<PAGE>
EXHIBIT 10(aj)
EXECUTION COPY
$150,000,000
CREDIT AGREEMENT
Dated as of November 2, 2000
Among
INTERNATIONAL RECTIFIER CORPORATION,
AS COMPANY,
and
THE INITIAL LENDERS NAMED HEREIN,
BNP PARIBAS
as SOLE ARRANGER, ADMINISTRATIVE AGENT,
and INITIAL ISSUING BANK
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TABLE OF CONTENTS
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ARTICLE I
SECTION 1.01 Certain Defined Terms.......................................................................1
SECTION 1.02 Computation of Time Periods; Other Definitional Provisions.................................20
SECTION 1.03 Accounting Terms...........................................................................20
ARTICLE II
SECTION 2.01 The Advances and the Letters of Credit.....................................................20
SECTION 2.02 Making the Revolving Credit Advances.......................................................21
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit.........................23
SECTION 2.04 The Competitive Bid Advances...............................................................24
SECTION 2.05 Repayment of Advances......................................................................27
SECTION 2.06 Termination or Reduction of the Commitments................................................28
SECTION 2.07 Prepayments................................................................................28
SECTION 2.08 Interest on Revolving Credit Advances and Letter of Credit Advances........................29
SECTION 2.09 Fees.......................................................................................30
SECTION 2.10 Conversion of Revolving Credit Advances....................................................31
SECTION 2.11 Increased Costs, Etc.......................................................................32
SECTION 2.12 Payments and Computations..................................................................34
SECTION 2.13 Taxes......................................................................................35
SECTION 2.14 Sharing of Payments, Etc...................................................................37
SECTION 2.15 Use of Proceeds............................................................................38
SECTION 2.16 Evidence of Debt...........................................................................38
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(ii)
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ARTICLE III
SECTION 3.01 Conditions Precedent to Effectiveness of Section 2.01, 2.03 and 2.04.......................39
SECTION 3.02 Initial Loan to Each Designated Subsidiary.................................................42
SECTION 3.03 Conditions Precedent to Each Revolving Credit Borrowing and Issuance.......................42
SECTION 3.04 Conditions Precedent to Each Competitive Bid Borrowing.....................................43
SECTION 3.05 Determinations Under Section 3.01..........................................................44
ARTICLE IV
SECTION 4.01 Representations and Warranties of the Company..............................................44
ARTICLE V
SECTION 5.01 Affirmative Covenants......................................................................48
SECTION 5.02 Negative Covenants.........................................................................52
SECTION 5.03 Reporting Requirements.....................................................................57
SECTION 5.04 Financial Covenants........................................................................59
ARTICLE VI
SECTION 6.01 Events of Default..........................................................................60
SECTION 6.02 Actions in Respect of the Letters of Credit upon Default...................................63
ARTICLE VII
SECTION 7.01 Unconditional Guaranty.....................................................................63
SECTION 7.02 Guaranty Absolute..........................................................................63
SECTION 7.03 Waivers and Acknowledgments................................................................64
SECTION 7.04 Subrogation................................................................................65
SECTION 7.05 Subordination..............................................................................66
SECTION 7.06 Survival...................................................................................66
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(iii)
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ARTICLE VIII
SECTION 8.01 Authorization and Action...................................................................67
SECTION 8.02 Agents' Reliance, Etc......................................................................67
SECTION 8.03 BNP Paribas and Affiliates.................................................................67
SECTION 8.04 Lender Party Credit Decision...............................................................68
SECTION 8.05 Indemnification............................................................................68
SECTION 8.06 Successor Agents...........................................................................69
SECTION 8.07 Other Agents...............................................................................69
ARTICLE IX
SECTION 9.01 Amendments, Etc............................................................................70
SECTION 9.02 Notices, Etc...............................................................................70
SECTION 9.03 No Waiver; Remedies........................................................................71
SECTION 9.04 Costs and Expenses.........................................................................71
SECTION 9.05 Right of Set-off...........................................................................72
SECTION 9.06 Binding Effect.............................................................................72
SECTION 9.07 Assignments, Designations and Participations...............................................72
SECTION 9.08 Confidentiality............................................................................76
SECTION 9.09 Execution in Counterparts..................................................................76
SECTION 9.10 No Liability of the Issuing Bank...........................................................76
SECTION 9.11 Designated Subsidiaries....................................................................76
SECTION 9.12 Jurisdiction, Etc..........................................................................77
SECTION 9.13 Governing Law..............................................................................77
SECTION 9.14 Judgment...................................................................................77
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(iv)
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SECTION 9.15 Substitution of Currency...................................................................78
SECTION 9.16 Waiver of Jury Trial.......................................................................79
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(v)
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(a)(ii)(A)(2) Condition subsequent Non-U.S. Subsidiary Guarantors
Schedule 3.01(a)(iii) - Condition precedent U.S. Subsidiary Guarantors
Schedule 3.01(a)(iv) - Condition precedent Non-U.S. Subsidiary Guarantors
Schedule 3.01(a)(vii) - Secretary of State Certificates
Schedule 4.01(b) - Subsidiaries of Loan Parties
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(h) - Litigation
Schedule 4.01(l)(i) - Environmental Compliance
Schedule 4.01(l)(ii) - Properties on NPL, CERCLIS or analogous list
Schedule 4.01(l)(iii) - Release of Hazardous Materials
Schedule 4.01(m) - Existing Liens
Schedule 5.02(e)(iv) - Sales of Assets
Schedule 5.02(f)(vi) - Investments
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(vi)
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Designation Letter
Exhibit F-1 - Form of Security Agreement
Exhibit F-2 - Form of U.S Subsidiary Guaranty
Exhibit F-3 - Form of Non-U.S Subsidiary Guaranty
Exhibit I-1 - Form of Opinion(s) of Outside Counsel to the Loan Parties
Exhibit I-2 - Form of Opinion of General Counsel to the Loan Parties
Exhibit J - Form of Opinion of Local Counsel to the Loan Parties
Exhibit M - Form of Designation Agreement
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 2, 2000 among International
Rectifier Corporation, a Delaware corporation (the "COMPANY"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "INITIAL LENDERS"), BNP Paribas ("BNP
PARIBAS"), as the syndication agent and sole arranger ("SYNDICATION AGENT" and
"SOLE ARRANGER"), as the initial issuing bank (the "INITIAL ISSUING BANK") and
as administrative agent (together with any successors appointed pursuant to
Article VIII, the "ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter
defined).
PRELIMINARY STATEMENTS:
(1) The Company has requested that the Lender Parties lend to
the Company up to $150,000,000 in a multicurrency facility in order to provide
working capital for the Company and its Subsidiaries and for other general
corporate purposes permitted by this Agreement.
(2) The Lender Parties have indicated their willingness to agree
to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACQUISITION EXPENDITURES" means, for any period, all cash
expenditures made, directly or indirectly, by the Company or any of its
Subsidiaries for Permitted Acquisitions.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means (a) in the case of Advances
denominated in Dollars, the account of the Administrative Agent maintained
by the Administrative Agent at the Federal Reserve Bank of New York, 33
Liberty Street, New York, New York 10048, ABA No. 026007689, for further
credit to Account No. 750420-701-03 Reference: International Rectifier
Corporation, (b) in the case of Advances denominated in any Foreign
Currency, the account of the Administrative Agent designated in writing
from time to time by the Administrative Agent to the Company and the
Lenders for such purpose and (c) in any such case, such other account of
the Administrative Agent as is designated in writing from time to time by
the Administrative Agent to the Company and the Lenders for such purpose or
such other account maintained by the Administrative Agent and designated by
the Administrative Agent in a written notice to the Lender Parties and the
Company.
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2
"ADVANCE" means a Revolving Credit Advance, a Letter of Credit Advance
or a Competitive Bid Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"AGENTS" means the Administrative Agent, the Syndication Agent and any
Person appointed by the Administration Agent pursuant to Section 8.07, and
"AGENT" means any of them, as the case may be.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "MASTER AGREEMENT"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party", and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the mark-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Administrative Agent based on the settlement price of
such Hedge Agreement on such date of determination; or (c) in all other
cases, the mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party party to such Hedge Agreement determined by the Administrative
Agent as the amount, if any, by which (i) the present value of the future
cash flows to be paid by such Loan Party or Subsidiary exceeds (ii) the
present value of the future cash flows to be received by such Loan Party or
Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective meanings set
forth in the above described Master Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurocurrency Lending Office in the case of
a Eurocurrency Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Administrative
Agent as its Applicable Lending Office with respect to such Competitive Bid
Advance.
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3
"APPLICABLE MARGIN" means, for any date, a percentage per annum
determined by reference to the Leverage Ratio of the Company and its
Subsidiaries for the Rolling Period ended on or most recently prior to such
date as set forth below:
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Leverage Base Rate Eurocurrency Rate
Ratio Advances Advances
Revolving Credit Facility
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LEVEL I
less than 0.50 to 1.00 0.25% 1.25%
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LEVEL II
less than 1.50 to 1.00 but 0.375% 1.375%
greater than or equal to
0.50 to 1.00
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LEVEL III
less than 2.50 to 1.00 but 0.625% 1.625%
greater than or equal to
1.50 to 1.00
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LEVEL IV
greater than or equal to 1.125% 2.125%
2.50 to 1.00
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The Applicable Margin for each Advance shall be determined by reference to
the Leverage Ratio in effect from time to time; PROVIDED, HOWEVER, that (i)
no change in the Applicable Margin shall be effective until three Business
Days after the date on which the Administrative Agent receives the
financial information required to be delivered pursuant to Section 5.03(b),
(ii) the Applicable Margin shall be at Level IV for so long as the Company
has not submitted to the Administrative Agent the information described in
clause (i) of this proviso as and when required under Section 5.03(b) and
(iii) the Applicable Margin shall be not less than that for Level II for
any date prior to January 1, 2001.
"APPROVED FUND" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by BNP Paribas in
New York, New York, from time to time, as its prime rate (and such
term shall not be construed to be its best or most favorable rate); or
(b) 0.50% per annum above the Federal Funds Rate.
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4
"BASE RATE ADVANCE" means a Revolving Credit Advance that bears
interest as provided in Section 2.08(a)(i).
"BNP PARIBAS" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER" means the Company or any Designated Subsidiary, as the
context requires.
"BORROWING" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City or San Francisco, California
and, if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealings are carried on in the London interbank market
and banks are open for business in London and in the country of issue of
the currency of such Eurocurrency Rate Advance or LIBO Rate Advance (or, in
the case of an Advance denominated in the Euro, in Frankfurt, Germany) and,
if the applicable Business Day relates to any Local Rate Advances on which
banks are open for business in the country of issue of the currency of such
Local Rate Advance.
"CAPITAL EXPENDITURES" means, for any Person for any period, all cash
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property
or improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet
of such Person, PROVIDED, HOWEVER, that Capital Expenditures shall not
include Acquisition Expenditures.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means assets that are reported by the Company as
cash, cash equivalents or short-term investments in its most recent
quarterly report on Form-10Q or annual report on Form-10K filed with the
Securities and Exchange Commission and, in the case of such short-term
investments rated at least "Baa3-" or "Prime-3" (or the then equivalent
grade) by Moody's or "BBB-" or "A-1" (or the then equivalent grade) by S&P
or "BBB-" or "F3" (or the then equivalent) by Fitch IBCA, Inc.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Interests of the Company (or other
securities convertible into such Voting Interests) representing 35% or more
of the combined voting power of all Voting Interests of the Company; or (b)
during any period of up to 24 consecutive months, commencing after the date
of this Agreement, individuals who at the beginning of such 24-month period
were directors of the Company shall cease (other than due to death or
disability) for any reason to constitute a majority of the board of
directors of the Company (except to the extent that individuals who at the
beginning of such 24-month period
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5
were replaced by individuals (x) elected by 66-2/3% of the remaining
members of the board of directors of the Company or (y) nominated for
election by a majority of the remaining members of the board of directors
of the Company and thereafter elected as directors by the shareholders of
the Company); or (c) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of control over Voting Interests of the Company (or other
securities convertible into such Voting Interests) representing 35% or more
of the combined voting power of all Voting Interests of the Company.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"COLLATERAL DOCUMENTS" means each Security Agreement (including any
Security Agreement delivered under Section 5.01(j)) and each other
agreement (including, without limitation, each pledge agreement, charge or
mortgage by the Company for which the collateral is shares of any Non-U.S.
Subsidiary) that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"COMMITTED CURRENCIES" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of the Federal Republic
of Germany, lawful currency of the Republic of France, lawful currency of
Japan, the lawful currency of the European Economic and Monetary Union, the
lawful currency of the Italian Republic, the lawful currency of the
Republic of Singapore.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower, which may only be made in a Foreign Currency, as part of a
Competitive Bid Borrowing resulting from the competitive bidding procedure
described in Section 2.04 and refers to a Fixed Rate Advance, a LIBO Rate
Advance or a Local Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.04.
"COMPETITIVE BID NOTE" means a promissory note of a Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to the Administrative Agent or any Lender Party or the
Administrative Agent or that any Lender Party otherwise obtains on a
confidential basis, but does not include any such information that is or
becomes generally available to the public or that is or becomes available
to the Administrative Agent or such Lender Party from a source other than
the Loan Parties or an agent of a Loan Party.
"CONSOLIDATED" refers, with respect to any Person, to the
consolidation of accounts of such Person and its Subsidiaries in accordance
with GAAP.
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6
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.10.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all Obligations, contingent or
otherwise, of such Person for the deferred purchase price of property or
services (other than trade payables not overdue by more than 90 days, and
that do not exceed $3,000,000 in the aggregate for all such trade payables,
that are incurred in the ordinary course of such Person's business), (c)
all Obligations, contingent or otherwise, of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all Obligations,
contingent or otherwise, of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations,
contingent or otherwise, of such Person as lessee under Capitalized Leases,
(f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations of
such Person to purchase, redeem, retire, defease or otherwise make any
payment in cash in respect of any Equity Interests in such Person or any
other Person or any warrants, rights or options to acquire such capital
stock valued, in the case of Redeemable Preferred Interests, at the greater
of its voluntary or involuntary liquidation preference PLUS accrued and
unpaid dividends, (h) all Contingent Obligations of such Person, (i) any
Obligation of such Person under a synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing if the
transaction giving rise to such Obligation is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP, less the amount of any cash held by the respective
credit provider as cash collateral to secure the Obligations of such Person
under any synthetic lease and (j) all indebtedness and other payment
Obligations referred to in clauses (a) through (i) above of another Person
secured by (or for which the holder of such Debt has an existing right,
contingent or
<PAGE>
7
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DESIGNATED BIDDER" means (a) an Eligible Assignee or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
that issues (or the parent of which issues) commercial paper rated at least
"Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then
equivalent grade) by S&P that, in the case of either clause (a) or (b), (i)
is organized under the laws of the United States or any State thereof, (ii)
shall have become a party hereto pursuant to Section 9.07(e), (f) and (g)
and (iii) is not otherwise a Lender.
"DESIGNATED SUBSIDIARY" means any Subsidiary of the Company designated
for borrowing privileges under this Agreement pursuant to Section 9.11.
"DESIGNATION AGREEMENT" means a designation agreement entered into by
a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent, in substantially the form of Exhibit
M.
"DESIGNATION LETTER" means, with respect to any Designated Subsidiary,
a letter in the form of Exhibit D-1 hereto signed by such Designated
Subsidiary and the Company.
"DOLLARS" and the "$" sign each means lawful currency of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Company and the Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a Consolidated
basis, of (a) net income (or net loss), (b) Interest Expense, (c) income
tax expense, (d) depreciation expense, (e) amortization expense, (f)
noncash charges incurred in connection with stock options granted to
employees of the Company, (g) extraordinary, non-recurring, non-cash
transactional or unusual losses deducted in calculating net income less
extraordinary, non-recurring, non-cash transactional or unusual gains added
in calculating net income, and (h) Transaction Fees and Expenses, in each
case of the Company determined in accordance with GAAP for such period;
PROVIDED, HOWEVER, there shall be excluded from EBITDA, to the extent
therein included, all non-cash foreign currency and Hedge Agreement losses
and all non-cash foreign currency and Hedge Agreement gains.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility: (i) a
Lender Party; (ii) an Affiliate of a Lender Party or an Approved Fund;
(iii) a commercial bank organized under the laws of the United States, or
any State thereof, and having a combined capital and surplus of at least
$500,000,000; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least
<PAGE>
8
$500,000,000; (v) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) a finance company, insurance company or
other financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
having a combined capital and surplus of at least $250,000,000; and (vii)
any other Person approved by the Administrative Agent and, unless a Default
has occurred and is continuing at the time any assignment is effected
pursuant to Section 9.07, the Company and, with respect to any Eligible
Assignee that becomes a Lender, the Issuing Bank, any such approval in
either case not to be unreasonably withheld or delayed and (b) with respect
to the Letter of Credit Facility, a Person that is an Eligible Assignee
under subclause (iii) or (v) of clause (a) of this definition and is
approved by the Administrative Agent and, unless a Default has occurred and
is continuing at the time any assignment is effected pursuant to Section
9.07, the Company, such approval not to be unreasonably withheld or
delayed; PROVIDED, HOWEVER, that neither any Loan Party nor any Affiliate
of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"EQUIVALENT" in Dollars of any Committed Currency or any Foreign
Currency on any date means the equivalent in Dollars of such Committed
Currency or Foreign Currency, as the case may be, determined by using the
quoted spot rate at which the Administrative Agent's principal office in
London offers to exchange Dollars for such Committed Currency or Foreign
<PAGE>
9
Currency in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement, and the "Equivalent" in any
Committed Currency or Foreign Currency, as the case may be, of Dollars
means the equivalent in such Committed Currency or Foreign Currency, as the
case may be, of Dollars determined by using the quoted spot rate at which
the Administrative Agent's principal office in London offers to exchange
such Committed Currency or Foreign Currency, as the case may be, for
Dollars in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC; or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of any Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan, pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, such
Plan.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurocurrency Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Company and the Administrative Agent.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EUROCURRENCY RATE" means, for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a) the average of the respective rates per annum (rounded
upward to the next whole multiple of 1/16th of 1%) posted by each of the
principal London offices
<PAGE>
10
of banks posting rates as displayed on the Telerate Markets screen, page
3750 or such other page as may replace such page on such service for the
purpose of displaying the London interbank offered rate of major banks for
deposits in Dollars or the applicable Committed Currency, at approximately
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period for deposits in an amount substantially equal to BNP
Paribas' Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period (or, if BNP Paribas
shall not have such a Eurocurrency Rate Advance, $1,000,000 or the
Equivalent thereof in Dollars) and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage for such Interest Period.
"EUROCURRENCY RATE ADVANCE" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.08(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurocurrency Rate Advances or LIBO Rate Advances comprising part of the
same Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"FACILITY" means the Revolving Credit Facility or the Letter of Credit
Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period (i) to the rate
published by the Telerate Markets service on page five of its daily report
as the "ASK" rate as of 10:00 A.M. (New York City time) for such day (or,
if such day is not a Business Day, for the immediately preceding Business
Day) or (ii) if the Telerate Markets service shall cease to publish or
otherwise shall not publish such rates for any day that is a Business Day,
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE LETTERS" means each agreement entered into between the any Loan
Party and the Administrative Agent or the Issuing Bank with respect to the
payment of fees or other amounts relating to the Facilities.
"FISCAL QUARTER" means a fiscal quarter ending on or about March 31,
June 30, September 30 or December 31 of each year.
"FISCAL YEAR" means a fiscal year of the Company and its Consolidated
Subsidiaries ending on or about June 30 in any calendar year.
<PAGE>
11
"FIXED CHARGE COVERAGE RATIO" means, with respect to any Person for
any Rolling Period, the ratio of (a) (i) Consolidated EBIDTA for such
Person and its Subsidiaries for such Rolling Period minus (ii) Capital
Expenditures of such Person and its Subsidiaries made during such Rolling
Period to (b) Fixed Charges of such Person and its Subsidiaries for such
Rolling Period.
"FIXED CHARGES" means, for the Company and its Subsidiaries on a
Consolidated basis, for any period, the sum of Interest Expense, income
taxes that have been paid in cash and all regularly scheduled principal
payments of Funded Debt made during such period.
"FIXED RATE ADVANCES" has the meaning specified in Section 2.04(a)(i),
which Advances shall be denominated in any Foreign Currency.
"FOREIGN CURRENCY" means any lawful currency (other than Dollars or a
Committed Currency) that is freely transferable or convertible into
Dollars.
"FUNDED DEBT" of any Person means Debt of such Person (other than Debt
described in clauses (f), (h), and (j) of the definition thereof).
"GAAP" has the meaning specified in Section 1.03.
"GUARANTIES" means the U.S. Guaranty and the Non U.S. Guaranty.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"INDEMNIFIED COSTS" has the meaning specified in Section 8.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of the
initial Borrowing hereunder and the initial issuance of a Letter of Credit
hereunder.
"INITIAL ISSUING BANK" has the meaning specified in the recital of
parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTEREST EXPENSE" means, with respect to any Person for any period,
interest expense (including the interest component on obligations under
Capitalized Leases but excluding capitalized interest), whether paid or
accrued, on all Debt of such Person and its Subsidiaries for
<PAGE>
12
such period, including, without limitation and without duplication, (a)
interest expense in respect of Debt resulting from Advances, (b)
commissions, discounts and other fees and charges payable in connection
with letters of credit (including, without limitation, any Letters of
Credit), (c) accretion of original issue discount, and (d) all other
noncash interest but excluding amortization with respect to deferred
financing fees (including, without limitation, deferred financing fees in
connection with this Agreement or the Subordinated Notes).
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurocurrency Rate Advance, and ending on the last day of the period
selected by the applicable Borrower pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest Period
shall be one, two, three or six months, as the applicable Borrower may,
upon notice received by the Administrative Agent not later than 10:00 A.M.
(Los Angeles, California time) on the third Business Day prior to the first
day of such Interest Period, select; PROVIDED, HOWEVER, that:
(a) no Borrower may select any Interest Period that ends after
the Termination Date;
(b) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the same
Competitive Bid Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, PROVIDED, HOWEVER, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTMENT" means (i) any loan or advance to any Person, any purchase
or other acquisition of any Equity Interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of any Person, any capital contribution to any Person or any other
direct or indirect investment in any Person, including, without limitation,
any acquisition by way of a merger or consolidation (or similar
transaction) and any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (h) or (j) of the definition of "DEBT"
in respect of any Person, or (ii) any purchase or acquisition of
intellectual
<PAGE>
13
property or rights to use intellectual property other than in the ordinary
course of business and other than any such purchase or acquisition in which
the consideration consists solely of Equity Interests of the Company.
"ISSUING BANK" means the Initial Issuing Bank and each Eligible
Assignee to which a Letter of Credit Commitment hereunder has been assigned
pursuant to Section 9.07, for so long as such Initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.
"L/C CASH COLLATERAL ACCOUNT" has the meaning specified in the
Preliminary Statements to the Security Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.05(b)(ii)(A).
"LENDER PARTY" means any Lender or the Issuing Bank.
"LENDERS" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07(a), (b) and (c) and, except
when used in reference to a Revolving Credit Advance, a Revolving Credit
Borrowing, a Revolving Credit Note, a Commitment or a related term, each
Designated Bidder, for so long as such Initial Lender or Person shall be a
party to this Agreement.
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank
or any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuing Bank
at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
the Issuing Bank has entered into an Assignment and Acceptance, set forth
for the Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as
such amount may be reduced at or prior to such time pursuant to Section
2.06.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(b).
"LEVERAGE RATIO" means, with respect to any Person for any Rolling
Period, the ratio of (a) Consolidated Funded Debt as of the last day of
such Rolling Period to (b) Consolidated EBITDA of such Person and its
Subsidiaries for such Rolling Period.
"LIBO RATE" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in the applicable Foreign
Currency at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such
Interest Period in an amount substantially equal to the amount that
<PAGE>
14
would be BNP Paribas' ratable share of such Borrowing if such Borrowing
were to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for
such Interest Period.
"LIBO RATE ADVANCES" means a Competitive Bid Advance denominated in
any Foreign Currency and bearing interest based on the LIBO Rate.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and the
Notes, if any, and any amendment, supplement or modification hereof or
thereof, (i) this Agreement, (ii) the Notes, (iii) the Collateral
Documents, (iv) each Letter of Credit Agreement, (v) the Guaranties, and
(vi) the Fee Letters and (b) for purposes of the Collateral Documents and
for all other purposes other than for purposes of this Agreement and the
Notes, (i) this Agreement, (ii) the Notes, if any, (iii) the Collateral
Documents, (iv) each Letter of Credit Agreement, (v) the Guaranties, (vi)
the Fee Letters, and (vii) any other agreement, document or instrument
issued pursuant to or in connection with any of the foregoing, and in each
case as amended, amended and restated, supplemented or otherwise modified
from time to time.
"LOAN PARTIES" means the Company, the Designated Subsidiaries, the US
Guarantors and the Non-US Guarantors.
"LOCAL RATE ADVANCE" means a Competitive Bid Advance denominated in
any Foreign Currency sourced from the jurisdiction of issuance of such
Foreign Currency and bearing interest at a fixed rate.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of (i) the Company, (ii) the Loan Parties taken as
a whole, or (iii) the Company and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrowers, the U.S. Guarantors and the
Non-U.S. Guarantors taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document or (c) the
ability of (i) the Company, (ii) the Loan Parties taken as a whole, or
(iii) the Company and its Subsidiaries taken as a whole to perform their
Obligations under any Loan Document to which they are or are to become
parties.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
<PAGE>
15
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"NET CASH" means, as at any date of determination, the aggregate
amount of Cash Equivalents owned by the Company and its Subsidiaries as at
such date, LESS the aggregate amount of (x) any cash of the Company or its
Subsidiaries held by the respective credit provider as cash collateral to
secure the Obligations of the Company or its Subsidiaries under any
synthetic lease and (y) all outstanding Senior Funded Debt.
"NET TANGIBLE ASSETS" means, as at any date of determination, the
aggregate amount of assets, LESS the aggregate amount of intangible assets,
owned by the Company and its Subsidiaries as at such date.
"NON-U.S. GUARANTORS" means all Non-U.S. Subsidiaries of the Company
that are Significant Subsidiaries and each other Non-U.S. Subsidiary that
is or becomes a Significant Subsidiary that shall be required to execute
and deliver a guaranty pursuant to Section 5.01(j), Section 5.01(k) or
Section 5.01(l).
"NON-U.S. GUARANTY" means a guaranty made by each Non-U.S. Subsidiary
of the Company that is a Significant Subsidiary in favor of the
Administrative Agent, in substantially the form of Exhibit F-3 (together
with each other guaranty made by a Non-U.S. Subsidiary of the Company
delivered pursuant to Section 5.01(j) or (k), in each case as amended,
amended and restated, supplemented or otherwise modified from time to time
in accordance with its terms).
