EXHIBIT 10.39
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TERM LOAN AGREEMENT
Dated as of January 5, 1995
among
ADVANCED MICRO DEVICES, INC.,
ABN AMRO BANK N.V.,
as Administrative Agent,
ABN AMRO BANK, N.V.
and
CIBC INC.,
as Co-Arrangers,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS .......................................................... 1
1.1 Defined Terms .............................................. 1
1.2 Other Definitional Provisions .............................. 19
(a) Defined Terms ......................................... 20
(b) The Agreement ......................................... 20
(c) Certain Common Terms .................................. 20
(d) Performance; Time ..................................... 20
(e) Contracts ............................................. 20
(f) Laws .................................................. 20
(g) Captions .............................................. 21
(h) Independence of Provisions ............................ 21
1.3 Accounting Principles ...................................... 21
ARTICLE II
THE LOANS ............................................................ 21
2.1 Term Loans ................................................. 21
2.2 Loan Accounts; Notes ....................................... 22
2.3 Procedure for Borrowing .................................... 22
2.4 Conversion and Continuation Elections ...................... 23
2.5 Optional Prepayments ....................................... 25
2.6 Repayment .................................................. 25
2.7 Interest ................................................... 25
2.8 Fees ....................................................... 26
(a) Administration Fee .................................... 26
(b) Other Fees ............................................ 26
2.9 Computation of Fees and Interest ........................... 27
2.10 Payments by the Company .................................... 27
2.11 Payments by the Banks to the Administrative
Agent ...................................................... 28
2.12 Sharing of Payments, etc ................................... 29
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY ............................... 29
3.1 Taxes ...................................................... 29
3.2 Illegality ................................................. 33
3.3 Increased Costs and Reduction of Return .................... 34
3.4 Funding Losses ............................................. 35
3.5 Inability to Determine Rates ................................ 35
3.6 Certificates of Banks ...................................... 36
3.7 Survival ................................................... 36
i
ARTICLE IV
CONDITIONS PRECEDENT ................................................. 36
4.1 Effective Date; Conditions to Funding Date ................. 36
(a) Term Loan Agreement. This Agreement, executed by the
Company, the Administrative Agent and each of the Banks;
(b) Notes .................................................. 36
(c) Notice of Borrowing ................................... 37
(d) Resolutions: Incumbency ............................... 37
(e) Certificate of Incorporation; By-laws
and Good Standing ..................................... 37
(f) Legal Opinion ......................................... 37
(g) Payment of Fees ....................................... 37
(h) Certificate ........................................... 38
(i) Financial Statements .................................. 38
(j) Other Documents ....................................... 38
4.2 Conditions to Making, Conversion or
Continuation of Loans ...................................... 38
(a) Notice of Conversion/Continuation ..................... 38
(b) Continuation of Representations and Warranties ........ 38
(c) No Existing Default ................................... 38
ARTICLE V
REPRESENTATIONS AND WARRANTIES ....................................... 39
5.1 Corporate Existence and Power .............................. 39
5.2 Corporate Authorization; No Contravention .................. 39
5.3 Governmental Authorization ................................. 40
5.4 Binding Effect ............................................. 40
5.5 Litigation ................................................. 40
5.6 No Default ................................................. 40
5.7 ERISA Compliance ........................................... 41
5.8 Use of Proceeds; Margin Regulations ........................ 42
5.9 Title to Properties ........................................ 42
5.10 Taxes ...................................................... 43
5.11 Financial Condition ........................................ 43
5.12 Environmental Matters ...................................... 43
5.13 Regulated Entities ......................................... 44
5.14 No Burdensome Restrictions ................................. 44
5.15 Labor Relations ............................................ 45
5.16 Copyrights, Patents, Trademarks and Licenses,
etc.......................................................... 45
5.17 Subsidiaries ............................................... 45
5.18 Capitalization ............................................. 45
5.19 Insurance ................................................. 45
5.20 Full Disclosure ............................................ 45
ii.
ARTICLE VI
AFFIRMATIVE COVENANTS ................................................ 46
6.1 Financial Statements ....................................... 46
6.2 Certificates; Other Information ............................ 47
6.3 Notices .................................................... 48
6.4 Preservation of Corporate Existence, etc. .................. 50
6.5 Maintenance of Property .................................... 50
6.6 Insurance .................................................. 51
6.7 Payment of Obligations ..................................... 51
6.8 Compliance with Laws ....................................... 51
6.9 Inspection of Property and Books and Records ............... 51
6.10 Environmental Laws ......................................... 52
6.11 Use of Proceeds ............................................ 52
ARTICLE VII
NEGATIVE COVENANTS ................................................... 52
7.1 Limitation on Liens ........................................ 52
7.2 Disposition of Assets ...................................... 54
7.3 Consolidations and Mergers ................................. 54
7.4 Loans and Investments ...................................... 55
7.5 Transactions with Affiliates ............................... 56
7.6 Use of Proceeds ............................................ 56
7.7 Guaranty Obligations ....................................... 57
7.8 Compliance with ERISA ..................................... 57
7.9 Restricted Payments ........................................ 57
7.10 Modified Quick Ratio ....................................... 59
7.11 Minimum Tangible Net Worth ................................. 59
7.12 Leverage Ratio ............................................. 60
7.13 Fixed Charge Coverage Ratio ................................ 60
7.14 Change in Business ......................................... 60
7.15 Accounting Changes ......................................... 60
ARTICLE VIII
EVENTS OF DEFAULT .................................................... 60
8.1 Event of Default ........................................... 60
(a) Non-Payment ........................................... 60
(b) Representation or Warranty ............................ 60
(c) Specific Defaults ..................................... 60
(d) Other Defaults ........................................ 60
(e) Cross-Default ......................................... 61
(f) Bankruptcy or Insolvency .............................. 61
(g) Involuntary Proceedings ............................... 61
(h) ERISA ................................................. 62
(i) Monetary Judgments .................................... 63
(j) Non-Monetary Judgments ................................ 63
8.2 Remedies ................................................... 63
8.3 Rights Not Exclusive ....................................... 64
8.4 Certain Financial Covenant Defaults ........................ 64
iii.
ARTICLE IX
THE ADMINISTRATIVE AGENT ............................................. 64
9.1 Appointment and Authorization .............................. 64
9.2 Delegation of Duties ....................................... 65
9.3 Liability of Administrative Agent .......................... 65
9.4 Reliance by Administrative Agent ........................... 65
9.5 Notice of Default .......................................... 66
9.6 Credit Decision ............................................ 66
9.7 Indemnification ............................................ 67
9.8 Administrative Agent in Individual Capacity ................ 68
9.9 Successor Administrative Agent ............................. 68
9.10 Co-Agents and Co-Arrangers ................................. 69
ARTICLE X
MISCELLANEOUS ........................................................ 69
10.1 Amendments and Waivers ..................................... 69
10.2 Notices .................................................... 70
10.3 No Waiver; Cumulative Remedies ............................. 71
10.4 Costs and Expenses ......................................... 71
10.5 Indemnity .................................................. 72
(a) General Indemnity .............................. 72
(b) Environmental Indemnity ........................ 72
(c) Survival; Defense .............................. 73
10.6 Marshalling; Payments Set Aside ............................ 73
10.7 Successors and Assigns ..................................... 74
10.8 Assignments, Participations, etc ........................... 74
10.9 Set-off .................................................... 76
10.10 Automatic Debits of Fees ................................... 77
10.11 Notification of Addresses, Lending Offices,
etc.......................................................... 77
10.12 Counterparts ............................................... 77
10.13 Severability ............................................... 77
10.14 No Third Parties Benefitted ................................ 78
10.15 Time ....................................................... 78
10.16 Governing Law and Jurisdiction ............................. 78
10.17 Waiver of Jury Trial ....................................... 78
10.18 Entire Agreement ........................................... 79
10.19 Interpretation ............................................. 79
iv.
List of Exhibits and Schedules
Exhibit A Form of Note
Exhibit B Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Certificate Regarding Certain Restricted
Payments
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Legal Opinion
Schedule 1.1 Material Subsidiary
Schedule 2.1 Commitments
Schedule 5.5 Litigation
Schedule 5.7 Certain ERISA Matters
Schedule 5.11 Material Indebtedness
Schedule 5.12 Certain Environmental Matters
Schedule 5.17 Subsidiaries
Schedule 5.18 Capitalization
Schedule 7.1 Existing Liens
Schedule 7.7 Existing Guaranty Obligations
v.
TERM LOAN AGREEMENT
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This TERM LOAN AGREEMENT is entered into as of January 5, 1995, among
ADVANCED MICRO DEVICES, INC. a Delaware corporation (the "Company"), the several
financial institutions from time to time party to this Agreement (collectively,
the "Banks"; individually, a "Bank"), ABN AMRO BANK N.V., as administrative
agent for the Banks, ABN AMRO BANK N.V. and CIBC Inc., as co-arrangers.
The Company has requested the Banks to make term loans to the Company in an
aggregate principal amount of up to $150,000,000. The Banks are willing to make
such loans to the Company upon the terms and subject to the conditions set forth
in this Agreement.
Accordingly, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
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1.1 Defined Terms. In addition to the terms defined elsewhere in this
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Agreement, the following terms have the following meanings:
"ABN" means ABN AMRO Bank N.V.
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"Acquiree" has the meaning specified in Section 7.4(d).
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"Acquisition" means any transaction or series of related
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transactions for the purpose of or resulting in (a) the acquisition,
directly or indirectly, of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition,
directly or indirectly, of in excess of 50% of the capital stock,
partnership interests or equity of any Person or otherwise causing any
Person to become a Subsidiary of the Company, or (c) a merger or
consolidation or any other combination by the Company or any Subsidiary of
the Company with another Person (other than a Person that is a Subsidiary
of the Company) provided that the Company or the Company's Subsidiary is
the surviving entity.
"Administrative Agent" means ABN AMRO Bank N.V. in its capacity as
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administrative agent for the Banks
1.
hereunder, and any successor agent arising under Section 9.9.
"Administrative Agent's Payment Office" means the address for
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payments set forth on the signature page hereto in relation to the
Administrative Agent or such other address as the Administrative Agent may
from time to time specify in accordance with Section 10.2.
"Affiliate" means, as to any Person, any other Person which,
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directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting securities, by
contract or otherwise. Without limitation, any director, executive officer
or beneficial owner of 5% or more of the equity of a Person shall for the
purposes of this Agreement, be deemed to control the other Person. In no
event shall any Bank be deemed an "Affiliate" of the Company or any
Subsidiary of the Company.
"Agent-Related Persons" has the meaning specified in Section 9.3.
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"Aggregate Commitment" means the combined Commitments of the Banks
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in the amount of One Hundred Fifty Million Dollars ($150,000,000), as such
amount may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Term Loan Agreement, as amended,
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supplemented or modified from time to time.
"Assignee" has the meaning specified in subsection 10.8(a).
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"Assignment and Acceptance" has the meaning specified in subsection
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10.8(a).
"Attorney Costs" means and includes all fees and disbursements of
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any law firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel.
"Bank Affiliate" means a Person engaged primarily in the business
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of commercial banking and that is a Subsidiary of a Bank, or a Subsidiary
of a Person of which a Bank is also a Subsidiary, or a Person of which a
Bank is a Subsidiary.
2.
"Banks" has the meaning specified in the introductory clause
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hereto.
"Base Rate" means the higher of:
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(a) the Prime Commercial Lending Rate of ABN as announced from time
to time by ABN at its Chicago office; and
(b) one-half percent per annum above the latest Federal Funds Rate.
Any change in the Prime Commercial Lending Rate announced by ABN
shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base
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Rate.
"Borrowing" means a borrowing hereunder consisting of Loans made to
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the Company on the same day by the Banks pursuant to Article II.
"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
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directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Lease Obligations" means all monetary obligations of the
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Company or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease.
"Cash Equivalents" means:
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(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof having maturities of
not more than 12 months from the date of acquisition;
3.
(b) certificates of deposit, time deposits, Eurodollar time
deposits, repurchase agreements, reverse repurchase agreements, or
bankers' acceptances, having in each case a tenor of not more than
12 months, issued by any Bank, or by any U.S. commercial bank or
any branch or agency of a non-U.S. bank licensed to conduct
business in the U.S. having combined capital and surplus of not
less than $100,000,000 whose short term securities are rated at
least A-1 by S&P or at least P-1 by Moody's;
(c) taxable and tax exempt commercial paper of an issuer rated
at least A-1 by S&P or at least P-l by Moody's and in either case
having a tenor of not more than 270 days;
(d) medium term notes of an issuer rated at least AA by S&P or
at least Aa2 by Moody's and having a remaining term of not more
than 12 months after the date of acquisition by the Company or its
Subsidiaries;
(e) municipal notes and bonds which are rated at least SP-1 or
AA by S&P or at least MIG-2 or Aa by Moody's with tenors of not
more than 12 months;
(f) investments in taxable or tax-exempt money market funds
with assets greater than $500,000,000 and whose assets have average
maturities less than or equal to 180 days and are rated at least A-
1 by S&P or at least P-1 by Moody's; or
(g) money market preferred instruments of an issuer rated at
least A-1 by S&P or at least P-1 by Moody's with tenors of not more
than 12 months.
"CERCLA" has the meaning specified in the definition of
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"Environmental Laws."
"Change in Control" means the direct or indirect acquisition by any
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person (as such term is used in Section 13(d) and Section 14(d)(2) of the
Exchange Act), or related persons constituting a group (as such term is
used in Rule 13d-5 under the Exchange Act), of
(i) beneficial ownership of issued and outstanding shares of
voting stock of the Company, the result of which acquisition is
that such person or such group possesses in excess of 20% of the
combined voting power of all then-issued and outstanding voting
stock of the Company, or
4.
(ii) the power to elect, appoint, or cause the election or
appointment of at least a majority of the members of the Board of
Directors.
"CIBC Inc." means CIBC Inc., a Delaware corporation.
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"CIBC Guaranty" means the Amended and Restated Guaranty dated as of
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December 17, 1993, by the Company in favor of CIBC Inc., as amended.
"CIBC Leases" means the Land Lease dated as of September 22, 1992,
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as amended by the First Amendment to Land Lease dated as of December 22,
1992 and by Second Amendment to Land Lease dated as of December 17, 1993,
and the Building Lease dated as of September 22, 1992, as amended by the
First Amendment to Building Lease dated as of December 22, 1992 and by
Second Amendment to Building Lease dated as of December 17, 1993, both of
which are between CIBC Inc. as Lessor and AMD International Sales &
Service, Ltd. as Lessee.
"Co-Agent" means Bank of America National Trust and Savings
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Association in its capacity as co-agent for the Banks hereunder, and any
successor co-agent.
"Co-Arrangers" means ABN AMRO Bank N.V. and CIBC Inc.
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"Code" means the Internal Revenue Code of 1986, as amended from
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time to time, and any regulations promulgated thereunder.
"Commitment" with respect to each Bank, has the meaning specified
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in Section 2.1.
"Commitment Percentage" means, as to any Bank, the percentage
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equivalent of such Bank's Commitment divided by the Aggregate Commitment.
"Consolidated Current Liabilities" means, as of any date of
--------------------------------
determination, all amounts which would, in accordance with GAAP, be
included under current liabilities on a consolidated balance sheet of the
Company and its Subsidiaries, but in any event including all outstanding
revolving credit loans under the Amended and Restated Credit Agreement
dated as of September 21, 1994 among the Company, Bank of America National
Trust and Savings Association, as Agent, The First National Bank of Boston,
as Co-Agent, and the other financial institutions party thereto, as
amended, extended, replaced or otherwise modified from time to time (the
"BofA Agreement"), and all other outstanding advances
5.
under any revolving credit arrangement in effect after termination of the
BofA Agreement.
"Consolidated Tangible Net Worth" means, at any time of
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determination, in respect of the Company and its Subsidiaries, determined
on a consolidated basis, total assets (exclusive of goodwill, licensing
agreements, patents, trademarks, trade names, organization expense,
treasury stock, unamortized debt discount and premium, deferred charges and
other like intangibles) less total liabilities (including accrued and
deferred income taxes and Subordinated Debt), at such time.
"Contractual Obligations" means, as to any Person, any obligation
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of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means the Company and all Persons (whether or
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not incorporated) under common control or treated as a single employer with
the Company pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Company elects to
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convert a Base Rate Loan to an Offshore Rate Loan; or an Offshore Rate Loan
to a Base Rate Loan.
"Convertible Exchangeable Preferred Repurchase Program" means the
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repurchase or redemption by the Company of Convertible Exchangeable
Preferred Stock in consideration for the issuance of shares of common stock
of the Company or the payment of cash by the Company; provided, however,
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that no payment of cash shall be made by the Company on account of such
repurchase or redemption, unless:
(a) the Company has entered into a firm standby arrangement
with an underwriting firm of national repute whereunder such
underwriting firm is obligated, subject to customary conditions and
termination events, to purchase common stock from the Company at a
price and in an amount sufficient to fund the repurchase or
redemption of the Convertible Exchangeable Preferred Stock, which
standby arrangement shall be used by the Company to the maximum
possible extent to fund such repurchase or redemption of
Convertible Exchangeable Preferred Stock;
6.
(b) after giving effect to any such payment, there does not
exist any Default or Event of Default; and
(c) all such payments are made no later than
September 21, 1995.
"Convertible Exchangeable Preferred Stock" means the Company's
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$30.00 Convertible Exchangeable Preferred Shares, par value $0.10 per
share, outstanding as of April 12, 1994.
"Default" means any event or circumstance which, with the giving of
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notice, the lapse of time, or both, would (if not cured or otherwise
remedied) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
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States.
"Domestic Lending Office" means, with respect to each Bank, the
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office of that Bank designated as such in the signature pages hereto or
such other office of the Bank as it may from time to time specify to the
Company and the Administrative Agent.
"Eligible Assignee" means (i) a commercial bank organized under the
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laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (iii) any Bank
Affiliate acting through a branch or agency in the United States.
"Environmental Claims" means all claims, however asserted, by any
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Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent,
7.
sudden or non-sudden, accidental or non-accidental placement, spills,
leaks, discharges, emissions or releases) of any Hazardous Material at, in,
or from Property, whether or not owned by the Company, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
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statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right-to-Know
Act, the California Hazardous Waste Control Law, the California Solid Waste
Management, Resource, Recovery and Recycling Act, the California Water Code
and the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of 1974,
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as amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) under common control with the Company within the meaning of
Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
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Qualified Plan or a Multiemployer Plan; (b) a withdrawal by the Company or
any ERISA Affiliate from a Qualified Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a) (2) of ERISA); (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of
a notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan
subject to Title IV of ERISA; (e) a failure by the Company or any member of
the Controlled Group to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Qualified
8.
