EXHIBIT 10.12
K&S DRAFT
10/22/96
US $1,000,000,000
CREDIT AGREEMENT
dated as of October __, 1996
among
▇▇▇▇▇▇ MICRO INC.,
INGRAM EUROPEAN COORDINATION CENTER N.V.,
▇▇▇▇▇▇ MICRO SINGAPORE PTE LTD.
and
▇▇▇▇▇▇ MICRO INC. (Canada),
as Borrowers and Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent
for the Lenders,
and
THE BANK OF NOVA SCOTIA,
as Documentation Agent for the Lenders,
and
THE CHASE MANHATTAN BANK,
DG BANK, NEW YORK BRANCH,
THE FIRST NATIONAL BANK OF CHICAGO,
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
and
ROYAL BANK OF CANADA,
as Co-Agents
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................3
1.2. Use of Defined Terms...............................................30
1.3. Cross-References...................................................30
1.4. Accounting and Financial Determinations............................30
1.5. Calculations.......................................................31
ARTICLE II
COMMITMENTS, ETC.
2.1. Commitments........................................................31
2.2. Extensions of the Commitment Termination Date......................32
2.3. Reductions of the Commitment Amounts...............................34
ARTICLE III
BORROWING PROCEDURES,
LETTERS OF CREDIT AND REGISTERS
3.1. Borrowing Procedure for Pro-Rata Revolving Loans...................35
3.2. Pro-Rata Letter of Credit Issuance Procedures......................36
3.2.1. Other Lenders' Participation.......................................36
3.2.2. Disbursements......................................................37
3.2.3. Reimbursement......................................................38
3.2.4. Deemed Disbursements...............................................38
3.2.5. Nature of Reimbursement Obligations................................38
3.3. Non-Rata Revolving Loan Facility...................................39
3.3.1. Non-Rata Revolving Loans...........................................39
3.3.2. Ineligible Currencies..............................................40
3.3.3. Limitations on Making Non-Rata Revolving Loans.....................40
3.3.4. Procedure for Making Non-Rata Revolving Loans......................40
3.3.5. Maturity of Non-Rata Revolving Loans...............................41
3.3.6. Non-Rata Revolving Loan Records....................................41
3.3.7. Quarterly Report...................................................41
3.4. Non-Rata Letter of Credit Facility.................................42
3.4.1. Non-Rata Letters of Credit.........................................42
3.4.2. Ineligible Currencies..............................................42
3.4.3. Limitations on Issuing Non-Rata Letters of Credit..................42
3.4.4. Procedures for Issuing Non-Rata Letters of Credit..................42
3.4.5. Disbursements......................................................42
3.4.6. Reimbursement......................................................43
3.5. Bid Rate Facility..................................................43
3.5.1. Bid Rate Loans.....................................................43
3.5.2. Quote Request......................................................43
3.5.3. Submission of Quotes...............................................44
3.5.4. Acceptance of Quotes...............................................44
3.5.5. Bid Rate Loan......................................................45
3.5.6. Maturity of Bid Rate Loans.........................................45
3.5.7. Bid Rate Loan Records..............................................45
3.5.8. Limitations on Making Bid Rate Loans...............................45
ARTICLE IV
PRINCIPAL, INTEREST AND FEE PAYMENTS
4.1. Repayments and Prepayments of Pro-Rata Revolving Loans.............46
4.2. Interest Provisions................................................47
4.2.1. Rates..............................................................47
4.2.2. Post-Maturity Rates................................................48
4.2.3. Continuation and Conversion Elections..............................48
4.2.4. Payment Dates......................................................48
4.2.5. Interest Rate Determination........................................49
4.2.6. Additional Interest on LIBO Rate Loans.............................49
4.3. Fees...............................................................50
4.3.1. Administration and Documentation Fees..............................50
4.3.2. Facility Fees......................................................50
4.3.3. Letter of Credit Fees..............................................51
4.4. Rate and Fee Determinations........................................52
4.5. Obligations in Respect of Non-Rata Credit Extensions...............52
ARTICLE V
CERTAIN PAYMENT PROVISIONS
5.1. Illegality; Currency Restrictions..................................52
5.2. Deposits Unavailable...............................................53
5.3. Increased Credit Extension Costs, etc..............................54
5.4. Funding Losses.....................................................54
5.5. Increased Capital Costs............................................55
5.6. Discretion of Lenders as to Manner of Funding......................55
5.7. Taxes..............................................................55
5.8. Payments...........................................................57
5.8.1. Pro-Rata Credit Extensions.........................................57
5.8.2. Non-Rata Obligations...............................................58
5.9. Sharing of Payments................................................59
5.10. Right of Set-off...................................................60
5.11. Judgments, Currencies, etc.........................................61
5.12. Replacement of Lenders.............................................61
5.13. Change of Lending Office...........................................61
ARTICLE VI
CONDITIONS TO MAKING CREDIT EXTENSIONS
AND ACCESSION OF ACCEDING BORROWERS
6.1. Initial Credit Extension...........................................62
6.1.1. Resolutions, etc...................................................62
6.1.2. Effective Date Certificate.........................................62
6.1.3. Delivery of Notes..................................................63
6.1.4. Guaranties, etc....................................................63
6.1.5. Financial Information, etc.........................................63
6.1.6. Compliance Certificate.............................................63
6.1.7. Payment of Outstanding Indebtedness................................63
6.1.8. Consents, etc......................................................63
6.1.9. Closing Fees, Expenses, etc........................................64
6.1.10. Opinions of Counsel................................................64
6.1.11. Investment Prospectus..............................................64
6.1.12. Senior Executive Officer's Certificate.............................64
6.1.13. Satisfactory Legal Form............................................65
6.2. All Credit Extensions..............................................65
6.2.1. Compliance with Warranties, No Default, etc........................65
6.2.2. Credit Extension Request...........................................66
6.2.3. Non-Rata Revolving Loans...........................................66
6.2.4. Non-Rata Letters of Credit.........................................66
6.2.5. Bid Rate Loans.....................................................67
6.3. Acceding Borrowers.................................................67
6.3.1. Resolutions, etc...................................................67
6.3.2. Delivery of Accession Request and Acknowledgment and Notes.........67
6.3.3. Guaranties, etc....................................................68
6.3.4. Compliance Certificate.............................................68
6.3.5. Consents, etc......................................................68
6.3.6. Opinions of Counsel................................................68
6.4. Waiver of Notice under Existing Industries Credit Agreement........68
6.5. Waiver of Notice under Existing Micro Credit Agreement.............68
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Organization, etc..................................................69
7.2. Due Authorization, Non-Contravention, etc..........................69
7.3. No Default.........................................................69
7.4. Government Approval, Regulation, etc...............................70
7.5. Validity, etc......................................................70
7.6. Financial Information..............................................70
7.7. No Material Adverse Effect.........................................70
7.8. Litigation, Labor Controversies, etc...............................71
7.9. Subsidiaries.......................................................71
7.10. Ownership of Properties............................................71
7.11. Taxes..............................................................71
7.12. Pension and Welfare Plans..........................................71
7.13. Environmental Warranties...........................................72
7.14. Outstanding Indebtedness...........................................72
7.15. Accuracy of Information............................................72
7.16. Patents, Trademarks, etc...........................................73
7.17. Margin Stock.......................................................73
ARTICLE VIII
COVENANTS
8.1. Affirmative Covenants..............................................74
8.1.1. Financial Information, Reports, Notices, etc.......................74
8.1.2. Compliance with Laws, etc..........................................76
8.1.3. Maintenance of Properties..........................................76
8.1.4. Insurance..........................................................77
8.1.5. Books and Records..................................................77
8.1.6. Environmental Covenant.............................................77
8.1.7. Use of Proceeds....................................................78
8.1.8. Pari Passu.........................................................78
8.1.9. Guarantee or Suretyship............................................78
8.1.10. Additional Guaranty................................................78
8.1.11. Intra-Group Agreement, etc.........................................79
8.2. Negative Covenants.................................................79
8.2.1. Restriction on Incurrence of Indebtedness..........................79
8.2.2. Restriction on Incurrence of Liens.................................80
8.2.3. Financial Condition................................................82
8.2.4. Dividends..........................................................82
8.2.5. Consolidation, Merger, Asset Acquisitions, etc.....................82
8.2.6. Transactions with Affiliates.......................................84
8.2.7. Limitations on Margin Stock Acquisitions...........................85
8.2.8. Limitation on Sale of Trade Accounts Receivable....................85
8.2.9. Sale of Assets.....................................................85
8.2.10. Limitation on Businesses...........................................87
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default.......................................87
9.1.1. Non-Payment of Obligations.........................................87
9.1.2. Breach of Warranty.................................................87
9.1.3. Non-Performance of Certain Covenants and Obligations...............87
9.1.4. Non-Performance of Other Covenants and Obligations.................87
9.1.5. Default on Indebtedness............................................87
9.1.6. Judgments..........................................................88
9.1.7. Pension Plans......................................................88
9.1.8. Ownership; Board of Directors......................................88
9.1.9. Bankruptcy, Insolvency, etc........................................89
9.1.10. Guaranties.........................................................89
9.2. Action if Bankruptcy...............................................90
9.3. Action if Other Event of Default...................................90
9.4. Action by Terminating Lender.......................................90
9.5. Cash Collateral....................................................90
ARTICLE X
THE ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT
10.1. Authorization and Actions..........................................91
10.2. Funding Reliance, etc..............................................91
10.3. Exculpation........................................................92
10.4. Successor..........................................................92
10.5. Credit Extensions by NationsBank and Scotiabank....................93
10.6. Credit Decisions...................................................93
10.7. Copies, etc........................................................93
10.8. Reporting of Non-Rata Credit Extensions............................93
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc...........................................94
11.2. Notices............................................................95
11.3. Payment of Costs and Expenses......................................95
11.4. Indemnification....................................................96
11.5. Survival...........................................................97
11.6. Severability.......................................................97
11.7. Headings...........................................................97
11.8. Execution in Counterparts, Effectiveness; Entire Agreement.........97
11.9. Governing Law; Submission to Jurisdiction..........................97
11.10. Successors and Assigns.............................................98
11.11. Assignments and Transfers of Interests.............................99
11.11.1. Assignments........................................................99
11.11.2. Participations....................................................100
11.12. Other Transactions................................................101
11.13. Further Assurances................................................101
11.14. Waiver of Jury Trial..............................................101
11.15. Confidentiality...................................................101
11.16. Release of Subsidiary Guarantors and Supplemental Borrowers.......102
11.17. Collateral........................................................103
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)
- Annex A
Schedule II - Lending Offices
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Bid Rate Note
Exhibit A-3 - Form of Non-Rata Revolving Note
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Issuance Request
Exhibit D - Form of Continuation/Conversion Notice
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Effective Date Certificate
Exhibit G-1 - Form of Coordination Center Guaranty
Exhibit G-2 - Form of Intra-Group Agreement
Exhibit H - Form of Micro Guaranty
Exhibit I-1 - Form of Micro Canada Guaranty (Coordination Center/Micro
Singapore)
Exhibit I-2 - Form of Micro Canada Guaranty (Micro)
Exhibit I-3 - Form of Micro Singapore Guaranty
Exhibit J - Form of Additional Guaranty
Exhibit K - Form of Lender Assignment Agreement
Exhibit L - Form of Quarterly Report
Exhibit M - Form of Opinion of the General Counsel of Micro
Exhibit N - Form of Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, Special counsel to
Micro
Exhibit O - Form of Opinion of Special Belgian counsel to Coordination
Center
Exhibit P - Form of Opinion of Special Canadian counsel to Micro Canada
Exhibit Q - Form of Opinion of Special Singapore counsel to Micro
Singapore
Exhibit R - Form of Opinion of counsel to the Agents
Exhibit S - Form of Commitment Extension Request
Exhibit T - Form of Accession Request and Acknowledgment
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October __, 1996, among ▇▇▇▇▇▇ MICRO
INC., a Delaware corporation ("Micro"), ▇▇▇▇▇▇ 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 Ontario, Canada ("Micro Canada", and, collectively with
Coordination Center and Micro Singapore, the "Supplemental Borrowers"), the
financial institutions parties 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, collectively, the
"Lenders"), NATIONSBANK OF TEXAS, N.A. ("NationsBank"), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"), THE
BANK OF NOVA SCOTIA ("Scotiabank"), as documentation agent for the Lenders
(in such capacity, the "Documentation Agent" and, collectively with the
Administrative Agent, the "Agents"), and THE CHASE MANHATTAN BANK, DG BANK,
NEW YORK BRANCH, THE FIRST NATIONAL BANK OF CHICAGO, THE INDUSTRIAL BANK OF
JAPAN, LIMITED, ATLANTA AGENCY, and ROYAL BANK OF CANADA, as co-agents
(collectively in such capacity, the "Co-Agents").