"NON-U.S. SUBSIDIARY" means any Subsidiary of the Company which is not
a U.S. Subsidiary.
"NOTE" means a Revolving Credit Note, to the extent required to be
issued pursuant to Section 2.16, or a Competitive Bid Note.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in
Section 2.04(a).
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified in
Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
<PAGE>
16
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PERMITTED ACQUISITION" means the purchase or acquisition of all or
substantially all of the stock or assets, or a business unit or division,
of a Permitted Business by the Company.
"PERMITTED BUSINESS" means the businesses conducted by the Company and
its Subsidiaries on the date hereof and any business related, ancillary or
complementary thereto (as determined in good faith by the board of
directors of the Company).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not then required to be paid under Section
5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business securing obligations that
(i) are not overdue for a period of more than 30 days and (ii) either
individually or when aggregated with all other Permitted Liens outstanding
on any date of determination, do not materially affect the use or value of
the property to which they relate; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or to
secure public or statutory obligations; and (d) easements, rights of way
and other encumbrances on title to real property that do not render title
to the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGED SHARES" has the meaning specified in Section 1(a)(ii) of the
Security Agreement.
"PREFERRED INTERESTS" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"PRO FORMA BASIS" with respect to any determination of EBITDA for any
Rolling Period means the EBITDA of the Company and its Subsidiaries
determined as provided in the definition of EBITDA, except that if one or
more Permitted Acquisitions shall have been consummated after the first day
of such Rolling Period or the determination is being made pursuant to
Section 5.02(f)(v), then the EBITDA for such Rolling Period shall include
the EBITDA of all entities or business units acquired in such Permitted
Acquisitions (and, in the case of a determination pursuant to Section
5.02(f)(v), the entity or business unit to be acquired) as if such
Permitted
<PAGE>
17
Acquisitions or proposed Permitted Acquisitions were consummated on the
first day of such Rolling Period. For the purpose of this definition,
whenever pro forma effect is to be given to an acquisition of assets, the
amount of income or earnings related thereto and the amount of Interest
Expense associated with any Funded Debt incurred in connection therewith,
or any other calculation under this definition, the pro forma calculations
will be certified by the chief financial officer of the Company.
"PRO RATA SHARE" of any amount means, with respect to any Lender at
any time, the product of such amount TIMES a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at such
time (or, if the Commitments shall have been terminated, the Revolving
Credit Commitment as in effect immediately prior to such termination) and
the denominator of which is the Revolving Credit Facility at such time (or,
if the Commitments shall have been terminated, the Revolving Credit
Facility as in effect immediately prior to such termination).
"REDEEMABLE" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"REGISTER" has the meaning specified in Section 9.07(h).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding at
least 51% in interest of the Commitments or, if no Commitments remain, at
least 51% in interest of the aggregate unpaid principal amount (based on
the Equivalent in Dollars at such time) of the Advances.
"RESPONSIBLE OFFICER" means any executive officer of the Company.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(a).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made to a Borrower
by each of the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender at any
time, the Dollar amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Revolving Credit Commitment" or, if such Lender
has entered into one or more Assignment and Acceptances, the Dollar amount
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(h) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT NOTE" means a promissory note of a Borrower payable
to the order of any Lender, delivered pursuant to a request made under
Section 2.16 in substantially the form of Exhibit A-1, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting
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18
from the Revolving Credit Advances and Letter of Credit Advances made by
such Lender to such Borrower.
"ROLLING PERIOD" means, for any Fiscal Quarter, the consecutive four
Fiscal Quarters ending on the last day of such Fiscal Quarter, PROVIDED
that any calculation of the Leverage Ratio or Fixed Charge Ratio or
determination of EBITDA required to be made hereunder for a Rolling Period
that ends on September 30, 2000, December 31 2000 or March 31, 2001,
respectively, shall be made for the period commencing July 1, 2000 and
ending on such date and shall be annualized.
"SECURED OBLIGATIONS" has the meaning specified in the Security
Agreement.
"SECURED PARTIES" means the Agents and the Lender Parties.
"SECURITY AGREEMENT" has the meaning specified in Section 3.01(a)(ii).
"SENIOR FUNDED DEBT" means the aggregate amount of all Funded Debt
minus all subordinated debt referred to in Section 5.02(b)(i)(D).
"SIGNIFICANT SUBSIDIARY" means, at any time, a Subsidiary that is
wholly owned (ignoring directors qualifying shares), directly or
indirectly, by the Company that (i) together with its Subsidiaries if any
has total assets greater than $10,000,000 (determined as of the last day of
the most recent Fiscal Quarter), (ii) together with its Subsidiaries has
EBITDA equal to 10% or more of the Consolidated EBITDA of the Company and
its Subsidiaries for most recently ended Rolling Period or (iii) has become
a party to a Guaranty.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SOLE ARRANGER" has the meaning specified in the recital of parties to
this Agreement.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
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19
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw
Hill Companies, Inc
"SUBORDINATED NOTES" means the 4-1/4 % Convertible Subordinated Notes
due 2007 issued by the Company.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate, is at the time
directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"SYNDICATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"TANGIBLE NET WORTH" means Consolidated Net Tangible Assets LESS
Consolidated total liabilities.
"TAXES" has the meaning specified in Section 2.13(a).
"TERMINATION DATE" means the earlier of (x) November 6, 2003 and (y)
the date of termination in whole of the Letter of Credit Commitment and the
Revolving Credit Commitments pursuant to Section 2.06 or 6.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory to the Company or any of its Subsidiaries to effect payment for
such inventory.
"TRANSACTION" means the transactions contemplated by the Loan
Documents.
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurocurrency Rate.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any Lender
at any time, (a) such Lender's Revolving Credit Commitment at such time
MINUS (b) the sum of (i) the aggregate principal amount (or the Equivalent
thereof in Dollars) of all Revolving Credit Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and outstanding
at such time, PLUS (ii) such Lender's Pro Rata Share of (A) the aggregate
Available Amount of all Letters of Credit outstanding (or the Equivalent
thereof in Dollars) at such time, and (B) the aggregate principal amount of
all Letter of Credit Advances made by the Issuing Bank pursuant to Section
2.03(c) and outstanding at such time, PLUS (iii) such Lender's Pro Rata
Share of the aggregate principal amount of all Competitive Bid Advances (or
the Equivalent thereof in Dollars) made by the Lenders pursuant to Section
2.04 and outstanding at such time.
"U.S. GUARANTORS" means all U.S. Subsidiaries of the Company that are
Significant Subsidiaries and each other U.S. Subsidiary that is or becomes
a Significant Subsidiary that shall be required to execute and deliver a
guaranty pursuant to Section 5.01(j) or Section 5.01(k).
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20
"U.S. GUARANTY" means a guaranty made by each U.S. Subsidiary that is
a Significant Subsidiary in favor of the Administrative Agent, in
substantially the form of Exhibit F-2 (together with each other guaranty
made by a U.S. Subsidiary that is a Significant Subsidiary delivered
pursuant to Section 5.01(j), in each case as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its
terms).
"U.S. SUBSIDIARY" means any Subsidiary of the Company organized under
the laws of the United States or one of the States of the United States.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have a liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02 COMPUTATION OF TIME PERIODS; OTHER DEFINITIONAL
PROVISIONS. In this Agreement and the other Loan Documents, in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". References in the Loan Documents to
any agreement or contract "as amended" shall mean and be a reference to
such agreement or contract as amended, amended and restated, supplemented
or otherwise modified from time to time in accordance with its terms.
SECTION 1.03 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01 THE ADVANCES AND THE LETTERS OF CREDIT. (a) THE REVOLVING
CREDIT ADVANCES. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "REVOLVING CREDIT ADVANCE") to
any Borrower from time to time on any Business Day during the period from the
date hereof until the Termination Date in an amount (based in respect of any
Revolving Credit Advances to be denominated in a Committed Currency on the
Equivalent in Dollars determined on the date of delivery of the applicable
Notice of Revolving Credit Borrowing) for each such Revolving Credit Advance not
to exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $2,500,000 or an
integral multiple of $250,000 in excess thereof (or the Equivalent thereof in
any Committed Currency determined on the date of delivery of the applicable
Notice of Revolving Credit Borrowing) and shall consist of Revolving Credit
Advances made simultaneously by the Lenders ratably according to their Revolving
Credit Commitments. Within the limits of each Lender's Unused Revolving Credit
Commitment in effect
<PAGE>
21
from time to time, the Borrowers may borrow under this Section 2.01(a), prepay
pursuant to Section 2.07(a) and reborrow under this Section 2.01(a).
(b) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (the "LETTERS OF
CREDIT") in Dollars or any Committed Currency for the account of any Borrower
from time to time on any Business Day during the period from the date hereof
until 60 days before the Termination Date in an aggregate Available Amount
(based in respect of any Letters of Credit to be denominated in a Committed
Currency on the Equivalent in Dollars determined on the date of delivery of the
applicable Notice of Issuance) (i) for all Letters of Credit not to exceed at
any time the lesser of (x) the Letter of Credit Facility at such time and (y)
the Issuing Bank's Letter of Credit Commitment at such time and (ii) for each
such Letter of Credit not to exceed Unused Revolving Credit Commitments of the
Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the applicable Borrower or the beneficiary to require
renewal) later than the earlier of 60 days before the Termination Date and (A)
in the case of a Standby Letter of Credit, one year after the date of issuance
thereof and (B) in the case of a Trade Letter of Credit, 180 days after the date
of issuance thereof. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrowers may request the issuance
of Letters of Credit under this Section 2.01(b), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.05(b) and
request the issuance of additional Letters of Credit under this Section 2.01(b).
SECTION 2.02 MAKING THE REVOLVING CREDIT ADVANCES. (a) Except as
otherwise provided in Section 2.10(b) or Section 2.03, each Revolving Credit
Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (Los
Angeles, California time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 4:00 P.M.
(London time) on the fourth Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 10:00 A.M. (Los Angeles, California time) on the first Business Day prior
to the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the applicable
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier. Each such notice of a Revolving Credit Borrowing
(a "NOTICE OF REVOLVING CREDIT BORROWING") shall be in writing, or by
telecopier, in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Revolving Credit Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances, initial
Interest Period and currency for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (Los Angeles, California time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Revolving Credit Advances denominated in Dollars, and before 11:00
A.M. (London time) on the date of such Revolving Credit Borrowing, in the case
of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances
denominated in any Committed Currency, make available for the account of its
Applicable Lending Office to the Administrative Agent at the applicable Agent's
Account, in same day funds, such Lender's ratable portion of such Revolving
Credit Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower making such
Notice of Revolving Credit Borrowing by crediting such Borrower's Account;
PROVIDED, HOWEVER, that, in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Letter of Credit Advances made by the Issuing
Bank and by any other Lender to or for the benefit of such Borrower and
outstanding on the date of such Revolving Credit Borrowing in the same currency,
PLUS interest accrued and unpaid thereon to and as of such date, available to
the Issuing Bank and such other Lenders for repayment of such Letter of Credit
Advances.
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22
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrowers may not select Eurocurrency Rate Advances (other than for
Interest Periods of one month, subject to the provisions of Section 9.04(c)) for
the initial Revolving Credit Borrowing hereunder and for the period from the
date of such initial Revolving Credit Borrowing to the earlier of (x) three
months from such date and (y) the completion of syndication of the Facilities
(as shall be specified by the Administrative Agent in a written notice to the
Company) or for any Revolving Credit Borrowing if the aggregate amount of such
Revolving Credit Borrowing is less than $1,000,000 or if the obligation of the
Lenders to make Eurocurrency Rate Advances shall then be suspended pursuant to
Section 2.10 or 2.11 and (ii) with respect to Revolving Credit Borrowings
consisting of Eurocurrency Rate Advances, the Revolving Credit Advances may not
be outstanding as part of more than six separate Revolving Credit Borrowings in
the aggregate.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower giving such Notice. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the applicable Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such Revolving Credit Borrowing in accordance with subsection (a) or (b) of
this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the applicable Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to such Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of such Borrower, the higher of (A) the interest rate applicable at the
time to Revolving Credit Advances comprising such Revolving Credit Borrowing and
(B) the cost of funds incurred by the Administrative Agent in respect of such
amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in the
case of Revolving Credit Advances denominated in Dollars or (B) the cost of
funds incurred by the Administrative Agent in respect of such amount in the case
of Revolving Credit Advances denominated in Committed Currencies. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid in respect of principal shall constitute such Lender's Revolving Credit
Advance as part of such Revolving Credit Borrowing for all purposes.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
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23
SECTION 2.03 ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT. (a) REQUEST FOR ISSUANCE. Each Letter of Credit shall be
issued upon notice, given not later than 10:00 A.M. (Los Angeles, California
time) on the fifth Business Day prior to the date of the proposed issuance of
such Letter of Credit, by the applicable Borrower to the Issuing Bank, which
shall give to the Administrative Agent prompt notice thereof by telecopier.
Each such notice of issuance of a Letter of Credit (a "NOTICE OF ISSUANCE")
shall be by telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount and currency
of such Letter of Credit, (C) expiration date of such Letter of Credit, (D)
name and address of the beneficiary of such Letter of Credit and (E) form of
such Letter of Credit, and shall be accompanied by such application and
agreement for letter of credit as the Issuing Bank may specify to such
Borrower for use in connection with such requested Letter of Credit (a
"LETTER OF CREDIT AGREEMENT"). If the requested form of such Letter of Credit
is acceptable to the Issuing Bank in its sole discretion, the Issuing Bank
will, upon fulfillment of the applicable conditions set forth in Article III,
make such Letter of Credit available to the applicable Borrower at its office
referred to in Section 9.02 or as otherwise agreed with such Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (B) to
each Lender on the first Business Day of each calendar quarter a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
preceding quarter and drawings during such calendar quarter under all Letters of
Credit and (C) to the Administrative Agent and each Lender on the first Business
Day of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit.
(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which,
if such payment is made in a Committed Currency, shall be immediately
redenominated into Dollars and, in any case, shall be a Base Rate Advance, in
the amount of such draft. In the event of any drawing under a Letter of Credit,
the Issuing Bank shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender and each Lender shall
purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of the Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender. Promptly
after receipt thereof, the Administrative Agent shall transfer such funds to the
Issuing Bank. Each Borrower hereby agrees to each such sale and assignment. Each
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which notice of the drawing under the related
Letter of Credit is given by the Issuing Bank, provided such notice is given not
later than 10:00 A.M. (Los Angeles, California time) on such Business Day or
(ii) the first Business Day next succeeding such demand if such notice is given
after such time. Upon any such assignment by the Issuing Bank to any other
Lender of a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Lender shall not have so made
the amount of such Letter of Credit Advance available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of the
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24
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04 THE COMPETITIVE BID ADVANCES. (a) Each Lender severally
agrees that each Borrower may make Competitive Bid Borrowings denominated in
Foreign Currencies under this Section 2.04 from time to time on any Business Day
during the period from the date hereof until the date occurring 30 days prior to
the Termination Date in the manner set forth below, PROVIDED, HOWEVER, that (x)
the aggregate principal amount of the Advances then outstanding (based in
respect of any Advance denominated in a Foreign Currency or a Committed Currency
on the Equivalent in Dollars at the time such Competitive Bid Borrowing is
requested) PLUS (y) the aggregate Available Amount of all Letters of Credit
outstanding at such time shall not exceed the Revolving Credit Facility.
(i) Each Borrower may request a Competitive Bid Borrowing under this
Section 2.04 by delivering to the Administrative Agent, by telecopier or
telex, a notice of a Competitive Bid Borrowing (a "NOTICE OF COMPETITIVE
BID BORROWING"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (A) date of such proposed Competitive Bid
Borrowing, (B) aggregate amount of such proposed Competitive Bid Borrowing,
(C) interest rate basis and day count convention to be offered by the
Lenders, (D) currency of such proposed Competitive Bid Borrowing, (E) in
the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period, or in the case of a Competitive Bid Borrowing consisting
of Local Rate Advances, maturity date for repayment of each Local Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring seven days after
the date of such Competitive Bid Borrowing or later than the earlier of (I)
180 days after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (F) interest payment date or dates relating thereto, (G)
location of such Borrower's account to which funds are to be advanced and
(H) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than (x) 10:00 A.M. (London time) at least four
Business Days prior to the date of the proposed Competitive Bid Borrowing,
if such Borrower shall instead specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the Lenders shall be
fixed rates per annum (the Advances comprising any such Competitive Bid
Borrowing being referred to herein as "FIXED RATE ADVANCES") that the
Advances comprising such proposed Competitive Bid Borrowing shall be either
Fixed Rate Advances or Local Rate Advances and (y) 10:00AM (London time) at
least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive Bid
Borrowing shall be LIBO Rate Advances. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower giving such
Notice. Any Notice of Competitive Bid Borrowing by a Designated Subsidiary
shall be given to the Administrative Agent in accordance with the preceding
sentence through the Company on behalf of such Designated Subsidiary. The
Administrative Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from any Borrower by
sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
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(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the
applicable Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole discretion,
by notifying the Administrative Agent (which shall give prompt notice
thereof to such Borrower), (A) before 12:00 noon (London time) on the
Business Day prior to the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of either Fixed Rate
Advances or Local Rate Advances and (B) before 12:00 noon (London time) on
the third Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts or the Equivalent thereof
in Dollars, as the case may be, of such proposed Competitive Bid may,
subject to the proviso to the first sentence of this Section 2.04(a),
exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; PROVIDED that if the Administrative Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the applicable Borrower of such offer at least 30
minutes before the time and on the date on which notice of such election is
to be given to the Administrative Agent, by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so notify
the Administrative Agent before 12:00 noon (London time) on the date on
which notice of such election is to be given to the Administrative Agent,
by the other Lenders, and such Lender shall not be obligated to, and shall
not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; PROVIDED that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower requesting such Competitive Bid Borrowing shall, in
turn, (A) before 3:00 P.M. (London time) on the Business Day prior to the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of either Fixed Rate Advances or Local
Rate Advances and (B) before 3:00 P.M. (London time) on the third Business
Day prior to the date of such Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Administrative Agent, of the amount of each
Competitive Bid Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum amount,
notified to such Borrower by the Administrative Agent, on behalf of
such Lender for such Competitive Bid Advance pursuant to paragraph
(ii) above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to that
effect. The Borrower requesting such Competitive Bid Borrowing shall
accept the offers made by any Lender or Lenders to make Competitive
Bid Advances in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that each
such Lender offered at such interest rate.
<PAGE>
26
(iv) If the Borrower requesting such Competitive Bid Borrowing
notifies the Administrative Agent that such Competitive Bid Borrowing is
cancelled pursuant to paragraph (iii)(x) above, the Administrative Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower requesting such Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Administrative Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by such Borrower, (B)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to
be made by such Lender as part of such Competitive Bid Borrowing, and (C)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Administrative Agent has
received forms of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 11:00 A.M.
(London time), on the date of such Competitive Bid Borrowing specified in
the notice received from the Administrative Agent pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have
received notice from the Administrative Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Payment Office for such
Foreign Currency as shall have been notified by the Administrative Agent to
the Lenders prior thereto, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable conditions
set forth in Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds available to such
Borrower at the location specified by such Borrower in its Notice of
Competitive Bid Borrowing. Promptly after each Competitive Bid Borrowing
the Administrative Agent will notify each Lender of the amount of the
Competitive Bid Borrowing, the consequent Competitive Bid Reduction and the
dates upon which such Competitive Bid Reduction commenced and will
terminate.
(vi) If the Borrower requesting such Competitive Bid Borrowing
notifies the Administrative Agent that it accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above, such
notice of acceptance shall be irrevocable and binding on such Borrower. The
Borrower requesting such Competitive Bid Borrowing shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing
when such Competitive Bid Advance, as a result of such failure, is not made
on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$2,500,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Foreign Currency,
determined as of the time of the applicable Notice of Competitive Bid Borrowing)
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrowers and each Lender shall be in compliance with the limitations set
forth in the proviso to the first sentence of subsection (a) above.
<PAGE>
27
(c) Within the limits and on the conditions set forth in this Section
2.04, the Borrowers may from time to time borrow under this Section 2.04, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.04, PROVIDED that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) Each Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a Competitive Bid Advance to such Borrower,
on the maturity date of each Competitive Bid Advance (such maturity date being
that specified by such Borrower for repayment of such Competitive Bid Advance in
the related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. No Borrower shall have any right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the Competitive Bid Note evidencing such Competitive Bid Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance made to it from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, each Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance made
to it owing to a Lender, payable in arrears on the date or dates interest is
payable thereon, at a rate per annum equal at all times to 2% per annum above
the rate per annum required to be paid on such Competitive Bid Advance under the
terms of the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of each Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.05 REPAYMENT OF ADVANCES. (a) REVOLVING CREDIT ADVANCES.
Each Borrower shall repay to the Administrative Agent for the ratable account of
the Lenders on the Termination Date the aggregate outstanding principal amount
of the Revolving Credit Advances made to it then outstanding.
(b) LETTER OF CREDIT ADVANCES. (i) Each Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other Lender
that has made a Letter of Credit Advance to or for the benefit of such Borrower
on the earlier of demand by the Administrative Agent and the Termination Date
the outstanding principal amount of each Letter of Credit Advance to or for the
benefit of such Borrower made by each of them.
(ii) The Obligations of each Borrower under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances:
<PAGE>
28
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of such Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a 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;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of the
Obligations of such Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor,
PROVIDED, in each case, that payment by the Issuing Bank under the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of the Issuing Bank under the circumstances in question (as
determined by a final judgment of a court of competent jurisdiction).
(c) COMPETITIVE BID ADVANCES. Each Borrower shall repay any
Competitive Bid Advance made to such Borrower in accordance with Section
2.04(d).
SECTION 2.06 TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Company may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Letter of Credit Facility and the Unused Revolving Credit Commitments;
PROVIDED, HOWEVER, that each partial reduction of a Facility shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) MANDATORY. The Letter of Credit Facility shall be automatically
and permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which each such Facility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
SECTION 2.07 PREPAYMENTS. (a) OPTIONAL. Any Borrower may, upon at
least one Business Day's notice in the case of Base Rate Advances made to such
Borrower and three Business
<PAGE>
29
Days' notice in the case of Eurocurrency Rate Advances made to such Borrower, in
each case to the Administrative Agent (received not later than 10:00 A.M. Los
Angeles, California time) stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding aggregate principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the aggregate principal amount prepaid unless such prepayment is with respect
to a Revolving Credit Advance which is a Base Rate Advance; PROVIDED, HOWEVER,
that (x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof or the
Equivalent thereof in a Committed Currency (determined on the date notice of
prepayment is given) and (y) if any prepayment of a Eurocurrency Rate Advance
shall be made other than on the last day of an Interest Period therefor, such
Borrower shall also pay any amounts owing pursuant to Section 9.04(c). ). Each
notice of prepayment by a Designated Subsidiary shall be given to the
Administrative Agent through the Company.
(b) MANDATORY. (i) The Borrowers shall, on each Business Day, prepay
an aggregate principal amount of the Revolving Credit Advances comprising part
of the same Revolving Credit Borrowings and the Letter of Credit Advances equal
to the amount by which (A) the sum of the aggregate principal amount of (or the
Equivalent thereof of Dollars) (x) the Revolving Credit Advances, (y) the
Competitive Bid Advances and (z) the Letter of Credit Advances then outstanding
PLUS the aggregate Available Amount of all Letters of Credit (or the Equivalent
thereof of Dollars) then outstanding exceeds (B) the Revolving Credit Facility.
(ii) The Borrowers shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such Business Day.
(iii) If the Administrative Agent notifies the Borrower that, on any
interest payment date, the sum of (A) the aggregate principal amount of all
Advances denominated in Dollars then outstanding PLUS (B) the Equivalent in
Dollars (determined on the third Business Day prior to such interest payment
date) of the aggregate principal amount of all Advances denominated in Committed
Currencies and Foreign Currencies then outstanding exceeds 105% of the aggregate
Commitments of the Lenders on such date, the Borrowers shall, within two
Business Days after receipt of such notice, prepay the outstanding principal
amount of any Advances owing by the Borrowers in an aggregate amount sufficient
to reduce such sum to an amount not to exceed 100% of the aggregate Commitments
of the Lenders on such date.
(iv) Prepayments of the Revolving Credit Facility made pursuant to
this subsection (b) shall be applied FIRST to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, and SECOND to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full, and THIRD deposited in the L/C
Cash Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. Upon the drawing of any Letter of Credit
for which funds are on deposit in the L/C Cash Collateral Account, such funds
shall be applied to reimburse the Issuing Bank or Lenders, as applicable.
(v) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 9.04(c).
SECTION 2.08 INTEREST ON REVOLVING CREDIT ADVANCES AND LETTER OF
CREDIT ADVANCES. (a) SCHEDULED INTEREST. The Borrowers shall pay interest on the
unpaid principal amount of each Advance
<PAGE>
30
(other than a Competitive Bid Advance) owing to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time PLUS (B) the Applicable Margin in
effect from time to time, payable in arrears quarterly on March 31, June
30, September 30 and December 31 during such periods, on the date of any
prepayment thereof to the extent required under Section 2.07 and on the
Termination Date.
(ii) EUROCURRENCY RATE ADVANCES. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of (A) the
Eurocurrency Rate for such Interest Period for such Advance PLUS (B) the
Applicable Margin, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of any Event of Default the Administrative Agent may, and upon the request of
the Required Lenders shall, require that the Borrowers pay interest on (i) the
unpaid principal amount of each Advance (other than a Competitive Bid Advance)
owing to each Lender, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above and on demand, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable under
the Loan Documents that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate Advances
pursuant to clause (a)(i) above; PROVIDED, HOWEVER, that following acceleration
of the Advances pursuant to Section 6.01, interest shall accrue and be payable
at the rate required by this Section 2.08(b), whether or not requested by the
Administrative Agent or the Required Lenders. In addition, following a final
court judgment in favor of any Lender Party with respect to any Obligation of
the Loan Parties under the Loan Documents, interest shall accrue at the higher
of the statutory judgment rate or the rate specified in the preceding sentence,
payable on demand.