Plan or Multiemployer Plan; (g) the imposition of any liability under Title
IV of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate; (h) an application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code with respect to any Plan; (i) a non-exempt
prohibited transaction occurs with respect to any Plan for which the
Company or any Subsidiary of the Company may be directly or indirectly
liable; or (j) a violation of the applicable requirements of Section 404 or
405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code
by any fiduciary or disqualified person with respect to any Plan for which
the Company or any member of the Controlled Group may be directly or
indirectly liable.
"Eurodollar Reserve Percentage" means the maximum reserve
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requirement percentage (including any ordinary, supplemental, marginal and
emergency reserves), if any, as determined by the Administrative Agent,
then applicable under Regulation D in respect of Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities") of a member bank in
the Federal Reserve System with deposits exceeding $1,000,000,000.
"Event of Default" means any of the events or circumstances
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specified in Section 8.1.
"Exchange Act" means the Securities and Exchange Act of 1934, and
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regulations promulgated thereunder.
"Federal Funds Rate" means, for any day, the rate set forth in the
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weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by
the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any successor thereof.
"Fee Letter" has the meaning specified in subsection 2.8(c).
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9.
"Fixed Charge Coverage Ratio" means, determined as of the last day
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of any fiscal quarter for the Company and its Subsidiaries, determined on a
consolidated basis, the ratio of (a) the sum of interest expense, operating
lease expense and pre-tax income for the then-ending fiscal quarter and the
three fiscal quarters immediately preceding such quarter, to (b) the sum of
(i) interest expense and operating lease expense for the same four fiscal
quarter period, plus (ii) the average of the current portion of long-term
debt (as determined in accordance with GAAP) as of the end of each of the
four fiscal quarters in such four fiscal quarter period.
"Funding Date" means the date of the making of the initial Loans.
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"GAAP" means generally accepted accounting principles set forth
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from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), or in such other statements by
such other entity as may be in general use by significant segments of the
U.S. accounting profession, which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or government, any state
----------------------
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty Obligation" means, as applied to any Person, any direct
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or indirect liability of that Person with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance or
provide funds (i) for the payment or discharge of any such primary
obligation, or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or
10.
financial condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof. The amount of any Guaranty Obligation shall be deemed equal to
the stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Hazardous Materials" means all those substances which are
-------------------
regulated by, or which may form the basis of liability under, any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constituent, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
"Indebtedness" of any Person means without duplication, (a) all
------------
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services; (c) all
reimbursement obligations with respect to surety bonds, letters of credit,
bankers' acceptances and similar instruments; (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations
so evidenced incurred in connection with the acquisition of property,
assets or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all Capital Lease Obligations; (g) all net obligations
with respect to Rate Contracts; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (g) above.
11.
"Indemnified Person" has the meaning specified in Section 10.5.
------------------
"Indemnified Liabilities" has the meaning specified in Section
-----------------------
10.5.
"Indenture" means the Indenture dated as of March 25, 1987, between
---------
the Company and The Bank of New York as in effect on September 21, 1994.
"Insolvency Proceeding" means (a) any case, action or proceeding
---------------------
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors or
other, similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case (a) and (b) undertaken
under U.S. Federal, State or foreign law.
"Interest Payment Date" means, with respect to any Offshore Rate
---------------------
Loan, the last day of each Interest Period applicable to such Loan and,
with respect to Base Rate Loans, the last Business Day of each calendar
quarter and each date a Base Rate Loan is converted into an Offshore Rate
Loan; provided, however, that if any Interest Period for an Offshore Rate
-------- -------
Loan exceeds three months, the date which falls three months after the
beginning of such Interest Period shall also be an "Interest Payment Date".
"Interest Period" means, with respect to any Offshore Rate Loan,
---------------
the period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to the
Offshore Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its notice of borrowing pursuant
to Section 2.3 or in its Notice of Conversion/Continuation;
provided that:
--------
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, that Interest Period shall be extended to
the next succeeding Business Day, unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
12.
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the date that is
four years after the Funding Date.
"Investments" has the meaning specified in Section 7.4.
-----------
"Lending Office" means, with respect to any Bank, the office or
--------------
offices of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, beneath its name
on the signature pages hereto, or such other office or offices of such Bank
as it may from time to time specify to the Company and the Administrative
Agent.
"Leverage Ratio" means, at any time, the ratio of total
--------------
consolidated liabilities to Consolidated Tangible Net Worth at that time.
"LIBOR" means, for any Interest Period, with respect to Offshore
-----
Rate Loans comprising part of the same Borrowing, a rate per annum equal to
the arithmetic mean (rounded upwards if necessary to the nearest 1/16 of
one percent) of the rates per annum appearing on Telerate Page 3750 (or any
successor publication) on the second Business Day prior to the commencement
of such Interest Period at or about 11:00 a.m. (London time) (for delivery
on the first day of such Interest Period) for a term comparable to such
Interest Period and in an amount approximately equal to the amount of the
Offshore Rate Loan to be made or funded by the Administrative Agent as part
of such Borrowing. If for any reason rates are not available as provided
in the preceding sentence, the rate to be used shall be the rate per annum
at which Dollar deposits are offered to the Administrative Agent in the
London interbank eurodollar currency market on the second Business Day
prior to the commencement of such Interest Period at or about 11:00 a.m.
(London time) for delivery on the first day of such Interest Period and in
an amount approximately equal to the amount of the Offshore Rate Loan to be
made or funded by the Administrative Agent as part of such Borrowing.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, charge or deposit arrangement,
13.
encumbrance, lien (statutory or other) or preference, priority or other
security interest or preferential arrangement of any kind or nature
whatsoever (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease Obligation, any financing lease having
substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which
such lien relates as debtor, under the UCC or any comparable law), and any
contingent or other agreement to provide any of the foregoing.
"Loan" has the meaning specified in Section 2.1, and may be an
----
Offshore Rate Loan or a Base Rate Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter
--------------
and all documents and/or instruments executed and delivered to the
Administrative Agent or any of the Banks in connection herewith or
therewith.
"Long Term Investments" means those investments described below,
---------------------
provided that such investments shall have maturities of greater than one
year, but not longer than three years:
(a) securities issued or fully guaranteed or fully insured by
the United States government or any agency thereof and backed by
the full faith and credit of the United States;
(b) certificates of deposit, time deposits, eurodollar time
deposits, repurchase agreements, or banker's acceptances that are
issued by either one of the 30 largest (in assets) banks in the
United States or by one of the 100 largest (in assets) banks in the
world whose long term securities are rated at least AA by S&P or at
least Aa2 by Moody's;
(c) commercial paper and money market preferred instruments of
an issuer rated at least A-1 by S&P or at least P-1 by Moody's;
(d) investments in taxable or tax-exempt money market funds
with assets greater than $500,000,000 and whose assets have average
maturities less than or equal to 12 months; and which are rated at
least AA by S&P or at least Aa2 by Moody's; and
(e) municipal notes and bonds which are rated at least AA by
S&P or at least Aa2 by Moody's.
14.
"Majority Banks" means, at any time, Banks having at least 66-2/3%
--------------
of the then aggregate unpaid principal amount of the Loans or, for any
period in which no Loans are outstanding, Banks having at least 66-2/3% of
the aggregate Commitments.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in, or a
-----------------------
material adverse effect upon, any of (a) the operations, business,
properties or condition (financial or otherwise) of the Company or the
Company and its Subsidiaries taken as a whole; (b) the ability of the
Company to perform under any Loan Document and avoid any Event of Default;
or (c) the legality, validity, binding effect or enforceability of any Loan
Document.
"Material Subsidiary" means, at any time, any Subsidiary of the
-------------------
Company (a) listed on Schedule 1.1 hereto, or (b) having at such time
------------
either (i) total (gross) revenues for the preceding four fiscal quarters in
excess of 5% of gross revenue for the Company and its Subsidiaries on a
consolidated basis, or (ii) total assets, as of the last day of the
preceding quarter, having a net book value in excess of 5% of total assets
for the Company and its Subsidiaries on a consolidated basis, in each case,
based upon the Company's most recent annual or quarterly financial
statements delivered to the Administrative Agent pursuant to Section 6.1.
"Moody's" means Moody's Investors Service, Inc. and any successor
-------
thereto that is a nationally recognized rating agency.
"Multiemployer Plan" means a "multiemployer plan" (within the
------------------
meaning of Section 4001(a)(3) of ERISA) and to which any member of the
Controlled Group makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been obligated
to make, contributions.
"Net Proceeds" means, with respect to a sale of equity securities,
------------
the gross proceeds thereof reduced by all reasonable out-of-pocket costs
and expenses paid or incurred by the Company directly in connection
therewith, including underwriter's commissions or discounts, registration
and filing fees, legal and accounting fees, and printing costs, all as
determined in accordance with GAAP.
15.
"Note" means a promissory note executed by the Company in favor of
----
a Bank pursuant to subsection 2.2, in substantially the form of Exhibit A.
---------
"Notice of Conversion/Continuation" means a notice given by the
---------------------------------
Company to the Administrative Agent pursuant to Section 2.4, in
substantially the form of Exhibit B.
---------
"Notice of Lien" means any "notice of lien" or similar document
--------------
intended to be filed or recorded with any court, registry, recorder's
office, central filing office or other Governmental Authority for the
purpose of evidencing, creating, perfecting or preserving the priority of a
Lien securing obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
-----------
debts, liabilities, obligations, covenants and duties owing by the Company
to any Bank, the Administrative Agent, or any other Person required to be
indemnified under any Loan Document, of any kind or nature, arising under
this Agreement or under any other Loan Document; present or future, whether
or not evidenced by any note, guaranty or other instrument, whether or not
for the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification or in any other manner, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
however acquired.
"Offshore Lending Office" means with respect to each Bank, the
-----------------------
office of such Bank designated as such in the signature pages hereto or
such other office of such Bank as such Bank may from time to time specify
to the Company and the Administrative Agent.
"Offshore Rate" means for each Interest Period the rate per annum
-------------
(rounded upward, if necessary, to the nearest 1/16 of 1%) determined by the
Administrative Agent pursuant to the following formula:
LIBOR
------------------------------------
Offshore Rate = 100% - Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as of the effective date
of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means any Loan that bears interest at a rate
------------------
determined with reference to the Offshore Rate.
16.
"Offshore Subsidiary" means any Subsidiary of the Company
-------------------
incorporated or otherwise organized under the laws of a jurisdiction other
than one of the 50 states of the United States or the District of Columbia.
"Ordinary Course of Business" means, in respect of any transaction
---------------------------
involving the Company or any Subsidiary of the Company, the ordinary course
of such Person's business substantially consistent with past practice.
"Organization Documents" means, for any corporation, the
----------------------
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation.
"Other Taxes" has the meaning specified in subsection 3.1(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in subsection 10.8(d).
-----------
"Permitted Liens" has the meaning specified in Section 7.1.
---------------
"Person" means an individual, partnership, corporation, business
------
trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3)
----
of ERISA) which the Company or any member of the Controlled Group sponsors
or maintains or to which the Company or any member of the Controlled Group
makes, is making or is obligated to make contributions, and includes any
Multiemployer Plan or Qualified Plan.
"Property" means any estate or interest in any kind of property or
--------
asset, whether real, personal or mixed, and whether tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section 3(2)
--------------
of ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which
it makes, is making or is obligated to make contributions, or in the
17.
case of a multiple employer plan (as described in Section 4064(a) of ERISA)
has made contributions at any time during the immediately preceding period
covering at least five (5) plan years, but excluding any Multiemployer
Plan.
"Rate Contracts" means interest rate and currency swap agreements,
--------------
cap, floor and collar agreements, interest rate insurance, currency spot
and forward contracts and other agreements or arrangements designed to
provide protection against fluctuations in interest or currency exchange
rates.
"Receivable" means an account (as such term is defined in the
----------
California UCC) owned by the Company which has arisen in the ordinary
course of the business of the Company from the sale of inventory or the
provision of services by the Company in the normal course of business and
all moneys due or to become due, and all rights and claims arising
thereunder and all rights related thereto, including those assertable
against other Persons in addition to the obligor.
"Reportable Event" means, as to any Plan, (a) any of the events set
----------------
forth in Section 4043 (b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement under ERISA has
been waived in regulations issued by the PBGC, (b) a withdrawal from a Plan
described in Section 4063 of ERISA, or (c) a cessation of operations
described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"Responsible Officer" means the chief executive officer or the
-------------------
president of the Company, or any other officer having substantially the
same authority and responsibility or, with respect to financial matters,
the chief financial officer or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility.
"S&P" means Standard & Poor's Rating Group of Standard & Poor's
---
Corporation and any successor thereto that is a nationally recognized
rating agency.
"SEC" means the Securities and Exchange Commission, or any
---
successor thereto.
18.
"Subordinated Debt" means any Indebtedness of the Company that,
-----------------
pursuant to the instrument evidencing or governing such Indebtedness, is
subordinate in right of payment to the Obligations.
"Subsidiary" of a Person means any corporation, association,
----------
partnership, joint venture or other business entity of which more than 50%
of the voting stock or other equity interests (in the case of Persons other
than corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a combination
thereof.
"Taxes" has the meaning specified in subsection 3.1(a).
-----
"Transferee" has the meaning specified in subsection 10.8(e).
----------
"UCC" means the Uniform Commercial Code as in effect in any
---
jurisdiction.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
----------------------------
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used by
the Plan's actuaries for funding the Plan pursuant to section 412 for the
applicable plan year.
"United States" and "U.S." each means the United States of America.
------------- ----
"Wholly Owned Subsidiary" means any corporation in which (other
-----------------------
than directors' qualifying shares required by law and other than other
shares of a de minimis amount issued to and held by others for the benefit
of the Company or another wholly owned subsidiary) 100% of the capital
stock of each class having ordinary voting power, and 100% of the capital
stock of every other class, in each case, at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Company, or by one or more of the other Wholly Owned Subsidiaries, or both.
"Withdrawal Liabilities" means, as of any determination date, the
----------------------
aggregate amount of the liabilities, if any, pursuant to Section 4201 of
ERISA if the Controlled Group made a complete withdrawal from all
Multiemployer Plans and any increase in contributions pursuant to Section
4243 of ERISA.
1.2 Other Definitional Provisions.
-----------------------------
19.
(a) Defined Terms. Unless otherwise specified herein or therein, all
-------------
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. The meaning of
defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and
-------------
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) Certain Common Terms.
--------------------
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) The term "pro rata" means ratably in accordance with
the respective Commitment Percentages.
(d) Performance; Time. Whenever any performance obligation
-----------------
hereunder (other than a payment obligation) shall be stated to be due or
required to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including"; the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including". If any
provision of this Agreement refers to any action taken or to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
interpreted to encompass any and all means, direct or indirect, of taking, or
not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
---------
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
----
construed as including all statutory and regulatory
20.
provisions which by their terms consolidate, amend or replace the statute or
regulation.
(g) Captions. The captions and headings of this Agreement are for
--------
convenience of reference only and shall not affect the construction of this
Agreement.
(h) Independence of Provisions. The parties acknowledge that this
--------------------------
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.
1.3 Accounting Principles.
---------------------
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
ARTICLE II
THE LOANS
---------
2.1 Term Loans. Each Bank severally agrees, on the terms and
----------
conditions hereinafter set forth, to make a single term loan (each a "Loan" and,
collectively, the "Loans") to the Company on the Funding Date in a principal
amount equal to such Bank's Commitment Percentage times the amount of the
Borrowing on the Funding Date, but not exceeding the amount set forth opposite
such Bank's name in Schedule 2.1 under the heading "Commitment" (such amount as
------------
the same may be reduced as a result of one or more assignments pursuant to
Section 10.8, the Bank's "Commitment"). Any amount of the Loans repaid may not
be reborrowed. The Funding Date shall be January 5, 1995 (or such later date on
or before January 13, 1995 as may be agreed in writing by the Company and the
Administrative Agent), provided that all conditions precedent set forth in
Article 4 with respect to the making of the initial Loans are satisfied or
waived by all Banks.
21.
2.2 Loan Accounts; Notes.
--------------------
(a) The Loan made by each Bank shall be evidenced by one or more
loan accounts or records maintained by such Bank in the ordinary course of
business. The loan accounts or records maintained by the Administrative Agent
and each Bank shall be conclusive absent manifest error as to the amount of the
Loan made by the Banks to the Company and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loan. In case of a discrepancy between the entries in the
Administrative Agent's books and any Bank's books, such Bank's books shall
constitute prima facie evidence of the accuracy of the information so recorded.
-----------
(b) As additional evidence of the Indebtedness of the Company to
each Bank resulting from the Loan made by such Bank, the Company shall execute
and deliver for the account of each Bank pursuant to Article IV a Note, dated
the Funding Date, in the principal amount of the Loan made by such Bank on the
Funding Date. Each Bank shall endorse on the schedules annexed to its Note the
date, amount and maturity of the Loan made by it and the amount of each payment
of principal made by the Company with respect thereto. Each Bank is irrevocably
authorized by the Company to endorse its Note and each Bank's record shall be
prima facie evidence of the accuracy of the information so recorded; provided,
- - ----------- --------
however, that the failure of a Bank to make, or an error in making, a notation
- - -------
thereon with respect to its Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank.
2.3 Procedure for Borrowing.
-----------------------
(a) The Borrowing to be made on the Funding Date shall be made upon
the irrevocable written notice (including notice via facsimile confirmed
immediately by a telephone call) of the Company, which notice must be received
by the Administrative Agent, not later than 10:00 a.m. (San Francisco time), (i)
three Business Days prior to the Funding Date, in the case of Offshore Rate
Loans, and (ii) one Business Day before the Funding Date, in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of Five Million dollars
($5,000,000) or any multiple of One Million dollars ($1,000,000) in
excess thereof;
(B) the requested borrowing date, which shall be a
Business Day; and
22.
(C) whether the borrowing is to be comprised of Offshore
Rate Loans or Base Rate Loans; and
(D) if the Borrowing is to be comprised of Offshore Rate
Loans, the duration of the Interest Period applicable to the Loans
included in such Borrowing. If the notice of borrowing shall fail
to specify the duration of the Interest Period, the Interest Period
for such Loans shall be three months.
(b) Upon receipt of such notice of borrowing, the Administrative
Agent will promptly notify each Bank thereof and of the amount of such Bank's
Commitment Percentage of the Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage of
the Borrowing available to the Administrative Agent for the account of the
Company at the Administrative Agent's Payment Office by 11:00 a.m. (San
Francisco time) on the borrowing date requested by the Company in funds
immediately available to the Administrative Agent. Unless any applicable
condition specified in Article IV has not been satisfied, the proceeds of all
such Loans will then be made available to the Company by the Administrative
Agent at such office by crediting the account of the Company on the books of ABN
with the aggregate of the amounts made available to the Administrative Agent by
the Banks and in like funds as received by the Administrative Agent.
