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EXHIBIT 10.14
EXECUTION COPY
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AMENDED AND RESTATED LOAN AGREEMENT
DATED AS OF AUGUST 3, 1998
AMONG
JABIL CIRCUIT, INC.
AND
CERTAIN BORROWING SUBSIDIARIES,
THE BANKS NAMED THEREIN
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
SUNTRUST BANK, TAMPA BAY,
AS DOCUMENTATION AGENT
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FIRST CHICAGO CAPITAL MARKETS, INC.,
AS ARRANGER
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TABLE OF CONTENTS
ARTICLE PAGE
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I. DEFINITIONS................................................................................... 1
1.1 Certain Definitions................................................................... 1
1.1 Other Definitions; Rules of Construction.............................................. 12
II. THE COMMITMENTS AND THE ADVANCES.............................................................. 13
2.1 Commitments of the Banks.............................................................. 13
2.2 Termination and Reduction of Commitments.............................................. 15
2.3 Fees.................................................................................. 15
2.4 Disbursement of Advances.............................................................. 16
2.5 Conditions for First Disbursement..................................................... 18
2.6 Further Conditions for Disbursement................................................... 19
2.7 Subsequent Elections as to Borrowings................................................. 20
2.8 Limitation of Requests and Elections.................................................. 20
2.9 Minimum Amounts; Limitation on Number of Borrowings................................... 21
2.10 Security and Collateral............................................................... 21
III. PAYMENTS AND PREPAYMENTS...................................................................... 21
3.1 Principal Payments.................................................................... 21
3.2 Interest Payments..................................................................... 23
3.3 Letter of Credit Reimbursement Payments............................................... 23
3.4 Payment Method........................................................................ 25
3.5 No Setoff or Deduction................................................................ 26
3.6 Payment on Non-Business Day; Payment Computations..................................... 27
3.7 Additional Costs...................................................................... 27
3.8 Illegality and Impossibility.......................................................... 28
3.9 Indemnification....................................................................... 28
3.10 Right of Banks to Fund Through Other Offices.......................................... 29
IV. REPRESENTATIONS AND WARRANTIES................................................................ 29
4.1 Corporate Existence and Power......................................................... 29
4.2 Corporate Authority................................................................... 29
4.3 Binding Effect........................................................................ 29
4.4 Subsidiaries.......................................................................... 29
4.5 Litigation............................................................................ 30
4.6 Financial Condition................................................................... 30
4.7 Use of Loans.......................................................................... 30
4.8 Consents, Etc......................................................................... 30
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ARTICLE PAGE
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4.9 Taxes................................................................................. 30
4.10 Title to Properties................................................................... 31
4.11 ERISA................................................................................. 31
4.12 Disclosure............................................................................ 31
4.13 Environmental and Safety Matters...................................................... 31
4.14 No Material Adverse Change............................................................ 32
4.15 No Default............................................................................ 32
4.16 No Burdensome Restrictions............................................................ 32
V. COVENANTS..................................................................................... 32
5.1 Affirmative Covenants................................................................. 32
(a) Preservation of Corporate Existence, Etc....................................... 32
(b) Compliance with Laws, Etc...................................................... 33
(c) Maintenance of Properties; Insurance........................................... 33
(d) Reporting Requirements......................................................... 33
(e) Accounting; Access to Records, Books, Etc...................................... 34
(f) Stamp Taxes.................................................................... 35
(g) Additional Security and Collateral............................................. 35
(h) Further Assurances............................................................. 35
5.2 Negative Covenants.................................................................... 35
(a) Current Ratio.................................................................. 35
(b) Fixed Charge Coverage Ratio.................................................... 35
(c) Tangible Net Worth ............................................................ 35
(d) Funded Indebtedness to Total Capitalization.................................... 36
(e) Indebtedness................................................................... 36
(f) Liens.......................................................................... 36
(g) Merger; Acquisitions; Etc...................................................... 37
(h) Disposition of Assets, Etc..................................................... 38
(i) Nature of Business............................................................. 38
(j) Investment, Loans and Advances................................................. 38
(k) Transactions with Affiliates................................................... 38
(l) Sale and Leaseback Transactions................................................ 38
(m) Negative Pledge Limitation..................................................... 39
(n) Inconsistent Agreements........................................................ 39
(o) Accounting Changes............................................................. 39
(p) Additional Covenants........................................................... 39
VI. DEFAULT....................................................................................... 39
6.1 Events of Default..................................................................... 39
6.2 Remedies.............................................................................. 42
6.3 Distribution of Proceeds of Collateral................................................ 42
6.4 Letter of Credit Liabilities.......................................................... 43
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ARTICLE PAGE
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VII. THE AGENT AND THE BANKS....................................................................... 43
7.1 Appointment and Authorization......................................................... 43
7.2 Agent and Affiliates.................................................................. 44
7.3 Scope of Agent's Duties............................................................... 44
7.4 Reliance by Agent..................................................................... 44
7.5 Default............................................................................... 44
7.6 Liability of Agent.................................................................... 44
7.7 Nonreliance on Agent and Other Banks.................................................. 45
7.8 Indemnification....................................................................... 45
7.9 Resignation of Agent.................................................................. 45
7.10 Sharing of Payments................................................................... 46
7.11 Local Custom.......................................................................... 46
VIII. GUARANTY........................................................................................47
8.1 Guarantee of Obligations.............................................................. 47
8.2 Waivers and Other Agreements.......................................................... 47
8.3 Nature of Guaranty.................................................................... 48
8.4 Obligations Absolute.................................................................. 48
8.5 No Investigation by Banks or Agent.................................................... 48
8.6 Indemnity............................................................................. 48
8.7 Subordination, Subrogation, Etc....................................................... 49
8.8 Waiver................................................................................ 49
8.9 Joint and Several Obligations; Contribution Rights.................................... 49
IX. MISCELLANEOUS................................................................................. 51
9.1 Amendments, Etc....................................................................... 51
9.2 Notices............................................................................... 51
9.3 No Waiver By conduct; Remedies Cumulative............................................. 52
9.4 Reliance on and Survival of Various Provisions........................................ 52
9.5 Expenses.............................................................................. 52
9.6 Successors and Assigns................................................................ 54
9.7 Counterparts.......................................................................... 57
9.8 Governing Law; Consent to Jurisdiction................................................ 57
9.9 Table of Contents and Headings........................................................ 57
9.10 Construction of Certain Provisions.................................................... 57
9.11 Integration and Severability.......................................................... 57
9.12 Independence of Covenants............................................................. 58
9.13 Interest Rate Limitation.............................................................. 58
9.14 Joint and Several Obligations; Contribution Rights; Savings Clause.................... 58
9.15 Waivers, Etc.......................................................................... 60
9.16 Relationship of this Agreement to the Existing Loan Agreement......................... 60
9.17 Waiver of Jury Trial.................................................................. 61
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EXHIBITS
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Exhibit A New Borrowing Subsidiary Designation
Exhibit B Pledge Agreement
Exhibit C Revolving Credit Note
Exhibit D Swing Line Note
Exhibit E Request for Advance
Exhibit F Opinion of Counsel
Exhibit G Request for Conversion
Exhibit H Assignment and Acceptance
Exhibit I Assumption Agreement
SCHEDULES
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Schedule 1.1 Borrowing Subsidiaries
Schedule 4.4 Subsidiaries
Schedule 4.5 Litigation
Schedule 5.2(e) and (f) Indebtedness and Liens
Schedule 5.2(j) Investments, Loans and Advances
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THIS AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 3, 1998 (as
amended or modified from time to time, this "Agreement"), is by and among JABIL
CIRCUIT, INC., a Delaware corporation (the "Company"), each of the Subsidiaries
of the Company designated in Section 1.1 as a Borrowing Subsidiary
(individually, a "Borrowing Subsidiary" and collectively, the "Borrowing
Subsidiaries") (the Company and the Borrowing Subsidiaries may each be referred
to as a "Borrower" and, collectively, as the "Borrowers"), and the Banks set
forth on the signature pages hereof (collectively, the "Banks" and
individually, a "Bank") and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, as administrative agent for the Banks (in such capacity,
the "Agent").
INTRODUCTION
A. The Borrowers, certain banks and The First National Bank of Chicago,
as agent for such banks, entered into an Amended and Restated Loan Agreement
dated as of August 6, 1997 (as amended prior to the date hereof, the "Original
Loan Agreement"), in which such banks agreed to make loans and other credit
available to the Borrowers (the "Original Credit Facility").
B. The parties hereto wish to continue the existing credit relationship
between them by amending and restating the Original Loan Agreement rather than
entering into a new and unrelated loan agreement.
C. The Borrowers, the Banks and the Agent desire to restructure the
Original Credit Facility so as to (i) extend the term of the Original Credit
Facility, (ii) increase the aggregate commitments thereunder to the Aggregate
Commitment and (iii) amend various other provisions in the Original Credit
Agreement.
D. Pursuant to the terms of this Agreement, the Borrowers desire to
obtain a revolving credit facility, including letters of credit and bank
guarantees, in the aggregate principal amount of $225,000,000 (or the
equivalent thereof in any other Permitted Currency), in order to refinance
certain existing indebtedness, including indebtedness under the Original Loan
Agreement, and provide funds for their general corporate purposes, and the
Banks are willing to establish such a credit facility in favor of the Borrowers
on the terms and conditions herein set forth.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree that the Original Loan Agreement shall be
amended and restated as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall have
the following respective meanings:
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate" when used with respect to any person shall mean any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any person, shall mean possession,
directly or indirectly,
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of the power to direct or cause the direction of the management and policies of
such person, whether through the ownership of voting securities or by contract
or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
of the Banks, as reduced or modified from time to time pursuant to the terms
hereof, which Aggregate Commitment shall initially be $225,000,000 as of the
Effective Date.
"Applicable Administrative Office" shall be: (a) with respect to all
Advances denominated in Dollars, the principal office of the Agent in Chicago,
Illinois; (b) with respect to all Bank Guarantees, the principal London office
of the Agent, currently located at First Chicago House, 90 Long Acre, London,
England; and (c) for all other purposes, the principal office of the Agent in
Chicago, Illinois.
"Applicable Rate" shall mean with respect to any Eurocurrency Rate
Loan, commitment fee, usage fee, or S/L/C fee, as the case may be, the
applicable percentage set forth in the applicable table below as adjusted on
the first Business Day of the calendar month after the date on which the
financial statements and compliance certificate required pursuant to Section
5.1(d)(iii) and (iv) are delivered to the Banks and shall remain in effect
until the next change to be effected pursuant to this definition, provided,
that (a) if any financial statements referred to above are not delivered within
the time period specified above, then, until the financial statements are
delivered, the Applicable Rate shall be as set forth in Level IV, and (b) if
any Event of Default has occurred and is continuing, the Applicable Rate shall
be as set forth in Level IV:
APPLICABLE RATE
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Level Total Eurocurrency Commitment Usage
Indebtedness to Rate Loan/ S/L/C Fee Fee
Total Fee
Capitalization
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I. Equal to or less 0.625% 0.20% 0.125%
than 0.30:1.0
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II. Greater than 0.75% 0.20% 0.125%
0.30:1.0 but
less than or
equal to 0.40:1.0
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III. Greater than 0.875% 0.225% 0.125%
0.40:1.0 but
less than or
equal to 0.50:1.0
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IV. Greater than 1.00% 0.25% 0.25%
0.50:1.0
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"Bank Guarantee" shall mean each guarantee and any other similar
instrument having an analogous effect denominated in Pounds Sterling, issued by
the Issuing Bank hereunder in favor of HM Customs and Excise for the benefit of
a Borrower for the purpose of guaranteeing value-added-tax and duty import
payments.
"Bank Obligations" shall mean all indebtedness, obligations and
liabilities, whether now owing or hereafter arising, direct, indirect,
contingent or otherwise, of the Borrowers to the Agent or any Bank pursuant to
the Loan Documents.
"Borrowing" shall mean the aggregation of Advances made to any
Borrower, or continuations and conversions of such Advances, made pursuant to
Article II on a single date and for a single Interest Period. A Borrowing may
be referred to for purposes of this Agreement by reference to the type of Loan
comprising the relating Borrowing, e.g., a "Floating Rate Borrowing" if such
Loans are Floating Rate Loans or a "Eurocurrency Rate Borrowing" if such Loans
are Eurocurrency Rate Loans.
"Borrowing Subsidiary" shall mean each of the Subsidiaries of the
Company set forth on Schedule 1.1 on the Effective Date together with any other
Subsidiary of the Company upon request by the Company to the Agent for
designation of such Subsidiary as a "Borrowing Subsidiary" hereunder, so long
as (a) all of the Banks approve, in their sole and absolute discretion, the
designation of such Subsidiary as a "Borrowing Subsidiary", (b) each of the
Guarantors guarantees the obligations of such new Borrowing Subsidiary pursuant
to the terms of the Guaranty, (c) such new Borrowing Subsidiary delivers Notes
executed in favor of each Bank, all documents and items referred to in Section
2.5 and Security Documents granting a security interest in all assets pursuant
to Section 2.10, all in form and substance satisfactory to the Banks, and (d)
the Company and such new Borrowing Subsidiary execute an agreement in the form
of Exhibit A hereto.
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which (a) the Agent is not open to the public for carrying on
substantially all of its banking functions or banks located in Chicago are
authorized or required to close, and (b) if such reference relates to the date
for payment or purchase of any amount denominated in any currency other than
Dollars or in respect of any Eurocurrency Rate Loan, banks are not generally
open to the public for carrying on substantially all of their banking functions
in the principal financial center of the country issuing such currency and in
London, England.
"Capital Expenditures" shall mean, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Subsidiaries for such period as the same are (or should be) set forth, in
accordance with Generally Accepted Accounting Principles, in consolidated
financial statements of the Company and its Subsidiaries for such period.
"Capital Lease" of any person shall mean any lease which, in
accordance with Generally Accepted Accounting Principles, is capitalized on the
books of such person.
"Capital Stock" shall include all capital stock and any securities
exchangeable for or convertible into capital stock and any warrants, rights or
other options to purchase or otherwise acquire capital stock or such securities
or any other form of equity securities.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"Collateral Agent" shall mean First Chicago.
"C/L/C" shall mean any commercial letter of credit issued by the
Issuing Bank hereunder.
"Commitment" shall mean, with respect to each Bank, the commitment of
each such Bank to make Loans and to participate in Letter of Credit Advances
made through the Issuing Bank pursuant to Section 2.1(a) and (b), in amounts
not exceeding in aggregate principal amount outstanding at any time the
respective commitment amount for each such Bank set forth next to the name of
each such Bank in the signature pages hereof, as such amounts may be reduced
from time to time pursuant to Section 2.2.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for the Company and its
consolidated Subsidiaries of the amounts signified by such term for all such
persons determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles.
"Contingent Liabilities" of any person shall mean, as of any date,
all obligations of such person or of others for which such person is
contingently liable, as obligor, guarantor, surety or in any other capacity, or
in respect of which obligations such person assures a creditor against loss or
agrees to take any action to prevent any such loss (other than endorsements of
negotiable instruments for collection in the ordinary course of business),
including without limitation all reimbursement obligations of such person in
respect of any letters of credit, surety bonds or similar obligations and all
obligations of such person to advance funds to, or to purchase assets, property
or services from, any other person in order to maintain the financial condition
of such other person.
"Contractual Obligation" shall mean, as to any person, any material
provision of any security issued by such person or of any agreement, instrument
or other undertaking to which such person is a party or by which it or any of
its property is bound.
"Corporate Base Rate" shall mean a rate per annum equal to the
corporate base rate of interest announced by First Chicago from time to time,
changing when and as said corporate base rate changes.
"Current Assets" and "Current Liabilities" of any person shall mean,
as of any date, all assets or liabilities, respectively, of such person which,
in accordance with Generally Accepted Accounting Principles, should be
classified as current assets or current liabilities, respectively, on a balance
sheet of such person.
"Current Ratio" shall mean, as of any date, the ratio of (a)
Consolidated Current Assets to (b) Consolidated Current Liabilities.
"Default" shall mean any of the events or conditions described in
Section 6.1 which might become an Event of Default with notice or lapse of time
or both.
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"Defaulting Bank" means any Bank that fails to make available to the
Agent such Bank's Loans required to be made hereunder or shall not have made a
payment required to be made to the Agent hereunder. Once a Bank becomes a
Defaulting Bank, such Bank shall continue as a Defaulting Bank until such time
as such Defaulting Bank makes available to the Agent, the amount of such
Defaulting Bank's Loans and all other amounts required to be paid to the Agent
pursuant to this Agreement.
"Dollar Equivalent" shall mean, with respect to each Advance, the sum
in Dollars resulting from the conversion of the amount of such Advance from the
Permitted Currency in which such Advance is denominated into Dollars at the
spot exchange rate determined by the Agent to be available to it for the
purchase of such Permitted Currency with Dollars at approximately 11:00 a.m.
local time of the Applicable Administrative Office on the date any Advance is
disbursed or rolled over, or on such other date as a determination of the
Dollar Equivalent is made.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Borrower" shall mean any Borrower incorporated or formed in
any State of the United States of America or any political subdivision of any
such State.
"Domestic Subsidiary" shall mean any Subsidiary of any Borrower
incorporated or formed in any State of the United States or any political
subdivision of any such State.
"EBIT" shall mean, with respect to any person, for any period, the
sum of (a) Net Income or loss plus (b) all amounts deducted in determining such
Net Income or loss on account of (i) all consolidated interest expense and (ii)
taxes based on or measured by income, all as determined in accordance with
Generally Accepted Accounting Principles.
"EBITDA" shall mean, with respect to any person, for any period, EBIT
for such period plus, to the extent deducted in determining such EBIT,
depreciation and positive amortization expense, all as determined in accordance
with Generally Accepted Accounting Principles.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
"Environmental Laws" at any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards which are applicable to any Borrower or
any Subsidiary and promulgated by the government of the United States of
America or any foreign government or by any state, province, municipality or
other political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
"Equivalent" of an amount of one currency (the "first currency")
denominated in another currency (the "second currency"), as of any date of
determination, shall mean the amount of the second currency which could be
purchased with the amount of the first currency at the spot exchange rate
quoted by the Agent at approximately 11:00 a.m. local time of the Applicable
Administrative Office on such date.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations thereunder.
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"ERISA Affiliate" shall mean, with respect to any person, any trade
or business (whether or not incorporated) which, together with such person or
any Subsidiary of such person, would be treated as a single employer under
Section 414 of the Code.
"Eurocurrency Rate" applicable to any Eurocurrency Interest Period
means, the per annum rate that is equal to the sum of:
(a) the Applicable Rate, plus
(b) the rate per annum obtained by dividing (i) the per annum rate
determined by the Agent to be the rate at which First Chicago offers to place
deposits in the Permitted Currency in which such Eurocurrency Rate Loan is to
be denominated with first-class banks in the London interbank market at
approximately 11:00 a.m. local time in London, England on the second
Eurocurrency Business Day prior to the first day of such Eurocurrency Interest
Period, in the approximate amount of First Chicago's relevant Eurocurrency Rate
Loan and having a maturity approximately equal to such Eurocurrency Interest
Period by (ii) an amount equal to one minus the stated maximum rate (expressed
as a decimal) of all reserve requirements including, without limitation, any
marginal, emergency, supplemental, special or other reserves, that is specified
on the first day of such Eurocurrency Interest Period by the Board of Governors
of the Federal Reserve System (or any successor agency thereto) or the relevant
fiscal or monetary authority for determining the maximum reserve requirement
with respect to eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank of such
System; all as conclusively determined by the Agent, absent manifest error,
such sum to be rounded up, if necessary, to the nearest whole multiple of one
one-hundredth of one percent (1/100 of 1%); which Eurocurrency Rate shall
change simultaneously with any change in the Applicable Rate.
"Eurocurrency Business Day" shall mean, with respect to any
Eurocurrency Rate Loan, a day which is both a Business Day and a day on which
dealings in deposits of the relevant Permitted Currency are carried out in the
relevant interbank market.
"Eurocurrency Interest Period" shall mean, with respect to any
Eurocurrency Rate Loan, the period commencing on the day such Eurocurrency Rate
Loan is made, converted to or continued as a Eurocurrency Rate Loan and ending
on the date one, two, three or six months thereafter, as any Borrower may elect
under Section 2.4 or 2.7, and each subsequent period commencing on the last day
of the immediately preceding Eurocurrency Interest Period and ending on the
date one, two, three or six months thereafter, as a Borrower may elect under
Section 2.4 or 2.7, provided, however, that (a) any Eurocurrency Interest
Period which commences on the last Eurocurrency Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Eurocurrency
Business Day of the appropriate subsequent calendar month, (b) each
Eurocurrency Interest Period which would otherwise end on a day which is not a
Eurocurrency Business Day shall end on the next succeeding Eurocurrency
Business Day or, if such next succeeding Eurocurrency Business Day falls in the
next succeeding calendar month, on the next preceding Eurocurrency Business
Day, (c) no Eurocurrency Interest Period shall be permitted which would end
after the Termination Date and (d) during the initial sixty days after the
Effective Date, no Eurocurrency Interest Period may exceed one month, unless
otherwise agreed by the Agent.
"Eurocurrency Rate Loan" shall mean any Loan which bears interest at
the Eurocurrency Rate.
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"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
"Federal Funds Rate" shall mean the per annum rate that is equal to
the per annum rate established and announced by the Federal Reserve Bank of New
York from time to time as the opening federal funds rate; as conclusively
determined by the Agent, absent manifest error, such rate to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%), which Federal Funds Rate shall change simultaneously with any
change in such announced rates.
"First Chicago" shall mean The First National Bank of Chicago, in its
individual capacity, and its successors.
"Fixed Charge Coverage Ratio" of any person shall mean, as of any
date, the ratio of (a) Consolidated EBITDA as calculated for the four most
recently ended consecutive fiscal quarters of the Company plus all payments
relating to operating leases of such person during such period to (b) all
consolidated interest expense during such period for such person, plus all
payments relating to operating leases of such person during such period.
"Floating Rate" shall mean, as of any date, the per annum rate equal
to the greater of (i) the Corporate Base Rate in effect from time to time, or
(ii) the sum of the Federal Funds Rate in effect from time to time plus
one-half of one percent (1/2 of 1%) per annum; which Floating Rate shall change
simultaneously with any change in such Corporate Base Rate or Federal Funds
Rate, as the case may be.
"Floating Rate Loan" shall mean any Loan which bears interest at the
Floating Rate.
"Foreign Borrower" shall mean any Borrower incorporated or formed in
any jurisdiction other than any State of the United States of America or any
political subdivision of any such State.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or formed
in any jurisdiction other than any State of the United States of America or any
political subdivision of any such State.