SECTION 2.09 FEES. (a) COMMITMENT FEE. The Company shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
quarterly on March 31, June 30, September 30 and December 31, commencing
December 31, 2000, and on the Termination Date, at a percentage rate per annum
on the average daily Unused Revolving Credit Commitment of such Lender, (which
shall be calculated for the purposes of this Section 2.09(a) disregarding clause
(b)(iii) of the definition of "Unused Revolving Credit Commitment), which rate
shall be (x) prior to June 30, 2001, equal to 0.375%, and (y) thereafter,
determined by reference to the Leverage Ratio of the Company and its
Subsidiaries for the Rolling Period ended on or most recently prior to such date
as set forth below:
<TABLE>
<CAPTION>
-----------------------------------------------------------------
Leverage Commitment Fee
Ratio
-----------------------------------------------------------------
<S> <C>
LEVEL I
less than 1.50 to 1.00 0.375%
-----------------------------------------------------------------
</TABLE>
<PAGE>
31
<TABLE>
<CAPTION>
-----------------------------------------------------------------
LEVEL II
<S> <C>
greater than or equal to 0.50%
1.50 to 1.00
--------------------------------------- -------------------------
</TABLE>
(b) LETTER OF CREDIT FEES, ETC. (i) Each Borrower shall pay to the
Administrative Agent for the account of each Lender a commission, payable in
arrears quarterly on March 31, June 30, September 30 and December 31, commencing
December 31, 2000, and on the Termination Date, on such Lender's Pro Rata Share
of the average daily aggregate Available Amount during such quarter of all
Letters of Credit issued for the benefit of such Borrower outstanding from time
to time at the Applicable Margin for Eurocurrency Rate Advances under the
Revolving Credit Facility.
(ii) Each Borrower shall pay to the Issuing Bank, for its own account,
such commissions, issuance fees, fronting fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit issued for the benefit of such Borrower as such Borrower and the Issuing
Bank shall agree.
(c) AGENTS' FEES. The Company shall pay to the Administrative Agent
for its own account such fees as may from time to time be agreed between the
Company and the Administrative Agent.
SECTION 2.10 CONVERSION OF REVOLVING CREDIT ADVANCES. (a) OPTIONAL.
Any Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 10:00 A.M. (Los Angeles California time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Section 2.11, Convert all or any portion of the Revolving Credit
Advances denominated in Dollars made to it of one Type comprising the same
Borrowing into Revolving Credit Advances of the other Type; PROVIDED, HOWEVER,
that if any Conversion of Eurocurrency Rate Advances into Base Rate Advances is
made other than on the last day of an Interest Period for such Eurocurrency Rate
Advances such Borrower shall also pay any amounts owing pursuant to Section
9.04(c), (x) any Conversion of Base Rate Advances into Eurocurrency Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b), (y) no Conversion of any Revolving Credit Advances shall result
in more separate Revolving Credit Borrowings than permitted under Section
2.02(b). Each such notice of Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Revolving Credit
Advances to be Converted and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for such Revolving Credit
Advances. Each notice of Conversion shall be irrevocable and binding on the
Borrower requesting such Conversion.
(b) MANDATORY. (i) If, with respect to any Eurocurrency Rate
Advances, any Lender notifies the Administrative Agent that (i) such Lender is
unable to obtain matching deposits in the London inter-bank market at or about
11:00 A.M. (London time) on the second Business Day before the making of a
Borrowing denominated in Dollars or the third Business Day before the making of
a Borrowing denominated in any Committed Currency in sufficient amounts to fund
such Lender's Revolving Credit Advances as a part of such Borrowing during its
Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Lender of making, funding
or maintaining such Lender's Eurocurrency Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the applicable
Borrower and the Lenders, whereupon (A) such Borrower will, on the last day of
the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) redenominate such Advances into an Equivalent amount of Dollars
and Convert such Advances into Base Rate Advances and (B) the obligation of the
Lenders to
<PAGE>
32
make, or to Convert Revolving Credit Advances into, Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Company and
the Lenders that the circumstances causing such suspension no longer exist;
PROVIDED that, if the circumstances set forth in clause (ii) above are
applicable, the applicable Borrower may elect, by notice to the Administrative
Agent and the Lenders, to continue such Advances in such Committed Currency for
Interest Periods of not longer than one month, which Advances shall thereafter
bear interest at a rate per annum equal to the Applicable Margin PLUS, for each
Lender, the cost to such Lender (expressed as a rate per annum) of funding its
Eurocurrency Rate Advances by whatever means it reasonably determines to be
appropriate. Each such Lender shall certify its cost of funds for each Interest
Period to the Administrative Agent and the applicable Borrower as soon as
practicable (but in any event not later than ten Business Days after the first
day of such Interest Period).
(ii) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $1,000,000, such Advances shall
automatically (A) if such Eurocurrency Rate Advances are denominated in Dollars,
Convert into Base Rate Advances and (B) if such Eurocurrency Rate Advances are
denominated in a Committed Currency, be redenominated into an Equivalent amount
of Dollars and Convert into a Base Rate Advance.
(iii) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Lenders,
whereupon each such Eurocurrency Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and (B) if
such Eurocurrency Rate Advances are denominated in a Committed Currency, be
redenominated into an Equivalent amount of Dollars and Convert into a Base Rate
Advance.
(iv) Upon the occurrence and during the continuance of any Event of
Default and upon notice from the Administrative Agent to the Company, (A) if
such Eurocurrency Rate Advances are denominated in Dollars, be Converted into
Base Rate Advances and (B) if such Eurocurrency Rate Advances are denominated in
any Committed Currency, be redenominated into an Equivalent amount of Dollars
and be Converted into Base Rate Advances and (ii) the obligation of the Lenders
to make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended; PROVIDED that the applicable Borrower may elect, by notice to the
Administrative Agent and the Lenders within one Business Day of such notice, to
continue such Advances in such Committed Currency, whereupon the Administrative
Agent may require that each Interest Period relating to such Eurocurrency Rate
Advances shall bear interest at the Overnight Eurocurrency Rate for a period of
three Business Days and thereafter, each such Interest Period shall have a
duration of not longer than one month. "OVERNIGHT EUROCURRENCY RATE" means the
rate per annum applicable to an overnight period beginning on one Business Day
and ending on the next Business Day equal to the sum of 1%, the Applicable
Interest Rate Margin and the average, rounded upward to the nearest whole
multiple of 1/16 of 1%, if such average is not such a multiple, of the
respective rates per annum quoted by each Reference Bank to the Administrative
Agent on request as the rate at which it is offering overnight deposits in the
relevant currency in amounts comparable to such Reference Bank's Eurocurrency
Rate Advances.
SECTION 2.11 INCREASED COSTS, ETC. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender Party of agreeing to make or of making, funding or maintaining
Eurocurrency Rate Advances or LIBO Rate Advances or of agreeing to issue or of
<PAGE>
33
issuing or maintaining or participating in Letters of Credit or of agreeing to
make or of making or maintaining Letter of Credit Advances (excluding, for
purposes of this Section 2.11, any such increased costs resulting from (x) Taxes
or Other Taxes (as to which Section 2.13 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Company shall from time to time, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
PROVIDED, HOWEVER, that a Lender Party claiming additional amounts under this
Section 2.11(a) agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. A certificate as to the amount
of such increased cost, submitted to the Company by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) effective after
the date hereof affects or would affect the amount of capital required or
expected to be maintained by such Lender Party or any corporation controlling
such Lender Party and that the amount of such capital is increased by or based
upon the existence of such Lender Party's commitment to lend or to issue or
participate in Letters of Credit hereunder and other commitments of such type or
the issuance or maintenance of or participation in the Letters of Credit (or
similar contingent obligations), then, upon demand by such Lender Party (with a
copy of such demand to the Administrative Agent), the Company shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue or to
participate in Letters of Credit hereunder or to the issuance or maintenance of
or participation in any Letters of Credit. A certificate as to such amounts
submitted to the Company by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurocurrency Rate Advances any Lender
notifies the Administrative Agent that the Eurocurrency Rate for any Interest
Period for such Revolving Credit Advances will not adequately reflect the cost
to such Lender of making, funding or maintaining such Lender's Eurocurrency Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Company and the Lenders, whereupon (i) each such Eurocurrency Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
Company that such Lender has determined that the circumstances causing such
suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or LIBO Rate Advances or to continue to fund or maintain Eurocurrency
Rate Advances in Dollars or any Committed Currency or LIBO Rate Advances in any
Foreign Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or
any Committed Currency or LIBO Rate Advances in any Foreign Currency hereunder,
then, on notice thereof and demand therefor by such Lender to the Company
through the Administrative Agent (i) each Eurocurrency Rate Advance or LIBO Rate
Advance, as the case may be,
<PAGE>
34
will automatically, upon such demand, (A) if such Eurocurrency Rate Advance is
denominated in Dollars, be Converted into a Base Rate Advance, and (B) if such
Eurocurrency Rate Advance or LIBO Rate Advance is denominated in any Committed
Currency or Foreign Currency, be redenominated into an Equivalent amount of
Dollars and be Converted into a Base Rate Advance or an Advance that bears
interest at the rate set forth in Section 2.08(a)(i), as the case may be, and
(ii) the obligation of the Lenders to make Eurocurrency Rate Advances or LIBO
Rate Advances, or to Convert Revolving Credit Advances into, Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
Company that such Lender has determined that the circumstances causing such
suspension no longer exist; PROVIDED, HOWEVER, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurocurrency Lending Office if the making of such a designation would allow such
Lender or its Eurocurrency Lending Office to continue to perform its obligations
to make Eurocurrency Rate Advances or to continue to fund or maintain
Eurocurrency Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.12 PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall make
each payment hereunder irrespective of any right of counterclaim or set-off not
later than 10:00 A.M. (Los Angeles, California time) on the day when due in
Dollars to the Administrative Agent at the applicable Administrative Agent's
Account in same day funds, except payments with respect to principal of,
interest on, and other amounts relating to, Advances denominated in a Committed
Currency or a Foreign Currency. Each Borrower shall make each payment hereunder
with respect to principal of, interest on, and other amounts relating to,
Advances denominated in a Committed Currency or a Foreign Currency, not later
than 11:00 A.M. (at the Payment Office for such Committed Currency or Foreign
Currency, as the case may be) on the day when due in such Committed Currency or
Foreign Currency, as the case may be, to the Administrative Agent, by deposit of
such funds to the applicable Administrative Agent's Account in same day funds,
with payments being received by the Administrative Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by such Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder to more than one
Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if such
payment by such Borrower is in respect of any Obligation then payable hereunder
to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 9.07(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder in respect of the
interest assigned thereby to the Lender Party assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
<PAGE>
35
(c) Each Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder to charge from time to time, to the fullest extent permitted
by law, against any or all of such Borrower's accounts with such Lender Party or
such Affiliate any amount so due.
(d) All computations of interest on Revolving Credit Advances
comprising Eurocurrency Rate Advances, fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Computations of interest on Revolving Credit Advances
comprising Base Rate Advances and Letter of Credit Advances shall be made by the
Administrative Agent on the basis of a year of 365 days in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Computations in
respect of Competitive Bid Advances shall be made by the Administrative Agent or
the Administrative Agent, as the case may be, as specified in the applicable
Notice of Competitive Bid Borrowing (or, in each case of Advances denominated in
Foreign Currencies where market practice differs, in accordance with market
practice). Each determination by the Administrative Agent of an interest rate,
fee or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(e) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment or letter of credit fee or
commission, as the case may be; PROVIDED, HOWEVER, that, if such extension would
cause any payment to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day and such adjustment of time
shall in such case be reflected in the computation of payment of interest or
commitment fee, as the case may be.
(f) Unless the Administrative Agent shall have received notice from
any Borrower prior to the date on which any payment is due to any Lender Party
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent any Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at (i) the Federal Funds Rate in the case of
Advances denominated in Dollars or (ii) the cost of funds incurred by the
Administrative Agent in respect of such amount in the case of Advances
denominated in Committed Currencies or Foreign Currencies. the Federal Funds
Rate.
SECTION 2.13 TAXES. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender Party
and the Administrative Agent, taxes that are imposed on its overall net
income by the United States and taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or the Administrative
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender Party, taxes that are imposed on its overall
net income (and franchise taxes in lieu thereof) by the state or foreign
jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
<PAGE>
36
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "TAXES"). If
any Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to any Lender Party or the Administrative Agent,
(i) the sum payable by such Borrower shall be increased as may be necessary
so that after such Borrower and the Administrative Agent have made all
required deductions (including deductions applicable to additional sums
payable under this Section 2.13) such Lender Party or the Administrative
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make all
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority or other governmental authority in accordance
with applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to
this Agreement, the Notes or the other Loan Documents (hereinafter referred to
as "OTHER TAXES").
(c) The Borrowers shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.13, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
applicable Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of any Borrower through an account or branch outside the United
States or on behalf of such Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of subsections (d) and (e) of this Section 2.13, the terms "UNITED
STATES" and "UNITED STATES PERSON" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter if requested in writing by the Company
or the Administrative Agent (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide the Administrative Agent and the
Company with two original Internal Revenue Service forms W-8ECI or W-8BEN or (in
the case of a Lender Party that has certified in writing to the Administrative
Agent that it is not a "bank" as defined in Section 881(c)(3)(A) of the Internal
Revenue Code) form W-8 (and, if such Lender Party delivers a form W-8, a
certificate representing that such Lender Party is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Internal Revenue Code)), as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes or, in the case of a Lender Party providing a form W-8,
certifying that such Lender Party is a foreign corporation, partnership, estate
or trust. If the forms
<PAGE>
37
provided by a Lender Party at the time such Lender Party first becomes a party
to this Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; PROVIDED, HOWEVER, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.13 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8ECI,
W-8BEN or W-8 (or the related certificate described above), that the applicable
Lender Party reasonably considers to be confidential, such Lender Party shall
give notice thereof to the Company and shall not be obligated to include in such
form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Company with the appropriate form described in subsection (e) above
(OTHER THAN if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.13
with respect to Taxes imposed by the United States by reason of such failure;
PROVIDED, HOWEVER, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Company shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
SECTION 2.14 SHARING OF PAYMENTS, ETC. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that (A) if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each other Lender Party shall be rescinded and such other
Lender Party shall repay to the purchasing Lender Party the purchase price to
the extent of such Lender Party's ratable share (according to the proportion of
(i) the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total
<PAGE>
38
amount so recovered and (B) any amounts owed or owing to any Lender Party as a
result of a Competitive Bid Advance or under a Competitive Bid Note shall be
disregarded from each computation set forth in this Section 2.14. Each Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.14 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest, as the case
may be, as fully as if such Lender Party were the direct creditor of such
Borrower in the amount of such interest or participating interest, as the case
may be.
SECTION 2.15 USE OF PROCEEDS. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrowers agree that
they shall use such proceeds and Letters of Credit) solely to pay transaction
fees and expenses, provide working capital for the Company and its Subsidiaries
and for general corporate purposes permitted by the Loan Documents.
SECTION 2.16 EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Each
Borrower agrees that upon notice by any Lender Party to such Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Revolving Credit Advances and
Letter of Credit Advances owing to, or to be made by, such Lender Party, such
Borrower shall promptly execute and deliver to such Lender a Revolving Credit
Note payable to the order of such Lender Party in a principal amount equal to
the Revolving Credit Commitment of such Lender Party.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(h) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Lender Party hereunder, and (iv) the
amount of any sum received by the Administrative Agent from each Borrower
hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be PRIMA FACIE
evidence of the amount of principal and interest due and payable or to become
due and payable from each Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; PROVIDED, HOWEVER, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of any Borrower under this
Agreement.
(d) References herein or in any other Loan Document to Revolving
Credit Notes shall mean and be references to the Revolving Credit Notes, if any,
to the extent issued hereunder.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
<PAGE>
SECTION 3.01 CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTION 2.01,
2.03 AND 2.04. Sections 2.01, 2.03 and 2.04 of this Agreement shall be come
effective on and as of the first date (the "EFFECTIVE DATE") on which the
following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Administrative Agent (unless otherwise specified) and (except for any
Notes) in sufficient copies for each Lender Party:
(i) Notes payable to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) A security agreement in substantially the form of Exhibit
F-1 hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with its terms, the "SECURITY
AGREEMENT"), duly executed by the Company and each U.S. Subsidiary
that is a Significant Subsidiary, together with:
(A) (1) certificates representing the Pledged Shares in
respect of each U.S. Guarantor which is a Significant Subsidiary,
if any, (2) certificates representing 65% of the Pledged Shares
in respect of each Non-U.S. Guarantor which is a Significant
Subsidiary (other than those set out on Schedule
3.01(a)(ii)(A)(2), if any), and (3) in respect of the Pledged
Shares referred to in both (1) and (2), undated stock powers
executed in blank,
(B) executed copies of proper financing statements, duly
filed on or before the Effective Date under the Uniform
Commercial Code of the States of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created under the Collateral
Documents, covering the Collateral described in the Security
Agreement,
(C) completed requests for information, dated on or before
the Effective Date, listing the financing statements referred to
in clause (B) above and all other effective financing statements
filed in the jurisdictions referred to in clause (B) above that
name any Loan Party or its Subsidiaries as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the security interest created thereunder,
(E) executed termination statements (Form UCC-3 or a
comparable form), in proper form to be duly filed on the
Effective Date under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem desirable in
order to terminate or amend existing Liens on the Collateral
described in the Security Agreement, and
(F) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the liens and security
<PAGE>
40
interests created under the Security Agreement has been taken,
including the registration of the Pledged Shares of the Non-U.S.
Subsidiaries which are Significant Subsidiaries.
(iii) The U.S. Guaranty duly executed by all U.S Subsidiaries
that are Significant Subsidiaries.
(iv) [Not used.]
(v) Certified copies of the resolutions of the Board of
Directors of the Company and each U.S. Subsidiary that is a
Significant Subsidiary approving the Transaction and each Loan
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to the Transaction and each Loan
Document to which it is or is to be a party and of the transactions
contemplated hereby.
(vi) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of the Company and each U.S. Subsidiary
that is a Significant Subsidiary, dated reasonably near the Effective
Date, in each case listing the charter of Company and such Significant
Subsidiary and each amendment thereto on file in his office and
certifying that (A) such charter is a true and correct copy thereof,
(B) such amendments are the only amendments to such charter on file in
his office, (C) such Person has paid all franchise taxes to the date
of such certificate and (D) such Person is duly incorporated and in
good standing under the laws of the State of the jurisdiction of its
incorporation.
(vii) A copy of a certificate of the Secretary of State of the
States listed on Schedule 3.01(a)(vii), dated reasonably near the date
of the Effective Date, with respect to the Company and each
Significant Subsidiary as listed on Schedule 3.01(a)(vii), stating
that such Person is duly qualified and in good standing as a foreign
corporation in such States and has filed all annual reports required
to be filed to the date of such certificate.
(viii) A certificate of the Company and each Loan Party (other
than any Loan Party that is a Non-U.S. Subsidiary), signed on behalf
of each such Person by its Executive Vice President and its Secretary
or by two Directors or a Director and a Secretary, dated the Effective
Date (the statements made in which certificate shall be true on and as
of the Effective Date), certifying as to (A) the absence of any
amendments to the charter of such Person since the date of the
Secretary of State's certificate referred to in Section 3.01(a)(vi),
(B) a true and correct copy of the bylaws of such Person as in effect
on the date on which the resolutions referred to in Section 3.01(a)(v)
were adopted and on the Effective Date, (C) the due incorporation and
good standing or valid existence of such Person as a corporation
organized under the laws of the jurisdiction of its incorporation and
the absence of any proceeding for the dissolution or liquidation of
such Person, (D) the completeness and accuracy of the representations
and warranties contained in the Loan Documents as though made on and
as of the Effective Date and (E) the absence of any event occurring
and continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(ix) A certificate of the Secretary of each Loan Party certifying
the names and true signatures of the officers of such Persons
authorized to sign each Loan Document to which it is or is to be a
party and the other documents to be delivered hereunder and
thereunder.
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41
(x) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated June 30, 1998,
June 30, 1999, June 30, 2000 and forecasts prepared by management, in
form and substance satisfactory to the Lender Parties, of balance
sheets, income statements and cash flow statements on a monthly basis
for the first year following the Effective Date and on an annual basis
for each year thereafter until the Termination Date.
(xi) A letter, in form and substance satisfactory to the
Administrative Agent, from the Company to PricewaterhouseCoopers LLP,
its independent certified public accountants, advising such
accountants that the Administrative Agent and the Lender Parties have
been authorized to exercise all rights of the Company to require such
accountants to disclose any and all financial statements and any other
information of any kind that they may have with respect to the Company
and its Subsidiaries and directing such accountants to comply with any
reasonable request of the Administrative Agent or any Lender Party for
such information.
(xii) Favorable opinions of O'Melveny & Myers, New York and
California counsel for the Loan Parties and L. Michael Russell,
Executive Vice President, Secretary and General Counsel of the Loan
Parties, in substantially the form of Exhibits I-1 and I-2.
(b) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of the Company and its Subsidiaries,
both before and after giving effect to the Transaction, including the terms
and conditions of the charter, bylaws and each class of capital stock of
the Loan Parties and their Subsidiaries and of each agreement or instrument
relating to such structure or capitalization.
(c) Before giving effect to the Transaction and the other
transactions contemplated by this Agreement, there shall have occurred no
Material Adverse Change since June 30, 2000.
(d) Except as set forth in Schedule 4.01(h), there shall exist no
action, suit, investigation, litigation or proceeding affecting the Company
or any Loan Party or any of their Subsidiaries pending or threatened before
any court, governmental agency or arbitrator that (i) could have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of the Transaction or any Loan Document or the consummation
of the transactions contemplated by the Loan Documents.
(e) All governmental and third party consents and approvals necessary
in connection with the Transaction and the other transactions contemplated
by the Loan Documents shall have been obtained (without the imposition of
any conditions that are not acceptable to the Lender Parties) and shall
remain in effect; all applicable waiting periods in connection with the
Transaction and the other transactions contemplated by the Loan Documents
shall have expired without any action having been taken by any competent
authority, and no law or regulation shall be applicable in the judgment of
the Lender Parties, in each case that restrains, prevents or imposes
materially adverse conditions upon the Transaction and the other
transactions contemplated by the Loan Documents or the rights of the Loan
Parties freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them.
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42
(f) All accrued fees and expenses of the Administrative Agent and the
Lender Parties (including the accrued fees and expenses of counsel to the
Administrative Agent and of local counsel to the Lender Parties) shall have
been paid.
SECTION 3.02 INITIAL LOAN TO EACH DESIGNATED SUBSIDIARY. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.11 is subject to the Administrative Agent's
receipt on or before the date of such initial Advance of each of the following,
in form and substance satisfactory to the Administrative Agent and dated such
date, and (except for the Revolving Credit Notes) in sufficient copies for each
Lender:
(a) The Revolving Credit Notes of such Borrower to the order of the
Lenders, to the extent requested by any Lender pursuant to Section 2.16.
(b) Certified copies of the resolutions of the Board of Directors of
such Borrower (with a certified English translation if the original thereof
is not in English) approving this Agreement and the Notes of such Borrower,
and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and such
Notes.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrower certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the Notes of such Borrower
and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the Company,
dated as of the date of such initial Advance, certifying that such Borrower
shall have obtained all governmental and third party authorizations,
consents, approvals (including exchange control approvals) and licenses
required under applicable laws and regulations necessary for such Borrower
to execute and deliver this Agreement and the Notes and to perform its
obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit D-1 hereto.
(f) A favorable opinion of counsel (which may be in-house counsel) to
such Designated Subsidiary, dated the date of such initial Advance, in form
and substance satisfactory to the Administrative Agent.
(g) A favorable opinion of local counsel to each Non-U.S. Guarantor,
to the extent required by Section 9.11(b).
(h) Such other approvals, opinions or documents as any Lender,
through the Administrative Agent, may reasonably request.
SECTION 3.03 CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT BORROWING
AND ISSUANCE. The obligation of each Lender to make a Revolving Credit Advance
on the occasion of each Revolving Credit Borrowing, and the obligation of the
Issuing Bank to issue a Letter of Credit, shall be subject to the further
conditions precedent that on the date of such Revolving Credit Borrowing or
issuance:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Revolving Credit Borrowing, Notice of Issuance and
the acceptance by any Borrower of the proceeds of such Revolving Credit
Borrowing or of such Letter of Credit shall constitute a
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43
representation and warranty by such Borrower that both on the date of such
notice and on the date of such Revolving Credit Borrowing or issuance such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Revolving Credit Borrowing or
issuance and to the application of the proceeds therefrom, and
additionally, if such Revolving Credit Borrowing shall have been
requested by a Designated Subsidiary, the representations and
warranties of such Designated Subsidiary contained in its Designation
Letter as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Revolving Credit Borrowing
or issuance, in which case as of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or issuance or from the
application of the proceeds therefrom, that constitutes a Default; and
(b) the Administrative Agent shall have received such other
approvals, opinions or documents as any Lender Party through the
Administrative Agent may reasonably request.
SECTION 3.04 CONDITIONS PRECEDENT TO EACH COMPETITIVE BID BORROWING.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that:
(a) the Administrative Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto;
(b) on or before the date of such Competitive Bid Borrowing, but
prior to such Competitive Bid Borrowing, the Administrative Agent shall
have received a Competitive Bid Note payable to the order of such Lender
for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount
equal to the principal amount of the Competitive Bid Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.04; and
(c) on the date of such Competitive Bid Borrowing the following
statements shall be true (and each of the giving of the applicable Notice
of Competitive Bid Borrowing and the acceptance by such Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower requesting such Competitive Bid
Borrowing that on the date of such Competitive Bid Borrowing such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, and, if
such Competitive Bid Borrowing shall have been requested by a
Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Letter, as though
made on and as of such date,
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44
(ii) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning the Company that has been
provided to the Administrative Agent and each Lender by the Company in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.05 DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants as follows:
(a) Each Loan Party and its Subsidiaries (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse Effect
and (iii) has all requisite corporate power and authority (including,
without limitation, all governmental licenses, permits and other approvals)
to own or lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party (designating whether such
Subsidiary is a U.S. Subsidiary or a Non-U.S. Subsidiary), showing as of
the date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of its Equity Interests
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class of its Equity
Interests owned (directly or indirectly) by such Loan Party and the number
of shares covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights at the date hereof. All of the
outstanding Equity Interests in each Loan Party's Subsidiaries, to the
extent owned by the Company and its Subsidiaries, have been validly issued,
are fully paid (except for directors' qualifying shares) and non-assessable
and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens (other than Permitted Liens), except those created
under the Collateral Documents. Each such Subsidiary (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its
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45
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed could not be
reasonably likely to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party or its
Subsidiaries of each Loan Document to which it is or is to be a party, and
the consummation of the Transaction, are within such Person's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene such Person's charter or bylaws, (ii) violate any law,
rule, regulation (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default or require any payment to be made
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting any Loan Party, any of
its Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any
Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach of
any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which could be
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party or its Subsidiaries of any Loan
Document to which it is or is to be a party, or for the consummation of the
Transaction, (ii) the grant by any Loan Party or its Subsidiaries of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof) or (iv) the
exercise by the Administrative Agent or any Lender Party of its rights
under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(d) hereto.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Loan Document
when delivered hereunder will be, the legal, valid and binding obligation
of each Loan Party and its Subsidiaries party thereto, enforceable against
such Loan Party and such Subsidiaries in accordance with its terms.
