EXHIBIT 10.82
EXECUTION COPY
U.S. $300,000,000
CREDIT AGREEMENT
Dated as of June 28, 1996, among
SUN MICROSYSTEMS, INC.
as Borrower
and
THE LENDERS NAMED HEREIN
as Lenders
and
CITICORP USA, INC.
as Administrative Agent
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ....................................... 1
SECTION 1.02. Computation of Time Periods ................................. 11
SECTION 1.03. Accounting Terms ............................................ 11
SECTION 1.04. Application of Level Pricing ................................ 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances .............................................. 12
SECTION 2.02. Making the A Advances ....................................... 12
SECTION 2.03. The B Advances .............................................. 14
SECTION 2.04. Fees ........................................................ 17
SECTION 2.05. Termination, Reduction or Increase of the Commitments ....... 17
SECTION 2.06. Repayment of A Advances ..................................... 20
SECTION 2.07. Interest on A Advances ...................................... 20
SECTION 2.08. Notes ....................................................... 21
SECTION 2.09. Interest Rate Determination ................................. 21
SECTION 2.10. Sharing of Payments, Etc .................................... 21
SECTION 2.11. Prepayments of A Advances ................................... 22
SECTION 2.12. Increased Costs ............................................. 22
SECTION 2.13. Illegality .................................................. 23
SECTION 2.14. Payments and Computations ................................... 24
SECTION 2.15. Taxes ....................................................... 25
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances ..................... 27
SECTION 3.02. Conditions Precedent to Each A Borrowing .................... 28
SECTION 3.03. Conditions Precedent to Each B Borrowing .................... 28
i
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower .............. 29
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants ....................................... 33
SECTION 5.02. Negative Covenants .......................................... 38
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ........................................... 44
SECTION 6.02. Mandatory Prepayment; Event of Early Termination ............ 46
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action .................................... 47
SECTION 7.02. Agent's Reliance, Etc ....................................... 47
SECTION 7.03. CUSA and Affiliates ......................................... 47
SECTION 7.04. Lender Credit Decision ...................................... 48
SECTION 7.05. Indemnification ............................................. 48
SECTION 7.06. Successor Agent ............................................. 48
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments Etc .............................................. 49
SECTION 8.02. Notices Payments, Etc ....................................... 49
SECTION 8.03. No Waiver; Remedies ......................................... 50
SECTION 8.04. Costs and Expenses .......................................... 50
SECTION 8.05. Right of Set-off ............................................ 52
ii
SECTION 8.06. Binding Effect .............................................. 53
SECTION 8.07. Assignments and Participations .............................. 53
SECTION 8.08. Governing Law ............................................... 55
SECTION 8.09. Headings .................................................... 56
SECTION 8.10. Commitment Extension ........................................ 56
SECTION 8.11. Execution in Counterparts ................................... 56
SECTION 8.12. Confidentiality ............................................. 56
SECTION 8.13. Termination ................................................. 57
SECTION 8.14. Jurisdiction, Etc ........................................... 57
SECTION 8.15. WAIVER OF JURY TRIAL ........................................ 58
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SCHEDULES
SCHEDULE I
EXHIBITS
EXHIBIT A-1 FORM OF A NOTE
EXHIBIT A-2 FORM OF B NOTE
EXHIBIT B-1 NOTICE OF A BORROWING
EXHIBIT B-2 NOTICE OF B BORROWING
EXHIBIT C ASSIGNMENT AND ACCEPTANCE
EXHIBIT D ASSUMPTION AGREEMENT
EXHIBIT E OPINION OF WILSON, SONSINI, GOODRICH & ROSATI
EXHIBIT F COVENANT COMPLIANCE CERTIFICATE
EXHIBIT G LIENS
EXHIBIT H SUBSIDIARIES
EXHIBIT I RESPONSIBLE OFFICERS
iv
CREDIT AGREEMENT
Dated as of June 28, 1996
SUN MICROSYSTEMS, INC., a Delaware corporation (the
"Borrower"), the Lenders listed on the signature pages hereof, and CITICORP USA,
INC., a Delaware corporation ("CUSA"), as administrative agent (the "Agent") for
the Lenders hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Lender to the Borrower as
part of an A Borrowing and refers to an Alternate Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the A Advances made by such Lender.
"Adjusted EBIT" means, for any accounting period, net income
(or net loss) plus the amounts (if any) which, in the determination of net
income (or net loss) for such period, have been deducted for (a) gross interest
expense, (b) income tax expense and (c) rent expense under leases of real and
personal property (excluding, however, from the determination of such rent
expense, taxes and normal and customary operating expenses passed on to the
Borrower for reimbursement pursuant to the terms of such real property leases
whether denominated under such leases as "rent", "additional rent" or otherwise,
but only to the extent that such operating expenses are actually incurred and
passed through to the Borrower), in each case determined in accordance with
generally accepted accounting principles, consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e).
"Advance" means an A Advance or a B Advance.
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"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person.
"Alternate Base Rate" means, for any period (including a
period consisting of a single day), a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as Citibank's base
rate; or
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such date is not a
Business Day, on the next succeeding Business Day) for the three-week
period ending on the previous Friday by the Agent on the basis of such
rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by the Agent from three New York certificate of deposit
dealers of recognized standing selected by the Agent, in either case
adjusted to the nearest 1/16 of one percent or, if there is no nearest
1/16 of one percent, to the next higher 1/16 of one percent; or
(c) for any day, 1/2 of one percent per annum above
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Alternate Base Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(a).
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of an Alternate Base
Rate Advance, and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a B Advance, the office of such
Lender notified by such Lender to the Agent as its Applicable Lending Office
with respect to such B Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee reasonably acceptable to the Agent and
reasonably consented to by the Borrower, in substantially the form of Exhibit C
hereto.
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"Assuming Lender" means an assignee reasonably acceptable to
the Agent not previously a Lender that becomes a Lender hereunder pursuant to
Section 2.05(b).
"B Advance" means an advance by a Lender to the Borrower as
part of a B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of B Advances made
at or about the same time by each of the Lenders whose offer to make one or more
B Advances as part of such borrowing has been accepted by the Borrower under the
auction bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a B
Advance made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year other than a Saturday,
Sunday or other day on which banks are not required or authorized to close in
New York City or San Francisco, California and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London, England interbank market.
"Change of Control Event" means the occurrence of the
following: (i) any corporation or Person, or a group of related corporations or
Persons, shall acquire (a) beneficial ownership in excess of 50% of the
outstanding Voting Stock of the Borrower or (b) all or substantially all of the
assets of the Borrower, or (ii) a majority of the Board of Directors of the
Borrower is, at any time, composed of persons other than (a) persons who were
members of such Board on the date of this Agreement, (b) successors to such
persons elected or nominated in the ordinary course of business, and (c) any
person who has served as a member of such Board for at least the prior 12
months.
"Citibank" means Citibank, N.A., a national banking
association.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
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"Commitment" has the meaning specified in Section 2.01.
"consolidated" refers to the consolidation of the accounts of
the Borrower and its Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation, consistent with
those applied in the preparation of the consolidated financial statements
referred to in Section 4.01(e).
"Consolidated Tangible Net Worth" means the excess of
consolidated total assets over consolidated total liabilities, consolidated
total assets and consolidated total liabilities each to be determined on a
consolidated basis for the Borrower in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e), excluding, however, from
the determination of consolidated total assets (i) goodwill, organizational
expenses, research and development expenses, trademarks, trade names,
copyrights, patents, patent applications, licenses and rights in any thereof,
and other similar intangibles, (ii) all unamortized debt discount and expense,
(iii) asset, liability, contingency and other appropriate reserves, including
reserves for depreciation and for deferred income taxes, (iv) treasury stock,
(v) any write-up in the book value of any asset resulting from a revaluation
thereof subsequent to June 30, 1995, (vi) the book value of investments in
Persons that are not Subsidiaries (unless the same are readily marketable), and
(vii) any items not included in clauses (i) through (vi) above which are treated
as intangibles in conformity with generally accepted accounting principles.
"Debt" of any Person means (i) indebtedness for borrowed
money, (ii) obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of property or
services (excluding ordinary trade payables incurred in the ordinary course of
business), (iv) obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases, (v) 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, (vi) any reimbursement obligations
of such Person to the issuer of a letter of credit or similar instrument, (vii)
all indebtedness or obligations of others secured by a lien on any asset of such
Person, whether or not such indebtedness or obligations are assumed by such
Person (to the extent of the value of the asset), (viii) any reimbursement
obligation of such Person or other arrangement of whatever nature having the
effect of assuring or holding harmless any other Person against loss with
respect to any real property owned by such other Person, including, without
limitation, assuring or guaranteeing that such other Person shall receive a
specified amount in connection with the conveyance of such real property, (ix)
obligations under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (viii) above, and (x)
liabilities in respect of unfunded vested
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benefits under plans covered by Title IV of ERISA. Notwithstanding any provision
herein to the contrary, no obligations of any Person (whether such obligations
be direct or indirect, contingent or otherwise) under the Receivables Purchase
Agreement or any similar agreement or arrangement shall be "Debt" for purposes
of this Agreement; provided that the foregoing exclusion shall not apply to
obligations of any such Person pursuant to the indemnity or reimbursement
provisions contained in the Receivables Purchase Agreement (including, without
limitation, indemnities for breaches of representations and warranties, and
those set forth in Article VIII, Section 9.03(b) and Section 10.06 thereof) or
any similar agreement or arrangement and to fees and expenses payable pursuant
to the Receivables Purchase Agreement or any similar agreement or arrangement to
the extent that any such obligations are required to be recorded as liabilities
on such Person's balance sheet under generally accepted accounting principles.
"Default" means any event which, with the passage of time or
the giving of notice or both, would (if not cured within any applicable cure
period) constitute an Event of Default.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender, or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment, or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the Code, and
the regulations promulgated and rulings issued thereunder.
6
"ERISA Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations promulgated thereunder
(other than a Reportable Event not subject to the provision for 30 day notice to
the Pension Benefit Guaranty Corporation under such regulations), or (ii) the
withdrawal of the Borrower or any Subsidiary from a Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a) (2) of
ERISA, or (iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section 4041 of ERISA or
(iv) the institution of proceedings to terminate a Plan by the Pension Benefit
Guaranty Corporation under Section 4042 of ERISA, or (v) any other event or
condition which would constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"Eurodollar Margin" means, on any day, with respect to any
Eurodollar Rate Advance made or outstanding on such day, an interest rate per
annum equal at all times to (i) .170% for each day during a Level I Period; (ii)
.205% for each day during a Level II Period; (iii) .240% for each day during a
Level III Period; (iv) .300% for each day during a Level IV Period; and (v)
.375% for each day during a Level V Period.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, an interest
rate per annum determined by the Agent to be (a) the arithmetic mean (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such arithmetic
mean is not such a multiple) of the rates notified to the Agent at which
deposits in U.S. dollars are offered by the principal office of each of the
Eurodollar Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to the respective
Eurodollar Reference Bank's (or its Affiliate's) Eurodollar Rate Advance
comprising part of such A Borrowing and for a period equal to such Interest
Period, divided by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage (as defined below) for such Interest Period. The "Eurodollar
Rate Reserve Percentage" for the Interest Period for each Eurodollar Rate
Advance comprising part of the same A Borrowing means the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from
7
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with deposits
exceeding One Billion Dollars with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other category
of liabilities which includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Eurodollar Rate Advance" means an A Advance which bears
interest as provided in Section 2.07(b).
"Eurodollar Reference Banks" means the principal London
offices of Citibank, Bank of America National Trust and Savings Association and
ABN AMRO Bank N.V. and each such other bank as may be approved pursuant to
Section 8.07(i).
"Events of Default" has the meaning specified in Section 6.01.
"Excess Interest in Receivables" means the extent to which (i)
any ownership interest, security interest or other interest of any third party
in the accounts receivable of the Borrower and its Subsidiaries, exceeds (ii)
the aggregate amount advanced by such third party in respect of the purchase of
such interest (net of amounts received by such third party from the collection
of such accounts receivable).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charges" means, for any accounting period, the sum,
without duplication, of (i) gross interest expense during such period, plus (ii)
scheduled amortization of principal in respect of all Debt during such period
(but excluding any required principal payment in respect of any obligation that
is a "bullet" payment, i.e., the entire amount thereof is due in full at
maturity without any amortizing payments prior to said maturity), plus (iii)
amortization of debt discount (but excluding from this clause (iii) and clause
(i) above noncash amortization of debt discount if the maturity of the
obligation so discounted is no earlier than December 31, 1998 pursuant to the
terms and conditions of the instruments and agreements creating such debt
discount), plus (iv) rent expense under leases of real and personal property
during such period (excluding, however, from the determination of such
8
rent expense, taxes and normal and customary operating expenses passed on to the
Borrower for reimbursement pursuant to the terms of such real property leases
whether denominated under such leases as "rent", "additional rent" or otherwise,
but only to the extent that such operating expenses are actually incurred and
passed through to the Borrower).