"Funded Indebtedness" of any person shall mean, as of any date, all
Indebtedness of such person for borrowed money, including without limitation,
all obligations under any Capital Lease and all Indebtedness under any
agreement entered into as part of a Permitted Receivables Transaction, but
excluding Subordinated Debt.
"Generally Accepted Accounting Principles" shall mean Generally
Accepted Accounting Principles in effect from time to time and applied on a
basis consistent with that reflected in the financial statements referred to in
Section 4.6.
"Guarantor" shall mean each Domestic Borrower and each Domestic
Subsidiary of any Borrower and each person becoming a Domestic Borrower or
Domestic Subsidiary of any Borrower, or otherwise entering into a Guaranty from
time to time.
"Guaranty" shall mean the guaranty entered into by each Guarantor for
the benefit of the Agent and the Banks pursuant to Article VIII of this
Agreement and any other guaranties entered into by a Guarantor pursuant to
Section 5.1(g), as amended or modified from time to time.
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"Hazardous Materials" shall mean any material or substance: (1) which
is or becomes defined as a hazardous substance, pollutant, or contaminant,
pursuant to the Comprehensive Environmental Response Compensation and Liability
Act (42 USC ss.9601 et. seq.) as amended and regulations promulgated under it;
(2) containing gasoline, oil, diesel fuel or other petroleum products; (3)
which is or becomes defined as hazardous waste pursuant to the Resource
Conservation and Recovery Act (42 USC ss.6901 et. seq.) as amended and
regulations promulgated under it; (4) containing polychlorinated biphenyls
(PCBs); (5) containing asbestos; (6) which is radioactive; (7) the presence of
which requires investigation or remediation under any Environmental Law; (8)
which is or becomes defined or identified as a hazardous waste, hazardous
substance, hazardous or toxic chemical, pollutant, contaminant, or biologically
Hazardous Material under any Environmental Law.
"Indebtedness" of any person shall mean (i) indebtedness for borrowed
money, (ii) obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of property
or services, except for trade accounts payable arising in the ordinary course
of business that are not more than 90 days past due or as are reasonably being
contested, (iv) obligations as lessee under leases which have been in
accordance with Generally Accepted Accounting Principles, recorded as Capital
Leases, (v) obligations to purchase property or services if payment is required
regardless of whether such property is delivered or services are performed
(generally called "take or pay" contracts), (vi) obligations in respect of
currency or interest rate swaps or comparable transactions valued at the
maximum termination payment payable by the obligor, (vii) all obligations of
others similar in character to those described in clauses (i) through (iv) of
this definition for which such person is contingently liable, as guarantor,
surety, accommodation party, partner or in any other capacity, or in respect of
which obligations such person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such person in respect of
letters of credit, surety bonds or similar obligations and all obligations of
such person to advance funds to, or to purchase assets, property or services
from, any other person in order to maintain the financial condition of such
other person, (viii) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA, and (ix) the aggregate principal amount of
the financing provided to the Company and its Subsidiaries under any agreement
entered into as part of a Permitted Receivables Transaction.
"Intercreditor Agreement" shall mean the Intercreditor Agreement
dated as of May 30, 1996, as now and hereafter amended or modified from time to
time, among the Company, the Banks, the Agent, the Collateral Agent and the
Note Purchasers.
"Interest Payment Date" shall mean (a) with respect to any
Eurocurrency Rate Loan, the last day of each Interest Period with respect to
such Eurocurrency Rate Loan and, in the case of any Interest Period exceeding
three months, those days that occur during such Interest Period at intervals of
three months after the first day of such Interest Period, and (b) in all other
cases, the last Business Day of each August, November, February and May
occurring after the date hereof, commencing with the first such Business Day
occurring after the date of this Agreement.
"Interest Period" shall mean any Eurocurrency Interest Period.
"Investment Grade Senior Debt Rating" means, at any date, a person's
senior unsecured long term debt is rated BBB- or better by Standard & Poor's
Corporation and Baa3 or better by Moody's Investor Service, Inc.
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"Issuing Bank" shall mean First Chicago, together with its successors
and assigns, and any other Bank hereafter designated as an "Issuing Bank" upon
the prior written agreement of the Company, the Agent and such Bank.
"Jabil Malaysia" shall mean Jabil Circuit Sbn Bhd., a corporation
organized and existing under the laws of Malaysia.
"Jabil Ltd" shall mean Jabil Circuit Ltd., a corporation organized
and existing under the laws of Scotland.
"Letter of Credit" shall mean a Bank Guarantee, S/L/C or C/L/C having
a stated expiry date or a date by which any draft drawn thereunder must be
presented not later than twelve months after the date of issuance and not later
than the fifth Business Day before the Termination Date, issued by the Issuing
Bank on behalf of the Banks for the account of any Borrower under an
application and related documentation acceptable to the Issuing Bank requiring,
among other things, immediate reimbursement by such Borrower to the Issuing
Bank in respect of all drafts or other demand for payment honored thereunder
and all reasonable and customary expenses paid or incurred by the Issuing Bank
relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.4 made pursuant to Section 2.1 in which each Bank
acquires a pro rata participation (based on such Bank's Commitment) pursuant to
Section 2.4(d).
"Letter of Credit Documents" shall have the meaning set forth in
Section 3.3(b).
"Lien" shall mean any pledge, assignment, deed of trust,
hypothecation, mortgage, security interest, conditional sale or title retaining
contract, financing statement filing, or any other type of lien, charge,
encumbrance or other similar claim or right.
"Loan" shall mean any Revolving Credit Loan or any Swing Line Loan,
as the context may require.
"Loan Documents" shall mean this Agreement, the Notes, the Letter of
Credit Documents, the Security Documents and any other agreement, instrument or
document executed at any time in connection with this Agreement.
"Majority Banks" shall mean Banks holding not less than fifty-one
percent (51%) of the Commitments (or fifty-one percent (51%) of the outstanding
Advances if the Commitments have been terminated).
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations or financial condition of the Company and its
Subsidiaries, taken as a whole, (b) the ability of any Borrower to perform its
obligations under any Loan Document, or (c) the validity or enforceability of
any Loan Document or the rights or remedies of the Agent or the Banks under any
Loan Document.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
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"Net Cash Proceeds" shall mean, in connection with any issuance or
sale of any Capital Stock, the cash proceeds received from such issuance, net
of investment banking fees, reasonable and documented attorneys' fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and other costs and expenses actually incurred in connection therewith.
"Net Income" of any person shall mean, for any period, the net income
(after deduction for income and other taxes of such person determined by
reference to income or profits of such person) of such person for such period,
all as determined in accordance with Generally Accepted Accounting Principles.
"Notes" shall mean the Revolving Credit Notes and the Swing Line
Notes; "Note" shall mean any Revolving Credit Note or any Swing Line Note.
"Note Purchase Agreement" shall mean the Note Purchase Agreement
between the Company and the Note Purchasers dated as of May 30, 1996, as
amended or modified from time to time.
"Note Purchasers" shall mean Connecticut General Life Insurance
Company, Life Insurance Company of North America and Metropolitan Life
Insurance Company.
"Original Dollar Amount" shall mean, with respect to any Advance, the
Equivalent in Dollars of the original principal amount of such Advance
specified in the related request therefor given by a Borrower pursuant to
Section 2.4 (a) as such amount is reduced by payments of principal made in
respect of such Advance in Dollars (or the Dollar Equivalent thereof in the
case of a payment made in a Permitted Currency other than Dollars) and (b) as
such amount is adjusted pursuant to Section 3.1(c).
"Overdue Rate" shall mean (a) in respect of principal of Floating
Rate Loans, a rate per annum that is equal to the sum of two percent (2%) per
annum plus the Floating Rate, (b) in respect of principal of Eurocurrency Rate
Loans or Swing Line Loans, a rate per annum that is equal to the sum of two
percent (2%) per annum plus the per annum rate in effect thereon until the end
of the then current Interest Period for such Loan and, thereafter, a rate per
annum that is equal to the sum of two percent (2%) per annum plus, with respect
to Loans denominated in Dollars, the Floating Rate and, with respect to Loans
denominated in any other Permitted Currency, the relevant market rate for such
Permitted Currency plus the Applicable Rate for Eurocurrency Rate Loans, and
(c) in respect of other amounts payable by any Borrower hereunder (other than
interest), a per annum rate that is equal to the sum of two percent (2%) per
annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Currency" shall mean Dollars, Pounds Sterling, French
Francs, Swiss Francs, Deutsche Marks, Dutch Gilders and any other currency
which is freely transferable and convertible into Dollars, is readily available
in the Euromarket and is approved by all the Banks.
"Permitted Liens" shall mean Liens permitted by Section 5.2(f)
hereof.
"Permitted Receivables Transactions" shall mean, collectively, (i) if
an SPC is created in connection therewith, the creation of the SPC to purchase
accounts receivable generated by and owed to the Company or any Subsidiary,
(ii) the entry by one or more Receivables Sellers into one or more receivables
purchase agreements with Purchasers, pursuant to which each Purchaser will,
from time to
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time, purchase from such Receivables Sellers undivided interests in the
receivables described in clause (i), and (iii) the entry by such Receivables
Sellers into such ancillary agreements, documents and instruments as are
necessary or advisable in connection with such receivables purchase agreements,
provided that (x) the outstanding principal amount of the financing provided by
all Purchasers pursuant to all such receivables purchase agreements shall not
exceed $175,000,000 in the aggregate at any time and (y) the primary structural
terms of each such receivables purchase agreement, including without
limitation, the amount of any recourse to the Company or any of its
Subsidiaries for uncollectible receivables, shall be reasonably satisfactory to
the Agent in each case.
"Person" or "person" shall include an individual, a corporation, a
limited liability company, an association, a partnership, a trust or estate, a
joint stock company, an unincorporated organization, a joint venture, a trade
or business (whether or not incorporated), a government (foreign or domestic)
and any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any person, any pension plan
(other than a Multiemployer Plan) subject to Title IV of ERISA or to the
minimum funding standards of Section 412 of the Code which has been established
or maintained by such person, any Subsidiary of such person or any ERISA
Affiliate, or by any other person if such person, any Subsidiary of such person
or any ERISA Affiliate could have liability with respect to such pension plan.
"Pledge Agreement" shall mean the Pledge Agreement entered into by
the Company in favor of the Collateral Agent for the benefit of the Banks and
the Note Purchasers pursuant to the Intercreditor Agreement in substantially
the form of Exhibit B hereto, as amended or modified from time to time.
"Private Placement Debt" shall mean the Indebtedness evidenced by the
Senior Notes.
"Private Placement Documents" shall mean the Note Purchase Agreement,
the Senior Notes, together with any and all other documents, instruments and
certificates executed and delivered pursuant thereto, as amended or modified
from time to time and any other documents executed in exchange or replacement
therefor.
"Prohibited Transaction" shall mean any non-exempt transaction
involving any Plan which is proscribed by Section 406 of ERISA or Section 4975
of the Code.
"Purchaser" shall mean a purchaser of accounts receivable from one or
more Receivables Sellers pursuant to a Permitted Receivables Transaction.
"Receivables Seller" shall mean any one of any SPC, the Company, or a
Subsidiary which is the seller of receivables in a Permitted Receivables
Transaction, and "Receivables Sellers" means all of such entities collectively.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"Required Banks" shall mean Banks holding not less than sixty-six
percent (66%) of the Commitments (or sixty-six percent (66%) of the outstanding
Advances if the Commitments have been terminated).
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"Requirement of Law" shall mean as to any person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such person or any of its property or to which such person
or any of its property is subject.
"Revolving Credit Advance" shall mean any Revolving Credit Loan and
any Letter of Credit Advance.
"Revolving Credit Note" shall mean any promissory note of any
Borrower evidencing the Revolving Credit Advances in substantially the form
annexed hereto as Exhibit C, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Revolving Credit Loan" shall mean any Borrowing under Section 2.4
evidenced by the Revolving Credit Notes and made pursuant to Section 2.1(a).
"Security Documents" shall mean, collectively, the Pledge Agreement,
the Guaranties, the Intercreditor Agreement and all other related agreements
and documents, including financing statements and similar documents delivered
pursuant to this Agreement or otherwise entered into by any person to secure
the Advances.
"Senior Notes" shall mean the 6.89% Senior Notes due May 30, 2004
issued pursuant to the Note Purchase Agreement.
"S/L/C" shall mean any standby letter of credit issued by the Issuing
Bank hereunder.
"SPC" shall mean any special purpose corporation or other legal
entity created in connection with a Permitted Receivables Transaction and which
performs the function of purchasing receivables from the Company and/or one or
more Subsidiaries and selling them to a Purchaser.
"Subordinated Debt" of any person shall mean, as of any date, that
Indebtedness of such person for borrowed money which is expressly subordinate
and junior in right and priority of payment to the Advances and other
Indebtedness of such person to the Banks in manner and by agreement
satisfactory in form and substance to the Majority Banks.
"Subsidiary" of any person shall mean any other person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and
of record, by such person or by one or more of the other Subsidiaries of such
person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of the Company.
"Swing Line Bank" shall mean First Chicago, together with its
successors and assigns, and any other Bank hereafter designated as a "Swing
Line Bank" upon the prior written agreement of the Company, the Agent and such
Bank.
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"Swing Line Facility" shall have the meaning specified in Section
2.1(b).
"Swing Line Interest Period" shall mean, with respect to any Swing
Line Loan, the period commencing on the day such Swing Line Loan is made and
ending on the date agreed upon between the Borrower requesting such Loan and
the Swing Line Bank at the time such Swing Line Loan is made, provided no Swing
Line Interest Period which would end after the Termination Date shall be
permitted.
"Swing Line Loan" shall mean any borrowing under Section 2.4
evidenced by a Swing Line Note and made pursuant to Section 2.1(b).
"Swing Line Note" means any promissory note of any Borrower payable
to the order of the Swing Line Bank, in substantially the form annexed hereto
as Exhibit D, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Swing Line Rate" shall mean, with respect to any Swing Line Rate
Loan, the rate per annum agreed upon between the Borrower requesting such Loan
and the Swing Line Bank at the time such Swing Line Rate Loan is made.
"Tangible Net Worth" of any person shall mean, as of any date, (a)
the amount of any capital stock, paid in capital and similar equity accounts
plus (or minus in the case of a deficit) the capital surplus and retained
earnings of such person and the amount of any foreign currency translation
adjustment account shown as a capital account of such person, less (b) the net
book value of all items of the following character which are included in the
assets of such person: (i) goodwill, including, without limitation, the excess
of cost over book value of any asset, (ii) organization or experimental
expenses, (iii) unamortized debt discount and expense, (iv) patents,
trademarks, trade names and copyrights, (v) treasury stock, (vi) franchises,
licenses and permits, and (vii) other assets which are deemed intangible assets
under Generally Accepted Accounting Principles.
"Termination Date" shall mean the earlier to occur of (a) August 3,
2001 and (b) the date on which the Commitments shall be terminated pursuant to
Section 2.2 or 6.2.
"Total Capitalization" of any person shall mean the sum of (a)
Tangible Net Worth plus (b) Funded Indebtedness plus (c) deferred income taxes
of such person.
"Total Indebtedness" of any person shall mean, as of any date, all
Indebtedness of such person for borrowed money, including without limitation,
all obligations under any Capital Lease and Subordinated Debt.
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan
as of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
"Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability materially affects the business, operations and financial condition
of the Company and its Subsidiaries, taken as a whole.
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"Year 2000 Program" is defined in Section 4.17.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Agent", "Banks", "Company", "Borrower", "Borrowers", "Borrowing Subsidiary",
"Borrowing Subsidiaries", "Original Credit Facility", "Original Loan Agreement"
and "this Agreement" shall have the respective meanings ascribed thereto in the
introductory paragraphs of this Agreement. Such terms, together with the other
terms defined in Section 1.1, shall include both the singular and the plural
forms thereof and shall be construed accordingly. All computations required
hereunder and all financial terms used herein shall be made or construed in
accordance with Generally Accepted Accounting Principles unless such principles
are inconsistent with the express requirements of this Agreement provided that,
if the Company notifies the Agent that the Company wishes to amend any covenant
in Article V to eliminate the effect of any change in Generally Accepted
Accounting Principles in the operation of such covenant (or if the Agent
notifies the Company that the Majority Banks wish to amend Article V for such
purpose), then the Borrowers' compliance with such covenant shall be determined
on the basis of Generally Accepted Accounting Principles in effect immediately
before the relevant change in Generally Accepted Accounting Principles became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrowers and the Majority Banks. Use of the terms
"herein", "hereof", and "hereunder" shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which such term
appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
ARTICLE II.
THE COMMITMENTS AND THE ADVANCES
2.1 Commitments of the Banks.
(a) Revolving Credit Advances. Each Bank agrees, for itself only,
subject to the terms and conditions of this Agreement, to make Revolving Credit
Loans to the Borrowers pursuant to Section 2.4 and to participate in Letter of
Credit Advances to the Borrowers pursuant to Section 2.4, from time to time
from and including the Effective Date to but excluding the Termination Date,
not to exceed in aggregate principal amount at any time outstanding the amount
determined pursuant to Section 2.1(c). On the date of each Advance, the Dollar
Equivalent on such date of all Advances, including the Advances to be made or
requested on such date, shall not exceed the Aggregate Commitment.
(b) Swing Line Loan. (i) Any Borrower may request the Swing Line Bank
to make, and the Swing Line Bank may, in its sole discretion provided that the
requirements of Section 2.6 are complied with by the Borrowers at the time of
such request, make, Swing Line Loans to any Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate principal amount not to exceed at any date the lesser of
(A) $10,000,000 (or the Dollar Equivalent thereof in any other Permitted
Currency) (the "Swing Line Facility") and (B) the aggregate of the unused
portions of the Commitments of the Banks as of such date. Each Bank's
Commitment shall be deemed utilized by an amount equal to such Bank's pro rata
share (based on such Bank's Commitment) of each Swing Line Loan for purposes of
determining the amount of Revolving Credit Advances required to be made by such
Bank, but no Bank's Commitment shall be deemed utilized for purposes of
determining commitment fees under Section 2.3(a)(i). Swing Line Loans shall
bear interest at the Floating Rate or at the Swing Line Rate, as elected by the
Borrower requesting such Loan pursuant to Section 2.4. Within the limits of the
Swing Line Facility, so long as the Swing Line Bank, in
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its sole discretion, elects to make Swing Line Loans, the Borrowers may borrow
and reborrow under this Section 2.1(b)(i).
(ii) The Swing Line Bank may at any time in its sole and absolute
discretion require that any Swing Line Loan be refunded by a Revolving Credit
Loan which is, in the case of any Swing Line Loan denominated in Dollars, a
Floating Rate Loan, and in the case of any Swing Line Loan in any other
Permitted Currency, a Eurocurrency Rate Loan in the same Permitted Currency in
which such Swing Line Loan is denominated, and upon written notice thereof by
the Swing Line Bank to the Agent, the Banks and the Borrower for any such Swing
Line Loan, such Borrower shall be deemed to have requested a Revolving Credit
Loan for the account of such Borrower for any such Swing Line Loan bearing
interest at the Floating Rate or Eurocurrency Rate with an Interest Period of
one month, as provided above, in an amount equal to the amount of any such
Swing Line Loan in the same Permitted Currency in which such Swing Line Loan is
denominated (unless a Default or Event of Default has occurred and is
continuing at which time all Swing Line Loans being refunded under this Section
2.1(b)(ii) or Section 2.1(b)(iii) may, at the option of the Required Banks, be
converted to Dollars), and such Revolving Credit Loan shall be made to refund
such Swing Line Loan. Each Bank shall be absolutely and unconditionally
obligated (except as set forth in Section 2.1(b)(i)) to fund its pro rata share
(based on such Bank's Commitment) of such Revolving Credit Loan or, if
applicable, purchase a participating interest in the Swing Line Loans pursuant
to Section 2.1(b)(iii) and such obligation shall not be affected by any
circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Bank or any Borrower or any of
their respective Subsidiaries may have against the Agent, any Borrower or any
of their respective Subsidiaries or anyone else for any reason whatsoever; (B)
the occurrence or continuance of a Default or an Event of Default, subject to
Section 2.1(b)(iii); (C) any adverse change in the condition (financial or
otherwise) of any Borrower or any of its Subsidiaries; (D) any breach of this
Agreement by any Borrower or any of their respective Subsidiaries or any other
Bank; or (E) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing (including any Borrower's failure to
satisfy any conditions contained in Article II or any other provision of this
Agreement).
(iii) If, for any reason (including without limitation as a result of
the occurrence of an Event of Default with respect to any Borrower pursuant to
Section 6.1(i)), Revolving Credit Loans may not be made by the Banks as
described in Section 2.1(b)(ii), then (A) each Borrower agrees that each Swing
Line Loan not paid pursuant to Section 2.1(b)(ii) shall bear interest, payable
on demand by the Agent, at the Overdue Rate then applicable to Floating Rate
Loans with respect to Swing Line Loans denominated in Dollars and at the
Overdue Rate then applicable to Eurocurrency Rate Loans in the Permitted
Currency in which such Swing Line Loan is denominated in all other cases, and
(B) effective on the date each such Revolving Credit Loan would otherwise have
been made, each Bank severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default or Event of
Default, in lieu of deemed disbursement of loans, to the extent of such Bank's
Commitment, purchase a participating interest in the Swing Line Loans by paying
its participation percentage thereof. Each Bank will immediately transfer to
the Agent, in same day funds, the amount of its participation. Each Bank shall
share on a pro rata basis (calculated by reference to its Commitment) in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any Bank shall not have so made the amount of such participating
interest available to the Agent, such Bank and the Borrower of such Swing Line
Loan severally agree to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Agent until the date such amount is paid to the Agent, at (x) in the case of
any Borrower, at the interest rate specified above and (y) in the case of such
Bank, the Federal Funds Rate.
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(c) Limitation on Amount of Advances. Notwithstanding anything in
this Agreement to the contrary, (i) the Dollar Equivalent of the aggregate
principal amount of the Revolving Credit Advances made by any Bank at any time
outstanding shall not exceed the amount of its respective Commitment as of the
date any such Advance is made, (ii) the Dollar Equivalent of the aggregate
principal amount of all Revolving Credit Advances at any time outstanding to
any Borrower shall not exceed the amount set forth next to the name of such
Borrower set forth on Schedule 1.1, and (iii) the Dollar Equivalent of the
aggregate principal amount of Revolving Credit Advances and Swing Line Loans
outstanding to the Borrowers shall not exceed the Aggregate Commitment,
provided, however, that the Dollar Equivalent of the aggregate principal amount
of Letter of Credit Advances outstanding at any time shall not exceed
$10,000,000.