(f) (i) The Consolidated balance sheet of the Company and its
Subsidiaries as at June 30, 2000, and the related Consolidated statements
of income and cash flow of the Company and its Subsidiaries for the fiscal
year then ended, accompanied, as to the Consolidated financial statements,
by an unqualified opinion of PricewaterhouseCoopers LLP, independent public
accountants, duly certified by the chief financial officer of the Company,
copies of which have been furnished to each Lender Party, fairly present,
subject to year-end audit adjustments, the Consolidated financial condition
of the Company and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Subsidiaries for the
periods ended
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46
on such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis, and
(ii) since June 30, 2000 there has occurred no Material Adverse
Change.
(g) The Consolidated forecasted balance sheet, statements of income
and statements of cash flow of the Company and its Subsidiaries delivered
to the Lender Parties pursuant to Section 3.01(a)(x) or 5.03 were prepared
in good faith on the basis of the assumptions stated therein, which
assumptions were fair in the light of conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery and on
the Effective Date, the Company's best estimate of the future financial
performance of the Company and its Subsidiaries.
(h) Except as set forth in Schedule 4.01(h), there is no action,
suit, investigation, litigation or proceeding affecting any Loan Party or
any of its Subsidiaries, including any Environmental Action, pending or, to
the best knowledge of the Company, threatened before any court, government
agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the transactions
contemplated hereby.
(i) No Loan Party or Subsidiary of a Loan Party is engaged in the
business of extending credit for the purpose of purchasing or carrying
Margin Stock (other than purchases of the shares of common stock of the
Company permitted by Section 5.02(g), all such shares to be retired upon
purchase), and no proceeds of any Advance or drawings under any Letter of
Credit will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock.
(j) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under the
Collateral Documents and to the extent required thereby have been duly made
or taken and are in full force and effect and the Collateral Documents
create for the benefit of the Secured Parties a valid and, together with
such filings and other actions, perfected first priority security interest
in the Collateral securing the payment of the Secured Obligations, and all
filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken by the Loan Parties to the
extent required by this Section 4.01. The Loan Parties or their
Subsidiaries are the legal and beneficial owners of the Collateral free and
clear of any Lien (other than Permitted Liens), except for the liens and
security interests created or permitted under the Loan Documents.
(k) Neither any Loan Party nor any of its Subsidiaries is (i) an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended or (ii) a
"holding company," or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company," or of a "subsidiary company" of a
"holding company" as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended. Neither the making of any Advances, nor
the issuance of any Letters of Credit, nor the application of the proceeds
or repayment thereof by any Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of any such
Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(l) (i) Except as set forth on Schedule 4.01(l)(i), the operations
and properties of each Loan Party and each of its Subsidiaries comply in
all material respects with all applicable Environmental Laws and
Environmental Permits, except for such non-compliance that could not
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47
reasonably be expected to result in material liability, all past written
claims of non-compliance with such Environmental Laws and Environmental
Permits have been resolved without ongoing material obligations or material
costs, and no circumstances exist that could be reasonably likely to (x)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of its properties that could have a Material
Adverse Effect or (y) cause any such property to be subject to any material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) Except as set forth on Schedule 4.01(l)(ii), none of the
properties currently or formerly owned or operated by any Loan Party
or any of its Subsidiaries is listed or proposed for listing on the
NPL or on the CERCLIS or any analogous foreign, state or local list;
there are no and, to the knowledge of each Loan Party, never have been
any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its
Subsidiaries, in each case that could reasonably be expected to result
in material liability; there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party
or any of its Subsidiaries that could reasonably be expected to result
in material liability; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries, except for
such releases, discharges or disposals that could not reasonably be
expected to result in material liability.
(iii) Except as set forth on Schedule 4.01(l)(iii), neither any
Loan Party nor any of its Subsidiaries is undertaking, either
individually or together with other potentially responsible parties,
any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law which could
reasonably be expected to result in material liability; and all waste
Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been
disposed of in a manner not reasonably expected to result in material
liability to any Loan Party or any of its Subsidiaries.
(m) Set forth on Schedule 4.01(m) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any
Significant Subsidiary (other than such Liens as may exist on the property
or assets of Non-U.S. Subsidiaries that secure obligations the aggregate
principal amount of which does not exceed (x) $5,000,000 for all such Liens
on the property or assets of any Non-U.S. Subsidiary or (y) $10,000,000 for
all such Liens on the property or assets of all Non-U.S. Subsidiaries),
showing as of the date hereof the lienholder thereof, the principal amount
of the obligations secured thereby and the property or assets of such Loan
Party or such Significant Subsidiary subject thereto.
ARTICLE V
COVENANTS
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48
SECTION 5.01 AFFIRMATIVE COVENANTS. So long as any Advance or any
other Obligation of any Loan Party under or in respect of any Loan Document
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Company will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all material taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property which is not otherwise
permitted hereunder; PROVIDED, HOWEVER, that neither the Company nor any of
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew, and cause
each of its Subsidiaries to obtain and renew, all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
PROVIDED, HOWEVER, that neither the Company nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain insurance with responsible and reputable insurance
companies or associations, or arrangements for self-insurance if such
arrangements are in accordance with prudent industry practice, in each case
in such amounts and covering such risks as is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which the Company or such Subsidiary operates.
(e) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Significant Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises; PROVIDED, HOWEVER, that the Company
may consummate any merger or consolidation permitted under Section 5.02(d)
and PROVIDED FURTHER that neither the Company nor any of its Subsidiaries
shall be required to preserve any right, permit, license, approval,
privilege or franchise if the Board of Directors of the Company or such
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or such Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Company, such Subsidiary or the Lender Parties.
(f) VISITATION RIGHTS. At any reasonable time during regular business
hours and from time to time (but not unreasonably frequently), upon
reasonable prior notice, permit the Administrative Agent or any of the
Lender Parties or any agents or representatives thereof, to
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49
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Company and any of its
Significant Subsidiaries, and to discuss the affairs, finances and accounts
of the Company and any of its Significant Subsidiaries with any of the
officers or directors designated by the Company or a Significant
Subsidiary, as the case may be, and with their independent certified public
accountants.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Company and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause
each of its Significant Subsidiaries to maintain and preserve, all of its
properties that are reasonably required in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Company or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, except for (i) transactions between Loan Parties, (ii)
transactions between any Loan Party and Nihon Inter Electronics, and (iii)
transactions with Subsidiaries of the Company in which the Company owns not
less than 90% of all Equity Interests.
(j) COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. Upon (x) the
request of the Administrative Agent, (y) the formation or acquisition of
any new direct or indirect Significant Subsidiary of any Loan Party, or (z)
any direct or indirect Subsidiary of any Loan Party becoming a Significant
Subsidiary (excluding, in the case of (y) and (z), any Significant
Subsidiary that is a Non-U.S. Subsidiary if the effect of such undertaking
would have material adverse tax consequences to the Loan Parties taken as a
whole), then the Company shall, in each case at the Company's expense:
(i) within 30 days after such request, formation, acquisition,
or Subsidiary becoming a Significant Subsidiary, cause each such (A)
U.S. Subsidiary that is a Significant Subsidiary and each direct and
indirect Significant Subsidiary of such Significant Subsidiary to duly
execute and deliver to the Administrative Agent a guaranty or guaranty
supplement to the U.S. Guaranty, in form and substance satisfactory to
the Administrative Agent, guaranteeing all of the Loan Parties'
Obligations under the Loan Documents, and (B) Non-U.S. Subsidiary that
is a Significant Subsidiary to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement to the Non-U.S.
Guaranty, in form and substance satisfactory to the Administrative
Agent; PROVIDED, that no guaranty or guaranty supplement may be
required (if acceptable to the Administrative Agent) from a Non-U.S.
Subsidiary that is a Significant Subsidiary if the execution and
delivery thereof would result in material adverse tax consequences to
the Loan Parties taken as a whole;
(ii) promptly upon such request, formation, acquisition or
Subsidiary becoming a Significant Subsidiary, that concerns any
Subsidiary that is a U.S. Subsidiary pledge or cause its Subsidiaries
to pledge to the Administrative Agent on behalf of the Secured
Parties, 100% of the total outstanding shares or other ownership
interests of such Person owned by the Company or its Subsidiaries;
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(iii) within 30 days after such request, formation, acquisition
or Subsidiary becoming a Significant Subsidiary, duly execute and
deliver, and cause each such Significant Subsidiary (other than any
Significant Subsidiary organized or located outside of the United
States) to take whatever action (including, without limitation, the
filing of Uniform Commercial Code financing statements) may be
necessary or advisable in the opinion of the Administrative Agent to
vest in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens on
the shares or other ownership interests referred to in clause (ii)
above, enforceable against all third parties in accordance with their
terms;
(iv) within 60 days after such request, formation, acquisition or
Subsidiary becoming a Significant Subsidiary, deliver to the
Administrative Agent, upon the request of the Administrative Agent in
its sole discretion, a signed copy of a favorable opinion, addressed
to the Administrative Agent and the other Secured Parties, of counsel
for the Loan Parties acceptable to the Administrative Agent as to the
matters contained in clauses (i), (ii) and (iii) above, as to such
guaranties, guaranty supplements and pledges being legal, valid and
binding obligations of the Company or its Subsidiaries enforceable in
accordance with their terms and as to such other matters as the
Administrative Agent may reasonably request;
(v) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Administrative Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, guaranty supplements or
pledges; and
(vi) promptly upon such request, formation or acquisition related
to any subsidiary that is a Non-U.S. Subsidiary, or upon a Non-U.S.
Subsidiary becoming a Significant Subsidiary, pledge or cause its
Subsidiaries to pledge to the Administrative Agent on behalf of the
Secured Parties, 65% of the total outstanding shares or other
ownership interests of such Non-U.S. Subsidiary owned by the Company
or its Subsidiaries;
(k) FURTHER ASSURANCES. (i) Promptly upon request by the
Administrative Agent, or any Lender Party through the Administrative Agent,
correct any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgment, filing or recordation
thereof, and
(ii) promptly upon request by the Administrative Agent, or any
Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, conveyances, pledge
agreements, assignments, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Administrative
Agent, or any Lender Party through the Administrative Agent, may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest
extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the Liens
now or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (D) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto
the Administrative Agent and the Lender parties the rights granted or
<PAGE>
51
now or hereafter intended to be granted to the Administrative Agent
and the Lender Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any
Loan Party or any of its Subsidiaries is or is to be a party, and
cause each of its Subsidiaries to do so; and
(l) CONDITIONS SUBSEQUENT. On or before the date that is 30 days
after the Effective Date or, if earlier, upon the designation of a Non-U.S.
Subsidiary as a Designated Subsidiary under Section 9.11:
(i) to the extent requested by the Administrative Agent, use
its best efforts to obtain the certificates representing 65% of the
Pledged Shares in respect of the Non-U.S. Guarantors set out on
Schedule 3.01(a)(ii)(A)(2) (and to take such other action to perfect
the security interest in those Pledged Shares) together with undated
stock powers executed in blank.
(ii) deliver the following to the Administrative Agent:
(A) The Non-U.S. Guaranty duly executed by all Non-U.S
Subsidiaries that are Significant Subsidiaries, as requested by
the Administrative Agent.
(B) Certified copies of the resolutions of the Board of
Directors of each Non-U.S. Subsidiary that is a Significant
Subsidiary approving the Transaction and each Loan Document to
which it is or is to be a party, and of all documents evidencing
other necessary corporate action and governmental approvals, if
any, with respect to the Transaction and each Loan Document to
which it is or is to be a party and of the transactions
contemplated hereby.
(C) A copy of a certificate of the Secretary of State (or
other similar document) of the jurisdiction of incorporation of
each Non-U.S. Subsidiary that is a Significant Subsidiary, dated
not more than 30 days after the Effective Date, in each case
listing the charter of such Significant Subsidiary and each
amendment thereto on file in his office and certifying that (A)
such charter is a true and correct copy thereof, (B) such
amendments are the only amendments to such charter on file in his
office, (C) such Person has paid all franchise taxes to the date
of such certificate and (D) such Person is duly incorporated and
in good standing under the laws of the State of the jurisdiction
of its incorporation.
(D) A certificate of each Non-U.S. Subsidiary that is a
Significant Subsidiary, signed on behalf of each such Person by
its Executive Vice President and its Secretary or by two
Directors or a Director and a Secretary, dated not more than 30
days after the Effective Date (the statements made in which
certificate shall be true on and as of such date), certifying as
to (A) the absence of any amendments to the charter of such
Person since the date of the Secretary of State's certificate (or
similar document) referred to in Section 3.01(a)(vi), (B) a true
and correct copy of the bylaws of such Person as in effect on the
date on which the resolutions referred to in Section 3.01(a)(v)
were adopted and on such date of delivery, (C) the due
incorporation and good standing or valid existence of such Person
as a corporation organized under the laws of the jurisdiction of
its incorporation and the absence of any proceeding for the
dissolution or liquidation of such Person, (D) the completeness
and accuracy of the representations and
<PAGE>
52
warranties contained in the Loan Documents as though made on and
as of such date of delivery and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension
of Credit, that constitutes a Default.
(E) A certificate of the Secretary of each Non-U.S.
Subsidiary that is a Significant Subsidiary certifying the names
and true signatures of the officers of such Persons authorized to
sign each Loan Document to which it is or is to be a party and
the other documents to be delivered hereunder and thereunder.
(F) A favorable opinion of local counsel to each Non-U.S.
Subsidiary that is a Significant Subsidiary, in form and
substance satisfactory to the Administrative Agent.
(m) SYNDICATION. Take all actions which the Administrative Agent or
the Syndication Agent may reasonably request to assist it in forming a
syndicate acceptable to it including, but not be limited to: (i) making
senior management of the Loan Parties and representatives of the Loan
Parties available to participate in informational meetings with potential
lenders at such times and places as such Agents may reasonably request; and
(ii) timely providing such Agents with all information reasonably deemed
necessary by it to successfully complete the syndication, including,
without limitation, a summary of the operating prospects (including
financial projections) of the Company and its Subsidiaries.
SECTION 5.02 NEGATIVE COVENANTS. So long as any as any Advance or any
other Obligation of any Loan Party under or in respect of any Loan Document
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Company will not, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Company or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign any
accounts or other right to receive income, EXCLUDING, HOWEVER, from the
operation of the foregoing restrictions, the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
4.01(m) hereto;
(iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(i)(C); PROVIDED that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(v) purchase money Liens upon or in real property, equipment
and other fixed assets acquired or held by the Company or any of its
Subsidiaries in the ordinary
<PAGE>
53
course of business to secure the purchase price of such property,
equipment and other fixed assets or to secure Debt incurred solely for
the purpose of financing the acquisition of any such property or
equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount; PROVIDED, HOWEVER, that
no such Lien shall extend to or cover any property other than the
property, equipment and other fixed assets being acquired, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced; and PROVIDED, FURTHER that the aggregate principal amount
of the Debt secured by Liens permitted by this clause (v) shall not
exceed the amount permitted under Section 5.02(b)(i)(F) at any time
outstanding and that any such Debt shall not otherwise be prohibited
by the terms of the Loan Documents;
(vi) the filing of financing statements solely as a precautionary
measure in connection with operating leases;
(vii) other Liens securing Debt outstanding in an aggregate
principal amount not to exceed $10,000,000;
(viii) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby; and
(ix) Liens in respect of Debt permitted by Section 5.02(b)(i)(E),
PROVIDED that such Liens are granted on assets owned solely by the
obligor of such Debt.
(b) DEBT. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(i) in the case of the Loan Parties or any of their
Subsidiaries,
(A) Debt under the Loan Documents;
(B) Debt to a Loan Party or any Subsidiary of a Loan Party,
PROVIDED, HOWEVER that any such Debt owed by a Non-U.S.
Subsidiary shall be used solely to fund working capital
requirements of such Non-U.S. Subsidiary arising in the ordinary
course of its business;
(C) Capitalized Leases, PROVIDED, HOWEVER that, at any
time, the sum of the aggregate outstanding principal component of
all Capitalized Leases, and the aggregate outstanding principal
amount of all Debt permitted under Section 5.02(b)(i)(F) shall
not exceed the higher of $75,000,000 or 5% of Net Tangible Assets
of the Company and its Subsidiaries on a consolidated basis
(determined as of the end of the Fiscal Quarter immediately
preceding the date of determination);
(D) Debt that is fully subordinated to the Facilities and
all other amounts owing or owed from time to time under the Loan
Documents on such
<PAGE>
54
terms as to subordination that are acceptable to the
Administrative Agent and the Required Lenders, including, without
limitation, the Subordinated Notes;
(E) Debt secured by receivables, PROVIDED, HOWEVER that, at
any time, the sum of the aggregate outstanding principal amount
of all Debt secured by receivables and the aggregate value of all
then outstanding receivables sold or securitized as permitted
under Section 5.02(e)(vii), shall not exceed the higher of
$75,000,000 or 5% of Net Tangible Assets of the Company and its
Subsidiaries on a consolidated basis (determined as of the end of
the Fiscal Quarter immediately preceding the date of
determination);
(F) other Debt, subject to the proviso in Section
5.02(b)(i)(C) above,
(ii) in the case of the Company and any of its Subsidiaries,
endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business.
(c) CHANGE IN NATURE OF BUSINESS. Engage, or permit any of its
Subsidiaries to engage in any significant business other than the
manufacture, sale and distribution of semiconductors or products related to
semiconductors or any business that is a reasonable extension of the
business as currently conducted by the Company or its Subsidiaries.
(d) MERGERS, ETC. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) the Company or any Subsidiary of the Company may merge into
or consolidate with any Person PROVIDED, HOWEVER, that (x) immediately
prior to such merger or consolidation such other Person conducts a
business that is substantially similar to the business currently
conducted by the Company and its Subsidiaries and the surviving Person
is the Company or a Subsidiary of the Company and (y) after giving
effect to such merger or consolidation Net Cash shall not be less than
$200,000,000, except for any merger or consolidation in which the
consideration consists exclusively of Equity Interests in the Company;
(ii) any Subsidiary of the Company may merge into or consolidate
with the Company so long as the surviving Person is the Company;
(iii) any Subsidiary of the Company may merge into or consolidate
with a U.S. Subsidiary, so long as the surviving Person is a
wholly-owned U.S. Subsidiary of the Company;
(iv) any Non-U.S. Subsidiary may merge into or consolidate with
any other Non-U.S. Subsidiary provided that if any Non-U.S. Guarantor
is a party to such merger or consolidation, the surviving Person shall
be or become a Non-U.S. Guarantor;
PROVIDED, HOWEVER, that in each of (i) through (iv) above, immediately
before such merger or consolidation, and when considered on a Pro Forma
Basis, no Default shall have occurred and be continuing.
<PAGE>
55
(e) SALES, ETC., OF ASSETS. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets, except:
(i) sales of inventory (including, without limitation, sales
of obsolete inventory) in the ordinary course of its business,
(ii) in a transaction permitted by Section 5.02(d) or for
transfers of assets between the Company and it Subsidiaries permitted
by Section 5.02(f),
(iii) sales, trade-ins or dispositions of used equipment for fair
value in the ordinary course of business consistent with past
practices,
(iv) sales of assets listed on Schedule 5.02(e)(iv),
(v) licenses of technology in the ordinary course of business,
(vi) sales of assets (other than current assets) in an aggregate
amount not to exceed 10% of the total Tangible Net Worth of the
Company and its Significant Subsidiaries (on a consolidated basis) as
determined at the time of each such proposed sale; PROVIDED that (x)
such sales are for fair market value and (y) not less than 85% of the
consideration received from any such sale consists of cash or Debt
assumed by the purchaser, and
(vii) sales or securitization of receivables, subject to the
proviso in Section 5.02(b)(i)(E) above.
(f) INVESTMENTS. Make or hold, or permit any of its Subsidiaries to
make or hold, any Investment other than:
(i) equity Investments by the Company and its wholly-owned
Subsidiaries in majority-owned Subsidiaries outstanding on the date
hereof and in newly-formed Subsidiaries created for the purposes of
effecting a merger, consolidation or Investment permitted hereunder;
(ii) additional equity investments by the Company in (1) U.S.
Guarantors or Non-U.S. Guarantors, or (2) wholly-owned U.S.
Subsidiaries other than U.S. Guarantors, or (3) majority-owned
Non-U.S. Subsidiaries of the Company, PROVIDED, HOWEVER, that the
aggregate amount invested under clauses (2) and (3) above from the
date hereof is not to exceed 10% of the total Tangible Net Worth of
the Company and its Subsidiaries (on a consolidated basis) as
determined at the time of each such proposed investment;
(iii) Investments consisting of Debt to the Company permitted by
Section 5.02(b)(i)(B);
(iv) Investments by the Company and its Subsidiaries in demand
deposit accounts maintained in the ordinary course of business with
any Person of the type referred to in clause (i), (ii), (iii), (iv) or
(v) of the definition of "Eligible Assignee" and in Cash Equivalents;
<PAGE>
56
(v) Investments by the Company or a Subsidiary of the Company in
Permitted Acquisitions; PROVIDED that:
(A) after making any such Permitted Acquisition Net Cash
shall not be less than $200,000,000, except where the
consideration for such Permitted Acquisition consists exclusively
of Equity Interests in the Company;
(C) the Company shall have furnished the Administrative
Agent with a schedule in form satisfactory to the Administrative
Agent of the computations used by the Company in determining
compliance with such requirements; and
(D) immediately before and after giving effect thereto, no
Default shall have occurred and be continuing or would result
therefrom;
(vi) Investments described on Schedule 5.02(f)(vi) hereto (which
shall set forth as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof);
(vii) equity Investments received in consideration by the Company
or any Subsidiary for the licensing of technology owned or licensed by
the Company or such Subsidiary, respectively, in the ordinary course
of business on a basis consistent with past practice or consistent
with evolving industry practice;
(viii) loans and advances to employees in the ordinary course of
the business of the Company and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $10,000,000
at any time outstanding; and
(ix) other Investments, PROVIDED that after making any such
Investment Net Cash shall not be less than $200,000,000, except where
the consideration for such Permitted Acquisition consists exclusively
of Equity Interests in the Company, and PROVIDED FURTHER, in the case
of Investments referred to in clause (i) of the definition thereof,
that the Company shall retain control of the entity in which the
Investments are made.
(g) RESTRICTED PAYMENTS. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value Equity Interests of the Company or
to issue or sell any Equity Interests of such Subsidiary, except that:
(i) the Company may (A) declare and pay dividends and
distributions payable only in common stock of the Company, and (B)
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock for cash PROVIDED, HOWEVER, that the aggregate amount of
all such purchases, redemptions, retirements, defeasances and
acquisitions under this clause (B) from the date hereof is not to
exceed $150,000,000, and PROVIDED FURTHER that at the time of any
purchase, redemption, retirement, defeasance or acquisition under this
clause (B) or as a result of any such action, (x) no Default shall
have occurred and be continuing, and (y) Net Cash shall not be less
than $200,000,000; and
<PAGE>
57
(ii) any Subsidiary of the Company may (A) declare and pay cash
dividends to the Company, (B) declare and pay cash dividends to any
other wholly owned U.S. Subsidiary of the Company of which it is a
Subsidiary and (C) accept capital contributions from its parent to the
extent permitted under Section 5.02(f).
(h) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices for Consolidated financial statements, except as
required by generally accepted accounting principles or to the extent such
change is to an alternative principle which in the judgment of the
Company's independent accountant is preferable under the circumstances in
accordance with Rule 10-01 of Regulation S-X promulgated by the Securities
and Exchange Commission or (ii) Fiscal Year.
(i) PREPAYMENTS, ETC., OF DEBT. (i) Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any
subordinated debt referred to in Section 5.02(b)(i)(D), or (ii) amend,
modify or change any term or condition of any subordinated debt referred to
in Section 5.02(b)(i)(D) where such amendment, modification or change would
accelerate the payment of any principal amount of such subordinated debt or
would alter the terms of its subordination (including any definitions used
therein) or subject any obligor in respect of such subordinated debt to
more burdensome or additional covenants or events of default, or permit any
of its Subsidiaries to do any of the foregoing.
(j) NEGATIVE PLEDGE. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets other than (i) in favor of the Secured Parties or
(ii) in connection with any Debt secured by purchase money Liens and
Capitalized Leases, to the extent permitted under Section 5.02(a)(v) and
Section 5.02(b)(i)(C), respectively, and solely to the extent such
agreement is limited to the property covered by such Liens.
(k) OTHER TRANSACTIONS. Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options, or futures
contracts or any similar speculative transactions (including, without
limitation, take-or-pay contracts), but excluding Hedge Agreements designed
to manage interest rate or foreign exchange rate risk, incurred in the
ordinary course of business and consistent with prudent business practice.
SECTION 5.03 REPORTING REQUIREMENTS. So long as any Obligation of any
Loan Party under or in respect of any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Company will furnish to the Administrative Agent and
the Lender Parties:
(a) DEFAULT NOTICE. As soon as possible and in any event within five
days after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the Borrower has
taken and proposed to take with respect thereto;
(b) QUARTERLY FINANCIALS. As soon as available and in any event
within 45 days after the end of each Fiscal Quarter, commencing with the
quarter ending on or about September 30, 2000, a Consolidated balance
sheets of the Company and its Subsidiaries, in each case as of the end of
such quarter and Consolidated statements of income and, in the case of the
first three Fiscal Quarters of each Fiscal Year, cash flow of the Company
and its Subsidiaries, in each case for the period commencing at the end of
the previous quarter and ending with the end of such
<PAGE>
58
quarter and Consolidated statements of income and cash flow of the Company
and its Subsidiaries 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
month and Fiscal Year-to-date period of the preceding Fiscal Year and the
corresponding figures for the corresponding quarter and Fiscal Year-to-date
period of the annual forecast previously delivered pursuant to Section
5.03(e), all in reasonable detail and duly certified by the chief financial
officer of the Company, together with (i) a certificate of said officer
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Company has taken and proposes to take with respect
thereto.
(c) COMPLIANCE CERTIFICATES. Together with the quarterly financial
statements referred to in Section 5.03(b) for the quarters ending March,
June, September and December in each Fiscal Year and the annual financial
statements referred to in Section 5.03(d), a schedule in form satisfactory
to the Administrative Agent of the computations used by the Company in
determining compliance with the covenants contained in Sections 5.04(a)
through (d).
