the Borrowers may from time to time
borrow, prepay and reborrow Revolving Loans and may apply for, extinguish or
reimburse drawings made under and re-apply for Letters of Credit. For purposes
of this Section 2.1, the Dollar Amount on any date of any Credit Extension
denominated in an Available Currency (other than Dollars) shall be calculated
based upon the spot rate at which Dollars are offered on such day for such
Available Currency which appears on Telerate Page 261 at approximately 11:00
a.m., London time, (and if such spot rate is not available on Telerate Page 261
as of such time, such spot rate as quoted by Scotia Capital, in London at
approximately 11:00 a.m., London time).
SECTION 2.2 REDUCTIONS OF THE COMMITMENT AMOUNTS. Micro may, from time
to time on any Business Day, voluntarily reduce the Total Credit Commitment
Amount; provided that:
(a) All such reductions shall require at least three and not
more than five Business Days' prior notice to the Administrative Agent
and shall be permanent, and any partial reduction thereof shall be in a
minimum amount of $5,000,000 and in an integral multiple of $1,000,000
(or, if less, in an amount equal to the Total Credit Commitment Amount
at such time);
(b) Micro shall not voluntarily reduce the Total Credit
Commitment Amount pursuant to this section to an amount which, on the
date of proposed reduction, is less than the aggregate Outstanding
Credit Extensions of all the Lenders; and
(c) Once so reduced, the Total Commitment Amount may not be
increased.
SECTION 2.3 INELIGIBLE CURRENCIES. Notwithstanding any other provision
in this Agreement, if, at any time before the Commitment Termination Date, the
Administrative Agent determines that an Available Currency is an Ineligible
Currency, then (a) the Administrative Agent may (in its sole discretion) at any
time so notify the relevant Borrower of any Borrowing denominated in that
Ineligible Currency, and (b) the Commitments of the Lenders to make Revolving
Loans in that Available Currency shall be suspended unless and until the
Administrative Agent determines that such Available Currency is no longer an
Ineligible Currency. Promptly after receiving that notice and, in any event,
within five Business Days of receiving the same, that Borrower will notify the
Administrative Agent and the Lenders as to what Available Currency it desires
that Borrowing to be converted into and promptly thereafter the relevant Lenders
shall so convert that Borrowing on the last day of its Interest Period. If the
relevant Borrower fails to select another Available Currency as provided in the
preceding sentence, then that other Available Currency shall be selected by the
Administrative Agent. The conversion shall be effected at the relevant spot rate
at which the Ineligible Currency is offered on that last day for the selected
Available Currency that appears on Telerate Page 261 at approximately 11:00
a.m., London time, (and if such spot rate is not available on Telerate
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Page 261 as of that time, the spot rate as quoted by Scotia Capital in London at
approximately 11:00 a.m., London time) or, if that spot rate shall not exist,
such other rate of exchange as the Administrative Agent shall reasonably
determine.
ARTICLE III
PROCEDURES FOR CREDIT EXTENSIONS
SECTION 3.1 BORROWING PROCEDURE FOR REVOLVING LOANS.
(a) On any Business Day occurring on or prior to the Commitment
Termination Date, any Borrower may from time to time irrevocably
request, by delivering on or prior to 1:00 p.m., Applicable Time, on
such Business Day a Borrowing Request to the Administrative Agent not
less than three nor more than five Business Days before the date of the
proposed Borrowing, that a Borrowing be made in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, or if less, in the
unused amount of the Total Credit Commitment Amount. Upon the receipt of
each Borrowing Request, the Administrative Agent shall give prompt
notice thereof to each Lender on the same day such Borrowing Request is
received. On the terms and subject to the conditions of this Agreement,
each Borrowing shall be made on the Business Day specified in such
Borrowing Request. On or before 2:30 p.m., Applicable Time, on such
Business Day, each Lender shall deposit with the Administrative Agent
(to an account specified by the Administrative Agent to each Lender from
time to time) same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing.
(b) To the extent funds are received from the Lenders (except as
otherwise provided in Section 10.2), the Administrative Agent shall make
such funds available to the relevant Borrower by wire transfer of same
day funds to the accounts such Borrower shall have specified in its
Borrowing Request. No Lender's obligation to make any Revolving Loan
shall be affected by any other Lender's failure to make any Revolving
Loan.
SECTION 3.2 LETTER OF CREDIT ISSUANCE PROCEDURES. By delivering to the
Administrative Agent an Issuance Request on or before 1:00 p.m., Applicable
Time, on any Business Day occurring prior to the Commitment Termination Date,
any Borrower may from time to time request that an Issuer issue a Letter of
Credit. Each such request shall be made on not less than two Business Days'
notice (or such shorter period as may be agreed to by the Administrative Agent),
and not less than 30 days prior to the Commitment Termination Date. Upon receipt
of an Issuance Request, the Administrative Agent shall promptly on the same day
notify the applicable Issuer (if other than Scotia Capital) and each Lender
thereof. Each Letter of Credit shall by its terms be denominated in an Available
Currency and be stated to expire (whether originally or after giving effect to
any extension) on the earlier of (its "Stated Expiry Date") (i) (unless
otherwise agreed to by the Issuer) one year from the date of issuance thereof or
(ii) the Commitment Termination Date. The relevant Borrower and the relevant
Issuer may amend or modify any issued Letter of Credit upon written notice to
the Administrative Agent only; provided that (A) any amendment constituting an
extension of such Letter of Credit's Stated Expiry Date shall comply with the
provisions of the immediately preceding sentence and
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may be made only if the Commitment Termination Date has not occurred and (B) any
amendment constituting an increase in the Stated Amount of such Letter of Credit
shall be deemed a request for the issuance of a new Letter of Credit and shall
comply with the foregoing provisions of this paragraph. Upon satisfaction of the
terms and conditions hereunder, the relevant Issuer will issue each Letter of
Credit to be issued by it and will make available to the beneficiary thereof the
original of such Letter of Credit.
SECTION 3.2.1 OTHER LENDERS' PARTICIPATION. Automatically, and without
further action, upon the issuance of each Letter of Credit, each Lender (other
than the Issuer of such Letter of Credit) shall be deemed to have irrevocably
purchased from the relevant Issuer, to the extent of such Lender's Percentage, a
participation interest in such Letter of Credit (including any Reimbursement
Obligation and any other Contingent Liability with respect thereto), and such
Lender shall, to the extent of its Percentage, be responsible for reimbursing
promptly (and in any event within one Business Day after receipt of demand for
payment from the Issuer, together with accrued interest from the day of such
demand) the relevant Issuer for any Reimbursement Obligation which has not been
reimbursed in accordance with Section 3.2.3. In addition, such Lender shall, to
the extent of its Percentage, be entitled to receive a ratable portion of the
Letter of Credit participation fee payable pursuant to clause (a) of Section
4.3.3 with respect to each Letter of Credit and a ratable portion of any
interest payable pursuant to Sections 3.2.2 and 4.2.
SECTION 3.2.2 DISBURSEMENTS. Subject to the terms and provisions of each
Letter of Credit and this Agreement, upon presentment under any Letter of Credit
to the Issuer thereof for payment, such Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit on the date designated
for such payment (the "Disbursement Date"). Such Issuer will promptly notify the
relevant Borrower and each of the Lenders of the presentment for payment of any
such Letter of Credit, together with notice of the Disbursement Date thereof.
Prior to 12:00 noon, Applicable Time, on the next Business Day following the
Disbursement Date, the relevant Borrower will reimburse the Administrative
Agent, for the account of such Issuer, for all amounts disbursed under such
Letter of Credit, together with all interest accrued thereon since the
Disbursement Date. To the extent the Administrative Agent does not receive
payment in full, on behalf of the relevant Issuer on the Disbursement Date, the
relevant Borrower's Reimbursement Obligation shall accrue interest, payable on
demand, at an annual rate equal to the Reference Rate through the first Business
Day following the Disbursement Date and equal to the sum of the Reference Rate
plus 0.50% thereafter. In the event the relevant Borrower fails to notify the
Administrative Agent and the relevant Issuer prior to 1:00 p.m., Applicable
Time, on the Disbursement Date that the relevant Borrower intends to pay the
Administrative Agent, for the account of such Issuer, for the amount of such
drawing with funds other than proceeds of Revolving Loans, or the Administrative
Agent does not receive such reimbursement payment from the relevant Borrower
prior to 1:00 p.m., Applicable Time, on the Disbursement Date (or if the
relevant Issuer must for any reason return or disgorge such reimbursement), the
Administrative Agent shall promptly notify the Lenders, and the relevant
Borrower shall be deemed to have given a timely Borrowing Request as of the
Disbursement Date for Revolving Loans in an aggregate principal amount equal to
such Reimbursement Obligation and the Lenders (other than the relevant Issuer)
shall, on the terms and subject to the conditions of this Agreement (including,
without limitation, Sections 6.1 and 6.2), make Revolving Loans in the amount of
such Reimbursement Obligation as provided in Section 3.1; provided that for the
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purpose of determining the availability of any unused Total Credit Commitment
Amount immediately prior to giving effect to the application of the proceeds of
such Revolving Loans, such Reimbursement Obligation shall be deemed not to be
outstanding at such time. In the event that the conditions precedent to any
Revolving Loans deemed requested by the relevant Borrower as provided in the
preceding sentence shall not be satisfied at the time of such deemed request,
each Lender (including the relevant Issuer) shall pay to the Administrative
Agent, as funding of its participation interest pursuant to Section 3.2.1 in the
related Letter of Credit, its Percentage of the related Reimbursement
Obligation, and the Administrative Agent shall promptly pay to the relevant
Issuer the amounts so received by it from the Lenders. If a Lender makes a
payment pursuant to this subsection to reimburse an Issuer in respect of any
Reimbursement Obligation (other than by funding Revolving Loans as contemplated
above), (i) such payment will not constitute a Revolving Loan and will not
relieve the relevant Borrower of its Reimbursement Obligation and (ii) such
Lender will be subrogated to its pro rata share of the relevant Issuer's claim
against such Borrower for payment of such Reimbursement Obligation.
SECTION 3.2.3 REIMBURSEMENT. The obligation (the "Reimbursement
Obligation") of the relevant Borrower under Section 3.2.2 to reimburse the
relevant Issuer with respect to each disbursement under a Letter of Credit
(including interest thereon), and, upon the failure of the relevant Borrower to
reimburse such Issuer, the obligation of each Lender to reimburse such Issuer,
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
relevant Borrower or such Lender, as the case may be, may have or have had
against the relevant Issuer or any Lender, including any defense based upon the
failure of any disbursement under a Letter of Credit to conform to the terms of
the applicable Letter of Credit (if, in the relevant Issuer's good faith
opinion, such disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided that nothing herein shall require the relevant
Borrower or such Lender, as the case may be, to reimburse an Issuer for any
wrongful disbursement made by such Issuer under a Letter of Credit as a result
of acts or omissions finally determined by a court of competent jurisdiction to
constitute gross negligence or willful misconduct on the part of such Issuer.
SECTION 3.2.4 DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in Section 9.1.9 or,
with notice from the Administrative Agent given at the direction of the Required
Lenders, upon the occurrence and during the continuation of any other Event of
Default, an amount equal to the then aggregate amount of all Letters of Credit
which are undrawn and available under all issued and outstanding Letters of
Credit shall, without demand upon or notice to any Borrower, be deemed to have
been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed) and the Borrowers shall be immediately obligated to pay to the Issuer
of each Letter of Credit an amount equal to such amount. Any amounts so payable
by the relevant Borrower pursuant to Section 3.2.4 shall be deposited in cash
with the Administrative Agent and held in trust (for the sole benefit of the
relevant Issuer and the Lenders) for payment of the Obligations arising in
connection with such Letters of Credit. If such Event of Default shall have been
cured or waived (provided that no other Default has occurred and is continuing
and the Obligations have not been accelerated pursuant to Section 9.2 or 9.3),
the Administrative Agent shall promptly return to the relevant Borrower all
amounts deposited by it with the Administrative Agent pursuant to this Section
3.2.4 (together with
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accrued interest thereon at the Administrative Agent's Cost of Funds or such
other interest rate based upon a cash equivalent investment (in the form of
obligations issued by or guaranteed by the U.S. government, commercial paper of
a domestic corporation rated A-1 by S&P or a comparable rating from another
nationally recognized rating agency or certificates of deposit of a U.S. or
Canadian bank with (x) a credit rating of Aa or better by S&P or a comparable
rating from another nationally recognized rating agency and (y) a combined
capital and surplus greater than $250,000,000) which is agreed to between the
relevant Issuer and the relevant Borrower), net of any amount (which may include
accrued interest) applied to the payment of any Obligations with respect to the
Letters of Credit.
SECTION 3.2.5 NATURE OF REIMBURSEMENT OBLIGATIONS. Each Borrower and, to
the extent set forth in Section 3.2.1, each Lender shall assume all risks of the
acts, omission or misuse of any Letter of Credit by the beneficiary thereof. No
Issuer or any Lender (except to the extent of its own gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction)
shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with
the application for an issuance of a Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit; provided
that if a payment is made pursuant to such Letter of Credit when a
beneficiary has failed to comply with the conditions therefor and such
failure to comply is manifest on the face of such Letter of Credit or
the documents submitted by the beneficiary in connection therewith, the
relevant Borrower shall be required to indemnify the Issuer in
connection therewith only if, and to the extent, the relevant Borrower
or any of its Subsidiaries has received the benefit of such payment on
such Letter of Credit by one or more of their obligations being
satisfied, either in whole or in part;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, telecopy or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing (but
subject to the limitations set forth in clause (c) above), any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross
negligence or willful misconduct as finally determined by a court of competent
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jurisdiction) shall be binding upon the relevant Borrower and each Lender, and
shall not put such Issuer under any resulting liability to any Borrower or any
Lender.
SECTION 3.2.6 INELIGIBLE CURRENCIES. Notwithstanding any other provision
contained in this Agreement, if, at any time prior to the Commitment Termination
Date, the Administrative Agent determines that the Available Currency in which a
Letter of Credit has been issued is an Ineligible Currency, then the
Administrative Agent may (in its sole discretion) at any time notify the
relevant Borrower of the same, and the Administrative Agent shall then promptly
notify each other Lender. Such relevant Borrower shall use reasonable efforts to
cause the beneficiary of such Letter of Credit to accept a substitution for such
Letter of Credit with another Letter of Credit in an Available Currency
acceptable to such Borrower and the relevant Issuer.
SECTION 3.2.7 EXISTING LETTERS OF CREDIT. On the Effective Date, the
letters of credit disclosed in Item 3.2.7 (Existing Letters of Credit) of the
Disclosure Schedule and outstanding under the $50,000,000 uncommitted standby
letter of credit line dated as of October 19, 2001, and as amended as of July
30, 2002 between Micro, certain of its Subsidiaries and Scotia Capital shall
automatically and without any action on the part of any Person, become Letters
of Credit hereunder issued for the account of Micro as the relevant Borrower.
ARTICLE IV
PRINCIPAL, INTEREST, AND FEE PAYMENTS
SECTION 4.1 LOAN ACCOUNTS, NOTES, PAYMENTS, AND PREPAYMENTS. The
Outstanding Credit Extensions shall be evidenced by one or more loan accounts or
records maintained by the Administrative Agent which loan accounts or records
shall be conclusive evidence, absent manifest error, of the amount of those
Outstanding Credit Extensions and the interest and principal payments thereon.
Any failure to so record or any error in doing so shall not, however, limit or
otherwise affect the Obligations of the relevant Borrower under the Loan
Documents to pay any amount owing with respect to the Obligations. Upon the
request of any Lender made at any time through the Administrative Agent, the
relevant Borrower shall promptly execute and deliver to that Lender a Revolving
Note to evidence Revolving Loans made by that Lender to the relevant Borrower.
SECTION 4.1.1 REPAYMENTS AND PREPAYMENTS OF REVOLVING LOANS. The
relevant Borrower shall make all payments and prepayments of each Revolving Loan
made to it in the Available Currency in which it was originally denominated and
shall repay in full the unpaid principal amount of each Revolving Loan
outstanding to it at the Maturity thereof. Before that Maturity:
(a) the relevant Borrower may, from time to time on any Business
Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Revolving Loan; provided that:
(i) any such prepayment of any Revolving Loan shall be
allocated to each Lender pro rata according to such Lender's
Percentage of the Revolving Loans so prepaid;
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(ii) any such prepayment of any Revolving Loan made on
any day other than the last day of the Interest Period then
applicable to such Revolving Loan shall be subject to Section
5.4;
(iii) all such voluntary prepayments shall require prior
notice to the Administrative Agent of at least three but no more
than five Business Days; and
(iv) all such voluntary prepayments shall, if other than
a prepayment in whole, be in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000;
(b) The Administrative Agent shall determine if the aggregate
Outstanding Credit Extensions of all the Lenders exceed the Total Credit
Commitment Amount (i) at the end of each Fiscal Period and (ii) on the
date of each request for a Credit Extension (excluding any request
submitted in respect of any continuation of any Borrowing previously
made hereunder), and promptly thereafter -- and in any event, in respect
of any determination made pursuant to clause (ii) above, prior to the
proposed date of such requested Credit Extension -- Micro shall (or
shall cause the other Borrowers to) make a mandatory prepayment of the
outstanding principal amount of such Revolving Loans as Micro may select
in an amount equal to such excess, such prepayment to be allocated to
the Lenders in the manner set forth in clause (a)(i) above); and
(c) Micro shall (and shall cause the other relevant Borrowers
to), on each date when any reduction or termination in the Total Credit
Commitment Amount shall become effective, including pursuant to Section
2.2, make a mandatory prepayment of all Revolving Loans equal to the
excess, if any, of the then aggregate Outstanding Credit Extensions of
all the Lenders over the Total Credit Commitment Amount as so reduced,
such prepayment to be allocated to the Lenders in the manner set forth
in clause (a)(i) above.
SECTION 4.2 INTEREST PROVISIONS. Each Revolving Loan shall bear interest
from and including the day when made until (but not including) the day such
Revolving Loan shall be paid in full, and such interest shall accrue and be
payable in accordance with this Section 4.2.