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 Commitments from all the Lenders for Pro-Rata
Credit Extensions to be made prior to the Commitment Termination Date in
an aggregate amount in Dollars not to exceed the Total Credit Commitment
Amount at any one time outstanding, such Credit Extensions being
available on a committed basis as
(i) Pro-Rata Revolving Loans, and
(ii) Pro-Rata Letters of Credit in an aggregate amount at
any time issued and outstanding not to exceed $250,000,000;
(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, subject to a limit
on all Outstanding Credit Extensions consisting of Non-Rata Credit
Extensions of $750,000,000 in the aggregate; and
(c) 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 the Lenders make Bid Rate Loans, subject to a
limit on all Outstanding Credit Extensions consisting of Non-Rata Credit
Extensions of $750,000,000 in the aggregate; and
WHEREAS, each Borrower is willing to guarantee all Obligations of each
other Borrower on a joint and several basis; and
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;
(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
excess of the Total Credit Commitment Amount over the then Outstanding
Credit Extensions, subject to a limit on all Outstanding Credit
Extensions consisting of Non-Rata Credit Extensions of $750,000,000 in
the aggregate; and
(c) to consider quoting bids to make from time to time prior to
the Commitment Termination Date, in each Lender's sole and absolute
discretion and without commitment, Bid Rate Loans in an aggregate
principal amount not to exceed the excess of the Total Credit Commitment
Amount over the then Outstanding Credit Extensions, subject to a limit
on all Outstanding Credit Extensions consisting of Non-Rata Credit
Extensions of $750,000,000 in the aggregate; and
WHEREAS, the proceeds of the initial Credit Extensions will be used
either (a) through repayment of intercompany advances to refinance all amounts
outstanding under the Existing Industries Credit Agreement, and to repay other
Indebtedness required to be repaid and to make other payments required to be
made, in each case in connection with the consummation of the transactions
referred to in Section 6.1.12, or (b) to refinance all amounts outstanding
under the Existing Micro Credit Agreement, as the case may be, and the
proceeds of all subsequent Credit Extensions will be used for general
corporate purposes (including, working capital, Acquisitions (so long as such
Borrower has complied with Section 8.1.7), and liquidity support for commercial
paper borrowings) 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
SECTION 1.1. Defined Terms. The following terms (whether or not in
bold 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):
"Absolute Interest Rate" is defined in Section 3.5.3.
"Absolute Interest Rate Auction" means a solicitation of Quotes setting
forth Absolute Interest Rates pursuant to Section 3.5.3.
"Absolute Interest Rate Loans" means Bid Rate Loans, the interest rate
on which is determined on the basis of Absolute Interest Rates pursuant to an
Absolute Interest Rate Auction.
"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" shall mean 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.
"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" is defined in Section 8.1.10. and means a
guaranty, in the form of Exhibit J attached hereto, 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
fifteen percent (15%) of Consolidated Tangible Net Worth on such date.
"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, ten percent (10%)
or more or, in the case of any other Person, thirty-five percent (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 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 LIBO Rate 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(a) hereof
(together with the Compliance Certificate required to be delivered
contemporaneously therewith pursuant to Section 8.1.1(d) hereof) for the
Fiscal Year ending on the Saturday nearest December 31, 1996, .250 of 1% 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 Ratings Ratio of Consolidated LIBO Rate
by S&P, ▇▇▇▇▇'▇ and Funded Debt to Loan Applicable
Fitch, respectively Consolidated EBITDA Margin
_________________________ _____________________ _______________
A-, A3 or A- (or higher) Less than 1.5 .160%
BBB+, Baa1 or BBB+ Greater than or equal to 1.5, but less than 2.0. .215%
BBB, Baa2 or BBB Greater than or equal to 2.0, but less than 2.5. .250%
BBB-, Baa3 or BBB- Greater than or equal to 2.5, but less than 3.0. .275%
▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.0, but less than 3.25. .400%
Lower than ▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.25. .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.
"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, relative to any Lender at any time,
the excess of such Lender's Percentage multiplied by the then Total Credit
Commitment Amount over such Lender's then Outstanding Credit Extensions (it
being understood that no reduction shall be made for any Non-Rata Credit
Extension).
"Available Currency" means for the purposes of any Non-Rata Revolving
Loans and Non-Rata Letters of Credit, Dollars, Canadian Dollars, Singapore
Dollars, Hong Kong Dollars, Swiss Francs, Belgian Francs, French Francs,
Guilders, Sterling, Marks, Lira, Mexican Pesos, Pesetas, Yen, Krona, Danish
Krone, Norwegian Krone, Schillings, Ringgit, Won, European Currency Units and
other mutually agreed currencies.
"Belgian Francs" means the lawful currency of The Kingdom of Belgium.
"Bid Rate Borrowing" has the meaning set forth in Section 3.5.2.
"Bid Rate Loan" means a loan made to a Borrower under Section 3.5.
"Bid Rate Note" means a promissory note of a Borrower payable to a
Lender, 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 Bid Rate
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or as a renewal thereof.
"Board Representation Agreement" means the Board Representation
Agreement delivered to the Administrative Agent pursuant to Section 6.1.1(c),
among Micro and the "Family Stockholders" (as defined therein) listed on the
signature pages thereof, as in effect on the date so delivered 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, Micro and the Supplemental Borrowers
party to this Agreement from time to time, together with their respective
successors and assigns.
"Borrower's Account" means such account maintained by a Borrower for
purposes of Section 3.5.5, as such Borrower may notify the Lenders from time
to time.
"Borrowing" means the Pro-Rata Revolving Loans of the same Type and, in
the case of any LIBO Rate Loan, having the same Interest Period, made by all
Lenders on the same Business Day and 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 Micro,
substantially in the form of Exhibit B hereto.
"Business Day" means:
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York City or Dallas, Texas;
(b) relative to the making of any payment in respect of any
Credit Extension denominated in an Available Currency other than
Dollars, any day on which dealings in such Available Currency are
carried on in the relevant local money market;
(c) relative to the making, continuing, prepaying or repaying of
any LIBO Rate Loans, any day which is a Business Day described in clause
(a) above and which is also a day on which dealings in Dollars are
carried on in the London interbank eurodollar market; and
(d) 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 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 capitalized
amount thereof determined in accordance with such FASB Statement 13.
"Co-Agents" is defined in the preamble.
"Code" means the 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
clause (a) of Section 2.1 to make Pro-Rata Revolving Loans and under clause
(b) of Section 2.1 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, 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", "consolidating" 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
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, and
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Income for such
period, and
(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:
(a) Consolidated Assets as at such date, less
(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.
"Consolidated Tangible Net Worth" means, at any date:
(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, less
(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/Conversion Notice" means a notice of continuation or
conversion and certificate for Pro-Rata Revolving Loans duly completed and
executed by an Authorized Person of Micro, 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 attached hereto, duly executed and delivered by an Authorized Person of
Coordination Center, as amended, supplemented, restated or otherwise modified
from time to time.
"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" means, as the context may require,
(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 mean the lawful currency of the United
States.
"Dollar Amount" means, at any date:
(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.
"Eligible Assignee" means (i) a commercial bank organized under the laws
of the United States, or any State thereof; (ii) a commercial bank organized
under the laws of 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 a political subdivision of any such country,
provided that such bank is acting through a branch or agency located in the
United States; (iii) the central bank of any country that is a member of the
Organization for Economic Cooperation and Development; (iv) any Lender; or (v)
solely during the occurrence and continuance of a Default, a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership or other entity) engaged generally in making,
purchasing and otherwise investing in commercial loans in the ordinary course
of its business; provided, however, that (A) any Person described in clause
(i), (ii) or (iii) above shall also (x) have 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), (y)
have 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 (z) be reasonably acceptable to the
Administrative Agent and, so long as no Default shall have occurred and be
continuing, Micro, (B) any Person described in clause (v) above shall (x) have
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 (y) be reasonably acceptable to the
Administrative Agent and Micro and (C) any Person described in clause (ii),
(iii) or (v) above shall, on the date on which it is to become a Lender
hereunder, be entitled to receive payments hereunder without deduction or
withholding of any United States Federal income taxes.
"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 Federal, state, or local authority in the United States or
any foreign 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. 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.
"Excess Amount" is defined in clause (d) of Section 5.9.
"Existing Industries Credit Agreement" means the Amended and Restated
Credit Agreement, dated as of May 5, 1995, among the Borrowers (other than
Micro Singapore), Industries, Entertainment, Ingram Ohio Barge Co., ▇▇▇▇▇▇
Micro Singapore Inc., the various financial institutions parties thereto, and
the co-agents, lead managers and European agent named therein, as amended.
"Existing Micro Credit Agreement" means that certain Credit Agreement,
among the Borrowers, the various financial institutions parties thereto, and
the co-agents, lead managers and European agent named therein, which may
replace (with respect to the Borrowers) the Existing Industries Credit
Agreement on or prior to the Effective Date.
"FASB" means the Financial Accounting Standards Board.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
In the case of a day which is not a Business Day, the Federal Funds Rate for
such day shall be the Federal Funds Rate for the next preceding Business Day.
For purposes of this Agreement, any change in the Reference Rate due to a
change in the Federal Funds Rate shall be effective on the effective date of
such change in the Federal Funds Rate.
"Fee Letter" means that certain confidential letter, dated as of the
date hereof, among Scotiabank and NationsBank 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 (3) consecutive periods of four (4) weeks and five (5)
weeks (or, on occasion, six (6) 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.
"Guaranties" means, collectively,
(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 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 Hong Kong.
"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.
"including" and "include" mean including without limiting the generality
of any description preceding such term.
"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 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, however, 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 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 Non-Rata Revolving 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 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 LIBO Rate Loan, the period beginning on
(and including) the date on which such LIBO Rate Loan is made, continued or
converted and ending on (but excluding) the last day of the period selected by
Micro 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
LIBO Rate 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 Micro may select in its
relevant notice pursuant to Section 3.1 or 4.2.3; provided, however, that
(a) Micro shall not be permitted to select Interest Periods for
LIBO Rate 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 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
LIBO Rate 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 Day next preceding such numerically corresponding day); and
(d) no Interest Period for any LIBO Rate 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.