2.4 Conversion and Continuation Elections.
-------------------------------------
(a) The Company may upon irrevocable written notice to the
Administrative Agent in accordance with subsection 2.4(b):
(i) elect to convert on any Business Day any Base Rate Loans
(or any part thereof in an amount not less than $5,000,000, or that is in
an integral multiple of $1,000,000 in excess thereof) into Offshore Rate
Loans;
(ii) elect to convert on any Interest Payment Date any
Offshore Rate Loans maturing on such Interest Payment Date (or any part
thereof in an amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into Base Rate Loans; or
(iii) elect to renew on any Interest Payment Date any Offshore
Rate Loans maturing on such Interest Payment Date (or any part thereof in
an amount not less than $5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
23.
provided, that if the aggregate amount of Offshore Rate Loans shall have been
- - --------
reduced, by payment, prepayment, or conversion of part thereof to be less than
$1,000,000, the Offshore Rate Loans shall automatically convert into Base Rate
Loans, and on and after such date the right of the Company to continue such
Loans as Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation
(including delivery via facsimile confirmed immediately by a telephone call), to
be received by the Administrative Agent not later than 9:00 a.m. (San Francisco
time) at least (i) three Business Days in advance of the Conversion Date or
continuation date, if the Loans are to be converted into or continued as
Offshore Rate Loans; and (ii) on the Conversion Date or continuation date, if
the Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion Date or continuation date;
(B) the aggregate amount of Loans to be converted or renewed;
(C) the nature of the proposed conversion or continuation; and
(D) the duration of the requested Interest Period, if the Loans
are to be converted into or continued as Offshore Rate Loans.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select a new Interest Period to
be applicable to such Offshore Rate Loans, or if any Default or Event of Default
shall then exist, the Company shall be deemed to have elected to convert such
Offshore Rate Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation, the
Administrative Agent will promptly notify each Bank thereof, or, if (i) the
Company has failed to select a new Interest Period or (ii) the Administrative
Agent has received notice of a Default or Event of Default pursuant to Section
9.5, the Administrative Agent will promptly notify each Bank of the details of
any automatic conversion.
(e) All conversions and continuations shall be made pro rata by each
Bank according to the respective outstanding principal amounts of the Loans with
respect to which the Notice of Conversion/Continuation was given.
24.
(f) Unless the Majority Banks otherwise agree, during the existence of
a Default or Event of Default, the Company may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(g) Notwithstanding any other provision contained in this Agreement,
unless consented to by the Administrative Agent in its sole discretion, after
giving effect to any conversion or continuation of any Loans, there shall not be
more than six different Interest Periods in effect.
2.5 Optional Prepayments. Subject to Section 3.4, the Company may, at
--------------------
any time or from time to time, upon at least three Business Days' written notice
to the Administrative Agent with respect to Offshore Rate Loans, or one Business
Day's written notice (prior to 9:00 a.m. San Francisco time) to the
Administrative Agent with respect to Base Rate Loans, ratably prepay Loans in
whole or in part, in amounts of $5,000,000 or any multiple of $1,000,000 in
excess thereof. Such notice of prepayment shall specify the date and amount of
such prepayment and whether such prepayment is of Base Rate Loans or Offshore
Rate Loans, or any combination thereof. Such notice shall not thereafter be
revocable by the Company and the Administrative Agent will promptly notify each
Bank thereof and of such Bank's Commitment Percentage of such prepayment. If
such notice is given, the Company shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount prepaid
and the amounts required pursuant to Section 3.4.
2.6 Repayment.
---------
(a) The Company shall repay to the Banks the aggregate principal
amount of the Loans in full on the fourth anniversary of the Funding Date.
(b) The Company shall repay the unpaid principal amount of all Loans,
together with all accrued and unpaid interest, and all other amounts owing or
payable hereunder, together with amounts owing under Section 3.4, immediately
upon the occurrence of any Change in Control.
2.7 Interest.
--------
(a) The Company shall pay interest on the unpaid principal amount of
each Loan from the date of such Loan until the maturity thereof, at the
following rates:
25.
(i) during such periods as such Loan is a Base Rate Loan, at a
rate per annum equal at all times to the Base Rate; and
(ii) during such periods as such Loan is an Offshore Rate Loan,
at a rate per annum equal at all times during each Interest Period for such
Offshore Rate Loan to the Offshore Rate for such Interest Period plus
----
1.125%.
(b) Interest on each Loan shall be payable in arrears on each Interest
Payment Date. Interest shall also be payable on the date of any prepayment of
Loans for the portion of the Loans so prepaid and upon payment (including
prepayment) in full thereof and, during the existence of any Event of Default,
interest shall be payable on demand.
(c) If any amount of principal of or interest on any Loan, or any
other amount payable hereunder or under any of the other Loan Documents, is not
paid in full when due (whether at stated maturity, by acceleration, demand or
otherwise), the Company agrees to pay interest on such unpaid principal or other
amount, from the date such amount becomes due until the date such amount is paid
in full, and after as well as before any entry of judgment thereon, payable on
demand, at a rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
2.8 Fees.
----
(a) Administration Fee. In consideration of the Administrative
------------------
Agent's efforts in administering this facility, the Company shall pay to the
Administrative Agent for the Administrative Agent's own account an
administration fee in the amount and at the times set forth in the letter
agreement between the Company and the Administrative Agent (the "Fee Letter").
(b) Other Fees. The Company shall pay to the Administrative Agent for
----------
the Administrative Agent's own account, and to CIBC Inc. for CIBC Inc.'s own
account, such other fees, and in such amounts, as set forth in letter agreements
between
26.
the Administrative Agent and CIBC Inc., respectively, and the Company.
2.9 Computation of Fees and Interest.
--------------------------------
(a) All computations of interest payable in respect of Base Rate Loans
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest under this
Agreement shall be made on the basis of a 360-day year and actual days elapsed,
which results in more interest being paid than if computed on the basis of a
365-day year. Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
(b) The Administrative Agent will, with reasonable promptness, notify
the Company and the Banks of each determination of an Offshore Rate, provided
--------
that any failure to do so shall not relieve the Company of any liability
hereunder or provide any basis for any claim by the Company or any Bank against
the Administrative Agent.
(c) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Company and the Banks in the absence of manifest error.
2.10 Payments by the Company.
-----------------------
(a) All payments (including prepayments) to be made by the Company on
account of principal, interest, fees and other amounts required hereunder shall
be made without set-off or counterclaim and shall, except as otherwise expressly
provided herein, be made to the Administrative Agent for the ratable account of
the Banks at the Administrative Agent's Payment Office, in dollars and in
immediately available funds, no later than 10:00 a.m. (San Francisco time) on
the date specified herein. The Administrative Agent will promptly distribute to
each Bank its Commitment Percentage (or other applicable share as expressly
provided herein) of such principal, interest, fees or other amounts, in like
funds as received. Any payment which is received by the Administrative Agent
later than 10:00 a.m. (San Francisco time) shall be deemed to have been received
on the immediately succeeding Business Day and any applicable interest or fee
shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of
27.
interest or fees, as the case may be; subject to the provisions set forth in the
definition of "Interest Period" herein.
(c) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Banks hereunder
that the Company will not make such payment in full, the Administrative Agent
may assume that the Company has made such payment in full to the Administrative
Agent on such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent the Company shall not have made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate as in effect for each such day.
2.11 Payments by the Banks to the Administrative Agent.
-------------------------------------------------
(a) Unless the Administrative Agent shall have received notice from a
Bank on the Funding Date that such Bank will not make available to the
Administrative Agent for the account of the Company the amount of that Bank's
Commitment Percentage of the Borrowing, the Administrative Agent may assume that
each Bank has made such amount available to the Administrative Agent in
immediately available funds by 11:00 a.m. (San Francisco time) on the Funding
Date and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not have made its full
amount available to the Administrative Agent in immediately available funds by
11:00 a.m. (San Francisco time) and the Administrative Agent in such
circumstances has made available to the Company such amount, that Bank shall on
the next Business Day following the Funding Date make such amount available to
the Administrative Agent, together with interest at the Federal Funds Rate for
and determined as of each day during such period. A certificate of the
Administrative Agent submitted to any Bank with respect to amounts owing under
this subsection 2.11(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Administrative Agent shall
constitute such Bank's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the next Business Day following the Funding Date, the Administrative Agent shall
notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent's account,
28.
together with interest thereon for each day elapsed since the Funding Date, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Loan on the Funding Date shall
not relieve any other Bank of any obligation hereunder to make a Loan on the
Funding Date, but no Bank shall be responsible for the failure of any other Bank
to make the Loan to be made by such other Bank on the Funding Date.
2.12 Sharing of Payments, etc. If, other than as expressly contemplated
------------------------
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Commitment Percentage of payments on
account of the Loans obtained by all the Banks, such Bank shall forthwith (a)
notify the Administrative Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
-------- -------
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid thereto together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.12 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.9)
with respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error), of participations purchased pursuant to this Section 2.12 and
will in each case notify the Banks following any such purchases.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
3.1 Taxes.
-----
(a) Subject to subsection 3.1(g), any and all payments by the Company
to each Bank or the Administrative Agent under this Agreement shall be made free
and clear of, and without
29.
deduction or withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Bank and the Administrative Agent, such
taxes (including income taxes or franchise taxes) as are imposed on or measured
by each Bank's net income by the jurisdiction or any political subdivision
thereof under the laws of which such Bank or the Administrative Agent, as the
case may be, is organized or maintains a Lending Office (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes").
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 3.1(g), the Company shall indemnify and hold
harmless each Bank and the Administrative Agent for the full amount of Taxes or
Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.1) paid by the Bank or the Administrative
Agent and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, and relating to the
transactions contemplated hereby, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within 30 days from the date the Bank or the Administrative Agent makes written
demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any Bank
or the Administrative Agent, then, subject to subsection 3.1(g):
(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section 3.1)
such Bank or the Administrative Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made;
(ii) the Company shall make such deductions and withholdings;
30.
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxation authority or other authority in accordance with
applicable law; and
(iv) the Company shall also pay to each Bank, or the
Administrative Agent for the account of such Bank, at the time the sum
payable is paid, all additional amounts which the respective Bank specifies
as necessary to preserve the after-tax yield the Bank would have received
if such Taxes or Other Taxes had not been imposed. Such additional amounts
required to be paid to such Bank shall be computed by a formula,
(w) (t) (i)
y = ---------------
l-w-t
where the terms are defined as follows:
y = amount of additional payment;
w = rate of Taxes or Other Taxes imposed with respect to the sum
payable;
t = combined U.S. federal and state income and franchise tax rate
applicable to the Bank; and
i = amount of the sum payable with respect to which such Taxes or
Other Taxes are imposed.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes, the Company shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the Administrative Agent.
(f) Each Bank which is a foreign person (i.e., a person other than
a United States person for United States Federal income tax purposes) agrees
that:
(i) it shall, no later than the Funding Date (or, in the case
of a Bank which becomes a party hereto pursuant to Section 10.7 after the
Funding Date, the date upon which the Bank becomes a party hereto) deliver
to the Company through the Administrative Agent two accurate and complete
signed originals of Internal Revenue Service Form 4224 or any successor
thereto ("Form 4224"), or two accurate and complete signed originals of
Internal Revenue Service Form 1001 or any successor thereto ("Form 1001"),
as appropriate, in each case indicating that the Bank is on the date of
delivery thereof entitled to receive payments of
31.
principal, interest and fees under this Agreement free from withholding of
United States Federal income tax;
(ii) if at any time the Bank makes any changes necessitating a
new form, it shall with reasonable promptness deliver to the Company
through the Administrative Agent in replacement for, or in addition to, the
forms previously delivered by it hereunder, two accurate and complete
signed originals of Form 4224; or two accurate and complete signed
originals of Form 1001, as appropriate, in each case indicating that the
Bank is on the date of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free from withholding of
United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any
event (including the passing of time but excluding any event mentioned in
(ii) above) requiring a change in or renewal of the most recent Form 4224
or Form 1001 previously delivered by such Bank, deliver to the Company
through the Administrative Agent two accurate and complete original signed
copies of Form 4224 or Form 1001 in replacement for the forms previously
delivered by the Bank; and
(iv) it shall, promptly upon the Company's reasonable request to
that effect, deliver to the Company such other forms or similar
documentation as may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Bank's tax status for
withholding purposes.
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to subsection 3.1(d) to any
Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank to comply with its obligations
under subsection 3.1(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company a Form 4224
in respect of such Lending Office pursuant to subsection 3.1(f), and such
Bank shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments by
the Company hereunder for the account of such Lending Office for any reason
other than a change in United States law or regulations or in the official
interpretation of such law or regulations by any governmental authority
32.
charged with the interpretation or administration thereof (whether or not
having the force of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a Form 1001
in respect of such Lending Office pursuant to subsection 3.1(f), and such
Bank shall not at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments by
the Company hereunder for the account of such Lending Office for any reason
other than a change in United States law or regulations or any applicable
tax treaty or regulations or in the official interpretation of any such
law, treaty or regulations by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force
of law) after the date of delivery of such Form 1001.
(h) If, at any time, the Company requests any Bank to deliver any
forms or other documentation pursuant to subsection 3.1(f)(iv), then the Company
shall, on demand of such Bank through the Administrative Agent, reimburse such
Bank for any costs and expenses (including Attorney Costs) reasonably incurred
by such Bank in the preparation or delivery of such forms or other
documentation.
(i) If the Company is required to pay additional amounts to any Bank
or the Administrative Agent pursuant to subsection 3.1(d), then such Bank shall
use its reasonable best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter accrue
if such change in the judgment of such Bank is not otherwise disadvantageous to
such Bank.
(j) If any Bank or the Administrative Agent receives any refund from
any taxing authority of any Tax or Other Tax as to which the Company has
indemnified such Bank or the Administrative Agent (as the case may be) under
subsection (c) of this Section, or as to which the Company has made payment
under subsection 3.1(d)(iii), due to a mistake in its assessment, then such Bank
or the Administrative Agent (as the case may be) will promptly notify the
Company of such refund and will reimburse the Company to the extent of such
refund or the amount of payment or indemnification made by the Company,
whichever is less.
3.2 Illegality.
----------
(a) If any Bank shall determine that the introduction of any
Requirement of Law or any change therein or in the interpretation or
administration thereof has made it
33.
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its Lending Office to make Offshore Rate
Loans, then, on notice thereof by the Bank to the Company through the
Administrative Agent, the obligation of the Bank to make Offshore Rate Loans
shall be suspended until the Bank shall have notified the Administrative Agent
and the Company that the circumstances giving rise to such determination no
longer exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore Rate Loans of
the Bank then outstanding, together with interest accrued thereon, either on the
last day of the Interest Period thereof if the Bank may lawfully continue to
maintain such Offshore Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Offshore Rate Loans, together with any
amounts required to be paid in connection therewith pursuant to Section 3.4.
(c) If the Company is required to prepay any Offshore Rate Loan
immediately as provided in subsection 3.2(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
3.3 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the Company shall
be liable for, and shall from time to time, upon demand therefor by such Bank
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank, with any Capital
Adequacy Regulation; affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration
34.
such Bank's or such corporation's policies with respect to capital adequacy and
such Bank's desired return on capital) determines that the amount of such
capital is increased as a consequence of its loans, credits or obligations under
this Agreement, then, upon demand of such Bank (with a copy to the
Administrative Agent), the Company shall immediately pay to the Banks from time
to time as specified by the Bank, additional amounts sufficient to compensate
the Bank for such increase.
3.4 Funding Losses. The Company agreed to reimburse each Bank and to
--------------
hold each Bank harmless from any loss, cost or expense which the Bank may
sustain or incur as a consequence of:
(a) any failure of the Company to make any payment or prepayment of
principal of any Offshore Rate Loan (including payments pursuant to subsection
2.6(b) or payments made after any acceleration thereof);
(b) any failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a notice of borrowing
pursuant to Section 2.3 or a Notice of Conversion/Continuation;
(c) any failure of the Company to make any prepayment after the
Company has given a notice in accordance with Section 2.5;
(d) any prepayment of an Offshore Rate Loan on a day which is not the
last day of the Interest Period with respect thereto; or
(e) any conversion of any Offshore Rate Loan to a Base Rate Loan on a
day that is not the last day of the respective Interest Period pursuant to
Section 2.4;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained.
Solely for purposes of calculating amounts payable by the Company to the Banks
under this Section 3.4, each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the interbank rate used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
3.5 Inability to Determine Rates. If the Majority Banks shall have
----------------------------
determined that for any reason adequate and reasonable
35.
means do not exist for ascertaining the Offshore Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan or that the Offshore Rate
applicable pursuant to subsection 2.7(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to such Banks of funding such Loan, the Administrative Agent will
forthwith give notice of such determination to the Company and each Bank.
Thereafter, the obligation of the Banks to make or maintain Offshore Rate Loans
hereunder shall be suspended until the Administrative Agent upon the instruction
of the Majority Banks revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any notice of borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such notice, the Banks shall make, convert or continue the Loans, as proposed by
the Company, in the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as Base Rate Loans
instead of Offshore Rate Loans.
3.6 Certificates of Banks. Any Bank claiming reimbursement or
---------------------
compensation pursuant to this Article III shall deliver to the Company (with a
copy to the Administrative Agent) a certificate setting forth in reasonable
detail the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Company in the absence of manifest error.
3.7 Survival. The agreements and obligations of the Company in this
--------
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 Effective Date; Conditions to Funding Date. This Agreement shall
------------------------------------------
be effective when executed by the Company, the Administrative Agent and each of
the Banks. The obligation of each Bank to make its Loan hereunder is subject to
the condition that the Administrative Agent shall have received on or before the
Funding Date all of the following, in form and substance satisfactory to the
Administrative Agent, each Bank and their respective counsel and in sufficient
copies (except for the Notes) for each Bank:
(a) Term Loan Agreement. This Agreement, executed by the Company,
-------------------
the Administrative Agent and each of the Banks;
(b) Notes. A Note, executed by the Company in favor of each Bank
-----
and dated the Funding Date;
36.
(c) Notice of Borrowing. The notice of borrowing specified in
-------------------
Section 2.3;
(d) Resolutions: Incumbency. Each of the following:
-----------------------
(i) copies of the resolutions of the board of directors of the
Company approving and authorizing the execution, delivery and performance
by the Company of this Agreement and the other Loan Documents to be
delivered hereunder, and authorizing the borrowing of the Loans, certified
as of the Funding Date by the Secretary or an Assistant Secretary of the
Company; and
(ii) a certificate of the Secretary or Assistant Secretary of the
Company, certifying as of the Funding Date the names and true signatures of
the officers of the Company authorized to execute and deliver, as
applicable, this Agreement, and all other Loan Documents to be delivered
hereunder;
(e) Certificate of Incorporation; By-laws and Good Standing. Each
-------------------------------------------------------
of the following documents:
(i) the articles or certificate of incorporation of the Company
as in effect on the Funding Date, certified by the Secretary of State of
the state of incorporation of the Company as of a recent date and by the
Secretary or Assistant Secretary of the Company as of the Funding Date and
the bylaws of the Company as in effect on the Funding Date, certified by
the Secretary or Assistant Secretary of the Company as of the Funding Date;
and
(ii) a good standing certificate for the Company from the
Secretary of State of its state of incorporation and each state where the
Company is qualified to do business as a foreign corporation as of a recent
date, together with bring-down certificate by telex or telefacsimile for
the states of California, Delaware and Texas, dated January 5, 1995;
(f) Legal Opinion. An opinion of Bronson, Bronson & McKinnon, counsel
-------------
to the Company, dated the Funding Date and addressed to the Administrative Agent
and the Banks, substantially in the form of Exhibit F;
---------
(g) Payment of Fees. The Company shall have paid all costs, accrued
---------------
and unpaid fees and expenses to the extent then due and payable on the Funding
Date, together with Attorney Costs to the extent invoiced prior to or on the
Funding Date, together with such additional amounts of Attorney Costs as shall
constitute a reasonable estimate of Attorney Costs incurred or to
37.
be incurred through the closing proceedings, provided that such estimate shall
not thereafter preclude final settling of accounts between the Company and the
Administrative Agent; including any such costs, fees and expenses arising under
or referenced in Sections 2.8, 3.1 and 10.4.