"Interest Period" means, for each A Advance comprising part of
the same A Borrowing, the period commencing on the date of such A Advance and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be (a) 30, 60,
90 or 180 days in the case of an Alternate Base Rate Advance, and (b) 1, 2, 3 or
6 months in the case of a Eurodollar Rate Advance, in each case as the Borrower
may, upon notice received by the Agent ln accordance with Section 2.02, select;
provided, however, that:
(i) the Borrower may not select any Interest Period which ends
after the then existing Termination Date;
(ii) Interest Periods commencing on the same date for A
Advances comprising part of the same A Borrowing shall be of the same duration;
and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
provided, in the case of any Interest Period for a Eurodollar Rate Advance, that
if such extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day.
"Lenders" means the lenders listed on the signature pages
hereof and each assignee that shall become a party hereto pursuant to Sections
8.07(a) or (b).
"Level I Period" means a period of time, which may consist of
a single day, during which the Public Debt Rating is (i) A- or better by S&P or
(ii) A3 or better by Moody's.
"Level II Period" means a period of time other than a Level I
Period, which may consist of a single day, during which the Public Debt Rating
is (i) BBB+ or better by S&P or (ii) Baa1 or better by Moody's.
"Level III Period" means a period of time other than a Level I
Period or a Level II Period, which may consist of a single day, during which the
Public Debt Rating is (i) BBB or better by S&P or (ii) Baa2 or better by
Moody's.
9
"Level IV Period" means a period of time other than a Level I
Period, a Level II Period or a Level III Period, which may consist of a single
day, during which the Public Debt Rating is (i) BBB- or better by S&P, or (ii)
Baa3 or better by Moody's.
"Level V Period" means a period of time, which may consist of
a single day, during which the Public Debt Rating is (i) lower than BBB- by S&P
and lower than Baa3 by Moody's (or lower than the level indicated for either S&P
or Moody's if unrated by the other), or (ii) no Public Debt Rating is available
for whatever reason.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction).
Customary bankers' rights of set-off arising by operation of law or by contract
in connection with working capital facilities, lines of credit, term loans and
letter of credit facilities and other contractual arrangements entered into with
banks in the ordinary course of business are not "Liens" for the purposes of
this Agreement.
"Majority Lenders" means at any time Lenders holding at least
51% of the then aggregate unpaid principal amount of the A Advances then
outstanding or, if no such principal amount is then outstanding, then either (i)
if the Commitments have not been terminated or there are no B Advances
outstanding, Lenders having at least 51% of the Commitments, or (ii) if the
Commitments have been terminated and there are B Advances outstanding, Lenders
holding at least 51% of the then aggregate unpaid principal amount of the B
Advances then outstanding.
"Moody's" means Moody's Investors Service, Inc., or its
successors.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means at any time an employee pension benefit plan
which is covered under Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by the
Borrower or any Subsidiary for employees of the Borrower or any Subsidiary or
(ii) maintained pursuant to a collective bargaining agreement
10
or any other arrangement under which more than one employer makes contributions
and to which the Borrower or any Subsidiary is then making or accruing an
obligation to make contributions or has within the preceding five plan years
made contributions.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced (and is then in effect) by S&P and Moody's
for any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower or, if the Borrower has no such debt issued, the lowest "implied
rating" (or similar rating in effect from time to time) that has been most
recently stated in writing (and is then in effect) by S&P and Moody's for
non-credit enhanced long-term senior unsecured debt of the Borrower. For
purposes of the foregoing, (a) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the date on which such change
is first announced publicly by the rating agency making such change; and (b) if
S&P or Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the case may
be, shall refer to the then equivalent rating by S&P or Moody's, as the case may
be.
"Receivables Purchase Agreement" means that certain
Receivables Purchase Agreement dated as of August 5, 1994, among the Borrower,
the Subsidiary Sellers as identified and defined therein, the Purchasers as
identified and defined therein and J.P. Morgan Delaware, as agent, as in effect
on the date hereof (a copy of which has been furnished to each Lender listed on
the signature pages hereof pursuant to Section 3.01), without giving effect to
any subsequent amendments or waivers (other than any such amendments or waivers
which add new Subsidiary Sellers as parties to such agreement or which remove
any Subsidiary Seller as a party), unless such amendment or waiver has been
consented to by the Majority Lenders.
"Register" has the meaning specified in Section 8.07(c).
"Responsible Financial Officer" means the chief financial
officer, the controller, the treasurer or any assistant treasurer of the
Borrower.
"Responsible Officer" means the individuals occupying the
executive offices of the Borrower described in Exhibit I hereto and any
successors to the offices held by the individuals identified therein, and the
individuals occupying any other executive offices of the Borrower which at any
time have the authority, functions and responsibilities as the offices described
in Exhibit I.
"Restricted Subsidiary" means, at any point in time, any
Subsidiary having total assets of $100,000 or more as of the end of its most
recent fiscal year or annual gross revenues of $1,000,000 or more during its
most recent fiscal year.
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"S&P" means Standard and Poor's Ratings Group, or its
successors.
"Subsidiary" means any corporation of which the Borrower
and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares as have more than 50% of the ordinary voting power for the
election of directors.
"Termination Date" means June 27, 1999 or such later date as
determined pursuant to Section 8.10, or the earlier date of termination in whole
of the Commitments pursuant to Section 2.05 or 6.01.
"Transfer" means, with respect to any asset, to sell, lease,
transfer or otherwise dispose of such asset.
"Voting Stock" of any Person means any shares of stock of such
Person whose holders are entitled under ordinary circumstances to vote for the
election of directors of such Person (irrespective of whether at the time stock
of any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
"wholly owned Subsidiary" means any Subsidiary all of the
outstanding capital stock (other than directors' qualifying shares and shares
issued to satisfy local ownership requirements) of which is owned, directly or
indirectly, by the Borrower.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e).
SECTION 1.04. Application of Level Pricing. For purposes of
applying the Level pricing formula in the definition of "Eurodollar Margin" and
in Section 2.04(a), (a) if only one of S&P and Moody's shall have in effect a
Public Debt Rating, the applicable Level shall be determined by reference to the
available rating and (b) if the Public Debt Ratings established by S&P and
Moody's shall fall within different Levels, the applicable Level shall be based
upon the higher rating; provided that, if the lower of such ratings is more than
one level below the higher of such ratings, the applicable Level shall be based
on the level immediately above such lower rating.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to the
Borrower from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount not to exceed at any
time the amount set forth opposite such Lender's name on the signature pages
hereof or, if such Lender has entered into any Assignment and Acceptance, set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"); provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being a "B Reduction"). Each A Borrowing shall be in
an aggregate amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, with respect to an A Borrowing comprised of
Alternate Base Rate Advances, such lesser amount as shall equal the then
unborrowed amount of the aggregate Commitments), and shall consist of A Advances
of the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to Section 2.11(b) and
reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than 11:00 A.M. (New York City time) on
(x) the date of a proposed A Borrowing comprised of Alternate Base Rate
Advances, and (y) the third Business Day prior to the date of a proposed A
Borrowing comprised of Eurodollar Rate Advances, by the Borrower to the Agent,
which shall give to each Lender prompt notice thereof (and in any event not
later than the same day) by telecopier or telex. Each such notice of an A
Borrowing (a "Notice of A Borrowing") shall be by telecopier or telex, confirmed
immediately in writing, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such A Borrowing, (ii) Type of A
Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) Interest Period for each such A Advance. Each Lender shall,
before 12:00 Noon (New York City time) on the date of such A Borrowing, make
available for the account of its Applicable Lending Office to the Agent at its
address referred to in Section 8.02(b), in same day funds, such Lender's ratable
portion of such A Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the Agent
will make such funds available to the Borrower at the Agent's aforesaid address.
13
(b) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrower. In the case of any A Borrowing which the related Notice
of A Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the A Advance to be made by such Lender as part of such A
Borrowing when such A Advance, as a result of such failure, is not made on such
date.
(c) Unless the Agent shall have received notice from a Lender
prior to the date of any A Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such A Borrowing, the Agent may
assume that such Lender has made such portion available to the Agent on the date
of such A Borrowing in accordance with subsection (a) of this Section 2.02 and
the Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's A Advance as part of such A Borrowing for purposes of this Agreement,
and the interest payable thereon shall be allocated such that the Agent shall
receive (from a combination of the sum, if any, paid to the Agent by such Lender
pursuant to clause (ii) of the preceding sentence and any interest payment made
by the Borrower) an amount equal to interest on such A Advance at the interest
rate applicable thereto from the date the corresponding amount was made
available by the Agent to the Borrower as contemplated by this Section 2.02(c)
to and including the date such amount is repaid to the Agent by such Lender, and
such Lender shall receive the balance of the interest payments made by the
Borrower with respect to such Advance in accordance with the provisions of this
Agreement.
(d) The failure of any Lender to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the A Advance to be made by such other Lender on the date of any
A Borrowing.
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SECTION 2.03. The B Advances. (a) Each Lender severally agrees
that the Borrower may make B Borrowings under this Section 2.03 from time to
time on any Business Day during the period from the date hereof until the date
occurring 30 days prior to the Termination Date in the manner set forth below;
provided that, following the making of each B Borrowing, the aggregate amount of
the Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any B Reduction).
(i) The Borrower may request a B Borrowing under this Section
2.03 by delivering to the Agent, by telecopier or telex, confirmed immediately
in writing, a notice of a B Borrowing (a "Notice of B Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying the date and aggregate
amount of the proposed B Borrowing, the maturity date for repayment of each B
Advance to be made as part of such B Borrowing (which maturity date (x) may not
be earlier than the date occurring seven days after the date of such B Borrowing
or later than 180 days after the date of such B Borrowing or the Termination
Date, whichever occurs first, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Lenders shall be fixed
rates per annum, or (y) shall be 1, 2, 3, 4, 5 or 6 months after the date of
such B Borrowing (but in no event later than the Termination Date) if the
Borrower shall instead specify in the Notice of B Borrowing the basis to be used
by the Lenders in determining the rates of interest to be offered by them), the
interest payment date or dates relating thereto, whether the proposed B
Borrowing shall bear interest at a fixed or fluctuating rate per annum and, if a
fluctuating rate is so specified, the basis to be used by the Lenders in
determining the rate of interest to be offered by them, and any other terms to
be applicable to such B Borrowing, not later than 11:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing that the
rates of interest to be offered by the Lenders shall be fixed rates per annum
and (B) at least four Business Days prior to the date of the proposed B
Borrowing, if the Borrower shall instead specify in the Notice of B Borrowing
the basis to be used by the Lenders in determining the rates of interest to be
offered by them. The Agent shall in turn promptly notify each Lender of each
request for a B Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more B Advances to the Borrower as part
of such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Borrower) before 10:00 A.M. (New York City time) (A) on
the date of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (A) of paragraph (i) above and (B) three Business
Days before the date of such proposed B Borrowing, in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i) above, of the
minimum amount and maximum amount of each B Advance which such Lender would be
willing to make as
15
part of such proposed B Borrowing (which amounts may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such Lender's Commitment),
the rate or rates of interest therefor and such Lender's Applicable Lending
Office with respect to such B Advance; provided that if the Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:00 A.M. (New York
City time) on the date on which notice of such election is to be given to the
Agent by the other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent, before 10:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and shall not, make
any B Advance as part of such B Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M. (New
York City time) on the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (A) of paragraph (i) above
and (B) before 12:00 Noon (New York City time) three Business Days before the
date of such proposed B Borrowing, in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, either
(x) cancel such B Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each B Advance (which amount shall
be equal to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on behalf of such Lender
for such B Advance pursuant to paragraph (ii) above) to be made by each Lender
as part of such B Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Agent notice to that effect;
provided that acceptance of offers may only be made on the basis of ascending
interest rates specified by the Lenders pursuant to paragraph (ii) above.
(iv) If the Borrower notifies the Agent that such B Borrowing
is cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such B Borrowing shall not be made.
(v) If offers are made by two or more Lenders with the same
specified rate of interest for a greater aggregate principal amount than the
amount in respect of which offers are accepted for any B Borrowing, the
principal amount of B Advances in respect of which such offers are accepted
shall be allocated by the Agent among such Lenders as nearly as possible (in
such multiples of $1,000,000 as the Agent may deem appropriate) in
16
proportion to the aggregate principal amount of such offers. Determinations by
the Agent of the amounts of B Advances shall be conclusive in the absence of
manifest error.