"Investment" means an increase since January 1, 1996 in Consolidated
Tangible Net Worth by at least $220,000,000 from (i) an initial public
offering by Micro; (ii) other equity offerings or issuances of capital stock;
(iii) the exercise of stock options on Micro stock held by present or former
employees of Micro, Industries or Entertainment (or any of their respective
Subsidiaries); (iv) an irrevocable contribution of cash to the capital of
Micro; or (v) a combination of the events described in clauses (i) through
(iv) above.
"Investment Prospectus" is defined in Section 6.1.11.
"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 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-Agents or Issuers.
"Lending Office" means, relative to any LIBO Rate Loan of a Lender, the
LIBOR Office of such Lender designated as such below its signature hereto or
in a Lender Assignment Agreement or by notice to the Administrative Agent and
Micro from time to time and relative to any Non-Rata Credit Extension, the
office that such Lender shall designate.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $250,000,000, as such amount may be reduced from time to time
pursuant to Section 2.3.
"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 Pro-Rata 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
Pro-Rata Reimbursement Obligations.
"Letters of Credit" shall mean, collectively, all Pro-Rata Letters of
Credit issued and outstanding and Non-Rata Letters of Credit issued and
outstanding.
"LIBO Auction" means a solicitation of Quotes setting forth LIBO Margins
based on the LIBO Rate pursuant to Section 3.5.3.
"LIBO Margin" is defined in Section 3.5.3.
"LIBO Market Loan" means a Bid Rate Loan the interest rate on which is
determined on the basis of a LIBO Rate pursuant to a LIBO Auction.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to
the nearest 1/16 of 1% per annum) of the rates per annum at which Dollar
deposits 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 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 LIBO Rate
Loan and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Pro-Rata Revolving Loan bearing interest, at
all times during the Interest Period applicable thereto, at a fixed rate of
interest determined by reference to the LIBO Rate.
"LIBOR Reserve Percentage" means, for any Lender, relative to any
Interest Period for LIBO Rate Loans, the reserve percentage (expressed as a
decimal) equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplemental, 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 or
a Bid Rate Loan.
"Loan Document" means this Agreement, each Note, 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 (excluding any
documents delivered solely for the purpose of satisfying 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" is defined in Section 8.2.5(b).
"Material Subsidiary" means: (a) with respect to any Subsidiary of Micro
as of the date hereof, a Subsidiary of Micro that (as of any date of
determination), (i) on an average over the three (3) most recently preceding
Fiscal Years contributed at least five percent (5%) to Consolidated Net
Income, or (ii) on an average at the end of the three (3) most recently
preceding Fiscal Years owned assets constituting at least five percent (5%) of
Consolidated Assets; and (b) with respect to any Subsidiary of Micro organized
or acquired subsequent to the date hereof, 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 five percent (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, (A) on an average over the three (3) most recently
preceding Fiscal Years (or, if less, since the date such Person became a
Subsidiary of Micro) contributed at least five percent (5%) to Consolidated
Net Income, or (B) on an average at the end of the three (3) (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 five percent (5%) of Consolidated Assets; provided that
▇▇▇▇▇▇ Funding Inc., Distribution Funding Corporation and any other special
purpose financing vehicle shall not be Material Subsidiaries.
"Maturity" of any Obligation means the earliest to occur of
(a) the date on which such Obligation expressly becomes due and
payable pursuant hereto or any other Loan Document or, in the case of
any Obligation incurred in respect of any Non-Rata Revolving Loan or Bid
Rate 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 Obligation becomes due and payable
pursuant to Section 9.2 or 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" is defined in the preamble.
"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 attached
hereto, duly executed and delivered by an Authorized Person of Micro, as
amended, supplemented, restated or otherwise modified from time to time.
"Micro Singapore" is defined in the preamble.
"Micro Singapore Guaranty" means the Guaranty, in the form of Exhibit
I-3 attached hereto, duly executed and delivered by an Authorized Person of
Micro Singapore, as amended, supplemented, restated or otherwise modified from
time to time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NationsBank" is defined in the preamble.
"Non-Rata Credit Extension" means, collectively,
(a) the making of a Non-Rata Revolving Loan by any Lender;
(b) the issuance by any Lender of a Non-Rata Letter of Credit;
and
(c) the making of a Bid Rate Loan by any Lender.
"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 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, in the form of Exhibit A-3 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, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Norwegian Krone" means the lawful currency of Norway.
"Note" means, as the context may require, a Revolving Note, a Non-Rata
Revolving Note, a Bid Rate Note, or any promissory note of Coordination
Center that may be issued from time to time to evidence Non-Rata Revolving
Loans made by any Lender to Coordination Center.
"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 and/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 Percentage of the aggregate Stated Amount of
all Pro-Rata Letters of Credit which 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 which are outstanding and undrawn (or drawn
and unreimbursed) at such date.
"Participant" is defined in Section 11.11.2.
"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 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. With respect to any
Lender at any time, "Percentage" shall express the ratio of such Lender's then
Available Credit Commitments to the then aggregate Available Credit
Commitments of all the Lenders.
"Person" means any natural person, company, partnership, firm, limited
liability company or partnership, association, trust, government, governmental
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.
"Pro-Rata Credit Extension" means, collectively,
(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" is defined in clause (c) of Section 5.9.
"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.
"Quote" means an offer in accordance with Section 3.5.3 by a Lender to
make a Bid Rate Loan with one single specified interest rate.
"Quote Request" has the meaning set forth in Section 3.5.2.
"Receiving Lender Party" is defined in clause (d) of Section 5.9.
"Reference Lenders" means Scotiabank, NationsBank, The First National
Bank of Chicago and The Chase Manhattan Bank.
"Reference Rate" means, on any date and with respect to all Reference
Rate Loans, a fluctuating rate of interest per annum equal to
(a) at all times other than the last five Business Days of each
calendar quarter, the rate of interest most recently announced or
established by NationsBank as its reference rate for Dollar loans; and
(b) during the last five Business Days of each calendar quarter,
the higher of (i) the rate set forth in the preceding clause (a) and
(ii) the Federal Funds Rate plus 1/2 of 1%.
The Reference Rate is not necessarily intended to be the lowest rate of
interest determined by NationsBank in connection with extensions of credit.
Changes in the rate of interest on that portion of any Pro-Rata Revolving
Loans maintained as Reference Rate Loans will take effect simultaneously with
each change in the Reference Rate. The Administrative Agent will give notice
promptly to Micro and the Lenders of changes in the Reference Rate.
"Reference Rate Loan" means a Pro-Rata Revolving Loan bearing interest
at a fluctuating rate of interest determined by reference to the Reference
Rate.
"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" shall mean, collectively, 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 Section
9601 et seq.), and any rules and regulations promulgated thereunder.
"Relevant Issuer" is defined in Section 8.2.7.
"Remaining Lender" is defined in clause (a) of Section 2.2.
"Replacement Notice" is defined in Section 5.12.
"Required Currency" is defined in Section 5.8.2.
"Required Lenders" means, at any time, Lenders having an aggregate
Percentage of at least 65%.
"Revolving Note" means a promissory note of Micro payable to a Lender,
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 Micro to such Lender resulting from outstanding Pro-Rata
Revolving Loans, and also means 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 of England
and Wales.
"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 fifty percent (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" is defined in the preamble, and such term shall
include any Acceding Borrowers party to this Agreement from time to time,
together with their respective successors and assigns.
"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, $1,000,000,000, 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 the date hereof or
incurred pursuant to any commitment or line of credit in its favor in effect
on the date hereof, 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 those agreements and other instruments
entered into by Micro, Industries, Entertainment and certain other Persons on
or before the date hereof in connection with a series of related transactions
through which Micro and Entertainment cease to be Subsidiaries of Industries,
in each case as summarized in the annexes attached to the certificate referred
to in Section 6.1.12, each as in effect on the date hereof (or, if later, the
date the Investment is consummated), without giving effect to any amendment,
modification or supplement thereafter except for such amendments,
modifications or supplements after the date hereof, which, individually or
taken as whole, do not materially alter the terms of such Transition Agreement
or adversely affect Micro or any of its Subsidiaries.
"Type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Reference Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"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(1) 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 meanings 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, however,
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 the
Borrower's Fiscal Year, or 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 the Borrower's financial condition shall be the same
after such changes as if such changes had not been made; provided,
however, that until the parties hereto have reached a definitive
agreement on such amendments, the Borrower'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. Unless otherwise expressly stated to the
contrary in this Agreement or in any other Loan Document, all calculations
made for purposes of this Agreement, each other Loan Document and the
transactions contemplated hereby and thereby shall be made to two decimal
places.
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 Dollars ("Pro-Rata Revolving Loans") to Micro
equal to such Lender's Percentage of the aggregate amount of the
Borrowing to be made on such Business Day, all in accordance with
Section 3.1; provided, however, 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 (excluding
for this calculation Non-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 Dollars equal to its
Percentage in each Pro-Rata Letter of Credit issued upon the application
of Micro pursuant to Section 3.2; provided, however, 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 Commitment Amount, or
(ii) the aggregate Outstanding Credit Extensions of all the
Lenders would exceed the then Total Credit Commitment Amount.
All Pro-Rata Revolving Loans and Pro-Rata Letters of Credit (and drawings
thereunder) shall be denominated solely in, and repaid in, Dollars. On and
subject to the conditions hereof, Micro 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 Non-Rata Revolving Loans 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 3740 at approximately 11:00 a.m. (London time) (and if such spot rate is
not available on Telerate Page 3740 as of such time, such spot rate as quoted
by NationsBank, 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 not earlier than May 1st, nor later
than June 30th of the year immediately preceding the year in which the
then-effective Commitment Termination Date occurs, deliver by registered
or certified mail, return receipt requested, or by overnight courier
service in the case of domestic deliveries (or the equivalent courier
service in the case of deliveries outside of the United States) in which
an acknowledgment of receipt of delivery is required from the recipient
thereof, to each Lender (with a copy thereof to the Administrative
Agent) three counterparts of a Commitment Extension Request
appropriately completed. Not later than July 31st of the year
immediately preceding the year in which the then-effective Commitment
Termination Date occurs, 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. 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 Commitments as contemplated by this Section 2.2. Not
later than August 15th of the year immediately preceding the year in
which the then-effective Commitment Termination Date occurs, the
Administrative Agent shall notify all of the Lenders as to the identity
of those Lenders that have indicated their intention not to extend their
respective Commitments (each a "Withdrawing Lender") and those Lenders
that have extended their Commitments (each a "Remaining Lender").
(b) In the event that, as of the date the Administrative Agent
delivers the notice provided for in the last sentence of paragraph (a)
above, (i) neither NationsBank nor Scotiabank shall be a Remaining
Lender and (ii) the Remaining Lenders shall hold, in the aggregate, less
than 75% of the Commitments, then from such date until a date not later
than August 31st of the year immediately preceding the year in which the
then-effective Commitment Termination Date occurs, each Remaining Lender
shall have the right to revoke (by delivering written notice thereof to
Micro and the Administrative Agent) its consent to such extension of its
Commitment provided pursuant to paragraph (a) of this Section (thereby
becoming a Withdrawing Lender hereunder as of the day of such
revocation). From and after the date the Administrative Agent delivers
the notice provided for in the last sentence of paragraph (a) of this
Section until a date not later than September 15th of the year
immediately preceding the year in which the then-effective Commitment
Termination Date occurs, the Remaining Lenders shall have the right to
assume the Commitments of any Withdrawing Lenders in proportion to their
respective share of the Commitments of such Remaining Lenders. If, as
of September 30th of the year immediately preceding the year in which
the then-effective Commitment Termination Date occurs, the Remaining
Lenders hold, in the aggregate, less than 75% of the Commitments (after
giving effect to any assumptions of the Commitments of Withdrawing
Lenders completed in accordance with the preceding sentence on or prior
to such date), the Commitments of all Lenders shall terminate and any
Outstanding Credit Extensions will mature and be payable in full on the
then-effective Commitment Termination Date.
