Exhibit 10 (a)
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of July 1, 2000
among
RICHARDSON ELECTRONICS, LTD.,
VARIOUS LENDING INSTITUTIONS,
and
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
AS AGENT
TABLE OF CONTENTS
Page
ARTICLE I 1
ARTICLE II 14
2.1 Description of Facility 14
2.2 Advances 14
2.2.1 Commitment 14
2.2.2 Termination 15
2.2.3 Ratable Loans 15
2.2.4 Types of Advances 15
2.2.5 Minimum Amount of Each Advance 15
2.2.6 Method of Selecting Types and Interest
Periods for New Advances 15
2.2.7 Conversion and Continuation of Outstanding
Advances 15
2.3 Facility Letters of Credit 16
2.3.1 Obligation to Issue 16
2.3.2 Types and Amounts 16
2.3.3 Conditions 17
2.3.4 Procedure for Issuance of Facility Letters
of Credit 17
2.3.5 Reimbursement Obligations 18
2.3.6 Participation 19
2.3.7 Payment of Reimbursement Obligations 20
2.4 Swing Line Commitment 20
2.4.1 Swing Line Loans 20
2.4.2 Swing Line Loan Borrowing Procedures 21
2.4.3 Participations: Reimbursement by Lenders 21
2.4.4 Rights as Lender 22
2.5 General Facility Terms 22
2.5.1 Fees; Reductions in Aggregate Commitment 22
2.5.1.1 Fees 22
2.5.1.2 Reductions in Aggregate Commitments 23
2.5.2 Optional Principal Payments; Mandatory
Principal Payments 23
2.5.3 Applicable Margin 24
2.5.4 Changes in Interest Rate, etc. 24
2.5.5 Rates Applicable After Default 24
2.5.6 Method of Payment 25
2.5.7 Notes; Telephonic Notices 25
2.5.8 Interest Payment Dates; Interest and Fee Basis 26
2.5.9 Notification of Advances, Interest Rates,
and Prepayments 26
2.5.10 Lending Installations 26
2.5.11 Non-Receipt of Funds by the Agent 26
2.5.12 Withholding Tax Exemption 27
ARTICLE III 27
3.1 Yield Protection 27
3.2 Changes in Capital Adequacy Regulations 28
3.3 Availability of Types of Advances 28
3.4 Funding Indemnification 28
3.5 Taxes 28
3.6 Lender Statements; Survival of Indemnity 30
ARTICLE IV 31
4.1 Initial Advance and Facility Letter of Credit 31
4.2 Each Advance and Facility Letter of Credit 32
ARTICLE V 32
5.1 Corporate Existence and Standing 32
5.2 Authorization and Validity 32
5.3 No Conflict; Government Consent 33
5.4 Financial Statements 33
5.5 Material Adverse Change 33
5.6 Taxes 33
5.7 Litigation and Contingent Obligations 33
5.8 Subsidiaries 34
5.9 ERISA 34
5.10 Accuracy of Information 34
5.11 Regulation U 34
5.12 Material Agreements 34
5.13 Compliance With Laws 34
5.14 Ownership of Properties 35
5.15 Environmental Matters 35
5.16 Investment Company Act 35
5.17 Public Utility Holding Company Act 35
5.18 Subordinated Debt 35
5.19 Post-Retirement Benefits 35
ARTICLE VI 35
6.1 Financial Reporting 35
6.2 Use of Proceeds 37
6.3 Notice of Default 37
6.4 Conduct of Business 37
6.5 Taxes 38
6.6 Insurance 38
6.7 Compliance with Laws 38
6.8 Maintenance of Properties 38
6.9 Inspection 38
6.10 Financial Covenants 38
6.10.1 Consolidated Tangible Net Worth 38
6.10.2 Senior Funded Debt to Cash Flow Ratio 39
6.10.3 Adjusted Interest Coverage Ratio 39
6.11 [Intentionally Omitted] 39
6.12 Indebtedness 39
6.13 Merger 39
6.14 Sale of Assets 40
6.15 Investments and Acquisitions 40
6.16 Liens 41
6.17 Prohibition of Negative Pledge. 42
6.18 Affiliates 42
6.19 Amendments to Agreements 42
6.20 Sale of Accounts 42
6.21 Limit on Senior Funded Debt 42
6.22 Fiscal Year 42
6.23 Limitation on the Creation of Subsidiaries 43
6.24 Subsidiary Dividends 43
6.25 Repayment of Subordinated Debt 43
ARTICLE VII 43
ARTICLE VIII 46
8.1 Acceleration 46
8.2 Amendments 46
8.3 Preservation of Rights 47
ARTICLE IX 47
9.1 Survival of Representations 47
9.2 Governmental Regulation 47
9.3 Taxes 47
9.4 Headings 47
9.5 Entire Agreement 48
9.6 Several Obligations; Benefits of this Agreement 48
9.7 Expenses; Indemnification 48
9.8 Numbers of Documents 48
9.9 Accounting 48
9.10 Severability of Provisions 48
9.11 Nonliability of Lenders 49
9.12 Confidentiality 49
9.13 Nonreliance 49
ARTICLE X 49
10.1 Appointment; Nature of Relationship 49
10.2 Powers 50
10.3 General Immunity 50
10.4 No Responsibility for Loans, Recitals, etc. 50
10.5 Action on Instructions of Lenders 50
10.6 Employment of Agents and Counsel 50
10.7 Reliance on Documents; Counsel 51
10.8 Agent's Reimbursement and Indemnification 51
10.9 Notice of Default 51
10.10 Rights as a Lender 51
10.11 Lender Credit Decision 51
10.12 Successor Agent 52
10.13 Delegation to Affiliates 52
ARTICLE XI 53
11.1 Setoff 53
11.2 Ratable Payments 53
ARTICLE XII 53
12.1 Successors and Assigns 53
12.2 Participation 53
12.2.1 Permitted Participants; Effect 54
12.2.2 Voting Rights 54
12.2.3 Benefit of Setoff 54
12.3 Assignments 54
12.3.1 Permitted Assignments 54
12.3.2 Effect; Effective Date 55
12.4 Dissemination of Information 55
12.5 Tax Treatment 55
ARTICLE XIII 56
13.1 Notices 56
13.2 Change of Address 56
ARTICLE XIV 56
ARTICLE XV 56
15.1 Choice of Law 56
15.2 Consent to Jurisdiction 56
15.3 Waiver of Jury Trial 57
SCHEDULE 1 Lenders and Commitments
SCHEDULE 2 Lender Addresses
SCHEDULE 5.5 Material Adverse Changes since February 29, 2000
SCHEDULE 5.6 Exceptions to Tax Representations
SCHEDULE 5.7 Pending Litigation
SCHEDULE 5.8 Borrower's Subsidiaries
SCHEDULE 5.9 Exceptions to ERISA Representation with respect
to Plan Withdrawals
SCHEDULE 5.14 Exceptions to Representation Concerning
Ownership of Properties
SCHEDULE 5.15 Exceptions to Representation Concerning
Environmental Matters
SCHEDULE 6.12 Permitted Indebtedness
SCHEDULE 6.15 Description of Existing Investments
SCHEDULE 6.16 Description of Existing Liens
EXHIBIT A Form of Compliance Certificate
EXHIBIT B Form of Note
EXHIBIT C [Intentionally Omitted]
EXHIBIT D Form of Facility Letter of Credit Request
EXHIBIT E Form of Opinion of Outside Counsel For Borrower
EXHIBIT F Form of Written Money Transfer Instructions
EXHIBIT G Form of Assignment and Assumption Agreement
AMENDED AND RESTATED LOAN AGREEMENT
This Amended and Restated Loan Agreement (this "Agreement"),
dated as of July 1, 2000, is among RICHARDSON ELECTRONICS, LTD.,
a Delaware corporation (the "Borrower"), the lenders listed from
time to time on Schedule 1 hereto (each a "Lender" and,
collectively, the "Lenders"), and AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, as Agent.
Whereas, the Borrower, the Agent and American National Bank and
Trust Company of Chicago, Harris Trust and Savings Bank and
Mellon Bank entered a Loan Agreement dated as of March 1, 1998
(as amended and modified, the "Prior Loan Agreement"); and
Whereas, the Borrower, the Agent and the Lenders wish to amend
and restate the Prior Loan Agreement in its entirety as set
forth herein.
Now therefore, in consideration of the mutual agreements
contained herein, the parties hereto agree as follows:
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings herein specified unless the context otherwise requires:
"Acquisition(s)" means any transaction, or any series of related
transactions, consummated on or after the date of this
Agreement, by which the Borrower or any of its Subsidiaries (i)
acquires any going concern business or all or substantially all
of the assets of any firm, corporation or division thereof,
whether through the purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of
directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding partnership
interests of a partnership or membership interests in a limited
liability company.
"Adjusted Cash Flow" means, as at any date of determination
thereof, Total Cash Flow less Capital Expenditures.
"Adjusted Interest Coverage Ratio" means, as at any date of
determination thereof, the quotient of (i) Adjusted Cash Flow
over (ii) Interest Expense, in each case calculated for the
period of the trailing four consecutive fiscal quarters ending
on or most recently ended prior to such date of determination.
"Advance" means a borrowing hereunder (or, in the case of a
Eurodollar Advance, the conversion or continuation thereof)
consisting of the aggregate amount of the several Loans made by
some or all of the Lenders to the Borrower on the same Borrowing
Date (or date of conversion or continuation), of the same Type
and, in the case of a Eurodollar Advance, for the same Interest
Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control
with such Person. A Person shall be deemed to control another
Person if the controlling Person owns 10% or more of any class
of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" means American National Bank and Trust Company of
Chicago in its capacity as agent for the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and
any successor Agent appointed pursuant to Article X.
"Aggregate Available Loan Commitment" means, at any date of
determination thereof, the Aggregate Commitment minus the sum of
(i) the Facility Letter of Credit Obligations then outstanding
and (ii) the aggregate principal amount of all Advances then
outstanding.
"Aggregate Commitment" means the aggregate of the Commitments of
all the Lenders, as reduced from time to time pursuant to the
terms hereof.
"Agreement" means this loan agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of the Federal Funds Effective Rate for such day
plus 1/2% per annum.
"ANB" means American National Bank and Trust Company of Chicago
in its individual capacity, and its successors.
"Applicable Margin" means, at any date of determination thereof,
the rate per annum calculated in accordance with Section 2.5.3.
"Arranger" means Banc One Capital Markets, Inc. and its
successors.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Authorized Officer" means any of the Chairman, President,
Executive Vice President, Vice President and Chief Financial
Officer, Secretary and Treasurer of the Borrower, or any other
senior officer of the Borrower designated as such in writing to
the Agent by the Borrower, in each case acting singly.
"Benefit Plan" means each employee benefit plan as defined in
Section 3(3) of ERISA.
"Borrower" means Richardson Electronics, Ltd., a Delaware
corporation, and, subject to Section 8.2 herein, its successors
and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.2.6.
"Business Day" means (i) with respect to any borrowing, payment
or rate selection of Eurodollar Advances, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago
and New York for the conduct of substantially all of their
commercial lending activities and on which dealings in United
States dollars are carried on in the London interbank market and
(ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago for the
conduct of substantially all of their commercial lending
activities.
"Capital Expenditures" means, without duplication, any
expenditures for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP.
"Capitalized Lease" of a Person means any lease of Property by
such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of
the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"Change" means (i) any change after the date of this Agreement
in the Risk-Based Capital Guidelines or (ii) any adoption of or
change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender.
"Change in Control" means Edward J. Richardson shall cease to
own (beneficially or of record), free and clear of any
prohibition or restriction on the transfer or exercise of any
voting rights in respect thereof other than such restrictions in
favor of the Agent and/or the Lenders, in the aggregate at least
the minimum number of outstanding shares of voting stock of the
Borrower required to elect a majority of the Borrower's Board of
Directors and control any amendment of the Borrower's bylaws in
an election in which all outstanding shares entitled to vote are
in fact voted.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Commercial Letter of Credit" means any Facility Letter of
Credit that is a commercial or trade Letter of Credit.
"Commitment" means, for each Lender, the obligation of such
Lender to make Loans and purchase participation in Facility
Letters of Credit in an aggregate amount not exceeding the
amount set forth opposite its name on Schedule 1 hereto or as
set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to Section 12.3.2, as such
amount may be modified from time to time pursuant to the terms
hereof.
"Compliance Certificate" means a compliance certificate,
substantially in the form of Exhibit A hereto, signed by the
Chief Financial Officer or Treasurer of the Borrower, showing
the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof.
"Condemnation" is defined in Section 7.8.
"Consolidated Tangible Net Worth" means, as at any date of
determination thereof, the consolidated stockholders' equity of
the Borrower and its Subsidiaries, plus Subordinated Debt and
less the sum of the consolidated Intangible Assets of the
Borrower and its Subsidiaries, all determined as of such date in
accordance with GAAP.
"Contingent Obligation" of a Person means, without duplication,
any agreement, undertaking or arrangement by which such Person
directly or indirectly assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment
of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to
maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without
limitation, any operating agreement, comfort letter, take-or-pay
contract or application or reimbursement agreement for a Letter
of Credit but excluding any endorsement of instruments for
deposit or collection in the ordinary course of business.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.2.7.