(h) Certificate. A certificate signed by a Responsible Officer,
-----------
dated as of the Funding Date, stating that:
(i) the representations and warranties contained in Article V
are true and correct on and as of such date, as though made on and as of
such date;
(ii) no Default or Event of Default exists or would result from
the Borrowing; and
(iii) there has occurred since September 25, 1994, no event or
circumstance that reasonably could be expected to have a Material Adverse
Effect;
(i) Financial Statements. A certified copy of financial statements of
--------------------
the Company and its Subsidiaries referred to in Section 5.11; and
(j) Other Documents. Such other approvals, opinions or documents as
---------------
the Administrative Agent or any Bank may reasonably request.
4.2 Conditions to Making, Conversion or Continuation of Loans. The
---------------------------------------------------------
obligation of each Bank to make, convert or continue any Loan hereunder
(including its initial Loan) is subject to the satisfaction of the following
conditions precedent on the Funding Date or the relevant date of conversion or
continuation:
(a) Notice of Conversion/Continuation. In the case of a conversion or
---------------------------------
continuation, the Administrative Agent shall have received on or before the date
of conversion or continuation, the Notice of Conversion/Continuation, pursuant
to Section 2.4;
(b) Continuation of Representations and Warranties. The
----------------------------------------------
representations and warranties made by the Company contained in Article V shall
be true and correct on and as of the Funding Date, with the same effect as if
made on and as of the Funding Date (except to the extent such representations
and warranties expressly refer to an earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist
-------------------
or shall result from such borrowing, conversion or continuation.
38.
Each Notice of Conversion/Continuation submitted by the Company hereunder shall
constitute a representation and warranty by the Company hereunder, as of the
date of each such notice and as of the date of each conversion or continuation
relating thereto, that the conditions in this Section 4.2 relevant to the
conversion or continuation are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Administrative Agent and each
Bank that as of the Funding Date:
5.1 Corporate Existence and Power. The Company and each of its
-----------------------------
Material Subsidiaries:
(a) if a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under, the Loan Documents;
(c) is duly qualified as a foreign corporation, licensed and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification; and
(d) is in compliance with all Requirements of Law; except, in each
case referred to in clause (c) or clause (d), to the extent that the failure to
do so could not have a Material Adverse Effect.
5.2 Corporate Authorization; No Contravention. The execution, delivery
-----------------------------------------
and performance by the Company of this Agreement and each other Loan Document to
which it is party, have been duly authorized by all necessary corporate action,
and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual Obligation
to which the Company is a party or any order, injunction, writ or decree of any
39.
Governmental Authority to which the Company or its Property is subject; or
(c) violate any Requirement of Law.
5.3 Governmental Authorization. No approval, consent, exemption,
--------------------------
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery performance by, or enforcement against, the Company of the
Agreement or any other Loan Document.
5.4 Binding Effect. This Agreement and each other Loan Document to
--------------
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.5 Litigation. Except as specifically disclosed in Schedule 5.5,
---------- ------------
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective Properties which:
(a) purport to affect or pertain to this Agreement, or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company, or its Subsidiaries, would
reasonably be expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery and performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
5.6 No Default. No Default or Event of Default exists or would result
----------
from the incurring of any Obligations by the Company. Neither the Company nor
any of its Subsidiaries is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, would reasonably be expected to have a Material Adverse Effect.
40.
5.7 ERISA Compliance.
----------------
(a) Schedule 5.7 lists all Plans and separately identifies Plans
------------
intended to be Qualified Plans and Multiemployer Plans.
(b) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state law,
including all requirements under the Code or ERISA for filing reports (which are
true and correct in all material respects as of the date filed), and benefits
have been paid in accordance with the provisions of the Plan.
(c) Each Qualified Plan and Multiemployer Plan has been determined by
the IRS to qualify under Section 401 of the Code, and the trusts created
thereunder have been determined to be exempt from tax under the provisions of
Section 501 of the Code, and to the best knowledge of the Company nothing has
occurred which would cause the loss of such qualification or tax-exempt status.
(d) Except as specifically disclosed in Schedule 5.7, there is no
------------
outstanding liability under Title IV of ERISA with respect to any Plan
maintained or sponsored by the Company or any ERISA Affiliate, nor with respect
to any Plan to which the Company or any ERISA Affiliate contributes or is
obligated to contribute.
(e) Except as specifically disclosed in Schedule 5.7, no Plan subject
------------
to Title IV of ERISA has any Unfunded Pension Liability.
(f) Except as specifically disclosed in Schedule 5.7, no member of the
------------
Controlled Group has ever represented, promised or contracted (whether in oral
or written form) to any current or former employee (either individually or to
employees as a group) that such current or former employee(s) would be provided,
at any cost to any member of the Controlled Group, with life insurance or
employee welfare plan benefits (within the meaning of section 3(l) of ERISA)
following retirement or termination of employment. To the extent that any
member of the Controlled Group has made any such representation, promise or
contract, such member has expressly reserved the right to amend or terminate
such life insurance or employee welfare plan benefits with respect to claims not
yet incurred.
(g) All members of the Controlled Group have complied in all material
respects with the notice and continuation coverage requirements of Section 4980B
of the Code.
41.
(h) Except as specifically disclosed in Schedule 5.7, no ERISA Event
------------
has occurred or is reasonably expected to occur with respect to any Plan.
(i) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by the Company or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan, or (iii) any fiduciary with
respect to any Plan for which the Company may be directly or indirectly liable,
through indemnification obligations or otherwise.
(j) Except as specifically disclosed in Schedule 5.7, neither the
------------
Company nor any ERISA Affiliate has incurred nor reasonably expects to incur (i)
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan or (ii) any liability under
Title IV of ERISA (other than premiums due and not delinquent under Section 4007
of ERISA) with respect to a Plan.
(k) Except as specifically disclosed in Schedule 5.7, neither the
------------
Company nor any ERISA Affiliate has transferred any Unfunded Pension Liability
to a Person other than the Company or an ERISA Affiliate or otherwise engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(l) No member of the Controlled Group has engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) in connection with any Plan which has a
reasonable likelihood of having a Material Adverse Effect.
5.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
-----------------------------------
intended to be and shall be used solely for the purposes set forth in and
permitted by Section 6.11, and are intended to be and shall be used in
compliance with Section 7.6.
5.9 Title to Properties. The Company and each of its Material
-------------------
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real Property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. The Property
of the Company and its Material Subsidiaries is subject to no Liens, other than
Permitted Liens.
42.
5.10 Taxes. The Company and its subsidiaries have filed all Federal and
-----
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP and no Notice of Lien has been filed or recorded. There is
no proposed tax assessment against the Company or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
5.11 Financial Condition.
-------------------
(a) The unaudited consolidated statements of financial condition of
the Company and its Subsidiaries for the period ended September 25, 1994, and
the related consolidated statements of operations, shareholders' equity and cash
flows for the fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein;
(ii) are complete, accurate and fairly present the financial
condition of the Company and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11, show
-------------
all material indebtedness and other liabilities, direct or contingent of
the Company and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and contingent
obligations.
(b) Except as specifically disclosed in the Company's Form 10-Q filed
with the SEC for the fiscal quarter ending September 25, 1994, since September
25, 1994, there has been no event or circumstances that reasonably could be
expected to have a Material Adverse Effect.
5.12 Environmental Matters.
---------------------
(a) Except as specifically disclosed in Schedule 5.12, the on-going
-------------
operations of the Company and each of its Subsidiaries comply in all respects
with all Environmental Laws, except such non-compliance which would not (if
enforced in accordance with applicable law) result in liability in excess of
$50,000,000 in the aggregate.
43.
(b) To the best knowledge of the Company after diligent inquiry and
investigation, and except as specifically disclosed in Schedule 5.12, the
-------------
Company and each of its Subsidiaries has obtained all licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits") and necessary for its ordinary course operations, all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.12, none of the
-------------
Company, its Subsidiaries, their Property or operations is subject to any
outstanding written order from or agreement with any Governmental Authority nor
subject to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.12, there are no
-------------
Hazardous Materials or other conditions or circumstances existing with respect
to any Property, or arising from operations prior to the Funding Date, of the
Company or any of its Subsidiaries that would reasonably be expected to give
rise to Environmental Claims with a potential liability of the Company and its
Subsidiaries in excess of $50,000,000 in the aggregate for any such condition,
circumstance or Property. In addition, to the best knowledge of the Company
after diligent inquiry and investigation, (i) neither the Company nor any of its
Subsidiaries has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y) that are
leaking or discharging Hazardous Materials off-site, and (ii) the Company and
its Subsidiaries have notified all of their employees of the existence, if any,
of any health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA and all other
Environmental Laws.
5.13 Regulated Entities. None of the Company, any Person controlling
------------------
the Company, or any Subsidiary of the Company, is (a) an "Investment Company"
within the meaning of the Investment Company Act of 1940; or (b) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
5.14 No Burdensome Restrictions. Neither the Company nor any of its
--------------------------
Subsidiaries is a party to or bound by any Contractual Obligation, or subject to
any charter or corporate restriction, or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
44.
5.15 Labor Relations. There are no strikes, lockouts or other labor
---------------
disputes against the Company or any of its Subsidiaries, or, to the best of the
Company's knowledge, threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Company or any of its Subsidiaries or, to the best knowledge of the
Company, threatened against any of them before any Governmental Authority.
5.16 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
-------------------------------------------------
its Material Subsidiaries own or are licensed or otherwise have the right to use
all of the patents, trademarks, service marks, trade names; copyrights,
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed by the Company or any of its
Subsidiaries infringes upon any rights held by any other Person; except as
specifically disclosed in Schedule 5.5, no claim or litigation regarding any of
------------
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
5.17 Subsidiaries. The Company has no Subsidiaries other than those
------------
specifically disclosed in part (a) of Schedule 5.17 hereto and has no, equity
-------------
investments in excess of $500,000 in any other corporation or entity other than
those specifically disclosed in part (b) of Schedule 5.17.
-------------
5.18 Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company (including securities convertible into or exchangeable for
capital stock of the Company), and any outstanding Subordinated Debt are as set
forth in Schedule 5.18 hereto.
-------------
5.19 Insurance. The Properties of the Company and its Subsidiaries are
---------
insured with insurance companies which the Company reasonably believes are
financially sound and reputable, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar Properties in localities where the Company or such
Subsidiary operates.
5.20 Full Disclosure. None of the representations or warranties made by
---------------
the Company or any of its Subsidiaries in the Loan Documents as of the date such
representations and warranties
45.
are made or deemed made, and none of the statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of the Company or any
of its Subsidiaries in connection with the Loan Documents, contains any untrue
statement of a material fact or omits any material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
The Company covenants and agrees that, so long as any Bank shall have any
Commitment hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, unless the Majority Banks waive compliance in writing:
6.1 Financial Statements. The Company shall deliver to the
--------------------
Administrative Agent in form and detail satisfactory to the Administrative Agent
and the Banks, with sufficient copies for each Bank which the Administrative
Agent shall promptly forward to the Banks:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet of the
Company as at the end of such year and the related consolidated statements of
income, shareholders' equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous year, and
accompanied by the opinion of Ernst & Young or another nationally recognized
independent public accounting firm which report shall state that such
consolidated financial statements present fairly the financial position for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the independent auditor of any material
portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the end of
each of the first three fiscal quarters of each year a copy of the unaudited
consolidated balance sheet of the Company and its consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, together with comparative year-to-
date figures for all preceding quarters in such year, and certified by an
appropriate Responsible Officer as being complete and correct and fairly
46.
presenting, in accordance with GAAP, the financial position and the results of
operations of the Company and the Subsidiaries;
(c) not later than 45 days after the end of each of the first three
fiscal quarters of each year, a copy of the unaudited consolidating balance
sheets of the Company and each of its Subsidiaries, and the related
consolidating statements of income, shareholders' equity and cash flow for such
quarter, all certified by an appropriate Responsible Officer of the Company as
having been used (with changes there to undertaken in good faith and in the
ordinary course of preparation of financial statements and which are not,
individually or in the aggregate, material) in connection with the preparation
of the financial statements referred to in paragraph (b) of this Section 6.1;
and
(d) not later than 90 days after the end of each fiscal year, an
unaudited consolidating balance sheet of the Company and each of its
Subsidiaries as at the end of such fiscal year and the related consolidating
statements of income, stockholders' equity and cash flows for such fiscal year,
all in reasonable detail certified by an appropriate Responsible Officer as
having been used (with changes thereto undertaken in good faith and in the
ordinary course of preparation of financial statements and which are not,
individually or in the aggregate, material) in connection with the preparation
of the financial statements referred to in paragraph (a) of this Section 6.1.
6.2 Certificates; Other Information. The Company shall furnish to the
-------------------------------
Administrative Agent, with sufficient copies for each Bank which the
Administrative Agent shall promptly forward to the Banks:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a) above, a letter in form and substance
satisfactory to the Majority Banks from the independent certified public
accountants reporting on such financial statements stating that the Banks are
entitled to rely on the information contained in the financial statements
provided;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a), (b) and (c) above, a certificate of a
Responsible Officer in the form of Exhibit C (i) stating that, to the best of
---------
such officer's knowledge, the Company, during such period, has observed or
performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, and (ii) showing in detail the
calculations
47.
supporting such statement in respect of Sections 7.10, 7.11, 7.12 and 7.13;
(c) within 10 days after the same are sent, copies of all financial
statements and reports which the Company sends to its shareholders, and
promptly, but in any event within 10 days after the same are filed, copies of
all financial statements and regular, periodical or special reports (including
Forms 10-K, 10-Q and 8-K) which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or similar Governmental
Authority;
(d) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a), (b) and (c) above, a list identifying any
Investment, or commitment to make an Investment, made in the fiscal quarter most
recently ended in an amount exceeding $10,000,000 in any Subsidiary or joint
venture (in corporate or partnership form) in which the Company or any of its
Subsidiaries is or will be a shareholder or partner; and
(e) promptly, such additional financial and other information as the
Administrative Agent, at the request of any Bank, may from time to time
reasonably request.
6.3 Notices. The Company shall promptly notify the Administrative
-------
Agent and each Bank:
(a) of the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Company or any of its Subsidiaries which could
result in a Material Adverse Effect; and (ii) any dispute, litigation,
investigation, proceeding or suspension which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority other than as
disclosed on Schedule 5.5 attached hereto;
------------
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $25,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any Loan Document;
48.
(d) upon, but in no event later than 10 days after, becoming aware of
(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company or
any Subsidiary or any of their PropertieS pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could, based on
the information which has come to the attention of the Company, reasonably be
anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws;
(e) of any other litigation or proceeding affecting the Company or any
of its Subsidiaries which the Company would be required to report to the SEC
pursuant to the Exchange Act, within four days after reporting the same to the
SEC;
(f) of any of the following ERISA events affecting the Company or any
member of its Controlled Group (but in no event more than 10 days after such
event), together with a copy of any notice with respect to such event that may
be required to be filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company or any member or its Controlled Group
with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject to Title IV of
ERISA or section 412 of the Code by any member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that is subject to
Title IV of ERISA or section 412 of the Code, if such amendment results in
a material increase in benefits or unfunded liabilities; or
(iv) the commencement of contributions by any member of the
Controlled Group to any Plan that is subject to Title IV of ERISA or
section 412 of the Code;
(g) any Material Adverse Effect subsequent to the date of the most
recent audited financial statements of the Company delivered to the Banks
pursuant to subsection 6.1(a);
(h) of any significant change in accounting policies or financial
reporting practices or any other change required to be reported to the SEC;
49.
(i) of any labor controversy resulting in or threatening to result in
any strike, work stoppage, boycott, shutdown or ether labor disruption against
or involving the Company or any of its Subsidiaries; and
(j) of any Change in Control, or the entry by the Company or any of
its Subsidiaries, or by any other Person of which the Company becomes aware into
any agreement, transaction or arrangement that is intended to, or would
reasonably be expected to, result in a Change in Control.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, the provisions of this Agreement affected, and
stating what action the Company proposes to take with respect thereto. Each
notice under subsection 6.3(a) shall describe with particularity the clause or
provision of this Agreement or other Loan Document that has been breached or
violated.
6.4 Preservation of Corporate Existence, etc. The Company shall and
----------------------------------------
shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation, except as permitted by Section 7.3(b);
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except in connection with
transactions expressly permitted by Section 7.3 and sales of assets expressly
permitted by Section 7.2;
(c) use its reasonable efforts, in the Ordinary Course of Business, to
preserve its operations and business organization and preserve the goodwill and
business of the customers, suppliers and others having material business
relations with it; and
(d) preserve or renew all of its registered trademarks, trade names
and service marks, the non-preservation of which would reasonably be expected to
have a Material Adverse Effect.
6.5 Maintenance of Property. The Company shall maintain, and shall
-----------------------
cause each of its Subsidiaries to maintain, and preserve all its Property which
is used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals
50.
and replacements thereof except where the failure to do so would not have a
Material Adverse Effect, except as permitted by Section 7.2. The Company shall
use the standard of care typical in the industry in the operation of its
facilities.
6.6 Insurance. The Company shall maintain, and shall cause each
---------
Subsidiary to maintain, with independent insurers which the Company reasonably
believes are financially sound and reputable, insurance with respect to its
Properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons.
6.7 Payment of Obligations. The Company shall, and shall cause its
----------------------
Subsidiaries to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its Property; and
(c) all Indebtedness, as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement evidencing
such Indebtedness.
6.8 Compliance with Laws. The Company shall comply, and shall cause
--------------------
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act), except such as
may be contested in good faith or as to which a bona fide dispute may exist.
6.9 Inspection of Property and Books and Records. The Company shall
--------------------------------------------
maintain and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company shall permit, and shall cause each of its Subsidiaries to permit,
representatives of the Administrative Agent or any Bank to visit and inspect any
of their respective Properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts
51.