(c) If, as of September 30th of the year immediately preceding
the year in which the then-effective Commitment Termination Date occurs,
the Remaining Lenders hold, in the aggregate, 75% or more of the
Commitments (after giving effect to any assumptions of the Commitments
of Withdrawing Lenders completed in accordance with the penultimate
sentence of paragraph (b) above on or prior to such date), the
Commitments of each Remaining Lender (including any Commitments assumed
by any Remaining Lender in accordance with the penultimate sentence of
paragraph (b) above) shall be extended for a period of one year (365
days or, if appropriate, 366 days) from the then-effective Commitment
Termination Date, subject to the satisfaction of the conditions
precedent to extension of the Commitments set forth in paragraph (f) of
this Section. In the event the requirements for extension of the
Commitments set forth in the preceding sentence shall be satisfied, from
and after October 1st of the year immediately preceding the year in
which the then-effective Commitment Termination Date occurs until a date
not later than 30 days prior to 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 Commitments of the Withdrawing Lenders
which have not been assumed in accordance with the penultimate sentence
of paragraph (b) above. Any Commitments assumed by Remaining Lenders or
new financial institutions in accordance with the preceding sentence
shall be extended for a period of one year (365 days or, if appropriate,
366 days) from the then-effective Commitment Termination Date, subject
to the satisfaction of the conditions precedent to extension of the
Commitments set forth in paragraph (f) of this Section.
(d) In the event the Commitments are extended in accordance with
this Section, the Outstanding Credit Extensions made by any Withdrawing
Lender that are not assumed or purchased pursuant to paragraph (b) or
(c) of this Section will mature and be payable in full on the
then-effective Commitment Termination Date, and the Commitments of each
such Withdrawing Lender shall thereupon terminate. On the
then-effective Commitment Termination Date, the Total Credit Commitment
Amount will be automatically reduced by an amount equal to the product of
(i) the sum of the Percentages of all the Withdrawing
Lenders that were not assumed or purchased pursuant to paragraph
(b) or (c) of this Section, and
(ii) the Total Credit Commitment Amount on such Commitment
Termination Date immediately prior to such calculation.
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) The decision of each Lender to extend its Commitments or
assume or purchase the Commitments of any Withdrawing Lender pursuant to
this Section 2.2 shall be exercised by it in its sole and absolute
discretion, including without reference to any or all of the stated
desires of any other Lender Party or Micro. All assignments made
pursuant to this Section 2.2 shall be made in accordance with Section
11.11.1, except that any such assignment may be in any minimum amount or
multiple thereof which results from the operation of this Section 2.2
and shall not require the consent of Micro or the Administrative Agent.
(f) Any extension of the Commitments in accordance with this
Section shall become effective only upon (i) the satisfaction of the
requirements for extension set forth herein and (ii) the delivery by
Micro to the Administrative Agent and each Lender, on or prior to the
then-effective Commitment Termination Date, of (A) executed replacement
Notes reflecting, without limitation, any changes in the identity or
Percentages of the Lender Parties and the Total Credit Commitment
Amount, and (B) copies of such other legal opinions, approvals,
instruments or documents as the Administrative Agent or any Remaining
Lender may reasonably request. Upon their receipt of the replacement
Notes required to be delivered pursuant to clause (A) above, the
Remaining Lenders shall ▇▇▇▇ the relevant predecessor Notes "exchanged"
and deliver the same to Micro.
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 or the Letter of Credit Commitment Amount; provided,
however, 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); and
(b) Micro shall not voluntarily reduce the Total Credit
Commitment Amount or the Letter of 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.
ARTICLE III
BORROWING PROCEDURES,
LETTERS OF CREDIT AND REGISTERS
SECTION 3.1. Borrowing Procedure for Pro-Rata Revolving Loans.
(a) On any Business Day occurring on or prior to the Commitment
Termination Date, Micro may from time to time irrevocably request, by
delivering on or prior to 1:00 p.m., Eastern time, on such Business Day
a Borrowing Request to the Administrative Agent, (i) in the case of LIBO
Rate Loans, not less than three nor more than five Business Days before
the date of the proposed Borrowing, or (ii) in the case of Reference
Rate Loans, on or before the Business Day of but not more than three
Business Days before the date of the proposed Borrowing, that a
Borrowing be made in a minimum amount of $25,000,000 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 comprised of the Type of Loans, and shall be made
on the Business Day, specified in such Borrowing Request. On or
before 2:30 p.m., Eastern 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 Percentage of the
requested Borrowing.
To the extent funds are received from the Lenders, the
Administrative Agent shall make such funds available to Micro by wire
transfer to the accounts Micro 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.
(b) Each Lender's Pro-Rata Revolving Loans shall be evidenced by
a single Revolving Note payable to such Lender. Micro hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate entries and endorsements on Schedule I to the Revolving Note
payable to such Lender, which entries, if made, shall evidence, inter
alia, the date of, the Type of, the advance period (if applicable) of,
the Maturity of, the outstanding principal of, interest payable on and
any repayments of Pro-Rata Revolving Loans made by such Lender to Micro
pursuant hereto. Any such entries indicating the outstanding principal
amount of such Lender's Pro-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
Micro hereunder to make payments of principal of or interest on such
Pro-Rata Revolving Loans when due.
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., Eastern time, on any Business Day occurring prior to the
Commitment Termination Date, Micro 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 Dollars 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. Micro and the relevant Issuer may amend or
modify any issued Pro-Rata Letter of Credit upon written notice to the
Administrative Agent only; provided, however, that 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 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 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 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 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 Micro 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, Eastern 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 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, Micro's Pro-Rata Reimbursement Obligation shall accrue
interest at a fluctuating rate equal to the Reference Rate plus 1/2 of 1% per
annum, payable on demand. In the event Micro fails to notify the
Administrative Agent and the relevant Issuer prior to 1:00 p.m., Eastern time,
on the Disbursement Date that Micro 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 Micro prior to 1:00 p.m.,
Eastern 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 Micro 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 which shall be Reference Rate Loans as
provided in Section 3.1; provided, however, 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 Micro 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 Micro, ratably, in accordance with their
respective 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 Micro 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 Micro in full, at
a rate per annum equal to the Reference Rate plus 2% per annum.
SECTION 3.2.3. Reimbursement. The obligation (the "Pro-Rata
Reimbursement Obligation") of Micro 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 Micro 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
Micro 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, however, that
nothing herein shall require Micro 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.
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 Micro, 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 Micro
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 Micro
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 Micro all amounts
deposited by it with the Administrative Agent pursuant to this clause
(together with accrued interest thereon at the Federal Funds Rate 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 Micro), 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. Micro 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,
however, 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,
Micro shall be required to indemnify the Issuer in connection therewith
only if, and to the extent, Micro 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 Micro and, with respect
to Pro-Rata Letters of Credit, each Lender, and shall not put such Issuer
under any resulting liability to Micro or, with respect to Pro-Rata Letters of
Credit, any Lender.
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 (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
Schedule II 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, however, that the Obligations of Micro with
respect to each Pro-Rata Credit Extension shall rank pari passu with the
Obligations of each Borrower with respect to each Non-Rata Revolving Loan.
SECTION 3.3.2. Ineligible Currencies. Notwithstanding any other
provision contained in this Agreement, if, at any time prior to the Commitment
Termination Date, the relevant Lender of a Non-Rata Revolving Loan determines
that the Available Currency in which such Non-Rata Revolving Loan has been
made is an Ineligible Currency, then such Lender may (in its sole discretion)
at any time notify the relevant Borrower of the same. Promptly after
receiving such notice and, in any event, within five Business Days of
receiving the same, such Borrower will notify such Lender as to what Available
Currency it desires such Non-Rata Revolving Loan to be converted into and
promptly thereafter such Lender shall so convert such Loans. If the relevant
Borrower fails to select another Available Currency as provided in the
preceding sentence, such other Available Currency shall be selected by the
relevant Lender. Such conversion shall be effected at the relevant spot rate
at which such Ineligible Currency is offered on such day for the selected
Available Currency which appears on Telerate Page 3740 at approximately 11:00
a.m. (London time) (and if such spot rate is not available on Telerate Page
3740 as of such time, such spot rate as quoted by NationsBank, in London at
approximately 11:00 a.m. (London time)), or, if no such spot rate shall exist,
such other rate of exchange as the relevant Lender shall reasonably determine.
SECTION 3.3.3. Limitations on Making Non-Rata Revolving Loans.
Subject to the last sentence of Section 2.1, no Lender shall be permitted
to make any Non-Rata Revolving Loan if, after giving effect thereto, either
the aggregate Outstanding Credit Extensions of all the Lenders would exceed
the then Total Credit Commitment Amount or the aggregate Outstanding Credit
Extensions consisting of Non-Rata Credit Extensions would exceed
$750,000,000.
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. 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, however, that the Obligations of Micro with respect to each
Pro-Rata Credit Extension shall rank pari passu with the Obligations of each
Borrower with respect to each Non-Rata Letter of Credit.
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.
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,
either the aggregate Outstanding Credit Extensions of all the Lenders would
exceed the then Total Credit Commitment Amount or the aggregate Outstanding
Credit Extensions consisting of Non-Rata Credit Extensions would exceed
$750,000,000.
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 Non-Rata
Letter of Credit, together with notice of the Non-Rata Disbursement Date
thereof. Prior to 12:00 noon, Eastern 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, however, 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. Bid Rate Facility.
SECTION 3.5.1. Bid Rate Loans. Any Borrower may, on the terms and
conditions of this Agreement, request the Lenders to make offers to make
Bid Rate Loans to such Borrower. The Lenders may, but shall have no
obligation to, make such offers and the relevant Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in
this Section 3.5. 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 Bid Rate Loan shall be made on the
terms and conditions agreed to between the relevant Borrower and the
relevant Lender; provided, however, that the Obligations of Micro with
respect to each Pro-Rata Credit Extension shall rank pari passu with the
Obligations of each Borrower with respect to each Bid Rate Loan.
SECTION 3.5.2. Quote Request. When a Borrower wishes to request
offers to make Bid Rate Loans, it shall give each of the Lenders (excluding
any Lender that has previously notified the Borrowers that it will not
participate in any LIBO Auctions or Absolute Interest Rate Auctions) notice
by telephone or telecopy (a "Quote Request") so as to be received at the
applicable office of each such Lender set forth on Schedule II or to such
other office as a Lender may notify the Borrowers pursuant to Section 11.2
no later than (a) 3:00 p.m., Eastern time, on the fourth Business Day prior
to the date of borrowing proposed therein, in the case of a LIBO Auction or
(b) 11:00 a.m., Eastern time, on the date of borrowing proposed therein, in
the case of an Absolute Interest Rate Auction. The relevant Borrower may
request offers to make Bid Rate Loans for up to five different Interest
Periods in a single notice; provided, however, that the request for each
separate Interest Period shall be deemed to be a separate Quote Request for
a separate borrowing (a "Bid Rate Borrowing"). Each Bid Rate Borrowing
shall be at least $10,000,000 (or an integral multiple of $1,000,000 in
excess thereof).