SECTION 4.2.1 RATES. Subject to Sections 4.2.2 and 5.1, each Revolving
Loan shall bear an annual rate of interest, during each Interest Period
applicable thereto, equal to the sum of (i) the LIBO Rate for such Interest
Period, (ii) the Applicable Margin, plus (iii) Mandatory Costs (if any).
SECTION 4.2.2 POST-MATURITY RATES. After the date any principal amount
of any Revolving Loan is due and payable (whether at Maturity, upon acceleration
or otherwise), or after any other monetary Obligation of Micro or any other
Borrower shall have become due and payable, Micro or each such other Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at an annual rate equal to the Reference Rate
plus 2%.
SECTION 4.2.3 CONTINUATION ELECTIONS. The relevant Borrower may from
time to time by delivering a Continuation Notice to the Administrative Agent on
or before 1:00 p.m.,
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Applicable Time, on a Business Day, irrevocably elect, on not less than three
nor more than five Business Days' notice, that all, or any portion in an
aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000 of
the Revolving Loans, be continued for one or more new Interest Periods; provided
that:
(a) in the absence of delivery of a Continuation Notice with
respect to any Revolving Loan, at least three Business Days (but not
more than five Business Days) before the last day of the then current
Interest Period with respect thereto, that Revolving Loan shall, on such
last day, automatically continue for a new Interest Period having a
duration equal to the original duration of the then expiring Interest
Period; and
(b) no portion of the outstanding principal amount of any
Revolving Loans may be continued with an Interest Period longer than one
month while any Default has occurred and is continuing.
SECTION 4.2.4 PAYMENT DATES. Interest accrued on each Revolving Loan
shall be payable, without duplication, in the Available Currency in which it is
denominated:
(a) on the Commitment Termination Date;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Revolving Loan (but only on the
principal amount so paid or prepaid);
(c) on the last day of each applicable Interest Period (and, if
such Interest Period shall exceed three months, on each three month
anniversary of the date of the commencement of such Interest Period);
and
(d) on that portion of any Revolving Loans which is accelerated
pursuant to Section 9.2 or 9.3, immediately upon such acceleration.
Interest accrued on Revolving Loans or other monetary Obligations
arising under this Agreement or any other Loan Document after the date
such Revolving Loans or other Obligations are due and payable (whether
on the Commitment Termination Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 4.2.5 INTEREST RATE DETERMINATION. The Administrative Agent and,
if and when applicable, the Reference Lenders shall, in accordance with each of
their customary practices, attempt to determine the relevant interest rates
applicable to each Revolving Loan requested to be made pursuant to each
Borrowing Request duly completed and delivered by a Borrower, and, if and when
applicable, each Reference Lender agrees to furnish the Administrative Agent
timely information for the purpose of determining the LIBO Rate. If any
Reference Lender fails, if and when applicable, to timely furnish such
information to the Administrative Agent for any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of the
information shared by the other Reference Lender.
SECTION 4.2.6 ADDITIONAL INTEREST ON REVOLVING LOANS. For so long as the
cost to a Lender of making or maintaining its Revolving Loans is increased as a
result of any imposition
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or modification after the date of this Agreement of any reserve required to be
maintained by such Lender against Eurocurrency Liabilities (or any other
category of liabilities which includes deposits by reference to which the
interest rate on Revolving Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of
such Lender to United States residents but not duplicating any requirement
included in the calculation of Mandatory Costs), then such Lender may require
the relevant Borrower to pay, contemporaneously with each payment of interest on
the Revolving Loans, additional interest on the related Revolving Loan of such
Lender at a rate per annum up to but not exceeding the excess of (i) (A) the
applicable LIBO Rate divided by (B) one minus the LIBOR Reserve Percentage over
(ii) the applicable LIBO Rate. Any Lender wishing to require payment of such
additional interest shall so notify Micro and the Administrative Agent (which
notice shall set forth the amount (as determined by such Lender) to which such
Lender is then entitled under this Section 4.2.6 (which amount shall be
consistent with such Lender's good faith estimate of the level at which the
related reserves are maintained by it and which determination shall be
conclusive and binding for all purposes, absent demonstrable error) and shall be
accompanied by such information as to the computation set forth therein as Micro
may reasonably request), in which case such additional interest on the Revolving
Loans of such Lender shall be payable on the last day of each Interest Period
thereafter (commencing with the Interest Period beginning at least three
Business Days after the giving of such notice) to such Lender at the place
indicated in such notice. Each Lender that receives any payment in respect of
increased costs pursuant to this Section 4.2.6 shall promptly notify Micro of
any change with respect to such costs which affects the amount of additional
interest payable pursuant to this section in respect thereof.
SECTION 4.3 FEES. Each Borrower agrees to pay the fees applicable to it
set forth in this Section 4.3. All such fees shall be nonrefundable and shall be
paid in Dollars to the Administrative Agent, each Lender or the relevant Issuer,
as the case may be, at its office specified for such purpose on the signature
pages hereof.
SECTION 4.3.1 ADMINISTRATION FEES. Coordination Center and Micro,
jointly and severally, agree to pay directly to the Administrative Agent, for
its own account, an annual administration fee in the amounts and on the dates
set forth in the Fee Letter.
SECTION 4.3.2 COMMITMENT FEES. Coordination Center and Micro, jointly
and severally, agree to pay to the Administrative Agent for the account of each
Lender (including, any portion thereof when the Lenders may not extend any
Credit Extensions by reason of the inability of the Borrowers to satisfy any
condition of Section 6.1 or 6.2) (a) for each day during the period commencing
on the Effective Date and continuing through and including the last day of the
Fiscal Period ending on the Saturday nearest June 30, 2003, a commitment fee to
each Lender on the unused portion of its Credit Commitment Amount on such day at
a rate of 0.75% per annum and (b) for each day thereafter, until but excluding
the Commitment Termination Date, a commitment fee to each Lender on the unused
portion of its Credit Commitment Amount on each day at the rate per annum
determined in accordance with the following procedure:
(1) If the Pricing Level set forth opposite the Leverage Ratio
is the same as the Pricing Level set forth opposite the applicable
Credit Rating, then the commitment fee for that Pricing Level shall be
the commitment fee.
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(2) If the Pricing Level set forth opposite the Leverage Ratio
differs by one Pricing Level from the Pricing Level set forth opposite
the applicable Credit Rating, then the commitment fee for the lower
numbered Pricing Level of the two shall be the commitment fee.
(3) If the Pricing Level set forth opposite the Leverage Ratio
differs by more than one Pricing Level from the Pricing Level set forth
opposite the applicable Credit Rating, then the commitment fee shall be
the average of the commitment fees for such two Pricing Levels.
=============================================================================================================
PRICING LEVEL CREDIT RATING LEVERAGE RATIO COMMITMENT FEE
- -------------------------------------------------------------------------------------------------------------
Level I Higher than or equal to BBB Less than 2.00 0.500%
or Baa2
- -------------------------------------------------------------------------------------------------------------
Level II BBB- or Baa3 Greater than or equal to 2.00, but less 0.625%
than 2.50
- -------------------------------------------------------------------------------------------------------------
Level III BB+ or Ba1 Greater than or equal to 2.50, but less 0.750%
than 3.00
- -------------------------------------------------------------------------------------------------------------
Level IV BB or Ba2 Greater than or equal to 3.00, but less 1.000%
than 3.50
- -------------------------------------------------------------------------------------------------------------
Level V Lower than or equal to BB- or Greater than or equal to 3.50 1.350%
Ba3
=============================================================================================================
Such commitment fee shall be determined from time to time by the Administrative
Agent and shall be payable by Coordination Center in arrears on each Quarterly
Payment Date and on the Commitment Termination Date. If the Credit Ratings
assigned by S&P and Moody's fall into different Pricing Levels, then the
applicable Pricing Level shall be determined by reference to the lower of the
two Credit Ratings.
The applicable Leverage Ratio shall be the Leverage Ratio for the Fiscal Period
most recently ended prior to such day for which financial statements and reports
have been received by the Administrative Agent pursuant to Section 8.1.1(a) or
(b), as set forth in (and effective upon delivery by Micro to the Administrative
Agent of) the related new Compliance Certificate pursuant to Section 8.1.1(d).
Notwithstanding the foregoing, (a) for so long as an Event of Default has
occurred and is continuing the applicable Pricing Level shall be Level V and (b)
if Micro shall fail to deliver a Compliance Certificate required to be delivered
pursuant to Section 8.1.1(d) within 60 days after the end of any of its fiscal
quarters (or within 90 days, in the case of the last fiscal quarter of its
Fiscal Year), the applicable Pricing Level from and including the 61st (or 91st,
as the case may be) day after the end of such fiscal quarter (or Fiscal Year, as
the case may be) to but not including the date Micro delivers to the
Administrative Agent a quarterly Compliance Certificate shall be Level V.
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SECTION 4.3.3 LETTER OF CREDIT FEES.
(a) The applicable Borrower agrees to pay to the Administrative
Agent for the account of each Lender (including the relevant Issuer) a
Letter of Credit participation fee equal to each Lender's Percentage of
the average daily Stated Amount of each Letter of Credit during the
applicable period multiplied by the Applicable Margin then in effect for
any Revolving Loan. Such participation fee shall accrue from the date of
issuance of any Letter of Credit until the date such Letter of Credit is
drawn in full or terminated, and shall be payable in arrears on each
Quarterly Payment Date and on the date that the Commitments terminate in
their entirety.
(b) The applicable Borrower agrees to pay to the Administrative
Agent for the account of the Issuer of each Letter of Credit a Letter of
Credit fronting fee at the rate set forth in the Fee Letter (or, in the
case of an Issuer other than Scotia Capital, as separately agreed
between Micro and such Issuer) during the applicable period, such fee to
be payable for the account of the relevant Issuer in quarterly
installments in arrears on each Quarterly Payment Date and on the date
that the Commitments terminate in their entirety. Micro agrees to
reimburse each Issuer, on demand, for all usual out-of-pocket costs and
expenses incurred in connection with the issuance or maintenance of any
Letter of Credit issued by such Issuer.
(c) The Administrative Agent shall pay to each Lender and each
Issuer fees paid for its account under clause (a) or (b) above promptly
after receipt by the Administrative Agent.
SECTION 4.4 RATE AND FEE DETERMINATIONS. Interest on each Revolving Loan
shall be computed on the basis of a year consisting of 360 days (or 365 or 366,
as the case may be, for Revolving Loans denominated in Sterling) and fees shall
be computed on the basis of a year consisting of 365 or 366 days, as the case
may be, in each case paid for the actual number of days elapsed, calculated as
to each period from and including the first day thereof to but excluding the
last day thereof. All determinations by the Administrative Agent of the rate of
interest payable with respect to any Revolving Loan shall be conclusive and
binding in the absence of demonstrable error.
ARTICLE V
CERTAIN PAYMENT PROVISIONS
SECTION 5.1 ILLEGALITY; CURRENCY RESTRICTIONS.
(a) If, as the result of any Regulatory Change, any Lender shall
determine (which determination shall, in the absence of demonstrable
error, be conclusive and binding on each Borrower), that it is unlawful
for such Lender to make any Revolving Loan, issue any Letter of Credit,
or continue any Revolving Loan previously made by it hereunder in
respect of the LIBO Rate, as the case may be, the obligations of such
Lender to make any such Loan, issue any such Letter of Credit, or
continue any such Revolving Loan in respect of the LIBO Rate, as the
case may be, shall, upon the giving of notice
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thereof to the Administrative Agent, Micro, and any other applicable
Borrower, forthwith be suspended and each applicable Borrower shall, if
requested by such Lender and if required by such Regulatory Change, on
such date as shall be specified in such notice, prepay to such Lender in
full all of such Revolving Loans or convert all of such Revolving Loans
into a Cost of Funds Rate Loan that is not unlawful, in each case on the
last day of the Interest Period applicable thereto (unless otherwise
required by applicable law) and without any penalty whatsoever (but
subject to Section 5.4); provided that such Lender shall make as Cost of
Funds Loans all Revolving Loans that such Lender would otherwise be
obligated to make Revolving Loans at the LIBO Rate and convert into or
continue as Cost of Funds Loans all Revolving Loans that such Lender
would otherwise be required to convert into or continue as Revolving
Loans at the LIBO Rate, in each case during the period any such
suspension is effective. Such suspension shall continue to be effective
until such Lender shall notify the Administrative Agent and Micro that
the circumstances causing such suspension no longer exist, at which time
the obligations of such Lender to make any such Loan, issue any Letter
of Credit, or continue any Revolving Loan, as the case may be, shall be
reinstated.
(b) If any central bank or other governmental authorization in
the country of the proposed Available Currency of any proposed Revolving
Loan is required to permit the use of such Available Currency by a
Lender (through its Lending Office) for such Revolving Loan and such
authorization has not been obtained (provided that such Lender has used
reasonable endeavors to obtain such authorization) or is not in full
force and effect, the obligation of such Lender to provide such
Revolving Loans shall be suspended so long as such authorization is
required and has not been obtained by such Lender.
SECTION 5.2 DEPOSITS UNAVAILABLE.
(a) If, before the date on which all or any portion of any
Revolving Loan bearing interest in respect of the LIBO Rate is to be
made, maintained, or continued the Administrative Agent shall have
determined (which determination shall be conclusive and binding), with
respect to that Revolving Loan that:
(i) deposits in the relevant amount and the relevant
Available Currency and for the relevant Interest Period are
available, if and when applicable, to none of the Reference
Lenders in the relevant market, or
(ii) by reason of circumstances affecting the London
interbank market adequate means do not exist for ascertaining
the interest rate applicable under this Agreement in respect of
the relevant LIBO Rate,
then, upon notice from the Administrative Agent to Micro and the
Lenders, the obligations of the Lenders to make or continue any
Revolving Loan bearing interest in respect of the LIBO Rate in such
Available Currency under Sections 3.1 and 4.2.3 shall forthwith be
suspended until the Administrative Agent shall notify Micro and the
Lenders that the circumstances causing such suspension no longer exist.
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(b) If a notification under this Section 5.2 applies to a
Revolving Loan which is outstanding and that is not going to be
converted at the end of its Interest Period to another Available
Currency for which the LIBO Rate is available, then, notwithstanding any
other provision of this Agreement:
(i) within five Business Days of receipt of the
notification, the Borrowers and the Administrative Agent shall
enter into negotiations for a period of not more than 30 days
with a view to agreeing an alternative basis for determining the
rate of interest and/or funding applicable to that Revolving
Loan at the end of its applicable Interest Period;
(ii) any alternative basis agreed under clause (i) above
shall be, with the prior consent of all the Lenders, binding on
all of the Obligors and Lender Parties;
(iii) if no alternative basis is agreed, each Lender
shall (through the Administrative Agent) certify on or before
the last day of the Interest Period to which the notification
relates an alternative basis for maintaining its participation
in that Revolving Loan;
(iv) any such alternative basis may include an
alternative method of fixing the interest rate, alternative
Interest Periods or alternative currencies but it must reflect
the cost to the Lender of funding its participation in the
Revolving Loan from whatever sources it may select plus the
Applicable Margin; and
(v) each alternative basis so certified shall be binding
on the Obligors and the certifying Lender and treated as part of
this Agreement.
SECTION 5.3 INCREASED CREDIT EXTENSION COSTS, ETC. Each Borrower agrees
to reimburse each Lender within 30 days after any demand for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, maintaining, participating, issuing or
extending (or of its obligation to make, maintain, participate, issue or extend)
any Credit Extension to the extent such increased cost or reduced amount is due
to a Regulatory Change. Such Lender shall provide to the Administrative Agent
and the relevant Borrower a certificate stating, in reasonable detail, the
reasons for such increased cost or reduced amount and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the relevant Borrower
directly to such Lender upon its receipt of such notice, and such notice shall
be rebuttable, presumptive evidence of the additional amounts so owing. In
determining such amount, such Lender shall act reasonably and in good faith and
may use any method of averaging and attribution that it customarily uses for its
other borrowers with a similar credit rating as Micro. Such Lender may demand
reimbursement for such increased cost or reduced amount only for the 360-day
period immediately preceding the date of such written notice, and such Borrower
shall have liability only for such period.
SECTION 5.4 FUNDING LOSSES. If any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits
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or other funds acquired by such Lender to make, continue, or extend any portion
of the principal amount of any Revolving Loan) as a result of:
(a) any repayment or prepayment of the principal amount of any
Revolving Loan on a date other than the scheduled last day of the
Interest Period whether pursuant to Section 4.1.1 or otherwise;
(b) any conversion of the currency of any Revolving Loan on a
date other than the scheduled last day of the Interest Period; or
(c) any Revolving Loan not being made, continued, or converted
in accordance with the Credit Extension Request therefor in the case of
any Credit Extension Request as a consequence of any action taken, or
failed to be taken, by any Obligor,
then, upon the written notice of such Lender to the relevant Borrower (with a
copy to the Administrative Agent), such Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall be rebuttable presumptive evidence of the amount of any such loss
or expense that has been so incurred.
SECTION 5.5 INCREASED CAPITAL COSTS. If any Regulatory Change affects or
would affect the amount of capital required or expected to be maintained by any
Lender or any Person controlling such Lender, and such Lender determines (in its
sole and absolute discretion) that the rate of return on its or such controlling
Person's capital as a consequence of its participation in this Agreement or the
making, continuing, participating in or extending of any Credit Extension is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case, upon the relevant Borrower's receipt of written notice thereof from such
Lender (with a copy to the Administrative Agent), such Borrower shall pay
directly to such Lender additional amounts sufficient to compensate such Lender
or such controlling Person for such reduction in rate of return. A statement of
such Lender as to any such additional amounts (including calculations thereof in
reasonable detail) shall be rebuttable, presumptive evidence of the additional
amounts so owing. In determining such amount, such Lender may use any method of
averaging and attribution that it shall deem applicable. Such Lender may demand
payment for such additional amounts that have accrued only during the 360-day
period immediately preceding the date of such written notice and such Borrower
shall have liability only for such period.
SECTION 5.6 DISCRETION OF LENDERS AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, the Lenders
shall be entitled to fund and maintain their funding of all or any part of their
Revolving Loans and other Credit Extensions in any manner they elect, it being
understood, however, that for the purposes of this Agreement all determinations
hereunder with respect to a Revolving Loan shall be made as if each Lender had
actually funded and maintained each Revolving Loan through its Lending Office
and through the purchase of deposits having a maturity corresponding to the
maturity of such Revolving Loan. Any Lender may, if it so elects, fulfill any
commitment or obligation to make or maintain
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Revolving Loans or other Credit Extensions by causing a branch or affiliate to
make or maintain such Revolving Loans or other Credit Extensions; provided that,
in such event, such Revolving Loans or other Credit Extensions shall be deemed
for the purposes of this Agreement to have been made by such Lender through its
applicable Lending Office, and the obligation of a Borrower to repay such
Revolving Loans shall nevertheless be to such Lender at its Lending Office and
shall be deemed held by such Lender through its applicable Lending Office, to
the extent of such Revolving Loan, for the account of such branch or affiliate.
Notwithstanding the foregoing or the fact that different Affiliates for a Lender
under this Agreement may have executed this Agreement or the Lender Assignment
Agreement by which it has become a Lender under this Agreement, all of those
Lending Offices and signatories shall be treated under the Loan Documents as but
one Lender for purposes of calculations of Percentage, Commitment, Required
Lenders, and modifications, amendments, waivers, consents, and approvals under
Section 11.1 and other provisions of the Loan Documents.
SECTION 5.7 TAXES.
(a) All payments by any Obligor of principal of, and interest
and fees on, any Credit Extension and all other amounts payable
hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any present or future income, excise, stamp
or franchise taxes, and other taxes, fees, duties, withholdings, or
other charges of any nature whatsoever imposed by any taxing authority
with respect to such payments, but excluding franchise taxes and taxes
imposed on or measured by any Lender Party's gross or net income,
profits, or receipts, in each case imposed (i) by any taxing authority
under the laws of which such Lender Party is organized or in which it
maintains its applicable Lending Office or (ii) by reason of a present
or former connection between the jurisdiction imposing such tax and such
Lender Party or one of its applicable lending offices other than a
connection arising solely from such Lender Party having executed,
delivered or performed its obligations under, or received payment under
or enforced, this Agreement or any of the other Loan Documents (such
non-excluded items being called "Taxes") except to the extent required
by law. In the event that any withholding or deduction from any payment
to be made by any Obligor hereunder is required in respect of any Taxes
pursuant to any applicable law, rule, or regulation, then such Obligor
will:
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the relevant Lender Party an
official receipt or other documentation satisfactory to such
Lender Party evidencing such payment to such authority; and
(iii) pay directly to the relevant Lender Party for its
own account such additional amount or amounts as is or are
necessary to ensure that the net amount actually received by
such Lender Party will equal the full amount such Lender Party
would have received had no such withholding or deduction been
required.
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(b) Moreover, if any Taxes are directly asserted against any
Lender Party with respect to any payment received by such Lender Party
hereunder, such Lender Party may pay such Taxes and the relevant Obligor
will promptly pay such additional amounts (including any penalties,
interest or expenses) as is necessary in order that the net amount
received by such Lender Party after the payment of such Taxes (including
any Taxes on such additional amount) shall equal the amount such Lender
Party would have received had not such Taxes been asserted.
(c) If the relevant Obligor fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the relevant
Lender Parties entitled thereto the required receipt or other required
documentary evidence, such Obligor shall indemnify such Lender Parties
for any incremental Taxes, interest or penalties that may become payable
by any Lender Party as a result of any such failure.
(d) The following provisions govern exceptions to the tax
indemnification provisions of this Section 5.7 and related matters.
(i) In respect of its Credit Extensions to Micro, (A)
each Lender Party organized under the laws of a jurisdiction
outside the United States -- on or before the date of its
execution and delivery of this Agreement (if an original
signatory to this Agreement) or the date on which it otherwise
becomes a Lender Party, on or before the date of any change in
its Lending Office, and from time to time thereafter if
requested in writing by Micro (but only so long as and to the
extent that Lender Party remains lawfully able to do so) --
shall provide Micro and the Administrative Agent with either (I)
two duly completed copies of either (1) Internal Revenue Service
Form W-8BEN claiming eligibility of such Lender Party for the
benefit of an exemption from United States withholding tax under
an income tax treaty to which the United States is a party or
(2) Internal Revenue Service Form W-8ECI, or in either case an
applicable successor form, or (II) in the case of a Lender Party
who is not legally entitled to deliver either form listed in
clause (i)(A), (1) a certificate to the effect that such Lender
Party is not (x) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (y) a "10 percent shareholder" of the
Obligor within the meaning of Section 881(c)(3)(B) of the Code
or (z) a controlled foreign corporation receiving interest from
a related person within the meaning of Section 881(c)(3)(A) of
the Code (such certificate an "Exemption Certificate") and (2)
two duly completed copies of Internal Revenue Service Form
W-8BEN or applicable successor form and (B) each Lender Party
who is a Non-Exempt U.S. Person, on or before the date of its
execution and delivery of this Agreement (if an original
signatory to this Agreement) or the date on which it becomes a
Lender Party, on or before the date of any change in its Lending
Office, and from time to time thereafter if requested in writing
by Micro (but only so long as that Lender Party remains lawfully
able to do so), shall provide Micro and the Administrative Agent
with two duly completed copies of Internal Revenue Service Form
W-9.
(ii) A Lender Party is not entitled to indemnification
under this Section 5.7 with respect to the applicable Taxes for
any period during which the Lender
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Party has failed to provide Micro and the Administrative Agent
with the applicable U.S. Internal Revenue Service form if
required under clause (i) above (unless that failure is due to a
change in treaty, law, or regulation occurring after the date on
which the applicable form originally was required to be provided
or a redesignation of the Lender Party's Lending Office at the
request of the relevant Obligor) in respect of U.S. withholding
taxes.
(iii) Notwithstanding clause (ii) above to the contrary,
if a Lender Party that is otherwise exempt from or subject to a
reduced rate of withholding tax becomes subject to United States
withholding tax because of its failure to deliver an Internal
Revenue Service form required hereunder, then Micro shall take
such steps as that Lender Party shall reasonably request to
assist that Lender Party to recover the applicable withholding
tax.
(e) If any Obligor pays any additional amount under this Section
5.7 (a "Tax Payment") and any Lender Party or Affiliate thereof
effectively obtains a refund of Tax by reason of the Tax Payment (a "Tax
Refund") and such Tax Refund is, in the reasonable judgment of such
Lender Party or Affiliate, attributable to the Tax Payment, then such
Lender Party, after receipt of such Tax Refund, shall promptly reimburse
such Obligor for such amount as such Lender Party shall reasonably
determine to be the proportion of the Tax Refund as will leave such
Lender Party (after that reimbursement) in no better or worse position
than it would have been in if the Tax Payment had not been required;
provided that no Lender Party shall be required to make any such
reimbursement if it reasonably believes the making of such reimbursement
would cause it to lose the benefit of the Tax Refund or would adversely
affect in any other respect its tax position. Subject to the other terms
hereof, any claim by a Lender Party for a Tax Refund shall be made in a
manner, order and amount as such Lender Party determines in its sole and
absolute discretion. No Lender Party shall be obligated to disclose
information regarding its tax affairs or computations to any Obligor, it
being understood and agreed that in no event shall any Lender Party be
required to disclose information regarding its tax position that it
deems to be confidential (other than with respect to the Tax Refund).
SECTION 5.8 PAYMENTS. All payments by an Obligor pursuant to this
Agreement or any other Loan Document, whether in respect of principal, interest,
fees or otherwise, shall be made as set forth in this Section 5.8.
SECTION 5.8.1 CREDIT EXTENSIONS.
(a) All payments by an Obligor (whether in respect of principal,
interest, fees or otherwise) pursuant to this Agreement or any other
Loan Document with respect to Credit Extensions or any other amount
payable hereunder shall be made by the relevant Borrower in the
Available Currency in which the Obligation was denominated (the
"Required Currency"). All such payments (other than fees payable
pursuant to Section 4.3, which fees shall be paid by Micro or
Coordination Center or the relevant Borrower to the Administrative Agent
for the account of the relevant payee, Article V, Section 11.3 or 11.4)
shall be made by the relevant Borrower to the Administrative Agent for
the account of each Lender based upon its Percentage. All such payments
required to
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be made to the Administrative Agent shall be made, without set-off,
deduction or counterclaim, not later than 1:00 p.m., Applicable Time, on
the date when due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to time by
notice to the relevant Borrower. Funds received after that time shall be
deemed to have been received by the Administrative Agent on the next
succeeding Business Day. The Administrative Agent shall promptly remit
in same day funds to each Lender its share, if any, of such payments
received by the Administrative Agent for the account of such Lender.
Whenever any payment hereunder shall be stated to be due on a day other
than a Business Day, such payment shall, except as otherwise required
pursuant to clause (d) of the definition of Interest Period, be made on
the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or fees,
as the case may be.
(b) In the case of any payment made pursuant to the preceding
clause (a) by a Borrower to the Administrative Agent, unless the
Administrative Agent will have received notice from that Borrower prior
to the date on which any such payment is due hereunder that such
Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due to such Lender. If
that Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative
Agent forthwith on demand any such amount distributed to the Lender to
the extent that such amount was not paid by that Borrower to the
Administrative Agent together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at an annual rate
equal to the Administrative Agent's Cost of Funds.
SECTION 5.9 SHARING OF PAYMENTS.
(a) If any Lender Party shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Sections 5.3, 5.4, 5.5
or 5.7) in excess of its pro rata share of payments obtained by all
Lender Parties, such Lender Party shall purchase from the other Lender
Parties such participations in Credit Extensions made by them as shall
be necessary to cause such purchasing Lender Party to share the excess
payment or other recovery ratably (to the extent such other Lender
Parties were entitled to receive a portion of such payment or recovery)
with each of them; provided, however, that if all or any portion of the
excess payment or other recovery is thereafter recovered from such
purchasing Lender Party, the purchase shall be rescinded and each Lender
Party which has sold a participation to the purchasing Lender Party
shall repay to the purchasing Lender Party the purchase price to the
ratable extent of such recovery together with an amount equal to such
selling Lender Party's ratable share (according to the proportion of (a)
the amount of such selling Lender Party's required repayment to the
purchasing Lender Party to (b) total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable
by the purchasing Lender Party in respect of the total amount so
recovered.
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(b) The Borrowers agree that any Lender Party purchasing a
participation from another Lender Party pursuant to this Section 5.9
may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 5.10) with respect to such
participation as fully as if such Lender Party were the direct creditor
of the relevant Borrower in the amount of such participation. If under
any applicable bankruptcy, insolvency or other similar law any Lender
Party receives a secured claim in lieu of a setoff to which this Section
5.9 applies, such Lender Party shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lender Parties entitled under this
Section 5.9 to share in the benefits of any recovery on such secured
claim.
SECTION 5.10 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender Party is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all balances, credits, accounts, moneys or deposits
(general or special, time or demand, provisional or final but excluding, for the
avoidance of doubt, any payment received pursuant to this Agreement by the
Administrative Agent in its capacity qua Administrative Agent on behalf of the
Lenders) at any time held and other indebtedness at any time due and owing by
such Lender Party (in any currency and at any branch or office) to or for the
credit or the account of any Obligor against any and all of the Obligations of
such Obligor now or hereafter existing under this Agreement or any other Loan
Document that are at such time due and owing, irrespective of whether or not
such Lender Party shall have made any demand under this Agreement or such other
Loan Document (other than any notice expressly required hereby). The rights of
each Lender Party under this Section 5.10 are in addition to other rights and
remedies (including other rights of set-off) which such Lender Party may have.
SECTION 5.11 JUDGMENTS, CURRENCIES, ETC. The obligation of each Obligor
to make payment of all Obligations in the Required Currency shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment,
which is expressed in or converted into any currency other than the Required
Currency, except to the extent such tender or recovery shall result in the
actual receipt by the recipient at the office required hereunder of the full
amount of the Required Currency expressed to be payable under this Agreement or
any other Loan Document. Without limiting the generality of the foregoing, each
Obligor authorizes the Administrative Agent on any tender or recovery in a
currency other than the Required Currency to purchase in accordance with normal
banking procedures the Required Currency with the amount of such other currency
so tendered or recovered. The obligation of each Obligor to make payments in the
Required Currency shall be enforceable as an alternative or additional cause of
action for the purpose of recovery in the Required Currency of the amount (if
any) by which such actual receipt shall fall short of the full amount of the
Required Currency expressed to be payable under this Agreement or any other Loan
Document, and shall not be affected by judgment being obtained for any other
sums due under this Agreement or such other Loan Document.
SECTION 5.12 REPLACEMENT OF LENDERS. Each Lender hereby severally agrees
that if such Lender (a "Subject Lender") makes demand upon any Borrower for (or
if any Borrower is otherwise required to pay) amounts pursuant to Section 4.2.6,
5.3, 5.5, or 5.7, or if the obligation of such Lender to make Loans is suspended
pursuant to Section 5.1(a), such Borrower may, so
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long as no Event of Default shall have occurred and be continuing, replace such
Subject Lender with an Eligible Assignee pursuant to an assignment in accordance
with Section 11.11.1; provided that (i) such Eligible Assignee shall be subject
to the approval of the Administrative Agent and the Issuer as required by the
definition of "Eligible Assignee", and (ii) the purchase price paid by such
designated financial institution shall be in the amount of such Subject Lender's
Loans and its applicable Percentage of outstanding Reimbursement Obligations,
together with all accrued and unpaid interest and fees in respect thereof, plus
all other amounts (including the amounts demanded and unreimbursed under
Sections 4.2.6, 5.3, 5.5, and 5.7), owing to such Subject Lender hereunder. Upon
the effective date of such assignment, such designated financial institution
shall become a Lender for all purposes under this Agreement and the other Loan
Documents.
SECTION 5.13 CHANGE OF LENDING OFFICE. If Micro or any other Obligor is
required to pay additional amounts to or for the account of any Lender Party
pursuant to Section 4.2.6, 5.3, 5.5, or 5.7, or if the obligation of any Lender
to make or continue Loans is suspended pursuant to Section 5.1(a), then such
Lender Party will change the jurisdiction of its Lending Office if, in the
judgment of such Lender Party, such change (a) will eliminate or reduce any such
additional payment which may thereafter accrue or will avoid such suspension and
(b) is not otherwise disadvantageous to such Lender Party.
SECTION 5.14 EUROPEAN MONETARY UNION. If and to the extent that any
provision of this Section 5.14 relates to any state (or the currency of such
state) that is not a Participating Member State on the Effective Date, such
provision shall become effective in relation to such state (and the currency of
such state) at and from the date on which such state becomes a Participating
Member State.
(a) An amount denominated in the National Currency Unit of a
Participating Member State shall be redenominated into Euro in
accordance with EMU Legislation and paid by the debtor either in the
Euro Unit or in that National Currency Unit and an amount denominated in
the Euro Unit shall be paid by the debtor in the Euro Unit unless EMU
Legislation provides otherwise; provided, that if and to the extent that
any EMU Legislation provides that an amount denominated either in the
Euro or in the National Currency Unit of a Participating Member State
and payable within the Participating Member State by crediting an
account of the creditor can be paid by the debtor either in the Euro
Unit or in that National Currency Unit, any party to this Agreement
shall be entitled to pay or repay any such amount either in the Euro
Unit or in such National Currency Unit.
(b) If the basis of accrual of interest or fees expressed in
this Agreement with respect to the currency of any state that is or
becomes a Participating Member State shall be inconsistent with any
convention or practice in the London, England interbank market for the
basis of accrual of interest or fees in respect of the Euro, such
convention or practice shall replace such expressed basis effective as
of and from the date on which such state becomes a Participating Member
State.
(c) Without prejudice to the respective liabilities of each
Borrower to the Lenders, the Issuer and the Administrative Agent under
or pursuant to this Agreement,
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except as expressly provided in this clause (c), each provision of this
Agreement shall be subject to such reasonable changes of construction as
the Administrative Agent in consultation with Micro may from time to
time specify to be necessary or appropriate to reflect the introduction
of or changeover to the Euro in Participating Member States.
ARTICLE VI
CONDITIONS TO MAKING CREDIT EXTENSIONS
AND ACCESSION OF ACCEDING BORROWERS
SECTION 6.1 INITIAL CREDIT EXTENSION. The obligation of each Lender and,
if applicable, any Issuer to make the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Section 6.1.
SECTION 6.1.1 RESOLUTIONS, ETC. The Administrative Agent will have
received from each Obligor a certificate, dated the Effective Date and with
counterparts for each Lender, duly executed and delivered by the Secretary,
Assistant Secretary, or other authorized representative of such Obligor as to:
(a) resolutions of its Board of Directors or its Executive
Committee, as the case may be, then in full force and effect authorizing
the execution, delivery and performance of this Agreement and each other
Loan Document to be executed by it and in addition, in respect of
Coordination Center, (i) resolutions of its General Shareholders Meeting
specifically approving, for the purposes of article 556 of the Belgian
Company Code, Section 8.1.12, Sections 9.1.4 and 9.3 (to the extent they
apply to Section 8.1.12) and, insofar as required, Section 9.1.8 and
(ii) evidence of the filing of such resolution with the clerk office at
the commercial court of Brussels;
(b) the incumbency and signatures of those of its officers
authorized to act as Authorized Persons for it with respect to this
Agreement and each other Loan Document to be executed by it; and
(c) the Organic Documents of such Obligor (including, without
limitation, with respect to Micro, any amendments, modifications, or
supplements to the Board Representation Agreement since May 30, 2002;
upon which certificate each Lender may conclusively rely until the
Administrative Agent shall have received a further certificate of the Secretary
of the relevant Obligor canceling or amending such prior certificate. In
addition, each Obligor shall, where applicable, have delivered to the
Administrative Agent a good standing certificate from the relevant governmental
regulatory institution of its jurisdiction of incorporation, each such
certificate to be dated a date reasonably near (but prior to) the Effective
Date.