(vi) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such B Borrowing and
whether or not any offer or offers made by such Lender pursuant to paragraph
(ii) above have been accepted by the Borrower, and (B) each Lender that is to
make a B Advance as part of such B Borrowing, of the amount of each B Advance to
be made by such Lender as part of such B Borrowing. Each Lender that is to make
a B Advance as part of such B Borrowing shall, before 12:00 noon (New York City
time) on the date of such B Borrowing specified in the notice received from the
Agent pursuant to clause (A) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Agent at its address referred to
in Section 8.02(b) such Lenders portion of such B Borrowing, in same day funds.
Upon satisfaction of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such funds
available to the Borrower at the Agent's aforesaid address. Promptly after each
B Borrowing the Agent will notify each Lender of the amount of the B Borrowing,
the consequent B Reduction and the dates upon which such B Reduction commenced
and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not less
than $10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the Borrower shall be in compliance
with the limitation set forth in the proviso to the first sentence of subsection
(a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03; provided that a B Borrowing shall not be made within two Business
Days of the date of any other B Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender which has made a B Advance, or each other holder of a B Note, on the
maturity date of each B Advance (such maturity date being that specified by the
Borrower for repayment of such B Advance in the related Notice of B Borrowing
delivered pursuant to subsection (a)(i) above), the then unpaid principal amount
of such B Advance. The Borrower shall have no right to prepay any principal
amount of any B Advance unless, and then only on the terms, specified by the
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above; provided that the Borrower shall be
obligated to reimburse each Lender whose B Advance has been prepaid by the
Borrower in respect thereof pursuant to Section 8.04(b).
17
(e) The Borrower shall pay interest on the unpaid principal
amount of each B Advance from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of interest
for such B Advance specified by the Lender making such B Advance in its notice
with respect thereto delivered pursuant to subsection (a)(ii) above, payable on
the maturity date specified by the Borrower for such B Advance and on each other
interest payment date or dates specified by the Borrower for such B Advance in
the related Notice of B Borrowing delivered pursuant to subsection (a)(i) above;
provided, however, that if the maturity date of the B Advances comprising a B
Borrowing is more than 90 days after the date of such B Borrowing, then interest
shall be payable on each day which occurs at intervals of 90 days after the date
of such B Borrowing; provided, further, that any amount of principal which is
not paid when due (whether at stated maturity, by acceleration or otherwise)
shall bear interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal at all times (i)
from such due date to the applicable maturity date, to 2% per annum above the
interest rate otherwise payable with respect to such B Advance hereunder, and
(ii) from and after the applicable maturity date, to 2% per annum above the
Alternate Base Rate in effect from time to time.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent, for the account of each Lender, a facility fee on the daily
average amount of such Lender's Commitment (including both the portion thereof
that is used and the portion thereof that is unused) from the date hereof in the
case of each Lender listed on the signature pages hereof and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable in
arrears on the last day of each March, June, September and December during the
term of such Lender's Commitment, commencing June 30, 1996, and on the
Termination Date, at the rate of (i) .080% per annum during each Level I Period,
(ii) .095% per annum during each Level II Period, (iii) .110% per annum during
each Level III Period, (iv) .150% per annum during each Level IV Period and (v)
.250% per annum during each Level V Period.
(b) Agent's Fees. The Borrower agrees to pay to the Agent
certain fees for its role hereunder and in connection with the execution and
delivery hereof in the amounts and at the times described in one or more letter
agreements between the Borrower and the Agent dated on or about the date hereof,
as the same may be amended, modified, supplemented or replaced from time to time
by the mutual agreement of the Borrower and the Agent. All such fees shall be
for the sole account and benefit of the Agent.
SECTION 2.05. Termination, Reduction or Increase of the
Commitments. (a) Termination or Reduction of the Commitments. The Borrower shall
have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or reduce ratably in
18
part the unused portions of the respective Commitments of the Lenders; provided
that the aggregate amount of the Commitments of the Lenders shall not be reduced
to an amount which is less than the aggregate principal amount of the B Advances
then outstanding; provided further that each partial reduction shall be in the
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) Increase in Aggregate of the Commitments. (i) The Borrower
may at any time, by notice to the Agent, propose that the aggregate amount of
the Commitments be increased (such incremental increased amount being, a
"Commitment Increase"), effective as at a date prior to the Termination Date (an
"Increase Date") as to which agreement is to be reached by an earlier date
specified in such notice (a "Commitment Date"); provided, however, that (A) the
Borrower may not propose more than two Commitment Increases in any 12-month
period, (B) the minimum proposed Commitment Increase per notice shall be
$25,000,000, (C) in no event shall the aggregate amount of the Commitments at
any time exceed $450,000,000, (D) the Borrower has a Public Debt Rating from S&P
or Moody's of better than or equal to BBB- or Baa3, respectively, but if the
Borrower has a Public Debt Rating from both S&P and Moody's, the Public Debt
Rating of the Borrower is better than or equal to BBB- and Baa3, respectively,
(E) no Default shall have occurred and be continuing on such Increase Date and
(F) a certificate as to corporate authorization and other documentation similar
to that delivered pursuant to Section 3.01 is received by the Agent. The Agent
shall notify the Lenders thereof promptly upon its receipt of any such notice.
The Agent agrees that it will cooperate with the Borrower in discussions with
the Lenders and other assignees with a view to arranging the proposed Commitment
Increase through the increase of the Commitments of one or more of the Lenders
(each such Lender that is willing to increase its Commitment hereunder being an
"Increasing Lender") and the addition of one or more other assignees as Assuming
Lenders and as parties to this Agreement; provided, however, that it shall be in
each Lender's sole discretion whether to increase its Commitment hereunder in
connection with the proposed Commitment Increase; and provided further that the
minimum Commitment of each such Assuming Lender that becomes a party to this
Agreement pursuant to this Section 2.05(b), shall be at least equal to
$15,000,000. If any of the Lenders agree to increase their respective
Commitments by an aggregate amount in excess of the proposed Commitment
Increase, the proposed Commitment Increase shall be allocated among such Lenders
as determined at such time by the Borrower. If agreement is reached on or prior
to the applicable Commitment Date with any Increasing Lenders and Assuming
Lenders as to a Commitment Increase (which may be less than but not greater than
specified in the applicable notice from the Borrower), such agreement to be
evidenced by a notice in reasonable detail from the Borrower to the Agent on or
prior to the applicable Commitment Date, such Assuming Lenders, if any, shall
become Lenders hereunder as of the applicable Increase Date and the Commitments
of such Increasing Lenders and such Assuming Lenders shall become or be, as the
case may be, as of the Increase Date, the amounts specified in such notice;
provided that:
19
(x) the Agent shall have received (with copies for
each Lender, including each such Assuming Lender) by no later than
10:00 A.M. (New York City time) on the applicable Increase Date a copy
certified by the Secretary, an Assistant Secretary or a comparable
officer of the Borrower, of the resolutions adopted by the Board of
Directors of the Borrower authorizing such Commitment Increase, which
resolutions shall be satisfactory to the Agent;
(y) each such Assuming Lender shall have delivered to
the Agent by no later than 10:00 A.M. (New York City time) on such
Increase Date, an appropriate Assumption Agreement in substantially the
form of Exhibit D hereto, duly executed by such Assuming Lender and the
Borrower; and
(z) each such Increasing Lender shall have delivered
to the Agent by no later than 10:00 A.M. (New York City time) on such
Increase Date (A) its existing A Note and (B) confirmation in writing
satisfactory to the Agent as to its increased Commitment.
(ii) In the event that the Agent shall have received notice
from the Borrower as to its agreement to a Commitment Increase on or prior to
the applicable Commitment Date and each of the actions provided for in clauses
(x) through (z) above shall have occurred prior to 10:00 A.M. (New York City
time) on the applicable Increase Date, the Agent shall notify the Lenders
(including any Assuming Lenders) and the Borrower of the occurrence of such
Commitment Increase by telephone, confirmed immediately in writing, telecopier
or telex and in any event no later than 1:00 P.M. (New York City time) on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and Assuming Lender. Each Increasing Lender
and each Assuming Lender shall, before 2:00 P.M. (New York City time) on the
applicable Increase Date, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, in the
case of such Assuming Lender, an amount equal to such Assuming Lender's ratable
portion of the A Borrowings then outstanding (calculated based on its Commitment
as a percentage of the aggregate Commitments outstanding after giving effect to
the relevant Commitment Increase) and, in the case of such Increasing Lender, an
amount equal to the excess of (i) such Increasing Lender's ratable portion of
the A Borrowings then outstanding (calculated based on its Commitment as a
percentage of the aggregate Commitments outstanding after giving effect to the
relevant Commitment Increase) over (ii) such Increasing Lender's ratable portion
of the A Borrowings then outstanding (calculated based on its Commitment
(without giving effect to the relevant Commitment Increase) as a percentage of
the aggregate Commitments (without giving effect to the relevant Commitment
Increase). After the Agent's receipt of such funds from each such Increasing
Lender and each such Assuming Lender, the Agent will promptly thereafter cause
to be distributed like funds to the other Lenders for the account of their
respective Applicable Lending Offices in an amount to each other Lender such
that the aggregate amount of the
20
outstanding A Advances owing to each Lender after giving effect to such
distribution equals such Lender's ratable portion of the A Borrowings then
outstanding (calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment
Increase). Within five Business Days after the Borrower receives notice from the
Agent, the Borrower, at its own expense, shall execute and deliver to the Agent,
A Notes payable to the order of each Assuming Lender, if any, and, each
Increasing Lender, dated as of the applicable Increase Date, in a principal
amount equal to such Lender's Commitment after giving effect to the relevant
Commitment Increase, and substantially in the form of Exhibit A-1 hereto. The
Agent, upon receipt of such A Notes, shall promptly deliver such A Notes to the
respective Assuming Lenders and Increasing Lenders.
(iii) In the event that the Agent shall not have received
notice from the Borrower as to such agreement on or prior to the applicable
Commitment Date or that Borrower shall, by notice to the Agent prior to the
applicable Increase Date, withdraw its proposal for a Commitment Increase or any
of the actions provided for above in clauses (i)(x) through (i)(z) shall not
have occurred by 10:00 A.M. (New York City time) on the such Increase Date, such
proposal by the Borrower shall be deemed not to have been made. In such event,
any actions theretofore taken under clauses (i)(x) through (i)(z) above shall be
deemed to be of no effect and all the rights and obligations of the parties
shall continue as if no such proposal had been made.
SECTION 2.06. Repayment of A Advances. The Borrower shall
repay the principal amount of each A Advance made by each Lender on the last day
of the Interest Period for such A Advance.
SECTION 2.07. Interest on A Advances. The Borrower shall pay
interest on the unpaid principal amount of each A Advance made by each Lender
from the date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum and at the following times:
(a) Alternate Base Rate Advances. If such A Advance is an
Alternate Base Rate Advance, a rate per annum equal at all times to the
Alternate Base Rate in effect from time to time, payable quarterly on the last
day of each March, June, September, and December and on the date such Alternate
Base Rate Advance shall be paid in full; provided that any amount of principal
or interest which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to 2% per annum above the Alternate Base Rate in
effect from time to time.
21
(b) Eurodollar Rate Advances. If such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during the Interest
Period for such A Advance to the sum of the Eurodollar Rate for such Interest
Period plus the applicable Eurodollar Margin, payable on the last day of such
Interest Period and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof; provided that any amount
of principal or interest which is not paid when due (whether at stated maturity,
by acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times (i) from such due date to the last day of the
applicable Interest Period, to 2% per annum above the interest rate otherwise
payable with respect to such A Advance hereunder, and (ii) from and after the
last day of the applicable Interest Period, to 2% per annum above the Alternate
Base Rate in effect from time to time.
SECTION 2.08. Notes. The obligation of the Borrower to repay
the A Advances made to the Borrower by each Lender hereunder shall be further
evidenced by an A Note in favor of such Lender in the form and substance of
Exhibit A-1 attached hereto. The obligation of the Borrower to repay the B
Advances made to the Borrower by any Lender shall be evidenced by a B Note in
favor of such Lender in the form and substance of Exhibit A-2 attached hereto.
SECTION 2.09. Interest Rate Determination. (a) The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a) or (b).
(b) If the Majority Lenders shall, at least one Business Day
before the date of any requested A Borrowing comprised of Eurodollar Rate
Advances, notify the Agent that the Eurodollar Rate for Eurodollar Rate Advances
comprising such A Borrowing will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such A Borrowing, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon the right of the Borrower to select
Eurodollar Rate Advances for such A Borrowing or any subsequent A Borrowing
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist, and each A
Advance comprising such A Borrowing shall be an Alternate Base Rate Advance.
SECTION 2.10. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the A Advances made by it (other
than pursuant to Section 2.12 or 2.15) in excess of its ratable share of
payments on account of the A Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the A
Advances made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any
22
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.10 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.11. Prepayments of A Advances. (a) The Borrower
shall have no right to prepay any principal amount of any A Advances other than
as provided in subsection (b) below.