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all at
the expense of the Company and at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice
to the Company; provided, however, when an Event of Default exists the
-------- -------
Administrative Agent or any Bank may visit and inspect at the expense of the
Company such Properties at any time during business hours and without advance
notice.
6.10 Environmental Laws. The Company shall, and shall cause each of its
------------------
Subsidiaries to, conduct its operations and keep and maintain its Property in
compliance with all Environmental Laws.
6.11 Use of Proceeds. The Company shall use the proceeds of the Loans
---------------
for working capital and other general corporate purposes not in contravention of
any Requirement of Law.
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in writing:
7.1 Limitation on Liens. The Company shall not, and shall not suffer
-------------------
or permit any of its Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part of
its Property, whether now owned or hereafter acquired, other than the following
("Permitted Liens")
(a) any Lien existing on the Property of the Company or its
Subsidiaries on the date of this Agreement and set forth in Schedule 7.1
------------
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 6.7, provided that no
Notice of Lien has been filed or recorded;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the Ordinary Course
of Business which are not
52.
delinquent or remain payable without penalty or which are being contested in
good faith and by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the Ordinary Course of Business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the Property of the Company or any of its Subsidiaries
securing (i) the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) obligations on surety and appeal
bonds, and (iii) other obligations of a like nature; in each case, incurred in
the Ordinary Course of Business, provided all such Liens in the aggregate would
not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which do not in any
case materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and its
Subsidiaries on such Property;
(i) Liens on assets of corporations which become Subsidiaries after
the date of this Agreement, provided, however, that such Liens existed at the
-------- -------
time the respective corporations became Subsidiaries and were not created in
anticipation thereof;
(j) Purchase money security interests on any Property acquired or
held by the Company or its Subsidiaries in the Ordinary Course of Business,
securing Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such Property; provided that (i) any such Lien
-------- ----
attaches to such Property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the Property so acquired
in such transaction, and (iii) the principal amount of the Indebtedness secured
thereby does not exceed 100% of the cost of such Property; and
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
-------- ----
dedicated cash
53.
collateral account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the Federal
Reserve Board, and (ii) such deposit account is not intended by the Company or
any of its Subsidiaries to provide collateral to the depository institution.
7.2 Disposition of Assets. The Company shall not, and shall not suffer
---------------------
or permit any of its Subsidiaries to, directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any Property (including accounts and notes receivable (with or
without recourse) and equipment sale-leaseback transactions) or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, outmoded, worn-out or
surplus equipment, all in the Ordinary Course of Business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment; and
(c) dispositions not otherwise permitted hereunder which are made
for fair market value; provided, that (i) at the time of any disposition, no
--------
Default or Event of Default shall exist or shall result from such disposition,
(ii) the aggregate sales price from any disposition pursuant to a sale-leaseback
transaction shall be paid in cash, (iii) sale-leaseback transactions shall only
be permitted with respect to real property and equipment, and (iv) the aggregate
fair market value of all assets (excluding real property and equipment subject
to sale-leaseback transactions) so sold by the Company and its Subsidiaries,
together with all other sales under this subsection (c) since September 21,
1994, shall not exceed in the aggregate 20% of the Company's Consolidated
Tangible Net Worth as calculated immediately prior to such disposition.
Notwithstanding subsection 7.2(c) above, the disposition of accounts receivable
shall not be permitted.
7.3 Consolidations and Mergers. The Company shall not, and shall not
--------------------------
suffer or permit any of its Subsidiaries to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
54.
(a) any Subsidiary of the Company may merge with the Company,
provided that the Company shall be the continuing or surviving corporation, or
with any one or more Subsidiaries of the Company, provided that if any
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the
Wholly-Owned Subsidiary shall be the continuing or surviving corporation; and
(b) any Subsidiary of the Company may sell all or substantially all
of its assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary of the Company.
7.4 Loans and Investments. The Company shall not purchase or acquire,
---------------------
or suffer or permit any of its Subsidiaries to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, all or substantially
all assets, or obligations or other securities of or any interest in, any
Person, or make any advance, loan, extension of credit or capital contribution
to or any other investment in, any Person including any Affiliate of the Company
(together, "Investments"), except for:
(a) Investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
Ordinary Course of Business;
(c) Investments (other than for the purpose of any Acquisition) by
the Company in or to any of its Wholly-Owned Subsidiaries or by any of its
Wholly-Owned Subsidiaries in or to another of the Company's Wholly-Owned
Subsidiaries;
(d) Investments incurred in order to consummate Acquisitions
otherwise permitted herein, provided that (i) the book value of such Investments
--------
for the Company and its Subsidiaries on a consolidated basis, excluding value
provided by the Company in the form of the Company's capital stock with regard
to any single Acquisition shall not exceed at the time of such investment 10% of
Consolidated Tangible Net Worth as calculated immediately prior to such
Acquisition, (ii) such Acquisitions are of Persons or businesses in the
Company's lines of business or provide vertical integration, (iii) such
Acquisitions are undertaken in accordance with all applicable Requirements of
Law, (iv) (x) if any Person or business so acquired (the "Acquiree") is subject
to Section 12 of the Exchange Act or subject to the requirements of Section
15(d) of such Act, the prior, effective written consent of the board of
directors or equivalent governing body of the Acquiree is obtained and delivered
to the Administrative Agent, or (y) if the Acquiree does not meet the
qualifications set forth in subclause
55.
(x) of this clause (iv), the prior effective written consent of the board of
directors or equivalent governing body and the percent of any and all classes of
stock or other equity of such Acquiree the consent of which, notwithstanding any
provisions in the Organization Documents of the Acquiree to the contrary, is
required by applicable statute to consummate the Acquisition, is obtained and
delivered to the Administrative Agent, and (v) such Acquisition shall not result
in any Default or Event of Default; or
(e) Investments of not more than $175,000,000 in Fujitsu-AMD
Semiconductor Limited; or
(f) other Investments not described above and that are not
prohibited elsewhere in this Agreement, to the extent such Investments are not
used for purposes of any Acquisition and do not exceed at any one time the sum
of (i) $150,000,000; (ii) 50 percent of the after-tax earnings net of after-tax
losses of the Company, cumulative from the date of this Agreement, as determined
at the time of Investment; and (iii) the aggregate net cash proceeds received by
the Company from the issuance or sale of its capital stock subsequent to the
date hereof other than to a Subsidiary reduced by the aggregate cash purchase
price paid by the Company in the Company's repurchases of capital stock
subsequent to the date hereof.
7.5 Transactions with Affiliates. The Company shall not, and shall not
----------------------------
suffer or permit any of its Subsidiaries to, enter into any transaction with any
Affiliate of the Company or of any such Subsidiary, except (a) as expressly
permitted by this Agreement, or (b) in the Ordinary Course of Business or
pursuant to the reasonable requirements of the business of the Company or such
Subsidiary; in each case (a) and (b), upon fair and reasonable terms materially
no less favorable to the Company or such Subsidiary than would obtain in a
comparable arm's-length transactIon with a Person not an Affiliate of the
Company or such Subsidiary; provided, however, that nothing in this Section 7.5
shall be deemed to prohibit transactions between the Company and any Subsidiary
of the Company provided that such transactions are fair and reasonable to the
Company.
7.6 Use of Proceeds. The Company shall not and shall not suffer or
---------------
permit any of its Subsidiaries to use any portion of the Loan proceeds, directly
or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
56.
7.7 Guaranty Obligations. The Company shall not, and shall not suffer
--------------------
or permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Guaranty Obligations except:
(a) endorsements for collection or deposit in the Ordinary Course
of Business;
(b) Guaranty Obligations of the Company and its Subsidiaries
existing as of the date of this Agreement and listed on, and subject to the
maximum amounts specified in, Schedule 7.7;
------------
(c) Guaranty Obligations of the Company of not more than
$175,000,000 of Indebtedness of Fujitsu-AMD Semiconductor Limited; and
(d) in addition to Guaranty Obligations described in the preceding
clauses (a) through (c), Guaranty Obligations by the Company of the Indebtedness
of its Offshore Subsidiaries, up to $75,000,000 in the aggregate at any time for
all such Offshore Subsidiaries combined.
7.8 Compliance with ERISA. The Company shall not, and shall not suffer
---------------------
or permit any of its Subsidiaries to, (i) terminate any Plan subject to Title IV
of ERISA so as to result in any material (in the opinion of the Majority Banks)
liability to the Company or any ERISA Affiliate, (ii) permit to exist any ERISA
Event or any other event or condition, which presents the risk of a material (in
the opinion of the Majority Banks) liability to any member of the Controlled
Group, (iii) make a complete or partial withdrawal (within the meaning of ERISA
Section 4201) from any Multiemployer Plan so as to result in any material (in
the opinion of the Majority Banks) liability to the Company or any ERISA
Affiliate, (iv) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any material (in the
opinion of the Majority Banks) liability to any member of the Controlled Group,
or (v) permit the-present value of all nonforfeitable accrued benefits under any
Plan (using the actuarial assumptions utilized by the PBGC upon termination of a
Plan) materially (in the opinion of the Majority Banks) to exceed the fair
market value of Plan assets allocable to such benefits, all determined as of the
most recent valuation date for each such Plan.
7.9 Restricted Payments.
-------------------
(a) The Company shall not, and shall not suffer or permit any of
its Subsidiaries to, declare or make any dividend payment or other distribution
of assets, properties, cash, rights, obligations or securities on account of any
shares of any
57.
class of its capital stock, or purchase, redeem or otherwise acquire for value
any shares of its capital stock or any warrants, rights or options to acquire
such shares, now or hereafter outstanding; except that the Company may, provided
there exists both before and after giving effect thereto no Default or Event of
Default:
(i) declare and make dividend payments or other distributions
payable solely in its common stock;
(ii) purchase, redeem or otherwise acquire shares of its common
stock or preferred stock, or warrants or options to acquire any such
shares, to the extent that such transactions in the aggregate do not exceed
(taking into account all such purchases, redemptions or acquisitions
occurring since September 21, 1994) the sum of:
(A) the lesser of $70,000,000 or the acquisition cost of
5,000,000 shares; and
(B) the extent to which the aggregate cash consideration,
net of commissions and other out-of-pocket costs and expenses
incurred in connection therewith, actually received by the Company
from the issuance by the Company of shares of its common stock
subsequent to September 21, 1994 exceeds the aggregate cash
consideration used to acquire shares of Convertible Exchangeable
Preferred Stock and its common stock, pursuant to this Section
7.9(a) (ii) since September 21, 1994;
provided that the Company promptly delivers to the Administrative Agent
--------
upon any such purchase, redemption or other acquisition a certificate in
the form of Exhibit D; and
---------
(iii) declare or pay mandatory cash dividends to holders of
preferred stock outstanding on September 21, 1994, provided, that, both
--------
before and immediately after giving effect to such proposed action, no
Default or Event of Default exists or would exist;
(iv) purchase, redeem or otherwise acquire Convertible
Exchangeable Preferred Stock pursuant to the Convertible Exchangeable
Preferred Repurchase Program; and
(v) issue the Company's 6% Convertible Subordinated Debentures
due 2012 in exchange for shares of the Company's Convertible Exchangeable
Preferred Stock in accordance with the Certificate of the Powers,
Designations, Preferences and Rights relating to such shares;
58.
provided, however, that the foregoing restrictions shall not apply to any
- - -----------------
distribution to, or purchase, redemption or other acquisition from, (x) the
Company by a Wholly-Owned Subsidiary, or (y) any Wholly-Owned Subsidiary by a
Wholly-Owned Subsidiary of such Subsidiary.
(b) The Company shall not prepay, redeem, defease (whether actually
or in substance) or purchase in any manner (or deposit or set aside funds or
securities for the purpose of the foregoing), or make any payment (other than
for scheduled payments of interest due on the date of payment thereof, if such
payment is permitted to be made pursuant to the terms of the documents
evidencing or governing the applicable Subordinated Debt) in respect of, or
establish any sinking fund, reserve or like set aside of funds or other property
for the redemption, retirement or repayment of, any Subordinated Debt, or
transfer any property in payment of or as security for the payment of, or
violate the subordination terms of, any Subordinated Debt, or amend, modify or
change in any manner the terms of any Subordinated Debt or any instrument,
indenture or other document evidencing, governing or affecting the terms of any
Subordinated Debt, if any such amendment, modification or change has or would
have an adverse effect on the Administrative Agent's or any Bank's rights or
remedies under any of the Loan Documents, or cause or permit any of its
Subsidiaries to do any of the foregoing; provided, however, that the Company
-------- -------
may, provided that there exists both before and after giving effect thereto no
Default or Event of Default, make sinking fund payments to provide for the
redemption of the Company's 6% Convertible Subordinated Debentures Due 2012,
issued in exchange for shares of the Company's Convertible Exchangeable
Preferred Stock, in accordance with and to the extent required by Article XI of
the Indenture.
7.10 Modified Quick Ratio. The Company shall not at any time suffer or
--------------------
permit its ratio (determined on a consolidated basis) of (a) cash plus the value
(valued in accordance with GAAP) of all Cash Equivalents and 75% of all Long
Term Investments, other than Cash Equivalents or Long Term Investments subject
to a Lien securing an obligation that is not a GAAP liability, plus the amount
of Receivables, net of allowances for doubtful accounts, to (b) Consolidated
Current Liabilities of the Company and its Subsidiaries, to be less than 1.10 to
1.00.
7.11 Minimum Tangible Net Worth. The Company shall not suffer or permit
--------------------------
its Consolidated Tangible Net Worth as of the end of any fiscal quarter to be
less than $1,300,000,000 plus (a) 75% of net income for the Company and its
Subsidiaries computed from the first day of the Company's third fiscal quarter
of 1994 through the end of such fiscal quarter for which the
59.
determination is being made, determined quarterly on a consolidated basis and
not reduced by any quarterly loss, plus (b) 100% of the Net Proceeds of any sale
of capital stock of the Company by or for the account of the Company, occurring
after September 21, 1994, plus (c) any increase in stockholders' equity
resulting from the conversion of debt securities to equity securities after
September 21, 1994.
7.12 Leverage Ratio. The Company shall not at any time suffer or permit
--------------
its Leverage Ratio to be greater than 0.85 to 1.00.
7.13 Fixed Charge Coverage Ratio. The Company shall not at any time of
---------------------------
determination suffer or permit its Fixed Charge Coverage Ratio to be less than
1.25 to 1.00.
7.14 Change in Business. The Company shall not, and shall not permit
------------------
any of its Subsidiaries to, engage in any material line of business
substantially different from those lines of business carried on by the Company
and its Subsidiaries on the date hereof.
7.15 Accounting Changes. The Company shall not, and shall not suffer or
------------------
permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any of its consolidated Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.1 Event of Default. Any of the following shall constitute an "Event
----------------
of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
-----------
required to be paid herein, any amount of principal of any Loan, or (ii) within
three days after the same shall become due, any interest, any fee or any other
amount payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty
--------------------------
by the Company or any of its Subsidiaries made or deemed made herein, in any
other Loan Document, or which is contained in any certificate, document or
financial or other statement by the Company, any of its Subsidiaries, or their
respective Responsible Officers, furnished at any time under this Agreement, or
in or under any other Loan Document, shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
60.
(c) Specific Defaults. The Company fails to perform or observe any
-----------------
term, covenant or agreement contained in Sections 6.1, 6.2, 6.3, 6.9, 6.11 or
Article VII; or
(d) Other Defaults. The Company fails to perform or observe any
--------------
other term or covenant contained in this Agreement or any other Loan Document,
and such default shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which a Responsible Officer of the Company knew or
should have known of such failure or (ii) the date upon which written notice
thereof is given to the Company by the Administrative Agent or any Bank; or
(e) Cross-Default. (i) The Company or any of its Subsidiaries
-------------
fails to make any payment in respect of any Indebtedness or Guaranty Obligation
having an aggregate principal amount (including undrawn committed or available
amounts) of more than $10,000,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if any, specified in the
document relating thereto; (ii) the Company or any of its Subsidiaries fails to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any such
Indebtedness or Guaranty Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in the document relating
thereto as of the time of such failure, event or condition, if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Guaranty Obligation to become payable or
cash collateral in respect thereof to be demanded; or (iii) there shall occur
any Deposit Event under (and as defined in) the CIBC Guaranty or any other event
shall occur or condition exist under the CIBC Guaranty or either of the CIBC
Leases as a result of which any amount becomes payable under the CIBC Guaranty;
or
(f) Bankruptcy or Insolvency. The Company or any of its
------------------------
Subsidiaries (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or
61.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
-----------------------
Proceeding is commenced or filed against the Company or any Subsidiary of the
Company, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Company's or any
of its Subsidiaries' Properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Company or any of its Subsidiaries
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company or any of its
Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or business;
or
(h) ERISA. (i) A member of the Controlled Group shall fail to pay
-----
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) the Company or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c) (11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001(a) (2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than
five percent (5%) of the Company's Consolidated Tangible Net Worth at such time;
(iv) in the case of an ERISA Event involving the complete or partial withdrawal
from a Multiemployer Plan, the withdrawing employer has incurred a withdrawal
liability in an aggregate amount exceeding five percent (5%) of the Company's
Consolidated Tangible Net Worth at such time; (v) in the case of an ERISA Event
not described in clause (iii) or (iv), the Unfunded Pension Liabilities of the
relevant Plan or Plans exceed five percent (5%) of the Company's Consolidated
Tangible Net Worth at such time; (vi) a Plan that is intended to be qualified
under Section 401(a) of the Code shall lose its qualification, and the loss can
reasonably be expected to impose on members of the Controlled Group liability
(for additional taxes, to Plan participants, or otherwise) in the aggregate
amount of five percent (5%) or more of the Company's Consolidated Tangible Net
Worth at such time; (vii) the commencement or increase of contributions to, or
the adoption of or the amendment of a Plan by, a member of the Controlled Group
shall result in a net increase in unfunded liabilities to the Controlled Group
in excess of five percent (5%) of the Company's Consolidated Tangible Net Worth
at such time; (viii) any member
62.
of the Controlled Group engages in or otherwise becomes liable for a non-exempt
prohibited transaction and the initial tax or additional tax under section 4975
of the Code relating thereto might reasonably be expected to exceed five percent
(5%) of the Company's Consolidated Tangible Net Worth at such time; (ix) a -
violation of section 404 or 405 of ERISA or the exclusive benefit rule under
section 401(a) of the Code if such violation might reasonably be expected to
expose a member or members of the Controlled Group to monetary liability in
excess of five percent (5%) of the Company's Consolidated Tangible Net Worth at
such time; (x) any member of the Controlled Group is assessed a tax under
section 4980B of the Code in excess of five percent (5%) of the Company's
Consolidated Tangible Net Worth at such time; or (xi) the occurrence of any
combination of events listed in clauses (iii) through (x) that involves a
potential liability, net increase in aggregate Unfunded Pension Liabilities,
unfunded liabilities, or any combination thereof, in excess of five percent (5%)
of the Company's Consolidated Tangible Net Worth at such time; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
------------------
orders or decrees shall be entered against the Company or any of its
Subsidiaries involving in the aggregate a liability (not fully covered by
insurance where the availability of such insurance coverage is not in
substantial dispute) as to any single or related series of transactions,
incidents or conditions, of $50,000,000 or more, and the same shall remain
unvacated and unstayed pending appeal for a period of 30 days after the entry
thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
----------------------
decree shall be rendered against the Company or any of its Subsidiaries which
does or would reasonably be expected to have a Material Adverse Effect, and
there shall be any period of 10 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.