"Credit Party" means the Borrower and each Subsidiary Guarantor.
"Debentures" means the Borrower's 7-1/4% Convertible
Subordinated Debentures due December 15, 2006 and 8-1/4%
Convertible Senior Subordinated Debentures due June 15, 2006.
"Default" means an event described in Article VII.
"Designated Accounts" means accounts not over 90 days past due
owing by a Person (i) residing, located or having its principal
activities or place of business in the United States of America,
the United Kingdom, France, Spain, Germany, Netherlands, or any
province of Canada other than Quebec, and (ii) subject to
service of process within the continental United States of
America, the United Kingdom, France, Spain, Germany,
Netherlands, or any province of Canada other than Quebec.
"Designated Inventory" means inventory located within the
continental United States of America, the United Kingdom,
France, Spain, Germany, Netherlands, or any province of Canada
other than Quebec.
"Dollars", "U.S. Dollars" and "$" mean dollars in lawful
currency of the United States of America.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, injunctions,
permits, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the
environment, (ii) the effect of the environment on human health,
(iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into air, surface
water, ground water or land, or (iv) the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Eurodollar Interest Period, the
applicable London interbank offered rate for deposits in U.S.
dollars appearing on Dow Jones Markets (Telerate) Page 3750 as
of 11:00 a.m. (London time) two Business Days prior to the first
day of such Eurodollar Interest Period, and having a maturity
equal to such Eurodollar Interest Period, provided that, if Dow
Jones Markets (Telerate) Page 3750 is not available for any
reason, the applicable Eurodollar Base Rate for the relevant
Eurodollar Interest Period shall instead be the applicable
London interbank offered rate for deposits in U.S. dollars
appearing on Reuters Screen FRBD as of 11:00 a.m. (London time)
two Business Days prior to the first day of such Eurodollar
Interest Period, and having a maturity equal to such Eurodollar
Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on
a Business Day selected by the Borrower pursuant to this
Agreement. Such Eurodollar Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one,
two, three or six months thereafter, provided, however, that if
there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Eurodollar
Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If a Eurodollar
Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the
next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such
Eurodollar Interest Period shall end on the immediately
preceding Business Day. "Eurodollar Interest Period" may be
amended by the written consent of all of the Lenders and
Borrower to include such other periods not otherwise included
above.
"Eurodollar Loan" means a Loan which bears interest at a
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period:
(A) for the period from July 1, 2000 to and including August
31, 2000, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Eurodollar Interest Period,
divided by (b) one minus the Reserve Requirement (expressed
as a decimal) applicable to such Eurodollar Interest
Period, plus (ii) one and one half percent (1.50%);
(B) for the period from September 1, 2000 until the last
Business Day on which a Eurodollar Interest Period may
commence hereunder, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to such Eurodollar Interest
Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Eurodollar
Interest Period, plus (ii) the Applicable Margin in effect
two Business Days prior to the first day of such Eurodollar
Interest Period.
In all circumstances, the Eurodollar Rate shall be rounded to
the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the
jurisdiction under the laws of which such Lender or the Agent is
incorporated or organized, or (ii) the jurisdiction in which the
Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Facility Letter of Credit Obligations" means, at any date of
determination thereof, all liabilities, whether actual or
contingent, of the Borrower in respect of the Facility Letters
of Credit, including, without limitation, the sum of (i)
Reimbursement Obligations and (ii) the aggregate undrawn face
amount of any outstanding Facility Letters of Credit.
"Facility Letter of Credit Request" is defined in Section 2.3.4.
"Facility Letters of Credit" means, collectively, the Letters of
Credit issued by the Issuer pursuant to Section 2.3.
"Facility Termination Date" means July 1, 2004 or any earlier
date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest
rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published for such day (or, if such day is not a Business Day,
for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations at approximately 10 a.m. (Chicago time) on such day
on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in
its sole discretion.
"Fiscal Year" means, with respect to the Borrower or any of its
Subsidiaries, the fiscal period beginning on June 1 and ending
on May 31 of each calendar year.
"Floating Rate" means the Alternate Base Rate changing when and
as the Alternate Base Rate changes plus the Applicable Margin
(if any).
"Floating Rate Advance" means an Advance which bears interest at
the Floating Rate.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time; it
being understood and agreed that determinations in accordance
with GAAP for purposes of Sections 2.5.3 and 6.10, including
defined terms as used therein, shall utilize accounting
principles and policies in effect at the time of the preparation
of, and in conformity with those used to prepare, the historical
financial statements delivered to the Lenders pursuant to
Section 6.1.
"Gross Up Event" means the occurrence of any of the events
stated in Sections 3.1 or 3.2 hereof.
"Indebtedness" of a Person means such Person's (i) obligations
for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts
payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (iii) obligations,
whether or not assumed, secured by Liens (except obligations
secured by Liens permitted under Section 6.16(vi)) or payable
out of the proceeds or production from property now or hereafter
owned or acquired by such Person, (iv) obligations which are
evidenced by notes, acceptances, or other instruments, (v)
Capitalized Lease Obligations, (vi) Rate Hedging Obligations,
(vii) Contingent Obligations, (viii) Subordinated Debt, and (ix)
any other obligation for borrowed money or other financial
accommodation (other than accounts payable arising in the
ordinary course of such Person's business payable on terms
customary in the trade) which in accordance with GAAP would be
shown as a liability on the consolidated balance sheet of such
Person.
"Intangible Assets" means the amount (to the extent reflected in
determining consolidated stockholders' equity) of (i) all write-
ups in the book value of any asset owned or acquired by the
Borrower or a Subsidiary, (ii) all goodwill, covenants not to
compete, prepayments, deferred charges, franchises, patents,
trademarks, service marks, trade names, brand names and
copyrights, (iii) all deferred financing costs (including, but
not limited to, unamortized debt discount and expense,
organization expense and experimental and development expenses,
but excluding prepaid expenses), and (iv) leasehold improvements
not recoverable at the expiration of a lease.
"International Borrower" means individually and collectively,
Burtek Systems, Inc., Richardson Electronics Canada, Ltd.,
Richardson Electronics (Europe) Ltd., RESA, SNC, Richardson
France, SNC, Richardson Electronics Iberia, S.A., Richardson
Electronics GmbH, and Richardson Electronics Benelux B.V.
"International Credit Agreement" means that certain Revolving
Credit Agreement made as of July 1, 2000, by and among the
International Borrower and the Lenders and their respective
Affiliates, as the same may be amended or modified and in effect
from time to time.
"International Guaranty" means that certain Guaranty originally
dated as of July 1, 2000, executed by the Borrower in favor of
International Lender, as the same may be amended or modified and
in effect from time to time.
"International Lenders" means individually and collectively
certain Affiliates of the Lenders and their successors and
assigns.
"International Loan Documents" has the meaning attributed to the
term "Documents" in the International Credit Agreement.
"International Loans" has the meaning attributed to the term
"Loans" in the International Credit Agreement.
"Interest Expense" means, for any period of calculation, all
interest expense on Indebtedness, calculated for such period for
the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Interest Period" means a Eurodollar Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers, employees
and sales agents made in the ordinary course of business),
extension of credit (other than accounts receivable arising in
the ordinary course of business on terms customary in the
trade), redemption or other repurchase of its capital stock, or
contribution of capital by such Person, stocks, bonds, mutual
funds, partnership interests, notes, debentures or other
securities owned by such Person and structured notes, derivative
financial instruments and other similar instruments or contracts
owned by such Person.
"Issuance Date" means, with respect to any Facility Letter of
Credit, the date on which such Facility Letter of Credit is
issued hereunder.
"Issuance Fee" means, with respect to any Facility Letter of
Credit on the Issuance Date thereof, such issuance fee as the
Borrower and the Issuer of such Facility Letter of Credit shall
have agreed upon in writing.
"Issuer" is defined in Section 2.3.1.
"Lender" means each of the lenders listed from time to time on
Schedule 1 hereto, along with their respective successors and
assigns (each a "Lender" and, collectively the "Lenders").
"Lending Installation" means, with respect to a Lender or the
Agent, any office, branch, subsidiary or affiliate of such
Lender or the Agent.
"Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such
Person or upon which such Person is an account party or for
which such Person is in any way liable.
"Level I Status" exists at any date if the Senior Funded Debt to
Cash Flow Ratio is less than 1.00:1.00.
"Level II Status" exists at any date if the Senior Funded Debt
to Cash Flow Ratio is greater than or equal to 1.00:1.00 but
less than 1.50:1.00.
"Level III Status" exists at any date if the Senior Funded Debt
to Cash Flow Ratio is greater than or equal to 1.50:1.00 but
less than 2.00:1.00.
"Level IV Status" exists at any date if none of Level I Status,
Level II Status, or Level III Status exists at such date.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, filed financing statement, assignment,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, a loan made by such
Lender pursuant to Article II (or any conversion or continuation
thereof).
"Loan Documents" means this Agreement, the Notes, and any other
documents and agreements contemplated hereby and executed by the
Borrower or a Subsidiary in favor of the Agent or any Lender.
"Material Adverse Effect" means a material adverse effect on (i)
the business, Property, financial condition or results of
operations of the Borrower or any of its Subsidiaries, (ii) the
ability of the Borrower to perform its respective obligations
under any of the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Multiemployer Plan" means a Plan defined in Section 3(37) of
ERISA to which the Borrower or any member of the Controlled
Group may have any liability.
"Net Income" shall mean, for any period, the net income (or
loss), after provision for taxes, of the Borrower and its
Subsidiaries on a consolidated basis for such period taken as a
single accounting period but excluding any unrealized losses and
gains for such period resulting from mark-to-market of Rate
Hedging Agreements.
"Note" means a promissory note, substantially in the form of
Exhibit B hereto, with appropriate insertions, duly executed and
delivered to the Agent by the Borrower for the account of a
Lender and payable to the order of such Lender in the amount of
its Commitment, including any amendment, modification, renewal
or replacement of such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all accrued and unpaid fees
arising under the Loan Documents, all Facility Letter of Credit
Obligations, and all expenses, reimbursements, indemnities and
other obligations of the Borrower to the Lenders or to any
Lender, the Agent or any indemnified party hereunder arising
under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Pacific Rim Loans" means loans from ANB or its Affiliates to
certain of the Borrower's Subsidiaries in Singapore and Japan
not exceeding $300 million Japanese Yen plus $3.4 million
Singapore Dollars respectively, in the aggregate at any time
outstanding, or such other amounts, as amended from time to time
by ANB or its Affiliates (with the consent of the Lenders) under
the respective agreements evidencing such loans.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each of February,
May, August and November.
"Permitted Acquisition" means, at any time of determination, any
Acquisition by the Borrower or any Subsidiary of a business or
entity in substantially the same field of enterprise as the
Borrower or such Subsidiary with respect to which each of the
following requirements is then met:
(i) Such Acquisition has been approved and recommended by
the board of directors of the entity to be acquired.
(ii) The Borrower or such Subsidiary shall have given the
Agent notice of such Acquisition within ten (10) days
prior to or following the consummation thereof.
(iii) The aggregate consideration (including, without
limitation, the purchase price therefor and any
assumption of debt (other than accounts payable and
deferred revenue obligations arising in the ordinary
course of business)) for such Acquisition plus all
other Acquisitions, less the amount of cash received
by the Borrower or such Subsidiary from the entities
being acquired in connection with such Acquisition and
all other Acquisitions, does not exceed $15 million
during the Borrower's rolling four consecutive trailing
fiscal quarters.
(iv) Prior to and after giving effect to such Acquisition,
no Default or Unmatured Default shall exist.
"Person" means any natural person, corporation, limited
liability company, firm, joint venture, partnership,
association, enterprise, trust or other entity or organization,
or any government or political subdivision or any agency,
department or instrumentality thereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Plan" means an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards
under Section 302 of ERISA or Section 412 of the Code as to
which the Borrower or any member of the Controlled Group may
have any liability.
"Prime Rate" means a rate per annum equal to the base rate of
interest announced by ANB from time to time, changing when and
as said prime rate changes. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate
actually charged to any customer. ANB may make commercial loans
or other loans at rates of interest at, above or below the Prime
Rate.
"Pro Rata Share" means, with respect to each Lender at any time,
the ratio such Lender's Commitment bears to the Aggregate
Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or
other assets owned, leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Hedging Agreement" means an agreement, device or
arrangement providing for payments which are related to
fluctuations of interest rates, exchange rates or forward rates.
including, but not limited to, dollar-denominated or cross-
currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts
and warrants.
"Rate Hedging Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all Rate Hedging
Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Hedging
Agreement.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and
any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and
any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of
the obligations of the Borrower to the Issuer and the Lenders in
respect of all unreimbursed payments or disbursements made by
the Issuer and the Lenders under or in respect of drawings under
the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure
to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA
or Section 412(d) of the Code.
"Required Lenders" means, at any time, Lenders in the aggregate
having at least 66-2/3% of the Aggregate Commitment or,
subsequent to the Facility Termination Date, Lenders in the
aggregate holding at least 66-2/3% of the sum of (i) the
aggregate unpaid principal amount of the outstanding Advances
and (ii) the Facility Letter of Credit Obligations.