2.2 Termination and Reduction of Commitments.
(a) (i) The Company shall have the right to terminate or reduce the
Aggregate Commitment at any time and from time to time at its option, provided
that (A) the Company shall give five days' prior written notice of such
termination or reduction to the Agent (with sufficient executed copies for each
Bank) specifying the amount and effective date thereof, (B) each partial
reduction of the Aggregate Commitment shall be in a minimum amount of
$5,000,000 and in integral multiples of $1,000,000 and shall reduce the
Commitments of all of the Banks proportionately in accordance with the
respective commitment amounts for each such Bank set forth in the signature
pages hereof next to the name of each such Bank, (C) no such termination or
reduction shall be permitted with respect to any portion of the Aggregate
Commitment as to which a request for a Borrowing pursuant to Section 2.4 is
then pending and (D) the Aggregate Commitment may not be terminated if any
Advances are then outstanding and may not be reduced below the principal amount
of Advances then outstanding.
The Commitments or any portion thereof terminated or reduced pursuant
to this Section 2.2(a), whether optional or mandatory, may not be reinstated.
The Borrowers shall immediately prepay the Loans to the extent they exceed the
reduced Aggregate Commitment pursuant hereto, and any reduction hereunder shall
reduce the Commitment amount of each Bank proportionately in accordance with
the respective Commitment amounts for each such Bank set forth on the signature
pages hereof next to the name of each such Bank.
(b) For purposes of this Agreement, a Letter of Credit Advance (i)
shall be deemed outstanding in an amount equal to the sum of the maximum amount
available to be drawn under the related Letter of Credit on or after the date
of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed
by a Revolving Credit Loan as provided in Section 3.3 and (ii) shall be deemed
outstanding at all times on and before such stated expiry date or such earlier
date on which all amounts available to be drawn under such Letter of Credit
have been fully drawn, and thereafter until all related reimbursement
obligations have been paid. Upon each payment made by the Agent in respect of
any draft or other demand for payment under any Letter of Credit, the amount of
any Letter of Credit Advance outstanding immediately prior to such payment
shall be automatically reduced by the amount of each Revolving Credit Loan
deemed advanced in respect of the related reimbursement obligation of the
Borrower.
2.3 Fees.
(a) (i) The Company agrees to pay to the Banks a commitment fee on
the daily average unused amount of the Aggregate Commitment, for the period
from the Effective Date to but excluding the Termination Date, at a rate equal
to the Applicable Rate.
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(ii) During any calendar quarter during the period from the
Effective Date to but excluding the Termination Date when the aggregate daily
average amount of outstanding Advances exceeded 50% of the Aggregate Commitment
at any time during such quarter, the Company agrees to pay to the Banks a usage
fee on the daily average amount of outstanding Advances during such quarter at
a rate equal to the Applicable Rate.
(iii) Accrued commitment and usage fees shall be payable
quarterly in arrears in Dollars on the last Business Day of each August,
November, February and May, commencing on the first such Business Day occurring
after the date of this Agreement, and on the Termination Date. For the purpose
of calculating the fees under this Section 2.3(a) only, the aggregate amount of
S/L/Cs and Bank Guarantees outstanding shall constitute usage of the Commitment
while the aggregate amount of C/L/Cs outstanding shall not constitute usage of
the Commitment. For the purpose of calculating the fees under this Section
2.3(a) only, but not for the purpose of calculating the available Commitment of
each Bank, Swing Line Loans shall not constitute usage of the Commitment for
any Bank for the purpose of calculating the commitment fee and will count as
usage of the Aggregate Commitment for the purpose of calculating the usage fee.
(b) The Borrowers agree to pay (i) with respect to S/L/Cs, (A) a fee
to Agent for the benefit of the Banks computed at the Applicable Rate on the
maximum amount available to be drawn from time to time under such S/L/C for the
period from and including the date of issuance of such S/L/C to and including
the stated expiry date of such S/L/C, and (B) to pay an additional fee to the
Issuing Bank for its own account computed at the rate of one-eighth of one
percent (1/8 of 1%) per annum of such maximum amount for such period, which fee
shall be paid annually in advance at the time such S/L/C is issued or amended,
(ii) with respect to C/L/Cs, a fee to the Agent for the ratable benefit of the
Banks computed at the rate of three-eighths of one percent (3/8 of 1%) per
annum, which fees shall be paid at each time as any C/L/C is presented or drawn
upon, in whole or in part on the amount of such C/L/C which is presented or
drawn upon, in whole or in part, and (iii) with respect to Bank Guarantees, a
fee to the Agent for the ratable benefit of the Banks computed at the rate of
seven-eighths of one percent (7/8 of 1%) per annum on the maximum amount
available to be drawn from time to time under such Bank Guarantee for the
period from and including the date of issuance of such Bank Guarantee to and
including the stated expiry date of such Bank Guarantee, which fee shall be
paid by the Borrower in advance at three month intervals from issuance of the
Bank Guarantee. Such fees are nonrefundable and the Borrowers shall not be
entitled to any rebate of any portion thereof if such Letter of Credit does not
remain outstanding through its stated expiry date or for any other reason. The
Borrowers further agree to pay to the Issuing Bank, on demand, such other
customary and reasonable administrative fees, charges and expenses of the
Issuing Bank in respect of the issuance, negotiation, acceptance, amendment,
transfer and payment of such Letter of Credit or otherwise payable pursuant to
the application and related documentation under which such Letter of Credit is
issued in accordance with a schedule of fees provided by the Issuing Bank to
the Company.
(c) The Company also agrees to pay to each Bank on the Effective Date
an upfront fee in an amount equal to one tenth of one percent (0.10%) of the
amount of such Bank's Commitment.
(d) The Company agrees to pay to the Agent and First Chicago Capital
Markets, Inc. (the "Arranger") an arrangement fee and an agency fee for their
services as Agent and Arranger, respectively, under this Agreement in such
amounts as may from time to time be agreed upon by the Company, the Agent and
the Arranger.
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2.4 Disbursement of Advances.
(a) Except with respect to Swing Line Loans, a Borrower shall give
the Agent notice of its request for each Advance in substantially the form of
Exhibit E hereto at the principal office of the Agent and at the Applicable
Administrative Office with respect to such Advance not later than 11:00 a.m.
local time of the Applicable Administrative Office (i) three Eurocurrency
Business Days prior to the date such Advance is requested to be made if such
Borrowing is to be made as a Eurocurrency Rate Borrowing, and (ii) three
Business Days prior to the date any Letter of Credit Advance is requested to be
made and (iii) on the date such Advance is requested to be made if such Advance
is to be made as a Floating Rate Borrowing. Such notice shall specify whether a
Eurocurrency Rate Loan, Floating Rate Loan or a Letter of Credit Advance is
requested and, in the case of each requested Eurocurrency Rate Loan, the
Interest Period to be initially applicable to such Loan and the Permitted
Currency in which such Loan is to be denominated. With respect to Swing Line
Loans, a Borrower shall give the Swing Line Bank notice of its request for each
Swing Line Loan in substantially the form of Exhibit E hereto at the Applicable
Administrative Office with respect to such Advance not later than 1:00 p.m.
local time of the Applicable Administrative Office on the same Business Day any
Swing Line Loan is requested to be made which notice shall specify the
Permitted Currency in which such Loan is to be denominated and whether such
Borrower elects the Swing Line Rate or the Floating Rate with respect to such
Swing Line Loan. The Agent, on the same day any such notice is given, shall
provide notice of such requested Loan, other than any Swing Line Loan, to each
Bank (which notice shall be provided by 1:00 p.m. local time of the Applicable
Administrative Office with respect to Floating Rate Loans). Subject to the
terms and conditions of this Agreement, the proceeds of each such requested
Loan shall be made available to the Borrower requesting such Loan by depositing
the proceeds thereof, in immediately available, freely transferable cleared
funds, in the case of any Loan denominated in Dollars in an account maintained
and designated by such Borrower, and, in all other cases, in an account
maintained and designated by such Borrower at a bank acceptable to the Agent in
the principal financial center of the country issuing the Permitted Currency in
which such Loan is denominated or in such other place specified by the Agent.
Subject to the terms and conditions of this Agreement, the Issuing Bank shall,
on the date any Letter of Credit Advance is requested to be made, issue the
related Letter of Credit on behalf of the Banks for the account of the Borrower
requesting such Letter of Credit. Notwithstanding anything herein to the
contrary, the Issuing Bank may decline to issue any requested Letter of Credit
on the basis that the beneficiary, the purpose of issuance or the terms or the
conditions of drawing are unacceptable to it in its reasonable discretion.
(b) Each Bank, on the date any Loan is requested to be made, shall
make its pro rata share of such Loan available in immediately available, freely
transferable cleared funds for disbursement to the Borrower requesting such
Loan pursuant to the terms and conditions of this Agreement, in the case of any
Loan denominated in Dollars, at the principal office of the Agent and, in all
other cases, to the account of the Agent at its designated branch or
correspondent bank in the country issuing such Permitted Currency in which such
Loan is denominated or at such other place specified by the Agent. Unless the
Agent shall have received prior notice from any Bank that such Bank will not
make available to the Agent such Bank's pro rata portion of such Loan, the
Agent may assume that such Bank has made such portion available to the Agent on
the date such Loan is requested to be made in accordance with this Section 2.4.
If, after receiving notice of a Loan from the Agent in accordance with this
Section 2.4, and to the extent such Bank shall not have so made such pro rata
portion available to the Agent, the Agent may (but shall not be obligated to)
make such amount available to such Borrower, and such Bank agrees to pay to the
Agent forthwith on demand such amount together with interest thereon, for each
day from the date such amount is made available to such Borrower by the Agent
until the date such amount is repaid to the Agent, at a rate per annum equal to
the Federal Funds Rate or the relevant market interbank
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compensation rate with respect to Permitted Currencies other than Dollars then
in effect. If such Bank shall pay such amount to the Agent together with
interest, such amount so paid shall constitute a Loan by such Bank as part of
the related Borrowing for purposes of this Agreement and interest shall accrue
from the date of the related Borrowing. The failure of any Bank to make its pro
rata portion of any such Borrowing available to the Agent shall not relieve any
other Bank of its obligation to make available its pro rata portion of such
Loan on the date such Loan is requested to be made, but no Bank shall be
responsible for failure of any other Bank to make such pro rata portion
available to the Agent on the date of any such Loan.
(c) All Revolving Credit Loans made under this Section 2.4 shall be
evidenced by the Revolving Credit Notes and all Swing Line Loans made under
this Section 2.4 shall be evidenced by the Swing Line Notes, and all such Loans
shall be due and payable and bear interest as provided in Article III. Each
Bank is hereby authorized by the Borrowers to record on its books and records,
the date, amount and type of each Loan and the duration of the related Interest
Period (if applicable), the amount of each payment or prepayment of principal
thereon, and the other information provided for in such books and records,
which books and records shall constitute prima facie evidence of the
information so recorded, provided, however, that failure of any Bank to record,
or any error in recording, any such information shall not relieve the Borrowers
of their obligation to repay the outstanding principal amount of the Loans, all
accrued interest thereon and other amounts payable with respect thereto in
accordance with the terms of the Notes and this Agreement. Subject to the terms
and conditions of this Agreement, each Borrower may borrow Revolving Credit
Loans under this Section 2.4, prepay Revolving Credit Loans pursuant to Section
3.1 and reborrow Revolving Credit Loans.
(d) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Issuing Bank has the sole obligation under this Agreement to issue Letters of
Credit on behalf of the Banks, and the Commitment of each Bank with respect to
Letter of Credit Advances is expressly conditioned upon the Issuing Bank's
performance of such obligations. Upon such issuance by the Issuing Bank, each
Bank shall automatically acquire a pro rata participation interest in such
Letter of Credit Advance based on the amount of its respective Commitment. If
the Issuing Bank shall honor a draft or other demand for payment presented or
made under any Letter of Credit, the Issuing Bank shall provide notice thereof
to each Bank on the date such draft or demand is honored unless a Borrower
shall have satisfied its reimbursement obligation by payment to the Issuing
Bank on such date. Each Bank, on such date, shall make its pro rata share of
the amount paid by the Issuing Bank available in immediately available funds at
the principal office of the Agent for the account of the Issuing Bank, subject
to Section 9.5(b). If and to the extent such Bank shall not have made such pro
rata portion available to the Agent, such Bank and the Borrower severally agree
to pay to the Agent forthwith on demand such amount together with interest
thereon, for each day from the date such amount was paid by the Issuing Bank
until such amount is so made available to the Agent at a per annum rate equal
to, in the case of the Borrower at the Floating Rate or the relevant interbank
compensation market rate plus the Applicable Rate with respect to Permitted
Currencies other than Dollars and, in the case of any Bank, the Federal Funds
Rate or the relevant interbank compensation market rate with respect to
Permitted Currencies other than Dollars. If such Bank shall pay such amount to
the Agent together with such interest, such amount so paid shall, subject to
Section 3.3(a)(ii), constitute a Revolving Credit Loan by such Bank as part of
the Revolving Credit Borrowing disbursed in respect of the reimbursement
obligation of the Borrower for purposes of this Agreement. The failure of any
Bank to make its pro rata portion of any such amount paid by the Issuing Bank
available to the Agent shall not relieve any other Bank of its obligation to
make available its pro rata portion of such amount, but no Bank shall be
responsible for failure of any other Bank to make such pro rata portion
available to the Agent.
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2.5 Conditions for First Disbursement. The obligation of each Bank to
make its first Advance hereunder is subject to receipt by each Bank and the
Agent of the following documents and completion of the following matters, in
form and substance reasonably satisfactory to the Agent:
(a) Charter Documents. Certificates of recent date of the appropriate
authority or official of each Borrower's and each Guarantor's state of
incorporation listing all charter documents of such Borrower or such Guarantor,
on file in that office and certifying as to the good standing and corporate
existence of such Borrower or such Guarantor, together with copies of such
charter documents of such Borrower or such Guarantor, certified as of a recent
date by such authority or official and certified as true and correct as of the
Effective Date by a duly authorized officer of such Borrower or such Guarantor;
(b) By-Laws and Corporate Authorizations. Copies of the by-laws of
each Borrower and each Guarantor together with all authorizing resolutions and
evidence of other corporate action taken by such Borrower or such Guarantor to
authorize the execution, delivery and performance by such Borrower or such
Guarantor of the Loan Documents to which it is a party and the consummation by
such Borrower or such Guarantor of the transactions contemplated hereby,
certified as true and correct as of the Effective Date by a duly authorized
officer of such Borrower or such Guarantor;
(c) Incumbency Certificate. Certificates of incumbency of each
Borrower and each Guarantor containing, and attesting to the genuineness of,
the signatures of those officers authorized to act on behalf of such Borrower
or such Guarantor in connection with the Loan Documents and the consummation by
such Borrower or such Guarantor of the transactions contemplated hereby,
certified as true and correct as of the Effective Date by a duly authorized
officer of such Borrower or such Guarantor;
(d) Notes. The Notes, duly executed on behalf of each Borrower, for
each Bank;
(e) Security Documents. The Security Documents duly executed on
behalf of each Borrower and each Guarantor granting to the Banks and the Agent
the collateral and security intended to be provided pursuant to Section 2.10.
(f) Legal Opinion. The favorable written opinion of Robert Paver,
General Counsel of the Company, and the favorable written opinion of counsel of
Jabil Circuit Ltd, each in substantially the form of Exhibit F attached hereto;
and
(g) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations,
registrations or filings, if any, required on the part of each Borrower and
each Guarantor in connection with the execution, delivery and performance of
the Loan Documents or the transactions contemplated hereby or as a condition to
the legality, validity or enforceability of this Agreement and the Notes,
certified as true and correct and in full force and effect as of the Effective
Date by a duly authorized officer of such Borrower or such Guarantor, or, if
none are required, a certificate of such officer to that effect.
2.6 Further Conditions for Disbursement. The obligation of each Bank to
make any Advance (including its first Advance), or any continuation or
conversion under Section 2.7, is further subject to the satisfaction of the
following conditions precedent:
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(a) The representations and warranties contained in Article IV hereof
and in any other Loan Document shall be true and correct in all material
respects on and as of the date such Advance is made, continued or converted
(both before and after such Advance is made, continued or converted) as if such
representations and warranties were made on and as of such date; and
(b) No Event of Default and no Default shall exist or shall have
occurred and be continuing on the date such Advance is made, continued or
converted (whether before or after such Advance is made, continued or
converted); and
(c) In the case of any Letter of Credit Advance, the Borrower
requesting such Letter of Credit Advance shall have delivered to the Agent an
application for the related Letter of Credit and other related documentation
requested by and acceptable to the Agent appropriately completed and duly
executed on behalf of such Borrower.
Each Borrower shall be deemed to have made a representation and
warranty to the Banks at the time of the requesting of, the making of, and the
continuation or conversion under Section 2.7 of, each Advance to the effects
set forth in clauses (a) and (b) of this Section 2.6. For purposes of this
Section 2.6, the representations and warranties contained in Section 4.6 hereof
shall be deemed made with respect to the most recent financial statements
delivered pursuant to Section 5.1(d)(ii) and (iii).
2.7 Subsequent Elections as to Borrowings. A Borrower may elect (a) to
continue a Eurocurrency Rate Borrowing, or a portion thereof, as a Eurocurrency
Rate Borrowing, or (b) may elect to convert a Eurocurrency Rate Borrowing, or a
portion thereof, to a Floating Rate Borrowing or (c) elect to convert a
Floating Rate Borrowing, or a portion thereof, to a Eurocurrency Rate
Borrowing, or (d) elect to convert a Loan denominated in a Permitted Currency
to a Loan denominated in another Permitted Currency, in each case by giving
notice thereof to the Agent in substantially the form of Exhibit G hereto at
the principal office of the Agent and at the Applicable Administrative Office
with respect to such Loan not later than 11:00 a.m. local time of the
Applicable Administrative Office (i) three Eurocurrency Business Days prior to
the date any such continuation of or conversion to a Eurocurrency Rate
Borrowing is to be effective and (ii) the date such continuation or conversion
is to be effective in all other cases, provided that an outstanding
Eurocurrency Rate Borrowing may only be converted on the last day of the then
current Interest Period with respect to such Borrowing, and provided, further,
if a continuation of a Borrowing as, or a conversion of a Borrowing to, a
Eurocurrency Rate Borrowing is requested, such notice shall also specify the
Interest Period to be applicable thereto upon such continuation or conversion.
The Agent, on the day any such notice is given, shall promptly provide notice
of such election to the Banks. If a Borrower shall not timely deliver such a
notice with respect to any outstanding Eurocurrency Rate Borrowing, the
Borrower shall be deemed to have elected to convert such Eurocurrency Rate
Borrowing to a Floating Rate Borrowing on the last day of the then current
Interest Period with respect to such Borrowing.
2.8 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Eurocurrency Rate Borrowing pursuant to Section 2.4, or a request for a
continuation of a Eurocurrency Rate Borrowing as a Eurocurrency Rate Borrowing,
or a request for a conversion of a Floating Rate Borrowing to a Eurocurrency
Rate Borrowing pursuant to Section 2.7, (a) in the case of any Eurocurrency
Rate Borrowing, deposits in the relevant Permitted Currency for periods
comparable to the Interest Period elected by the Borrower are not available to
any Bank in the relevant interbank or secondary market and such Bank has
provided to the Agent and the Borrowers a certificate prepared in good faith to
that effect, or (b) any Bank
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reasonably determines that the Eurocurrency Rate will not adequately and fairly
reflect the cost to such Bank of making, funding or maintaining the related
Eurocurrency Rate Loan and such Bank has provided to the Agent and the
Borrowers a certificate prepared in good faith to that effect, or (c) by reason
of national or international financial, political or economic conditions or by
reason of any applicable law, treaty, rule or regulation (whether domestic or
foreign) now or hereafter in effect, or the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank with any directive of such
authority (whether or not having the force of law), including without
limitation exchange controls, it is impracticable, unlawful or impossible for
any Bank (i) to make or fund the relevant Eurocurrency Rate Borrowing or (ii)
to continue such Eurocurrency Rate Borrowing as a Eurocurrency Rate Borrowing
or (iii) to convert a Loan to such a Eurocurrency Rate Loan, and such Bank has
provided to the Agent and the Borrowers a certificate prepared in good faith to
that effect, then the Borrowers shall not be entitled, so long as such
circumstances continue, to request a Eurocurrency Rate Borrowing of the
affected type pursuant to Section 2.4 or a continuation of or conversion to a
Eurocurrency Rate Borrowing pursuant to Section 2.7. In the event that such
circumstances no longer exist, the Banks shall again honor requests, subject to
this Agreement, for Eurocurrency Rate Borrowings of the affected type pursuant
to Section 2.4, and requests for continuations of and conversions to
Eurocurrency Rate Borrowings of the affected type pursuant to Section 2.7.
2.9 Minimum Amounts; Limitation on Number of Borrowings. Except for (a)
Borrowings and conversions thereof which exhaust the entire remaining amount of
the Commitments, (b) conversions or payments required pursuant to Section
3.1(c) or Section 3.7, (c) Revolving Credit Loans requested as a result of the
refusal of the Agent to make a Swing Line Loan, in which case the minimum
amount of the Loan shall be $100,000, and (d) Revolving Credit Loans disbursed
to satisfy reimbursement obligations under Letters of Credit pursuant to
Section 3.3(a), each Revolving Credit Loan and each continuation or conversion
pursuant to Section 2.7 shall be in a minimum amount of, with respect to
Floating Rate Loans, $1,000,000 and in integral multiples of $100,000 and, with
respect to Eurocurrency Rate Loans, $3,000,000 and in integral multiples of
$500,000. Notwithstanding anything herein to the contrary, (a) all Loans must
be denominated in a Permitted Currency and (b) Floating Rate Loans must be
denominated in Dollars.
2.10 Security and Collateral. To secure the payment when due of the
Notes and all other obligations of the Borrowers under this Agreement to the
Banks and the Agent, each Borrower shall execute and deliver, or cause to be
executed and delivered, to the Agent Security Documents granting the following:
(a) Pledges of 65% of all capital stock of all Foreign
Subsidiaries (other than Jabil Malaysia) and any future Foreign Subsidiary.
(b) Guaranties of all Domestic Borrowers and present and future
Domestic Subsidiaries.
ARTICLE III.
PAYMENTS AND PREPAYMENTS
3.1 Principal Payments.
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(a) Unless earlier payment is required under this Agreement, the
Borrowers shall pay to the Banks on the Termination Date the entire outstanding
principal amount of the Loans.