(d) ANNUAL FINANCIALS. As soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the Company and its Subsidiaries, including
therein Consolidated balance sheets of the Company and its Subsidiaries, in
each case as of the end of such Fiscal Year, and Consolidated statements of
income and cash flow of the Company and its Subsidiaries and of the Company
and its Subsidiaries, in each case for the period commencing at the end of
the previous Fiscal Year and ending with the end of such Fiscal Year,
accompanied as to such Consolidated statements, by an unqualified opinion
of PricewaterhouseCoopers LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with (i) a
copy of any management letter prepared by such accounting firm with respect
to such Fiscal Year and distributed to the Company, (ii) a certificate of
the chief financial officer of the Company stating that no Default has
occurred and is continuing or, if a default has occurred and is continuing,
a statement as to the nature thereof and the action that the Company has
taken and proposes to take with respect thereto, (iii) in the event of any
change from GAAP in the generally accepted accounting principles used in
the preparation of such financial statements, a statement of reconciliation
conforming such financial statements to GAAP and (iv) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Company in determining compliance with the covenants contained in Sections
5.04(a) through (g).
(e) ANNUAL FORECASTS. As soon as available and in any event no later
than the end of each Fiscal Year, forecasts prepared by management of the
Company, in form satisfactory to the Administrative Agent, of Consolidated
balance sheets, income statements and cash flow statements on a quarterly
basis for the Fiscal Year following such Fiscal Year then ended.
(f) LITIGATION. Promptly after the commencement thereof and service
or other notification to the Company, notice of all actions, suits,
investigations, litigation and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(h).
(g) SECURITIES REPORTS. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements (other than on Form S-8), that any Loan Party or any of its
Subsidiaries
<PAGE>
59
files with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national securities
exchange.
(h) ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property owned
by the Company or its Subsidiaries to be subject to any material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(i) OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as any
Lender Party (through the Administrative Agent) may from time to time
reasonably request.
SECTION 5.04 FINANCIAL COVENANTS. So long as any Advance or any other
Obligation of any Loan Party under or in respect of any Loan Document shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Company will:
(a) LEVERAGE RATIO. Maintain on a Consolidated basis for itself and
its Subsidiaries a Leverage Ratio for each Rolling Period ending on the
date set forth below of not more than the amount set forth below for such
Rolling Period:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------
Rolling Period Ending In Ratio
----------------------------------------------------------------------------------
<S> <C>
September 30, 2000 3.50 to 1.00
December 31, 2000 3.50 to 1.00
----------------------------------------------------------------------------------
March 31, 2001 3.00 to 1.00
June 30, 2001 3.00 to 1.00
September 30, 2001 3.00 to 1.00
December 31, 2001 3.00 to 1.00
March 31, 2002 3.00 to 1.00
June 30, 2002 3.00 to 1.00
September 30, 2002 3.00 to 1.00
December 31, 2002 3.00 to 1.00
----------------------------------------------------------------------------------
March 31, 2003 2.50 to 1.00
June 30, 2003 and thereafter 2.50 to 1.00
----------------------------------------------------------------------------------
</TABLE>
(b) FIXED CHARGE COVERAGE RATIO. Maintain on a Consolidated basis for
itself and its Subsidiaries a Fixed Charge Coverage Ratio for each Rolling
Period ending September 30, 2000 and thereafter of not less than 1.25 to
1:00:
(c) LIQUIDITY RATIO. Maintain at all times for itself and its
Subsidiaries from the date hereof a ratio for cash (after deducting the
amount of any cash of the Company and its Subsidiaries held by the
respective credit provider as collateral to secure the Obligations of the
Company and its Subsidiaries under any synthetic lease) PLUS Cash
Equivalents PLUS account receivables to current liabilities of not less
than 1.0 to 1.0.
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(d) LIMITATION ON LOSSES. Not have (i) an operating loss in each of
two consecutive Fiscal Quarters, or (ii) an operating loss for a Fiscal
Quarter which exceeds 3% of Tangible Net Worth as at the last day of such
Fiscal Quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable, or (ii) any Borrower shall fail
to pay any interest on any Advance or any Loan Party shall fail or make any
other payment under any Loan Document within two Business Days of when the
same shall become due and payable; or
(b) any representation or warranty made by any Loan Party or any of
its Subsidiaries (or any of their officers) under or in connection with any
Loan Document shall prove to have been incorrect in any material respect
when made and either (i) such representation or warranty cannot be remedied
and the Administrative Agent has given notice thereof to the Borrower or
(ii) such representation or warranty continues to be incorrect in a
material respect for fifteen (15) days after (A) the Borrower acknowledges
in writing that such representation or warranty is incorrect, or (B)
written notice thereof is given to the Borrower by the Administrative Agent
or any Lender; or
(c) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e), (f), (i) or (j), 5.02,
or 5.04, PROVIDED, HOWEVER that no Event of Default shall arise under this
clause (c) as a result of the noncompliance with Section 5.02(b), (f) or
(k) in respect of a Person that is acquired by the Company or a Subsidiary
as permitted hereunder after the date hereof if such noncompliance is cured
within thirty (30) days following the acquisition of such Person; or
(d) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.03, where such failure
continues for fifteen (15) days after (A) the Borrower acknowledges such
failure in writing, or (B) written notice of such failure is given to the
Borrower by the Administrative Agent or any Lender; or
(e) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed (other than those referred to in clauses (a), (b),
(c) or (d) of this Section 6.01) if such failure shall remain unremedied
for 30 days after the earlier of the date on which (A) a Responsible
Officer of the Company becomes aware of such failure or (B) written notice
thereof shall have been given to the Company by the Administrative Agent or
any Lender Party; or
(f) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt or any Hedge Agreement of such Loan Party or such Subsidiary
(as the case may be) that is outstanding in a principal amount, or in the
case of any Hedge Agreement an Agreement Value, of at least $5,000,000
either individually or in the aggregate for all such Loan Parties and
Subsidiaries (but excluding Debt outstanding hereunder) of such Loan Party
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required
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prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof PROVIDED, HOWEVER, that no Event of Default shall arise under this
clause (f) as a result of the nonpayment of any Debt or any Hedge Agreement
of any Person which is acquired by the Company or any of its Subsidiaries
as permitted hereunder after the date hereof so long as the aggregate
outstanding principal amount of such Debt, or Agreement Value of such Hedge
Agreement, does not exceed $25,000,000 and such nonpayment does not
continue for more than three (3) Business Days after the acquisition of
such Person; or
(g) the Company, any Loan Party which is a Significant Subsidiary or
any of its Significant Subsidiaries shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Company,
any Loan Party that is a Significant Subsidiary or any of their Significant
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently contested by
it in good faith, either such proceeding shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or the Company, any Loan Party that is a Significant Subsidiary or
any of their Significant Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(h) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of $5,000,000 (to the extent not fully
paid or discharged) shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(i) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could reasonably be likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(j) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) or (k) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party to it, or any
such Loan Party shall so state in writing; or
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(k) any Collateral Document or financing statement, after delivery
thereof pursuant to Section 3.01 or 5.01(j) or (k), shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected first priority lien on and security interest in the Collateral
purported to be covered thereby; or
(l) a Change of Control shall occur; or
(m) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $5,000,000; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $5,000,000 or requires
payments exceeding $1,000,000 per annum; or
(o) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $5,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Company,
declare the Commitments of each Lender Party and the obligation of each Lender
to make Advances (other than Letter of Credit Advances by the Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Company, declare the Advances, all interest thereon and all other
amounts payable under this Agreement, the Notes, if any, and the other Loan
Documents to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower and (B) by notice to each party
required under the terms of any agreement in support of which a Standby Letter
of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable; PROVIDED, HOWEVER, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party or
any of its Subsidiaries under the Federal Bankruptcy Code or any similar statute
in effect in any Non-U.S. jurisdiction applicable to any such Loan Party or
Subsidiary, (x) the Commitments of each Lender Party and the obligation of each
Lender to make Advances (other than Letter of Credit Advances by the Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Bank to issue
Letters of Credit shall automatically be terminated and (y) the Advances, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
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SECTION 6.02 ACTIONS IN RESPECT OF THE LETTERS OF CREDIT UPON DEFAULT.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Company to, and forthwith upon such
demand the Company will, pay to the Administrative Agent on behalf of the Lender
Parties in same day funds at the Administrative Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the Administrative Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Company will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim. Upon the drawing of any Letter of Credit
for which funds are on deposit in the L/C Cash Collateral Account, such funds
shall be applied to reimburse the Issuing Bank or Lenders, as applicable, to the
extent permitted by applicable law.
ARTICLE VII
GUARANTY
SECTION 7.01 UNCONDITIONAL GUARANTY. For valuable consideration,
receipt whereof is hereby acknowledged, and to induce each Lender to make
Advances to the Designated Subsidiaries and to induce the Administrative Agent
to act hereunder, the Company hereby unconditionally and irrevocably guarantees
to each Lender and the Administrative Agent the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all obligations of
any Designated Subsidiary now or hereafter existing under this Agreement,
whether for principal, interest, fees, expenses, post-petition interest,
indemnities or otherwise (such obligations being the "OBLIGATIONS"). Without
limiting the generality of the foregoing, the Company's liability shall extend
to all amounts that constitute part of the Obligations and would be owed by any
Designated Subsidiary to the Administrative Agent or any other Lender under this
Agreement but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
any Designated Subsidiary.
SECTION 7.02 GUARANTY ABSOLUTE. The Company guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Lender or
the Administrative Agent with respect thereto. The obligations of the Company
under this Article VII are independent of the Obligations, and a separate action
or actions may be brought and prosecuted against the Company to enforce this
Article VII, irrespective of whether any action is brought against any
Designated Subsidiary or whether any Designated Subsidiary is joined in any such
action or actions. The liability of the Company under this guaranty shall be
irrevocable, absolute and unconditional, irrespective of, and the Company hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from this Agreement;
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(c) any taking, exchange, release or non-perfection of any collateral
or any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Designated Subsidiary; or
(e) any setoff or counterclaim of any Designated Subsidiary or any
defense which results from any disability or other defense of a Designated
Subsidiary or the cessation or stay of enforcement from any cause
whatsoever of the liability of a Designated Subsidiary (including, without
limitation, the lack of validity or enforceability of any of the Loan
Documents);
(f) any defense based upon any law, rule or regulation which provides
that the obligation of a surety must not be greater or more burdensome than
the obligation of the principal;
(i) any statute of limitations to the extent permitted by law;
(j) any appraisement, valuation, stay, extension, moratorium,
redemption or similar law or similar rights for marshalling;
(k) the absence, impairment or loss of any right of subrogation,
reimbursement, exoneration, contribution or indemnification or other right
or remedy against a Designated Subsidiary, any other guarantor of the
Obligations or any security, whether resulting from an election by the
Administrative Agent or any Lender to foreclose upon security by
nonjudicial sale, or otherwise;
(l) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Company, any Designated Subsidiary or
a guarantor, other than payment in full of a guaranteed obligation (except
as provided for in the immediately succeeding sentence).
This guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any of the Lenders or the Administrative Agent upon the
insolvency, bankruptcy or reorganization of any Designated Subsidiary or
otherwise, all as though such payment had not been made.
SECTION 7.03 WAIVERS AND ACKNOWLEDGMENTS. (a) The Company hereby
expressly waives promptness, diligence, notice of acceptance, presentment,
demand for payment, protest, any requirement that any right or power be
exhausted or any action be taken against any Designated Subsidiary or against
any other guarantor of all or any portion of the Advances, and all other notices
and demands whatsoever.
(b) The Company hereby waives any right to revoke this guaranty, and
acknowledges that this guaranty is continuing in nature and applies to all
Obligations, whether existing now or in the future.
(c) The Company hereby waives any right to be informed by the
Administrative Agent or any Lender of the financial condition of any Designated
Subsidiary or any other guarantor of the Obligations or any change therein or
any other circumstances bearing upon the risk of nonpayment or nonperformance of
the Obligations.
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(d) The Company hereby waives any right it may have to a fair value
hearing to determine the size of a deficiency judgment following any foreclosure
on any security for the Obligations.
(e) Without limiting the scope of any of the foregoing provisions of
the Section 7.03, the Company hereby further waives (i) all rights and defenses
arising out of an election of remedies by Agent or any Lender, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for any Obligation, has destroyed the Company's rights of subrogation and
reimbursements against any Designated Subsidiary by the operation of Section
580d of the California Code of Civil Procedure or otherwise, (ii) all rights and
defenses the Company may have by reason of protection afforded to any Designated
Subsidiary with respect to the Obligations pursuant to the antideficiency or
other laws of California limiting or discharging the Obligations, including,
without limitation, Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure, and (III) all other rights and defenses available to the
Company by reason of Sections 2787 to 2855, inclusive, Section 2899 or Section
3433 of the California Civil Code or Section 3605 of the California Commercial
Code.
(f) The Company is fully aware of the financial condition and affairs
of each Designated Subsidiary. The Company has executed this Agreement without
reliance upon any representation, warranty, statement or information concerning
any Designated Subsidiary furnished to the Company by the Administrative Agent
or any Lender and has, independently, and without reliance on the Administrative
Agent or any Lender, and based upon such documents and information as it has
deemed appropriate, made its own appraisal of the financial condition and
affairs of each Designated Subsidiary and of other circumstances affecting the
risk of nonpayment or nonperformance of the Obligations. The Company is in a
position to obtain and assumes full responsibility for obtaining, any additional
information about the financial condition and affairs of each Designated
Subsidiary and of other circumstances affecting the risk of nonpayment or
nonperformance of the Obligations and will, independently and without reliance
upon the Administrative Agent or any Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action in connection with this
Guaranty.
(g) The Company acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated herein and
that the waivers set forth in this Article VII are knowingly made in
contemplation of such benefits.
SECTION 7.04 SUBROGATION. The Company will not exercise any rights
that it may now or hereafter acquire against any Designated Subsidiary or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of the Obligations under this Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Administrative Agent or any other Lender against a Designated Subsidiary or any
other insider guarantor or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from a Designated Subsidiary or
any other insider guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right, unless and until all of the Obligations and all other
amounts payable under this guaranty shall have been paid in full in cash and the
Commitments shall have expired or terminated. If any amount shall be paid to the
Company in violation of the preceding sentence at any time prior to the later of
the payment in full in cash of the Obligations and all other amounts payable
under this guaranty and the Termination Date, such amount shall be held in trust
for the benefit of the Administrative Agent and the other Lenders and shall
forthwith be paid to the Administrative Agent to be credited and applied to the
Obligations and all other amounts payable under this guaranty, whether matured
or unmatured, in accordance with the terms of this Agreement, or to be held as
collateral for any Obligations or other amounts payable under this guaranty
thereafter arising. If (i) the Company shall
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make payment to the Administrative Agent or any other Lender of all or any part
of the Obligations, (ii) all the Obligations and all other amounts payable under
this guaranty shall be paid in full in cash and (iii) the Termination Date shall
have occurred, the Administrative Agent and the other Lenders will, at the
Company's request and expense, execute and deliver to the Company appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to the Company of an interest in the
Obligations resulting from such payment by the Company. The Company acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Agreement and that the waiver set forth in
this section is knowingly made in contemplation on such benefits.
SECTION 7.05 SUBORDINATION. The Company hereby subordinates any and
all debts, liabilities and obligations owed to the Company by each Designated
Subsidiary (the "SUBORDINATED OBLIGATIONS") to the Obligations as provided in
this Section 7.05.
(a) PROHIBITED PAYMENTS. Except during the continuance of a Default
the Company may receive regularly scheduled payments from each Designated
Subsidiary on account of Subordinated Obligations, as otherwise permitted by
Section 5.02. After the occurrence and during the continuance of any Default,
however, unless the Administrative Agent otherwise agrees, the Company shall not
demand, accept or take any action to collect payment on account of the
Subordinated Obligations.
(b) PRIOR PAYMENT OF OBLIGATIONS. In any bankruptcy or similar
proceeding relating to any Designated Subsidiary, the Company agrees that the
Administrative Agent and the Lenders shall be entitled to receive payment of all
Obligations (including any and all interest and expenses accruing after the
commencement of such proceedings) before the Company receives payment of any
Subordinated Obligations.
(c) TURN OVER. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any bankruptcy
proceeding relating to any Designated Subsidiary), the Company shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Administrative Agent
and the Lenders and deliver such payments to the Administrative Agent's on
account of the Obligations (including any and all interest and expenses accruing
after the commencement of the proceedings), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of the Company under the other provisions of the
Guaranty in this Article VII.
(d) ADMINISTRATIVE AGENT AUTHORIZATION. After the occurrence and
during the continuance of any Default, the Administrative Agent is authorized
and empowered (but without any obligation to do so), in its discretion, (i) in
the name of the Company to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amount received thereon to the
Obligations (including any and all Interest and Expenses accruing after the
commencement of such proceedings), and (ii) to require the Company (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Obligations (including any and all
Interest and Expenses accruing after the commencement of such proceedings).
SECTION 7.06 SURVIVAL. This guaranty is a continuing guaranty and
shall (a) remain in full force and effect until payment in full (after the
Termination Date) of the Obligations and all other amounts payable under this
guaranty, (b) be binding upon the Company, its successors and assigns, (c) inure
to the benefit of and be enforceable by each Lender (including each assignee
Lender pursuant to Section 9.07) and the Administrative Agent and their
respective successors, transferees and assigns and
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(d) shall be reinstated if at any time any payment to a Lender or the
Administrative Agent hereunder is required to be restored by such Lender or the
Administrative Agent. Without limiting the generality of the foregoing clause
(c), each Lender may assign or otherwise transfer its interest in any Advance to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to such Lender
herein or otherwise.
ARTICLE VIII
THE AGENTS
SECTION 8.01 AUTHORIZATION AND ACTION. Each Lender Party (in its
capacities as a Lender and the Issuing Bank (if applicable)) hereby appoints and
authorizes the Administrative Agent to execute and deliver the Collateral
Documents (subject to section 9.01) for the purpose of creating a security
interest for the benefit of each Lender Party and to take such action as agent
on its behalf and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Debt resulting from the Advances), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
PROVIDED, HOWEVER, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender Party prompt notice of each notice given to it by the
Company pursuant to the terms of this Agreement.
SECTION 8.02 AGENTS' RELIANCE, ETC. No Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with the Loan Documents, except
for its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agents: (a) may treat the Lender that
made any Advance as the holder of the Debt resulting therefrom until such Agent
receives and accepts an Assignment and Acceptance entered into by such Lender,
as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopy)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03 BNP PARIBAS AND AFFILIATES. With respect to its
Commitments, the Advances made by it and any Notes issued to it, BNP Paribas
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not an Agent; and the
term "Lender Party" or "Lenders Parties" shall, unless otherwise expressly
indicated,
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include BNP Paribas in its individual capacity. BNP Paribas and its affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person who may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if BNP Paribas were not an Agent and without any duty to account therefor to the
Lender Parties.
SECTION 8.04 LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05 INDEMNIFICATION. (a) Each Lender Party (other than the
Designated Bidders) severally agrees to indemnify each Agent (to the extent not
promptly reimbursed by the Borrowers) from and against such Lender Party's
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable fees and expenses of counsel) that may be imposed on,
incurred by, or asserted against such Agent in any way relating to or arising
out of the Loan Documents or any action taken or omitted by such Agent under the
Loan Documents (collectively the "INDEMNIFIED COSTS"); PROVIDED, HOWEVER, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
(other than the Designated Bidders) agrees to reimburse such Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower.
(b) Each Lender (other than the Designated Bidders) severally agrees
to indemnify the Issuing Bank (to the extent not promptly reimbursed by the
Borrowers) from and against such Lender's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Issuing Bank in any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Issuing Bank under the Loan Documents; PROVIDED,
HOWEVER, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender (other
than the Designated Bidders) agrees to reimburse the Issuing Bank promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrowers.
(c) For purposes of this Section 8.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Revolving Credit Advances and
Letter of Credit Advances outstanding at such time and owing to the respective
Lender Parties, (ii) their respective Pro Rata Shares of the aggregate Available
Amount of all Letters of Credit outstanding at such time and (iii) their
respective Unused Revolving Credit Commitments at such time; PROVIDED that the
aggregate principal amount of Letter of Credit Advances
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owing to the Issuing Bank shall be considered to be owed to the Lenders ratably
in accordance with their respective Revolving Credit Commitments at such time.
In the case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such investigation,
litigation or proceeding is brought by any Agent, any Lender, any other Lender
Party or a third party. The failure of any Lender Party (other than the
Designated Bidders) to reimburse any Agent or the Issuing Bank, as the case may
be, promptly upon demand for its ratable share of any amount required to be paid
by the Lender Parties to any Agent or the Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse any Agent or the Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse any Agent or the Issuing
Bank, as the case may be, for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender Party contained in
this Section 8.05 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan Documents.
SECTION 8.06 SUCCESSOR AGENTS. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Company and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal by the Administrative Agent, the Required Lenders shall
have the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. If within 45 days after written notice is
given of the retiring Administrative Agent's resignation or removal under this
Section 8.06 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation or removal shall become effective, (ii) the
retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
shall become effective, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 8.07 OTHER AGENTS
The Administrative Agent may, in its sole discretion appoint a
Documentation Agent, Syndication Agent or other Agent under this Agreement. Each
Lender Party hereby acknowledges that neither the Documentation Agent,
Syndication Agent nor any other Lender Party designated as any "Agent" on the
signature pages hereof other than the Administrative Agent has any
responsibilities or liability hereunder other than in its capacity as a Lender,
the titles Documentation Agent and Syndication Agent being purely honorary in
nature.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or any Revolving Credit Notes or any other Loan Document, nor
consent to any departure by any Borrower or any other Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed
(or, in the case of the Collateral Documents, consented to) by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; PROVIDED, HOWEVER, that
(a) no amendment, waiver or consent shall, unless in writing and signed by all
of the Lenders (other than the Designated Bidders), do any of the following at
any time: (i) waive any of the conditions specified in Section 3.01, (ii) change
the percentage of (x) the Commitments, (y) the aggregate unpaid principal amount
of the Revolving Credit Advances and Letter of Credit Advances or (z) the
aggregate Available Amount of outstanding Letters of Credit that, in each case,
shall be required for the Lenders or any of them to take any action hereunder,
(iii) release all or substantially all of the Collateral in any transaction or
series of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents or (iv)
amend this Section 9.01 and (b) no amendment, waiver or consent shall, unless in
writing and signed by the Required Lenders and each Lender that has a Commitment
under the Revolving Credit Facility and that is directly affected by such
amendment, waiver or consent, (i) increase the Commitments of such Lender or
amend Section 2.14 so as to subject such Lender to additional Obligations, (ii)
reduce the principal of, or interest on, the Revolving Credit Advances or Letter
of Credit Advances payable to such Lender or any fees or other amounts payable
to such Lender, (iii) postpone any date scheduled for any payment of principal
of, or interest on, the Advances payable to such Lender pursuant to Section 2.04
or Section 2.08 or any date fixed for payment of fees or other amounts payable
to such Lender or (v) change the order of application of any prepayment set
forth in Section 2.07 in any manner that materially adversely affects such
Lender; PROVIDED FURTHER that no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank, in addition to the Lenders required
above to take such action, affect the rights or obligations of the Issuing Bank
under this Agreement; and PROVIDED FURTHER that no amendment, waiver or consent
shall, unless in writing and signed by each affected Agent in addition to the
Lenders required above to take such action, affect the rights or duties of such
Agent under this Agreement or the other Loan Documents.
SECTION 9.02 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered by an overnight courier of nationally
recognized standing, if to the Company or any other Loan Party, at the address
of the Company at 233 Kansas Street, El Segundo, California 90245, Attention:
Treasury Department, telecopier number (310) 726-8439 (with a copy to the
attention of General Counsel, telecopier number (310) 726-8484); if to any
Initial Lender or any Initial Issuing Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender Party,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; and if to the Administrative Agent,
at its address at 180 Montgomery Street, California 94104, Attention: Thomas
Kunz and Paggie Wong, telecopier number (415) 956-4230 (with a copy, for any
notice to the Administrative Agent hereunder other than any Notice of Borrowing,
to the attention of Tjalling Terpstra, Vice President, telecopier number (213)
488-9602); or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied or sent by courier, be effective
when deposited in the mails, transmitted by telecopier, or delivered to the
overnight courier, respectively, except that notices and communications to any
Agent pursuant to Article II, III or VIII shall not be effective until received
by such Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any
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provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 9.03 NO WAIVER; REMEDIES. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04 COSTS AND EXPENSES. (a) The Company agrees to pay on
demand (i) all costs and expenses of the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of, the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the Agents and
the Lender Parties in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally (including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent and each Lender Party with respect thereto).
(b) The Borrowers agree to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "INDEMNIFIED
PARTY") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby or (ii) the actual or alleged presence of Hazardous Materials on any
property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent such Liabilities, obligations, losses, damages, penalties,
actions, judgments, suits are found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any other Person, whether
or not any Indemnified Party is otherwise a party thereto and whether or not the
Transaction is consummated. Each Borrower also agrees not to assert any claim
against any Agent, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advances, LIBO Rate Advance or Local Rate Advances is made by
any Borrower to or for the account
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of a Lender Party other than on the last day of the Interest Period for such
Advance, as a result of an assignment in connection with a syndication
contemplated by Section 2.02(c), a payment or Conversion pursuant to Section
2.07, 2.10(b)(i) or 2.11(d), acceleration of the maturity of the Advances
pursuant to Section 6.01 or for any other reason or by an Eligible Assignee to a
Lender Party other than on the last day of the Interest Period for such Advance
upon an assignment of rights and obligations under this Agreement pursuant to
Section 9.07 as a result of a demand by the Company pursuant to Section 9.07(a),
such Borrower shall, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.11 and 2.13 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05 RIGHT OF SET-OFF. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of any Borrower against any and
all of the Obligations of such Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such Obligations may be unmatured. Each Agent
and each Lender Party agrees promptly to notify such Borrower after any such
set-off and application; PROVIDED, HOWEVER, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender Party and its respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender Party and its respective Affiliates may
have.
SECTION 9.06 BINDING EFFECT. This Agreement shall become effective
(other than Section 2.01, 2.03 and 2.04, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Company and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender and the
Initial Issuing Bank that such Initial Lender and the Initial Issuing Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Company, the Administrative Agent and each Lender Party and their respective
successors and assigns, except that the Company shall not have the right to
assign its rights hereunder or any interest herein (other than in pursuant to a
Designation Letter) without the prior written consent of the Lender Parties.
SECTION 9.07 ASSIGNMENTS, DESIGNATIONS AND PARTICIPATIONS. (a) Each
Lender (other than the Designated Bidders) may and, so long as no Default has
occurred and is continuing, if demanded
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by the (following a demand by such Lender pursuant to Section 2.11 or 2.13)
shall upon at least 5 Business Days' notice to such Lender and the
Administrative Agent, assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Revolving
Credit Advances owing to it and any Revolving Credit 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 under this Agreement (other
than any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes), (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender, an Affiliate of
any Lender or an Approved Fund of any Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the aggregate amount of
the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 (or such
lesser amount as shall be approved by the Company and the Administrative Agent)
and shall be in an integral multiple of $500,000, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Company pursuant to this Section 9.07(a) shall be arranged by
the Company after consultation with the Administrative Agent and shall be either
an assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Company pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Company or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, (vi) no such assignments shall be permitted without the consent of
the Administrative Agent until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed,
and (vii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Credit Note or Notes
subject to such assignment and a processing and recordation fee of $3,500.