8.2 Remedies. If any Event of Default occurs, the Administrative Agent
--------
shall, at the request of, or may, with the consent of, the Majority Banks:
(a) declare the Commitment of each Bank to make Loans to be
terminated, whereupon such Commitments shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
together with amounts owing under Section 3.4; without presentment, demand,
63.
protest or other notice of any kind, all of which are hereby expressly waived by
the Company; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in paragraph
- - -------- -------
(f) or (g) above (in the case of clause (i) of paragraph (g) upon the expiration
of the 60-day period mentioned therein), the obligation of each Bank to make
Loans shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent or any Bank.
8.3 Rights Not Exclusive. The rights provided for in this Agreement
--------------------
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising
8.4 Certain Financial Covenant Defaults. In the event that, after
-----------------------------------
taking into account any extraordinary charge to earnings taken or to be taken as
of the end of any fiscal period of the Company (a "Charge"), and if solely by
------
virtue of such Charge, there would exist an Event of Default due to the breach
of any of Sections 7.10, 7.11, 7.12 or 7.13 as of such fiscal period end date,
such Event of Default shall be deemed to arise upon the earlier of (a) the date
after such fiscal period end date on which the Company announces publicly it
will take, is taking or has taken such Charge (including an announcement in the
form of a statement in a report filed with the SEC) or, if such announcement is
made prior to such fiscal period end date, the date that is such fiscal period
end date, and (b) the date the Company delivers to the Administrative Agent its
audited annual or unaudited quarterly financial statements in respect of such
fiscal period reflecting such Charge as taken.
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
9.1 Appointment and Authorization. Each Bank hereby irrevocably
-----------------------------
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
64.
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
--------------------
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible.for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.3 Liability of Administrative Agent. None of the Administrative
---------------------------------
Agent or any successor agent arising under Section 9.9, together with their
respective Affiliates, or any of their respective officers, directors,
employees, agents, or attorneys-in-fact (collectively, the "Agent-Related
Persons") shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Banks for any recital, statement,
representation or warranty made by the Company or any Subsidiary or Affiliate of
the Company, or any officer thereof, contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No Agent-
Related Person shall be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the Properties, books or records of the Company or any of its Subsidiaries or
Affiliates.
9.4 Reliance by Administrative Agent.
--------------------------------
(a) The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, telecopy, telex or telephone message,
statement or
65.
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Banks and such request and any action taken
or failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.1 and 4.2, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to Bank, unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from the Bank prior to the Funding Date
specifying its objection thereto and either such objection shall not have been
withdrawn by notice to the Administrative Agent to that effect or the Bank shall
not have made available to the Administrative Agent the Bank's ratable portion
of the Borrowing made on the Funding Date.
9.5 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Banks,
unless the Administrative Agent shall have received written notice from a Bank
or the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Banks. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
requested by the Majority Banks in accordance with Article VIII; provided,
--------
however, that unless and until the Administrative Agent shall have received any
- - -------
such request, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with
66.
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Banks.
9.6 Credit Decision. Each Bank expressly acknowledges that none of the
---------------
Agent-Related Persons has made any representation or warranty to it and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
thereby, and made its own decision to enter into this Agreement and extend
credit to the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon the Administrative Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Company which may come into the possession
of any of the Agent-Related Persons.
9.7 Indemnification. The Banks shall indemnify upon demand the Agent-
---------------
Related Persons (to the extent not reimbursed by or on behalf of the Company and
without limiting the obligation of the Company to do so), ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Loans) be imposed on, incurred by or asserted against any such Person any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such Person under or in connection
with any of the foregoing; provided, however, that no Bank shall be liable for
-------- -------
the payment to the Agent-Related Persons of any portion of such liabilities,
obligations, losses,
67.
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or out-of-
pocket expenses (including Attorney Costs) incurred by the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Company.
Without limiting the generality of the foregoing, if the IRS or any authority of
the United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify Administrative Agent of a change
in circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Bank shall indemnify
Administrative Agent fully for all amounts paid, directly or indirectly, by
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
Administrative Agent under this subparagraph (c), together with all costs,
expenses and attorneys' fees (including allocated costs for in-house legal
services). The obligation of the Banks in this Section shall survive the
payment of all Obligations hereunder.
9.8 Administrative Agent in Individual Capacity. ABN and its
-------------------------------------------
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though ABN were not the
Administrative Agent hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, ABN or its Affiliates
may receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Subsidiary) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information unless such information is
expressly herein required to be furnished to the Banks by the Administrative
Agent. With respect to its Loans, ABN shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Administrative Agent, and the terms "Bank" and "Banks" shall
include ABN in its individual capacity.
68.
9.9 Successor Administrative Agent. The Administrative Agent may, and
------------------------------
at the request of the Majority Banks shall, resign as Administrative Agent upon
30 days' notice to the Banks. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, the Majority Banks shall appoint from
among the Banks a successor agent for the Banks. If no successor Administrative
Agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent shall appoint, after consulting
with the Banks and the Company, a successor agent from among the Banks. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's rights, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.4 and 10.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Majority Banks appoint a successor
agent as provided for above.
9.10 Co-Agents and Co-Arrangers. None of the Banks identified on the
--------------------------
facing page or signature pages of this Agreement as a "co-agent" or "co-
arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks so identified as a "co-agent"
or "co-arranger" shall have or be deemed to have any fiduciary relationship with
any Bank. Each Bank acknowledges that it has not relied, and will not rely, on
any of the Banks so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Amendments and Waivers. No amendment or waiver of any provision of
----------------------
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company there from, shall be effective unless the same shall be
in writing and signed by the Majority Banks, and then such waiver shall be
69.
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
-----------------
unless in writing and signed by all the Banks, do any of the following:
(a) increase or extend the Commitment of any Bank, or reinstate the
Commitment of any Bank after it has been terminated under Section 8.2 hereof, or
subject any Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or of any fees or other amounts payable hereunder or under
any Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for the Banks or
any of them to take any action hereunder; or
(e) waive or amend this Section 10.1 or Section 2.12 or change the
definition of "Majority Banks";
and, provided further, that (i) no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by the Administrative Agent in addition to the Majority Banks
or all the Banks, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document, and (ii)
the Fee Letters may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
10.2 Notices.
-------
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly otherwise
provides, telegraphic, telex, facsimile transmission or cable communication) and
mailed, telegraphed, telexed or delivered, (i) if to the Company, to its address
specified on the signature pages hereof, (ii) if to any Bank, to its Domestic
Lending Office, and (iii) if to the Administrative Agent, to its address
specified on the signature pages hereof; or, as to the Company or the
Administrative Agent, to 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
Company and the Administrative Agent.
70.
(b) All such notices and communications shall, when transmitted by
overnight delivery, telegraphed, telecopied by facsimile, telexed or cabled, be
effective when delivered for overnight delivery or to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, or if delivered, upon delivery, except that notices
pursuant to Article II or VIII shall not be effective until actually received by
the Administrative Agent.
(c) The Company acknowledges and agrees that any agreement of the
Administrative Agent and the Banks at Article II herein to receive certain
notices by telephone and facsimile is solely for the convenience and at the
request of the Company. The Administrative Agent and the Banks shall be entitled
to rely on the authority of any Person purporting to be a Person authorized by
the Company to give such notice and the Administrative Agent and the Banks shall
not have any liability to the Company or other Person on account of any action
taken or not taken by the Administrative Agent and the Banks in reliance upon
such telephonic or facsimile notice. The obligation of the Company to repay the
Loans shall not be affected in any way or to any extent by any failure by the
Administrative Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Banks of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Banks to be contained in the telephonic or
facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise.thereof or the
exercise of any other right, remedy, power or privilege.
10.4 Costs and Expenses. The Company shall, whether or not the
------------------
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Administrative Agent on demand for all
costs and expenses incurred by the Administrative Agent and the Co-Arrangers in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to, this
Agreement, any Loan Document and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including the reasonable Attorney Costs incurred by the
Administrative Agent with respect thereto;
71.
(b) pay or reimburse each Bank, the Administrative Agent and the
Co-Arrangers on demand for all costs and expenses incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or restructuring regarding
the Loans) under this Agreement, any other Loan Document, and any such other
documents, including Attorney Costs incurred by the Administrative Agent and any
Bank; and
(c) pay or reimburse the Administrative Agent on demand for all
appraisal (including the allocated cost of internal appraisal services), audit,
environmental inspection and review (including the allocated cost of such
internal services), search and filing costs, fees and expenses, incurred or
sustained by the Administrative Agent in connection with the matters referred to
under paragraphs (a) and (b) of this Section.
10.5 Indemnity. Whether or not the transactions contemplated hereby are
---------
consummated:
(a) General Indemnity. The Company shall pay, indemnify, and hold
-----------------
each Bank, the Administrative Agent and each of their respective Affiliates, and
the officers, directors, employees, counsel, agents and attorneys-in-fact of
such Persons (each, an "Indemnified Person") harmless from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses or disbursements (including Attorney Costs) of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and any other Loan
Documents, the use or application of the proceeds of the Loans, or the
transactions contemplated hereby and thereby, and with respect to any
investigation, litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding) related to this Agreement or the Loans or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"); provided, that the
--------
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person.
(b) Environmental Indemnity.
-----------------------
(i) The Company hereby agrees to indemnify, defend and hold
harmless each Indemnified Person, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including Attorney Costs and the
allocated cost of internal environmental audit or review services), which
may be incurred by or asserted
72.
against such Indemnified Person in connection with or arising out of any
pending or threatened investigation, litigation or proceeding, or any
action taken by any Person, with respect to any Environmental Claim arising
out of or related to any Property of the Company or any of its
Subsidiaries. No action taken by legal counsel chosen by the
Administrative Agent or any Bank in defending against any such
investigation, litigation or proceeding or requested remedial, removal or
response action shall vitiate or any way impair the Company's obligation
and duty hereunder to indemnify and hold harmless the Administrative Agent
and each Bank.
(ii) In no event shall any site visit, observation, or testing
by the Administrative Agent or any Bank be deemed a representation or
warranty that Hazardous Materials are or are not present in, on, or under
the site, or that there has been or shall be compliance with any
Environmental Law. Neither the Company nor any other Person is entitled to
rely on any site visit, observation, or testing by the Administrative Agent
or any Bank. Neither the Administrative Agent nor any Bank owes any duty of
care to protect the Company or any other Person against, or to inform the
Company or any other party of, any Hazardous Materials or any other adverse
condition affecting any site or Property. Neither the Administrative Agent
nor any Bank shall be obligated to disclose to the Company or any other
Person any report or findings made as a result of, or in connection with,
any site visit, observation, or testing by the Administrative Agent or any
Bank.
(c) Survival; Defense. The obligations in this Section 10.5 shall
-----------------
survive payment of all other Obligations. At the election of any Indemnified
Person, the Company shall defend such Indemnified Person using legal counsel
satisfactory to such Indemnified Person in such Person's sole discretion, at the
sole cost and expense of the Company. All amounts owing under this Section 10.5
shall be paid within 30 days after demand.
10.6 Marshalling; Payments Set Aside. Neither the Administrative Agent
-------------------------------
nor the Banks shall be under any obligation to marshall any assets in favor of
the Company or any other Person or against or in payment of any or all of the
Obligations. To the extent that the Company makes a payment or payments to the
Administrative Agent or the Banks, or the Administrative Agent or the Banks
enforce their Liens or exercise their rights of set-off, and such payment or
payments or the proceeds of such enforcement or set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other
73.
party in connection with any Insolvency Proceeding, or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or set-off had not occurred
and (b) each Bank severally agrees to pay to the Administrative Agent upon
demand its pro rata share of any amount so recovered from or repaid by the
Administrative Agent to the extent previously paid or transferred to such Bank
by the Administrative Agent.
10.7 Successors and Assigns. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Bank.
10.8 Assignments, Participations, etc.
--------------------------------
(a) Any Bank may, with the written consent of the Company (at all
times other than during the existence of an Event of Default) and the
Administrative Agent, which consent of the Company and the Administrative Agent
shall not be unreasonably withheld, at any time assign and delegate to one or
more Eligible Assignees (provided that no written consent of the Company or the
Administrative Agent shall be required in connection with any assignment and
delegation by a Bank to a Bank Affiliate of such Bank or to another existing
Bank hereunder) (each an "Assignee") all, or any ratable part of all, of the
Loans, the Commitments and the other rights and obligations of such Bank
hereunder, in each case, in a minimum amount of $10,000,000; provided, however,
-------- -------
that (i) the Company and the Administrative Agent may continue to deal solely
and directly with such Bank in connection with the interest so assigned to an
Assignee until (A) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Company and the Administrative Agent by such Bank
and the Assignee; and (B) such Bank and its Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance in the form of
Exhibit E ("Assignment and Acceptance") and the processing fee described below.
- - ---------
(b) From and after the date that the Administrative Agent notifies
the assignor Bank that it has received an executed Assignment and Acceptance and
payment by the assignor or assignee Bank of the processing fee of $3,000, (i)
the Assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that rights and
obligations hereunder have
74.
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its payment under the
Assignment and Acceptance, this Agreement, shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
---------
(d) Any Bank may at any time sell to one or more Eligible Assignees
(a "Participant") participating interests in any Loans, the Commitment of that
Bank and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
-------- -------
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Administrative Agent shall continue to
deal solely and directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant shall have rights to approve any amendment
to, or any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent as described in the first proviso to Section 10.1. In the case
-------------
of any such participation, the Participant shall not have any rights under this
Agreement, or any of the other Loan Documents, and all amounts payable by the
Company hereunder shall be determined as if such Bank had not sold such
participation; except that, if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public information
identified as "confidential" or "secret" by the Company provided to it by the
Company or any Subsidiary of the Company, or by the Administrative Agent on such
Company's or Subsidiary's behalf, in connection with this Agreement or any other
Loan Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by
75.
this Agreement or in enforcement of this Agreement or the other Loan Documents;
except to the extent such information (i) was or becomes generally available to
the public other than as a result of a disclosure by the Bank, or (ii) was or
becomes available on a non-confidential basis from a source other than the
Company, provided that such source is not bound by a confidentiality agreement
with the Company known to the Bank; provided, further, however, that any Bank
-------- ------- -------
may disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which the Bank is subject or in connection with
an examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent, any Bank or their respective Affiliates may be party; (E)
to the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to any Participant or Assignee,
actual or potential, provided that such Person agrees in writing to keep such
information confidential to the same extent required of the Banks hereunder; (G)
as to any Bank, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Company is party or is deemed
party with such Bank; and (H) to such Bank's independent auditors and other
professional advisors. Notwithstanding the foregoing, provided that, (X) with
-------- ----
respect to (B) and (D) above, unless such notice is prohibited by applicable
law, regulation or court process, the Company shall be provided advance notice
of the Bank's intention to disclose, although failure to provide such notice
shall not restrict such Bank's right to disclose such information; and (Y), in
the case of assignments, (1) the Company is notified as to the identity of each
Assignee, except upon the occurrence of an Event of Default, in which case
notification shall be unnecessary, (2) the Company authorizes each Bank to
disclose to any Participant or Assignee (each, a "Transferee") and to any
prospective Transferee, such financial and other information in such Bank's
possession concerning the Company or its Subsidiaries which has been delivered
to Administrative Agent or the Banks pursuant to this Agreement or which has
been delivered to the Administrative Agent or the Banks by the Company in
connection with the Banks' credit evaluation of the Company prior to entering
into this Agreement, and (3) unless otherwise agreed by the Company, such
Transferee agrees in writing to such Bank to keep such information confidential
to the same extent required of the Banks hereunder.
(f) Notwithstanding any other provision in this Agreement, any Bank
may at any time create a security interest in, or pledge, all or any portion of
its rights under and interest in this Agreement and the Note held by it in favor
of any Federal Reserve Bank in accordance with Regulation A of the
76.
Federal Reserve Board or U.S. Treasury Regulation 31 CFR (S)203.14 or any
similar regulation, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
10.9 Set-off. In addition to any rights and remedies of the Banks
-------
provided by law, if an Event of Default exists, each Bank is authorized at any
time and from time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing to, such
Bank to or for the credit or the account of the Company against any and all
Obligations owing to such Bank, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Bank shall have made demand
under this Agreement or any Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify the Company and
the Administrative Agent after any such set-off and application made by such
Bank; provided, however, that the failure to give such notice shall not affect
-------- -------
the validity of such set-off and application. The rights of each Bank under
this Section 10.9 are in addition to the other rights and remedies (including
other rights of set-off) which the Bank may have.
10.10 Automatic Debits of Fees. With respect to any fee payable to the
------------------------
Administrative Agent or ABN under this Agreement, or any other cost or expense
(including Attorney Costs) due and payable to the Administrative Agent or ABN
under the Loan Documents, the Company hereby irrevocably authorizes ABN to debit
any deposit account of the Company with ABN in an amount such that the aggregate
amount debited from all such deposit accounts does not exceed such fees or other
cost or expense. If there are insufficient funds in such deposit accounts to
cover the amount of the fee or other cost or expense then due, such debits will
be reversed (in whole or in part, in ABN's sole discretion) and such amount not
debited shall be deemed to be unpaid. No such debit under this Section 10.10
shall be deemed a set-off.
10.11 Notification of Addresses, Lending Offices, etc. Each Bank shall
-----------------------------------------------
notify the Administrative Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of its Offshore
Lending Office, of payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
10.12 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement in any number of separate counterparts, each of which,
when so executed, shall be
77.
deemed an original, and all of said counterparts taken together shall be deemed
to constitute but one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agent.
10.13 Severability. The illegality or unenforceability of any provision
------------
of this Agreement or any Loan Document required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any Loan Document required hereunder.
10.14 No Third Parties Benefitted. This Agreement is made and entered
---------------------------
into for the sole protection and legal benefit of the Company and its
Subsidiaries, the Banks and the Administrative Agent, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents. Neither the
Administrative Agent nor any Bank shall have any obligation to any Person not a
party to this Agreement or other Loan Documents.
10.15 Time. Time is of the essence as to each term or provision of this
----
Agreement and each of the other Loan Documents.
10.16 Governing Law and Jurisdiction.
------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND THE BANKS AND THE COMPANY SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
--------------------
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
CALIFORNIA LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE
--------------------
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
78.