(b) The Borrowers may at any time and from time to time prepay all
or a portion of the Loans without premium or penalty, provided that (i) a
Borrower may not prepay any portion of any Loan as to which an election for
continuation of or conversion to a Eurocurrency Rate Loan is pending pursuant
to Section 2.7, and (ii) unless earlier payment is required under this
Agreement or unless Borrower pays all amounts required pursuant to Section 3.9,
any Eurocurrency Rate Loan may only be prepaid on the last day of the then
current Interest Period with respect to such Loan and (iii) such prepayment
shall only be permitted if a Borrower shall have given not less than one
Business Days' notice thereof of such prepayment with respect to prepayment of
Floating Rate Loans which shall be in a minimum aggregate amount of $1,000,000
and in integral multiples of $100,000, not less than three Eurocurrency
Business Days' notice thereof with respect to prepayment of Eurocurrency Rate
Loans which shall be in a minimum aggregate amount of $3,000,000 and in
integral multiples of $500,000, such notice specifying the Loan or portion
thereof to be so prepaid and shall have paid to the Banks, together with such
prepayment of principal, all accrued interest to the date of payment on such
Loan or portion thereof so prepaid and all amounts owing to the Banks under
Section 3.9 in connection with such prepayment. Upon the giving of such notice,
the aggregate principal amount of such Loan or portion thereof so specified in
such notice, together with such accrued interest and other amounts, shall
become due and payable on the specified date.
(c) If at any time (i) the Dollar Equivalent of the aggregate
outstanding principal amount of the Revolving Credit Advances and Swing Line
Loans shall exceed the Aggregate Commitments or (ii) the Dollar Equivalent of
the aggregate outstanding principal amount of the Revolving Credit Advances to
any Borrower shall exceed the sublimit specified for such Borrower on Schedule
1.1, the Borrowers, in the case of clause (i) above, or the relevant Borrower,
in the case of clause (ii) above, shall forthwith pay to the Banks, without
demand, an amount not less than the amount of such excess for application to
the outstanding principal amount of the Loans, provided that if any such
prepayment would be in excess of the outstanding amount of the Loans, the
Borrowers or the relevant Borrower, as the case may be, shall deliver cash
collateral to the Agent to secure the outstanding Letters of Credit in the
amount of such excess which is greater than the outstanding Loans and the
Company hereby grants to the Agent, for the benefit of the Banks, a first
priority lien and security interest in such collateral, and all such cash
collateral shall be under the sole and exclusive control of the Agent.
(d) If, pursuant to Section 2.7, a Loan, or portion thereof, is
continued, such Loan or portion thereof shall be repaid on the last day of the
related Interest Period in the Permitted Currency in which such Loan is then
denominated and the Agent shall readvance to the requesting Borrower the same
amount of such Permitted Currency as has been so repaid. For purposes of
effecting the repayment required by this Section 3.1(d), the Agent shall apply
the proceeds of such readvance toward the repayment of such Loan or portion
thereof on the last day of the related Interest Period. On the last day of such
Interest Period, the Original Dollar Amount of such Loan or portion thereof
shall be adjusted to the amount in Dollars resulting from the conversion of the
amount of such Permitted Currency so readvanced to Dollars determined as of the
second Business Day preceding such day. On the date of each such continuation,
if the Dollar Equivalent on such date of all Advances, including the Advances
being continued, exceeds the aggregate amount of the Commitments of the Banks,
the Borrowers shall prepay the Advances, in such order as determined by the
Borrowers, in an amount such that the Equivalent in Dollars of the outstanding
principal amount of all Advances does not exceed the aggregate amount of the
Commitments as of such date, together with all amounts owing to the Banks under
Section 3.9 in connection therewith, if any.
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3.2 Interest Payments. The Borrowers shall pay interest to the Banks on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such Loan is paid in full, on each Interest Payment
Date and at maturity (whether at stated maturity, by acceleration or
otherwise), and thereafter on demand, at the following rates per annum:
(a) With respect to Revolving Credit Loans:
(i) During such periods that such Loan is a Floating Rate Loan,
the Floating Rate.
(ii) During such periods that such Loan is an Eurocurrency Rate
Loan, the Eurocurrency Rate applicable to such Loan for each related
Eurocurrency Interest Period.
(b) With respect to Swing Line Loans, the Swing Line Rate or
Floating Rate applicable to such Loan.
Notwithstanding the foregoing paragraphs (a) through (b), the Borrowers
shall pay interest on demand at the Overdue Rate on the outstanding principal
amount of any Loan and any other amount payable by the Borrowers hereunder
(other than interest) on and after an Event of Default.
3.3 Letter of Credit Reimbursement Payments.
(a) (i) Each Borrower agrees to pay to the Banks, on the day on
which the Issuing Bank shall honor a draft or other demand for payment
presented or made under any Letter of Credit, an amount equal to the amount
paid by the Issuing Bank in respect of such draft or other demand under such
Letter of Credit and all expenses paid or incurred by the Issuing Bank relative
thereto. Unless a Borrower shall have made such payment to the Agent on such
day, upon each such payment by the Issuing Bank, subject to Section 3.3(a)(ii),
the Issuing Bank shall be deemed to have disbursed to such Borrower, and such
Borrower shall be deemed to have elected to satisfy its reimbursement
obligation by, a Revolving Credit Loan bearing interest at the Floating Rate
for the account of the Banks in an amount equal to the amount so paid by the
Issuing Bank in respect of such draft or other demand under such Letter of
Credit. Such Revolving Credit Loan shall, subject to Section 3.3(a)(ii), be
disbursed notwithstanding any failure to satisfy any conditions for
disbursement of any Loan set forth in Article II hereof and, to the extent of
the Revolving Credit Loan so disbursed, the reimbursement obligation of the
Borrower under this Section 3.3 shall be deemed satisfied; provided, however,
that nothing in this Section 3.3 shall be deemed to constitute a waiver of any
Default or Event of Default caused by the failure to the conditions for
disbursement or otherwise.
(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to any Borrower
pursuant to Section 6.1(i)), Floating Rate Loans may not be made by the Banks
as described in Section 3.3(a)(i), then (A) each Borrower agrees that each
reimbursement amount not paid pursuant to the first sentence of Section
3.3(a)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Floating Rate Loans, and (B) effective on the date each
such Floating Rate Loan would otherwise have been made, each Bank severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, in lieu of deemed disbursement
of loans, to the extent of such Bank's Commitment, purchase a participating
interest in each reimbursement amount. Each Bank will immediately transfer to
the Agent, in same day funds, the amount of its participation. Each Bank shall
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share on a pro rata basis (calculated by reference to its Commitment) in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any Bank shall not have so made the amount of such participating
interest available to the Agent, such Bank and the Borrower severally agree to
pay to the Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Agent until the date such
amount is paid to the Agent, at (x) in the case of any Borrower, the interest
rate then applicable to Floating Rate Loans and (y) in the case of such Bank,
the Federal Funds Rate.
(b) The reimbursement obligation of each Borrower under this Section
3.3 shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until all obligations of the Borrowers to the Banks hereunder
shall have been satisfied, and such obligations of the Borrowers shall not be
affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, any Borrower:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other right
which any Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the Agent, the Issuing
Bank or any Bank or any other person or entity, whether in connection with any
of the Letter of Credit Documents, the transactions contemplated herein or
therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(v) Payment by the Issuing Bank to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Agent, the Issuing Bank or any Bank or any party to any of the Letter of Credit
Documents to enforce, assert or exercise any right, power or remedy conferred
upon the Agent, the Issuing Bank, any Bank or any such party under this
Agreement or any of the Letter of Credit Documents, or any other acts or
omissions on the part of the Agent, the Issuing Bank, any Bank or any such
party;
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law or
otherwise of any Borrower from the performance or observance of any obligation,
covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature which any Borrower has or may
have against the beneficiary of any Letter of Credit shall be available
hereunder to such Borrower against the Agent, the Issuing Bank or any Bank.
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Nothing in this Section 3.3 shall limit the liability, if any, of the Agent or
the Issuing Bank to any Borrower pursuant to Section 9.5.
3.4 Payment Method.
(a) All payments to be made by the Borrower hereunder shall be made
to the Agent for the account of the Banks in the specified or relevant currency
in freely transferable, cleared, same-day funds, not later than 12:00 p.m.
local time in the place specified for payment on the date on which such payment
is due. Payments of principal and interest on any Loan denominated, and of any
other amounts due, in a Permitted Currency other than Dollars shall be made by
the Borrowers by credit to the account of the Agent at its designated branch or
correspondent bank in the country issuing the relevant Permitted Currency or in
such other place specified by the Agent with respect to such Loan or amount
under Section 2.4(b). Payments of any other amounts due under this Agreement
shall be made to the Applicable Administrative Office of the Agent. Payments
received after 12:00 p.m. at the place for payment shall be deemed to be
payments made prior to 12:00 p.m. at the place for payment on the next
succeeding Business Day. Each Borrower hereby authorizes the Agent to charge
its account with the Agent in order to cause timely payment of amounts due
hereunder to be made (subject to sufficient funds being available in such
account for that purpose).
(b) At the time of making each such payment, a Borrower shall,
subject to the other terms and conditions of this Agreement, specify to the
Agent that Borrowing or other obligation of the Borrowers hereunder to which
such payment is to be applied. In the event that a Borrower fails to so specify
the relevant obligation or if an Event of Default shall have occurred and be
continuing, the Agent may apply such payments as it may determine in its sole
discretion to obligations of the Borrowers to the Banks arising under this
Agreement.
(c) On the day such payments are deemed received, the Agent shall
promptly remit to the Banks their pro rata shares of such payments in
immediately available funds, (i) in the case of payments of principal and
interest on any Borrowing denominated in a Permitted Currency other than
Dollars, at an account maintained and designated by each Bank at a bank in the
principal financial center of the country issuing the Permitted Currency in
which such Borrowing is denominated or in such other place specified by the
Agent and agreed to by the Banks and (ii) in all other cases, to the Banks at
their respective address in the United States specified for notices pursuant to
Section 9.2. Such pro rata shares shall be determined with respect to each such
Bank, (i) in the case of payments of principal and interest on any Borrowing,
by the ratio which the outstanding principal balance of its Loan included in
such Borrowing bears to the outstanding principal balance of the Loans of all
of the Banks included in such Borrowing and (ii) in the case of fees paid
pursuant to Section 2.3 and other amounts payable hereunder (other than the
Agent's fees payable pursuant to Section 2.3(d) and amounts payable to any Bank
under Section 2.4 or 3.6) by the ratio which the Commitment of such Bank bears
to the Aggregate Commitment.
(d) This Agreement arises in the context of an international
transaction, and the specification of payment in a specific currency at a
specific place pursuant to this Agreement is of the essence. Such specified
currency shall be the currency of account and payment under this Agreement. The
obligations of the Borrowers hereunder shall not be discharged by an amount
paid in any other currency or at another place, whether pursuant to a judgment
or otherwise, to the extent that the amount so paid, on prompt conversion into
the applicable currency and transfer to the Banks under normal banking
procedure, does not yield the amount of such currency due under this Agreement.
In the event that any payment, whether pursuant to a judgment or otherwise,
upon conversion and transfer, does not
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result in payment of the amount of such currency due under this Agreement, the
Banks shall have an independent cause of action against the Borrowers for the
currency deficit.
(e) If for purposes of obtaining judgment in any court it becomes
necessary to convert any currency due hereunder into any other currency, the
Borrowers will pay such additional amount, if any, as may be necessary to
ensure that the amount paid in respect of such judgment is the amount in such
other currency which, when converted at the Agent's spot rate of exchange
prevailing on the date of payment, would yield the same amount of the currency
due hereunder. Any amount due from the Borrowers under this Section 3.4(e) will
be due as a separate debt and shall not be affected by judgment being obtained
for any other sum due under or in respect of this Agreement.
3.5 No Setoff or Deduction.
(a) All such payments shall be made free and clear of any present or
future taxes or withholdings and without any set-off or counter claim or any
restriction or condition or deduction whatsoever. The Borrowers shall indemnify
the Agent and each Bank against any taxes or charges (other than on net overall
income) which may be claimed from it in respect of the Advances or any of them
or any sum payable by the Borrowers or any of them hereunder and against any
costs, charges and expenses or liabilities in respect of such claim and such
indemnity shall survive the termination of the Commitments.
(b) If at any time any Borrower is required by law or by any
directive or order of any court of competent jurisdiction to make any deduction
or withholding of whatsoever nature from any payment due under this Agreement
or any of the Loan Documents, such Borrower will ensure that the same does not
exceed the minimum liability therefor and will (a) pay to any Bank on request
such additional amount as such Bank certifies will result in the net amount
received by it after all deductions being equal to the full amount which would
have been receivable had there been no deduction or withholding and (b) pay
forthwith to the relevant authorities the full amount of the deduction or
withholding and deliver to the Agent such an official receipt, certificate or
other proof evidencing the amount paid in respect of such deduction or
withholding. Any additional amount paid under this sub-clause shall not be
treated as interest but as agreed compensation.
(c) If any payment by any Borrower is made to or for the account of
any Bank after deduction for or on account of tax, and additional payments are
made by the Borrower then, if any Bank shall receive or be granted a credit
against or remission for such tax, such Bank shall, to the extent that it can
do so without prejudice to the retention of the amount of such credit or
remission, reimburse to such Borrower such amount as such Bank shall, in its
absolute opinion, have concluded to be attributable to the relevant tax or
deduction or withholding. Nothing herein contained shall interfere with the
right of any Bank to arrange its affairs in whatever manner it thinks fit and,
in particular, the Banks shall not be under any obligation to claim relief from
its corporation profits or similar tax liability in respect of such tax in
priority to any other claims, reliefs, credits or deductions available to it
nor oblige any Bank to disclose any information relating to its tax affairs.
Such reimbursement shall be made as soon as reasonably practical upon such Bank
certifying that the amount of such credit or remission has been received by it.
3.6 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any
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installment of principal, interest shall be payable thereon at the rate per
annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days or as determined by custom and practice
in the relevant market with respect to any Loan denominated in a Permitted
Currency other than Dollars, for the actual number of days elapsed, including
the first day but excluding the last day of the relevant period.
3.7 Additional Costs.
(a) In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to any Bank or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or the
Agent with any directive of any such authority (whether or not having the force
of law), shall (i) affect the basis of taxation of payments to any Bank or the
Agent of any amounts payable by any Borrower under this Agreement (other than
taxes imposed on the overall net income of the Bank or the Agent, by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which any Bank or the Agent, as the case may be, has its
principal office), or (ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by any Bank or the Agent, as the case may
be, or (iii) shall impose any other condition with respect to this Agreement,
the Commitments, the Notes or the Advances, and the result of any of the
foregoing is to increase the cost to any Bank or the Agent, as the case may be,
of making, funding or maintaining any Loan or to reduce the amount of any sum
receivable by any Bank or the Agent, thereon, then the Borrowers shall pay to
such Bank or the Agent, as the case may be, from time to time, upon request by
such Bank (with a copy of such request to be provided to the Agent) or the
Agent, additional amounts sufficient to compensate such Bank or the Agent, as
the case may be, for such increased cost or reduced sum receivable to the
extent, in the case of any Eurocurrency Rate Loan, such Bank or the Agent, as
the case may be, is not compensated therefor in the computation of the interest
rate applicable to such Eurocurrency Rate Loan. Each Bank or the Agent, as the
case may be, seeking compensation hereunder shall deliver to the Borrowers a
statement setting forth (i) such increased cost or reduced sum receivable as
such Bank or the Agent, as the case may be, has calculated in good faith, (ii)
a description of the event giving rise thereto, and (iii) a calculation in
reasonable detail of the amounts requested. Such statement as to the amount of
such increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Bank or the Agent, as the case may be, and submitted
by such Bank or the Agent, as the case may be, to the Borrowers, shall be
conclusive and binding for all purposes absent manifest error.
(b) In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to any Bank or the Agent, but applicable to banks or
financial institutions generally, or any interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any Bank or the Agent with any
directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects the amount of capital
required or expected to be maintained by such Bank or the Agent (or any
corporation controlling such Bank or the Agent) and such Bank or the Agent, as
the case may be, determines that the amount of such capital is increased by or
based upon the existence of such Bank's or the Agent's obligations hereunder
and such increase has the effect of reducing the rate of return on such Bank's
or the Agent's (or such controlling corporation's) capital as a consequence of
such obligations hereunder to a level below that which such Bank or the Agent
(or such controlling corporation) could have achieved but for such
circumstances (taking into
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consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank or the Agent to be material, then the Borrowers shall pay
to such Bank or the Agent, as the case may be, from time to time, upon request
by such Bank (with a copy of such request to be provided to the Agent) or the
Agent, additional amounts sufficient to compensate such Bank or the Agent (or
such controlling corporation) for any reduced rate of return which such Bank or
the Agent reasonably determines to be allocable to the existence of such Bank's
or the Agent's obligations hereunder. Each Bank or the Agent, as the case may
be, seeking compensation hereunder shall deliver to the Borrowers a statement
setting forth (i) such increased cost or reduced sum receivable as such Bank or
the Agent, as the case may be, has calculated in good faith, (ii) a description
of the event giving rise thereto, and (iii) a calculation in reasonable detail
of the amounts requested. Such statement as to the amount of such compensation,
prepared in good faith and in reasonable detail by such Bank or the Agent, as
the case may be, and submitted by such Bank or the Agent to the Borrowers,
shall be conclusive and binding for all purposes absent manifest error.
3.8 Illegality and Impossibility. In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for any Bank to maintain any Advance under this Agreement or shall
make it impracticable, unlawful or impossible for, or shall in any way limit or
impair the ability of, any Borrower to make or any Bank to receive any payment
under this Agreement at the place specified for payment hereunder, or to freely
convert any amount paid into Dollars at market rates of exchange or to transfer
any amount paid or so converted to the address of its principal office
specified in Section 9.2, the Borrowers shall upon receipt of notice thereof
from such Bank, repay in full the then outstanding principal amount of each
Loan so affected, together with all accrued interest thereon to the date of
payment and all amounts owing to such Bank under Section 3.9, (a) on the last
day of the then current Interest Period applicable to such Loan if such Bank
may lawfully continue to maintain such Loan to such day, or (b) immediately if
such Bank may not continue to maintain such Loan to such day.
3.9 Indemnification. If any Borrower makes any payment of principal with
respect to any Loan on any other date than the last day of an Interest Period
applicable thereto, (whether pursuant to Section 3.8 or Section 6.2 or
otherwise), or if any Borrower fails to borrow or convert any Loan after notice
has been given to the Banks in accordance with Section 2.4 or Section 2.7, the
Borrowers shall reimburse each Bank on demand for any resulting net loss or
expense incurred by each such Bank after giving credit for any earnings or
other quantifiable financial benefit to such Bank from such Bank's investment
or other amounts prepaid or not reborrowed, including without limitation any
loss incurred in obtaining, liquidating or employing deposits from third
parties, whether or not such Bank shall have funded or committed to fund such
Loan. A statement as to the amount of such loss or expense, prepared in good
faith and in reasonable detail by such Bank and submitted by such Bank to the
Borrowers, shall be conclusive and binding for all purposes absent manifest
error, provided that before delivery of such statement, each Bank shall use
reasonable efforts in accordance with its normal practices and procedures to
reduce amounts payable under this Section. Calculation of all amounts payable
to such Bank under this Section 3.9 shall be made as though such Bank shall
have actually funded or committed to fund the relevant Loan through the
purchase of an underlying deposit in an amount equal to the amount of such Loan
and having a maturity comparable to the related Interest Period; provided,
however, that such Bank may fund any Loan in any manner it sees fit and the
foregoing assumption shall be utilized only for the purpose of calculation of
amounts payable under this Section 3.9.
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3.10 Right of Banks to Fund Through Other Offices. Each Bank may perform
its Commitment to fund its pro rata share of any Eurocurrency Rate Loan or,
with respect to the Swing Line Bank, any Swing Line Loan to the Borrowers by
causing an affiliate of such Bank to provide such funds in accordance with the
terms of this Agreement. For all purposes of this Agreement, any amounts so
advanced shall be deemed to have been advanced by such Bank, and the obligation
of the Borrowers to repay such amounts shall be as provided in this Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Each Borrower and each Guarantor represents and warrants to the Agent and
the Banks that:
4.1 Corporate Existence and Power. Each Borrower and each Guarantor is a
Person duly organized, validly existing and in good standing under the laws of
the state or other political subdivision of its jurisdiction of incorporation
or organization, as the case may be, and is duly qualified to do business, and
is in good standing, in all additional jurisdictions where such qualification
is necessary under applicable law, except where the failure to be so qualified
would not have a material adverse effect on the business and financial
condition of the Company and its Subsidiaries taken as a whole. Each Borrower
and each Guarantor have all requisite corporate power to own or lease the
properties used in its business and to carry on its business as now being
conducted and as proposed to be conducted, and to execute and deliver the Loan
Documents to which it is a party and to engage in the transactions contemplated
by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance by each
Borrower and each Guarantor of the Loan Documents to which it is a party have
been duly authorized by all necessary corporate action and are not in
contravention of any material law, rule or regulation, or any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority, or of the terms of such Borrower's or such Guarantor's charter or
by-laws, or of any material contract or undertaking to which such Borrower or
such Guarantor is a party or by which such Borrower or such Guarantor or any of
their property is bound and do not result in the imposition of any Lien except
for Permitted Liens.
4.3 Binding Effect. The Loan Documents when delivered hereunder will be,
legal, valid and binding obligations of each Borrower and each Guarantor party
thereto enforceable against each Borrower and each Guarantor party thereto in
accordance with their respective terms; except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditors' rights and except that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to
equitable defenses and to the discretion of the court before which any
proceedings may be brought.
4.4 Subsidiaries. Schedule 4.4 hereto (as supplemented from time to time
pursuant to Section 5.2(h)) correctly sets forth the corporate name,
jurisdiction of incorporation and ownership of each Subsidiary of each
Borrower. Each Subsidiary and each corporation becoming a Subsidiary of any
Borrower after the date hereof is and will be a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and is and will be duly qualified to do business in each
additional jurisdiction where such qualification is or may be necessary under
applicable law, except where the failure to be so qualified would not have a
Material Adverse Effect.
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4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of each Borrower's and each
Guarantor's knowledge, threatened against or affecting any Borrower or any of
their respective Subsidiaries before or by any court, governmental authority or
arbitrator, which if adversely decided would result, either individually or
collectively, in any Material Adverse Effect.
4.6 Financial Condition. The consolidated balance sheet of the Company
and its Subsidiaries and the related consolidated statements of income,
shareholders equity and cash flows of the Company and its Subsidiaries for the
fiscal year ended August 31, 1997 and reported on by KPMG Peat Marwick,
independent certified public accountants, and the interim consolidated balance
sheet, statements of income, and cash flows of the Company and its Subsidiaries
as of and for the six-month period ended February 28, 1998, copies of which
have been furnished to the Banks, fairly present, and the financial statements
of the Company and its Subsidiaries delivered pursuant to Section 5.1(d) will
fairly present the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof, and the consolidated results
of operations of the Company and its Subsidiaries for the respective periods
indicated, all in accordance with Generally Accepted Accounting Principles
consistently applied (subject, in the case of said interim statements, to
normal year-end adjustments). There has been no material adverse change in the
financial condition of the Company and its Subsidiaries taken as a whole since
August 31, 1997. There is no material Contingent Liability of the Company that
is not reflected in such financial statements or in the notes thereto.