"Reserve Requirement" means, with respect to a Eurodollar
Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities.
"Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Senior Funded Debt" means the sum of all Indebtedness that (i)
is not Subordinated Debt and (ii) by its terms is or will become
interest bearing, including, but not limited to, Capitalized
Lease Obligations and the Obligations hereunder.
"Senior Funded Debt to Cash Flow Ratio" means, as at any date of
determination thereof, the ratio of (i) Senior Funded Debt
outstanding at the end of the fiscal quarter ending on or most
recently ended prior to such date of determination to (ii) Total
Cash Flow, in each case calculated as at such date of
determination for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, and with respect to
Total Cash Flow calculated for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such
date of determination.
"Settlement Date" is defined in Section 2.4.3.
"Single Employer Plan" means a Plan maintained by the Borrower
or any member of the Controlled Group for employees of the
Borrower or any member of the Controlled Group.
"Standby Letter of Credit" means any Facility Letter of Credit
that is an irrevocable standby Letter of Credit.
"Status" means, at any date of determination, whichever of Level
I Status, Level II Status, Level III Status or Level IV Status
exists at such time.
"Subordinated Debt" means the Debentures and any unsecured
Indebtedness of the Borrower (a) no part of the principal of
which is stated to be payable or is required to be paid (whether
by way of mandatory sinking fund, mandatory redemption,
mandatory prepayment or otherwise) prior to the Facility
Termination Date, and the payment of the principal of and
interest on which and other obligations of the Borrower in
respect thereof are subordinated to the prior payment in full of
principal of and interest (including post-petition interest) on
the Notes and all other obligations and liabilities of the
Borrower to the Agent and the Lenders hereunder on terms and
conditions first approved in writing by the Required Lenders and
(b) otherwise containing terms, covenants and conditions
satisfactory in form and substance to the Required Lenders, as
evidenced by their prior written approval thereof.
"Subsidiary" of any Person means (i) any corporation more than
50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at
the time stock of any class or classes of such corporation shall
have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership,
association (including business trusts), joint venture, limited
liability company or other entity in which such Person directly
or indirectly through Subsidiaries, has more than 50% voting or
equity interest at the time.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property (except for inventory
sold in the ordinary course of business) which (i) represents
more than ten percent (10%) of the consolidated assets of the
Borrower and its Subsidiaries as at the last day of the calendar
month ending on or most recently ended prior to the date on
which such determination is made, or (ii) is responsible for
more than ten percent (10%) of the consolidated net sales or of
the consolidated net income of the Borrower and its Subsidiaries
for the period of twelve complete consecutive calendar months
ending on or most recently ended prior to the date on which such
determination is made.
"Swing Line Commitment" means $5,000,000, as such amount may be
reduced from time to time in the sole discretion of the Swing
Line Lender.
"Swing Line Lender" means ANB in its capacity as a provider of
Swing Line Loans under this Agreement and its successors and
assigns in such capacity.
"Swing Line Loan" is defined in Section 2.4.
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any
and all liabilities with respect to the foregoing, but excluding
Excluded Taxes.
"Total Cash Flow" means, as at any date of determination
thereof, the sum of Net Income, Interest Expense, income taxes,
depreciation and amortization in each case calculated as at such
date of determination for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP. Neither cash nor
non-cash charges reflecting extraordinary terms, unusual items,
or one time charges will be added back for the purpose of Total
Cash Flow calculation.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a
Eurodollar Advance or a Floating Rate Advance.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under
all Single Employer Plans exceeds the fair market value of all
such Plan assets allocable to such benefits, all determined as
of the then most recent valuation date for such Plans as if such
Plans were terminating on such date under Section 4041 of ERISA.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a
Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary
all of the outstanding voting securities of which shall at the
time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person,
or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so
owned or controlled.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Description of Facility. Upon the terms and subject to
the conditions set forth in this Agreement, the Lenders hereby
grant to the Borrower a revolving credit facility pursuant to
which: (i) each Lender severally agrees to make Loans to the
Borrower in accordance with Section 2.2; and (ii) each Lender
severally agrees to purchase participation in Facility Letters
of Credit in accordance with Section 2.3; provided, however,
that in no event may the sum of (1) the aggregate principal
amount of all outstanding Advances (including Swing Line Loans)
and (2) the Facility Letter of Credit Obligations exceed the
Aggregate Commitment.
2.2 Advances.
2.2.1 Commitment. From and including the date of this
Agreement and prior to the Facility Termination Date, each
Lender severally agrees, on the terms and conditions set forth
in this Agreement, to make Loans to the Borrower from time to
time in amounts not to exceed in the aggregate at any one time
outstanding (after giving effect to the intended use of proceeds
of any Loan used to repay any outstanding Reimbursement
Obligations) the amount of its Commitment. Subject to the terms
of this Agreement, the Borrower may borrow, repay, and reborrow
from each Lender at any time prior to the Facility Termination
Date. The Commitment of each Lender to lend hereunder shall
expire on the Facility Termination Date.
2.2.2 Termination. All outstanding Advances and all other
unpaid Obligations owing to each Lender shall be paid in full by
the Borrower on the Facility Termination Date.
2.2.3 Ratable Loans. Each Advance hereunder shall consist of
Loans made from the several Lenders ratably in proportion to
their respective Pro Rata Share.
2.2.4 Types of Advances. The Advances may be Eurodollar
Advances, Floating Rate Advances or a combination thereof,
selected by the Borrower in accordance with Sections 2.2.6 and
2.2.7.
2.2.5 Minimum Amount of Each Advance. Each Eurodollar Advance
shall be in the minimum amount of $1,000,000 (and in multiples
of $100,000 if in excess thereof), and each Floating Rate
Advance shall be in the minimum amount of $300,000 (and in
multiples of $100,000 if in excess thereof); provided, however,
that any Floating Rate Advance may be in the amount of the
unused Aggregate Available Loan Commitment should the Aggregate
Available Loan Commitment be less than $300,000.
2.2.6 Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in
the case of each Eurodollar Advance, the Eurodollar Interest
Period applicable to each such Eurodollar Advance from time to
time. The Borrower shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than 10:00 a.m. (Chicago time) on
the Borrowing Date of each Floating Rate Advance and not later
than 12:00 noon (Chicago time) at least three (3) Business Days
before the Borrowing Date for each Eurodollar Advance,
specifying:
(i) the Borrowing Date, which shall be a Business Day,
of such Advance;
(ii) the aggregate amount of such Advance;
(iii) the Type of Advance selected; and
(iv) in the case of each Eurodollar Advance, the
Eurodollar Interest Period applicable thereto
(which may not end after the Facility Termination
Date).
Not later than noon (Chicago time) on each Borrowing Date, each
Lender shall make available its Loan or Loans, in funds
immediately available in Chicago to the Agent at its address
specified pursuant to Article XIII. The Agent will make the
funds so received from the Lenders available to the Borrower at
the Agent's aforesaid address.
2.2.7 Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into
Eurodollar Advances. Each Eurodollar Advance shall continue as
a Eurodollar Advance until the end of the then applicable
Eurodollar Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Eurodollar Interest Period,
such Eurodollar Advance either continue as a Eurodollar Advance
for the same or another Eurodollar Interest Period or be
converted into a Floating Rate Advance. Subject to the terms of
Section 2.2.5, the Borrower may elect from time to time to
convert all or any part of an Advance of either Type into the
other Type of Advance; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the last day
of the Eurodollar Interest Period applicable thereto. The
Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurodollar Advance not later than
12:00 noon (Chicago time) (a) in the case of a conversion into a
Floating Rate Advance, at least one Business Day before the date
of the requested conversion, and (b) in the case of a conversion
into or continuation of a Eurodollar Advance, at least three
Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date (which shall be a Business Day)
of such conversion or continuation;
(ii) the aggregate amount and Type of Advance(s) which is
to be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the
case of a conversion into or continuation of a
Eurodollar Advance, the duration of the Eurodollar
Interest Period applicable thereto (which may not end
after the Facility Termination Date).
2.3 Facility Letters of Credit.
2.3.1 Obligation to Issue. From and including the date of this
Agreement and prior to the Business Day prior to the Facility
Termination Date, the Agent agrees, on the terms and conditions
set forth in this Agreement and on behalf of each of the
Lenders, to issue for the account of the Borrower one or more
Facility Letters of Credit in accordance with this Section 2.3
(the Agent in such capacity is referred to as the "Issuer").
2.3.2 Types and Amounts. The Issuer shall not have any
obligation to and shall not:
(i) issue any Facility Letter of Credit if the aggregate
maximum amount then available for drawing under Letters
of Credit issued by the Issuer, after giving effect to
the Facility Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation
upon the Issuer;
(ii) issue any Facility Letter of Credit if, after giving
effect thereto, the sum of (a) the Facility Letter of
Credit Obligations plus (b) the aggregate unpaid
principal balance of the Advances (including Swing
Line Loans) would exceed the Aggregate Commitment;
(iii) issue any Facility Letter of Credit which has an
expiry date (a) later than twelve months after the
Issuance Date thereof or (b) on or after five days
prior to the Facility Termination Date; or
(iv) issue any Facility Letter of Credit if, after giving
effect to such Facility Letter of Credit requested
hereunder, the Facility Letter of Credit Obligations
would exceed $10,000,000 in the aggregate.
2.3.3 Conditions. In addition to being subject to the
satisfaction of the conditions contained in Sections 4.1 and
4.2, the obligation of the Issuer to issue any Facility Letter
of Credit is subject to the satisfaction in full of each of the
following conditions:
(i) the Borrower shall have delivered to the Issuer at such
times and in such manner as the Issuer may reasonably
prescribe such documents and materials as may be
required pursuant to the terms of the requested
Facility Letter of Credit (it being understood that if
any inconsistency exists between the Issuer's Letter of
Credit documents and the Loan Documents, the terms of
the Loan Documents shall govern and control) and the
requested Facility Letter of Credit shall be reasonably
satisfactory to the Issuer as to form and content; and
(ii) as of the Issuance Date, no order, judgment or decree
of any court, arbitrator or governmental authority
shall purport by its terms to enjoin or restrain the
Issuer from issuing the requested Facility Letter of
Credit and no law, rule or regulation applicable to the
Issuer and no request or directive (whether or not
having the force of law) from any governmental
authority with jurisdiction over the Issuer shall
prohibit or request that the Issuer refrain from the
issuance of Letters of Credit generally or the issuance
of such requested Facility Letter of Credit in
particular.
2.3.4 Procedure for Issuance of Facility Letters of Credit.
(a) The Borrower shall give the Issuer written notice not
later than noon (Chicago time) at least three Business Days
before the Issuance Date of any requested Facility Letter of
Credit (each a "Facility Letter of Credit Request") (except
that, in lieu of such written notice, the Borrower may give the
Issuer notice of such request by tested telex or other tested
arrangement satisfactory to the Issuer). Such Facility Letter
of Credit Request shall be irrevocable and shall specify:
(1) the stated amount of such requested Facility Letter
of Credit;
(2) the Issuance Date (which day shall be a Business Day);
(3) the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day
and shall in no event be later than five days prior to
the Facility Termination Date);
(4) the purpose for which such Facility Letter of Credit is
to be issued;
(5) the Person for whose benefit the requested Facility
Letter of Credit is to be issued; and
(6) whether the requested Facility Letter of Credit will be
a Commercial Letter of Credit or a Standby Letter of
Credit.
Prior to the issuance of the requested Facility Letter of
Credit, the Borrower shall provide the Issuer with a copy of the
form of the Facility Letter of Credit it is requesting be
issued. The Issuer will notify each Lender within a reasonable
time following the issuance of each Facility Letter of Credit.
(b) Subject to the terms and conditions of this Section 2.3.4
and provided that the applicable conditions set forth in
Sections 4.1 (in the case of the initial Facility Letter of
Credit), 4.2 and 2.3.3 have been satisfied, the Issuer shall, on
the applicable Issuance Date, issue a Facility Letter of Credit
on behalf of the Borrower in accordance with the Issuer's usual
and customary business practices.
(c) The Issuer shall not extend or amend any Facility Letter
of Credit unless the requirements of Sections 2.3.2 and 2.3.4
are met.
2.3.5 Reimbursement Obligations.
(a) (i) The Issuer shall promptly notify the Borrower of any
draw under such Facility Letter of Credit. The Borrower shall
reimburse the Issuer for drawings under Standby Letters of
Credit (including the Issuer's issuing costs) no later than the
Business Day after the payment in respect of such Standby Letter
of Credit by the Issuer, together with interest thereon at the
Alternate Base Rate from the date of payment on such Standby
Letter of Credit by the Issuer to and including the date on
which the Issuer is reimbursed for such payment by the Borrower.