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF
ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
COMPANY, THE BANKS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
----------------
Documents, embodies the entire Agreement and understanding among the Company,
the Banks and the Administrative Agent, and supersedes all prior or
contemporaneous Agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof, except for the fee
letters referenced in Section 2.8.
10.19 Interpretation. This Agreement is the result of negotiations
--------------
between and has been reviewed by counsel to the Administrative Agent, the
Company and other parties, and is the product of all parties hereto.
Accordingly, this Agreement and the other Loan Documents shall not be construed
in favor of or against the Banks or the Administrative Agent merely because of
79.
the Administrative Agent's or Banks' involvement in the preparation of such
documents and agreements.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
THE COMPANY
-----------
ADVANCED MICRO DEVICES, INC.
By /s/ Marvin D. Burkett
----------------------------
Marvin D. Burkett
Senior Vice President and
Chief Financial Officer
Address:
1 AMD Place
Sunnyvale, CA 94086
Attn.: John Patterson
Fax No. (408) 749-7010
80.
THE ADMINISTRATIVE AGENT
------------------------
ABN AMRO BANK, N.V.
By /s/ Robert N. Hartinger
-----------------------------
Title: Group Vice President
By /s/Inga C. Laspin
-----------------------------
Title: Corporate Banking Officer
Address:
335 Madison Avenue, 17th Floor
New York, NY 10017
Attn.: Linda Boardman
Fax No. (212) 682-0364
81.
THE CO-ARRANGERS
----------------
ABN AMRO BANK, N.V.
By /s/ Robert N. Hartinger
-----------------------------
Title: Group Vice President
By /s/Inga C. Laspin
-----------------------------
Title: Corporate Banking Officer
Address:
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn.: Robert N. Hartinger
Fax No. (415) 362-3524
CIBC Inc.
By /s/ Tom R. Wagner
-----------------------------
Title: Vice President
Address:
275 Battery Street, Suite 1840
San Francisco, CA 94111
Attn.: Thomas R. Wagner
Fax No. (415) 399-5761
82.
THE BANKS
---------
ABN AMRO BANK, N.V.
By /s/ Robert N. Hartinger
-----------------------------
Title: Group Vice President
By /s/ Inga C. Laspin
---------------------------
Title: Corporate Banking Officer
Address:
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn.: Robert N. Hartinger
Fax No. (415) 362-3524
83.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent and
as a Bank
By /s/ Kevin McMahon
--------------------------------
Title: Vice President
Address:
555 California Street, 41st Floor
San Francisco, CA 94104
Attn.: Kevin McMahon
Fax No. (415) 622-2514
84.
BANQUE NATIONALE DE PARIS
By /s/ Rafael C. Lumanlan, V.P.
-----------------------------
Title: Vice President
By /s/ William J. La Herran
-----------------------------
Title: Vice President
Address:
180 Montgomery Street
San Francisco, CA 94104
Attn.: Rafael Lumanlan
Fax No. (415) 296-8954
85.
CIBC INC.
By /s/ Tom R. Wagner
-----------------------------
Title: Vice President
Address:
275 Battery Street, Suite 1840
San Francisco, CA 94111
Attn.: Thomas R. Wagner
Fax No. (415) 399-5761
86.
FIRST INTERSTATE BANK OF CALIFORNIA
By /s/ John P. Biestman
-----------------------------
Title: Vice President
By /s/ Marianne Mitosinka
-----------------------------
Title: Vice President
Address:
345 California Street, Suite 2300
San Francisco, CA 94104
Attn.: John P. Biestman
Fax No. (415) 773-7062
87.
FLEET BANK OF MASSACHUSETTS,
NATIONAL ASSOCIATION
By Thomas W. Davies
-----------------------------
Title:
Address:
75 State Street
Boston, MA 02109
Attn.: Thomas W. Davies
Fax No. (617) 346-1633
88.
INDUSTRIAL BANK OF JAPAN
By Yoh Nakahara
-----------------------------
Title: General Manager
Address:
555 California Street, Suite 1610
San Francisco, CA 94104
Attn.: Gregory Stewart
Fax No. (415) 982-1917
89.
THE NIPPON CREDIT BANK, LTD.
By Kiyofumi Ichikawa
-----------------------------
Title: Vice President
Address:
550 S. Hope Street
Suite 2500
Los Angeles, CA 90071
Attn: Kiyofumi Ichikawa
Fax No. 213/628-1649
90.
Exhibit A
NOTE
----
U.S. $__________ ________________, California
Dated: __________, 1995
FOR VALUE RECEIVED, the undersigned, ADVANCED MICRO DEVICES, INC., a
Delaware corporation (the "Company"), HEREBY PROMISES TO PAY in lawful money of
-------
the United States of America in same-day funds to the order of
___________________(the "Bank"), on __________, 1999 the principal sum of
___________________ DOLLARS (U.S. $_____________), together with interest
thereon, as shown on the Schedule attached hereto and any continuation thereof.
The Company promises to pay interest on the unpaid principal amount of
the Loan made to it by the Bank until such principal amount is paid in full, at
such rates, and payable at such times, as are specified in the Loan Agreement
(as defined below).
This Note (and the Schedule attached hereto) is one of the Notes
referred to in, and is subject to and entitled to all of the benefits of, the
Term Loan Agreement dated as of January 5, 1995 (as extended, renewed, amended
or restated from time to time, the "Loan Agreement"), among the COMPANY, the
--------------
several financial institutions from time to time a party thereto (collectively,
the "Banks"), ABN AMRO BANK N.V., as Administrative Agent, and ABN AMRO BANK
N.V. and CIBC INC., as Co-Arrangers. Capitalized terms used herein and not
otherwise defined shall have the terms specified in the Loan Agreement.
The Loan Agreement, among other things, contains provisions for
acceleration by the Bank of the maturity hereof upon the happening of certain
stated events.
The Company hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
1
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA.
ADVANCED MICRO DEVICES, INC.
By: ______________________________
Title:_____________________________
2
SCHEDULE
--------
Loans made to Advanced Micro Devices, Inc. under the Term Loan
Agreement, dated as of January 5, 1995 (together with all amendments and other
supplements or modifications, if any, from time to time hereafter made thereto),
and payment of principal of such loans.
________________________________________________________________________________
Type of Loan Applicable Applicable
Notation Amount (Offshore or Interest Interest
Date of Loan Base Rate) Rate Period Made By
---- ------- ---------- ---- ------ -------
1
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION
---------------------------------
Date: ______________________
To: ABN AMRO Bank N.V., as Administrative Agent for the several financial
institutions from time to time party to the Term Loan Agreement dated as of
January 5, 1995 (as extended, renewed, amended or restated from time to
time, the "Loan Agreement") among Advanced Micro Devices, Inc., the several
--------------
financial institutions from time to time party thereto, ABN AMRO Bank N.V.,
as Administrative Agent and ABN AMRO BANK N.V. and CIBC INC., as Co-
Arrangers
Ladies and Gentlemen:
The undersigned, ADVANCED MICRO DEVICES, INC. (the "Company"), refers
-------
to the Loan Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.4 of the
Loan Agreement, of the [conversion] [continuation] of the Offshore Rate Loans
and/or Base Rate Loans specified herein, that:
1. The Business Day of the [conversion] [continuation] is
__________________ , 19__.
2. The aggregate amount of the Loans to be [converted] [continued] is
$________________.
3. The Loans are to be [converted into] [continued as] [Offshore
Rate] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be ________
months.
The undersigned hereby certifies that on the date hereof and on the
date of the proposed [conversion] [continuation], before and after giving effect
thereto and to the application of the proceeds therefrom, no Default or Event of
Default has occurred and is continuing, or would result from such proposed
[conversion] [continuation].
1
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation as of the date first set forth above.
ADVANCED MICRO DEVICES, INC.
By: ______________________________
Title:_____________________________
2
EXHIBIT C
COMPLIANCE CERTIFICATE
----------------------
Pursuant to that certain Term Loan Agreement dated as of January 5,
1995 (as extended, renewed, amended or restated from time to time, the "Loan
----
Agreement," the terms defined therein being used herein and in the Schedules
- - ---------
attached hereto as therein defined) among ADVANCED MICRO DEVICES, INC., a
Delaware corporation (the "Company"), the several financial institutions from
-------
time to time party thereto, ABN AMRO Bank N.V., as Administrative Agent, and ABN
AMRO BANK N.V. and CIBC INC., as Co-Arrangers, the undersigned
______________________, certifies that s/he is the Chief Financial Officer of
the Company, and that, as such s/he is authorized to execute and deliver this
Certificate, and that:
[Use this paragraph if this Certificate is delivered in connection with the
financial statements required by subsection 6.1(a) of the Loan Agreement:]
1. Attached as Schedule C-2 hereto are the audited consolidated
------------
balance sheet of the Company as of ____________ 199_ and the related
consolidated statements of income, shareholders' equity and cash flows for such
fiscal year, which set forth a comparison with the previous year. The financial
statements attached as Schedule C-2 are accompanied by the opinion of
------------
____________________.
or
[Use these paragraphs if this Certificate is delivered in connection with the
financial statements required by subsection 6.1(b) and (c) of the Loan
Agreement:]
1. (a) Attached as Schedule C-2 hereto are the unaudited
------------
consolidated balance sheet of the Company and its consolidated Subsidiaries and
the related consolidated statements of income, shareholders' equity and cash
flows, all for the fiscal quarter ended _____________, 199_ and for the portion
of the fiscal year ending on such day. The financial statements attached as
Schedule C-2 are complete and correct and fairly present, in accordance with
- - ------------
GAAP, the financial position and results of operations of the Company and its
Subsidiaries; provided, however, footnotes and other financial presentations
-------- -------
customarily presented only for audited year-end statements under GAAP are not
included.
1
(b) Attached as Schedule C-3 hereto are the unaudited
------------
consolidating balance sheets of the Company and each of its Subsidiaries, and
the related consolidating statements of income, shareholders' equity and cash
flow for the fiscal quarter ended ______________ 199_. The financial statements
attached as Schedule C-3 are complete and correct and were used in connection
------------
with the preparation of the unaudited financial statements attached as Schedule
--------
C-2 hereto.
- - ---
2. The Company has reviewed the terms of the Loan Agreement and the
undersigned has made, or has caused to be made under his/her supervision, a
review of the transactions entered into by the Company and its Subsidiaries
during the accounting period covered by the attached financial statements which
could affect the Company's or such Subsidiaries' compliance with such terms.
3. To the best of the undersigned's knowledge, the Company and its
Subsidiaries, during such period, have observed, performed or satisfied all of
the covenants and other agreements contained in the Loan Agreement to be
observed, performed or satisfied by the Company or its Subsidiaries.
4. The examinations described in paragraph 2 above did not disclose,
and the undersigned has obtained no knowledge of, any Default or Event of
Default.
5. The financial covenant calculations and information contained on
Schedule C-1 are in accordance with GAAP and are true and accurate on and as of
- - ------------
the date of this Certificate.
6. The Company has reviewed the terms of the CIBC Guaranty and the
undersigned has made, or has caused to be made under his/her supervision, a
review of the transactions entered into by the Company and its Subsidiaries
during the accounting period covered by the attached financial statements which
could affect the Company's or such Subsidiaries' compliance with such terms, and
such examination did not disclose, and the undersigned has obtained no knowledge
of, any Deposit Event as such term is defined in the CIBC Guaranty.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________, 199_
____________________________________
(signature)
Title:______________________________
2
SCHEDULE C-1
Except as otherwise provided, all amounts set forth below refer to the
Company's consolidated financial statements for the [fiscal quarter] [fiscal
year] ended ____________________, 199__.
1. Modified Quick Ratio (Section 7.10)
--------------------
a. The sum of:
i) cash -------------
ii) Cash Equivalents (other than
those subject to a Lien
securing a non-GAAP liability) -------------
iii) 75% of Long Term Investments
(other than those subject to a
Lien securing a non-GAAP
liability) -------------
iv) Receivables (net of doubtful
account allowance) -------------
Total ---------------
b. The sum of all Consolidated Current
Liabilities (including all
outstanding loans under the Amended
and Restated Credit Agreement). ---------------
c. Required Ratio of 1(a) to 1(b) 1.10 to 1.00
---------------
(minimum)
d. Actual Ratio of 1(a) to 1(b) ---------------
2. Minimum Tangible Net Worth (Section 7.11)
--------------------------
a. The sum of:
i) $1,300,000,000 $1,300,000,000
ii) 75% of net income (without
subtracting losses) earned in each
fiscal quarter, commencing with
the third fiscal quarter of 1994 -------------
iii) 100% of Net Proceeds from any
equity securities issued in each
fiscal quarter, occurring after
September 21, 1994 -------------
iv) 100% of any increase in
stockholders' equity resulting from
the conversion of debt securities
to equity securities, occurring
after September 21, 1994 -------------
Total ---------------
b. Actual Consolidated Tangible Net Worth:
Total assets -------------
Page i of ii
Less:goodwill, licensing
agreements, patents, trademarks,
trade names, organization
expense, treasury stock,
unamortized debt discount and
premium, deferred charges and other
like intangibles -----------
Less:total liabilities (including
accrued and deferred income taxes
and Subordinated Debt) -----------
Consolidated Tangible Net Worth -----------
c. Difference between 2(a) and 2(b) -----------
3. Leverage Ratio (Section 7.12)
--------------
a. Total consolidated liabilities
(from 2(b)) -----------
b. Consolidated Tangible Net Worth
(from 2(b)) -----------
c. Required Ratio of 3(a) to 3(b) 0.85 to 1.0
-----------
(maximum)
d. Actual Ratio 3(a) to 3(b) -----------
4. Fixed Charge Coverage Ratio (Section 7.13)
---------------------------
(for the four consecutive fiscal quarter
period ending on the last day of the last
fiscal quarter covered in this Schedule
C-1)
a. The sum of:
i) interest expense -----------
ii) operating lease expense -----------
iii) pre-tax income -----------
Total -----------
b. The sum of:
i) interest expense -----------
ii) operating lease expense -----------
iii) the average current portion of
long-term debt for each of the
four quarters in such four
fiscal quarter period -----------
Total -----------
c. Required Ratio of 4(a) to 4(b) 1.25 to 1.0
-----------
(minimum)
d. Actual Ratio of 4(a) to 4(b) -----------
Page ii of ii
EXHIBIT D
SHARE ACQUISITION CERTIFICATE
-----------------------------
Pursuant to that certain Term Loan Agreement dated as of January 5,
1995 (as extended, renewed, amended or restated from time to time, the "Loan
----
Agreement," the terms defined therein being used herein as therein defined)
- - ---------
among ADVANCED MICRO DEVICES, INC., a Delaware corporation (the "Company"), the
-------
several financial institutions from time to time party thereto, ABN AMRO BANK
N.V., as Administrative Agent, and ABN AMRO BANK N.V. and CIBC INC., as Co-
Arrangers, the undersigned certifies that s/he is the __________________ of the
Company, and that, as such s/he is authorized to execute and deliver this
Certificate, and that:
1. On _____________, 199_, the Company [purchased] [redeemed] [acquired]
[______________ shares of its [common] [preferred] stock] [warrants or options
to acquire shares of its [common] [preferred] stock];
2. [$_____________] [state value, if other than cash] was given in
exchange for such shares or rights to acquire such shares, which amount is not
greater than the maximum sum permitted pursuant to Section 7.9(a)(ii) of the
Loan Agreement; and
3. No Default or Event of Default has occurred and is continuing, or has
resulted from the above-disclosed transaction.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, 199_.
By:_______________________________________________
Title:____________________________________________
1
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") dated as of
---------
_________________________________, 199___ is made between _____________________
___________________________________________ (the "Assignor") and _______________
--------
______________________________ (the "Assignee").
--------
RECITALS
WHEREAS, the Assignor is party to that certain Term Loan Agreement
dated as of January 5, 1995 among ADVANCED MICRO DEVICES, INC., a Delaware
corporation (the "Company"), the financial institutions from time to time party
-------
thereto (including the Assignor, the "Banks"), ABN AMRO BANK N.V., as
-----
Administrative Agent, and ABN AMRO BANK N.V. and CIBC INC., as Co-Arrangers
(as extended, renewed, amended or restated from time to time, the "Loan
----
Agreement"). Terms defined in the Loan Agreement are used herein with the same
- - ---------
meaning;
WHEREAS, as provided under the Loan Agreement, the Assignor has
committed to make a loan (the "Loan") to the Company in the amount of __________
dollars (U.S.$_______________) (the "Commitment");
----------
WHEREAS, the Assignor has made a Loan in the principal amount of
_________________ United States dollars (U.S. $__________) to the Company; and
WHEREAS, the Assignor wishes to assign to the Assignee a ratable part
of the rights and obligations of the Assignor under the Loan Agreement in
respect of its outstanding Loan in an amount equal to ______________________
United States dollars (U.S.$____________) (the "Assigned Amount") on the terms
---------------
and subject to the conditions set forth herein, and the Assignee wishes to
accept assignment of such rights and to assume such obligations from the
Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreement contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
-------------------------
(a) With effect on and after the Effective Date (as defined in Section 5
hereof), the Assignor hereby sells and assigns to Assignee, and the Assignee
hereby purchases and assumes from the
Assignor, the Assigned Amount, which shall be equal to __________ percent
(_____ %) (the "Assignee's Percentage Share") of all of the Assignor's rights
---------------------------
and obligations under the Loan Agreement, including, without limitation, the
Assignee's Percentage Share of any outstanding Loan. The assignment set forth
in this Section 1(a) shall be without recourse to, or representation or warranty
(except as expressly provided in this Agreement) by, the Assignor.
(b) With effect on and after the Effective Date, the Assignee shall be a
party to the Loan Agreement and succeed to all of the rights and be obligated to
perform all of the obligations of a Bank under the Loan Agreement with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Agreement are required to be performed by it as a Bank.
It is the intent of the parties hereto that the Commitment of the Assignor
shall, as of the Effective Date, be reduced by an amount equal to the Assigned
Amount and the Assignor shall relinquish its rights and be released from its
obligations under the Loan Agreement to the extent such obligations have been
assumed by the Assignee. The Assignee hereby appoints and authorizes Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Agreement and the other Loan Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
(c) After giving effect to the assignment and assumption, on the Effective
Date the Assignee's Commitment will be _________ _________________ United States
dollars (U.S.$_______________).
2. Payments.
--------
(a) As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount equal to ______________________________
United States dollars (U.S.$_____________), representing the Assignee's
Percentage Share of the principal amount of the Loan made, and currently owned,
by the Assignor to the Company under the Loan Agreement and outstanding on the
Effective Date.
(b) The Assignor further agrees to pay to the Administrative Agent a
processing or transfer fee in the amount of $3,000.