4.7 Use of Loans. Each Borrower will use the proceeds of the Loans for
its general corporate purposes, including repayment of certain existing
Indebtedness. No Borrower nor any of their respective Subsidiaries extends or
maintains, in the ordinary course of business, credit for the purpose, whether
immediate, incidental, or ultimate, of buying or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Loan will be used for the purpose,
whether immediate, incidental, or ultimate, of buying or carrying any such
margin stock or maintaining or extending credit to others for such purpose.
After applying the proceeds of each Loan, such margin stock will not constitute
more than 25% of the value of the assets (either of any Borrower alone or of
the Borrowers and their respective Subsidiaries on a consolidated basis) that
are subject to any provisions of this Agreement that may cause the Loans to be
deemed secured, directly or indirectly, by margin stock.
4.8 Consents, Etc. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Borrowers or the
Guarantors pursuant to Section 2.5(g), if any, each of which is in full force
and effect, no consent, approval or authorization of or declaration,
registration or filing with any governmental authority or any nongovernmental
person, including without limitation any creditor, lessor or stockholder of any
Borrower or any Guarantor, is required on the part of any Borrower or any
Guarantor in connection with the execution, delivery and performance of the
Loan Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of the Loan Documents.
4.9 Taxes. Each Borrower and each of their respective Subsidiaries has
filed all material tax returns (federal, state and local applicable in the
United States or any foreign jurisdiction) required to be filed and have paid
all taxes shown thereon to be due, including interest and penalties, or have
established adequate financial reserves on their respective books and records
for payment thereof except where the failure to file such returns, pay such
taxes or establish such reserves would not have a Material Adverse Effect.
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4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to this Agreement, a Borrower or one or more
of its Subsidiaries have good and marketable fee simple title to all of the
material real property to the best of such Borrower's knowledge absent manifest
error, and a valid and indefeasible ownership interest in all of the other
properties and assets reflected in said balance sheet or subsequently acquired
by a Borrower or any such Subsidiary material to the business or financial
condition of the Borrowers and their respective Subsidiaries, taken as a whole,
except for title defects that do not have a Material Adverse Effect. All of
such properties and assets are free and clear of any Lien, except for Permitted
Liens.
4.11 ERISA. The Borrowers, their respective Subsidiaries, their ERISA
Affiliates and their respective Plans are in substantial compliance in all
material respects with those provisions of ERISA and of the Code which are
applicable with respect to any Plan. No Prohibited Transaction and no
Reportable Event has occurred with respect to any such Plan which would cause
an Event of Default. No Borrower, any of their respective Subsidiaries nor any
of their ERISA Affiliates is an employer with respect to any Multiemployer
Plan. The Borrowers, their respective Subsidiaries and their ERISA Affiliates
have met the minimum funding requirements under ERISA and the Code with respect
to each of their respective Plans, if any, and have not incurred any liability
to the PBGC, other than premiums which are not yet due and payable. The
execution, delivery and performance of the Loan Documents does not constitute a
Prohibited Transaction. There is no material unfunded benefit liability,
determined in accordance with Section 4001(a)(18) of ERISA, with respect to any
Plan of any Borrower, their respective Subsidiaries or their ERISA Affiliates.
4.12 Disclosure. No report or other information furnished in writing or
on behalf of any Borrower or any Guarantor to any Bank or the Agent in
connection with the negotiation or administration of this Agreement contains
any material misstatement of fact or omits to state any material fact or any
fact necessary to make the statements contained therein not misleading in light
of the circumstances in which they were made. Neither this Agreement, the
Notes, the Security Documents nor any other document, certificate, or report or
statement or other information furnished to any Bank or the Agent by or on
behalf of any Borrower or any Guarantor in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to state a material fact in order to make the statements contained herein and
therein not misleading in light of the circumstances in which they were made.
There is no fact known to any Borrower or any Guarantor which has or which in
the future may have (so far as any Borrower or any Guarantor reasonably can now
foresee based on information currently available to such Borrower or any
Guarantor) a Material Adverse Effect, which has not been set forth in this
Agreement or in the other documents, certificates, statements, reports and
other information furnished in writing to the Banks by or on behalf of any
Borrower in connection with the transactions contemplated hereby.
4.13 Environmental and Safety Matters. The Borrowers and each of their
respective Subsidiaries is in substantial compliance with all Environmental
Laws in jurisdictions in which such Borrower or any such Subsidiary owns or
operates, or has owned or operated, a facility or site, or arranges or has
arranged for disposal or treatment of hazardous substances, solid waste, or
other wastes, accepts or has accepted for transport any hazardous substances,
solid wastes or other wastes or holds or has held any interest in real property
or otherwise, except where the failure to comply would not have a Material
Adverse Effect. No demand, claim, notice, action, administrative proceeding,
investigation or inquiry whether brought by any governmental authority, private
person or entity or otherwise, arising under, relating to or in connection with
any Environmental Laws is pending or, to the best of its knowledge, threatened
against any Borrower or any of their respective Subsidiaries, any real property
in which any Borrower or any such Subsidiary holds or has held an interest or
any past or present operation
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of any Borrower or any such Subsidiary. Neither any Borrower nor any of their
respective Subsidiaries (a) is the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic substances, radioactive materials, hazardous wastes or
related materials into the environment, (b) has received any notice of any
toxic substances, radioactive materials, hazardous waste or related materials
in, or upon any of its properties in violation of any Environmental Laws, (c)
knows of any basis for any such investigation, notice or violation, or (d) owns
or operates, or has owned or operated, property which appears on the United
States National Priority List or any other governmental listing which
identifies sites for remedial clean-up or investigatory actions, except as
disclosed on Schedule 4.13 hereto, and as to such matters disclosed on such
Schedule, none will have a Material Adverse Effect. No release, threatened
release or disposal of hazardous waste, solid waste or other wastes is
occurring or has occurred on, under or to any real property in which any
Borrower or any of their respective Subsidiaries holds any interest or performs
any of its operations, in material violation of any Environmental Law.
4.14 No Material Adverse Change. Neither any Borrower nor any of its
Subsidiaries has received any notice, citation or communication of the nature
referred to in Section 5.1(d)(i), except in respect of such matters as have
been or are being remediated in all material respects or are being contested or
remediated in good faith, and, in the case of any such matter being so
contested or remediated, and as of the date of this Agreement, adequate
provision for all material costs of any remediation is reflected in the
financial statements referred to in Section 4.6 of this Agreement, and in
respect of any such notice, citation or communication received after the date
of this Agreement, will be reflected in the subsequent financial statements
furnished to the Agent and the Banks pursuant to Sections 5.1(d)(ii),
5.1(d)(iii) and 5.1(d)(iv).
4.15 No Default. Neither any Borrower nor any Subsidiary is in default or
has received any written notice of default under or with respect to any of its
Contractual Obligations in any respect which would have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
4.16 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation applicable to any Borrower or any Subsidiary would have a Material
Adverse Effect.
4.17 Year 2000. The Company has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the Company does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
ARTICLE V.
COVENANTS
5.1 Affirmative Covenants. Each Borrower covenants and agrees that, until
the Termination Date and thereafter until irrevocable payment in full of the
principal of and accrued interest on the Notes and the performance of all other
obligations of the Borrowers under this Agreement, unless the Majority Banks
shall otherwise consent in writing, it shall, and shall cause each of its
Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence, except to the extent permitted by Section 5.2(g), and its
qualification as a foreign corporation in good standing in each
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jurisdiction in which such qualification is necessary under applicable law,
except for such jurisdictions where the failure to so qualify would not have a
Material Adverse Effect.
(b) Compliance with Laws, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to
time, except where the failure to comply would not have a Material Adverse
Effect; and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income, revenues or
property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise, which, if unpaid,
would give rise to Liens upon such properties or any portion thereof, except to
the extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of any such
Borrower.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of any
Borrower or any of their respective Subsidiaries and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses; and, maintain
in full force and effect insurance with responsible and reputable insurance
companies or associations in such amounts, on such terms and covering such
risks, as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated and maintain in full force and
effect public liability insurance, insurance against claims for personal injury
or death or property damage occurring in connection with any of its activities
or any properties owned, occupied or controlled by it, in such amount as it
shall reasonably deem necessary.
(d) Reporting Requirements. Furnish to the Banks and the Agent the
following:
(i) Promptly and in any event within seven calendar days after
becoming aware of the occurrence of (A) any Event of Default or Default, or (B)
the commencement of any material litigation against, by or affecting any
Borrower or any of their respective Subsidiaries or (C) entering into any
material contract or undertaking that is not entered into in the ordinary
course of business and which has resulted in or which is likely, in the
reasonable judgment of the Company, to result in a Material Adverse Effect, or
(D) any material development in the business or affairs of any Borrower or any
of their respective Subsidiaries (including, without limitation, developments
with respect to Year 2000 Issues), which has resulted in or which is likely, in
the reasonable judgment of such Borrower, to result in a Material Adverse
Effect, a statement of the chief financial officer of such Borrower setting
forth details of each such Default or Event of Default or such litigation,
material contract or undertaking or development and the action which such
Borrower or such Subsidiary, as the case may be, has taken and proposes to take
with respect thereto;
(ii) As soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, the consolidated balance sheet of the Company and its Subsidiaries as
of the end of such quarter, and the related consolidated statements of income
and cash flow for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or period
of the preceding fiscal year, all in reasonable detail and duly certified
(subject to normal year-end adjustments) by the treasurer of the Company as
having been prepared in
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accordance with Generally Accepted Accounting Principles, together with a
certificate of the treasurer of the Company stating (A) that no Event of
Default or Default has occurred and is continuing or, if an Event of Default or
Default has occurred and is continuing, a statement setting forth the details
thereof and the action which the Company has taken and proposes to take with
respect thereto, and (B) that a computation (which computation shall accompany
such certificate and shall be in reasonable detail) showing compliance with
Section 5.2(a), (b), (c) and (d) hereof is in conformity with the terms of this
Agreement;
(iii) As soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, shareholders equity and cash
flows of the Company and its Subsidiaries for such fiscal year, with a
customary audit report of KPMG Peat Marwick, or other independent certified
public accountants selected by the Company and acceptable to the Majority
Banks, without qualifications unacceptable to the Majority Banks, together with
(A) either (I) a written statement of the accountants that in making the
examination necessary for their report or opinion they obtained no knowledge of
the occurrence of any Default or Event of Default under this Agreement or (II)
if they know of any Default or Event of Default, their written disclosure of
its nature and status, provided that, the accountants shall not be liable
directly or indirectly to anyone for any failure to obtain knowledge of any
Default or Event of Default under this Agreement, and (B) a certificate of the
treasurer of the Company stating (I) that no Event of Default or Default has
occurred and is continuing or, if an Event of Default or Default has occurred
and is continuing, a statement setting forth the details thereof and the action
which the Company has taken and proposes to take with respect thereto, and (II)
that a computation (which computation shall accompany such certificate and
shall be in reasonable detail) showing compliance with Section 5.2(a), (b), (c)
and (d) hereof is in conformity with the terms of this Agreement;
(iv) Promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements which any Borrower sends to
or files with any of their respective security holders or any securities
exchange or the Securities and Exchange Commission or any successor agency
thereof;
(v) Promptly and in any event within 10 calendar days after
receiving or becoming aware thereof (A) a copy of any notice of intent to
terminate any Plan of any Borrower, their respective Subsidiaries or any ERISA
Affiliate filed with the PBGC, (B) a statement of the chief financial officer
or any other officer of such Borrower setting forth the details of the
occurrence of any Reportable Event with respect to any such Plan, (C) a copy of
any notice that any Borrower, any of their respective Subsidiaries or any ERISA
Affiliate may receive from the PBGC relating to the intention of the PBGC to
terminate any such Plan or to appoint a trustee to administer any such Plan, or
(D) a copy of any notice of failure to make a required installment or other
payment within the meaning of Section 412(n) of the Code or Section 302(f) of
ERISA with respect to any such Plan; and
(vi) Promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of any Borrower or
any of their respective Subsidiaries as any Bank or the Agent may from time to
time reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time during normal business hours and
from
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time to time, (i) permit any Bank or the Agent or any agents or representatives
thereof to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Borrowers and their respective
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrowers and their respective Subsidiaries with their respective officers,
employees and independent auditors, provided that representatives of the
Company selected by the Company are present during any such visit or
discussion, and by this provision the Company does hereby authorize such
persons to discuss such affairs, finances and accounts with any Bank or the
Agent subject to the above terms and conditions and (ii) permit the Agent and
any of its agents or representative to conduct a comprehensive field audit of
its books, records, property and assets, which audits shall be performed once
per year (unless an Event of Default has occurred in which case audits may be
performed more frequently) and which audits shall be at the expense of the
Borrowers. In connection with any activities of the Agent or any Bank pursuant
to this Section 5.1(e), prior to any Default or Event of Default hereunder, the
Agent and each of the Banks: (i) shall endeavor to give the Company three
Business Days notice of any audit or visit, which visit shall be during normal
business hours, and (ii) shall follow the Company's standard security
procedures.
(f) Stamp Taxes. The Borrowers will pay all stamp taxes and similar
taxes, if any, including interest and penalties, if any, payable in respect of
the Notes. The efficacy of this subsection shall survive the payment in full of
the Notes.
(g) Additional Security and Collateral. Cause each person becoming a
Domestic Subsidiary of any Borrower from time to time to execute and deliver to
the Banks and the Agent, within 30 days after such person becomes a Domestic
Subsidiary, a Guaranty, together with other related documents described in
Section 2.5, and, the Company shall pledge 65% of the stock of each person
becoming a Foreign Subsidiary of the Borrower if such Foreign Subsidiary is not
financed outside of this Agreement, within 30 days after such person becomes a
Foreign Subsidiary, in each case sufficient to pledge such stock to the
Collateral Agent for the benefit of the Banks and the Note Purchasers pursuant
to the Intercreditor Agreement. Each Borrower shall notify the Banks and the
Agent, within 10 days after the occurrence thereof, any person's becoming a
Subsidiary. Notwithstanding anything in this Agreement to the contrary, no SPC
shall be required to become a Guarantor hereunder or execute a Guaranty.
(h) Further Assurances. Will execute and deliver within 30 days
after request therefor by the Majority Banks or the Agent, all further
instruments and documents and take all further action that may be necessary, in
order to give effect to, and to aid in the exercise and enforcement of the
rights and remedies of the Banks and the Agent under, this Agreement and the
Notes. In addition, the Company agrees to promptly deliver to the Agent and the
Banks supplements to Schedule 4.4 listing any Subsidiary not listed in Schedule
4.4 hereto.
(i) Year 2000. The Company will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000
Issues will not have a Material Adverse Effect. At the request of the Agent,
the Company will provide a description of the Year 2000 Program, together with
any updates or progress reports with respect thereto. Within thirty (30) days
after the Effective Date, the Company shall deliver to the Banks information
satisfactory to the Agent and the Required Banks regarding the Company's Year
2000 Program.
5.2 Negative Covenants. Until the Termination Date and thereafter until
irrevocable payment in full of the principal of and accrued interest on the
Notes and the performance of all other
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obligations of each Borrower under this Agreement, each Borrower agrees that,
unless the Majority Banks shall otherwise consent in writing it shall not:
(a) Current Ratio. Permit or suffer the Consolidated Current Ratio
to be less than 1.40 to 1.00 at any time.
(b) Fixed Charge Coverage Ratio. Permit or suffer the Consolidated
Fixed Charge Coverage Ratio to be less than, at any time, 3.0 to 1.0;
calculated as of the end of each fiscal quarter for the four immediately
preceding fiscal quarters.
(c) Tangible Net Worth. Permit or suffer Consolidated Tangible Net
Worth at any time to be less than the sum of (i) $170,000,000 plus (ii) 75% of
the Net Cash Proceeds of Capital Stock of the Company offered or otherwise sold
after the Effective Date, plus (iii) an aggregate amount equal to 60% of
Consolidated Net Income (but, in each case, only if a positive number) for each
completed fiscal quarter of the Company commencing with the fiscal quarter
ending May 31, 1998.
(d) Funded Indebtedness to Total Capitalization. Permit or suffer
the ratio of Consolidated Funded Indebtedness to Consolidated Total
Capitalization at any time to exceed 0.60 to 1.0.
(e) Indebtedness. Create, incur, assume or in any manner become
liable in respect of, or suffer to exist, any Indebtedness other than:
(i) The Advances;
(ii) The Indebtedness described in Schedule 5.2(e) hereto and
extensions and renewals thereof, having the same terms as those existing on the
date of this Agreement, but no increase in the principal amount thereof shall
be permitted;
(iii) Indebtedness of any Subsidiary of a Borrower owing to a
Borrower or to any other Subsidiary of a Borrower;
(iv) Interest rate or currency swaps, rate caps or other similar
transactions with any Bank (valued in an amount equal to the highest
termination payment, if any, that would be payable by such person upon
termination for any reason on the date of determination) not exceeding the
aggregate amount of the Commitments;
(v) The Private Placement Debt in an aggregate principal amount
not exceeding $50,000,000, together with guaranties of such Indebtedness by
Domestic Subsidiaries;
(vi) Unsecured Indebtedness of Jabil Malaysia in an aggregate
amount not exceeding $30,000,000 and a guaranty by the Company of such
Indebtedness; provided, however, the aggregate amount of Indebtedness of Jabil
Malaysia shall not exceed the book value of its accounts receivable, inventory
and fixed assets as reported in the books of Jabil Malaysia and the terms and
conditions of such Indebtedness, including the form of guaranty to be executed
by the Company, shall be satisfactory to the Banks; and
(vii) Indebtedness incurred as part of a Permitted Receivables
Transaction.
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(f) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of any Borrower or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being contested
in good faith by appropriate proceedings and as to which adequate financial
reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in the
aggregate and which constitute (A) pledges or deposits under worker's
compensation laws, unemployment insurance laws or similar legislation, (B) good
faith deposits in connection with bids, tenders, contracts or leases to which a
Borrower or any of its Subsidiaries is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits, and (C)
liens imposed by law, such as those of carriers, warehousemen and mechanics, if
payment of the obligation secured thereby is not yet due;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of such real property, provided that
all of the foregoing, in the aggregate, do not at any time materially detract
from the value of said properties or materially impair their use in the
operation of the businesses of a Borrower or any of its Subsidiaries;
(iv) Liens existing on the date hereof upon the same terms as
the date hereof and extensions and renewals thereof, but no increase in the
principal amount secured thereby shall be permitted, with each existing Lien
described in Schedule 5.2(f) hereto;
(v) Liens granted by any Subsidiary in favor of a Borrower or
any other Subsidiary which are subordinated to the Liens of the Agent and the
Banks under the Security Documents on terms and pursuant to agreements
satisfactory to the Banks;
(vi) The interest or title of a lessor under any lease otherwise
permitted under this Agreement with respect to the property subject to such
lease to the extent performance of the obligations of a Borrower or its
Subsidiary thereunder is not delinquent;
(vii) Liens in favor of the Collateral Agent for the benefit of
the Banks and the Note Purchasers contemplated by the Intercreditor Agreement;
(viii) Liens on accounts receivable (together with related
collections and proceeds thereof, collateral insurance therefor, guaranties
thereof, lockbox or other collection accounts related thereto and all records
related thereto) of the Company or any Subsidiary which are transferred to a
Receivables Seller and/or to a Purchaser as part of a Permitted Receivables
Transaction (subject to the limitation on the amount of financing which may be
provided in all such transactions as set forth in the definition of the term
"Permitted Receivables Transaction" herein);
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(ix) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in the
aggregate and which constitute pledges or deposits to secure public or
statutory obligations of a Borrower or any of its Subsidiaries, or surety,
customs or appeal bonds to which a Borrower or any of its Subsidiaries is a
party; and
(x) Additional Liens securing Indebtedness not in excess of
$1,000,000 at any time outstanding.
(g) Merger; Acquisitions; Etc. Subject to Section 5.2(j), purchase
or otherwise acquire, whether in one or a series of transactions, all or a
substantial portion of the business assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, of any person, or all or a
substantial portion of the capital stock of or other ownership interest in any
other person; nor merge or consolidate or amalgamate with any other person or
take any other action having a similar effect, nor enter into any joint venture
or similar arrangement with any other person, provided, however, that this
Section 5.2(g) shall not prohibit (i) any merger, acquisition or joint venture
if (A) a Borrower shall be the surviving or continuing corporation thereof, (B)
immediately before and after such merger or acquisition, no Default or Event of
Default shall exist or shall have occurred and be continuing and the
representations and warranties contained in Article IV shall be true and
correct on and as of the date thereof (both before and after such merger or
acquisition is consummated) as if made on the date such merger or acquisition
is consummated, (C) the aggregate amount paid or payable in cash for (A) any
single merger, acquisition or joint venture by any Borrower does not exceed
$25,000,000 and (B) all such mergers, acquisitions or joint ventures by the
Borrowers after the Effective Date does not exceed $50,000,000, and (D) prior
to the consummation of such merger or acquisition, the Company shall have
provided to the Banks an opinion of counsel and a certificate of the chief
financial officer of the Company (attaching computations and pro forma
financial statements to demonstrate compliance with all financial covenants
hereunder both before and after such merger, acquisition or joint venture has
been completed), each stating that such merger or acquisition complies with
this Section 5.2(g) and that any other conditions under this Agreement relating
to such transaction have been satisfied, or (ii) the acquisition of Hewlett
Packard's Laser Jet Solutions Group formatter manufacturing organization
located in Boise, Idaho and Bergamo, Italy.
(h) Disposition of Assets; Etc. Sell, lease, license, transfer,
assign or otherwise dispose of all or a substantial portion of its business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether in one or a series of transactions, other than inventory
sold in the ordinary course of business upon customary credit terms and sales
of scrap or obsolete material or equipment, provided, however, that this
Section 5.2(h) shall not prohibit (i) any such sale, lease, license, transfer,
assignment or other disposition if the aggregate book value (disregarding any
write-downs of such book value other than ordinary depreciation and
amortization) of all of the business, assets, rights, revenues and property
disposed of after the date of this Agreement shall be less than $5,000,000 in
the aggregate and if, immediately before and after such transaction, no Default
or Event of Default shall exist or shall have occurred and be continuing or
(ii) sales by the Borrower or any Subsidiary of accounts receivable pursuant to
Permitted Receivables Transactions (subject to the limitation on the amount of
financing which may be provided in all such transactions set forth in the
definition of the term "Permitted Receivables Transaction" herein).