The Borrower shall reimburse the Issuer for drawings under
Commercial Letters of Credit (including the Issuer's issuing
costs) no later than the Business Day after the payment in
respect of such Commercial Letter of Credit by the Issuer,
together with interest thereon at the Alternate Base Rate from
the date of payment on such Commercial Letter of Credit by the
Issuer to and including the date on which the Issuer is
reimbursed for such payment by the Borrower; and
(ii) Any Reimbursement Obligation with respect to any
Facility Letter of Credit which is not paid on the date when due
in accordance with Section 2.3.5(a)(i) shall (A) if there is
availability for such an Advance pursuant to Section 2.2, be
automatically converted on such date into a Floating Rate
Advance and shall bear interest at the Floating Rate or (B) if
there is no availability for an Advance pursuant to Section 2.2,
be payable on demand and bear interest until paid at a rate per
annum equal to the sum of (a) the Floating Rate plus (b) 2% per
annum.
(b) Any action taken or omitted to be taken by the Issuer
under or in connection with any Facility Letter of Credit, if
taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Issuer under any resulting
liability to any Lender or, assuming that the Issuer has
complied with the procedures specified in Section 2.3.4(b) and
such Lender has not given a notice contemplated by Section
2.3.6(a) that continues in full force and effect, relieve such
Lender of its obligations hereunder to the Issuer. In
determining whether to pay under any Facility Letter of Credit,
the Issuer shall have no obligation relative to the Lenders or
the Borrower other than to confirm that any documents required
to be delivered under such Facility Letter of Credit appear to
comply on their face with the requirements of such Facility
Letter of Credit.
2.3.6 Participation.
(a) Immediately upon issuance by the Issuer of any Facility
Letter of Credit in accordance with the procedures set forth in
Section 2.3.4, each Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Issuer,
without recourse or warranty, an undivided interest and
participation equal to its Pro Rata Share in such Facility
Letter of Credit (including, without limitation, all obligations
of the Borrower with respect thereto) and any security therefor
or guaranty pertaining thereto; provided, that a Letter of
Credit issued by the Issuer shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 2.3.6 if the
Issuer shall have received written notice from any Lender on or
before 10:00 a.m. (Chicago time) on the Issuance Date of such
Letter of Credit that one or more of the conditions contained in
Section 4.2 is not then satisfied, and, in the event the Issuer
receives such a notice, it shall have no further obligation to
issue any Facility Letter of Credit until such notice is
withdrawn by such Lender or such condition has been satisfied or
has been effectively waived in accordance with the provisions of
this Agreement.
(b) In the event that the Issuer makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid
such amount to the Issuer pursuant to Section 2.3.5, the Issuer
shall promptly notify each Lender of such failure, and each
Lender shall promptly and unconditionally pay to the Issuer for
the Issuer's account the amount of such Lender's Pro Rata Share
of the unreimbursed amount of any such payment. The failure of
any Lender to make available to the Issuer its Pro Rata Share of
the unreimbursed amount of any such payment shall not relieve
any other Lender of its obligation hereunder to make available
to the Issuer its Pro Rata Share of the unreimbursed amount of
any payment on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender
to make available to the Issuer its Pro Rata Share of the
unreimbursed amount of any payment on the date such payment is
to be made.
(c) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it
shall promptly pay to the account of each Lender which has
funded its participating interest therein, in immediately
available funds, an amount equal to each such Lender's Pro Rata
Share thereof.
(d) The obligations of a Lender to make payments to the
Issuer with respect to a Facility Letter of Credit shall be
absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of
this Agreement under all circumstances. Nothing contained in
this Section 2.3.6(d) shall impair or adversely affect any claim
any Lender may have against the Issuer or any other Lender with
respect to any gross negligence or willful misconduct of the
Issuer or such other Lender in respect of any Facility Letter of
Credit.
2.3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Issuer the amount of
all Reimbursement Obligations, interest and other amounts
payable to the Issuer under or in connection with each Facility
Letter of Credit immediately when due, irrespective of any
claim, set-off, defense or other right which the Borrower or any
Subsidiary may have at any time against the Issuer, the Agent or
any other Person, under all circumstances, including without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower or any Subsidiary may have at any time
against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or any Person
for whom any such transferee may be acting), the Issuer, any
Lender, or any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower or any Subsidiary
and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Facility 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower or any
Subsidiary received by the Issuer with respect to a Facility
Letter of Credit and distributed to the Lenders on account of
their participation is thereafter set aside, avoided or
recovered from the Agent in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each
Lender which received such distribution shall, upon demand by
the Issuer, contribute such Lender's Pro Rata Share of the
amount set aside, avoided or recovered together with interest at
the rate required to be paid by the Issuer upon the amount
required to be repaid by it.
2.4 Swing Line Commitment.
2.4.1 Swing Line Loans. The Swing Line Lender in its sole and
absolute discretion, from and including the date of this
Agreement and prior to the Revolving Facility Termination Date,
may make, on a revolving credit basis, loans (collectively,
"Swing Line Loans") to the Borrower in such aggregate amounts as
Borrower may from time to time request from the Swing Line
Lender; provided, after giving effect to such Swing Line Loan,
(i) the aggregate outstanding amount of all Swing Line Loans
does not exceed the Swing Line Commitment, and (ii) Borrower's
Swing Line Loans, plus other Advances, plus Facility Letter of
Credit Obligations do not exceed the Aggregate Commitment.
Subject to the terms of this Agreement, the Borrowers may
borrow, repay and reborrow Swing Line Loans at any time prior to
the Facility Termination Date. All Swing Line Loans shall be
Floating Rate Advances. No Swing Line Loan shall be used for
the purpose of funding the payment of principal of any other
Swing Line Loan. Each Swing Line Loan shall be in an amount of
$100,000 or an integral multiple of $10,000 in excess thereof.
The Borrower shall repay to the Agent for the account of the
Swing Line Lender the outstanding principal amount of each Swing
Line Loan on the earlier of the maturity date specified in the
related notice of borrowing pursuant to Section 2.4.2 (which
maturity shall be no later than the fifth Business Day after the
requested date of such Swing Line Loan) and the Facility
Termination Date.
2.4.2 Swing Line Loan Borrowing Procedures. The Borrower shall
give written irrevocable notice or telephonic notice (followed
immediately by written confirmation thereof) to the Swing Line
Lender and the Agent of each proposed Swing Line Loan not later
than 12:00 p.m. (Chicago time) on the proposed date of such
Swing Line Loan. Each borrowing of a Swing Line Loan shall be
on a Business Day. Each such notice shall be effective upon
receipt by the Swing Line Lender and the Agent and shall specify
the date, amount and maturity of such Swing Line Loan. If the
Swing Line Lender elects to make the requested Swing Line Loan,
the Swing Line Lender will, no later than 3:00 p.m. (Chicago
time) on the date of a proposed Swing Line Loan, provide the
Agent at the address specified pursuant to Schedule 2 with
immediately available funds covering the amount of such Swing
Line Loan and, so long as the Agent has not received written
notice that the conditions precedent set forth in Article 4 with
respect to such Swing Line Loan have not been satisfied, the
Agent shall pay over the funds received by the Agent to the
requesting Borrower on the requested borrowing date.
2.4.3 Participations: Reimbursement by Lenders. Upon the
earlier of (a) a Business Day occurring no less frequently than
weekly, as determined by the Agent and notice of which has been
provided to the Lenders and (b) the Business Day on which
written demand by the Swing Line Lender, with a copy of such
demand to the Agent, is received by each Lender (such date, the
"Settlement Date"), each other Lender shall purchase from the
Swing Line Lender, and the Swing Line Lender shall sell and
assign to each such other Lender, such other Lender's Pro Rata
Share of such outstanding Swing Line Loans as of such Settlement
Date, by making available for the account of the Swing Line
Lender, by deposit at the office specified by the Agent, in same
day funds, an amount equal to the portion of the outstanding
principal amount, of such Swing Line Loans to be purchased by
such Lender. Borrower agrees to each such sale and assignment.
If and to the extent any Lender shall not have made the amount
of such Swing Line Loan available to the Agent by 2:00 p.m.
(Chicago time) on the Settlement Date (it being understood that
any such notice received after noon (Chicago time) on any
Business Day shall be deemed to have been received on the next
following Business Day, such Lender agrees to pay interest on
such amount to the Agent for the Swing Line Lender's account
forthwith on demand for each day from the date such amount was
to have been delivered to the Agent to the date such amount is
paid, at a rate per annum equal to the Federal Funds Effective
Rate for such day for the first three days and, thereafter, the
interest rate applicable to Swing Line Loans. Any Lender's
failure to make available to the Agent its Pro Rata Percentage
of any such Swing Line Loan shall not relieve any other Lender
of its obligation hereunder to make available to the Agent such
other Lender's Pro Rata Percentage of such Swing Line Loan, but
no Lender shall be responsible for the failure of any other
Lender to make available to the Agent such other Lender's Pro
Rata Percentage of any such Swing Line Loan. If such Lender
shall pay to the Agent such amount for the account of the Swing
Line Lender on any Business Day, such amount so paid in respect
of principal shall constitute a Swing Line Loan made by such
Lender on such Business Day for purposes of this Agreement, and
the outstanding principal amount of the Swing Line Loan made by
the Swing Line Lender shall be reduced by such amount on such
Business Day.
2.4.4 Rights as Lender. In its capacity as a Lender, the Swing
Line Lender shall have the same rights and obligations as any
other Lender.
2.5 General Facility Terms.
2.5.1 Fees; Reductions in Aggregate Commitment.
2.5.1.1 Fees. The Borrower agrees to pay to the Agent the
following fees
(i) Facility Fee. For the account of each Lender in
proportion to such Lender's Pro Rata Share, an annual facility
fee equal to the product of (a) twenty five (25) basis points,
and (b) the Aggregate Commitment, which annual facility fee
shall be computed and earned in its entirety on the date of this
Agreement and each July 1 thereafter prior to the Facility
Termination Date. The annual facility fee shall be payable
quarterly in four equal installments in arrears on August 31,
2000 and on the last Business Day of each August, November,
February and May thereafter prior to the Facility Termination
Date with the outstanding unpaid balance of such fee due on the
Facility Termination Date. Such facility fee shall in no
circumstances be refundable to the Borrower, provided however
that such facility fee shall be prorated for the actual days of
any year (commencing January 1) in which a Facility Termination
Date occurs solely because of Borrower's irrevocable payoff of
all Loans on account of a breach by Lenders of Section 10.12
hereof or the occurrence of a Gross Up Event.
(ii) Agent Fees. For the Agent's own account, such fees
as the Borrower and the Agent shall have agreed upon pursuant to
that certain letter agreement dated April 28, 2000 between the
Borrower and the Agent, or as otherwise agreed upon from time to
time.
(iii) Standby Letter of Credit Commission. For the
account of each Lender, a Standby Letter of Credit Fee payable
quarterly on the last Business Day of each February, May, August
and November at a per annum rate equal to the product of the
then Applicable Margin and the average amount of Standby Letters
of Credit outstanding during the immediately preceding fiscal
quarter of the Borrower.
(iv) Issuance Fee. The Borrower shall pay to the Issuer
on or before the Issuance Date of each Facility Letter of Credit
(or such later date as the Borrower and the Issuer shall agree
upon in writing), solely for the account of the Issuer, the
Issuance Fee in respect of such Facility Letter of Credit and
shall also pay from time to time, upon written demand from
Issuer, the Issuer's reasonable and customary costs of issuing
and servicing such Facility Letter of Credit.
(v) International Credit Agreement Facility Participation
Fee. As part of their credit arrangements with the Borrower,
the Lenders have heretofore agreed to participate as risk
participants or otherwise in the International Credit Agreement.
For the account of each Lender, in consideration of each
Lender's agreement to participate as risk participants or
otherwise in the International Credit Agreement, which
participation inures to the benefit of the Borrower, the
Borrower will pay the Agent for the ratable account of the
Lenders, a facility participation fee equal to 0.25% of the
Commitment ("Commitment" as defined in the International Credit
Agreement) which fee will be payable in quarterly installments
in arrears on the last Business Day of each August, November,
February, and May. Such facility participation fee shall in no
circumstances be refundable to the Borrower or the International
Borrowers, provided however that such facility participation fee
shall be prorated for the actual days of any year (commencing
January 1) in which a Facility Termination Date occurs solely
because of Borrower's irrevocable payoff of all Loans on account
of a breach by Lenders of Section 10.12 hereof or the occurrence
of a Gross Up Event.
2.5.1.2 Reductions in Aggregate Commitments. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part
ratably among the Lenders in integral multiples of $1,000,000
upon at least three Business Days' written notice to the Agent,
which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Commitment
may not be reduced below an amount equal to the sum of (a) the
aggregate principal amount of the outstanding Advances plus (b)
the Facility Letter of Credit Obligations.
2.5.2 Optional Principal Payments; Mandatory Principal
Payments. The Borrower may from time to time pay all outstanding
Advances, or, pay in a minimum aggregate amount of $100,000 (for
Floating Rate Advances) and $1,000,000 (for Eurodollar Advances)
or any integral multiple of $100,000 in excess thereof, (i)
without penalty or premium, any portion of the outstanding
Floating Rate Advances upon prior notice to the Agent not later
than 10:30 a.m. (Chicago time) at least one (1) Business Day
before the date of such prepayment or (ii) subject to the
indemnity provisions of Section 3.4, any portion of the
outstanding Eurodollar Advances upon prior notice to the Agent
not later than 10:30 a.m. (Chicago time) at least two (2)
Business Days prior to the date of such prepayment. Any
Eurodollar Advance paid prior to the last day of its applicable
Interest Period shall be subject to the indemnity provisions of
Section 3.4. Notwithstanding anything in this Section 2.5.2 to
the contrary, if at any time the sum of the aggregate unpaid
principal balance of the Advances plus the Facility Letter of
Credit Obligations exceeds the Aggregate Commitment, the
Borrower shall, subject to the indemnity provisions of Section
3.4, make an immediate mandatory payment on the Advances equal
to such excess.