(b) 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 Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing 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 or the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party 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 any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Lender Party makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or any other Loan
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Party or the performance or observance by any Loan Party of any of its
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party 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 confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Revolving Credit Note
or Notes requested by the Assignee subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Company.
(e) Each Lender (other than the Designated Bidders) may designate one
or more banks or other entities to have a right to make Competitive Bid Advances
as a Lender pursuant to Section 2.04; PROVIDED, HOWEVER, that (i) no such Lender
shall be entitled to make more than two (2) such designations, (ii) each such
Lender making one or more of such designations shall retain the right to make
Competitive Bid Advances as a Lender pursuant to Section 2.04, (iii) each such
designation shall be to a Designated Bidder and (iv) the parties to each such
designation shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Designation Agreement, the designee thereunder shall be a
party hereto with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.04 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the Lender
making the designation thereunder and its designee thereunder confirm and agree
with each other and the other parties hereto as follows: (i) such Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company 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 designee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon the Administrative Agent, such
designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion
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under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such designee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit M hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Company.
(h) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lender Parties and, with respect to Lenders other
than Designated Bidders, the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party 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
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(i) Each Lender Party may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
any Note or Notes held by it) to any Person other than any Loan Party or any of
its Subsidiaries or Affiliates; PROVIDED, HOWEVER, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of such Advances and any such
Note for all purposes of this Agreement, (iv) each Borrower, each Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, postpone any date fixed
for any payment of principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral.
(j) Any Lender Party may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 9.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Company furnished to such Lender Party by or on behalf of the
Company.
(k) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any 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.
<PAGE>
76
SECTION 9.08 CONFIDENTIALITY. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Company, other than (a) to such Agent's or such Lender Party's Affiliates
and Approved Funds and their officers, directors, employees, agents and advisors
and to actual or prospective Eligible Assignees and Participants (who shall be
bound by this provision as though a Lender Party), and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) as requested or required by any state, Federal or foreign authority
or examiner regulating such Lender Party and (d) to any rating agency when
required by it, PROVIDED that, prior to such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Confidential Information
relating to the Loan Parties received by it from such Lender Party.
SECTION 9.09 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by fax of an executed counterpart of a signature page to this Agreement
shall be effective as delivery of an original executed counterpart of this
Agreement.
SECTION 9.10 NO LIABILITY OF THE ISSUING BANK. The Borrower requesting
any Letter of Credit assumes all risks of the acts or omissions of any
beneficiary or transferee of such Letter of Credit with respect to its use of
such Letter of Credit. Neither the Issuing Bank nor any of its officers or
directors shall be liable or responsible for: (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by the Issuing Bank against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any documents to bear
any reference or adequate reference to the Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except that such Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to such Borrower, to the extent of
any direct, but not consequential, damages suffered by such Borrower that such
Borrower proves were caused by (i) the Issuing Bank's willful misconduct or
gross negligence as determined in a final, non-appealable judgment by a court of
competent jurisdiction in determining whether documents presented under any
Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 9.11 DESIGNATED SUBSIDIARIES. (a) DESIGNATION. The Company may
at any time, and from time to time, by delivery to the Administrative Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit D-1 hereto, designate such Subsidiary
as a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Administrative Agent shall promptly notify each Lender of each
such designation by the Company and the identity of the respective Subsidiary.
(b) OPINION OF LOCAL COUNSEL TO NON-U.S. GUARANTORS. Following the
designation of a Subsidiary as a "Designated Subsidiary" under Section 9.11(a)
the Company shall use all reasonable efforts to have delivered to the
Administrative Agent opinions of local counsel for the Non-U.S. Guarantors, in
each case as requested by, and in form and substance acceptable to, the
Administrative Agent.
<PAGE>
77
(c) TERMINATION. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement and the Notes
of any Designated Subsidiary then, so long as at the time no Notice of Revolving
Credit Borrowing or Notice of Competitive Bid Borrowing in respect of such
Designated Subsidiary is outstanding, such Subsidiary's status as a "Designated
Subsidiary" shall terminate upon notice to such effect from the Administrative
Agent to the Lenders (which notice the Administrative Agent shall give promptly,
and only upon its receipt of a request therefor from the Company). Thereafter,
the Lenders shall be under no further obligation to make any Advance hereunder
to such Designated Subsidiary.
SECTION 9.12 JURISDICTION, ETC. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any California court or federal court of the United
States of America sitting in Los Angeles California, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such California
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any California State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.13 GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
California.
SECTION 9.14 JUDGMENT. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Dollars into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at BNP Paribas' principal office in
London at 11:00 A.M. (London time) on the Business Day preceding that on which
final judgment is given.
(b) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in a Foreign Currency into Dollars, the
parties agree to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase such Foreign Currency with
Dollars at BNP Paribas' principal office in London at 11:00 A.M. (London time)
on the Business Day preceding that on which final judgment is given.
(c) The obligation of the Borrowers in respect of any sum due from it
in any currency (the "PRIMARY CURRENCY") to any Lender Party or the
Administrative Agent hereunder shall, notwithstanding any judgment in any other
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender Party or the Administrative Agent (as the case
<PAGE>
78
may be), of any sum adjudged to be so due in such other currency, such Lender
Party or the Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the applicable Primary Currency with such
other currency; if the amount of the applicable Primary Currency so purchased is
less than such sum due to such Lender Party or the Administrative Agent (as the
case may be) in the applicable Primary Currency, each Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender Party or the Administrative Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender Party or the Administrative Agent (as the case may be) in
the applicable Primary Currency, such Lender Party or the Administrative Agent
(as the case may be) agrees to remit to the applicable Borrower such excess.
SECTION 9.15 SUBSTITUTION OF CURRENCY. If a change in any Committed
Currency or Foreign Currency occurs pursuant to any applicable law, rule or
regulation of any governmental, monetary or multi-national authority, this
Agreement (including, without limitation, the definitions of Eurocurrency Rate
and LIBO Rate) will be amended to the extent determined by the Administrative
Agent (acting reasonably and in consultation with the Company) to be necessary
to reflect the change in currency and to put the Lender Parties and the
Borrowers in the same position, so far as possible, that they would have been in
if no change in such Committed Currency or Foreign Currency had occurred.
<PAGE>
79
SECTION 9.16 WAIVER OF JURY TRIAL. Each of the Loan Parties, each
Agent and the Lender Parties irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
Advances, the Letters of Credit or the actions of any Agent or any Lender Party
in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
COMPANY
INTERNATIONAL RECTIFIER CORPORATION
By
---------------------------------
Title:
<PAGE>
SOLE ARRANGER, SYNDICATION AGENT, ADMINISTRATIVE
AGENT AND INITIAL ISSUING BANK
BNP PARIBAS
as Sole Arranger, Syndication Agent,
Administrative Agent and Initial Issuing Bank
By
---------------------------------------------
Title:
By
---------------------------------------------
Title:
INITIAL LENDERS
BNP PARIBAS
By
---------------------------------------------
Title:
By
---------------------------------------------
Title:
<PAGE>
ABN AMRO Bank N.V.
By
---------------------------------------------
Title:
By
---------------------------------------------
Title:
<PAGE>
SANWA BANK CALIFORNIA
By
---------------------------------------------
Title:
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By
---------------------------------------------
Title:
<PAGE>
THE FUJI BANK, LIMITED
By
---------------------------------------------
Title:
<PAGE>
COMERICA BANK - CALIFORNIA
By
---------------------------------------------
Title:
<PAGE>
MELLON BANK, N.A.
By
---------------------------------------------
Title:
<PAGE>
WELLS FARGO BANK ,N.A.
By
---------------------------------------------
Title:
<PAGE>
SCHEDULE I TO
CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
NAME OF LENDER REVOLVING LETTER OF DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
CREDIT CREDIT
COMMITMENT COMMITMENT
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BNP Paribas $22,500,000 $3,000,000 Los Angeles Branch Los Angeles Branch
725 S. Figueroa St, Suite 2090 725 S. Figueroa St, Suite 2090
Los Angeles, CA 90017 Los Angeles, CA 90017
Attention: Tjalling Terpstra / Attention: Tjalling Terpstra /
Jeffrey King Jeffrey King
Telephone: (213) 688 6425 Telephone: (213) 688 6425
Telecopier: (213) 488 9602 Telecopier: (213) 488 9602
-------------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank, N.V. $21,000,000 $2,800,000 208 South LaSalle, Suite 1500 208 South LaSalle, Suite 1500
Chicago, IL 60604-1003 Chicago, IL 60604-1003
Attention: Credit Administration Attention: Credit Administration
Telephone: (312) 992-5110 Telephone: (312) 992-5110
Telecopier: (312) 992-5111 Telecopier: (312) 992-5111
with a copy to:
with a copy to:
101 California Street, Suite 4550
101 California Street, San Francisco CA 94111-5812
Suite 4550 Attention: Joseph Endoso
San Francisco CA 94111-5812 Telephone: (415) 984-3700
Attention: Joseph Endoso Telecopier:(415) 362-3524
Telephone: (415) 984-3700
Telecopier: (415) 362-3524
-------------------------------------------------------------------------------------------------------------------------
Sanwa Bank $21,000,000 $2,800,000 9000 East Valley Boulevard 9000 East Valley Boulevard
California Rosemead CA 91770 Rosemead CA 91770
Attention: Stephen J Popovich Attention: Stephen J Popovich /
/Gregg Hessick Gregg Hessick
Telephone: (626) 312-5741 / Telephone: (626) 312-5741 /
(626) 312 5738 (626) 312 5738
Telecopier: (626) 312-5751 Telecopier: (626) 312-5751
-------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
I-2
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
NAME OF LENDER REVOLVING LETTER OF DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
CREDIT CREDIT
COMMITMENT COMMITMENT
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wells Fargo Bank, $21,000,000 $2,800,000 Los Angeles Regional Commercial Los Angeles Regional Commercial
N.A. Banking Office Banking Office
333 South Grand Avenue, 3rd Fl 333 South Grand Avenue, 3rd Fl
Los Angeles, CA 90071 Los Angeles, CA 90071
Attention Charles C. Warner Attention Charles C. Warner
Telephone: (213) 253-3658 Telephone: (213) 253-3658
Telecopier: (213) 687-3501 Telecopier: (213) 687-3501
with a copy to: with a copy to:
Commercial Banking Office Commercial Banking Office
201 Third Street; 8th floor 201 Third Street; 8th floor
San Francisco, CA 94103 San Francisco, CA 94103
Attention Evelyn Lucas Attention Evelyn Lucas
Telephone: (415) 477-5426 Telephone: (415) 477-5426
Telecopier: (415) 979-0675 Telecopier: (415) 979-0675
-------------------------------------------------------------------------------------------------------------------------
Union Bank of $21,000,000 $2,800,000 455 S. Figueroa Street, 10th Fl 455 S. Figueroa Street, 10th Fl
California, N.A. Los Angeles, CA 90071 Los Angeles, CA 90071
Attention: Robert Petersen, RVP Attention: Robert Petersen, RVP
Telephone: (213) 236-4182 Telephone: (213) 236-4182
Facsimile: (213) 236 4066 Facsimile: (213) 236 4066
with a copy to with a copy to
1980 Saturn Street 1980 Saturn Street
Monterey Park, CA 91755 Monterey Park, CA 91755
Attention: Ruby Gonzales Attention: Ruby Gonzales
Telephone: (323) 720-7055 Telephone: (323) 720-7055
Telecopier: (323) 720-6198 Telecopier: (323) 720-6198
-------------------------------------------------------------------------------------------------------------------------
The Fuji Bank, $14,500,000 $1,933,333 333 South Hope Street, 39th Fl 333 South Hope Street, 39th Fl
Limited Los Angeles, CA 90071 Los Angeles, CA 90071
Attention: Richard G. Bushman Attention: Richard G. Bushman
Telephone: (213) 253-4182 Telephone: (213) 253-4182
Telecopier: (213) 253-4175 Telecopier: (213) 253-4175
with a copy to with a copy to
333 South Hope Street, 39th Fl 333 South Hope Street, 39th Fl
Los Angeles, CA 90071 Los Angeles, CA 90071
Attention: Carol Esparza Attention: Carol Esparza
Telephone: (213) 253-4137 Telephone: (213) 253-4137
Telecopier: (213) 253-4178 Telecopier: (213) 253-4178
-------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
I-3
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
NAME OF LENDER REVOLVING LETTER OF DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
CREDIT CREDIT
COMMITMENT COMMITMENT
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Comerica Bank - $14,500,000 $1,933,333 10900 Wilshire Boulevard 10900 Wilshire Boulevard
California Los Angeles, CA 90024 Los Angeles, CA 90024
Attention: Scott Lane Attention: Scott Lane
Telephone: (310) 824-6775 Telephone: (310) 824-6775
Telecopier: (310) 824-6833 Telecopier: (310) 824-6833
with a copy to: with a copy to:
611 Anton Boulevard, 2nd Fl 611 Anton Boulevard, 2nd Fl
Costa Mesa, CA 92626 Costa Mesa, CA 92626
Telephone: (714) 435-3973 Telephone: (714) 435-3973
Telecopier: (714) 424-3857 Telecopier: (714) 424-3857
-------------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $14,500,000 $1,933,333 Three Mellon Bank, Room 2300 Three Mellon Bank, Room 2300
Pittsburgh, PA 15259 Pittsburgh, PA 15259
Attention: Emma Borza Attention: Emma Borza
Telephone: (412) 234-7365 Telephone: (412) 234-7365
Telecopier: (412) 209-6122 Telecopier: (412) 209-6122
with a copy to: with a copy to:
400 S. Hope Street, 5th Fl 400 S. Hope Street, 5th Fl
Los Angeles, CA 90071 Los Angeles, CA 90071
Attention: John N. Cate Attention: John N. Cate
Telephone: (213) 553-9561 Telephone: (213) 553-9561
Telecopier: (213) 629-0492 Telecopier: (213) 629-0492
-------------------------------------------------------------------------------------------------------------------------
TOTAL: $150,000,000 $20,000,000
----------------------------------------------------
</TABLE>
<PAGE>
EXECUTION COPY
EXHIBIT A-1
TO CREDIT
AGREEMENT
FORM OF REVOLVING CREDIT NOTE
$_______________ Dated: ____ __, ____
FOR VALUE RECEIVED, the undersigned, International Rectifier
Corporation, a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to
the order of __________________ (the "LENDER") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Revolving Credit Advance (as defined below) owing to the
Lender by the Borrower pursuant to the Credit Agreement dated as of November 2,
2000 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise
defined herein, being used herein as therein defined) among the Borrower, the
Lender and certain other Lender Parties party thereto and BNP Paribas, as Sole
Arranger, Administrative Agent and Initial Issuing Bank, on the dates and in the
amounts specified in the Credit Agreement.
The Borrower promises to pay to the Lender or its registered
assigns interest on the unpaid principal amount of each Revolving Credit Advance
from the date of such Revolving Credit Advance, until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America, or in a Committed Currency, as applicable, to BNP
Paribas, as Administrative Agent, at the Administrative Agent?s Account, in same
day funds. Each Revolving Credit Advance owing to the Lender by the Borrower and
the maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto, which is part of this Promissory Note; PROVIDED,
HOWEVER, that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the making of advances (the
"REVOLVING CREDIT ADVANCES") by the Lender to the Borrower in an amount not
to exceed the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Revolving Credit Advance being
evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note and the other Loan
Documents, and the obligations of the
<PAGE>
A1-2
other Loan Parties under the Loan Documents, are secured by the Collateral as
provided in the Loan Documents.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of California.
INTERNATIONAL RECTIFIER CORPORATION
By
---------------------------------------
Name:
Title:
<PAGE>
A1-3
<TABLE>
<CAPTION>
ADVANCES AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------------------------------------------------------------
DATE AMOUNT OF ADVANCE AMOUNT OF PRINCIPAL UNPAID PRINCIPAL NOTATION MADE BY
PAID OR REPAID BALANCE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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</TABLE>
<PAGE>
EXECUTION COPY
EXHIBIT A-2
TO CREDIT
AGREEMENT
FORM OF COMPETITIVE BID NOTE
$_______________ Dated: ____ __, 200_
FOR VALUE RECEIVED, the undersigned, International Rectifier
Corporation, a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to
the order of __________________ (the "LENDER") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Competitive Bid Advance (as defined below) owing to the
Lender by the Borrower pursuant to the Credit Agreement dated as of November 2,
2000 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise
defined herein, being used herein as therein defined) among the Borrower, the
Lender and certain other Lender Parties party thereto and BNP Paribas, as Sole
Arranger, Administrative Agent and Initial Issuing Bank, on the dates and in the
amounts specified in the Credit Agreement.
The Borrower promises to pay to the Lender or its registered
assigns interest on the unpaid principal amount of each Competitive Bid Advance
from the date of such Competitive Bid Advance, until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in the Foreign
Currency denomination of the Competitive Bid Advance to which such principal and
interest relate and are payable to BNP Paribas, as Administrative Agent, at the
Administrative Agent?s Account, in same day funds. Each Competitive Bid Advance
owing to the Lender by the Borrower and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto, which is part of
this Promissory Note; PROVIDED, HOWEVER, that the failure of the Lender to make
any such recordation or endorsement shall not affect the Obligations of the
Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "COMPETITIVE
BID ADVANCES") by the Lender to the Borrower in an amount not to exceed the
Equivalent of the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Competitive Bid Advance being evidenced by
this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified. The obligations of the Borrower under
this Promissory Note and the other Loan Documents, and the
<PAGE>
A2-2
obligations of the other Loan Parties under the Loan Documents, are secured by
the Collateral as provided in the Loan Documents.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of California.
INTERNATIONAL RECTIFIER CORPORATION
By
---------------------------------------
Name:
Title:
<PAGE>
A2-3
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
DATE AMOUNT OF ADVANCE AMOUNT OF PRINCIPAL UNPAID PRINCIPAL NOTATION MADE BY
PAID OR REPAID BALANCE
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT B-1
TO CREDIT
AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
BNP Paribas,
as Administrative Agent
under the Credit Agreement
referred to below
____________________
____________________ Dated: _____, ____
Attention: _______________
Ladies and Gentlemen:
The undersigned, [INTERNATIONAL RECTIFIER CORPORATION]/[NAME
OF DESIGNATED SUBSIDIARY], refers to the Credit Agreement dated as of _________,
2000 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; the terms defined therein being used
herein as therein defined), among International Rectifier Corporation, the
Lender Parties party thereto and BNP Paribas, as Sole Arranger, Administrative
Agent and Initial Issuing Bank, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Revolving Credit Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Revolving Credit
Borrowing (the "PROPOSED REVOLVING CREDIT BORROWING") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _________ __, [200_].
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is ______________ (1).
-------------------
(1) Proposed Revolving Credit Borrowing must be denominated in Dollars or a
Committed Currency. Revolving Credit Borrowings denominated in Committed
Currencies must be Eurocurrency Rate Advances.
<PAGE>
B1-2
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
__________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
the Proposed Revolving Credit Borrowing, before and after giving effect
to the Proposed Revolving Credit Borrowing and to the application of
the proceeds therefrom, and additionally, if the Proposed Revolving
Credit Borrowing is requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained
in its Designation Letter as though made on and as of the date of the
Proposed Revolving Credit Borrowing other than any such representations
or warranties that, by their terms, refer to a specific date other than
the date of the Proposed Revolving Credit Borrowing, in which case as
of such specific date; and
(B) no event has occurred and is continuing, or would result
from the Proposed Revolving Credit Borrowing or issuance or from the
application of the proceeds therefrom, that constitutes a Default.
Delivery of an executed counterpart of this Notice of
Borrowing by telecopier shall be effective as delivery of an original executed
counterpart of this Notice of Borrowing.
Very truly yours,
[INTERNATIONAL RECTIFIER CORPORATION] /
[DESIGNATED SUBSIDIARY]
By
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT B-2
TO CREDIT
AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
BNP Paribas,
as Administrative Agent
under the Credit Agreement
referred to below
____________________
____________________ Dated: _____, ____
Attention: _______________
Ladies and Gentlemen:
The undersigned, [INTERNATIONAL RECTIFIER CORPORATION]/[NAME
OF DESIGNATED SUBSIDIARY], refers to the Credit Agreement dated as of _________,
2000 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; the terms defined therein being used
herein as therein defined), among International Rectifier Corporation, the
Lender Parties party thereto and BNP Paribas, as Sole Arranger, Administrative
Agent and Initial Issuing Bank, and hereby gives you notice, irrevocably,
pursuant to Section 2.04 of the Credit Agreement that the undersigned hereby
requests a Competitive Bid Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Competitive Bid
Borrowing (the "PROPOSED COMPETITIVE BID BORROWING") as required by Section
2.04(a)(i) of the Credit Agreement:
(i) The Business Day of the Proposed Competitive Bid Borrowing
is _________ __, [200_].
(ii) The aggregate amount of the Proposed Competitive Bid
Borrowing is ______________.
(iii) The interest rate basis and day count convention to be
offered by the Lenders for the Proposed Competitive Bid Borrowing is
____________, and _________, respectively.
<PAGE>
B2-2
(iv) The currency of the Proposed Competitive Bid Borrowing is
___________.(1)
(v) [The Interest Period for the Proposed Competitive Bid
Borrowing is ___________.(2)] / [The maturity date for repayment of
each Local Rate Advance to be made as part of such Competitive Bid
Borrowing is ____________.(3)]
(vi) The interest payment date or dates relating to the
Proposed Competitive Bid Borrowing is or are _____________.
(vii) The location of the Borrower's account to which funds
are to be advanced relating to the Proposed Competitive Bid Drawing is
___________.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
the Proposed Competitive Bid Borrowing, before and after giving effect
to the Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, and additionally, if the Proposed Competitive Bid
Borrowing shall have been requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained
in its Designation Letter as though made on and as of the date of the
Proposed Competitive Bid Borrowing other than any such representations
or warranties that, by their terms, refer to a specific date other than
the date of the Proposed Competitive Bid Borrowing, in which case as of
such specific date; and
(B) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or issuance or from the
application of the proceeds therefrom, that constitutes a Default.
Delivery of an executed counterpart of this Notice of
Borrowing by telecopier shall be effective as delivery of an original executed
counterpart of this Notice of Borrowing.
--------------------
(1) Competitive Bid Borrowings must be denominated in a Foreign Currency.
(2) Use this alternative in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances
(3) Use this alternative in the case of a Proposed Competitive Bid Borrowing
consisting of Local Rate Advances (which maturity date may not be earlier
than the date occurring seven days after the date of such Proposed
Competitive Bid Borrowing or later than the earlier of (I) 180 days after the
date of such Proposed Competitive Bid Borrowing and (II) the Termination
Date).
<PAGE>
B2-3
Very truly yours,
[INTERNATIONAL RECTIFIER CORPORATION] /
[DESIGNATED SUBSIDIARY]
By
--------------------------------------
Name:
Title:
<PAGE>
EXHIBIT C
TO CREDIT
AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
____________, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among
International Rectifier Corporation, a Delaware corporation (the "COMPANY",
together with the Designated Subsidiaries each individually, and together, the
"BORROWER"), the Lender Parties party thereto and BNP Paribas, as Sole Arranger,
Administrative Agent and Initial Issuing Bank.
Each "Assignor" referred to on Schedule 1 hereto (each, an
"ASSIGNOR") and each "Assignee" referred to on Schedule 1 hereto (each, an
"ASSIGNEE") agrees severally with respect to all information relating to it and
its assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse
except as to the representations and warranties made by it herein, to such
Assignee, and such Assignee hereby purchases and assumes from such Assignor, an
interest in and to such Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement Facility or Facilities specified on Schedule 1 hereto. After giving
effect to such sale and assignment, such Assignee's Commitments and the amount
of the Advances owing to such Assignee will be as set forth on Schedule 1
hereto.
2. Such Assignor (i) represents and warrants that its name set
forth on Schedule 1 hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; and (iv)
attaches the Note or Notes held by such Assignor and requests that the
Administrative Agent exchange such Note or Notes for a new Note or Notes payable
to the order of such Assignee in an amount equal to the Commitments assumed by
such Assignee pursuant hereto or new Notes payable to the order of such Assignee
in an amount equal to the Commitments assumed by such Assignee pursuant hereto
and such Assignor in an amount equal to the Commitments retained by such
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
<PAGE>
C-2
3. Such Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon any Agent, any Assignor or any other Lender Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) represents and warrants that its name set
forth on Schedule 1 hereto is its legal name; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to such Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (vi) agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by it as a
Lender Party; and (vii) attaches any U.S. Internal Revenue Service forms
required under Section 2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "EFFECTIVE DATE") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) such Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender Party thereunder and (ii) such
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement (other than its rights and obligations under the Loan Documents that
are specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date of this Assignment and Acceptance) and, if this Assignment and Acceptance
covers all of the remaining portion of the rights and obligations of such
Assignor under the Credit Agreement, such Assignor shall cease to be a party
thereto.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to such Assignee. Such
Assignor and such Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of California.
<PAGE>
C-3
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of an original executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have
caused Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
<PAGE>
C-4
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
<TABLE>
<CAPTION>
====================================================================================================================
<S> <C> <C> <C> <C> <C>
ASSIGNORS:
--------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT FACILITY
--------------------------------------------------------------------------------------------------------------------
Percentage interest assigned % % % % %
--------------------------------------------------------------------------------------------------------------------
Revolving Credit Commitment assigned $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
Aggregate outstanding principal amount of Revolving
Credit Advances assigned $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
Principal amount of Revolving Credit Note payable
to ASSIGNOR $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
LETTER OF CREDIT FACILITY
--------------------------------------------------------------------------------------------------------------------
Letter of Credit Commitment assigned $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
Letter of Credit Commitment retained $ $ $ $ $
====================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
====================================================================================================================
<S> <C> <C> <C> <C> <C>
ASSIGNEES:
--------------------------------------------------------------------------------------------------------------------
REVOLVING CREDIT FACILITY
--------------------------------------------------------------------------------------------------------------------
Percentage interest assumed % % % % %
--------------------------------------------------------------------------------------------------------------------
Revolving Credit Commitment assumed $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
Aggregate outstanding principal amount of Revolving
Credit Advances assumed $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
Principal amount of Revolving Credit Note payable
to ASSIGNEE $ $ $ $ $
--------------------------------------------------------------------------------------------------------------------
LETTER OF CREDIT FACILITY
--------------------------------------------------------------------------------------------------------------------
Letter of Credit Commitment assumed $ $ $ $ $
====================================================================================================================
</TABLE>
<PAGE>
C-5
Effective Date (if other than date of acceptance by Administrative Agent):
_________ __, ____
ASSIGNORS
, as Assignor
------------------------
By
--------------------------------
Name:
Title:
Dated: ,
----- -- ----
, as Assignor
------------------------
By
--------------------------------
Name:
Title:
Dated: ,
----- -- ----
ASSIGNEES
, as Assignee
------------------------
By
--------------------------------
Name:
Title:
Dated: ,
----- -- ----
, as Assignee
------------------------
By
--------------------------------
Name:
Title:
Dated: ,
----- -- ----
<PAGE>
C-6
Accepted and Approved this ____
day of ___________, ____
BANQUE NATIONALE DE PARIS,
as Administrative Agent
By
-------------------------------------
Name:
Title:
Approved this ____ day
of _____________, ____
INTERNATIONAL RECTIFIER CORPORATION
By
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT D-1
TO CREDIT
AGREEMENT
FORM OF DESIGNATION LETTER
___________, 200[ ]
BNP Paribas, as Administrative Agent
under the Credit Agreement referred to below
725 South Figueroa Street, Suite 2090
Los Angeles, California 90017
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of _________, 2000
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) among
International Rectifier Corporation (the "COMPANY"), the Lender Parties party
thereto, BNP Paribas as Sole Arranger and Initial Issuing Bank and BNP Paribas
as Administrative Agent (the "ADMINISTRATIVE AGENT").