(i) Nature of Business. Make any substantial change in the nature of
its business from that engaged in on the date of this Agreement or engage in
any other businesses other than the design, development and manufacturing of
computer-grade electronic products.
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(j) Investments, Loans and Advances. Subject to Section 5.2(g),
purchase or otherwise acquire any capital stock of or other ownership interest
in, or debt securities of or other evidences of Indebtedness of, any other
person; nor make any loan or advance of any of its funds or property or make
any other extension of credit to, or make any investment or acquire any
interest whatsoever in, any other person; nor incur any Contingent Liability;
other than (i) extensions of trade credit made in the ordinary course of
business on customary credit terms and commission, travel and similar advances
made to officers and employees in the ordinary course of business, and (ii)
commercial paper of any United States issuer having the highest rating then
given by Moody's Investors Service, Inc., or Standard & Poor's Corporation,
direct obligations of and obligations fully guaranteed by the United States of
America or any agency or instrumentality thereof, or certificates of deposit of
any commercial bank which is a member of the Federal Reserve System and which
has capital, surplus and undivided profit (as shown on its most recently
published statement of condition) aggregating not less than $100,000,000,
provided, however, that each of the foregoing investments has a maturity date
not later than 365 days after the acquisition thereof by the Company or any of
its Subsidiaries, (iii) those investments, loans, advances and other
transactions described in Schedule 5.2(j) hereto, having the same terms as
existing on the date of this Agreement, together with extensions and renewals
thereof, but no increase in the amount of such investment, loan or advance
shall be permitted, unless otherwise permitted pursuant to clause (v) hereof,
(iv) investments, loans and advances to any Subsidiary; provided, that, the
aggregate amount of such investments, loans and advances outstanding at any
time to Subsidiaries who are not a Guarantor shall not exceed $60,000,000, and
(v) other investments, loans and advances not exceeding an aggregate amount of
$25,000,000 at any time.
(k) Transactions with Affiliates. Enter into, become a party to, or
become liable in respect of, any contract or undertaking with any Affiliate
except (i) in the ordinary course of business and on terms not less favorable
to a Borrower or any Subsidiary than those which could be obtained if such
contract or undertaking were an arms length transaction with a person other
than an Affiliate, and (ii) pursuant to or in connection with a Permitted
Receivables Transaction.
(l) Sale and Leaseback Transactions. Become or remain liable in any
way, whether directly or by assignment or as a guarantor or other contingent
obligor, for the obligations of the lessee or user under any lease or contract
for the use of any real or personal property if such property is owned on the
date of this Agreement or thereafter acquired by a Borrower or any of its
Subsidiaries and has been or is to be sold or transferred to any other person
and was, is or will be used by a Borrower or any such Subsidiary for
substantially the same purpose as such property was used by a Borrower or such
Subsidiary prior to such sale or transfer.
(m) Negative Pledge Limitation. Enter into any Agreement, with any
person, other than the Banks pursuant hereto or the Note Purchasers pursuant to
the Note Purchase Agreement, which prohibits or limits the ability of any
Borrower or any Subsidiary (other than Jabil Malaysia) to create, incur, assume
or suffer to exist any Lien upon any of its assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether now owned or
hereafter acquired.
(n) Inconsistent Agreements. Enter into any agreement containing any
provision which would be violated or breached in any material respect by this
Agreement or any of the transactions contemplated hereby or by performance by
any Borrower or any of its Subsidiaries of its obligations in connection
therewith.
(o) Accounting Changes. A Borrower shall not change its fiscal year
or make any significant changes (i) in accounting treatment and reporting
practices except as permitted by Generally
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Accepted Accounting Principles and disclosed to the Banks, or (ii) in tax
reporting treatment except as permitted by law and disclosed to the Banks.
(p) Additional Covenants.
(q) Additional Covenants. If at any time any Borrower shall enter
into or be a party to any instrument or agreement, including all such
instruments or agreements in existence as of the date hereof and all such
instruments or agreements entered into after the date hereof, relating to or
amending any terms or conditions applicable to any of its Indebtedness which
includes covenants, terms, conditions or defaults not substantially provided
for in this Agreement or more favorable to the lender or lenders thereunder
than those provided for in this Agreement, then the Borrowers shall promptly so
advise the Agent and the Banks. Thereupon, if the Agent shall request, upon
notice to the Borrowers, the Agent and the Banks shall enter into an amendment
to this Agreement or an additional agreement (as the Agent may request),
providing for substantially the same covenants, terms, conditions and defaults
as those provided for in such instrument or agreement to the extent required
and as may be selected by the Agent. In addition to the foregoing, any
covenants, terms, conditions or defaults in the Private Placement Documents not
substantially provided for in this Agreement or more favorable to the holders
of the Private Placement Debt issued in connection therewith, are hereby
incorporated by reference into this Agreement to the same extent as if set
forth fully herein, and no subsequent amendment, waiver or modification thereof
shall effect any such covenants, terms, conditions or defaults as incorporated
herein.
ARTICLE VI.
DEFAULT
6.1 Events of Default. The occurrence of any one of the following events
or conditions shall be deemed an "Event of Default" hereunder unless waived by
the Required Banks pursuant to Section 9.1:
(a) Nonpayment of Principal. Any Borrower shall fail to pay when due
any principal of the Notes; or
(b) Nonpayment of Interest. Any Borrower shall fail to pay when due
any interest or any fees or any other amount payable hereunder and such failure
shall remain unremedied for five days; or
(c) Misrepresentation. Any representation or warranty made by any
Borrower or any Guarantor in Article IV hereof, any other Loan Document or any
other certificate, report, financial statement or other document furnished by
or on behalf of any Borrower or any Guarantor in connection with this Agreement
shall prove to have been incorrect in any material respect when made or deemed
made; or
(d) Certain Covenants. Any Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.2 hereof; or
(e) Other Defaults. Any Borrower or any Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document, and any such failure shall remain
unremedied for 30 calendar days after written notice thereof shall have been
given to the Company by the Agent (or such longer or shorter period of time as
may be specified in any Security Document); or
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(f) Cross Default. Any Borrower, any Guarantor or any of their
respective Subsidiaries shall fail to pay any part of the principal of, the
premium, if any, or the interest on, or any other payment of money due under
any of its Indebtedness (other than Indebtedness hereunder), beyond any period
of grace provided with respect thereto, which individually or together with
other such Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $5,000,000; or any Borrower, any
Guarantor or any of their respective Subsidiaries shall fail to perform or
observe any other term, covenant or agreement contained in any agreement,
document or instrument evidencing or securing any such Indebtedness having such
aggregate outstanding principal amount, or under which any such Indebtedness
was issued or created, beyond any period of grace, if any, provided with
respect thereto and such Borrower, such Guarantor or such Subsidiary has been
notified by the creditor of such default; and the effect of any such failure is
either (i) to cause, or permit the holders of such Indebtedness (or a trustee
on behalf of such holders) to cause, any payment of such Indebtedness to become
due prior to its due date or (ii) to permit the holders of such Indebtedness
(or a trustee on behalf of such holders) to elect a majority of the board of
directors of such Borrower, such Guarantor or such Subsidiary; or
(g) Judgments. One or more final unappealable judgments or orders
for the payment of money in an aggregate amount of $10,000,000 shall be
rendered against or shall affect any Borrower or any of their respective
Subsidiaries, or any other judgment or order (whether or not for the payment of
money) shall be rendered against or shall affect any Borrower or any of their
respective Subsidiaries which causes or would cause a Material Adverse Effect;
or
(h) ERISA. The occurrence of a Reportable Event that results in or
would result in material liability of any Borrower, any Subsidiary of any
Borrower or their ERISA Affiliates to the PBGC or to any Plan and such
Reportable Event is not corrected within thirty (30) days after the occurrence
thereof; or the occurrence of any Reportable Event which would constitute
grounds for termination of any Plan of any Borrower, their respective
Subsidiaries or their ERISA Affiliates by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to administer any
such Plan and such Reportable Event is not corrected within thirty (30) days
after the occurrence thereof; or the filing by any Borrower, any Subsidiary of
any Borrower or any of their ERISA Affiliates of a notice of intent to
terminate a Plan or the institution of other proceedings to terminate a Plan;
or any Borrower, any Subsidiary of any Borrower or any of their ERISA
Affiliates shall fail to pay when due any material liability to the PBGC or to
a Plan; or the PBGC shall have instituted proceedings to terminate, or to cause
a trustee to be appointed to administer, any Plan of any Borrower, their
respective Subsidiaries or their ERISA Affiliates; or any person engages in a
Prohibited Transaction with respect to any Plan which results in or could
result in material liability of the any Borrower, any Subsidiary of any
Borrower, any of their ERISA Affiliates, any Plan of any Borrower, their
respective Subsidiaries or their ERISA Affiliates or fiduciary of any such
Plan; or failure by any Borrower, any Subsidiary of any Borrower or any of
their ERISA Affiliates to make a required installment or other payment to any
Plan within the meaning of Section 302(f) of ERISA or Section 412(n) of the
Code that results in or could result in liability of any Borrower, any
Subsidiary of any Borrower or any of their ERISA Affiliates to the PBGC or any
Plan; or the withdrawal of any Borrower, any of their respective Subsidiaries
or any of their ERISA Affiliates from a Plan during a plan year in which it was
a "substantial employer" as defined in Section 4001(9a)(2) of ERISA; or any
Borrower, any of their respective Subsidiaries or any of their ERISA Affiliates
becomes an employer with respect to any Multiemployer Plan without the prior
written consent of the Majority Banks; or
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(i) Insolvency, Etc. Any Borrower or any Guarantor shall be
dissolved or liquidated (or any judgment, order or decree therefor shall be
entered), or shall generally not pay its debts as they become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against any Borrower or any Guarantor, any proceeding or
case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief or protection of debtors or seeking the entry of an
order for relief, or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its assets, rights,
revenues or property, and, if such proceeding is instituted against any
Borrower or any Guarantor and is being contested by such Borrower in good faith
by appropriate proceedings, such proceeding shall remain undismissed or
unstayed for a period of 60 days; or any Borrower or such Guarantor shall take
any action (corporate or other) to authorize or further any of the actions
described above in this subsection; or
(j) Loan Documents. Any event of default described in any Loan
Document shall have occurred and be continuing, or any provision of Article
VIII hereof or of any Loan Document shall at any time for any reason cease to
be valid and binding and enforceable against any obligor thereunder, or the
validity, binding effect or enforceability thereof shall be contested by any
person, or any obligor, shall deny that it has any or further liability or
obligation thereunder, or any Loan Document shall be terminated, invalidated or
set aside, or be declared ineffective or inoperative or in any way cease to
give or provide to the Banks and the Agent the benefits purported to be created
thereby.
(k) Change of Control. The Company shall experience a Change of
Control. For purposes of this Section 6.1(k), a "Change of Control" shall occur
if during any twelve-month period (i) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule
13D-3 promulgated by the Securities and Exchange Commission under said Act) of
50% or more in voting power of the voting shares of the Company that were
outstanding as of the date of this Agreement and (ii) a majority of the board
of directors of the Company shall cease for any reason to consist of
individuals who as of a date twelve months prior to any date compliance
herewith is determined were directors of the Company.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Agent may, with the consent of the Required Banks, and, upon being
directed to do so by the Required Banks, shall by notice to the Borrowers (i)
terminate the Commitments or (ii) declare the outstanding principal of, and
accrued interest on, the Notes and all other amounts owing under this Agreement
to be immediately due and payable, or (iii) demand immediate delivery of cash
collateral, and the Borrowers agree to deliver such cash collateral upon
demand, in an amount equal to the maximum amount that may be available to be
drawn at any time prior to the stated expiry of all outstanding Letters of
Credit, or any one or more of the foregoing, whereupon the Commitments shall
terminate forthwith and all such amounts, including cash collateral, shall
become immediately due and payable, provided that in the case of any event or
condition described in Section 6.1(i) with respect to any Borrower, the
Commitments shall automatically terminate forthwith and all such amounts,
including cash collateral, shall automatically become immediately due and
payable without notice; in all cases without demand, presentment, protest,
diligence, notice of dishonor or other formality, all of which are hereby
expressly waived. Such cash collateral delivered in respect of outstanding
Letters of Credit shall be deposited in a
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special cash collateral account to be held by the Agent as collateral security
for the payment and performance of the Borrowers' obligations under this
Agreement to the Banks and the Agent.
(b) The Agent may, with the consent of the Required Banks, and, upon
being directed to do so by the Required Banks, shall, in addition to the
remedies provided in Section 6.2(a), exercise and enforce any and all other
rights and remedies available to it or the Banks, whether arising under this
Agreement, the Notes, any other Loan Document or under applicable law, in any
manner deemed appropriate by the Agent, including suit in equity, action at
law, or other appropriate proceedings, whether for the specific performance (to
the extent permitted by law) of any covenant or agreement contained in this
Agreement or any other Loan Document or in aid of the exercise of any power
granted in this Agreement or any other Loan Document.
(c) Upon the occurrence and during the continuance of any Event of
Default, each Bank may at any time and from time to time, without notice to any
Borrower (any requirement for such notice being expressly waived by each
Borrower) set off and apply against any and all of the obligations of each
Borrower now or hereafter existing under this Agreement, whether owing to such
Bank or any other Bank or the Agent, any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Bank to or for the credit or the account of any
Borrower and any property of any Borrower from time to time in possession of
such Bank, irrespective of whether or not such Bank shall have made any demand
hereunder and although such obligations may be contingent and unmatured. Each
of the Borrowers hereby grants to the Banks and the Agent a lien on and
security interest in all such deposits, indebtedness and property as collateral
security for the payment and performance of the obligations of each Borrower
under this Agreement. The rights of such Bank under this Section 6.2(c) are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which such Bank may have.
6.3 Distribution of Proceeds of Collateral. All proceeds received by the
Agent pursuant to the Security Documents for application to the Bank
Obligations or any payments on any of the liabilities secured by the Security
Documents received by the Agent or any Bank upon and during the continuance of
any Event of Default shall be allocated and distributed as follows:
(a) First, to the payment of all costs and expenses, including
without limitation all attorneys' fees, of the Agent in connection with the
enforcement of the Security Documents and otherwise administering this
Agreement;
(b) Second, to the payment of all costs, expenses and fees,
including without limitation, commitment fees and attorneys fees, owing to the
Banks pursuant to the Bank Obligations on a pro rata basis in accordance with
the Bank Obligations consisting of fees, costs and expenses owing to the Banks
under the Bank Obligations, for application to payment of such liabilities;
(c) Third, to the Banks on a pro rata basis in accordance with the
Bank Obligations consisting of interest owing to the Banks under the Bank
Obligations, for application to payment of such liabilities;
(d) Fourth, to the Banks on a pro rata basis in accordance with the
Bank Obligations consisting of principal (including without limitation any cash
collateral for any outstanding Letters of Credit) owing to the Banks under the
Bank Obligations, for application to payment of such liabilities;
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(e) Fifth, to the payment of any and all other amounts owing to the
Banks on a pro rata basis in accordance with the total amount of such
Indebtedness owing to each of the Banks, for application to payment of such
liabilities; and
(f) Sixth, to the Borrowers or such other person as may be legally
entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest or fees
delivered to the Agent for the account of any Defaulting Bank shall be
delivered by the Agent to such Defaulting Bank. Instead, such payments shall,
for so long as such Defaulting Bank shall be a Defaulting Bank, be held by the
Agent, and the Agent is hereby authorized and directed by all parties hereto to
hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Bank to
the Agent; and
(ii) Second, to Loans required to be made by such Defaulting Bank on any
borrowing date to the extent such Defaulting Bank fails to make such Loans.
Notwithstanding the foregoing, upon the termination of the Commitments and the
payment and performance of all of the Advances (other than those owing to a
Defaulting Bank), any funds then held in escrow by the Agent pursuant to the
preceding sentence shall be distributed to each Defaulting Bank, pro rata in
proportion to amounts that would be due to each Defaulting Bank but for the
fact that it is a Defaulting Bank.
6.4 Letter of Credit Liabilities. For the purposes of payments and
distributions under Section 6.3, the full amount of Bank Obligations on account
of any Letter of Credit then outstanding but not drawn upon shall be deemed to
be then due and owing. Amounts distributable to the Banks on account of such
Bank Obligations under such Letter of Credit shall be deposited in a separate
interest bearing collateral account in the name of and under the control of the
Agent and held by the Agent first as security for such Letter of Credit Bank
Obligations and then as security for all other Bank Obligations and the amount
so deposited shall be applied to the Letter of Credit Bank Obligations at such
times and to the extent that such Letter of Credit Bank Obligations become
absolute liabilities and if and to the extent that the Letter of Credit Bank
Obligations fail to become absolute Bank Obligations because of the expiration
or termination of the underlying letters of credit without being drawn upon
then such amounts shall be applied to the remaining Bank Obligations in the
order provided in Section 6.3. Each Borrower hereby grants to the Agent, for
the benefit of the Banks, a lien and security interest in all such funds
deposited in such separate interest bearing collateral account, as security for
all the Bank Obligations as set forth above.
ARTICLE VII.
THE AGENT AND THE BANKS
7.1 Appointment and Authorization. Each Bank hereby irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. The provisions of this Article VII
are solely for the benefit of the Agent and the Banks, and the Borrowers shall
not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement,
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the Agent shall act solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for the Borrowers.
7.2 Agent and Affiliates. The Agent in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise or refrain from exercising the same as though it were not the Agent.
First Chicago and its affiliates may (without having to account therefor to any
Bank) accept deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with any Borrower or any
Subsidiary of any Borrower as if it were not acting as Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
7.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Bank, and no
implied covenants, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or shall otherwise exist against the Agent. As to
any matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement actions under the Notes), the Agent
shall not be required to exercise any discretion or take any action, but the
Agent shall take such action or omit to take any action pursuant to the written
instructions of the Required Banks and may request instructions from the
Required Banks. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, pursuant to the written instructions of the Required
Banks, which instructions and any action or omission pursuant thereto shall be
binding upon all of the Banks; provided, however, that the Agent shall not be
required to act or omit to act if, in the judgment of the Agent, such action or
omission may expose the Agent to personal liability or is contrary to this
Agreement, the Notes or applicable law.
7.4 Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it
to be genuine and correct and to have been sent or given by or on behalf of a
proper person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including without limitation collateral agents) and may
consult with legal counsel (who may be counsel for the Borrowers), independent
public accountants and other experts selected by it and shall not be liable to
the Banks, except as to money or property received by it or its authorized
agents, for the negligence or misconduct of any such agent selected by it with
reasonable care or for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
7.5 Default. The Agent shall not be deemed to have knowledge of the
occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Bank or a Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice, the Agent shall give prompt written
notice thereof to the Banks.
7.6 Liability of Agent. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Banks for any action
taken or not taken by it or them in connection herewith with the consent or at
the request of the Majority Banks or in the absence of its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its directors,
officers, agents or
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employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any recital, statement, warranty or representation contained in
this Agreement or any Note or any Guaranty, or in any certificate, report,
financial statement or other document furnished in connection with this
Agreement, (ii) the performance or observance of any of the covenants or
agreements of any Borrower or any Guarantor, (iii) the satisfaction of any
condition specified in Article II hereof, or (iv) the validity, effectiveness,
legal enforceability, value or genuineness of this Agreement or the Notes or
any collateral subject thereto or any other instrument or document furnished in
connection herewith.
7.7 Nonreliance on Agent and Other Banks. Each Bank acknowledges and
agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrowers and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decision in taking or not taking action under this Agreement. The Agent shall
not be required to keep itself informed as to the performance or observance by
any Borrower or any Guarantor of this Agreement, the Notes or any other
documents referred to or provided for herein or to inspect the properties or
books of any Borrower or any Guarantor and, except for notices, reports and
other documents and information expressly required to be furnished to the Banks
by the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any information concerning the affairs, financial
condition or business of the Borrowers or any of their respective Subsidiaries
which may come into the possession of the Agent or any of its affiliates.
7.8 Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrowers, but without limiting any obligation of
the Borrowers to make such reimbursement), ratably according to the respective
principal amounts of the Advances then outstanding made by each of them (or if
no Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Agent in any way relating to
or arising out of this Agreement or the transactions contemplated hereby or any
action taken or omitted by the Agent under this Agreement, provided, however,
that no Bank shall be liable for any portion of such claims, damages, losses,
liabilities, costs or expenses resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including without limitation reasonable fees and
expenses of counsel) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by the Borrowers, but
without limiting the obligation of the Borrowers to make such reimbursement.
Each Bank agrees to reimburse the Agent promptly upon demand for its ratable
share of any amounts owing to the Agent by the Banks pursuant to this Section.
If the indemnity furnished to the Agent under this Section shall, in the
judgment of the Agent, be insufficient or become impaired, the Agent may call
for additional indemnity from the Banks and cease, or not commence, to take any
action until such additional indemnity is furnished.
7.9 Resignation of Agent. The Agent may resign as such at any time upon
thirty days' prior written notice to the Borrowers and the Banks. In the event
of any such resignation, the Company and the Majority Banks shall, by an
instrument in writing delivered to the Banks and the Agent, appoint a
successor, which shall be a Bank or any other commercial bank organized under
the laws of the United
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States or any State thereof and having a combined capital and surplus of at
least $500,000,000. If a successor is not so appointed or does not accept such
appointment before the Agent's resignation becomes effective, the resigning
Agent may appoint a temporary successor to act until such appointment by the
Company and the Majority Banks is made and accepted, which temporary successor
must also meet the standards set forth in the preceding sentence. Any successor
to the Agent shall execute and deliver to the Borrowers and the Banks an
instrument accepting such appointment and thereupon such successor Agent,
without further act, deed, conveyance or transfer shall become vested with all
of the properties, rights, interests, powers, authorities and obligations of
its predecessor hereunder with like effect as if originally named as Agent
hereunder. Upon request of such successor Agent, the Borrowers and the
resigning Agent shall execute and deliver such instruments of conveyance,
assignment and further assurance and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in such successor
Agent all such properties, rights, interests, powers, authorities and
obligations. The provisions of this Article VII shall thereafter remain
effective for such resigning Agent with respect to any actions taken or omitted
to be taken by such Agent while acting as the Agent hereunder.