(b) The Borrower may, upon at least two Business Days' notice,
or in the case of A Borrowings comprised of Alternate Base Rate Advances notice
given not later than 11:00 A.M. (New York City time) one Business Day prior to
the proposed date of prepayment, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amounts of the A Advances
comprising part of the same A Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, and (y) in the case of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(b).
(c) Except as provided in Section 2.03(d), the Borrower shall
have no right to prepay any principal amount of any B Advance.
SECTION 2.12. Increased Costs. (a) If, after the date hereof,
due to either (i) the introduction of or any change (other than any change by
way of imposition or increase of reserve requirements, in the case of Eurodollar
Rate Advances, included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon
written demand by such Lender (with a copy of such demand to the Agent), which
demand must be made no later than the date that is one year after the date on
which the Commitments have been terminated and all
23
sums owing hereunder have been paid in full, pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error. It shall be assumed, for the purpose of
computing amounts to be paid by the Borrower to CUSA pursuant to this Section
2.12(a), that the making, funding or maintaining by CUSA of any Advance
hereunder has been by Citibank.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects the
amount of capital to be maintained by such Lender or any corporation controlling
such Lender and that the amount of such capital is increased by or based upon
the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon written demand by such Lender (with a copy
of such demand to the Agent), which demand must be made no later than the date
that is one year after the date on which the Commitments have been terminated
and all sums owing hereunder have been paid in full, the Borrower shall
immediately pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital is allocable to
the existence of such Lender's commitment to lend hereunder. A certificate as to
such amounts submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error. It shall be
assumed, for the purpose of computing amounts to be paid by the Borrower to CUSA
pursuant to this Section 2.12(b), that the making, funding or maintaining by
CUSA of any Advance hereunder has been by Citibank.
(c) Each Lender agrees that if the Borrower is required to
make any payments to such Lender upon demand therefor pursuant to Sections
2.12(a) or (b) such Lender shall use reasonable efforts to select an alternative
Applicable Lending Office which would avoid the need thereafter for making such
demand; provided, however, that no Lender shall be obligated to select an
alternative Applicable Lending Office if such Lender determines in its
reasonable discretion that (i) as a result of such selection such Lender would
be in violation of any applicable law, regulation, treaty or directive of any
central bank or other governmental authority, or (ii) such selection would be
otherwise disadvantageous to such Lender.
SECTION 2.13. Illegality. (a) Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or
24
maintain Eurodollar Rate Advances hereunder, (i) the obligation of the Lenders
to make Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension no
longer exist and (ii) the Borrower shall forthwith prepay in full all Eurodollar
Rate Advances of all Lenders then outstanding, together with interest accrued
thereon.
(b) Each Lender agrees that if it determines, or if a central
bank or other governmental authority asserts, that it is unlawful for such
Lender to make, fund or maintain Eurodollar Rate Advances hereunder, such Lender
shall use reasonable efforts to select an alternative Eurodollar Lending Office
to perform its obligations hereunder to make, fund or maintain Eurodollar Rate
Advances; provided, however, that no Lender shall be obligated to select an
alternative Eurodollar Lending Office if such Lender determines in its
reasonable discretion that (i) as a result of such selection such Lender would
be in violation of any applicable law, regulation, treaty or directive of any
central bank or other governmental authority, or (ii) such selection would be
otherwise disadvantageous to such Lender.
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at its
address referred to in Section 8.02(b) in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.12 or 2.15) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under any
Note held by such Lender, to charge from time to time against (i) any or all of
the Borrower's accounts with such Lender or (ii) in the event any such payment
is not made to CUSA when due, any or all of the Borrower's accounts with
Citibank or any other Affiliate of CUSA (and the Borrower hereby authorizes
Citibank and each such Affiliate to permit such charge), any amount so due.
(c) All computations of interest based on the Alternate Base
Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all
25
computations of interest based on the Eurodollar Rate or the Federal Funds Rate
and of interest on B Advances prior to the maturity date applicable thereto and
of facility fees shall be made by the Agent on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder and under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility fee,
as the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
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 such Lender. If
and to the extent that the Borrower shall not have so made such payment in full
to the Agent, each Lender shall repay to the Agent forthwith on demand such
amount distributed to such Lender 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 Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes. (a) All payments by the Borrower
hereunder shall be made without set-off or counterclaim and free and clear of
and without deduction on account of restrictions or conditions of any nature now
or hereafter imposed or levied by the United States or any political subdivision
thereof, except as specifically provided to the contrary in Section 2.15(b),
unless the Borrower is required by law to make such deductions. If any such
obligation is imposed upon the Borrower with respect to any amount payable by it
hereunder, it will pay to each affected Lender, on the date on which such amount
becomes due and payable hereunder, such additional amount as shall be necessary
to enable such Lender to receive the same net amount which it would have
received on such due date had no such obligation been imposed upon the Borrower.
(b) Each payment to be made by the Borrower hereunder to any
Lender shall be made free and clear of and without deduction or withholding for
or on account of any tax imposed by any governmental or taxing authority of or
in the United States unless the Borrower is required to make such a payment
subject to the deduction or withholding of such tax, in which case the Borrower
will pay to each affected Lender, on the date on which
26
such amount becomes due and payable hereunder, such additional amount as shall
be necessary to enable such Lender to receive the same net amount which it would
have received on such due date had no such obligation been imposed upon the
Borrower; provided, however, that the Borrower shall not be required to pay any
additional amount on account of any tax of, or imposed by, the United States,
pursuant to this Section 2.15(b), to any Lender and shall be entitled to deduct
and withhold such tax if such Lender (i) shall have failed to submit a valid
United States Internal Revenue Service Form 1001 or any successor form thereto
("Form 1001") relating to such Lender and entitling it to a complete exemption
from deduction or withholding on all amounts to be received by such Lender,
including fees, pursuant to this Agreement, or a valid United States Internal
Revenue Service Form 4224 or any successor form thereto ("Form 4224") relating
to such Lender and entitling it to receive all amounts, including fees, pursuant
to this Agreement, without deduction or withholding, or a statement conforming
to the requirements of United States Treasury Regulation 1.1441-5(b), or (ii)
shall have failed to submit such form or other statement which it is required to
deliver pursuant to Section 2.15(c) hereof.
(c) Prior to the date of the initial Borrowing in the case of
each Lender listed on the signature pages hereof, and on the date of the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, each Lender agrees that it will deliver to the Borrower
either (i) a statement, in duplicate, conforming to the requirements of United
States Treasury Regulation Section 1.1441-5(b), or (ii) if it is not
incorporated under the laws of the United States or a state thereof, two duly
completed copies of Form 1001 or 4224, or successor applicable forms, as the
case may be, certifying that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes. Subject to any change in applicable laws or regulations, each
Lender which delivers to the Borrower a Form 1001 or 4224, or successor
applicable forms, pursuant to the provisions of this Section 2.15(c), further
undertakes to deliver to the Borrower, upon request by the Borrower, two further
copies of said Form 1001 or 4224, or successor applicable forms, on or before
the date that any such form expires or becomes obsolete certifying that such
Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15 shall survive the termination of this Agreement,
the termination of the Commitments and the payment in full of the Notes.
(e) Each Lender agrees that if the Borrower is required to
increase any amounts payable to such Lender under Sections 2.15(a) or 2.15(b),
such Lender shall use reasonable efforts to select an alternative Applicable
Lending Office which would not result in such increased payment by the Borrower
to such Lender; provided, however, that no
27
Lender shall be obligated to select an alternative Applicable Lending Office if
such Lender determines in its reasonable discretion that (i) as a result of such
selection such Lender would be in violation of any applicable law, regulation,
treaty or directive of any central bank or other governmental authority, or (ii)
such selection would be otherwise disadvantageous to such Lender.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances. The
effectiveness of the Commitment of each Lender is subject to the condition
precedent that the Agent shall have received the following, in form and
substance satisfactory to the Agent and (except for the Notes) in sufficient
copies for each Lender:
(a) The Notes payable to the order of the Lenders,
respectively.
(b) This Agreement executed by the Borrower, the Agent and
each of the Lenders.
(c) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the Notes.
(d) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other documents
to be delivered hereunder.
(e) A favorable opinion of Wilson, Sonsini, Goodrich & Rosati,
special counsel for the Borrower, substantially in the form attached hereto as
Exhibit E, and covering such other matters as any Lender through the Agent may
reasonably request.
(f) Evidence that the obligations of the lenders and agent
(including commitments to make advances thereunder) under that certain Credit
Agreement dated as of June 1, 1994 among the Borrower, the lenders thereunder
and CUSA, as agent for the lenders thereunder, as amended, have been terminated
and all unpaid principal and interest thereunder and all other amounts then
payable by the Borrower thereunder have been paid in full (or will be paid in
full by application of the proceeds of the initial Borrowing hereunder).
28
(g) A copy of the Receivables Purchase Agreement as in effect
on August 5, 1994, together with a certificate of the Secretary or an Assistant
Secretary of the Borrower which shall include a statement that the Receivables
Purchase Agreement has not been amended, modified or supplemented in any
respect.
(h) A favorable opinion of Shearman & Sterling, counsel for
the Agent.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The
obligation of each Lender to make an A Advance on the occasion of each A
Borrowing (including the initial A Borrowing) shall be subject to the further
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of A Borrowing with respect thereto and (ii) on the date of
such A Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of A Borrowing and the acceptance by the
Borrower of the proceeds of such A Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such A Borrowing such
statements are true):
(1) The representations and warranties contained in Section
4.01 are correct on and as of the date of such A Borrowing, before and
after giving effect to such A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date (except to
the extent such representations or warranties specifically relate to an
earlier date, in which case they shall be true and correct as of such
date),
(2) No Default or Event of Default has occurred and is
continuing, or would result from such A Borrowing or from the
application of the proceeds therefrom, and
(3) The aggregate amount of such A Borrowing and all other
Borrowings to be made on the same day hereunder is within the aggregate
amount of the unused Commitments of the Lenders, and
(b) if the Agent or any Lender has any reason to believe that
any of the conditions set forth in this Section 3.02 shall not be satisfied on
the date of such A Borrowing, then the Agent shall have received such other
approvals, opinions or documents as the Agent or such Lender through the Agent
may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The
obligation of each Lender which is to make a B Advance on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing shall be subject to the further conditions precedent that (i)
the Agent shall have received the written confirmatory Notice of B Borrowing
with respect thereto, and (ii) on the date of such B Borrowing the following
statements shall be true (and each of the giving of the applicable
29
Notice of B Borrowing and the acceptance by the Borrower of the proceeds of such
B Borrowing shall constitute a representation and warranty by the Borrower that
on the date of such B Borrowing such statements are true):
(a) The representations and warranties contained in Section
4.01 are correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date (except to the extent such
representations or warranties specifically relate to an earlier date, in which
case they shall be true and correct as of such date),
(b) No Default or Event of Default has occurred and is
continuing, or would result from such B Borrowing or from the application of the
proceeds therefrom, and
(c) The aggregate amount of such B Borrowing and all other
Borrowings to be made on the same day hereunder is within the aggregate amount
of the unused Commitments of the Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction indicated at
the beginning of this Agreement. Each Subsidiary is duly organized and validly
existing under the laws of the jurisdiction in which it is incorporated and is
in good standing under the laws of such jurisdiction except where the failure to
so be in good standing (i) in the case of Restricted Subsidiaries, is remedied
within a reasonable time period after a Responsible Officer has knowledge of any
such failure, and (ii) such failure will not have a material adverse effect on
the business, financial condition, assets, properties or operations of the
Borrower or the Borrower and its Subsidiaries taken as a whole. The Borrower and
each Restricted Subsidiary has the corporate power to own its respective
property and to carry on its respective business as now being conducted.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
(i) the Borrower's charter or by-laws or (ii) any law or contractual restriction
binding on or affecting the Borrower.
30
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of this
Agreement or the Notes.
(d) This Agreement is, and the Notes when delivered hereunder
will be, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
(e) The audited consolidated balance sheet of the Borrower as
at June 30, 1995, and the related consolidated audited statements of income and
stockholders' equity of the Borrower for the fiscal year then ended, copies of
which have been furnished to each Lender, fairly present in all material
respects the consolidated financial condition of the Borrower as at such date
and the consolidated results of the operations of the Borrower for the period
ended on such date, all in accordance with generally accepted accounting
principles consistently applied except as noted therein, and since June 30,
1995, there has been no material adverse change in the business, financial
condition, assets, properties or operations of the Borrower or the Borrower and
its Subsidiaries taken as a whole.