The Company hereby designates its undersigned Subsidiary,
____________ ("DESIGNATED SUBSIDIARY"), as a "Designated Subsidiary" under
Section 9.11 of the Credit Agreement and is made for all purposes of the Credit
Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
(a) The Designated Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of
____________, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
All of the outstanding Equity Interests in the
<PAGE>
D1-2
Designated Subsidiary have been validly issued, are fully paid and
non-assessable and are owned free and clear of all Liens. All of the
outstanding capital stock of the Company has been validly issued, has
been fully paid and is non-assessable.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter and each Transaction Document to
which it is or is to be a party, and the consummation of the
Transaction, are within the Designated Subsidiary's corporate powers,
have been duly authorized by all necessary corporate action, and do not
(i) contravene the Designated Subsidiary 's charter or bylaws, (ii)
violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
or require any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries. Neither the Designated Subsidiary nor any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which
could be reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by the Designated
Subsidiary or its Subsidiaries of this Designation Letter or any
Transaction Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by the Designated
Subsidiary or its Subsidiaries of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of the
Liens created under the Collateral Documents (including the first
priority nature thereof) or (iv) the exercise by the Administrative
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral
Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.01(d) to the Credit Agreement.
(d) This Designation Letter has been, and each other
Transaction Document to which the Designated Subsidiary is to be a
party, when delivered under the Credit Agreement, will have been, duly
executed and delivered by the Designated Subsidiary. This Agreement is,
and each other Transaction Document to which the Designated Subsidiary
is to be a party, when delivered under the Credit Agreement will be,
the legal, valid and binding obligation of the Designated Party,
enforceable against the Designated Party in accordance with their
terms.
(e) There is no action, suit, investigation, litigation or
proceeding affecting the Designated Subsidiary or any of its
Subsidiaries, including any Environmental Action, pending or, to the
best knowledge of the Designated Subsidiary, threatened before any
<PAGE>
D1-3
court, government agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Designation Letter or any
Transaction Document or the consummation of the transactions
contemplated hereby.
(f) Neither the Designated Subsidiary nor any of its
Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock (other than purchases of
the shares of common stock of the Designated Subsidiary permitted by
Section 5.02(g) of the Credit Agreement, all such shares to be retired
upon purchase), and no proceeds of any Advance or drawings under any
Letter of Credit will be used to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying
any Margin Stock.
(g) Neither the Designated Subsidiary nor any of its
Subsidiaries is (i) an "investment company," or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended or (ii) a "holding company," or a "subsidiary company"
of a "holding company" or an "affiliate" of a "holding company," or of
a "subsidiary company" of a "holding company" as such terms are defined
in the Public Utility Holding Company Act of 1935, as amended. Neither
the making of any Advances, nor the issuance of any Letters of Credit,
nor the application of the proceeds or repayment thereof by any
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
The Designated Subsidiary hereby agrees that service of
process in any action or proceeding brought in any California State court or in
a federal court may be made upon the Company at its offices at __________,
Attention: __________ (the "PROCESS AGENT") and the Designated Subsidiary hereby
irrevocably appoints the Process Agent to give any notice of any such service of
process, and agrees that the failure of the Process Agent to give any notice of
any such service shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon.
The Company hereby accepts such appointment as Process Agent
and agrees with you that (i) the Company will maintain an office in
____________, California through the Termination Date and will give the Agent
prompt notice of any change of address of the Company, (ii) the Company will
perform its duties as Process Agent to receive on behalf of the Designated
Subsidiary and its property service of copies of the summons and complaint and
any other process which may be served in any action or proceeding in any
California State or federal court sitting in [Los Angeles] arising out of or
relating to the Credit Agreement and (iii) the Company will forward forthwith to
the Designated Subsidiary at its address at ___________________ or, if
different, its then current address, copies of any summons, complaint and other
process which the Company received in connection with its appointment as Process
Agent.
<PAGE>
D1-4
Very truly yours,
INTERNATIONAL RECTIFIER CORPORATION
By
--------------------------
Name:
Title:
[NAME OF DESIGNATED SUBSIDIARY]
By
--------------------------
Name:
Title:
<PAGE>
EXHIBIT F-2
TO CREDIT
AGREEMENT
FORM OF U.S. GUARANTY
Dated as of __________, 2000
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
As Guarantors
-------------
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
<PAGE>
i
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Section 1. Guaranty; Limitation of Liability..................................................................1
Section 2. Guaranty Absolute..................................................................................2
Section 3. Waivers and Acknowledgments........................................................................4
Section 4. Subrogation........................................................................................6
Section 5. Payments Free and Clear of Taxes, Etc..............................................................6
Section 6. Representations and Warranties.....................................................................9
Section 7. Covenants..........................................................................................9
Section 8. Amendments, Guaranty Supplements, Etc..............................................................9
Section 9. Notices, Etc......................................................................................10
Section 10. No Waiver; Remedies...............................................................................10
Section 11. Right of Set-off..................................................................................10
Section 12. Indemnification...................................................................................11
Section 13. Subordination.....................................................................................12
Section 14. Continuing Guaranty; Assignments under the Credit Agreement.......................................13
Section 15. Execution in Counterparts.........................................................................13
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc............................................13
</TABLE>
Exhibit A - Form of Guaranty Supplement
<PAGE>
U.S. GUARANTY
U.S. GUARANTY dated as of ___________, 2000, (the "GUARANTY") made by the
Persons listed on the signature pages hereof under the caption "Guarantors" and
the Additional Guarantors (as defined in Section 8(b)) (such Persons so listed
and the Additional Guarantors being, collectively, the "GUARANTORS" and,
individually, each a "GUARANTOR") in favor of the Secured Parties (as defined in
the Credit Agreement referred to below).
PRELIMINARY STATEMENT
International Rectifier Corporation, a Delaware corporation (the
"COMPANY"), is party to a Credit Agreement dated as of _________, 2000 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with the Lender
Parties party thereto, BNP Paribas as Sole Arranger and Initial Issuing Bank and
BNP Paribas as Administrative Agent (the "ADMINISTRATIVE AGENT"). Each Guarantor
will derive substantial direct and indirect benefits from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the making
of Advances and the issuance of Letters of Credit by the Lender Parties under
the Credit Agreement from time to time that each Guarantor shall have executed
and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender Parties to make Advances and to issue Letters of Credit under the Credit
Agreement from time to time, each Guarantor, jointly and severally with each
other Guarantor, hereby agrees as follows:
SECTION 1. GUARANTY; LIMITATION OF LIABILITY. (a) Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or any other Secured Party in enforcing any rights
under this Guaranty or any other Loan Document. Without limiting the generality
of the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are
<PAGE>
2
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Administrative Agent, the other Secured Parties and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, "BANKRUPTCY LAW" means any
proceeding of the type referred to in Section 6.01(f) of the Credit Agreement or
Title 11, U.S. Code, or any similar foreign, federal or state law for the relief
of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to any Secured Party under
this Guaranty or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 2. GUARANTY ABSOLUTE. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Secured
Party with respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against a Borrower or any other Loan Party or whether a
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
<PAGE>
3
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations of
any other Loan Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any of
its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or
any other collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of Collateral or any other collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral or any other collateral for all or
any of the Guaranteed Obligations or any other Obligations of any Loan Party
under the Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Secured Party (each Guarantor waiving any duty on the
part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this Guaranty,
any Guaranty Supplement (as hereinafter defined) or any other guaranty or
agreement or the release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations;
(h) any setoff or counterclaim of any Loan Party or any defense which
results from any disability or other defense of a Loan Party or the cessation or
stay of enforcement from any cause whatsoever of the liability of a Loan Party
(including, without limitation, the lack of validity or enforceability of any of
the Loan Documents);
(i) any defense based upon any law, rule or regulation which provides that
the obligation of a surety must not be greater or more burdensome than the
obligation of the principal;
(j) any statute of limitations to the extent permitted by law;
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4
(k) any appraisement, valuation, stay, extension, moratorium, redemption or
similar law or similar rights for marshalling;
(l) the absence, impairment or loss of any right of subrogation,
reimbursement, exoneration, contribution or indemnification or other right or
remedy against a Loan Party, any other guarantor of the Obligations or any
security, whether resulting from an election by the Administrative Agent or any
Lender to foreclose upon security by non-judicial sale, or otherwise;
(m) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by any
Secured Party that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other Person
upon the insolvency, bankruptcy or reorganization of a Borrower or any other
Loan Party or otherwise, all as though such payment had not been made.
SECTION 3. WAIVERS AND ACKNOWLEDGMENTS. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right
to revoke this Guaranty and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(c) Each Guarantor acknowledges that the Administrative Agent may, without
notice to or demand upon such Guarantor and without affecting the liability of
such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by the
Administrative Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law.
(d) Each Guarantor hereby waives any right to be informed by the
Administrative Agent or any Lender of the financial condition of any other Loan
Party or any
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5
other guarantor of the Guaranteed Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or nonperformance of the
Guaranteed Obligations.
(e) Each Guarantor hereby waives any right it may have to a fair value
hearing to determine the size of a deficiency judgment following any foreclosure
on any security for the Guaranteed Obligations.
(f) Without limiting the scope of any of the foregoing provisions of this
Section 3, each Guarantor hereby further waives (i) all rights and defenses
arising out of an election of remedies by the Administrative Agent or any
Lender, even though that election of remedies, such as a non-judicial
foreclosure with respect to security for any Guaranteed Obligation, has
destroyed such Guarantor's rights of subrogation and reimbursements against any
other Loan Party by the operation of Section 580d of the California Code of
Civil Procedure or otherwise, (ii) all rights and defenses such Guarantor may
have by reason of protection afforded to any other Loan Party with respect to
the Guaranteed Obligations pursuant to the antideficiency or other laws of
California limiting or discharging the Guaranteed Obligations, including,
without limitation, Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure, and (III) all other rights and defenses available to such
Guarantor by reason of Sections 2787 to 2855, inclusive, Section 2899 or Section
3433 of the California Civil Code or Section 3605 of the California Commercial
Code.
(g) Each Guarantor is fully aware of the financial condition and affairs of
each other Loan Party. Each Guarantor has executed this Agreement without
reliance upon any representation, warranty, statement or information concerning
any other Loan Party furnished to such Guarantor by the Administrative Agent or
any Lender and has, independently, and without reliance on the Administrative
Agent or any Lender, and based upon such documents and information as it has
deemed appropriate, made its own appraisal of the financial condition and
affairs of each other Loan Party and of other circumstances affecting the risk
of nonpayment or nonperformance of the Guaranteed Obligations. Each Guarantor is
in a position to obtain and assumes full responsibility for obtaining, any
additional information about the financial condition and affairs of each other
Loan Party and of other circumstances affecting the risk of nonpayment or
nonperformance of the Guaranteed Obligations and will, independently and without
reliance upon the Administrative Agent or any Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own appraisals and decisions in taking or not taking action in
connection with this Guaranty.
(h) Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in Section 2 and this Section 3 are
knowingly made in contemplation of such benefits.
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6
SECTION 4. SUBROGATION. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against a Borrower, any other Loan Party or any other insider guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's Obligations under or in respect of this Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against a Borrower, any
other Loan Party or any other insider guarantor or any Collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from a
Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit shall have
expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) any Guarantor
shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have
expired or been terminated, the Secured Parties will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
SECTION 5. PAYMENTS FREE AND CLEAR OF TAXES, ETC. (a) Any and all payments
made by any Guarantor under or in respect of this Guaranty or any other Loan
Document shall be made, in accordance with Section 2.12 of the Credit Agreement,
free and clear of and without deduction for any and all present or future Taxes.
If any Guarantor shall be required by law to deduct any Taxes from or in respect
of any sum payable under or in respect of this Guaranty or any other Loan
Document to any Secured Party, (i) the sum payable by such Guarantor shall be
<PAGE>
7
increased as may be necessary so that after such Guarantor and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 5), such Secured Party
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make all such deductions and
(iii) such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future Other
Taxes that arise from any payment made by or on behalf of such Guarantor under
or in respect of this Guaranty or any other Loan Document or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Guaranty and the other Loan Documents.
(c) Each Guarantor will indemnify each Secured Party for and hold it
harmless against the full amount of Taxes and Other Taxes, and for the full
amount of taxes of any kind imposed by any jurisdiction on amounts payable under
this Section 5, imposed on or paid by such Secured Party and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Secured Party makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by or on behalf
of any Guarantor, such Guarantor shall furnish to the Administrative Agent, at
its address referred to in Section 9, the original or a certified copy of a
check or receipt evidencing such payment. In the case of any payment hereunder
by or on behalf of any Guarantor through an account or branch outside the United
States or by or on behalf of such Guarantor by a payor that is not a United
States person, if such Guarantor determines that no Taxes are payable in respect
thereof, such Guarantor shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of subsections (d) and (e) of this Section 5, the terms "UNITED STATES"
and "UNITED STATES PERSON" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Upon the reasonable request in writing of any Guarantor, each Secured
Party organized under the laws of a jurisdiction outside the United States
shall, on or prior to the date of its execution and delivery of the Credit
Agreement in the case of each Initial Lender or Initial Issuing Bank, as the
case may be, and on or prior to the date of the Assignment and Acceptance
pursuant to which it becomes a Secured Party in the case of each other Secured
Party, and from time to time thereafter upon the reasonable request in writing
by any Guarantor (but only so long thereafter as such Secured Party remains
lawfully able to do so), provide each of the Administrative Agent and such
Guarantor with two original Internal Revenue Service forms W-8ECI or W-8BEN or
(in the case of a Secured Party that has certified in writing to the
<PAGE>
8
Administrative Agent that it is not a "bank" as defined in Section 881(c)(3)(A)
of the Internal Revenue Code) form W-8 (and, if such Secured Party delivers a
form W-8, a certificate representing that such Secured Party is not a "bank" for
purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Company and is not a controlled foreign corporation related to the
Company (within the meaning of Section 864(d)(4) of the Internal Revenue Code)),
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Secured Party is exempt from or entitled
to a reduced rate of United States withholding tax on payments under the Credit
Agreement or the Notes or, in the case of a Secured Party providing a form W-8,
certifying that such Secured Party is a foreign corporation, partnership, estate
or trust. If the forms provided by a Secured Party at the time such Secured
Party first becomes a party to the Credit Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Secured Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; PROVIDED, HOWEVER, that if, in the case of a
Secured Party becoming a party to the Credit Agreement, at the date of the
Assignment and Acceptance pursuant to which a Secured Party becomes a party to
the Credit Agreement, the Secured Party assignor was entitled to payments under
subsection (a) of this Section 5 in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Secured Party assignee on such date.
If any form or document referred to in this subsection (e) and requested by any
Guarantor pursuant to this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8ECI,
W-8BEN or W-8 (or the related certificate described above), that the applicable
Secured Party reasonably considers to be confidential, such Secured Party shall
give notice thereof to the applicable Guarantor and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Secured Party has failed to
provide any Guarantor following such Guarantor's request therefor pursuant to
subsection (e) above with the appropriate form described in subsection (e) above
(OTHER THAN if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Secured Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 5 with
respect to Taxes imposed by the United States by reason of such failure;
PROVIDED, HOWEVER, that should a Secured Party become subject to Taxes because
of its failure to deliver a form required hereunder, such
<PAGE>
9
Guarantor shall take such steps as such Secured Party shall reasonably request
to assist such Secured Party to recover such Taxes.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby makes each
representation and warranty made in the Loan Documents by the Company with
respect to such Guarantor and each Guarantor hereby further represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance upon any Secured
Party and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Guaranty and each
other Loan Document to which it is or is to be a party, and such Guarantor has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing basis
will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan
Party.
SECTION 7. COVENANTS. Each Guarantor covenants and agrees that, so long as
any part of the Guaranteed Obligations shall remain unpaid, any Letter of Credit
shall be outstanding, any Lender Party shall have any Commitment, such Guarantor
will perform and observe, and cause each of its Subsidiaries to perform and
observe, all of the terms, covenants and agreements set forth in the Loan
Documents on its or their part to be performed or observed or that the Company
has agreed to cause such Guarantor or such Subsidiaries to perform or observe.
SECTION 8. AMENDMENTS, GUARANTY SUPPLEMENTS, ETC. (a) No amendment or
waiver of any provision of this Guaranty and no consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent and the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; PROVIDED, HOWEVER, that no amendment,
waiver or consent shall, unless in writing and signed by all of the Secured
Parties (a) reduce or limit the obligations of any Guarantor hereunder, release
any Guarantor hereunder or otherwise limit any Guarantor's liability with
respect to the Obligations owing to the Secured Parties under or in respect of
the Loan Documents except as provided in the next succeeding sentence, (b)
postpone any date fixed for payment hereunder or (c) change the number of
Secured Parties or the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Secured Parties or any of them to take any action hereunder. Upon the sale of a
Guarantor to the extent permitted in accordance
<PAGE>
10
with the terms of the Loan Documents, such Guarantor shall be automatically
released from this Guaranty.
(b) Upon the execution and delivery by any Person of a guaranty supplement
in substantially the form of Exhibit A hereto (each, a "GUARANTY SUPPLEMENT"),
(i) such Person shall be referred to as an "ADDITIONAL GUARANTOR" and shall
become and be a Guarantor hereunder, and each reference in this Guaranty to a
"GUARANTOR" shall also mean and be a reference to such Additional Guarantor, and
each reference in any other Loan Document to a "GUARANTOR" or a "U.S. GUARANTOR"
shall also mean and be a reference to such Additional Guarantor, and (ii) each
reference herein to "THIS GUARANTY", "HEREUNDER", "HEREOF" or words of like
import referring to this Guaranty, and each reference in any other Loan Document
to the "GUARANTY", "U.S. GUARANTY", "THEREUNDER", "THEREOF" or words of like
import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.
SECTION 9. NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing (including telegraphic or telecopy communication)
and mailed, telecopied or delivered to it, if to any Guarantor, addressed to it
in care of the Company at the Company's address specified in Section 9.02 of the
Credit Agreement, if to any Agent or any Lender Party, at its address specified
in Section 9.02 of the Credit Agreement, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other
party. All such notices and other communications shall, when mailed or
telecopied, be effective when deposited in the mails or transmitted by
telecopier, respectively. Delivery by telecopier of an executed counterpart of a
signature page to any amendment or waiver of any provision of this Guaranty or
of any Guaranty Supplement to be executed and delivered hereunder shall be
effective as delivery of an original executed counterpart thereof.
SECTION 10. NO WAIVER; REMEDIES. No failure on the part of any Secured
Party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 11. RIGHT OF SET-OFF. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 6.01, each Agent and each Lender Party and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness
<PAGE>
11
at any time owing by such Agent, such Lender Party or such Affiliate to or for
the credit or the account of any Guarantor against any and all of the
Obligations of such Guarantor now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender Party shall have
made any demand under this Guaranty or any other Loan Document and although such
Obligations may be unmatured. Each Agent and each Lender Party agrees promptly
to notify such Guarantor after any such set-off and application; PROVIDED,
HOWEVER, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Agent and each Lender Party and
their respective Affiliates under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Agent, such Lender Party and their respective Affiliates may have.
SECTION 12. INDEMNIFICATION. (a) Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Secured Party and each of
their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "INDEMNIFIED PARTY") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party in
connection with or as a result of any failure of any Guaranteed Obligations to
be the legal, valid and binding obligations of any Loan Party enforceable
against such Loan Party in accordance with their terms.
(b) In no event shall any of the Indemnified Parties have any liability
(whether direct or indirect, in contract, tort or otherwise) to any of the
Guarantors or any of their respective Affiliates or any of their respective
officers, directors, employees, agents and advisors, for any special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Transaction Documents or any of the transactions
contemplated by the Transaction Documents.
(c) Without prejudice to the survival of any of the other agreements of any
Guarantor under this Guaranty or any of the other Loan Documents, the agreements
and obligations of each Guarantor contained in Section 1(a) (with respect to
enforcement expenses), the last sentence of Section 2, Section 5 and this
Section 12 shall survive the payment in full of the Guaranteed Obligations and
all of the other amounts payable under this Guaranty.
<PAGE>
12
SECTION 13. SUBORDINATION. Each Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to such Guarantor by each other
Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 13:
(a) PROHIBITED PAYMENTS, ETC. Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless the
Administrative Agent otherwise agrees, no Guarantor shall demand, accept or take
any action to collect any payment on account of the Subordinated Obligations.
(b) PRIOR PAYMENT OF GUARANTEED OBLIGATIONS. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the
Secured Parties shall be entitled to receive payment in full in cash of all
Guaranteed Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("POST PETITION INTEREST"))
before such Guarantor receives payment of any Subordinated Obligations.
(c) TURN-OVER. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of such Guarantor under the other provisions of this
Guaranty.
(d) ADMINISTRATIVE AGENT AUTHORIZATION. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the
Administrative Agent is authorized and empowered (but without any obligation to
so do), in its discretion, (i) in the name of each Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations (including any
and all Post Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Guaranteed Obligations (including
any and all Post Petition Interest).
<PAGE>
13
SECTION 14. CONTINUING GUARANTY; ASSIGNMENTS UNDER THE CREDIT AGREEMENT.
This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the
Termination Date and (iii) the latest date of expiration or termination of all
Letters of Credit, (b) be binding upon the Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Secured Parties and
their successors, transferees and assigns. Without limiting the generality of
clause (c) of the immediately preceding sentence, any Secured Party may assign
or otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case as and to the extent provided in Section 9.07 of the Credit
Agreement. No Guarantor shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Secured Parties.
SECTION 15. EXECUTION IN COUNTERPARTS. This Guaranty and each amendment,
waiver and consent with respect hereto may be executed in any number of
counterparts and by different parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
SECTION 16. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC. (a)
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of California.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any California
State court or federal court of the United States of America sitting in Los
Angeles, California, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and each Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such California State court or, to the extent permitted by
law, in such federal court. Each Guarantor agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty or any other Loan Document shall affect any right that
any party may otherwise have to bring any action or proceeding relating to this
Guaranty or any other Loan Document in the courts of any jurisdiction.
<PAGE>
14
(c) Each Guarantor irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party in any California State or federal court. Each
Guarantor hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
<PAGE>
(d) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[GUARANTORS]
By ________________________________
Name:
Title:
Address:
<PAGE>
EXHIBIT F-3
TO CREDIT
AGREEMENT
FORM OF NON-U.S. GUARANTY
Dated as of ___________, 2000
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
-------------
in favor of
INTERNATIONAL RECTIFIER CORPORATION
<PAGE>
i
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 1. Guaranty; Limitation of Liability..................................................................1
Section 2. Guaranty Absolute..................................................................................2
Section 3. Waivers and Acknowledgments........................................................................5
Section 4. Subrogation........................................................................................6
Section 5. Payments Free and Clear of Taxes, Etc..............................................................7
Section 6. Representations and Warranties.....................................................................8
Section 7. Covenants..........................................................................................9
Section 8. Amendments, Guaranty Supplements, Etc..............................................................9
Section 9. Notices, Etc.......................................................................................9
Section 10. No Waiver; Remedies...............................................................................10
Section 11. Right of Set-Off..................................................................................10
Section 12. Indemnification...................................................................................10
Section 13. Subordination.....................................................................................11
Section 14. Continuing Guaranty; Assignments under the Credit Agreement.......................................13
Section 15. Execution in Counterparts.........................................................................13
Section 16. Judgment..........................................................................................13
Section 17. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc............................................14
</TABLE>
Exhibit A - Form of Guaranty Supplement
<PAGE>
EXHIBIT A
TO U.S.
GUARANTY
FORM OF GUARANTY SUPPLEMENT
_________ __, 200[ ]
BNP Paribas, as Administrative Agent
725 South Figueroa Street, Suite 2090
Los Angeles, California 90017
Attention: Tjalling Terpstra
Credit Agreement dated as of _________, 2000 among International Rectifier
Corporation, a Delaware corporation (the "COMPANY"), the Lender Parties party
thereto, BNP Paribas as Sole Arranger and Initial Issuing Bank and BNP Paribas
as Administrative Agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the U.S.
Guaranty referred to therein (such U.S. Guaranty, as in effect on the date
hereof and as it may hereafter be amended, supplemented or otherwise modified
from time to time, together with this Guaranty Supplement, being the
"GUARANTY"). The capitalized terms defined in the Guaranty or in the Credit
Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. GUARANTY; LIMITATION OF LIABILITY. (a) The undersigned hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premium,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including, without
<PAGE>
A-2
limitation, fees and expenses of counsel) incurred by the Administrative Agent
or any other Secured Party in enforcing any rights under this Guaranty
Supplement, the Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, the undersigned's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
(b) The undersigned, and by its acceptance of this Guaranty Supplement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty Supplement, the Guaranty
and the Obligations of the undersigned hereunder and thereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to this Guaranty Supplement, the
Guaranty and the Obligations of the undersigned hereunder and thereunder. To
effectuate the foregoing intention, the Administrative Agent, the other Secured
Parties and the undersigned hereby irrevocably agree that the Obligations of the
undersigned under this Guaranty Supplement and the Guaranty at any time shall be
limited to the maximum amount as will result in the Obligations of the
undersigned under this Guaranty Supplement and the Guaranty not constituting a
fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to any Secured Party under
this Guaranty Supplement, the Guaranty or any other guaranty, the undersigned
will contribute, to the maximum extent permitted by applicable law, such amounts
to each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Secured Parties under or in respect of the Loan Documents.