7.10 Sharing of Payments. The Banks agree among themselves that, in the
event that any Bank shall obtain payment in respect of any Advance or any other
obligation owing to the Banks under this Agreement through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Banks on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Bank shall
promptly notify the Agent and purchase from the other Banks participations in
such Advances and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all of the
Banks share such payment in accordance with such ratable shares. The Banks
further agree among themselves that if payment to a Bank obtained by such Bank
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise as aforesaid shall be rescinded or must otherwise be restored, each
Bank which shall have shared the benefit of such payment shall, by repurchase
of participations theretofore sold, return its share of that benefit to each
Bank whose payment shall have been rescinded or otherwise restored. The
Borrowers agree that any Bank so purchasing such a participation may, to the
fullest extent permitted by law, exercise all rights of payment, including
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Bank were a holder of such Advance or other obligation in the
amount of such participation. The Banks further agree among themselves that, in
the event that amounts received by the Banks and the Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Banks under this Agreement, other than agency fees and arrangement fees payable
pursuant to Section 2.3(d) of this Agreement which shall be paid on a pro rata
basis with amounts owing to the Banks. Except as otherwise expressly provided
in this Agreement, if any Bank or the Agent shall fail to remit to the Agent or
any other Bank an amount payable by such Bank or the Agent to the Agent or such
other Bank pursuant to this Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Bank at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Banks and the Agent that if the Agent or any
Bank shall engage in any other transactions with any Borrower and shall have
the benefit of any collateral or security therefor which does not expressly
secure the obligations arising under this Agreement except by virtue of a
so-called dragnet clause or comparable provision, the Agent or such Bank shall
be entitled to apply any proceeds of such collateral or security first in
respect of the
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obligations arising in connection with such other transaction before
application to the obligations arising under this Agreement.
7.11 Local Custom. Notwithstanding anything herein to the contrary, if
requested by the Majority Banks, all Loans made hereunder shall be made in
compliance with applicable local market custom and legal practice as determined
solely by the Majority Banks, whether or not such custom and legal practices
have the force of law; provided, that, the Agent shall consult with the Company
regarding compliance with local custom and legal practice if such custom or
legal practice does not have the force of law.
ARTICLE VIII.
GUARANTY
As an inducement to the Banks and the Agent to enter into the
transactions contemplated by this Agreement, each Guarantor agrees with the
Banks and the Agent as follows:
8.1 Guarantee of Obligations.
(a) Each Guarantor hereby (i) guarantees, as principal obligor and
not as surety only, to the Banks the prompt payment of the principal of and any
and all accrued and unpaid interest (including interest which otherwise may
cease to accrue by operation of any insolvency law, rule, regulation or
interpretation thereof) on the Advances and all other obligations of each
Borrower to the Banks and the Agent under this Agreement when due, whether by
scheduled maturity, acceleration or otherwise, all in accordance with the terms
of this Agreement and the Notes, including, without limitation, default
interest, indemnification payments and all reasonable costs and expenses
incurred by the Banks and the Agent in connection with enforcing any
obligations of the Borrowers hereunder, including without limitation the
reasonable fees and disbursements of counsel, (ii) guarantees the prompt and
punctual performance and observance of each and every term, covenant or
agreement contained in this Agreement and the Notes to be performed or observed
on the part of each Borrower, (iii) guarantees the prompt and complete payment
of all obligations and performance of all covenants of any Borrower under any
interest rate or currency swap agreements or similar transactions with any
Bank, and (iv) agrees to make prompt payment, on demand, of any and all
reasonable costs and expenses incurred by the Banks or the Agent in connection
with enforcing the obligations of the Guarantor hereunder, including, without
limitation, the reasonable fees and disbursements of counsel (all of the
foregoing being collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of any
Borrower contained in this Agreement shall not be performed or observed by any
Borrower as provided therein, or if any amount payable under or in connection
with this Agreement shall not be paid in full when the same becomes due and
payable, each Guarantor undertakes to perform or cause to be performed promptly
each of such duties, agreements and obligations and to pay forthwith each such
amount to the Agent for the account of the Banks regardless of any defense or
setoff or counterclaim which any Borrower may have or assert, and regardless of
any other condition or contingency.
8.2 Waivers and Other Agreements. Each Guarantor hereby unconditionally
(a) waives any requirement that the Banks or the Agent, upon the occurrence of
an Event of Default first make demand upon, or seek to enforce remedies against
any Borrower before demanding payment under or seeking to enforce the
obligations of any Guarantor hereunder, (b) covenants that the obligations of
each Guarantor
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hereunder will not be discharged except by complete performance of all
obligations of the Borrowers contained in this Agreement, the Notes and the
other Loan Documents, (c) agrees that the obligations of each Guarantor
hereunder shall remain in full force and effect without regard to, and shall
not be affected or impaired, without limitation, by any invalidity,
irregularity or unenforceability in whole or in part of this Agreement, the
Notes or any other Loan Document, or any limitation on the liability of any
Guarantor thereunder, or any limitation on the method or terms of payment
thereunder which may or hereafter be caused or imposed in any manner whatsoever
(including, without limitation, usury laws), (d) waives diligence, presentment
and protest with respect to, and any notice of default or dishonor in the
payment of any amount at any time payable by any Borrower under or in
connection with this Agreement, the Notes or any other Loan Document, and
further waives any requirement of notice of acceptance of, or other formality
relating to, the obligations of any Guarantor hereunder and (e) agrees that the
Guaranteed Obligations shall include any amounts paid by any Borrower to the
Banks or the Agent which may be required to be returned to any Borrower or to
its representative or to a trustee, custodian or receiver for any Borrower.
8.3 Nature of Guaranty. The obligations of each Guarantor hereunder
constitute an absolute and unconditional and irrevocable guaranty of payment
and not a guaranty of collection and are wholly independent of and in addition
to other rights and remedies of the Banks and the Agent and are not contingent
upon the pursuit by the Banks and the Agent of any such rights and remedies,
such pursuit being hereby waived by each Guarantor.
8.4 Obligations Absolute. The obligations, covenants, agreements and
duties of each Guarantor under this Agreement shall not be released, affected
or impaired by any of the following whether or not undertaken with notice to or
consent of such Guarantor: (a) an assignment or transfer, in whole or in part,
of the Advances made to any Borrower or of this Agreement or any Note although
made without notice to or consent of such Guarantor, or (b) any waiver by any
Bank or the Agent or by any other person, of the performance or observance by
any Borrower of any of the agreements, covenants, terms or conditions contained
in this Agreement or in the other Loan Documents, or (c) any indulgence in or
the extension of the time for payment by any Borrower of any amounts payable
under or in connection with this Agreement or any other Loan Document, or of
the time for performance by any Borrower of any other obligations under or
arising out of this Agreement or any other Loan Document, or the extension or
renewal thereof, or (d) the modification, amendment or waiver (whether material
or otherwise) of any duty, agreement or obligation of any Borrower set forth in
this Agreement or any other Loan Document (the modification, amendment or
waiver from time to time of this Agreement and the other Loan Documents being
expressly authorized without further notice to or consent of any Guarantor), or
(e) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of any Borrower or any receivership,
insolvency, bankruptcy, reorganization, or other similar proceedings, affecting
any Borrower or any of its assets, or (f) the merger or consolidation of any
Borrower or the Guarantors with any other person, or (g) the release of
discharge of any Borrower or any Guarantor from the performance or observance
of any agreement, covenant, term or condition contained in this Agreement or
any other Loan Document, by operation of law, or (h) any other cause whether
similar or dissimilar to the foregoing which would release, affect or impair
the obligations, covenants, agreements or duties of any Guarantor hereunder.
8.5 No Investigation by Banks or Agent. Each Guarantor hereby waives
unconditionally any obligation which, in the absence of such provision, the
Banks or the Agent might otherwise have to investigate or to assure that there
has been compliance with the law of any jurisdiction with respect to the
Guaranteed Obligations recognizing that, to save both time and expense, each
Guarantor has requested that the Banks and the Agent not undertake such
investigation. Each Guarantor hereby expressly
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confirms that the obligations of such Guarantor hereunder shall remain in full
force and effect without regard to compliance or noncompliance with any such
law and irrespective of any investigation or knowledge of any Bank or the Agent
of any such law.
8.6 Indemnity. As a separate, additional and continuing obligation, each
Guarantor unconditionally and irrevocably undertakes and agrees with the Banks
and the Agent that, should the Guaranteed Obligations not be recoverable from
such Guarantor under Section 8.1 for any reason whatsoever (including, without
limitation, by reason of any provision of this Agreement or the Notes or any
other agreement or instrument executed in connection herewith being or becoming
void, unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by any Bank or the Agent at any time,
each Guarantor as sole, original and independent obligor, upon demand by the
Agent, will make payment to the Agent for the account of the Banks and the
Agent of the Guaranteed Obligations by way of a full indemnity in such currency
and otherwise in such manner as is provided in this Agreement and the Notes.
8.7 Subordination, Subrogation, Etc. Each Guarantor agrees that any
present or future indebtedness, obligations or liabilities of any Borrower to
such Guarantor shall be fully subordinate and junior in right and priority of
payment to any present or future indebtedness, obligations or liabilities of
the Borrower to the Banks and the Agent. Each Guarantor waives any right of
subrogation to the rights of any Bank or the Agent against any Borrower or any
other person obligated for payment of the Guaranteed Obligations and any right
of reimbursement or indemnity whatsoever arising or accruing out of any payment
which the Guarantor may make pursuant to this Agreement and the Notes, and any
right of recourse to security for the debts and obligations of any Borrower,
unless and until the entire principal balance of and interest on the Guaranteed
Obligations shall have been paid in full.
8.8 Waiver. To the extent that it lawfully may, each Guarantor agrees
that it will not at any time insist upon or plead, or in any manner whatsoever
claim or take any benefit or advantage of any applicable present or future
stay, extension or moratorium law, which may affect observance or performance
of the provisions of this Agreement or the Notes; nor will it claim, take or
insist upon any benefit or advantage of any present or future law providing for
the evaluation or appraisal of any security for its obligations hereunder or
any Borrower under this Agreement and under the Notes prior to any sale or
sales thereof which may be made under or by virtue of any instrument governing
the same; nor will it, after any such sale or sales claim or exercise any
right, under any applicable law, to redeem any portion of such security so
sold.
8.9 Joint and Several Obligations; Contribution Rights.
(a) Notwithstanding anything to the contrary set forth herein or in
any Note or in any other Loan Document, the obligations of the Guarantors
hereunder are joint and several.
(b) If any Guarantor makes a payment in respect of the Guaranteed
Obligations it shall have the rights of contribution set forth below against
the other Guarantors; provided that such Guarantor shall not exercise its right
of contribution until all the Guaranteed Obligations shall have been finally
paid in full in cash. If any Guarantor makes a payment in respect of the
Guaranteed Obligations that is smaller in proportion to its Payment Share (as
hereinafter defined) than such payments made by the other Guarantors are in
proportion to the amounts of their respective Payment Shares, the Guarantor
making such proportionately smaller payment shall, when permitted by the
preceding sentence, pay to the other Guarantors an amount such that the net
payments made by the Guarantor in respect of the Bank Obligations shall be
shared among the Guarantors pro rata in proportion to their respective Payment
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Shares. If any Guarantor receives any payment that is greater in proportion to
the amount of its Payment Shares than the payments received by the other
Guarantors are in proportion to the amounts of their respective Payment Shares,
the Guarantor receiving such proportionately greater payment shall, when
permitted by the second preceding sentence, pay to the other Guarantors an
amount such that the payments received by the Guarantors shall be shared among
the Guarantors pro rata in proportion to their respective Payment Shares.
Notwithstanding anything to the contrary contained in this paragraph or in this
Agreement, no liability or obligation of any Guarantor that shall accrue
pursuant to this paragraph shall be paid nor shall it be deemed owed pursuant
to this paragraph until all of the Bank Obligations shall be finally paid in
full in cash.
For purposes hereof, the "Payment Share" of each Guarantor shall be
the sum of (a) the aggregate proceeds of the Guaranteed Obligations received by
such Guarantor plus (b) the product of (i) the aggregate Guaranteed Obligations
remaining unpaid on the date such Guaranteed Obligations become due and payable
in full, whether by stated maturity, acceleration, or otherwise (the
"Determination Date") reduced by the amount of such Guaranteed Obligations
attributed to such Guarantors pursuant to clause (a) above, times (ii) a
fraction, the numerator of which is such Guarantor's net worth on the effective
date of this Agreement (determined as of the end of the immediately preceding
fiscal reporting period of such Guarantor), and the denominator of which is the
aggregate net worth of all Guarantors on such effective date.
(c) It is the intent of each Guarantor, the Agent and the Banks that
each Guarantor's maximum Guaranteed Obligations shall be in, but not in excess
of:
(i) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code on or within one year from the date on
which any of the Guaranteed Obligations are incurred, the maximum amount that
would not otherwise cause the Guaranteed Obligations (or any other obligations
of such Guarantor to the Agent and the Banks) to be avoidable or unenforceable
against such Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any
state fraudulent transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the date on
which any of the Guaranteed Obligations are incurred, the maximum amount that
would not otherwise cause the Guaranteed Obligations (or any other obligations
of such Guarantor to the Agent and the Banks) to be avoidable or unenforceable
against such Guarantor under any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code;
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount that would not otherwise cause
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Agent and the Banks) to be avoidable or unenforceable against such Guarantor
under such law, statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such
case or proceeding.
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(d) The Guarantors acknowledge and agree that they have
requested that the Banks make credit available to the Borrowers with each
Guarantor expecting to derive benefit, directly and indirectly, from the loans
and other credit extended by the Banks to the Borrowers.
ARTICLE IX.
MISCELLANEOUS
9.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Borrowers and
the Majority Banks and, to the extent any rights or duties of the Agent may be
affected thereby, the Agent, provided, however, that no such amendment,
modification, termination, waiver or consent shall, without the consent of the
Agent and all of the Banks, (i) authorize or permit the extension of time for,
or any reduction of the amount of, any payment of the principal of, or interest
on or the rate at which interest accrues on, the Notes or any installment
thereof or any Letter of Credit reimbursement obligation, or any fees or other
amount payable hereunder, (ii) amend or terminate the respective Commitment of
any Bank set forth on the signature pages hereof (except as provided in Section
9.6(i)) or modify the provisions of this Section regarding the taking of any
action under this Section or the provisions of Section 7.10 or the definition
of Majority Banks or Required Banks, (iii) amend or modify the Guaranty (other
than any amendment solely for the purpose of adding or deleting a Borrowing
Subsidiary) or provide for the release or discharge of any Guarantor's
obligations under the Guaranty, (iv) provide for the release of any material
portion of the collateral subject to any Security Document, (v) amend, modify
or waive any other provision hereof requiring consent of all of the Banks or
(vi) increase the principal amount of the Swing Line Facility.
(b) Any such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Bank that is
in default of any of its obligations, covenants or agreements under this
Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction
from the Banks to the Agent, and, for purposes of determining the Required
Banks or the Majority Banks at any time when any Bank is in default under this
Agreement, the Commitments and Advances of such defaulting Banks shall be
disregarded.
9.2 Notices.
(a) Except as otherwise provided in Section 9.2(c) hereof, all
notices and other communications hereunder shall be in writing and shall be
delivered or sent to the Borrowers in care of the Company at 10800 Roosevelt
Blvd., St. Petersburg, Florida 33716, Attention: Chief Financial Officer,
Facsimile No. (813) 579-8529, and to the Agent and the Banks at the respective
addresses and numbers for notices set forth on the signatures pages hereof, or
to such other address as may be designated by any Borrower, the Agent or any
Bank by notice to the other parties hereto. All notices and other
communications shall be deemed to have been given at the time of actual
delivery thereof to such address, or if sent by certified or registered mail,
postage prepaid, to such address, on the third day after the date of mailing,
or if deposited prepaid with Federal Express or other nationally recognized
overnight
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delivery service prior to the deadline for next day delivery, on the Business
Day next following such deposit, provided, however, that notices to the Agent
shall not be effective until received.
(b) Notices by a Borrower to the Agent with respect to terminations
or reductions of the Commitments pursuant to Section 2.2, requests for Advances
pursuant to Section 2.4, requests for continuations or conversions of Loans
pursuant to Section 2.7 and notices of prepayment pursuant to Section 3.1 shall
be irrevocable and binding on the Borrowers.
(c) Any notice to be given by a Borrower to the Agent pursuant to
Sections 2.4 or 2.7 and any notice to be given by the Agent or any Bank
hereunder, may be given by telephone, and all such notices given by a Borrower
must be immediately confirmed in writing in the manner provided in Section
9.2(a). Any such notice given by telephone shall be deemed effective upon
receipt thereof by the party to whom such notice is to be given.
9.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Bank, nor any delay or failure on the part of the
Agent or any Bank in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice
the Agent's or such Bank's rights and remedies hereunder; nor shall any single
or partial exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege. No right or remedy conferred
upon or reserved to the Agent or any Bank under this Agreement or any other
Loan Document is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative, except as limited by this
Agreement, and in addition to every other right or remedy granted thereunder or
now or hereafter existing under any applicable law. Every right and remedy
granted by this Agreement or the Notes or any Guaranty or by applicable law to
the Agent or any Bank may be exercised from time to time and as often as may be
deemed expedient by the Agent or any Bank and, unless contrary to the express
provisions of this Agreement or the Notes or such Guaranty, irrespective of the
occurrence or continuance of any Default or Event of Default.
9.4 Reliance on and Survival of Various Provisions. All terms, covenants,
agreements, representations and warranties of any Borrower or any Guarantor
made herein, in any Guaranty or in any certificate, report, financial statement
or other document furnished by or on behalf of any Borrower or any Guarantor in
connection with this Agreement shall be deemed to be material and to have been
relied upon by the Banks, notwithstanding any investigation heretofore or
hereafter made by any Bank or on such Bank's behalf, and those covenants and
agreements of the Borrowers set forth in Sections 3.7, 3.9 and 9.5 hereof shall
survive the repayment in full of the Advances and the termination of the
Commitments for a period of one year from such repayment or termination.
9.5 Expenses.
(a) Each of the Borrowers agrees to pay, or reimburse the Agent for
the payment of, on demand, (i) the reasonable fees, without premium, and
expenses of counsel to the Agent, including without limitation the reasonable
fees and expenses of Dickinson Wright PLLC in connection with the preparation,
execution, delivery and administration of the Loan Documents and the
consummation of the transactions contemplated hereby, and in connection with
advising the Agent as to its rights and responsibilities with respect thereto,
and in connection with any amendments, waivers or consents in connection
therewith, and (ii) all stamp and other taxes and fees payable or determined to
be payable by the Agent or any Bank in connection with the execution, delivery,
filing or recording of this Agreement, the Notes and the consummation of the
transactions contemplated hereby, and any and all liabilities of the Agent and
the Banks with respect to or resulting from any delay in paying or omitting to
pay such
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taxes or fees, and (iii) all reasonable costs and expenses of the Agent and the
Banks (including without limitation reasonable fees and expenses of counsel,
which counsel shall be acceptable to the Majority Banks, including without
limitation counsel who are employees of the Agent or the Banks, and whether
incurred through negotiations, legal proceedings or otherwise) in connection
with any Default or Event of Default or the enforcement of, or the exercise or
preservation of any rights under the Loan Documents or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement and (iv) all reasonable costs and expenses of the Agent and the Banks
(including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent from paying any amount
under, or otherwise relating in any way to, any Letter of Credit and any and
all costs and expenses which any of them may incur relative to any payment
under any Letter of Credit.
(b) Each of the Borrowers hereby indemnifies and agrees to hold
harmless the Banks, the Issuing Bank and the Agent, their affiliates and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, damages, losses, liabilities, costs or expenses of any kind
or nature whatsoever which the Banks, the Issuing Bank or the Agent or any such
person may incur or which may be claimed against any of them by reason of or in
connection with any Letter of Credit, and neither any Bank, the Issuing Bank
nor the Agent, their affiliates or any of their respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may
be made of any Letter of Credit or for any acts or omissions of any beneficiary
in connection therewith; (ii) the validity, sufficiency or genuineness of
documents or of any endorsement thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by the Issuing Bank to the beneficiary under any Letter of Credit
against presentation of documents which do not comply with the terms of any
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; (iv) any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit; or (v)
any other event or circumstance whatsoever arising in connection with any
Letter of Credit; provided, however, that the Borrowers shall not be required
to indemnify the Banks, the Issuing Bank and the Agent and such other persons,
and the Issuing Bank shall be liable to the Borrowers to the extent, but only
to the extent, of any direct, as opposed to consequential or incidental,
damages suffered by any Borrower which were caused by (A) the Issuing Bank's
wrongful dishonor of any Letter of Credit after the presentation to it by the
beneficiary thereunder of a draft or other demand for payment and other
documentation strictly complying with the terms and conditions of such Letter
of Credit, or (B) payment by the Issuing Bank to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit to the extent, but only to the extent, that such
payment constitutes gross negligence or willful misconduct of the Issuing Bank.
It is understood that in making any payment under a Letter of Credit, the
Issuing Bank will rely on documents presented to it under such Letter of Credit
as to any and all matters set forth therein without further investigation and
regardless of any notice or information to the contrary, and such reliance and
payment against documents presented under a Letter of Credit substantially
complying with the terms thereof shall not be deemed gross negligence or
willful misconduct of the Issuing Bank in connection with such payment. It is
further acknowledged and agreed that a Borrower may have rights against the
beneficiary or others in connection with any Letter of Credit with respect to
which the Issuing Bank is alleged to be liable and it shall be a precondition
of the assertion of any liability of the Issuing Bank under this Section that
such Borrower shall first have exhausted all remedies in respect of the alleged
loss against such beneficiary and any other parties obligated or liable in
connection with such Letter of Credit and any related transactions.
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(c) Each of the Borrowers hereby indemnifies and agrees to hold
harmless the Banks and the Agent, their affiliates and their respective
officers, directors, employees and agents, from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature
whatsoever (including reasonable attorneys fees and disbursements incurred in
connection with any investigative, administrative or judicial proceeding
whether or not such person shall be designated as a party thereto) which the
Banks or the Agent or any such person may incur or which may be claimed against
any of them by reason of or in connection with entering into this Agreement or
the transactions contemplated hereby, including without limitation those
arising under Environmental Laws; provided, however, that the Borrowers shall
not be required to indemnify any such Bank and the Agent or such other person,
to the extent, but only to the extent, that such claim, damage, loss,
liability, cost or expense is attributable to the gross negligence or willful
misconduct of such Bank or the Agent, as the case may be.
(d) In consideration of the execution and delivery of this Agreement
by each Bank and the extension of the Commitments, each of the Borrowers hereby
indemnifies, exonerates and holds the Agent, each Bank, their affiliates and
each of their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Advance;
(ii) the entering into and performance of this Agreement and any
other agreement or instrument executed in connection herewith by any of the
Indemnified Parties (including without limitation any action brought by or on
behalf of any Borrower as the result of any determination by the Majority Banks
not to fund any Advance);
(iii) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its Subsidiaries
of any portion of the stock or assets of any person, whether or not the Agent
or such Bank is party thereto;
(iv) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the release by any Borrower or any of its
Subsidiaries of any Hazardous Material; or
(v) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releasing from, any real property
owned or operated by any Borrower or any of its Subsidiaries of any Hazardous
Material (including any losses, liabilities, damages, injuries, costs, expenses
or claims asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, such Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of any Borrower conducted subsequent to a foreclosure on
such property solely by reason of the relevant Indemnified Party's gross
negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, each of the Borrowers hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of
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the Indemnified Liabilities which is permissible under applicable law. Each
of the Borrowers shall be obligated to indemnify the Indemnified Parties for
all Indemnified Liabilities subject to and pursuant to the foregoing
provisions, regardless of whether the Company or any of its Subsidiaries had
knowledge of the facts and circumstances giving rise to such Indemnified
Liability.