SECTION 3.5.3. Submission of Quotes. Each Lender may submit one or
more Quotes, each containing an offer to make a Bid Rate Loan in response
to any Quote Request; provided, however, that, if the relevant Borrower's
request under Section 3.5.2 specified more than one Interest Period, such
Lender may make a single submission containing one or more Quotes for each
such Interest Period. Each Quote must be submitted to the relevant
Borrower not later than (a) 11:00 a.m., Eastern time, on the third Business
Day immediately prior to the proposed date of borrowing, in the case of a
LIBO Auction or (b) 12:00 noon, Eastern time, on the proposed date of
borrowing, in the case of an Absolute Interest Rate Auction. Subject to
Sections 5.1 through 5.5 and 6.2 and Article IX, any Quote so made shall be
irrevocable. Each Quote shall specify: (i) the proposed date of borrowing
and the Interest Period therefor; (ii) the principal amount of the Bid
Rate Loan for which each such offer is being made, which principal amount
shall be at least $10,000,000 (or an integral multiple of $1,000,000 in
excess thereof); provided, however, that the aggregate principal amount of
all Bid Rate Loans for which a Lender submits Quotes may not exceed the
principal amount of the Bid Rate Borrowing for a particular Interest Period
for which offers were requested; (iii) in the case of a LIBO Auction, the
margin above or below the applicable LIBO Rate (the "LIBO Margin") offered
for each such Bid Rate Loan, ex pressed as a percentage (rounded upwards,
if necessary, to the nearest 1/100th of 1%) to be added to or subtracted
from the applicable LIBO Rate; (iv) in the case of an Absolute Interest
Rate Auction, the rate of interest per annum offered for each such Bid Rate
Loan (the "Absolute Interest Rate"); and (v) the identity of the quoting
Lender. No Quote shall contain qualifying, conditional or similar language
or propose terms other than or in addition to those of the Quote Request
and, in particular, no Quote may be conditioned upon acceptance by the
relevant Borrower of all (or some specified minimum) of the principal
amount of the Bid Rate Loan for which such Quote is being made.
SECTION 3.5.4. Acceptance of Quotes. Not later than (a) 11:00 a.m.,
Eastern time, on the second Business Day immediately prior to the proposed
date of borrowing, in the case of a LIBO Auction or (b) 2:00 p.m., Eastern
time, on the proposed date of borrowing, in the case of an Absolute
Interest Rate Auction, the relevant Borrower shall notify each Lender by
telephone or telecopy of such Borrower's acceptance or nonacceptance of the
Quotes submitted to such Borrower by such Lender. The failure of the
relevant Borrower to give such notice by such time shall constitute
nonacceptance of any such Quote. Such Borrower may accept any Quote in
whole or in part (provided that any Quote accepted in part shall be at
least $10,000,000 or an integral multiple of $1,000,000 in excess thereof);
provided, however, that: (i) subject to the limitations set forth in
clause (ii), (iii) or (iv) of this proviso, if two or more Lenders submit
Quotes for any Interest Period at identical pricing and the relevant
Borrower accepts any of such offers but does not wish to (or by reason of
the limitations set forth in clause (ii), (iii) or (iv) of this proviso,
cannot) accept the aggregate principal amount of the Bid Rate Loans offered
by such Lenders, such Borrower shall accept Bid Rate Loans from all of such
Lenders in amounts allocated among them pro rata according to the
respective principal amounts of the respective Bid Rate Loans originally
offered by such Lenders (or as nearly pro rata as shall be practicable in
light of the limitations set forth in clauses (ii), (iii) and (iv) of this
proviso), (ii) the aggregate principal amount of each Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Quote
Request; (iii) the aggregate principal amount of each Bid Rate Borrowing
shall be at least $10,000,000 (or an integral multiple of $1,000,000 in
excess thereof) but shall not cause the limits specified in Section 3.5.8
to be violated; and (iv) the relevant Borrower may not accept any offer
that fails to comply with Section 3.5.3 or otherwise fails to comply with
the requirements of this Agreement.
SECTION 3.5.5. Bid Rate Loan. Any Lender whose offer to make any Bid
Rate Loan has been accepted shall, not later than 3:00 p.m., Eastern time,
on the date specified for the making of such Loan and subject to the other
terms and conditions of this Agreement, make the amount of such Bid Rate
Loan available to the relevant Borrower at such Borrower's Account in
immediately available funds.
SECTION 3.5.6. Maturity of Bid Rate Loans. Each Bid Rate Loan shall be
repaid 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. The relevant Borrower may prepay any Bid Rate
Loan on such terms and conditions as such Borrower and the relevant Lender may
agree.
SECTION 3.5.7. Bid Rate Loan Records. Each Lender's Bid Rate Loans,
if any, shall be evidenced by a loan account maintained by such Lender.
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 Bid Rate Loans made
by such Lender to such Borrower pursuant hereto. Any such account entries
indicating the outstanding principal amount of such Lender's Bid Rate 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 Bid Rate Loans when due.
SECTION 3.5.8 Limitations on Making Bid Rate Loans. Subject to the
last sentence of Section 2.1, no Lender shall be permitted to make any Bid
Rate Loan if, after giving effect thereto, either the aggregate Outstanding
Credit Extensions of all the Lenders would exceed the then Total Credit
Commitment Amount or the aggregate Outstanding Credit Extensions consisting
of Non-Rata Credit Extensions would exceed $750,000,000.
ARTICLE IV
PRINCIPAL, INTEREST AND FEE PAYMENTS
SECTION 4.1. Repayments and Prepayments of Pro-Rata Revolving Loans.
Micro shall repay in full the unpaid principal amount of each Pro-Rata
Revolving Loan outstanding to it at the Maturity thereof. Prior thereto,
Micro:
(a) 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, however, that:
(i) any such prepayment of any Pro-Rata Revolving Loan
shall be allocated to each Lender pro rata according to such
Lender's 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 that
is a LIBO Rate Loan may be made on any day other than the last day
of the Interest Period then applicable to such LIBO Rate 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;
(iii) all such voluntary prepayments shall require prior
notice to the Administrative Agent of (x) at least three but no
more than five Business Days in the case of LIBO Rate Loans and
(y) not more than three Business Days but no later than the date
of such voluntary prepayment in the case of Reference Rate Loans;
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) 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 or conversion 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 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) shall, 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 Section 4.2.2 and
pursuant to an appropriately completed and delivered Borrowing Request
or Continuation/Conversion Notice, Micro may elect that Pro-Rata
Revolving Loans comprising a Borrowing accrue interest at the following
rates per annum:
(i) Reference Rate Loans. On that portion of such
Borrowing maintained from time to time as a Reference Rate Loan,
equal to the Reference Rate from time to time in effect.
(ii) LIBO Rate Loans. On that portion of such Borrowing
maintained from time to time as a LIBO Rate Loan, during each
Interest Period applicable thereto, the sum of the LIBO Rate for
such Interest Period plus the Applicable Margin.
(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.
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 a rate per annum equal to the Reference
Rate plus 2%.
SECTION 4.2.3. Continuation and Conversion Elections. Micro may from
time to time by delivering a Continuation/Conversion Notice to the
Administrative Agent on or before 1:00 p.m., Eastern time, on a Business
Day, irrevocably elect, in the case of LIBO Rate Loans, on not less than
three nor more than five Business Days' notice, and in the case of
Reference Rate Loans, on such Business Day, that all, or any portion in an
aggregate minimum amount of $25,000,000 and an integral multiple of
$1,000,000 of the Loans, be, in the case of Reference Rate Loans, converted
into LIBO Rate Loans or be, in the case of LIBO Rate Loans, converted into
Reference Rate Loans or continued as LIBO Rate Loans (in the absence of
delivery of a Continuation/Conversion Notice with respect to any LIBO Rate
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, each such LIBO Rate Loan shall, on such last day, automatically
convert to a Reference Rate Loan); provided, however, that (1) each such
conversion or continuation shall be pro rated among the applicable
outstanding Pro-Rata Revolving Loans of all Lenders, and (2) no portion of
the outstanding principal amount of any Pro-Rata Revolving Loans may be
continued as, or be converted into, a LIBO Rate Loan 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:
(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) with respect to each Reference Rate Loan, on each
Quarterly Payment Date;
(iv) with respect to each Reference Rate Loan that is
converted into a LIBO Rate Loan on a day when interest would not
otherwise have been payable pursuant to clause (iii), on the date
of such conversion;
(v) with respect to each LIBO Rate Loan, 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
(vi) 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 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.
(c) Bid Rate Loans. Each Borrower shall pay interest on the
aggregate principal amount of any Bid Rate Loan outstanding 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 3.5 in
connection with the making of such Bid Rate Loan.
SECTION 4.2.5. Interest Rate Determination. The Administrative Agent
and the Reference Lenders shall, in accordance with each of their customary
practices, attempt to determine the relevant interest rates applicable to
each LIBO Rate Loan requested to be made pursuant to each Borrowing Request
duly completed and delivered by Micro and each LIBO Market Loan from time
to time in accordance with the terms hereof, and each Reference Lender
agrees to furnish the Administrative Agent timely information for the
purpose of determining the LIBO Rate. If any Reference Lender fails 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 furnished by the other Reference Lenders.
SECTION 4.2.6. Additional Interest on LIBO Rate Loans. For so long as
the cost to a Lender of making or maintaining its LIBO Rate Loans is
increased as a result of any imposition or modification 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 LIBO Rate 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), then such
Lender may require Micro to pay, contemporaneously with each payment of
interest on the LIBO Rate Loans, additional interest on the related LIBO
Rate 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 LIBO
Rate 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 non-refundable and shall be paid 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 and Documentation Fees. Micro agrees to
pay directly to the Administrative Agent and the Documentation Agent, for
their own accounts, an annual administration and documentation fee,
respectively, in the amounts and on the dates set forth in the Fee Letter.
SECTION 4.3.2. Facility Fees. Micro agrees to pay directly to 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(a) hereof (together with the Compliance
Certificate required to be delivered contemporaneously therewith pursuant
to Section 8.1.1(d) hereof) for the Fiscal Year ending on the Saturday
nearest December 31, 1996, a fee to each Lender on its Credit Commitment
Amount on such day (without taking into account usage) at a rate of .125 of
1% 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, ▇▇▇▇▇'▇ 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 Senior Unsecured
Debt Ratings by S&P, ▇▇▇▇▇'▇ or Fitch, Ratio of Consolidated Funded Debt to
respectively Consolidated EBITDA Facility Fee
______________________________________ _______________________________________________ ____________
A-, A3 or A- (or higher) Less than 1.5 .090%
BBB+, Baa1 or BBB+ Greater than or equal to 1.5, but less than 2.0. .110%
BBB, Baa2 or BBB Greater than or equal to 2.0, but less than 2.5. .125%
BBB-, Baa3 or BBB- Greater than or equal to 2.5, but less than 3.0. .150%
▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.0, but less than 3.25. .200%
Lower than ▇▇▇, ▇▇▇ or BB+ Greater than or equal to 3.25. .250%
Such fee shall be calculated by Micro 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 Micro in
arrears on each Quarterly Payment Date and on the Commitment Termination Date.
Each Lender agrees to promptly notify the Administrative Agent of the failure
of Micro to pay any fee as provided in this Section.
SECTION 4.3.3. Letter of Credit Fees.