(f) There is no pending or, to the knowledge of any
Responsible Officer of the Borrower, threatened action or proceeding affecting
the Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator, which (i) is reasonably likely to be adversely determined and such
adverse determination would likely have a material adverse effect on the
business, financial condition, assets, properties or operations of the Borrower
or the Borrower and its Subsidiaries taken as a whole, or (ii) purports to
affect the legality, validity or enforceability of this Agreement or any Note.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
(h) The Borrower and each of its Restricted Subsidiaries has
met its minimum funding requirements under ERISA with respect to all of its
Plans and has not incurred any material liability to the Pension Benefit
Guaranty Corporation under ERISA in connection with any such Plan. No ERISA
Termination Event has occurred and is continuing with respect to any Plan.
31
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(j) Except as disclosed to the Agent and the Lenders in that
certain letter dated June 28, 1996 from the Borrower to the Agent, the Borrower
and its Restricted Subsidiaries, to the best knowledge of the Responsible
Officers, have obtained the right to use all patents, trademarks, service-marks,
trade names, copyrights, licenses and other rights, free from burdensome
restrictions, or could obtain the same on terms and conditions not materially
adverse to the Borrower and its Restricted Subsidiaries and their operations
taken as a whole, that are necessary for the operation of their respective
businesses as presently conducted and for the operation of businesses described
to the Lenders in writing as proposed to be conducted.
(k) The Borrower has and each of its Subsidiaries has good and
indefeasible title to all material properties, assets and rights of every type
and nature now purported to be owned by it (other than properties and assets
disposed of in the ordinary course of business), subject to no Lien of any kind
except Liens permitted by Section 5.02(a). All leases material to the conduct of
the respective businesses of the Borrower and its Subsidiaries as currently
conducted are valid and subsisting and are in full force and effect.
(l) The Borrower has and each of its Restricted Subsidiaries
has filed all Federal, State and other tax returns which, to the best knowledge
of the Borrower, are required to be filed, and each has paid all taxes as shown
on such returns and on all assessments received by it to the extent that such
taxes have become due, except such taxes as are being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in
accordance with generally accepted accounting principles and except where (i)
nonpayment thereof will not have a material adverse effect on the business,
financial condition, assets, properties or operations of the Borrower or of the
Borrower and its Subsidiaries taken as a whole, and (ii) either (A) the
aggregate unpaid amount thereof is less than $1,000,000, or (B) the unpaid
amount thereof shall be paid in full promptly upon the Borrower or the
Restricted Subsidiary owing the same obtaining knowledge of the delinquency
thereof, together with any penalties payable as a result of such delinquency.
(m) Neither the Borrower nor any of its Subsidiaries is a
party to any contract or agreement or subject to any charter or other corporate
restriction which materially and adversely affects the business, financial
condition, assets, properties or operations of the Borrower or the Borrower and
its Subsidiaries taken as a whole. Neither the execution nor delivery of this
Agreement or the Notes, nor fulfillment of nor compliance with the terms and
provisions hereof or thereof will conflict with, or result in a breach of the
terms,
32
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the properties
or assets of the Borrower or any of its Restricted Subsidiaries pursuant to, the
charter or by-laws of the Borrower or any of its Restricted Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which the Borrower or any of its Restricted Subsidiaries is
subject.
(n) The documents, certificates and written statements
furnished by any Responsible Officer to the Agent or any Lender pursuant to any
provision of this Agreement or any other agreement, document or instrument
delivered to the Agent or any Lender pursuant hereto or in connection herewith,
taken together with all such other documents, certificates and written
statements, do not contain any untrue statement of a material fact or omit any
material fact necessary to make the statements made therein, taken together, in
light of the circumstances under which they were made, not misleading. It is
recognized by the Agent and the Lenders that projections and forecasts provided
by or on behalf of the Borrower, although reflecting the Borrower's good faith
projections or forecasts based on methods and data which the Borrower believes
to be reasonable and accurate, are not to be viewed as facts and that actual
results during the period or periods covered by any such projections and
forecasts may (and are likely to) differ from the projected or forecasted
results.
(o) Listed on Exhibit H attached hereto are all of the
Subsidiaries of the Borrower as of the date of this Agreement, identifying which
of the Subsidiaries constitute Restricted Subsidiaries as of the date of this
Agreement. All of the issued and outstanding shares (other than shares of any
foreign Subsidiary required by applicable local law to be issued to directors of
such foreign Subsidiary or shares of foreign Subsidiaries issued to Persons to
satisfy local ownership requirements imposed by applicable local law) of the
capital stock of each Subsidiary owned by the Borrower or any Subsidiary are
duly issued and outstanding, fully paid and non-assessable and are free and
clear of any Lien.
(p) In the ordinary course of its business, the Borrower
conducts an ongoing review of the effect of Environmental Laws on the business,
operations and properties of the Borrower and its Subsidiaries, in the course of
which it identifies and evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures required for clean-up
or closure of its properties, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential liabilities to third
parties, including employees, and any related costs and expenses). On the basis
of this review, the Borrower has reasonably concluded that Environmental Laws
are not likely to have a material adverse effect on the
33
business, financial condition, assets, properties or operations of the Borrower
or the Borrower and its Subsidiaries taken as a whole.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any amount
payable hereunder or under any Note shall remain unpaid or any Lender shall have
any Commitment hereunder, the Borrower will, unless the Majority Lenders shall
otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders of any governmental authority, the noncompliance
with which would materially adversely affect the business, financial condition,
assets, properties or operations of the Borrower or the Borrower and its
Subsidiaries taken as a whole.
(b) Payment of Taxes and Claims. Pay, and cause each of its
Restricted Subsidiaries to pay, all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its franchises, business, income or profits before any penalty accrues
thereon or immediately upon any determination that any interest is due thereon,
and all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien upon any of its properties or assets; provided
that no such tax, assessment, charge or claim need be paid if it is being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and if such accrual or other appropriate provision, if any,
as shall be required by generally accepted accounting principles shall have been
made therefor; provided, further, that the Borrower shall not be deemed to have
breached this Section 5.01(b) on account of the failure to pay any such tax,
assessment, charge or claim if (i) nonpayment thereof will not have a material
adverse effect on the business, financial condition, assets, properties or
operations of the Borrower or the Borrower and its Restricted Subsidiaries taken
as a whole, and (ii) either (A) the aggregate unpaid amount thereof is less than
$1,000,000, or (B) the unpaid amount thereof shall be paid in full promptly upon
the Borrower or the Restricted Subsidiary owing the same obtaining knowledge of
the delinquency thereof, together with any penalties payable as.a result of such
delinquency.
(c) Maintenance of Properties; Insurance; Books and Records.
Maintain or cause to be maintained, and cause each of its Restricted
Subsidiaries to maintain or cause to be maintained (i) to the extent consistent
with good business practices, in good repair, working order and condition all
properties material to the continued conduct of the business
34
of the Borrower and its Subsidiaries taken as a whole, and from time to time
will make or cause to be made all necessary repairs, renewals and replacements
thereof; (ii) with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Restricted Subsidiaries against loss or damage of the kinds customarily insured
against by corporations of established reputation engaged in the same or similar
business and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other corporations
("Industry Standards"); provided that the Borrower and its Restricted
Subsidiaries may self insure to the extent, and only to the extent, consistent
with Industry Standards; and (iii) proper books of record and account in
accordance with generally accepted accounting principles consistently applied.
(d) Corporate Existence, etc. At all times preserve and keep
in full force and effect its corporate existence, and corporate rights and
franchises material to its business, and those of each of its Restricted
Subsidiaries, except as otherwise specifically permitted by Sections 5.02(b).
5.02(d)or 5.02(e), and will qualify, and cause each of its Restricted
Subsidiaries to qualify, to do business in any jurisdiction where the failure to
do so (i) is remedied within a reasonable time period after a Responsible
Officer has knowledge of any such failure, and (ii) will not have a material
adverse effect on the business, financial condition, assets, properties or
operations of the Borrower or the Borrower and its Subsidiaries taken as a
whole; provided that the corporate existence of any Subsidiary may be terminated
if, in the good faith judgment of the Board of Directors of the Borrower, such
termination is in the best interests of the Borrower and is not disadvantageous
to the Lenders.
(e) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower as of the end of such quarter and consolidated
unaudited statements of income, stockholders' equity and cash flow of
the Borrower for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, setting forth in
comparative form figures for the corresponding period in the preceding
fiscal year, in the case of such statements of income, stockholders'
equity and.cash flow, and figures at the end of the preceding fiscal
year in the case of such balance sheet, all in reasonable detail, in
accordance with generally accepted accounting principles consistently
applied (except as noted therein and subject to normal year-end
adjustments), and certified in a manner reasonably acceptable to the
Majority Lenders by a Responsible Financial Officer of the Borrower;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the
35
Borrower as of the end of such fiscal year and consolidated statements
of income, stockholders' equity and cash flow of the Borrower for the
period commencing at the end of the previous fiscal year and ending
with the end of such fiscal year, setting forth in comparative form
figures for the preceding fiscal year, all in reasonable detail, in
accordance with generally accepted accounting principles consistently
applied (except as noted therein), and certified in a manner
reasonably acceptable to the Majority Lenders by independent public
accountants of recognized national standing reasonably acceptable to
the Majority Lenders;
(iii) together with the financial statements
furnished in accordance with subdivisions (i) and (ii) of this Section
5.01(e) except as noted with respect to clause (d) hereof, a
certificate of a Responsible Financial Officer of the Borrower in the
form of Exhibit F attached hereto (a) representing and warranting that
no Event of Default or Default has occurred and is continuing (or, if
such an Event of Default or Default has occurred, stating the nature
thereof and the action which the Borrower proposes to take with respect
thereto), (b) setting forth a schedule containing the information and
calculations with respect to the Borrower's compliance with Sections
5.01(h)- 5.01(i) and 5.02(h), (c) stating that the representations and
warranties contained in Section 4.01 are true and correct on and as of
the date of such certificate as though made on and as of such date
(except to the extent such representations or warranties specifically
relate to an earlier date, in which case they shall be true and correct
as of such date), and (d) only as to the financial statements furnished
in accordance with subdivision (ii) of this Section 5.01(e), setting
forth all changes, if any, to Exhibit H since the date of the previous
certificate furnished to the Lenders hereunder; provided that the
Borrower may, if no Advance is outstanding and no other amount payable
hereunder or under the Notes is then unpaid, elect not to submit the
statement otherwise required pursuant to the foregoing clause (c) so
long as such statement is made at least once each calendar year;
(iv) as soon as possible and in any event within five
days after a Responsible Officer or a Responsible Financial Officer
knows or has reason to know of the occurrence of any Default that is
not an Event of Default (provided, with respect to any such Default, at
the time of such Default any Advance is outstanding or any other amount
payable hereunder or under the Notes shall remain unpaid) and any Event
of Default, a statement of a Responsible Financial Officer of the
Borrower setting forth details of such Event of Default or Default and
the action which the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
shareholders generally; and promptly after the same are filed, copies
of all final registration statements on Form S-1, S-2, S-3 or S-4
(without exhibits unless specifically requested) or their successor
forms relating to
36
offerings of debt or equity by the Borrower and copies of all reports
on Form 10-K, Form 10-Q and Form 8-K or their successor forms (without
exhibits unless specifically requested) which the Borrower may make to,
or file with, the Securities and Exchange Commission or any successor
or similar governmental entity;
(vi) as soon as practicable and in any event (a)
within 30 days after any Responsible Officer or any Responsible
Financial Officer knows or has reason to know that any ERISA
Termination Event described in clause (i) of the definition of ERISA
Termination Event with respect to Any Plan has occurred and (b) within
10 days after any Responsible Officer or any Responsible Financial
Officer knows or has reason to know that any other ERISA Termination
Event with respect to any Plan has occurred, a statement of a
Responsible Financial Officer of the Borrower describing such ERISA
Termination Event and the action, if any, which the Borrower or such
ERISA Affiliate proposes to take with respect thereto;
(vii) promptly upon receipt thereof, a copy of each
other summary report in its final form submitted to the Borrower or any
Restricted Subsidiary for delivery to, or which is actually delivered
to, the Board of Directors of the Borrower by independent accountants
in connection with any annual, interim or special audit made by them of
the books of the Borrower or any Restricted Subsidiary;
(viii) promptly after a Responsible Officer or a
Responsible Financial Officer knows or has reason to know thereof,
notice of all actions, suits and proceedings before any court or
governmental authority or instrumentality affecting the Borrower or any
of its Subsidiaries of the type described in Section 4.01(f), and
promptly after any material adverse development or change in the status
of any such continuing action, suit or proceeding, notice of such
development or change;
(ix) promptly after a Responsible Officer or a
Responsible Financial Officer knows or has reason to know thereof,
notice of any violation of any Environmental Law that is reported or
reportable by the Borrower or any of its Subsidiaries to any federal,
state or local environmental agency that could be reasonably expected
to have a material adverse effect on the business, financial condition,
assets, properties or operations of the Borrower or the Borrower and
its Subsidiaries taken as a whole;
(x) (a) promptly after any termination of the
Commitment (as such term is defined in the Receivables Purchase
Agreement) pursuant to Section 6.01 of the Receivables Purchase
Agreement as a result of a Termination Event (as such term is defined
in the Receivables Purchase Agreement), notice of such termination; (b)
promptly after any change in the Collection Agent pursuant to Sections
9.01 and 9.04 of the Receivables Purchase Agreement (other than
designation of a Collection Agent affiliated with the Borrower), notice
of such change; (c) at least three Business Days
37
prior to the effectiveness of any consent by the Borrower to any sale
by a Purchaser (as such term is defined in the Receivables Purchase
Agreement) of any of the Purchaser's rights or obligations under the
Receivables Purchase Agreement pursuant to Section 10.08(c) of the
Receivables Purchase Agreement, notice of such proposed sale or
assignment; (d) promptly after the execution and delivery thereof,
copies of all amendments to the Receivables Purchase Agreement,
whether or not the consent thereto of the Lenders is required
hereunder; and (e) notice of events comparable to those described in
the immediately preceding clauses (a), (b), (c) and (d) under any
other agreement or arrangement similar to the Receivables Purchase
Agreement or the transactions provided for therein; and
(xi) such other information respecting the condition
or operations, financial or otherwise (including, without limitation,
information pertaining to any change in accounting principles adopted
by the Borrower or any of its domestic Subsidiaries (or any of its
foreign Subsidiaries if such change in accounting principles would have
a material effect on the financial condition, operating performance or
cash flow of the Borrower and its Subsidiaries taken as a whole) during
any fiscal year of the Borrower and the effect thereof on the financial
condition, operating performance or cash flow of the Borrower and its
Subsidiaries taken as a whole), of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(f) Inspection of Property. Permit any employee of, or
independent financial, legal, environmental or other professional consultant or
advisor (other than a Person that is or is affiliated with a direct competitor
of the Borrower) retained by, the Agent or any of the Lenders or any agents or
representatives thereof, at the Agent's or such Lender's expense, to visit and
inspect any of the properties of the Borrower and its Subsidiaries, to examine
the corporate books and financial records of the Borrower and its Subsidiaries
and make copies thereof or extracts therefrom (except that the Borrower, as to
any information certified by the Borrower as constituting trade secrets or other
proprietary information of a non-financial nature, in a certificate delivered to
the Agent or Lender who has requested copies or extracts of such information,
may in its discretion refuse to allow such copies or extracts to be made) and to
discuss the affairs, finances and accounts of any of such corporations with the
principal officers of the Borrower or its independent public accountants (and by
this provision the Borrower authorizes such accountants to discuss with any
Person so designated the affairs, finances and accounts of the Borrower and its
Subsidiaries, whether or not the Borrower is present), all at such reasonable
times and as often as the Agent or any Lender may reasonably request, in each
case as to matters reasonably related to this Agreement or the transactions
contemplated hereby or the interests of the Agent or the Lenders hereunder.
38
(g) Use of Proceeds. The proceeds of all Advances shall be
used for general corporate purposes, including, without limitation, the
retirement of Debt. Notwithstanding any other term or provision set forth in
this Agreement, no portion of any Advance may be used to initiate or participate
in the acquisition of a controlling interest in the Voting Stock or assets of
any corporation unless such acquisition is made with the consent of such
corporation and does not otherwise violate the terms and provisions of this
Agreement.
(h) Debt to Consolidated Tangible Net Worth Ratio. Maintain a
ratio of (A) consolidated Debt of the Borrower, to (B) Consolidated Tangible Net
Worth of not more than 0.45 to 1.00.
(i) Fixed Charge Ratio. Maintain (i) as of the last day of the
first fiscal quarter of each fiscal year of the Borrower a ratio of (A) Adjusted
EBIT of the Borrower determined on a consolidated basis for the 12-month period
ending on such date, to (B) consolidated Fixed Charges of the Borrower for the
12-month period ending on such date, of not less than 1.25 to 1.00; and (ii) as
of the last day of the second, third and fourth fiscal quarters of each fiscal
year of the Borrower a ratio of (A) Adjusted EBIT of the Borrower for the
12-month period ending on such date, to (B) consolidated Fixed Charges of the
Borrower for the 12-month period ending on such date, of not less than 1.50 to
1.00, in each case determined on a consolidated basis.
SECTION 5.02. Negative Covenants. So long as any amount
payable hereunder or under any Note shall remain unpaid or any Lender shall have
any Commitment hereunder, the Borrower will not, without the written consent of
the Majority Lenders:
(a) Liens, Excess Interest in Receivables, Etc. (i) Create,
assume or suffer to exist, or permit any Subsidiary to create, assume or suffer
to exist, any Lien upon any of its property or assets, whether now owned or
hereafter acquired , or any Excess Interest in Receivables, except
(A) Liens for taxes not yet due or which are being
actively contested in good faith by appropriate proceedings,
(B) other Liens incidental to the conduct of its
business or the ownership of its property and assets which
were not incurred in connection with the borrowing of money or
the obtaining of advances of credit, and which do not in the
aggregate materially detract from the value of its property or
assets or materially impair the use of such property or assets
in the operation of its business,
39
(C) Liens existing on the property or assets of the
Borrower or any Subsidiary on the date of this Agreement and
set forth on Exhibit G,
(D) Liens on property or assets of a Subsidiary to
secure obligations of such Subsidiary to the Borrower or a
wholly owned Subsidiary,
(E) any Lien created to secure the purchase price or
cost of construction, or to secure Debt incurred to pay the
purchase price or cost of construction, of any property
acquired by the Borrower or any Subsidiary after the date
hereof or any improvements to real property constructed by or
for the account of the Borrower or any Subsidiary after the
date hereof; provided that (x) any such Lien shall be confined
solely to the item or items of property so acquired or
constructed (and any theretofore unimproved real property on
which such improvements are located), and (y) any such Lien
shall be created concurrently with or within 12 months
following the acquisition of such property or the completion
of construction of improvements thereon,
(F) Liens (other than Liens on any Excess Interest in
Receivables) created in Pool Accounts (as defined in the
Receivables Purchase Agreement) pursuant to and in accordance
with the terms of the Receivables Purchase Agreement or in
other accounts receivable of the Borrower under any similar
agreement or arrangement permitted hereunder,
(G) Liens existing on property including the proceeds
thereof and accessions thereto acquired by the Borrower or any
Subsidiary (including Liens on assets of any corporation at
the time it becomes a Subsidiary, unless such Lien was created
in contemplation of such corporation becoming a Subsidiary),
(H) Liens which constitute rights of set-off of a
customary nature or bankers' Liens with respect to amounts on
deposit, whether arising by operation of law or by contract,
in connection with arrangements entered into with banks in the
ordinary course of business, including rights of set-off
created pursuant to or by virtue of this Agreement and the
Notes,
(I) leases or subleases and license and sublicenses
granted to others in the ordinary course of the Borrower's or
any Subsidiary's business not interfering in any material
respect with the business of the Borrower and its Subsidiaries
taken as a whole, and any interest or title of a lessor or
licensor under any lease or license,
(J) Liens arising from judgments, decrees or
attachments in circumstances not constituting an Event of
Default under Section 6.01(i), and
40
Liens to secure appeal bonds, supersedeas bonds and other
similar Liens arising in connection with court proceedings
(including, without limitation, surety bonds and letters of
credit) or any other instrument serving a similar purpose;
provided, however, that the total amount secured by Liens
described in this subsection (J) may not exceed at any time 5%
of Consolidated Tangible Net Worth (plus Liens so described
that are permitted in accordance with Section 5.02(a)(ii)
below),
(K) easements, reservations, rights-of-way,
restrictions, minor defects or irregularities in title and
other similar charges or encumbrances affecting real property
not interfering in any material respect with the ordinary
conduct of the business of the Borrower and its Subsidiaries
taken as a whole,
(L) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
in connection with the importation of goods, and
(M) any Lien renewing, extending, or refunding any
Lien permitted under clauses (A) through (L), inclusive, of
this Section 5.02(a); provided that the principal amount
secured is not increased and that such Lien is not extended to
other property (other than pursuant to its original terms).
(ii) Notwithstanding the provisions contained in subdivision
(i) of this Section 5.02(a), in addition to the permitted Liens
described above, the Borrower and its Subsidiaries, or any of them, may
create, assume or suffer to exist other Liens and Excess Interest in
Receivables if, after giving effect thereto and to the retirement of
any Debt which is concurrently being retired, the aggregate of (A) the
total amount of Debt then secured by such Liens, and (B) the total
amount of Excess Interest in Receivables then existing, does not exceed
10% of Consolidated Tangible Net Worth; provided, however, if the
aggregate of (A) the total amount of Debt then secured by such Liens,
and (B) the total amount of Excess Interest in Receivables then
existing, exceeds 10% of Consolidated Tangible Net Worth, no Event of
Default shall occur hereunder provided the Borrower simultaneously
therewith makes or causes to be made effective provision whereby the
indebtedness evidenced by this Agreement and the Notes will be secured
by such Liens (pursuant to documentation in form and substance
reasonably satisfactory to the Agent and the Majority Lenders) equally
and ratably with any and all other Debt thereby secured so long as such
other Debt shall be so secured.
(b) Merger and Consolidation. Merge into or consolidate with
or into a corporation, or permit any Subsidiary to do so, except that (i) any
Subsidiary may merge or consolidate with any other Subsidiary and any Subsidiary
may merge into the Borrower,
41
(ii) the Borrower may merge or consolidate with any other corporation; provided
that (A) either (1) the Borrower shall be the continuing or surviving
corporation, or (2) the successor corporation shall be a solvent corporation
organized under the laws of any State of the United States of America with a
financial condition at least equal to that of the Borrower at the time of such
merger or consolidation, and such corporation shall expressly assume in writing
all of the obligations of the Borrower under this Agreement and under the Notes,
including all covenants herein and therein contained which assumption shall not
otherwise violate any term, condition or provision of this Agreement or the
Notes, and such successor shall be substituted for the Borrower with the same
effect as if it had been named herein as a party hereto, and (B) immediately
after giving effect to such merger or consolidation, no Default or Event of
Default shall have occurred, (iii) a Subsidiary may merge into or consolidate
with a corporation in connection with such corporation becoming a Subsidiary or
being combined with any existing Subsidiary, and (iv) provided that the
disposition of such Subsidiary is not otherwise prohibited under the terms of
this Agreement (including pursuant to Section 5.02(d)(ii) below), any Subsidiary
may merge into or consolidate with a corporation, if after giving effect to such
merger or consolidation, neither such Subsidiary nor such corporation is a
Subsidiary.
(c) Change in Nature of Business. Make, or permit any
Subsidiary to make, any material change in the nature of its business as carried
on at the date hereof; provided, however, that the Borrower and its
Subsidiaries-may enter into businesses which are appropriate extensions of or
are reasonably related or incidental to the current businesses of the Borrower
and its Subsidiaries.
(d) Maintenance of Ownership of Subsidiaries. Sell or
otherwise dispose of any shares of capital stock of any Subsidiary or permit any
Subsidiary to issue, sell or otherwise dispose of any shares of its capital
stock or the capital stock of any other Subsidiary, except
(i) to the Borrower or another Subsidiary;
(ii) that all shares of stock of any Subsidiary at
the time owned by the Borrower or any Subsidiary may be sold as an
entirety for a consideration which represents the fair value (as
determined in good faith by the Board of Directors of the Borrower) at
the time of sale of the shares of stock so sold; provided that after
giving effect to the sale thereof the sum of (A) the total assets of
all Subsidiaries whose stock is so sold pursuant to this clause (ii)
after the date of this Agreement, plus (B) the total assets of all
Subsidiaries that have been merged into or consolidated with a
corporation pursuant to clause (iv) of Section 5.02(b) after the date
of this Agreement, does not exceed 15% of the consolidated total assets
of the Borrower;
42
(iii) shares of stock of any Subsidiary may be sold
if, after giving effect to such sale, such Subsidiary shall continue to
be a Subsidiary; and
(iv) shares of stock of any foreign Subsidiary may be
issued to directors of such foreign Subsidiary to satisfy director
ownership requirements imposed by applicable local law and shares of
stock of foreign Subsidiaries may be issued to Persons to the extent
necessary to satisfy local ownership requirements imposed by applicable
local law.