[(c) The Assignee agrees to pay to the Assignor a fee in an amount equal to
_____________ percent ( %) of all [interest, commissions and fees] paid by
the Company to the Assignee under the Loan Agreement. Such fee shall be payable
quarterly in
2.
arrears on the last business day of each __________, ___________, and
___________, commencing on _____________; provided, however, that such fee shall
-------- -------
not be due and payable hereunder if the Company has not made a payment of
[interest, commissions, fees] during such immediately preceding quarterly
period. All payments to the Assignor pursuant to this Section 2(c) shall be
made by wire transfer in immediately available funds to _________________
_______________________________________________________, Attention:
______________________ Account #____________, Reference:
______________________________, or to such other person or place as the Assignor
may designate in writing to the Assignee from time to time.]
(d) To the extent payment to be made by the Assignee pursuant to
Section(s) 2(a) [or (c)] hereof are not made when due, the Assignor shall be
entitled to recover such amount together with interest thereon at the Federal
Funds Rate per annum accruing from the date such amounts were due.
3. Reallocation of Payments.
------------------------
Any interest, commissions, fees and other payments accrued to but
excluding the Effective Date with respect to the Loans and the Commitment, shall
be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of the Assignee. Each of the Assignor and the Assignee
agree that it will hold in trust for the other party any interest, commissions,
fees and other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentences and pay to the other party any such amounts
which it may receive promptly upon receipt. The Assignor and the Assignee's
obligations to make the payments referred to in this Section 3 are non-
assignable.
4. Independent Credit Decision.
---------------------------
The Assignee (i) acknowledges that it has received a copy of the Loan
Agreement, together with copies of the financial statements referred to in
Section 6.1 thereof, and such other documents and information as it has deemed
appropriate to make its own independent credit and legal analysis and decision
to enter into this agreement; and (ii) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Banks and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Loan Agreement.
5. Effective Date: [Notices]
-------------------------
3.
[(a)] The effective date for this Agreement shall be ______
_________________ (the "Effective Date"); provided, that the following
--------
conditions precedent have been satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by the Assignor
and the Assignee;
(ii) the requirements for an effective assignment by a Bank set forth
in Section 10.8 of the Loan Agreement shall be satisfied with respect to
the Assigned Amount;
(iii) the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Agreement; and
(iv) the processing or transfer fee referred to in Section 2(b) shall
have been paid to the Agent.
(b) Promptly following the execution of this Agreement, the Assignor shall
deliver to the Agent for acceptance and recording by the Agent, the notices,
agreements and other documents, and administrative details, as may be required
under the Loan Agreement.
[6.] Administrative Agent.
--------------------
[(a) The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the Loan
Agreement as are delegated to the Administrative Agent by the Banks pursuant to
the terms of the Loan Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Loan Agreement.]
[NOTE: SECTION 6 ONLY FOR ASSIGNMENTS BY ABN]
7. Withholding Tax.
---------------
If the Assignee is organized under the laws of any jurisdiction other
than the United States or any state or other political subdivision thereof it
agrees that it will furnish the Assignor, the Agent and the Company,
concurrently with the execution of this Agreement, either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein the
Assignee claims entitlement to complete exemption from or reduced rate of U.S.
federal withholding tax on all interest payments under the Loan Agreement), as
well as Form W-8 or W-9, if applicable, provided, however, that the Assignee
-------- -------
shall not be required to deliver Form 4224 or 1001 under this Section 7 to the
4.
extent that delivery of such form is not authorized by law. The Assignee agrees
to comply with Section 3.1(f) of the Loan Agreement (if applicable).
8. Representations and Warranties.
------------------------------
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any lien, security interest or other adverse
claim; (ii) it is duly organized and existing and it has the full power and
authority to take, and has taken, all action necessary to execute and deliver
this Agreement and any other documents required or permitted to be executed or
delivered by it in connection with this Agreement and to fulfill its obligations
hereunder; (iii) no notices to, or consents, authorizations or approvals of, any
person are required (other than already given or obtained) for its due
execution, delivery and performance of this Agreement, and apart from any
agreements or undertaking or filings required by the Loan Agreement, no further
action by, or notice to, or filing with, any person is required of it for such
execution, delivery or performance; and (iv) this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligations of the Assignor, enforceable against the Assignor in accordance with
the terms hereof, except subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Company or the performance or observance by the Company of any of its
respective obligations under the Loan Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Agreement and any other documents
required or permitted to be executed or delivered by it in connection with this
Agreement, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any person are required (other than
any already given or obtained)
5.
for its due execution, delivery and performance of this Agreement; and apart
from any agreements or undertaking or filings required by the Loan Agreement, no
further action by, or notice to, or filing with, any person is required of it
for such execution, delivery or performance; (iii) this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligations of the Assignee, enforceable against the Assignee in accordance with
the terms hereof, except subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to or
affecting creditors' rights and to general equitable principles; and (iv) it is
an Eligible Assignee.
9. Further Assurances.
------------------
The Assignor and the Assignee each hereby agrees to execute and
deliver such other instruments, and take such other actions, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including, without limitation, the delivery of any notices or other
documents or instruments to the Company or the Agent which may be required in
connection with the assignment and assumption contemplated hereby.
10. Indemnity.
---------
The Assignee agrees to indemnify and hold harmless the Assignor
against any and all losses, cost, expenses (including, without limitation,
reasonable attorneys' fees and the allocated costs and expenses for in-house
counsel) and liabilities incurred by the Assignor in connection with or arising
in any manner from the non-performance by the Assignee of any obligation assumed
by the Assignee under this Agreement.
11. Miscellaneous.
-------------
(a) Any amendment or waiver of any provision of this Agreement shall
be in writing signed by the parties hereto. No failure or delay by either party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver of any breach of the provisions of this Agreement and shall be without
prejudice to any rights with respect to any other or further breach hereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) All communications among the parties or notices in connection
herewith shall be in writing, hand-delivered, or sent by mail, telex or
facsimile transmitter, addressed as follows: (i) if to the Assignor or the
Assignee, at their respective
6.
addresses set forth in the signature pages hereof and (ii) if to the Company or
to the Agent, at their respective addresses set forth in the Loan Agreement or
other documents or instruments. All such communications and notices shall be
effective upon receipt.
(d) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Agreement.
(e) The representations and warranties made herein shall survive the
consummation of the transactions contemplated hereby.
(f) This Agreement shall be binding upon and inure to the benefit of
the Assignor and the Assignee and their respective successors and assigns;
provided, however, that no party shall assign its rights hereunder without the
prior written consent of the other party and any purported assignment, absent
such consent, shall be void. The preceding sentence shall not limit the right
of the Assignee to assign or participate all or part of the Assignee's
Percentage Share and the Assigned Amount and any outstanding Loans in the manner
contemplated by the Loan Agreement.
(g) The Assignor may at any time or from time to time further ratably
grant to others, to the extent not already assigned to Assignee, assignments or
participations in Assignor's Commitment, and any outstanding Loans.
(h) This Agreement may be executed in any number of counterparts and
all of such counterparts taken together shall be deemed to constitute one and
the same instrument.
(i) This Agreement shall be governed by, and construed in accordance
with, the law of the State of California; provided that parties hereto shall
retain all rights arising under federal law. Any legal action or proceeding
with respect to this Agreement may be brought in the courts of the State of
California or of the United States for the Northern District of California, and
by execution and delivery of this Agreement, each of the parties consents, for
itself and in respect of its property, to the non-exclusive jurisdiction of
those courts. Each of the parties irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non
---------
conveniens, which it may now or hereafter have to the bringing of any action or
- - ----------
proceeding in such jurisdiction in respect of this Agreement, the other Loan
Documents or any document related hereto or thereto. The parties each waive
personal service of
7.
any summons, complaint or other process, which may be made by any other means
permitted by California law.
(j) The parties each waive their respective rights to a trial by jury
of any claim or cause of action based upon or arising out of or related to this
Agreement, the Loan Agreement, the other Loan Documents, or the transactions
contemplated hereby or thereby, in any action, proceeding or other litigation of
any type brought by any of the parties against any other party or parties,
whether with respect to contract claims, tort claims, or otherwise. The parties
each agree that any such claim or cause of action shall be tried by a court
trial without a jury. Without limiting the foregoing, the parties further agree
that their respective right to a trial by jury is waived by operation of this
section as to any action, counterclaim or other proceeding which seeks, in whole
or in part, to challenge the validity or enforceability of this Agreement, the
Loan Agreement or the other Loan Documents or any provision hereof or thereof.
This waiver shall apply to any subsequent amendments, renewals, supplements or
modifications to this Agreement, the Loan Agreement and the other Loan
Documents.
(k) This Agreement and any agreement, document or instrument attached
hereto or referred to herein integrate all the terms and conditions mentioned
herein or incidental hereto, constitute the entire agreement and understanding
between the parties hereto and supersede any and all prior agreements and
understandings related to the subject matter hereof. In the event of any
conflict between the terms, conditions and provisions of this Agreement and any
such agreement, document or instrument, the terms, conditions and provisions of
this Agreement shall prevail.
(l) Headings are for reference only and are to be ignored in
interpreting this Agreement.
(m) The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
8.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
__________________________________,
Assignor
By: _____________________________
Title: __________________________
Address: ________________________
________________________
________________________
__________________________________,
Assignor
By: _____________________________
Title: __________________________
Address: ________________________
________________________
________________________
9.
Exhibit F
FORM OF LEGAL OPINION
---------------------
ABN AMRO Bank N.V., as
Administrative Agent and
Co-Arranger
101 California Street, Suite 4550
San Francisco CA 94111
CIBC Inc., as Co-Arranger
275 Battery Street, Suite 1840
San Francisco CA 94111
The Banks Listed on Schedule A hereto
Ladies and Gentlemen:
We have acted as counsel for Advanced Micro Devices, Inc., a Delaware
corporation (the "Company"), in connection with the execution and delivery of
the Term Loan Agreement, dated as of January 5, 1995 (the "Agreement"), among
the Company, ABN AMRO Bank N.V., as Administrative Agent (the "Agent"), ABN AMRO
Bank N.V. and CIBC Inc., as Co-Arrangers (the "Co-Arrangers") and the financial
institutions named on the signature pages thereto (the "Banks").
This opinion is provided pursuant to Section 4.1 of the Agreement.
Capitalized terms not otherwise defined herein have the respective meanings set
forth in the Agreement, except that the term Loan Documents, as used herein,
means the Agreement, the Notes delivered by the Company pursuant to Sections
2.2(b) and 4.1(b) of the Agreement and the certificates provided by the Company
pursuant to Sections 4.1(d), (e) and (h) of the Agreement.
We have examined executed copies of the Agreement and the other Loan
Documents; certificates of public officials from the States of Delaware,
California, Texas and various other states of the United States; the Certificate
of Incorporation and By-laws of the Company, as amended to date; records of
proceedings of the Board of Directors of the Company during or by which
resolutions were adopted relating to matters covered by this opinion; and
certificates of officers of the Company as to certain factual matters. The
Company has certified to us in a Certificate
ABN AMRO Bank N.V
CIBC Inc
Page 2
attached hereto as Exhibit A that the Company has no Contractual Obligation
which is not listed in the Certificate and which is material to the Company as
that term is defined in the Certificate. The Company has provided copies to us
of the documentation relating to such Contractual Obligations, which
documentation we have reviewed. In addition, we have made such other
investigations as we have deemed necessary to enable us to express the opinions
hereinafter set forth. We have assumed the genuineness of all signatures of
persons signing the Agreement on behalf of parties thereto other than the
Company, the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies.
As used in this opinion, the expression "to the best of our knowledge after
due investigation" means that, after an examination of documents in our files
and documents made available to us by the Company and after inquiries of one or
more officers of the Company which we believe are sufficient for the purpose of
expressing the opinions contained herein, we find no reason to believe that the
opinions expressed herein are factually incorrect; but beyond that, we have made
no independent factual investigation for the purpose of rendering this opinion.
Based upon the foregoing, and further subject to the last three paragraphs
of this letter, we hereby advise you that in our opinion:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Company has
the requisite corporate power and authority to own, lease, license and
operate its Property, to conduct the business in which it is currently
engaged, to execute, deliver and perform its obligations under the
Agreement and the other Loan Documents to which it is a party and to borrow
under the Agreement.
2. The Company is duly licensed and qualified to transact business
as a foreign corporation under the laws of, and is in good standing in,
each state of the United States where its ownership, lease, license or
operation of Property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified
would not, in the aggregate, materially adversely affect (i) the business,
operations, Property or financial or other condition of the Company and its
Subsidiaries on a consolidated basis, (ii) the ability of the Company to
perform its obligations under the Agreement
ABN AMRO Bank N.V
CIBC Inc
Page 3
or the other Loan Documents, or (iii) the rights of any party to the
Agreement or the other Loan Documents.
3. Each of the Company's Material Subsidiaries is a corporation (or,
in the case of AMD (Thailand) Ltd. and Advanced Micro Devices (Singapore)
Pte. Ltd., a limited liability company and a private limited company,
respectively) duly organized, validly existing and in good standing (where
such concept is applicable) under the laws of the jurisdiction of its
formation, and has the requisite corporate power and authority to own,
lease, license and operate its Property, and to conduct its business in
which it is currently engaged.
4. AMD International Sales & Service, Ltd., a Delaware Corporation,
is duly licensed and qualified to transact business, and is in good
standing, in the State of California. With the exception of the activities
of AMD International Sales & Service, Ltd. in California, as to each
Material Subsidiary, neither its ownership, lease, license or operation of
Property nor the conduct of its business requires that such Material
Subsidiary be licensed and qualified to transact business as a foreign
corporation under the laws of any state of the United States, except to the
extent that the failure to be so qualified would not, in the aggregate,
materially adversely affect (i) the business, operations, Property or
financial or other condition of the Company and its Subsidiaries on a
consolidated basis, (ii) the ability of the Company to perform its
obligations under the Agreement and the other Loan Documents to which it is
a party, or (iii) the rights of any party to the Agreement or the other
Loan Documents. AMD International Sales & Service, Ltd. is duly licensed
and qualified to transact business, and is in good standing (to the extent
such concept is applicable), in The Netherlands.
5. The Agreement, the borrowings proposed to be made thereunder and
the other Loan Documents have been duly authorized by the Company and no
further corporate action is required in connection therewith. The
Agreement and the other Loan Documents to which the Company is a party have
each been duly executed and delivered on behalf of the Company and each
constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
ABN AMRO BANK
CIBC Bank
Page 4
6. No consent, approval, authorization, registration or filing with
any Governmental Authority or any trustee or holder of Indebtedness is
required in connection with the execution, delivery or performance by the
Company of the Agreement or the other Loan Documents to which it is a party
or the borrowings proposed to be made under the Agreement.
7. The execution, delivery and performance by the Company of the
Agreement and the other Loan Documents to which it is a party and the
borrowings proposed to be made under the Agreement will not violate,
contravene or result in a material breach of any Organization Document or
Contractual Obligation of the Company listed on Exhibit A attached hereto
or any Requirement of Law applicable to the Company or result in, or
require, the creation or imposition of any Lien on any of its Property or
revenues pursuant to such Requirement of Law or Contractual Obligation
listed on Exhibit A attached hereto, except in favor of the Agent and
Banks.
8. To the best of our knowledge after due investigation, except as
set forth on Schedule 5.05 or Schedule 5.12 to the Agreement, no
------------- --------------
litigation, investigation or proceedings of or before any court, arbitrator
or other Governmental Authority is pending, threatened against or affecting
the Company, any of its Material Subsidiaries or their respective Property
or revenues, (i) the adverse determination of which could materially
adversely affect the financial condition or results of operations of the
Company and its Subsidiaries on a consolidated basis or the Company's
ability to perform its obligations under the Agreement or the other Loan
Documents to which it is a party or under any instrument or agreement
required thereunder, or (ii) alleging violation of any federal, state, or
local law, rule or regulation relating to hazardous or toxic materials,
substances or wastes.
9. Neither the Company nor any of its Subsidiaries is an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
10. To the best of our knowledge after due investigation, the Company
has no Subsidiaries other than those set forth on Schedule 5.17 to the
-------------
Agreement.
ABN AMRO Bank N.V.
CIBC Inc
Page 5
11. Regulation U of the Board of Governors of the Federal Reserve
System does not apply to the extension of credit under the Agreement.
Our opinion set forth in paragraph 5 above is subject to the qualification
that the enforceability of the Agreement and the other Loan Documents to which
the Company is a party and any instrument or agreement required thereunder to
which the Company is a party may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights and by general equity principles, regardless of whether
considered in a proceeding in equity or at law. We advise that a California
court may not strictly enforce certain covenants in the Loan Documents or allow
acceleration of any outstanding Loans if it concludes that such enforcement or
acceleration would be unreasonable or violate the Banks' implied covenant of
good faith and fair dealing under the then existing circumstances. We have
assumed that the Banks are exempt lenders for the purposes of the usury laws of
the State of California. Our opinion set forth in paragraph 7 above is based
upon our assumption that the property which is and may become subject to the
CIBC Leases is owned, for all purposes, by the Lessor and not by the Lessee or
by the Company.
We are members of the Bar of the State of California, and we do not express
any opinion herein concerning any law other than the law of the State of
California, the federal law of the United States, the Delaware General
Corporation Law and, in the case of paragraph 2 above, the laws of various other
states regarding the qualification of foreign corporations to do business within
those states. In the case of paragraph 3 above, we have relied entirely upon
the opinions of Rodyk & Davidson; Baker & McKenzie; Carlsmith Ball Wichman
Murray Case & Ichiki; Droste Rechtsanwalte; Konaka Toyama & Hosoya; Peter Huang
& Associates; Taylor Joynson Garrett; and Morris, Nichols, Arsht & Tunnell. In
the case of our opinion in paragraph 4 above concerning the qualification of AMD
International Sales & Service, Ltd. in The Netherlands, we have relied entirely
upon the opinion of Nauta Dutilh.
This letter has been furnished to you pursuant to Section 4.1 of the
Agreement for your use in connection with the Agreement, and may be relied upon
by the Agent, Co-Arrangers, Banks, Participants and Assignees. This letter may
not be disclosed in whole or in part to any other person or relied upon for any
other purpose or otherwise quoted or referred to without our prior written
consent, except that you may furnish copies
ABN AMRO Bank Inc N.V.
CIBC Inc
Page 6
hereof: (a) to your independent auditors and attorneys; (b) to any state or
federal authority having regulatory jurisdiction over you; (c) pursuant to order
or legal process of any court or government agency; and (d) in connection with
any legal action to which you are a party arising out of the transactions
provided for in the Agreement; provided, however, that you are authorized to
-------- -------
make disclosures coming within the scope of item (d), above, regardless of
whether such disclosures would also come within the scope of any of items (a)-
(c) as well, only if no later than five business days after each such disclosure
you furnish written notice to us of such disclosure.
Very truly yours,
JGM:cr
Schedule A
ABN AMRO Bank N.V.
CIBC Inc.
Bank of America National
Trust and Savings Association
Banque Nationale de Paris
First Interstate Bank of California
Fleet Bank of Massachusetts,
National Association
Industrial Bank of Japan, Ltd.
The Nippon Credit Bank, Ltd.