(a) Micro agrees to pay directly to each Lender (including the
relevant Issuer) a Pro-Rata Letter of Credit participation fee equal to
each Lender's 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 LIBO Rate Loan. Such
participation fee shall accrue from the date of issuance of any 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 directly to the Issuer of each Pro-Rata
Letter of Credit a Pro-Rata Letter of Credit issuance fee of .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 to 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) Each Lender and Issuer agrees to promptly notify the
Administrative Agent of the failure of Micro to pay any letter of credit
fees pursuant to this Section.
(d) Each Borrower agrees to pay directly to the relevant Issuer
of each Non-Rata Letter of Credit requested by such Borrower an
issuance 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 LIBO Rate
Loan shall be computed on the basis of a year consisting of 360 days and
interest on each Reference Rate Loan 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 LIBO Rate Loan, issue any Non-Rata Letter of
Credit or continue any LIBO Rate Loan previously made by it hereunder,
as the case may be, the obligations of such Lender to make any such LIBO
Rate Loan, issue any such Non-Rata Letter of Credit or continue any such
LIBO Rate Loan, as the case may be, shall, upon the giving 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 LIBO Rate Loans or convert all of such LIBO Rate Loans
into a Loan of another Type 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, however, such Lender shall make as
Reference Rate Loans all Loans that such Lender would otherwise be
obligated to make as LIBO Rate Loans and convert into or continue as
Reference Rate Loans all Loans that such Lender would otherwise be
required to convert into or continue as LIBO Rate Loans, 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 LIBO Rate Loan, issue any Non-Rata Letter of Credit
or continue any LIBO Rate 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 Non-Rata
Revolving Loan is required to permit the use of such Available Currency
by a Lender (through its Lending Office) for such Non-Rata Revolving
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 Non-Rata Revolving 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 prior to the date on which all or any portion of any LIBO
Rate Loan is to be made, maintained or continued the Administrative
Agent shall have determined (which determination shall be conclusive and
binding), with respect to such LIBO Rate Loan that:
(i) Dollar deposits in the relevant amount and for the
relevant Interest Period are available 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 hereunder to such LIBO Rate Loan,
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 as a LIBO Rate Loan 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; provided, however, that, for so long as any such suspension shall
be effective, unless the Borrower shall notify the Administrative Agent
prior to 1:00 p.m., Eastern Time, on the date of any proposed Borrowing
that was to be comprised of LIBO Rate Loans that it does not wish to
obtain such Loans as Reference Rate Loans, any proposed Borrowing that
would have been comprised of LIBO Rate Loans but for the terms of this
Section shall be made on the date of such proposed Borrowing as
Reference Rate Loans.
(b) The obligation of any Lender to make a Non-Rata Revolving
Loan shall be suspended under the circumstances provided for pursuant to
Section 3.3.4.
SECTION 5.3. Increased Credit Extension Costs, etc. Each Borrower
agrees to reimburse each Lender upon 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. In the event 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;
(b) any conversion of a LIBO Rate Loan into a Reference Rate
Loan on a date other than the scheduled last day of the Interest Period
applicable thereto; 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,
however, 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.
SECTION 5.7. Taxes. 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 which do not result from any Regulatory Change and which
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:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) 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
(c) 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.
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.
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 receipts 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.
Each Lender Party organized under the laws of a jurisdiction outside the
United States: (a) either on or prior to (i) the date of its execution and
delivery of this Agreement in the case of each such Lender Party listed on the
signature pages hereof, or (ii) the date on which it becomes a Lender Party in
the case of each such other Lender Party; (b) on or prior to the date of any
change in any such Lender Party's Lending Office; and (c) from time to time
thereafter if requested in writing by Micro (but only so long as such Lender
Party remains lawfully able to do so), shall provide Micro and the
Administrative Agent with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender Party is entitled to benefits under an income tax
treaty to which the United States is a party which exempts the Lender Party
from United States withholding tax or, except in the case of the initial such
form so delivered hereunder by such Lender Party, reduces the rate of
withholding tax on payments of interest for the account of such Lender Party or
certifying that the income receivable by such Lender Party pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States. For any period with respect to which a Lender Party
organized under the laws of a jurisdiction outside the United States has
failed to provide Micro and the Administrative Agent with the applicable
Internal Revenue Service form required to be so provided in accordance with
this Section 5.7 (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which such form originally was
required to be provided), such Lender Party shall not be entitled to
indemnification under this Section 5.7 with respect to United States
withholding tax; provided that if a Lender Party which 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, Micro shall take such steps as such Lender
Party shall reasonably request to assist such Lender Party to recover such
United States withholding tax.
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, however, 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 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).
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 (other than amounts payable with respect to Non-Rata Revolving
Loans, Bid Rate Loans, Non-Rata Reimbursement Obligations, fees payable
pursuant to Section 4.3 (which fees shall be paid directly by Micro or
the relevant Borrower to the relevant payee), 11.3 or 11.4 and payments
made to a Terminating Lender pursuant to Section 9.4), shall be made by
Micro to the Administrative Agent for the account of each Lender based
upon its Percentage in the case of Pro-Rata Letters of Credit and its
Percentage in the case of any Pro-Rata Revolving Loan (such 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., Eastern time, on the date when due, in same day or
immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to Micro. 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 Micro to the Administrative Agent, unless the
Administrative Agent shall have received notice from Micro prior to the
date on which any such payment is due hereunder that Micro will not make
such payment in full, the Administrative Agent may assume that Micro 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 Micro 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 Micro 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 the Federal
Funds Rate.
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 currency in which the
Obligation was denominated (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 or Bid Rate 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 or Bid Rate 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) Prior to the occurrence of a Pro-Rata Distribution Event,
the Administrative Agent shall remit payments made by Micro to it
pursuant to Section 5.8.1, and each Lender shall retain for its own
account all payments received by it pursuant to Section 5.8.2.
(b) Upon the occurrence and continuation of a Pro-Rata
Distribution Event,
(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; and
(ii) Micro, each other Borrower and each other Obligor
shall make payment of all amounts owing hereunder (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
the preceding clause (i). 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.
(c) For purposes of the foregoing, a "Pro-Rata Distribution
Event" shall mean the first to occur of an Event of Default pursuant to
Section 9.1.1 or 9.1.9 or any Default if, in connection therewith, the
Required Lenders shall have notified the Administrative Agent (and, upon
receipt of any such notice, the Administrative Agent shall promptly
notify Micro and the Lenders of the same) of the occurrence of such
Default and shall have instructed the Administrative Agent that
payments hereunder shall be allocated as provided in the preceding
clause (b).
(d) If at any time the proportion which any Lender Party (the
"Receiving Lender Party") has received or recovered (whether by set-off
or otherwise) in respect of its portion of any sum due from any Borrower
hereunder or under any other Loan Document is in excess of (the amount
of such excess being herein referred to as the "Excess Amount") the
proportion of such sum thereof which the Receiving Lender Party is
entitled to receive pursuant to clause (b)(i), then the Receiving Lender
Party shall promptly notify the Administrative Agent thereof and:
(i) the Receiving Lender Party shall promptly and in any
event within ten days of receipt or recovery of the Excess Amount
pay to the Administrative Agent an amount equal to the Excess
Amount;
(ii) the Administrative Agent shall treat such payment as
if it were a payment by the relevant Borrower on account of a sum
owed to the Receiving Lender Party and shall pay the same to the
relevant Lender Parties entitled to share in such payment
(including the Receiving Lender Party) as provided in clause
(b)(i); and
(iii) as between the relevant Borrower and the Receiving
Lender Party the Excess Amount shall be treated as not having been
paid, while as between such Borrower and each Lender Party
referred to in the preceding clause (d)(ii), it shall be treated
as having been paid by such Borrower to the extent received by such
Lender Party;
provided, however, that where a Receiving 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 (d), each
relevant Lender Party shall promptly repay to the Administrative Agent
for the account of the Receiving Lender Party the portion of such amount
distributed to it pursuant to this clause (d), together with interest
thereon at a rate sufficient to reimburse the Receiving 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 Default, after providing notice to Micro with respect
thereto (which notice shall not be required during any period when an Event of
Default shall have occurred and be continuing), 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 LIBO Rate 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 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), owing to such Subject
Lender hereunder. Upon the effective date of such assignment, the relevant
Borrower shall issue a replacement Note to such designated financial
institution and such institution shall become a Lender for all purposes
under this Agreement and the other Loan Documents and the relevant Subject
Lender shall deliver to Micro all of its Notes, such Notes to be canceled
by Micro.
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 LIBO Rate 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 (i)
will eliminate or reduce any such additional payment which may thereafter
accrue or will avoid such suspension and (ii) is not otherwise
disadvantageous to such Lender Party.
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 shall 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 with respect to this Agreement and the Guaranty and
each other Loan Document to be executed by it; and
(c) the Organic Documents of such Obligor (including, without
limitation, with respect to Micro, a copy of the executed Board
Representation Agreement),
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 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. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender, such Lender's Revolving Note, Bid
Rate Note and Non-Rata Revolving Note, duly executed and delivered by the
Obligor party thereto, as the case may be.
SECTION 6.1.4. 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 6.1.5. 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
1996 Fiscal Year, prepared in accordance with GAAP.
SECTION 6.1.6. Compliance Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate, dated as of the Effective Date.
SECTION 6.1.7. Payment of Outstanding Indebtedness. The Administrative
Agent shall have received evidence satisfactory to it that
contemporaneously with the making of the initial Credit Extension (a) all
"Obligations" (including those in respect of Indebtedness thereunder and
accrued interest with respect thereto) under the Existing Industries Credit
Agreement or the Existing Micro Credit Agreement (whichever shall be in
effect on the date of the initial Credit Extension, as the case may be)
shall be satisfied in full, whether through the application, directly or
indirectly, of any portion of the proceeds of such initial Credit Extension
or through the application of other moneys, and (b) all "Commitments" under
the Existing Industries Credit Agreement or the Existing Micro Credit
Agreement (whichever shall be in effect on the date of the initial Credit
Extension, as the case may be) shall be terminated.
SECTION 6.1.8. 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 6.1.9. Closing Fees, Expenses, etc. The Administrative Agent
and each Lender shall have received payment in full of all fees, costs and
expenses due and payable pursuant to Sections 4.3 and 11.3 (to the extent
then invoiced).
SECTION 6.1.10. 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, substantially in the form of Exhibit O hereto;
(d) Fogler, Rubinoff, special Canadian counsel to Micro Canada,
substantially in the form of Exhibit P hereto;
(e) Yeo Wee Kiong and Partners, special Singapore counsel to
Micro Singapore, substantially in the form of Exhibit Q hereto; and
(f) King & Spalding, counsel to the Agents, substantially in the
form of Exhibit R hereto.
SECTION 6.1.11. Investment Prospectus. The Administrative Agent shall
have received a true and correct copy of the final Prospectus (filed or to
be filed with the Securities and Exchange Commission pursuant to Rule
424(b) under the Securities Act of 1933, as amended) (the "Investment
Prospectus") and comprising a part of the registration statement on Form
S-1 (Registration No. 333-08453) filed with the Securities and Exchange
Commission in connection with the Investment.
SECTION 6.1.12. Senior Executive Officer's Certificate. The
Administrative Agent shall have received, with counterparts for each
Lender, a certificate, dated the Effective Date and duly executed and
delivered by a senior executive officer of Micro stating that (i) the First
Closing (as defined in the Amended and Restated Exchange Agreement referred
to below) has occurred of the share exchanges contemplated by that certain
Amended and Restated Exchange Agreement to be entered into among
Industries, Entertainment, Micro and certain shareholders of Industries,
(ii) each of ▇▇▇▇▇▇ Micro Holdings Inc., a California corporation, and
▇▇▇▇▇▇ Micro Inc., a California corporation, has merged into Micro, (iii)
the Investment has been successfully completed or will be successfully
completed concurrently with the initial Credit Extension hereunder; (iv)
since December 31, 1995, there has occurred no event or events which,
singly or in the aggregate, has resulted in a Material Adverse Effect; and
(v) the descriptions of the Transition Agreements and the transactions
contemplated thereby set forth in the annexes attached thereto, when taken
as a whole, do not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
SECTION 6.1.13. 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 final
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, however, 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 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, 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 however, 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.