2.5.3 Applicable Margin. The Applicable Margin set forth below
shall be subject to adjustment (upwards or downwards, as
appropriate) based on the Borrower's Status as at the end of
each fiscal quarter in accordance with the table set forth
below. The Borrower's Status as at the last day of each fiscal
quarter shall be determined from the then most recent annual or
quarterly financial statements of the Borrower delivered by the
Borrower pursuant to Section 6.1(i) or 6.1(ii) and the
Compliance Certificate delivered by the Borrower pursuant to
Section 6.1(iv). The adjustment, if any, to the Applicable
Margin shall be effective commencing five (5) days after the
delivery to the Lenders of such financial statements and
Compliance Certificate. In the event that the Borrower shall at
any time fail to furnish to the Lenders such financial
statements and Compliance Certificate within the time
limitations specified by Section 6.1, then the maximum
Applicable Margin shall apply from the date of such failure
until the fifth (5th) day after such financial statements and
Compliance Certificate are so delivered. Notwithstanding
anything to the contrary contained herein, the Borrower's Status
from the date of this Agreement to and including the later of
(i) August 31, 2000 or (ii) five (5) days after the delivery to
the Lender of the May 31, 2000 financial statements of the
Borrower accompanied by a current Compliance Certificate, shall
be deemed to be Level III Status.
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV
MARGIN STATUS STATUS STATUS STATUS
Eurodollar Rate 1.00% 1.25% 1.50% 1.75%
Floating Rate 0.00% 0.00% 0.00% 0.00%
2.5.4 Changes in Interest Rate, etc. Each Floating Rate
Advance shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Floating
Rate Advance is made or is converted from a Eurodollar Advance
into a Floating Rate Advance pursuant to Section 2.2.6 to but
excluding the date it becomes due or is converted into a
Eurodollar Advance pursuant to Section 2.2.6 at a rate per annum
equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear
interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such
Eurodollar Advance.
2.5.5 Rates Applicable After Default. Notwithstanding anything
to the contrary contained in Section 2.2.5 or 2.2.6, during the
continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare
that no Advance may be made as, converted into or continued as a
Eurodollar Advance. During the continuance of a Default the
Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates),
declare that (i) each Eurodollar Advance shall bear interest for
the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus, to the extent
permitted by law, 2% per annum and (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Advance
plus, to the extent permitted by law, 2% per annum, provided
that, during the continuance of a Default under Section 7.6 or
7.7 the interest rates set forth in clauses (i) and (ii) above
shall be applicable to all Advances without any election or
action on the part of the Agent or any Lender.
2.5.6 Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or
counterclaim, in immediately available funds to the Agent at the
Agent's address specified pursuant to Article XIII, or at any
other Lending Installation of the Agent specified in writing by
the Agent to the Borrower, by noon (local time at the relevant
Lending Installation) on the date when due and the Agent will
promptly distribute to each Lender its ratable share of each
such payment received by the Agent for the account of the
Lenders; provided, however, that if on any date the Borrower
shall pay less than the full amount of Obligations owing on such
date, such payment shall be distributed to the Lenders ratably
based upon the ratio of the aggregate amount of Obligations
owing to each such Lender on such date to the aggregate amount
of Obligations owing to all the Lenders on such date. Each
payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from
such Lender. The Agent is hereby authorized to charge the
account of the Borrower maintained with ANB for each payment of
principal, interest and fees as it becomes due hereunder.
2.5.7 Notes; Telephonic Notices. Each Lender is hereby
authorized to record the principal amount of each of its Loans
and each repayment on the schedule attached to its applicable
Note(s), and such entries shall be prima facie evidence of the
existence and the amounts of the Obligations therein recorded;
provided, however, that neither the failure to so record nor any
error in such recordation shall affect the Borrower's
obligations under any such Note. The Borrower hereby authorizes
the Lenders and the Agent to extend, convert or continue
Advances, effect selections of Types of Advances and to transfer
funds and issue Facility Letters of Credit in each case based on
telephonic notices made by any Authorized Officer or Authorized
Officers the Agent or any Lender in good faith believes to be
acting on behalf of the Borrower. The Borrower agrees to
deliver promptly to the Agent a written confirmation if such
confirmation is requested by the Agent or any Lender, of each
telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the
Agent and the Lenders shall govern absent manifest error.
2.5.8 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after
the date hereof, on any date on which such Floating Rate Advance
is prepaid, whether due to acceleration or otherwise, and at
maturity. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance optionally prepaid
or converted into a Eurodollar Advance, in each case on a day
other than a Payment Date, shall be payable on the Payment Date
next succeeding the date of such prepayment or conversion, as
the case may be. Interest accrued on each Eurodollar Advance
shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurodollar Advance is prepaid,
whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurodollar Advance having an Interest Period
longer than three months shall also be payable on the last day
of each three-month interval during such Interest Period.
Interest on all Eurodollar Advances and fees shall be calculated
for actual days elapsed on the basis of a 360-day year.
Interest on all other Types of Advances shall be calculated for
actual days elapsed on the basis of a 365, or when applicable, a
366-day year. Interest shall be payable for the day an Advance
is made but not for the day of any payment on the amount paid if
payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such
payment.
2.5.9 Notification of Advances, Interest Rates, and
Prepayments. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Borrowing Notice,
Facility Letter of Credit Request, Conversion/Continuation
Notice and repayment notice received by it hereunder. The Agent
will notify each Lender of the interest rate applicable to each
Eurodollar Advance promptly upon determination of such interest
rate and will give each Lender notice of each change in the
Alternate Base Rate.
2.5.10 Lending Installations. Each Lender may book its Loans
at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of
this Agreement shall apply to any such Lending Installation and
the Notes shall be deemed held by each Lender for the benefit of
such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.5.11 Non-Receipt of Funds by the Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Agent prior to the
date on which it is scheduled to make payment to the Agent of
(i) in the case of a Lender, the proceeds of a Loan or (ii) in
the case of the Borrower, a payment of principal, interest or
fees to the Agent for the account of the Lenders, that it does
not intend to make such payment, the Agent may assume that such
payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made
such payment to the Agent, the recipient of such payment shall,
on demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of repayment
by a Lender, the Federal Funds Effective Rate for such day or
(ii) in the case of repayment by the Borrower, the interest rate
applicable to the relevant Advance.
2.5.12 Withholding Tax Exemption. At least five Business Days
prior to the first date on which interest or fees are payable
hereunder for the account of any Lender, each Lender that is not
incorporated under the laws of the United States of America, or
a state thereof, agrees that it will deliver to each of the
Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each
Lender which so delivers a Form 1001 or 4224 further undertakes
to deliver to each of the Borrower and the Agent two additional
copies of such form (or a successor form) on or before the date
that such form expires (currently, three successive calendar
years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring
a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Agent, in each case
certifying that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or
withholding of United States federal income tax.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or quasi-
governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) adopted, enacted,
modified or otherwise becoming effective after the date hereof,
or any interpretation thereof, or the compliance of any Lender
therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from the Borrower (excluding federal and state
taxation of the overall net income of any Lender or applicable
Lending Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans, the Facility
Letters of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to
Eurodollar Advances), or
(iii) imposes any other condition the result of which is
to increase the cost to any Lender or any applicable Lending
Installation of making, funding, maintaining, issuing or
participating in loans or Letters of Credit or reduces any
amount receivable by any Lender or any applicable Lending
Installation in connection with loans or Letters of Credit, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of loans
held, Letters of Credit issued or participated in or interest
received by it, in each case by an amount deemed material by
such Lender,
then, within 15 days of demand by such Lender, the Borrower
shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender
reasonably determines is attributable to making, funding and
maintaining its Loans and its Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such
Lender or any corporation controlling such Lender is increased
as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines
is attributable to this Agreement, its Loans or its obligation
to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy).
3.3 Availability of Types of Advances. If any Lender
reasonably determines that maintenance of its Eurodollar Loans
would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or if the Required
Lenders determine that (i) deposits of a type and maturity
appropriate to match fund Eurodollar Advances are not available
or (ii) the interest rate applicable to a Eurodollar Advance
does not accurately reflect the cost of making or maintaining
such Eurodollar Advance, then the Agent shall suspend the
availability of the Eurodollar Rate and require any Eurodollar
Advances to be repaid or converted into a Floating Rate Advance,
such repayment or conversion to occur on the last day of the
applicable Interest Period (or such earlier date as may be
required to comply with any applicable law).
3.4 Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance is not made on
the date specified by the Borrower for any reason other than
default by the Lenders, the Borrower will indemnify each Lender
for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating
or employing deposits acquired to fund or maintain the
Eurodollar Advance.
3.5 Taxes.
(i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be
made free and clear of and without deduction for any and all
Taxes. If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 3.5) such Lender or the Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made, (b) the Borrower
shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within
30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other
excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this
Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent
and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent or
such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments
due under this indemnification shall be made within 30 days of
the date the Agent or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof (each a "Non-
U.S. Lender") agrees that it will, not less than ten Business
Days after the date of this Agreement, (i) deliver to each of
the Borrower and the Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to each of
the Borrower and the Agent a United States Internal Revenue Form
W- 8 or W-9, as the case may be, and certify that it is entitled
to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Agent (x) renewals or additional copies of such
form (or any successor form) on or before the date that such
form expires or becomes obsolete, and (y) after the occurrence
of any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto as
may be reasonably requested by the Borrower or the Agent. All
forms or amendments described in the preceding sentence shall
certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering
any such form or amendment with respect to it and such Lender
advises the Borrower and the Agent that it is not capable of
receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant
to clause (iv), above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation
or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect
to Taxes imposed by the United States; provided that, should a
Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because
of its failure to deliver a form required under clause (iv),
above, the Borrower shall take such steps as such Non-U.S.
Lender shall reasonably request to assist such Non-U.S. Lender
to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country
or any political subdivision thereof asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to
notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other
reason), such Lender shall indemnify the Agent fully for all
amounts paid, directly or indirectly, by the Agent as tax,
withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on
amounts payable to the Agent under this subsection, together
with all costs and expenses related thereto (including attorneys
fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of
the Lenders under this Section 3.5(vii) shall survive the
payment of the Obligations and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to
reduce any liability of the Borrower to such Lender under
Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to
the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and
binding on the Borrower. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 3.1,
3.2 and 3.4 shall survive for a period of one year after the
later of the payment in full of the Obligations and the
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Initial Advance and Facility Letter of Credit. The Lenders
shall not be required to make the initial Advance hereunder and,
if the initial Advance shall not have been made, the Issuer
shall not be required to issue the initial Facility Letter of
Credit hereunder unless the Borrower has furnished to the Agent
with sufficient copies for the Lenders the following, each dated
as of the initial Borrowing Date or Issuance Date, as the case
may be (or such earlier date as shall be acceptable to the
Agent):
(i) Copies of the certificate of incorporation of each
Credit Party, together with all amendments thereto, and
certificates of good standing of each Credit Party from each
jurisdiction in which such Credit Party is qualified to do
business, all certified by the appropriate governmental officers
in their respective jurisdiction.
(ii) Copies, certified by the Secretary or an Assistant
Secretary of each Credit Party, of their respective by-laws and
of Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for the Agent)
authorizing the execution of each of the Loan Documents to which
such Credit Party is a party.
(iii) Incumbency certificates, executed by the Secretary
or an Assistant Secretary of each Credit Party, which shall
identify by name and title and bear the signature of the
officers of such Credit Party authorized to sign the Loan
Documents to which it is a party and, with respect to the
Borrower, to make borrowings hereunder, upon which certificates
the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer
of the Borrower, stating that on the initial Borrowing Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of Ross & Hardies, outside counsel
to the Credit Parties, addressed to the Agent and the Lenders in
substantially the form of Exhibit E hereto.
(vi) Notes payable to the order of each of the Lenders.
(vii) Written money transfer instructions, in
substantially the form of Exhibit F hereto addressed to the
Agent and signed by an Authorized Officer, together with such
other related money transfer authorizations as the Agent may
have reasonably requested.
(viii) Evidence satisfactory to the Agent that (a) the
Borrower shall have paid, or concurrently with the making of the
initial Advance or the issuance of the initial Facility Letter
of Credit shall pay, in full, all fees required to be paid
pursuant to Section 2.5.1 on or before the initial Borrowing
Date or Issuance Date, as the case may be.
(ix) Execution and delivery of the International Credit
Agreement.
(x) Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 Each Advance and Facility Letter of Credit. The Lenders
shall not be required to make any Advance (other than an Advance
that, after giving effect thereto and to the application of the
proceeds thereof, does not increase the aggregate amount of
outstanding Advances) and the Issuer shall not be required to
issue any Facility Letter of Credit, unless on the applicable
Borrowing Date or Issuance Date, as the case may be:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date except
to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such
representation or warranty shall be true and correct on and as
of such earlier date.
Each Borrowing Notice with respect to each such Advance and each
Facility Letter of Credit Request with respect to each such
Facility Letter of Credit shall constitute a representation and
warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Corporate Existence and Standing. The Borrower is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and each
Subsidiary is a corporation duly incorporated, validly existing
and in good standing under the laws of its respective state of
incorporation; and each of the Borrower and the Subsidiaries is
duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where such
qualification is required because of the nature of its
activities or properties and where the failure to maintain such
qualification would singly or in the aggregate cause a Material
Adverse Effect.
5.2 Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the performance of its
obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with the terms thereof,
except as enforceability may be limited by bankruptcy,
insolvency or similar laws or general principles of equity
relating to remedies affecting or relating to the enforcement of
creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries, or
violate the Borrower's or any Subsidiary's certificate of
incorporation or by-laws or the provisions of any indenture,
instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it or its
Property is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien
in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license authorization,
or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of any governmental or
public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality,
validity, binding effect of, any of the Loan Documents, except
as may be applicable because of any Lender, the Agent or an
Issuer being a party thereto or except as may be required with
respect to particular Facility Letters of Credit.
5.4 Financial Statements. The February 29, 2000 consolidated
financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance
with GAAP in effect on the date such statements were prepared
and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then
ended.
5.5 Material Adverse Change. Except as set forth as of the
date of this Agreement on Schedule 5.5 hereto, since February
29, 2000, there has been no change in the business, Property,
financial condition or results of operations of the Borrower or
any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect.
5.6 Taxes. Except as set forth as of the date of this
Agreement on Schedule 5.6 hereto, the Borrower and its
Subsidiaries have filed all United States federal tax returns
and all other tax returns which are required to be filed and
have paid all Taxes due pursuant to said returns or pursuant to
any assessment received by the Borrower or any of its
Subsidiaries, except such Taxes, if any, as are being contested
in good faith and as to which adequate reserves have been
provided in accordance with GAAP and as to which no Lien exists,
except for failures to file or pay which could not be reasonably
expected to have a Material Adverse Effect. The United States
income tax returns of the Borrower and its Subsidiaries have
been audited by the Internal Revenue Service through the Fiscal
Year ended May 31, 1995. No tax liens have been filed and no
claims are being asserted with respect to any such Taxes. The
charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of any taxes or other governmental
charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set forth
as of the date of this Agreement on Schedule 5.7 hereto, there
is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best knowledge of any
of their officers, threatened against or affecting the Borrower
or any of its Subsidiaries which could be reasonably expected to
have a Material Adverse Effect or which seeks to prevent, enjoin
or delay the making of the Loans or Advances. Other than any
liability incidental to such litigation, arbitration or
proceedings, neither the Borrower nor any Subsidiary has any
material contingent obligations not provided for or disclosed in
the financial statements referred to in Section 5.4.
5.8 Subsidiaries. Except as otherwise disclosed to the Lenders
in writing on or prior to the date hereof, Schedule 5.8 hereto
contains an accurate list of all Subsidiaries of the Borrower as
of the date of this Agreement, setting forth their respective
jurisdictions of incorporation and the percentage of their
respective capital stock owned by the Borrower or other
Subsidiaries. All of the issued and outstanding shares of
capital stock of such Subsidiaries have been duly authorized and
issued and those shares which are owned by Borrower or one or
more of its Subsidiaries are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer
Plans do not in the aggregate exceed $500,000. Neither the
Borrower nor any other member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans in excess of $500,000 in the
aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the
Borrower nor any other members of the Controlled Group has
withdrawn from any Plan, except as set forth as of the date of
this Agreement on Schedule 5.9 hereto, or initiated steps to do
so, and no steps have been taken to reorganize or terminate any
Plan. Each Benefit Plan is in substantial compliance with ERISA
and the Code and neither the Borrower or any Controlled Group
member has received any notice asserting that any Benefit Plan
is not in compliance with either ERISA or the Code.
5.10 Accuracy of Information. No information, exhibit or
report furnished by the Borrower or any of its Subsidiaries to
the Agent or to any Lender in connection with the negotiation
of, or compliance with, the Loan Documents contained any
material misstatement of fact or omitted to state a material
fact or any fact necessary to make the statements contained
therein not misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Borrower and
each of its Subsidiaries which are subject to any limitation on
sale, pledge, or other restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject
to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement
to which it is a party, except such default which could not
reasonably be expected to have a Material Adverse Effect.
5.13 Compliance With Laws. The Borrower and each of its
Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or
the ownership of their respective Property except for any
failure to comply with any of the foregoing which could not
reasonably be expected to have a Material Adverse Effect.
5.14 Ownership of Properties. Except as set forth on Schedule
5.14 hereto, on the date of this Agreement, the Borrower and its
Subsidiaries will have good title, free of all Liens (other than
those permitted by Section 6.16), to all of the Property and
assets reflected in the Borrower's most recent consolidated
financial statements provided to the Agent as owned by it.
5.15 Environmental Matters. Except as set forth as of the date
of this Agreement on Schedule 5.15 hereto, in the ordinary
course of its business, the officers of the Borrower consider
the effect of Environmental Laws on the business of the Borrower
and its Subsidiaries, in the course of which they identify and
evaluate potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this
consideration, the Borrower has concluded that Environmental
Laws cannot reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary has any reason
to believe that its operations are not in material compliance
with any of the requirements of applicable Environmental Laws or
are the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of
any toxic or hazardous waste or substance into the environment,
which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.16 Investment Company Act. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act. Neither the Borrower
nor any Subsidiary is a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of
1935, as amended.
5.18 Subordinated Debt. The Obligations constitute senior
indebtedness which is entitled to the benefits of the
subordination provisions of all outstanding Subordinated Debt.
5.19 Post-Retirement Benefits. The present value of the
expected cost of post-retirement medical and insurance benefits
payable by the Borrower and its Subsidiaries to its employees
and former employees, as estimated by the Borrower in accordance
with procedures and assumptions deemed reasonable by the
Required Lenders, does not exceed $500,000.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for
itself and each Subsidiary, a system of accounting established
and administered in accordance with GAAP, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its Fiscal
Years, (a) an unqualified audit report certified by independent
certified public accountants, reasonably acceptable to the
Agent, prepared in accordance with GAAP on a consolidated basis
for itself and its Subsidiaries, including balance sheets as of
the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash
flows, and accompanied by a certificate of said accountants
that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof, and (b) the Borrower's
annual 10-K financial statement.
(ii) Within 45 days after the close of each quarterly
period of each of its Fiscal Years, for itself and its
Subsidiaries, (a) consolidated and consolidating unaudited
balance sheets as at the close of each such period and
consolidated and consolidating profit and loss and
reconciliation of surplus statements and a statement of cash
flows for the period from the beginning of such Fiscal Year to
the end of such quarter, all prepared in accordance with GAAP
and certified by the chief financial officer of the Borrower;
and (b) its quarterly 10-Q financial statements.
(iii) [Intentionally omitted]
(iv) Together with the financial statements required under
Sections 6.1(i) and (ii), a Compliance Certificate.
(v) If the Borrower or any member of the Controlled Group
maintains a Single Employer Plan, within 270 days after the
close of each Fiscal Year, a statement of the Unfunded
Liabilities of each Single Employer Plan, if any, certified as
correct by a plan administrator enrolled under ERISA.
(vi) As soon as possible and in any event within 10 days
after the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said Reportable
Event and the action which the Borrower proposes to take with
respect thereto.
(vii) As soon as possible and in any event within 10 days
after the Borrower or any Controlled Group member withdraws from
a Multiemployer Plan.
(viii) As soon as possible and in any event within 10 days
after the Borrower or any Controlled Group member terminates a
Single Employer Plan under Section 4041 of ERISA.
(ix) As soon as possible and in any event within 10 days
after receipt by the Borrower that any Benefit Plan or Borrower
or Controlled Group Member has violated the provisions of ERISA
or the Code, which violation could result in liability to the
Borrower in excess of $250,000.
(x) As soon as possible and in any event within 10 days
after receipt by the Borrower, a copy of (a) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
(xi) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished.
(xii) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other
regular reports which the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission.
(xii) [Intentionally omitted]
(xiv) On or before September 30 of each of the Borrower's
Fiscal Years, projected statements of income and cash flow and a
projected balance sheet for the Borrower covering the period to
and including May 31, 2004.
(xv) Within thirty days following delivery to the
Borrower, a copy of each of the Borrower's auditor's management
letters, if prepared.
(xvi) Within forty-five days following the end of each of
the Borrower's fiscal quarters, a report of the amount of
Designated Inventory and Designated Accounts in form and
substance acceptable to the Required Lenders which report shall
contain a calculation showing compliance with Section 6.21
hereof.
(xvii) Such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
6.2 Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances and the Facility
Letters of Credit for working capital and for general corporate
purposes. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances or the
Facility Letters of Credit to purchase or carry any "margin
stock" (as defined in Regulation U).
6.3 Notice of Default. The Borrower will give prompt notice in
writing to the Lenders of the occurrence of (i) any Default or
Unmatured Default and (ii) any other development, financial or
otherwise, which development could reasonably be expected to
have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause
each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and to do all
things necessary to remain duly incorporated, validly existing
and in good standing as a domestic corporation in its
jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which
its business is conducted unless failure to maintain such
authority could not reasonably be expected to have a Material
Adverse Effect.
6.5 Taxes. The Borrower will, and will cause each Subsidiary
to, timely file complete and correct United States federal and
applicable foreign, state and local tax returns required by law
and pay when due all Taxes, assessments and governmental charges
and levies upon it or its income, profits or Property, except
those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have
been set aside in accordance with GAAP, and except to the extent
that nonpayment could not reasonably be expected to have a
Material Adverse Effect.
6.6 Insurance. The Borrower will, and will cause each
Subsidiary to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such
amounts and covering such risks as is consistent with sound
business practice, and the Borrower will furnish to any Lender
upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause
each Subsidiary to, comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to
which it may be subject including, without limitation, all
Environmental Laws, except to the extent that noncompliance
could not reasonably be expected to have a Material Adverse
Effect.
6.8 Maintenance of Properties. The Borrower will, and will
cause each Subsidiary to, do all things necessary to maintain,
preserve, protect and keep its Property in good repair, working
order and condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times,
except to the extent that failure to make such repair could not
reasonably be expected to have a Material Adverse Effect.
6.9 Inspection. The Borrower will, and will cause each
Subsidiary to, permit the Agent and any Lender, by their
respective representatives and agents, to inspect any of the
Property, corporate books and financial records of the Borrower
and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of
the Borrower and each Subsidiary with, and to be advised as to
the same by, their respective officers at such reasonable times
and intervals as the Agent or any Lender may designate.
6.10 Financial Covenants. The financial covenants referred to
in this Section 6.10 shall each be computed at the end of each
fiscal quarter by the Borrower, and such calculations shall be
included in the Compliance Certificate referred to in Section
6.1(iv).
6.10.1 Consolidated Tangible Net Worth. The Borrower will
maintain, at all times, a Consolidated Tangible Net Worth of not
less than $130,000,000 plus (i) fifty percent (50%) of the
aggregate cumulative Net Income (if positive) subsequent to May
31, 2000, plus (ii) one hundred percent (100%) of the net
proceeds (gross proceeds minus (a) ordinary and necessary out of
pocket costs and expenses and (b) reasonable underwriting fees
and discounts incurred with respect to such gross proceeds)
received by the Borrower and its Subsidiaries from all of the
following occurring after May 31, 2000: additional paid in
capital, including, but not limited to, equity investments and
proceeds from the issuance and sale of common or preferred
stock, plus the amount of all Subordinated Debt which is
converted into equity in the Borrower or its Subsidiaries.
6.10.2 Senior Funded Debt to Cash Flow Ratio. The Borrower
will maintain, at all times, a Senior Funded Debt to Cash Flow
Ratio of not greater than 2.25:1.00.
6.10.3 Adjusted Interest Coverage Ratio. The Borrower will
maintain, at all times, an Adjusted Interest Coverage Ratio of
not less than 2.50:1.00.
6.11 [Intentionally Omitted].
6.12 Indebtedness. The Borrower will not, nor will it permit
any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(i) Advances and Facility Letter of Credit Obligations
hereunder.
(ii) The International Loans.
(iii) The International Guaranty.
(iv) The Pacific Rim Loans.
(v) Indebtedness which (a) exists on the date hereof,
(b) is described in Schedule 6.12 hereto, and
(c) has been previously approved by the Agent.
(vi) Subordinated Debt with terms and conditions which in
the sole opinion of the Required Lenders are no more
restrictive (with respect to Senior Funded Debt) than
Subordinated Debt in existence on the date hereof.
(vii) Indebtedness incurred to refinance existing
Indebtedness permitted pursuant to Sections 6.12(v)
and (vi); provided, however, that the maturity date
of such new Indebtedness is no earlier than the
maturity date of the Indebtedness being refinanced
and the terms of such new Indebtedness (including,
but not limited to, the amount, the term, the amount
of the annual loan payment or provision for
collateral or additional collateral) are no more
disadvantageous to the Lenders, the Borrower and its
Subsidiaries than the terms of the Indebtedness being
refinanced.
(viii) Contingent Obligations not exceeding $500,000 at any
one time outstanding.
(ix) Rate Hedging Obligations.
(x) Intercompany Indebtedness permitted under Section
6.15.
6.13 Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other
Person, except that (i) a Subsidiary may amalgamate, merge or
consolidate with or into the Borrower or a Wholly-Owned
Subsidiary and (ii) the Borrower or any Subsidiary (other than a
Subsidiary Guarantor) may merge, amalgamate or consolidate with
any other Person pursuant to a Permitted Acquisition, provided
that (a) the Borrower or such Subsidiary shall be the surviving
entity and (b) after giving effect thereto, no Default or
Unmatured Default shall exist.
6.14 Sale of Assets. The Borrower will not, nor will it permit
any Subsidiary to, lease, sell or otherwise dispose of Property,
to any other Person, except:
(i) Sales of inventory in the ordinary course of
business.
(ii) Leases, sales or other dispositions of Property that,
together with all other Property of the Borrower and
its Subsidiaries previously leased, sold or disposed
of (other than inventory in the ordinary course of
business) as permitted by this Section during the
term of this Agreement, do not constitute a
Substantial Portion of the Property of the Borrower
and its Subsidiaries.
6.15 Investments and Acquisitions. The Borrower will not, nor
will it permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances
to, and other Investments in, Subsidiaries), or commitments
therefor, or to become or remain a partner in any partnership or
joint venture, or member in a limited liability company, or to
make any Acquisition of any Person, except:
(i) Short-term obligations of, or fully guaranteed by,
the United States of America.
(ii) Commercial paper rated A-1 or better by Standard and
Poor's Corporation or P-1 or better by Moody's
Investors Service, Inc.
(iii) Demand deposit accounts maintained in the ordinary
course of business.
(iv) Certificates of deposit issued by and time deposits
with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000.
(v) Investments not to exceed $5 million in the aggregate
at any one time outstanding in the common stock and
investment grade bonds of publicly held corporations
which stock and bonds are traded on the New York,
American or NASDAQ stock exchanges.
(vi) Loans to employees of the Borrower or of any of its
Subsidiaries which do not exceed, in the aggregate
for all such employees at any one time outstanding,
$750,000.
(vii) Permitted Acquisitions.
(viii) Existing Investments which (a) are in existence on
the date hereof, (b) are described in Schedule 6.15
(viii) hereto and (c) have been previously approved
by the Agent and the Lenders.
(ix) Loans and advances to and other Investments in
Borrower's Subsidiaries (excluding advances funded
under the International Credit Agreement) in the
ordinary course of business not exceeding at any time
outstanding for each Subsidiary, an amount which is
the greater of (i) fifteen percent (15%) greater than
the amount of such loans, advances and other
Investments in each such Subsidiary stated in the
Borrower's financial statement dated on or about the
immediately preceding February 29 (the "February
Statement"), or (ii) one million dollars ($1,000,000)
plus the amount of such loans, advances and other
Investments in each such Subsidiary stated in the
February Statement; provided that in no event shall
such loans, advances and other Investments exceed for
all of Borrower's Subsidiaries in the aggregate at
any time outstanding $10,000,000 plus the aggregate
amount of such loans, advances and other Investments
stated in the February Statement.
(x) The repurchase of the Company's common stock not
exceeding $5 million in the aggregate.
(xi) Rate Hedging Agreements.
6.16 Liens. The Borrower will not, nor will it permit any
Subsidiary to create, incur, or suffer to exist any Lien in, of
or on the Property of the Borrower or any of its Subsidiaries,
except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith
and by appropriate proceedings and for which adequate
reserves in accordance with generally accepted
principles of accounting shall have been set aside on
its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar
liens arising in the ordinary course of business
which secure payment of obligations not more than 60
days past due and which are being contested in good
faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance,
old age pensions, or other social security or
retirement benefits, or similar legislation.
(iv) Liens arising from a judgment rendered or claim
filed, not in excess, singly or in the aggregate, of
$250,000 against the Borrower or any of its
Subsidiaries which the Borrower or such Subsidiary
shall be contesting diligently in good faith by
proper legal proceedings.
(v) Liens which exist on the date hereof listed on
Schedule 6.16 incurred by Borrower or its
Subsidiaries in the ordinary course of business
securing Indebtedness less than $100,000 in the
aggregate.
(vi) Liens resulting from inventory purchases arising in
the normal course of business which Liens are solely
upon such inventory purchased and are not evidenced
by any filings (under the UCC or otherwise) and do
not secure an amount exceeding $10,000,000 in the
aggregate at any one time outstanding.
(vii) Any extension, renewal or substitution of or for any
of the foregoing Liens described in this Section
6.16, provided in each case that (a) the Indebtedness
or other obligation or liability secured by the
applicable Lien shall not exceed the Indebtedness or
other obligation or liability existing immediately
prior to such extension, renewal or substitution and
(b) the Lien securing such Indebtedness or other
obligation or liability shall be limited to the
Property which, immediately prior to such extension,
renewal or substitution, secured such Indebtedness or
other obligation or liability, and improvements on or
additions to such Property.
6.17 Prohibition of Negative Pledge. The Borrower will not,
nor will it permit any of its Subsidiaries to agree, covenant,
warrant, represent, pledge or otherwise commit with or to any
entity other than the Agent, to not incur, create, assume or
permit to exist, any mortgage, pledge, lien charge or other
encumbrance of any nature whatsoever on all or any of its assets
now or hereafter owned, except for such pledge made directly in
connection with the purchase of inventory in the ordinary course
of business, with a value of such inventory (valued at the cost
of such inventory) owned by Borrower and its Subsidiaries not
exceeding $10 million in the aggregate at any time.
6.18 Affiliates. The Borrower will not, nor will it permit any
Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except
in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than the Borrower or such
Subsidiary would obtain in a comparable arms-length transaction.
6.19 Amendments to Agreements. The Borrower will not, nor will
it permit any Subsidiary to, amend any term or provision of the
International Credit Agreement, the International Guaranty, any
other International Loan Document or the Debentures except with
the consent of the Required Lenders and all Lenders for the type
of amendments which would require the consent of the Required
Lenders and all Lenders respectively under Section 8.2 hereof.
The Borrower shall deliver to the Agent all amendments to the
International Loan Documents within five (5) days of such
amendment.
6.20 Sale of Accounts. The Borrower will not, nor will it
permit any Subsidiary to, sell or otherwise dispose of any notes
receivable or accounts receivable, with or without recourse,
except for accounts which are past due in an aggregate amount
not exceeding $3 million for each of the Company's fiscal years
placed with a collection agent for collection at a commission
not exceeding twenty percent (20%) of the amount of such notes
or accounts recovered.
6.21 Limit on Senior Funded Debt. The Borrower will not permit
at any time the amount of the Borrower's and its Subsidiaries'
consolidated Senior Funded Debt to exceed the sum of 80% of the
value of Designated Accounts plus 50% of the value of Designated
Inventory (valued at the lower of cost or market value), such
Designated Accounts and Designated Inventory as in existence at
the end of the Borrower's most recently completed fiscal
quarter.
6.22 Fiscal Year. The Borrower will not, nor will it permit
any Subsidiary to, change its Fiscal Year.
6.23 Limitation on the Creation of Subsidiaries.
Notwithstanding anything to the contrary contained in this
Agreement, the Borrower will not, and will not permit any of its
Subsidiaries to, establish, create or acquire any Subsidiary;
provided that the Borrower and its Wholly-Owned Subsidiaries
shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as at least 30 days' prior written notice
thereof (or such lesser notice as is acceptable to the Agent in
its sole discretion) is given to the Agent.
6.24 Subsidiary Dividends. The Borrower's Subsidiaries shall
not in any manner either directly or indirectly incur or be
bound by any restrictions on dividends from such Subsidiaries to
the Borrower, other than those restrictions required by
applicable law.
6.25 Repayment of Subordinated Debt. The Borrower's and its
Subsidiaries' principal amounts of Subordinated Debt which
become due and remain unpaid plus the amount of the Borrower's
and its Subsidiaries' actual principal payment of Subordinated
Debt, shall not exceed $2.5 million in the aggregate for any
immediately preceding four fiscal quarter trailing period of the
Borrower. After the occurrence and during the continuance of a
Default, until all Obligations have been irrevocably paid in
full, Borrower and its Subsidiaries shall not make payment upon
Subordinated Debt.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made (or deemed made
pursuant to Article IV) by or on behalf of the Borrower or any
of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Loan, any Facility Letter of
Credit or any certificate or information delivered in connection
with this Agreement or any other Loan Document shall be
materially false on the date as of which made (or deemed made).
7.2 Nonpayment of principal of any Note or of any Reimbursement
Obligation when due (or in the case of any Reimbursement
Obligation due upon demand, upon demand), or nonpayment of
interest upon any Note or of any facility fee, agent fee,
Issuance Fee or other obligations (other than Reimbursement
Obligations which have been converted into Floating Rate
Advances pursuant to Section 2.3.6) under any of the Loan
Documents within five (5) days after the same becomes due.
7.3 The breach by the Borrower of any of the terms or
provisions of Article VI.
7.4 The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) of any of
the terms or provisions of this Agreement which is not remedied
within fifteen (15) days after written notice from the Agent.
7.5 Failure of the Borrower or any of its Subsidiaries to pay
when due (i) any Indebtedness to any of the Lenders, or (ii) any
other Indebtedness in excess of, singly or in the aggregate,
$2,500,000 (any such Indebtedness being herein defined as
"Material Indebtedness"); or the default by the Borrower or any
of its Subsidiaries in the performance of any term, provision or
condition contained in any agreement under which any such
Material Indebtedness was created or is governed, or any other
event shall occur or condition exist, the effect of which is to
cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due
prior to its stated maturity; or any Material Indebtedness of
the Borrower or any of its Subsidiaries shall be declared to be
due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Borrower or any of its Subsidiaries
shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
7.6 The Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal
bankruptcy laws or the laws of any other jurisdiction relating
to bankruptcy, insolvency, reorganization or relief of debtors
as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal
bankruptcy laws or the laws of any other jurisdiction relating
to bankruptcy, insolvency, reorganization or relief of debtors
as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take
any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 7.6 or (vi) fail to contest in
good faith any appointment or proceeding described in Section
7.7.
7.7 Without the application, approval or consent of the
Borrower or any of its Subsidiaries, a receiver, trustee,
examiner, liquidator or similar official shall be appointed for
the Borrower or any of its Subsidiaries or any Substantial
Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its
Subsidiaries and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60
consecutive days.
7.8 Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of
(each a "Condemnation"), all or any portion of the Property of
the Borrower and its Subsidiaries which, when taken together
with all other Property of the Borrower and its Subsidiaries so
condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which
any such Condemnation occurs, constitutes a Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within
60 days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of, singly or in the
aggregate, $500,000, which is not stayed on appeal or otherwise
being appropriately contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $500,000 or any Reportable Event
shall occur in connection with any Plan.
7.11 The Borrower or any other member of the Controlled Group
shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Borrower or
any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds
$500,000.
7.12 The Borrower or any other member of the Controlled Group
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, if as a
result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of
the Controlled Group (taken as a whole) to all Multiemployer
Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which
the reorganization or termination occurs by an amount exceeding
$500,000.
7.13 The Borrower or any other member of the Controlled Group
shall terminate a Single Employer Plan resulting in Unfunded
Liabilities to the Borrower in excess of $500,000.
7.14 The Borrower or any other member of the Controlled Group
shall incur liability for a violation of ERISA or the Code with
respect to any Benefit Plan which exceeds $250,000.
7.15 The Borrower or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to the
release by the Borrower or any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the
environment, or any violation of any Environmental Law, which,
in either case, could have a Material Adverse Effect.
7.16 Any Change in Control shall occur, except such Change in
Control consented to by the Agent and all Lenders.
7.17 Nonpayment by the Borrower or any of its Subsidiaries of
any Rate Hedging Obligation when due or the default or breach by
the Borrower or any of its Subsidiaries of any term, provision
or condition contained in any Rate Hedging Agreement, which
default or breach continues (without being waived) beyond any
period of grace therein provided.
7.18 The occurrence of any "default", as defined in any Loan
Document (other than this Agreement or the Notes) or the breach
of any of the terms or provisions of any Loan Document (other
than this Agreement), which default or breach continues beyond
any period of grace therein provided and has not been waived.
7.19 The occurrence of any "Default", as defined in the
International Credit Agreement, the International Guaranty or
any other International Loan Document or the breach of any of
the terms or provisions of the International Credit Agreement,
the International Guaranty or any other International Loan
Document, or any default under any of the documents evidencing
the Pacific Rim Loans, which default or breach continues beyond
any period of grace therein provided and has not been waived.
7.20 The occurrence and continuance of any default or Event of
Default as defined in the Debentures.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.6 or
7.7 occurs with respect to the Borrower, the obligations of the
Lenders to make Loans and to participate in Facility Letters of
Credit hereunder, and the obligation of the Issuer to issue
Facility Letters of Credit hereunder, shall automatically
terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent,
the Issuer or any Lender. If any other Default occurs, the
Required Lenders (or the Agent with the consent of the Required
Lenders) (i) may terminate or suspend the obligations of the
Lenders to make Loans and to purchase participation in Facility
Letters of Credit hereunder, (ii) may terminate or suspend the
obligations of the Issuer to issue Facility Letters of Credit
hereunder, and/or (iii) declare the Obligations to be due and
payable, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
If, within 15 days after (x) acceleration of the maturity of the
Obligations, (y) termination of the obligations of the Issuer to
issue Facility Letters of Credit hereunder or (z) termination of
the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any
judgment or decree for the payment of the Obligations due shall
have been obtained or entered, the Required Lenders (in their
sole discretion) shall so direct, the Agent shall, by notice to
the Borrower, rescind and annul such acceleration and/or
termination.
8.2 Amendments. Subject to the provisions of this Article
VIII, the Required Lenders (or the Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto or to any other Loan Document for
the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or
the Borrower hereunder or thereunder or waiving any Default
hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of each of the
Lenders:
(i) Extend the maturity of any Loan, or extend the expiry
date of any Facility Letter of Credit beyond the Facility
Termination Date, or forgive all or any portion of the principal
amount of any Loan or Facility Letter of Credit Obligation, or
reduce the rate or extend the time of payment of Reimbursement
Obligations, interest or fees hereunder, or release any
collateral securing the Obligations or any Subsidiary Guaranty;
(ii) Reduce the percentage specified in the definition of
Required Lenders;
(iii) Extend the Facility Termination Date or increase the
amount of the Commitment of any Lender hereunder, or permit the
Borrower to assign its rights under this Agreement; or
(iv) Amend this Section 8.2 or the provisions of any other
section of this Agreement which designate a certain number of
Lenders required to consent to or compel actions.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the
Agent. The Agent may waive payment of the fee required under
Section 2.4.1(ii) or 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the
Lenders, the Issuer or the Agent to exercise any right under the
Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making
of a Loan or issuance of a Facility Letter of Credit
notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and
no waiver, amendment or other variation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall
be available to the Agent, the Issuer and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall
survive delivery of the Notes and the making of the Loans and
the issuance of the Facility Letters of Credit herein
contemplated.
9.2 Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower or participate in
Facility Letters of Credit in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3 Taxes. Any Taxes (excluding federal income taxes on the
overall net income of any Lender) or other similar assessments
or charges made by any governmental or revenue authority in
respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the
Issuer, and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agent, the Issuer and the
Lenders relating to the subject matter thereof.
9.6 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Agent is authorized to
act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective
successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse
the Agent and Arranger for any costs, internal charges and out-
of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent and Arranger, which
attorneys may be employees of the Agent or Arranger) paid or
incurred by the Agent and Arranger in connection with the
preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, the
Issuer, the Arranger and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent, the
Arranger and the Lenders which attorneys may be employees of the
Agent or the Lenders) paid or incurred by the Agent, the
Arranger, the Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. The Borrower
further agrees to indemnify the Agent, the Arranger, the Issuer,
and each Lender and their respective directors, officers and
employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor
whether or not the Agent, the Issuer, the Arranger or any Lender
is a party thereto) which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or thereby or the direct or
indirect application or proposed application of the proceeds of
any Loan or the direct or indirect use or intended use of any
Facility Letter of Credit hereunder except to the extent that
they have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The
obligations of the Borrower under this Section shall survive the
termination of this Agreement.
9.8 Numbers of Documents. All originally executed statements,
notices, closing documents (other than the Notes), and requests
hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the
Lenders.
9.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with GAAP, except that any calculation or determination which is
to be made on a consolidated basis shall be made for the
Borrower and all its Subsidiaries, including those Subsidiaries,
if any, which are unconsolidated on the Borrower's audited
financial statements.
9.10 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
9.11 Nonliability of Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Agent
nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The
Borrower agrees that none of the Agent, the Issuer or any Lender
shall have liability to the Borrower (whether sounding in tort,
contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined by a court of
competent jurisdiction in a final and non-appealable order that
such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought.
9.12 Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from the Borrower
pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates and to other Lenders and to the Agent and
their respective Affiliates, (ii) to legal counsel, accountants,
and other professional advisors to that Lender or to a
Transferee or prospective Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any Person
in connection with any legal proceeding to which that Lender is
a party, and (vi) permitted by Section 12.4.
9.13 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System) for the repayment of the Loans provided for herein.
ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. American National
Bank and Trust Company of Chicago is hereby appointed by the
Lenders as the Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the
Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained
in this Article X. Notwithstanding the use of the defined term
"Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by
reason of this Agreement or any other Loan Document and that the
Agent is merely acting as the representative of the Lenders with
only those duties as are expressly set forth in this Agreement
and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume
any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-
105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the
other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent for breach of fiduciary duty,
all of which claims each Lender hereby waives.
10.2 Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the
Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders
to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to
the extent such action or inaction is determined in a final non-
appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such
Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the
Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire
into, or verify: (i) any statement, warranty or representation
made in connection with any Loan Document or any borrowing or
issuance of a Facility Letter of Credit hereunder; (ii) the
performance or observance of any of the covenants or agreements
of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information
directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be
delivered to the Agent; (iv) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection
therewith; or (v) the value, sufficiency, creation, perfection
or priority of any interest in any collateral security. The
Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the
Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in its capacity as Agent or in its
individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in
accordance with written instructions signed by such of the
Lenders as is required under the terms of this Agreement, and
such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on
all holders of Notes. The Lenders hereby acknowledge that the
Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The
Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it
shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such
action.
10.6 Employment of Agents and Counsel. The Agent may execute
any of its duties as Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning all matters pertaining
to the agency hereby created and its duties hereunder and under
any other Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the
Agent, which counsel may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Agent ratably in proportion
to their respective Commitments (or, if subsequent to the
Facility Termination Date, in proportion to their Commitments
immediately prior to such date), without relieving the Borrower
of any of its Obligations hereunder, (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for
any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents
and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender
shall be liable for any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the
Agent. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this
Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or
Unmatured Default hereunder unless the Agent has received
written notice from a Lender or the Borrower referring to this
Agreement describing such Default or Unmatured Default and
stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, the Agent shall give
prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender,
the Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the
same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless
the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with the Borrower
or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other
Person.
10.11 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any
other Lender and based on the financial statements prepared by
the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Loan Documents.
10.12 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower,
such resignation to be effective upon the appointment of a
successor Agent or, if no successor Agent has been appointed,
forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with
or without cause by written notice received by the Agent from
the Required Lenders, such removal to be effective on the date
specified by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint,
with the consent of the Borrower, which consent shall not be
unreasonably withheld or delayed, on behalf of the Borrower and
the Lenders, a successor Agent; provided, however, that if a
Default or Unmatured Default shall have occurred and be
continuing at the time of such resignation or removal, the
consent of the Borrower shall not be so required. If no
successor Agent shall have been so appointed by the Required
Lenders, and, to the extent required pursuant to the immediately
preceding sentence, consented to by the Borrower, and shall have
accepted such appointment, within thirty days after the
resigning Agent's giving notice of its intention to resign, then
the resigning Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Agent. If the Agent has resigned or
been removed and no successor Agent has been appointed, the
Lenders may perform all the duties of the Agent hereunder and
the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes
shall deal directly with the Lenders. No successor Agent shall
be deemed to be appointed hereunder until such successor Agent
has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at
least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Agent.
Upon the effectiveness of the resignation or removal of the
Agent the resigning or removed Agent shall be discharged from
its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or
removal of an Agent, the provisions of this Article X shall
continue in effect for the benefit of such Agent in respect of
any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent
by merger, or the Agent assigns its duties and obligations to an
Affiliate pursuant to this Section 10.12, then the term
"Corporate Base Rate" as used in this Agreement shall mean the
prime rate, base rate or other analogous rate of the new Agent.
10.13 Delegation to Affiliates. The Borrower and the Lenders
agree that the Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and
such Affiliate's directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and
other protective provisions to which the Agent is entitled under
Articles IX and X.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced or any Default occurs, any
and all deposits (including all account balances, whether
provisional or final and whether or not collected or available)
and any other Indebtedness at any time held or owing by any
Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part
hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon the Obligations owing to
it (other than payments received pursuant to Section 3.1, 3.2,
3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Obligations held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata
Share of the Obligations. If any Lender, whether in connection
with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such
Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their outstanding
Obligations. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be
made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATION
12.1 Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of
the Borrower, the Agent, and the Lenders and their respective
successors and assigns, except that (i) the Borrower shall not
have the right to assign their respective rights or obligations
under the Loan Documents and (ii) any assignment by any Lender
must be made in compliance with Section 12.3. Notwithstanding
clause (ii) of this Section, any Lender may at any time, without
the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment
to a Federal Reserve Bank shall release the transferor Lender
from its obligations hereunder. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless
and until such payee complies with Section 12.3 in the case of
an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to
be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is
the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any
Note or Notes issued in exchange therefor.
12.2 Participation.
12.2.1 Permitted Participants; Effect. Any Lender may subject
to the provisions of this Section 12.2.1, in the ordinary course
of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Facility Letter
of Credit participated in by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan
Documents, provided that such Participants are consented to in
advance by the Borrower, such consent not to be unreasonably
withheld or delayed. In the event of any such sale by a Lender
of participating interests to a Participant, such Participant
shall have no direct rights hereunder, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender
shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan
Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the
Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with
respect to any Loan, Facility Letter of Credit or Commitment in
which such Participant has an interest which forgives principal,
interest or fees or reduces the interest rate or fees payable
with respect to any such Loan, Facility Letter of Credit or
Commitment, postpones any date fixed for any regularly-scheduled
payment of principal of, or interest or fees on, any such Loan,
Facility Letter of Credit or Commitment, releases any guarantor
of any such Loan or releases any substantial portion of
collateral, if any, securing any such Loan or Facility Letter of
Credit.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided
in Section 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if
the amount of its participating interest were owing directly to
it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at
any time assign to one or more banks or other entities other
than the Borrower or any of its Affiliates ("Purchasers") all or
any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit G
hereto or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower, and the Agent shall be
required prior to an assignment becoming effective with respect
to a Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if an Unmatured Default or Default has
occurred and is continuing, the consent of the Borrower shall
not be required. Such consents shall not be unreasonably
withheld or delayed. Each such assignment shall be in an amount
not less than the lesser of (i) $5 million, and (ii) the
remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent
of a notice of assignment, substantially in the form attached to
Exhibit G hereto (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, duly executed by the
Purchaser, and (ii) payment by one or more of the parties to
such assignment (other than the Borrower) of a $4,000 fee to the
Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and
Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests
of the Purchaser in and under the Loan Documents will not be
"plan assets" under ERISA. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further
consent or action by the Borrower, the Lenders or the Agent
shall be required to release the transferor Lender with respect
to the percentage of the Aggregate Commitment, Loans and
interests in Facility Letters of Credit assigned to such
Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor
Lender, the Agent and the Borrower shall make appropriate
arrangements so that (i) replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their Commitment, as adjusted pursuant to
such assignment and (ii) Schedule 1 hereto is amended to reflect
such assignment.
12.4 Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective
Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.12 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any State
thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 2.4.12.
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.4.7
with respect to borrowing notices, all notices, requests and
other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of
the Borrower, at its address, facsimile number or telex number
set forth on the signature pages hereof, (y) in the case of the
Agent or any Lender, at its address, facsimile number or telex
number set forth on Schedule 2 hereto or (z) in the case of any
party, such other address, facsimile number or telex number as
such party may hereafter specify for the purpose by notice to
the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if
given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of
receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid or (iv) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II shall not be
effective until received.
13.2 Change of Address. The Borrower, the Agent and any Lender
may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same
instrument. This Agreement shall be effective when it has been
executed by the Borrower, the Agent and the Lenders and each
party has notified the Agent by telex or telephone, that it has
taken such action. A complete set of counterparts executed by
all the parties hereto shall be lodged with each of the Borrower
and the Agent.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
15.1 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW
OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 Consent to Jurisdiction. THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE PARTIES HERETO HEREBY IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY
OBJECTION ANY OF THEM MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT, THE ISSUER OR ANY
LENDER OR ANY AFFILIATE OF THE AGENT, THE ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
15.3 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders, the Issuer and
the Agent have executed this Agreement as of the date first
above written.
RICHARDSON ELECTRONICS, LTD.
By: /s/ William J. Garry
Print Name: William J. Garry
Title Senior Vice President and Chief Financial Officer
Address:
Attention:
Telephone No.:
Telecopier No.:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
Individually, as Agent, as Issuer and as Swing Line Lender
By: /s/ Gregory H. Teegen
Print Name: Gregory H. Teegen
TitleVice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Raymond Whitaker
Print Name: Raymond Whitaker
Title: Managing Director
LASALLE BANK, N.A.
By:/s/ Sam L. Dendrinos
Print Name: Sam L. Dendrinos
Title: Assistant Vice President
NATIONAL CITY BANK
By:/s/ Michael Brothers
Print Name:Michael Brothers
Title:Vice President