SECTION 6.1.2 EFFECTIVE DATE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, the Effective Date
Certificate, dated the Effective Date and duly executed and delivered by the
chief executive officer, an Authorized Person or the Treasurer of Micro.
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SECTION 6.1.3 MICRO GUARANTY. The Administrative Agent shall have
received, with counterparts for each Lender, the Micro Guaranty in effect as of
the Effective Date, dated the date hereof, duly executed and delivered by an
Authorized Person of Micro.
SECTION 6.1.4 FINANCIAL INFORMATION, ETC. The Administrative Agent shall
have received true and correct copies for each Lender, of:
(a) audited consolidated financial statements of Micro and its
Consolidated Subsidiaries for the 2001 Fiscal Year, prepared in
accordance with GAAP free of any Impermissible Qualifications; and
(b) unaudited consolidated financial statements for Micro and
its Consolidated Subsidiaries for the first three Fiscal Periods of the
2002 Fiscal Year, prepared in accordance with GAAP.
SECTION 6.1.5 CONSENTS, ETC. The Administrative Agent shall have
received evidence satisfactory to it as to the receipt by each Obligor of any
necessary consents or waivers under any agreement applicable to such Obligor in
order to enable such Obligor to enter into this Agreement and any other Loan
Document, to perform its obligations hereunder and thereunder and, in the case
of each Borrower, to obtain Credit Extensions hereunder.
SECTION 6.1.6 CLOSING FEES, EXPENSES, ETC. The Administrative Agent, its
counsel, and each Joint Lead Arranger shall have received payment in full of all
fees, costs, and expenses under Sections 4.3 and 11.3 to the extent (a) then due
and payable and (b) unless an amount is otherwise provided by the Loan Documents
or the Fee Letter and without waiving the right for subsequent reimbursement in
accordance with the Loan Documents, to the extent that a reasonably detailed
invoice is presented to Micro no later than two Business Days prior to the
Effective Date.
SECTION 6.1.7 OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions of counsel, dated the Effective Date and addressed to the
Administrative Agent and all the Lenders, from:
(a) Lily Arevalo, Senior Corporate Counsel of Micro, covering
the matters set forth in Exhibit K attached hereto;
(b) Davis Polk & Wardwell, special New York counsel to Micro,
covering the matters set forth in Exhibit L attached hereto; and
(c) Baker & McKenzie, special Belgian counsel to Coordination
Center, covering the matters set forth in Exhibit M attached hereto.
SECTION 6.1.8 SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant to this Article VI by or on behalf of each Obligor shall be
satisfactory in form and substance to the Administrative Agent (who may rely
upon the advice of its legal counsel with respect to legal matters in making
such determination), and the Administrative Agent shall have received such
additional information, approvals, opinions, documents, or instruments as the
Administrative Agent or the Required Lenders may reasonably request.
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SECTION 6.1.9 TERMINATION OF UNCOMMITTED LC FACILITY. The Administrative
Agent shall have received evidence that the $50,000,000 uncommitted standby
letter of credit line dated as of October 19, 2001, as amended as of July 30,
2002 between Micro, certain of its Subsidiaries and Scotia Capital has been, or
will be, concurrently with the Effective Date, terminated in accordance with its
terms.
SECTION 6.2 ALL CREDIT EXTENSIONS. The obligation of each Lender to make
any Credit Extension (including the initial Credit Extension) shall be subject
to the satisfaction of each of the additional conditions precedent set forth in
this Section 6.2.
SECTION 6.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to such Credit Extension other than any continuation or
conversion (except as otherwise set forth in the initial proviso to this
section) of a Borrowing (but, if any Default of the nature referred to in
Section 9.1.5 shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly, of the
proceeds of such Credit Extension to such other Indebtedness), the following
statements shall be true and correct:
(a) the representations and warranties of each Obligor set forth
in Article VII (excluding, however, those contained in Section 7.8) and
in any other Loan Document shall be true and correct with the same
effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true
and correct as of such earlier date); provided that if any of the
financial statements delivered pursuant to clause (b) of Section 8.1.1
do not present fairly the consolidated financial condition of the
Persons covered thereby as of the dates thereof and the results of their
operations for the periods then ended and Micro subsequently delivers
one or more financial statements pursuant to clause (a) or (b) of
Section 8.1.1 which, in the opinion of the Required Lenders, effectively
cures any omission or misstatement contained in such prior delivered
financial statement, then the representation and warranty contained in
Section 7.6 as it relates to such prior delivered financial statement
shall be deemed satisfied for purposes hereof (it being understood and
agreed that such subsequent delivered financial statements shall be
deemed to have cured such earlier delivered inaccurate financial
statements unless the Required Lenders raise an objection with respect
thereto);
(b) except as disclosed in Item 7.8 (Litigation) of the
Disclosure Schedule:
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or, to
the knowledge of any Obligor, threatened against any Obligor, or
any of their respective Consolidated Subsidiaries in respect of
which there exists a reasonable possibility of an outcome that
would result in a Material Adverse Effect or that would affect
the legality, validity or enforceability of this Agreement or
any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding so disclosed in
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respect of which there exists a reasonable possibility of an
outcome that would result in a Material Adverse Effect;
(c) no Default shall have occurred and be continuing, and no
Obligor, nor any of their respective Subsidiaries, shall be in violation
of any law or governmental regulation or court order or decree which,
singly or in the aggregate, results in, or would reasonably be expected
to result in, a Material Adverse Effect; and
(d) the Outstanding Credit Extensions of all the Lenders do not
exceed the Total Credit Commitment Amount (as such amount may be reduced
from time to time pursuant to Section 2.2);
provided that in the case of any continuation or conversion of a Borrowing, no
Event of Default shall have occurred and be continuing.
SECTION 6.2.2 CREDIT EXTENSION REQUEST. In the case of any Credit
Extension the Administrative Agent shall have received the relevant Credit
Extension Request in a timely manner as herein provided for such Credit
Extension. Delivery of a Credit Extension Request and the acceptance by Micro or
any other Borrower of the proceeds of any Credit Extension shall constitute a
representation and warranty by each Obligor that, on the date of making such
Credit Extension (both immediately before and after giving effect to the making
of such Credit Extension and the application of the proceeds thereof), the
statements made in Section 6.2.1 are true and correct.
SECTION 6.3 ACCEDING BORROWERS. Subject to the prior or concurrent
satisfaction of the conditions precedent set forth in this Section 6.3, any
Subsidiary of Micro may become a party hereto and a Borrower and an Obligor
hereunder subsequent to the Effective Date (each such Subsidiary of Micro, an
"Acceding Borrower"), entitled to all the rights and subject to all the
obligations incident thereto.
SECTION 6.3.1 RESOLUTIONS, ETC. The Administrative Agent shall have
received from such Acceding Borrower a certificate, dated the date such Acceding
Borrower is accepted by the Administrative Agent as a Borrower hereunder and
with counterparts for each Lender, duly executed and delivered by the Secretary,
Assistant Secretary or other authorized representative of such Acceding Borrower
as to:
(a) resolutions of its Board of Directors or its Executive
Committee, as the case may be, then in full force and effect authorizing
the execution, delivery and performance of this Agreement and the
Additional Guaranty (if any) and each other Loan Document to be executed
by it and, in respect of an Aceeding Borrower incorporated under the
laws of Belgium, a resolution of its General Shareholders Meeting
specifically approving, for the purposes of article 556 of the Belgian
Company Code, Section 8.1.12, Sections 9.1.4 and 9.3 (to the extent they
apply to Section 8.1.12) and, insofar as required, Section 9.1.8 and
(ii) evidence of the filing of such resolution with the clerk office at
the commercial court where its registered office is located;
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(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and the Additional
Guaranty (if any) and each other Loan Document to be executed by it; and
(c) the Organic Documents of such Acceding Borrower,
upon which certificate each Lender may conclusively rely until the
Administrative Agent shall have received a further certificate of the Secretary
of such Acceding Borrower canceling or amending such prior certificate. In
addition, each Acceding Borrower shall have delivered to the Administrative
Agent a good standing certificate from the relevant governmental regulatory
institution of its jurisdiction of organization, each such certificate to be
dated a date reasonably near (but prior to) the date such Acceding Borrower
becomes a Borrower hereunder.
SECTION 6.3.2 DELIVERY OF ACCESSION REQUEST AND ACKNOWLEDGMENT. The
Administrative Agent shall have received (a) an original Accession Request and
Acknowledgment duly completed and executed and delivered by such Acceding
Borrower and (b) originals of any other instruments evidencing accession of such
Acceding Borrower hereunder as the Administrative Agent may reasonably request,
in each case effective as of the date such Acceding Borrower becomes a Borrower
hereunder.
SECTION 6.3.3 GUARANTIES, ETC. If such Acceding Borrower has not
previously delivered an Additional Guaranty pursuant to Section 8.1.10(a), and
such Acceding Borrower is a Material Subsidiary, then the Administrative Agent
shall have received, with counterparts for each Lender (a) an Additional
Guaranty executed by such Acceding Borrower, in effect as of the date such
Acceding Borrower becomes a Borrower hereunder, duly executed and delivered by
an Authorized Person of such Acceding Borrower; provided that if such Acceding
Borrower is a Foreign Subsidiary, such Acceding Borrower shall not be required
to deliver such Additional Guaranty if and to the extent Micro, in consultation
with the Administrative Agent, reasonably determines that adverse tax
consequences would result therefrom, and (b) such documents as are required by
Section 8.1.11, in each case effective with respect to such Acceding Borrower as
of the date such Acceding Borrower becomes a Borrower hereunder.
SECTION 6.3.4 COMPLIANCE CERTIFICATE. The Administrative Agent shall
have received with counterparts for each Lender, a Compliance Certificate from
Micro, dated the date such Acceding Borrower becomes a Borrower hereunder.
SECTION 6.3.5 CONSENTS, ETC. The Administrative Agent shall have
received evidence satisfactory to it as to the receipt by such Acceding Borrower
of any necessary consents or waivers under any agreement applicable to such
Acceding Borrower in order to enable such Acceding Borrower to enter into this
Agreement and any other Loan Document, to perform its obligations hereunder and
thereunder and to obtain Credit Extensions hereunder.
SECTION 6.3.6 OPINIONS OF COUNSEL. The Administrative Agent shall have
received an opinion of counsel, dated the date such Acceding Borrower becomes a
Borrower hereunder and addressed to the Agents and all the Lenders, from the
Senior Corporate Counsel of Micro, or such other counsel as shall be reasonably
satisfactory to the Administrative Agent, covering the matters set forth in
Exhibit K attached hereto as to such Acceding Borrower.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender Parties to enter into this Agreement and
to make Credit Extensions hereunder, each Borrower represents and warrants unto
the Administrative Agent and each Lender with respect to itself and the other
Obligors as set forth in this Article VII.
SECTION 7.1 ORGANIZATION, ETC. Each of the Obligors and each of the
respective Subsidiaries is a company or corporation, as the case may be, validly
organized and existing and in good standing under the laws of the jurisdiction
of its incorporation or organization, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its business requires such qualification and where the failure to so qualify and
to maintain such good standing, singularly or in the aggregate, has resulted in,
or would reasonably be expected to result in, a Material Adverse Effect, and has
full power and authority and holds all requisite governmental licenses, permits,
authorizations and other approvals to enter into and perform its Obligations
under this Agreement and each other Loan Document to which it is a party and to
own and hold under lease its property and to conduct its business substantially
as currently conducted by it, excluding any such governmental licenses, permits
or other approvals in respect of which the failure to so obtain, hold or
maintain has not caused, and would not reasonably be expected to result in, a
Material Adverse Effect.
SECTION 7.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each Obligor of this Agreement and each other Loan
Document executed or to be executed by it are within such Obligor's corporate
powers, have been duly authorized by all necessary corporate action, and do not:
(a) contravene such Obligor's Organic Documents;
(b) contravene any law or governmental regulation or court
decree or order binding or affecting such Obligor; or
(c) result in, or require the creation or imposition of, any
Lien on any of such Obligor's properties.
Micro and each of its Subsidiaries is, and after giving effect to any Borrowing
or issuance of any Letter of Credit under this Agreement will be, in compliance
with the limits described in the resolutions of Micro's board of directors
delivered pursuant to Section 6.3.1.
SECTION 7.3 NO DEFAULT. None of the Obligors, nor any of their
respective Subsidiaries, is in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note, or in any
indenture, loan agreement, or other agreement, in connection with or as a result
of which default there exists a reasonable possibility that a Material Adverse
Effect could arise. The execution, delivery and performance by each Obligor of
this Agreement and each other Loan Document executed or to be executed by such
Obligor will not conflict with, or constitute a breach of, or a default under,
any such bond, debenture, note, indenture, loan agreement or other agreement to
which any Obligor or any of their
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respective Subsidiaries is a party or by which it is bound, in connection with,
or as a result of which, conflict, breach or default, there exists a reasonable
possibility that a Material Adverse Effect could arise.
SECTION 7.4 GOVERNMENT APPROVAL, REGULATION, ETC. No action by, and no
notice to or filing with, any governmental authority or regulatory body or other
Person and no payment of any stamp or similar tax, is required for the due
execution, delivery, or performance by any Obligor of this Agreement or any
other Loan Document to which it is a party. No Obligor (nor any of its
Subsidiaries) is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or 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, as amended.
SECTION 7.5 VALIDITY, ETC. This Agreement constitutes, and each other
Loan Document executed by any Obligor will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of each Obligor
party thereto, enforceable against such Obligor in accordance with their
respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally or by general principles of equity.
SECTION 7.6 FINANCIAL INFORMATION. The financial statements of Micro and
its Consolidated Subsidiaries to be delivered pursuant to Section 6.1.4 will
have been prepared in accordance with GAAP and present fairly (subject, in the
case of such financial statements delivered pursuant to clause (b) thereof
(which financial statements, in accordance with Section 1.4(a), are not required
to contain certain footnote disclosures required by GAAP), to ordinary year-end
adjustments) the consolidated financial condition of the Persons covered thereby
as at the dates thereof and the results of their operations for the periods then
ended. All the financial statements delivered pursuant to clauses (a) and (b) of
Section 8.1.1 have been and will be prepared in accordance with GAAP
consistently applied, and do or will present fairly (subject, in the case of
such financial statements delivered pursuant to clause (b) thereof (which
financial statements, in accordance with Section 1.4(a), are not required to
contain certain footnote disclosures required by GAAP), to ordinary year-end
adjustments) the consolidated financial condition of the Persons covered thereby
as of the dates thereof and the results of their operations for the periods then
ended.
SECTION 7.7 NO MATERIAL ADVERSE EFFECT. Since December 31, 2001, there
has been no event or events which, singly or in the aggregate, has or have
resulted, or is or are reasonably likely to result, in a Material Adverse
Effect.
SECTION 7.8 LITIGATION, LABOR CONTROVERSIES, ETC. Except as disclosed in
Item 7.8 (Litigation) of the Disclosure Schedule, there is no pending or, to the
knowledge of any Obligor, threatened litigation, action, proceeding or labor
controversy affecting any Obligor, or any of their respective Subsidiaries, or
any of their respective properties, businesses, assets or revenues, in respect
of which there exists a reasonable possibility of an outcome that would result
in a Material Adverse Effect or that would affect the legality, validity or
enforceability of this Agreement or any other Loan Document.
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SECTION 7.9 SUBSIDIARIES. As of the date hereof, Micro has no
Subsidiaries, except those Subsidiaries which are identified in Item 7.9
(Existing Subsidiaries) of the Disclosure Schedule and certain other
Subsidiaries that are shell corporations that do not conduct any business and do
not in the aggregate have a net worth exceeding $1,000,000.
SECTION 7.10 OWNERSHIP OF PROPERTIES. Each Obligor and each of their
respective Subsidiaries owns good and marketable title (or their respective
equivalents in any applicable jurisdiction) to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever, free and
clear of all Liens, charges or claims except as permitted pursuant to Section
8.2.2, except where such failure or failures to own, singly or in the aggregate,
has not resulted in, or would not reasonably be expected to result in, a
Material Adverse Effect.
SECTION 7.11 TAXES. Each Obligor and each of their respective
Subsidiaries has filed all material tax returns and reports it reasonably
believes are required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except as disclosed in Item 7.11
(Taxes) of the Disclosure Schedule and except for any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books; provided that, with respect to any Subsidiary that is not a
Material Subsidiary, this representation and warranty shall be satisfied if the
tax returns or reports not so filed or the taxes or governmental charges owing
by each such Subsidiary are not with respect to any income, sales or use tax and
the amount so owing (or which would be so owing if such tax returns or reports
were duly filed) with respect to all such Subsidiaries, does not exceed in the
aggregate $1,000,000 at any time and with respect to which no Material
Subsidiary may be liable for payment of such amount.
SECTION 7.12 PENSION AND WELFARE PLANS. Except to the extent that any
such termination, liability, penalty or fine would not (either individually or
in the aggregate) reasonably be expected to have a Material Adverse Effect (a)
during the twelve-consecutive-month period prior to the date hereof and prior to
the date of any Credit Extension hereunder, except as disclosed in Item 7.12
(Employee Benefit Plans) of the Disclosure Schedule, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA, (b) no condition exists or event or transaction has occurred
with respect to any Pension Plan which might result in the incurrence by any
Obligor or any member of the related Controlled Group of any material liability
with respect to any contribution thereto, fine or penalty, and (c) except as
disclosed in Item 7.12 (Employee Benefit Plans) of the Disclosure Schedule,
neither any Obligor nor any member of the related Controlled Group has any
material contingent liability with respect to any post-retirement benefit under
a Welfare Plan, other than liability for continuation coverage described in Part
6 of Title I of ERISA.
SECTION 7.13 ENVIRONMENTAL WARRANTIES.
(a) Each Obligor and each of their respective Subsidiaries has
obtained all environmental, health and safety permits, licenses and
other authorizations required under all Environmental Laws to carry on
its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization
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would not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect. Each of such permits,
licenses and authorizations is in full force and effect and each Obligor
and each of their respective Subsidiaries is in compliance with the
terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any
applicable Environmental Law or in any plan, judgment, injunction,
notice or demand letter issued, entered or approved thereunder, except
to the extent failure to comply therewith would not (either individually
or in the aggregate) reasonably be expected to have a Material Adverse
Effect.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed,
no penalty has been assessed and no investigation or review is pending
or, to the knowledge of any Obligor, threatened by any governmental or
other entity with respect to any alleged failure by any Obligor or any
of their respective Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of any
Obligor or any of their respective Subsidiaries or with respect to any
generation, treatment, storage, recycling, transportation, discharge or
disposal, or any Release of any Hazardous Materials generated by any
Obligor or any of their respective Subsidiaries, except to the extent
failure to have any such permit, license or authorization would not
(either individually or in the aggregate) reasonably be expected to have
a Material Adverse Effect.
SECTION 7.14 OUTSTANDING INDEBTEDNESS. As of September 28, 2002, neither
Micro nor any of its Subsidiaries had any outstanding Indebtedness other than
Indebtedness disclosed in Item 7.14 (Outstanding Indebtedness) of the Disclosure
Schedule and Indebtedness that could be incurred pursuant to Section
8.2.1(a)(ii).
SECTION 7.15 ACCURACY OF INFORMATION.
(a) Except as provided in clause (b) below, all factual
information furnished by or on behalf of any Obligor to any Lender Party
for purposes of or in connection with this Agreement or any other Loan
Document or any transaction contemplated hereby or thereby is, when
taken as a whole, to the best of the knowledge of each Borrower, and all
other factual information hereafter furnished by or on behalf of any
Obligor to any Lender Party will be, when taken as a whole, to the best
of the knowledge of each Borrower, true and accurate in all material
respects on the date as of which such information is dated or certified
and (in the case of any such information furnished prior to the date
hereof) as of the date hereof (unless such information relates to an
earlier date, in which case such information, when taken as a whole,
shall be true and accurate in all material respects as of such earlier
date), and is not, or shall not be, as the case may be, when taken as a
whole, incomplete by omitting to state any material fact necessary to
make such information not misleading.
(b) The information (i) in any financial projections furnished
under this Agreement is and will be based upon assumptions and
information believed by Micro to
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be reasonable and (ii) furnished with express written disclaimers with
regard to the accuracy of that information, is and shall be subject to
those disclaimers.
SECTION 7.16 PATENTS, TRADEMARKS, ETC. Each Obligor and each of their
respective Subsidiaries owns and possesses, or has a valid and existing license
of, or other sufficient interest in, all such patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights and copyrights as is necessary for the conduct of the
business of each such Obligor or its Subsidiaries as now conducted, without, to
the best of the knowledge of each such Obligor, any infringement upon rights of
other Persons, which infringement results in or would reasonably be expected to
result in a Material Adverse Effect, and there is no license or other interest
or right, the loss of which results in, or would reasonably be expected to
result in, a Material Adverse Effect.
SECTION 7.17 MARGIN STOCK. No part of the proceeds of any Credit
Extension shall be used at any time by any Obligor or any of their respective
Subsidiaries for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock (within the meaning of Regulation U (as amended,
modified, supplemented or replaced and in effect from time to time, "Regulation
U") or Regulation X (as amended, modified, supplemented or replaced and in
effect from time to time, "Regulation X") promulgated by the F.R.S. Board of
Governors of the Federal Reserve System (together with any successor thereto,
the "F.R.S. Board") or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock if any such use or extension of credit described in
this Section 7.17 would cause any of the Lender Parties to violate the
provisions of Regulation U or Regulation X. Neither any Obligor nor any of their
respective Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purposes of purchasing
or carrying any such Margin Stock within the meaning of Regulation U or
Regulation X. Not more than 25% of the value of the assets of any Obligor or any
Subsidiary of any Obligor is, as of the date hereof, represented by Margin
Stock. No part of the proceeds of any Credit Extension will be used by any
Obligor or any of their respective Subsidiaries for any purpose which violates,
or which is inconsistent with, any regulations promulgated by the F.R.S. Board,
including Regulation U or Regulation X.
ARTICLE VIII
COVENANTS
SECTION 8.1 AFFIRMATIVE COVENANTS. Each Borrower agrees with the Agents
and each Lender that, until all the Commitments have terminated and all
Obligations have been paid and performed in full, each Borrower will perform its
respective obligations set forth in this Section 8.1.
SECTION 8.1.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. Micro will
furnish, or will cause to be furnished, to each Lender Party (1) promptly after
filing, copies of each Form 10-K, Form 10-Q, and Form 8-K (or any respective
successor forms) filed with the Securities and Exchange Commission (or any
successor authority) or any national securities exchange (including, in each
case, any exhibits thereto requested by any Lender Party), and (2) to the extent
not disclosed in such Forms 10-K, Forms 10-Q, and Forms 8-K (or respective
successor
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forms) for the applicable period, copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year of Micro, a copy of the annual audit report
for such Fiscal Year for Micro and its Consolidated Subsidiaries,
including therein consolidated balance sheets of Micro and its
Consolidated Subsidiaries as of the end of such Fiscal Year and
consolidated statements of income, stockholders' equity and cash flow of
Micro and its Consolidated Subsidiaries for such Fiscal Year, setting
forth in each case, in comparative form, the figures for the preceding
Fiscal Year, in each case certified (without any Impermissible
Qualification, except that (i) qualifications relating to
pre-acquisition balance sheet accounts of Person(s) acquired by Micro or
any of its Subsidiaries and (ii) statements of reliance in the auditor's
opinion on another accounting firm shall not be deemed an Impermissible
Qualification) in a manner satisfactory to the Securities and Exchange
Commission (under applicable United States securities law) by
PricewaterhouseCoopers, LLP or its successors or other independent
public accountants of national reputation;
(b) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Periods occurring during any
Fiscal Year of Micro, a copy of the unaudited consolidated financial
statements of Micro and its Consolidated Subsidiaries, consisting of (i)
a balance sheet as of the close of such Fiscal Period and (ii) related
statements of income and cash flows for such Fiscal Period and from the
beginning of such Fiscal Year to the end of such Fiscal Period, in each
case certified by an officer who is an Authorized Person of Micro as to
(A) being a complete and correct copy of such financial statements which
have been prepared in accordance with GAAP consistently applied as
provided in Section 1.4, and (B) presenting fairly the financial
position of Micro and its Consolidated Subsidiaries;
(c) at the time of delivery of each financial statement required
by clause (a) or (b) above (or Form 10-Q or 10-K in lieu thereof), a
certificate signed by an Authorized Person of Micro stating that no
Default has occurred and is continuing (or if a Default has occurred and
is continuing, and without prejudice to any rights or remedies of any
Lender Party hereunder in connection therewith, a statement of the
nature thereof and the action which Micro has taken or proposes to take
with respect thereto);
(d) at the time of delivery of each financial statement required
by clause (a) or (b) above (or Form 10-Q or 10-K in lieu thereof), a
Compliance Certificate showing compliance with the financial covenants
set forth in Section 8.2.3;
(e) notice of, as soon as possible after (i) the occurrence of
any material adverse development with respect to any litigation, action,
proceeding, or labor controversy disclosed in Item 7.8 (Litigation) of
the Disclosure Schedule, or (ii) the commencement of any labor
controversy, litigation, action, or proceeding of the type described in
Section 7.8;
(f) promptly after the filing thereof, copies of any
registration statements (other than the exhibits thereto and excluding
any registration statement on Form S-8 and
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any other registration statement relating exclusively to stock, bonus,
option, 401(k) and other similar plans for officers, directors, and
employees of Micro or any of its Subsidiaries);
(g) immediately upon becoming aware of the institution of any
steps by any Obligor or any other Person to terminate any Pension Plan
other than pursuant to Section 4041(b) of ERISA, or the failure to make
a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(t) of ERISA, or the
taking of any action with respect to a Pension Plan which could result
in the requirement that any Obligor furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any other event with
respect to any Pension Plan which, in any such case, results in, or
would reasonably be expected to result in, a Material Adverse Effect,
notice thereof and copies of all documentation relating thereto;
(h) as soon as possible, and in any event within three Business
Days after becoming aware of the occurrence of a Default or any
inaccuracy in the financial statements delivered pursuant to clause (a)
or (b) above if the result thereof is not to present fairly the
consolidated financial condition of the Persons covered thereby as of
the dates thereof and the results of their operations for the periods
then ended, a statement of an Authorized Person of Micro setting forth
the details of such Default or inaccuracy and the action which Micro has
taken or proposes to take with respect thereto;
(i) in the case of each Borrower, promptly following the
consummation of any transaction described in Section 8.2.5, a
description in reasonable detail regarding the same;
(j) as soon as available, and in any event by March 1 of each
Fiscal Year (commencing with Fiscal Year 2003), a copy of Micro's
business and financial plan for Micro and its Subsidiaries for such
Fiscal Year, which shall in any event include (i) on a quarterly basis
projected balance sheets and income statements and (ii) a description of
the material assumptions used in preparing such plan, together with
projected cash flows for each such period; and
(k) such other information respecting the condition or
operations, financial or otherwise, of each Borrower, or any of their
respective Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
SECTION 8.1.2 COMPLIANCE WITH LAWS, ETC. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to) comply in all respects with all
applicable laws, rules, regulations and orders the noncompliance with which
results in, or would reasonably be expected to result in, a Material Adverse
Effect, such compliance to include (without limitation):
(a) except as may be otherwise permitted pursuant to Section
8.2.5, the maintenance and preservation of its corporate existence (and
in the case of Coordination Center, its status as a coordination center)
in accordance with the laws of the jurisdiction of its incorporation and
qualification as a foreign corporation (subject to the materiality
standard referred to above); and
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(b) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books; provided that with
respect to any Subsidiary that is not a Material Subsidiary this
covenant shall be satisfied if the taxes, assessments or other
governmental charges owing by each such Subsidiary (i) is not with
respect to any income, sales or use tax and (ii) the amount so owing
with respect to all such Subsidiaries does not exceed in the aggregate
$1,000,000 at any time.
SECTION 8.1.3 MAINTENANCE OF PROPERTIES. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to) maintain, preserve, protect and
keep its material properties in good repair, working order and condition, and
make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times, unless such Borrower or such Subsidiary determines in good faith that the
continued maintenance of any of its properties is no longer economically
desirable.
SECTION 8.1.4 INSURANCE. Each Borrower will (and each Borrower will
cause each of its Subsidiaries to) maintain, or cause to be maintained with
responsible insurance companies or through such Borrower's own program of
self-insurance, insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon request of the
Administrative Agent, furnish to each Lender at reasonable intervals a
certificate of an Authorized Person of such Borrower setting forth the nature
and extent of all insurance maintained by such Borrower and each of its
Subsidiaries in accordance with this Section 8.1.4.
SECTION 8.1.5 BOOKS AND RECORDS. Each Borrower will (and each Borrower
will cause each of its Subsidiaries to) keep books and records which accurately
reflect all of its business affairs and transactions and permit the
Administrative Agent and each Lender, or any of their respective
representatives, at reasonable times and intervals and upon reasonable advance
notice, to visit all of its offices, to discuss its financial matters with its
officers and independent public accountants (and each Borrower hereby authorizes
such independent public accountants to discuss the financial matters of such
Borrower and its Subsidiaries with the Administrative Agent and each Lender or
its representatives whether or not any representative of such Borrower is
present; provided that an officer of such Borrower is afforded a reasonable
opportunity to be present at any such discussion) and to examine any of its
relevant books or other corporate records. Micro will pay all expenses
associated with the exercise of any Lender Party's rights pursuant to this
Section 8.1.5 at any time during the occurrence and continuance of any Event of
Default.
SECTION 8.1.6 ENVIRONMENTAL COVENANT. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to):
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws which, by their terms, apply to
such use and operation, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all
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Hazardous Materials in compliance with all Environmental Laws which, by
their terms, apply to such Hazardous Materials, in each case so that the
non-compliance with any of the foregoing does not result in, or would
not reasonably be expected to result in, either singly or in the
aggregate, a Material Adverse Effect;
(b) immediately notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties or
compliance with Environmental Laws which, singly or in the aggregate,
result in, or would reasonably be expected to result in, a Material
Adverse Effect, and shall promptly cure and have dismissed with
prejudice any actions and proceedings relating to compliance with
Environmental Laws where the failure to so cure or have dismissed,
singularly or in the aggregate, results in, or would reasonably be
expected to result in, a Material Adverse Effect (it being understood
that this clause (b) shall not be construed to restrict any Borrower or
any of its Subsidiaries from challenging or defending any such action or
proceeding which it, in its sole discretion, deems advisable or
necessary); and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 8.1.6.
SECTION 8.1.7 USE OF PROCEEDS. Each Borrower shall apply the proceeds of
each Credit Extension in accordance with the last recital of this Agreement and
shall not use directly any such proceeds to repay the 9.875% Senior Subordinated
Notes due 2008 issued by Micro or any other issuance of Indebtedness issued by
Micro or any of its Subsidiaries which, by its terms, is subordinate in right of
payment to the Obligations.
SECTION 8.1.8 PARI PASSU. Each Borrower shall ensure that such
Borrower's Obligations rank at least pari passu with all other senior unsecured
Indebtedness of such Borrower.
SECTION 8.1.9 GUARANTEE OR SURETYSHIP. If any Borrower or any of its
Subsidiaries becomes a party to any contract of guarantee or suretyship which
would constitute Indebtedness, or if any of its assets becomes subject to such a
contract, that contract will be disclosed in the next financial information to
be provided by Micro pursuant to clause (c) of Section 8.1.1; provided that any
failure to comply with the disclosure obligations of this Section 8.1.9 shall
not constitute a Default unless the existence of the contract or contracts of
guarantee or suretyship which Micro fails to disclose would result in a Default
under clause (b) of Section 8.2.3.
SECTION 8.1.10 ADDITIONAL GUARANTY.
(a) Micro may cause any of its Subsidiaries to execute and
deliver from time to time in favor of the Lender Parties an Additional
Guaranty for the repayment of the Obligations.
(b) Concurrently when or promptly after any of its Subsidiaries
(other than any Foreign Subsidiary if and to the extent Micro, in
consultation with the Administrative Agent, reasonably determines that
adverse tax consequences would result therefrom)
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either guarantees any Indebtedness of Micro or any other Obligor or
satisfies (at any time) the requirements hereunder which describe a
Material Subsidiary, Micro shall cause that Subsidiary (other than
Coordination Center) to (i) execute and deliver in favor of the Lender
Parties an Additional Guaranty for the repayment of the Obligations
which Additional Guaranty (including, without limitation, any Additional
Guaranty executed and delivered by an Acceding Borrower pursuant to
Section 6.3.3) shall be in substantially the form of Exhibit I attached
hereto, shall be governed by the laws of the State of New York, and
shall contain such other terms and provisions as the Administrative
Agent determines to be necessary or appropriate (after consulting with
legal counsel) in order that such Additional Guaranty complies with
local laws, rules, and regulations and is fully enforceable (at least to
the extent of the form of Additional Guaranty attached as Exhibit I)
against such Additional Guarantor.
SECTION 8.1.11 INTRA-GROUP AGREEMENT, ETC. In the event any Subsidiary
of Micro enters into an Additional Guaranty pursuant to Section 6.3.3 or 8.1.10,
an Authorized Person of such Subsidiary shall (a) in the event such Subsidiary
is the first Subsidiary of Micro to enter into an Additional Guaranty, together
with an Authorized Person of Micro, execute and deliver to the Administrative
Agent (with counterparts for each Lender) the Intra-Group Agreement or (b) in
the event the Intra-Group Agreement has previously been so executed and
delivered and is then in effect, execute and deliver to the Administrative Agent
(with counterparts for each Lender) such instruments and documents evidencing
accession of such Subsidiary under the Intra-Group Agreement then in effect as
the Administrative Agent may reasonably request. Except to add additional
Subsidiaries of Micro as parties thereto, the terms of the Intra-Group Agreement
shall not be amended or otherwise modified without the prior consent of the
Administrative Agent on behalf of and as directed by the Required Lenders, such
consent not to be unreasonably withheld. In addition, no Person a party to the
Intra-Group Agreement shall assign any of its rights or obligations thereunder
without the prior consent of the Administrative Agent, such consent not to be
unreasonably withheld.
SECTION 8.1.12 OWNERSHIP OF BORROWERS. Micro shall at all times,
directly or indirectly, hold 100% of the equity (or similar) interests of each
Borrower (other than itself).
SECTION 8.2 NEGATIVE COVENANTS. Each Borrower agrees with the Agents and
each Lender that, until all the Commitments have terminated and all Obligations
have been paid and performed in full, each Borrower will perform its respective
obligations set forth in this Section 8.2.
SECTION 8.2.1 RESTRICTION ON INCURRENCE OF INDEBTEDNESS.
(a) No Borrower will (and no Borrower will permit any of its
Subsidiaries to) create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than the
following:
(i) Any Indebtedness arising in respect of the Credit
Extensions;
(ii) Indebtedness existing as of September 28, 2002, or
incurred pursuant to commitments or lines of credit in effect as
of September 28, 2002, (or
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any renewal or replacement thereof, so long as such renewals or
replacements do not increase the amount of such Indebtedness or
such commitments or lines of credit), in any case identified in
Item 8.2.1(a)(ii) (Ongoing Indebtedness) of the Disclosure
Schedule; and
(iii) additional Indebtedness if after giving effect to
the incurrence thereof the Borrowers are in compliance with
Section 8.2.3, calculated as of the date of the incurrence of
such additional Indebtedness, on a pro forma basis;
provided that, notwithstanding the foregoing, Coordination Center shall
not, at any time, create, incur, assume or suffer to exist or otherwise
become liable in respect of any Indebtedness that is senior in right of
payment to its Obligations hereunder.
(b) Micro will not at the end of any Fiscal Period permit (i)
Total Indebtedness of Subsidiaries (other than Indebtedness of any
Guarantor under any Loan Document and Indebtedness constituting Acquired
Existing Debt and Liens) to exceed 20% of Consolidated Tangible Net
Worth, or (ii) Section 8.2.2(m) to be violated.
SECTION 8.2.2 RESTRICTION ON INCURRENCE OF LIENS. No Borrower will (and
no Borrower will permit any of its Subsidiaries to) create, incur, assume or
suffer to exist any Lien upon any of its property, revenues or assets, whether
now owned or hereafter acquired, except:
(a) Liens existing as of September 28, 2002, and identified in
Item 8.2.2(a) (Existing Liens) of the Disclosure Schedule and Liens
resulting from the extension, renewal or replacement of any such Liens
in respect of the same property theretofore subject to such Lien;
provided that (i) no property shall become subject to such extended,
renewed or replacement Lien that was not subject to the Lien extended,
renewed or replaced, (ii) the aggregate principal amount of Indebtedness
secured by any such extended, renewed or replacement Lien shall not be
increased by such extension, renewal or replacement, (iii) the
Indebtedness secured by such Lien shall be incurred in compliance with
the applicable terms hereof, including Section 8.2.3, and (iv) both
immediately before and after giving effect thereto, no Default shall
exist;
(b) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(d) Liens incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance of
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
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(e) Judgment Liens of an amount not exceeding at any time either
7.25% of Consolidated Tangible Net Worth at the end of the most recently
ended Fiscal Period or $80,000,000, whichever is less, in the aggregate,
or with respect to which execution has been stayed or the payment of
which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies and for which,
within 30 days of such judgment, the insurance carrier has acknowledged
coverage in writing;
(f) Liens on property purchased or constructed after the date
hereof securing Indebtedness used to purchase or construct such
property; provided that (i) no such Lien shall be created in or attach
to any other asset at the time owned by Micro or any of its Subsidiaries
if the aggregate principal amount of the Indebtedness secured by such
property would exceed the fair market value of such property and assets,
taken as a whole, (ii) the aggregate outstanding principal amount of
Indebtedness secured by all such Liens shall not at any time exceed 100%
of the fair market value of such property at the time of the purchase or
construction thereof, and (iii) each such Lien shall have been incurred
within 270 days of the purchase or completion of construction of such
property;
(g) Liens resulting from utility easements, building
restrictions and such other encumbrances or charges against real
property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material may
affect the marketability of the same or interfere with the use thereof
in the business of any Borrower or any of its Subsidiaries;
(h) Liens incurred in the normal course of business in
connection with bankers' acceptance financing or used in the ordinary
course of trade practices, statutory lessor and vendor privilege liens
and liens in connection with ad valorem taxes not yet due, good faith
bids, tenders and deposits;
(i) Liens on all goods held for sale on consignment;
(j) Liens granted by any Subsidiary of Micro in favor of Micro
or in favor of another Subsidiary of Micro that is the parent of such
Subsidiary granting the Lien, other than Liens granted by a Guarantor to
a Subsidiary of Micro that is not a Guarantor; provided that no Person
that is not a Subsidiary of Micro shall be secured by or benefit from
any such Lien;
(k) Liens of the nature referred to in clause (b) of the
definition of the term "Lien" and granted to a purchaser or any assignee
of such purchaser which has financed the relevant purchase of Trade
Accounts Receivable of any Borrower or any of their respective
Subsidiaries and Liens on any related property that would ordinarily be
subject to a Lien in connection therewith such as proceeds and records;
(l) Liens on Trade Accounts Receivable or interests therein of
Micro or any of its Subsidiaries with respect to any accounts receivable
securitization program (including any accounts receivable securitization
program structured as such that remains on the consolidated balance
sheet of Micro and its Consolidated Subsidiaries) and on any
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related property that would ordinarily be subject to a Lien in
connection therewith such as proceeds and records; and
(m) Additional Permitted Liens.
SECTION 8.2.3 FINANCIAL CONDITION. Micro will not permit any of the
following:
(a) the ratio of (i) Consolidated EBITDA for any period of four
consecutive Fiscal Periods to (ii) Consolidated Interest Charges for
such period to be less than 3.25 to 1.0;
(b) (i) the Senior Leverage Ratio to exceed 3.50 to 1.0; and
(ii) the Leverage Ratio to exceed 4.00 to 1.0;
provided that, for purposes of calculating the preceding ratios the
contribution of any Subsidiary of Micro acquired (to the extent the
acquisition is treated for accounting purposes as a purchase) during
those four Fiscal Periods to Consolidated EBITDA shall be calculated on
a pro forma basis as if it had been a Subsidiary of Micro during all of
those four Fiscal Periods; or
(c) the Consolidated Tangible Net Worth at the end of any Fiscal
Period to be less than the sum of (i) 80% of Consolidated Tangible Net
Worth at the end of the Fiscal Year ended nearest to December 31, 2001,
plus (ii) 75% of Consolidated Net Income (without taking into account
any losses incurred in any Fiscal Year) for each Fiscal Year (or portion
thereof) ended thereafter that ends on or before the last day of the
Fiscal Period in question plus (iii) 75% of the net proceeds of all
Equity Issuances for each Fiscal Year (or portion thereof) ended
thereafter that ends on or before the last day of the Fiscal Period in
question.
SECTION 8.2.4 DIVIDENDS.
(a) Except as permitted by Section 8.2.4(b), Micro will not
declare or pay any dividends (in cash, property, or obligations) or any
other payments or distributions on account of, or set apart money for a
sinking or analogous fund for, or purchase, redeem, retire or otherwise
acquire for value, any shares of its capital stock now or hereafter
outstanding or any warrants, options or other rights acquire the same;
return any capital to its stockholders as such; or make any distribution
of assets to its stockholders as such (each a "Restricted Payment").
(b) Micro shall be permitted to (i) make Restricted Payments in
an aggregate amount in any calendar year that do not exceed 50% of the
sum of (A) positive Consolidated Net Income for the immediately
preceding Fiscal Year plus (B) all cumulative effect of changes in
accounting principles and all non-cash charges related to employee
related stock-based plans in each case deducted in determining
Consolidated Net Income for the immediately preceding Fiscal Year, and
(ii) redeem, purchase or acquire, without regard to the foregoing
limitation in clause (i) above, (A) any of its capital stock up to a
maximum aggregate amount of $75,000,000 during the term of this
Agreement and (B) any of its Indebtedness that is convertible into its
securities (and any
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such redemption, purchase or acquisition shall be excluded in
determining Micro's ability to make Restricted Payments pursuant to
clause (i) above), so long as, in respect of any Restricted Payment
pursuant to clause (i) or (ii) above, no Default shall have occurred and
be continuing or would occur after giving effect thereto, as of the date
the Restricted Payment is declared, in the case of a dividend, or is
made, in any other case, it being understood that any dividend declared
in compliance with this Section 8.2.4(b) may be paid without
contravention of this Section 8.2.4 even if a Default then exists.
SECTION 8.2.5 MERGERS, CONSOLIDATIONS, SUBSTANTIAL ASSET SALES, AND
DISSOLUTIONS. No Borrower may merge or consolidate with another Person, or sell,
lease, transfer, or otherwise dispose of assets constituting all or
substantially all of the assets of Micro and its Consolidated Subsidiaries
(taken as a whole) to another Person, or liquidate or dissolve, except for the
following so long as, in each case, no Event of Default exists or would exist
after giving effect to the following:
(a) An Acceding Borrower may liquidate or dissolve, or merge or
consolidate with another Person, or sell, lease, transfer, or otherwise
dispose of all or substantially all of its assets to another Obligor, so
long as, in each case (i) an Obligor is the surviving entity of any such
liquidation, dissolution, merger, or consolidation or the transferee of
such assets, and (ii) Micro is the surviving entity if involved in such
a merger or consolidation.
(b) Coordination Center may merge or consolidate with another
Person if either (i) Coordination Center is the surviving entity or (ii)
the surviving Person (A) is organized and in good standing under the
laws of The Kingdom of Belgium and (B) expressly assumes Coordination
Center's Obligations in a written agreement satisfactory in form and
substance to the Required Lenders.
(c) Micro may merge or consolidate with another Person if:
(i) either Micro is the surviving entity or the
surviving Person (A) is organized and in good standing under the
laws of a State of the United States and (B) expressly assumes
Micro's Obligations in a written agreement satisfactory in form
and substance to the Required Lenders; and
(ii) unless Micro is the surviving entity in a merger or
consolidation that does not constitute a Material Asset
Acquisition, Micro delivers to the Administrative Agent, before
the merger or consolidation becomes effective, a certificate of
Micro's chief executive officer, chief financial officer, or
Treasurer stating and demonstrating in reasonable detail that
(assuming such proposed transaction had been consummated on the
first day of the most recently ended period of four Fiscal
Periods for which financial statements have been or are required
to have been delivered pursuant to Section 8.1.1) Micro (or the
other surviving Person) would have been, on a pro forma basis,
in compliance with each of the covenants set forth in Section
8.2.3 as of the last day of such period.
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SECTION 8.2.6 TRANSACTIONS WITH AFFILIATES. Except in the ordinary
course of business, no Borrower will (and no Borrower will permit any of its
Subsidiaries to), directly or indirectly, pay any funds to or for the account
of, make any investment (whether by acquisition of stock or Indebtedness, by
loan, advance, transfer of property, guarantee or other agreement to pay,
purchase or service, directly or indirectly, any Indebtedness, or otherwise) in,
lease, sell, transfer, or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect, any transaction with, any
Affiliate (any such payment, investment, lease, sale, transfer, other
disposition or transaction, an "Affiliate Transaction") except on an arms-length
basis on terms at least as favorable to such Borrower (or such Subsidiary) as
terms that could have been obtained from a third party who was not an Affiliate;
provided that:
(a) the foregoing provisions of this Section 8.2.6 do not
prohibit (i) agreements with or for the benefit of employees of such
Borrower or any Subsidiaries regarding bridge home loans and other loans
necessitated by the relocation of such Borrower's or such Subsidiary's
business or employees, or regarding short-term hardship advances, (ii)
loans to officers or employees of such Borrower or any of its
Subsidiaries in connection with the exercise of rights under such
Borrower's stock option or stock purchase plan, (iii) any such Person
from declaring or paying any lawful dividend or other payment ratably in
respect of all of its capital stock of the relevant class so long as, in
the case of Micro, after giving effect thereto, no Default shall have
occurred and be continuing, (iv) any Affiliate Transaction between Micro
and any of its Subsidiaries or between any Subsidiaries of Micro, or (v)
any Affiliate Transaction (other than any Affiliate Transaction
described in clauses (i) through (iv) above) in which the amount
involved does not exceed $50,000; and
(b) the Borrowers shall not, nor shall they permit any of their
respective Subsidiaries to, participate in effect any Affiliate
Transactions otherwise permitted pursuant to this Section 8.2.6 which
either individually or in the aggregate may involve obligations that are
reasonably likely to have a Material Adverse Effect. The approval by the
independent directors of the Board of Directors of the relevant Borrower
(or the relevant Subsidiary thereof) of any Affiliate Transaction to
which such Borrower (or the relevant Subsidiary thereof) is a party
shall create a rebuttable presumption that such Affiliate Transaction is
on an arms-length basis on terms at least as favorable to such Borrower
(or the relevant Subsidiary thereof) as terms that could have been
obtained from a third party who was not an Affiliate.
SECTION 8.2.7 LIMITATIONS ON ACQUISITIONS.
(a) No Borrower may make any Material Asset Acquisition unless
no Event of Default exists or would exist after giving effect to the
proposed Material Asset Acquisition.
(b) Without first providing the notice to the Administrative
Agent and the Lenders required by this Section 8.2.7(b), the Borrowers
shall not (and shall not permit their respective Subsidiaries to)
acquire any outstanding stock of any U.S. or non-U.S. corporation,
limited company or similar entity of which the shares constitute Margin
Stock if after giving effect to such acquisition, Micro and its
Affiliates shall hold, in the
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aggregate, more than 5% of the total outstanding stock of the issuer of
such Margin Stock, which notice shall include the name and jurisdiction
of organization of such relevant issuer, the market on which such stock
is traded, the total percentage of such relevant issuer's stock
currently held, and the purpose for which the acquisition is being made.
(c) Notwithstanding any contrary provision in this Section
8.2.7, the Borrowers shall not (and shall not permit their respective
Subsidiaries to) (i) directly or indirectly use the proceeds of any
Credit Extension to make any Acquisition unless, if the board of
directors of the Person to be acquired has notified Micro or any of its
Subsidiaries that it opposes the offer by the proposed purchaser to
acquire that Person, then that opposition has been withdrawn, or (ii)
make any Acquisition unless, if the proposed Acquisition is structured
as a merger or consolidation, it will be consummated in compliance with
Section 8.2.5.
(d) Execution and delivery of each Continuation Notice shall
constitute the relevant Borrower's representation and warranty that the
Borrowers are not then in violation of Section 8.2.7(c)(i).
SECTION 8.2.8 LIMITATION ON SALE OF TRADE ACCOUNTS RECEIVABLE.
Notwithstanding anything to the contrary in this Agreement, no Borrower will
(and no Borrower will permit any of its Subsidiaries to) sell, assign, grant a
Lien in, or otherwise transfer any interest in its Trade Accounts Receivable to
any Person if, after giving effect thereto, the ratio (expressed as a
percentage) of (i) Consolidated Transferred Receivables to (ii) the sum of
Consolidated Retained Receivables plus Consolidated Transferred Receivables
shall exceed 55%. Micro will not permit the ratio as at the end of any Fiscal
Quarter of (i) Unencumbered Trade Receivables to (ii) the total Outstanding
Credit Extensions of all Lenders to be less than 4.00 to 1.0.
SECTION 8.2.9 SALE OF ASSETS. Except as provided in Section 8.2.5, no
Obligor will (and no Obligor will permit any of its Subsidiaries to) Dispose of
any property or assets other than in the ordinary course of business, except
that:
(a) Micro or any Subsidiary of Micro may Dispose of any of its
assets so long as the proceeds thereof are either (i) utilized to repay
or prepay (in accordance with the provisions of Article IV) Revolving
Loans (provided that in the event the amount of such proceeds shall
exceed the aggregate principal amount of all Revolving Loans outstanding
hereunder at such time, such excess proceeds may be utilized to repay or
prepay (in accordance with the provisions hereof) other loans
outstanding at such time) or (ii) so long as no Event of Default has
occurred and is continuing or would occur after giving effect thereto,
reinvested in one or more of the businesses in which Micro or any of its
Subsidiaries is principally engaged in accordance with Section 8.2.10;
(b) Micro or any Subsidiary of Micro may Dispose of assets which
are worn out, obsolete or surplus or otherwise have no further useful
life to Micro or any of its Subsidiaries;
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(c) so long as no Event of Default has occurred and is
continuing or would occur after giving effect thereto, Micro and any
Subsidiary of Micro may Dispose of assets in transactions exclusively
among Micro and any of its Subsidiaries or among Subsidiaries of Micro
that satisfy the requirements of Section 8.2.6; and
(d) subject to Section 8.2.8, any Borrower may (and may permit
any of its Subsidiaries to) sell, assign, grant a Lien in, or otherwise
transfer any interest in its Trade Accounts Receivable and related
property such as proceeds and records.
For purposes of this Section 8.2.9 "Dispose" means sell, lease, transfer, or
otherwise dispose of property but shall not include any public taking or
condemnation, and "Disposition" has a corresponding meaning to Dispose. Such
terms shall not include an exchange of assets if the assets involved in such
exchange are similar in function and after giving effect to such exchange there
has not been (i) a Material Adverse Effect, (ii) any material deterioration of
cash flow generation from or in connection with such assets, or (iii) any
material deterioration in the overall quality of plant, property, and equipment
of any Obligor. An "exchange" shall be deemed to have occurred for purposes
hereof if each of the transactions involved shall have been consummated within a
six month period.
SECTION 8.2.10 LIMITATION ON BUSINESSES. Micro and its Subsidiaries,
considered as a whole, will not engage principally in businesses other than
those conducted by Micro and its Subsidiaries on the date hereof, as described
in the preamble of this Agreement.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 LISTING OF EVENTS OF DEFAULT. Any of the following events or
occurrences described in this Section 9.1 shall constitute an "Event of
Default".
SECTION 9.1.1 NON-PAYMENT OF OBLIGATIONS. A default shall occur in the
payment or prepayment when due (a) by any Borrower of any principal of any
Revolving Loan, (b) by any Borrower of any interest on any Revolving Loan, (c)
by any Borrower of any Reimbursement Obligation or any deposit of cash for
collateral purposes pursuant to Section 3.2.2 or 3.2.4 or (d) by any Guarantor
of any Guaranteed Obligation (as defined in such Guarantor's Guaranty), and, in
the case of clauses (b) or (d), such default shall continue unremedied for a
period of five Business Days.
SECTION 9.1.2 BREACH OF WARRANTY. Any representation or warranty of any
Obligor made or deemed to be made hereunder or in any other Loan Document
executed by it or in any other writing or certificate furnished by or on behalf
of any Obligor to the Administrative Agent or any Lender for the purposes of or
in connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article VI) is or shall be incorrect when
made in any material respect.
SECTION 9.1.3 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observation of any of its
obligations under Section 8.2.2 (excluding the involuntary incurrence of Liens
involving individually or
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collectively amounts in controversy or encumbered assets or both having a value
of less than $60,000,000 at any time, which involuntary incurrences are subject
to Section 9.1.4), Section 8.2.3, Section 8.2.4, or Section 8.2.5 .
SECTION 9.1.4 NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the payment when due of any fee or any other Obligation
not subject to Section 9.1.1, or the due performance and observance of any other
covenant, agreement or obligation contained herein or in any other Loan
Document, and such default shall continue unremedied for a period of 30 days
after Micro obtains actual knowledge thereof or notice thereof shall have been
given to Micro by the Administrative Agent or any Lender.
SECTION 9.1.5 DEFAULT ON INDEBTEDNESS. A default shall occur in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness of any Obligor or any of its
Subsidiaries (other than Indebtedness described in Section 9.1.1 or Indebtedness
which is non-recourse to any Obligor, or any Subsidiary of any Obligor) having
an outstanding aggregate principal amount, for Micro and its Subsidiaries as a
group, in excess of the lesser of (a) (i) 5% of Consolidated Tangible Net Worth
for the then most recently ended Fiscal Period, individually, or (ii) 10% of
Consolidated Tangible Net Worth for the then most recently ended Fiscal Period,
when taken together with (A) all other Indebtedness under which a default
(payment or otherwise) has occurred and is then continuing and (B) the
Securitization Financing Amount of all Securitization Defaults described in
Section 9.1.11 that have occurred and are then continuing and (b) $35,000,000
(or the equivalent thereof in any other currency), or a default shall occur in
the performance or observance of any obligation or condition with respect to
such Indebtedness if the effect of such default is to cause, or (without the
giving of further notice or lapse of additional time) to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders to cause,
the maturity of any such Indebtedness to be accelerated or such Indebtedness to
be prepaid, redeemed, purchased, defeased or otherwise to become due and payable
prior to its expressed maturity.
SECTION 9.1.6 JUDGMENTS. Any judgment or order for the payment of money
in excess of (individually or in the aggregate), for Micro and its Subsidiaries
as a group, an amount equal at any time to either 7.25% of Consolidated Tangible
Net Worth at the end of the most recently ended Fiscal Period or $80,000,000,
whichever is less (or, in either case, the equivalent thereof in any other
currency), shall be rendered against any Obligor or any of their respective
Subsidiaries and either:
(a) enforcement proceedings shall have been commenced and be
continuing by any creditor upon such judgment or order for any period of
30 consecutive days; or
(b) there shall be any period during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
SECTION 9.1.7 PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan:
(a) the institution of any steps by any Obligor, any member of
its Controlled Group or any other Person to terminate a Pension Plan if,
as a result of such termination,
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any such Obligor or any such member could be required to make a
contribution in excess of $60,000,000 (or the equivalent thereof in any
other currency), to such Pension Plan, or could reasonably expect to
incur a liability or obligation in excess of $60,000,000 (or the
equivalent thereof in any other currency), to such Pension Plan; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8 OWNERSHIP; BOARD OF DIRECTORS. Any Person or two or more
Persons (excluding the Family Stockholders (as defined in the Board
Representation Agreement)) acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (or any
successor regulation)) of capital stock of Micro having more than 25% of the
ordinary voting power of all capital stock of Micro then outstanding; and at any
time during any period of 25 consecutive calendar months commencing on or after
the date of this Agreement, a majority of Board of Directors of Micro shall no
longer be composed of individuals (i) who were members of such Board of
Directors on the first day of such period, (ii) whose election or nomination to
such Board of Directors was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of such Board of Directors or (iii) whose election or nomination to
such Board of Directors 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 such Board of Directors.
SECTION 9.1.9 BANKRUPTCY, INSOLVENCY, ETC. Any Obligor or any Material
Subsidiary shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, administrative receiver, sequestrator, liquidator or
other custodian for it, its property, or make a general assignment for
the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, administrative
receiver, receiver, sequestrator, liquidator or other custodian for it
or for a substantial part of its property, and such trustee, receiver,
sequestrator, liquidator or other custodian shall not be discharged
within 60 days; provided that each Obligor and each Material Subsidiary
hereby expressly authorizes each Lender Party to appear in any court
conducting any relevant proceedings during such 60-day period to
preserve, protect and defend its rights under this Agreement and the
other Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution, winding up
or liquidation proceeding, in respect of any Obligor or any Material
Subsidiary thereof, as the case may be, and, if any such case or
proceeding is not commenced by such Person, such case or proceeding
shall be
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consented to or acquiesced in by such Obligor or Material Subsidiary, as
the case may be, or shall result in the entry of an order for relief or
shall remain for 60 days unstayed or undismissed; provided that each
Obligor and each Material Subsidiary hereby expressly authorizes each
Lender Party to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect and defend its
rights under this Agreement and the other Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 9.1.10 GUARANTIES. Any of the Guaranties or any provisions
thereof shall be found or held invalid or unenforceable by a court of competent
jurisdiction or shall have ceased to be effective because of the merger,
dissolution or liquidation of a Guarantor (other than as may result from a
transaction permitted pursuant to Section 8.2.5 or by reason of a merger of
Guarantor under one Guaranty into the Guarantor under another Guaranty) or any
Guarantor shall have repudiated its obligations under a Guaranty.
SECTION 9.1.11 DEFAULT UNDER SECURITIZATION PROGRAMS. Any early
liquidation, termination or similar event shall have occurred and be continuing
under any outstanding Trade Accounts Receivable securitization program of Micro
or any of its Consolidated Subsidiaries on account of the failure by Micro or
any of its Subsidiaries to comply with any applicable provision in the
agreements governing said program or to satisfy any condition required to be met
by it thereunder (each a "Securitization Default"), the Securitization Financing
Amount of which is in excess of the lesser of (a) (i) 5% of Consolidated
Tangible Net Worth for the then most recently ended Fiscal Period, individually,
or (ii) 10% of Consolidated Tangible Net Worth for the then most recently ended
Fiscal Period, when taken together with (A) the Securitization Financing Amount
of all other Securitization Defaults that have occurred and are then continuing
and (B) all Indebtedness under which a default described in Section 9.1.5 has
occurred and is then continuing and (b) $35,000,000 (or the equivalent thereof
in any other currency).
SECTION 9.2 ACTION IF BANKRUPTCY. If any Event of Default described in
Section 9.1.9 shall occur, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Revolving Loans and all other Obligations shall automatically be and become
immediately due and payable, without notice or demand.
SECTION 9.3 ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in Section 9.1.9) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Lenders, shall by notice to Micro
declare all or any portion of the outstanding principal amount of the Revolving
Loans and all other Obligations to be due and payable and/or the Commitments to
be terminated, whereupon the full unpaid amount of the Revolving Loans and all
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
SECTION 9.4 CASH COLLATERAL. If any Event of Default shall occur for any
reason, whether voluntary or involuntary, and shall not have been cured or
waived and shall be
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continuing and the Obligations are or have been declared due and payable under
Section 9.2 or 9.3, the Administrative Agent may apply any cash collateral held
by the Administrative Agent pursuant of Section 3.2.4 to the payment of the
Obligations in any order in which the Required Lenders may elect.
ARTICLE X
AGENTS
SECTION 10.1 AUTHORIZATION AND ACTIONS. Each Lender hereby appoints
Scotia Capital as the Administrative Agent and ABN AMRO Bank N.V. as the
Syndication Agent under, and for the purposes set forth in, this Agreement and
each other Loan Document. Each Lender authorizes each Agent to act on behalf of
such Lender under this Agreement and each other Loan Document and in the absence
of other written instructions from the Required Lenders received from time to
time by the Agents (with respect to which each Agent agrees that it will comply,
except as otherwise provided in this Section 10.1 or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agents by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
each Agent pro rata according to such Lender's Percentage, from and against any
and all liabilities, obligations, losses, damages, claims, costs or expenses of
any kind or nature whatsoever which at any time may be imposed on, incurred by,
or asserted against, each Agent in any way relating to or arising out of this
Agreement or any other Loan Document, including reasonable attorneys' fees, and
as to which either Agent is not reimbursed by Micro or the other Obligors;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent's gross negligence or willful misconduct. No
Agent shall be required to take any action hereunder or under any other Loan
Document, or to prosecute or defend any suit in respect of this Agreement or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of either Agent shall be or become, in such Agent's
determination, inadequate, the Administrative Agent may call additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 10.2 FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., Applicable Time, on the Business Day prior to the making of a
Revolving Loan that such Lender will not make available an amount which would
constitute its Percentage of such requested Revolving Loan on the date specified
therefor, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent and, in reliance upon such
assumption, make available to the relevant Borrower a corresponding amount. If
and to the extent that such Lender shall not have made such amount available to
the Administrative Agent, such Lender and the relevant Borrower severally agree,
to pay the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the
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Administrative Agent made such amount available to the relevant Borrower to the
date such amount is repaid to the Administrative Agent at an annual interest
rate equal to the Administrative Agent's Cost of Funds for the first day that
the Administrative Agent made such amounts available and thereafter at a rate of
interest equal to the interest rate applicable at the time to the requested
Revolving Loan.
SECTION 10.3 EXCULPATION. Neither Agent nor any of their respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor be responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor to
make any inquiry respecting the performance by any Obligor of its obligations
hereunder or under any other Loan Document. Any such inquiry which may be made
by either Agent shall not obligate it to make any further inquiry to take any
action. Each Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which each such Agent believes to be genuine and to have been presented by a
proper Person.
SECTION 10.4 SUCCESSOR. Either Agent may resign as such at any time upon
at least 30 days' prior notice to Micro and all the Lenders. If either Agent
shall at any time resign, the Required Lenders, after consultations with Micro,
may appoint another Lender as a successor Administrative Agent or Syndication
Agent, as the case may be, whereupon such Lender shall become the Administrative
Agent or the Syndication Agent hereunder, as the case may be. If no successor
Administrative Agent or Syndication Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's or Syndication Agent's giving notice of
resignation, then the retiring Administrative Agent or Syndication Agent may, on
behalf of the Lenders, after consultations with Micro, appoint a successor
Administrative Agent or Syndication Agent, as the case may be, which shall be
one of the Lenders or a commercial banking institution that is organized under
the laws of the United States or any State thereof (or a branch or agency of
either) and that has a combined capital and surplus of at least $500,000,000.
Upon acceptance of any appointment as Administrative Agent or Syndication Agent
hereunder, as the case may be, by a successor Administrative Agent or
Syndication Agent, as the case may be, such successor Administrative Agent or
Syndication Agent shall be entitled to receive from the retiring Administrative
Agent or Syndication Agent such documents of transfer and assignment as such
successor Administrative Agent or Syndication Agent, as the case may be, may
reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent or
Syndication Agent, as the case may be, and the retiring Administrative Agent or
Syndication Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's or Syndication Agent's
resignation hereunder as the Administrative Agent or Syndication Agent, as the
case may be, the provisions of:
(a) this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
or Syndication Agent under this Agreement; and
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(b) Sections 11.3 and 11.4 shall continue to inure to its
benefit.
SECTION 10.5 CREDIT EXTENSIONS BY AN AGENT. Each Agent shall have the
same rights and powers with respect to the Credit Extensions made by it or any
of its Affiliates in its capacity as a Lender and may exercise the same as if it
were not an Agent hereunder. Each Agent and its respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
any Obligor or Subsidiary of any thereof as if it were not an Agent hereunder.
SECTION 10.6 CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of the Agents and each other Lender, and based on such Lender's
review of the financial information of each Obligor, this Agreement, the other
Loan Documents (the terms and provisions which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to make available its
Commitment. Each Lender also acknowledges that it will, independently of the
Agents and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 10.7 COPIES, ETC. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Obligor pursuant to the terms of this
Agreement or any other Loan Document (unless concurrently delivered to the
Lenders by such Obligor). The Administrative Agent will distribute to each
Lender each document or instrument received for its account, and copies of all
other communications received by the Administrative Agent from any Obligor, for
distribution to the Lenders by the Administrative Agent in accordance with the
terms of this Agreement or any other Loan Document.
SECTION 10.8 JOINT LEAD ARRANGERS AND OTHER AGENTS. Anything herein to
the contrary notwithstanding, the Joint Lead Arrangers and Joint Book Runners,
the Syndication Agent and the Co-Documentation Agents listed on the cover page
hereof shall not have any duties or responsibilities under this Agreement,
except in their capacity, if any, as Administrative Agent or Lender.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by each Borrower and the Required Lenders; provided that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
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(b) modify this Section 11.1, change the definitions of
"Percentage," or "Required Lenders," increase the Total Credit
Commitment Amount or the Credit Commitment Amount or Percentage of any
Lender, extend the Commitment Termination Date, or, subject to Section
8.2.5, release any Guarantor from any of its payment obligations under
the Guaranty entered into by it, shall be made without the consent of
each Lender;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Credit Extension or the amount of any fee payable under Section 4.3
shall be made without the consent of each Lender; or
(d) affect adversely the interests, rights or obligations of the
Administrative Agent or the Issuer shall be made without the consent of
the Administrative Agent or the Issuer, as the case may be.
No failure or delay on the part of any Lender Party in exercising any power or
right under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by any Lender Party under this Agreement or any other Loan Document
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2 NOTICES. Unless otherwise specified to the contrary, all
notices and other communications provided to any party hereto under this
Agreement or any other Loan Document shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address or facsimile
number set forth below its signature hereto or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. All notices, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by paid courier service, shall be deemed given
when received; all notices if transmitted by facsimile shall be deemed given
when transmitted and the appropriate receipt for transmission received by the
sender thereof.
SECTION 11.3 PAYMENT OF COSTS AND EXPENSES. Coordination Center and
Micro, jointly and severally, agree to pay on demand all reasonable expenses
(inclusive of value added tax or any other similar tax imposed thereon) of the
Agents (including the reasonable fees and out-of-pocket expenses of the single
counsel to the Agents and of local counsel, if any, who may be retained by such
counsel to the Agents) in connection with the negotiation, preparation,
execution, and delivery of this Agreement and of each other Loan Document
(including schedules, exhibits, and forms of any document or instrument relevant
to this Agreement or any other Loan Document), and any amendments, waivers,
consents, supplements, or other modifications to this Agreement or any other
Loan Document as from time to time may hereafter be required, whether or not the
transactions contemplated hereby are consummated.
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Coordination Center and Micro, jointly and severally, further agree to pay, and
to save the Lender Parties harmless from all liability for, stamp or other taxes
(including, without limitation, any registration duty imposed by Belgian law)
which may be payable in connection with the execution, delivery or enforcement
of this Agreement or any other Loan Document, and in connection with the making
of any Credit Extensions and the issuing of any Letters of Credit hereunder.
Coordination Center and Micro, jointly and severally, also agree to reimburse
each Lender Party upon demand for all out-of-pocket expenses (inclusive of value
added tax or other similar tax imposed thereon and including attorneys' fees and
legal expenses (including actual cost to such Lender Party of its in-house
counsel) on a full indemnity basis) incurred by each such Lender Party in
connection with (x) the negotiation of any restructuring or "work-out," whether
or not consummated, of any Obligations and (y) the enforcement of any
obligations, provided that Coordination Center and Micro, jointly and severally,
shall reimburse each Lender Party for the fees and legal expenses of only one
counsel for such Lender Party.
SECTION 11.4 INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement and each other Loan Document by each Lender Party and
the extension of the Commitments, the Obligors hereby jointly and severally
indemnify, exonerate and hold each Lender Party and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, claims, causes
of action, suits, losses, costs, liabilities and damages, and expenses incurred
in connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements, which shall include the actual
cost to such Indemnified Party of its in-house counsel but shall not include the
fees and expenses of more than one counsel to such Indemnified Party
(collectively, the "Indemnified Liabilities"), incurred by Indemnified Parties
or any of them as a result of, or arising out of, or relating to:
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (excluding,
however, any action successfully brought by or on behalf of Micro or any
other Borrower with respect to any determination by any Lender not to
fund any Credit Extension or not to comply with Section 11.15 or any
action by the Required Lenders to terminate or reduce the Commitments or
accelerate the Revolving Loans in violation of the terms of this
Agreement);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Obligor, or any of their
respective Subsidiaries of all or any portion of the stock or assets of
any Person, whether or not any Indemnified Party is party thereto;
(d) any investigation, litigation, or proceeding related to any
environmental cleanup, audit, compliance, or other matter relating to
the protection of the environment or the Release by any Obligor (or any
of their respective Subsidiaries) of any Hazardous Material; or
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(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging, or releases from, any real
property owned or operated by any Obligor (or any of their respective
Subsidiaries) of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses, or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, such Person;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Obligors hereby jointly and severally agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 11.5 SURVIVAL. The obligations of Micro and each other Obligor
under Sections 5.3, 5.4, 5.5, 5.7, 11.3, and 11.4, and the obligations of the
Lenders under Sections 10.1 and 11.15, shall in each case survive any
termination of this Agreement, the payment in full of Obligations, and the
termination of the Commitments. The representations and warranties made by Micro
and each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 11.6 SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such Jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdictions.
SECTION 11.7 HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS; ENTIRE AGREEMENT.
This Agreement may be executed by the parties hereto in several counterparts,
each of which shall be deemed to be an original and all of which shall
constitute together but one and the same Agreement. This Agreement shall become
effective on the date when the Administrative Agent has (a) received (i)
counterparts hereof executed on behalf of Micro, Coordination Center, the
Agents, and each Lender or (ii) facsimile, telegraphic, or other written
confirmation (in form and substance satisfactory to the Administrative Agent,
who may rely upon the advice of its special counsel in making that
determination) of such execution and (b) so notified the Borrowers and the
Lenders; provided that no Lender shall have any obligation to make the initial
Credit Extension until the date (the "Effective Date") that the applicable
conditions set forth in Sections 6.1 and 6.2 have been satisfied as provided
herein. The Effective Date must occur on or before 5:00 p.m., New York City
time, on December 30, 2002. This Agreement and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
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SECTION 11.9 JURISDICTION.
SECTION 11.9.1 SUBMISSION; SERVICE OF PROCESS; IMMUNITY; ETC. TO THE
FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF EITHER AGENT, THE LENDERS, THE ISSUER OR ANY BORROWER
MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. EACH FOREIGN BORROWER HEREBY IRREVOCABLY
APPOINTS MICRO (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH AN OFFICE ON THE
DATE HEREOF AT 1600 E. ST. ANDREW PLACE, SANTA ANA, CA 92705 UNITED STATES, AS
ITS AGENT TO RECEIVE, ON SUCH FOREIGN BORROWER'S BEHALF AND ON BEHALF OF SUCH
FOREIGN BORROWER'S PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND
ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH
SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH
FOREIGN BORROWER IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE
ADDRESS, AND SUCH FOREIGN BORROWER IRREVOCABLY AUTHORIZES AND DIRECTS THE
PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF
SERVICE, EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, TO THE FULLEST
EXTENT PERMITTED UNDER APPLICABLE LAW, EACH SUCH BORROWER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
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SECTION 11.9.2 NON-EXCLUSIVITY. Nothing in this Section 11.9 limits the
right of a Lender Party to bring proceedings against an Obligor in connection
with any Loan Document in any other court of competent jurisdiction, or
concurrently in more than one jurisdiction.
SECTION 11.9.3 GOVERNING LAW. EACH LOAN DOCUMENT (OTHER THAN THE LETTERS
OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY AND ITS PROVISIONS CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN
SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL
STANDBY PRACTICES (ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER
590 (THE "ISP RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE ISP RULES, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 11.10 SUCCESSORS AND ASSIGNS. This Agreement and each other Loan
Document shall be binding upon and shall inure to the benefit of the parties
hereto and thereto and their respective successors and assigns; provided that:
(a) no Obligor may assign or transfer its rights or obligations
hereunder or under any other Loan Document without the prior written
consent of all the Lender Parties;
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 11.11; and
(c) the rights of the Administrative Agent with respect to
resignation or removal are subject to Section 10.4.
SECTION 11.11 ASSIGNMENTS AND TRANSFERS OF INTERESTS. No Lender may
assign or sell participation interests in its Commitment or any of its Credit
Extensions or any portion thereof to any Persons except in accordance with this
Section 11.11.
SECTION 11.11.1 ASSIGNMENTS. Any attempted assignment or transfer by a
Lender of its Credit Extensions and Commitment not made in accordance with this
Section 11.11.1 shall be null and void.
(a) Any Lender may at any time assign or transfer to (i) one or
more Eligible Assignees, to any of its Affiliates or to any other
Lender, in each case (so long as no Event of Default exists at the time)
with the consent of Micro (such consent not to be unreasonably withheld
or delayed), or (ii) any Federal Reserve Bank (each Person described in
any of the foregoing clauses as being the Person to whom such assignment
or transfer is available to be made, being hereinafter referred to as a
"Transferee Lender") all or any part of such Lender's total Credit
Extensions and Commitment (which
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assignment or transfer shall be of a constant, and not a varying,
percentage of all the assigning Lender's Credit Extensions and
Commitment) in a minimum aggregate amount equal to the lesser of (i) the
entire amount of such Lender's total Credit Extensions and Commitment or
(ii) $5,000,000.
(b) Notwithstanding clause (a) above, each Obligor and Agent
shall be entitled to continue to deal solely directly with such Lender
in connection with the interests so assigned or transferred to a
Transferee Lender unless and until (i) notice of such assignment or
transfer, together with payment instructions, addresses, and related
information with respect to such Transferee Lender, shall have been
given to Micro and each Agent by such Lender and such Transferee Lender,
(ii) such Transferee Lender shall have executed and delivered to Micro
and each Agent, a Lender Assignment Agreement, and (iii) the Lender or
the Transferee Lender shall have paid a $3,500 processing fee to the
Administrative Agent.
(c) From and after the effective date of such Lender Assignment
Agreement (i) the Transferee Lender thereunder shall be deemed
automatically to have become a party to this Agreement and (to the
extent rights and obligations under this Agreement have been assigned
and transferred to such Transferee Lender in connection with such Lender
Assignment Agreement) shall have the rights and obligations of a Lender
under this Agreement and the other Loan Documents, and (ii) the assignor
Lender (to the extent that rights and obligations under this Agreement
have been assigned and transferred by it in connection with such Lender
Assignment Agreement) shall be released from its obligations under this
Agreement and the other Loan Documents.
(d) Accrued interest and accrued fees shall be paid in respect
of assigned and retained Credit Extensions and Commitments at the same
time or times provided in this Agreement, notwithstanding any such
assignments or transfers.
SECTION 11.11.2 PARTICIPATIONS. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of its Credit Extensions and Commitments hereunder; provided that:
(a) no participation contemplated in this Section 11.11.2 shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) each Borrower and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and each other
Loan Document;
(d) no Participant, unless such Participant is an Affiliate of
such Lender or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree
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with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in clause
(a), (b) or clause (c) of Section 11.1; and
(e) no Borrower shall be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 5.3, 5.4, 5.5, 5.7, 5.9, 5.10, 11.3, and 11.4, shall be considered a
Lender.
SECTION 11.12 OTHER TRANSACTIONS. Nothing contained herein shall
preclude any Lender Party from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with any Obligor or
any of its Affiliates in which such Obligor or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 11.13 FURTHER ASSURANCES. Each Obligor agrees to do such further
acts and things and to execute and deliver to each Lender Party such additional
assignments, agreements, powers, and instruments, as such Lender Party may
reasonably require or deem advisable to carry into effect the purposes of this
Agreement or any other Loan Document or to better assure and confirm unto such
Lender Party its rights, powers and remedies hereunder and thereunder.
SECTION 11.14 WAIVER OF JURY TRIAL. THE AGENTS, THE LENDERS, MICRO, AND
EACH OTHER OBLIGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE
FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE LENDER PARTIES, THE AGENTS OR MICRO OR ANY OTHER OBLIGOR. MICRO AND EACH
OTHER OBLIGOR AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR
THIS PROVISION (AND EACH OTHER PROVISION OF THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT TO WHICH IS A PARTY.
SECTION 11.15 CONFIDENTIALITY. Each of the Lender Parties hereby
severally agrees with each Borrower that it will keep confidential all
information delivered to such Lender Party or on behalf of each Borrower or any
of their respective Subsidiaries which information is known by such Lender Party
to be proprietary in nature, concerns the terms and conditions of this Agreement
or any other Loan Document, or is clearly marked or labeled or otherwise
adequately identified when received by such Lender Party as being confidential
information (all such information, collectively for purposes of this section,
"confidential information"); provided that each Lender Party shall be permitted
to deliver or disclose "confidential information": (a) to directors, officers,
employees and affiliates; (b) to authorized agents, attorneys, auditors and
other professional advisors retained by such Lender Party that have been
apprised of such Lender Party's obligation under this Section 11.15 and have
agreed to hold confidential the foregoing
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information substantially in accordance with the terms of this Section 11.15;
(c) in connection with the prospective assignment or transfer of all or any part
of, or the sale of a participating interest in, such Lender Party's Credit
Extensions and Commitment, to any prospective Transferee Lender or Participant
that has been apprised of such Lender Party's obligation under this Section
11.15 has agreed to hold confidential the foregoing information in accordance
with the terms of this Section 11.15; (d) to any federal or state regulatory
authority having jurisdiction over such Lender Party; or (e) to any other Person
to which such delivery or disclosure may be necessary or appropriate (i) to
effect compliance with any law, rule, regulation or order applicable to such
Lender Party, (ii) in response to any subpoena or other legal process (provided
that the relevant Borrower shall be given notice of any such subpoena or other
legal process as soon as possible in any event prior to production (unless
provision of any such notice would result in a violation of any such subpoena or
other legal process), and the Lender Party receiving such subpoena or other
legal process shall cooperate with such Borrower, at such Borrower's expense,
seeking a protective order to prevent or limit such disclosure), or (iii) in
connection with any litigation to which such Lender Party is a party.
For purposes hereof, the term "confidential information" does not
include any information that: (A) was publicly known or otherwise known by any
Lender Party on a non-confidential basis from a source other than the relevant
Borrower prior to the time such information is delivered or disclosed to such
Lender Party by the relevant Borrower; (B) subsequently becomes publicly known
through no act or omission by any Lender Party or any Person acting on behalf of
any Lender Party; (C) otherwise becomes known to a Lender Party other than
through disclosure by the relevant Borrower (or any Subsidiary thereof) or
through someone subject, to such Lender Party's knowledge, to a duty of
confidentiality to the relevant Borrower; or (D) constitutes financial
statements that are otherwise publicly available.
SECTION 11.16 RELEASE OF SUBSIDIARY GUARANTORS AND ACCEDING BORROWERS.
(a) If (i) the Agents receive a certificate from the chief
executive officer, the chief financial officer, or Treasurer of Micro
certifying as of the date of that certificate that, after the
consummation of the transaction or series of transactions described in
such certificate (which certification shall also state that such
transactions, individually and in the aggregate, will be in compliance
with the terms and conditions of this Agreement, including, to the
extent applicable, the covenants contained in Sections 8.2.5, 8.2.6, and
8.2.9, and that no Default existed, exists, or will exist, as the case
may be, immediately before, as a result of, or after giving effect to
such transaction or transactions and the release or termination, as the
case may be, described below), the Guarantor or Acceding Borrower, as
the case may be, identified in such certificate will no longer be a
Subsidiary of Micro, and (ii) in the case of a Acceding Borrower, the
appropriate Lender Parties have received payment in full of all
principal of, interest on, reimbursement obligation in respect of, and
fees related to any Outstanding Credit Extensions made by any of them in
favor of such Acceding Borrower, then such Guarantor's Guaranty shall
automatically terminate or such Acceding Borrower shall automatically
cease to be a party to this Agreement and the other Loan Documents.
(b) No such termination or cessation shall release, reduce, or
otherwise adversely affect the obligations of any other Obligor under
this Agreement, any other
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Guaranty, or any other Loan Document, all of which obligations continue
to remain in full force and effect.
(c) Each Lender Party shall, at Micro's expense, execute such
documents as Micro may reasonably request to evidence such termination
or cessation, as the case may be.
SECTION 11.17 COLLATERAL. Each of the Lenders represents to the
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
REMAINDER OF PAGE INTENTIONALLY BLANK. THIS PAGE IS
FOLLOWED BY SIGNATURE PAGES FOR THE BORROWERS AS OF THE
DATE OF THIS AGREEMENT, FOLLOWED BY SEPARATE SIGNATURE
PAGES FOR THE AGENTS AND THE LENDERS.
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EXECUTED as of the date first stated in this Credit Agreement.
INGRAM MICRO INC., as an Initial INGRAM EUROPEAN COORDINATION
Borrower and a Guarantor CENTER N.V., as an Initial Borrower
By /s/ James F. Ricketts By /s/ Gregg Spierkel
--------------------------------- -------------------------------------
Name: James F. Ricketts Name: Gregg Spierkel
Title: Corporate Vice President Title: Director/Proxyholder
and Treasurer
ADDRESS: 1600 E. St. Andrew Place ADDRESS: Luchthavenlaan 25A
Santa Ana, CA 92705 Vilvoorde, Belgium 1800
FACSIMILE NO.: 714-566-9447 FACSIMILE NO.: 011-32-2-254-9612
ATTENTION: James F. Ricketts ATTENTION: Karel Everaet
One of Several Signature Pages to
Credit Agreement
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EXECUTED as of the date first stated in this Credit Agreement.
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
By /s/ Kemp Leonard
--------------------------------------
Name: Kemp Leonard
Title: Director
ADDRESS FOR NOTICES:
600 Peach Street, N.E., Suite 2700
Atlanta, Georgia 30308
FACSIMILE NO.: (404) 888-8998
ATTENTION: Hilma Gabbidon
ADDRESS FOR PAYMENT OF FEES:
600 Peach Street, N.E., Suite 2700
Atlanta, Georgia 30308
FACSIMILE NO.: (404) 888-8998
ATTENTION: Hilma Gabbidon
One of Several Signature Pages to
Credit Agreement
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EXECUTED as of the date first stated in this Credit Agreement.
ABN AMRO BANK N.V.,
as the Syndication Agent
By /s/ Maria Vickroy-Peralta
--------------------------------------
Name: Maria Vickroy-Peralta
Title: Senior Vice President and Head
By /s/ Peter Hsu
--------------------------------------
Name: Peter Hsu
Title: Vice President
One of Several Signature Pages to
Credit Agreement
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EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
23.3333% $35,000,000.00 THE BANK OF NOVA SCOTIA, as a Lender
By /s/ Kemp Leonard
--------------------------------------
Name: Kemp Leonard
Title: Director
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
Scotia House 600 Peach Street, N.E., Suite 2700
33 Finsbury Square Atlanta, Georgia 30308
London EC2A1BB England
FACSIMILE NO.: (011) 44-20-76-38-8488 FACSIMILE NO.: (404) 877-1558
ATTENTION: Loan Agency Services ATTENTION: Hilma Gabbidon
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
580 California Street 600 Peach Street, N.E., Suite 2700
San Francisco, California 94104 Atlanta, Georgia 30308
FACSIMILE NO.: (415) 397-0791 FACSIMILE NO.: (404) 877-1558
ATTENTION: Kemp Leonard ATTENTION: Hilma Gabbidon
One of Several Signature Pages to
Credit Agreement
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EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
23.3333% $35,000,000.00 ABN AMRO BANK N.V., as a Lender
By /s/ Maria Vickroy-Peralta
--------------------------------------
Name: Maria Vickroy-Peralta
Title: Senior Vice President and Head
By /s/ Peter Hsu
--------------------------------------
Name: Peter Hsu
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
Regentlaan 53, B 1000 Brussels Regentlaan 53, B 1000 Brussels
FACSIMILE NO.: 32-2-546-0402 FACSIMILE NO.: 32-2-546-0402
TELEPHONE NO.: 32-2-546-0346 TELEPHONE NO.: 32-2-546-0579
ATTENTION: Geert De Greef ATTENTION: Nathalie Dumont
with a copy to:
ABN AMRO Bank, N.V.
101 California Street, Suite 4500
San Francisco, CA 94111
Attention: Mathew Harvey
Telephone: 415-984-3733
Fax: 415-362-3524
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
ABN AMRO Bank, N.V. Regentlaan 53, B 1000 Brussels
208 South LaSalle, Suite 1500
Chicago, IL 60604-1003
FACSIMILE NO.: (312) 992-5157 FACSIMILE NO.: 32-2-546-0402
TELEPHONE NO.: (312) 992-5166 TELEPHONE NO.: 32-2-546-0346
ATTENTION: Jeannette Rodriguez ATTENTION: Geert De Greef
One of Several Signature Pages to
Credit Agreement
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EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
16.6666% $25,000,000.00 FLEET NATIONAL BANK, as a Lender
By /s/ Kevin C. Scheipe
--------------------------------------
Name: Kevin C. Scheipe
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
100 Federal Street 100 Federal Street
Boston, Massachusetts 02110 Boston, Massachusetts 02110
FACSIMILE NO.: (617) 434-1709 FACSIMILE NO.: (650) 853-1425
ATTENTION: Angela Moore ATTENTION: K.C. Scheipe
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
100 Federal Street 100 Federal Street
Boston, Massachusetts 02110 Boston, Massachusetts 02110
FACSIMILE NO.: (617) 434-1709 FACSIMILE NO.: (617) 434-1709
ATTENTION: Angela Moore ATTENTION: Angela Moore
One of Several Signature Pages to
Credit Agreement
-89-
EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
16.6666% $25,000,000.00 KEY CORPORATE CAPITAL, INC., as a Lender
By /s/ Julien Michaels
-----------------------------------------
Name: Julien Michaels
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES FOR DOLLAR-DENOMINATED
REVOLVING LOANS:
431 East Parkcenter Boulevard 431 East Parkcenter Boulevard
Boise, Idaho 83706 Boise, Idaho 83706
FACSIMILE NO.: (800) 297-5495 FACSIMILE NO.: (800) 297-5495
ATTENTION: Specialty Services Team ATTENTION: Specialty Services Team
ADDRESS FOR NOTICES FOR NON
DOLLAR-DENOMINATED REVOLVING LOANS:
KeyBank National Association
OH-01-27-0417
127 Public Square
Cleveland, Ohio 44114
FACSIMILE NO.: (216) 689-0255
ATTENTION: Beth Ballard, Foreign Exchange
Dept.
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
431 East Parkcenter Boulevard 431 East Parkcenter Boulevard
Boise, Idaho 83706 Boise, Idaho 83706
FACSIMILE NO.: (800) 297-5495 FACSIMILE NO.: (800) 297-5495
ATTENTION: Specialty Services Team ATTENTION: Specialty Services Team
One of Several Signature Pages to
Credit Agreement
-90-
EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
10.0000% $15,000,000.00 MORGAN STANLEY BANK, as a Lender
By /s/ Jaap L. Tonckens
--------------------------------------
Name: Jaap L. Tonckens
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
1633 Broadway -- 25th Floor 1633 Broadway -- 25th Floor
New York, NY 10019 New York, NY 10019
FACSIMILE NO.: (212) 537-1867 FACSIMILE NO.: (212) 537-1867
ATTENTION: Larry Benison ATTENTION: Larry Benison
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
1633 Broadway -- 25th Floor 1633 Broadway -- 25th Floor
New York, NY 10019 New York, NY 10019
FACSIMILE NO.: (212) 537-1867 FACSIMILE NO.: (212) 537-1867
ATTENTION: Larry Benison ATTENTION: Larry Benison
One of Several Signature Pages to
Credit Agreement
-91-
EXECUTED as of the date first stated in this Credit Agreement.
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
---------- --------------
10.0000% $15,000,000.00 UNION BANK OF CALIFORNIA, N.A., as a Lender
By /s/ James Heim
--------------------------------------
Name: James Heim
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
601 Potrero Grande 18300 Von Karman, Suite 310
Monterey Park, California 91754 Irvine, California 92612
FACSIMILE NO.: (323) 724-6198 FACSIMILE NO.: (949) 553-7122
ATTENTION: Shirley Davis, ATTENTION: James Heim
Note Operations
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES:
601 Potrero Grande 601 Potrero Grande
Monterey Park, California 91754 Monterey Park, California 91754
FACSIMILE NO.: (323) 724-6198 FACSIMILE NO.: (323) 724-6198
ATTENTION: Shirley Davis, ATTENTION: Shirley Davis,
Note Operations Note Operations
One of Several Signature Pages to
Credit Agreement
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