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 6.2.5. Bid Rate Loans. In the case of any requested Bid Rate
Loan, each of the applicable conditions set forth in Sections 3.5 and 6.2 or
otherwise specified by the relevant Lender in connection with such Bid Rate
Loan 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 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 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 and
Notes. The Administrative Agent shall have received (a) an original
Accession Request and Acknowledgment duly completed and executed and
delivered by such Acceding Borrower and 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
and (b) for the account of each Lender (unless illegal (or otherwise likely
to result in consequences materially adverse to such Acceding Borrower)
under any local law, rule or regulation applicable to such Acceding
Borrower, in which case such Acceding Borrower shall provide prior notice
thereof to the Lenders and shall provide (prior to the date such Acceding
Borrower becomes a Supplemental Borrower hereunder) other evidence of such
Indebtedness or other documentation acceptable to the Required Lenders)
such Lender's Bid Rate Note and Non-Rata Revolving Note, duly executed and
delivered by such Acceding Borrower and in effect on the date such Acceding
Borrower becomes a Supplemental Borrower hereunder.
SECTION 6.3.3. Guaranties, etc. 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 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.
SECTION 6.4. Waiver of Notice under Existing Industries Credit
Agreement. By its execution of this Agreement, each Lender that is a party
to the Existing Industries Credit Agreement (if in effect on the date of
the initial Credit Extension) agrees to waive the requirements set forth in
Sections 2.3 and 4.1 of the Existing Industries Credit Agreement for the
provision of advance notice by Industries and any other borrower thereunder
to the administrative agent thereunder in respect of the consummation of
the transactions contemplated by Section 6.1.7 hereof.
SECTION 6.5. Waiver of Notice under Existing Micro Credit Agreement.
By its execution of this Agreement, each Lender that is a party to the
Existing Micro Credit Agreement (if in effect on the date of the initial
Credit Extension) agrees to waive the requirements set forth in Sections
2.3 and 4.1 of the Existing Micro Credit Agreement for the provision of
advance notice by Micro and any other borrower thereunder to the
administrative agent thereunder in respect of the consummation of the
transactions contemplated by Section 6.1.7 hereof.
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 their
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;
(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 their
respective 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.
SECTION 7.7. No Material Adverse Effect. Since December 31, 1995, 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, however, 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 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 the date hereof neither
Micro nor any of its Subsidiaries has 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 clause
(ii) of Section 8.2.1 (a).
SECTION 7.15. Accuracy of Information.
(a) Except as otherwise set forth in paragraph (b) of this
Section, 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 misleading.
(b) The information (i) describing the Transition Agreements and
the transactions contemplated thereby set forth in the annexes to the
certificate delivered to the Administrative Agent pursuant to Section
6.1.12, when considered as a whole, does not and will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (ii) contained in any
financial projections furnished hereunder is and will be based upon
assumptions and information believed by Micro to be reasonable, and
(iii) furnished with express written disclaimers with regard to the
accuracy thereof, is and shall be subject to such 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.
ARTICLE 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 copies of the
following financial statements, reports, notices and information:
(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 and
consolidating 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), 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), a Compliance Certificate showing compliance with
the financial covenants set forth in Section 8.2;
(e) to the extent not otherwise disclosed in a report on Form
10-K, Form 10-Q or Form 8-K filed with the Securities and Exchange
Commission and previously furnished pursuant to clause (f) below, as
soon as possible after 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 the commencement of any labor controversy, litigation,
action, proceeding of the type described in Section 7.8, notice thereof;
(f) promptly after the filing thereof, copies of (i) 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),
(ii) any amendments or supplements to the Investment Prospectus and
(iii) all reports on Form 10-K, Form 10-Q or Form 8-K (or any
respective successor forms thereto) which Micro or any Subsidiary of
Micro is required to file 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);
(g) to the extent not otherwise disclosed in a report on Form
10-K, Form 10-Q or Form 8-K filed with the Securities and Exchange
Commission and previously furnished pursuant to clause (f) above,
immediately upon becoming aware of the institution of any steps by any
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(f) 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, however,
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 is not with respect
to any income, sales or use tax and 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 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, 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 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,
however, 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. Micro (a) may cause any of its
Subsidiaries to execute and deliver from time to time in favor of the
Lender Parties additional guaranties (each an "Additional Guaranty") for
the repayment of the Obligations and (b) shall, concurrently or promptly after
any of its Subsidiaries (i) guarantees any Indebtedness of Micro or any
other Obligor or (ii) satisfies (at any time) the requirements hereunder
which describe a Material Subsidiary, cause such Subsidiary to execute and
deliver in favor of the Lender Parties an Additional Guaranty for the
repayment of the Obligations. Each Additional Guaranty (including, without
limitation, any Additional Guaranty executed and delivered by an Acceding
Borrower pursuant to Section 6.3.3) shall be in substantially the form of
Exhibit J attached hereto, 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 such Additional Guaranty) against such
Additional Guarantor; provided, that, in the event 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, 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.
In connection with the delivery of any such Additional Guaranty by an
Additional Guarantor there shall be delivered 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 Documentation Agent, the Administrative
Agent 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) Indebtedness in respect of the Credit Extensions;
(ii) Indebtedness existing as of the date hereof or
incurred pursuant to commitments or lines of credit in effect on
the date hereof (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
(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 fifteen percent (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 the date hereof 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,
however, that no property shall become subject to such extended,
renewed or replacement Lien that was not subject to the Lien extended,
renewed or replaced, 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, the Indebtedness
secured by such Lien shall be incurred in compliance with the applicable
terms hereof, including Section 8.2.3, and 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 worker's 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 less than $60,000,000 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, however, that no such Lien shall be 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, the aggregate outstanding
principal amount of Indebtedness secured by all such Liens shall not at
any time exceed one hundred percent (100%) of the fair market value of
such property at the time of the purchase or construction thereof, and
each such Lien shall have been incurred within two hundred seventy (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 way
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, however, 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;
(l) 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; or
(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; or
(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 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.
(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 Fiscal Year that do not exceed fifty percent (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 to acquire the same;
return any capital to its stockholders as such; or make any distribution of
assets to its stockholders as such; provided, however, that Micro may
redeem, purchase or acquire any of its capital stock (i) issued to
employees pursuant to any Plan or other contract or arrangement relating to
employment upon the termination of employment or other events or (ii) in a
transaction contemplated by the Transition Agreements.
SECTION 8.2.5. Consolidation, Merger, Asset Acquisitions, etc.
(a) No Borrower will liquidate or dissolve, consolidate with, or
merge into or with, or exchange shares with, any other Person, or sell,
transfer, lease or otherwise dispose of all or substantially all of its
assets to any Person, except, if no Default has occurred and is
continuing or would occur after giving effect thereto:
(i) any Obligor (except Micro) may liquidate or dissolve
voluntarily into any other Obligor and may merge into or with or
exchange shares with any other Person or sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to any
other Person, so long as the surviving entity or such transferee of
such assets shall continue to be an Obligor;
(ii) Micro may merge into or with any other Person;
provided, that: (A) either (1) Micro is the surviving entity or
(2) the surviving entity formed by such consolidation or into
which Micro shall be merged (which entity shall be a Person
organized, existing and in good standing under the laws of a State
of the United States) shall expressly assume Micro's Obligations
in a written agreement or undertaking satisfactory in form and
substance to Lenders holding, in the aggregate, 85% of the
Commitments and (B) Micro can demonstrate (in a manner and in such
scope and detail as are acceptable to either (1) if such merger
satisfies the requirements of subclause (1) of clause (A) above,
the Required Lenders, or (2) if such merger satisfies the
requirements of subclause (2) of clause (A) above, Lenders
holding, in the aggregate, 85% of the Commitments) that the
surviving entity (x) will be, immediately upon and following the
consummation of such proposed transaction, in compliance with each
of the covenants set forth in Sections 8.2.1 and 8.2.2 and (y) on
a pro forma basis, 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,
would have been in compliance with each of the covenants set forth
in Section 8.2.3 as of the last day of such period; and
(iii) Micro may exchange shares with any Person; provided,
that (A) either (1) Micro is the surviving entity of the
transaction in which such shares were exchanged, or (2) if Micro
shall not continue to exist following such transaction, the
surviving entity of such transaction (which entity shall be a
Person organized, existing and in good standing under the laws of
a State of the United States) shall expressly assume Micro's
Obligations in a written agreement or undertaking satisfactory in
form and substance to Lenders holding, in the aggregate, 85% of the
Commitments or (B) the entity resulting from such transaction or
the entity with whose shareholders Micro's shares were exchanged
in such transaction shall, following such transaction, be a
Subsidiary of Micro or shall be a Person in which Micro shall, as
a result of such transaction, have acquired a direct or indirect
interest permitted to be held by Micro hereunder.
(b) No Borrower will purchase or otherwise acquire (in one
transaction or a series of related transactions) from any other Person
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 twenty-five percent (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 any increase thereof
attributable to any equity offerings or issuances of capital stock
occurring subsequent to the end of such Fiscal Period and prior to any
such purchase or acquisition (any such purchase or acquisition, a
"Material Asset Acquisition")), except, if no Default has occurred and
is continuing or would occur after giving effect thereto, Micro may make
a Material Asset Acquisition; provided that, prior to the consummation
of any proposed Material Asset Acquisition, Micro shall (x) notify the
Administrative Agent that it intends to make such proposed Material
Asset Acquisition and that it reasonably believes that it will be able
to certify as required by clause (y) below and (y) deliver to the
Administrative Agent a certificate duly executed and delivered by an
Authorized Person of Micro, certifying that (1) immediately upon and
following the consummation of such proposed Material Asset Acquisition,
Micro will be in compliance with each of the covenants set forth in
Sections 8.2.1 and 8.2.2 and (2) on a pro forma basis, assuming such
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 each
of the covenants set forth in Section 8.2.3 as of the last day of such
period; provided further, that no purchase or acquisition of property
or assets of the character described in and permitted pursuant to clause
(c) of Section 8.2.9 shall constitute a Material Asset Acquisition.