(e) Sales, Etc. of Assets. Transfer, or permit any Subsidiary
to Transfer any assets, if after giving effect to such Transfer the sum of (1)
the total assets as to which there has been a Transfer not permitted by clauses
(i) or (ii) of this Section 5.02(e) after the date of this Agreement, plus (2)
the total assets of all Subsidiaries whose stock is sold pursuant to clause (ii)
of Section 5.02(d) after the date of this Agreement, plus (3) the total assets
of all Subsidiaries that have been merged into or consolidated with a
corporation pursuant to clause (iv) of Section 5.02(b) after the date of this
Agreement, would exceed 20% of the consolidated total assets of the Borrower,
except that:
(i) any Subsidiary may Transfer any of its assets to the
Borrower or to another Subsidiary and the Borrower may Transfer assets
to a wholly-owned Subsidiary that had been transferred to the Borrower
from a Subsidiary after the date of this Agreement; and
(ii) the provisions of this Section 5.02(e) shall not apply to
(A) any Transfer made in the ordinary course of business, (B) any
Transfer of obsolete assets, (C) any Transfer by the Borrower or any
Subsidiary of assets (but not of all or substantially all of its
assets) if such Transfer is made pursuant to a plan to replace the
assets subject to such Transfer and such replacement occurs no later
than six months after the Transfer (or, if replacement is not
reasonable by such date, binding commitments to construct and/or
acquire replacement assets shall have been entered into no later than
six months after the Transfer and such replacement shall occur within a
reasonable period of time, which shall in no event exceed 18 months),
or (D) the sale of notes, leases and accounts receivable pursuant to
and in accordance with the terms of the Receivables Purchase Agreement
or any similar agreement or arrangement permitted under Section 5.02(f)
by Sun Microsystems Federal, Inc., SunSoft, Inc., SunExpress, Inc. or
any other Subsidiary which is or becomes a party to the Receivables
Purchase Agreement or any such other agreement or arrangement.
(f) Sale of Receivables. Sell with recourse, or discount or
otherwise sell for less than the face value thereof, or sell with or without
recourse for consideration other than cash, or permit any Subsidiary to sell
with recourse, or discount or otherwise sell for less than the face value
thereof, or sell with or without recourse for consideration other than
43
cash, any of its notes or accounts receivable; provided that the foregoing
restrictions shall not apply to (i) any license or sale of products or services
in the ordinary course of business where payment For such transactions is made
by credit card; provided that the fees and discounts incurred by the Borrower or
the Subsidiary in connection therewith shall not exceed the normal and customary
fees and discounts incurred for general credit card transactions through major
credit card issuers; (ii) the delivery and endorsement to banks in the ordinary
course of business by the Borrower or any of its Subsidiaries of promissory
notes received in payment of trade receivables, where delivery and endorsement
are made prior to the date of maturity of such promissory notes, and the
retention by said banks of normal and customary fees and discounts therefor;
provided that such practice is usual and customary in the country where such
activity occurs; and (iii) any sale of notes or accounts receivable (or
interests therein) so long as (A) the Borrower or the Subsidiary selling such
notes or accounts receives, at the time of the sale, cash consideration or at
least (x) with respect to sales under the Receivables Purchase Agreement, the
amount determined in accordance with the provisions thereof, and (y) with
respect to all other sales, 90% of the aggregate face amount of the notes or
accounts receivable (or portions thereof) so sold, and (B) after giving effect
to such sale, the outstanding face amount which remains owing from the
respective trade debtors under all such notes or accounts receivable sold does
not exceed at any time an amount equal to the greater of (1) $250,000,000 or (2)
15% of Consolidated Tangible Net Worth.
(g) Amendment of Receivables Purchase Agreement. Agree to (i)
any amendment to the Receivables Purchase Agreement that amends Section 5.09 of
the Receivables Purchase Agreement or the definition of "Permitted Subordinated
Interest" (as such term is defined in the Receivables Purchase Agreement) in a
manner which would impair the ability of the Borrower and its Subsidiaries
pursuant to such Section (as written without giving effect to such amendment) to
sell, assign or otherwise dispose of, or create or suffer to exist, any
Permitted Subordinated Interest with respect to their interests in any Pool
Assets (as such term is defined in the Receivables Purchase Agreement) and the
proceeds thereof; provided, however, that the foregoing shall in no way limit
the application of the definition of "Receivables Purchase Agreement" as set
forth in Section 1.01, or (ii) enter into any other agreement pertaining to the
sale of accounts receivable of the Borrower unless such other agreement permits
the Borrower to grant to the Lenders a security interest in the Borrowers
accounts receivable on terms no less favorable to the Lenders than those
contained in the Receivables Purchase Agreement.
(h) Subsidiary Debt. Permit any Subsidiary organized under the
laws of any State of the United States of America to create, incur, assume or
suffer to exist any Debt if, after giving effect thereto and to the concurrent
repayment of any other Debt, the aggregate Debt of all such Subsidiaries will
exceed $120,000,000.
44
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any
Advance when the same becomes due and payable; or (ii) any interest on any
Advance or any fees payable hereunder within five Business Days after the same
becomes due; or (iii) any other amounts payable hereunder within 30 days of the
date of invoice or written demand therefor; or
(b) any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) the Borrower shall fail. to perform or observe any term,
covenant or agreement contained in Sections 5.01(h), 5.01(i), 5.02(b), 5.02(c),
5.02(d), 5.02(e), 5.02(g) or 5.02(h); or
(d) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in this Agreement (other than those covered by
the other clauses of this Section 6.01) on its part to be performed or observed
if the failure to perform or observe such other term, covenant or agreement
shall remain unremedied for 30 days after written notice thereof shall have been
given to the Borrower by the Agent at the request of any Lender; or
(e) (i) the Borrower or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt which is outstanding in
a principal amount of at least $10,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of the Borrower or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument; but only if the effect of such failure to pay, event or
condition is to accelerate the maturity of such Debt; or any such Debt shall be
declared by the creditor to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment), redeemed, purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or (ii)
any event shall occur or condition shall exist under any agreement or instrument
relating to any Debt of the
45
Borrower or any of its Subsidiaries outstanding in a principal amount in excess
of $50,000,000 in the aggregate and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to permit the acceleration by the creditor of, the
maturity of such Debt; or
(f) the Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the
Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 consecutive days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Borrower or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any order, judgment or decree is entered in any
proceedings against the Borrower or any Restricted Subsidiary decreeing the
dissolution of the Borrower or such Restricted Subsidiary and such order,
judgment or decree remains unstayed and in effect for more than 60 consecutive
days; or
(h) any order, judgment or decree is entered in any
proceedings against the Borrower or any Restricted Subsidiary decreeing a
split-up of the Borrower or such Restricted Subsidiary which requires the
divestiture of assets representing a substantial part, or the divestiture of the
stock of a Restricted Subsidiary whose assets represent a substantial part, of
the consolidated assets of the Borrower (determined in accordance with generally
accepted accounting principles) or which requires the divestiture of assets, or
stock of a Restricted Subsidiary, which shall have contributed a substantial
part of the consolidated net income of the Borrower (determined in accordance
with generally accepted accounting principles) for any of the three fiscal years
then most recently ended, and such order, judgment or decree remains unstayed
and in effect for more than 60 consecutive days; or
(i) a final judgment or order for the payment of money in an
amount (not covered by insurance) which exceeds $10,000,000 shall be rendered
against the Borrower or any of its Subsidiaries and; prior to the payment in
full of the amount thereof, either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or
46
order, or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(j) any ERISA Termination Event that the Lenders determine in
good faith might constitute grounds for the termination of any Plan or for the
appointment by the appropriate United States district court of a trustee to
administer any Plan shall have occurred and be continuing for 30 days after
written notice shall have been given to the Borrower by the Agent, or any Plan
shall be terminated, or a trustee shall be appointed by an appropriate United
States district court to administer any Plan, or the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan or to appoint a
trustee to administer any Plan;
then, and in any such event, the Agent (i) shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Lenders, by notice to the
Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that if an Event of Default specified in Section 6.01(f) shall occur or
in the event of an actual or deemed entry of an order for relief with respect to
the Borrower or any of its subsidiaries under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances shall automatically be terminated
and (B) the Advances, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Mandatory Prepayment; Event of Early
Termination. Notwithstanding anything to the contrary contained herein, in the
event that a Change of Control Event shall occur with respect to the Borrower,
the Agent (i) shall at the request, or may with the consent, of the Majority
Lenders, by notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall forthwith terminate,
and (ii) shall at the request, or may with the consent, of the Majority Lenders,
by notice to the Borrower, declare the Advances, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
47
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the amounts payable
hereunder and under the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Agent agrees to give to each Lender prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender which is the payee of
such Note, as assignor, and an assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its
Commitment and the Advances made by lt and the Notes issued to lt, CUSA shall
have the same rights and
48
powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term " Lender" or "Lenders" shall, unless
otherwise expressly indicated, include CUSA in its individual capacity. CUSA and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if CUSA were not the
Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as lt has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts outstanding under the A Notes then held by each
of them (or if no A Advances are at the time outstanding or if any A Notes are
held by Persons which are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement; provided that no Lender shall be liable for any portion of such
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees, court costs and all
other reasonable litigation expenses, including, but not limited to, expert
witness fees, document copying expenses, exhibit preparation, courier expenses,
postage, and communication expenses) incurred by the Agent in connection with
the preparation, execution, delivery. administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower. Upon any
such resignation, the Majority Lenders shall have the right to appoint a
successor Agent, which successor
49
Agent shall (if no Event of Default then exists) be subject to the approval of
the Borrower not to be unreasonably withheld. If no successor Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 20 days after the retiring Agent's giving of notice of
resignation, then the Borrower may appoint a successor Agent, which successor
Agent shall be subject to the approval of the Majority Lenders not to be
unreasonably withheld. If no successor Agent shall have been so appointed by the
Borrower, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $300,000,000 or an
Affiliate thereof. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by lt while lt was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders and the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01. 3.02 or
3.03, (b) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (e) change the percentage of the Commitments
or the number of Lenders which shall be required for the Lenders or any of them
to take any action hereunder, or (f) amend this Section 8.01; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this Agreement.
SECTION 8.02. Notices Payments, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including telecopier
or telex
50
communication) and mailed, telecopied or telexed or delivered, if to the
Borrower, at its address at 2550 Garcia Avenue PAL 1-211, Mountain View,
California 94043, Attention: Treasurer, with a copy to the attention of General
Counsel at the same address (but with the following mail stop substituted: PAL
1-521); if to any Lender specified on Schedule I, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and-Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address c/o Citicorp North
America, Inc. at Citicorp Center, One Sansome Street, Suite 2710, San Francisco,
California 94104, Attention: J. Kevin Nater with copies to Citicorp Securities,
Inc., One Court Square, Seventh Floor, New York, New York 11120, Attention: Loan
Investor Services; provided that all notices to the Agent pursuant to Article II
shall be at Citicorp Securities, Inc., One Court Square, Seventh Floor, New
York, New York 11120, Attention: Loan Investor Services; or, as to the Borrower
or the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower
and the Agent. All such notices and communications shall, (i) when telecopied or
telexed, be effective when telecopied or confirmed by telex answerback,
respectively, (ii) when sent by an overnight (next day) courier service, be
effective on the Business Day after the date when delivered to such service, and
(iii) when mailed, be effective on the fifth Business Day after the date
deposited in the mails, except that notices and communications to the Agent
pursuant to Article II or VII shall not be effective until received by the
Agent, and any notice of default which is given to the Borrower only by means of
telecopier shall not be effective until such telecopy is received by the
Borrower.
(b) All payments made or funds delivered to the Agent
hereunder shall be made or delivered to the Agent at its Domestic Lending Office
or at such other address as the Agent may designate from time to time in a
written notice to the other parties.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on written demand all reasonable costs and expenses incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment and syndication of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
written
51
demand all reasonable costs and expenses, if any (including, without limitation,
reasonable counsel fees, court costs, and all other reasonable litigation
expenses, including, but not limited to, expert witness fees, document copying
expenses, exhibit preparation, courier expenses, postage, communication expenses
and other expenses, specifically including reasonable allocated costs of
in-house counsel), incurred by the Agent and the Lenders in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a). In
addition, the Borrower shall pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Agreement, the Notes and the other documents to be delivered hereunder, and
agrees to save the Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes.
(b) If any payment of principal of any Eurodollar Rate
Advance or B Advance is made other than on the last day of the Interest Period
for such A Advance or the applicable maturity date for such B Advance, as the
case may be, as a result of a payment pursuant to Section 2.13 or acceleration
of the maturity of the Advances pursuant to Section 6.01 or for any other
reason, the Borrower shall, upon written demand by any Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance. Upon the
Borrower's written request, any Lender demanding compensation under this Section
8.04(b) shall furnish to the Borrower a summary statement as to the method of
calculation of any such losses, costs or expenses.