Section 2. OBLIGATIONS UNDER THE GUARANTY. The undersigned hereby agrees,
as of the date first above written, to be bound as a Guarantor by all of the
terms and conditions of the Guaranty to the same extent as each of the other
Guarantors thereunder. The undersigned further agrees, as of the date first
above written, that each reference in the Guaranty to an "ADDITIONAL GUARANTOR"
or a "GUARANTOR" shall also mean and be a reference to the undersigned, and each
reference in any other Loan Document to a "GUARANTOR", a "U.S. GUARANTOR" or a
"LOAN PARTY" shall also mean and be a reference to the undersigned.
Section 3. REPRESENTATIONS AND WARRANTIES. The undersigned hereby makes
each representation and warranty set forth in Section 6 of the Guaranty to the
same extent as each other Guarantor.
<PAGE>
A-3
Section 4. DELIVERY BY TELECOPIER. Delivery of an executed counterpart of a
signature page to this Guaranty Supplement by telecopier shall be effective as
delivery of an original executed counterpart of this Guaranty Supplement.
Section 5. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC. (a) This
Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of California.
(b) The undersigned hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any California
State court or any federal court of the United States of America sitting in Los
Angeles, California, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty Supplement, the Guaranty
or any of the other Loan Documents to which it is or is to be a party, or for
recognition or enforcement of any judgment, and the undersigned hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such California State
court or, to the extent permitted by law, in such federal court. The undersigned
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Guaranty Supplement or the
Guaranty or any other Loan Document shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it is or is
to be a party in the courts of any other jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty Supplement, the Guaranty or any of the other
Loan Documents to which it is or is to be a party in any California State or
federal court. The undersigned hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such suit, action or proceeding in any such court.
<PAGE>
A-4
(d) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By _____________________________
Name:
Title:
Address:
<PAGE>
NON-U.S. GUARANTY
NON-U.S. GUARANTY dated as of __________, 2000, (this
"GUARANTY") made by the Persons listed on the signature pages hereof under the
caption "Guarantors" and the Additional Guarantors (as defined in Section 8(b))
(such Persons so listed and the Additional Guarantors being, collectively, the
"GUARANTORS" and, individually, each a "GUARANTOR") in favor of the Secured
Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT
International Rectifier Corporation, a Delaware corporation
(the "COMPANY"), is party to a Credit Agreement dated as of _________, 2000 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; the capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined) with the Lender
Parties party thereto, BNP Paribas as Sole Arranger and Initial Issuing Bank and
BNP Paribas as Administrative Agent (the "ADMINISTRATIVE AGENT"). Each Guarantor
will derive substantial direct and indirect benefits from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the making
of Advances and issuance of Letters of Credit by the Lender Parties under the
Credit Agreement from time to time that each Guarantor shall have executed and
delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lender Parties to make Advances and to issue Letters of Credit
under the Credit Agreement from time to time, each Guarantor, jointly and
severally with each other Guarantor, hereby agrees as follows:
SECTION 1. GUARANTY; LIMITATION OF LIABILITY. (a) Each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of each other Loan Party that is organized under the laws of a jurisdiction
outside of the United States, now or hereafter existing (such Loan Parties being
collectively the "FOREIGN LOAN PARTIES" and individually, each a "FOREIGN LOAN
PARTY") under or in respect of the Loan Documents (including, without
limitation, any extensions, modifications, substitutions, amendments or renewals
of any or all of the foregoing Obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or its assignees in enforcing any rights under this
Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Foreign Loan Party to any
<PAGE>
2
Secured Party under or in respect of the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Foreign Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty,
the Administrative Agent and each other Secured Party, hereby confirms that it
is the intention of all such Persons that this Guaranty and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Administrative Agent, the other Secured Parties and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance. For purposes hereof, "BANKRUPTCY LAW" means any
proceeding of the type referred to in Section 6.01(f) of the Credit Agreement or
Title 11, U.S. Code, or any similar foreign, federal or state law for the relief
of debtors.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Secured
Party under this Guaranty or any other guaranty, such Guarantor will contribute,
to the maximum extent permitted by law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
(d) Notwithstanding the foregoing, (x) the obligation of any
Guarantor organized under the laws of Germany (each a "GERMAN GUARANTOR") shall
terminate in the event that such Guarantor no longer has any obligation
outstanding under the Loan Documents (other than this Guaranty) or has any other
payment obligation to a Secured Party, and (y) each German Guarantor and by its
acceptance of this Guaranty, each Secured Party, hereby agrees that the
obligations of any German Guarantor hereunder shall be limited to such amount
that would not result in a violation of GMBH-Gesetz Section 30 or any other laws
of Germany that pertain to the protection of capital of such German Guarantor.
SECTION 2. GUARANTY ABSOLUTE. Each Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The Obligations of each Guarantor under or
in respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of
<PAGE>
3
the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any other Loan Party or whether any other
Loan Party is joined in any such action or actions. The liability of each
Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it
may now have or hereafter acquire in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or any of
the Guaranteed Obligations;
(d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or
any manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents or any other assets of any Loan Party
or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party now or hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement (as hereinafter defined) or any other guaranty
or agreement or the release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations;
<PAGE>
4
(h) any setoff or counterclaim of any Loan Party or any
defense which results from any disability or other defense of a Loan Party or
the cessation or stay of enforcement from any cause whatsoever of the liability
of a Loan Party (including, without limitation, the lack of validity or
enforceability of any of the Loan Documents);
(i) any defense based upon any law, rule or regulation which
provides that the obligation of a surety must not be greater or more burdensome
than the obligation of the principal;
(j) any statute of limitations to the extent permitted by law;
(k) any appraisement, valuation, stay, extension, moratorium,
redemption or similar law or similar rights for marshalling;
(l) the absence, impairment or loss of any right of
subrogation, reimbursement, exoneration, contribution or indemnification or
other right or remedy against a Loan Party, any other guarantor of the
Obligations or any security, whether resulting from an election by the
Administrative Agent or any Lender to foreclose upon security by non-judicial
sale, or otherwise; or
(m) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by any Secured Party or
any other Person upon the insolvency, bankruptcy or reorganization of a Borrower
or any other Loan Party or otherwise, all as though such payment had not been
made.
<PAGE>
5
SECTION 3. WAIVERS AND ACKNOWLEDGMENTS. (a) Each Guarantor
hereby unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan Parties, any
other guarantor or any other Person or any Collateral and (ii) any defense based
on any right of set-off or counterclaim against or in respect of the Obligations
of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent
may, without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Administrative Agent and the other Secured Parties against such Guarantor
of any deficiency after such nonjudicial sale and any defense or benefits that
may be afforded by applicable law.
(e) Each Guarantor hereby waives any right to be informed by
the Administrative Agent or any Lender of the financial condition of any other
Loan Party or any other guarantor of the Guaranteed Obligations or any change
therein or any other circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations.
(f) Each Guarantor hereby waives any right it may have to a
fair value hearing to determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
(g) Without limiting the scope of any of the foregoing
provisions of this Section 3, each Guarantor hereby further waives (i) all
rights and defenses arising out of an election of remedies by the Administrative
Agent or any Lender, even though that election of remedies, such as a
non-judicial foreclosure with respect to security for any Guaranteed
<PAGE>
6
Obligation, has destroyed such Guarantor's rights of subrogation and
reimbursements against any other Loan Party by the operation of Section 580d of
the California Code of Civil Procedure or otherwise, (ii) all rights and
defenses such Guarantor may have by reason of protection afforded to any other
Loan Party with respect to the Guaranteed Obligations pursuant to the
antideficiency or other laws of California limiting or discharging the
Guaranteed Obligations, including, without limitation, Section 580a, 580b, 580d
or 726 of the California Code of Civil Procedure, and (III) all other rights and
defenses available to such Guarantor by reason of Sections 2787 to 2855,
inclusive, Section 2899 or Section 3433 of the California Civil Code or Section
3605 of the California Commercial Code.
(h) Each Guarantor is fully aware of the financial condition
and affairs of each other Loan Party. Each Guarantor has executed this Agreement
without reliance upon any representation, warranty, statement or information
concerning any other Loan Party furnished to such Guarantor by the
Administrative Agent or any Lender and has, independently, and without reliance
on the Administrative Agent or any Lender, and based upon such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of each other Loan Party and of other
circumstances affecting the risk of nonpayment or nonperformance of the
Guaranteed Obligations. Each Guarantor is in a position to obtain and assumes
full responsibility for obtaining, any additional information about the
financial condition and affairs of each other Loan Party and of other
circumstances affecting the risk of nonpayment or nonperformance of the
Guaranteed Obligations and will, independently and without reliance upon the
Administrative Agent or any Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own appraisals
and decisions in taking or not taking action in connection with this Guaranty.
(i) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 2
and this Section 3 are knowingly made in contemplation of such benefits.
SECTION 4. SUBROGATION. Each Guarantor hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against a Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against a Borrower, any
other Loan Party or any other insider guarantor or any Collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive
<PAGE>
7
from a Borrower, any other Loan Party or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit shall have
expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) any Guarantor
shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have
expired or been terminated, the Secured Parties will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
SECTION 5. PAYMENTS FREE AND CLEAR OF TAXES, ETC. (a) Any and
all payments made by any Guarantor under or in respect of this Guaranty or any
other Loan Document shall be made, in accordance with Section 2.12 of the Credit
Agreement, free and clear of and without deduction for any and all present or
future Taxes. If any Guarantor shall be required by law to deduct any Taxes from
or in respect of any sum payable under or in respect of this Guaranty or any
other Loan Document to any Secured Party, (i) the sum payable by such Guarantor
shall be increased as may be necessary so that after such Guarantor and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 5), such Secured Party
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make all such deductions and
(iii) such Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
<PAGE>
8
(b) In addition, each Guarantor agrees to pay any present or
future Other Taxes that arise from any payment made by or on behalf of such
Guarantor under or in respect of this Guaranty or any other Loan Document or
from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Guaranty and the other Loan Documents.
(c) Each Guarantor will indemnify each Secured Party for and
hold it harmless against the full amount of Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 5, imposed on or paid by such Secured Party and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Secured Party makes written demand therefor.
(d) The obligations of each Guarantor under this Section are
subject in all respects to the limitations, qualifications and satisfaction of
conditions set forth in Section 2.13 of the Credit Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Guarantor
hereby makes each representation and warranty made in the Loan Documents by the
Company with respect to such Guarantor and each Guarantor hereby further
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance
upon any Secured Party and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party, and
such Guarantor has established adequate means of obtaining from each other Loan
Party on a continuing basis information pertaining to, and is now and on a
continuing basis will be completely familiar with, the business, condition
(financial or otherwise), operations, performance, properties and prospects of
such other Loan Party.
<PAGE>
9
SECTION 7. COVENANTS. Each Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set forth in the Loan Documents on its or their part to be performed or observed
or that the Company has agreed to cause such Guarantor or such Subsidiaries to
perform or observe.
SECTION 8. AMENDMENTS, GUARANTY SUPPLEMENTS, ETC. (a) No
amendment or waiver of any provision of this Guaranty and no consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by the Administrative Agent and the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given, PROVIDED, HOWEVER, that
no amendment, waiver or consent shall, unless in writing and signed by all of
the Secured Parties (a) reduce or limit the obligations of any Guarantor
hereunder, release any Guarantor hereunder or otherwise limit any Guarantor's
liability with respect to the Obligations owing to the Secured Parties under or
in respect of the Loan Documents except as provided in the next succeeding
sentence, (b) postpone any date fixed for payment hereunder or (c) change the
number of Secured Parties or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Secured Parties or any of them to take any action hereunder. Upon the
sale of a Guarantor to the extent permitted in accordance with the terms of the
Loan Documents, such Guarantor shall be automatically released from this
Guaranty.
(b) Upon the execution and delivery by any Person of a
guaranty supplement in substantially the form of Exhibit A hereto (each a
"GUARANTY SUPPLEMENT"), (i) such Person shall be referred to as an "ADDITIONAL
GUARANTOR" and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a "GUARANTOR" shall also mean and be a reference to such
Additional Guarantor, and each reference in any other Loan Document to a
"GUARANTOR" or a "NON-U.S. GUARANTOR" shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to "THIS GUARANTY",
"HEREUNDER", "HEREOF" or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the "GUARANTY", "NON-U.S.
GUARANTY", "THEREUNDER", "THEREOF" or words of like import referring to this
Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.
SECTION 9. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and
<PAGE>
10
mailed, telegraphed, telecopied, telexed or delivered to it, if to any
Guarantor, addressed to it in care of the Company at the Company's address
specified in Section 9.02 of the Credit Agreement, if to the Administrative
Agent or any Secured Party, at its address specified in Section 9.02 of the
Credit Agreement or, as to any party, at such other address as shall be
designated by such party in a written notice to each other party. All such
notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively. Delivery by telecopier of an executed counterpart of a signature
page to any amendment or waiver of any provision of this Guaranty or of any
Guaranty Supplement to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
SECTION 10. NO WAIVER; REMEDIES. No failure on the part of any
Secured Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11. RIGHT OF SET-OFF. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 of the Credit Agreement
to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of said Section 6.01, each Agent and each Lender
Party and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Agent,
such Lender Party or such Affiliate to or for the credit or the account of any
Guarantor against any and all of the Obligations of such Guarantor now or
hereafter existing under the Loan Documents, irrespective of whether such Agent
or such Lender Party shall have made any demand under this Guaranty or any other
Loan Document and although such Obligations may be unmatured. Each Agent and
each Lender Party agrees promptly to notify such Guarantor after any such
set-off and application; PROVIDED, HOWEVER, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Agent and each Lender Party and their respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Agent, such Lender Party and
their respective Affiliates may have.
SECTION 12. INDEMNIFICATION. (a) Without limitation of any
other Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Secured
<PAGE>
11
Party and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an "INDEMNIFIED PARTY") from and against,
and shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party in connection with or as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of any Loan Party
enforceable against such Loan Party in accordance with their terms.
(b) In no event shall any of the Indemnified Parties have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of
the Guarantors or any of their respective Affiliates or any of their respective
officers, directors, employees, agents and advisors, for any special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Transaction Documents or any of the transactions
contemplated by the Transaction Documents.
(c) Without prejudice to the survival of any of the other
agreements of any Guarantor under this Guaranty or any of the other Loan
Documents, the agreements and obligations of each Guarantor contained in Section
1(a) (with respect to enforcement expenses), the last sentence of Section 2,
Section 5 and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty.
SECTION 13. SUBORDINATION. Each Guarantor hereby subordinates
any and all debts, liabilities and other Obligations owed to such Guarantor by
each other Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed
Obligations to the extent and in the manner hereinafter set forth in this
Section 13:
(a) PROHIBITED PAYMENTS, ETC. Except during the continuance of
a Default (including the commencement and continuation of any proceeding under
any Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless the
Administrative Agent otherwise agrees, no Guarantor shall demand, accept or take
any action to collect any payment on account of the Subordinated Obligations.
(b) PRIOR PAYMENT OF GUARANTEED OBLIGATIONS. In any proceeding
under any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in cash of
all Guaranteed Obligations (including all interest and expenses accruing after
the commencement of a proceeding under any Bankruptcy
<PAGE>
12
Law, whether or not constituting an allowed claim in such proceeding ("POST
PETITION INTEREST")) before such Guarantor receives payment of any Subordinated
Obligations.
(c) TURN-OVER. After the occurrence and during the continuance
of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
shall, if the Administrative Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Administrative Agent on account of the
Guaranteed Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty.
(d) ADMINISTRATIVE AGENT. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the
Administrative Agent is authorized and empowered (but without any obligation to
so do), in its discretion, (i) in the name of each Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations (including any
and all Post Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Borrowers or their assignees for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
<PAGE>
13
SECTION 14. CONTINUING GUARANTY; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the Termination Date and (iii) the latest date of expiration or termination of
all Letters of Credit, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Secured
Parties and their successors, transferees and assigns. Without limiting the
generality of clause (c) of the immediately preceding sentence, any Secured
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section 9.07
of the Credit Agreement. No Guarantor shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Secured Parties.
SECTION 15. EXECUTION IN COUNTERPARTS. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
SECTION 16. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at the Administrative Agent's office
in San Francisco, California 10:00 A.M. (San Francisco time) on the Business Day
preceding that on which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a foreign currency into Dollars,
the parties agree to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase such foreign currency
with Dollars at the Administrative Agent's office in San Francisco, California
10:00 A.M. (San Francisco time) on the Business Day preceding that on which
final judgment is given.
<PAGE>
14
(c) The obligations of each Guarantor in respect of any sum
due from it in any currency (the "PRIMARY CURRENCY") to the Secured Parties
hereunder and under the Loan Documents shall, notwithstanding any judgment in
any other currency, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent of any sum adjudged to be so due
in such other currency, the Administrative Agent may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to the Administrative Agent or other Secured Parties (as the
case may be) in the applicable Primary Currency, each Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent and the other Secured Parties against such loss, and if the
amount of the applicable Primary Currency so purchased exceeds such sum due to
the Administrative Agent or other Secured Parties (as the case may be) in the
applicable Primary Currency, the Administrative Agent or other Secured Party (as
the case may be) agrees to remit to such Guarantor such excess.
SECTION 17. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL,
ETC.. (a) This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of California.
(b) Each Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
California State court or federal court of the United States of America sitting
in Los Angeles, California, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party, or for recognition or
enforcement of any judgment, and each Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such California State court or, to
the extent permitted by law, in such federal court. Each Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty or any other Loan Document shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty or any other Loan Document in the courts of
any jurisdiction.
(c) Each Guarantor irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party in any California State or federal
court. Each Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the
<PAGE>
15
defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
(d) Each Guarantor hereby agrees that service of process in
any such action or proceeding brought in the any such California State court or
in such federal court may be made upon International Rectifier Corporation at
its offices at 233 Kansas Street, El Segundo, California 90245 Attention:
Executive Vice President (the "PROCESS AGENT") and each Guarantor hereby
irrevocably appoints the Process Agent its authorized agent to accept such
service of process, and agrees that the failure of the Process Agent to give any
notice of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Each Guarantor hereby further irrevocably consents to the service of process in
any action or proceeding in such courts by the mailing thereof by any parties
hereto by registered or certified mail, postage prepaid, to the Borrowers at
their addresses specified pursuant to Section 9.02 of the Credit Agreement. Each
Guarantor party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty or the Loan Documents in the
courts of any jurisdiction. To the extent that each Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Guaranty.
<PAGE>
16
(e) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
[NON-U.S. GUARANTORS]
By
---------------------------
Name:
Title:
Address:
<PAGE>
EXHIBIT A
TO NON-U.S.
GUARANTY
FORM OF GUARANTY SUPPLEMENT
____________ __, 200[ ]
BNP Paribas, as Administrative Agent
725 South Figueroa Street, Suite 2090
Los Angeles, California90017
Attention: Tjalling Terpstra
Credit Agreement dated as of _________, 2000 among International Rectifier
Corporation, a Delaware corporation (the "COMPANY"), the Lender Parties party
thereto, BNP Paribas as Sole Arranger and Initial Issuing Bank and BNP Paribas
as Administrative Agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and
to the Non-U.S. Guaranty referred to therein (such Non-U.S. Guaranty, as in
effect on the date hereof and as it may hereafter be amended, supplemented or
otherwise modified from time to time, together with this Guaranty Supplement,
being the "GUARANTY"). The capitalized terms defined in the Guaranty or in the
Credit Agreement and not otherwise defined herein are used herein as therein
defined.
Section 1. GUARANTY; LIMITATION OF LIABILITY. (a) The
undersigned hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of each other Loan Party that is organized under the laws of a jurisdiction
outside of the United States, now or hereafter existing under or in respect of
the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premium, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "GUARANTEED
<PAGE>
A-2
OBLIGATIONS"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent
or any other Secured Party in enforcing any rights under this Guaranty
Supplement, the Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, the undersigned?s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party that is organized under the laws of a jurisdiction outside
of the United States to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.
(b) The undersigned, and by its acceptance of this Guaranty
Supplement, the Administrative Agent and each other Secured Party, hereby
confirms that it is the intention of all such Persons that this Guaranty
Supplement, the Guaranty and the Obligations of the undersigned hereunder and
thereunder not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to
this Guaranty Supplement, the Guaranty and the Obligations of the undersigned
hereunder and thereunder. To effectuate the foregoing intention, the
Administrative Agent, the other Secured Parties and the undersigned hereby
irrevocably agree that the Obligations of the undersigned under this Guaranty
Supplement and the Guaranty at any time shall be limited to the maximum amount
as will result in the Obligations of the undersigned under this Guaranty
Supplement and the Guaranty not constituting a fraudulent transfer or
conveyance.
(c) The undersigned hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Secured
Party under this Guaranty Supplement, the Guaranty or any other guaranty, the
undersigned will contribute, to the maximum extent permitted by applicable law,
such amounts to each other Guarantor and each other guarantor so as to maximize
the aggregate amount paid to the Secured Parties under or in respect of the Loan
Documents.
Section 2. OBLIGATIONS UNDER THE GUARANTY. The undersigned
hereby agrees, as of the date first above written, to be bound as a Guarantor by
all of the terms and conditions of the Guaranty to the same extent as each of
the other Guarantors thereunder. The undersigned further agrees, as of the date
first above written, that each reference in the Guaranty to an "ADDITIONAL
GUARANTOR" or a "GUARANTOR" shall also mean and be a reference to the
undersigned, and each reference in any other Loan Document to a "GUARANTOR" , a
"NON-U.S. GUARANTOR" or a "LOAN PARTY" shall also mean and be a reference to the
undersigned.
<PAGE>
A-3
Section 3. REPRESENTATIONS AND WARRANTIES. The undersigned
hereby makes each representation and warranty set forth in Section 6 of the
Guaranty to the same extent as each other Guarantor.
Section 4. DELIVERY BY TELECOPIER. Delivery of an executed
counterpart of a signature page to this Guaranty Supplement by telecopier shall
be effective as delivery of an original executed counterpart of this Guaranty
Supplement.
Section 5. JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the undersigned agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency at the Administrative Agent?s office
in San Francisco, California 10:00 A.M. (San Francisco time) on the Business Day
preceding that on which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in a foreign currency into Dollars,
the undersigned agrees to the fullest extent that it may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase such foreign currency
with Dollars at the Administrative Agent's office in San Francisco, California
10:00 A.M. (San Francisco time) on the Business Day preceding that on which
final judgment is given.
(c) The obligations of the undersigned in respect of any sum
due from it in any currency (the "PRIMARY CURRENCY") to the Secured Parties
hereunder and under the Loan Documents shall, notwithstanding any judgment in
any other currency, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent of any sum adjudged to be so due
in such other currency, the Administrative Agent may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to the Administrative Agent or other Secured Parties (as the
case may be) in the applicable Primary Currency, the undersigned agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent and the other Secured Parties against such loss, and if the
amount of the applicable Primary Currency so purchased exceeds such sum due to
the Administrative Agent or other Secured Parties (as the case may be) in the
applicable Primary Currency, the Administrative Agent or other Secured Party (as
the case may be) agrees to remit to the undersigned such excess.
<PAGE>
A-4
Section 6. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL,
ETC. (a) This Guaranty Supplement shall be governed by, and construed in
accordance with, the laws of the State of California.
(b) The undersigned hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
California State court or any federal court of the United States of America
sitting in Los Angeles, California, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guaranty Supplement,
the Guaranty or any of the other Loan Documents to which it is or is to be a
party, or for recognition or enforcement of any judgment, and the undersigned
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such California
State court or, to the extent permitted by law, in such federal court. The
undersigned agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Guaranty Supplement or
the Guaranty or any other Loan Document shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Guaranty
Supplement, the Guaranty or any of the other Loan Documents to which it is or is
to be a party in the courts of any other jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty Supplement, the Guaranty
or any of the other Loan Documents to which it is or is to be a party in any
California State or federal court. The undersigned hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
(d) The undersigned hereby agrees that service of process in
any such action or proceeding brought in the any such California State court or
in such federal court may be made upon International Rectifier Corporation at
its offices at 233 Kansas Street, El Segundo, California 90245 Attention:
Executive Vice President (the "PROCESS AGENT") and the undersigned hereby
irrevocably appoints the Process Agent its authorized agent to accept such
service of process, and agrees that the failure of the Process Agent to give any
notice of any such service shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
The undersigned hereby further irrevocably consents to the service of process in
any action or proceeding in such courts by the mailing thereof by any parties
hereto by registered or certified mail, postage prepaid, to the Borrower at its
address specified pursuant to Section 9.02 of the Credit Agreement. The
undersigned agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
<PAGE>
A-5
judgment or in any other manner provided by law. Nothing in this Guaranty shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty or the Loan Documents in the courts of any
jurisdiction. To the extent that the undersigned has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
undersigned hereby irrevocably waives such immunity in respect of its
obligations under this Guaranty.
(e) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By
-----------------------
Name:
Title:
<PAGE>
EXHIBIT M
TO CREDIT
AGREEMENT
FORM OF DESIGNATION AGREEMENT
Dated _______________, 200_
Reference is made to the Credit Agreement dated as of _________, 2000 among
International Rectifier Corporation, a Delaware corporation (the "COMPANY"), the
Lender Parties party thereto, BNP Paribas as Sole Arranger and Initial Issuing
Bank and BNP Paribas as Administrative Agent ("AGENT"). Terms defined in the
Credit Agreement are used herein with the same meaning.
_________________________ (the "DESIGNOR") and _________________________ (the
"DESIGNEE") agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby accepts
such designation, to have a right to make Competitive Bid Advances pursuant to
Section 2.04 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, the Credit Agreement or any other
instrument or document furnished pursuant thereto and (ii) the financial
condition of the Company or any Designated Subsidiary or the performance or
observance by the Company or any Designated Subsidiary of any of their
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a Designated Bidder; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (v) agrees that it will perform in accordance
with their terms all of the
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M-2
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. Following the execution of this Designation Agreement by the Designor and its
Designee, it will be delivered to the Agent for acceptance and recording by the
Agent. The effective date for this Designation Agreement (the "EFFECTIVE DATE")
shall be the date of acceptance hereof by the Agent, unless otherwise specified
on the signature page hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective Date,
the Designee shall be a party to the Credit Agreement with a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.04 of the Credit
Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
7. This Designation Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Designation Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Designation Agreement.
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M-3
IN WITNESS WHEREOF, the Designor and the Designee have caused this Designation
Agreement to be executed by their officers thereunto duly authorized as of the
date first above written.
Effective Date*: ______________, 200__
[NAME OF DESIGNOR],
as Designor
By
-----------------------
Name:
Title:
[NAME OF DESIGNEE],
as Designee
By
-----------------------
Name:
Title:
Applicable Lending Office
(and address for notices):
[ADDRESS]
Accepted this ____ day
of _______________, 2000_
BNP PARIBAS, as Agent
By
-----------------------
Name:
Title:
