1
EXHIBIT 10.37
US $500,000,000
EUROPEAN CREDIT AGREEMENT
dated as of October 28, 1997,
among
▇▇▇▇▇▇ MICRO INC., and
▇▇▇▇▇▇ EUROPEAN COORDINATION CENTER N.V.,
as the Primary Borrowers and Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders,
and
NATIONSBANK OF TEXAS, N.A.,
as the Documentation Agent for the Lenders,
as arranged by
THE BANK OF NOVA SCOTIA and
NATIONSBANC CAPITAL MARKETS, INC.,
as the Arrangers
PREPARED BY ▇▇▇▇▇▇ AND ▇▇▇▇▇, L.L.P.
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms...................................................................................2
1.2 Use of Defined Terms...........................................................................28
1.3 Cross-References...............................................................................28
1.4 Accounting and Financial Determinations........................................................28
1.5 Calculations...................................................................................29
1.6 Round Amounts..................................................................................29
ARTICLE II COMMITMENTS, ETC.
2.1 Commitments....................................................................................29
2.2 Extensions of the Commitment Termination Date..................................................30
2.3 Reductions of the Commitment Amounts...........................................................32
2.4 Ineligible Currencies..........................................................................32
ARTICLE III PROCEDURES FOR PRO-RATA CREDIT EXTENSIONS
AND PROVISIONS FOR NON-RATA CREDIT EXTENSIONS
3.1 Borrowing Procedure for Pro-Rata Revolving Loans...............................................33
3.2 Pro-Rata Letter of Credit Issuance Procedures..................................................33
3.2.1 Other Lenders' Participation......................................................34
3.2.2 Disbursements.....................................................................34
3.2.3 Reimbursement.....................................................................35
3.2.4 Deemed Disbursements..............................................................35
3.2.5 Nature of Reimbursement Obligations...............................................36
3.2.6 Ineligible Currencies.............................................................37
3.3 Non-Rata Revolving Loan Facility...............................................................37
3.3.1 Non-Rata Revolving Loans..........................................................37
3.3.2 Ineligible Currencies.............................................................37
3.3.3 Limitations on Making Non-Rata Revolving Loans....................................37
3.3.4 Procedure for Making Non-Rata Revolving Loans.....................................38
3.3.5 Maturity of Non-Rata Revolving Loans..............................................38
3.3.6 Non-Rata Revolving Loan Records...................................................38
3.3.7 Quarterly Report..................................................................38
3.4 Non-Rata Letter of Credit Facility.............................................................39
3.4.1 Non-Rata Letters of Credit........................................................39
3.4.2 Ineligible Currencies.............................................................39
3.4.3 Limitations on Issuing Non-Rata Letters of Credit.................................39
3.4.4 Procedures for Issuing Non-Rata Letters of Credit.................................39
3.4.5 Disbursements.....................................................................39
3.4.6 Reimbursement.....................................................................40
3.5 Reporting of Non-Rata Credit Extensions........................................................40
ARTICLE IV PRINCIPAL, INTEREST, AND FEE PAYMENTS
4.1 Loan Accounts, Notes, Payments, and Prepayments................................................40
4.1.1 Repayments and Prepayments of Pro-Rata Revolving Loans............................41
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4.2 Interest Provisions............................................................................42
4.2.1 Rates.............................................................................42
4.2.2 Post-Maturity Rates...............................................................42
4.2.3 Continuation Elections............................................................42
4.2.4 Payment Dates.....................................................................43
4.2.5 Interest Rate Determination.......................................................43
4.2.6 Additional Interest on Pro-Rata Revolving Loans...................................43
4.3 Fees...........................................................................................44
4.3.1 Administration Fees...............................................................44
4.3.2 Facility Fees.....................................................................44
4.3.3 Letter of Credit Fees.............................................................45
4.4 Rate and Fee Determinations....................................................................45
4.5 Obligations in Respect of Non-Rata Credit Extensions...........................................46
ARTICLE V CERTAIN PAYMENT PROVISIONS
5.1 Illegality; Currency Restrictions..............................................................46
5.2 Deposits Unavailable...........................................................................47
5.3 Increased Credit Extension Costs, etc..........................................................47
5.4 Funding Losses.................................................................................48
5.5 Increased Capital Costs........................................................................48
5.6 Discretion of Lenders as to Manner of Funding..................................................49
5.7 Taxes..........................................................................................49
5.8 Payments.......................................................................................52
5.8.1 Pro-Rata Credit Extensions........................................................52
5.8.2 Non-Rata Obligations..............................................................52
5.9 Sharing of Payments............................................................................53
5.10 Right of Set-off...............................................................................54
5.11 Judgments, Currencies, etc.....................................................................54
5.12 Replacement of Lenders.........................................................................55
5.13 Change of Lending Office.......................................................................55
5.14 Economic and Monetary Union....................................................................55
ARTICLE VI CONDITIONS TO MAKING CREDIT EXTENSIONS
AND ACCESSION OF ACCEDING BORROWERS
6.1 Initial Credit Extension.......................................................................56
6.1.1 Resolutions, etc..................................................................56
6.1.2 Effective Date Certificate........................................................56
6.1.3 Guaranties, etc...................................................................56
6.1.4 Financial Information, etc........................................................56
6.1.5 Compliance Certificate............................................................57
6.1.6 Consents, etc.....................................................................57
6.1.7 Closing Fees, Expenses, etc.......................................................57
6.1.8 Opinions of Counsel...............................................................57
6.1.9 Satisfactory Legal Form...........................................................57
6.2 All Credit Extensions..........................................................................58
6.2.1 Compliance with Warranties, No Default, etc.......................................58
6.2.2 Credit Extension Request..........................................................59
6.2.3 Non-Rata Revolving Loans..........................................................59
6.2.4 Non-Rata Letters of Credit........................................................59
6.3 Acceding Borrowers.............................................................................59
6.3.1 Resolutions, etc..................................................................59
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6.3.2 Delivery of Accession Request and Acknowledgment..................................60
6.3.3 Guaranties, etc...................................................................60
6.3.4 Compliance Certificate............................................................60
6.3.5 Consents, etc.....................................................................60
6.3.6 Opinions of Counsel...............................................................60
ARTICLE VII REPRESENTATIONS AND WARRANTIES
7.1 Organization, etc..............................................................................60
7.2 Due Authorization, Non-Contravention, etc......................................................61
7.3 No Default.....................................................................................61
7.4 Government Approval, Regulation, etc...........................................................61
7.5 Validity, etc..................................................................................61
7.6 Financial Information..........................................................................62
7.7 No Material Adverse Effect.....................................................................62
7.8 Litigation, Labor Controversies, etc...........................................................62
7.9 Subsidiaries...................................................................................62
7.10 Ownership of Properties........................................................................62
7.11 Taxes..........................................................................................62
7.12 Pension and Welfare Plans......................................................................63
7.13 Environmental Warranties.......................................................................63
7.14 Outstanding Indebtedness.......................................................................63
7.15 Accuracy of Information........................................................................64
7.16 Patents, Trademarks, etc.......................................................................64
7.17 Margin Stock...................................................................................64
ARTICLE VIII COVENANTS
8.1 Affirmative Covenants..........................................................................65
8.1.1 Financial Information, Reports, Notices, etc......................................65
8.1.2 Compliance with Laws, etc.........................................................66
8.1.3 Maintenance of Properties.........................................................67
8.1.4 Insurance.........................................................................67
8.1.5 Books and Records.................................................................67
8.1.6 Environmental Covenant............................................................67
8.1.7 Use of Proceeds...................................................................68
8.1.8 Pari Passu........................................................................68
8.1.9 Guarantee or Suretyship...........................................................68
8.1.10 Additional Guaranty...............................................................68
8.1.11 Intra-Group Agreement, etc........................................................69
8.2 Negative Covenants.............................................................................69
8.2.1 Restriction on Incurrence of Indebtedness.........................................69
8.2.2 Restriction on Incurrence of Liens................................................70
8.2.3 Financial Condition...............................................................72
8.2.4 Dividends.........................................................................72
8.2.5 Mergers, Consolidations, Substantial Asset Sales, and Dissolutions................72
8.2.6 Transactions with Affiliates......................................................73
8.2.7 Limitations on Acquisitions.......................................................74
8.2.8 Limitation on Sale of Trade Accounts Receivable...................................75
8.2.9 Sale of Assets....................................................................75
8.2.10 Limitation on Businesses..........................................................76
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ARTICLE IX EVENTS OF DEFAULT
9.1 Listing of Events of Default...................................................................76
9.1.1 Non-Payment of Obligations........................................................76
9.1.2 Breach of Warranty................................................................76
9.1.3 Non-Performance of Certain Covenants and Obligations..............................76
9.1.4 Non-Performance of Other Covenants and Obligations................................77
9.1.5 Default on Indebtedness...........................................................77
9.1.6 Judgments.........................................................................77
9.1.7 Pension Plans.....................................................................77
9.1.8 Ownership; Board of Directors.....................................................78
9.1.9 Bankruptcy, Insolvency, etc.......................................................78
9.1.10 Guaranties........................................................................79
9.2 Action if Bankruptcy...........................................................................79
9.3 Action if Other Event of Default...............................................................79
9.4 Action by Withdrawing Lender...................................................................79
9.5 Cash Collateral................................................................................79
ARTICLE X THE ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT
10.1 Authorization and Actions......................................................................79
10.2 Funding Reliance, etc..........................................................................80
10.3 Exculpation....................................................................................80
10.4 Successor......................................................................................80
10.5 Credit Extensions by an Agent. ...............................................................81
10.6 Credit Decisions...............................................................................81
10.7 Copies, etc....................................................................................81
ARTICLE XI MISCELLANEOUS PROVISIONS
11.1 Waivers, Amendments, etc.......................................................................82
11.2 Notices........................................................................................82
11.3 Payment of Costs and Expenses..................................................................83
11.4 Indemnification................................................................................83
11.5 Survival.......................................................................................84
11.6 Severability...................................................................................84
11.7 Headings.......................................................................................84
11.8 Execution in Counterparts, Effectiveness; Entire Agreement.....................................84
11.9 Jurisdiction...................................................................................85
11.9.1 Submission........................................................................85
11.9.2 Service of Process................................................................85
11.9.3 Forum Convenience and Enforcement Abroad..........................................85
11.9.4 Non-exclusivity...................................................................85
11.9.5 Governing Law.....................................................................85
11.10 Successors and Assigns.........................................................................85
11.11 Assignments and Transfers of Interests.........................................................86
11.11.1 Assignments.......................................................................86
11.11.2 Participations....................................................................86
11.12 Other Transactions.............................................................................87
11.15 Confidentiality................................................................................87
11.16 Release of Subsidiary Guarantors and Supplemental Borrowers....................................88
11.17 Collateral.....................................................................................89
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SCHEDULES AND EXHIBITS
Schedule I - Disclosure Schedule
- Item 7.8
- Item 7.9
- Item 7.11
- Item 7.12
- Item 7.14
- Item 8.2.1(a)(ii)
- Item 8.2.2(a)
Exhibit A-1 - Revolving Note
Exhibit A-2 - Non-Rata Revolving Note
Exhibit B - Borrowing Request
Exhibit C - Issuance Request
Exhibit D - Continuation Notice
Exhibit E - Compliance Certificate
Exhibit F - Effective Date Certificate
Exhibit G-1 - Coordination Center Guaranty
Exhibit G-2 - Intra-Group Agreement
Exhibit H - Micro Guaranty
Exhibit I-1 - Micro Canada Guaranty (Coordination Center/Micro Singapore)
Exhibit I-2 - Micro Canada Guaranty (Micro)
Exhibit I-3 - Micro Singapore Guaranty
Exhibit J - Additional Guaranty
Exhibit K - Lender Assignment Agreement
Exhibit L - Quarterly Report
Exhibit M - Opinion of the General Counsel of Micro
Exhibit N - Opinion of Special New York counsel to Micro
Exhibit O - Opinion of Special Belgian counsel to Coordination Center
Exhibit P - Opinion of Special Canadian counsel to Micro Canada
Exhibit Q - Opinion of Special Singapore counsel to Micro Singapore
Exhibit R - Opinion of Special English counsel to the Agents
Exhibit S - Commitment Extension Request
Exhibit T - Accession Request and Acknowledgment
EUROPEAN CREDIT AGREEMENT
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EUROPEAN CREDIT AGREEMENT
- THIS EUROPEAN CREDIT AGREEMENT is entered into as of October 28, 1997,
among:
- ▇▇▇▇▇▇ MICRO INC., a corporation organized and existing under the laws
of the State of Delaware, United States of America ("MICRO");
- ▇▇▇▇▇▇ EUROPEAN COORDINATION CENTER N.V., a company organized and
existing under the laws of The Kingdom of Belgium ("COORDINATION
CENTER," and collectively with Micro, the "PRIMARY BORROWERS");
- The financial institutions party hereto (together with their respective
successors and permitted assigns and any branch or affiliate of a
financial institution funding a Loan as permitted by Section 5.6 as a
signatory or otherwise, collectively, the "LENDERS"); and
- THE BANK OF NOVA SCOTIA ("SCOTIABANK"), as administrative agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), and NATIONSBANK
OF TEXAS, N.A. ("NATIONSBANK"), as documentation agent for the Lenders
(in such capacity, the "DOCUMENTATION AGENT," and, collectively with
the Administrative Agent, the "AGENTS"); and
WHEREAS, Micro and its Subsidiaries (such capitalized term and all
other capitalized terms used herein having the meanings provided in SECTION 1.1)
are engaged primarily in the business of the wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling,
distribution and service activities; and
WHEREAS, Micro wishes to obtain:
(a) for itself and Coordination Center as Primary Borrowers,
Commitments from all the Lenders for Pro-Rata Credit Extensions to be
made prior to the Commitment Termination Date in an aggregate amount in
any Available Currency, not to exceed the Total Credit Commitment
Amount at any one time outstanding, such Credit Extensions being
available on a committed basis as Pro-Rata Revolving Loans and Pro-Rata
Letters of Credit, so long as the Letter of Credit Outstandings never
exceed the Letter of Credit Limit; and
(b) for itself and each other Borrower a protocol whereby each
such Borrower may, prior to the Commitment Termination Date and to the
extent the aggregate Commitments shall be unused and available from
time to time, request that any Lender make Non-Rata Revolving Loans and
issue Non-Rata Letters of Credit in any Available Currency, so long as
(i) the Letter of Credit Outstandings never exceed the Letter of Credit
Limit and (ii) the Outstanding Credit Extensions consisting of Non-Rata
Credit Extensions never exceeds the Non-Rata Limit; and
WHEREAS, each Borrower is willing, subject to SECTION 6.3.3, to
guarantee all Obligations of each other Borrower on a joint and several basis;
and
EUROPEAN CREDIT AGREEMENT
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WHEREAS, the Lenders are willing, pursuant to and in accordance with
the terms of this Agreement:
(a) to extend severally Commitments to make, from time to time
prior to the Commitment Termination Date, Pro-Rata Credit Extensions in
an aggregate amount at any time outstanding not to exceed the excess of
the Total Credit Commitment Amount over the then Outstanding Credit
Extensions; and
(b) to consider from time to time prior to the Commitment
Termination Date, in each Lender's sole and absolute discretion and
without commitment, making Non-Rata Revolving Loans and issuing
Non-Rata Letters of Credit in an aggregate principal amount not to
exceed the difference between the Total Credit Commitment Amount minus
the then Outstanding Credit Extensions, so long as (i) the Letter of
Credit Outstandings never exceed the Letter of Credit Limit and (ii)
the Outstanding Credit Extensions consisting of Non-Rata Credit
Extensions never exceeds the Non-Rata Limit; and
WHEREAS, the proceeds of the Credit Extensions will be used for general
corporate purposes (including, working capital and, so long as the relevant
Borrower has complied with SECTION 8.1.7, Acquisitions) of each Borrower and its
Subsidiaries;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency, of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
. The following terms (whether or not in bold or italic type) when used
in this Agreement, including its preamble and recitals, shall, except where the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"ACCEDING BORROWER" is defined in SECTION 6.3.
"ACCESSION REQUEST AND ACKNOWLEDGMENT" means a request for accession
duly completed and executed by an Authorized Person of the applicable Acceding
Borrower and acknowledged by an Authorized Person of each Guarantor,
substantially in the form of EXHIBIT T hereto.
"ACQUISITION" means any transaction, or any series of related
transactions, by which Micro and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors or (c) otherwise acquires control of a more
than 50% ownership interest in any such Person.
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"ADDITIONAL GUARANTOR" means each other Subsidiary of Micro as shall
from time to time become a Guarantor in accordance with SECTION 8.1.10.
"ADDITIONAL GUARANTY" means a guaranty, in the form of the attached
EXHIBIT J, duly executed and delivered by an Authorized Person of each
Additional Guarantor, as amended, supplemented, restated, or otherwise modified
from time to time.
"ADDITIONAL PERMITTED LIENS" means, as of any date, Liens securing
Indebtedness and not described in CLAUSES (A) through (L) of SECTION 8.2.2, but
only to the extent that the sum (without duplication) of (a) the Amount of
Additional Liens on such date plus (b) the Total Indebtedness of Subsidiaries
(other than any Subsidiary that is a Guarantor) on such date does not exceed 15%
of Consolidated Tangible Net Worth on such date.
"ADJUSTED PERCENTAGE" means -- for any Lender, for any Pro-Rata Credit
Extension (and for the full duration of that Pro-Rata Credit Extension but which
may be different for other Pro-Rata Credit Extensions) -the quotient (stated as
a percentage) determined by the Administrative Agent (based upon the information
provided to it under SECTION 3.5) equal to (a) that Lender's Available Credit
Commitment at that time divided by (b) the remainder of the Total Credit
Commitment Amount at that time minus the aggregate of all of the Lenders'
Non-Rata Usage at that time.
"ADMINISTRATIVE AGENT" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 10.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be controlled by any other
Person if such other Person possesses, directly or indirectly, power (a) to
vote, in the case of any Lender Party, 10% or more or, in the case of any other
Person, 35% or more, of the securities (on a fully diluted basis) having
ordinary voting power, for the election of directors or managing general
partners, or (b) in the case of any Lender Party or any other Person, to direct
or cause the direction of the management and policies of such Person whether by
contract or otherwise.
"AFFILIATE TRANSACTION" is defined in SECTION 8.2.6.
"AGENTS" is defined in the preamble.
"AGREEMENT" means this European Credit Agreement, as amended,
supplemented, restated or otherwise modified from time to time in accordance
with its terms.
"AMOUNT OF ADDITIONAL LIENS" means, at any date, the aggregate
principal amount of Indebtedness secured by Additional Permitted Liens on such
date.
"APPLICABLE MARGIN" means, for any Pro-Rata Revolving Loan or Pro-Rata
Letter of Credit (i) for any day during the period from and including the
Effective Date, through and including the date the Administrative Agent shall
receive the reports and financial statements of Micro and its Consolidated
Subsidiaries required to be delivered pursuant to SECTION 8.1.1(B) -- together
with the Compliance Certificate required to be delivered contemporaneously
therewith pursuant to SECTION 8.1.1(D) -- for the
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Fiscal Period ending on the Saturday nearest September 30, 1997, 0.250% per
annum and (ii) for any day subsequent to the date the Administrative Agent shall
receive the reports, financial statements and Compliance Certificate described
in the preceding CLAUSE (I), the corresponding rate per annum set forth in the
table below, determined by reference to (a) the lower of the two highest ratings
from time to time assigned to Micro's long-term senior unsecured debt by S&P,
▇▇▇▇▇'▇ and Fitch and either published or otherwise evidenced in writing by the
applicable rating agency and made available to the Administrative Agent --
including both "express" and "indicative" or "implied" (or equivalent) ratings
-- or (b) the ratio (calculated pursuant to CLAUSE (C) of SECTION 8.2.3) of
Consolidated Funded Debt to Consolidated EBITDA for the Fiscal Period most
recently ended prior to such day, for which financial statements and reports
have been received by the Administrative Agent pursuant to SECTION 8.1.1(A) or
(B), whichever results in the lower Applicable Margin:
MICRO'S LONG-TERM SENIOR UNSECURED DEBT RATIO OF CONSOLIDATED FUNDED DEBT TO APPLICABLE MARGIN
RATINGS BY S&P, ▇▇▇▇▇'▇ AND FITCH, CONSOLIDATED EBITDA
RESPECTIVELY
--------------------------------------- ------------------------------------ -----------------
A-, A3 or A- (or higher) Less than 1.50 0.160%
BBB+, Baa1 or BBB+ Greater than or equal to 1.50, but less than 0.215%
2.00
BBB, Baa2 or BBB Greater than or equal to 2.00, but less than 0.250%
2.50
BBB-, Baa3 or BBB- Greater than or equal to 2.50, but less than 0.275%
3.00
▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.00, but less than 0.400%
3.25
Lower than ▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.25 0.625%
Any change in the Applicable Margin pursuant to CLAUSE (II)(A) above, will be
effective as of the day subsequent to the date on which S&P, ▇▇▇▇▇'▇ or Fitch,
as the case may be, releases the applicable change in its rating of Micro's
long-term senior unsecured debt.
"ARRANGERS" means The Bank of Nova Scotia and NationsBanc Capital
Markets, Inc.
"AUTHORIZED PERSON" means those officers or employees of each Obligor
whose signatures and incumbency shall have been certified to the Administrative
Agent pursuant to SECTION 6.1.1.
"AVAILABLE CREDIT COMMITMENT" means, for any Lender and at any time,
the amount (not less than zero) equal to the remainder of (a) an amount equal to
its Percentage of the Total Credit Commitment Amount at that time minus (b) its
Outstanding Credit Extensions at that time.
"AVAILABLE CURRENCY" means (a) for purposes of Pro-Rata Credit
Extensions, Dollars, Canadian Dollars, Swiss Francs, Belgian Francs, French
Francs, Guilders, Sterling, Marks, Lira, Pesetas, Yen, Krona, Danish Krone,
Norwegian Krone, and European Currency Units, and (b) for purposes of Non-Rata
Credit Extensions, the currencies listed in CLAUSE (A) preceding, Singapore
Dollars, Hong Kong Dollars, Mexican Pesos, Schillings, Ringgit, Won, and other
mutually agreed currencies.
"BELGIAN FRANCS" means the lawful currency of The Kingdom of Belgium.
"BOARD REPRESENTATION AGREEMENT" means the Board Representation
Agreement dated as of
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November 6, 1996, among Micro and the "Family Stockholders" (as defined therein)
listed on the signature pages thereof, as in effect on that date without giving
effect to any amendment, waiver, supplement, or modification thereafter except
for any such amendment, waiver, supplement, or modification that does not
materially alter the terms thereof (excluding from such exception however, any
such amendment, waiver, supplement, or modification that in any way expands the
scope of or materially affects the definition of "Family Stockholders" set forth
therein).
"BORROWERS" means, collectively, the Primary Borrowers and the
Supplemental Borrowers party to this Agreement from time to time, together with
their respective successors and assigns.
"BORROWING" means the Pro-Rata Revolving Loans having the same Interest
Period, made by all Lenders on the same Business Day, and made pursuant to the
same Borrowing Request in accordance with SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate for Pro-Rata
Revolving Loans duly completed and executed by an Authorized Person of the
relevant Primary Borrower, substantially in the form of EXHIBIT B hereto.
"BUSINESS DAY" means:
(a) any day which (i) is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in
London or in Brussels and (ii) relative to the making, continuing,
prepaying or repaying of Pro-Rata Revolving Loans denominated in an
Available Currency, is also a day on which dealings in such Available
Currency are carried on in the interbank eurodollar market in London or
New York City;
(b) relative to the making of any payment in respect of any
Credit Extension denominated in an Available Currency other than
Sterling, any day on which dealings in such Available Currency are
carried on in the London interbank eurodollar market and in the
relevant local money market; and
(c) with respect to any payment, notice or other event
relating to any Non-Rata Credit Extension, any day on which banks are
open for business in the location of the lending office of the Lender
making such Non-Rata Credit Extension available.
"CANADIAN CREDIT AGREEMENT" means the Canadian Credit Agreement dated
as of October 28, 1997, among Micro, Micro Canada, the various financial
institutions parties thereto as lenders, Scotiabank and Royal Bank of Canada,
respectively, as the administrative agent and the syndication agent for those
lenders, and the co-agent named therein, as renewed, extended, amended, or
restated.
"CANADIAN DOLLARS" means lawful currency of Canada.
"CAPITALIZED LEASE LIABILITIES" of any Person means, at any time, any
obligation of such Person at such time to pay rent or other amounts under a
lease of (or other agreement conveying the right to use) real and/or personal
property, which obligation is, or in accordance with GAAP (including FASB
Statement 13) is required to be, classified and accounted for as a capital lease
on a balance sheet of such Person at the time incurred; and for purposes of this
Agreement the amount of such obligation shall be the
EUROPEAN CREDIT AGREEMENT
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capitalized amount thereof determined in accordance with such FASB Statement 13.
"CO-ARRANGERS" is defined in the preamble.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended and as
in effect from time to time, and any rules and regulations promulgated
thereunder.
"COMMITMENT" means, relative to each Lender, its obligation under
SECTION 2.1(A) to make Pro-Rata Revolving Loans and under SECTION 2.1(B) to
participate in Pro-Rata Letters of Credit and drawings thereunder.
"COMMITMENT EXTENSION REQUEST" means a request for the extension of the
Commitment Termination Date duly executed by an Authorized Person of Micro,
substantially in the form of EXHIBIT S attached hereto.
"COMMITMENT TERMINATION DATE" means the fifth anniversary of the date
hereof (as that date may be extended under SECTION 2.2), or the earlier date of
termination in whole of the Commitments pursuant to SECTION 2.3, 9.2 or 9.3.
"COMPLIANCE CERTIFICATE" means a report duly completed, with
substantially the same information as set forth in EXHIBIT E attached hereto, as
such EXHIBIT E may be amended, supplemented, restated or otherwise modified from
time to time.
"CONSOLIDATED" and any derivative thereof each means, with reference to
the accounts or financial reports of any Person, the consolidated accounts or
financial reports of such Person and each Subsidiary of such Person determined
in accordance with GAAP, including principles of consolidation, consistent with
those applied in the preparation of the consolidated financial statements of
Micro referred to in SECTION 7.6.
"CONSOLIDATED ASSETS" means, at any date, the total assets of Micro and
its Consolidated Subsidiaries as at such date in accordance with GAAP.
"CONSOLIDATED CURRENT ASSETS" means, at any date, all amounts which
would be included as current assets on a consolidated balance sheet of Micro and
its Consolidated Subsidiaries as at such date in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" means, at any date, all amounts
which would be included as current liabilities on a consolidated balance sheet
of Micro and its Consolidated Subsidiaries as at such date in accordance with
GAAP, excluding any such current liabilities constituting Current Maturities of
Funded Debt at such date.
"CONSOLIDATED CURRENT RATIO" means, at any date, the ratio of (a)
Consolidated Current Assets as at such date, to (b) Consolidated Current
Liabilities as at such date.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income
adjusted by adding thereto the amount of Consolidated Interest Charges that were
deducted in arriving at Consolidated Net Income for such period and all
amortization of intangibles, taxes, depreciation and any other non-cash
EUROPEAN CREDIT AGREEMENT
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charges that were deducted in arriving at Consolidated Net Income for such
period.
"CONSOLIDATED FUNDED DEBT" means, as of any date of determination, the
total of all Funded Debt of Micro and its Consolidated Subsidiaries outstanding
on such date, after eliminating all offsetting debits and credits between Micro
and its Subsidiaries and all other items required to be eliminated in the course
of the preparation of consolidated financial statements of Micro and its
Subsidiaries in accordance with GAAP.
"CONSOLIDATED INTEREST CHARGES" means, with respect to any period, the
sum (without duplication) of the following (in each case, eliminating all
offsetting debits and credits between Micro and its Subsidiaries and all other
items required to be eliminated in the course of the preparation of consolidated
financial statements of Micro and its Subsidiaries in accordance with GAAP):
(a) aggregate net interest expense in respect of Indebtedness
of Micro and its Subsidiaries (including imputed interest on
Capitalized Lease Liabilities) deducted in determining Consolidated Net
Income for such period plus, to the extent not deducted in determining
Consolidated Net Income for such period, the amount of all interest
previously capitalized or deferred that was amortized during such
period; plus
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such
period; plus
(c) all attributable interest and fees in lieu of interest
associated with any securitizations by Micro or any of its
Subsidiaries.
"CONSOLIDATED LIABILITIES" means, at any date, the sum of all
obligations of Micro and its Consolidated Subsidiaries as at such date in
accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income of Micro and its Consolidated Subsidiaries as reflected on a statement of
income of Micro and its Consolidated Subsidiaries for such period in accordance
with GAAP.
"CONSOLIDATED RETAINED RECEIVABLES" means, at any date, the face amount
(calculated in Dollars but net of any amount allocated to the relevant Trade
Account Receivable with respect to any reserve or similar allowance for doubtful
payment) of all Trade Accounts Receivable of Micro and its Consolidated
Subsidiaries outstanding as at such date (including, in the case of any
receivables that have been sold, assigned or otherwise transferred to a trust,
the amount of such receivables net of any amount of Consolidated Transferred
Receivables determined with respect thereto, it being agreed for the avoidance
of doubt that Consolidated Retained Receivables shall not include any
Consolidated Transferred Receivables).
"CONSOLIDATED STOCKHOLDERS' EQUITY" means, at any date, the remainder
of (a) Consolidated Assets as at such date, minus (b) Consolidated Liabilities
as at such date.
"CONSOLIDATED SUBSIDIARY" means any Subsidiary whose financial
statements are required in accordance with GAAP to be consolidated with the
consolidated financial statements delivered by Micro from time to time in
accordance with SECTION 8.1.1.
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"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, the remainder of
(a) Consolidated Stockholders' Equity as at such date plus the accumulated
after-tax amount of non-cash charges and adjustments to income and Consolidated
Stockholders' Equity attributable to employee stock options and stock purchases
through such date, minus (b) goodwill and other Intangible Assets of Micro and
its Consolidated Subsidiaries.
"CONSOLIDATED TRANSFERRED RECEIVABLES" means, at any date, the face
amount (calculated in Dollars but net of any amount allocated by Micro or any of
its Consolidated Subsidiaries to the relevant Trade Account Receivable with
respect to any reserve or similar allowance for doubtful payment) of all Trade
Accounts Receivable originally payable to the account of Micro or any of its
Consolidated Subsidiaries, which have not been discharged at such date and in
respect of which Micro's or any such Consolidated Subsidiary's rights and
interests, have, on or prior to such date, been sold, assigned or otherwise
transferred, in whole or in part, to any Person other than Micro or any of its
Consolidated Subsidiaries (either directly or by way of such Person holding an
undivided interest in a specified amount of Trade Accounts Receivable sold,
assigned or otherwise transferred to a trust).
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable (by direct or indirect agreement, contingent or otherwise) to provide
funds for payment, to supply funds to, or otherwise to invest in, a debtor, or
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other person,
if the primary purpose or intent thereof by the Person incurring the Contingent
Liability is to provide assurance to the obligee of such obligation of another
Person that such obligation of such other Person will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders
of such obligation will be protected (in whole or in part) against loss in
respect thereof. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
"CONTINUATION NOTICE" means a notice of continuation and certificate
for Pro-Rata Revolving Loans duly completed and executed by an Authorized Person
of the relevant Primary Borrower, substantially in the form of EXHIBIT D
attached hereto.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with Micro,
are treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"COORDINATION CENTER" is defined in the preamble.
"COORDINATION CENTER GUARANTY" means a guaranty, in the form of EXHIBIT
G-1 hereto, duly executed and delivered by an Authorized Person of Coordination
Center, as amended, supplemented, restated or otherwise modified from time to
time.
"COST OF FUNDS" means, for the Administrative Agent or any Lender, as
the case may be, its cost, from whatever source it reasonably selects, of funds
in respect of any expenditure or funding by it or in respect of maintaining any
Loan, as the case may be.
EUROPEAN CREDIT AGREEMENT
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"COST OF FUNDS RATE LOAN" means, for any Lender, any Pro-Rata Revolving
Loan bearing interest at an annual rate equal to the sum of (a) the Applicable
Margin for that Loan plus (b) such Lender's Cost of Funds.
"CREDIT COMMITMENT AMOUNT" means, relative to any Lender at any time,
such Lender's Percentage multiplied by the then Total Credit Commitment Amount
as in effect at such time.
"CREDIT EXTENSION," as the context may require, means (a) any Pro-Rata
Credit Extension or (b) the making of a Non-Rata Credit Extension by the
relevant Lender.
"CREDIT EXTENSION REQUEST" means, as the context may require, a
Borrowing Request, a Continuation/Conversion Notice or an Issuance Request.
"CURRENT MATURITIES OF FUNDED DEBT" means, at any time and with respect
to any item of Funded Debt, the portion of such Funded Debt outstanding at such
time which by the terms of such Funded Debt or the terms of any instrument or
agreement relating thereto is due on demand or within one year from such time
(whether by sinking fund, other required prepayment or final payment at
maturity) and is not directly or indirectly renewable, extendible or refundable
at the option of the obligor under an agreement or firm commitment in effect at
such time to a date one year or more from such time.
"DANISH KRONE" means the lawful currency of Denmark.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"DISBURSEMENT DATE" is defined in SECTION 3.2.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as the same may be amended, supplemented or otherwise modified from
time to time by Micro with the consent of the Administrative Agent and the
Required Lenders.
"DOCUMENTATION AGENT" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent pursuant to SECTION 10.4.
"DOLLAR" and the sign "$" each means the lawful currency of the United
States.
"DOLLAR AMOUNT," at any date, means (a) with respect to an amount
denominated in Dollars, such amount as at such date, and (b) with respect to an
amount denominated in any other Available Currency, the amount of Dollars into
which such Available Currency is convertible into Dollars as at such date and on
the terms herein provided.
"EFFECTIVE DATE" is defined in SECTION 11.8.
"EFFECTIVE DATE CERTIFICATE" means a certificate duly completed and
executed by an Authorized Person of Micro, substantially in the form of EXHIBIT
F hereto.
EUROPEAN CREDIT AGREEMENT
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"ELIGIBLE ASSIGNEE" means any Person that, on the date that it is to
become a Lender under this Agreement, is (i) a Lender or (ii) any one of the
following:
(a) a bank or financial institution that at that time (i) is a
bank for the purposes of Section 840A of the United Kingdom Income and
Corporation Taxes Act 1988 and is within the charge to corporation tax
as regards all interest received by it under this Agreement, (ii) has
(or is owned by a holding company that on a consolidated basis has)
combined capital and surplus (as established in its most recent report
of condition to its primary regulator) of not less than $250,000,000
(or its equivalent in foreign currency), and (iii) is reasonably
acceptable to the Administrative Agent and (so long as no Event of
Default exists at that time) Micro (which may take into account, among
other things, the creditworthiness of that bank or financial
institution and the holding company, if any, by which it is owned);
(b) a commercial bank that at that time (i) is organized under
the laws of the United States or any State thereof, (ii) has
outstanding unsecured indebtedness that is rated A- or better by S&P,
A3 or better by ▇▇▇▇▇'▇ or A- or better by Fitch (or an equivalent
rating by another nationally recognized credit rating agency of similar
standing if such corporations are no longer in the business of rating
unsecured indebtedness of entities engaged in such businesses), (iii)
has combined capital and surplus (as established in its most recent
report of condition to its primary regulator) of not less than
$250,000,000 (or its equivalent in foreign currency), and (iv) is
reasonably acceptable to the Administrative Agent and (so long as no
Event of Default exists at that time) Micro;
(c) a commercial bank that at that time (i) is organized
under the laws of (A) any other country that is a member of the
Organization for Economic Cooperation and Development or has concluded
special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or any country that
is a member of the European Community, or (B) political subdivision of
any such country, (ii) has (unless Micro otherwise agrees) outstanding
unsecured indebtedness that is rated A- or better by S&P, A3 or better
by ▇▇▇▇▇'▇ or A- or better by Fitch (or an equivalent rating by another
nationally recognized credit rating agency of similar standing if such
corporations are no longer in the business of rating unsecured
indebtedness of entities engaged in such businesses), (iii) has
combined capital and surplus (as established in its most recent report
of condition to its primary regulator) of not less than $250,000,000
(or its equivalent in foreign currency), and (iv) is reasonably
acceptable to the Administrative Agent and (so long as no Event of
Default exists at that time) Micro;
(d) the central bank of any country that at that time (i) is a
member of the Organization for Economic Cooperation and Development,
(ii) has (unless Micro otherwise agrees) outstanding unsecured
indebtedness that is rated A- or better by S&P, A3 or better by ▇▇▇▇▇'▇
or A- or better by Fitch (or an equivalent rating by another nationally
recognized credit rating agency of similar standing if such
corporations are no longer in the business of rating unsecured
indebtedness of entities engaged in such businesses), (iii) has
combined capital and surplus (as established in its most recent report
of condition to its primary regulator) of not less than $250,000,000
(or its equivalent in foreign currency), and (iv) is reasonably
acceptable to the Administrative Agent and (so long as no Default
exists at that time) Micro; or
(e) solely during the occurrence and continuance of an Event
of Default, a
EUROPEAN CREDIT AGREEMENT
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finance company, insurance company, or other financial institution or
fund (whether a corporation, partnership, or other entity) that at that
time (i) is engaged generally in making, purchasing, and otherwise
investing in commercial loans in the ordinary course of its business,
(ii) has combined capital and surplus (as established in its most
recent report of condition to its primary regulator) of not less than
$250,000,000 (or its equivalent in foreign currency), and (iii) is
reasonably acceptable to the Administrative Agent;
so long as, in the case of any Person described in CLAUSES (a) through (e)
above, it must also at that time be (A) in respect of payments by Micro,
entitled to receive payments hereunder free and clear of and without deduction
for or on account of any United States federal income taxes, and (B) in respect
of payments by Coordination Center, entitled to receive payments hereunder free
and clear of and without any deduction for or on account of any income taxes
imposed by The Kingdom of Belgium.
"EMU EVENT" means, in respect of member states of the European
Community, an event associated with economic and monetary union in the European
Community, including, without limitation, each (and any combination) of (a) the
introduction of, changeover to, or operation of the New Currency, (b) the fixing
of conversion rates between a member state's currency and the New Currency or
between the currencies of member states, (c) the substitution of the New
Currency for the European Currency Units as the unit of account of the European
Community, (d) the introduction of the New Currency as lawful currency in a
member state (whether at the earliest date or subsequently and whether in
parallel with, or as a replacement for, the currency which, before the
introduction of the New Currency, was lawful currency in that member state), (e)
the withdrawal from legal tender, by reason of the introduction of the New
Currency, of any currency that, before the introduction of the New Currency, was
lawful currency in one of the member states, (f) the disappearance or
replacement of a relevant price source for the European Currency Units or the
national currency of any member state, (g) the failure of any sponsor (or a
successor sponsor) such as Reuters or Telerate to publish a relevant rate,
index, price, page, or screen, and (h) any event in furtherance of any of the
foregoing.
"ENTERTAINMENT" means ▇▇▇▇▇▇ Entertainment Inc., a Tennessee
corporation.
"ENVIRONMENTAL LAWS" means any and all applicable statutes, laws,
ordinances, codes, rules, regulations and binding and enforceable guidelines
(including consent decrees and administrative orders binding on any Obligor or
any of their respective Subsidiaries), in each case as now or hereafter in
effect, relating to human health and safety, or the regulation or protection of
the environment, or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes
into the indoor or outdoor environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes issued (presently or in the future) by any
national, federal, state, provincial, territorial, or local authority in any
jurisdiction in which any Obligor or any of their respective Subsidiaries is
conducting its business.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the rules
and regulations promulgated thereunder, in each case as in effect from time to
time. References to sections of ERISA also refer to any successor sections.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the F.R.S.
EUROPEAN CREDIT AGREEMENT
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Board, as in effect from time to time.
"EUROPEAN CURRENCY UNITS" means the composite currency unit designated
as such by the European Community.
"EVENT OF DEFAULT" is defined in SECTION 9.1.
"EXTENSION PERIOD" is defined in SECTION 2.2(a).
"FASB" means the Financial Accounting Standards Board.
"FEE LETTER" means the letter agreement dated as of September 4, 1997,
between Scotiabank, NationsBank, NationsBank Capital Markets, Inc., and Micro,
relating to certain fees to be paid in connection with this Agreement.
"FISCAL PERIOD" means a fiscal period of Micro or any of its
Subsidiaries, which shall be either a calendar quarter or an aggregate period
comprised of three consecutive periods of four weeks and five weeks (or, on
occasion, six weeks instead of five), currently commencing on or about each
January 1, April 1, July 1 or October 1.
"FISCAL YEAR" means, with respect to any Person, the fiscal year of
such Person. The term Fiscal Year, when used without reference to any Person,
shall mean a Fiscal Year of Micro, which currently ends on the Saturday nearest
December 31.
"FITCH" means Fitch Investors Service, L.P.
"FRENCH FRANCS" means the lawful currency of France.
"F.R.S. BOARD" is defined in SECTION 7.17.
"FUNDED DEBT" means, with respect to any Person, all Indebtedness of
such Person which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, one year or
more from, or is directly or indirectly renewable or extendible at the option of
the obligor in respect thereto to a date one year or more (including, without
limitation, an option of such obligor under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of one
year or more) from, the date of the creation thereof; provided that Funded Debt
shall include, as at any date of determination, Current Maturities of Funded
Debt.
"GAAP" is defined in SECTION 1.4.
"GUARANTEE LETTER OF CREDIT OBLIGATIONS" means any contingent legal
obligations of any Person to reimburse any financial institution for draws on
letters of credit (including those issued pursuant to this Agreement) issued for
the account of such Person to support or ensure payment or performance of
Indebtedness or obligations of some other Person provided no such draws have
been made and such obligation to reimburse is not then due and payable; it being
understood that no obligation with respect to any letter of credit (including
those issued pursuant to this Agreement) may be treated as both a Reimbursement
Obligation and a Guarantee Letter of Credit Obligation.
EUROPEAN CREDIT AGREEMENT
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"GUARANTIES" collectively means (a) the Micro Guaranty, (b) the
Coordination Center Guaranty, (c) the Micro Canada Guaranty (Micro), (d) the
Micro Canada Guaranty (Coordination Center/Micro Singapore), (e) the Micro
Singapore Guaranty, and (f) each Additional Guaranty.
"GUARANTORS" means, collectively, the Borrowers, Micro Canada, Micro
Singapore, and each Additional Guarantor.
"GUILDERS" means the lawful currency of the Kingdom of the Netherlands.
"HAZARDOUS MATERIAL" means (a) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material or substance that is presently
or hereafter becomes defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants," "pollutants," or terms of similar import within the meaning of
any Environmental Law, or (b) any other chemical or other material or substance,
exposure to which is presently or hereafter prohibited, limited or regulated
under any Environmental Law.
"HEREIN," "HEREOF," "HERETO," "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Article, Section, clause, paragraph or provision of this Agreement or such other
Loan Document.
"HONG KONG DOLLARS" means the lawful currency of the Hong Kong Special
Administration Region of the People's Republic of China.
"IMPERMISSIBLE QUALIFICATIONS" means, relative to the opinion of
certification of any independent public accountant engaged by Micro as to any
financial statement of Micro and its Consolidated Subsidiaries, any
qualification or exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause Micro to be in default of any of its obligations
under SECTION 8.2.3 or 8.2.8;
provided that (i) qualifications relating to pre-acquisition balance sheet
accounts of Person(s) acquired by Micro or any of its Subsidiaries and (ii)
statements of reliance in the auditor's opinion on another accounting firm (so
long as such other accounting firm has a national reputation in the applicable
country and such reliance does not pertain to any Borrower) shall not be deemed
an Impermissible Qualification.
"INCLUDING" and "INCLUDE" mean including without limiting the
generality of any description preceding such term.
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"INDEBTEDNESS" of any Person means and includes the sum of the following
(without duplication):
(a) all obligations of such Person for borrowed money, all
obligations evidenced by bonds, debentures, notes, investment
repurchase agreements or other similar instruments, and all securities
issued by such Person providing for mandatory payments of money,
whether or not contingent;
(b) all obligations of such Person pursuant to revolving
credit agreements or similar arrangements to the extent then
outstanding;
(c) all obligations of such Person to pay the deferred
purchase price of property or services, except (i) trade accounts
payable arising in the ordinary course of business, (ii) other accounts
payable arising in the ordinary course of business in respect of such
obligations the payment of which has been deferred for a period of 270
days or less, (iii) other accounts payable arising in the ordinary
course of business none of which shall be, individually, in excess of
$200,000, and (iv) leases of real or personal property not required to
be capitalized under FASB Statement 13;
(d) all obligations of such Person as lessee under Capitalized
Lease Liabilities;
(e) all obligations of such Person to purchase securities (or
other property) which arise out of or in connection with the sale of
the same or substantially similar securities or property excluding any
such sales or exchanges for a period of less than 45 days;
(f) all obligations with respect to letters of credit (other
than trade letters of credit) and bankers' acceptances issued for the
account of such Person;
(g) all Indebtedness of others secured by a Lien of any kind
on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of any Indebtedness
attributed to any Person pursuant to this CLAUSE (g) shall be limited,
in each case, to the lesser of (i) the fair market value of the assets
of such Person subject to such Lien and (ii) the amount of the other
Person's Indebtedness secured by such Lien; and
(h) all Guarantees endorsements and other Contingent
Liabilities of or in respect of, or obligations to purchase or
otherwise acquire, the Indebtedness of another Person;
provided that it is understood and agreed that the following are not
"INDEBTEDNESS":
(i) obligations to pay the deferred purchase price for the
acquisition of any business (whether by way of merger, sale of stock or
assets or otherwise), to the extent that such obligations are
contingent upon attaining performance criteria such as earnings and
such criteria shall not have been achieved;
(ii) obligations to repurchase securities (A) issued to
employees pursuant to any Plan or other contract or arrangement
relating to employment upon the termination of their
EUROPEAN CREDIT AGREEMENT
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employment or other events, or (B) that may arise out of the
transactions contemplated by the Transition Agreements;
(iii) obligations to match contributions of employees under
any Plan; and
(iv) guarantees of any Obligor or any of their respective
Subsidiaries that are guarantees of performance, reclamation or similar
bonds or, in lieu of such bonds, letters of credit used for such
purposes issued in the ordinary course of business for the benefit of
any Subsidiary of Micro, which would not be included on the
consolidated financial statements of any Obligor.
"INDEMNIFIED LIABILITIES" is defined in SECTION 11.4.
"INDEMNIFIED PARTIES" is defined in SECTION 11.4.
"INDUSTRIES" means ▇▇▇▇▇▇ Industries Inc., a Tennessee corporation.
"INELIGIBLE CURRENCY" means, with respect to any Loan denominated in an
Available Currency (other than Dollars), a determination by the relevant Lender
that the currency in which such Loan is denominated has ceased to be (a) freely
convertible into Dollars or (b) a currency for which there is an active foreign
exchange and deposit market in London or New York City.
"INTANGIBLE ASSETS" means, with respect to any Person, that portion of
the book value of the assets of such Person which would be treated as
intangibles under GAAP, including all items such as goodwill, trademarks, trade
names, brands, trade secrets, customer lists, copyrights, patents, licenses,
franchise conversion rights and rights with respect to any of the foregoing and
all unamortized debt or equity discount and expenses.
"INTEREST PERIOD" means, for any Pro-Rata Revolving Loan, the period
beginning on (and including) the date on which such Pro-Rata Revolving Loan is
made, continued or converted and ending on (but excluding) the last day of the
period selected by the relevant Primary Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, three, or six
months from (and including) the date of such Pro-Rata Revolving Loan, ending on
(but excluding) the day which numerically corresponds to such date (or, if such
month has no numerically corresponding day on the last Business Day of such
month), as the relevant Primary Borrower may select in its relevant notice
pursuant to SECTION 3.1 or 4.2.3; provided that:
(a) no Borrower shall be permitted to select Interest Periods
for Pro-Rata Revolving Loans to be in effect at any one time which have
expiration dates occurring on more than 20 different dates;
(b) Interest Periods commencing on the same date for Pro-Rata
Revolving Loans comprising part of the same Borrowing shall be of the
same duration;
(c) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless, if such Interest Period applies to a
Pro-Rata Revolving Loan, such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business
EUROPEAN CREDIT AGREEMENT
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Day next preceding such numerically corresponding day); and
(d) no Interest Period for any Pro-Rata Revolving Loan may
end, with respect to each Lender making a part of such Loan, later than
the Commitment Termination Date.
"INTRA-GROUP AGREEMENT" means the Intra-Group Agreement, in the form of
EXHIBIT G-2 hereto, duly executed and delivered by Authorized Persons of each
Borrower that is a Guarantor, as amended, supplemented, restated or otherwise
modified from time to time.
"ISSUANCE REQUEST" means an issuance request for Pro-Rata Letters of
Credit duly completed and executed by an Authorized Person of Micro,
substantially in the form of EXHIBIT C hereto.
"ISSUER" means either NationsBank or Scotiabank, in its capacity as
issuer of the Pro-Rata Letters of Credit, or any Lender in its capacity as
issuer of a Non-Rata Letter of Credit. At the request of the Agents, another
Lender or an Affiliate of NationsBank or Scotiabank may (but is not otherwise
obligated to) issue one or more Pro-Rata Letters of Credit hereunder.
"KRONA" means the lawful currency of Sweden.
"LENDERS" is defined in the preamble.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT K attached hereto.
"LENDER PARTY" means any of the Lenders, Agents, Co-Arrangers, Issuers,
and (for purposes only of SECTION 11.4) Arrangers.
"LENDING OFFICE" means , for any Lender (a) for Pro-Rata Revolving
Loans to Micro, its Lending Office for Loans to Micro designated beside its
signature below, designated in a Lender Assignment Agreement to which it is a
party, or designated in a notice to the Administrative Agent and Micro from time
to time and at any time, (b) for other Pro-Rata Revolving Loans, its Lending
Office for Other Loans designated beside its signature below, designated in a
Lender Assignment Agreement to which it is a party, or designated in a notice to
the Administrative Agent and Micro from time to time and at any time, and (c)
for any Non-Rata Credit Extension, the office that the Lender shall designate.
"LETTER OF CREDIT LIMIT" means, on any date, a maximum amount (as such
amount may be reduced from time to time pursuant to SECTION 2.3) equal to 25% of
the Total Credit Commitment Amount.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, the sum (without
duplication) of the Dollar Amounts of (a) the then aggregate amount which is
undrawn and available under all Letters of Credit issued and outstanding
(assuming that all conditions for drawing have been satisfied), plus (b) the
then aggregate amount of all unpaid and outstanding Reimbursement Obligations.
"LETTERS OF CREDIT" means, collectively, all Pro-Rata Letters of Credit
issued and outstanding and Non-Rata Letters of Credit issued and outstanding.
"LIBO RATE" means, for any Interest Period for a Borrowing, an annual
interest rate (rounded
EUROPEAN CREDIT AGREEMENT
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upward to four decimal places) determined by the Administrative Agent to be
either:
(a) the London interbank offered rate for deposits, in the
currency in which that Borrowing is denominated under this Agreement,
at approximately 11:00 a.m. London time two Business Days before the
first day (or, solely in the case of Borrowings denominated in
Sterling, on the first day) of that Interest Period for a term
comparable to that Interest Period, that appears on Telerate Pages 3740
or 3750; or
(b) if no such display rate is then available, the average of
the rates at which deposits of the currency of the relevant Borrowing
in immediately available funds are offered to each Reference Lender's
LIBOR Office in the London interbank market at or about 11:00 a.m.,
London time, two Business Days prior to (or the Business Day that, for
Borrowings denominated in Sterling, is) the beginning of such Interest
Period for delivery on the first day of such Interest Period, and in an
amount approximately equal to the amount of each such Reference
Lender's Pro-Rata Revolving Loan that is part of that Borrowing and for
a period approximately equal to such Interest Period.
"LIBOR RESERVE PERCENTAGE" means, for any Lender, relative to any
Interest Period for Pro-Rata Revolving Loans, the reserve percentage (expressed
as a decimal) equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplement, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the F.R.S.
Board and then applicable to assets or liabilities consisting of and including
Eurocurrency Liabilities having a term approximately equal or comparable to such
Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against, valid claim on or interest in property to secure payment of a
debt or performance of an obligation or other priority or preferential
arrangement of any kind or nature whatsoever (including, without limitation, (a)
the lien or retained security title of a conditional vendor, and (b) under any
agreement for the sale of Trade Accounts Receivable, the interest of the
purchaser (or any assignee of such purchaser which has financed the relevant
purchase) in a percentage of receivables of the seller not so sold, held by the
purchaser (or such assignee) as a reserve for (i) interest rate protection in
the event of a liquidation of the receivables sold, (ii) expenses that would be
incurred upon a liquidation of the receivables sold, (iii) losses that might be
incurred in the event the amount actually collected from the receivables sold is
less than the amount represented in the relevant receivables purchase agreement
as collectible, or (iv) any similar purpose (but excluding the interest of a
trust in such receivables to the extent that the beneficiary of such trust is
Micro or a Subsidiary of Micro).
"LIRA" means the lawful currency of the Republic of Italy.
"LOAN" means a Pro-Rata Revolving Loan or a Non-Rata Revolving Loan.
"LOAN DOCUMENT" means this Agreement, each Note (if any), each Credit
Extension Request, each Letter of Credit, the Intra-Group Agreement, each
Guaranty, the most recently delivered Compliance Certificate (specifically
excluding any other Compliance Certificate previously delivered), any Accession
Request and Acknowledgment, and any other agreement, document, or instrument
EUROPEAN CREDIT AGREEMENT
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(excluding any documents delivered solely for the purpose of satisfaction
disclosure requirements or requests for information) required in connection with
this Agreement or the making or maintaining of any Credit Extension and
delivered by an Authorized Person.
"MARGIN STOCK" means "margin stock," as such term is defined and used
in Regulation U.
"MARKS" means the lawful currency of the Federal Republic of Germany.
"MATERIAL ADVERSE EFFECT" means an event, act, occurrence or other
circumstance which results in a material adverse effect on the business, results
of operations or financial condition of Micro and its Consolidated Subsidiaries,
taken as a whole.
"MATERIAL ASSET ACQUISITION" (a) means the purchase or other
acquisition (in one transaction or a series of related transactions) from any
Person of property or assets, the aggregate purchase price of which (calculated
in Dollars) paid in cash or property (other than property consisting of equity
shares or interests or other equivalents of corporate stock of, or partnership
or other ownership interests in, any Obligor), equals or exceeds 25% of the sum
(calculated without giving effect to such purchase or acquisition) of (i)
Consolidated Funded Debt (determined as at the end of the then most recently
ended Fiscal Period), plus (ii) Consolidated Stockholders' Equity (determined as
at the end of the then most recently ended Fiscal Period), plus (iii) any
increase thereof attributable to any equity offerings or issuances of capital
stock occurring subsequent to the end of such Fiscal Period and before any such
purchase or acquisition, but (b) does not mean a purchase or acquisition of
property or assets of the character described in and permitted under SECTION
8.2.9(c).
"MATERIAL SUBSIDIARY" means:
(a) with respect to any Subsidiary of Micro as of the date of
this Agreement, a Subsidiary of Micro that, as of any date of
determination, either (i) on an average over the three most recently
preceding Fiscal Years contributed at least 5% to Consolidated Net
Income or (ii) on an average at the end of the three most recently
preceding Fiscal Years owned assets constituting at least 5% of
Consolidated Assets; and
(b) with respect to any Subsidiary of Micro organized or
acquired subsequent to the date of this Agreement, a Subsidiary of
Micro that as of:
(i) the date it becomes a Subsidiary of Micro,
would have owned (on a pro forma basis if such Subsidiary had
been a Subsidiary of Micro at the end of the preceding Fiscal
Year) assets constituting at least 5% of Consolidated Assets
at the end of the Fiscal Year immediately prior to the Fiscal
Year in which it is organized or acquired; or
(ii) any date of determination thereafter, either
(A) on an average over the three most recently preceding
Fiscal Years (or, if less, since the date such Person became a
Subsidiary of Micro) contributed at least 5% to Consolidated
Net Income, or (B) on an average at the end of the three (or,
if less, such number of Fiscal Year-ends as have occurred
since such Person became a Subsidiary of Micro) most recently
preceding Fiscal Years owned assets constituting at least 5%
of Consolidated Assets;
EUROPEAN CREDIT AGREEMENT
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provided that ▇▇▇▇▇▇ Funding Inc., Distribution Funding Corporation, and any
other special purpose financing vehicle shall not be Material Subsidiaries.
"MATURITY" of any of the Obligations means the earliest to occur of:
(a) the date on which such Obligations expressly become due
and payable pursuant hereto or any other Loan Document or, in the case
of any Obligations incurred in respect of any Non-Rata Revolving Loan,
pursuant to the arrangements entered into by the relevant Borrower and
the relevant Lender in connection therewith but in no event beyond the
then Commitment Termination Date with respect to such Lender;
(b) the Stated Maturity Date (in the case of Pro-Rata
Revolving Loans) where no such due date is specified; and
(c) the date on which such Obligations become due and payable
pursuant to Sections 9.2, 9.3, or 9.4.
"MEXICAN PESOS" means the lawful currency of the United States of
Mexico.
"MICRO" is defined in the preamble.
"MICRO CANADA" means ▇▇▇▇▇▇ Micro Inc., a corporation organized and
existing under the laws of Ontario, Canada.
"MICRO CANADA GUARANTY (COORDINATION CENTER/MICRO SINGAPORE)" means a
guaranty, in the form of EXHIBIT I-1 attached hereto, duly executed and
delivered by an Authorized Person of Micro Canada, as amended, supplemented,
restated or otherwise modified from time to time.
"MICRO CANADA GUARANTY (MICRO)" means a guaranty, in the form of
EXHIBIT I-2 attached hereto, duly executed and delivered by an Authorized Person
of Micro Canada, as amended, supplemented, restated or otherwise modified from
time to time.
"MICRO GUARANTY" means the Guaranty, in the form of EXHIBIT H hereto,
duly executed and delivered by an Authorized Person of Micro, as amended,
supplemented, restated or otherwise modified from time to time.
"MICRO SINGAPORE" means ▇▇▇▇▇▇ Micro Singapore Pte Ltd., a corporation
organized and existing under the laws of Singapore.
"MICRO SINGAPORE GUARANTY" means the Guaranty, in the form of EXHIBIT
I-3 hereto, duly executed and delivered by an Authorized Person of Micro
Singapore, as amended, supplemented, restated or otherwise modified from time to
time.
"MLA COSTS" means, for any Lender making a Loan in Sterling, the
additional costs to that Lender of compliance with Mandatory Liquid Assets
Requirements from time to time required by the Bank of England, calculated in
accordance with the following formula:
EUROPEAN CREDIT AGREEMENT
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(a) The formula is as follows where on the day of application
of the formula each letter has the meaning set forth below:
BY + L(Y-X) + S(Y-Z) % per annum
--------------------
100 - (B+S)
B = The percentage of the applicable Lender's eligible liabilities
then required to be held in a non-interest-bearing deposit
account with the Bank of England pursuant to the cash ratio
requirements of the Bank of England.
Y = The annual rate at which Sterling deposits in an amount
comparable with the relevant Loan are offered by the
applicable Lender to leading banks in the London interbank
market at or about 11:00 a.m. (London time) on that day for
the relevant period.
L = The average percentage of eligible liabilities which the Bank
of England requires the applicable Lender to maintain as
secured money with members of the London Discount Market
Association and/or as secured-call money with those money
brokers and gilt-edged primary market-makers recognized by the
Bank of England.
X = The rate at which secured Sterling deposits in an amount
comparable to the relevant Loan may be placed by the
applicable Lender with members of the London Discount Market
Association and/or as secured-call money with money brokers
and gilt-edged primary market-makers at or about 11:00 a.m.
(London time) on that day for the relevant period.
S = The percentage of the relevant Lender's eligible liabilities
then required to be placed as a special deposit with the Bank
of England.
Z = The percentage interest rate per annum allowed by the Bank of
England on special deposits.
(b) For the purposes of this definition (i) "eligible
liabilities" and "special deposits" have the meanings given to those
expressions at the time of application of the formula by the Bank of
England, and (ii) "relevant period" means, in relation to the Relevant
Loan (A) if its Interest Period is three months or less, its Interest
Period, or (B) if its Interest Period is more than three months, each
successive period of three months and any necessary shorter period
comprised in that Interest Period.
(c) In the application of the above formula, B, Y, L, X, S,
and Z shall be included in this formula as figures and not as
percentages, e.g., if B = 0.5% and Y = 15%, then BY shall be calculated
as 0.5 x 15.
EUROPEAN CREDIT AGREEMENT
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(d) The additional rate computed in accordance with the
formula in CLAUSE (c) above shall, if not already such a multiple, be
rounded upwards to the nearest whole multiple of 1/16% per annum.
(e) The above formula shall be applied on the first day of
each relevant period comprised in the Interest Period of the relevant
Loan.
(f) In the event of a change in circumstances (including the
imposition of alternative or additional official requirements) which
renders the above formula inapplicable, then the applicable Lender
shall notify Micro of the manner in which the additional rate shall
thereafter be determined. The manner of calculation so notified by the
relevant Lender shall, in the absence of manifest error, be binding on
all parties.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NATIONSBANK" is defined in the preamble.
"NEW CURRENCY" means any single or unified European lawful currency
(whether known as the Euro or otherwise, and whether for the whole European
Community or for only several member states).
"NON-RATA CREDIT EXTENSION" collectively means (a) the making of a
Non-Rata Revolving Loan by any Lender and (b) the issuance by any Lender of a
Non-Rata Letter of Credit.
"NON-RATA DISBURSEMENT DATE" is defined in SECTION 3.4.5.
"NON-RATA LETTER OF CREDIT" is defined in SECTION 3.4.1.
"NON-RATA LIMIT" means, on any date, a maximum amount (as such amount
may be reduced from time to time pursuant to SECTION 2.3) equal to 60% of the
Total Credit Commitment Amount.
"NON-RATA REIMBURSEMENT OBLIGATIONS" is defined in SECTION 3.4.6.
"NON-RATA REVOLVING LOANS" is defined in SECTION 3.3.1.
"NON-RATA REVOLVING NOTE" means a promissory note of a Borrower,
payable to a Lender that has requested it under SECTION 4.1, in the form of
EXHIBIT A-2 hereto (as such promissory note may be amended, endorsed, or
otherwise modified from time to time), evidencing the aggregate Indebtedness of
such Borrower to such Lender resulting from outstanding Non-Rata Revolving
Loans, together with all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"NON-RATA USAGE" means, for any Lender and at any time, that portion of
its Outstanding Credit Extensions consisting of Non-Rata Credit Extensions, if
any, that equals but does not exceed the remainder of (a) its Percentage of the
Total Credit Commitment Amount at that time minus (b) its Outstanding Credit
Extensions consisting of Pro-Rata Credit Extensions at that time.
"NORWEGIAN KRONE" means the lawful currency of Norway.
EUROPEAN CREDIT AGREEMENT
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"NOTE" means, as the context may require, a Revolving Note, a Non-Rata
Revolving Note, or any promissory note of Coordination Center that may be issued
from time to time to evidence Non-Rata Revolving Loans made to Coordination
Center by any Lender who has requested such note under SECTION 4.1.
"OBLIGATIONS" means, individually and collectively (a) the Loans, (b)
all Letter of Credit Outstandings, and (c) all other indebtedness, liabilities,
obligations, covenants and duties of any Borrower owing to the Agents or the
Lenders of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents including, without limitation, any
fees, whether direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note.
"OBLIGORS" means, collectively, the Borrowers and Guarantors.
"ORGANIC DOCUMENTS" means, relative to any Obligor, any governmental
filing or proclamation pursuant to which such Person shall have been created and
shall continue in existence (including a charter or certificate or articles of
incorporation or organization, and, with respect to Coordination Center, the
Royal Decree) and its by-laws (or, if applicable, partnership or operating
agreement) and all material shareholder agreements, voting trusts and similar
arrangements to which such Obligor is a party that are applicable to the voting
of any of its authorized shares of capital stock (or, if applicable, other
ownership interests therein).
"OUTSTANDING CREDIT EXTENSIONS" means, relative to any Lender at any
date and without duplication, the sum of the Dollar Amounts of (a) the aggregate
principal amount of all outstanding Loans of such Lender at such date, plus (b)
such Lender's applicable Adjusted Percentages of the aggregate Stated Amount of
all Pro-Rata Letters of Credit that are outstanding and undrawn (or drawn and
unreimbursed) at such date, plus (c) the aggregate Stated Amount of all Non-Rata
Letters of Credit issued by such Lender that are outstanding and undrawn (or
drawn and unreimbursed) at such date.
"PARTICIPANT" is defined in SECTION 11.11.2.
"PAYING LENDER PARTY" is defined in SECTION 5.9(d).
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" means a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(3) of ERISA), and to which any
Obligor or any corporation, trade or business that is, along with Obligor, a
member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of Section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor within the meaning of Section 4069 of ERISA.
"PERCENTAGE" of any Lender means in the case of (a) each Lender which
is a signatory to this Agreement, the percentage set forth opposite such
Lender's signature hereto under the caption "Percentage," subject to any
modification necessary to give effect to any sale, assignment or transfer
EUROPEAN CREDIT AGREEMENT
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made pursuant to SECTION 11.11.1, or (b) any Transferee Lender, effective upon
the occurrence of the relevant purchase by, or assignment to, such Transferee
Lender, the portion of the Percentage of the selling, assigning or transferring
Lender allocated to such Transferee Lender.
"PERSON" means any natural person, company, partnership, firm, limited
liability company or partnership, association, trust, government, government
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PESETAS" means the lawful currency of Spain.
"PLAN" means any Pension Plan or Welfare Plan.
"PRIMARY BORROWERS" is defined in the preamble.
"PRO-RATA CREDIT EXTENSION" collectively means (a) the making of
Pro-Rata Revolving Loans by the Lenders and (b) the issuance by any Issuer of a
Pro-Rata Letter of Credit.
"PRO-RATA DISTRIBUTION EVENT" means, at any time, the existence of
either (a) an Event of Default under SECTION 9.1.1 or 9.1.9 or (b) any Default
for which the Required Lenders have notified the Administrative Agent (whereupon
the Administrative Agent shall promptly notify Micro and the Lenders) that (i)
such Default exists and (ii) the Required Lenders elect to cause all payment to
be applied under SECTION 5.9 as if a Pro-Rata Distribution Event exists.
"PRO-RATA LETTER OF CREDIT" means an irrevocable letter of credit
issued pursuant to SECTION 3.2.
"PRO-RATA LETTER OF CREDIT COMMITMENT" means, with respect to any
Issuer of Pro-Rata Letters of Credit, such Issuer's obligations to issue
Pro-Rata Letters of Credit pursuant to SECTION 3.2 and, with respect to each of
the other Lenders, the obligations of each such Lender to participate in
Pro-Rata Letters of Credit pursuant to such Section.
"PRO-RATA REVOLVING LOANS" is defined in CLAUSE (a) of SECTION 2.1.
"PRO-RATA REIMBURSEMENT OBLIGATION" is defined in SECTION 3.2.3.
"QUARTERLY PAYMENT DATE" means the last day of March, June, September
and December of each calendar year or, if any such day is not a Business Day,
the next succeeding Business Day.
"QUARTERLY REPORT" means a report duly completed, substantially in the
form of EXHIBIT L attached hereto (including, in addition to the information
expressly described in EXHIBIT L hereto, information (including calculations in
accordance with the provisions of the last sentence of SECTION 2.1) regarding
the values of the Available Currencies (other than the Dollar) of all
Outstanding Credit Extensions consisting of Non-Rata Credit Extensions as of the
end of the applicable Fiscal Period), as such EXHIBIT L may be amended,
supplemented, restated or otherwise modified from time to time.
"REFERENCE LENDERS" means Scotiabank, NationsBank, Credit Lyonnais
Brussels, Deutsche Bank, A.G., and The Industrial Bank of Japan.
EUROPEAN CREDIT AGREEMENT
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"REFERENCE RATE" means, at any time, an annual interest rate equal to
the sum of (a) the Applicable Margin for Pro-Rata Revolving Loans at that time
(unless already included in the rate determined under CLAUSE (B) following) plus
(b) the rate determined by the Administrative Agent to be the higher of either:
(i) The rate on the relevant base amount or overdue amount
(before the date due, if principal), as the case may be and to the
extent applicable (the "RELEVANT AMOUNT"); or
(ii) The rate that would have been payable if the relevant
amount constituted a Loan in the currency of the relevant amount for
successive interest periods of such duration as the Administrative
Agent may determine (each a "DESIGNATED INTEREST PERIOD").
Such rate in CLAUSE (B) above shall be determined on each Business Day or the
first day of, or two Business Days before the first day of, the designated
interest period, as appropriate, and otherwise determined in accordance with the
definition of LIBO Rate or, if not available, determined by reference to the
cost of funds to the Administrative Agent from whatever source it reasonably
selects.
"REGULATION U" is defined in SECTION 7.17.
"REGULATORY CHANGE" means any change after the date hereof in any (or
the promulgation after the date hereof of any new):
(a) law applicable to any class of banks (of which any Lender
Party is a member) issued by (i) any competent authority in any country
or jurisdiction, or (ii) any competent international or supra-national
authority; or
(b) regulation, interpretation, directive or request (whether
or not having the force of law) applicable to any class of banks (of
which any Lender Party is a member) of any court, central bank or
governmental authority or agency charged with the interpretation or
administration of any law referred to in clause (a) of this definition
or of any fiscal, monetary or other authority having jurisdiction over
any Lender Party.
"REIMBURSEMENT OBLIGATIONS" collectively means all Pro-Rata
Reimbursement Obligations and Non-Rata Reimbursement Obligations.
"RELEASE" means a "release," as such term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended and as in effect from time to time (▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code ss. 9601 et
seq.), and any rules and regulations promulgated thereunder.
"REMAINING LENDER" is defined in CLAUSE (a) of SECTION 2.2.
"REQUIRED CURRENCY" is defined in SECTION 5.8.1(a).
"REQUIRED LENDERS" means (a) at any time when the Commitments of the
Lenders have expired or been terminated, those Lenders holding at least 65% of
the total Outstanding Credit Extensions of all of the Lenders at that time, and
(b) at any other time, those Lenders whose Percentages total at least 65% at
that time.
EUROPEAN CREDIT AGREEMENT
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"REVOLVING NOTE" means a promissory note of a Primary Borrower, payable
to a Lender that has requested it under SECTION 4.1, in the form of EXHIBIT A-1
hereto (as such promissory note may be amended, endorsed, or otherwise modified
from time to time), evidencing the aggregate Indebtedness of that Primary
Borrower to such Lender resulting from outstanding Pro-Rata Revolving Loans,
together with all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"RINGGIT" means the lawful currency of Malaysia.
"ROYAL DECREE" means the Royal Decree of The Kingdom of Belgium
recognizing Coordination Center as a coordination center under Belgian law, as
the same may from time to time be amended, supplemented or otherwise modified by
any new Royal Decree relating to the recognition of the Coordination Center as a
coordination center under Belgium law.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SCHILLINGS" means the lawful currency of the Republic of Austria.
"SCOTIABANK" is defined in the preamble.
"SINGAPORE DOLLARS" means the lawful currency of Singapore.
"STATED AMOUNT" for any Letter of Credit on any day means the amount
which is undrawn and available under such Letter of Credit on such day (after
giving effect to any drawings thereon on such day).
"STATED EXPIRY DATE" is defined in SECTION 3.2.
"STATED MATURITY DATE" means, for each Lender, in the case of any
Pro-Rata Revolving Loan, the then-effective Commitment Termination Date.
"STERLING" means the lawful currency of the United Kingdom.
"SUBJECT LENDER" is defined in SECTION 5.12.
"SUBSIDIARY" means, with respect to any Person, any corporation,
company, partnership or other entity of which more than 50% of the outstanding
shares or other ownership interests having by the terms thereof ordinary voting
power to elect a majority of the board of directors of, or other persons
performing similar functions for, such corporation, company, partnership or
other entity (irrespective of whether at the time shares or other ownership
interests of any other class or classes of such corporation, company,
partnership or other entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned by such Person,
by such Person and one or more other Subsidiaries of such Person, or by one or
more other Subsidiaries of such Person.
"SUPPLEMENTAL BORROWERS" means Micro Canada, Micro Singapore, and each
Acceding Borrower party to this Agreement from time to time, together with their
respective successors and assigns.
EUROPEAN CREDIT AGREEMENT
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"SWISS FRANCS" means the lawful currency of Switzerland.
"TAX CREDIT" is defined in SECTION 5.7.
"TAX PAYMENT" is defined in SECTION 5.7.
"TAXES" is defined in SECTION 5.7.
"TOTAL CREDIT COMMITMENT AMOUNT" means, at any time, $500,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.3.
"TOTAL INDEBTEDNESS" means, at any date, the aggregate of all
Indebtedness on such date of Micro and its Subsidiaries, without duplication and
after eliminating all offsetting debits and credits between Micro and its
Subsidiaries and all other items required to be eliminated in accordance with
GAAP.
"TOTAL INDEBTEDNESS OF SUBSIDIARIES" means, at any date, the aggregate
of all Indebtedness on such date of all the Subsidiaries of Micro, without
duplication and after eliminating all offsetting debits and credits between each
of such Subsidiaries or between such a Subsidiary and Micro and all other items
required to be eliminated in accordance with GAAP, excluding (a) all
Indebtedness of any Subsidiary of Micro outstanding on October 30, 1996, or
incurred pursuant to any commitment or line of credit in its favor in effect on
October 30, 1996, and any renewals or replacements thereof, so long as such
renewals or replacements do not increase the amount of such Indebtedness or such
commitments or lines of credit and (b) any Indebtedness of ▇▇▇▇▇▇ Funding Inc.,
Distribution Funding Corporation, or any other special purpose financing vehicle
incurred in connection with their purchase, directly or indirectly, from Micro
or any of Micro's other Subsidiaries, of Trade Accounts Receivable or interests
therein.
"TRADE ACCOUNTS RECEIVABLE" means, with respect to any Person, all
rights of such Person to the payment of money arising out of any sale, lease or
other disposition of goods or rendition of services by such Person.
"TRANSFEREE LENDER" is defined in SECTION 11.11.1.
"TRANSITION AGREEMENTS" means the following -- which were entered into
by Micro, Industries, Entertainment, and certain other Persons in connection
with a series of related transactions through which Micro and Entertainment
ceased to be Subsidiaries of Industries -- each as in effect on the date as of
which it was entered into or, as stated below, amended and restated, without
giving effect to any amendment, modification, or supplement after that date
other than any amendment, modification, or supplement (individually or with all
amendments, modifications, and supplements to any of the following taken as a
whole) does not materially alter the terms of any of the following or adversely
affect Micro or any of its Subsidiaries:
(a) Amended and Restated Exchange Agreement dated as of
September 4, 1996, as amended and restated as of October 17, 1996,
among Industries, Micro, Entertainment, and each other Person listed on
its signature pages.
EUROPEAN CREDIT AGREEMENT
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(b) Amended and Restated Reorganization Agreement dated as of
September 4, 1996, as amended and restated as of October 17, 1996,
among Industries, Micro, and Entertainment.
(c) Registration Rights Agreement dated as of November 6,
1996, among Micro and the other Persons listed on its signature pages.
(d) Board Representation Agreement.
(e) Amended and Restated Stock Option, SAR and ISU Conversion
and Exchange Agreement dated as of September 4, 1996, as amended and
restated as of October 17, 1996, among Industries, Micro, and
Entertainment, and each other Person listed on its signature pages.
(f) Master Services Agreement dated as of November 6, 1996,
between Industries and Micro.
(g) Data Center Services Agreement dated as of November 6,
1996, among Micro, ▇▇▇▇▇▇ Book Company (a division of Industries), and
Entertainment.
(h) Tax Sharing and Tax Services Agreement dated as of
November 6, 1996, among Industries, Entertainment, and Micro.
(i) Employee Benefits Transfer and Assumption Agreement dated
as of November 6, 1996, among Industries, Micro, and Entertainment.
(j) Risk Management Agreement dated as of November 6, 1996,
between among Industries and Micro.
(k) Thrift Plan Liquidity Agreement dated as of November 6,
1996, between Micro and the Ingram Thrift Plan.
"UNITED KINGDOM" means The United Kingdom of Great Britain and Northern
Ireland.
"U.S. CREDIT AGREEMENT" means the Credit Agreement dated as of October
30, 1996, among Micro, Coordination Center, Micro Singapore, Micro Canada, the
various financial institutions parties thereto as lenders, NationsBank and
Scotiabank, respectively, as the administrative agent and the documentation
agent for those lenders, and the co-agents named therein, as renewed, extended,
amended, or restated.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States, and the District of Columbia.
"VALUE ADDED TAX" means value added tax as provided for in the Value
Added Tax ▇▇▇ ▇▇▇▇ and legislation (or purported legislation and whether
delegated or otherwise) supplemental thereto or in any primary or secondary
legislation promulgated by the European Union or any official body or agency
thereof.
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34
"VOTING STOCK" means, (a) with respect to a corporation, the stock of
such corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect members of the board of directors (or other
governing body) of such corporation, (b) with respect to any partnership, the
partnership interests in such partnership the owners of which are entitled to
manage the affairs of the partnership or vote in connection with the management
of the affairs of the partnership or the designation of another Person as the
Person entitled to manage the affairs of the partnership, and (c) with respect
to any limited liability company, the membership interests in such limited
liability company the owners of which are entitled to manage the affairs of such
limited liability company or entitled to elect managers of such limited
liability company (it being understood that, in the case of any partnership or
limited liability company, "shares" of Voting Stock shall refer to the
partnership interests or membership interests therein, as the case may be).
"WELFARE PLAN" means a "welfare plan," as such term is defined in
Section 3(l) of ERISA.
"WITHDRAWING LENDER" is defined in CLAUSE (A) of SECTION 2.2.
"WON" means the lawful currency of the Republic of Korea.
"YEN" means the lawful currency of Japan.
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meaning as when used in the Disclosure Schedule and in
each Credit Extension Request, each other Loan Document, and each notice and
other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article, Section, clause
or definition are references to such clause or definition of this Agreement or
such other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section, clause or definition to any section are
references to such section of such Article, Section, clause or definition.
SECTION 1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS.
(a) Unless otherwise specified, all accounting terms used
herein or in any other Loan Document shall be interpreted, and all
accounting determinations and computations hereunder or thereunder
(including under SECTION 8.2.3) shall be made, in accordance with those
U.S. generally accepted accounting principles ("GAAP") as applied in
the preparation of the financial statements of Micro and its
Consolidated Subsidiaries delivered pursuant to CLAUSE (a) of SECTION
6.1.5; provided that the financial statements required to be delivered
pursuant to CLAUSES (a) and (b) of SECTION 8.1.1 shall be prepared in
accordance with GAAP as in effect from time to time and the quarterly
financial statements required to be delivered pursuant to CLAUSE (B) of
SECTION 8.1.1 are not required to contain footnote disclosures required
by GAAP and shall be subject to ordinary year-end adjustments.
(b) If, after the date hereof, there shall be any change to
Micro's Fiscal Year, or
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any modification in GAAP used in the preparation of the financial
statements delivered pursuant to CLAUSE (a) of SECTION 6.1.5 (whether
such modification is adopted or imposed by FASB, the American Institute
of Certified Public Accountants or any other professional body) which
changes result in a change in the method of calculation of financial
covenants, standards or terms found in this Agreement, the parties
hereto agree promptly to enter into negotiations in order to amend such
financial covenants, standards or terms so as to reflect equitably such
changes, with the desired result that the evaluations of Micro's
financial condition shall be the same after such changes as if such
changes had not been made; provided that until the parties hereto have
reached a definitive agreement on such amendments, Micro's financial
condition shall continue to be evaluated on the same principles as
those used in the preparation of the financial statements delivered
pursuant to CLAUSE (a) of SECTION 6.1.5.
SECTION 1.5 CALCULATIONS. All calculations made for purposes of this
Agreement, each other Loan Document, and the transactions contemplated by them
shall be made to two decimal places except (a) calculations shall be with whole
numbers in respect of the exchange rate for Lira, Pesetas, Yen, Belgian Francs,
Won, and any other currency for which that is the custom in the relevant
currency exchange market at any time and (b) as otherwise specifically stated in
this Agreement or any other Loan Document.
SECTION 1.6 ROUND AMOUNTS. Unless otherwise specifically stated in this
Agreement or any other Loan Document, each requirement that Credit Extensions,
repayments, and reductions in Commitments be in certain Dollar minimums and
integral multiples shall, in respect of dealings in another Available Currency,
be deemed to be rounded amounts in that other Available Currency that
approximate those Dollar minimums and multiples.
ARTICLE II
COMMITMENTS, ETC.
SECTION 2.1 COMMITMENTS. On the terms and subject to the conditions of
this Agreement (including ARTICLE VI), each Lender severally agrees that it
will, from time to time on any Business Day occurring prior to the Commitment
Termination Date:
(a) make loans in Available Currencies ("PRO-RATA REVOLVING
LOANS") to either Primary Borrower equal to such Lender's Adjusted
Percentage of the aggregate amount of the Borrowing to be made on such
Business Day, all in accordance with SECTION 3.1; provided that no
Lender shall be permitted or required to make any Pro-Rata Revolving
Loan if, after giving effect thereto:
(i) such Lender's Outstanding Credit Extensions
consisting of Pro-Rata Credit Extensions would exceed an
amount equal to such Lender's Percentage multiplied by the
then Total Credit Commitment Amount; or
(ii) the aggregate Outstanding Credit Extensions of
all the Lenders would exceed the then Total Credit Commitment
Amount; and
(b) purchase participation interests in Available Currencies
equal to its Adjusted
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Percentage in each Pro-Rata Letter of Credit issued upon the
application of either Primary Borrower pursuant to SECTION 3.1 provided
that no Issuer (with respect to Pro-Rata Letters of Credit) shall issue
a Pro-Rata Letter of Credit if, after giving effect thereto:
(i) the aggregate Letter of Credit Outstandings would
exceed the then Letter of Credit Limit; or
(ii) the aggregate Outstanding Credit Extensions of
all the Lenders would exceed the then Total Credit Commitment
Amount.
On and subject to the conditions hereof, the Primary Borrowers may from time to
time borrow, prepay and reborrow Pro-Rata Revolving Loans and may apply for,
extinguish or reimburse drawings made under and re-apply for Pro-Rata Letters of
Credit. For purposes of this SECTION 2.1 and SECTION 3.3.3, the Dollar Amount on
any date of any Credit Extension denominated in an Available Currency (other
than Dollars) shall be calculated based upon the spot rate at which Dollars are
offered on such day for such Available Currency which appears on Telerate Page
261 at approximately 11:00 a.m. (London time) (and if such spot rate is not
available on Telerate Page 261 as of such time, such spot rate as quoted by
Scotiabank, in London at approximately 11:00 a.m. London time).
SECTION 2.2 EXTENSIONS OF THE COMMITMENT TERMINATION DATE.
(a) If the Commitment Termination Date has not occurred, Micro
may -- on any Business Day occurring after May 1st and before June 30th
of the year (for purposes of this SECTION 2.2, the "THEN-CURRENT YEAR")
immediately preceding the year in which the then-effective Commitment
Termination Date occurs -- deliver to each Lender (with a copy to the
Administrative Agent) three counterparts of a Commitment Extension
Request appropriately completed. That Commitment Extension Request may
be for a one-year (365-day or, if appropriate, 366-day) period, for a
two-year (730-day or, if appropriate 731-day) period, or for one or
both in the same Commitment Extension Request (each a requested
"EXTENSION PERIOD"). The Commitment Extension Request shall be
delivered in accordance with SECTION 11.2, except that acknowledgment
of receipt by the recipient is required before it is deemed to have
been delivered.
(i) By July 31st of the then-current year, each
Lender shall (by appropriately completing, executing, and
delivering to Micro and the Administrative Agent the
Commitment Extension Request delivered to it) indicate whether
or not it intends to extend its Commitment pursuant to this
SECTION 2.2 in respect of either of the one or two Extension
Periods requested by Micro. Any Lender failing to return its
Commitment Extension Request to Micro as provided in the
preceding sentence shall be deemed to have declined the
extension of its Commitment as contemplated by this SECTION
2.2 in respect of each of the Extension Periods requested by
Micro.
(ii) By August 15th of the then-current year, the
Administrative Agent shall notify (for purposes of this
SECTION 2.2, the "LENDER BALLOT NOTICE") all of the Lenders as
to (A) the identity of each Lender who has indicated its
intention not to extend its
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Commitment in respect of either of the one or two Extension
Periods requested by Micro ("WITHDRAWING LENDER"), (B) each
Lender who has agreed to extend its Commitment in respect of
one or both of the Extension Periods requested by Micro
("REMAINING LENDER"), and (C) which Remaining Lender has
agreed to which Extension Period if two were requested by
Micro.
(b) If, as of the date the Administrative Agent delivers the
Lender ballot notice, neither Scotiabank nor NationsBank shall be a
Remaining Lender and the Remaining Lenders in respect of each Extension
Period requested by Micro shall hold less than a total of 65% of the
Commitments, then, by August 31st of the then-current year, each
Remaining Lender may revoke (by delivering written notice thereof to
Micro and the Administrative Agent) its consent to extension of its
Commitment for each of the Extension Periods requested by Micro,
thereby becoming a Withdrawing Lender as of the day of that revocation.
(i) After the date that the Administrative Agent
delivers the Lender ballot notice and by September 15th of the
then-current year, the Remaining Lenders may assume any
Withdrawing Lender's Commitment in proportion to their
respective share of those Remaining Lenders' Commitments.
(ii) If, as of September 30th of the then-current
year, the Remaining Lenders in respect of each Extension
Period requested by Micro hold less than a total of 65% of the
Commitments (after giving effect to any assumptions of any
Withdrawing Lenders' Commitment under the preceding sentence
on or before that date), then (A) all of the Lenders'
Commitments shall terminate and (B) any Outstanding Credit
Extensions shall mature and be payable in full on the
then-effective Commitment Termination Date.
(iii) A one-year Extension Period does not
automatically become effective if a Commitment Extension
Request for a two-year period fails to become effective as
provided in this CLAUSE (B), and vice versa.
(c) If, as of September 30th of the then-current year, the
Remaining Lenders in respect of an Extension Period requested by Micro
hold a total of at least 65% of the Commitments (after giving effect to
any assumptions of the Commitments of any Withdrawing Lenders'
Commitments under CLAUSE (b) above on or before that date), THEN each
Remaining Lender's Commitment (including any Commitments assumed by any
Remaining Lender under CLAUSE (b) above) shall be extended for that
Extension Period from the then-effective Commitment Termination Date,
subject to CLAUSE (f) below.
(i) If the requirements for extension of the
Commitments shall be satisfied, then -- after October 1st of
the then-current year but by 30 days before the then-effective
Commitment Termination Date -- Micro may enter into an
agreement with one or more new financial institutions
reasonably acceptable to the Agents or with any Remaining
Lender to assume the Withdrawing Lenders' Commitments that
have not been assumed under CLAUSE (b) above.
(ii) Any Commitments assumed by Remaining Lenders or
new financial institutions under CLAUSE (i) above shall be
extended for the foregoing Extension Period from the
then-effective Commitment Termination Date, subject to CLAUSE
(f) below.
(iii) If Micro requests both a one-year and a
two-year Extension Period and
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both would become effective under this section, then the
two-year Extension Period shall become effective under this
section; provided that any Lender that did not agree to a
two-year Extension Period but that did agree to a one-year
Extension Period shall then become a Withdrawing Lender.
(d) If the Commitments are extended in accordance with this
section, then Outstanding Credit Extensions made by any Withdrawing
Lender that are not assumed or purchased under CLAUSE (B) or (C) above
shall mature and be payable in full on the then-effective Commitment
Termination Date, and the Commitments of each such Withdrawing Lender
shall thereupon terminate.
(i) On the then-effective Commitment Termination
Date, the Total Credit Commitment Amount shall be
automatically reduced by an amount equal to the product of (A)
the total Percentages of all the Withdrawing Lenders that were
not assumed or purchased under CLAUSES (b) or (c) above times
(B) the Total Credit Commitment Amount on that Commitment
Termination Date immediately before that calculation.
(ii) The Percentages of the Remaining Lenders shall
be adjusted by the Administrative Agent based upon each such
Remaining Lender's pro rata share of the remaining Total
Credit Commitment Amount.
(e) Each Lender's decision to extend its Commitment or assume
or purchase any Withdrawing Lender's Commitment shall be exercised by
it in its sole and absolute discretion without reference to any stated
desires of any other Lender Party or Micro. All assignments made under
this SECTION 2.2 shall be made in accordance with SECTION 11.11.1,
except that any such assignment (i) may be in any minimum or multiple
amount resulting from the operation of this SECTION 2.2 and (ii) shall
not require the consent of Micro or the Administrative Agent.
(f) Any extension of Commitments under this SECTION 2.2 shall
become effective only upon (i) the satisfaction of the requirements for
extension stated above and (ii) the delivery by Micro to the
Administrative Agent and each Lender, on or before the then-effective
Commitment Termination Date, of copies of such other legal opinions,
approvals, instruments, or documents as the Agents may reasonably
request.
SECTION 2.3 REDUCTIONS OF THE COMMITMENT AMOUNTS. Micro may, from time
to time on any Business Day, voluntarily reduce the Total Credit Commitment
Amount; provided that:
(a) All such reductions shall require at least three and not
more than five Business Days' prior notice to the Administrative Agent
and shall be permanent, and any partial reduction thereof shall be in a
minimum amount of $10,000,000 and in an integral multiple of $1,000,000
(or, if less, in an amount equal to the Total Credit Commitment Amount
at such time);
(b) Micro shall not voluntarily reduce the Total Credit
Commitment Amount pursuant to this section to an amount which, on the
date of proposed reduction, is less than the aggregate Outstanding
Credit Extensions of all the Lenders; and
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(c) Once so reduced, the Total Commitment Amount may not be
increased.
SECTION 2.4 INELIGIBLE CURRENCIES. Notwithstanding any other provision
in this Agreement, if, at any time before the Commitment Termination Date, the
Administrative Agent determines that an Available Currency is an Ineligible
Currency, then (a) the Administrative Agent may (in its sole discretion) at any
time so notify the relevant Primary Borrower of any Borrowing denominated in
that Ineligible Currency, and (b) the Commitments of the Lenders to make
Pro-Rata Revolving Loans in that Available Currency shall be suspended unless
and until the Administrative Agent determines that such Available Currency is no
longer an Ineligible Currency. Promptly after receiving that notice and, in any
event, within five Business Days of receiving the same, that Primary Borrower
will notify the Administrative Agent and the Lenders as to what Available
Currency it desires that Borrowing to be converted into and promptly thereafter
the relevant Lenders shall so convert that Borrowing on the last day of its
Interest Period. If the relevant Primary Borrower fails to select another
Available Currency as provided in the preceding sentence, then that other
Available Currency shall be selected by the Administrative Agent. The conversion
shall be effected at the relevant spot rate at which the Ineligible Currency is
offered on that last day for the selected Available Currency that appears on
Telerate Page 261 at approximately 11:00 a.m. London time (and if such spot rate
is not available on Telerate Page 261 as of that time, the spot rate as quoted
by Scotiabank in London at approximately 11:00 a.m. London time) or, if that
spot rate shall not exist, such other rate of exchange as the Administrative
Agent shall reasonably determine.
ARTICLE III
PROCEDURES FOR PRO-RATA CREDIT EXTENSIONS AND
PROVISIONS FOR NON-RATA CREDIT EXTENSIONS
SECTION 3.1 BORROWING PROCEDURE FOR PRO-RATA REVOLVING LOANS.
(a) On any Business Day occurring on or prior to the
Commitment Termination Date, either Primary Borrower may from time to
time irrevocably request, by delivering on or prior to 1:00 p.m.,
London time, on such Business Day a Borrowing Request to the
Administrative Agent not less than three nor more than five Business
Days before the date of the proposed Borrowing, that a Borrowing be
made in a minimum amount of $10,000,000 and an integral multiple of
$1,000,000, or if less, in the unused amount of the Total Credit
Commitment Amount. Upon the receipt of each Borrowing Request, the
Administrative Agent shall give prompt notice thereof to each Lender on
the same day such Borrowing Request is received. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be
made on the Business Day specified in such Borrowing Request. On or
before 2:30 p.m., London time, on such Business Day, each Lender shall
deposit with the Administrative Agent (to an account specified by the
Administrative Agent to each Lender from time to time) same day funds
in an amount equal to such Lender's Adjusted Percentage of the
requested Borrowing.
(b) To the extent funds are received from the Lenders (except
as otherwise provided in SECTION 10.2), the Administrative Agent shall
make such funds available to the relevant Primary Borrower by wire
transfer of same day funds to the accounts such Primary
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Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Pro-Rata Revolving Loan shall be affected by any
other Lender's failure to make any Pro-Rata Revolving Loan.
SECTION 3.2 PRO-RATA LETTER OF CREDIT ISSUANCE PROCEDURES. By delivering
to the Administrative Agent an Issuance Request on or before 1:00 p.m., London
time, on any Business Day occurring prior to the Commitment Termination Date,
either Primary Borrower may from time to time request that an Issuer (with
respect to Pro-Rata Letters of Credit) issue a Pro-Rata Letter of Credit. Each
such request shall be made on not less than two Business Days' notice (or such
shorter period as may be agreed to by the Administrative Agent), and not less
than 30 days prior to the Commitment Termination Date. Upon receipt of an
Issuance Request, the Administrative Agent shall promptly on the same day notify
the applicable Issuer (if other than NationsBank or Scotiabank) and each Lender
thereof. Each Pro-Rata Letter of Credit shall by its terms be denominated in an
Available Currency and be stated to expire (whether originally or after giving
effect to any extension) on a date (its "STATED EXPIRY DATE") no later than
three days prior to the Commitment Termination Date. The relevant Primary
Borrower and the relevant Issuer may amend or modify any issued Pro-Rata Letter
of Credit upon written notice to the Administrative Agent only; provided that
(A) any amendment constituting an extension of such Pro-Rata Letter of Credit's
Stated Expiry Date shall comply with the provisions of the immediately preceding
sentence and may be made only if the Commitment Termination Date has not
occurred and (B) any amendment constituting an increase in the Stated Amount of
such Pro-Rata Letter of Credit shall be deemed a request for the issuance of a
new Pro-Rata Letter of Credit and shall comply with the foregoing provisions of
this paragraph. Upon satisfaction of the terms and conditions hereunder, the
relevant Issuer will issue each Pro-Rata Letter of Credit to be issued by it and
will make available to the beneficiary thereof the original of such Pro-Rata
Letter of Credit.
SECTION 3.2.1 OTHER LENDERS' PARTICIPATION. Automatically, and without
further action, upon the issuance of each Pro-Rata Letter of Credit, each Lender
(other than the Issuer of such Pro-Rata Letter of Credit) shall be deemed to
have irrevocably purchased from the relevant Issuer, to the extent of such
Lender's Adjusted Percentage (and without giving effect to the outstanding
Non-Rata Credit Extensions, if any, of any Lender), a participation interest in
such Pro-Rata Letter of Credit (including any Pro-Rata Reimbursement Obligation
and any other Contingent Liability with respect thereto), and such Lender shall,
to the extent of its Adjusted Percentage, be responsible for reimbursing
promptly (and in any event within one Business Day after receipt of demand for
payment from the Issuer, together with accrued interest from the day of such
demand) the relevant Issuer for any Pro-Rata Reimbursement Obligation which has
not been reimbursed in accordance with SECTION 3.2.3. In addition, such Lender
shall, to the extent of its Adjusted Percentage, be entitled to receive a
ratable portion of the Pro-Rata Letter of Credit participation fee payable
pursuant to CLAUSE (a) of SECTION 4.3.3 with respect to each Pro-Rata Letter of
Credit and a ratable portion of any interest payable pursuant to SECTIONS 3.2.2
and 4.2.
SECTION 3.2.2 DISBURSEMENTS. Subject to the terms and provisions of each
Pro-Rata Letter of Credit and this Agreement, upon presentment under any
Pro-Rata Letter of Credit to the Issuer thereof for payment, such Issuer shall
make such payment to the beneficiary (or its designee) of such Pro-Rata Letter
of Credit on the date designated for such payment (the "DISBURSEMENT DATE").
Such Issuer will promptly notify the relevant Primary Borrower and each of the
Lenders of the presentment for payment of any such Pro-Rata Letter of Credit,
together with notice of the Disbursement Date thereof. Prior to 12:00 noon,
London time, on the next Business Day following the Disbursement Date, Micro
will reimburse the Administrative Agent, for the account of such Issuer, for all
amounts disbursed under such
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Pro-Rata Letter of Credit, together with all interest accrued thereon since the
Disbursement Date. To the extent the Administrative Agent does not receive
payment in full, on behalf of the relevant Issuer on the Disbursement Date, the
relevant Primary Borrower's Pro-Rata Reimbursement Obligation shall accrue
interest, payable on demand, at an annual rate equal to the Reference Rate
through the first Business Day following the Disbursement Date and equal to the
sum of the Reference Rate plus 0.50% thereafter. In the event the relevant
Primary Borrower fails to notify the Administrative Agent and the relevant
Issuer prior to 1:00 p.m., London time, on the Disbursement Date that the
relevant Primary Borrower intends to pay the Administrative Agent, for the
account of such Issuer, for the amount of such drawing with funds other than
proceeds of Pro-Rata Revolving Loans, or the Administrative Agent does not
receive such reimbursement payment from the relevant Primary Borrower prior to
1:00 p.m., London time on the Disbursement Date (or if the relevant Issuer must
for any reason return or disgorge such reimbursement), the Administrative Agent
shall promptly notify the Lenders, and the relevant Primary Borrower shall be
deemed to have given a timely Borrowing Request as of the Disbursement Date for
Pro-Rata Revolving Loans in an aggregate principal amount equal to such Pro-Rata
Reimbursement Obligation and the Lenders (including the relevant Issuer) shall,
on the terms and subject to the conditions of this Agreement (including, without
limitation, SECTIONS 6.1 and 6.2 hereof), make Pro-Rata Revolving Loans in the
amount of such Pro-Rata Reimbursement Obligation as provided in SECTION 3.1;
provided that for the purpose of determining the availability of any unused
Total Credit Commitment Amount immediately prior to giving effect to the
application of the proceeds of such Pro-Rata Revolving Loans, such Pro-Rata
Reimbursement Obligation shall be deemed not to be outstanding at such time. In
the event that the conditions precedent to any Pro-Rata Revolving Loans deemed
requested by the relevant Primary Borrower as provided in the preceding sentence
shall not be satisfied at the time of such deemed request, the Lenders
(including the relevant Issuer) shall make demand loans on such date for the
benefit of the relevant Primary Borrower, ratably, in accordance with their
respective Adjusted Percentages, which loans shall: (a) aggregate in principal
amount an amount equal to the applicable Pro-Rata Reimbursement Obligations; (b)
be applied solely to the prompt satisfaction of such Pro-Rata Reimbursement
Obligations; (c) be payable by the relevant Primary Borrower upon demand; and
(d) accrue interest on the unpaid principal amount thereof from (and including)
the date on which such demand loan is made until the date such loan is paid by
the relevant Primary Borrower in full, at an annual rate equal to the Reference
Rate plus 2%.
SECTION 3.2.3 REIMBURSEMENT. The obligation (the "PRO-RATA REIMBURSEMENT
OBLIGATION") of the relevant Primary Borrower under SECTION 3.2.2 to reimburse
the relevant Issuer with respect to each disbursement under a Pro-Rata Letter of
Credit (including interest thereon), and, upon the failure of the relevant
Primary Borrower to reimburse such Issuer, the obligation of each Lender to
reimburse such Issuer, shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the relevant Primary Borrower or such Lender, as the case may be,
may have or have had against the relevant Issuer or any Lender, including any
defense based upon the failure of any disbursement under a Pro-Rata Letter of
Credit to conform to the terms of the applicable Pro-Rata Letter of Credit (if,
in the relevant Issuer's good faith opinion, such disbursement is determined to
be appropriate) or any non-application or misapplication by the beneficiary of
the proceeds of such Pro-Rata Letter of Credit; provided that nothing herein
shall require the relevant Primary Borrower or such Lender, as the case may be,
to reimburse an Issuer for any wrongful disbursement made by such Issuer under a
Pro-Rata Letter of Credit as a result of acts or omissions finally determined by
a court of competent jurisdiction to constitute gross negligence or willful
misconduct on the part of such Issuer.
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SECTION 3.2.4 DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in SECTION 9.1.9 or,
with notice from the Administrative Agent given at the direction of the Required
Lenders, upon the occurrence and during the continuation of any other Event of
Default, an amount equal to the then aggregate amount of all Letters of Credit
(including Non-Rata Letters of Credit) which are undrawn and available under all
issued and outstanding Letters of Credit shall, without demand upon or notice to
any Borrower, be deemed to have been paid or disbursed by the Issuer under such
Letters of Credit (notwithstanding that such amount may not in fact have been so
paid or disbursed) and the Primary Borrowers shall be immediately obligated to
pay to the Issuer of each Letter of Credit an amount equal to such amount. Any
amounts so payable by the relevant Primary Borrower pursuant to this section
shall be deposited in cash with the Administrative Agent and held in trust (for
the sole benefit of the relevant Issuer and the Lenders) for payment of the
Obligations arising in connection with such Letters of Credit. If such Event of
Default shall have been cured or waived (and provided no other Default has
occurred and is continuing and the Obligations have not been accelerated
pursuant to SECTION 9.2 or 9.3), the Administrative Agent shall promptly return
to the relevant Primary Borrower all amounts deposited by it with the
Administrative Agent pursuant to this clause (together with accrued interest
thereon at the Administrative Agent's Cost of Funds or such other interest rate
based upon a cash equivalent investment (in the form of obligations issued by or
guaranteed by the U.S. government, commercial paper of a domestic corporation
rated A-1 by S&P or a comparable rating from another nationally recognized
rating agency or certificates of deposit of a U.S. or Canadian bank with (x) a
credit rating of Aa or better by S&P or a comparable rating from another
nationally recognized rating agency and (y) a combined capital and surplus
greater than $250,000,000) which is agreed to between the relevant Issuer and
the relevant Primary Borrower), net of any amount (which may include accrued
interest) applied to the payment of any Obligations with respect to the Pro-Rata
Letters of Credit.
SECTION 3.2.5 NATURE OF REIMBURSEMENT OBLIGATIONS. Each Primary Borrower
and, to the extent set forth in SECTION 3.2.1, each Lender shall assume all
risks of the acts, omission or misuse of any Letter of Credit by the beneficiary
thereof. No Issuer (with respect to Pro-Rata Letters of Credit and Non-Rata
Letters of Credit) or any Lender (except to the extent of its own gross
negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with
the application for an issuance of a Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason:
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit; provided
that if a payment is made pursuant to such Letter of Credit when a
beneficiary has failed to comply with the conditions therefor and such
failure to comply is manifest on the face of such Letter of Credit or
the documents submitted by the beneficiary in connection therewith, the
relevant Primary Borrower shall be required to indemnify the Issuer in
connection therewith only if, and to the extent, the relevant Primary
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Borrower or any of its Subsidiaries has received the benefit of such
payment on such Letter of Credit by one or more of their obligations
being satisfied, either in whole or in part;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, telecopy or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing (but
subject to the limitations set forth in CLAUSE (c) above), any action taken or
omitted to be taken by an Issuer in good faith (and not constituting gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction) shall be binding upon the relevant Primary Borrower and, with
respect to Pro-Rata Letters of Credit, each Lender, and shall not put such
Issuer under any resulting liability to either Primary Borrower or, with respect
to Pro-Rata Letters of Credit, any Lender.
SECTION 3.2.6 INELIGIBLE CURRENCIES. Notwithstanding any other provision
contained in this Agreement, if, at any time prior to the Commitment Termination
Date, any Lender determines that the Available Currency in which a Pro-Rata
Letter of Credit has been issued is an Ineligible Currency, then such Lender may
(in its sole discretion) at any time notify the Administrative Agent and the
relevant Primary Borrower of the same, and the Administrative Agent shall then
promptly notify each other Lender. Such relevant Primary Borrower shall use
reasonable efforts to cause the beneficiary of such Pro-Rata Letter of Credit to
accept a substitution for such Pro-Rata Letter of Credit with another Pro-Rata
Letter of Credit in an Available Currency acceptable to such Primary Borrower
and the relevant Issuer.
SECTION 3.3 NON-RATA REVOLVING LOAN FACILITY.
SECTION 3.3.1 NON-RATA REVOLVING LOANS. Any Borrower may from time to
time, on any Business Day prior to the Commitment Termination Date, request that
any Lender make a Loan under this Agreement (relative to such Lender, a
"NON-RATA REVOLVING LOAN") denominated in any Available Currency. The Borrower
shall make such request to the applicable office of such Lender set forth on
that Lender's signature page to this Agreement or to such other office as a
Lender may notify the Borrowers pursuant to SECTION 11.2. Such Lender may in its
sole and absolute discretion agree to make or not make such Non-Rata Revolving
Loan, it being understood and agreed that the Lenders' Commitments only require
the making by them of Pro-Rata Revolving Loans and participation in or issuance
of Pro-Rata Letters of Credit (subject to the terms and conditions contained
herein). Except as otherwise provided herein and subject in each case to the
satisfaction of the applicable conditions precedent set forth in SECTIONS 6.1
and 6.2 hereof, each Non-Rata Revolving Loan shall be made on the terms and
conditions agreed to between the relevant Borrower and the relevant Lender;
provided that the direct and contingent Obligations of each Primary Borrower
with respect to each Pro-Rata Credit Extension shall rank pari passu with that
Primary Borrower's direct and contingent Obligations with respect to each
Non-Rata Revolving Loan to each Borrower.
SECTION 3.3.2 INELIGIBLE CURRENCIES. Notwithstanding any other provision
contained in this Agreement, if, at any time before the Commitment Termination
Date, the relevant Lender of a Non-
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Rata Revolving Loan determines that the Available Currency in which that
Non-Rata Revolving Loan has been made is an Ineligible Currency, then that
Lender may (in its sole discretion) at any time notify the relevant Borrower of
the same. Promptly after receiving that notice and, in any event, within five
Business Days of receiving the same, that Borrower will notify that Lender as to
what Available Currency it desires that Non-Rata Revolving Loan to be converted
into and promptly thereafter that Lender shall so convert that Non-Rata
Revolving Loan. If the relevant Borrower fails to select another Available
Currency as provided in the preceding sentence, then that other Available
Currency shall be selected by the relevant Lender. The conversion shall be
effected at the relevant spot rate at which the Ineligible Currency is offered
on that day for the selected Available Currency that appears on Telerate Page
261 at approximately 11:00 a.m. London time (and if the spot rate is not
available on Telerate Page 261 as of that time, the spot rate as quoted by
Scotiabank in London at approximately 11:00 a.m. London time) or, if that spot
rate shall not exist, such other rate of exchange as the relevant Lender shall
reasonably determine.
SECTION 3.3.3 LIMITATIONS ON MAKING NON-RATA REVOLVING LOANS. No Lender
shall be permitted to make any Non-Rata Revolving Loan if, after giving effect
thereto (with the Dollar Amounts being calculated as provided in the last
sentence of SECTION 2.1):
(a) the aggregate Outstanding Credit Extensions of all the
Lenders would exceed the then Total Credit Commitment Amount; or
(b) the aggregate Outstanding Credit Extensions consisting of
Non-Rata Credit Extensions would exceed the Non-Rata Limit.
SECTION 3.3.4 PROCEDURE FOR MAKING NON-RATA REVOLVING LOANS. Subject to
the terms and conditions of this Agreement, including SECTION 3.3.1, the terms
of each Non-Rata Revolving Loan shall be mutually agreed upon between the
relevant Borrower and the relevant Lender. If the relevant Borrower and the
relevant Lender agree to an interest rate for a Non-Rata Revolving Loan by
reference to a fixed rate of interest (such as, for example, the LIBO Rate) to
be subsequently determined and such Lender subsequently determines (which
determination shall be conclusive and binding on the relevant Borrower and such
Lender) on or prior to the scheduled date of making such Non-Rata Revolving Loan
and promptly notifies the relevant Borrower that such interest rate is
unascertainable or that deposits in the relevant interbank market are not
available to such Lender in the relevant Available Currency, then such Lender
(except to the extent otherwise agreed between such Lender and the relevant
Borrower) shall not be obligated to make such Non-Rata Revolving Loan. In
connection with each Lender agreeing to make a Non-Rata Revolving Loan
calculated based upon a fixed rate of interest, such Lender shall, in accordance
with its customary practices, attempt to determine the relevant interest rate or
obtain the relevant deposits in the relevant Available Currency necessary to
make such Non-Rata Revolving Loan.
SECTION 3.3.5 MATURITY OF NON-RATA REVOLVING LOANS. Subject to SECTION
3.3.2, each Non-Rata Revolving Loan shall be repaid in the Available Currency in
which such Loan was made on the Maturity thereof or on any earlier date agreed
upon by the relevant Borrower and the relevant Lender or required by the other
terms and conditions of this Agreement. Each Borrower may prepay any Non-Rata
Revolving Loan on such terms and conditions as such Borrower and the relevant
Lender may agree.
SECTION 3.3.6 NON-RATA REVOLVING LOAN RECORDS. Subject to SECTION 3.3.7,
each Lender's Non-Rata Revolving Loans shall be evidenced by a loan account
maintained by such Lender.
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Each Borrower hereby irrevocably authorizes the relevant Lender to make (or
cause to be made) appropriate account entries, which account entries, if made,
shall evidence, inter alia, the date of, the type of, the currency of, the
advance period (if applicable) of, the Maturity of, the outstanding principal
of, interest payable on and any repayments of Non-Rata Revolving Loans made by
such Lender to such Borrower pursuant hereto. Any such account entries
indicating the outstanding principal amount of such Lender's Non-Rata Revolving
Loans and interest payable thereon shall be prima facie evidence of the
principal amount thereof owing and unpaid and interest payable thereon, but the
failure to make any such entry shall not limit or otherwise affect the
obligations of any Borrower hereunder to make payments of principal of or
interest on such Non-Rata Revolving Loans when due.
SECTION 3.3.7 QUARTERLY REPORT. During the period commencing on the date
hereof and ending on the Commitment Termination Date, Micro shall submit
(together with each set of reports and financial statements of Micro and its
Consolidated Subsidiaries delivered pursuant to SECTION 8.1.1 (a) and (b)) a
Quarterly Report to the Administrative Agent in respect of the most recently
ended Fiscal Period. In addition, Micro agrees to provide to the Administrative
Agent updates with respect to the information provided in the Quarterly Reports
at such other times as the Administrative Agent may reasonably request from time
to time.
SECTION 3.4 NON-RATA LETTER OF CREDIT FACILITY.
SECTION 3.4.1 NON-RATA LETTERS OF CREDIT. Any Borrower may from time to
time, on any Business Day prior to the Commitment Termination Date, request that
any Lender issue a letter of credit (relative to such Lender, a "NON-RATA LETTER
OF CREDIT" denominated in any Available Currency. Such Lender may in its sole
and absolute discretion agree to issue or not issue such Non-Rata Letter of
Credit, it being understood and agreed that the Lenders' Commitments only
require the making by them of Pro- Rata Revolving Loans and participation in or
issuance of Pro-Rata Letters of Credit (subject to the terms and conditions
contained herein). Except as, otherwise provided herein and subject in each case
to the satisfaction of the applicable conditions precedent set forth in SECTIONS
6.1 and 6.2 hereof, each Non-Rata Letter of Credit shall be issued on the terms
and conditions agreed to between the relevant Borrower and the relevant Lender;
provided that the direct and contingent Obligations of each Primary Borrower
with respect to each Pro-Rata Credit Extension shall rank pari passu with that
Primary Borrower's direct and contingent Obligations with respect to each
Non-Rata Letter of Credit for each Borrower.
SECTION 3.4.2 INELIGIBLE CURRENCIES. Notwithstanding any other provision
contained in this Agreement, if, at any time prior to the Commitment Termination
Date, the relevant Issuer of a Non-Rata Letter of Credit determines that the
Available Currency in which such Non-Rata Letter of Credit has been issued is an
Ineligible Currency, then such Issuer may (in its sole discretion) at any time
notify the relevant Borrower of the same. Such Borrower shall use reasonable
efforts to cause the beneficiary of such Non-Rata Letter of Credit to accept a
substitution for such Non-Rata Letter of Credit with another Non-Rata Letter of
Credit in an Available Currency acceptable to such Borrower and such Issuer,
which substitute Non-Rata Letter of Credit shall be issued in accordance with
SECTION 3.4.1.
SECTION 3.4.3 LIMITATIONS ON ISSUING NON-RATA LETTERS OF CREDIT. Subject
to the last sentence of SECTION 2.1, no Lender shall be permitted to issue any
Non-Rata Letters of Credit if, after giving effect thereto:
(a) the aggregate Outstanding Credit Extensions of all the
Lenders would exceed
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the then Total Credit Commitment Amount; or
(b) the aggregate Outstanding Credit Extensions consisting of
Non-Rata Credit Extensions would exceed the Non-Rata Limit.
SECTION 3.4.4 PROCEDURES FOR ISSUING NON-RATA LETTERS OF CREDIT. Subject
to the terms and conditions of this Agreement, including SECTION 3.4.1, the
terms of each Non-Rata Letter of Credit shall be mutually agreed upon between
the relevant Borrower and the relevant Issuer.
SECTION 3.4.5 DISBURSEMENTS. Subject to the terms and provisions of each
Non-Rata Letter of Credit and this Agreement, upon presentment of any Non-Rata
Letter of Credit to the relevant Issuer thereof for payment, such Issuer shall
make such payment to the beneficiary (or its designee) of such Non-Rata Letter
of Credit on the date designated for such payment (the "NON-RATA DISBURSEMENT
DATE"). Such Issuer will promptly notify the relevant Borrower of the
presentment for payment of any such No Rata Letter of Credit, together with
notice of the Non-Rata Disbursement Date thereof. Prior to 12:00 noon, London
time, on the next Business Day following the Non-Rata Disbursement Date, the
relevant Borrower will reimburse such Issuer for all amounts disbursed under
such Non-Rata Letter of Credit, together with all interest, if any, that such
Borrower shall have agreed to pay that shall have accrued thereon since the
Non-Rata Disbursement Date.
SECTION 3.4.6 REIMBURSEMENT. The obligation (the "NON-RATA REIMBURSEMENT
OBLIGATION") of the relevant Borrower under SECTION 3.4.5 to reimburse an Issuer
with respect to each disbursement under a Non-Rata Letter of Credit (including
interest thereon) issued by such Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which such Borrower or any other Borrower may have or have
had against such Issuer, including any defense based upon the failure of any
disbursement under a Non-Rata Letter of Credit to conform to the terms of the
applicable Non-Rata Letter of Credit (if, in the applicable Issuer's good faith
opinion, such disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Non-Rata Letter of Credit; provided that nothing herein shall require such
Borrower to reimburse the applicable Issuer for any wrongful disbursement made
by such Issuer under a Non-Rata Letter of Credit as a result of acts or
omissions finally determined by a court of competent jurisdiction to constitute
gross negligence or willful misconduct on the part of such Issuer. Subject to
SECTION 3.4.2, each Non-Rata Letter of Credit shall be reimbursed in the
Available Currency in which such Non-Rata Letter of Credit was issued.
SECTION 3.5 REPORTING OF NON-RATA CREDIT EXTENSIONS.
(a) Each Borrower agrees to provide to (or cause to be
provided to) the Administrative Agent notice of each Non-Rata Credit
Extension made to or for it concurrently with or promptly after the
making of such Non-Rata Credit Extension, which notice shall set forth
(i) the date thereof, (ii) the principal amount thereof stated in the
relevant Available Currency (and, with respect to all Available
Currencies other than the Dollar, the corresponding Dollar Amount
thereof as of such date), (iii) the Interest Period, if any, applicable
thereto, (iv) the aggregate Dollar Amount of the relevant Lender's
outstanding or undrawn Non-Rata Credit Extensions as of such date, and
(v) the identity of the relevant Lender.
(b) Each Lender agrees to provide to the Administrative Agent
notice, by 12:00 p.m. London time on the Business Day immediately after
the date of any Non-Rata Credit
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Extension made by it, of the Outstanding Credit Extensions comprised of
Non-Rata Credit Extensions made by such Lender, which notice shall set
forth (i) the date of each such Non-Rata Credit Extension, (ii) the
principal amount or Stated Amount, as the case may be, of each such
Non-Rata Credit Extension stated in the relevant Available Currency
(and the corresponding Dollar Amount thereof as of such date), and the
aggregate Dollar Amount of all such Non-Rata Credit Extensions as of
such date, (iii) the respective Interest Periods applicable thereto,
and (iv) the identity of such Lender.
Article IV
PRINCIPLE, INTEREST, AND FEE PAYMENTST
SECTION 4.1 LOAN ACCOUNTS, NOTES, PAYMENTS, AND PREPAYMENTS. The
Outstanding Credit Extensions shall be evidenced by one or more loan accounts or
records maintained by (a) the Administrative Agent in respect of Pro-Rata Credit
Extensions and (b) each Lender in respect of its Non-Rata Credit Extensions,
which loan accounts or records, in each case, shall be conclusive evidence,
absent manifest error, of the amount of those Outstanding Credit Extensions and
the interest and principal payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the Obligations
of the relevant Borrower under the Loan Documents to pay any amount owing with
respect to the Obligations. Upon the request of any Lender made at any time
through the Administrative Agent, the relevant Borrowers shall promptly execute
and deliver to that Lender the relevant one or more Notes.
SECTION 4.1.1 REPAYMENTS AND PREPAYMENTS OF PRO-RATA REVOLVING LOANS.
The relevant Primary Borrower shall make all payments and prepayments of each
Pro-Rata Revolving Loan made to it in the Available Currency in which it was
originally denominated and shall repay in full the unpaid principal amount of
each Pro-Rata Revolving Loan outstanding to it at the Maturity thereof. Before
that Maturity:
(a) the relevant Borrower may, from time to time on any
Business Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Pro-Rata Revolving Loan; provided
that:
(i) any such prepayment of any Pro-Rata Revolving
Loan shall be allocated to each Lender pro rata according to
such Lender's Adjusted Percentage (calculated on the date such
Pro-Rata Revolving Loans were made) of the Pro-Rata Revolving
Loans so prepaid (and, for the avoidance of doubt, no such
prepayment shall be allocated to any Lender which did not
participate in the making of the Pro-Rata Revolving Loans to
be prepaid);
(ii) no such prepayment of any Pro-Rata Revolving
Loan may be made on any day other than the last day of the
Interest Period then applicable to such Pro-Rata Revolving
Loan unless all the losses or expenses incurred by the Lenders
in connection therewith pursuant to SECTION 5.4 are paid in
full contemporaneously with such prepayments;
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(iii) all such voluntary prepayments shall require
prior notice to the Administrative Agent of at least three but
no more than five Business Days; and
(iv) all such voluntary prepayments shall, if other
than a prepayment in whole, be in an aggregate minimum amount
of $10,000,000 and an integral multiple of $1,000,000;
(b) Micro shall determine if the aggregate Outstanding Credit
Extensions of all the Lenders exceed the Total Credit Commitment Amount
(i) at the end of each Fiscal Period and (ii) on the date of each
request for a Credit Extension (excluding any request submitted in
respect of any continuation of any Borrowing previously made
hereunder), and promptly thereafter -- and in any event (A) in respect
of any determination made pursuant to CLAUSE (i) above, no later than
the next date on which Micro shall be required to submit a Quarterly
Report in accordance with SECTION 3.3.7 or (B) in respect of any
determination made pursuant to CLAUSE (ii) above, prior to the proposed
date of such requested Credit Extension -- Micro shall (or shall cause
the other Borrowers to) make a mandatory prepayment of the outstanding
principal amount of such Loans as Micro may select in an amount equal
to such excess, such prepayment to be allocated to the Lenders in such
manner as Micro may elect (provided that a prepayment of a Pro-Rata
Revolving Loan shall be allocated to the Lenders in the manner set
forth in CLAUSE (a)(i) above); and
(c) Micro shall (and shall cause the other relevant Borrowers
to), on each date when any reduction or termination in the Total Credit
Commitment Amount shall become effective, including pursuant to SECTION
2.3, make a mandatory prepayment of all Pro-Rata Revolving Loans equal
to the excess, if any, of the then aggregate Outstanding Credit
Extensions of all the Lenders over the Total Credit Commitment Amount
as so reduced, such prepayment to be allocated to the Lenders in the
manner set forth in CLAUSE (a)(i).
SECTION 4.2 INTEREST PROVISIONS. Each Pro-Rata Revolving Loan shall bear
interest from and including the day when made until (but not including) the day
such Pro-Rata Revolving Loan shall be paid in full, and such interest shall
accrue and be payable in accordance with this SECTION 4.2.
SECTION 4.2.1 RATES.
(a) PRO-RATA REVOLVING LOANS. Subject to SECTIONS 4.2.2 and
5.1, each Pro-Rata Revolving Loan shall bear an annual rate of
interest, during each Interest Period applicable thereto, equal to the
sum of (i) the LIBO Rate for such Interest Period, (ii) the Applicable
Margin, plus (iii) in respect of Pro-Rata Revolving Loans denominated
in Sterling, the MLA Costs.
(b) NON-RATA REVOLVING LOANS. Pursuant to the terms agreed to
between the relevant Borrower and the relevant Lender, each Borrower
shall pay interest on the aggregate principal amount of any Non-Rata
Revolving Loan outstanding to any Lender from time to time prior to and
at Maturity at a rate agreed between each such Borrower and such Lender
pursuant to SECTION 3.3 in connection with the making of such Non-Rata
Revolving Loan. Such interest rate shall include any compensation for
reserves or similar costs incurred in connection with such Non-Rata
Revolving Loan.
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SECTION 4.2.2 POST-MATURITY RATES. After the date any principal amount
of any Loan is due and payable (whether at Maturity, upon acceleration or
otherwise), or after any other monetary Obligation of Micro or any other
Borrower shall have become due and payable, Micro or each such other Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at an annual rate equal to the Reference Rate
plus 2%.
SECTION 4.2.3 CONTINUATION ELECTIONS. The relevant Primary Borrower may
from time to time by delivering a Continuation Notice to the Administrative
Agent on or before 1:00 p.m., London time, on a Business Day, irrevocably elect,
on not less than three nor more than five Business Days' notice, that all, or
any portion in an aggregate minimum amount of $10,000,000 and an integral
multiple of $1,000,000 of the Pro-Rata Revolving Loans, be continued for one or
more new Interest Periods; provided that:
(a) in the absence of delivery of a Continuation Notice with
respect to any Pro-Rata Revolving Loan, at least three Business Days
(but not more than five Business Days) before the last day of the then
current Interest Period with respect thereto, that Pro-Rata Revolving
Loan shall, on such last day, automatically continue for a new Interest
Period having a duration equal to the original duration of the then
expiring Interest Period; and
(b) no portion of the outstanding principal amount of any
Pro-Rata Revolving Loans may be continued with an Interest Period
longer than one month while any Default has occurred and is continuing.
SECTION 4.2.4 PAYMENT DATES.
(a) PRO-RATA REVOLVING LOANS. Interest accrued on each
Pro-Rata Revolving Loan shall be payable, without duplication, in the
Available Currency in which it is denominated:
(i) on the Stated Maturity Date therefor;
(ii) on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Pro-Rata
Revolving Loan (but only on the principal amount so paid or
prepaid);
(iii) on the last day of each applicable Interest
Period (and, if such Interest Period shall exceed three
months, on each three month anniversary of the date of the
commencement of such Interest Period); and
(iv) on that portion of any Loans the Stated Maturity
Date of which is accelerated pursuant to SECTION 9.2 or 9.3,
immediately upon such acceleration.
Interest accrued on Pro-Rata Revolving Loans or other monetary Obligations
arising under this Agreement or any other Loan Document after the date such
Pro-Rata Revolving Loans or other Obligations are due and payable (whether on
the Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.
(b) NON-RATA REVOLVING LOANS. Subject to SECTION 3.3.2, each
Borrower shall pay interest on the aggregate principal amount of any
Non-Rata Revolving Loan outstanding in
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the Available Currency in which such Loan was made to the relevant
Lender from time to time prior to and at Maturity on such dates agreed
between such Borrower and such Lender pursuant to SECTION 3.3 in
connection with the making of such Non-Rata Revolving Loan.
SECTION 4.2.5 INTEREST RATE DETERMINATION. The Administrative Agent and,
if and when applicable, the Reference Lenders shall, in accordance with each of
their customary practices, attempt to determine the relevant interest rates
applicable to each Pro-Rata Revolving Loan requested to be made pursuant to each
Borrowing Request duly completed and delivered by a Primary Borrower, and, if
and when applicable, each Reference Lender agrees to furnish the Administrative
Agent timely information for the purpose of determining the LIBO Rate. If any
Reference Lender fails, if and when applicable, to timely furnish such
information to the Administrative Agent for any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of the
information shared by the other Reference Lenders.
SECTION 4.2.6 ADDITIONAL INTEREST ON PRO-RATA REVOLVING LOANS. For so
long as the cost to a Lender of making or maintaining its Pro-Rata Revolving
Loans is increased as a result of any imposition or modification after the date
of this Agreement of any reserve required to be maintained by such Lender
against Eurocurrency Liabilities (or any other category of liabilities which
includes deposits by reference to which the interest rate on Pro-Rata Revolving
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of such Lender to United
States residents but not duplicating any requirement included in the calculation
of MLA Costs), then such Lender may require Micro to pay, contemporaneously with
each payment of interest on the Pro-Rata Revolving Loans, additional interest on
the related Pro-Rata Revolving Loan of such Lender at a rate per annum up to but
not exceeding the excess of (i) (A) the applicable LIBO Rate divided by (B) one
minus the LIBOR Reserve Percentage over (ii) the applicable LIBO Rate. Any
Lender wishing to require payment of such additional interest shall so notify
Micro and the Administrative Agent (which notice shall set forth the amount (as
determined by such Lender) to which such Lender is then entitled under this
SECTION 4.2.6 (which amount shall be consistent with such Lender's good faith
estimate of the level at which the related reserves are maintained by it and
which determination shall be conclusive and binding for all purposes, absent
demonstrable error) and shall be accompanied by such information as to the
computation set forth therein as Micro may reasonably request), in which case
such additional interest on the Pro-Rata Revolving Loans of such Lender shall be
payable on the last day of each Interest Period thereafter (commencing with the
Interest Period beginning at least three Business Days after the giving of such
notice) to such Lender at the place indicated in such notice. Each Lender that
receives any payment in respect of increased costs pursuant to this section
shall promptly notify Micro of any change with respect to such costs which
affects the amount of additional interest payable pursuant to this section in
respect thereof.
SECTION 4.3 FEES. Micro (and, in the case of SECTION 4.3.3(D), each
relevant Borrower) agrees to pay the fees set forth in this SECTION 4.3. All
such fees shall be nonrefundable and shall be paid in Dollars to each such
Lender or the relevant Issuer at its office specified for such purpose on the
signature pages hereof.
SECTION 4.3.1 ADMINISTRATION FEES. Micro agrees to pay directly to the
Administrative Agent, for its own account, an annual administration fee in the
amounts and on the dates set forth in the Fee Letter.
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SECTION 4.3.2 FACILITY FEES. Coordination Center agrees to pay to the
Administrative Agent for the account of each Lender (including, any portion
thereof when the Lenders may not extend any Credit Extensions by reason of the
inability of Micro to satisfy any condition of SECTION 6.1 or 6.2) (a) for each
day during the period commencing on the date hereof and continuing through and
including the date the Administrative Agent shall receive the reports and
financial statements of Micro and its Consolidated Subsidiaries required to be
delivered pursuant to SECTION 8.1.1(b) hereof -- together with the Compliance
Certificate required to be delivered contemporaneously therewith pursuant to
SECTION 8.1.1(d) hereof -- for the Fiscal Period ending on the Saturday nearest
September 30, 1997, a fee to each Lender on its Credit Commitment Amount on such
day (without taking into account usage) at a rate of 0.125% per annum, and (b)
for each day during the period commencing on the date immediately following the
date the Administrative Agent shall receive the reports, financial statements
and Compliance Certificate referred to in CLAUSE (a) above, until but excluding
the Commitment Termination Date, a fee to each Lender on its Credit Commitment
Amount on such day (without taking into account usage) at the corresponding rate
per annum set forth below, determined by reference to: (i) the lower of the two
highest ratings from time to time assigned to Micro's long-term senior unsecured
debt by S&P, Mood s and Fitch and either published or otherwise evidenced in
writing by the applicable rating agency and made available to the Administrative
Agent (including both "express" and "indicative" or "implied" (or equivalent)
ratings) or (ii) the ratio (calculated pursuant to CLAUSE (c) of SECTION 8.2.3)
of Consolidated Funded Debt to Consolidated EBITDA for the Fiscal Period most
recently ended prior to such day for which financial statements and reports have
been received by the Administrative Agent pursuant to SECTION 8.1(a) or (b),
whichever results in the lower rate:
MICRO'S LONG-TERM UNSECURED DEBT RATINGS RATIO OF CONSOLIDATED FUNDED
BY S&P, ▇▇▇▇▇'▇ OR FITCH, RESPECTIVELY DEBT TO CONSOLIDATED EBITDA FACILITY FEE
------------------------------------- --------------------------- ------------
A-, A3 or A- (or higher) Less than 1.50 0.090%
BBB+, Baal or BBB+ Greater than or equal to 1.50, but less than 2.00 0.110%
BBB, Baa2 or BBB Greater than or equal to 2.00, but less than 2.50 0.125%
BBB-, Baa3 or BBB- Greater than or equal to 2.50, but less than 3.00 0.150%
▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.00, but less than 3.25 0.200%
Lower than ▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.25 0.250%
Such fee shall be calculated by Coordination Center as at each Quarterly Payment
Date, commencing on the first Quarterly Payment Date to occur after the date
hereof, and on the Commitment Termination Date and shall be payable by
Coordination Center in arrears on each Quarterly Payment Date and on the
Commitment Termination Date.
SECTION 4.3.3 LETTER OF CREDIT FEES.
(a) Micro agrees to pay to the Administrative Agent for the
account of each Lender (including the relevant Issuer) a Pro-Rata
Letter of Credit participation fee equal to each Lender's Adjusted
Percentage of the average daily Stated Amount of each Pro-Rata Letter
of Credit during the applicable period multiplied by the Applicable
Margin then in effect for any Pro-Rata Revolving Loan. Such
participation fee shall accrue from the date of issuance of any
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Pro-Rata Letter of Credit until the date such Pro-Rata Letter of Credit
is drawn in full or terminated, and shall be payable in arrears on each
Quarterly Payment Date and on the date that the Commitments terminate
in their entirety.
(b) Micro agrees to pay to the Administrative Agent for the
account of the Issuer of each Pro-Rata Letter of Credit a Pro-Rata
Letter of Credit issuance fee of 0.125 of 1% per annum of the average
daily Stated Amount of such Pro-Rata Letter of Credit during the
applicable period, such fee to be payable for the account of the
relevant Issuer in quarterly installments in arrears on each Quarterly
Payment Date and on the date that the Commitments terminate in their
entirety, Micro agrees to reimburse each Issuer, on demand, for all
usual out-of-pocket costs and expenses incurred in connection with the
issuance or maintenance of any Pro-Rata Letter of Credit issued by such
Issuer.
(c) The Administrative Agent shall pay to each Lender and each
Issuer fees paid for its account under CLAUSE (a) or (b) above promptly
after receipt by the Administrative Agent.
(d) Each Borrower agrees to pay directly to the relevant
Issuer of each Non-Rata Letter of Credit requested by such Borrower a
letter of credit fee equal to such amount and at such times as such
Borrower and the applicable Issuer shall agree in connection with the
issuance of such Non-Rata Letter of Credit.
SECTION 4.4 RATE AND FEE DETERMINATIONS. Interest on each Pro-Rata
Revolving Loan shall be computed on the basis of a year consisting of 360 days
(or 365 or 366, as the case may be, for Pro-Rata Revolving Loans denominated in
Sterling or Belgian Francs) and fees shall be computed on the basis of a year
consisting of 365 or 366 days, as the case may be, in each case paid for the
actual number of days elapsed, calculated as to each period from and including
the first day thereof to but excluding the last day thereof. All determinations
by the Administrative Agent of the rate of interest payable with respect to any
Pro-Rata Revolving Loan shall be conclusive and binding in the absence of
demonstrable error.
SECTION 4.5 OBLIGATIONS IN RESPECT OF NON-RATA CREDIT EXTENSIONS. Micro
hereby acknowledges and agrees that notwithstanding any provision hereof or of
any other Loan Document to the contrary, all Obligations of the Obligors in
respect of any Non-Rata Credit Extensions shall be the joint and several
liabilities of Micro.
ARTICLE V
CERTAIN PAYMENT PROVISIONS
SECTION 5.1 ILLEGALITY; CURRENCY RESTRICTIONS.
(a) If, as the result of any Regulatory Change, any Lender
shall determine (which determination shall, in the absence of
demonstrable error, be conclusive and binding on each Borrower), that
it is unlawful for such Lender to make any Loan, issue any Letter of
Credit, or continue any Loan previously made by it hereunder in respect
of the LIBO Rate, as the case may be, the obligations of such Lender to
make any such Loan, issue any such Letter of Credit, or continue any
such Loan in respect of the LIBO Rate, as the case may be, shall, upon
the giving
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of notice thereof to the Administrative Agent, Micro, and any other
applicable Borrower, forthwith be suspended and each applicable
Borrower shall, if requested by such Lender and if required by such
Regulatory Change, on such date as shall be specified in such notice,
prepay to such Lender in full all of such Loans or convert all of such
Loans into a Cost of Funds Rate Loan that is not unlawful, in each case
on the last day of the Interest Period applicable thereto (unless
otherwise required by applicable law) and without any penalty
whatsoever (but subject to SECTION 5.4); provided that such Lender
shall make as Cost of Funds Loans all Loans that such Lender would
otherwise be obligated to make Loans at the LIBO Rate and convert into
or continue as Cost of Funds Loans all Loans that such Lender would
otherwise be required to convert into or continue as Loans at the LIBO
Rate, in each case during the period any such suspension is effective.
Such suspension shall continue to be effective until such Lender shall
notify the Administrative Agent and Micro that the circumstances
causing such suspension no longer exist, at which time the obligations
of such Lender to make any such Loan, issue any Letter of Credit, or
continue any Loan, as the case may be, shall be reinstated.
(b) If any central bank or other governmental authorization in
the country of the proposed Available Currency of any proposed Loan is
required to permit the use of such Available Currency by a Lender
(through its Lending Office) for such Loan and such authorization has
not been obtained (provided that such Lender has used reasonable
endeavors to obtain such authorization) or is not in full force and
effect, the obligation of such Lender to provide such Loans shall be
suspended so long as such authorization is required and has not been
obtained by such Lender.
SECTION 5.2 DEPOSITS UNAVAILABLE.
(a) If, before the date on which all or any portion of any
Pro-Rata Revolving Loan bearing interest in respect of the LIBO Rate is
to be made, maintained, or continued the Administrative Agent shall
have determined (which determination shall be conclusive and binding),
with respect to that Pro-Rata Revolving Loan that:
(i) Deposits in the relevant amount and the relevant
Available Currency and for the relevant Interest Period are
available, if and when applicable, to none of the Reference
Lenders in the relevant market, or
(ii) by reason of circumstances affecting the London
interbank market adequate means do not exist for ascertaining
the interest rate applicable under this Agreement in respect
of the relevant LIBO Rate,
then, upon notice from the Administrative Agent to Micro and the
Lenders, the obligations of the Lenders to make or continue any
Pro-Rata Revolving Loan bearing interest in respect of the LIBO Rate in
such Available Currency under SECTIONS 3.1 and 4.2.3 shall forthwith be
suspended until the Administrative Agent shall notify Micro and the
Lenders that the circumstances causing such suspension no longer exist.
(b) If a notification under this SECTION 5.2 applies to Loan
which is outstanding and that is not going to be converted at the end
of its Interest Period to another Available Currency for which the LIBO
Rate is available, then, notwithstanding any other provision of this
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Agreement:
(i) within five Business Days of receipt of the
notification, the Borrowers and the Administrative Agent shall
enter into negotiations for a period of not more than 30 days
with a view to agreeing an alternative basis for determining
the rate of interest and/or funding applicable to that Loan at
the end of its applicable Interest Period;
(ii) any alternative basis agreed under CLAUSE (i)
above shall be, with the prior consent of all the Lenders,
binding on all of the Obligors and Lender Parties;
(iii) if no alternative basis is agreed, each Lender
shall (through the Administrative Agent) certify on or before
the last day of the Interest Period to which the notification
relates an alternative basis for maintaining its participation
in that Loan;
(iv) any such alternative basis may include an
alternative method of fixing the interest rate, alternative
Interest Periods or alternative currencies but it must reflect
the cost to the Lender of funding its participation in the
Loan from whatever sources it may select plus the Applicable
Margin; and
(v) each alternative basis so certified shall be
binding on the Obligors and the certifying Lender and treated
as part of this Agreement.
SECTION 5.3 INCREASED CREDIT EXTENSION COSTS, ETC. Each Borrower agrees
to reimburse each Lender within 30 days after any demand for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, maintaining, participating, issuing or
extending (or of its obligation to make, maintain, participate, issue or extend)
any Credit Extension to the extent such increased cost or reduced amount is due
to a Regulatory Change. Such Lender shall provide to the Administrative Agent
and the relevant Borrower a certificate stating, in reasonable detail, the
reasons for such increased cost or reduced amount and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the relevant Borrower
directly to such Lender upon its receipt of such notice, and such notice shall
be rebuttable, presumptive evidence of the additional amounts so owing. In
determining such amount, such Lender shall act reasonably and in good faith and
may use any method of averaging and attribution that it customarily uses for its
other borrowers with a similar credit rating as Micro. Such Lender may demand
reimbursement for such increased cost or reduced amount only for the 360-day
period immediately preceding the date of such written notice, and Micro shall
have liability only for such period.
SECTION 5.4 FUNDING LOSSES. If any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to make,
continue, or extend any portion of the principal amount of any Loan) as a result
of:
(a) any repayment or prepayment of the principal amount of any
Loan on a date other than the scheduled last day of the Interest Period
or, in the case of any Non-Rata Revolving Loan, other relevant funding
period applicable thereto, whether pursuant to SECTION 4.1 or
otherwise;
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(b) any conversion of the currency of any Pro-Rata Revolving
Loan on a date other than the scheduled last day of the Interest
Period; or
(c) any Loan not being made, continued, or converted in
accordance with the Credit Extension Request therefor in the case of
any Pro-Rata Credit Extension Request or the instructions of the
relevant Borrower to the relevant Lender in the case of any Non-Rata
Credit Extension as a consequence of any action taken, or failed to be
taken, by any Obligor,
then, upon the written notice of such Lender to the relevant Borrower (with a
copy to the Administrative Agent), such Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall be rebuttable presumptive evidence of the amount of any such loss
or expense that has been so incurred.
SECTION 5.5 INCREASED CAPITAL COSTS. If any Regulatory Change affects or
would affect the amount of capital required or expected to be maintained by any
Lender or any Person controlling such Lender, and such Lender determines (in its
sole and absolute discretion) that the rate of return on its or such controlling
Person's capital as a consequence of its participation in this Agreement or the
making, continuing, participating in or extending of any Credit Extension is
reduced to a level below that which such Lender or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case, upon the relevant Borrower's receipt of written notice thereof from such
Lender (with a copy to the Administrative Agent), such Borrower shall pay
directly to such Lender additional amounts sufficient to compensate such Lender
or such controlling Person for such reduction in rate of return. A statement of
such Lender as to any such additional amounts (including calculations thereof in
reasonable detail) shall be rebuttable, presumptive evidence of the additional
amounts so owing. In determining such amount, such Lender may use any method of
averaging and attribution that it shall deem applicable. Such Lender may demand
payment for such additional amounts that have accrued only during the 360-day
period immediately preceding the date of such written notice and Micro shall
have liability only for such period.
SECTION 5.6 DISCRETION OF LENDERS AS TO MANNER OF FUNDING.
Notwithstanding any provision of this Agreement to the contrary, the Lenders
shall be entitled to fund and maintain their funding of all or any part of their
Loans and other Credit Extensions in any manner they elect, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
with respect to a Pro-Rata Revolving Loan shall be made as if each Lender had
actually funded and maintained each Loan through its Lending Office and through
the purchase of deposits having a maturity corresponding to the maturity of such
Pro-Rata Revolving Loan. Any Lender may, if it so elects, fulfill any commitment
or obligation to make or maintain Loans or other Credit Extensions by causing a
branch or affiliate to make or maintain such Loans or other Credit Extensions;
provided that, in such event, such Loans or other Credit Extensions shall be
deemed for the purposes of this Agreement to have been made by such Lender
through its applicable Lending Office, and the obligation of Micro to repay such
Loans shall nevertheless be to such Lender at its Lending Office and shall be
deemed held by such Lender through its applicable Lending Office, to the extent
of such Loan, for the account of such branch or affiliate. Notwithstanding the
foregoing or the fact that different Affiliates for a Lender under this
Agreement may have executed this Agreement or the Lender Assignment Agreement by
which it has become a Lender under this Agreement, all of those Lending Offices
and signatories shall be treated under the Loan
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Documents as but one Lender for purposes of calculations of Adjusted Percentage,
Percentage, Commitment, Required Lenders, and modifications, amendments,
waivers, consents, and approvals under SECTION 11.1 and other provisions of the
Loan Documents.
SECTION 5.7 TAXES.
(a) All payments by any Obligor of principal of, and interest
and fees on, any Credit Extension and all other amounts payable
hereunder or under any other Loan Document shall be made free and clear
of and without deduction for any present or future income, excise,
stamp or franchise taxes, and other taxes, fees, duties, withholdings,
or other charges of any nature whatsoever imposed by any taxing
authority with respect to such payments, but excluding first, franchise
taxes and taxes imposed on or measured by any Lender Party's gross or
net income, profits, or receipts and, second, taxes, or other charges
of any nature imposed by any taxing authority on any Lender Party that
do not result from any Regulatory Change and that are not imposed on
any class of bank having the same general characteristics as such
Lender Party (such non-excluded items being called "TAXES"). In the
event that any withholding or deduction from any payment to be made by
any Obligor hereunder is required in respect of any Taxes pursuant to
any applicable law, rule, or regulation, then such Obligor will:
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the relevant Lender Party an
official receipt or other documentation satisfactory to such
Lender Party evidencing such payment to such authority; and
(iii) pay directly to the relevant Lender Party for
its own account such additional amount or amounts as is or are
necessary to ensure that the net amount actually received by
such Lender Party will equal the full amount such Lender Party
would have received had no such withholding or deduction been
required.
(b) Moreover, if any Taxes are directly asserted against any
Lender Party with respect to any payment received by such Lender Party
hereunder, such Lender Party may pay such Taxes and the relevant
Obligor will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net
amount received by such Lender Party after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount
such Lender Party would have received had not such Taxes been asserted.
(c) If the relevant Obligor fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the relevant
Lender Parties entitled thereto the required receipt or other required
documentary evidence, such Obligor shall indemnify such Lender Parties
for any incremental Taxes, interest or penalties that may become
payable by any Lender Party as a result of any such failure.
(d) The following provisions govern exceptions to the tax
indemnification provisions of this SECTION 5.7 and related matters.
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(i) In respect of its Credit Extensions to Micro,
each Lender Party organized under the laws of a jurisdiction
outside the United States -- on or before the date of its
execution and delivery of this Agreement (if an original
signatory to this Agreement) or the date on which it otherwise
becomes a Lender Party, on or before the date of any change in
any its Lending Office, and from time to time thereafter if
requested in writing by Micro (but only so long as that Lender
Party remains lawfully liable to do so) -- shall provide Micro
and the Administrative Agent with a properly completed and
duly executed U.S. Internal Revenue Service Form 1001 or 4224,
as appropriate, or any successor form prescribed by the U.S.
Internal Revenue Service.
(ii) In respect of its other Credit Extensions and by
its execution and delivery of this Agreement or of a Lender
Assignment Agreement, as the case may be, each Lender Party
(A) represents and warrants to the Borrowers and the
Administrative Agent that, in respect of payments under the
Loan Documents by Coordination Center, such Lender Party is
entitled to receive those payments free and clear without any
obligation on the part of Coordination Center or the
Administrative Agent to make deduction for or on account of
any income taxes imposed by The Kingdom of Belgium and (B)
covenants and agrees with the Borrowers and the Administrative
Agent that it shall promptly notify Micro and the
Administrative Agent if it becomes aware that the foregoing
representation and warranty is incorrect.
(iii) A Lender Party is not entitled to
indemnification under this SECTION 5.7 with respect to the
applicable Taxes for any period during which either (i) the
Lender Party has failed to provide Micro and the
Administrative Agent with the applicable U.S. Internal Revenue
Service form if required under CLAUSE (i) above (unless that
failure is due to a change in treaty, law, or regulation
occurring after the date on which the applicable form
originally was required to be provided) in respect of U.S.
withholding taxes, or (ii) the representation and warranty by
it in CLAUSE (ii)(a) above is incorrect in respect of Belgian
or United Kingdom withholding taxes.
(iv) Notwithstanding CLAUSE (iii) above to the
contrary, if a Lender Party that is otherwise exempt from or
subject to a reduced rate of withholding tax becomes subject
to United States withholding tax because of its failure to
deliver an Internal Revenue Service form required hereunder,
then Micro shall take such steps as that Lender Party shall
reasonably request to assist that Lender Party to recover the
applicable withholding tax.
(e) If any Obligor pays any additional amount under this
SECTION 5.7 (a "TAX PAYMENT") and any Lender Party or Affiliate thereof
effectively obtains a refund of tax or credit against tax by reason of
the Tax Payment (a "TAX CREDIT") and such Tax Credit is, in the
reasonable judgment of such Lender Party or Affiliate, attributable to
the Tax Payment, then such Lender Party, after actual receipt of such
Tax Credit or actual receipt of the benefits thereof, shall promptly
reimburse such Obligor for such amount as such Lender Party shall
reasonably determine to be the proportion of the Tax Credit as will
leave such Lender Party (after that reimbursement) in no better or
worse position than it would have been in if the Tax Payment had not
been required; provided that no Lender Party shall be required to make
any such reimbursement if it reasonably believes the making of such
reimbursement would cause it to lose
EUROPEAN CREDIT AGREEMENT
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the benefit of the Tax Credit or would adversely affect in any other respect its
tax position. Subject to the other terms hereof, any claim by a Lender Party for
a Tax Credit shall be made in a manner, order and amount as such Lender Party
determines in its sole and absolute discretion. Except to the extent necessary
for Micro to evaluate any Tax Credit, no Lender Party shall be obligated to
disclose information regarding its tax affairs or computations to any Obligor,
it being understood and agreed that in no event shall any Lender Party be
required to disclose information regarding its tax position that it deems to be
confidential (other than with respect to the Tax Credit).
(f) Each Lender represents to the Administrative Agent that,
in the case of a Lender which is a Lender on the date of this
Agreement, on the date of this Agreement and, in the case of a
Transferee Lender which becomes a Lender after the date of this
Agreement, on the date it becomes a Lender, it is:
(i) either:
(A) not resident in the United Kingdom for
United Kingdom tax purposes; or
(B) a "bank" as defined in section 840A of
the Income and Corporation Taxes Act 1988 and
resident in the United Kingdom; and
(ii) beneficially entitled to the principal and
interest payable by the Administrative Agent to it under this
Agreement;
and shall forthwith notify the Administrative Agent if either
representation ceases to be correct.
SECTION 5.8 PAYMENTS. All payments by an Obligor pursuant to this
Agreement or any other Loan Document, whether in respect of principal, interest,
fees or otherwise, shall be made as set forth in this SECTION 5.8.
SECTION 5.8.1 PRO-RATA CREDIT EXTENSIONS.
(a) All payments (whether in respect of principal, interest or
otherwise) pursuant to this Agreement or any other Loan Document with
respect to Pro-Rata Credit Extensions or any other amount payable
hereunder shall be made by the relevant Borrower in the Available
Currency in which the Obligation was denominated (the "REQUIRED
CURRENCY"). All such payments (other than amounts payable with respect
to Non-Rata Revolving Loans, Non-Rata Reimbursement Obligations, fees
payable pursuant to SECTION 4.3 -- which fees shall be paid by Micro or
the relevant Borrower to the Administrative Agent for the account of
the relevant payee -- 11.3 or 11.4 and payments made to a Terminating
Lender pursuant to SECTION 9.4) shall be made by the relevant Primary
Borrower to the Administrative Agent for the account of each Lender
based upon its Adjusted Percentage in the case of Pro-Rata Letters of
Credit and its Adjusted Percentage in the case of any Pro-Rata
Revolving Loan (such Adjusted Percentage to be calculated on the date
each such Pro-Rata Revolving Loan was made). All such payments required
to be made to the Administrative Agent shall be made, without set-off,
deduction or counterclaim, not later than 1:00 p.m., London time, on
the date when due, in same day or
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immediately available funds, to such account as the Administrative
Agent shall specify from time to time by notice to the relevant Primary
Borrower. Funds received after that time shall be deemed to have been
received by the Administrative Agent on the next succeeding Business
Day. The Administrative Agent shall promptly remit in same day funds to
each Lender its share, if any, of such payments received by the
Administrative Agent for the account of such Lender. Whenever any
payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall, except as otherwise required pursuant
to CLAUSE (d) of the definition of Interest Period, be made on the next
succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest or fees, as the
case may be.
(b) In the case of any payment made pursuant to the preceding
CLAUSE (a) by a Borrower to the Administrative Agent, unless the
Administrative Agent will have received notice from that Borrower prior
to the date on which any such payment is due hereunder that such
Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due to such Lender.
If that Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative
Agent forthwith on demand any such amount distributed to the Lender to
the extent that such amount was not paid by that Borrower to the
Administrative Agent together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at an annual
rate equal to the Administrative Agent's Cost of Funds.
SECTION 5.8.2 NON-RATA OBLIGATIONS. All payments (whether in respect of
principal, interest, fees or otherwise) by any Borrower pursuant to this
Agreement or any other Loan Document with respect to the Non-Rata Credit
Extensions shall be made by such Borrower, in the Required Currency and in same
day or immediately available funds, to the relevant Lender or Issuer, as the
case may be (for its own account), at an account specified by such Lender or
Issuer, as the case may be, from time to time by notice to the relevant
Borrower. All such payments on account of Non-Rata Revolving Loans or Non-Rata
Reimbursement Obligations shall be made on the date due, without set-off,
deduction or counterclaim and at the times agreed to between the relevant
Borrower and the relevant Lender or Issuer, as the case may be. Each Lender that
has made a Non-Rata Revolving Loan agrees to give the Administrative Agent
prompt notice of any payment or failure to pay when due of any amounts owing
with respect to each such Non-Rata Revolving Loan. Each Issuer that has issued a
Non-Rata Letter of Credit agrees to give the Administrative Agent prompt notice
of any payment or failure to pay when due any Non-Rata Reimbursement Obligations
or any other amounts owing with respect to such Non-Rata Letter of Credit.
SECTION 5.9 SHARING OF PAYMENTS.
(a) While no Pro-Rata Distribution Event exists (i) the
Administrative Agent shall remit payments made by the Borrowers to it
pursuant to SECTION 5.8.1, and (ii) and each Lender shall retain for
its own account all payments received by it pursuant to SECTION 5.8.2.
(b) From and after the occurrence (and during the continuance)
of a Pro-Rata Distribution Event:
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(i) the Lenders shall share all collections and
recoveries in respect of the Credit Extensions and Obligations
hereunder on a pro rata basis, based on the respective
Outstanding Credit Extensions of each Lender, including unpaid
principal, interest, indemnities, and fees payable with
respect thereto;
(ii) Micro, each other Borrower, and each other
Obligor shall make payment of all amounts owing under this
Agreement and any other Loan Document (whether in respect of
principal, interest, fees, or otherwise or on account of any
Pro-Rata Credit Extension or Non-Rata Credit Extension) to the
Administrative Agent for the account of the Lenders as
provided in CLAUSE (b)(i) above, and the Administrative Agent
shall promptly remit in same day funds to each Lender its
share, if any, of all payments received by the Administrative
Agent for the account of such Lender; and
(iii) If any Lender Party ever receives or recovers
(whether by set-off or otherwise) any amount in excess of its
share of payments in accordance with CLAUSE (b)(i) above, then
that Lender Party shall within ten days pay to the
Administrative Agent an amount equal to that excess, which the
Administrative Agent shall promptly share with each other
Lender Party so that each Lender Party has thereafter received
the portion of that receipt or recovery to which it was
entitled under CLAUSE (b)(i) above.
(c) Upon the occurrence of a Pro-Rata Distribution Event (i)
if (A) the Outstanding Credit Extensions consisting of Pro-Rata
Extensions of any Lender Party is less than (B) that Lender Party's
Percentage of the then total Outstanding Credit Extensions consisting
of Pro-Rata Credit Extensions owed to all Lender Parties, then (ii)
that Lender Party shall within ten days pay to the Administrative Agent
an amount equal to that deficiency, which the Administrative Agent
shall promptly share with each other Lender Party so that each Lender
Party is thereafter owed its Percentage of all Outstanding Credit
Extensions consisting of Pro-Rata Credit Extensions owed to all Lender
Parties.
(d) In respect of the payments made by a Lender Party (a)
"PAYING LENDER PARTY") to the Administrative Agent that are in turn
paid other Lender Parties under CLAUSES (b)(iii) and (c)(ii) above:
(i) the Administrative Agent shall treat such payment
as if it were a payment by the relevant Obligor to the Lender
Parties who receive payments made by a Paying Lender under
those clauses in respect of amounts owed to those receiving
Lender Parties;
(ii) as between (A) the relevant Obligor and the
Paying Lender Party, the amount paid by the Paying Lender
Party shall be treated as not having been paid, but (B) that
Obligor and the Lender Parties receiving payment under those
clauses, the amount paid by the Paying Lender Party shall been
treated as having been paid to those receiving Lender Parties
to the extent received by them under those clauses; and
(iii) if a Paying Lender Party is subsequently
required to repay to any Obligor any amount received or
recovered by it and paid to the other Lender Parties pursuant
to this CLAUSE (c), then each relevant Lender Party shall
promptly repay to the
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Administrative Agent for the account of the Paying Lender
Party the portion of such amount distributed to it pursuant to
this CLAUSE (c), together with interest thereon at a rate
sufficient to reimburse the Paying Lender Party for any
interest which it has been required to pay to such Obligor in
respect of such portion of such amount.
SECTION 5.10 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender Party is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final but excluding, for the avoidance of doubt, any payment
received pursuant to this Agreement by the Administrative Agent in its capacity
qua Administrative Agent on behalf of the Lenders) at any time held and other
indebtedness at any time due and owing by such Lender Party (in any currency and
at any branch or office) to or for the credit or the account of any Obligor
against any and all of the Obligations of such Obligor now or hereafter existing
under this Agreement or any other Loan Document that are at such time due and
owing, irrespective of whether or not such Lender Party shall have made any
demand under this Agreement or such other Loan Document (other than any notice
expressly required hereby). The rights of each Lender Party under this SECTION
5.10 are in addition to other rights and remedies (including other rights of
set-off) which such Lender Party may have.
SECTION 5.11 JUDGMENTS, CURRENCIES, ETC. The obligation of each Obligor
to make payment of all Obligations in the Required Currency shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment,
which is expressed in or converted into any currency other than the Required
Currency, except to the extent such tender or recovery shall result in the
actual receipt by the recipient at the office required hereunder of the full
amount of the Required Currency expressed to be payable under this Agreement or
any other Loan Document. Without limiting the generality of the foregoing, each
Obligor authorizes the Administrative Agent (or in the case of a Non-Rata
Revolving Loan or any other amount required to be paid to any Lender directly,
the relevant Lender) on any tender or recovery in a currency other than the
Required Currency to purchase in accordance with normal banking procedures the
Required Currency with the amount of such other currency so tendered or
recovered. The obligation of each Obligor to make payments in the Required
Currency shall be enforceable as an alternative or additional cause of action
for the purpose of recovery in the Required Currency of the amount (if any) by
which such actual receipt shall fall short of the full amount of the Required
Currency expressed to be payable under this Agreement or any other Loan
Document, and shall not be affected by judgment being obtained for any other
sums due under this Agreement or such other Loan Document.
SECTION 5.12 REPLACEMENT OF LENDERS. Each Lender hereby severally agrees
that if such Lender (a "SUBJECT LENDER") makes demand upon any Borrower for (or
if any Borrower is otherwise required to pay) amounts pursuant to SECTION 4.2.6,
5.3, 5.5, or 5.7, or if the obligation of such Lender to make Loans is suspended
pursuant to SECTION 5.1(a), such Borrower may, so long as no Event of Default
shall have occurred and be continuing, replace such Subject Lender with another
financial institution pursuant to an assignment in accordance with SECTION
11.11.1; provided that (i) unless such financial institution is a Lender or an
Affiliate of a Lender, such financial institution shall become a Lender only
with the prior written consent of the Administrative Agent, which consent shall
not be unreasonably withheld, and (ii) the purchase price paid by such
designated financial institution shall be in the amount of such Subject Lender's
Loans and its applicable Adjusted Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (including the amounts demanded and unreimbursed
under SECTIONS 4.2.6, 5.3, 5.5, and 5.7),
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owing to such Subject Lender hereunder. Upon the effective date of such
assignment, such designated financial institution shall become a Lender for all
purposes under this Agreement and the other Loan Documents.
SECTION 5.13 CHANGE OF LENDING OFFICE. If Micro or any other Obligor is
required to pay additional amounts to or for the account of any Lender Party
pursuant to SECTION 4.2.6, 5.3, 5.5, or 5.7, or if the obligation of any Lender
to make or continue Loans is suspended pursuant to SECTION 5.1(a), then such
Lender Party will change the jurisdiction of its Lending Office if, in the
judgment of such Lender Party, such change (a) will eliminate or reduce any such
additional payment which may thereafter accrue or will avoid such suspension and
(b) is not otherwise disadvantageous to such Lender Party.
SECTION 5.14 ECONOMIC AND MONETARY UNION.
(a) The parties confirm that the occurrence or non-occurrence
of an EMU Event will not of itself (i) result in any full or partial
discharge (whether by frustration or otherwise), cancellation,
rescission, or termination of this Agreement, (ii) entitle any party
unilaterally to fully or partially cancel, rescind, terminate, or vary
this Agreement, or (iii) result in a Default or Event of Default.
(b) All Obligations, when denominated in the New Currency,
will be governed by the provisions relating to the European Currency
Units mentioned in this Agreement, including those relating to the
rates of commissions, fees, interest, margin, and calculation basis.
(c) The changeover to the New Currency will not in any way
affect any term or condition of this Agreement except to the extent
expressly mentioned in this SECTION 5.14.
ARTICLE VI
CONDITIONS TO MAKING CREDIT EXTENSIONS
AND ACCESSION OF ACCEDING BORROWERS
SECTION 6.1 INITIAL CREDIT EXTENSION. The obligation of each Lender and,
if applicable, any Issuer to make the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this SECTION 6.1.
SECTION 6.1.1 RESOLUTIONS, ETC. The Administrative Agent will have
received from each Obligor a certificate, dated the Effective Date and with
counterparts for each Lender, duly executed and delivered by the Secretary,
Assistant Secretary, or other authorized representative of such Obligor as to:
(a) resolutions of its Board of Directors or its Executive
Committee, as the case may be, then in full force and effect
authorizing the execution, delivery and performance of this Agreement
and the Guaranty and each other Loan Document to be executed by it,
(b) the incumbency and signatures of those of its officers
authorized to act as Authorized Persons for it with respect to this
Agreement and the Guaranty and each other Loan Document to be executed
by it; and
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(c) the Organic Documents of such Obligor (including, without
limitation, with respect to Micro, any amendments, modifications, or
supplements to the Board Representation Agreement since October 30,
1996),
upon which certificate each Lender may conclusively rely until the
Administrative Agent shall have received a further certificate of the Secretary
of the relevant Obligor canceling or amending such prior certificate. In
addition, each Obligor shall, where applicable, have delivered to the
Administrative Agent a good standing certificate from the relevant governmental
regulatory institution of its jurisdiction of incorporation, each such
certificate to be dated a date reasonably near (but prior to) the date of the
initial Credit Extension.
SECTION 6.1.2 EFFECTIVE DATE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, the Effective Date
Certificate, dated the Effective Date and duly executed and delivered by the
chief executive officer, an Authorized Person or the Treasurer of Micro. All
documents and agreements required to be appended to the Effective Date
Certificate shall be in form and substance satisfactory to the Lenders.
SECTION 6.1.3 GUARANTIES, ETC. The Administrative Agent shall have
received, with counterparts for each Lender (a) each of the Guaranties in effect
as of the Effective Date, dated the date hereof, duly executed and delivered by
an Authorized Person of the relevant Guarantor and (b) the Intra-Group
Agreement, dated the date hereof and duly executed by each Borrower that is a
Guarantor.
SECTION 6.1.4 FINANCIAL INFORMATION, ETC. The Administrative Agent shall
have received true and correct copies for each Lender, of
(a) audited consolidated financial statements of Micro and its
Consolidated Subsidiaries for its last Fiscal Year, prepared in
accordance with GAAP free of any Impermissible Qualifications; and
(b) unaudited consolidated financial statements for Micro and
its Consolidated Subsidiaries for the first two Fiscal Periods of the
1997 Fiscal Year, prepared in accordance with GAAP.
SECTION 6.1.5 COMPLIANCE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate, dated as of the Effective Date.
SECTION 6.1.6 CONSENTS, ETC. The Administrative Agent shall have
received evidence satisfactory to it as to the receipt by each Obligor of any
necessary consents or waivers under any agreement applicable to such Obligor in
order to enable such Obligor to enter into this Agreement and any other Loan
Document, to perform its obligations hereunder and thereunder and, in the case
of each Borrower, to obtain Credit Extensions hereunder.
SECTION 6.1.7 CLOSING FEES, EXPENSES, ETC. The Agents, its counsel, and
each Lender shall have received payment in full of all fees, costs, and expenses
under SECTIONS 4.3 and 11.3 to the extent (a) then due and payable and (b)
unless an amount is otherwise provided by the Loan Documents or the Fee Letter
and without waiving the right for subsequent reimbursement in accordance with
the Loan Documents, to the extent that a reasonably detailed invoice is
presented to Micro by October 23, 1997.
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SECTION 6.1.8 OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions of counsel, dated the Effective Date and addressed to the
Documentation Agent, the Administrative Agent and all the Lenders, from:
(a) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of Micro, covering the
matters set forth in EXHIBIT M hereto,
(b) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to Micro, covering
the matters set forth in EXHIBIT N hereto;
(c) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special Belgian counsel to Coordination
Center, covering the matters set forth in EXHIBIT O hereto;
(d) Fogler, Rubinoff, special Canadian counsel to Micro
Canada, covering the matters set forth in EXHIBIT P hereto;
(e) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special Singapore counsel to Micro
Singapore, covering the matters set forth in EXHIBIT Q hereto; and
(f) ▇▇▇▇▇ & Overy, special English counsel to the Agents,
covering the matters set forth in EXHIBIT R hereto.
SECTION 6.1.9 SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant to this ARTICLE VI by or on behalf of each Obligor shall be
satisfactory in form and substance to the Administrative Agent (who may rely
upon the advice of its legal counsel with respect to legal matters in making
such determination), and the Administrative Agent shall have received such
additional information, approvals, opinions, documents, or instruments as the
Administrative Agent or the Required Lenders may reasonably request.
SECTION 6.2 ALL CREDIT EXTENSIONS. The obligation of each Lender to make
any Credit Extension (including the initial Credit Extension) shall be subject
to the satisfaction of each of the additional conditions precedent set forth in
this SECTION 6.2.
SECTION 6.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to such Credit Extension other than any continuation or
conversion (except as otherwise set forth in the initial proviso to this
section) of a Borrowing (but, if any Default of the nature referred to in
SECTION 9.1.5 shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly, of the
proceeds of such Credit Extension to such other Indebtedness), the following
statements shall be true and correct:
(a) the representations and warranties of each Obligor set
forth in ARTICLE VII (excluding, however, those contained in SECTION
7.8) and in any other Loan Document shall be true and correct with the
same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); provided that if any of
the financial statements delivered pursuant to CLAUSE (b) of SECTION
8.1.1 do not present fairly the consolidated financial condition of the
Persons covered
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thereby as of the dates thereof and the results of their operations for
the periods then ended and Micro subsequently delivers one or more
financial statements pursuant to CLAUSE (a) or (b) of SECTION 8.1.1
which, in the opinion of the Required Lenders, effectively cures any
omission or misstatement contained in such prior delivered financial
statement, then the representation and warranty contained in SECTION
7.6 as it relates to such prior delivered financial statement shall be
deemed satisfied for purposes hereof (it being understood and agreed
that such subsequent delivered financial statements shall be deemed to
have cured such earlier delivered inaccurate financial statements
unless the Required Lenders raise an objection with respect thereto);
(b) except as disclosed in ITEM 7.8 (Litigation) of the
Disclosure Schedule:
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or,
to the knowledge of any Obligor, threatened against any
Obligor, or any of their respective Consolidated Subsidiaries
in respect of which there exists a reasonable possibility of
an outcome that would result in a Material Adverse Effect or
that would affect the legality, validity or enforceability of
this Agreement or any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding so disclosed in respect of which
there exists a reasonable possibility of an outcome that would
result in a Material Adverse Effect;
(c) no Default shall have occurred and be continuing, and no
Obligor, nor any of their respective Subsidiaries, shall be in
violation of any law or governmental regulation or court order or
decree which, singly or in the aggregate, results in, or would
reasonably be expected to result in, a Material Adverse Effect; and
(d) the Outstanding Credit Extensions of all the Lenders do
not exceed the Total Credit Commitment Amount (as such amount may be
reduced from time to time pursuant to SECTION 2.3);
provided that in the case of any continuation or conversion of a Borrowing, no
Event of Default shall have occurred and be continuing.
SECTION 6.2.2 CREDIT EXTENSION REQUEST. In the case of any Pro-Rata
Credit Extension the Administrative Agent shall have received the relevant
Credit Extension Request in a timely manner as herein provided for such Pro-Rata
Credit Extension. Delivery of a Credit Extension Request and the acceptance by
Micro or any other Borrower of the proceeds of any Pro-Rata Credit Extension
shall constitute a representation and warranty by each Obligor that, on the date
of making such Pro-Rata Credit Extension (both immediately before and after
giving effect to the making of such Pro-Rata Credit Extension and the
application of the proceeds thereof), the statements made in SECTION 6.2.1 are
true and correct.
SECTION 6.2.3 NON-RATA REVOLVING LOANS. In the case of any requested
Non-Rata Revolving Loan, each of the applicable conditions set forth in SECTIONS
3.3 and 6.2 or otherwise specified by the relevant Lender in connection with
such Non-Rata Revolving Loan shall have been satisfied.
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SECTION 6.2.4 NON-RATA LETTERS OF CREDIT. In the case of any requested
Non-Rata Letter of Credit, each of the applicable conditions set forth in
SECTIONS 3.4 and 6.2 or otherwise specified by the relevant Issuer (with respect
to Non-Rata Letters of Credit) in connection with such Non-Rata Letter of Credit
shall have been satisfied.
SECTION 6.3 ACCEDING BORROWERS. Subject to the prior or concurrent
satisfaction of the conditions precedent set forth in this SECTION 6.3, any
Subsidiary of Micro may become a party hereto and a Supplemental Borrower and an
Obligor hereunder subsequent to the Effective Date (each such Subsidiary of
Micro, an "ACCEDING BORROWER"), entitled to all the rights and subject to all
the obligations incident thereto and each Acceding Borrower may request the
Lenders to make Non-Rata Credit Extensions on the terms and subject to the
conditions of this Agreement.
SECTION 6.3.1 RESOLUTIONS, ETC. The Administrative Agent shall have
received from such Acceding Borrower a certificate, dated the date such Acceding
Borrower is accepted by the Administrative Agent as a Supplemental Borrower
hereunder and with counterparts for each Lender, duly executed and delivered by
the Secretary, Assistant Secretary or other authorized representative of such
Acceding Borrower as to:
(a) resolutions of its Board of Directors or its Executive
Committee, as the case may be, then in full force and effect
authorizing the execution, delivery and performance of this Agreement
and the Guaranty (if any) and each other Loan Document to be executed
by it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and the Guaranty (if
any) and each other Loan Document to be executed by it; and
(c) the Organic Documents of such Acceding Borrower, upon
which certificate each Lender may conclusively rely until the
Administrative Agent shall have received a further certificate of the
Secretary of such Acceding Borrower canceling or amending such prior
certificate. In addition, each Acceding Borrower shall have delivered
to the Administrative Agent a good standing certificate from the
relevant governmental regulatory institution of its jurisdiction of
organization, each such certificate to be dated a date reasonably near
(but prior to) the date such Acceding Borrower becomes a Supplemental
Borrower hereunder.
SECTION 6.3.2 DELIVERY OF ACCESSION REQUEST AND ACKNOWLEDGMENT. The
Administrative Agent shall have received (a) an original Accession Request and
Acknowledgment duly completed and executed and delivered by such Acceding
Borrower and (b) originals of any other instruments evidencing accession of such
Acceding Borrower hereunder as the Administrative Agent may reasonably request,
in each case effective as of the date such Acceding Borrower becomes a
Supplemental Borrower hereunder.
SECTION 6.3.3 GUARANTIES, ETC. If such Acceding Borrower has not
previously delivered an Additional Guaranty and such Acceding Borrower is a
Material Subsidiary, then the Administrative Agent shall have received, with
counterparts for each Lender (a) an Additional Guaranty executed by such
Acceding Borrower, in effect as of the date such Acceding Borrower becomes a
Supplemental Borrower hereunder, duly executed and delivered by an Authorized
Person of such Acceding Borrower, and (b) such instruments and documents
evidencing accession of such Acceding Borrower under the Intra-Group Agreement
as the Administrative Agent may reasonably request, in each case effective with
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respect to such Acceding Borrower as of the date such Acceding Borrower becomes
a Supplemental Borrower hereunder.
SECTION 6.3.4 COMPLIANCE CERTIFICATE. The Administrative Agent shall
have received with counterparts for each Lender, a Compliance Certificate from
Micro, dated the date such Acceding Borrower becomes a Supplemental Borrower
hereunder.
SECTION 6.3.5 CONSENTS, ETC. The Administrative Agent shall have
received evidence satisfactory to it as to the receipt by such Acceding Borrower
of any necessary consents or waivers under any agreement applicable to such
Acceding Borrower in order to enable such Acceding Borrower to enter into this
Agreement and any other Loan Document, to perform its obligations hereunder and
thereunder and to obtain Credit Extensions hereunder.
SECTION 6.3.6 OPINIONS OF COUNSEL. The Administrative Agent shall have
received an opinion of counsel, dated the date such Acceding Borrower becomes a
Supplemental Borrower hereunder and addressed to the Documentation Agent, the
Administrative Agent and all the Lenders, from the General Counsel of Micro, or
such other counsel as shall be reasonably satisfactory to the Administrative
Agent, covering the matters set forth in EXHIBIT M hereto as to such Acceding
Borrower.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender Parties to enter into this Agreement and to make
Credit Extensions hereunder, each Borrower represents and warrants unto the
Administrative Agent and each Lender with respect to itself and the other
Obligors as set forth in this ARTICLE VII.
SECTION 7.1 ORGANIZATION, ETC. Each of the Obligors and each of the
respective Subsidiaries is a company or corporation, as the case may be, validly
organized and existing and in good standing under the laws of the jurisdiction
of its incorporation or organization, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its business requires such qualification and where the failure to so qualify and
to maintain such good standing, singularly or in the aggregate, has resulted in,
or would reasonably be expected to result in, a Material Adverse Effect, and has
full power and authority and holds all requisite governmental licenses, permits,
authorizations and other approvals to enter into and perform its Obligations
under this Agreement and each other Loan Document to which it is a party and to
own and hold under lease its property and to conduct its business substantially
as currently conducted by it, excluding any such governmental licenses, permits
or other approvals in respect of which the failure to so obtain, hold or
maintain has not caused, and would not reasonably be expected to result in, a
Material Adverse Effect.
SECTION 7.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each Obligor of this Agreement and each other Loan
Document executed or to be executed by it are within such Obligor's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene such Obligor's Organic Documents;
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(b) contravene any law or governmental regulation or court
decree or order binding or affecting such Obligor; or
(c) result in, or require the creation or imposition of, any
Lien on any of such Obligor's properties.
SECTION 7.3 NO DEFAULT. None of the Obligors, nor any of their
respective Subsidiaries, is in Default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note, or in any
indenture, loan agreement, or other agreement, in connection with or as a result
of which Default there exists a reasonable possibility that a Material Adverse
Effect could arise. The execution, delivery and performance by each Obligor of
this Agreement and each other Loan Document executed or to be executed by such
Obligor will not conflict with, or constitute a breach of, or a Default under,
any such bond, debenture, note, indenture, loan agreement or other agreement to
which any Obligor or any of their respective Subsidiaries is a party or by which
it is bound, in connection with, or as a result of which, conflict, breach or
Default, there exists a reasonable possibility that a Material Adverse Effect
could arise.
SECTION 7.4 GOVERNMENT APPROVAL, REGULATION, ETC. No action by, and no
notice to or filing with, any governmental authority or regulatory body or other
Person and no payment of any stamp or similar tax, is required for the due
execution, delivery, or performance by any Obligor of this Agreement or any
other Loan Document to which it is a party. No Obligor (nor any of its
Subsidiaries) is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), or 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.
SECTION 7.5 VALIDITY, ETC. This Agreement constitutes, and each other
Loan Document executed by any Obligor will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of each Obligor
party thereto, enforceable against such Obligor in accordance with their
respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally or by general principles of equity.
SECTION 7.6 FINANCIAL INFORMATION. The financial statements of Micro and
its Consolidated Subsidiaries to be delivered pursuant to SECTION 6.1.5 will
have been prepared in accordance with GAAP and present fairly (subject, in the
case of such financial statements delivered pursuant to CLAUSE (b) thereof
(which financial statements, in accordance with SECTION 1.4(a) hereof, are not
required to contain certain footnote disclosures required by GAAP), to ordinary
year-end adjustments) the consolidated financial condition of the Persons
covered thereby as at the dates thereof and the results of their operations for
the periods then ended. All the financial statements delivered pursuant to
CLAUSES (a) and (b) of SECTION 8.1.1 have been and will be prepared in
accordance with GAAP consistently applied, and do or will present fairly
(subject, in the case of such financial statements delivered pursuant to CLAUSE
(b) thereof (which financial statements, in accordance with SECTION 1.4(a)
hereof, are not required to contain certain footnote disclosures required by
GAAP), to ordinary year-end adjustments) the consolidated financial condition of
the Persons covered thereby as of the dates thereof and the results of their
operations for the periods then ended.
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SECTION 7.7 NO MATERIAL ADVERSE EFFECT. Since December 31, 1996, there
has been no event or events which, singly or in the aggregate, have resulted in
a Material Adverse Effect.
SECTION 7.8 LITIGATION, LABOR CONTROVERSIES, ETC. Except as disclosed in
ITEM 7.8 (Litigation) of the Disclosure Schedule, there is no pending or, to the
knowledge of any Obligor, threatened litigation, action, proceeding or labor
controversy affecting any Obligor, or any of their respective Subsidiaries, or
any of their respective properties, businesses, assets or revenues, in respect
of which there exists a reasonable possibility of an outcome that would result
in a Material Adverse Effect or that would affect the legality, validity or
enforceability of this Agreement or any other Loan Document.
SECTION 7.9 SUBSIDIARIES. As of the date hereof, Micro has no
Subsidiaries, except those Subsidiaries which are identified in ITEM 7.9
(Existing Subsidiaries) of the Disclosure Schedule and certain other
Subsidiaries that are shell corporations that do not conduct any business and do
not in the aggregate have a net worth exceeding $1,000,000.
SECTION 7.10 OWNERSHIP OF PROPERTIES. Each Obligor and each of their
respective Subsidiaries owns good and marketable title (or their respective
equivalents in any applicable jurisdiction) to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever, free and
clear of all Liens, charges or claims except as permitted pursuant to SECTION
8.2.2, except where such failure or failures to own, singly or in the aggregate,
has not resulted in, or would not reasonably be expected to result in, a
Material Adverse Effect.
SECTION 7.11 TAXES. Each Obligor and each of their respective
Subsidiaries has filed all material tax returns and reports it reasonably
believes are required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except as disclosed in ITEM 7.11
(Taxes) of the Disclosure Schedule and except for any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books; provided that, with respect to any Subsidiary that is not a
Material Subsidiary, this representation and warranty shall be satisfied if the
tax returns or reports not so filed or the taxes or governmental charges owing
by each such Subsidiary are not with respect to any income, sales or use tax and
the amount so owing (or which would be so owing if such tax returns or reports
were duly filed) with respect to all such Subsidiaries, does not exceed in the
aggregate $1,000,000 at any time.
SECTION 7.12 PENSION AND WELFARE PLANS. Except to the extent that any
such termination, liability, penalty or fine would not (either individually or
in the aggregate) reasonably be expected to have a Material Adverse Effect (a)
during the twelve-consecutive-month period prior to the date hereof and prior to
the date of any Credit Extension hereunder, except as disclosed in ITEM 7.12
(Employee Benefit Plans) of the Disclosure Schedule, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA, (b) no condition exists or event or transaction has occurred
with respect to any Pension Plan which might result in the incurrence by any
Obligor or any member of the related Controlled Group of any material liability
with respect to any contribution thereto, fine or penalty, and (c) except as
disclosed in ITEM 7.12 (Employee Benefit Plans) of the Disclosure Schedule,
neither any Obligor nor any member of the related Controlled Group has any
material contingent liability with
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respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of
ERISA.
SECTION 7.13 ENVIRONMENTAL WARRANTIES.
(a) Each Obligor and each of their respective Subsidiaries has
obtained all environmental, health and safety permits, licenses and
other authorizations required under all Environmental Laws to carry on
its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would
not (either individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect. Each of such permits, licenses and
authorizations is in full force and effect and each Obligor and each of
their respective Subsidiaries is in compliance with the terms and
conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any
applicable Environmental Law or in any plan, judgment, injunction,
notice or demand letter issued, entered or approved thereunder, except
to the extent failure to comply therewith would not (either
individually or in the aggregate) reasonably be expected to have a
Material Adverse Effect.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending or, to the knowledge of any Obligor, threatened by any
governmental or other entity with respect to any alleged failure by any
Obligor or any of their respective Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of
the business of any Obligor or any of their respective Subsidiaries or
with respect to any generation, treatment, storage, recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials generated by any Obligor or any of their respective
Subsidiaries, except to the extent failure to have any such permit,
license or authorization would not (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
SECTION 7.14 OUTSTANDING INDEBTEDNESS. As of June 27, 1997, neither
Micro nor any of its Subsidiaries had any outstanding Indebtedness other than
Indebtedness disclosed in ITEM 7.14 (Outstanding Indebtedness) of the Disclosure
Schedule and Indebtedness that could be incurred pursuant to SECTION 8.2.1
(a)(ii).
SECTION 7.15 ACCURACY OF INFORMATION.
(a) Except as provided in CLAUSE (b) below, all factual
information furnished by or on behalf of any Obligor to any Lender
Party for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, when taken as a whole, to the best
of the knowledge of each Borrower, and all other factual information
hereafter furnished by or on behalf of any Obligor to any Lender Party
will be, when taken as a whole, to the best of the knowledge of each
Borrower, true and accurate in all material respects on the date as of
which such information is dated or certified and (in the case of any
such information furnished prior to the date hereof) as of the date
hereof (unless such information relates to an earlier date, in which
case such information, when taken as a whole, shall be true and
accurate in all material respects as of such earlier date), and is not,
or shall not be, as the case may be, when taken as a whole, incomplete
by omitting to state any material fact necessary to make such
information not
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misleading.
(b) The information (i) in any financial projections furnished
under this Agreement is and will be based upon assumptions and
information believed by Micro to be reasonable and (ii) furnished with
express written disclaimers with regard to the accuracy of that
information, is and shall be subject to those disclaimers.
SECTION 7.16 PATENTS, TRADEMARKS, ETC. Each Obligor and each of their
respective Subsidiaries owns and possesses, or has a valid and existing license
of, or other sufficient interest in, all such patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service ▇▇▇▇ rights and copyrights as is necessary for the conduct of the
business of each such Obligor or its Subsidiaries as now conducted, without, to
the best of the knowledge of each such Obligor, any infringement upon rights of
other Persons, which infringement results in or would reasonably be expected to
result in a Material Adverse Effect, and there is no license or other interest
or right, the loss of which results in, or would reasonably be expected to
result in, a Material Adverse Effect.
SECTION 7.17 MARGIN STOCK. No part of the proceeds of any Credit
Extension shall be used at any time by any Obligor or any of their respective
Subsidiaries for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock (within the meaning of Regulation U (as amended,
modified, supplemented or replaced and in effect from time to time, "REGULATION
U") promulgated by the F.R.S. Board of Governors of the Federal Reserve System
(together with any successor thereto, the "F.R.S. BOARD") or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock if any such
use or extension of credit described in this SECTION 7.17 would cause any of the
Lender Parties to violate the provisions of Regulation U. Neither any Obligor
nor any of their respective Subsidiaries is engaged principally, or as one of
its important activities, in the business of extending credit for the purposes
of purchasing or carrying any such Margin Stock within the meaning of Regulation
U. Not more than 25% of the value of the assets of any Obligor or any Subsidiary
of any Obligor is, as of the date hereof, represented by Margin Stock. No part
of the proceeds of any Credit Extension will be used by any Obligor or any of
their respective Subsidiaries for any purpose which violates, or which is
inconsistent with, any regulations promulgated by the F.R.S. Board, including
Regulation U.
ARITICLE VIII
COVENANTS
SECTION 8.1 AFFIRMATIVE COVENANTS. Each Borrower agrees with the Agents
and each Lender that, until all the Commitments have terminated and all
Obligations have been paid and performed in full, each Borrower will perform its
respective obligations set forth in this SECTION 8.1.
SECTION 8.1.1 FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. Micro will
furnish, or will cause to be furnished, to each Lender Party (1) promptly after
filing, copies of each Form 10-K, Form 10-Q, and Form 8-K (or any respective
successor forms) filed with the Securities and Exchange Commission (or any
successor authority) or any national securities exchange (including, in each
case, any exhibits thereto requested by any Lender Party), and (2) to the extent
not disclosed in such Forms 10-K, Forms 10-Q, and Forms 8-K (or respective
successor forms) for the applicable period, copies of the following financial
statements, reports, notices and information:
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(a) as soon as available and in any event within 120 days
after the end of each Fiscal Year of Micro, a copy of the annual audit
report for such Fiscal Year for Micro and its Consolidated
Subsidiaries, including therein consolidated balance sheets of Micro
and its Consolidated Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings, stockholders' equity and cash flow
of Micro and its Consolidated Subsidiaries for such Fiscal Year,
setting forth in each case, in comparative form, the figures for the
preceding Fiscal Year, in each case certified (without any
Impermissible Qualification, except that (i) qualifications relating to
pre-acquisition balance sheet accounts of Person(s) acquired by Micro
or any of its Subsidiaries and (ii) statements of reliance in the
auditor's opinion on another accounting firm shall not be deemed an
Impermissible Qualification) in a manner satisfactory to the Securities
and Exchange Commission (under applicable United States securities law)
by Price Waterhouse or its successors or other independent public
accountants of national reputation;
(b) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Periods occurring during any
Fiscal Year of Micro, a copy of the unaudited consolidated financial
statements of Micro and its Consolidated Subsidiaries, consisting of
(i) a balance sheet as of the close of such Fiscal Period and (ii)
related statements of earnings and cash flows for such Fiscal Period
and from the beginning of such Fiscal Year to the end of such Fiscal
Period, in each case certified by an officer who is an Authorized
Person of Micro as to (A) being a complete and correct copy of such
financial statements which have been prepared in accordance with GAAP
consistently applied as provided in SECTION 1.4, and (B) presenting
fairly the financial position of Micro and its Consolidated
Subsidiaries;
(c) at the time of delivery of each financial statement
required by CLAUSE (a) or (b) (or Form 10-Q or 10-K in lieu thereof), a
certificate signed by an Authorized Person of Micro stating that no
Default has occurred and is continuing (or if a Default has occurred
and is continuing, and without prejudice to any rights or remedies of
any Lender Party hereunder in connection therewith, a statement of the
nature thereof and the action which Micro has taken or proposes to take
with respect thereto);
(d) at the time of delivery of each financial statement
required by CLAUSE (a) or (b) (or Form 10-Q or 10-K in lieu thereof), a
Compliance Certificate showing compliance with the financial covenants
set forth in SECTION 8.2;
(e) notice of, as soon as possible after (i) the occurrence of
any material adverse development with respect to any litigation,
action, proceeding, or labor controversy disclosed in ITEM 7.8
(Litigation) of the Disclosure Schedule, or (ii) the commencement of
any labor controversy, litigation, action, or proceeding of the type
described in SECTION 7.8;
(f) promptly after the filing thereof, copies of any
registration statements (other than the exhibits thereto and excluding
any registration statement on Form S-8 and any other registration
statement relating exclusively to stock, bonus, option, 401(k) and
other similar plans for officers, directors, and employees of Micro,
Industries, Entertainment, or any of their respective Subsidiaries);
(g) immediately upon becoming aware of the institution of any
steps by any
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Obligor or any other Person to terminate any Pension Plan other than
pursuant to Section 4041(b) of ERISA, or the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under Section 302(t) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any other event with
respect to any Pension Plan which, in any such case, results in, or
would reasonably be expected to result in, a Material Adverse Effect,
notice thereof and copies of all documentation relating thereto;
(h) as soon as possible, and in any event within three
Business Days after becoming aware of the occurrence of a Default or
any inaccuracy in the financial statements delivered pursuant to CLAUSE
(a) or (b) of SECTION 8.1.1 if the result thereof is not to present
fairly the consolidated financial condition of the Persons covered
thereby as of the dates thereof and the results of their operations for
the periods then ended, a statement of an Authorized Person of Micro
setting forth the details of such Default or inaccuracy and the action
which Micro has taken or proposes to take with respect thereto;
(i) in the case of each Borrower, promptly following the
consummation of any transaction described in SECTION 8.2.5, a
description in reasonable detail regarding the same; and
(j) such other information respecting the condition or
operations, financial or otherwise, of each Borrower, or any of their
respective Subsidiaries as any Lender through the Administrative Agent
may from time to time reasonably request.
SECTION 8.1.2 COMPLIANCE WITH LAWS, ETC. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to) comply in all respects with all
applicable laws, rules, regulations and orders the noncompliance with which
results in, or would reasonably be expected to result in, a Material Adverse
Effect, such compliance to include (without limitation):
(a) except as may be otherwise permitted pursuant to SECTION
8.2.5, the maintenance and preservation of its corporate existence (and
in the case of Coordination Center, its status as a coordination
center) in accordance with the laws of the Jurisdiction of its
incorporation and qualification as a foreign corporation (subject to
the materiality standard referred to above); and
(b) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books; provided
that with respect to any Subsidiary that is not a Material Subsidiary
this covenant shall be satisfied if the taxes, assessments or other
governmental charges owing by each such Subsidiary (i) is not with
respect to any income, sales or use tax and (ii) the amount so owing
with respect to all such Subsidiaries does not exceed in the aggregate
$1,000,000 at any time.
SECTION 8.1.3 MAINTENANCE OF PROPERTIES. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to) maintain, preserve, protect and
keep its material properties in good repair, working order and condition, and
make necessary and proper repairs, renewals and replacements
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so that its business carried on in connection therewith may be properly
conducted at all times, unless such Borrower or such Subsidiary determines in
good faith that the continued maintenance of any of its properties is no longer
economically desirable.
SECTION 8.1.4 INSURANCE. Each Borrower will (and each Borrower will
cause each of its Subsidiaries to) maintain, or cause to be maintained with
responsible insurance companies or through such Borrower's own program of
self-insurance, insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon request of the
Administrative Agent, furnish to each Lender at reasonable intervals a
certificate of an Authorized Person of such Borrower setting forth the nature
and extent of all insurance maintained by such Borrower and each of its
Subsidiaries in accordance with this SECTION 8.1.4.
SECTION 8.1.5 BOOKS AND RECORDS. Each Borrower will (and each Borrower
will cause each of its Subsidiaries to) keep books and records which accurately
reflect all of its business affairs and transactions and permit the
Administrative Agent and each Lender, or any of their respective
representatives, at reasonable times and intervals and upon reasonable advance
notice, to visit all of its offices, to discuss its financial matters with its
officers and independent public accountants (and each Borrower hereby authorizes
such independent public accountants to discuss the financial matters of such
Borrower and its Subsidiaries with the Administrative Agent and each Lender or
its representatives whether or not any representative of such Borrower is
present but provided that an officer of such Borrower is afforded a reasonable
opportunity to be present at any such discussion) and to examine any of its
relevant books or other corporate records. Micro will pay all expenses
associated with the exercise of any Lender Party's rights pursuant to this
SECTION 8.1.5 at any time during the occurrence and continuance of any Event of
Default.
SECTION 8.1.6 ENVIRONMENTAL COVENANT. Each Borrower will (and each
Borrower will cause each of its Subsidiaries to):
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws which, by their terms, apply to
such use and operation, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all Environmental
Laws which, by their terms, apply to such Hazardous Materials, in each
case so that the non-compliance with any of the foregoing does not
result in, or would not reasonably be expected to result in, either
singly or in the aggregate, a Material Adverse Effect;
(b) immediately notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties or
compliance with Environmental Laws which, singly or in the aggregate,
result in, or would reasonably be expected to result in, a Material
Adverse Effect, and shall promptly cure and have dismissed with
prejudice any actions and proceedings relating to compliance with
Environmental Laws where the failure to so cure or have dismissed,
singularly or in the aggregate, results in, or would reasonably be
expected to result in, a Material Adverse Effect (it being understood
that this CLAUSE (b) shall not be construed to restrict any Borrower or
any of its Subsidiaries from challenging or defending any such action
or proceeding which it, in
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its sole discretion, deems advisable or necessary); and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this SECTION 8.1.6.
SECTION 8.1.7 USE OF PROCEEDS. Each Borrower shall apply the proceeds of
each Credit Extension in accordance with the last recital of this Agreement and
shall not use directly and immediately, any proceeds to acquire, or finance the
acquisition of, any equity interest in Coordination Center.
SECTION 8.1.8 PARI PASSU. Each Borrower shall ensure that such
Borrower's Obligations rank at least pari passu with all other unsecured
Indebtedness of such Borrower.
SECTION 8.1.9 GUARANTEE OR SURETYSHIP. If any Borrower or any of its
Subsidiaries becomes a party to any contract of guarantee or suretyship which
would constitute Indebtedness, or if any of its assets becomes subject to such a
contract, that contract will be disclosed in the next financial information to
be provided by Micro pursuant to CLAUSE (c) of SECTION 8.1.1, provided that any
failure to comply with the disclosure obligations of this SECTION 8.1.9 shall
not constitute a Default unless the existence of the contract or contracts of
guarantee or suretyship which Micro fails to disclose would result in a Default
under CLAUSE (c) of SECTION 8.2.3.
SECTION 8.1.10 ADDITIONAL GUARANTY.
(a) Micro may cause any of its Subsidiaries to execute and
deliver from time to time in favor of the Lender Parties an Additional
Guaranty for the repayment of the Obligations.
(b) By no later than November 30, 1997, Micro shall cause
▇▇▇▇▇▇ Micro Holdings Limited and ▇▇▇▇▇▇ Micro (UK) Limited, both
corporations organized and existing under the laws of England, to (i)
execute and deliver in favor of the Lender Parties an Additional
Guaranty for the repayment of the Obligations, each of which Additional
Guaranties shall be in substantially the form of the attached EXHIBIT J
with such other terms and provisions as the Administrative Agent
determines to be necessary or appropriate (after consulting with legal
counsel) in order that such Additional Guaranty complies with local
laws, rules and regulations and is fully enforceable (at least to the
extent of the form of Additional Guaranty attached as EXHIBIT J)
against ▇▇▇▇▇▇ Micro Holdings Limited and ▇▇▇▇▇▇ Micro (UK) Limited
under English law, and (ii) furnish to the Administrative Agent one or
more opinions of English counsel (which counsel and the form and
substance of such opinions shall be reasonably satisfactory to the
Administrative Agent and the Required Lenders) addressed to the Agents
and the Lenders addressing the matters set forth in EXHIBIT M, as it
relates to such Additional Guarantor and Additional Guaranty.
(c) Concurrently when or promptly after any of its
Subsidiaries either guarantees any Indebtedness of Micro or any other
Obligor or satisfies (at any time) the requirements hereunder which
describe a Material Subsidiary, Micro shall cause that Subsidiary to
(i) execute and deliver in favor of the Lender Parties an Additional
Guaranty for the repayment of the Obligations which Additional Guaranty
(including, without limitation, any Additional Guaranty executed and
delivered by an Acceding Borrower pursuant to SECTION 6.3.3) shall be
in
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substantially the form of the attached EXHIBIT J, shall be governed by
the laws of a State of the United States, and shall contain such other
terms and provisions as the Administrative Agent determines to be
necessary or appropriate (after consulting with legal counsel) in order
that such Additional Guaranty complies with local laws, rules, and
regulations and is fully enforceable (at least to the extent of the
form of Additional Guaranty attached as EXHIBIT J) against such
Additional Guarantor; provided that, if it shall be illegal under any
local law, rule, or regulation for any Additional Guaranty to be
governed by the law of any State of the United States and the
Administrative Agent shall have received evidence of such illegality
(including, if the Administrative Agent shall so request, an opinion of
local counsel as to such matters, which counsel and the form and
substance of such opinion shall be reasonably satisfactory to the
Administrative Agent) reasonably satisfactory to it, then the
Administrative Agent shall consent to such Additional Guaranty being
governed by the laws of a jurisdiction outside of the United States,
which jurisdiction shall be subject to the prior approval of the
Administrative Agent, and (ii) furnish to the Administrative Agent an
opinion of counsel (which counsel and the form and substance of such
opinion shall be reasonably satisfactory to the Administrative Agent
and the Required Lenders, it being agreed that if the Additional
Guaranty is governed by the laws of any state of the United States, the
General Counsel of Micro shall be satisfactory counsel for purposes
hereof) addressed to the Agents and the Lenders addressing the matters
set forth in EXHIBIT M, as it relates to such Additional Guarantor and
Additional Guaranty.
SECTION 8.1.11 INTRA-GROUP AGREEMENT, ETC. Except to add additional
Subsidiaries of Micro as parties thereto, the terms of the Intra-Group Agreement
shall not be amended or otherwise modified without the prior consent of the
Administrative Agent on behalf of and as directed by the requisite Lenders, such
consent not to be unreasonably withheld. In addition, no Person a party to the
Intra-Group Agreement shall assign any of its rights or obligations thereunder
without the prior consent of the Administrative Agent, such consent not to be
unreasonably withheld.
SECTION 8.2 NEGATIVE COVENANTS. Each Borrower agrees with the
Administrative Agent and each Lender that, until all the Commitments have
terminated and all Obligations have been paid and performed in full, each
Borrower will perform its respective obligations set forth in this SECTION 8.2.
SECTION 8.2.1 RESTRICTION ON INCURRENCE OF INDEBTEDNESS.
(a) No Borrower will (and no Borrower will permit any of its
Subsidiaries to) create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than the
following:
(i) Any indebtedness arising (A) in respect of the
Credit Extensions or (B) under or in connection with the
Canadian Credit Agreement or the U.S. Credit Agreement;
(ii) Indebtedness existing as of October 30, 1996, or
incurred pursuant to commitments or lines of credit in effect
as of October 30, 1996, (or any renewal or replacement
thereof, so long as such renewals or replacements do not
increase the amount of such Indebtedness or such commitments
or lines of credit), in any case identified in ITEM
8.2.1(a)(ii) (Ongoing Indebtedness) of the Disclosure
Schedule; and
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(iii) additional Indebtedness if after giving effect
to the incurrence thereof the Borrowers are in compliance with
SECTION 8.2.3, calculated as of the date of the incurrence of
such additional Indebtedness, on a pro forma basis.
(b) Micro will not at the end of any Fiscal Period permit the
sum of (i) Total Indebtedness of Subsidiaries (other than any
Guarantor) and (ii) the Amount of Additional Liens to exceed 15% of
Consolidated Tangible Net Worth.
SECTION 8.2.2 RESTRICTION ON INCURRENCE OF LIENS. No Borrower will (and
no Borrower will permit any of its Subsidiaries to) create, incur, assume or
suffer to exist any Lien upon any of its property, revenues or assets, whether
now owned or hereafter acquired, except:
(a) Liens existing as of October 30, 1996, and identified in
ITEM 8.2.2(a) (Existing Liens) of the Disclosure Schedule and Liens
resulting from the extension, renewal or replacement of any such Liens
in respect of the same property theretofore subject to such Lien;
provided that (i) no property shall become subject to such extended,
renewed or replacement Lien that was not subject to the Lien extended,
renewed or replaced, (ii) the aggregate principal amount of
Indebtedness secured by any such extended, renewed or replacement Lien
shall not be increased by such extension, renewal or replacement, (iii)
the Indebtedness secured by such Lien shall be incurred in compliance
with the applicable terms hereof, including SECTION 8.2.3, and (iv)
both immediately before and after giving effect thereto, no Default
shall exist;
(b) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(d) Liens incurred in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(e) Judgment Liens of an amount not exceeding at any time to
either 7.25% of Consolidated Tangible Net Worth at the end of the most
recently ended Fiscal Period or $80,000,000, whichever is less, in the
aggregate, or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies and for
which, within 30 days of such judgment, the insurance carrier has
acknowledged coverage in writing;
(f) Liens on property purchased or constructed after the date
hereof securing Indebtedness used to purchase or construct such
property; provided that (i) no such Lien shall be
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created in or attach to any other asset at the time owned by Micro or
any of its Subsidiaries if the aggregate principal amount of the
Indebtedness secured by such property would exceed the fair market
value of such property and assets, taken as a whole, (ii) the aggregate
outstanding principal amount of Indebtedness secured by all such Liens
shall not at any time exceed 100% of the fair market value of such
property at the time of the purchase or construction thereof, and (iii)
each such Lien shall have been incurred within 270 days of the purchase
or completion of construction of such property;
(g) Liens resulting from utility easements, building
restrictions and such other encumbrances or charges against real
property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material may
affect the marketability of the same or interfere with the use thereof
in the business of any Borrower or any of its Subsidiaries;
(h) Liens incurred in the normal course of business in
connection with bankers' acceptance financing or used in the ordinary
course of trade practices, statutory lessor and vendor privilege liens
and liens in connection with ad valorem taxes not yet due, good faith
bids, tenders and deposits;
(i) Liens on all goods held for sale on consignment;
(j) Liens granted by any Subsidiary of Micro in favor of Micro
or in favor of another Subsidiary of Micro that is the parent of such
Subsidiary granting the Lien, other than Liens granted by a Guarantor
to a Subsidiary of Micro that is not a Guarantor; provided that no
Person that is not a Subsidiary of Micro shall be secured by or benefit
from any such Lien;
(k) Liens of the nature referred to in CLAUSE (b) of the
definition of the term "LIEN" and granted to a purchaser or any
assignee of such purchaser which has financed the relevant purchase of
Trade Accounts Receivable of any Borrower or any of their respective
subsidiaries;
(1) Liens on accounts receivable of Micro Canada with respect
to any accounts receivable securitization program; and
(m) Additional Permitted Liens.
SECTION 8.2.3 FINANCIAL CONDITION. Micro will not permit any of the
following:
(a) the Consolidated Current Ratio as at the end of any Fiscal
Period to be less than 1.0 to 1.0;
(b) the ratio of (i) Consolidated EBITDA for any period of
four consecutive Fiscal Periods to (ii) Consolidated Interest Charges
for such period to be less than 3.5 to 1.0;
(c) the ratio of (i) the average daily balances of
Consolidated Funded Debt during any Fiscal Period to (ii) Consolidated
EBITDA for the period of four Fiscal Periods ending on the last day of
such Fiscal Period to exceed 3.5 to 1.0; provided that, for purposes of
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calculating this ratio, Consolidated Funded Debt on any day shall be
the amount otherwise determined pursuant to the definition thereof plus
the amount of Consolidated Transferred Receivables on such day; or
(d) the Consolidated Tangible Net Worth as at the end of any
Fiscal Period to be less than the sum of (i) the greater of (A)
$500,000,000 and (B) an amount equal to 90% of Consolidated Tangible
Net Worth as at the end of the Fiscal Year ending nearest to December
31, 1996, plus (ii) as at the end of each Fiscal Year commencing with
the Fiscal Year ending closest to December 31, 1997, 67% of
Consolidated Net Income (without taking into account any losses
incurred in any Fiscal Year) since the beginning of the Fiscal Year
which began closest to December 31, 1996.
SECTION 8.2.4 DIVIDENDS. Except for dividends paid, or redemptions made,
in any calendar Year that do not exceed 50% of Consolidated Net Income for the
immediately preceding Fiscal Year, Micro will not declare or pay any dividends
(in cash, property, or obligations) or any other payments or distributions on
account of, or set apart money for a sinking or analogous fund for, or purchase,
redeem, retire or otherwise acquire for value, any shares of its capital stock
now or hereafter outstanding or any warrants, options or other rights acquire
the same; return any capital to its stockholders as such; or make any
distribution of assets to its stockholders as such; provided that Micro may
redeem, purchase, or acquire any of its capital stock (a) issued to employees
pursuant to any Plan or other contract or arrangement relating to employment
upon the termination of employment or other events or (b) in a transaction
contemplated by the Transition Agreements.
SECTION 8.2.5 MERGERS, CONSOLIDATIONS, SUBSTANTIAL ASSET SALES, AND
DISSOLUTIONS. No Borrower may merge or consolidate with another Person, or sell,
lease, transfer, or otherwise dispose of assets constituting all or
substantially all of the assets of Micro and its Consolidated Subsidiaries
(taken as a whole) to another Person, or liquidate or dissolve, except for the
following so long as, in each case, no Event of Default exists or would exist
after giving effect to the following:
(a) A Supplemental Borrower may liquidate or dissolve, or
merge or consolidate with another Person, or sell, lease, transfer, or
otherwise dispose of all or substantially all of its assets to another
Obligor, so long as, in each case (i) an Obligor is the surviving
entity of any such liquidation, dissolution, merger, or consolidation
or the transferee of such assets, and (ii) Micro is the surviving
entity if involved in such a merger or consolidation.
(b) Coordination Center may merge or consolidate with another
Person if either (i) Coordination Center is the surviving entity or
(ii) the surviving Person (A) is organized and in good standing under
the laws of The Kingdom of Belgium and (B) expressly assumes
Coordination Center's Obligations in a written agreement satisfactory
in form and substance to the Required Lenders.
(c) Micro may merge or consolidate with another Person if:
(i) either Micro is the surviving entity or the
surviving Person (A) is organized and in good standing under
the laws of a State of the United States and (B) expressly
assumes Micro's Obligations in a written agreement
satisfactory in form and substance to the Required Lenders;
and
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(ii) unless Micro is the surviving entity in a merger
or consolidation that does not constitute a Material Asset
Acquisition, Micro delivers to the Administrative Agent,
before the merger or consolidation becomes effective, a
certificate of Micro's chief executive officer, chief
financial officer, or Treasurer stating and demonstrating in
reasonable detail that (assuming such proposed transaction had
been consummated on the first day of the most recently ended
period of four Fiscal Periods for which financial statements
have been or are required to have been delivered pursuant to
SECTION 8.1.1) Micro (or the other surviving Person) would
have been, on a pro forma basis, in compliance with each of
the covenants set forth in SECTION 8.2.3 as of the last day of
such period.
SECTION 8.2.6 TRANSACTIONS WITH AFFILIATES. Except in the ordinary
course of business, no Borrower will (and no Borrower will permit any of its
Subsidiaries to), directly or indirectly, pay any funds to or for the account
of, make any investment (whether by acquisition of stock or Indebtedness, by
loan, advance, transfer of property, guarantee or other agreement to pay,
purchase or service, directly or indirectly, any Indebtedness, or otherwise) in,
lease, sell, transfer, or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect, any transaction with, any
Affiliate (any such payment, investment, lease, sale, transfer, other
disposition or transaction, an "AFFILIATE TRANSACTION") except on an arms-length
basis on terms at least as favorable to such Borrower (or such Subsidiary) as
terms that could have been obtained from a third party who was not an Affiliate;
provided that:
(a) the foregoing provisions of this section do not prohibit
(i) agreements with or for the benefit of employees of such Borrower or
any Subsidiaries regarding bridge home loans and other loans
necessitated by the relocation of such Borrower's or such Subsidiary's
business or employees, or regarding short-term hardship advances, (ii)
loans to officers or employees of such Borrower or any of its
Subsidiaries in connection with the exercise of rights under such
Borrower's stock option or stock purchase plan, (iii) any such Person
from declaring or paying any lawful dividend or other payment ratably
in respect of all of its capital stock of the relevant class so long
as, in the case of Micro, after giving effect thereto, no Default shall
have occurred and be continuing, (iv) any Affiliate transaction between
Micro and any of its Subsidiaries or between any Subsidiaries of Micro,
or (v) any Affiliate Transaction (other than any Affiliate Transaction
described in CLAUSES (i) through (iv)) in which the amount involved
does not exceed $50,000; and
(b) the Borrowers shall not, nor shall they permit any of
their respective Subsidiaries to, participate in effect any Affiliate
Transactions otherwise permitted pursuant to this section which either
individually or in the aggregate may involve obligations that are
reasonably likely to have a Material Adverse Effect.
The approval by the independent directors of the Board of Directors of the
relevant Borrower (or the relevant Subsidiary thereof) of any Affiliate
Transaction to which such or such Borrower (or the relevant Subsidiary thereof)
is a party shall create a rebuttable presumption that such Affiliate Transaction
is on an arms-length basis on terms at least as favorable to such Borrower (or
the relevant Subsidiary thereof) as terms that could have been obtained from a
third party who was not an Affiliate.
SECTION 8.2.7 LIMITATIONS ON ACQUISITIONS.
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(a) No Borrower may make any Material Asset Acquisition unless
(i) no Event of Default exists or would exist after giving effect to
the proposed Material Asset Acquisition, (ii) before the consummation
of the proposed Material Asset Acquisition, such Borrower notifies the
Administrative Agent that it intends to make the proposed Material
Asset Acquisition and reasonably believes that it will be able to
provide the certification under CLAUSE (iii) below, and (iii) before
consummation of the proposed Material Asset Acquisition, Micro delivers
to the Administrative Agent a certificate duly executed and delivered
by an Authorized Person of Micro, certifying that (A) immediately upon
and following the consummation of the proposed Material Asset
Acquisition, Micro will be in compliance with each of SECTIONS 8.2.1
and 8.2.2 and (B) on a pro forma basis (assuming the proposed Material
Asset Acquisition had been consummated on the first day of the most
recently ended period of four Fiscal Periods for which financial
statements have been or are required to have been delivered pursuant to
SECTION 8.1.1) Micro would have been in compliance with SECTION 8.2.3
as of the last day of such period.
(b) Without first providing the notice to the Administrative
Agent and the Lenders required by this SECTION 8.2.7(b), the Borrowers
shall not (and shall not permit their respective Subsidiaries to)
acquire any outstanding stock of any U.S. or non-U.S. corporation,
limited company or similar entity of which the shares constitute Margin
Stock if after giving effect to such acquisition, Micro and its
Affiliates shall hold, in the aggregate, more than 5% of the total
outstanding stock of the issuer of such Margin Stock, which notice
shall include the name and jurisdiction of organization of such
relevant issuer, the market on which such stock is traded, the total
percentage of such relevant issuer's stock currently held, and the
purpose for which the acquisition is being made.
(c) Notwithstanding any contrary provision in this SECTION
8.2.7, the Primary Borrowers shall not (and shall not permit their
respective Subsidiaries to) (i) directly or indirectly use the proceeds
of any Pro-Rata Credit Extension to make any Acquisition unless, if the
board of directors of the Person to be acquired has notified Micro or
any of its Subsidiaries that it opposes the offer by the proposed
purchaser to acquire that Person, then that opposition has been
withdrawn, or (ii) make any Acquisition unless, if the proposed
Acquisition is structured as a merger or consolidation, then it will be
consummated in compliance with SECTION 8.2.5.
(d) Execution and delivery of each Continuation Notice shall
constitute the relevant Primary Borrower's representation and warranty
that the Primary Borrowers are not then in violation of SECTION
8.2.7(c)(i). No Borrower shall directly or indirectly use the proceeds
of any Non-Rata Credit Extension to make any Acquisition if the board
of directors of the Person to be acquired has notified Micro or any of
its Subsidiaries that it opposes the offer by the proposed purchaser to
acquire that Person, and such opposition has not been withdrawn unless
the relevant Borrower notifies the relevant Lender of such opposition
when it requests such Non-Rata Credit Extension.
SECTION 8.2.8 LIMITATION ON SALE OF TRADE ACCOUNTS RECEIVABLE.
Notwithstanding anything to the contrary in this Agreement, no Borrower will
(and no Borrower will permit any of its Subsidiaries to) sell, assign, ▇▇▇▇▇ ▇
▇▇▇▇ in, or otherwise transfer any interest in its Trade Accounts Receivable to
any Person if, after giving effect thereto, the ratio (expressed as a
percentage) of (a) Consolidated Transferred Receivables to (b) the sum of
Consolidated Retained Receivables plus
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Consolidated Transferred Receivables shall exceed 40%.
SECTION 8.2.9 SALE OF ASSETS. Except as provided in SECTION 8.2.5, no
Obligor will (and no Obligor will permit any of its Subsidiaries to) dispose of
any property or assets other than in the ordinary course of business, except
that:
(a) Micro or any Subsidiary of Micro may dispose of any of its
assets so long as the proceeds thereof are either (i) utilized to repay
or prepay (in accordance with the provisions of ARTICLE IV hereof)
Pro-Rata Revolving Loans (provided that in the event the amount of such
proceeds shall exceed the aggregate principal amount of all Pro-Rata
Revolving Loans outstanding hereunder at such time, such excess
proceeds may be utilized to repay or prepay (in accordance with the
provisions hereof) other loans outstanding at such time) or (ii) so
long as no Event of Default has occurred and is continuing or would
occur after giving effect thereto, reinvested in one or more of the
businesses in which Micro or any of its Subsidiaries is principally
engaged in accordance with SECTION 8.2.10 hereof;
(b) Micro or any Subsidiary of Micro may dispose of assets
which are worn out, obsolete or surplus or otherwise have no further
useful life to Micro or any of its Subsidiaries; and
(c) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, Micro and any Subsidiary of
Micro may dispose of assets in transactions exclusively among Micro and
any of its Subsidiaries or among Subsidiaries of Micro that satisfy the
requirements of SECTION 8.2.6; provided that:
(i) notwithstanding any provision hereof to the
contrary, in the event that, immediately after giving effect
to any disposition described in this CLAUSE (c) to a
Subsidiary of Micro, such Subsidiary shall own assets
constituting at least 10% of Consolidated Assets determined as
of the last day of the most recently completed Fiscal Period,
such Subsidiary of Micro shall be deemed a Material Subsidiary
for all purposes hereunder as of the date of such disposition
and Micro shall cause any such Material Subsidiary promptly to
execute and deliver an Additional Guaranty in favor of the
Lender Parties in accordance with SECTION 8.1.10; and
(ii) notwithstanding the foregoing, so long as no
Event of Default has occurred and is continuing or would occur
after giving effect thereto, (A) any Subsidiary of Micro which
is not at the time of such disposition an Obligor may dispose
of assets in transactions exclusively with (1) Micro, (2) any
Subsidiary of Micro which, at the time of such disposition, is
an Obligor, and (3) any other Subsidiary of Micro which is not
at the time of such disposition an Obligor, unless,
immediately after giving effect to such disposition, such
other Subsidiary of Micro would become a Material Subsidiary
and such other Subsidiary does not, promptly after such
disposition, execute an Additional Guaranty in accordance with
SECTION 8.1.10, and (B) Micro or any Subsidiary of Micro which
is at the time of such Disposition also an Obligor may Dispose
of assets in transactions exclusively with (1) Micro and (2)
any other Subsidiary of Micro which, at the time of such
disposition, is also an Obligor.
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For purposes of this SECTION 8.2.9 "DISPOSE" means sell, lease, transfer, or
otherwise dispose of property but shall not include any public taking or
condemnation, and "DISPOSITION" and "DISPOSED OF" have corresponding meanings to
dispose. Such terms shall not include an exchange of assets if the assets
involved in such exchange are similar in function in after giving effect to such
exchange there has not been (i) a Material Adverse Effect, (ii) any material
deterioration of cash flow generation from or in connection with such assets, or
(iii) any material deterioration in the overall quality of plant, property, and
equipment of any Obligor. An "EXCHANGE" shall be deemed to have occurred for
purposes hereof if each of the transactions involved shall have been consummated
within a six month period.
SECTION 8.2.10 LIMITATION ON BUSINESSES. Micro and its Subsidiaries,
considered as a whole, will not engage principally in businesses other than
those conducted by Micro and its Subsidiaries on the date hereof, as described
in the Preamble of this Agreement.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 LISTING OF EVENTS OF DEFAULT. Any of the following events or
occurrences described in this SECTION 9.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 9.1.1 NON-PAYMENT OF OBLIGATIONS. A default shall occur in the
payment or prepayment when due (a) by any Borrower of any principal of any Loan,
(b) by any Borrower of any interest on any Loan, (c) by any Borrower of any
Reimbursement Obligation or any deposit of cash for collateral purposes pursuant
to SECTION 3.2.2 or 3.2.4 or (d) by any Guarantor of any Guaranteed Obligation
(as defined in such Guarantor's Guaranty), and, in the case of CLAUSES (b) or
(d), such default shall continue unremedied for a period of five Business Days.
SECTION 9.1.2 BREACH OF WARRANTY. Any representation or warranty of any
Obligor made or deemed to be made hereunder or in any other Loan Document
executed by it or in any other writing or certificate furnished by or on behalf
of any Obligor to the Administrative Agent or any Lender for the purposes of or
in connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to ARTICLE VI) is or shall be incorrect when
made in any material respect.
SECTION 9.1.3 NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observation of any of its
obligations under SECTION 8.2.2 (excluding the involuntary incurrence of Liens
involving individually or collectively amounts in controversy or encumbered
assets or both having a value of less than $60,000,000 at any time, which
involuntary incurrences are subject to SECTION 9.1.4 below), SECTION 8.2.3,
SECTION 8.2.4, or SECTION 8.2.5 (excluding any default by Micro in the
performance of its obligation to deliver, prior to the consummation of any
Material Asset Acquisition, the certificate required to be so delivered in
connection therewith pursuant to SECTION 8.2.7(a)(iii), default of which is
subject to SECTION 9.1.4 below).
SECTION 9.1.4 NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the payment when due of any fee or any other Obligation
not subject to SECTION 9.1.1, or the due performance and observance of any other
covenant, agreement or obligation contained herein or in any other Loan
Document, and such default shall continue unremedied for a period of 30 days
after
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Micro obtains actual knowledge thereof or notice thereof shall have been given
to Micro by the Administrative Agent or any Lender.
SECTION 9.1.5 DEFAULT ON INDEBTEDNESS. A default shall occur in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness arising under the Canadian Credit
Agreement or the U.S. Credit Agreement or any other Indebtedness of any Obligor
or any of its Subsidiaries (other than Indebtedness described in SECTION 9.1.1
or Indebtedness which is non-recourse to any Obligor, or any Subsidiary of any
Obligor) having an outstanding aggregate principal amount, for Borrower and its
Subsidiaries as a group, in excess of the lesser of (a) (i) 5% of Consolidated
Tangible Net Worth for the then most recently ended Fiscal Period, individually,
or (ii) 10% of Consolidated Tangible Net Worth for the then most recently ended
Fiscal Period in the aggregate and (b) $75,000,000 (or the equivalent thereof in
any other currency), or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness if the effect
of such default is to cause, or (with the giving of any notice or lapse of time
or both) to permit the holder or holders of such Indebtedness, or any trustee or
agent for such holders to cause, the maturity of any such Indebtedness to be
accelerated or such Indebtedness to be prepaid, redeemed, purchased, defeased or
otherwise to become due and payable prior to its expressed maturity.
SECTION 9.1.6 JUDGMENTS. Any judgment or order for the payment of money
in excess of (individually or in the aggregate), for Borrower and its
Subsidiaries as a group, an amount equal at any time to either 7.25% of
Consolidated Tangible Net Worth at the end of the most recently ended Fiscal
Period or $80,000,000, whichever is less (or, in either case, the equivalent
thereof in any other currency), shall be rendered against any Obligor or any of
their respective Subsidiaries and either:
(a) enforcement proceedings shall have been commenced and be
continuing by any creditor upon such judgment or order for any period
of 30 consecutive days; or
(b) there shall be any period during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION 9.1.7 PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan:
(a) the institution of any steps by any Obligor, any member of
its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, any such Obligor or any such
member could be required to make a contribution in excess of
$60,000,000 (or the equivalent thereof in any other currency), to such
Pension Plan, or could reasonably expect to incur a liability or
obligation in excess of $60,000,000 (or the equivalent thereof in any
other currency), to such Pension Plan; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 9.1.8 OWNERSHIP; BOARD OF DIRECTORS. Any Person or two or more
Persons (excluding the Family Stockholders (as defined in the Board
Representation Agreement)) acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (or any
successor
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regulation)) of capital stock of Micro having more than 25% of the ordinary
voting power of all capital stock of Micro then outstanding; and at any time
during any period of 25 consecutive calendar months commencing on or after the
date of this Agreement, a majority of Board of Directors of Micro shall no
longer be composed of individuals (i) who were members such Board of Directors
on the first day of such period, (ii) whose election or nomination to such Board
of Directors was approved by individuals referred to in CLAUSE (i) above
constituting the time of such election or nomination at least a majority of such
Board of Directors or (iii) whose election or nomination to such Board of
Directors was approved by individuals referred to in CLAUSES (i) and (ii) above
constituting at the time of such election or nomination at least a majority of
such Board of Directors.
SECTION 9.1.9 BANKRUPTCY, INSOLVENCY, ETC. Any Obligor or any Material
Subsidiary shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, administrative receiver, sequestrator, liquidator
or other custodian for it, its property, or make a general assignment
for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
administrative receiver, receiver, sequestrator, liquidator or other
custodian for it or for a substantial part of its property, and such
trustee, receiver, sequestrator, liquidator or other custodian shall
not be discharged within 60 days, provided that each Obligor and each
Material Subsidiary hereby expressly authorizes each Lender Party to
appear in any court conducting any relevant proceedings during such
60-day period to preserve, protect and defend its rights under this
Agreement and the other Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of any Obligor or any
Material Subsidiary thereof, as the case may be, and, if any such case
or proceeding is not commenced by such Person, such case or proceeding
shall be consented to or acquiesced in by such Obligor or Material
Subsidiary, as the case may be, or shall result in the entry of an
order for relief or shall remain for 60 days unstayed or undismissed,
provided that each Obligor and each Material Subsidiary hereby
expressly authorizes each Lender Party to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend its rights under this Agreement and the
other Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 9.1.10 GUARANTIES. Any of the Guaranties or any provisions
thereof shall be found or held invalid or unenforceable by a court of competent
jurisdiction or shall have ceased to be effective because of the merger,
dissolution or liquidation of a Guarantor (other than as may result from a
transaction permitted pursuant to SECTION 8.2.5 hereof or by reason of a merger
of Guarantor under one Guaranty into the Guarantor under another Guaranty) or
any Guarantor shall have repudiated its obligations under a Guaranty.
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SECTION 9.2 ACTION IF BANKRUPTCY. If any Event of Default described in
SECTION 9.1.9 shall occur, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 9.3 ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in SECTION 9.1.9) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Lenders, shall by notice to Micro
declare all or any portion of the outstanding principal amount of the Loans and
all other Obligations to be due and payable and/or the Commitments to be
terminated, whereupon the full unpaid amount of the Loans and all other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
SECTION 9.4 ACTION BY WITHDRAWING LENDER. If an Event of Default shall
occur because the Borrowers have failed to pay in full a Terminating Lender, for
any reason, voluntary or involuntary, the Withdrawing Lender may by notice to
Micro declare all or any portion of the outstanding principal amount of the
Loans made by such Withdrawing Lender and all other obligations owed to such
Withdrawing Lender to be due and payable and/or its commitment to be terminated,
whereupon the full unpaid amount of such Loans and all such other Obligations
which shall be so declared due and payable shall be and become immediately due
and payable, without further notice, demand or presentment, and/or, as the case
may be, its Commitment shall terminate.
SECTION 9.5 CASH COLLATERAL. If any Event of Default shall occur for any
reason, whether voluntary or involuntary, and shall not have been cured or
waived and shall be continuing and the Obligations are or have been declared due
and payable under SECTION 9.2 or 9.3, the Administrative Agent may apply any
cash collateral held by the Administrative Agent pursuant of SECTION 3.2.4 to
the payment of the Obligations in any order in which the Required Lenders may
elect.
ARTICLE X
THE ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT
SECTION 10.1 AUTHORIZATION AND ACTIONS. Each Lender hereby appoints
Scotiabank the Administrative Agent and NationsBank as the Documentation Agent
under, and for the purposes set forth in, this Agreement and each other Loan
Document. Each Lender authorizes each Agent to act on behalf of such Lender
under this Agreement and each other Loan Document and in the absence of other
written instructions from the Required Lenders received from time to time by the
Agents (with respect to which each Agent agrees that it will comply, except as
otherwise provided in this SECTION 10.1 or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) each Agent
from and against such Lender's Percentage of any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which at any time be imposed on, incurred by, or asserted against,
each such Agent in any way relating to or arising
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out of this Agreement or any other Loan Document (including any such liability,
etc. incurred as a result of each Agent's reliance on any information contained
in any Quarterly Report or update with respect thereto), including reasonable
attorneys' fees, and as to which either Agent is not reimbursed by Micro or the
other Obligors, provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from either Agent's gross negligence or
willful misconduct. No Agent shall be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless it is indemnified hereunder to
its satisfaction. If any indemnity in favor of either Agent shall be or become,
in either Agent's determination, inadequate, such Agent may call additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 10.2 FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., London time, on the day prior to the making of a Pro-Rata Revolving
Loan that such Lender will not make available an amount which would constitute
its Adjusted Percentage of such requested Pro-Rata Revolving Loan on the date
specified therefor, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent and, in reliance upon
such assumption, make available to the relevant Primary Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender and the relevant Primary
Borrower severally agree, to pay the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date the Administrative Agent made such amount available to the relevant Primary
Borrower to the date such amount is repaid to the Administrative Agent at an
annual interest rate equal to the Administrative Agent's Cost of Funds for the
first day that the Administrative Agent made such amounts available and
thereafter at a rate of interest equal to the interest rate applicable at the
time to the requested Pro-Rata Revolving Loan.
SECTION 10.3 EXCULPATION. Neither Agent nor any of their respective
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor be responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor to
make any inquiry respecting the performance by any Obligor of its obligations
hereunder or under any other Loan Document. Any such inquiry which may be made
by either Agent shall not obligate it to make any further inquiry to take any
action. Each Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which each such Agent believes to be genuine and to have been presented by a
proper Person.
SECTION 10.4 SUCCESSOR. Either Agent may resign as such at any time upon
at least 30 days' prior notice to Micro and all the Lenders. If either Agent
shall at any time resign, the Required Lenders, after consultations with Micro,
may appoint another Lender as a successor Administrative Agent or Documentation
Agent, as the case may be, whereupon such Lender shall become an Administrative
Agent or Documentation Agent hereunder, as the case may be. If no successor
Administrative Agent or Documentation Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's or Documentation Agent's giving notice of
resignation, then the retiring Administrative Agent or Documentation Agent may,
on
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behalf of the Lenders, after consultations with Micro, appoint a successor
Administrative Agent or Documentation Agent, as the case may be which shall be
one of the Lenders or that is either a bank or financial institution that is a
bank for the purposes of Section 840A of the United Kingdom Income and
Corporation Taxes Act 1988 or a commercial banking institution that is organized
under the laws of the United States or any State thereof (or a branch or agency
of either) and that has a combined capital and surplus of at least $500,000,000.
Upon acceptance of any appointment as Administrative Agent or Documentation
Agent hereunder, as the case may be, by a successor Administrative Agent or
Documentation Agent, as the case may be, such successor Administrative Agent or
Documentation Agent shall be entitled to receive from the retiring
Administrative Agent or Documentation Agent such documents of transfer and
assignment as such successor Administrative Agent or Documentation Agent may
reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent or
Documentation Agent, as the case may be, and the retiring Administrative Agent
or Documentation Agent shall be discharged from its duties and obligations under
this Agreement. No resignation or removal of either the Administrative Agent or
Documentation Agent pursuant to this SECTION 10.4 shall be effective until the
appointment of a successor Administrative Agent or Documentation Agent, as the
case may be, has become effective. After any retiring Administrative Agent's or
Documentation Agent's resignation hereunder as an Administrative Agent or
Documentation Agent, as the case may be, the provisions of:
(a) this ARTICLE X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent or Documentation Agent under this Agreement; and
(b) SECTIONS 11.3 and 11.4 shall continue to inure to its
benefit.
SECTION 10.5 CREDIT EXTENSIONS BY AN AGENT. Each Agent shall each have
the same rights and powers with respect to the Credit Extensions made it or any
of its Affiliates in its capacity as a Lender and may exercise the same as if it
were not an Agent hereunder. Each Agent and their respective Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with any Obligor or Subsidiary of any thereof as if it were not an
Agent hereunder.
SECTION 10.6 CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of the Agents and each other Lender, and based on such Lender's
review of the financial information of each Obligor, this Agreement, the other
Loan Documents (the terms and provisions which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to make available its
Commitment and to make available any Non-Rata
Credit Extensions. Each Lender also acknowledges that it will, independently of
the Agents and each other Lender, and based on such other documents, information
and investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 10.7 COPIES, ETC. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by any Obligor pursuant to the terms of this
Agreement or any other Loan Document (unless concurrently delivered to the
Lenders by such Obligor). The Administrative Agent will distribute to each
Lender each document or instrument received for its account, and copies of all
other communications received by the
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Administrative Agent from any Obligor, for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by each Borrower and the Required Lenders; provided that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this SECTION 11.1, change the definitions of
Adjusted Percentage, Percentage, or Required Lenders, increase the
Total Credit Commitment Amount or the Credit Commitment Amount,
Adjusted Percentage, or Percentage of any Lender, extend the Commitment
Termination Date, or, subject to SECTION 8.2.5, release any Guarantor
from any of its payment obligations under the Guaranty entered into by
it, shall be made without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Pro-Rata Credit Extension or the amount of any fee payable under
SECTION 4.3 shall be made without the consent of each Lender;
(d) affect adversely the interests, rights or obligations of
the Administrative Agent in its capacity as Administrative Agent shall
be made without the consent of the Administrative Agent; or
(e) affect adversely the interests, rights or obligations of
the Documentation Agent in its capacity as the Documentation Agent
shall be made without the consent of the Documentation Agent.
No failure or delay on the part of any Lender Party in exercising any power or
right under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on any Obligor in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by any Lender Party under this Agreement or any other Loan Document
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2 NOTICES. Unless otherwise specified to the contrary, all
notices and other communications provided to any party hereto under this
Agreement or any other Loan Document shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address or facsimile
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number set forth below its signature hereto or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. All notices, if mailed and properly addressed with postage prepaid or
if properly addressed and sent by paid courier service, shall be deemed given
when received; all notices if transmitted by facsimile shall be deemed given
when transmitted and the appropriate receipt for transmission received by the
sender thereof.
SECTION 11.3 PAYMENT OF COSTS AND EXPENSES. Micro agrees to pay on
demand all reasonable expenses (inclusive of value added tax or any other
similar tax imposed thereon) of the Agents (including the reasonable fees and
out-of-pocket expenses of the single counsel to the Agents and of local counsel,
if any, who may be retained by such counsel to the Agents) in connection with
the negotiation, preparation, execution, and delivery of this Agreement and of
each other Loan Document (including schedules, exhibits, and forms of any
document or instrument relevant to this Agreement or any other Loan Document),
and any amendments, waivers, consents, supplements, or other modifications to
this Agreement or any other Loan Document as from time to time may hereafter be
required, whether or not the transactions contemplated hereby are consummated.
Micro further agrees to pay, and to save the Lender Parties harmless
from all liability for, stamp or other taxes (including, without limitation, any
registration duty imposed by Belgian law) which may be payable in connection
with the execution, delivery or enforcement of this Agreement or any other Loan
Document, and in connection with the making of any Credit Extensions and the
issuing of any Letters of Credit hereunder. Micro also agrees to reimburse
Lender Party upon demand for all out-of-pocket expenses (inclusive of value
added tax or other similar tax imposed thereon and including attorneys' fees and
legal expenses (including actual cost to such Lender Party of its in-house
counsel) on a full indemnity basis) incurred by each such Lender Party in
connection with (x) the negotiation of any restructuring or "work-out," whether
or not consummated, of any Obligations and (y) the enforcement of any
obligations, provided that Micro shall reimburse each Lender Party for the fees
and legal expenses of only one counsel for such Lender Party.
SECTION 11.4 INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender Party and the extension of the
Commitments, the Obligors hereby jointly and severally indemnify, exonerate and
hold each Lender Party and each of their respective officers, directors,
employees and agents (collectively, the "INDEMNIFIED PARTIES") free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements, which shall include the actual cost to such Indemnified Party
of its in-house counsel but shall not include the fees and expenses of more than
one counsel to such Indemnified Party (collectively, the "INDEMNIFIED
LIABILITIES"), incurred by Indemnified Parties or any of them as a result of, or
arising out of, or relating to:
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (excluding,
however, any action successfully brought by or on behalf of Micro or
any other Borrower with respect to any determination by any Lender not
to fund any Credit Extension or not to comply with SECTION 11.15 of
this Agreement
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or any action by the Required Lenders to terminate or reduce the
Commitments or accelerate the Loans in violation of the terms of this
Agreement);
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by any Obligor, or any of their
respective Subsidiaries of all or any portion of the stock or assets of
any Person, whether or not any Indemnified Party is party thereto;
(d) any investigation, litigation, or proceeding related to
any environmental cleanup, audit, compliance, or other matter relating
to the protection of the environment or the Release by any Obligor (or
any of their respective Subsidiaries) of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging, or releases from, any real
property owned or operated by any Obligor (or any of their respective
Subsidiaries) of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses, or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, such Person;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Obligors hereby jointly and
severally agree to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law.
SECTION 11.5 SURVIVAL. The obligations of Micro and each other Obligor
under SECTIONS 5.3, 5.4, 5.5, 5.7, 11.3, and 11.4, and the obligations of the
Lenders under SECTIONS 10.1 and 11.15, shall in each case survive any
termination of this Agreement, the payment in full of Obligations, and the
termination of the Commitments. The representations and warranties made by Micro
and each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 11.6 SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such Jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdictions.
SECTION 11.7 HEADINGS. The various headings of this Agreement and of
each other Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 11.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS; ENTIRE AGREEMENT.
This Agreement may be executed by the parties hereto in several counterparts,
each of which shall be deemed to be an original and all of which shall
constitute together but one and the same Agreement. This Agreement shall become
effective on the date when the Administrative Agent has (a) received (i)
counterparts hereof executed on behalf of Micro, Coordination Center, Micro
Canada, Micro Singapore, the Agents, and each Lender or (ii) facsimile,
telegraphic, or other written confirmation (in form and substance satisfactory
to the Administrative Agent, who may rely upon the advice of its special counsel
in making that determination) of such execution and (b) so notified the
Borrowers and the
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Lenders;; provided that no Lender shall have any obligation to make the initial
Credit Extension until the date (the "EFFECTIVE DATE") that the applicable
conditions set forth in SECTIONS 6.1 and 6.2 have been satisfied as provided
herein. This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 11.9 JURISDICTION.
SECTION 11.9.1 SUBMISSION. For the benefit of each Lender Party, each
Obligor agrees that the courts of England have jurisdiction to settle any
disputes in connection with any Loan Document and accordingly submits to the
jurisdiction of the English courts.
SECTION 11.9.2 SERVICE OF PROCESS. Without prejudice to any other mode
of service, each Obligor (other than an Obligor incorporated in England and
Wales):
(a) irrevocably appoints ▇▇▇▇▇▇, Son & Pepper as its agent for
service of process relating to any proceedings before the English
courts in connection with any Loan Document;
(b) agrees that failure by a process agent to notify such
Obligor of the process will not invalidate the proceedings concerned;
and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its address
for the time being applying under SECTION 11.2.
SECTION 11.9.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD. Each Obligor
waives objection to the English courts on grounds for inconvenient forum or
otherwise as regards proceedings in connection with a Loan Document and agrees
that a judgment or order of an English court in connection with a Loan Document
is conclusive and binding on it and may be enforced against it in the court of
any other jurisdiction.
SECTION 11.9.4 NON-EXCLUSIVITY. Nothing in this SECTION 11.9 limits the
right of a Lender Party to bring proceedings against an Obligor in connection
with any Loan Document in any other court of competent jurisdiction, or
concurrently in more than one jurisdiction.
SECTION 11.9.5 GOVERNING LAW. This Agreement and each other Loan
Document (unless otherwise provided in any particular Loan Document) are
governed by English law.
SECTION 11.10 SUCCESSORS AND ASSIGNS. This Agreement and each other Loan
Document shall be binding upon and shall inure to the benefit of the parties
hereto and thereto and their respective successors and assigns; provided that:
(a) no Obligor may assign or transfer its rights or
obligations hereunder or under any other Loan Document without the
prior written consent of all the Lender Parties;
(b) the rights of sale, assignment and transfer of the Lenders
are subject to SECTION 11.11; and
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(c) the rights of the Administrative Agent and the
Documentation Agent with respect to resignation or removal are subject
to SECTION 10.4.
SECTION 11.11 ASSIGNMENTS AND TRANSFERS OF INTERESTS. No Lender may
assign or sell participation interests in its Commitment or any of its Credit
Extensions or any portion thereof to any Persons except in accordance with this
SECTION 11.11.
SECTION 11.11.1 ASSIGNMENTS. Any attempted assignment or transfer by a
Lender of its Credit Extensions and Commitment not made in accordance with this
SECTION 11.11.1 shall be null and void.
(a) Any Lender may at any time assign or transfer to one or
more Eligible Assignees, to any of its Affiliates, to any other Lender,
or to any Federal Reserve Bank (each Person described in any of the
foregoing clauses as being the Person to whom such assignment or
transfer is available to be made, being hereinafter referred to as a
"TRANSFEREE LENDER") all or any part of such Lender's total Credit
Extensions and Commitment (which assignment or transfer shall be of a
constant, and not a varying, percentage of all the assigning Lender's
Credit Extensions and Commitment) in a minimum aggregate amount equal
to the least of (i) the entire amount of such Lender's total Credit
Extensions and Commitment, (ii) $10,000,000, or (iii) $5,000,000 so
long as the assignor Lender and each Transferee Lender to whom it is
concurrently making an assignment or transfer will, immediately after
the effectiveness of such concurrent assignments and transfers, hold
Commitments of at least $10,000,000 each
(b) Notwithstanding CLAUSE (a) above, each Obligor and Agent
shall be entitled to continue to deal solely directly with such Lender
in connection with the interests so assigned or transferred to a
Transferee Lender unless and until (i) notice of such assignment or
transfer, together with payment instructions, addresses, and related
information with respect to such Transferee Lender, shall have been
given to Micro and each Agent by such Lender and such Transferee
Lender, (ii) such Transferee Lender shall have executed and delivered
to Micro and each Agent, a Lender Assignment Agreement, and (iii) the
Transferee Lender shall have paid a $1,000 processing fee to the
Administrative Agent.
(c) From and after the effective date of such Lender
Assignment Agreement (i) the Transferee Lender thereunder shall be
deemed automatically to have become a party to this Agreement and (to
the extent rights and obligations under this Agreement have been
assigned and transferred to such Transferee Lender in connection with
such Lender Assignment Agreement) shall have the rights and obligations
of a Lender under this Agreement and the other Loan Documents, and (ii)
the assignor Lender (to the extent that rights and obligations under
this Agreement have been assigned and transferred by it in connection
with such Lender Assignment Agreement) shall be released from its
obligations under this Agreement and the other Loan Documents.
(d) Accrued interest and accrued fees shall be paid in respect
of assigned and retained Credit Extensions and Commitments at the same
time or times provided in this Agreement, notwithstanding any such
assignments or transfers.
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SECTION 11.11.2 PARTICIPATIONS. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "PARTICIPANT") participating interests in
any of its Credit Extensions and Commitments hereunder; provided that:
(a) no participation contemplated in this SECTION 11.11.2
shall relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) each Borrower and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
other Loan Document;
(d) no Participant, unless such Participant is an Affiliate of
such Lender or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in CLAUSE (a), (b) or
CLAUSE (c) of SECTION 11.1; and
(e) no Borrower shall be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
SECTIONS 5.3, 5.4, 5.5, 5.7, 5.9, 5.10, 11.3, and 11.4, shall be considered a
Lender.
SECTION 11.12 OTHER TRANSACTIONS. Nothing contained herein shall
preclude any Lender Party from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with any Obligor or
any of its Affiliates in which such Obligor or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 11.13 FURTHER ASSURANCES. Each Obligor agrees to do such further
acts and things and to execute and deliver to each Lender Party such additional
assignments, agreements, powers, and instruments, as such Lender Party may
reasonably require or deem advisable to carry into effect the purposes of this
Agreement or any other Loan Document or to better assure and confirm unto such
Lender Party its rights, powers and remedies hereunder and thereunder.
SECTION 11.14 WAIVER OF JURY TRIAL. THE AGENTS, THE LENDERS, MICRO, AND
EACH OTHER OBLIGOR HEREBY KNOWINGLY VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR MICRO OR ANY OTHER
OBLIGOR, MICRO AND EACH OTHER OBLIGOR AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS
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PROVISION (AND EACH OTHER PROVISION OF THIS AGREEMENT AND EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT TO WHICH IS A PARTY.
SECTION 11.15 CONFIDENTIALITY. Each of the Lender Parties hereby
severally agrees with each Borrower that it will keep confidential all
information delivered to such Lender Party or on behalf of each Borrower or any
of their respective Subsidiaries which information is known by such Lender Party
to be proprietary in nature, concerns the terms and conditions of this Agreement
or any other Loan Document, or is clearly marked or labeled or otherwise
adequately identified when received by such Lender Party as being confidential
information (all such information, collectively for purposes of this section,
"CONFIDENTIAL INFORMATION"); provided that each Lender Party shall be permitted
to deliver or disclose "confidential information": (a) to directors, officers,
employees and affiliates; (b) to authorized agents, attorneys, auditors and
other professional advisors retained by such Lender Party that have been
apprised of such Lender Party's obligation under this SECTION 11.15 and have
agreed to hold confidential the foregoing information substantially in
accordance with the terms of this section, (c) in connection with the
prospective assignment or transfer of all or any part of, or the sale of a
participating interest in, such Lender Party's Credit Extensions and Commitment,
to any prospective Transferee Lender or Participant that has been apprised of
such Lender Party's obligation under this SECTION 11.15 has agreed to hold
confidential the foregoing information in accordance with the terms of this
section; (d) to any federal or state regulatory authority having jurisdiction
over such Lender Party; or (e) to any other Person to which such delivery or
disclosure may be necessary or appropriate (i) to effect compliance with any
law, rule, regulation or order applicable to such Lender Party, (ii) in response
to any subpoena or other legal process (provided that the relevant Borrower
shall be given notice of any such subpoena or other legal process as soon as
possible in any event prior to production (unless provision of any such notice
would result in a violation of any such subpoena or other legal process), and
the Lender Party receiving such subpoena or other legal process shall cooperate
with such Borrower, at such Borrower's expense, seeking a protective order to
prevent or limit such disclosure), or (iii) in connection with any litigation to
which such Lender Party is a party.
For purposes hereof, the term "CONFIDENTIAL INFORMATION" does not
include any information that: (A) was publicly known or otherwise known by any
Lender Party on a non-confidential basis from a source other than the relevant
Borrower prior to the time such information is delivered or disclosed to such
Lender Party by the relevant Borrower; (B) subsequently becomes publicly known
through no act or omission by any Lender Party or any Person acting on behalf of
any Lender Party; (C) otherwise becomes known to a Lender Party other than
through disclosure by the relevant Borrower (or any Subsidiary thereof) or
through someone subject, to such Lender Party's knowledge, to a duty of
confidentiality to the relevant Borrower; or (D) constitutes financial
statements that are otherwise publicly available.
SECTION 11.16 RELEASE OF SUBSIDIARY GUARANTORS AND SUPPLEMENTAL
BORROWERS.
(a) If (i) the Agents receive a certificate from the chief
executive officer, the chief financial officer, or Treasurer of Micro
certifying as of the date of that certificate that, after the
consummation of the transaction or series of transactions described in
such certificate (which certification shall also state that such
transactions, individually and in the aggregate, will be in compliance
with the terms and conditions of this Agreement, including, to the
extent applicable,
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the covenants contained in SECTIONS 8.2.5, 8.2.6, and 8.2.9), and that
no Default existed, exists, or will exist, as the case may be,
immediately before, as a result of, or after giving effect to such
transaction or transactions and the release or termination, as the case
may be, described below), the Guarantor or Supplemental Borrower, as
the case may be, identified in such certificate will no longer be a
Subsidiary of Micro, and (ii) in the case of a Supplemental Borrower,
the appropriate Lender Parties have received payment in full of all
principal of, interest on, reimbursement obligation in respect of, and
fees related to any Outstanding Credit Extensions made by any of them
in favor of such Supplemental Borrower and any outstanding Non-Rata
Letters of Credit issued for the account of such Supplemental Borrower
have been, or arrangements are in place for them to be, terminated,
then such Guarantor's Guaranty shall automatically terminate or such
Supplemental Borrower shall automatically cease to be a party to this
Agreement.
(b) No such termination or cessation shall release, reduce, or
otherwise adversely affect the obligations of any other Obligor under
this Agreement, any other Guaranty, or any other Loan Document, all of
which obligations continue to remain in full force and effect.
(c) Each Lender Party shall, at Micro's expense, execute such
documents as Micro may reasonably request to evidence such termination
or cessation, as the case may be.
SECTION 11.17 COLLATERAL. Each of the Lenders represents to the
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
REMAINDER OF PAGE INTENTIONALLY BLANK. THIS PAGE IS FOLLOWED BY
SIGNATURE PAGES FOR THE BORROWERS AS OF THE DATE OF THIS AGREEMENT, FOLLOWED BY
SEPARATE SIGNATURE PAGES FOR THE AGENTS AND THE LENDERS.
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EXECUTED as of the date first stated in this European Credit
Agreement.
▇▇▇▇▇▇ MICRO INC., as a Primary Borrower INGRAM EUROPEAN COORDINATION CENTER
and a Guarantor N.V., as a Primary Borrower and
a Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------- ----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
& Worldwide Treasurer Authorized Representative
ADDRESS: ▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ADDRESS: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ 1932 Sint ▇▇▇▇▇▇▇
Woluwe Belgium
FACSIMILE NO.: ▇▇▇-▇▇▇-▇▇▇▇ FACSIMILE NO.: 011-32-2-725-1511
ATTENTION: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇
The undersigned Supplemental Borrowers consent and agree in all respects
to the forgoing European Credit Agreement as Supplemental Borrowers, Borrowers
and Guarantors under that agreement and all related Loan Documents as those
terms are defined in the foregoing European Credit Agreement.
▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., as a ▇▇▇▇▇▇ MICRO, INC., an
Supplemental Borrower and a Guarantor Ontario, Canada corporation,
as a Supplemental Borrower and a
Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney
Authorized Representative
ADDRESS: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #07-03/04 ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ Building Weston, Ontario
Singapore 069542 Canada, ▇▇▇ ▇▇▇
FACSIMILE NO.: ▇▇▇-▇▇-▇▇▇-▇▇▇▇
ATTENTION: ▇▇ ▇▇▇▇ Tea FACSIMILE NO.: ▇▇▇-▇▇▇-▇▇▇▇
ATTENTION: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
98
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
10% $50,000,000 NationsBank of Texas N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ Street
Dallas, TX 75202 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: 011 44 171 282 6831
Attention: Agency Services Attention: 011 44 171 282 6831
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
New ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ Street 35 New Broad Street
London EC2M 1NH ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 011 44 171 282 6831 Facsimile No.: 011 44 171 282 6831
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
99
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
10% $50,000,000 Scotiabank (U.K.) Limited
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Scotia House Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 011-44-171-826-5617 Facsimile No.: 011-44-171-826-5617
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: Managing Director
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Scotia House Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 011-44-171-826-5617 Facsimile No.: 011-44-171-826-5617
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
100
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Banco Santender
as a Lender
By: /s/ R. Suhlegel
----------------------------
Name: R. Suhlegel
Title: Vice President
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Banco Santender, New York Branch Banco Santender, New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇/350-3690
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Banco Santender, New York Branch Banco Santender, New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
101
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Bank of America NT&SA
as a Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Managing Director
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 26 Elmfield Road
Concord, CA 94520 ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇ Facsimile No.: 011 44 181 313 2392
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan Service
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Facsimile No.: 011 44 181 313 2392 Facsimile No.: 011 44 181 313 2392
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan Service Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan Service
One of Several Pages to
European Credit Agreement
102
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Commerzbank Aktiengesellschaft
Brussels Branch
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Commerzbank Aktiengesellschaft Commerzbank Aktiengesellschaft
Brussels Branch Brussels Branch
Boulevard ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇, Brussels
Facsimile No.: 32(O) 27 43 1911 Facsimile No.: 32(O) 27 43 1911
Attention: ▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Commerzbank Aktiengesellschaft Commerzbank Aktiengesellschaft
Brussels Branch Brussels Branch
Boulevard ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇, Brussels
Facsimile No.: 32(O) 27 43 1911 Facsimile No.: 32(O) 27 43 1911
Attention: ▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
103
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Deutsche Bank AG Munich Branch
as a Lender
By: /s/ Joachim Menlert
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Foreign Department Corporations and Institutions
▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Germany
Facsimile No.: 0049-89-2390-2039 Facsimile No.: 0049-89-2390-1419
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Corporations and Institutions Deutsche Bank AG, Munich Branch
Riesstr. 25 Account-Number. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Bank-Code: ▇▇▇▇▇▇▇▇
Germany Swift: DEUT DE MM
Purpose: Kostenstelle 22 484 000,
▇▇▇▇▇▇ Micro Inc.
Facsimile No.: 0049-89-2390-1419 Facsimile No.: 0049-89-2390-1419
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇ Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
104
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 The Fuji Bank Limited, Brussels Branch
as a Lender
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
The Fuji Bank Limited, Los Angeles
Agency, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Joint General Manager
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 1 213 253 4178 Facsimile No.: 1 213 253 4178
Attention: S. Nishitate / Attention: S. Nishitate /
M. Mylvagamam M. Mylvagamam
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇ ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇/▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Facsimile No.: 32 2 230 93 66 Facsimile No.: 32 2 230 93 66
Attention: ▇. ▇▇▇▇▇ / ▇. ▇▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇ / ▇. ▇▇▇▇▇▇▇▇▇
ADDRESS FOR PAYMENT OF FEES:
▇▇▇ ▇▇▇▇▇▇▇ ▇/▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Facsimile No.: 32 2 230 93 66
One of Several Pages to
European Credit Agreement
105
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 The Industrial Bank of Japan, Limited,
Atlanta Agency
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: General Manager
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
The Industrial Bank of Japan, Limited The Industrial Bank of Japan, Limited
Atlanta Agency Atlanta Agency
One Ninety One Peachtree Tower One Ninety ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇ Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Takahiro Hoshino Attention: Takahiro Hoshino/
▇▇▇▇▇ ▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
The Industrial Bank of Japan, Limited The Industrial Bank of Japan, Limited
London Branch London Branch
▇▇▇▇▇▇▇ House ▇▇▇▇▇▇▇ House
One Friday Street One Friday Street
London EC4M 9JA ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 0171 248 1114 Facsimile No.: 0171 248 1114
Attention: ▇▇. ▇▇▇▇ ▇▇▇ Attention: ▇▇. ▇▇▇▇ ▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇
ADDRESS FOR PAYMENT OF FEES:
The Industrial Bank of Japan, Limited
Atlanta Agency
One Ninety One Peachtree Tower
Suite 3600
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Takahiro Hoshino
One of Several Pages to
European Credit Agreement
106
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Kredietbank N.V.
as a Lender
By: /s/ Guy Snoeks
-------------------------
Name: Guy Snoeks
Title: Director
By: /s/ Lode Gielens
-------------------------
Name: Lode Gielens
Title: Director
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 105
B-1831 Diegem B-1831 Diegem
Belgium Belgium
Facsimile No.: 00 32 2 725 72 02 Facsimile No.: 00 32 2 725 72 02
Attention: Mr. P. Van den Poel Attention: Mr. P. Van den Poel
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ 105
B-1831 Diegem B-1831 Diegem
Belgium Belgium
Facsimile No.: 00 32 2 725 72 02 Facsimile No.: 00 32 2 725 72 02
Attention: Mr. P. Van den Poel Attention: Mr. P. Van den Poel
One of Several Pages to
European Credit Agreement
107
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
5% $25,000,000 Landesbank Rheinland-Pfalz-Girozantrale
as a Lender
By: /s/ Mr. Poczka
-------------------
Name: Mr. POCZKA
Title: Executive VP
By: /s/ ▇▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇. ▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
Landesbank Rheinland Pfalz-Girozentrale- Landesbank Rheinland Pfalz-Girozentrale-
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 54-56
D 55098 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ GERMANY
Facsimile No.: 0049/6131/13-2684 ▇▇. ▇▇▇▇▇▇ Facsimile No.: 0049/6131/13-2684 ▇▇. ▇▇▇▇▇▇
or/13-2599 ▇▇. ▇▇▇▇▇▇ or/13-2599 ▇▇. ▇▇▇▇▇▇
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR PAYMENT OF FEES: IN $
Landesbank Rheinland Pfalz-Girozentrale- Bankers Trust, New York
▇▇▇▇▇ Bleiche 54-56 N.Y. 1006
D 55098 Mainz Account Number: ▇▇-▇▇▇-▇▇▇
GERMANY Swift Code: BKTR US 33
Facsimile No.: 0049/6131/13-2684 ▇▇. ▇▇▇▇▇▇
or/13-2599 ▇▇. ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
108
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
3% $15,000,000 Banca Monte dei Paschi di
Siena, SpA.
London Branch
as a Lender
By: /s/ G. Guano ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: G. GUANO ▇. ▇▇▇▇▇▇▇▇▇
Title: GM SENIOR MGB
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: 00 1 212 891 3661 Facsimile No.: 0171 621 9407
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 0171 621 9407 Facsimile No.: 0171 621 9407
Attention: ▇▇▇▇▇▇ ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇
One of Several Pages to
European Credit Agreement
109
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
3% $15,000,000 Den Danske Bank
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Den Danske Bank, London Branch Den Danske Bank, London Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 75 King ▇▇▇▇▇▇▇ Street
London EC4N 7DT ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loan Administration Attention: Loan Administration
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Den Danske Bank, London Branch Den Danske Bank, London Branch
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 75 King ▇▇▇▇▇▇▇ Street
London EC4N 7DT ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Facsimile No.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loan Administration Attention: Loan Administration
One of Several Pages to
European Credit Agreement
110
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
3% $15,000,000 The Nikko Bank (U.K.) plc
as a Lender
By: /s/ P.A. ▇▇▇▇▇▇
-------------------------------
Name: P.A. ▇▇▇▇▇▇
Title: Chief Credit Officer
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Deputy Chief Credit Officer
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Nikko Bank (U.K.) plc Nikko Bank (U.K.) plc
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇▇ ▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Nikko Bank (U.K.) plc Nikko Bank (U.K.) plc
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇▇ ▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
111
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
3% $15,000,000 Standard Chartered Bank
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Facsimile No.: 00 213 614 4270 Facsimile No.: 00 213 614 4270
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Facsimile No.: 00 213 614 4270 Facsimile No.: 00 213 614 4270
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
112
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 ABN AMRO Bank, N.V. Belgian Bank
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager AGI
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Account Manager AGI
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
ABN AMRO Bank N.V., ABN AMRO Bank N.V.,
Belgian Branch Belgian Branch
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ 53
B-1000 Brussels B-1000 Brussels
Facsimile No.: ▇▇-▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇-▇-▇▇▇-▇▇▇▇
Attention: Agi-J. Van Den Eynde Attention: Agi-M. Hoomans
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
ABN AMRO Bank N.V., ABN AMRO Bank N.V.,
Belgian Branch Belgian Branch
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ 53
B-1000 Brussels B-1000 Brussels
Facsimile No.: ▇▇-▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇-▇-▇▇▇-▇▇▇▇
Attention: Agi-J. Van Den Eynde Attention: Agi-J. Van Den Eynde
One of Several Pages to
European Credit Agreement
113
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Banca di Roma, S.P.A.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Business Development Officer
By: /s/ R. Pandocarmo
--------------------------------
Name: R. Pandocarmo
Title: Business Development Officer
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇/▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 81/87 ▇▇▇▇▇▇▇ Street
London EC2V 7NQ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 0171 454 7292 Facsimile No.: 0171 454 7292
Attention: ▇. ▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇/▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 81/87 ▇▇▇▇▇▇▇ Street
London EC2V 7NQ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 0171 454 7292 Facsimile No.: 0171 454 7292
Attention: ▇. ▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
114
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Banco Bilboa Vizcaya, S.A.
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Product Manager
By: /s/ Iosu ▇▇▇▇▇▇▇▇
--------------------------
Name: Iosu ▇▇▇▇▇▇▇▇
Title: Capital Markets
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Banco Bilboa Vizcaya, S.A. Banco Bilboa Vizcaya, S.A.
▇▇▇▇▇ del Rey 26, 3th Floor ▇▇▇▇▇ del Rey 26, 3th Floor
28.002 Madrid 28.002 Madrid
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇-▇-▇▇▇-▇▇-▇▇ Tel: ▇▇-▇-▇▇▇-▇▇-▇▇
Fax: ▇▇-▇-▇▇▇-▇▇-▇▇ Fax: ▇▇-▇-▇▇▇-▇▇-▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Banco Bilboa Vizcaya, S.A. Banco Bilboa Vizcaya, S.A.
▇▇▇▇▇ del Rey 26, 3th Floor ▇▇▇▇▇ del Rey 26, 3th Floor
28.002 Madrid 28.002 Madrid
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇-▇-▇▇▇-▇▇-▇▇ Tel: ▇▇-▇-▇▇▇-▇▇-▇▇
Fax: ▇▇-▇-▇▇▇-▇▇-▇▇ Fax: ▇▇-▇-▇▇▇-▇▇-▇▇
One of Several Pages to
European Credit Agreement
115
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Banque Paribas Belgique, S.A.
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Corporate Banker
By: /s/ Joris Van Helleputte
----------------------------
Name: Joris Van Helleputte
Title: Credit Officer
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Banque Paribas Belgique S.A. Banque Paribas Belgique S.A.
Em. Jacqmainlaan 162 Em. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Belgium
Facsimile No.: 0032-2-204-41-16 Facsimile No.: 0032-2-204-41-16
Attention: ▇. ▇▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇▇
J. Van Helleputte J. Van Helleputte
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Banque Paribas Belgique S.A. Banque Paribas Belgique S.A.
Em. Jacqmainlaan 162 Em. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Belgium
Facsimile No.: 0032-2-204-41-16 Facsimile No.: 0032-2-204-41-16
Attention: ▇. ▇▇▇▇▇▇▇▇▇ Attention: P Vermeiren
J. Van Helleputte J. Van Helleputte
One of Several Pages to
European Credit Agreement
116
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 CARIPLO, Cassa di Risparmio delle
Provincie Lombarde S.p.A.
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Succusal de Madrid
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: 001 212 527 8277 Facsimile No.: 00 34 1523 3981
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇. ▇. ▇▇▇▇▇/
▇▇. ▇. ▇▇▇▇▇▇▇ de la ▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: 00 34 1523 3981 Facsimile No.: 00 34 1523 39 81
Attention: ▇▇. ▇. ▇▇▇▇▇/ Attention: ▇▇. ▇. ▇▇▇▇▇/
▇▇. ▇. ▇▇▇▇▇▇▇ de la ▇▇▇▇ ▇▇. ▇. ▇▇▇▇▇▇▇ de la ▇▇▇▇
One of Several Pages to
European Credit Agreement
117
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Credit Lyonnais Belgium S.A.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Corporate Manager Brussels
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
CREDIT LYONNAIS LOS ANGELES BRANCH Marmix Avenue, 17
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1000 BRUSSELS
Suite 2000 BELGIUM
LOS ANGELES, CA 90071
UNITED STATES OF AMERICA
Facsimile No.: 00-1-213-623.34.37 Facsimile No.: 00-32-2-516.09.40
Attention: ▇▇▇. ▇▇▇▇▇ ▇▇▇ Attention: ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Marnix Avenue, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ BELGIUM
Facsimile No.: 00-32-2-516.09.40 Facsimile No.: 00-32-2-516.09.40
Attention: ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
118
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Dai-Ichi Kangyo Bank Nederland N.V.
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant General Manager
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Dai-Ichi Kangyo Bank Nederland N.V. Dai-Ichi Kangyo Bank Nederland N.V.
Apollolaan 171 Apollolaan 171
1077 A5 Amsterdam 1077 A5 Amsterdam
The Netherlands The Netherlands
Facsimile No.: 00 31 20 676 0301 Facsimile No.: 00 31 20 676 0301
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Dai-Ichi Kangyo Bank Nederland N.V. Dai-Ichi Kangyo Bank Nederland N.V.
Apollolaan 171 Apollolaan 171
1077 A5 Amsterdam 1077 A5 Amsterdam
The Netherlands The Netherlands
Facsimile No.: 00 31 20 676 0301 Facsimile No.: 00 31 20 676 0301
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
119
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 DG Bank
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Jr.
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Jr.
Title: Assistant Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
DG BANK Luxembourg S.A. DG BANK Luxembourg S.A.
4, rue ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ L ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: 00352/457393 Facsimile No.: 00352/457393
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Manager Attention: ▇▇▇▇ ▇▇▇▇▇▇, Manager
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
DG BANK Luxembourg S.A. DG BANK Luxembourg S.A.
4, rue ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ L ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: 00352/457393 Facsimile No.: 00352/457393
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Manager Attention: ▇▇▇▇ ▇▇▇▇▇▇, Manager
One of Several Pages to
European Credit Agreement
120
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Frankfurt Sparkasse
as a Lender
By: /s/ ▇▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇. ▇▇▇▇▇▇▇
Title: Member of the Board
of Managing
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
Frankfurt Sparkasse Frankfurt ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇-▇▇
60255 Frankfurt 60255 Frankfurt
Facsimile No.: 0049 69 2541 3225 Facsimile No.: 0049 69 2541 3225
Attention: ▇▇. ▇▇▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
Frankfurt Sparkasse Frankfurt ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇-▇▇
60255 Frankfurt 60255 Frankfurt
Facsimile No.: 0049 69 2541 3225 Facsimile No.: 0049 69 2541 3225
Attention: ▇▇. ▇▇▇▇▇▇▇ Attention: ▇▇. ▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
121
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Generale Bank
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: SVP
By: /s/ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: SVP
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 41st Floor 520 Madison Avenue, 41st Floor
USA - ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 1 212 838 74 92 Facsimile No.: 1 212 838 74 92
Attention: ▇. ▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR NOTICES:
Corporate Credit Department Corporate Credit Department
3, Montagne du Parc 3, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: 32 2 518 22 11 Facsimile No.: 32 2 518 22 11
Attention: Y. Meurice Attention: Y. Meurice
New York ADDRESS FOR PAYMENT OF FEES:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 41st Floor 520 Madison Avenue, 41st Floor
USA - ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 1 212 838 74 92 Facsimile No.: 1 212 838 74 92
Attention: ▇. ▇▇▇▇▇▇▇▇ Attention: ▇. ▇▇▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
122
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 ▇▇▇▇▇▇ Guaranty Trust Co
of New York
as a lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Title: Vice President
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust
Company of New York Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ c/o ▇▇ ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust
Company of New York Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ c/o ▇▇ ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
123
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 Royal Bank of Canada
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Manager
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ England ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: 0171 653 4179 Facsimile No.: 0171 653 4179
Attention: Loans Manager Attention: Loans Manager
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 71, Queen Victoria Street
London EC4V 4DE England ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: 0171 653 4179 Facsimile No.: 0171 653 4179
Attention: Loans Manager Attention: Loans Manager
One of Several Pages to
European Credit Agreement
124
EXECUTED as of the 29th of October 1977 at our commitment in the European
Credit Agreement dated as of 28th of October 1977
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $10,000,000 The Sanwa Bank Ltd. Brussels
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
Lending Office for Loans to Micro: Address for Notices:
Sanwa Bank Ltd. Sanwa Bank Ltd.
Los Angeles Branch Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ Los Angeles
California 90017 U.S.A. California ▇▇▇▇▇ ▇.▇.▇.
Facsimile No. ▇ (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile No. ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Loan Administration Attention: Loan Administration
Department Department
Lending Office for Other Loans: Address for Payment of Funds:
Sanwa Bank Brussels Branch Sanwa Bank Brussels Branch
▇▇▇▇▇▇▇▇▇ ▇▇/▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Belgium
Facsimile ▇▇. ▇▇-▇-▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Account Number: ABA 982 UID 144780
Attention: Credit Supervising Swift Code: SANW US33
Department
Facsimile No. 32-2-515 43 81
Attention: ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
125
INITIAL
COMMITMENT
PERCENTAGE AMOUNT
2% $ 10,000,000 Skandinaviska Ensikilda
▇▇▇▇▇▇, ▇▇
(publ)
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Head of Execution
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2 ▇▇▇▇▇▇ Street
London EC4M 6XX ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 0171 236 4178 Facsimile No.: 0171 236 4178
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2 ▇▇▇▇▇▇ Street
London EC4M 6XX ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.:0171 236 4178 Facsimile No.: 0171 236 4178
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
One of Several Pages to
European Credit Agreement
126
EXHIBIT A-1
REVOLVING NOTE
_______________, _____
FOR VALUE RECEIVED, _______________________________ (a ____________
organized and existing under the laws of ______________, the "BORROWER"),
promises to pay to the order of ________________ (the "LENDER") on the
Commitment Termination Date or on such other date that is provided in the
Credit Agreement referred to below, the principal amount of all Outstanding
Credit Extensions consisting of Pro-Rata Revolving Loans made by the Lender to
the Borrower under the European Credit Agreement (together with all amendments
and other modifications, if any, from time to time made to it, the "CREDIT
AGREEMENT") dated as of October 28, 1997, among the Borrower,
_______________________ (a _______________ organized and existing under the
laws of ____________________), certain financial institutions (including the
Lender) as lenders, The Bank of Nova Scotia and NationsBank of Texas, N.A.,
respectively, as the administrative agent and the documentation agent for those
lenders, and certain arrangers, and executed by ▇▇▇▇▇▇ Micro Inc. (a
corporation organized and existing under the laws of the Province of Ontario,
Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a corporation organized and
existing under the laws of Singapore) as Supplemental Borrowers. Terms defined
in the Credit Agreement have the same meanings when used, unless otherwise
defined, in this Revolving Note.
The Borrower also promises to pay interest on those Outstanding Credit
Extensions from time to time outstanding from the date of this Revolving Note
until and after maturity (by acceleration or otherwise) until paid, at the
annual interest rates provided in the Credit Agreement.
Payments of both principal of and interest on each Pro-Rata Revolving
Loan evidenced by this Revolving Note shall be made in the relevant Required
Currency in same day or immediately available funds to the account designated
by the Administrative Agent under the Credit Agreement.
This Revolving Note is one of the Revolving Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to which reference
is made for (a) a statement of the terms and conditions on which the Borrower
is permitted and required to make repayments of principal of the Indebtedness
evidenced by this Revolving Note and on which that Indebtedness may be declared
to be immediately due and payable, (b) the choice of English law, and (c) other
provisions of the Credit Agreement applicable to this Revolving Note.
__________________________________
By ___________________________________________________
Name: ___________________________________________
Title: ___________________________________________
EXHIBIT ▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇-▇▇▇▇ REVOLVING NOTE
_______________, _____
FOR VALUE RECEIVED, _______________________________ (a ___________
organized and existing under the laws of ________________, the "BORROWER"),
promises to pay to the order of ______________ (the "LENDER") on
_______________________, the principal amount of all Outstanding Credit
Extensions consisting of Non-Rata Revolving Loans made by the Lender to the
Borrower under the European Credit Agreement (together with all amendments and
other modifications, if any, from time to time made to it, the "CREDIT
AGREEMENT") dated as of October 28, 1997, among the Borrower,
________________________ (a ___________ organized and existing under the laws
of ____________________), certain financial institutions (including the Lender)
as lenders, The Bank of Nova Scotia and NationsBank of Texas, N.A.,
respectively, as the administrative agent and the documentation agent for those
lenders, and certain arrangers, and executed by ▇▇▇▇▇▇ Micro Inc. (a
corporation organized and existing under the laws of the Province of Ontario,
Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a corporation organized and
existing under the laws of Singapore) as Supplemental Borrowers. Terms defined
in the Credit Agreement have the same meanings when used, unless otherwise
defined, in this Non-Rata Revolving Note.
The Borrower also promises to pay interest on those Outstanding Credit
Extensions from time to time outstanding from the date of this Non-Rata
Revolving Note until and after maturity (by acceleration or otherwise) until
paid, at the annual interest rates provided in the Credit Agreement.
Payments of both principal of and interest on each Non-Rata Revolving
Loan evidenced by this Non-Rata Revolving Note shall be made in the relevant
Required Currency in same day or immediately available funds and to an account
designated by the Lender pursuant to the Credit Agreement.
This Non-Rata Revolving Note is one of the Non-Rata Revolving Notes
referred to in, and evidences Indebtedness incurred under, the Credit
Agreement, to which reference is made for (a) a description of the terms and
conditions on which the Borrower is permitted and required to make repayments
of principal of the Indebtedness evidenced by this Non-Rata Revolving Note and
on which that Indebtedness may be declared to be immediately due and payable,
(b) the choice of English law, and (c) other provisions of the Credit Agreement
applicable to this Non-Rata Revolving Note.
__________________________________
By ___________________________________________________
Name: ___________________________________________
Title: ___________________________________________
EXHIBIT A-2
128
EXHIBIT B
BORROWING REQUEST
Dated _________________, ______
The Bank of Nova Scotia,
as Administrative Agent
Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ____________________
This request is delivered to you by _______________________, (a
___________ organized and existing under the laws of _______________, the
"BORROWER"), under SECTION 3.1 of the European Credit Agreement (together with
all amendments and other modifications, if any, from time to time made to it,
the "CREDIT AGREEMENT") dated as of October 28, 1997, among the Borrower,
________________________ (a ___________ organized and existing under the laws
of ____________________), certain financial institutions as lenders, you and
NationsBank of Texas, N.A., respectively, as the administrative agent and the
documentation agent for those lenders, and certain arrangers, and executed by
▇▇▇▇▇▇ Micro Inc. (a corporation organized and existing under the laws of the
Province of Ontario, Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a corporation
organized and existing under the laws of Singapore) as Supplemental Borrowers.
Terms defined in the Credit Agreement have the same meanings when used, unless
otherwise defined, in this request.
The Borrower requests that a Borrowing be extended in the total
principal amount of_________________________(1) denominated in
____________________,(2) on _________________, ____, consisting of LIBO Rate
Loans having an Interest Period of [one] [three] [six] month(s).(3)
The most recently delivered Quarterly Report is attached, with those
additions and revisions that are necessary to reflect the Outstanding Credit
Extensions on the date of this request.
Pursuant to SECTION 6.2.2 of the Credit Agreement, each of the
delivery of this request and the acceptance by the Borrower of the proceeds of
the requested Borrowing constitute a representation and warranty by each
Obligor that, on the date of extending the requested Borrowing (and immediately
before and after giving effect to it and to the application of the proceeds of
it) all of the statements in SECTION 6.2.1 of the Credit Agreement are true and
correct; provided that, with respect to the covenants in SECTION 8.2.3 of the
Credit Agreement, the foregoing representation and warranty is made to the best
knowledge of each Obligor (after due inquiry).
______________________
1 Insert the amount within the minimum and multiple limitations.
2 Insert the Available Currency.
3 Insert the number of months.
EXHIBIT B
129
The Borrower agrees that, if before the time of the requested
Borrowing any matter certified to in this request by it will not be true and
correct at that time as if then made, then it will immediately so notify the
Administrative Agent. Except to the extent, if any, that before the time of
the requested Borrowing the Administrative Agent shall receive written notice
to the contrary from the Borrower, each matter certified to in this request
shall be deemed once again to be certified as true and correct at the date of
the requested Borrowings as if then made.
Please wire transfer the proceeds of the requested Borrowing to the
accounts of the following Persons at the banks indicated respectively:
AMOUNT TO BE WIRED PERSON TO BE PAID NAME, ADDRESS, ETC. OF
BANKS
NAME ACCOUNT NO.
------------------------ ------------------ ------------------------- ------------------------
------------------------
Attention:
-------------
------------------------ ------------------ ------------------------- ------------------------
Attention:
-----------
------------------------ ------------------ ------------------------- ------------------------
BALANCE THE BORROWER
------------------------- -------------------------
------------------------
Attention:
-----------
------------------------ ------------------ ------------------------- ------------------------
The Borrower has caused this request to be executed and delivered, and
the certification and warranties in this request to be made, by its duly
Authorized Person on the date first stated above.
___________________
By _________________________________________________
Name: ___________________________________________
Title: ___________________________________________
2
EXHIBIT B
130
EXHIBIT C
ISSUANCE REQUEST
Dated ____________________
The Bank of Nova Scotia,
as Administrative Agent
Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ______________________
This request is delivered to you by ______________________ (a
___________ organized and existing under the laws of _______________, the
"BORROWER"), under SECTION 3.2 of the European Credit Agreement (together with
all amendments and other modifications, if any, from time to time made to it,
the "CREDIT AGREEMENT") dated as of October 28, 1997, among the Borrower,
________________________ (a ___________ organized and existing under the laws
of ____________________), certain financial institutions as lenders, you and
NationsBank of Texas, N.A., respectively, as the administrative agent and the
documentation agent for those lenders, and certain arrangers, and executed by
▇▇▇▇▇▇ Micro Inc. (a corporation organized and existing under the laws of the
Province of Ontario, Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a corporation
organized and existing under the laws of Singapore) as Supplemental Borrowers.
Terms defined in the Credit Agreement have the same meanings when used, unless
otherwise defined, in this request.
The Borrower requests that on __________________________________ (the
"DATE OF ISSUANCE"), ____________________ (the "ISSUER") [issue a standby
Pro-Rata Letter of Credit in the initial Stated Amount of ___________(1)
denominated in ______________(2) with a Stated Expiry Date of _________________,
19____] [extend the Stated Expiry Date of Irrevocable Standby Letter of Credit
No. ____________, issued on _, 19____, as a Pro-Rata Letter of Credit, in the
initial Stated Amount of __________________(1) denominated in _____________(2)
to a revised Stated Expiry Date of , 19___](3)
[The beneficiary of the requested Pro-Rata Letter of Credit will be
__________________________________
(1) Insert the amount.
(2) Insert the Available Currency.
(3) Insert the first set of bracketed language to request the issuance
of Letter of Credit and the second set of bracketed language to
request the extension of a Letter of Credit.
EXHIBIT C
131
_____________________________ ,(4) and the requested Pro-Rata Letter of Credit
will be in support of _____________________________ (4).](5) [The following
documents must be delivered to the Issuer in connection with a drawing under
the requested Pro-Rata Letter of Credit: ____________________(4).](5) Partial
drawings under the requested Pro-Rata Letter of Credit are [not](6) permitted.
Pursuant to SECTION 6.2.2 of the Credit Agreement, the delivery of this
request constitutes a representation and warranty by each Obligor that, on the
date of this request and immediately after giving effect to the [issuance]
[extension](6) of the requested Pro-Rata Letter of Credit, all statements in
SECTION 6.2.1 of the Credit Agreement are true and correct; provided that, with
respect to the covenants in SECTION 8.2.3 of the Credit Agreement, the foregoing
representation and warranty is made to the best knowledge of each Obligor (after
due inquiry).
The Borrower agrees that, if before the time of the [issuance]
[extension](6) of the requested Pro-Rata Letter of Credit, any matter certified
to in this request by it will not be true and correct at that time as if then
made, then it will immediately so notify the Administrative Agent. Except to
the extent, if any, that before the time of the [issuance] [extension]6 of the
requested Pro-Rata Letter of Credit the Administrative Agent and the Issuer
shall receive written notice to the contrary from the Borrower, each matter
certified to in this request shall be deemed to be certified at the date of that
issuance or extension.
The Borrower has caused this request to be executed and delivered, and
the certification and warranties in this request to be made, by its duly
Authorized Person as of the date first stated above.
________________________
By___________________________________________________
Name: ___________________________________________
Title: ___________________________________________
__________________________________
(4) Insert name and address of beneficiary.
(5) Delete bracketed sentence if Issuance Request is for an extension.
(6) Insert as appropriate.
EXHIBIT C
132
EXHIBIT D
CONTINUATION NOTICE
Dated ______________________
The Bank of Nova Scotia,
as Administrative Agent
Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: _________________________
This notice is delivered to you by _______________________________ (a
___________ organized and existing under the laws of _______________, the
"BORROWER"), under SECTION 4.2.3 of the European Credit Agreement (together
with all amendments and other modifications, if any, from time to time made to
it, the "CREDIT AGREEMENT") dated as of October 28, 1997, among the Borrower,
________________________ (a ___________ organized and existing under the laws
of ____________________), certain financial institutions as lenders, you and
NationsBank of Texas, N.A., respectively, as the administrative agent and the
documentation agent for those lenders, and certain arrangers, and executed by
▇▇▇▇▇▇ Micro Inc. (a corporation organized and existing under the laws of the
Province of Ontario, Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a
corporation organized and existing under the laws of Singapore) as Supplemental
Borrowers. Terms defined in the Credit Agreement have the same meanings when
used, unless otherwise defined, in this notice.
The Borrower requests that, on ____________________, ____,
_________________(1) of the presently outstanding principal amount of the
Pro-Rata Revolving Loans originally made on ____________, ____, denominated in
_______________,(2) be continued as LIBO Rate Loans having an Interest Period of
[one] [three] [six] month(s).(3)
The delivery of this notice constitutes a representation and warranty
by each Obligor that no Event of Default [Default](4) has occurred and is
continuing or will (immediately after giving effect to the requested
continuation) occur and be continuing; provided that, with respect to the
covenants in SECTION 8.2.3 of the Credit Agreement, the foregoing
representation and warranty is made to the best knowledge of each Obligor
(after due inquiry).
__________________________________
(1) Insert the amount.
(2) Insert the Available Currency.
(3) Insert the number of months.
(4) Include bracketed text if the Borrower is requesting either the
continuation of a previously-made Pro-Rata Revolving Loan with an
Interest Period longer than one month.
EXHIBIT D
133
The Borrower agrees that, if before the time of that continuation any
matter certified to in this notice by it will not be true and correct at such
time as if then made, then it will immediately so notify the Administrative
Agent. Except to the extent, if any, that, before the time of the requested
continuation the Administrative Agent shall receive written notice to the
contrary from the Borrower, each matter certified to in this notice shall be
deemed to be certified at the date of that continuation as if then made.
The Borrower has caused this notice to be executed and delivered, and
the certification and warranties in this notice to be made, by its duly
Authorized Person on the date first stated above.
___________________________
By___________________________________________________
Name: ___________________________________________
Title: ___________________________________________
EXHIBIT D
134
EXHIBIT E
COMPLIANCE CERTIFICATE
Dated _________________________
To the Lenders and Agents party to the
European Credit Agreement described below
This certificate is delivered in compliance with SECTIONS 8.1.1(C) and
(D) of the European Credit Agreement (together with all amendments and other
modifications, if any, from time to time made to it, the "CREDIT AGREEMENT")
dated as of October 28, 1997, among ▇▇▇▇▇▇ Micro Inc. (a corporation organized
and existing under the laws of Delaware, United States of America, "MICRO"),
▇▇▇▇▇▇ European Coordination Center, N.V. (a company organized and existing
under the laws of The Kingdom of Belgium), certain financial institutions as
lenders, The Bank of Nova Scotia and NationsBank of Texas, N.A., respectively,
as the administrative agent and the documentation agent for those lenders, and
certain arrangers, and executed by ▇▇▇▇▇▇ Micro Inc. (a corporation organized
and existing under the laws of the Province of Ontario, Canada) and ▇▇▇▇▇▇
Micro Singapore Pte Ltd. (a corporation organized and existing under the laws
of Singapore) as Supplemental Borrowers. Terms defined in the Credit Agreement
have the same meanings when used, unless otherwise defined, in this
certificate.
The undersigned certifies that (a) the attached financial statements
are a complete and correct copy of Micro's required financial statements for
the period indicated and that those financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(as interpreted in accordance with SECTION 1.4 of the Credit Agreement), (b) no
Default has occurred and is continuing as of the date of this certificate,(1)
and (c) a true and correct statement of calculations demonstrating Micro's
compliance with the various requirements of the Credit Agreement is attached.
_________________________
Name: ___________________________________________
Title: ___________________________________________
__________________________________
(1) If a Default has occurred and is continuing as of the date of the
applicable Compliance Certificate, the text of CLAUSE (b) should be
replaced with a statement of the nature of the Default and the action
which Micro has taken or proposes to take with respect to it.
EXHIBIT E
135
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ FIRST DEMAND
This Guaranty on first demand (hereinafter, this "DEMAND GUARANTY")
given by:
INGRAM EUROPEAN COORDINATION CENTER N.V., a naamloze vennootschap (a
company) established under the laws of Belgium as a coordination
center, with its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ registered with the trade register of Brussels
under the number 547.298 (the "GUARANTOR");
WHEREAS ▇▇▇▇▇▇ Micro Singapore Pte Ltd., a corporation established
under the laws of Singapore, with registered office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
#▇▇-▇▇/▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter referred to as "MICRO
SINGAPORE"), ▇▇▇▇▇▇ Micro Inc., a company established under the laws of
Ontario, Canada, with registered office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("MICRO CANADA"), and the Guarantor (collectively, the
"SUBSIDIARIES") are direct or indirect subsidiaries of ▇▇▇▇▇▇ Micro Inc., a
corporation established under the laws of Delaware, United States of America,
with registered office at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("MICRO");
AND WHEREAS Micro, the Subsidiaries, and the other direct and indirect
subsidiaries of Micro (collectively, the "GROUP") are engaged as an integrated
group in diversified operations including wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling,
distribution and service activities;
AND WHEREAS this integrated operation requires financing on a group
basis whereby credit supplied to members of the Group is made available from
time to time to other members of the Group, including the Subsidiaries, as
required for the continued successful operation of the members of the Group
separately, and the integrated operation as a whole;
AND WHEREAS Micro has negotiated the European Credit Agreement (as
amended or otherwise modified from time to time, the "CREDIT AGREEMENT") dated
as of October 28, 1997, among Micro and the Guarantor as the Primary Borrowers
(the "PRIMARY BORROWERS"), certain financial institutions (together with their
respective successors and permitted assigns and any branch or affiliate of a
financial institution funding a Loan as permitted by SECTION 5.6 of the Credit
Agreement, collectively, the "LENDERS"), The Bank of Nova Scotia, as
Administrative Agent (in that capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, NationsBank of Texas, N.A., as Documentation Agent for the Lenders,
and certain arrangers, and also executed by Micro Singapore and Micro Canada as
Supplemental Borrowers (together with the Primary Borrowers, the "BORROWERS").
AND WHEREAS pursuant to the Credit Agreement the Lenders will make
Credit Extensions (that capitalized term and all other capitalized terms not
defined herein to have the meanings provided in the Credit Agreement) to the
Borrowers from time to time;
AND WHEREAS the Borrowers expect to make a portion of the proceeds of
the Credit Extensions available to other members of the Group, including the
Subsidiaries, in order to contribute to fulfilling the present and future
financing needs of the Group;
EXHIBIT G-1
136
AND WHEREAS each member of the Group will benefit from the
implementation of the Credit Agreement by way of secure access to sources of
long-term financing on favorable terms and conditions and financing
arrangements on a more cost-efficient basis, as well as other indirect
benefits;
AND WHEREAS it is a condition of the Lenders' entering into the Credit
Agreement and making the initial Credit Extension thereunder that each of Micro
and the Subsidiaries (including the Guarantor) enter into guarantees on the
terms and conditions set forth in the Credit Agreement;
AND WHEREAS pursuant to the Credit Agreement other subsidiaries of
Micro may be required or permitted from time to time to deliver additional
guarantees (together with this Demand Guaranty and the aforementioned
guarantees being delivered by Micro and the other Subsidiaries, collectively
the "GROUP GUARANTEES") of the Obligations of the Borrowers under the Credit
Agreement and the other Loan Documents (Micro and its Subsidiaries in their
capacity as guarantors (including the Guarantor), together with such other
subsidiaries required to deliver a guaranty from time to time pursuant to the
Credit Agreement, collectively the "GROUP GUARANTORS");
AND WHEREAS the Guarantor and the other Group Guarantors have entered
into or will enter into an agreement (the "INTRA-GROUP AGREEMENT") pursuant to
which each of the Group Guarantors must agree to provide Group Guarantees on
terms and conditions provided for in the Credit Agreement in order to obtain
the benefits from any portion of the Credit Extensions;
AND WHEREAS it is therefore necessary for the Group Guarantors to
enter into the Group Guarantees in order to obtain from the Borrowers the
benefit of any portion of the proceeds of the Credit Extensions;
AND WHEREAS the application of the Group's creditworthiness under the
Credit Agreement by means of the incorporation of unlimited guarantees of the
Group Guarantors results in a credit structure that enhances the
creditworthiness of the Group and permits financing to be raised on terms and
conditions more favorable to the members of the Group than would otherwise be
possible;
AND WHEREAS, in order to induce the Lenders, the Documentation Agent,
and the Administrative Agent (collectively, the "LENDER PARTIES") to enter into
the Credit Agreement and make Credit Extensions thereunder, and to obtain the
other valuable benefits and consideration described therein and herein, each
Group Guarantor has agreed or will agree to guarantee, on the terms and
conditions set forth in the relevant Group Guarantees the obligations of each
Borrower under the Credit Agreement, the Notes (if any), and each other Loan
Document in favor of the Lender Parties, and each Group Guarantor expects to
derive benefits, directly or indirectly, from the proceeds of the Credit
Extensions;
AND WHEREAS this Demand Guaranty is intended to constitute and
constitutes an independent guaranty on first demand (guarantee op eerste
verzoek), and not an ordinary guaranty (borgtocht), and the other Group
Guarantees are on terms and conditions similar to those of an independent
guaranty on first demand (guarantie op eerste verzoek), and in particular to
the terms of this Demand Guaranty;
AND WHEREAS, pursuant to the terms of the Group Guarantees, at any
time when any Lender Party is entitled to demand payment under the Group
Guarantees, such Lender Party may, at its option,
EXHIBIT G-1
137
make demand on any one or more Group Guarantors and is not obliged to make
demand on any proportionate basis;
AND WHEREAS the Intra-Group Agreement provides for (i) indemnification
by the Borrowers in favor of each Group Guarantor for Guarantor Losses (as
defined in the Intra-Group Agreement) and for (ii) contribution by all the
Group Guarantors such that all losses, costs and expenses incurred by the Group
Guarantors in connection with the obligations created by the Group Guarantees
shall be shared by all of the Group Guarantors proportionately on the basis of
their net asset values and their obligations to the Borrowers as at the date
such losses, costs and expenses may be incurred;
AND WHEREAS the Credit Agreement is governed by the laws of England;
the Micro Guaranty is governed by the laws of the State of New York, United
States; the Micro Canada Guaranty (Coordination Center/Micro Singapore) and
Micro Canada Guaranty (Micro) are governed by the laws of the Province of
Ontario, Canada; the Micro Singapore Guaranty is governed by the laws of
Singapore; and this Demand Guaranty and the Intra-Group Agreement are governed
by the laws of Belgium;
THE FOREGOING HAVING BEEN PRESENTED, it is contracted and agreed as
follows:
1. Guaranty on First Demand.
(a) The Guarantor hereby unconditionally, absolutely and
irrevocably guarantees on first demand, by way of an independent guaranty on
first demand (guarantie op eerste verzoek) and not by way of ordinary guaranty
(borgtocht), to each Lender Party (including their respective successors and
assigns):
(i) the full and punctual payment when due, whether on
demand, at stated maturity, or on a prepayment date, by acceleration
or otherwise, of all amounts payable by the Borrowers (other than the
Guarantor) under or in connection with the Credit Agreement and the
other Loan Documents, including, without limitation, all principal,
interest, premiums, fees and expenses payable by the Borrowers (other
than the Guarantor) thereunder and all reasonable expenses incurred by
any Lender Party in enforcing any rights under the Credit Agreement,
the Notes, and the other Loan Documents (including this Demand
Guaranty) (all of the foregoing guaranteed payments described in this
SECTION 1(a)(i) being the "GUARANTEED PAYMENTS"), and
(ii) the full performance and observance as required of
all of the covenants, conditions and agreements provided in the Credit
Agreement and each other Loan Document required to be performed or
observed by each Borrower (other than the Guarantor) (all of the
foregoing guaranteed obligations described in this SECTION 1(a)(ii)
being the "GUARANTEED COVENANTS" and, collectively with the Guaranteed
Payments, being the "GUARANTEED OBLIGATIONS").
(b) The costs guaranteed by this Demand Guaranty include all costs
of registration and all other ancillary costs which this Demand Guaranty could
lead to, including without limitation any and all costs and expenses
(including, to the fullest extent permitted by law, reasonable attorney's fees
and expenses) incurred by any Lender Party in enforcing any rights under this
Demand Guaranty.
2. Effective Date. This Demand Guaranty shall enter into force
upon the date hereof.
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EXHIBIT G-1
138
3. Payment and Performance on Demand. The Guarantor shall make
payment of all Guaranteed Payments and of all other amounts payable by it
hereunder forthwith after substantiated demand therefor is made in writing to
it by any Lender Party. Such demand shall be deemed to have been sufficiently
substantiated if it is for the amount specified in a statement by such Lender
Party of the amounts payable and not paid by the Borrowers (other than the
Guarantor) under the terms of the Credit Agreement, and of any other amounts
payable by the Guarantor hereunder.
In addition, and without prejudice or limitation to the foregoing, the
Guarantor shall perform or ensure performance of each Guaranteed Covenant, to
the extent of its legal capacity and to the best of its abilities, forthwith
after substantiated demand therefor is made in writing to it by any Lender
Party. Such demand shall be deemed to have been sufficiently substantiated if
it identifies the Loan Document under which the obligation to perform or comply
with each such Guaranteed Covenant arises, specifies the relevant section of
such Loan Document, and states that such Guaranteed Covenant is required of
such Borrower by such Loan Document but has not been performed or complied
with.
Each substantiated demand pursuant to this SECTION 3 shall be deemed
to have been effectively made by a Lender Party when addressed to the Guarantor
at its last address known to such Lender Party and personally delivered to such
address or, if sent by telecopy or other similar means of telecommunications,
when the appropriate receipt of transmission is received by the sender thereof.
This Demand Guaranty constitutes a first demand guaranty, and the
Guarantor specifically agrees that it shall not be necessary or required that
any Lender Party exercise any right, assert any claim or demand or enforce any
remedy whatsoever against any Borrower or any other Obligor or any other
Person, before or as a condition to the obligations of the Guarantor hereunder.
4. Guarantee Absolute, etc. This Demand Guaranty shall in all
respects be a continuing, absolute and unconditional and irrevocable guaranty
on first demand. The liability of the Guarantor under this Demand Guaranty is
absolute and irrevocable and a Guaranteed Payment shall be deemed to be payable
by each Borrower (other than the Guarantor) and a Guaranteed Covenant shall be
deemed to be required of each Borrower (other than the Guarantor), for the
purposes of this Demand Guaranty, including for the purposes of any demand
pursuant to SECTION 3 above, notwithstanding:
(a) any lack of validity or enforceability of any Obligor's
obligations under or with respect to any Loan Document or any other agreement
or instrument relating thereto, or the existence of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting the terms of any
Loan Document or the rights or obligations of the Obligors thereunder or with
respect thereto;
(b) any change, whether or not agreed to by the Lender Parties, in
the time, manner or place of payment of, or in any other term of, all or any of
the Loan Documents or any other amendment, renewal, extension, acceleration,
compromise or waiver of or any consent or departure from the terms or
provisions of any of the Loan Documents;
(c) the lack of power or authority of any of the Obligors to
execute and deliver any of the Loan Documents; any set-off or counterclaim
which may at any time be available to or asserted by any of the Obligors
against any Lender Party with respect to such Obligor's obligations under any
of the Loan Documents; the existence or continuance of any Obligor as a legal
entity; the consolidation or merger of any Obligor with or into any other
corporation, or the sale, lease or other disposition by any Obligor of all
4
EXHIBIT G-1
139
or substantially all of its assets to any other business entity, whether or not
effected in compliance with the provisions of the Loan Documents; or the
bankruptcy or insolvency of any Obligor, the admission in writing by any
Obligor of its inability to pay its debts as they mature, or the making by any
Obligor of a general assignment for the benefit of, or entering into a
composition or arrangement with, creditors;
(d) any act, failure to act, delay or omission whatsoever on the
part of any Lender Party, including, without limitation, any failure to demand,
delay in demanding or rescission of a demand for any payment under any of the
Loan Documents, any failure to give to any Obligor (including the Guarantor)
notice of default in the making of any payment due and payable under any of the
Loan Documents or in the performance of any covenant, condition or agreement
contained in any of the Loan Documents, any action taken by any Lender Party
in the exercise, either in whole or in part, of any right or power conferred by
any of the Loan Documents, or the failure, delay or omission by any Lender
Party to exercise any such right or power;
(e) any invalidation of any of the obligations of the Guarantor or
any other Obligor or the repudiation by the Guarantor of this Demand Guaranty
or any of the other Group Guarantees by any other Group Guarantor, whether or
not under color of right;
(f) except in each case by a written amendment, waiver, consent,
release, or termination executed and delivered by the Administrative Agent or
any other appropriate Lender Party pursuant to SECTION 13(b) of this Demand
Guaranty, SECTION 11.1(b) of the Credit Agreement, or both, as applicable, any
act, failure to act, delay or omission whatsoever on the part of any Lender
Party with respect to any of the Loan Documents, including any termination of
any such obligations, any amendment, compromise or waiver of or any consent or
departure from the terms or provisions of this Demand Guaranty or the other
Group Guarantees or any release of the Guarantor or the other Group Guarantors,
from liability hereunder or thereunder;
(g) except in each case by a written amendment, waiver, consent,
release, or termination executed and delivered by the Administrative Agent or
any other appropriate Lender Party pursuant to SECTION 13(b) of this Demand
Guaranty, SECTION 11.1(b) of the Credit Agreement, or both, as applicable, any
release, discharge, modification or exchange of any property pledged or
mortgaged or in which a security interest has been granted as collateral for
the Guaranteed Obligations, or any amendment or termination of or consent or
waiver under any agreement or instrument now or hereafter providing for
granting, pledging, mortgaging or conveying collateral for the Guaranteed
Obligations; and
(h) any other circumstance which might otherwise constitute a
defense available to, or a discharge under applicable laws of, the Borrowers or
any other Obligor.
As between the Guarantor on the one hand and the Lender Parties on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in the Credit Agreement notwithstanding any stay,
injunction, or other prohibition preventing such declaration as against the
Obligors (other than Ingram European Coordination Center N.V. in its capacity
as the Guarantor), and, in the event of any such declaration, such obligations
shall forthwith be deemed to be amounts payable by such Obligors for purposes
of this Demand Guaranty.
5. TERM OF THE DEMAND GUARANTY. This Demand Guaranty shall
continue in force so long as (a) any of the Guaranteed Obligations is
outstanding and (b) the Commitments have not been fully
5
EXHIBIT G-1
140
terminated.
6. WAIVER OF NOTICE. The Guarantor hereby waives notice of
acceptance, default, dishonor, non-payment, non-performance or any other notice
to or upon the Obligors, other than any notice required by this Demand
Guaranty.
7. NO SUBROGATION. Notwithstanding any payment or payments made
or expenses incurred by the Guarantor pursuant to this Demand Guaranty, the
rights of the Guarantor:
(a) against each Borrower (other than the Guarantor) in respect of
any and all rights of reimbursement and subrogation with respect to this Demand
Guaranty or any other guaranty of any nature (including the other Group
Guarantees);
(b) against each Borrower (other than the Guarantor), any other
Subsidiary or any other party to the Intra-Group Agreement in respect of any
and all present and future debts and obligations thereunder of such party to
the Guarantor; and
(c) if an Event of Default shall have occurred and be continuing,
against each Borrower (other than the Guarantor) in respect of any and all
other present and future debts and obligations of such Borrower to the
Guarantor, (including any right of subrogation, reimbursement, exoneration or
indemnification) are hereby postponed in favor of and subordinated to the (x)
full payment in cash of all the Guaranteed Obligations owing to the Lender
Parties and (y) the termination of all Commitments. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, and the
Guaranteed Obligations shall not have been paid in cash in full and the
Commitments of the Lender Parties shall not have terminated, such amount shall
be deemed to have been paid to the Guarantor for the benefit of, and held by
the Guarantor in the name and for the account of the Lender Parties and, in
addition, shall forthwith be paid to the Administrative Agent for the account
of the Lender Parties to be credited and applied upon the Guaranteed
Obligations if then matured or forthwith be repaid to the relevant Borrower if
such obligations are then unmatured.
8. CONTINUING GUARANTY. This Demand Guaranty shall continue to
be effective, or be reinstated as the case may be, if at any time any payment,
or any part thereof, of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by any Lender Party upon the insolvency,
bankruptcy or reorganization of any Borrower or any other Obligor (including
the Guarantor) or otherwise, all as though such payment had not been made.
9. SUCCESSORS, ASSIGNMENT. This Demand Guaranty shall be binding
upon the Guarantor and its legal successors and assigns. The benefit of this
Demand Guaranty at any time is intended for the benefit of each Lender Party
and its successors and assigns, and shall be considered, subject to any
procedures or formalities required by law, to be assigned upon the assignment
or transfer by any Lender Party of its Notes and other rights and obligations
under the Credit Agreement and the other Loan Documents without requiring any
act of or consent or acknowledgment from the Guarantor. The Guarantor hereby
irrevocably appoints Micro as its mandatary to receive notice, by way of
registration pursuant to the Credit Agreement, of the transfer of any Note or
of other rights and obligations with respect to the Credit Agreement and the
other Loan Documents (including this Guaranty) by any Lender Party, and
instructs Micro, in its capacity as mandatary, to inform the directors of the
Guarantor forthwith of any such transfer.
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EXHIBIT G-1
141
10. COUNTERPARTS. This Demand Guaranty may be executed in one or
more counterparts, and the Guarantor hereby agrees to enter into and provide to
any Lender Party such additional counterparts of this Demand Guaranty as such
Lender Party may request in writing at any time and from time to time.
11. ENTIRE AGREEMENT. This Demand Guaranty, together with the
other agreements and documents herein or therein referred to, constitutes the
entire agreement between the parties pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, between the parties with respect to the
subject matter hereof, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth herein.
12. DIVISIBILITY. If any obligation, covenant, or provision
herein contained is determined to be invalid, illegal or unenforceable, in
whole or in part, by a court of competent jurisdiction, such determination
shall not affect or impair and shall not be deemed to affect or impair, the
validity, legality or enforceability of any other obligation, covenant or
provision herein contained. Each such obligation, covenant or provision so
determined to be invalid, illegal or unenforceable shall be interpreted in such
manner as to render it or them valid, legal and enforceable to the greatest
extent permitted by applicable law. Each obligation, covenant and provision of
this agreement is hereby declared to be divisible, separate and distinct.
13. MISCELLANEOUS PROVISIONS.
(a) This Demand Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof, including, without limitation, SECTION 5.11 and ARTICLE XI thereof.
(b) No amendment to or waiver of any provision of this Demand
Guaranty, nor consent to any departure by the Guarantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent on behalf of the Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
(c) All notices and communications provided to any party hereto,
other than as provided in SECTION 3 hereof, shall be made in the manner, and
subject to the provisions set forth in SECTION 11.2 of the Credit Agreement.
(d) Section captions used in this Demand Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
(e) In addition to, and not in limitation of, any rights of any
Lender Party under applicable law, each Lender Party shall, upon the occurrence
and during the continuance of any Default described in any of CLAUSES (a)
through (d) of SECTION 9.1.9 of the Credit Agreement (after providing notice to
the Guarantor with respect thereto) or any Event of Default, have the right, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final), credits, accounts
or moneys of the Guarantor to the payment of the obligations of the Guarantor
that are at such time due and owing to such Lender
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EXHIBIT G-1
142
Party hereunder, irrespective of whether or not such Lender Party shall have
made any demand under any Loan Document.
14. APPLICABLE LAW; SUBMISSION TO JURISDICTION. This Demand
Guaranty shall be governed by and interpreted in accordance with the laws of
Belgium. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS DEMAND GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR THE GUARANTOR PURSUANT TO THIS DEMAND GUARANTY, SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, U.S.A., THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE
COURTS OF BRUSSELS, BELGIUM. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE AFOREMENTIONED COURTS FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE AND, IN THE CASE OF THE COURTS OF THE STATE
OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN SUCH
LITIGATION BY THE MAILING OF COPIES OF SUCH PROCESS TO THE GUARANTOR AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 11.2 OF THE CREDIT AGREEMENT, IN EACH
SUCH CASE MARKED FOR THE ATTENTION OF GENERAL COUNSEL, ▇▇▇▇▇▇ MICRO INC., OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK IN A MANNER PERMITTED
BY THE LAWS OF EACH SUCH JURISDICTION. THE GUARANTOR HEREBY EXPRESSLY, AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM. TO THE EXTENT THAT THE
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS DEMAND GUARANTY.
15. WAIVER OF JURY TRIAL. THE LENDER PARTIES AND THE GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS DEMAND GUARANTY OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF THE LENDER PARTIES OR THE GUARANTOR, THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF THIS DEMAND GUARANTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT
AND MAKING CREDIT EXTENSIONS THEREUNDER.
DONE at Santa Ana, California as of October 28, 1997.
By ________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Authorized Representative
8
EXHIBIT G-1
143
EXHIBIT G-2
INTRA-GROUP AGREEMENT
This Intra-Group Agreement is made as of October 28, 1997 (this
"AGREEMENT") between:
o INGRAM MICRO INC., a corporation existing under the laws of the State
of Delaware, United States of America, with registered office at ▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America (hereinafter referred to as "MICRO");
o INGRAM MICRO SINGAPORE PTE LTD., a corporation existing under the laws
of Singapore, with registered office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇-▇▇/▇▇,
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter referred to as "MICRO
SINGAPORE");
o INGRAM MICRO INC., a corporation existing under the laws of the
Province of Ontario, Canada, with registered office at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter referred to as
"MICRO CANADA"); and
▇ ▇▇▇▇▇▇ EUROPEAN COORDINATION CENTER N.V., a corporation ("NAAMLOZE
VENNOOTSCHAP"), existing under the laws of Belgium as a coordination
center, with its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, registered with the trade register of
Brussels under the number 547.298 (hereinafter referred to as
"COORDINATION CENTER");
WHEREAS, Micro Singapore, Micro Canada, and Coordination Center
(collectively, the "SUBSIDIARIES") are direct or indirect subsidiaries of
Micro;
AND WHEREAS Micro, the Subsidiaries and the other direct and indirect
subsidiaries of Micro (collectively, the "GROUP") are engaged as an integrated
group in diversified operations including wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling
distribution and service activities;
AND WHEREAS this integrated operation requires financing on a group
basis whereby credit supplied to members of the Group is made available from
time to time to other members of the Group, including the Subsidiaries, as
required for the continued successful operation of the members of the Group
separately, and the integrated operation as a whole,
AND WHEREAS Micro and Coordination Center (the "PRIMARY BORROWERS"),
certain financial institutions (together with their respective successors and
permitted assigns and any branch or affiliate of a financial institution
funding a Loan as permitted by SECTION 5.6 of the Credit Agreement,
collectively, the "LENDERS"), The Bank of Nova Scotia, as Administrative Agent
(in that capacity, the "ADMINISTRATIVE AGENT") for the Lenders, NationsBank of
Texas, N.A., as Documentation Agent for the Lenders, and certain arrangers are
parties to the European Credit Agreement (as amended or otherwise modified from
time to time, the "CREDIT AGREEMENT") dated as of October 28, 1997, which is
also executed by Micro Singapore and Micro Canada as Supplemental Borrowers
(together with the Primary Borrowers, the "BORROWERS");
EXHIBIT G-2
144
AND WHEREAS pursuant to the Credit Agreement the Lenders will make
Credit Extensions (that capitalized term and all other capitalized terms not
defined herein to have the meanings provided in SECTION 1.1) to the Borrowers
from time to time;
AND WHEREAS the Borrowers expect to make a portion of the proceeds of
the Credit Extensions available to other members of the Group, including the
Subsidiaries, in order to contribute to fulfilling the present and future
financing needs of the Group;
AND WHEREAS each member of the Group will benefit from the
implementation of the Credit Agreement by way of secure access to sources of
long-term financing on favorable terms and conditions permitting a reduced cost
of funds, currency conversion and financing arrangements on a more
cost-efficient basis, as well as other indirect benefits;
AND WHEREAS it is a condition of the Lenders' entering into the Credit
Agreement and making the initial Credit Extension thereunder that each of Micro
and the Subsidiaries enter into guaranties on the terms and conditions set
forth in the Credit Agreement;
AND WHEREAS pursuant to the Credit Agreement other subsidiaries of
Micro may be required from time to time to deliver additional guarantees
(together with the aforementioned guaranties being delivered by Micro and the
Subsidiaries, collectively the "GUARANTIES" and individually a "GUARANTY") of
the Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents (Micro and its Subsidiaries in their capacity as guarantors, together
with such other Persons becoming a party to this Agreement pursuant to SECTION
4.3 hereof, the "GUARANTORS");
AND WHEREAS in order to obtain the benefits from any portion of the
proceeds of the Credit Extensions, each of the Guarantors must agree to provide
guarantees on the terms and conditions of its Guaranty, and the parties hereto
desire to confirm and acknowledge this obligation;
AND WHEREAS it is therefore necessary for each Guarantor to enter into
its Guaranty in order to obtain from the Borrowers the benefit of any portion
of the proceeds of the Credit Extensions;
AND WHEREAS the application of the Group's creditworthiness under the
Credit Agreement by means of the incorporation of unlimited guarantees of the
Guarantors results in a credit structure that enhances the creditworthiness of
the Group and permits financing to be raised on terms and conditions more
favorable to the members of the Group, including the parties hereto, than would
otherwise be possible;
AND WHEREAS in order to induce the Lenders, the Documentation Agents
and the Administrative Agent (collectively, the "LENDER PARTIES") to enter into
the Credit Agreement and make Credit Extensions thereunder, and to obtain the
other valuable benefits and consideration described herein, each Subsidiary has
agreed to guarantee, on the terms and conditions set forth in the relevant
Guaranties, the Obligations of each Borrower under the Credit Agreement, the
Notes (if any), and each other Loan Document in favor of the Lender Parties,
and each Subsidiary expects to derive benefits, directly or indirectly, from
the proceeds of the Credit Extensions;
AND WHEREAS pursuant to the term of the Guaranties, at any time when
any Lender Party is entitled to demand payment under the Guaranties, such
Lender Party may, at its option, make demand on
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any one or more Guarantors and is not obliged to make demand on any
proportionate basis;
AND WHEREAS the parties hereto desire to enter into an arrangement to
provide for (i) indemnification by the Borrowers in favor of each Guarantor for
Guarantor Losses (as defined in SECTION 2.3 hereof) and for (ii) contribution
by all parties such that all losses, costs and expenses incurred by the
Guarantors in connection with the obligations created by the Guaranties shall
be shared by all of the Guarantors proportionately on the basis of their net
asset values and their obligations to the Borrowers as at the date such losses,
costs and expenses may be incurred;
AND WHEREAS the Credit Agreement will be governed by the laws of
England; the Micro Guaranty will be governed by the laws of the State of New
York, United States of America; the Micro Canada Guaranty (Micro) and the Micro
Canada Guaranty (Coordination Center/Micro Singapore) will be governed by the
laws of the Province of Ontario, Canada; the Micro Singapore Guaranty will be
governed by the laws of Singapore; and this Agreement and the Coordination
Center Guaranty will be governed by the laws of Belgium.
THE FOREGOING HAVING BEEN PRESENTED, the parties hereto contract and
agree as follows:
ARTICLE 1 - INTERPRETATION
1.1. DEFINITIONS. For the purposes of this Agreement:
(a) "CREDIT DOCUMENTS" shall mean the Credit Agreement,
the Notes (if any), the Loan Documents (including the Guaranties), and
each other agreement or instrument relating thereto;
(b) "NET ASSET AMOUNT" of a Guarantor at any time shall
mean the sum of its Stockholders' Equity at that time, plus the net
amount (if greater than zero) of any obligations owed by such
Guarantor to the Borrowers at that time (it being understood and
agreed that, in the case of any Guarantor that is also a Borrower,
such Guarantor shall not be considered to owe any obligation to itself
in its capacity as such Borrower);
(c) "STOCKHOLDER'S EQUITY" of a Guarantor at any time
shall mean the amount of its unconsolidated stockholders' equity as
shown on its most recent periodic financial statements prepared as of
that time; and
(d) all capitalized terms used herein without definition
shall have the meanings set forth in the Credit Agreement.
1.2. INTERPRETATION NOT AFFECTED BY HEADINGS. The division of this
Agreement into sections, articles, paragraphs and other portions and the
insertion of headings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement. The terms "THIS
AGREEMENT",
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"HEREOF", "HEREIN", "HEREUNDER" and similar expressions refer to this Agreement
and not to any particular section, article, paragraph or other portion hereof
and include any agreement or instrument supplementary or ancillary hereto.
1.3. GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the laws of Belgium.
1.4. CURRENCY. Unless the contrary is expressly indicated, any
reference in this Agreement to a sum of money as of any time shall be a
reference to such sum in, or converted as of that time into, lawful money of
the United States of America, and all payments to be made hereunder shall be
made in that currency.
1.5. SCHEDULE. The following schedule annexed hereto is
incorporated herein by reference and deemed to be part hereof:
SCHEDULE A -- A form of execution copy of Credit Agreement dated as
of October 28, 1997, including the schedules and
exhibits attached thereto.
1.6. ENTIRE AGREEMENT. This Agreement, together with the Schedule,
agreements and other documents herein or therein referred to, constitutes the
entire agreement between the parties pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, between the parties with respect to the
subject matter hereof, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth herein.
1.7. DIVISIBILITY. If any obligation, covenant or provision herein
contained is determined to be invalid, illegal or unenforceable, in whole or in
part, by a court of competent jurisdiction, such determination shall not affect
or impair and shall not be deemed to affect or impair, the validity, legality
or enforceability of any other obligation, covenant or provision herein
contained and each such obligation, covenant or provision shall be interpreted
in such manner as to render them valid, legal and enforceable to the greatest
extent permitted by applicable law. Each obligation, covenant and provision of
this Agreement is hereby declared to be divisible, separate and distinct.
ARTICLE 2 - AGREEMENTS
2.1. ACKNOWLEDGMENTS. Each of the parties hereto acknowledges and
confirms:
(a) that it has received an execution copy of the Credit
Agreement and other Loan Documents, and that its financial officers
have reviewed the contents of such agreements as well as all other
documents, facts and other circumstances necessary to arrive at an
informed judgment as to the advisability of entering into its Guaranty
and of the benefits obtained by implementing its Guaranty; and
(b) that the proceeds of the Credit Extensions will be an
essential element necessary to meet its long-term financing needs,
that it expects to benefit directly and indirectly from the
implementation of the Credit Agreement and the other Loan Documents,
and that the terms and conditions of the Credit Agreement and the
other Loan Documents, including the Guarantees,
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will be more favorable than any long-term financing arrangement it
could negotiate on its own behalf without the credit support of the
Group.
2.2. EXECUTION OF DEFINITIVE AGREEMENTS. Subject to approval of
definitive agreements by its board of directors or other managing authority, as
applicable, each of the parties hereto covenants and agrees to execute and
deliver each Guaranty to which it is a party on the terms and conditions set
out in the Credit Agreement.
2.3. INDEMNITY OF BORROWERS. Subject to the rights of any Lender
Party under the Credit Documents (including the subordination provisions
contained therein), each Borrower hereby agrees to indemnify each Guarantor
forthwith upon demand and to hold each Guarantor harmless against any and all
losses, costs and expenses incurred by such Guarantor as a result of fulfilling
its obligations under any Guaranty provided by it ("GUARANTOR LOSSES") in
respect of the Obligations of such Borrower. Subject to SECTION 2.7, a
Guarantor that has incurred Guarantor Losses may elect to obtain the benefit of
the indemnity under this SECTION 2.3 by setting its Guarantor Losses off
against the net amount of any obligations that it may owe to any Borrower at
that time to the extent of such net amount.
2.4. GUARANTOR INDEMNITIES. Subject to the rights of any Lender
Party under the Credit Documents (including the subordination provisions
contained therein), and without in any way limiting the liabilities of any
Borrower under SECTION 2.3, each of the Guarantors jointly and severally agrees
to indemnify every other Guarantor forthwith upon demand and hold every other
Guarantor harmless against any and all Guarantor Losses incurred by such
Guarantor (an "INDEMNIFIED GUARANTOR") to the extent that such Guarantor
Losses exceed the Indemnified Guarantor's Net Asset Amount on the date such
Guarantor Losses are incurred; provided that no Guarantor shall be required to
pay an amount in respect of the indemnity set forth in this SECTION 2.4 greater
than its Net Asset Amount on such date.
2.5. SHARING LOSSES. Subject to the rights of any Lender Party
under the Credit Documents (including the subordination provisions contained
therein) and without in any way limiting the liabilities of any Borrower under
SECTION 2.3 or of the Guarantors under SECTION 2.4, each of the Guarantors
agrees that the liability for all Guarantor Losses shall be shared by the
Guarantors pro rata on the basis of each Guarantor's Net Asset Amount. For
greater certainty, following the fulfillment of obligations under the
Guaranties, including payments made under the indemnities set forth in SECTION
2.4, each Guarantor covenants and agrees to compensate the Guarantors incurring
Guarantor Losses, either directly as a result of the Guaranties or indirectly
as a result of the indemnity set forth in SECTION 2.4, by the payment of an
amount not exceeding its own Net Asset Amount (the "COMPENSATION PAYMENT") to
such Guarantors that will be sufficient, when aggregated with all other
Compensation Payments made hereunder, to ensure that no Guarantor incurs a
liability for Guarantor Losses greater than an amount equal to the product
obtained by multiplying the aggregate Guarantor Losses of all the Guarantors at
such time by a fraction the numerator of which is the Net Asset Amount of such
Guarantor and the denominator of which is the aggregate Net Asset Amounts of
all the Guarantors at that time.
2.6. APPLICATION OF FUNDS. Each Borrower hereby covenants and
agrees that the proceeds from the Credit Extensions will be used for the
purpose of meeting the financing requirements of the Group, including the
Guarantors, and that funds provided out of such proceeds will be available to
support the operational and expansion needs of the Guarantors from time to
time.
2.7. NO SUBROGATION. Notwithstanding any payment or payments made
or expenses incurred
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by any Guarantor pursuant to this Agreement, the rights of such a Guarantor
(a) against each Borrower (other than such Guarantor) in
respect of any and all rights of reimbursement, indemnification and
subrogation with respect to the Guaranties or any other guaranty of
the Credit Documents of any nature,
(b) against each Borrower (other than such Guarantor),
any other Guarantor or any other party hereto in respect of any and
all present and future debts and obligations of such party under this
Agreement to such Guarantor, and
(c) against each Borrower (other than such Guarantor), at
any time when an Event of Default shall have occurred and be
continuing, in respect of any and all other present and future debts
and obligations of each Borrower to such Guarantor,
(including any right of subrogation, reimbursement, exoneration or
indemnification) are hereby postponed in favor of and subordinated to (i) the
payment in full in cash of all of the obligations of each Obligor owing to all
of the Lender Parties under or with respect to the Credit Documents and (ii)
the termination of all the Commitments. If any amount shall be paid to any of
the Guarantors with respect to any of the foregoing rights prior to the
occurrence of the events described in CLAUSES (i) and (ii) of the preceding
sentence, such amount shall be deemed to have been paid to each such Guarantor
for the benefit of, and held by each such Guarantor in the name and for the
account of the Lender Parties and, in addition, shall forthwith be paid to the
Administrative Agent for the account of the Lender Parties to be credited and
applied against the obligations of such Guarantor pursuant to its Guaranty if
then matured or forthwith be repaid to the relevant Borrower if such
obligations are then unmatured.
2.8. LIABILITY UNDER THE DOCUMENTS. The provisions of this
Agreement shall in no way limit or otherwise affect the liability of any of the
Borrowers for Credit Extensions made pursuant to any of the Credit Documents.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS. Each of the
parties hereto hereby represents and warrants to each of the other parties
hereto as follows and acknowledges that each of the other parties is relying
upon such representations and warranties in connection with the matters
contemplated by this Agreement:
(a) it has not ceased to pay its creditors, nor has its
bank credit been disrupted or suspended, nor is it in any other
condition relevant to the determination of bankruptcy under the laws
of bankruptcy applicable to it; no acts or proceedings have been taken
by or against it in connection with, it has not received any notice in
respect of, and it is not in the course of liquidation, winding-up,
dissolution, bankruptcy or reorganization; and
(b) this Agreement has been validly authorized, executed
and delivered by it and is a valid and legally binding obligation of
it enforceable against it in accordance with its terms.
3.2. REPRESENTATION AND WARRANTY OF MICRO. Micro hereby represents
and warrants to each of the other parties hereto that it believes, as a result
of its independent analysis and negotiations with the
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Lender Parties, that application of the Group's creditworthiness by means of
the incorporation of unlimited guarantees of the Guarantors results in a credit
structure that enhances the creditworthiness of the Group and permits financing
to be raised on terms and conditions more favorable than otherwise possible.
Micro acknowledges that each of the other parties hereto is relying upon the
foregoing representation and warranty in connection with the matters
contemplated by this Agreement.
ARTICLE 4 - GENERAL
4.1. TERM AND TERMINATION. This Agreement shall come into force
and effect as of the date hereof and shall continue in force so long as (a) any
party hereto shall have any outstanding obligation with respect to the
obligations guaranteed by the Guaranties and (b) the Commitments have not been
fully terminated.
4.2. FURTHER ASSURANCES. Each of the parties hereto shall do all
such acts and execute and deliver all such documents or instruments as may
reasonably be requested by any of the other parties hereto or their respective
counsel as may be necessary or desirable to complete the transactions
contemplated by this Agreement and to carry out its provisions.
4.3. AMENDMENT. This Agreement may not be modified or amended
except by an instrument in writing signed by all of the parties hereto or their
respective successors or permitted assigns. Notwithstanding the foregoing
sentence, the parties agree that if any Person within the Group that is not a
party hereto hereafter becomes a Guarantor pursuant to the terms of the Credit
Agreement (a "SUBSEQUENT GUARANTOR"), each of the parties hereto covenants to
cause such Subsequent Guarantor to do all such acts and execute and deliver all
such documents or instruments as may be reasonably necessary or desirable so
that such Subsequent Guarantor becomes a party to this Agreement and becomes
bound by the terms hereof. If at any time any Guarantor shall cease to be a
Guarantor during the continuation in force of this Agreement, the obligations
of such party under this Agreement shall thereupon cease.
4.4. ASSIGNMENT RESTRICTED. No party may assign this Agreement to
any other Person without the prior written consent of each of the other parties
hereto.
4.5. COUNTERPARTS. This Agreement may be executed in counterparts,
and may be executed in any number of additional counterparts by any one or more
of the parties bound hereby. A counterpart shall be deemed to be an original
and such counterparts shall together constitute the same agreement. Each party
hereto shall receive a fully executed original of this Agreement.
4.6. SCOPE. This Agreement shall be for the benefit of the parties
hereto and the Lender Parties (including the successors and assigns) and
binding upon the parties hereto and their respective successors and permitted
assigns.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) FOLLOWS.
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150
DONE at Santa Ana, California on the date first above stated in this
Intra-Group Agreement.
▇▇▇▇▇▇ MICRO INC., a corporation ▇▇▇▇▇▇ MICRO INC., a corporation
organized and existing under the organized and existing under the laws of
laws of the State of Delaware, the Province of Ontario, Canada
United States of America
By By
------------------------------- --------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized
President & Worldwide Chief Representative
Financial Officer
▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., INGRAM EUROPEAN COORDINATION CENTER N.V.,
a corporation organized and a company organized and existing under
existing under the laws of the laws of The Kingdom of Belgium
Singapore
By By
------------------------------ -------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Authorized Representative
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EXHIBIT H
MICRO GUARANTY
Pursuant to THIS GUARANTY (this "GUARANTY"), dated as of October 28,
1997, ▇▇▇▇▇▇ MICRO INC., a Delaware corporation (the "GUARANTOR"), hereby
unconditionally, absolutely and irrevocably guarantees as primary obligor and
not as a surety merely, to each Lender Party (as defined below), without offset
or deduction, (a) the full and punctual payment when due of all amounts payable
by Ingram European Coordination Center N.V., a company organized and existing
under the laws of The Kingdom of Belgium ("COORDINATION CENTER"), ▇▇▇▇▇▇ Micro
Singapore Pte Ltd., a corporation organized and existing under the laws of
Singapore ("MICRO SINGAPORE"), ▇▇▇▇▇▇ Micro Inc., a corporation organized and
existing under the laws of the Province of Ontario, Canada ("MICRO CANADA"),
and each Acceding Borrower (as defined in the Credit Agreement described below)
that shall become a party to the Credit Agreement described below pursuant to
an Accession Request and Acknowledgment (as defined in the Credit Agreement
described below) duly acknowledged on behalf of the Guarantor (Coordination
Center, Micro Singapore, and Micro Canada being, collectively with any such
Acceding Borrower, the "OTHER BORROWERS"), under or in connection with the
European Credit Agreement (together with all amendments and other
modifications, if any, from time to time made to it, the "CREDIT AGREEMENT";
unless otherwise defined herein all capitalized terms used herein without
definition have the meanings provided for in the Credit Agreement) dated as of
October 28, 1997, among the Guarantor and Coordination Center as the Primary
Borrowers, certain financial institutions (together with their respective
successors and permitted assigns and any branch or affiliate of a financial
institution funding a Loan as permitted by SECTION 5.6 of the Credit Agreement,
collectively, the "LENDERS"), The Bank of Nova Scotia, as Administrative Agent
(in that capacity the "ADMINISTRATIVE AGENT") for the Lenders, NationsBank of
Texas, N.A., as Documentation Agent for the Lenders, and certain arrangers (the
Lenders, the Administrative Agent, that documentation agent, and those
arrangers being, collectively, the "LENDER PARTIES"), which is also executed by
Micro Singapore and Micro Canada as Supplemental Borrowers, and the other Loan
Documents, including, without limitation, all principal, interest, premiums,
fees and expenses payable by the Other Borrowers thereunder and all reasonable
expenses incurred by any Lender Party in enforcing any rights under the Credit
Agreement, the Notes (if any), and the other Loan Documents (including this
Guaranty) and (b) the full performance and observance of all of the covenants,
conditions and agreements provided in the Credit Agreement and each other Loan
Document required to be performed or observed by the Other Borrowers (all of
the foregoing guaranteed obligations being the "GUARANTEED OBLIGATIONS"). In
the case of a failure of any Other Borrower punctually to make any payment of
principal of or interest or premium on any Credit Extension or Note, the
Guarantor hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable, whether at the stated maturity,
on a prepayment date, by declaration of acceleration, or otherwise, as if such
payment were made by that Other Borrower. This Guaranty constitutes a guaranty
of payment and not a guaranty of collection. The obligations and agreements
of the Guarantor hereunder shall be performed and observed without requiring
any notice of non-payment, non-performance or non-observance, or any proof
thereof or demand therefor, all of which the Guarantor hereby expressly waives.
The Guarantor and the Other Borrowers are engaged as an integrated
group in diversified operations including wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling,
distribution and service activities. This integrated operation requires
financing on such basis that credit
EXHIBIT H
152
supplied to the Guarantor and the Other Borrowers be made available from time
to time to the other Subsidiaries of the Guarantor, separately, and as an
integrated operation as a whole. To induce the Lender Parties to enter into
the Credit Agreement and make Credit Extensions pursuant thereto, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor has agreed to guarantee, on the terms and
conditions set forth herein, the obligations of the Other Borrowers under the
Credit Agreement, the Notes (if any), and each other Loan Document, and the
Guarantor expects to derive benefit, directly or indirectly, from the Credit
Extensions made to any Other Borrower from time to time.
SECTION 1. CONSENTS AND WAIVERS BY GUARANTOR. (a) This Guaranty
shall be binding upon the Guarantor, its successors and assigns, and shall
remain in full force and effect irrespective of, and shall not be terminated
by, the existence of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting the terms of the Credit Agreement, any Note, any
other Loan Document or any other agreement or instrument relating thereto (the
foregoing agreements, documents and instruments being, collectively, the
"CREDIT DOCUMENTS"), or the rights or obligations of any Obligor under or with
respect to any of the Credit Documents. The liability of the Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of any
Obligor's obligations under or with respect to any Credit Document;
(ii) any change, whether or not agreed to by the Lender
Parties, in the time, manner or place of payment of, or in any other
term of, all or any of the Credit Documents or any other amendment,
renewal, extension, acceleration, compromise or waiver of or any
consent or departure from the terms of provisions of any of the Credit
Documents;
(iii) the lack of power or authority of any of the Obligors
to execute and deliver any of the Credit Documents, any set-off or
counterclaim which may at any time be available to or asserted by any
Obligor against any Lender Party with respect to such Obligor's
obligations under any of the Credit Documents; the existence or
continuance of any Obligor as a legal entity; the consolidation or
merger of any Obligor with or into any other corporation, or the sale,
lease or other disposition by any Obligor of all or substantially all
of its assets to any other business entity, whether or not effected in
compliance with the provisions of the Credit Agreement; or the
bankruptcy or insolvency of any Obligor, the admission in writing by
any Obligor of its inability to pay its debts as they mature, or the
making by any Obligor of a general assignment for the benefit of, or
entering into a composition or arrangement with, creditors;
(iv) any act, failure to act, delay or omission whatsoever
on the part of any Lender Party, including, without limitation, any
failure to demand, delay in demanding or rescission of a demand for
any payment under any of the Credit Documents or any failure to give
to any Obligor (including the Guarantor) notice of default in the
making of any payment due and payable under any of the Credit
Documents or performance of any covenant, condition or agreement
contained in any of the Credit Documents or any action taken by any
Lender Party in the exercise, either in whole or in part, of any right
or power conferred by any of the Credit Documents or the failure,
delay or omission by any Lender Party to exercise any such right or
power;
(v) except in each case by a written amendment, waiver,
consent, release, or
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153
termination executed and delivered by the Administrative Agent or
other appropriate Lender Party pursuant to SECTION 7(b) of this
Guaranty, SECTION 11.1(b) of the Credit Agreement, or both, as
applicable, any invalidation of any of the obligations of the
Guarantor hereunder or the repudiation of this Guaranty by the
Guarantor, whether or not under color of right, or any act, failure to
act, delay or omission whatsoever on the part of any Lender Party with
respect to the Guarantor's obligations hereunder, including, without
limitation, any termination of the obligations of the Guarantor
hereunder, any amendment, compromise or waiver of or any consent or
departure from the terms or provisions of this Guaranty with respect
to the Guarantor or any release of the Guarantor from liability
hereunder;
(vi) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any release, discharge,
modification or exchange of any property pledged or mortgaged or in
which a security interest has been granted as collateral for the
Guaranteed Obligations, or any amendment or termination of or consent
or waiver under any agreement or instrument now or hereafter providing
for granting, pledging, mortgaging or conveying collateral for the
Guaranteed Obligations; and
(vii) any other circumstance which might otherwise
constitute a defense available to, or legal or equitable discharge of,
the Other Borrowers or any other Obligor;
it being the purpose and intent of this Guaranty that the obligations of the
Guarantor hereunder shall be absolute, unconditional and irrevocable and shall
not be discharged or terminated except by full and complete performance of all
of the Guaranteed Obligations.
(b) The Guarantor agrees that it is directly and primarily liable
to the Lender Parties, that the obligations hereunder are independent of the
obligations of each Other Borrower and any other Obligor, and that a separate
action or actions may be brought and prosecuted against the Guarantor, whether
or not an action is brought against any Other Borrower or any other Obligor, or
whether any Other Borrower or any other Obligor is joined in any such action or
actions. The Guarantor agrees that any releases which may be given by the
Lender Parties to any Other Borrower or any other Obligor or endorser shall not
release it from this Guaranty.
(c) The Guarantor does hereby waive and relinquish, so far as it
may lawfully and effectively do so, the benefit and advantage of any and all
valuation, stay, appraisement, extension or redemption law or laws now in
effect or hereafter enacted. and also waives promptness, diligence, notice of
acceptance, default, dishonor, non-payment, non-performance or any other notice
to or upon any Other Borrower or the Guarantor.
SECTION 2. NO SUBROGATION.
(a) Any and all present and future debts and obligations of each
Other Borrower to the Guarantor, including rights of reimbursement and
subrogation, are hereby postponed in favor of and subordinated to the payment
in full in cash of all of the Guaranteed Obligations and termination of all the
Commitments; provided that the payment of such present and future debts other
than those due by virtue of rights of reimbursement and subrogation with
respect to this Guaranty shall be so postponed and
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154
subordinated only if an Event of Default shall have occurred and be continuing.
(b) Notwithstanding any payment or payments made or expenses
incurred by the Guarantor pursuant to this Guaranty, the Guarantor shall not be
subrogated, in whole or in part, to the rights of the Lender Parties against
any Other Borrower under the Credit Documents until the Guaranteed Obligations
shall have been paid in cash in full and the Commitments shall have terminated.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, such amount shall be deemed to have been paid to the Guarantor for
the benefit of, and held in trust for, the Lender Parties and, in addition,
shall forthwith be paid to the Administrative Agent for the account of the
Lender Parties to be credited and applied upon the Guaranteed Obligations if
then matured or forthwith be repaid to the relevant Other Borrower if such
obligations are then unmatured. The Guarantor hereby agrees that, as between
itself on the one hand and the Lender Parties on the other hand, the Guaranteed
Obligations may be declared to be forthwith due and payable notwithstanding any
stay, injunction or other prohibition preventing such declaration as against
any Other Borrowers and that, in the event of any such declaration, the
Guaranteed Obligations (whether or not then due add payable by any Other
Borrowers) shall forthwith become due and payable by the Guarantor for purposes
of this Guaranty.
SECTION 3. REINSTATEMENT OF GUARANTY. This Guaranty shall
continue to be effective, or be reinstated, as the case may be, if at any time
any payment, or any part thereof, of any of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by any Lender Party upon
the insolvency, bankruptcy or reorganization of any Other Borrower, the
Guarantor or any other Obligor or otherwise, all as though such payment had not
been made.
SECTION 4. RIGHTS OF CONTRIBUTION. The Guarantor and each other
Person providing a Guaranty pursuant to the Credit Agreement from time to time,
including those Persons executing the Acknowledgment to this Guaranty
(collectively, the "GROUP GUARANTORS"), hereby agree, as among themselves and
for the benefit of each of them. that if any Guarantor (in such capacity, an
"EXCESS FUNDING GUARANTOR") shall make any payment in respect of any of the
Guaranteed Obligations hereunder (a "GUARANTEE PAYMENT") as a result of which
such Excess Funding Guarantor shall have paid more than its Pro Rata Share (as
defined below) of the Guaranteed Obligations, each other Group Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to such Group
Guarantor's Pro Rata Share of such Guarantee Payment. The payment obligation
of any Group Guarantor to any Excess Funding Guarantor under this SECTION 4
shall be subordinate and subject to the prior payment in full in cash of the
Guaranteed Obligations (in favor of the Lender Parties) and termination of all
the Commitments and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until all of the foregoing shall have
occurred. For the purposes hereof, "PRO RATA SHARE" shall mean, for any Group
Guarantor, the ratio (expressed as a percentage and determined as of the date
of the most recent financial statements provided to the Lender Parties pursuant
to CLAUSE (a) or (b) of SECTION 8.1.1. of the Credit Agreement) of (a) the sum
of the unconsolidated stockholders equity of such Group Guarantor plus the net
amount (if greater than zero) of any obligations owed by such Group Guarantor
to all the Borrowers to (b) the sum of the unconsolidated stockholders equity
of all the Group Guarantors plus the net amount (if greater than zero) of any
obligations owed by all the Group Guarantors to all the Borrowers (it being
understood and agreed that, in the case of any Group Guarantor that is also a
Borrower, such Group Guarantor shall not be considered to owe any obligation to
itself in its capacity as such Borrower).
5
EXHIBIT H
155
SECTION 5. ASSIGNMENT; SUCCESSORS. This Guaranty is a
continuing guaranty and shall be binding upon the Guarantor and its successors
and assigns. This Guaranty shall inure to the benefit of each Under Party and
its successors and assigns and shall be considered to be assigned upon the
assignment or transfer by any Lender Party of its Notes and other rights and
obligations under the Credit Agreement and other Loan Documents without
requiring any act of or consent or acknowledgment from the Guarantor. In
furtherance of the foregoing, the Guarantor shall execute and deliver to any
assignee or transferee of any Lender Party such additional counterparts of this
Guaranty as any such Lender Party may request in writing at any time and from
time to time.
SECTION 6. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
GUARANTY SHALL BE GOVERNED BY AND ITS PROVISIONS CONSTRUED UNDER THE LAWS OF
THE STATE OF NEW YORK, ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE LENDER PARTIES
OR THE GUARANTOR PURSUANT TO THIS GUARANTY SHALL BE BROUGHT AND MAINTAINED, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY CONSENTS TO THE SERVICE OF
ANY AND ALL PROCESS IN SUCH LITIGATION OR PROCEEDING BY THE MAILING OF COPIES
OF SUCH PROCESS TO THE GUARANTOR AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION
11.2 OF THE CREDIT AGREEMENT, IN EACH CASE MARKED FOR THE ATTENTION OF GENERAL
COUNSEL, ▇▇▇▇▇▇ MICRO INC., OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE
OF NEW YORK IN THE MANNER PERMITTED BY THE LAWS OF EACH SUCH STATE. THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS GUARANTY.
SECTION 7. MISCELLANEOUS PROVISIONS.
(a) This Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof, including, without limitation, SECTION 5.11 and ARTICLE XI thereof.
(b) No amendment to or waiver of any provision of this Guaranty,
nor consent to any departure by the Guarantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent on behalf of the Lender Parties, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(c) All notices and other communications provided to any party hereto
shall be made
6
EXHIBIT H
156
in the manner, and subject to the provisions set forth in SECTION 11.2 of the
Credit Agreement.
(d) Section captions used in this Guaranty are for convenience of
reference only, and shall not affect the construction of this Guaranty.
(e) In addition to, and not in limitation of, any rights of any
Lender Party under applicable law, each Lender Party shall, upon the occurrence
and during the continuance of any Default described in any of CLAUSES (a)
through (d) of SECTION 9.1.9. of the Credit Agreement (after providing notice
to the Guarantor with respect thereto) or any Event of Default, have the right,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final), credits,
accounts or moneys of the Guarantor to the payment of the obligations of the
Guarantor that are at such time due and owing to it hereunder, irrespective of
whether or not such Lender Party shall have made any demand under any Loan
Document.
(f) Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision of the
remaining provisions of this Guaranty.
SECTION 8. WAIVER OF JURY TRIAL. THE LENDER PARTIES AND THE
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
LENDER PARTIES OR THE GUARANTOR, THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF THIS GUARANTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT AND MAKING
CREDIT EXTENSIONS THEREUNDER.
SECTION 9. ACKNOWLEDGMENT AND AGREEMENT OF OTHER GUARANTORS. By
executing the acknowledgment to this Guaranty each of the other Group
Guarantors agrees to be fully bound by the terms of SECTION 4 hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.]
7
EXHIBIT H
157
IN WITNESS WHEREOF, the undersigned corporation has caused this
Guaranty to be executed on its behalf as of the date above written by one of
its officers duly authorized thereunto.
▇▇▇▇▇▇ MICRO INC., a corporation
organized and existing under the laws of
the State of Delaware, United States of
America
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive
Vice President, & Worldwide Chief
Financial Officer
ACKNOWLEDGED AND AGREED TO THE TERMS OF SECTION 4:
INGRAM EUROPEAN COORDINATION ▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD.,
CENTER N.V., a company organized a corporation organized and
and existing under the laws of existing under the laws of Singapore
The Kingdom of Belgium
By By
------------------------------ --------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney
Representative
▇▇▇▇▇▇ MICRO INC., a corporation organized
and existing under the laws of the Province of Ontario, Canada
By
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized Representative
8
EXHIBIT H
158
EXHIBIT I-1
MICRO CANADA GUARANTY
(COORDINATION CENTER/MICRO SINGAPORE)
Pursuant to THIS GUARANTY (this "GUARANTY"), dated as of October 28,
1997, ▇▇▇▇▇▇ MICRO INC., an Ontario, Canada corporation (the "GUARANTOR"),
hereby unconditionally, absolutely and irrevocably guarantees as primary
obligor and not as a surety merely, to each Lender Party (as defined below),
without offset or deduction, (a) the full and punctual payment when due of all
amounts payable by Ingram European Coordination Center N.V., a company
organized and existing under the laws of The Kingdom of Belgium ("COORDINATION
CENTER"), ▇▇▇▇▇▇ Micro Singapore Pte Ltd., a corporation organized and existing
under the laws of Singapore ("MICRO SINGAPORE"), and each Acceding Borrower (as
defined in the Credit Agreement described below) that shall become a party to
the Credit Agreement described below pursuant to an Accession Request and
Acknowledgment (as defined in the Credit Agreement described below) duly
acknowledged on behalf of the Guarantor (Coordination Center and Micro
Singapore being, collectively with any such Acceding Borrower, the "COVERED
BORROWERS"), under or in connection with the European Credit Agreement
(together with all amendments and other modifications, if any, from time to
time made to it, the "CREDIT AGREEMENT"; unless otherwise defined herein all
capitalized terms used herein without definition have the meanings provided for
in the Credit Agreement) dated as of October 28, 1997, among ▇▇▇▇▇▇ Micro Inc.
(a corporation organized and existing under the laws of the State of Delaware)
and Coordination Center as the Primary Borrowers, certain financial
institutions (together with their respective successors and permitted assigns
and any branch or affiliate of a financial institution funding a Loan as
permitted by SECTION 5.6 of the Credit Agreement, collectively, the "LENDERS"),
The Bank of Nova Scotia, as the Administrative Agent (in such capacity the
"ADMINISTRATIVE AGENT") for the Lenders, NationsBank of Texas, N.A., as the
Documentation Agent for the Lenders, and certain arrangers (the Lenders, the
Administrative Agent, that Documentation Agent, and those arrangers being,
collectively, the "LENDER PARTIES"), and also executed by the Guarantor and
Micro Singapore as Supplemental Borrowers, and the other Loan Documents,
including, without limitation, all principal, interest, premiums, fees and
expenses payable by any Covered Borrower thereunder and all reasonable expenses
incurred by any Lender Party in enforcing any rights under the Credit
Agreement, the Notes (if any), and the other Loan Documents (including this
Guaranty) and (b) the full performance and observance of all of the covenants,
conditions and agreements provided in the Credit Agreement and each other Loan
Document required to be performed or observed by any Covered Borrower (all of
the foregoing guaranteed obligations being the "GUARANTEED OBLIGATIONS". In
the case of a failure of any Covered Borrower punctually to make any payment of
principal of or interest or premium on any Credit Extension or Note, the
Guarantor hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable, whether at the stated maturity,
on a prepayment date, by declaration of acceleration, or otherwise, as if such
payment were made by the relevant Covered Borrower. This Guaranty constitutes
a guaranty of payment and not a guaranty of collection. The obligations and
agreements of the Guarantor hereunder shall be performed and observed without
requiring any notice of non-payment, non-performance or non-observance, or any
proof thereof or demand therefor, all of which the Guarantor hereby expressly
waives.
The Guarantor and the other Borrowers are engaged as an integrated
group in diversified operations including wholesale distribution of
microcomputer software and hardware products,
EXHIBIT I-1
159
multimedia products, customer financing, assembly and configuration and other
related wholesaling, distribution and service activities. This integrated
operation requires financing on such basis that credit supplied to the
Guarantor and the other Borrowers be made available from time to time to the
other Subsidiaries of Micro, separately, and as an integrated operation as a
whole. To induce the Lender Parties to enter into the Credit Agreement and
make Credit Extensions pursuant thereto, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Guarantor has agreed to guarantee, on the terms and conditions set forth
herein, the obligations of the Covered Borrowers under the Credit Agreement,
the Notes and each other Loan Document, and the Guarantor expects to derive
benefit, directly or indirectly, from the Credit Extensions made to the Covered
Borrowers from time to time.
SECTION 1. CONSENTS AND WAIVERS BY GUARANTOR. (a) This Guaranty shall
be binding upon the Guarantor, its successors and assigns, and shall remain in
full force and effect irrespective of, and shall not be terminated by, the
existence of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting the terms of the Credit Agreement, any Note, any other
Loan Document or any other agreement or instrument relating thereto (the
foregoing agreements, documents and instrument being, collectively, the "CREDIT
DOCUMENTS"), or the rights or obligations of any Obligor under or with respect
to any of the Credit Documents. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of any Obligor's
obligations under or with respect to any Credit Document;
(ii) any change, whether or not agreed to by the Lender
Parties, in the time, manner or place of payment of, or in any other
term of, all or any of the Credit Documents or any other amendment,
renewal, extension, acceleration, compromise or waiver of or any
consent or departure from the terms or provisions of any of the Credit
Documents;
(iii) the lack of power or authority of any of the Obligors
to execute and deliver any of the Credit Documents, any set-off or
counterclaim which may at any time be available to or asserted by any
Obligor against any Lender Party with respect to such Obligor's
obligations under any of the Credit Documents; the existence or
continuance of any Obligor as a legal entity; the consolidation or
merger of any Obligor with or into any other corporation. or the
sale, lease or other disposition by any Obligor of all or
substantially all of its assets to any other business entity, whether
or not effected in compliance with the provisions of the Credit
Agreement; or the bankruptcy or insolvency of any Obligor, the
admission in writing by any Obligor of its inability to pay its debts
as they mature, or the making by any Obligor of a general assignment
for the benefit of, or entering into a composition or arrangement
with, creditors,
(iv) any act, failure to act, delay or omission whatsoever
on the part of any Lender Party, including, without limitation, any
failure to demand, delay in demanding or rescission of a demand for
any payment under any of the Credit Documents or any failure to give
to any Obligor (including the Guarantor) notice of default in the
making of any payment due and payable under any of the Credit
Documents or performance of any covenant, condition or agreement
contained in any of the Credit Documents or any action taken by any
Lender Party in the exercise, either in whole or in part, of any right
or power conferred by any of the Credit Documents or the failure,
delay or omission by any Lender Party to exercise any such right or
power;
EXHIBIT I-1
160
(v) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any invalidation of any of the
obligations of the Guarantor hereunder or the repudiation of this
Guaranty by the Guarantor, whether or not under color of right, or any
act, failure to act, delay or omission whatsoever on the part of any
Lender Party with respect to the Guarantor's obligations hereunder,
including, without limitation, any termination of the obligations of
the Guarantor hereunder, any amendment, compromise or waiver of or any
consent or departure from the terms or provisions of this Guaranty
with respect to the Guarantor or any release of the Guarantor from
liability hereunder;
(vi) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any release, discharge,
modification or exchange of any property pledged or mortgaged or in
which a security interest has been granted as collateral for the
Guaranteed Obligations, or any amendment or termination of or consent
or waiver under any agreement or instrument now or hereafter providing
for granting, pledging, mortgaging or conveying collateral for the
Guaranteed Obligations; and
(vii) any other circumstance which might otherwise constitute
a defense available to, or a legal or equitable discharge of, any
Covered Borrower or any other Obligor;
it being the purpose and intent of this Guaranty that the obligations of the
Guarantor hereunder shall be absolute, unconditional and irrevocable and shall
not be discharged or terminated except by full and complete performance of all
of the Guaranteed Obligations.
(b) The Guarantor agrees that it is directly and primarily liable
to the Lender Parties, that the obligations hereunder are independent of the
obligations of each Covered Borrower and any other Obligor, and that a separate
action or actions may be brought and prosecuted against the Guarantor, whether
or not an action is brought against any Covered Borrower or any other Obligor,
or whether any Covered Borrower or any other Obligor is joined in any such
action or actions. The Guarantor agrees that any releases which may be given
by the Lender Parties to any Covered Borrower or any other Obligor or endorser
shall not release it from this Guaranty.
(c) The Guarantor does hereby waive and relinquish, so far as it
may lawfully and effectively do so, the benefit and advantage of any and all
valuation, stay, appraisement, extension or redemption law or laws now in
effect or hereafter enacted, and also waives promptness, diligence, notice of
acceptance, default, dishonor, non-payment, non-performance or any other notice
to or upon any Covered Borrower or the Guarantor.
SECTION 2. NO SUBROGATION. (a) Any and all present and future debts
and obligations of any Covered Borrower to the Guarantor, including rights of
reimbursement and subrogation, are hereby postponed in favor of and
subordinated to the payment in full in cash of all of the Guaranteed
Obligations and termination of all the Commitments; provided, however, that the
payment of such present and future debts other than those due by virtue of
rights of reimbursement and subrogation with respect to this
EXHIBIT I-1
161
Guaranty shall be so postponed and subordinated only if an Event of Default
shall have occurred and be continuing.
(b) Notwithstanding any payment or payments made or expenses
incurred by the Guarantor pursuant to this Guaranty, the Guarantor shall not be
subrogated, in whole or in part, to the rights of the Lender Parties against
any Covered Borrower under the Credit Documents until the Guaranteed
Obligations shall have been paid in cash in full and the Commitments shall have
terminated. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for, the Lender Parties and, in
addition, shall forthwith be paid to the Administrative Agent for the account
of the Lender Parties to be credited and applied upon the Guaranteed
Obligations if then matured or forthwith be repaid to the relevant Covered
Borrower if such obligations are then unmatured. The Guarantor hereby agrees
that, as between itself on the one hand and the Lender Parties on the other
hand, the Guaranteed Obligations may be declared to be forthwith due and
payable notwithstanding any stay, injunction or other prohibition preventing
such declaration as against any Covered Borrower and that, in the event of any
such declaration, the Guaranteed Obligations (whether or not then due and
payable by any Covered Borrower) shall forthwith become due and payable by the
Guarantor for purposes of this Guaranty.
SECTION 3. REINSTATEMENT OF GUARANTY. This Guaranty shall continue
to be effective, or be reinstated, as the case may be, if at any time any
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by any Lender Party upon the
insolvency, bankruptcy or reorganization of any Covered Borrower, the Guarantor
or any other Obligor or otherwise, all as though such payment had not been
made.
SECTION 4. RIGHTS OF CONTRIBUTION. The Guarantor and each other
Person providing a Guaranty pursuant to the Credit Agreement from time to time,
including those Persons executing the Acknowledgment to this Guaranty
(collectively, the "GROUP GUARANTORS", hereby agree, as among themselves and
for the benefit of each of them, that if any Guarantor (in such capacity, an
"EXCESS FUNDING GUARANTOR") shall make any payment in respect of any of the
Guaranteed Obligations hereunder (a "GUARANTEE PAYMENT") as a result of which
such Excess Funding Guarantor shall have paid more than its Pro Rata Share (as
defined below) of the Guaranteed Obligations, each other Group Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to such Group
Guarantor's Pro Rata Share of such Guarantee Payment. The payment obligation
of any Group Guarantor to any Excess Funding Guarantor under this SECTION 4
shall be subordinate and subject to the prior payment in full in cash of the
Guaranteed Obligations (in favor of the Lender Parties) and termination of all
the Commitments and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until all of the foregoing shall have
occurred. For the purposes hereof, "PRO RATA SHARE") shall mean, for any Group
Guarantor, the ratio (expressed as a percentage and determined as of the date
of the most recent financial statements provided to the Lender Parties pursuant
to CLAUSE (a) or (b) of SECTION 8.1.1 of the Credit Agreement) of (a) the sum
of the unconsolidated stockholders equity of such Group Guarantor plus the net
amount (if greater than zero) of any obligations owed by such Group Guarantor
to all the Borrowers to (b) the sum of the unconsolidated stockholders equity
of all the Group Guarantors plus the net amount (if greater than zero) of any
obligations owed by all the Group Guarantors to all the Borrowers (it being
understood and agreed that, in the case of any Group Guarantor that is also a
Borrower, such Group Guarantor shall not be considered to owe any obligation to
itself in its capacity as such Borrower).
EXHIBIT I-1
162
SECTION 5. ASSIGNMENT; SUCCESSORS. This Guaranty is a continuing
guaranty and shall be binding upon the Guarantor and its successors and
assigns. This Guaranty shall inure to the benefit of each Lender Party and its
successors and assigns and shall be considered to be assigned upon the
assignment or transfer by any Lender Party of its Notes and other rights and
obligations under the Credit Agreement and other Loan Documents without
requiring any act of or consent or acknowledgment from the Guarantor. In
furtherance of the foregoing, the Guarantor shall execute and deliver to any
assignee or transferee of any Lender Party such additional counterparts of this
Guaranty as any such Lender Party may request in writing at any time and from
time to time.
SECTION 6. GOVERNING LAW, SUBMISSION TO JURISDICTION. This Guaranty
shall be governed by and its provisions construed under the laws of the
Province of Ontario, Canada. Any litigation based hereon, or arising out of,
under, or in connection with, this Guaranty or any course of conduct, course of
dealing, statements (whether oral or written) or actions of the Lender Parties
or the Guarantor pursuant to this Guaranty shall be brought and maintained, to
the extent permitted by applicable law, exclusively in the courts of the State
of New York, U.S.A., the United States District Court for the Southern District
of New York or the courts of the Province of Ontario. The Guarantor hereby
expressly and irrevocably submits to the jurisdiction of the aforementioned
courts for the purpose of any such litigation as set forth above and, in the
case of the courts of the State of New York and the United States District
Court for the Southern District of New York, irrevocably consents to the
service of any and all process in such litigation or proceeding by the mailing
of copies of such process to the Guarantor at its address specified pursuant to
SECTION 11.2 of the Credit Agreement, in each case marked for the attention of
General Counsel, ▇▇▇▇▇▇ Micro Inc. (Delaware), or by personal service within
or without the State of New York in the manner permitted by the laws of each
such jurisdiction. The Guarantor hereby expressly and irrevocably waives, to
the fullest extent permitted by law, any objection which it may have or
hereafter may have to the laying of venue of any such litigation brought in any
such court referred to above and any claim that any such litigation has been
brought in an inconvenient forum. To the extent that the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, the Guarantor hereby irrevocably waives such immunity in respect of
its obligations under this Guaranty.
SECTION 7. MISCELLANEOUS PROVISIONS.
(a) This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including, without limitation, SECTION
5.11 and ARTICLE XI thereof.
(b) No amendment to or waiver of any provisions of this
Guaranty, nor consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent on behalf of the Lender
Parties, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) All notices and other communications provided to any
party hereto shall be made in the manner, and subject to the
provisions set forth in SECTION 11.2 of the Credit Agreement.
EXHIBIT I-1
163
(d) Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction
of this Guaranty.
(e) In addition to, and not in limitation of, any rights
of any Lender Party under applicable law, each Lender Party shall,
upon the occurrence and during the continuance of any Default
described in any of CLAUSES (a) through (d) of SECTION 9.1.9 of the
Credit Agreement (after providing notice to the Guarantor with respect
thereto) or any Event of Default, have the right, to the fullest
extent permitted by law, to set off and apply any and all deposits
(general or special. time or demand, provisional or final), credits,
accounts or moneys of the Guarantor to the payment of the obligations
of the Guarantor that are at such time due and owing to it hereunder,
irrespective of whether or not such Lender Party shall have made any
demand under any Loan Document.
(f) Wherever possible each provision of this Guaranty
shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision of the remaining
provisions of this Guaranty.
SECTION 8. ACKNOWLEDGMENT AND AGREEMENT OF OTHER GUARANTORS. By
executing the acknowledgment to this Guaranty each of the other Group
Guarantors agrees to be fully bound by the terms of SECTION 4 hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.]
7
EXHIBIT I-1
164
IN WITNESS WHEREOF. the undersigned corporation has caused this Guaranty to the
executed on its behalf as of the date above written by one of its officers duly
authorized thereunto.
▇▇▇▇▇▇ MICRO INC., a corporation
organized and existing under the laws of
the Province of Ontario, Canada
By
--------------------------------------
▇. ▇. ▇▇▇▇▇▇▇▇,
Authorized Representative
ACKNOWLEDGED AND AGREED TO THE TERMS OF SECTION 4:
INGRAM SINGAPORE PTE LTD, a ▇▇▇▇▇▇ MICRO INC, a corporation
corporation organized organized and existing under the laws
and existing under the laws of the State of Delaware, United States
of Singapore of America
By By
------------------------- -------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇, Attorney ▇.▇. ▇▇▇▇▇▇▇▇, Executive Vice President
& Worldwide Chief Financial Officer
INGRAM EUROPEAN COORDINATION CENTER N.V.,
a company organized and existing under the laws
of The Kingdom of Belgium
By
-----------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇, Authorized Representative
8
EXHIBIT I-1
165
EXHIBIT I-2
MICRO CANADA GUARANTY (MICRO)
Pursuant to THIS GUARANTY (this "GUARANTY" dated as of October 28,
1997. ▇▇▇▇▇▇ MICRO INC., an Ontario, Canada corporation (the "GUARANTOR"),
hereby unconditionally, absolutely and irrevocably guarantees as primary
obligor and not as a surety merely, to each Lender Party (as defined below),
without offset or deduction, (a) the full and punctual payment when due of all
amounts payable by ▇▇▇▇▇▇ Micro Inc., a corporation organized and existing
under the laws of State of Delaware, U.S.A. ("MICRO"), under or in connection
with the European Credit Agreement (together with all amendments and other
modifications, if any, from time to time made to it, the "CREDIT AGREEMENT";
unless otherwise defined herein all capitalized terms used herein without
definition have the meanings provided for in the Credit Agreement) dated as of
October 28, 1997, among Micro and Ingram European Coordination Center N.V. (a
company organized and existing under the laws of The Kingdom of Belgium) as the
Primary Borrowers, certain financial institutions (together with their
respective successors and permitted assigns and any branch or affiliate of a
financial institution funding a Loan as permitted by SECTION 5.6 of the Credit
Agreement, collectively, the "LENDERS"), The Bank of Nova Scotia, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, NationsBank of Texas, N.A., as documentation agent for the Lenders,
and certain arrangers, the Lenders, the Administrative Agent, that
documentation agent, and those arrangers being, collectively, the "LENDER
PARTIES"), and executed by the Guarantor and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a
corporation organized and existing under the laws of Singapore) as Supplemental
Borrowers, and the other Loan Documents, including, without limitation, all
principal, interest, premiums, fees and expenses payable by Micro thereunder
and all reasonable expenses incurred by any Lender Party in enforcing any
rights under the Credit Agreement, the Notes (if any), and the other Loan
Documents (including this Guaranty) and (b) the full performance and observance
of all of the covenants, conditions and agreements provided in the Credit
Agreement and each other Loan Document required to be performed or observed by
Micro (all of the foregoing guaranteed obligations being the "GUARANTEED
OBLIGATIONS"). In the case of a failure of Micro punctually to make any
payment of principal of or interest or premium on any Credit Extension or Note,
the Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at the stated
maturity, on a prepayment date, by declaration of acceleration, or otherwise,
as if such payment were made by Micro. This Guaranty constitutes a guaranty of
payment and not a guaranty of collection. The obligations and agreements of
the Guarantor hereunder shall be performed and observed without requiring any
notice of non-payment, non-performance or non-observance, or any proof thereof
or demand therefor, all of which the Guarantor hereby expressly waives.
The Guarantor and the other Borrowers are engaged as an integrated
group in diversified operations including wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling,
distribution and service activities. This integrated operation requires
financing on such basis that credit supplied to the Guarantor and the other
Borrowers be made available from time to time to the other Subsidiaries of
Micro, separately, and as an integrated operation as a whole. To induce the
Lender Parties to enter into the Credit Agreement and make Credit Extensions
pursuant thereto, and for other good and valuable consideration. the receipt
and sufficiency of which are hereby acknowledged, the Guarantor has agreed to
guarantee, on the terms and conditions set forth herein, the obligations of
Micro under the Credit Agreement. the Notes and each other Loan Document, and
the Guarantor expects to
EXHIBIT I-2
166
derive benefit, directly or indirectly, from the Credit Extensions made to
Micro from time to time.
SECTION 1. CONSENTS AND WAIVERS BY GUARANTOR. (a) This Guaranty shall
be binding upon the Guarantor, its successors and assigns, and shall remain in
full force and effect irrespective of, and shall not be terminated by, the
existence of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting the terms of the Credit Agreement, any Note, any other
Loan Document or any other agreement or instrument relating thereto (the
foregoing agreements, documents and instruments being, collectively, the
"Credit Documents"), or the rights or obligations of any Obligor under or with
respect to any of the Credit Documents. The liability of the Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of any Obligor's
obligations under or with respect to any Credit Document;
(ii) any change, whether or not agreed to by the Lender
Parties, in the time, manner or place of payment of, or in any other
term of, all or any of the Credit Documents or any other amendment,
renewal, extension, acceleration, compromise or waiver of or any
consent or departure from the terms or provisions of any of the Credit
Documents;
(iii) the lack of power or authority of any of the Obligors
to execute and deliver any of the Credit Documents, any set-off or
counterclaim which may at any time be available to or asserted by any
Obligor against any Lender Party with respect to such Obligor's
obligations under any of the Credit Documents; the existence or
continuance of any Obligor as a legal entity; the consolidation or
merger of any Obligor with or into any other corporation, or the sale,
lease or other disposition by any Obligor of all or substantially all
of its assets to any other business entity, whether or not effected in
compliance with the provisions of the Credit Agreement; or the
bankruptcy or insolvency of any Obligor, the admission in writing by
any Obligor of its inability to pay its debts as they mature, or the
making by any Obligor of a general assignment for the benefit of, or
entering into a composition or arrangement with, creditors;
(iv) any act, failure to act, delay or omission whatsoever
on the part of any Lender Party, including, without limitation, any
failure to demand, delay in demanding or rescission of a demand for
any payment under any of the Credit Documents or any failure to give
to any Obligor (including the Guarantor) notice of default in the
making of any payment due and payable under any of the Credit
Documents or performance of any covenant, condition or agreement
contained in any of the Credit Documents or any action taken by any
Lender Party in the exercise, either in whole or in part, of any right
or power conferred by any of the Credit Documents or the failure,
delay or omission by any Lender Party to exercise any such right or
power;
(v) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any invalidation of any of the
obligations of the Guarantor hereunder or the repudiation of this
Guaranty by the Guarantor, whether or not under color of right, or any
act, failure to act, delay or omission whatsoever on the part of any
Lender Party with respect to the Guarantor's obligations hereunder,
including, without limitation, any termination of the obligations of
the Guarantor hereunder, any amendment, compromise or waiver of or any
consent or departure from the terms or provisions of this Guaranty
with respect to the Guarantor or any
EXHIBIT I-2
167
release of the Guarantor from liability hereunder;
(vi) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any release, discharge,
modification or exchange of any property pledged or mortgaged or in
which a security interest has been granted as collateral for the
Guaranteed Obligations, or any amendment or termination of or consent
or waiver under any agreement or instrument now or hereafter providing
for granting, pledging, mortgaging or conveying collateral for the
Guaranteed Obligations; and
(vii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge
of, Micro or any other Obligor;
it being the purpose and intent of this Guaranty that the obligations of the
Guarantor hereunder shall be absolute, unconditional and irrevocable and shall
not be discharged or terminated except by full and complete performance of all
of the Guaranteed Obligations.
(b) The Guarantor agrees that it is directly and primarily liable
to the Lender Parties, that the obligations hereunder are independent of the
obligations of Micro and any other Obligor, whether or not an action is brought
against Micro or any other Obligor, or whether Micro or any other Obligor is
joined in any such action or actions. The Guarantor agrees that any releases
which may be given by the Lender Parties to Micro or any other Obligor or
endorser shall not release it from this Guaranty.
(c) The Guarantor does hereby waive and relinquish, so far as it
may lawfully and effectively do so, the benefit and advantage of any and all
valuation, stay, appraisement, extension or redemption law or laws now in
effect or hereafter enacted, and also waives promptness, diligence, notice of
acceptance, default, dishonor, non-payment, non-performance or any other notice
to or upon Micro or the Guarantor.
SECTION 2. NO SUBROGATION. (a) Any and all present and future debts
and obligations of Micro to the Guarantor, including rights of reimbursement
and subrogation, are hereby postponed in favor of and subordinated to the
payment in full in cash of all of the Guaranteed Obligations and termination of
all the Commitments; provided, however, that the payment of such present and
future debts other than those due by virtue of rights of reimbursement and
subrogation with respect to this Guaranty shall be so postponed and
subordinated only if an Event of Default shall have occurred and be continuing.
(b) Notwithstanding any payment or payments made or expenses
incurred by the Guarantor pursuant to this Guaranty, the Guarantor shall not be
subrogated, in whole or in part, to the rights of the Lender Parties against
Micro under the Credit Documents until the Guaranteed Obligations shall have
been paid in cash in full and the Commitments shall have terminated. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for, the Lender Parties and, in addition, shall forthwith
be paid to the Administrative Agent for the account of the Lender Parties to be
credited and applied upon the Guaranteed Obligations if then matured or
forthwith be repaid to Micro if such obligations are then unmatured. The
Guarantor hereby agrees that, as between itself on the one hand and the Lender
Parties on the other hand, the Guaranteed Obligations may be declared to be
forthwith due and payable notwithstanding any stay, injunction or other
prohibition preventing such declaration as against Micro
4
EXHIBIT I-2
168
and that, in the event of any such declaration, the Guaranteed Obligations
(whether or not then due and payable by Micro) shall forthwith become due and
payable by the Guarantor for purposes of this Guaranty.
SECTION 3. REINSTATEMENT OF GUARANTY. This Guaranty shall continue
to be effective, or be reinstated, as the case may be, if at any time any
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by any Lender Party upon the
insolvency, bankruptcy or reorganization of Micro, the Guarantor or any other
Obligor or otherwise, all as though such payment had not been made.
SECTION 4. RIGHTS OF CONTRIBUTION. The Guarantor and each other
Person providing a Guaranty pursuant to the Credit Agreement from time to time,
including those Persons executing the Acknowledgment to this Guaranty
(collectively, the "GROUP GUARANTORS"), hereby agree, as among themselves and
for the benefit of each of them, that if any Guarantor (in such capacity, an
"EXCESS FUNDING GUARANTOR") shall make any payment in respect of any of the
Guaranteed Obligations hereunder (a "GUARANTEE PAYMENT") as a result of which
such Excess Funding Guarantor shall have paid more than its Pro Rata Share (as
defined below) of the Guaranteed Obligations, each other Group Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to such Group
Guarantor's Pro Rata Share of such Guarantee Payment. The payment obligation
of any Group Guarantor to any Excess Funding Guarantor under this SECTION 4
shall be subordinate and subject to the prior payment in full in cash of the
Guaranteed Obligations (in favor of the Lender Parties) and termination of all
the Commitments and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until all of the foregoing shall have
occurred. For the purposes hereof, "PRO RATA SHARE" shall mean, for any Group
Guarantor, the ratio (expressed as a percentage and determined as of the date
of the most recent financial statements provided to the Lender Parties pursuant
to CLAUSE (a) or (b) of SECTION 8.1.1 of the Credit Agreement) of (a) the sum
of the unconsolidated stockholders equity of such Group Guarantor plus the net
amount (if greater than zero) of any obligations owed by such Group Guarantor
to all the Borrowers to (b) the sum of the unconsolidated stockholders equity
of all the Group Guarantors plus the net amount (if greater than zero) of any
obligations owed by all the Group Guarantors to all the Borrowers (it being
understood and agreed that, in the case of any Group Guarantor that is also a
Borrower, such Group Guarantor shall not be considered to owe any obligation to
itself in its capacity as such Borrower).
SECTION 5. ASSIGNMENT; SUCCESSORS. This guaranty is a continuing
guaranty and shall be binding upon the Guarantor and its successors and
assigns. This guaranty shall inure to the benefit of each Lender Party and its
successors and assigns and shall be considered to be assigned upon the
assignment or transfer by any Lender Party of its Notes and other rights and
obligations under the Credit Agreement and other Loan Documents without
requiring any act of or consent or acknowledgment from the Guarantor. In
furtherance of the foregoing, the Guarantor shall execute and deliver to any
assignee or transferee of any Lender Party such additional counterparts of this
Guaranty as any such Lender Party may request in writing at any time and from
time to time.
SECTION 6. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Guaranty
shall be governed by and its provisions construed under the laws of the
province of Ontario, Canada. Any litigation based hereon, or arising out of,
under, or in connection with, this Guaranty or any course of conduct, course of
dealing, statements (whether oral or written) or actions of the Lender Parties
or the Guarantor pursuant to this Guaranty shall be brought and maintained, to
the extent permitted by applicable law, exclusively in
5
EXHIBIT I-2
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇.▇.▇., the United States District Court
for the Southern District of New York or the courts of the Province of Ontario.
The Guarantor hereby expressly and irrevocably submits to the jurisdiction of
the aforementioned courts for the purpose of any such litigation as set forth
above and, in the case of the courts of the State of New York and the United
States District Court for the Southern District of New York, irrevocably
consents to the service of any and all process in such litigation or proceeding
by the mailing of copies of such process to the Guarantor at its address
specified pursuant to SECTION 11.2 of the Credit Agreement, in each case marked
for the attention of General Counsel, ▇▇▇▇▇▇ Micro Inc. (Delaware), or by
personal service within or without the State of New York in the manner
permitted by the laws of each such jurisdiction. The Guarantor hereby
expressly and irrevocably waives, to the fullest extent permitted by law, any
objection which it may have or hereafter may have to the laying of venue of any
such litigation brought in any such court referred to above and any claim that
any such litigation has been brought in an inconvenient forum. To the extent
that the Guarantor has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise) with
respect to itself or its property, the Guarantor hereby irrevocably waives such
immunity in respect of its obligations under this guaranty.
SECTION 7. MISCELLANEOUS PROVISIONS.
(a) This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including, without limitation, SECTION
5.11 and ARTICLE XI thereof.
(b) No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent on behalf of the Lender
Parties, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) All notices and other communications provided to any
party hereto shall be made in the manner, and subject to the
provisions set forth in SECTION 11.2 of the Credit Agreement.
(d) Section captions used in this guaranty are for
convenience of reference only, and shall not affect the construction
of this Guaranty.
(e) In addition to, and not in limitation of, any rights
of any Lender Party under applicable law, each Lender Party shall,
upon the occurrence and during the continuance of any Default
described in any of CLAUSES (a) through (d) of SECTION 9.1.9 of the
Credit Agreement (after providing notice to the Guarantor with respect
thereto) or any Event of Default, have the right, to the fullest
extent permitted by law, to set off and apply any all deposits
(general or special, time or demand, provisional or final), credits,
accounts or moneys of the Guarantor to the payment of the obligations
of the Guarantor that are at such time due and owing to it hereunder,
irrespective of whether or not such Lender Party shall have made any
demand under any Loan Document.
(f) Wherever possible each provision of this guaranty
shall be interpreted in such
6
EXHIBIT I-2
170
manner as to be effective and valid under applicable law, but if any
provision of this guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision of the remaining provisions of this Guaranty.
SECTION 8. ACKNOWLEDGMENT AND AGREEMENT OF OTHER GUARANTORS. By
executing the acknowledgment to this guaranty each of the other Group
Guarantors agrees to be fully bound by the terms of SECTION 4 hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.]
7
EXHIBIT I-2
171
IN WITNESS WHEREOF, the undersigned corporation has caused this
Guaranty to be executed on its behalf as of the date above written by one of
its officers duly authorized thereunto.
▇▇▇▇▇▇ MICRO INC., a corporation
organized and existing under the laws of
the Province of Ontario, Canada
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Authorized Representative
ACKNOWLEDGED AND AGREED TO THE TERMS OF SECTION 4:
▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., ▇▇▇▇▇▇ MICRO INC., a corporation
a corporation organized and organized and existing under the laws of
existing under the laws the State of Delaware, United States of
of Singapore America
By By
------------------------------ -------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attorney ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice
President, & Worldwide Chief Financial
Officer
INGRAM EUROPEAN COORDINATION CENTER, N.V.,
a company organized and existing under the laws of
The Kingdom of Belgium
By
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized Representative
8
EXHIBIT I-2
172
EXHIBIT I-3
MICRO SINGAPORE GUARANTY
Pursuant to THIS GUARANTY (this "GUARANTY"), dated as of October 28,
1997, ▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., a company organized and existing under
the laws of Singapore (the "GUARANTOR"), hereby unconditionally, absolutely and
irrevocably guarantees as primary obligor and not as a surety merely, to each
Lender Party (as defined below), without offset or deduction, (a) the full and
punctual payment when due of all amounts payable by ▇▇▇▇▇▇ Micro Inc., a
corporation organized and existing under the laws of State of Delaware, United
States of America ("MICRO"), ▇▇▇▇▇▇ Micro Inc., a company established under the
laws of Ontario, Canada ("MICRO CANADA"), and Ingram European Coordination
Center, N.V., a company organized and existing under the laws of The Kingdom of
Belgium ("COORDINATION CENTER") (the "COVERED BORROWERS"), under or in
connection with the European Credit Agreement, (together with all amendments
and other modifications, if any, from time to time made thereto, the "CREDIT
AGREEMENT"; unless otherwise defined herein all capitalized terms used herein
without definition have the meanings provided for in the Credit Agreement)
dated as of October 28, 1997, among Micro and Coordination Center as the
Primary Borrowers, certain financial institutions (together with their
respective successors and permitted assigns and any branch or affiliate of a
financial institution funding a Loan as permitted by SECTION 5.6 of the Credit
Agreement, collectively, the "LENDERS"), The Bank of Nova Scotia, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, NationsBank of Texas, N.A., as documentation agent for the Lenders,
and certain arrangers (the Lenders, the Administrative Agent, that
documentation agent, and those arrangers being, collectively, the "LENDER
PARTIES"), and executed by Micro Canada and the Guarantor as Supplemental
Borrowers, and the other Loan Documents, including, without limitation, all
principal, interest, premiums, fees and expenses payable by the Covered
Borrowers thereunder and all reasonable expenses incurred by any Lender Party
in enforcing any rights under the Credit Agreement, the Notes (if any), and the
other Loan Documents (including this Guaranty) and (b) the full performance and
observance of all of the covenants, conditions and agreements provided in the
Credit Agreement and each other Loan Document required to be performed or
observed by the Covered Borrowers (all of the foregoing guaranteed obligations
being the "GUARANTEED OBLIGATIONS"). In the case of a failure of any Covered
Borrower punctually to make any payment of principal of or interest or premium
on any Credit Extension or Note, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and
payable, whether at the stated maturity, on a prepayment date, by declaration
of acceleration, or otherwise, as if such payment were made by such Covered
Borrower. This Guaranty constitutes a guaranty of payment and not a guaranty
of collection. The obligations and agreements of the Guarantor hereunder shall
be performed and observed without requiring any notice of non-payment,
nonperformance or non- observance, or any proof thereof or demand therefor, all
of which the Guarantor hereby expressly waives.
The Guarantor and each of the Covered Borrowers are engaged as an
integrated group in diversified operations including wholesale distribution of
microcomputer software and hardware products, multimedia products, customer
financing, assembly and configuration and other related wholesaling,
distribution and service activities. This integrated operation requires
financing on such basis that credit supplied to the Guarantor and the Covered
Borrowers be made available from time to time to the other Subsidiaries of
Micro, separately, and as an integrated operation as a whole. To induce the
Lender Parties to enter into the Credit Agreement and make Credit Extensions
pursuant thereto, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the
EXHIBIT I-3
173
Guarantor has agreed to guarantee, on the terms and conditions set forth
herein, the obligations of the Covered Borrowers under the Credit Agreement,
the Notes and each other Loan Document, and the Guarantor expects to derive
benefit, directly or indirectly, from the Credit Extensions made to the Covered
Borrowers from time to time.
SECTION 1. CONSENTS AND WAIVERS BY GUARANTOR. (a) This Guaranty shall
be binding upon the guarantor, its successors and assigns, and shall remain in
full force and effect irrespective of, and shall not be terminated by, the
existence of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting the terms of the Credit Agreement, any Note, any other
Loan Document, or any other agreement or instrument relating thereto (the
foregoing agreements, documents and instruments being, collectively, the
"CREDIT DOCUMENTS"), or the rights or obligations of any Obligor under or with
respect to any of the Credit Documents. The liability of the Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of any Obligor's
obligations under or with respect to any Credit Document;
(ii) any change, whether or not agreed to by the Lender
Parties, in the time, manner or place of payment of, or in any other
term of, all or any of the Credit Documents or any other amendment,
renewal, extension, acceleration, compromise or waiver of or any
consent or departure from the terms or provisions of any of the Credit
Documents;
(iii) the lack of power or authority of any of the Obligors
to execute and deliver any of the Credit Documents, any set-off or
counterclaim which may at any time be available to or asserted by any
Obligor against any Lender Party with respect to such Obligor's
obligations under any of the Credit Documents; the existence or
continuance of any Obligor as a legal entity; the consolidation or
merger of any Obligor with or into any other corporation, or the sale,
lease or other disposition by any Obligor of all or substantially all
of its assets to any other business entity, whether or not effected in
compliance with the provisions of the Credit Agreement; or the
bankruptcy or insolvency of any Obligor, the admission in writing by
any Obligor of its inability to pay its debts as they mature, or the
making by any Obligor of a general assignment for the benefit of, or
entering into a composition or arrangement with, creditors;
(iv) any act, failure to act, delay or omission whatsoever
on the part of any Lender Party, including, without limitation, any
failure to demand, delay in demanding or rescission of a demand for
any payment under any of the Credit Documents or any failure to give
to any Obligor (including the Guarantor) notice of default in the
making of any payment due and payable under any of the Credit
Documents or performance of any covenant, condition or agreement
contained in any of the Credit Documents or any action taken by any
Lender Party in the exercise, either in whole or in part, of any right
or power conferred by any of the Credit Documents or the failure,
delay or omission by any Lender Party to exercise any such right or
power;
(v) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any invalidation of any of the
obligations of the Guarantor hereunder or the repudiation of this
Guaranty by the Guarantor, whether or not under color of right, or any
act,
EXHIBIT I-3
174
failure to act, delay or omission whatsoever on the part of any Lender
Party with respect to the Guarantor's obligations hereunder,
including, without limitation, any termination of the obligations of
the Guarantor hereunder, any amendment, compromise or waiver of or any
consent or departure from the terms or provisions of this Guaranty
with respect to the Guarantor or any release of the Guarantor from
liability hereunder;
(vi) except in each case by a written amendment, waiver,
consent, release, or termination executed and delivered by the
Administrative Agent or other appropriate Lender Party pursuant to
SECTION 7(b) of this Guaranty, SECTION 11.1(b) of the Credit
Agreement, or both, as applicable, any release, discharge,
modification or exchange of any property pledged or mortgaged or in
which a security interest has been granted as collateral for the
Guaranteed Obligations, or any amendment or termination of or consent
or waiver under any agreement or instrument now or hereafter providing
for granting, pledging, mortgaging or conveying collateral for the
Guaranteed Obligations; and
(vii) any other circumstance which might otherwise constitute
a defense available to, or a legal or equitable discharge of, the
Covered Borrowers or any other Obligor;
it being the purpose and intent of this Guaranty that the obligations of the
Guarantor hereunder shall be absolute, unconditional and irrevocable and shall
not be discharged or terminated except by full and complete performance of all
of the Guaranteed Obligations.
(b) The Guarantor agrees that it is directly and primarily liable
to the Lender Parties, that the obligations hereunder are independent of the
obligations of each Covered Borrower and any other Obligor, and that a separate
action or actions may be brought and prosecuted against the Guarantor, whether
or not an action is brought against any Covered Borrower or any other Obligor,
or whether any Covered Borrower or any other Obligor is joined in any such
action or actions. The Guarantor agrees that any releases which may be given
by the Lender Parties to any Covered Borrower or any other Obligor or endorser
shall not release it from this Guaranty.
(c) The Guarantor does hereby waive and relinquish, so far as it
may lawfully and effectively do so, the benefit and advantage of any and all
valuation, stay, appraisement, extension or redemption law or laws now in
effect or hereafter enacted, and also waives promptness, diligence, notice of
acceptance, default, dishonor, non-payment, non-performance or any other notice
to or upon any Covered Borrower or the Guarantor.
SECTION 2. NO SUBROGATION. (a) Any and all present and future debts
and obligations of any Covered Borrower to the Guarantor, including rights of
reimbursement and subrogation. are hereby postponed in favor of and
subordinated to the payment in full in cash of all of the Guaranteed
Obligations and termination of all the Commitments; provided that the payment
of such present and future debts other than those due by virtue of rights of
reimbursement and subrogation with respect to this Guaranty shall be so
postponed and subordinated only if an Event of Default shall have occurred and
be continuing.
(b) Notwithstanding any payment or payments made or expenses
incurred by the Guarantor pursuant to this Guaranty, the Guarantor shall not be
subrogated, in whole or in part, to the rights of the Lender Parties against
the Covered Borrowers under the Credit Documents until the Guaranteed
Obligations shall have been paid in cash in full and the Commitments shall have
terminated. If any
4
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175
amount shall be paid to the Guarantor in violation of the preceding sentence,
such amount shall be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for, the Lender Parties and, in addition, shall forthwith
be paid to the Administrative Agent for the account of the Lender Parties to be
credited and applied upon the Guaranteed Obligations if then matured or
forthwith be repaid to the relevant Covered Borrower if such obligations are
then unmatured. The Guarantor hereby agrees that, as between itself on the one
hand and the Lender Parties on the other hand, the Guaranteed Obligations may
be declared to be forthwith due and payable notwithstanding any stay,
injunction or other prohibition preventing such declaration as against any of
the Covered Borrowers and that, in the event of any such declaration, the
Guaranteed Obligations (whether or not then due and payable by any of the
Covered Borrowers) shall forthwith become due and payable by the Guarantor for
purposes of this Guaranty. Nothing in this SECTION 2(b) shall be effective to
create a charge.
SECTION 3. REINSTATEMENT OF GUARANTY. This Guaranty shall continue to
be effective, or be reinstated, as the case may be, if at any time any payment,
or any part thereof, of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by any Lender Party upon the insolvency,
bankruptcy or reorganization of any Covered Borrower, the Guarantor or any
other Obligor or otherwise, all as though such payment had not been made.
SECTION 4. RIGHTS OF CONTRIBUTION. The Guarantor and each other
Person providing a Guaranty pursuant to the Credit Agreement from time to time,
including those Persons executing the Acknowledgment to this Guaranty
(collectively, the "GROUP GUARANTORS"), hereby agree, as among themselves and
for the benefit of each of them, that if any Guarantor (in such capacity, an
"EXCESS FUNDING GUARANTOR") shall make any payment in respect of any of the
Guaranteed Obligations hereunder (a "GUARANTEE PAYMENT") as a result of which
such Excess Funding Guarantor shall have paid more than its Pro Rata Share (as
defined below) of the Guaranteed Obligations, each other Group Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to such Group
Guarantor's Pro Rata Share of such Guarantee Payment. The payment obligation
of any Group Guarantor to any Excess Funding Guarantor under this SECTION 4
shall be subordinate and subject to the prior payment in full in cash of the
Guaranteed Obligations (in favor of the Lender Parties) and termination of all
the Commitments and such Excess Funding Guarantor shall not exercise any right
or remedy with respect to such excess until all of the foregoing shall have
occurred. For the purposes hereof, "PRO RATA SHARE" shall mean, for any Group
Guarantor, the ratio (expressed as a percentage and determined as of the date
of the most recent financial statements provided to the Lender Parties pursuant
to CLAUSE (a) or (b) of SECTION 8.1.1 of the Credit Agreement) of (a) the sum
of the unconsolidated stockholders equity of such Group Guarantor plus the net
amount (if greater than zero) of any obligations owed by such Group Guarantor
to all the Borrowers to (b) the sum of the unconsolidated stockholders equity
of all the Group Guarantors plus the net amount (if greater than zero) of any
obligations owed by all the Group Guarantors to all the Borrowers (it being
understood and agreed that, in the case of any Group Guarantor that is also a
Borrower, such Group Guarantor shall not be considered to owe any obligation to
itself in its capacity as such Borrower).
SECTION 5. ASSIGNMENT; SUCCESSORS. This guaranty is a continuing
guaranty and shall be binding upon the Guarantor and its successors and
assigns. This guaranty shall inure to the benefit of each Lender Party and its
successors and assigns and shall be considered to be assigned upon the
assignment or transfer by any Lender Party of its Notes and other rights and
obligations under the Credit Agreement and other Loan Documents without
requiring any act of or consent or acknowledgment from
5
EXHIBIT I-3
176
the Guarantor. In furtherance of the foregoing, the Guarantor shall execute
and deliver to any assignee or transferee of any Lender Party such additional
counterparts of this Guaranty as any such Lender Party may request in writing
at any time and from time to time.
SECTION 6. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS GUARANTY
SHALL BE GOVERNED BY AND ITS PROVISIONS CONSTRUED UNDER THE LAWS OF SINGAPORE.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE GUARANTOR PURSUANT TO
THIS GUARANTY SHALL BE BROUGHT AND MAINTAINED, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, U.S.A., THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE
COURTS OF SINGAPORE. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE AFOREMENTIONED COURTS FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND, IN THE CASE OF THE COURTS OF THE STATE OF
NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN SUCH
LITIGATION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO THE
GUARANTOR AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION 11.2 OF THE CREDIT
AGREEMENT, IN EACH CASE MARKED FOR THE ATTENTION OF GENERAL COUNSEL, ▇▇▇▇▇▇
MICRO INC., OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK IN
THE MANNER PERMITTED BY THE LAWS OF EACH SUCH JURISDICTION. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
SECTION 7. MISCELLANEOUS PROVISIONS.
(a) This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including, without limitation, SECTION
5.11 and ARTICLE XI thereof.
(b) No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent on behalf of the Lender
Parties, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) All notices and other communications provided to any
party hereto shall be made in the manner, and subject to the
provisions set forth in SECTION 11.2 of the Credit Agreement.
(d) Section captions used in this Guaranty are for
convenience of reference only, and
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EXHIBIT I-3
177
shall not affect the construction of this Guaranty.
(e) In addition to, and not in limitation of, any rights
of any Lender Party under applicable law, each Lender Party shall,
upon the occurrence and during the continuance of any Default
described in any of CLAUSES (a) through (d) of SECTION 9.1.9 of the
Credit Agreement (after providing notice to the Guarantor with respect
thereto) or any Event of Default, have the right, to the fullest
extent permitted by law, to set off and apply any all deposits
(general or special, time or demand'. provisional or final), credits,
accounts or moneys of the Guarantor to the payment of the obligations
of the Guarantor that are at such time due and owing to it hereunder,
irrespective of whether or not such Lender Party shall have made any
demand under any Loan Document.
(f) Wherever possible each provision of this guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision of the remaining
provisions of this Guaranty.
SECTION 8. WAIVER OF JURY TRIAL. THE LENDER PARTIES AND THE GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER
PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF THIS GUARANTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT AND MAKING CREDIT
EXTENSIONS THEREUNDER.
SECTION 9. ACKNOWLEDGMENT AND AGREEMENT OF OTHER GUARANTORS. By
executing the acknowledgment to this Guaranty each of the other Group
Guarantors agrees to be fully bound by the terms of SECTION 4 hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.]
7
EXHIBIT I-3
178
IN WITNESS WHEREOF, the undersigned corporation has caused this Guaranty to be
executed on its behalf as of the date above written by one of its officers duly
authorized thereunto.
▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., a
corporation organized and existing under
the laws of Singapore
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney
ACKNOWLEDGED AND AGREED TO THE TERMS OF SECTION 4:
▇▇▇▇▇▇ MICRO INC., a corporation INGRAM EUROPEAN COORDINATION CENTER N.V.,
organized and existing under a company organized and existing under
the laws of the State of the laws of The Kingdom of Belgium
Delaware, United States of America
By By
-------------------------------- --------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized
Vice President & Worldwide Representative
Chief financial Officer
▇▇▇▇▇▇ MICRO INC., a corporation organized and
existing under the laws of the Province of Ontario, Canada
By
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Authorized Representative
8
EXHIBIT I-3
179
EXHIBIT J
ADDITIONAL GUARANTY
Pursuant to THIS GUARANTY (the "GUARANTY"), dated as of
______________________________, 19___, [INSERT NAME OF ADDITIONAL GUARANTOR]
(the "GUARANTOR"), hereby unconditionally, absolutely and irrevocably
guarantees, as primary obligor and not as surety merely, to each Lender Party
(as defined below), without offset or deduction, (a) the full and punctual
payment when due of all amounts payable by ▇▇▇▇▇▇ Micro Inc., a corporation
organized and existing under the laws of the State of Delaware ("MICRO"),
▇▇▇▇▇▇ Micro Inc., a corporation organized and existing under the laws of the
Province of Ontario, Canada ("MICRO CANADA"), and Ingram European Coordination
Center, N.V., a company organized and existing under the laws of The Kingdom of
Belgium ("COORDINATION CENTER") (the "BORROWERS"), under or in connection with
the European Credit Agreement (together with all amendments and other
modifications, if any, from time to time made thereto, the "CREDIT AGREEMENT";
unless otherwise defined herein all capitalized terms used herein without
definition have the meanings provided for in the Credit Agreement) dated as of
October 28, 1997, among Micro and Coordination Center as the Primary Borrowers,
certain financial institutions (together with their respective successors and
permitted assigns and any branch or affiliate of a financial institution
funding a Loan as permitted by SECTION 5.6 of the Credit Agreement,
collectively, the "LENDERS"), The Bank of Nova Scotia, as administrative agent
(in such capacity the "ADMINISTRATIVE AGENT") for the Lenders, NationsBank of
Texas, N.A., as documentation agent for the Lenders, and certain arrangers
(hereinafter, the Lenders, the Administrative Agent, that Documentation Agent,
and those arrangers being, collectively, the "LENDER PARTIES"), and executed by
Micro Canada and Micro Singapore as Supplemental Borrowers, and the other Loan
Documents, including, without limitation, all principal, interest, premiums,
fees and expenses payable by the Borrowers thereunder and all reasonable
expenses incurred by any Lender Party in enforcing any rights under the Credit
Agreement, the Notes (if any), and the other Loan Documents (including this
Guaranty) and (b) the full performance and observance of all of the covenants,
conditions and agreements provided in the Credit Agreement and each other Loan
Document required to be performed or observed by each Borrower (all of the
foregoing guaranteed obligations being the "GUARANTEED OBLIGATIONS"). In the
case of a failure of any Borrower punctually to make any payment of principal
of or interest or premium on any Credit Extension or Note, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at the stated maturity, on a prepayment
date, by declaration of acceleration, or otherwise, as if such payment were
made by such Borrower. This Guaranty constitutes a guaranty of payment and not
a guaranty of collection. The obligations and agreements of the Guarantor
hereunder shall be performed and observed without requiring any notice of
non-payment, non-performance or non-observance, or any proof thereof or demand
therefor, all of which the Guarantor hereby expressly waives.
The Borrowers and the Guarantor are engaged as an integrated group in
diversified operations including wholesale distribution of microcomputer
software and hardware products. multimedia products, customer financing,
assembly and configuration and other related wholesaling, distribution and
service activities. This integrated operation requires financing on such a
basis that credit supplied to Micro and the other Borrowers be made available
from time to time to the Guarantor, as required for the continued successful
operation of each Borrower and the Guarantor, separately, and the integrated
operation as a whole. In accordance with the terms of the Credit Agreement,
and to further induce the Lender Parties to continue making Credit Extensions
pursuant thereto, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Guarantor has agreed to
guarantee, on the
EXHIBIT J
180
terms and conditions set forth herein, the obligations of the Borrowers under
the Credit Agreement, the Notes and each other Loan Document, and the Guarantor
expects to derive benefit, directly or indirectly, from the Credit Extensions
made to the Borrowers from time to time.
Notwithstanding the foregoing, the obligations of the Guarantor
hereunder shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions
of applicable law of any State of the United States.
SECTION 1. CONSENTS AND WAIVERS BY GUARANTOR, (a) This Guaranty shall
be binding upon the Guarantor, its successors and assigns, and shall remain in
full force and effect irrespective of, and shall not be terminated by, the
existence of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting the terms of the Credit Agreement, any Note, any other
Loan Document or any other agreement or instrument relating thereto (the
foregoing agreements, documents and instruments being, collectively, the
"CREDIT DOCUMENTS"), or the rights or obligations of any Obligor under or with
respect to any of the Credit Documents. The liability of the Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of any
Obligor's obligations under or with respect to any Credit
Document;
(ii) any change, whether or not agreed to by the
Lender Parties, in the time, manner or place of payment of, or
in any other term of, all or any of the Credit Documents or
any other amendment, renewal, extension, acceleration,
compromise or waiver of or any consent or departure from the
terms or provisions of any of the Credit Documents;
(iii) the lack of power or authority of any of the
Obligors to execute and deliver any of the Credit Documents,
any set-off or counterclaim which may at any time be available
to or asserted by any Obligor against any Lender Party with
respect to such Obligor's obligations under any of the Credit
Documents; the existence or continuance of any Obligor as a
legal entity; the consolidation or merger of any Obligor with
or into any other corporation, or the sale, lease or other
disposition by any Obligor of all or substantially all of its
assets to any other business entity, whether or not effected
in compliance with the provisions of the Credit Agreement; or
the bankruptcy or insolvency of any Obligor, the admission in
writing by any Obligor of its inability to pay its debts as
they mature, or the making by any Obligor of a general
assignment for the benefit of, or entering into a composition
or arrangement with, creditors;
(iv) any act, failure to act, delay or omission
whatsoever on the part of any Lender Party, including, without
limitation, any failure to demand, delay in demanding or
rescission of a demand for any payment under any of the Credit
Documents or any failure to give to any Obligor (including the
Guarantor) notice of default in the making of any payment due
and payable under any of the Credit Documents or performance
of any covenant, condition or agreement contained in any of
the Credit Documents or any action taken by any Lender Party
in the exercise, either in whole or in part, of any right or
power conferred by any of the Credit Documents or the failure,
delay or omission by any
3
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181
Lender Party to exercise any such right or power;
(v) except in each case by a written amendment,
waiver, consent, release, or termination executed and
delivered by the Administrative Agent or other appropriate
Lender Party pursuant to SECTION 8(b) of this Guaranty,
SECTION 11.1(b) of the Credit Agreement, or both, as
applicable, any invalidation of any of the obligations of the
Guarantor hereunder or the repudiation of this Guaranty by the
Guarantor, whether or not under color of right, or any act,
failure to act, delay or omission whatsoever on the part of
any Lender Party with respect to the Guarantor's obligations
hereunder, including, without limitation, any termination of
the obligations of the Guarantor hereunder, any amendment,
compromise or waiver of or any consent or departure from the
terms or provisions of this Guaranty with respect to the
Guarantor or any release of the Guarantor from liability
hereunder;
(vi) except in each case by a written amendment,
waiver, consent, release, or termination executed and
delivered by the Administrative Agent or other appropriate
Lender Party pursuant to SECTION 8(b) of this Guaranty,
SECTION 11.1(b) of the Credit Agreement, or both, as
applicable, any release, discharge, modifications or exchange
of any property pledged or mortgaged or in which a security
interest has been granted as collateral for the Guaranteed
Obligations, or any amendment or termination of or consent or
waiver under any agreement or instrument now or hereafter
providing for granting, pledging, mortgaging or conveying
collateral for the Guaranteed Obligations; and
(vii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, the Borrowers or any other Obligor;
it being the purpose and intent of this Guaranty that the obligations of the
Guarantor hereunder shall be absolute, unconditional and irrevocable and shall
not be discharged or terminated except by full and complete performance of all
of the Guaranteed Obligations.
(b) The Guarantor agrees that it is directly and
primarily and jointly and severally liable to the Lender Parties, that
the obligations hereunder are independent of the obligations of each
Borrower and any other Obligor, and that a separate action or actions
may be brought and prosecuted against the Guarantor, whether or not an
action is brought against any Borrower or any other Obligor, or
whether any Borrower or any other Obligor is joined in any such action
or actions. The Guarantor agrees that any releases which may be given
by the Lender Parties to any Borrower or any other Obligor or endorser
shall not release it from this Guaranty.
(c) The Guarantor does hereby waive and relinquish, so
far as it may lawfully and effectively do so, the benefit and
advantage of any and all valuation, stay, appraisement, extension or
redemption law or laws now in effect or hereafter enacted, and also
waives promptness, diligence, notice of acceptance, default, dishonor,
non-payment, non-performance or any other notice to or upon any
Borrower or the Guarantor.
SECTION 2. NO SUBROGATION. (a) Any and all present and future debts
and obligations of each Borrower to the Guarantor, including rights of
reimbursement and subrogation, are hereby postponed in favor of and
subordinated to the payment in full in cash of all of the Guaranteed
Obligations and
4
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182
termination of all the Commitments; provided, however, that the payment of such
present and future debts other than those due by virtue of rights of
reimbursement and subrogation with respect to this Guaranty shall be so
postponed and subordinated only if an Event of Default shall have occurred and
be continuing.
(b) Notwithstanding any payment or payments made or
expenses incurred by the Guarantor pursuant to this Guaranty, the
Guarantor shall not be subrogated, in whole or in part, to the rights
of the Lender Parties against the Borrowers under the Credit Documents
until the Guaranteed Obligations shall have been paid in cash in full
and the Commitments have terminated. If any amount shall be paid to
the Guarantor in violation of the preceding sentence, such amount
shall be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for, the Lender Parties and, in addition, shall
forthwith be paid to the Administrative Agent for the account of the
Lender Parties to be credited and applied upon the Guaranteed
Obligations if then matured or forthwith be repaid to the relevant
Borrower if such obligations are then unmatured. The Guarantor hereby
agrees that, as between the Guarantor on the one hand and the Lender
Parties on the other hand, the Guaranteed Obligations may be declared
to be forthwith due and payable notwithstanding any stay, injunction
or other prohibition preventing such declaration as against any of the
Borrowers and that, in the event of any such declaration, the
Guaranteed Obligations (whether or not then due and payable by any of
the Borrowers) shall forthwith become due and payable by the Guarantor
for purposes of this Guaranty.
SECTION 3. REINSTATEMENT OF GUARANTY. This Guaranty shall continue to
be effective, or be reinstated, as the case may be, if at any time any payment,
or any part thereof, of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by any Lender Party upon the insolvency,
bankruptcy or reorganization of any Borrower the Guarantor or any other Obligor
(including the Guarantor) or otherwise, all as though such payment had not been
made.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
makes to the Lender Parties the following representations, warranties and
agreements as to itself:
SECTION 4.01. ORGANIZATION, ETC. The Guarantor is a corporation
validly organized and existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its business requires such qualification and where the failure to so qualify
and to maintain such good standing, singularly or in the aggregate, has
resulted in, or would reasonably be expected to result in, a Material Adverse
Effect, and has full power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its obligations
under this Guaranty and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it, excluding any such
government licenses, permits or other approvals in respect of which the failure
to so obtain, hold or maintain has not caused, and would not reasonably be
expected to result in, a Material Adverse Effect.
SECTION 4.02. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by the Guarantor of this Guaranty are
within the Guarantor's corporate powers, have been duly authorized by all
necessary corporate action, and do not
(a) contravene the Guarantor's Organic Documents;
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183
(b) contravene any law or governmental regulation or
court decree or order binding on or affecting the Guarantor; or
(c) result in, or require the creation or imposition of,
any Lien on any of the Guarantor's properties.
SECTION 4.03. NO DEFAULT. The Guarantor is not in default in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note, or in any indenture, loan agreement, or other agreement, in
connection with or as a result of which default there exists a reasonable
possibility that a Material Adverse Effect could arise. The execution,
delivery and performance by the Guarantor of this Guaranty will not conflict
with, or constitute a breach of, or a default under, any such bond, debenture,
note, indenture, loan agreement or other agreement to which the Guarantor is a
party or by which it is bound, in connection with or as a result of which
conflict, breach of default there exists a reasonable possibility that a
Material Adverse Effect could arise.
SECTION 4.04. GOVERNMENT APPROVAL, REGULATION, ETC. No action by, and
no notice to or filing with, any governmental authority or regulatory body or
other Person and no payment of any stamp or similar tax, is required for the
due execution, delivery or performance by the Guarantor of this Guaranty.
SECTION 4.05. VALIDITY, ETC. This Guaranty constitutes the legal.
valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally or by general
principles of equity.
SECTION 4.06. LITIGATION, LABOR CONTROVERSIES, ETC. Except as
disclosed in ITEM 7.8 (Litigation) of the Disclosure Schedule to the Credit
Agreement, there is no pending or, to the knowledge of the Guarantor,
threatened litigation, action, proceeding or labor controversy affecting any
the Guarantor, or any of its respective properties. businesses, assets or
revenues, in respect of which there exists a reasonable possibility of an
outcome that would result in a Material Adverse Effect or that would to affect
the legality, validity or enforceability of this Guaranty.
SECTION 4.07. TAXES. The Guarantor has filed all material tax returns
and reports it reasonably believes are required by law to have been filed by it
and has paid all taxes and governmental charges thereby shown to be owing,
except as disclosed in Item 7.11 (Taxes) of the Disclosure Schedule to the
Credit Agreement and except for any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 5. RIGHTS OF CONTRIBUTION. The Guarantor and each other
Person providing a Guaranty pursuant to the Credit Agreement from time to time,
including those Persons executing the Acknowledgment to this Guaranty
(collectively, the "GROUP GUARANTORS"), hereby agree, as among themselves and
for the benefit of each of them, that if any Group Guarantor (in such capacity
an "EXCESS FUNDING GUARANTOR") shall make any payment in respect of any of the
Guaranteed Obligations hereunder (a "GUARANTEE PAYMENT") as a result of which
such Excess Funding Guarantor shall have paid more than its Pro Rata Share (as
defined below) of the Guaranteed Obligations, each other Group Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence
hereof), pay to such Excess Funding Guarantor an amount equal to such Group
Guarantor's Pro Rata Share of
6
EXHIBIT J
184
such Guarantee Payment. The payment obligation of any Share of such Guarantee
Payment. The payment obligation of any Group Guarantor to any Excess Funding
Guarantor under this SECTION 5 shall be subordinate and subject to the prior
payment in full in cash of the Guaranteed Obligations (in favor of the Lender
Parties) and termination of all the Commitments and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until all of the foregoing shall have occurred. For the purposes hereof, "PRO
RATA SHARE" shall mean, for any Group Guarantor, the ratio (expressed as a
percentage and determined as of the date of the most recent financial
statements provided to the Lender Parties pursuant to CLAUSE (a) or (b) of
SECTION 8.1.1 of the Credit Agreement) of (a) the sum of the unconsolidated
stockholders equity of such Group Guarantor plus the net amount (if greater
than zero) of any obligations owed by such Group Guarantor to all the Borrowers
to (b) the sum of the unconsolidated stockholders equity of all the Group
Guarantors plus the net amount (if greater than zero) of any obligations owed
by all the Group Guarantors to all the Borrowers (it being understood and
agreed that, in the case of any Group Guarantor that is also a Borrower, such
Group Guarantor shall not be considered to owe any obligation to itself in its
capacity as such Borrower).
SECTION 6. ASSIGNMENT; SUCCESSORS. This Guaranty is a continuing
guaranty and shall be binding upon the Guarantor and its successors and
assigns. This Guaranty shall inure to the benefit of each Lender Party and its
successors and assigns and shall be considered to be assigned upon the
assignment or transfer by any Lender Party of its Notes and other rights and
obligations under the Credit Agreement and other Loan Documents without
requiring any act of or consent or acknowledgment from the Guarantor. In
furtherance of the foregoing, the Guarantor shall execute and deliver to any
assignee or transferee of any Lender Party such additional counterparts of this
Guaranty as any such Lender Party may request in writing at any time and from
time to time.
SECTION 7. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS GUARANTY
SHALL BE GOVERNED BY AND ITS PROVISIONS CONSTRUED UNDER THE LAWS OF [THE STATE
OF _______________________] [OR, IF PERMITTED PURSUANT TO SECTION 8.1.10 OF THE
CREDIT AGREEMENT, INSERT NAME OF OTHER JURISDICTION]. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE LENDER PARTIES OR THE GUARANTORS PURSUANT TO THIS GUARANTY SHALL
BE BROUGHT AND MAINTAINED, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN SUCH
LITIGATION BY THE MAILING OF COPIES OF SUCH PROCESS TO THE GUARANTOR AT ITS
ADDRESS SPECIFIED PURSUANT TO SECTION 8(C) HEREOF, IN EACH CASE MARKED FOR THE
ATTENTION OF GENERAL COUNSEL, ▇▇▇▇▇▇ MICRO INC., OR BY PERSONAL SERVICE WITHIN
OR WITHOUT THE STATE OF NEW YORK IN THE MANNER PERMITTED BY THE LAWS OF EACH
SUCH STATE. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AS INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
7
EXHIBIT J
185
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
SECTION 8. MISCELLANEOUS PROVISIONS.
(a) This Guaranty is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including, without limitation, SECTION
5.11 and ARTICLE M thereof.
(b) No amendment to or waiver of any provision of this
Guaranty, nor consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent on behalf of the Lender
Parties, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) All notices and other communications provided to any
party hereto shall be made, (i) if to the Guarantor, at its address or
facsimile number set forth below its signature line hereto or at such
other address or facsimile number as the Guarantor may designate to
the other parties hereto and the Lender Parties from time to time, and
each such notice or communication shall be subject to the other
provisions set forth in SECTION 11.2 of the Credit Agreement or (ii)
if to any Borrower, in the manner, and subject to the provisions set
forth in SECTION 11.2 of the Credit Agreement.
(d) Section captions used in this Guaranty are for
convenience of referenced only, and shall not affect the construction
of this Guaranty.
(e) In addition to, and not in limitation of, any rights
of any Lender Party under applicable law, each Lender Party shall,
upon the occurrence and during the continuance of any Default
described in any of CLAUSES (a) through (d) of SECTION 9.1.9 of the
Credit Agreement (after providing notice to the Guarantor with respect
thereto) or any Event of Default, have the right, to the fullest
extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final), credits,
accounts or moneys of the Guarantor to the payment of the obligations
of the Guarantor then due and owing to it hereunder, irrespective of
whether or not such Lender Party shall have made any demand under any
Loan Document.
(f) Wherever possible each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision of the remaining
provisions of this Guaranty.
(g) Any Person required to become a party to this
Guaranty from and after the Effective Date pursuant to SECTION 8.1.10
of the Credit Agreement may do so by executing a signed counterpart of
this Guaranty on terms satisfactory to the Administrative Agent.
8
EXHIBIT J
186
SECTION 9. WAIVER OF JURY TRIAL. THE LENDER PARTIES AND GUARANTORS
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
LENDER PARTIES OR THE GUARANTORS. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF THIS GUARANTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT AND MAKING
CREDIT EXTENSIONS THEREUNDER.
SECTION 10. ACKNOWLEDGMENT AND AGREEMENT OF OTHER GUARANTORS. By
executing the acknowledgment to this Guaranty each of the other Group
Guarantors agrees to be fully bound by the terms of SECTION 5 hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.]
9
EXHIBIT J
187
IN WITNESS WHEREOF, each undersigned corporation has caused this
Guaranty to be executed on its respective behalf as of the date above written
by one of its officers duly authorized thereunto.
[NAME OF ADDITIONAL GUARANTOR]
[ADDRESS FOR NOTICES]
By
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
ACKNOWLEDGED AND AGREED TO THE TERMS OF SECTION 5:
▇▇▇▇▇▇ MICRO INC., a corporation ▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., a
organized and existing under corporation organized and existing
the laws of the State of under the laws of Singapore
Delaware, United States of America
By By
---------------------------------- --------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title: Title:
---------------------------- ---------------------------------
INGRAM EUROPEAN COORDINATION ▇▇▇▇▇▇ MICRO INC., a corporation
CENTER N.V., a company organized organized and existing under the laws
and existing under the laws of the Province of Ontario, Canada
of The Kingdom of Belgium
By By
---------------------------------- --------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title: Title:
---------------------------- ---------------------------------
[INSERT BLOCKS FOR ANY ADDITIONAL GUARANTORS.]
10
EXHIBIT J
188
EXHIBIT K
LENDER ASSIGNMENT AGREEMENT
______________________________, 19_____
▇▇▇▇▇▇ Micro Inc. The Bank of Nova Scotia,
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ as Administrative Agent
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Treasurer ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ____________________
We refer to the European Credit Agreement (together with all
amendments and other modifications, if any, from time to time made to it the
"CREDIT AGREEMENT") dated as of October 28, 1997, among ▇▇▇▇▇▇ Micro Inc. (a
corporation organized and existing under the laws of the State of Delaware,
United States) and Ingram European Coordination Center, N.A. (a company
organized and existing under the laws of The Kingdom of Belgium), as the
Primary Borrowers, certain Lenders, The Bank of Nova Scotia, as the
Administrative Agent (in that capacity, the "ADMINISTRATIVE AGENT") for the
Lenders, NationsBank of Texas, N.A., as the Documentation Agent for the
Lenders, and certain arrangers, and executed by ▇▇▇▇▇▇ Micro Inc. (a
corporation organized and existing under the laws of the Province of Ontario,
Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a corporation organized and
existing under the laws of Singapore) as Supplemental Borrowers. Terms defined
in the Credit Agreement have the same meanings when used, unless otherwise
defined, in this agreement.
1. This agreement is delivered to you and constitutes notice to
you under SECTION 11.11.1 of the Credit Agreement of the assignment and
delegation without recourse by ______________________________ (the "ASSIGNOR")
to ______________________________________________ (the "ASSIGNEE") of all of
the Assignor's rights and obligations under the Credit Agreement as of
_________________, ____ (the "ASSIGNMENT DATE"), with respect to (a) its
Commitment in the amount of US$_____________ and (b) outstanding Credit
Extensions comprised of (i) Pro-Rata Revolving Loans in the aggregate principal
amount of US$________, (ii) Letter of Credit Outstandings in the aggregate
principal amount of US$___ __________________, and (iii) Non-Rata Revolving
Loans in the aggregate principal amount of US$_______________ (the "ASSIGNED
PORTION") outstanding under the Credit Agreement; provided that Assignor does
not relinquish its rights under SECTIONS 5.3, 5.4, 5.5, 5.7, 11.3, and 11.4 of
the Credit Agreement, to the extent those rights relate to any time before the
Assignment Date. From and after the Assignment Date, the Assignor's and the
Assignee's Percentages for purposes of the Credit Agreement and each other Loan
Document are as stated opposite their respective names on the signature page(s)
below.
2. On or before the Assignment Date, the Assignee shall pay to
the Assignor an amount, in immediately available funds, equal to the purchase
price agreed to between the Assignor and the Assignee. Any part of that
purchase price on account of (a) accrued and unpaid interest and Letter of
Credit fees paid in advance (pursuant to SECTION 4.3.3 of the Credit Agreement)
with respect to the Assigned Portion shall be
EXHIBIT K
189
calculated by the Assignor (in consultation with Micro) and (b) the facility
fees payable with respect to the Assigned Portion pursuant to SECTION 4.3.2 of
the Credit Agreement shall be calculated by the Assignor (in consultation with
Micro). The Assignee is entitled to receive all payments on account of
interest, principal, and fees with respect to the Assigned Portion for the
period from and after the then most recent date of payment of interest,
principal, and fees, as the case may be, by the relevant Borrower. The
Assignor and the Assignee shall, directly between themselves, make all
appropriate adjustments in payments to either of them under the Credit
Agreement for periods before the Assignment Date.
3. The Assignee represents, warrants, acknowledges, and confirms
that (a) it is legally authorized to enter into and deliver this agreement, (b)
it has received (i) a copy of the Credit Agreement, (ii) copies of the
documents that were required to be delivered under the Credit Agreement as a
condition to the initial Credit Extension under it, (iii) copies of the most
recent financial statements delivered pursuant to SECTION 8.1.1 or 6.1.4, as
the case may be, of the Credit Agreement, and (iv) all other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this agreement, (c) it independently and without
reliance upon the Assignor, the Agents, or any other Lender, and based on such
documents and information as it deemed or will deem appropriate at the time,
made and shall continue to make its own credit decisions in taking or not
taking any action under the Credit Agreement, the other Loan Documents, and the
other instruments and documents delivered in connection therewith, (d) its
actions in becoming a Lender and in making its Commitment and Credit Extensions
under the Credit Agreement have been and will be made without recourse to, or
representation or warranty by, the Agents, and (e) the Assignee is (i) in
respect of payments by Micro, entitled to receive payments under the Loan
Documents and free and clear without deduction for or on account of any United
States federal income taxes, and (ii) in respect of payments by Coordination
Center entitled to receive payments under the Loan Documents free and clear
without any deduction for or on account of any income taxes imposed by The
Kingdom of Belgium.
4. The Assignor represents, warrants, confirms, and acknowledges
that (a) it is legally authorized to enter into and deliver this agreement and
(b) it is the legal and beneficial owner of the Assigned Portion. Except as
set forth in the previous sentence, the Assignor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made pursuant to or in connection with this
agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency, or value of this agreement, the Credit Agreement, any other Loan
Document, or any other instrument or document furnished pursuant hereto or
thereto, including the financial condition of Micro and its Subsidiaries or the
performance or observance by any Lender of any of its obligations under the
Credit Agreement, any other Loan Document, or any other instrument or document
furnished pursuant hereto or thereto.
5. Except as otherwise provided in the Credit Agreement,
effective as of the Assignment Date (a) the Assignee (i) shall be deemed
automatically to have become a party to the Credit Agreement with all the
rights and obligations of a "Lender" under the Credit Agreement and the other
Loan Documents as if it were an original signatory to them to the extent
specified in the PARAGRAPH 1 above, (ii) agrees to be bound by the terms and
conditions in the Credit Agreement and the other Loan Documents as if it were
an original signatory to them, and (b) the Assignor shall be released from its
obligations under the Credit Agreement and the other Loan Documents to the
extent of the Assigned Portion.
6. The Assignee shall pay to the Administrative Agent the
processing fee referred to in SECTION 11.11.1(b) of the Credit Agreement.
3
EXHIBIT K
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as the Administrative Agent
7. The Assignee advises you of the following administrative
details with respect to the assigned Credit Extensions and Commitment and
requests that the Administrative Agent and Micro acknowledge receipt of this
agreement:
LENDING OFFICE FOR LOANS TO MICRO: ADDRESS FOR NOTICES:
---------------------------------- -----------------------------------------
---------------------------------- -----------------------------------------
---------------------------------- -----------------------------------------
FACSIMILE NO.: FACSIMILE NO.:
-------------------- --------------------------
ATTENTION: ATTENTION:
-------------------- -------------------------------
LENDING OFFICE FOR OTHER LOANS: ADDRESS FOR PAYMENT OF FEES:
---------------------------------- -----------------------------------------
---------------------------------- -----------------------------------------
---------------------------------- -----------------------------------------
FACSIMILE NO.: FACSIMILE NO.:
------------------- --------------------------
ATTENTION: ATTENTION:
----------------------- -----------------------------
8. This Agreement may be executed by the Assignor and Assignee in
separate counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
Percentage , as the Assignor
--------------------
(after giving effect to the Assignment)
By
---------------------------------
Commitment and Name:
----------------------------
Credit Extensions: % Title:
------- ---------------------------
Percentage , as the Assignee
------------------
(after giving effect to the Assignment)
By
-------------------------------
Commitment and Name:
--------------------------
Credit Extensions: % Title:
------- -------------------------
The foregoing is accepted and agreed to in all respects as of _______________,
____.
4
EXHIBIT K
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ MICRO INC. (a corporation
as the Administrative Agent organized and existing under the laws of
the State of Delaware, United States of
America), as Micro
By By
---------------------------------- ----------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
EXHIBIT K
192
EXHIBIT L
QUARTERLY REPORT
▇▇▇▇▇▇ MICRO INC.
OUTSTANDING NON-RATA CREDIT EXTENSIONS
As of the last day of the Fiscal Period ended __________________________.
LENDER/ISSUER TYPE(1) MATURITY AVAILABLE PRINCIPAL DOLLAR
CURRENCY AMOUNT/STATED AMOUNT(2)
AMOUNT
----------------------- ------------ --------- ------------ -------------- ------------
----------------------- ------------ --------- ------------ -------------- ------------
----------------------- ------------ --------- ------------ -------------- ------------
----------------------- ------------ --------- ------------ -------------- ------------
----------------------- ------------ --------- ------------ -------------- ------------
----------------------- ------------ --------- ------------ -------------- ------------
TOTAL DOLLAR AMOUNT OF ALL $
OUTSTANDING NON-RATA CREDIT
EXTENSIONS
__________________________________
(1) Non-Rata Revolving Loan or Non-Rata Letter of Credit.
(2) The Dollar Amount on that last day of any Non-Rata Revolving Loans
or Non-Rata Letters of Credit denominated in an Available Currency
other than Dollars shall be calculated based upon the spot rate at
which Dollars were offered on that day for that Available Currency
that appeared on Telerate Page 3740 at approximately 11:00 a.m.
London time on that day (and if that spot rate is not available on
Telerate Page 3740 as of that time, that spot rate as was quoted by
Scotiabank, in London at approximately 11:00 a.m. London time on that
day.
EXHIBIT L
193
EXHIBIT S
COMMITMENT EXTENSION REQUEST(1)
Dated _____________, ____
The Bank of Nova Scotia,
as Administrative Agent
Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ____________________
And each of the Lenders Party to the
Credit Agreement referred to below
This request is delivered to you pursuant to SECTION 2.2(a) of the
Credit Agreement (together with all amendments and other modifications, if any,
from time to time made to it, the "CREDIT AGREEMENT") dated as of October 28,
1997, among ▇▇▇▇▇▇ Micro Inc. (a corporation organized and existing under the
laws of the State of Delaware, United States, "MICRO") and Ingram European
Coordination Center, N.A. (a company organized and existing under the laws of
The Kingdom of Belgium) as the Primary Borrowers, certain Lenders, The Bank of
Nova Scotia, as the Administrative Agent for the Lenders, NationsBank of Texas,
N.A., as the Documentation Agent for the Lenders, and certain arrangers, and
executed by ▇▇▇▇▇▇ Micro Inc. (a corporation organized and existing under the
laws of the Province of Ontario, Canada) and ▇▇▇▇▇▇ Micro Singapore Pte Ltd. (a
corporation organized and existing under the laws of Singapore) as Supplemental
Borrowers. Terms defined in the Credit Agreement have the same meanings when
used, unless otherwise defined, in this request.
Micro requests that the Commitment Termination Date be extended from
____________________, ____,(2) for a [check and complete one or both]:
o one-year ending ___________________, ____ (a "ONE-YEAR
EXTENSION").
o two-year extension ending ___________________, ____ (a
"TWO-YEAR EXTENSION").
(1) ATTENTION LENDER - ▇▇▇▇▇▇ Micro Inc. is authorized to deliver this
request only during the period beginning May 1st and ending June 30th in
the year immediately preceding the year of the current Commitment
Termination Date. Delivery of this request at any other time is not
permitted by the Credit Agreement, and you are not required to respond
to it.
(2) Insert the current Commitment Termination Date.
Micro acknowledges and agrees that the Commitment Termination Date has
not occurred and
EXHIBIT S
194
that this request and any extension of the current Commitment Termination Date
pursuant to this request shall, without notice to or action by any Person,
automatically become null and void and be of no force and effect on the
Commitment Termination Date.
Please indicate whether or not you consent to the proposed extension of
the Commitment Termination Date by completing and signing below two of the three
enclosed counterparts of this request and returning one signed copy of each NOT
LATER THAN JULY 31ST OF THIS YEAR to Micro and the Administrative Agent as
follows:
▇▇▇▇▇▇ Micro Inc. The Bank of Nova Scotia,
▇▇▇▇ ▇. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ as Administrative Agent
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ Scotia House
Attention: Treasurer ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ____________________
Micro has caused this request to be executed and delivered by its duly
Authorized Person as of the date first stated above.
▇▇▇▇▇▇ MICRO INC., a corporation
organized and existing under the laws of
the State of Delaware, United States
By_________________________________
Name:____________________________
Title:___________________________
In respect of the foregoing requested extension(s), the undersigned
Lender [check and complete the following, as applicable]:
DOES NOT
CONSENTS CONSENT
[ ] [ ] To the One-Year Extension,
if requested.
[ ] [ ] To the Two-Year Extension,
if requested.
___________________________________(1)
By_________________________________
Name:____________________________
Title:___________________________
--------
(1) Insert name of Lender.
2
EXHIBIT S
195
EXHIBIT T
ACCESSION REQUEST AND ACKNOWLEDGMENT
Dated _______________, ____
The Bank of Nova Scotia,
as Administrative Agent
Scotia House
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ____________________
This Accession Request and Acknowledgment is delivered to you pursuant
to SECTION 6.3.2 of the European Credit Agreement (together with all amendments
and other modifications, if any, from time to time made to it, the "CREDIT
AGREEMENT") dated as of October 28, 1997, among ▇▇▇▇▇▇ Micro Inc. (a corporation
organized and existing under the laws of the State of Delaware, United States)
and Ingram European Coordination Center, N.A. (a company organized and existing
under the laws of The Kingdom of Belgium) as the Primary Borrowers, certain
Lenders, The Bank of Nova Scotia, as the Administrative Agent for the Lenders,
NationsBank of Texas, N.A., as Documentation Agent for the Lenders, and certain
arrangers, and executed by ▇▇▇▇▇▇ Micro Inc. (a corporation organized and
existing under the laws of the Province of Ontario, Canada) and ▇▇▇▇▇▇ Micro
Singapore Pte Ltd. (a corporation organized and existing under the laws of
Singapore) as Supplemental Borrowers. Terms defined in the Credit Agreement have
the same meanings when used, unless otherwise defined, in this Accession Request
and Acknowledgment.
The undersigned desires to become a Other Borrower and Obligor under the
Credit Agreement and requests that the Administrative Agent acknowledge that, as
of the date of this Accession Request and Acknowledgment, each of the conditions
precedent to accession in SECTION 6.3 of the Credit Agreement have been
satisfied and that ____________________ (the "ACCEDING BORROWER") has acceded to
the rights and obligations of an Obligor and a Other Borrower under the Credit
Agreement as though originally a signatory and party to it.
The Acceding Borrower hereby advises the Administrative Agent that its
address for notices under the Credit Agreement is:
EXHIBIT T
196
The Acceding Borrower has caused this Accession Request and
Acknowledgment to be duly executed and delivered by its duly Authorized Person
as of the date first stated above.
_______________, as the Acceding Borrower
By_________________________________
Name:____________________________
Title:___________________________
The foregoing is accepted and agreed to in all respects as of the
_______________,____.
THE BANK OF NOVA SCOTIA, ▇▇▇▇▇▇ MICRO INC., a corporation
as the Administrative Agent organized and existing under the laws
of the State of Delaware, United States
By___________________________ By___________________________________
Name:______________________ Name:______________________________
Title:_____________________ Title:_____________________________
INGRAM EUROPEAN COORDINATION ▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD., a
CENTER N.V., a company corporation organized and existing
organized and existing under under the laws of Singapore
the laws of The Kingdom of Belgium
By___________________________ By___________________________________
Name:______________________ Name:______________________________
Title:_____________________ Title:_____________________________
▇▇▇▇▇▇ MICRO INC., a corporation _______________________________________
organized and existing under the (signature blocks for any existing
laws of the Province Additional ▇▇▇▇▇▇▇▇▇▇)
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
By___________________________ By___________________________________
Name:______________________ Name:______________________________
Title:_____________________ Title:_____________________________
4
EXHIBIT T