SECTION 8.2.6. Transactions with Affiliates. No Borrower will (and no
Borrower will permit any of its Subsidiaries to), except in the ordinary
course of business, 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 the foregoing provisions of this Section
shall not prohibit (i) agreements with or for the benefit of employees of such
Borrower or any of its 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 pursuant to a Transition Agreement or disclosed in the Investment
Prospectus, (v) any Affiliate Transaction between Micro and any of its
Subsidiaries or between any Subsidiaries of Micro or (vi) any Affiliate
Transaction (other than any Affiliate Transaction described in clauses (i)
through (v)) in which the amount involved does not exceed $50,000; provided,
further, however, the Borrowers shall not, nor shall they permit any of their
respective Subsidiaries to, participate in or 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 Margin Stock Acquisitions. Without first
providing the notice to the Administrative Agent and the Lenders required by
this Section 8.2.7, 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 five percent (5%) of
the total outstanding stock of the issuer of such Margin Stock (the "Relevant
Issuer"). Such notice shall include the name and jurisdiction of organization
of the Relevant Issuer, the market on which such stock is traded, the total
percentage of the Relevant Issuer's stock currently held, and the purpose for
which the acquisition is being made. If any Lender Party notifies Micro,
within five Business Days of its receipt of any notice described in this
Section 8.2.7, that it elects not to fund any further Credit Extension for the
reason that such Lender Party has a substantial relationship with the Relevant
Issuer or any of its Subsidiaries or Affiliates, where, in each case, such
Credit Extension would be used to acquire or carry Margin Stock of the
Relevant Issuer, then, and notwithstanding anything to the contrary contained
in this Agreement, and subject to the consent of Micro (which consent shall
not be unreasonably withheld), such Lender Party shall have no further
obligation with respect to any Credit Extension requested after the date of
such notice from such Lender Party, the proceeds of which would be used
directly or indirectly for the purchase or carrying of such Margin Stock (it
being understood and agreed, however, that in no event shall any Lender be
required to fund more than its Percentage of any proposed Borrowing). The
acceptance by each Borrower of the proceeds of any Credit Extension shall
constitute a representation and warranty by each Borrower that no part of any
such Credit Extension will be used directly or indirectly to make any further
acquisition of the stock of any Relevant Issuer.
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 Consolidated Transferred Receivables, to the sum of
Consolidated Retained Receivables plus Consolidated Transferred Receivables
shall exceed 40%.
SECTION 8.2.9. Sale of Assets. 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
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, 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 ten percent (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; provided further, that, notwithstanding the foregoing, so long
as no Event of Default has occurred and is continuing or would occur
after giving effect thereto, (i) any Subsidiary of Micro which is not at
the time of such Disposition an Obligor may Dispose of assets in
transactions exclusively with (A) Micro, (B) any Subsidiary of Micro
which, at the time of such Disposition, is an Obligor and (C) 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 (ii) 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 (A)
Micro and (B) any other Subsidiary of Micro which, at the time of such
Disposition, is also an Obligor.
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, provided that
the assets involved in such exchange are similar in function in that 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 by any Borrower of any principal of any
Loan, by any Borrower of any interest on any Loan, 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 by any Guarantor of any Guaranteed
Obligation (as defined in such Guarantor's Guaranty), and in the case of
clause (b), (c) 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 observance of any of its
obligations under Section 8.2.2, 8.2.3, 8.2.4 or 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 clause (y) of paragraph
(b) of Section 8.2.5).
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 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 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 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) $60,000,000 (or 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
10 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 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 the Board of Directors of
Micro shall no longer be composed of individuals (i) who were members of 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 at 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 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 a Guarantor under one Guaranty into the Guarantor under
another Guaranty) or any Guarantor shall have repudiated its obligations
under a Guaranty.
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 Terminating 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 Terminating Lender
may by notice to Micro declare all or any portion of the outstanding
principal amount of the Loans made by such Terminating Lender and all other
Obligations owed to such Terminating 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 to
Section 3.2.4 to the payment of the Obligations in any order in which the
Majority Lenders may elect.
ARTICLE X
THE ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT
SECTION 10.1. Authorization and Actions. Each Lender hereby appoints
NationsBank as the Administrative Agent and Scotiabank 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 may at any time be imposed on, incurred
by, or asserted against, each such Agent in any way relating to or arising 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, however, 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 for 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., Eastern time, on the day prior to the making of a Pro-Rata
Revolving Loan that such Lender will not make available the amount which
would constitute its 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 Micro 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 Micro
severally agree to repay 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 Micro to the
date such amount is repaid to the Administrative Agent at an interest rate
equal to the Federal Funds Rate 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 or 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 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 a commercial banking institution
organized under the laws of the United States (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the 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 NationsBank and Scotiabank.
NationsBank and Scotiabank shall each have the same rights and powers with
respect to the Credit Extensions made by 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 of NationsBank, Scotiabank and their respective Affiliates
may accept deposits from, lend money to, and generally engage in any kind
of business with any Obligor or any 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 of 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 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.
SECTION 10.8. Reporting of Non-Rata Credit Extensions. Each Borrower
agrees to provide the Administrative Agent with written notice of each
Non-Rata Credit Extension concurrently with or promptly after the making of
such Non-Rata Credit Extension, which notice shall set forth, among other
things: (a) the date thereof; (b) 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);
(c) the Interest Period applicable thereto; (d) the aggregate Dollar
Amount of such Lender's outstanding or undrawn Non-Rata Credit Extensions
as of such date; and (e) the identity of the relevant Lender. Each Lender
agrees to provide the Administrative Agent with written confirmation within
five calendar days following the last day of each calendar month (from the
date hereof until the Commitment Termination Date) of the Outstanding
Credit Extensions comprised of Non-Rata Credit Extensions made by such
Lender as of the end of such calendar month, which confirmation shall set
forth, among other things: (a) the date of each such Non-Rata Credit
Extension; (b) 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), and the aggregate
Dollar Amount of all such Non-Rata Credit Extensions; (c) the respective
Interest Periods applicable thereto; and (d) the Identity of such Lender.
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,
however, 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
Percentage or Required Lenders, increase the Total Credit Commitment
Amount or the Credit Commitment Amount 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 or 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
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 prepaid 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 may from time to
time 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, any 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 each Lender Party upon demand for all out-of-pocket
expenses (inclusive of value added tax or any other similar tax imposed
thereon and including attorneys' fees and legal expenses (including the 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, however,
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 the 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 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 all 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 Loan 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 (a) counterparts hereof
executed on behalf of Micro, each Supplemental Borrower, the Agents and
each Lender (or notice thereof satisfactory to the Administrative Agent)
shall have been received by the Administrative Agent and notice thereof
shall have been given by the Administrative Agent to each Borrower and each
Lender and (b) the Administrative Agent shall have received evidence
reasonably satisfactory to it that the mergers described in clause (ii) of
Section 6.1.12 have been consummated; provided, however, 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. Governing Law; Submission to Jurisdiction. THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE COORDINATION CENTER
GUARANTY, MICRO CANADA GUARANTY (MICRO) AND MICRO CANADA GUARANTY
(COORDINATION CENTER/MICRO SINGAPORE)) SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (OTHER THAN THE COORDINATION
CENTER GUARANTY, MICRO CANADA GUARANTY (MICRO) AND MICRO CANADA GUARANTY
(COORDINATION CENTER/MICRO SINGAPORE)), OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS (OTHER THAN WITH
RESPECT TO THE COORDINATION CENTER GUARANTY, MICRO CANADA GUARANTY (MICRO)
OR MICRO CANADA GUARANTY (COORDINATION CENTER/MICRO SINGAPORE)) OF THE
AGENTS, THE LENDERS, MICRO OR ANY OTHER OBLIGOR SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. MICRO
AND EACH OTHER OBLIGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATED DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, 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 SUCH
OBLIGOR AT ITS ADDRESS FOR NOTICES SPECIFIED PURSUANT TO SECTION 11.2
HEREOF, 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 STATE. MICRO AND
EACH OTHER OBLIGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE 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 MICRO OR ANY
OTHER OBLIGOR 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, EACH SUCH OBLIGOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THE COORDINATION CENTER
GUARANTY, MICRO CANADA GUARANTY (MICRO) AND MICRO CANADA GUARANTY
(COORDINATION CENTER/MICRO SINGAPORE)).
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, however, 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
(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 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
either 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 and delegation 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 of
$10,000,000 (or if less, the entire amount of such Lender's total Credit
Extensions and Commitment); provided, however, that, each Obligor and the
Agents shall be entitled to continue to deal solely and directly with such
Lender in connection with the interests so assigned and delegated to a
Transferee Lender until:
(a) 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;
(b) the Transferee Lender shall have executed and delivered to
Micro and each Agent, a Lender Assignment Agreement; and
(c) the processing fee described below shall have been paid.
From and after the effective date of such Lender Assignment Agreement, (x) the
Transferee Lender thereunder shall be deemed automatically to have become a
party hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Transferee Lender in connection with such
Lender Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (y) the assignor Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within five Business Days after its receipt pursuant to clauses (a) and (b)
above of notice of such assignment and transfer and an executed Lender
Assignment Agreement, Micro shall execute and deliver to the Administrative
Agent (for delivery to the relevant Transferee Lender) new Notes evidencing
such Transferee Lender's assigned Credit Extensions and Commitments and, if
the assignor Lender has retained Credit Extensions and Commitments hereunder,
replacement Notes in the principal amount of the Credit Extensions and
Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, the Notes then held by such assignor
Lender). Each such Note shall be dated the date of the respective predecessor
Note. The assignor Lender shall ▇▇▇▇ each predecessor Note "exchanged" and
deliver each of them to Micro. Accrued interest and accrued fees shall be
paid at the same time or times provided in each predecessor Note and in this
Agreement. The Transferee Lender shall pay a processing fee in the amount of
$3,500 to the Administrative Agent upon delivery of its Lender Assignment
Agreement to the Administrative Agent. Any attempted assignment and
delegation not made in accordance with this Section 11.11.1 shall be null and
void.
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, however, 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;
(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; and
(f) the aggregate amount of participating interests sold by any
Lender in its Credit Extensions comprised of Bid Rate Loans shall not
exceed, at any time, an amount equal to such Lender's Commitment at such
time multiplied by three.
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, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
LENDER PARTIES OR MICRO OR ANY OTHER OBLIGOR. MICRO AND EACH OTHER OBLIGOR
ACKNOWLEDGE AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS 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 IT 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 by 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 its 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 and 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; (e) or 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 and 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, in 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) Upon receipt by the Agents of (i) a certificate from a
senior officer of Micro certifying as of the date thereof that, after
the consummation of the transaction or series of transactions described
in such certificate (which transactions, individually and in the
aggregate, shall be certified to be in compliance with the terms and
conditions of this Agreement, including the covenants contained in
Sections 8.2.5, 8.2.6 and 8.2.9), the Guarantor identified in such
certificate is no longer a Subsidiary of Micro, and (ii) such additional
information, approvals, opinions, documents or instruments relating to
the matters addressed in such certificate as the Agents shall reasonably
request, such Guarantor's Guaranty shall automatically terminate so long
as there shall exist no Default immediately prior to, as a result of, or
after giving effect to, such termination. In all events, all other
Guaranties shall remain in full force and effect. Each Lender Party
shall, at Micro's expense, execute such documents as Micro shall
reasonably request to evidence such termination.
(b) Upon receipt by the Agents of (i) a certificate from a
senior officer of Micro certifying as of the date thereof that, after
the consummation of the transaction or series of transactions described
in such certificate (which transactions, individually and in the
aggregate, shall be certified to be in compliance with the terms and
conditions of this Agreement, including the covenants contained in
Sections 8.2.5, 8.2.6 and 8.2.9), the Supplemental Borrower identified
in such certificate is no longer a Subsidiary of Micro, (ii) such
additional information, approvals, opinions, documents or instruments
relating to the matters addressed in such certificate as the Agents
shall reasonably request, and (iii) payment in full of any Outstanding
Credit Extensions made by any Lender in favor of such Supplemental
Borrower and satisfaction of any Obligations of such Supplemental
Borrower under the Loan Documents, such Supplemental Borrower shall
automatically cease to be a party to this Agreement so long as there
shall exist no Default immediately prior to, as a result of, or after
giving effect to, such cessation. In all events, this Agreement shall
remain in full force and effect as among the remaining parties hereto.
Each Lender Party shall, at Micro's expense, execute such documents as
Micro shall reasonably request to evidence such cessation.
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.
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