(c) The Borrower agrees to indemnify, protect, defend and
hold harmless the Agent and each Lender and each of their Affiliates and their
respective officers, directors, employees, agents, advisors and representatives
(each, an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities, obligations, penalties, actions, judgments, suits, costs,
disbursements and expenses (including, without limitation, reasonable fees and
expenses of counsel, including but not limited to court costs and all other
reasonable litigation expenses including, but not limited to, expert witness
fees, document copying expenses, exhibit preparation, courier expenses, postage,
and communication expenses) that may be incurred by or asserted against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation, proceeding or settlement arising out of, related to
or in connection with (i) this Agreement or the transactions contemplated by
this Agreement or the use of any proceeds of the Advances, (ii) the Advances,
the Borrowings or the
52
Commitments, (iii) the failure of the Borrower or any of its Subsidiaries to
comply fully with any and all Environmental Laws applicable to it, or (iv) any
acquisition or proposed acquisition by the Borrower or any of its Subsidiaries
of all or any portion of the stock or substantially all of the assets of any
Person (including, without limitation, the Borrower), whether or not an
Indemnified Party is a party thereto and whether or not the transactions
contemplated hereby are consummated and whether or not such investigation,
litigation or proceeding is brought by the Borrower, any of its shareholders or
creditors, an Indemnified Party or any other Person, except to the extent such
claims, damages, losses, liabilities, obligations, penalties, actions,
judgments, suits, costs, disbursements and expenses are found in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnified Party;
provided, however, that the Borrower's indemnification obligations set forth
herein shall not extend to expenses or fees paid by an Indemnified Party for
reasons other than in connection with this Agreement or the transactions
contemplated hereby. The Borrower agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract, tort or otherwise) to
the Borrower or any of its creditors or shareholders in connection with this
Agreement or the transactions contemplated hereby except to the extent such
liability is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 8.04 shall survive the termination of this Agreement,
the termination of the Commitments and the payment in full of the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Advances and all other amounts payable under this
Agreement to be forthwith due and payable pursuant to the provisions of Section
6.01, each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and any Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section 8.05 are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which such Lender may have. The Borrower
hereby authorizes CUSA, in accordance with the provisions of this Section 8.05,
to so set off and apply any and all such
53
deposits held and other indebtedness owing by Citibank or any other Affiliate of
CUSA to or for the credit or the account of the Borrower and hereby authorizes
Citibank and each such Affiliate to permit such setoff and application by CUSA.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agent and
when the Agent shall have been notified by each Lender that such Lender has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more banks or other financial institutions all or a portion
of its rights and Obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the A Advances owing to it
and the A Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than any B Advances or B Notes),
(ii) the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $1,000,000, (iii) each such
assignment shall be to an assignee reasonably acceptable to the Agent and
consented to by the Borrower, which consent shall not be unreasonably withheld;
provided, however, that the consent of the Borrower shall not be required with
respect to any such assignment by CUSA to Citibank or any other Affiliate of
CUSA of any Advance made by CUSA or any such assignment by any other Lender to
an Affiliate of such Lender of any Advance made by such Lender, and (iv) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any A Note or Notes subject to such assignment and a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and
54
Acceptance, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 8.02(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the A Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee acceptable to the Agent and reasonably
consented to by the Borrower together with any A Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(e) Each Lender may assign to one or more banks or other
entities any B Note or Notes held by it.
55
(f) A Lender may at any time grant participations to one or
more banks or other entities in or to all or any part of its rights and
obligations under this Agreement or any Borrowings hereunder without the consent
of the Borrower or the Agent; provided, however, that (i) the Borrower and the
Agent shall be entitled to continue to deal solely with the granting Lender
regarding notices, payments, payment instructions and any other matters arising
pursuant to this Agreement; (ii) the granting Lender's obligations under this
Agreement shall remain unchanged and the granting Lender shall remain solely
responsible for the performance thereof, and (iii) the granting Lender shall
remain the holder of its Note(s) for all purposes under this Agreement. Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Lender will not agree, without the consent of the participant,
to any modification, amendment or waiver of any provision of this Agreement
described in clauses (b), (c) or (d) of Section 8.01, or to the release of any
Lien that may at any time be created to secure any obligations owing to the
Agent and/or the Lenders hereunder or under the Note.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree,
pursuant to Section 8.11, to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such Lender.
(h) Notwithstanding anything else contained herein, each
Lender may assign, as collateral or otherwise, any of its rights (including,
without limitation, rights to payments of principal or interest) under this
Agreement to any Federal Reserve Bank without notice to or the consent of the
Borrower or the Agent and without any requirement that the assignee assume any
obligations of such Lender hereunder.
(i) If any Eurodollar Reference Bank or its Lender Affiliate
assigns its Notes to an unaffiliated institution, the Agent shall, in
consultation with the Borrower and with the consent of the Majority Lenders,
appoint another bank to act as a Eurodollar Reference Bank hereunder, and
pending such appointment, the Eurodollar Rate shall be determined on the basis
of the remaining Eurodollar Reference Bank(s).
SECTION 8.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of California.
56
SECTION 8.09. Headings. Article and Section headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
SECTION 8.10. Commitment Extension. The Borrower shall have
the right in each year to request a one-year extension of the Termination Date
then in effect; such request shall be received by the Agent at least 60 days
(but not more than 75 days) prior to each anniversary of the Effective Date.
Such request shall be irrevocable and binding upon the Borrower. The Agent shall
promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it will notify the Agent, in writing, of its decision to do so within
30 days after receipt of such notice from the Agent but in any event, no later
than 15 days prior to the next anniversary of the Effective Date. The Commitment
of any Lender that fails to accept the Borrower's request for extension of the
Termination Date (a "Declining Lender") shall be terminated on the Termination
Date originally in effect (without regard to extension by other Lenders). The
Borrower shall have the right to first, accept from the Extending Lenders
increases in their respective Commitments by an aggregate amount up to the
amount of all Declining Lenders' Commitments and second, to identify assignees
(reasonably acceptable to the Agent) that agree to accept assignments of
Commitments ("Replacement Lenders") in an amount equal to the amount of all
Declining Lenders' Commitments not otherwise assumed by Extending Lenders, in
each case by requiring each Declining Lender to assign in full its rights and
obligations under this Agreement to one or more extending Lenders or Replacement
Lenders; provided that (i) such assignment is otherwise in compliance with
Section 8.07, (ii) such Declining Lender receives payment in full of the
principal amount of all Advances owing to such Declining Lender, together with
accrued interest thereon to the date of such payment of principal and all other
amounts payable to such Declining Lender under this Agreement and (iii) any such
assignment shall be effective on the date specified by the Borrower and agreed
to by the applicable Extending Lenders or Replacement Lenders and the Agent. If
Extending Lenders and/or Replacement Lenders provide Commitments in an aggregate
amount equal to 100% of the aggregate amount of the Commitments outstanding
immediately prior to the Termination Date in effect at the time the Borrower
requests such extension, the Termination Date shall be extended by one year.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.12. Confidentiality. In accordance with normal
procedures regarding proprietary information supplied by customers, each of the
Lenders agrees to keep confidential and to cause its employees, agents and
representatives to keep confidential information relating to the Borrower or any
Subsidiary received pursuant to or in connection
57
with this Credit Agreement and the transactions contemplated hereby; provided
that nothing herein shall be construed to prevent the Agent or any Lender from
disclosing such information (i) upon the order of any court or administrative
agency, (ii) upon the request or demand of any regulatory agency or authority
having jurisdiction over the Agent or such Lender, (iii) which has been publicly
disclosed, (iv) which has been lawfully obtained by any of the Lenders from a
Person other than the Borrower or any Subsidiary, the Agent or any other Lender,
or (v) to any participant in or assignee of, or prospective participant in or
assignee of, all or any part of the rights and obligations of such Agent or such
Lender under this Agreement or any Advances hereunder (provided that such
participant or assignee, or prospective participant or assignee, agrees to
comply with the confidentiality requirements set forth in this Section 8.12).
SECTION 8.13. Termination. Except as otherwise provided in
this Agreement and the Notes and the other agreements and instruments executed
pursuant hereto, all rights and obligations hereunder and thereunder shall
terminate when all amounts payable under this Agreement, the Notes and such
other agreements shall have been paid in full and no Lender shall have any
Commitment hereunder; provided, however, that notwithstanding the foregoing the
Borrower shall remain liable for all of its obligations hereunder and thereunder
to indemnify or reimburse the Agent and the Lenders, including, without
limitation, pursuant to the provisions of Sections 2.12. 2.15 and 8.04 hereof.
SECTION 8.14. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any California State court or
federal court of the United States of America sitting in San Francisco, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such California State or, to the
extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final nonappealable judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any California State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
58
SECTION 8.15. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES OR THE
ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
59
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SUN MICROSYSTEMS, INC.
By: /s/ ALTON D. PAGE
--------------------------
Name: Alton D. Page
Title: Vice President
CITICORP USA, INC.,
as Administrative Agent
By: /s/ STEVEN R. VICTORIN
--------------------------
Name: Steven R. Victorin
Title: Attorney-in-Fact
Commitment LENDER
- ---------- ------
$30,000,000 CITICORP USA, INC.
By: /s/ STEVEN R. VICTORIN
--------------------------
Name: Steven R. Victorin
Title: Attorney-in-Fact
$25,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ JAMIE DILLON
--------------------------
Name: Jamie Dillon
Title: Vice President
60
Commitment LENDER
- ---------- ------
$17,500,000 ABN AMRO BANK N.V.,
SAN FRANCISCO INTERNATIONAL
BRANCH
By: /s/ R. FUKATSU
--------------------------
Name: R. Fukatsu
Title: Vice President
By: /s/ A. P. GALANG
--------------------------
Name: A. P. Galang
Title: Asst. Vice
President
$17,500,000 THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ DEBRA E. DELVECCHIO
--------------------------
Name: Debra E. DelVecchio
Title: Vice President
61
Commitment LENDER
- ---------- ------
$17,500,000 BANQUE NATIONALE DE PARIS
By: /s/ RAFAEL C. LUMANLAN
--------------------------
Name: Rafael C. Lumanlan
Title: Vice President
By: /s/ CHARLES DAY
--------------------------
Name: Charles Day
Title: Assistant
Vice President
$17,500,000 BARCLAYS BANK PLC
By: /s/ JAMES C. TAN
--------------------------
Name: James C. Tan
Title: Associate Director
$17,500,000 BAYERISCHE VEREINSBANK AG,
LOS ANGELES AGENCY
By: /s/ JOHN CARLSON
--------------------------
Name: John Carlson
Title: Vice President
By: /s/ WALTER H. ECKMEIER
-------------------------
Name: Walter H. Eckmeier
Title: Vice President
$17,500,000 THE FUJI BANK, LIMITED,
SAN FRANCISCO AGENCY
By: /s/ KEIICHI OZAWA
--------------------------
Name: Keiichi Ozawa
Title: Joint General
Manager
62
Commitment LENDER
- ---------- ------
$17,500,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By: /s/ YOH NAKAHARA
--------------------------
Name: Yoh Nakahara
Title: General Manager
$17,500,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ CARL J. MEHLDAU, JR.
-----------------------------
Name: Carl J. Mehldau, Jr.
Title: Associate
$17,500,000 THE SAKURA BANK, LIMITED,
SAN FRANCISCO AGENCY
By: /s/ TADASHI IMAZU
--------------------------
Name: Tadashi Imazu
Title: Joint General
Manager
$17,500,000 THE SUMITOMO BANK, LIMITED,
SAN FRANCISCO BRANCH
By: /s/ YUJI HARADA
--------------------------
Name: Yuji Harada
Title: General Manager
By: /s/ HERMAN WHITE JR.
--------------------------
Name: Herman White Jr.
Title: Vice President
63
Commitment LENDER
- ---------- ------
$17,500,000 SWISS BANK CORPORATION
By: /s/ THOMAS EGGENSCHWILER
--------------------------
Name: Thomas Eggenschwiler
Title: Executive Director
Credit Risk Management
By: /s/ HANS-UALI SURBER
--------------------------
Name: Hans-Uali Surber
Title: Executive Director
Merchant Banking
$17,500,000 TORONTO DOMINION (TEXAS), INC.
By: /s/ DAVID G. PARKER
--------------------------
Name: David G. Parker
Title: Vice President
$17,500,000 THE TOYO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH
By: /s/ HIROYUKI FUHYAO
--------------------------
Name: Hiroyuki Fuhyao
Title: Vice President
By: /s/ HOWARD MOTT
--------------------------
Name: Howard Mott
Title: Vice President
64
Commitment LENDER
- ---------- ------
$17,500,000 UNION BANK OF CALIFORNIA, N.A.
By: /s/ WANDA HEADRICK
--------------------------
Name: Wanda Headrick
Title: Vice President
$300,000,000 Total Commitments