9.6 Successors and Assigns; Additional Banks.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, provided that
no Borrower may, without the prior consent of the Banks, assign its rights or
obligations hereunder or under the Notes and the Banks shall not be obligated
to make any Loan hereunder to any entity other than the Borrowers.
(b) Any Bank may, without the prior consent of the Company or the
Agent sell to any financial institution or institutions, and such financial
institution or institutions may further sell, a participation interest
(undivided or divided) in, the Advances and such Bank's Commitment and rights
and benefits under this Agreement and the other Loan Documents, and to the
extent of that participation interest such participant or participants shall
have the same rights and benefits against the Borrowers under Section 3.7, 3.9
and 6.2(c) as it or they would have had if such participant or participants
were the Bank making the Loans to the Borrowers hereunder, provided, however,
that (i) such Bank's obligations under this Agreement shall remain unmodified
and fully effective and enforceable against such Bank, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Bank shall remain the holder of its Notes for all
purposes of this Agreement, (iv) the Borrowers, the Agent and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and (v) such Bank
shall not grant to its participant any rights to consent or withhold consent to
any action taken by such Bank or the Agent under this Agreement other than
action requiring the consent of all of the Banks hereunder.
(c) The Agent from time to time in its sole discretion may appoint
agents for the purpose of servicing and administering this Agreement and the
transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under this Agreement, the Notes or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. Each Borrower hereby consents
to the appointment of such agent and agrees to provide all such notices,
reports and other documents and to otherwise deal with such agent acting on
behalf of the Agent in the same manner as would be required if dealing with the
Agent itself.
(d) Each Bank may, with the prior consent of the Company and the
Agent, (in both cases, which consents shall not be unreasonably withheld and,
in the case of the Company, may not be withheld upon the occurrence and during
the continuance of an Event of Default) assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a uniform, and not a varying, percentage
of all rights and obligations, (ii) except in the case of an assignment of all
of a Bank's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000, and in
integral multiples of $1,000,000 thereafter, or such lesser amount as the
Company and the Agent may consent to, (iii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit H hereto (an
"Assignment and
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Acceptance"), together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,500, and (iv) any Bank may without the
consent of the Company or the Agent, and without paying any fee, assign to any
Affiliate of such Bank that is a bank or financial institution or to another
Bank all or a portion of its rights and obligations under this Agreement. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and (y) the
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the remaining
portion of an assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).
(e) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vi) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required
to be performed by it as a Bank.
(f) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to
and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Advances owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company, the Borrowing Subsidiaries, the Agent and the Banks may
treat each person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new
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Note to the order of such assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment hereunder, a new Note to the order of the assigning Bank
in an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit H hereto.
(h) No Borrower shall be liable for any costs or expenses of any
Bank in effectuating any participation or assignment under this Section 9.6.
(i) Notwithstanding anything in this Agreement to the contrary, the
total amount of the Commitments may be increased from time to time to an amount
not to exceed $300,000,000 with the consent of the Company and the Majority
Banks, through one or more Additional Banks (as hereinafter defined) or
increases in the Commitments of one or more existing Banks, or any combination
thereof, provided that no Bank's commitment shall be increased without its
consent. In connection with any such increase in the Commitments, the Company
and the Agent may from time to time designate additional financial institutions
(the "Additional Banks") to be parties to this Agreement and to become a Bank
hereunder upon the execution and delivery to the Agent by each such Additional
Bank and the Company of an Assumption Agreement in the form of Exhibit I hereto
(an "Assumption Agreement"). Any Additional Bank shall become a party to this
Agreement and be considered a Bank hereunder for all purposes if (a) it shall
execute and deliver to the Agent an Assumption Agreement, (b) it shall make
Revolving Credit Advances to the Borrowers in the principal amount which bears
the same ratio to the amounts of the Revolving Credit Advances of the other
Banks then outstanding as the Commitment of such Additional Bank bears to the
then Commitments of such other Banks, and (c) a copy of such Assumption
Agreement and evidence satisfactory to the Agent of the making of such
Revolving Credit Advances shall be furnished to the Banks, together with a
schedule showing the Commitment amount of each Bank and the new percentage of
Commitments of each Bank. In connection with any such increase in the total
Commitments whether through Additional Banks and/or increases in the
Commitments of existing Banks, the Borrowers, (x) the Banks and the Agent shall
execute and deliver such other agreements, instruments and documents, including
without limitation, new Revolving Credit Notes reflecting the Commitment amount
of each Bank going forward, and amendments to this Agreement, as may be
reasonably be requested to give effect to and evidence such increase and (y)
the Agent shall reallocate any outstanding Revolving Credit Advances and the
Borrowers agree to make any payments owing to any Bank under Section 3.9 as a
result of such reallocation.
(j) The Banks may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.6, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers.
(k) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time create a security interest in, or assign, all or any
portion of its rights under this Agreement (including, without limitation, the
Loans owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System; provided that such creation of a security interest or
assignment shall not release such Bank from its obligations under this
Agreement.
9.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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9.8 Governing Law; Consent to Jurisdiction. This Agreement is a contract
made under, and shall be governed by and construed in accordance with, the law
of the State of Illinois applicable to contracts made and to be performed
entirely within such State and without giving effect to choice of law
principles of such State. Each Borrower further agrees that any legal action or
proceeding with respect to this Agreement or the Notes or the transactions
contemplated hereby shall be brought in any court of the State of Illinois, or
in any court of the United States of America sitting in Illinois, and each
Borrower hereby irrevocably submits to and accepts generally and
unconditionally the jurisdiction of those courts with respect to its person and
property, and irrevocably appoints Chris Lewis, whose address is set forth in
Section 9.2, as its agent for service of process and irrevocably consents to
the service of process in connection with any such action or proceeding by
personal delivery to such agent or to the Borrowers or by the mailing thereof
by registered or certified mail, postage prepaid to the Borrowers at the
address set forth in Section 9.2. Nothing in this paragraph shall affect the
right of the Banks and the Agent to serve process in any other manner permitted
by law or limit the right of the Banks or the Agent to bring any such action or
proceeding against the Borrowers or property in the courts of any other
jurisdiction. Each Borrower hereby irrevocably waives any objection to the
laying of venue of any such suit or proceeding in the above described courts.
9.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of
reference only and shall in no way modify any of the terms or provisions
hereof.
9.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
9.11 Integration and Severability. This Agreement and the Notes embody
the entire agreement and understanding between the Borrowers and the Agent and
the Banks, and supersede all prior agreements and understandings, relating to
the subject matter hereof. In case any one or more of the obligations of any
Borrower under this Agreement or the Notes shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of such Borrower and the other Borrowers shall not in
any way be affected or impaired thereby, and such invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or
enforceability of the obligations of the Borrowers under this Agreement or the
Notes in any other jurisdiction.
9.12 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to,
or would be otherwise within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is
taken or such condition exists.
9.13 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by any Borrower exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to
be fulfilled shall be reduced to an amount computed at the highest rate of
interest
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permissible under applicable law, and if for any reason whatsoever any Bank
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of such Bank's Advances outstanding hereunder (whether or not then
due and payable) and not to the payment of interest, or shall be refunded to
the Borrowers if such principal and all other obligations of the Borrowers to
such Bank have been paid in full.
9.14 Joint and Several Obligations; Contribution Rights; Savings Clause.
(a) Notwithstanding anything to the contrary set forth herein or in
any Note or in any other Loan Document, the obligations of the Domestic
Borrowers hereunder and under the Notes and the other Loan Documents are joint
and several.
(b) If any Borrower makes a payment in respect of the Bank
Obligations it shall have the rights of contribution set forth below against
the other Borrowers; provided that no Borrower shall exercise its right of
contribution until all the Bank Obligations shall have been finally paid in
full in cash. If any Borrower makes a payment in respect of the Bank
Obligations that is smaller in proportion to its Payment Share (as hereinafter
defined) than such payments made by the other Borrowers are in proportion to
the amounts of their respective Payment Shares, the Borrower making such
proportionately smaller payment shall, when permitted by the preceding
sentence, pay to the other Borrowers an amount such that the net payments made
by the Borrower in respect of the Bank Obligations shall be shared among the
Borrowers pro rata in proportion to their respective Payment Shares. If any
Borrower receives any payment that is greater in proportion to the amount of
its Payment Shares than the payments received by the other Borrowers are in
proportion to the amounts of their respective Payment Shares, the Borrower
receiving such proportionately greater payment shall, when permitted by the
second preceding sentence, pay to the other Borrowers an amount such that the
payments received by the Borrowers shall be shared among the Borrowers pro rata
in proportion to their respective Payment Shares. Notwithstanding anything to
the contrary contained in this paragraph or in this Agreement, no liability or
obligation of any Borrower that shall accrue pursuant to this paragraph shall
be paid nor shall it be deemed owed pursuant to this paragraph until all of the
Bank Obligations shall be finally paid in full in cash.
For purposes hereof, the "Payment Share" of each Borrower shall be
the sum of (a) the aggregate proceeds of the Bank Obligations received by such
Borrower plus (b) the product of (i) the aggregate Bank Obligations remaining
unpaid on the date such Bank Obligations become due and payable in full,
whether by stated maturity, acceleration, or otherwise (the "Determination
Date") reduced by the amount of such Bank Obligations attributed to such
Borrower pursuant to clause (a) above, times (ii) a fraction, the numerator of
which is such Borrower's net worth on the effective date of this Agreement
(determined as of the end of the immediately preceding fiscal reporting period
of such Borrower), and the denominator of which is the aggregate net worth of
all Borrowers on such effective date.
(c) It is the intent of each Borrower, the Agent and the Banks that
each Borrower's maximum Bank Obligations shall be, but not in excess of:
(i) in a case or proceeding commenced by or against such
Borrower under the Bankruptcy Code on or within one year from the date on which
any of the Bank Obligations are incurred, the maximum amount that would not
otherwise cause the Bank Obligations (or any other obligations of such Borrower
to the Agent and the Banks) to be avoidable or unenforceable against such
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Borrower under (A) Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in such
case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Borrower under the Bankruptcy Code subsequent to one year from the date on
which any of the Bank Obligations are incurred, the maximum amount that would
not otherwise cause the Bank Obligations (or any other obligations of such
Borrower to the Agent and the Banks) to be avoidable or unenforceable against
such Borrower under any state fraudulent transfer or fraudulent conveyance act
or statute applied in any such case or proceeding by virtue of Section 544 of
the Bankruptcy Code;
(iii) in a case or proceeding commenced by or against such
Borrower under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount that would not otherwise cause
the Bank Obligations (or any other obligations of such Borrower to the Agent
and the Banks) to be avoidable or unenforceable against such Borrower under
such law, statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such
case or proceeding.
(d) The Domestic Borrowers acknowledge and agree that they have
requested that the Banks make credit available to the Borrowers with each
Domestic Borrower expecting to derive benefit, directly and indirectly, from
the loans and other credit extended by the Banks to the Borrowers.
(e) The joint and several obligations of the Domestic Borrowers
described in this Section 9.14 shall remain in full force and effect without
regard to and shall not be released, affected or impaired by: (i) any
amendment, assignment, transfer, modification of or addition or supplement to
the Bank Obligations, this Agreement, any Note or any other Loan Document,
except to the extent any such amendment, assignment, transfer or modification
specifically relates to the matters set forth in Section 9.14; (ii) any
extension, indulgence, increase in the Bank Obligations or other action or
inaction in respect of any of the Loan Documents or otherwise with respect to
the Bank Obligations, or any acceptance of security for, or guaranties of, any
of the Bank Obligations or Loan Documents, or any surrender, release, exchange,
impairment or alteration of any such security or guaranties including without
limitation the failing to perfect a security interest in any such security or
abstaining from taking advantage or of realizing upon any guaranties or upon
any security interest in any such security; (iii) any default by any Borrower
under, or any lack of due execution, invalidity or unenforceability of, or any
irregularity or other defect in, any of the Loan Documents; (iv) any waiver by
the Banks or any other person of any required performance or otherwise of any
condition precedent or waiver of any requirement imposed by any of the Loan
Documents, any guaranties or otherwise with respect to the Bank Obligations;
(v) any exercise or non-exercise of any right, remedy, power or privilege in
respect of this Agreement or any of the other Loan Documents; (vi) any sale,
lease, transfer or other disposition of the assets of any Borrower or any
consolidation or merger of any Borrower with or into any other person,
corporation, or entity, or any transfer or other disposition by any Borrower or
any other holder of any shares of capital stock of any Borrower; (vii) any
bankruptcy, insolvency, reorganization or similar proceedings involving or
affecting any Borrower; (viii) the release or discharge of any Borrower from
the performance or observance of any agreement, covenant, term or condition
under any of the Bank Obligations or contained in any of the Loan Documents by
operation of law; or (ix) any other cause whether similar or dissimilar to the
foregoing which, in the absence of this provision, would release, affect or
impair the obligations, covenants, agreements and duties of any Borrower
hereunder, including without limitation any act or omission by the Agent, or
the Bank or any other any person which increases
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the scope of such Borrower's risk; and in each case described in this paragraph
whether or not any Borrower shall have notice or knowledge of any of the
foregoing, each of which is specifically waived by each Borrower. Each Borrower
warrants to the Banks that it has adequate means to obtain from each other
Borrower on a continuing basis information concerning the financial condition
and other matters with respect to the Borrowers and that it is not relying on
the Agent or the Banks to provide such information either now or in the future.
9.15 Waivers, Etc. Each Borrower unconditionally waives: (a) notice of
any of the matters referred to in Section 9.14(e) above; (b) all notices which
may be required by statute, rule or law or otherwise to preserve any rights of
the Agent, or the Bank, including, without limitation, presentment to and
demand of payment or performance from the other Borrowers and protect for
non-payment or dishonor; (c) any right to the exercise by the Agent, or the
Bank of any right, remedy, power or privilege in connection with any of the
Loan Documents; (d) any requirement that the Agent, or the Bank, in the event
of any default by any Borrower, first make demand upon or seek to enforce
remedies against, such Borrower or any other Borrower before demanding payment
under or seeking to enforce this Agreement against any other Borrower; (e) any
right to notice of the disposition of any security which the Agent, or the Bank
may hold from any Borrower or otherwise and any right to object to the
commercial reasonableness of the disposition of any such security; and (f) all
errors and omissions in connection with the Agent, or the Bank's administration
of any of the Bank Obligations, any of the Loan Documents', or any other act or
omission of the Agent, or the Bank which changes the scope of the Borrower's
risk, except as a result of the gross negligence or willful misconduct of the
Agent, or the Bank. The obligations of each Borrower hereunder shall be
complete and binding forthwith upon the execution of this Agreement and subject
to no condition whatsoever, precedent or otherwise, and notice of acceptance
hereof or action in reliance hereon shall not be required.
9.16 Relationship of this Agreement to the Original Loan Agreement. This
Agreement shall become effective on the Effective Date. On the Effective Date,
the outstanding Advances shall be considered a part of the Advances under this
Agreement for all purposes, as if made in accordance with and pursuant to the
terms of this Agreement. On and after the Effective Date, (i) no further fees
shall accrue to the Agent or Banks under the Original Loan Agreement and all
fees accrued to (but excluding) the Effective Date under such agreement shall
constitute accrued fees hereunder and be payable in accordance with the terms
hereof and (ii) the rights and obligations of the parties hereto shall be
governed solely by this Agreement, except in respect of any rights or
obligations arising prior to the Effective Date and which shall survive the
Effective Date, and except that each Borrower hereby reaffirms, and is hereby
deemed to make as of the Effective Date under and as defined in the Original
Loan Agreement, all representations and warranties made as of the Effective
Date under and as defined in the Original Loan Agreement, to the extent not
otherwise modified by this Agreement. All of the Advances and other Bank
Obligations are a continuation of, or replace and refund, as the case may be,
the "Advances" and "Bank Obligations" under and as defined in the Original Loan
Agreement, and all Advances shall be entitled to, and are secured by, the same
collateral with the same priority, as the "Advances" and other "Bank
Obligations" under and as defined in the Original Loan Agreement. This
Agreement amends and restates in full the terms and provisions of the Original
Loan Agreement and is not intended to constitute a novation or satisfaction of
or a renunciation or cancellation or other discharge or the indebtedness and
other liabilities and obligations created under and evidenced by the Original
Loan Agreement.
9.17 Unification of Certain Currencies. Notwithstanding the commencement
of the third stage of European Monetary Union ("EMU") (which as of the date of
this Agreement is scheduled to occur on January 1, 1999), all Advances
denominated in any Permitted Currency shall continue to be so
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denominated, interest rates with respect to Eurocurrency Loans denominated in
any Permitted Currency shall continue to be determined by reference to such
Permitted Currency in accordance with the procedures specified in the
definition of "Eurocurrency Rate", all calculations with respect to Advances
outstanding in any Permitted Currency shall continue to be made in units of
such currency, and the obligations of the Borrowers with respect to payments of
principal and interest on Advances outstanding in any Permitted Currency shall
continue to be payable in such currency, all without regard to the conversion
rates or rounding rules referred to in European Council Regulation 96/0249
(CNS). Following the commencement of the third stage of EMU and prior to the
first issuance of euro-bank notes by the European Central Bank pursuant to
Article 105A(1) of the Treaty Establishing the European Community, as amended,
(which as of the date of this Agreement is scheduled to occur on January 1,
2002) each of the Borrowers, the Banks, and the Agent agrees to negotiate in
good faith an amendment to this Agreement, satisfactory in form and substance
to each of the Borrowers, the Banks, and the Agent to modify this Agreement in
light of EMU.
9.18 Waiver of Jury Trial. The Borrowers, the Banks and the Agent, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of this Agreement or
any other Loan Document or any of the transactions contemplated by this
Agreement or any course of conduct, dealing, statements (whether oral or
written) or actions of any of them. Neither any Borrower, any Bank nor the
Agent shall seek to consolidate, by counterclaim or otherwise, any such action
in which a jury trial has been waived with any other action in which a jury
trial cannot be or has not been waived. These provisions shall not be deemed to
have been modified in any respect or relinquished by any party hereto except by
a written instrument executed by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above, but to be
effective as of on the ____ day of August, 1998, which shall be the Effective
Date of this Agreement, notwithstanding the day and year first above written.
WITNESSES: JABIL CIRCUIT, INC.
By:
- ----------------------------------- ----------------------------------
PRINT NAME: Its:
------------------------ ------------------------------
JABIL CIRCUIT LTD.
By:
- ----------------------------------- ----------------------------------
PRINT NAME: Its:
------------------------ ------------------------------
JABIL CIRCUIT OF MICHIGAN, INC.
By:
- ----------------------------------- ----------------------------------
PRINT NAME: Its:
------------------------ ------------------------------
Address for Notices: THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank and as Agent
One First National Plaza
Mail Suite ___________
Chicago, Illinois 60670 By:
----------------------------------
Attention:
------------------------- Its:
Facsimile No.: (312) 732-_______ ------------------------------
Telephone No.: (312) 732-_______
Commitment Amount: $45,000,000
Initial Percentage
of Commitments: 20%
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Address for Notices: SUNTRUST BANK, TAMPA BAY
300 First Avenue South
St. Petersburg, Florida By:
----------------------------------
Attention: Frank Coe,
Corporate Banking Division Its:
-----------------------------
Facsimile No.: (813) 892-4810
Telephone No.: (813) 892-4954
Commitment Amount: $40,000,000
Initial Percentage
of Commitments: 17.78%
Address for Notices: COMERICA BANK
500 Woodward Avenue
Detroit, Michigan 48226 By:
----------------------------------
Attention: Marty Ellis
Its:
Facsimile No.: (313) 222-3330 ------------------------------
Telephone No.: (313) 222-6122
Commitment Amount: $22,500,000
Initial Percentage
of Commitments: 10%
Address for Notices: BANQUE NATIONALE de PARIS
333 Clay Street, Suite 3400
Houston, Texas 77002 By:
----------------------------------
Attention: John Stacy
Its:
Facsimile No.: (713) 659-1414 ------------------------------
Telephone No.: (713) 951-1222
Commitment Amount: $22,500,000
Initial Percentage
of Commitments: 10%
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Address for Notices: SOUTHTRUST BANK, NATIONAL ASSOCIATION
420 North 20th Street
Birmingham, Alabama By:
----------------------------------
Attention: Hal Clemmer
Its:
Facsimile No.: (205) 254-5022 ------------------------------
Telephone No.: (205) 254-5386
Commitment Amount: $20,000,000
Initial Percentage
of Commitments: 8.89%
Address for Notices: CREDIT LYONNAIS ATLANTA AGENCY
One Peachtree Center
303 Peachtree Street, N.W., Suite 4400 By:
Atlanta, Georgia 30308 ----------------------------------
Attention: Christina Earnshaw Its:
------------------------------
Facsimile No.: (404) 584-5249
Telephone No.: (404) 584-3700
Commitment Amount: $20,000,000
Initial Percentage
of Commitments: 8.89%
Address for Notices: NATIONSBANK, N.A.
901 Main Street, 67th Floor
Dallas, Texas 75202 By:
----------------------------------
Attention: Timothy M. O'Connor
Its:
Facsimile No.: (214) 508-0980 ---------------------------------
Telephone No.: (214) 508-9419
Commitment Amount: $20,000,000
Initial Percentage
of Commitments: 8.89%
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Address for Notices: CREDITO ITALIANO SpA
375 Park Avenue
New York, New York 10152 By:
----------------------------------
Attention: Harmon Butler
Its:
Facsimile No.: (212) 546-9675 ------------------------------
Telephone No.: (212) 546-9611
Commitment Amount: $20,000,000 By:
----------------------------------
Initial Percentage
of Commitments: 8.89% Its:
------------------------------
Address for Notices: DEUTSCHE GENOSSENSCHAFTSBANK,
Cayman Islands Branch
303 Peachtree Street NE, Suite 2900
Atlanta, Georgia 30308 By:
----------------------------------
Attention: James Yager
Its:
Facsimile No.: (404) 524-4006 ------------------------------
Telephone No.: (414) 524-3966
Commitment Amount: $15,000,000 By:
----------------------------------
Initial Percentage
of Commitments: 6.66% Its:
------------------------------
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